225 finitum. Very fimilar to which was the law of inheritance among the antient Germans, our progenitors: "haeredes fuc"cefforefque, fui cuique liberi, et nullum teflamentum: fi liberi "non funt, proximus gradus in poffeffione, fratres, patrui, avun" tuli." Now here it must be obferved, that the lineal ancestors, [226] though (according to the firft rule) incapable themselves of fucceeding to the eftate, because it is fuppofed to have already passed them, are yet the common stocks from which the next fucceffor muft fpring. And therefore in the Jewith law, which in this refpect entirely correfponds withours", the father or other lineal ancestor is himself faid to be the heir, though long fince dead, as being reprefented by the perfons of his iffue; who are held to fucceed not in their own rights, as brethren, uncles, &e, but in right of representation, as the offfpring of the father, grandfather, &c, of the deceafed". But, though the common ancestor be thus the root of the inheritance, yet with us it is not neceffary to name him in making out the pedigree or defcent. For the defcent between two brothers is held to be an immediate defcent; and therefore title may be made by one brother or his reprefentatives to or through another, without mentioning their common father. If Geoffrey Stiles hath two fons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey; and fo the fon of Francis may claim as coufin and heir to Matthew the son of John, without naming the grandfather; viz. as fon of Francis, who was the brother of John, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still refpects them as the fountains of inheritable blood: and therefore, in order to afcertain the collateral heir of John Stiles, it is first neceffary to recur to his ancestors in the first degree; and if they have left any other iffue befides John, that issue will be his heir. On default of fuch, we muft afcend one t Tacitus de mor. Germ. 21. * 1 Sid. 193. 1 Ventr. 423. 1 Lev. 60. 12 Mod. 619. S 3 step ftep higher, to the ancestors in the fecond degree, and then to thofe in the third, and fourth, and fo upwards in infinitum; till fome couple of ancestors be found, who have other iffue defcending from them befides the deceafed, in a parallel or collateral line. From thefe ancestors the heir of John Stiles muft derive his defcent; and in fuch derivation the fame [227] rules must be observed, with regard to the fex, primogeniture, and representation, that have before been laid down with regard to lineal descents from the perfon of the laft proprietor. BUT, fecondly, the heir need not be the nearest kinsman abfolutely, but only fub modo; that is, he must be the nearest kinfman of the whole blood; for if there be a much nearer kinfman of the half blood, a diftant kinfman of the whole blood fhall be admitted, and the other entirely excluded: nay, the eftate fhall efcheat to the lord, fooner than the half blood fhall inherit. A KINSMAN of the whole blood is he that is derived, not only from the fame ancestor, but from the fame couple of ancestors. For, as every man's own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath (fo far as the distance of degrees will permit) all the fame ingredients in the composition of his blood that the other hath. Thus, the blood of John Stiles being composed of thofe of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being defcended from both the fame parents, hath entirely the fame blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a fecond husband, Lewis Gay, and hath iflue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay (inftead of Geoffrey Stiles) on the other part, it hath therefore only half the fame ingredients with that of John Stiles; fo that he is only his brother of the half blood, and for that reafon they fhall never inherit to each other. So alfo, if the father has two fons, A and and B, by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the eftate fhall rather efcheat to the lord. Nay, even if the father dies, and his lands defcend to his eldest fon A, who enters thereon, and dies feised without iffue; ftill B fhall not be heir to this eilate, becaufe he is only of the half blood to A, the perfon laft feifed: but it fhall defcend to a fifter (if any) of the whold blood to A: for in fuch cafes the maxim is, that the feifin or poffeffio fratris facit fororem effe haeredem. Yet, had A died without entry, then B might have inherited; not as heir to A his half-bro- [228] ther, but as heir to their common father, who was the perfon laft actually seised y (13). THIS total exclufion of the half blood from the inheritance, being almoft peculiar to our own law, is looked upon as a strange hardship by fuch as are unacquainted with the reasons on which it is grounded. But thefe cenfures arise from a misapprchenfion of the rule, which is not fo much to be considered in the light of a rule of descent, as of a rule of evidence; an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most univerfal principle of collateral inheritances being this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchafor, that is, derived in a lineal defcent from him; it was originally requifite, as upon gifts in tail it still is, y Hale. H. C. L. 238. (13) Of fome inheritances there cannot be a feifin, or a poffeffio fratris; as if the eldest brother dies before a prefentation to an advowfon, it will defcend to the half-brother as heir to the perfon laft feifed, and not to the filter of the whole blood. 1 Burn. Ec. 11. So of reverfions, remainders, and executory deviles, there can be no feifin or pofeffio frairis; and if they are referved or granted to A and his heirs, he who is heir to A when they come into poffeflion, is entitled to them by defcent; that is, that perfon who would have been heir to A, if A had lived fo long, and had then died actually feifed. 2 Woodd. 255. Fearne, 448. 2 Wilf. 29. [229] to make out the pedigree of the heir from the first donee or purchafor, and to fhew that fuch heir was his lineal reprefentative. But when, by length of time and a long courfe of defcents, it came (in thofe rude and unlettered ages) to be forgotten who was really the first feudatory or purchasor, and thereby the proof of an actual defcent from him became impoílible; then the law fubftituted what fir Martin Wright calls a reasonable, in the stead of an impoffible, proof: for it remits the proof of an actual defcent from the firft purchafor; and only requires in lieu of it, that the claimant be next of the whole blood to the perfon laft in poffeffion; (or derived from the fame couple of ancestors) which will probably anfwer the fame end as if he could trace his pedigree in a direct line from the first purchafor. For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice verfa his: he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inheritance defcended. But a kinfman of the half blood has but one half of his ancestors above the common stock the fame as mine; and therefore there is not the fame probability of that standing requifite in the law, that he be derived from the blood of the first purchafor. To illuftrate this by example. Let there be John Stiles, and Francis, brothers, by the fame father and mother, and another fon of the fame mother by Lewis Gay a fecond hufband. Now, if John dies feifed of lands, but it is uncertain whether they defcended to him from his father or mother; in this cafe his brother Francis, of the whole blood, is qualified to be his heir; for he is fure to be in the line of defcent from the first purchafor, whether it were the line of the father or the mother. But if Francis fhould die before John, without iflue, the mother's fon by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his defcent from the first purchafor, who is unknown, nor has he that fair probability which the law admits as prefump z Tenures 186. tive evidence, fince he is to the full as likely not to be defcended from the line of the first purchafor, as to be defcended: and therefore the inheritance fhall go to the nearest relation poffeffed of this, prefumptive proof, the whole blood. AND, as this is the cafe in feudis antiquis, where there really did once exift a purchasing ancestor, who is forgotten; it is alfo the cafe in feudis novis held ut antiquis, where the purchafing ancestor is merely ideal, and never exifted but only in fiction of law. Of this nature are all grants of lands in fee-fimple at this day, which are inheritable as if they defcended from fome uncertain indefinite anceflor, and therefore any of the collateral kindred of the real modern purchafor (and not his own offspring only) may inherit them, provided they be of the whole blood; for all fuch are, in judgment of law, likely enough to be derived from this indefinite ancestor but thofe of the half blood are excluded, for want of the fame probability. Nor fhould this be thought hard, that a brother of the purchafor, though only of the half blood, muft thus be difinherited, and a mere remote rclation of the whole blood admitted, merely upon a fuppofition and fiction of law: fince it is only upon a like fuppofition and fiction, that brethren of purchafors (whether of the whole or half blood) are entitled to inherit at all: for we have feen that in feudis fricte movis neither brethren nor any other collaterals were admitted. As therefore in feudis antiquis we [230] have seen the reasonablenefs of excluding the half blood, if by a fiction of law a feudum novum be made defcendible to collaterals as if it was feudum antiquum, it is juft and equitable that it should be fubject to the fame reftriétions as well as the fame latitude of defcent. PERHAPS by this time the exclufion of the half blood docs not appear altogether fo unreasonable as at firit fight it is apt to do. It is certainly a very fine-fpun and fubtle nicety: but, confidering the principles upon which our law is founded, it is not an injuftice, nor always a hardship; fince even the fucceffion of the whole blood was originally a beneficial |