tions, every man hath above a million of ancestors, as common arithmetic will demonstrate. This lineal consanguinity, we may observe, falls strictly within the definition of vinculum per204] sonarum ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both, of course, from the same common ancestor.

Collateral

ity.

Collateral kindred answers to the same description; collatconsanguin- eral 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 stirpes, trunk, or common stock, from whence these relations are branched out. A, if John [205] 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 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 consanguineous.

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 both are 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

This will seem surprising to those speak more intelligibly, it is evident, who are unacquainted with the in- for that each of us has two ancescreasing power of progressive num- tors in the first degree; the numbers, but is palpably evident from the ber of whom is doubled at every refollowing table of a geometrical pro- move, because each of our ancestors gression, in which the first term is 2, has also two immediate ancestors of and the denominator also 2; or, to his own.

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 such a supposition, the human species must be daily diminishing), we shall 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 further from the common stock, who may amount to as many more.

And

This will swell more considerably since each couple of ancestors has two than the former calculation; for here, descendants, who increase in a duplithough the first term is but 1, the de- cate ratio, it will follow that the ratio, nominator is 4; that is, there is one in which all the descendants increase kinsman (a brother) in the first degree, downward, must be double to that in who makes, together with the proposi- which the ancestors increase upward; tus, the two descendants from the first but we have seen that the ancestors couple of ancestors; and in every other increase upward in a duplicate ratio: degree the number of kindred must be therefore, the descendants must increase the quadruple of those in the degree downward in a double duplicate, that which immediately precedes it. For, is, in a quadruple ratio.

This calculation may also be formed by squaring the couples, or half the numa more compendious process, viz., by ber of ancestors, at any given degree;

(4) The learned judge's reasoning is marries a relation; but to avoid such a just and correct; and that the collateral connection, it will very soon be neces relations are quadrupled in each genera- sary to leave the kingdom. How these tion may be thus demonstrated: As we two tables of consanguinity may be reare supposed, upon an average, to have duced by the intermarriage of relations, one brother or sister, the two children will appear from the following simple by the father's brother or sister will case: If two men and two women were make two cousins, and the mother's put upon an uninhabited island, and be brother or sister will produce two more; came two married couple, if they had in all, four. For the same reason, my only two children each, a male and fe father and mother must each have had male, who respectively intermarried, and four cousins, and their children are my in like manner produced two children, second cousins; so I have eight second who are thus continued ad infinitum, it cousins by my father, and eight by my is clear that there would never be more mother, together sixteen. And thus, than four persons in each generation; again, I shall have 32 third cousins on and if the parents lived to see their greatmy father's side, and 32 on my mother's; grandchildren, the whole number would in all, 64. 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

never be more than sixteen; and thus the families might be perpetuated without any incestuous connection.-[CHRISTIAN.]

[206] Computation of de

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.

The method of computing these degrees in the canon law,' which our law has adopted,m is as follows: We begin at the grees by the common ancestor, and reckon downward; and in whatsoever canon law; degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they [207] 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 degree; 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 King Richard the Third, and the class marked (e) King Henry the Seventh. Now their common stock or ancestor was King Edward the Third, the abavus in the same table: from him to Edmund, 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 (d), four; to King Henry the Seventh (e), five: which last-mentioned prince, being the furthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. by the civil Though, according to the computation of the civilians (who count upward, from either of the persons related, to the common stock, and then downward 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 King Richard the Third to Richard, duke of York, is one degree; to Richard, earl of Cambridge, two; to Edmund, duke of York,

law.

which will furnish us with the number
of kindred we have in the same de-
gree, at equal distance with ourselves
from the common stock, besides those
at unequal distances. Thus, in the
tenth lineal degree, the number of an-
cestors 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 fam-
ilies within our own knowledge, and
observe how far they agree with this
account-that is, whether, on an aver
age, every man has not one brother or
sister, four first cousins, sixteen second
cousins, and so on-we shall find that
the present calculation is very far from
being overcharged.

1 Decretal., 4, 14, 3 and 9.
m Co. Litt., 23.

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

descent.

The nature and degrees of kindred being thus in some meas- [208] ure explained, I shall next proceed to lay down a series of Canons of rules or canons of 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 seized, in infinitum; but shall never lineally ascend."

See the table of consanguinity annexed, wherein all the degrees of collateral kindred to the propositus are computed, so far as the tenth of the ci

7*

vilians and the seventh of the canon-
ists, inclusive; the former being distin-
guished by the numeral letters, the lat-
ter by the common ciphers.

(5) The difference of the computation erty. (See p. 504, 515.)-[CHRISTIAN.] by the civil and canon laws may be ex- The ecclesiastics, by their canon law pressed shortly thus: The civilians take prohibiting marriage between relations the sum of the degrees in both lines to till after the fourth degree, that they the common ancestor; the canonists take might exclude as many as possible from only the number of degrees in the lon- the liberty of marriage within those degest line. Hence, when the canon law grees, without a dispensation, reckoned prohibits all marriages between persons all in the direct ascending or descendrelated to each other within the seventh ing line, and those in the collateral line degree, this would restrain all marriages corresponding with them, to be but one within the 14th degree of the civil law. degree. (Prec. Ch., 593; 2 P. Wms., In the 1st vol., 435, n., it is observed 735.) that all marriages are prohibited between persons who are related to each other (6) The student will do well to diswithin the third degree, according to the card this explanation of the nature or decomputation of the civil law. This af- grees of kindred entirely from his recolfords a solution to the vulgar paradox, lection while reading what follows upon that first cousins may marry and second the canons of descent, which are not in cousins can not. For first cousins and the least dependent upon, or illustrated all cousins may marry by the civil law, by, the rules either of the civil or of the and neither first nor second cousins can canon law, as to degrees of consanguinmarry by the canon law. But all the ity. This preliminary disquisition, in prohibitions of the canon law might have fact, should have preceded the chapter been dispensed with. It is said that the on the distribution of personal estate, canon-law computation has been adopt- and is entirely out of place here. ed by the law of England; yet I do not know a single instance in which we (7) This rule is now altered (vide have occasion to refer to it. But the infra, p. 240). The word descent is, for civil-law computation is of great import- convenience' sake, applied to an inheritance in ascertaining who are entitled to ance by an uncle, and in the recent act the administration, and to the distribu- it is declared to include also inheritance tive shares, of intestate personal prop- by a parent or other ancestor.

*

See the several rules of inheritance laid down in the text: the first as above; the second, at p. 212, post; the third, at p. 214; the fourth, at p. 217; the fifth, at p. 220; the sixth, at p. 224; and the seventh, at p. 234, for the purpose of more distinctly contrasting them with the rules or canons of inheritance established by the Statute of Descents in New York.-(1 R. S., 751, § 1-16.) By these rules, the real estate of the owner dying intestate descends as follows:

VOL. II.-Q

241

I. Lineal desue of per

scent to is

son last seized.

Difference

between

heirs appar ent and

presump. tive.

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 suc

(8) In a devise, however, if lands be left to the heir of M., it may be good as designatio persona, and he may take in the lifetime of M. (2 W. BI., 1010.) There is also an exception to this rule in the case of the duchy of Cornwall, which vests in the queen's first-born son in the lifetime of his mother. (3 Bac. Ab., 449; 8 Rep., 1; Seld., Tit. Hon., 2, 5.) But this is not by descent, but by special gift or settlement of the legislature. 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 the Third (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. (8 Rep., 1.) It follows that the king's eldest son, being heir apparent, is always by inheritance Duke of Cornwall, without a new creation. (Id. ib.) On the death of the eldest son, the seoond, or eldest surviving son, takes the inheritance; a peculiar descent, founded on the legislative grant. (1 Ves. Sen., 294; Collins' Bar., 148; 1 Bla. Com.,

1. To his child, if there be but one, solely; to his children, if he leaves several, in equal parts, who take as tenants in common: if one of the children be dead, and there be grand-children, they take the share which their parent would have taken.

2. To the father of the intestate, unless the inheritance came to him on the part of the mother, and she be living.

3. To the mother, in the case last mentioned, and also when she has survived the father of the intestate. So the father takes the estate which would have gone to the mother, if he is the survivor.

4. To brothers and sisters, in equal parts, nephews and nieces taking the shares of deceased brothers or sisters.

5. To uncles and aunts of the intestate on the father's side, if the inheritance came to the intestate on the part of the father; and if there be no such relatives, then to the uncles and aunts on the mother's side.

6. To uncles and aunts on the mother's side, when the inheritance came to the intestate on the part of the mother; and if there be no such relatives, then to the uncles and aunts on the father's side.

7. When the inheritance was acquired by the intestate himself, the estate goes to his uncles and aunts, both on the side of the father and of the mother, in equal shares.

8. Relatives of the half blood inherit equally with those of the whole blood, unless the inheritance came to the intestate from an ancestor with whom they can not claim consanguinity.

9. The estate of an illegitimate intestate dying without descendants goes to his mother; and in case of her death, to her relatives.

10. In all other cases, the inheritance descends according to the course of the common law.

Thus it will be perceived how great is the difference between the law of descents as established in New York; and the English common law of descents. The preference given to males over females, in the inheritance of property, is not preserved; the right of primogeniture is abolished; relatives of the half blood are placed upon a footing with those of the full blood; and the strange rule of excluding a father from the inheritance, and permitting it to go to the unde, when there are no brothers or sisters of the intestate, is abrogated.

In each one of the United States laws of descent have been enacted similar to the statute of New York; and though these statutes differ in their details, they agree in the great principle of establishing an equality of right as to the inheritance of property among lineal descendants, standing in the same degree of consanguinity to the intestate, without distinction of sex, or regard to primogeniture. -(See 4 Kent's Comm., 373-422.)