No

are extinct before entry, then it goes to the heirs of the grandfather's mother," or No 10. Again, he justly censures the reason given in defence of J. Blackstone's opinion, that more of the purchaser's male ancestors have been descended from and born of the femes in the higher classes. "If this argument must be allowed to have any force at all, it proves too much; and will conclude, if it concludes any thing, for the highest class," or the representatives of Ann Godfrey.

"So far, then, the charges of uncertainty and contradiction, though groundless, were not pointed by the learned writer against one system more than the other. His deliberate opinion supports our argu ment, and is directly contrary to that of Mr. Justice Blackstone.

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Again, this position is charged with "establishing a collateral doctrine, incompatible with the prin cipal point resolved in the case of Clere and Brook." If the nature of this collateral doctrine had been precisely stated, it would have been more satisfactory; as then we might have gone immediately to the point. At present we will state the only part of the case which carries (as we conceive) the least appearance of incompatibility.

The circumstance that would most strike a per. son unacquainted with the principles of descent, is, that in the case mentioned, the more remote claimant was preferred; whereas at present we contend for proximity. He is answered, in that case the more remote claimant was the more worthy in blood, which shall always supersede proximity; but, in the present case, they are equal in respect of dignity of blood, in which situation we can only resort to proximity. We do not mean to insult the learned Judge,

Law of Iul.

30. 61.

by proposing this as an objection on his part; it is unworthy of him; and we have only to lament, that the nature of the charge is such, that we can only make a general defence, by pleading not guilty. To establish this incompatibility, it should be proved that N° 10 is more worthy than N° 11: this hath not been attempted. Therefore if the reputation of the Commentator did not prevent us from making hasty conclusions, we should be well justified in treating this charge as a violent assumption.

“On our part, it will be sufficient to show, that the point settled and the point contended for, do both conform to the principles already stated. In the first instance, the claimant took on account of dignity of blood in the second, that principle did not operate. N° 11 ought therefore to take on account of proximity. We shall not enter further into the detail, as the reader can easily apply both cases to the same system. It will not then readily appear, in what manner this position can establish a doctrine incompatible with the point settled.

"Till a more direct charge be brought, this, we hope, will be a sufficient vindication; and now we are upon the subject, we retort the accusation. We say, that in the table of descent, the preference given in the paternal line is incompatible with the preference given in the maternal line. And as we disapprove of general charges in our own case, it is fitting that the objections we bring should be particular.

"In the paternal line, Cecilia Kempe and Christian Smith are female stocks; and the representatives of the latter, though more remote from the person last seised, are preferred to the former for this reason, because their blood is derived to the person last seised by two males.

"In the maternal line, Hannah Willis and Susan Bates stand in the same point of relation with the two above named, the difference of line excepted; and though the representatives of Susan Bates derive their blood from the person last seised by two males, and are precisely in the same predicament with those of Christian Smith, with respect to blood, still they are not preferred in the maternal line; which is incompatible.

"The fact is, that, in the maternal line, the table of descent is properly delineated: the principles of dignity and proximity are invariably pursued throughout in the paternal line, they are not No wonder, therefore, that they are incompatible." To the sixth reason he replies-" It is admitted "It that Lord Bacon expresses himself in these direct terms: "In any degree paramount the first, the law respecteth proximity, and not dignity of blood." But, after a tedious search, we could find no such terms nor doctrine in Plowden. Perhaps it would be a difficult matter to point it out; though, to discover the opinion really delivered on the occasion, we have only to refer to pa.449, where we find in what express terms a doctrine is laid down, altogether contrary to that stated in the reason. "If one claim from the Plowd. 449. father's mother, and another claim from the great grandfather direct, the latter shall be preferred; et uncore l'autre est plus prochein del sanke, mes est meins digne de sanke."

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Likewise, after a diligent search, we could find no such doctrine in Hale; and, till we are referred to the doctrine we cannot find, we must content ourselves with such information as we can find. His first rule

is this: "The law prefers the worthiest of blood: those Hale Hist. of the male line shall be preferred usque infinitum.

C. L. 271.

Again, if the great great great grandfather, or the great great great grandmother of the father has a brother or sister, she shall be preferred, and exclude the mother's brother, though he is much nearer."

"Thus, though from the nature of the thing we cannot strictly prove that no such doctrine appears in Plowden nor in Hale, still we have brought the best possible proof from their own words; whereby it is evident they put forth doctrines directly contrary to those suggested. For more satisfactory evidence, we refer the readers to their respective works, which, contrary to the laubable precision our author usually adopts, he hath cited at large without any particular reference. Though we much suspect that their researches on this head will, like our own, be fruitless."

If, then, it be allowed, that these opinions do not in anywise appear, it is impossible they should appear as the reasons given for any particular doctrine. But if the avowed reasons of the doctrine we support be required, Plowden's have been stated. Sir Matthew Hale says, "and though it be also true, that the great grandmother's blood has passed through more males of the father's blood than the blood of the grandmother or mother of the father; yet, in this case, the father's mother's sister shall be preferred before the father's grandmother's brother, because they are all in the female line, viz. cognati, and not agnati; and the father's mother's sister is nearest, and therefore shall have the preference as well as in the male line ascending, the father's brother or his sister shall be preferred before the grandfather's brother."

"With respect to Lord Bacon's position, we shall simply observe, that, as it is totally repugnant to the spirit of those laws, whence the doctrine of descent

originates, so it has been contradicted by every writer on the subject, and is therefore inadmissible. When we recollect the obligations in general science, that are due to this sublime and penetrating genius, let not this mistake be remembered; when our admiration leads us to consider him as some superior being, even this error may convince us that he was human.

• Upon the whole, then, it appears that Lord Bacon mistook the reason of this doctrine entirely; and the author of the Commentaries, observing the error, hath unwittingly imputed the same to Plowden and Hale; which, being a refutable position, is brought to create an inconsistency in Hale's doctrine. Whereas, the perfection of his system will thereby more forcibly appear, inasmuch as nothing irregular can possibly square with it. How far the multiplicity of learning, our author was obliged to consult, may have occasioned this mistake, we know not; but are assured that, however his system may be continued, he will not suffer imputed opinions to remain on record against those respectable characters, so contrary to their professed sentiments, and which reduce them to an absurdity."

On the seventh, he observes, that "it is an incontrovertible point, that the blood of the Kempes shall not inherit, till that of the Stiles fail. There is likewise no question, whether it fails at N° 9, which bears the name of Stiles. But the case is not altogether so obvious with respect to N° 10, notwithstanding that these two numbers are coupled together, as if one and the same reason made them similar instances. For, on examination, it will be found, that the name, to which that number is affixed, is Smith. However, on tracing upwards, we shall find that, some generations back, the great grandfather of John