of evidence (37); an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchasor, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchasor, and to shew that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory or purchasor, and thereby the proof of an actual descent from him became impossible; then the law substituted what Sir Martin Wright (2) calls a reasonable, in the stead of an impossible, proof: for it remits the proof of an actual descent from the first purchasor; and only requires in lieu of it, that the claimant be next of the whole blood to the person last in possession, (or derived from the same couple of ancestors,) which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchasor. For he who is my kinsman in 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 versâ his he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inheritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine; and therefore there is not the same probability (38) of that standing re (z) Tenures, 186. (37) See ante, the note to p. 224. (38) This reason will be found on examination to be unsatisfactory, and indeed not to be founded in truth. It is not true, that in all, or even in most cases, there is a greater probability that a kinsman of the whole blood is derived from the blood of the first purchaser, than a kinsman of the half blood; or that a kinsman of the half blood has in all, or even in most cases, fewer common ancestors of the person last seised, than a kinsman of the whole blood. My brother of the half blood, (the issue of my father,) has one ancestor, (my father,) more in common with me, than my uncle of the whole blood; several more than my greatuncle, (see post, page 231,) and more, almost innumerably more, than the descendants of my paternal grandmother's maternal grandfather. Yet all these may inherit an estate descended to me from my father, and quisite in the law, that he be derived from the blood of the first purchasor. *To illustrate this by example. Let there be John Stiles, Example. and Francis, brothers, by the same father and mother, and [ *229 ] another son of the same mother by Lewis Gay, a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchasor, whether it were the line of the father or the mother. But, if Francis should die before John, without issue, the mother's son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchasor, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchasor, as to be descended; and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood. trine obtains held ut antiquis, as in feudis an tiquis. And, as this is the case in feudis antiquis, where there The like docreally did once exist a purchasing ancestor, who is forgotten; in feudis novis, it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchasor (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half blood are excluded, for want of the same probability. Nor should this be purchased by him, though my half brother, the son of my father, the original purchaser, cannot inherit. And it is plain, the law does not consider the point as hinging upon greater or less probability: for then it would only postpone the half blood, instead of utterly excluding it, so that land shall rather escheat than devolve upon a kinsman of the half blood. (See ante, This note is partly extracted from The doctrine of whole blood cal culated to supimpossibility of ply the frequent proving a descent from the first purchasor. thought hard, that a brother of the purchasor, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction, that brethren of purchasors (whether of the whole or half blood) are entitled to inherit at all; for we have seen that, in feudis stricte novis, neither [ *230] brethren nor any other collaterals were admitted. As *therefore in feudis antiquis we have seen the reasonableness of excluding the half blood, if by a fiction of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent. Perhaps by this time the exclusion of the half blood does not appear altogether so unreasonable as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety: but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of the whole. blood was calculated to supply the frequent impossibility of proving a descent from the first purchasor, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the same father and mother,) there will be intermediate ancestors, below the common stock, that belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors than what are in common to them both; yet with regard to his uncle, where the common stock is removed one degree higher, (that is, the grandfather and grandmother,) one half of John's an cestors will not be the ancestors of his uncle: his patruus, or father's brother, derives not his descent from John's maternal ancestors: nor his avunculus, or mother's brother, *from those in the paternal line. Here then the supply of [*231 ] proof is deficient, and by no means amounts to a certainty: and the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half brother has only an even chance, for half John's ancestors are not his. So, in the second degree, John's uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half blood, for three fourths of John's ancestors are not his. In like manner, in the third degree, the chances are only three to one against John's great uncle of the whole blood, but they are seven to one against his great uncle of the half blood, for seven eighths of John's ancestors have no connection in blood with him. Therefore, the much less probability (39) of the half blood's descent from the first purchasor, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all. cluding the half father's side. brother by the But, while I thus illustrate the reason of excluding the Hardship of exhalf blood in general, I must be impartial enough to own, that, in some instances, the practice is carried farther than the principle upon which it goes will warrant. Particularly when a kinsman of the whole blood in a remoter degree, as the uncle or great uncle, is preferred to one of the half blood in a nearer degree, as the brother; for the half brother hath the same chance of being descended from the purchasing ancestor as the uncle; and a thrice (40) better chance than the great uncle or kinsman in the third degree. It is also more especially overstrained, when a man has two sons (39) But see the last note. "this (40) Mr. Christian says, ought to be twice; for the half brother has one chance in two, the great uncle one in four; the chance of the half by different venters, and the estate on his death descends from him to the eldest, who enters and dies without issue; in which case the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor (a). [* 232 ] This, it must be *owned, carries a hardship with it, even upon feodal principles: for the rule was introduced only to supply the proof of a descent from the first purchasor; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchasor, who was either the father or some of the father's ancestors. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother, indeed, been a purchasor, there would have been no hardship at all, for the reasons already given or had the frater uterinus only, or brother by the mother's side, been excluded from an inheritance which descended from the father, it had been highly reasonable. In the descent of the crown, tail, half blood is no impedi ment. Indeed, it is this very instance of excluding a frater conand in estates- sanguineus, or brother by the father's side, from an inheritance which descended a patre, that Craig (b) has singled out on which to ground his strictures on the English law of half blood. And, really, it should seem as if originally the custom of excluding the half blood in Normandy (c) extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versâ, and possibly in England also; as even with us it remained a doubt, in the time of (a) A still harder case than this happened, M. 10 Edw. III. On the death of a man, who had three daughters by a first wife, and a fourth by another, his lands descended equally to all four as coparceners. Afterwards, the two eldest died without issue; and it was held that the third daughter alone should inherit their shares, as being their heir of the whole blood; and that the youngest daughter should re tain only her original fourth part of (b) L. 2, t. 15, s. 14. |