THUS the child, grandchild, or great grandchild (either male or female) of the eldest son fucceeds before the younger fon, and fo in infinitum ©. And these representatives fhall take neither more nor lefs, but just so much as their principals would have done. As if there be two fifters, Margaret and Charlotte; and Margaret dies, leaving fix daughters; and then John Stiles the father of the two fifters dies, without other iffue: thefe fix daughters fhall take among them, exactly the fame as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: fo that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the furviving fifter shall have fix, and her fix nieces, the daughters of Margaret, one apiece. THIS taking by representation is called fucceffion in ftirpes according to the roots; fince all the branches inherit the fame fhare that their root, whom they reprefent, would have done. And in this manner alfo was the Jewish fucceflion directed d; but the Roman fomewhat differed from it. In the descending line the right of representation continued in infinitum, and the inheritance ftill defcended in ftirpes: as if one of three daughters died, leaving ten children, and then the father died; the two furviving daughters had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And fo among collaterals, if any person of equal degree with the perfons reprefented were ftill fubfifting, (as if the deceafed left one brother, and two nephews the fons of another brother) the fucceffion was still guided by the roots: but, if both the brethren were dead leaving iffue, then (I apprehend) their representatives in equal degree became themselves principals, and shared the inheritance per capita, that is, fhare and share alike; they being themfelves now the next in degree to the [218] ancestor, in their own right, and not by right of reprefentation. So, if the next heirs of Titius be fix nieces, three by Hale. H. C. L. 236, 237. e Nov. 110. c. 3. Ift. 3. 1.6. one one fifter, two by another, and one by a third; his inheritance by the Roman law was divided into fix parts, and one given to each of the nieces: whereas the law of England in this cafe would still divide it only into three parts, and distribute it per ftirpes, thus; one third to the three children who reprefent one fifter, another third to the two who represent the fecond, and the remaining third to the one child who is the fole reprefentative of her mother. THIS mode of representation is a neceffary confequence of the double preference given by our law, first to the male iffue, and next to the firftborn among the males, to both which the Roman law is a stranger. For if all the children of three fifters were in England to claim per capita, in their own right as next of kin to the ancestor, without any refpect to the flocks from whence they fprung, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and fifters, but all the iffue of the other two daughters; or else the law in this inftance must be inconsistent with itself, and depart from the preference which it conftantly gives to the males, and the firstborn, among perfons in equal degree. Whereas, by dividing the inheritance according to the roots, or ftirpes, the rule of descent is kept uniform and steady: the iffue of the eldest fon excludes all other pretenders, as the fon himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the fame: and among these several iffues, or reprefentatives of the respective roots, the fame preference to males and the fame right of primogeniture obtain, as would have obtained at the first among the roots themfelves, the fons or daughters of the deceafed. As if a man hath two fons, A and B, and A dies leaving two, [219] fons, and then the grandfather dies; now the eldest son of A fhall fucceed to the whole of his grandfather's eftate and if A had left only two daughters, they should have succeeded alfo to equal moieties of the whole in exclufion of B and his iffue. But if a man hath only three daughters, C, D, and 219 and E; and C dies leaving two fons, D leaving two daughters, and E leaving a daughter and a fon who is younger than his fifter: here when the grandfather dies, the eldest sou of C fhall fucceed to one third, in exclufion of the younger; the two daughters of D to another third in partnership; and the fon of E to the remaining third, in exclusion of his elder fifter. And the fame right of reprefentation, guided and restrained by the fame rules of defcent, prevails downwards in infinitum. YET this right does not appear to have been thoroughly established in the time of Henry the second, when Glanvil wrote: and therefore, in the title to the crown efpecially, we find frequent contefts between the younger (but furviving) brother and his nephew (being the fon and reprefentative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by reprefenting his father, has in him the right of primogeniture. The uncle alfo was ufually better able to perform the fervices of the fief; and befides had frequently fuperior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the Lower Saxony, proximity of blood takes place of reprefentative primogeniture; that is, the younger furviving brother is admitted to the inheritance before the son of an elder deceased: which occafioned the difputes between the two houfes of Mecklenburg, Schwerin and Strelitz, in 1692f. Yet Glanvil, with us, even in the twelfth century, feems to declare for the right of the nephew by reprefentation; provided the cldeft fon had not received a provifion in lands from his father, (or as the civil law would call it) had not been forisfamiliated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm: but in the time of his fon, king Henry the h Hale, H. C. L. 217. 229. f Mod. Un. Hift. xlii. 334. 8 1.7. c. 3. [220] third, we find the rule indifputably settled in the manner we have here laid it down, and so it has continued ever fince, And thus much for lineal defcents. V. A FIFTH rule is, that on failure of lineal defcendants, or iffue, of the perfon laft feifed, the inheritance shall defcend to his collateral relations, being of the blood of the first pur chafor; fubject to the three preceding rules. THUS if Geoffrey Stiles purchases land, and it defcends to John Stiles his fon, and John dies feifed thereof without iffue; whoever fucceeds to this inheritance muft be of the blood of Geoffrey the first purchasor of this family* (9). The first purchafor, perquifitor, is he who firft acquired the eftate to his family, whether the fame was transferred to him by fale or by gift, or by any other method, except only that of defcent. THIS is a rule almost peculiar to our own laws, and those of a fimilar original. For it was entirely unknown among (9) To be of the blood of Geoffrey, is either to be immediately defcended from him, or to be defcended from the fame couple of common ancestors. Two perfons are confanguinei, or are of the blood (that is, whole blood) of each other, who are descended from the fame two ancestors. The heir and ancestor must not only have two common ancestors with the original purchafor of the eftate, but muft have two common ancestors with each other; and therefore if the fon purchases lands and dies without iffue, and it defcends to any heir on the part of the father, if the line of the father should afterwards become extina, it cannot pass to the line of the mother. Hale's Hift. C. L. 246. 49 E. 3. 12. And for the fame reafon if it fhould defcend to the line of any female, it can never afterwards, upon failure of that line, be transmitted to the line of any other female, for according to the next rule, viz. the fixth, the heir of the perfon last seised must be a collateral kinfinan of the whole blood. the Jews, Greeks, and Romans: none of whose laws looked any farther than the perfon himself who died seised of the eftate; but affigned him an heir, without confidering by what title he gained it, or from what ancestor he derived it. But the law of Normandy agrees with our law in this respect: nor indeed is that agreement to be wondered at, fince the law of defcents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles. WHEN feuds first began to be hereditary, it was made a neceffary qualification of the heir, who would fucceed to a feud, that he should be of the blood of, that is lineally descended from, the first feudatory or purchafor. In confe- [ 221 ] quence whereof, if a vafal died feised of a feud of his own acquiring, or feudum novum, it could not defcend to any but his own offspring; no, not even to his brother, because he was not defcended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vafal from his ancestors, then his brother, or such other collateral relation as was defcended and derived his blood from the first feudatory, might fucceed to fuch inherit To this purpose speaks the following rule; "frater "fratri, fine legitimo haerede defuncto, in beneficio quod eorum "patris fuit fuccedat: fin autem unus e fratribus a domino feu"dum acceperit, eo defuncto fine legitimo haerede, frater ejus in feudum non fuccedit" The true feodal reafon for which rule was this; that what was given to a man, for his personal service and perfonal merit, ought not to defcend to any but the heirs of his perfon. And therefore, as in estates-tail, (which a proper feud very much resembled) fo in the feodal donation, "nomen haeredis, in prima inveftitura expreffum, " tantum ad defcendentes ex corpore primi vafalli extenditur ; et « non ad collaterales, nifi ex corpore primi vafalli five ftipitis "defcendant";" the will of the donor, or original lord, (when feuds were turned from life eftates into inheritances) not being to make them abfolutely hereditary, like the Ro* Crag, l. 1. t. 9. § 36. 1 Gr. Couftom. c. 25. mi Feud. 1. § 2. man |