Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.

Descent is where his estate as heirat-law.

a man acquires

of descents.

The doctrine of descents, or law of inheritances in fee- Of the doctrine simple, is a point of the highest importance; and is indeed the principal object of the laws o freal property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus, a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point that we must result back

explanation), nor by descent. Again (1 Instit. 3 b) Lord Coke says, "a purchase is when one cometh to lands by conveyance or title; and disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not purchases;"—and it is equally clear they are not acquisitions by descent. And (in 1 Instit. 18 b) Lord Coke gives other instances of titles, which, in strictness, if we admit Mr. Hargrave's explanation, can be referred neither to purchase nor descent: as escheats, and tenancy by curtesy, or in dower.

If, however, we prefer our author's

opinion, as he states it in the 15th
chapter of this volume, (p. 242), and
hold that "the word purchase denotes
any means of acquiring an estate out
of the common mode of inheritance,"
we must reject not only Mr. Har-
grave's distinction as to escheat, but
also deny Lord Coke to have been right,
when he said, that, "disseisins, abate-
ments, intrusions, usurpations and such
like estates, gained by wrong, are not
purchases." (See Watkin's Law of De-
scents, ch. 1, sect. 1; and ch. 5, p.
156 of the original edition, or p. 232 of
the 2nd edition).

A

[ *202 ]

Of the several degrees of consanguinity.

Consanguinity

is either lineal or collateral.

to the standing law of descents in fee-simple to be informed of.

*In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents in those by custom, statute, and common law: for descents by particular custom (2), as to all the sons in gavelkind, and to the youngest in borough-english, have already been often (b) hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail (3) per formam doni, in pursuance of the statute of Westminster the second, have also been already (c) copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.

And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood (d).

Consanguinity, or kindred, is defined by the writers on these subjects to be "vinculum personarum ab eodem sti

(b) See Vol. I. p. 74, 75. Vol. II. sequences resulting from a right apprepag. 83. 85.

(c) See pag. 112, &c.

(d) For a fuller explanation of the doctrine of consanguinity, and the con

hension of its nature, see An essay on Collateral Consanguinity. (Law Tracts, Oxon. 1762, 8vo. or 1771, 4to.)

(2) See ante, notes (11), (15), (16), to chapter 6.

(3) See ante, notes (14), (15), (16), (19), and (21), to chapter 7.

0000000

Book 2. Page 202

"pite descendentium," the connexion or relation of per-
sons descended from the same stock or common ancestor.
This consanguinity is either lineal, or collateral (4).
*Lineal consanguinity is that which subsists between per-
sons, of whom one is descended in a direct line from the
other, as between John Stiles (the propositus in the table
of consanguinity) and his father, grandfather, great-grand-
father, and so upwards in the direct ascending line; or be
tween John Stiles and his son, grandson, great-grandson,
and so downwards in the direct descending line. Every ge-
neration, in this lineal direct consanguinity, constitutes a
different degree, reckoning either upwards or downwards:
the father of John Stiles is related to him in the first de-
gree, and so likewise is his son; his grandsire and grand-
son in the second; his great-grandsire and great grand-
son in the third. This is the only natural way of reckoning
the degrees in the direct line, and therefore universally ob-
tains, as well in the civil (e), and canon (f), as in the
common law (g).

Lineal relations are such as de

scend one from

the other, and

both from one

common ances

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 tor. 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

(e) Ff. 38. 10. 10.
(f) Decretal. 1. 4, tit. 14.

(4) The reader will do well to examine the table of consanguinity inserted at the close of the third chapter of Watkin's Essay on the Law of Descents, for a graphical illustration of

(g) Co. Litt. 23.
(h) Ibid. 12.

this subject: and the whole essay will
abundantly repay the trouble of peru-
sal; though all Mr. Watkin's proposi-
tions may not be implicitly acceded to.