Page images

in the direct line, and therefore universally obtains, as well in the civil(e) and canon(f) as in the common law.(9)

The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees; and so many different bloods(h) is a man said to contain in his veins as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers; and, by the same rule of progression, hé hath an hundred and twenty-eight in 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.(e) 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 Stiles as their common ancestor; and they are collateral

[*205 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-grandfather. 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

Ff. 38, 10, 10.
Decretal. 1. tit. 14.
Co. Litt. 23.
Ibid. 12.

This will seem surprising to those who are unao-
quainted with the increasing power of progressive numbers,
but is palpably evident from the following table of a geo-
metrical progression, in which the first term is 2, and the
denominator also 2; or, to speak more intelligibly, it is evi-
dent, 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 ances-
tors of his own.
Lineal Degrees.

Number of Ancestors. 1

2 2

4 3

8 4

16 5

32 6

64 7

..................... 128 8

256 9 ........................................... 512 10

1024 11

2048 12


Lineal Degrees.

Number of Ancestors. 13

8192 14

16384 15

32768 16

......................................... 65536 17

....................................... 131072 18

262144 19

524288 20

........................................ 1048576 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 an. cestors 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 forty degrees would be the square of 1048576, or upwards of a million milliong.

This calculation is right in numbers, but is founded on a false supposition, as is evident from the results, one of whicha is to give a man a greater number of ancestors all living at one time than the whole population of the enrth; another wonld 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 rrumber of relatives. Intermarriages among relatives are one check on this incredible increase of relatives. This is noticed after wards by Blackstone, as to collateral relatives.


such a supposition, the human species must be daily diminishing ;) we shal 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 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. *206]

*The method of computing these degrees in the canon law,(1) which

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 one; Titius and his nephew are related in the second de gree; 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 () This will swell more considerably than the former Collateral Degrees.

Number of Kindred calculation; for here, though the first term is but 1, the


.............. 4191304 denominator is 4; that is, there is one kinsman (a brother)


........ 16777216 in the first degree, who makes, together with the propositus,

14 .................................... 67108864 the two descendants from the first couple of ancestors; and


......... 268435456 in every other degree the number of kindred must be the


............................ 1073741824 quadruple of those in the degree which immediately pre


4294967296 cedes it. For, since each couple of ancestors has two de


..... 17179869184 scendants, who increase in a duplicate ratio, it will follow


68719476736 that the ratio in which all the descendants increase down


..... 274877906944 wards must be double to that in which the ancestors This calculation may also be formed by a more compendions increase upwards; but we have seen that the ancestors process,—viz., by squaring the couples, or half the number increase upwards in a duplicate ratio; therefore the de of ancestors, at any given degree, which will furnish u scendants must increase downwards in a double duplicate; with the number of kindred we have in the same degree at that is, in a quadruple ratio,8

equal distance with ourselves from the common stock, be

sides those at unequal distances. Thus, in the tenth lineal Collateral Degrees.

Number of Kindred. 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 1024

whether on an average every man has not one brother or

sister, four first cousins, sixteen second cousins, and so on16384

we shall find that the present calculation is very far from 65536

being overcharged. 262144

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

(n) Co. Litt. 23. * 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 connection 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 couple, 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 pa rents 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 -CHRISTIAN.

[ocr errors]

king Richard the Third, and the lass marked (®) 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, (o) four; 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 a degree for each person both ascending and descending,) these two princes were related in the ninth degree, for from 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; to John duke of Somerset, seven; to Margaret countess of Richmond, eight; to king Henry the Seventh, nine(n)

*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.

I. 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.

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. 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

(*) See the table of consanguinity annexed, wherein all the canonists inclusive,-the former being distinguished by the degrees of collateral kindred to the propositus are computed so far as the tenth of the civilians and the seventh of

the numeral letters, the latter by the common cyphers.

* 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 fourteenth 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.-CHRIS

5 In a devise, however, if lands be left to the heir of M., it may be good as designatio personæ, and he may take in the lifetime of M. Goodright d. Brooking vs. 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. Abr. 449. 8 Rep. 1. Seld. Tit. Hon. ii. 5. The title of duke of Cornwall and the inheritance of the duchy were first created and vested in Edward the Black Prince, (who was the first duke in England after the duke of Normandy,) by a grant in the eleventh year of the reign of Edward III., (A.D. 1337.). This grant has been held to be an act of the legislature, or a charter confirmed by parliament, and is consequently good, though it alter the established course of descent, which the king's grant could not do. The Prince's case, 8 Rep. 1. It follows that the king's eldest son, being heir-apparent, is


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 may 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 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.(0) *209]

*We must also remember, that no person can be properly such

an 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 a freehold:(p) 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. Which notoriety had succeeded in the place of the ancient feodal in() Bro. tit. Descent. 58.

Co. Litt. 15.

() Ibid. 11. always by inheritance duke of Cornwall, without a new creation. Id. ib. On the death of the eldest son, the second or eldest surviving son takes the inheritance, -a peculiar descent, founded on the legislative grant. i Ves. 294. Collins's Bar. 148. 1 Bla. Com. 224, n. 10, by Mr. Christian. But it seems that as the duke of Cornwall must be not only the eldest son, but the heir-apparent, the second surviving son would not succeed to the dukedom if his eldest brother left issue, who would be heir-apparent; but it would in that case revert to the crown. Id. n. 10. It appears that the disabilities of minority do not hold against a duke of Cornwall with respect to the duchy rights and possessions. Id. Chitty, Jr. Prerog. 404 and 376, and n. (h) Bro. Abr. Prerog. p. 132. The general rule is, that till a prince is born the king is seised of all the possessions, (Com. Dig. Roy. 9 :) but when born, the prince is immediately seised in fee; and leases, &c. made by the king may be determined by the prince, and he may have a scire facias for that purpose. See Chitty, Jr.'s Prerog. of the Crown, p. 404. H. Chit. Desc. 15, n.—Caitty.

• 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. But every one has a right to retain the rents and profits which accrued whilst he was thus legally possessed of the inheritance. Harg. Co. Litt. 11. 3 Wils. 526.-CHRISTIAN.

This is in the case of a 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.-CHITTY.

* It seems doubtful whether receiving rent reserved on a freehold lease is equivalent to corporal seisin of the lands. Upon comparing the passage in lord Coke cited 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 vs. Keen, 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. În Doe vs. Wichelo, 8 T. R. 213. I understand him to lay down the same rule, though there is some little ambiguity of expression.-COLERIDGE. 8 The nature of the seisin which a person acquires, and which will render such person

« PreviousContinue »