Page images

individual right, as between the second and third son, or between the uncle and grand uncle. It is representative when either of the parties claims as being lineally descended from another ; in which case he entitled to the degree of proximity of his ancestor. Thus the grandson of the eldest son of the propositus is entitled before the second son of the propositus, though, in common acceptation, nearer by two de. grees; and the principle of representative proximity is by the law of England so peremptory, that a female may

avail herself thereof to the exclusion of a male claiming in his own right; for in descents in fee fimple the daughter of the eldest son shall succeed in preference to the second son.

§ 91. Having thus explained the nature of these two principles, we proceed to observe that the first principle, namely, that of dignity of blood, is positive, and operates on all occasions, without reference to any other principle, where it can be shewn that the claimants are unequal in point of dignity of blood, and that they range under different classes of the series as above stated. In all such cases the inheritance will vest, by act of law, in the worthiest of blood. Thus if, according to the table of descents annexed, a competition should arise between the issue of Andrew and Esther Baker, and the issue of Richard and Ann Stiles, although the former represent an uncle and the latter a great great uncle, the latter shall prevail, because he is of the first class of dignity, whereas the former falls under the fifth.

[blocks in formation]

S 92. But when the claimants range under the same class of dignity, the first principle is inert, recourse must then be had to the second, namely that of proximity: and the claimant shall be preferred in respect of the proximity of the stock through which he claims to the propositus.

$ 93. Thus in a question between the issue of Luke and Frances Kempe, and the issue of William and Jane Smith, in the table annexed, the parties are equal in point of dignity, for they represent female stocks of the paternal line: but in regard to proximity Cecilia Kempe the mother of the father, is a nearer stock to the propositus than Christian Smith the mother of the grandfather, and therefore her representatives shall fucceed.

S 94. It will be apparent to every person, having thoroughly digested the above system, that it is applicable to any case that can be put on the subject of descent. The clearness and certainty of the common law on this head has been long since remarked by Lord Coke in his Preface to the second part of his Reports

In all my time I have not known two questions s made of the right of descents by the common law, 66 fo certain and sure the rules thereof be."

$ 95. The chief point of difficulty that has occurred has been owing to the want of due attention to the doctrine of representative proximity, which, as is justly ob'erved by Lord Hiale,-“ through all the de: grecs of fucccliion by the right of representation, - the right of proximity is transferred from the root “ to the branches, and gives them the same prefer

Obfervations on Blick ftone's Duc, trine of Dco scents.

ff the


ence as the next and worthiest of blood.” In the descending line this doctrine is sufficiently familiar and obvious;

but in the ascending line it is not equally familiar, nor has it recently been duly explained. For although by the law of England the principle of representative proximity is equally applicable in the one line as in the other, yet in a table of descents affixed to a work of deservedly great celebrity, the doctrine has been rejected, and a different system has been adopted.

S 96. The work alluded to is that popular treatise, the Commentaries on the Laws of England by Sir William Blackstone, in which, after mature and repeated deliberation, he persisted in a system repugnant to the law of descents, as it had stood and continued in England for upwards of five centuries, and had been successively expounded by Lord Hale, Lord Chief Baron Gilbert, and the ablest writers on the subject.

Now as the Commentaries are justly supposed to contain the pure elements of the English law, and as the learned author has entered into an elaborate difcussion of the question, it may be presumed that the rising generation will admit the validity of his reasons without further enquiry, and that his system will be generally adopted. But as we do not concur with the learned commentator, we deem it a mark of respect due to his reputation, to consider the reasons assigned by him in support of his opinion, and at the same time


to state the authorities which have induced us to pursue a different course of preference in the table of descents annexed to this chapter.

S 97. The doctrine which gave rise to the discussion was stated from the bench by Mr. Justice Manwoode, in the case of Clere v. Brooke, as reported by Plowden, 442. The question in that case was, whether the heir of the father's mother, or the heir of the mother, were the right heir to the son. The court were unanimous for the former, on account of the dignity of blood of the paternal line.

[ocr errors]

Justice Manwoode having answered some objections to this decision, observed that," where they (the “ competitors) are equally worthy in blood, then the 6 nearest shall be preferred; as if the purchaser die “ without issue, and the brother of the purchaser's “ father claim, and the brother of the purchafer's

grandfather, that is to say, the brother of the fa" ther of the purchaser's father also claims the land, « and the brother of the purchaser's great-grand“ father, that is to say on the part of the father in 65 the lineal ascent of males, also claims the land, " then the brother of the purchaser's father shall be preferred as heir, for he is nearest of the blood of “ the purchaser's father, and they are all equally " worthy in blood, for they are all of the blood of “ males, which is the more worthy sex, and therefore 6 the nearest shall be preferred as heir. And, if “ there is no such brother of the purchaser's father, issue of such brother, nor any fister of the

“ purchaser's

* nor any

purchaser's father, nor any issue of her (for the « fister shall be in the fame degree as the brother, “ where there is no brother); then the brother of the " purchaser's grandfather, or his issue, or the sister “ of the purchaser's grandfather, or her issue, shall “ be preferred before the brother or sister of the pur“ chaser's great-grandfather, and their ifsues, and so “ on from them in infinitum. And so the brother or

Sister of the purchaser's grandmother, viz. the mother of the purchaser's father, shall be preferred be

fore the brother or sister of the purchaser's greatgrandmother, viz. mother of the purchaser's father's

father, because they are equally worthy in blood, for

such heirs come from the blood of the female sex, from " which the purchaser's father isued; and, where

they are equally worthy, the next of blood shall always be preferred as heir."


To this doctrine Mr. Justice Blackstone objects, and has declared his opinion, that the heir of the befailes or great-grandmother on the part of the father, ought to be preferred to the heirs of the ailes or grandmother on the same fide. Accordingly, in the table of de{cents annexed to the second volume of the Commentaries, he hath preferred the former, whom he distinguishes by No 10, to the latter or No 11, for the following reasons :

ist, “ Because this point was not the principal

question in the case of Clere and Brook, but the “ law concerning it is delivered obiter only, and in the course of argument, by Justice Manwoode; though

“ afterwards

« PreviousContinue »