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IV. Lineal IV. A fourth rule, or canon of descent, is this : that the descendants represent

lineal descendants, in infinitum, of any person deceased shall their ances: represent their ancestor ; that is, shall stand in the same tor in infini

place as the person himself would have done had he been [217] living. *

Thus, the child, grandchild, or great-grandchild, either male or female, of the eldest son, succeeds before the younger son, and so in infinitum. And these representatives shall take neither more nor less, but just so much as their principals would have done. As, if there be two sisters, Margaret and Charlotte ; and Margaret dies, leaving six daughters; and then John Stiles, the father of the two sisters, dies without other issue : these six daughters shall take among them exactly the same as their mother, Margaret, would have done, had she been living ; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte, the surviving sister, shall have six, and

her six nieces, the daughters of Margaret, one apiece. Which is

This taking by representation is called succession in stirpes, called cession in according to the roots; since all the branches inherit the same stirpes ; share that their root, whom they represent, would have done.

And in this manner, also, was the Jewish succession directed ;d but the Roman somewhat differed from it. In the descending line, the right of representation continued in infinitum, and the inheritance still descended in stirpes; as, if one of three daughters died, leaving ten children, and then the father died ; the two surviving daughters had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting (as, if the deceased left one brother, and two nephews, the sons of another brother), the succession was still guided by the roots; but if

both the brethren were dead, leaving issue, then (I apprehend) [ 218 ] their representatives in equal degree became themselves prin

cipals, and shared the inheritance per capita, that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation. So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third ; his inheritance

1 by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England, in this case, would still divide it only into three parts, and distribute it per stirpes, thus: one third to the three children who represent one sister, another third to the two who represent the second, and

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e Nov., 110, c. 3. Inst., 3, 1, 6.

Hale, H. C. L., 236, 237. d Selden, De Succ. Ebr., c. 1.

* See ante, p. 208, n. *.

the remaining third to the one child who is the sole representative of her mother. 23 This mode of representation is a necessary consequence of audience on

of the double preference given by our law, first to the male issue, the preferand next to the first-born among the males, both which the ence of the

male issue, Roman law is a stranger. For, if all the children of three and of the sisters were in England to claim per capita, in their own right rule of pri:

. as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female, then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the first-born, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done ; but the issue of two daughters divide the inheritance between them, providing their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. As, if a man hath two sons, A. and B., and A. dies leaving two sons, and then the grandfather [219] dies; now the eldest son of A. shall succeed to the whole of his grandfather's estate: and if A. had left only two daughters, they should have succeeded, also, to equal moieties of the whole, in exclusion of B. and his issue. But, if a man hath only three daughters, C., D., and E.; and C. dies leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son who is younger than his sister : here, when the grandfather dies, the eldest son of C. shall succeed to one third, in exclusion of the younger ; the two daughters of D. to another third in partnership; and the son of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downward in infinitum."

(23) Representation is admitted in sentation, is infinite and unlimited in descents according to the custom of the degrees of those that descend from gavelkind or Borough-English, as well the represented; for the son, the grand. as in common-law descents; and gener- son, the great-grandson, and so all ally, the canons of descent at the com- downward in infinitum, enjoy the same mon law are applicable to all custom- privilege of representation as those from ary descents, so far as the peculiar in- whom they derive their pedigree had. cidents of the latter will allow. (2 (Hale, C. L., c. 11.) And from hence Lord Raym., 1024; 1 Mod., 102; 1 P. it follows that the nearest relation is

not always the heir at law, as the next

cousin jure representationis is preferred (24) This right, transferred by repre- to the next cousin jure propinquitatis.

Wms., 65.)

Not established in

Yet this right does not appear to have been thoroughly estime of Hen. tablished in the time of Henry the Second, when Glanvil II., nor wrote ; and, therefore, in the title to the crown especially, we

find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative 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 representing his father, has in him the right of primogeniture. The uncle, also, was usually better able to perform the services of the fief; and, besides, had frequently superior 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 representative primogeniture ; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburgh Schwerin and Strelitz, in 1692. Yet Glanvil, with us, even in the twelfth century, seemsg to declare for the right of the nephew by representation ; provided the eldest

son had not received a provision in lands from his father, or [ 220] (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 his right of representa

tion, did all in his power to abolish it throughout the realm ;h until that of but in the time of his son, King Henry the Third, we find the

rule indisputably settled in the manner we have here laid it down,i and so it has continued ever since. And thus much for lineal descents.25

Hen. III.

f Mod. Un. Hist., xlii., 334.
6 L. 7, c. 3.

b Hale, H. C. L., 217, 229.
i Bracton, 1. 2, c. 30, $ 2.

(Co. Litt., 10, b.) Proximity of blocd, preference to the second or younger
therefore, is two-fold: either positive or son. (See 3 Cru. Dig., 378, 379.) –
representative. It is positive when the [Chitty.]
parties claim in their own individual
right, as between the second and third (25) “ The right of representation
son, or between the uncle and grand- was more slowly introduced into the
uncle. is representative when ei collateral than into the descending line.
ther of the parties claims as being line- “In the original law of nature, repre-
ally descended from another, in which sentation must be unknown; those who
case he is entitled to the degree of are nearest in blood to a man will be
proximity of his ancestor. Thus, the conceived to be nearest connected with
grandson of the elder son of any person him. Afterward, it is observed to be
proposed is entitled before the second a hardship that children bred up in a
son of such person, though in common suitable rank to that of their father, and
acceptation nearer by two degrees; and with a prospect of succeeding to his
this principle of representative prox- rights, should be cut off at once from
imity is by the law of England so per- that rank and that prospect. It comes
emptory, that a female may avail her to be observed as a further hardship,
self thereof, to the total exclusion of a that a woman who has married one
male claiming in his own right; for in seemingly her equal should, by his un-
descents in fee-simple, the daughter of timely death, lose not only her husband,
the eldest son shall, as claiming by but see her children reduced to beg
representation of her father, succeed in gary.

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V. A fifth rule is, that on failure of lineal descendants, or Vi Collater issue, of the person last seized, the inheritance shall descend shall be to to his collateral relations, being of the blood of the first pur

blood of chaser, subject to the three preceding rules.30*

chaser (sub

ject to thres “These considerations introduced the counted for. In England, at that time, preceding right of representation in the descending representation in collateral succession

rules). line; but the same considerations did was beginning to take place, and this not occur in the collateral line. The advance of their own nation the En. children of a brother or cousin have not glish made the measure of their opinthe prospect of succeeding to their un- ion. The Scotch, on the other hand, at cle's or cousin's estates, because, it is al- the same period, had not arrived at the ways to be supposed, every man is to same length; this species of representahave children of his own; it is, there- tion was unknown to them; and therefore, no hardship upon them to be re- fore they disapproved of the judgment. moved by another uncle, or another “Solemn as this decision was, yet cousin, from a succession which they even in England, a century afterward, could have no reasonable expectation the right of representation in this line of enjoying.

was so far from being complete, that it The steps by which the right of was the same doubt that gave rise to representation in private successions the disputes between the houses of came into the collateral line in Great York and Lancaster, and involved the Britain, or even in any other country in kingdom in civil war. On the abdicaEurope, are extremely difficult to be tion of Richard the Second, the two traced, and perhaps are not very certain persons claiming the right to the crown when they are traced; therefore we must were his two cousins, the Duke of Lansupply them by the progress of the same caster, son of John of Gaunt, who was representation

in public successions. fourth son to Edward the Third, and “In these last successions, it is plain the Earl of March, grandson to Lionel, that representation was originally un- duke of Clarence, who was third son known. From the histories of modern of the same prince. And the discusEurope, it appears that when succes- sions related to the rights of these persion was permitted among collaterals, sons, and whether representation in colthe nearest of blood took, to the exclu- lateral successions ought to prevail. sion of representation.

“Even in later times, and when the In the time of Edward I., though law was better understood, it was on representation in the descending line the same ground that, upon the death was tolerably well established through- of Henry the Third of France, the out Europe, yet the point was so doubt- League set up the Cardinal of Bourbon ful in the collateral line, that upon the as heir to the crown, in opposition to death of Margaret of Norway, and the his nephew, the King of Navarre. This dispute for her succession between her last prince was son of the elder branch cousins Bruce and Baliol, not only the to the cardinal; but the cardinal being eighty Scotch commissioners named by one step nearer to the common stock, the candidates, and the twenty-four En- it was asserted that nearness of blood, glish named by King Edward, were and not representation, took place in long doubtful, but all Europe was collateral succession. doubtful which side ought to prevail. “For many ages it has now been The precise question, in the end, put fixed, in private successions, that repreby the king to the commissioners was, sentation in the collateral line shall take Whether the more remote by one degree place; and although of late, in Europe, in succession, coming from the elder sis- there has scarce been any such dispute ter, ought to exclude the nearer by a de- in public successions as to give room for gree, coming from the second sister ? either example to prevail, yet the ex. And on the answer importing that rep- ample of those private successions, and resentation should take place, judgment the now riveted notions of mankind in was given for Baliol.

favor of representation, will probably “ The Scotch writers of those days prevent it from being ever made again were positive this judgment was wrong; the subject of dispute.” (Dalrymple the English writers of the same period on Feuds, ch. 5, s. 2, p. 178.)

as positive that it was right. These different opinions may be ac- (26) The purchaser here spoken of is


* See ante, p. 208, n. *.

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Thus, if Geoffrey Stiles purchases land, and it descends to John Stiles, his son, and John dies seized thereof without issue, whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family.k27 The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by

gift, or by any other method, except only that of descent.
Rule pecul. This is a rule almost peculiar to our own laws, and those of

a similar origin ;' for it was entirely unknown among the
Jews, Greeks, and Romans, none of whose laws looked any
further than the person himself who died seized of the estate ;
but assigned him an heir, without considering by what title he
gained it, or from what ancestor he derived it. But the law
of Normandyl agrees with our law in this respect: nor, indeed,
is that agreement to be wondered at, since the law of descents
in both is of feodal original ; and this rule or canon can not
otherwise be accounted for than by recurring to feodal prin-,

Origin of When feuds first began to be hereditary, it was made a

necessary qualification of the heir, who would succeed to a

feud, that he should be of the blood of, that is, lineally de[ 221 ] scended from, the first feudatory or purchaser. In consequence

whereof, if a vassal died seized of a feud of his own acquiring,
or feudum novum, it could not descend to any but his own off-
spring ; no, not even to his brother, because he was not de-
scended, nor derived his blood, from the first acquirer. But
if it was feudum antiquum, that is, one descended to the vassal
from his ancestors, then his brother, or such other collateral
relation as was descended and derived his blood from the first

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frequently an imaginary person, as may should afterward become extinct, it can
be gathered from what follows in the not pass to the line of the mother.
text. Under the new law, the person (Hale's Hist. C. L., 246; 49 E. III.,
to succeed must be not only of the 12.). And for the same reason, if it
blood of the purchaser, but also his should descend to the line of


feheir. (Infra, p. 240, n.)

male, it can never afterward, upon fail

ure of that line, be transmitted to the
(27) To be of the blood of Geoffrey, line of any other female; for, accord-
is either to be immediately descended ing to the next rule, viz., the sixth, the
from him, or to be descended from the heir of the person last seized must be a
same couple of common ancestors. Two collateral kinsman of the whole blood.
persons are consanguinei, or are of the -[CHRISTIAN.]
blood (that is, whole blood) of each oth-
er, who are descended from the same (28) The custom of Borough-English
two ancestors.

is most commonly confined to lineal de-
The heir and ancestor must not only scents; and on failure of issue of the
have two common ancestors with tho owner of the fee, his eldest brother will
original purchaser of the estate, but take. But the partible descent of gavel-
must have two common ancestors with kind land extends to collaterals. (Rob.,
each other; and therefore, if the son Gav., b. 1, c. 6.) Descents according to
purchases lands and dies without issue, the custom of gavelkind are regulated
and it descends to any heir on the part by the special custom of eich place.
of the father, if the line of the father (Vide ante, p. 85, n. (8).)

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