the seventh; a thousand and twenty-four in the tenth and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demonstrate. (i) This lineal consanguinity, we may observe, falls strictly within the definition of vinculum *personarum ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same [*204] common ancestor.

Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend one from the other. Collateral kinsmen are such, then, as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have *each

a numerous issue; both these issues are lineally descended from John [*205] Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.

We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father: Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin's claim to consanguinity is this, that they are both derived from one and the same great grand-father. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more (and, without such a supposition, the human species must be daily diminishing); we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are; besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more. (k) And if

(i) This will seem surprising to those who are unacquainted with the increasing power of progressive numbers; but is palpably evident from the following table of a geometrical progression in which the first term is 2, and the denominator also 2; or, to speak more intelligibly, it is evident, for that each of us has two ancestors in the first degree; the number of whom is doubled at every remove, because each of our ancestors has also two immediate ancestors of his own.

A shorter method of finding the number of ancestors at any even degree is by squaring the number of ancestors at half that number of degrees. Thus 16 (the number of ancestors at four degrees) is the square of 4, the number of ancestors at two; 256 is the square of 16; 65536 of 256; and the number of ancestors at 40 degrees would be the square of 1048576, or upwards of a million millions.(4)

(k) This will swell more considerably than the former calculation; for here, though the first term is but 1, the denominator is 4; that is, there is one kinsman (a brother) in the first degree, who makes, together with the propositus, the two descendants from the first couple of ancestors; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately precedes it. For, since

(4) [This calculation is right in numbers, but is founded on a false supposition, as is evident from the results; one of which is to give a man a greater number of ancestors all living at one time than the whole population of the earth: another would be, that each man now living, instead of being descended from Noah and his wife alone, might claim to have had at that time an almost indefinite number of relatives. Intermarriages among relatives are one check on this incredible increase of relatives. This is noticed afterwards by Blackstone, as to collateral relą, tives.]

this calculation should appear incompatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.

The method of computing these degrees in the canon law, (7) which [ *206 ] our law has adopted, (m) is as follows: we begin at the common ancestor, and reckon downwards: and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first *degree; for from the father to each of them is counted only [*207 ] one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz.: his own grandfather, the father of Titius. Or (to give a more illustrious instance from our English annals), King Henry the Seventh, who slew Richard the Third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity represent King Richard the Third, and the class marked (e) King Henry the Seventh. Now their common stock or ancestor was King Edward the Third, the abavus in the same table: from him to Edmond, duke of York, the proavus, is one degree; to Richard, earl of Cambridge, the avus, two; to Richard, duke of York, the pater, three; to King Richard the Third, the propositus, four; and from King Edward the Third to John of Gant (a) is one degree; to John, earl of Somerset, (b) two; to John, duke of Somerset, (c) three; to Margaret, countess of Richmond, (d) four;

each couple of ancestors has two descendants, who increase in a duplicate ratio, it will follow that the ratio, in which all the descendants increase downwards, must be double to that in which the ancestors increase upwards; but we have seen that the ancestors increase upwards in a duplicate ratio : therefore the descendants must increase downwards in a double duplicate, that is, in a quadruple ratio. (5)

This calculation may also be formed by a more compendious process, viz. by squaring the couples, or half the number of ancestors, at any given degree; which will furnish us with the number of kindred we have in the same degree, at equal distance with ourselves from the common stock, besides those at unequal distances. Thus, in the tenth iineal degree, the number of ancestors is 1024; its half, or the couples, amount to 512; the number of kindred in the tenth collateral degree amounts therefore to 262144, or the square of 512. And if we will be at the trouble to recollect the state of the several families within our own knowledge, and observe how far they agree with this account: that is, whether on an average every man has not one brother or sister, four first cousins, sixteen second cousins, and so on; we shall find that the present calculation is very far from being overcharged.

(1) Decretal. 4, 14, 3 and 9.

(m) Co. Litt. 23.

(5) [The learned judge's reasoning is just and correct; and that the collateral relations are quadrupled in each generation may be thus demonstrated:-As we are supposed, upon an average, to have one brother or sister, the two children by the father's brother or sister will make two cousins, and the mother's brother or sister will produce two more, in all, four. For the same reason, my father and mother must each have had four cousins, and their children are my second cousins; so I have eight second cousins by my father, and eight by my mother; together sixteen. And thus again, I shall have thirty-two third cousins on my father's side, and thirty-two on my mother's, in all, sixty-four. Hence it follows that each preceding number in the series must be multiplied by twice two or four.

This immense increase of the numbers depends upon the supposition that no one marries a relation; but to avoid such a connexion it will very soon be necessary to leave the kingdom. How these two tables of consanguinity may be reduced by the intermarriage of relations, will appear from the following simple case: If two men and two women were put upon an uninhabited island, and became two married couples, if they had only two children each, a male and female, who respectively intermarried, and in like manner produced two children, who are thus continued ad infinitum; it is clear, that there would never be more than four persons in each generation; and if the parents lived to see their great-grandchildren, the whole number would never be more than sixteen; and thus the families might be perpetuated without any incestuous connection.]

to King Henry the Seventh, (e) five. Which last mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though, according to the computation of the civilians (who count upwards, from either of the persons related, to the common stock, and then downwards again to the other: reckoning degree for each person both ascending and descending), these two princes were related in the ninth degree, for from King Richard the Third to Richard, duke of York, is one degree; to Richard, earl of Cambridge, two; to Edmond, duke of York, three; to King Edward the Third, the common ancestor, four; to John of Gant, five; to John, earl of Somerset, six; John, duke of Somerset, seven; to Margaret, countess of Richmond, eight; to King Henry the Seventh, nine. (n) (6)

*The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules or canons of [*208] inheritance, according to which, estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.

1. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum; but shall never lineally ascend. (7)

To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hæres viventis. (8) Before that time the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child or a daughter, whose present hopes my be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter, in the former cases, the estate shall be devested and taken

(n) See the table of consanguinity annexed; wherein all the degrees of collateral kindred to the propositus are computed so far as the tenth of the civilians and the seventh of the canonists inclusive; the former being distinguished by the numeral letters, the latter by the common cyphers.

(6) [The difference of the computation by the civil and canon laws may be expressed shortly thus: the civilians take the sum of the degrees in both lines to the common ancestor; the canonists take only the number of degrees in the longest line. Hence, when the canon law prohibits all marriages between persons related to each other within the seventh degree, this would restrain all marriages within the 14th degree of the civil law. In the 1st book, 425, n., it is observed that all marriages are prohibited between persons who are related to each other within the third degree, according to the computation of the civil law. This affords a solution to the vulgar paradox, that first cousins may marry and second cousins cannot. For first cousins and all cousins may marry by the civil law; and neither first nor second cousins can marry by the canon law. But all the prohibitions of the canon law might have been dispensed with. It is said, that the canon law computation has been adopted by the law of England; yet I do not know a single instance in which we have occasion to refer to it. But the civil law computation is of great importance in ascertaining who are entitled to the administration, and to the distributive shares, of intestate personal property. See post, 504, 515.]

(7) This canon of descent is very generally changed in the United States, so as to admit at least the father and mother as heirs in the event of the failure of lineal descendants. It is also altered in England by statute 3 and 4 Wm. IV, c. 106. See infra, p. 240, note.

(8) [In a devise, however, if lands be left to the heir of M it may be good as designatio persona, and he may take in the lifetime of M. Goodright d. Brooking v. White, 2 Bla. 1010. There is also an exception to this rule in the case of the duchy of Cornwall, which vests in the king's first-born son by hereditary right in the lifetime of his father. 3 Bac. Ab. 4, 449; 8 Rep. 1; Seld. tit. Hon. 2, 5.]

away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of a posthumous son. (o) (9)

*We must also remember, that no person can be properly such an [ *209] ancestor, as that an inheritance of lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold: (p) (10) or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson, (q) and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore all the cases which will be mentioned in the present chapter, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. (11) Which notoriety had succeeded in the place of the ancient feudal investiture, whereby, while feuds were precarious, the vassal on the descent of lands was formerly admitted in the lord's court (as is still the practice in Scotland), and there received his seisin, in the nature of a renewal of his ancestor's grant, in the presence of the feudal peers; till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers), or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem. (r)

*When therefore a person dies so seised, the inheritance first goes to [*210] his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son; and John purchases lands, and dies; his son Matthew shall succeed

(0) Bro. tit. descent, 58.

(p) Co. Litt. 15.

(q) Ibid. 11.

(r) Flet. l. 6, c. 2, § 2.

(9) [But besides the case of a posthumous child, if lands are given to a son, who, dies, leaving a sister his heir; if the parents have at any distance of time afterwards another son, this son shall devest the descent upon the sister, and take the estate as heir to his brother. Co. Litt. 11; Doct. and Stud. 1 dial. c. 7. So the same estate may be frequently devested by the subsequent birth of a nearer presumptive heir. As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born uncle, on whom a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother. It seems to be determined that every one has a right to retain the rents and profits which accrued while he was thus legally possessed of the inheritance. Harg. Co. Litt. 11; 3 Wils. 526. This is in the case of descent, see H. Chit. Desc. 294; but where a posthumous child takes by purchase, he is entitled not only to the estate itself, but to the intermediate profits of the estate also. Id. 296, 297, 298.]

(10) [It seems doubtful whether receiving rent reserved on a freehold lease, is equivalent to corporal seisin of the lands; upon comparing the passage cited in Lord Coke as an authority, with Co. Litt. 32, a, and 3 Rep. 42, a, it would seem that his opinion was in the negative. The same point was ruled in cases cited from Hale's MSS., and Mr. J. Glyn's MS., Rep. by Mr. Hargrave: Co. Litt. 15, a. n. 83; and in Doe v. Kean, 7 T. R., 390, Lord Kenyon certainly understands him so to have thought, and adopts it as a rule, that to give such seisin, rent must have been received after the expiration of the freehold lease. See also Doe v. Whichelo, 8 T. R. 213.]

(11) [This requisition of seisin does not, however, apply where the proposed ancestor was a purchaser; for from him the estate or right to be inherited shall descend, whether he was seized or not. Pollex. 54; 2 Wils. 29; 4 Scott, N. R. 449. A condition may descend upon the heir, although no estate actually descends from the ancestor; and when the condition is performed, the heir shall be in by descent, because of the condition descending. Cas. Temp. Talbot, 123. Thus, the estate of a devisee or surrenderee of a copyhold is transmissible before he is admitted. 5 Burr. 2786. It is said of remainders contingent as to the person, that they are not descendible until that contingency is determined: Fearne, Con. Rem. 371; Watk. Desc. 4; but this is only to say that you cannot trace the descent until you know from whom it is to be traced.]

him as heir, and not the grandfather, Goeffrey; to whom the land shall never ascend, but shall rather escheat to the lord. (s) (12)

This rule, so far as it is affirmative and relates to lineal descents, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish Law, on failure of issue, the father succeeded to the son, in exclusion of brethern, unless one of them married the widow, and raised up seed to his brother. (t) And by the laws of Rome, in the first place, the children or lineal descendants were preferred; and on failure of these, the father and mother or lineal ascendants succeeded, together with the brethren and sisters; (u) though by the law of the twelve tables the mother was originally, on account of her sex, excluded. (v) Hence this rule of our laws has been censured and declaimed against as absurd, and derogating from the maxims of equity and natural justice. (w) Yet that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good legal reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing it into our laws.

*We are to reflect, in the first place, that all rules of succession to [ *211] estates are creatures of the civil polity, and juris positivi merely. The right of property, which is gained by occupancy, extends naturally no farther than the life of the present possessor: after which the land by the law of nature would again become common, and liable to be seised by the next occupant; but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions; whereby the property originally gained by possession is continued and transmitted from one man to another, according to the rules which each state has respectively thought proper to prescribe. There is certainly, therefore, no injustice done to individuals, whatever be the path of descent marked out by the municipal law.

If we next consider the time and occasion of introducing this rule into our law, we shall find it to have been grounded upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence of, the feudal tenures. For it was an express rule of the feudal law, (x) that successionis feudi talis est natura, quod ascendentes non succedunt; and therefore the same maxim obtains also in the French law to this day. (y) (13) Our Henry the First, indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line: (2) but this soon fell again into disuse; for so early as Glanvil's time, who wrote under (t) Seld. de success. Ebræor. c. 12. (u) Ff. 38, 15, 1. Nov. 118, 127. (w) Craig. de jur. feud. 1. 2. t. 13, 15. Locke on Gov. part 1, § 90. (y) Domat, p. 4, l. 2, t. 2. Montesq. Sp. L. l. 31, c. 33.

(s) Litt. § 3.

(v) Inst. 3, 3, 1. (x) 2 Feud. 50.

(z) LL. Hen. I, c. 70.

(12) [That is, the father shall not take the estate as heir to his son in that capacity; yet as a father or mother may be cousin to his or her child, he or she may inherit to him as such, notwithstanding the relation of parent. Eastwood v. Vinke, 2 P. Wms. 613. So if a son purchases lands and dies without issue, his uncle shall have the land as heir, and not the father, though the father is nearer of blood: Litt. s. 3; but if in this case the uncle acquires actual seisin and dies without issue, while the father is alive, the latter may then, by this circuity, have tho lands as heir to the uncle, though not as heir to the son, for that he cometh to the land by collateral descent, and not by lineal ascent. Craig. de Jur. Feud. 234; Wright's Ten. 182, n. (Z). So under a limitation to "the next of blood of A," the father would on the death of the son without issue, take, in exclusion both of the brothers and uncle of A, who would have first succeeded under the usual course of descent, as heirs of A: for a father is nearer in proximity of blood than a brother or an uncle: Litt. s. 3; Co. L. 10, b. 11, a. ; 3 Rep. 40 b.; 1 Vent. 414; Hale C. L. 323; and this is the reason why the father is preferred, in the administration of the goods of the son, before any other relation, except his wife and children.]

(13) But this is since altered. Code Civil, L. 3, tit. 1, 746.