individual right, as between the second and third fon, or between the uncle and grand uncle. It is reprefentative when either of the parties claims as being lineally defcended from another; in which cafe he is entitled to the degree of proximity of his ancestor. Thus the grandson of the eldest son of the propofitus is entitled before the fecond fon of the propofitus, though, in common acceptation, nearer by two degrees; and the principle of representative proximity is by the law of England so peremptory, that a female may avail herself thereof to the exclufion of a male claiming in his own right; for in defcents in fee fimple the daughter of the eldest fon fhall fucceed in preference to the second fon.

§ 91. Having thus explained the nature of these two principles, we proceed to obferve that the first principle, namely, that of dignity of blood, is pofitive, and operates on all occafions, without reference to any other principle, where it can be fhewn that the claimants are unequal in point of dignity of blood, and that they range under different claffes of the feries as above stated. In all fuch cafes the inheritance will veft, by act of law, in the worthieft of blood. Thus if, according to the table of defcents annexed, a competition fhould arife between the iffue 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 fhall prevail, because he is of the first class of dignity, whereas the former falls under the fifth.

Obfervations on Black

ftone's Doctrine of Defcents.

§ 92. But when the claimants range under the fame clafs of dignity, the first principle is inert, recourfe must then be had to the fecond, namely that of proximity and the claimant fhall be preferred in refpect of the proximity of the ftock through which he claims to the propofitus,

§ 93. Thus in a question between the iffue of Luke and Frances Kempe, and the iffue of William and Jane Smith, in the table annexed, the parties are equal in point of dignity, for they reprefent female ftocks of the paternal line: but in regard to proximity Cecilia Kempe the mother of the father, is a nearer stock to the propofitus than Chriftian Smith the mother of the grandfather, and therefore her representatives fhall fucceed.

§ 94. It will be apparent to every perfon, having thoroughly digested the above fyftem, that it is applicable to any cafe that can be put on the fubject of defcent. The clearnefs and certainty of the common law on this head has been long fince remarked by Lord Coke in his Preface to the fecond part of his Reports"In all my time I have not known two queftions made of the right of defcents by the common law, fo certain and fure 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 reprefentative proximity, which, as is justly observed by Lord Hale," through all the degrecs of fucceffion by the right of reprefentation,

દ

"the

"the right of proximity is transferred from the root "to the branches, and gives them the fame prefer

66

ence as the next and worthieft of blood." In the defcending line this doctrine is fufficiently familiar and obvious; but in the afcending 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 defcents affixed to a work of deservedly great celebrity, the doctrine has been rejected, and a different fyftem has been adopted.

$ 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 perfifted in a system repugnant to the law of defcents, as it had ftood and continued in England for upwards of five centuries; and had been fucceffively expounded by Lord Hale, Lord Chief Baron Gilbert, and the ableft writers on the subject.

Now as the Commentaries are juftly fuppofed to contain the pure elements of the English law, and as the learned author has entered into an elaborate difcuffion of the queftion, it may be prefumed that the rifing generation will admit the validity of his reafons without further enquiry, and that his fyftem 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 confider the reafons affigned by him in support of his opinion, and at the fame time

to

to state the authorities which have induced us to purfue a different courfe of preference in the table of defcents annexed to this chapter.

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

Justice Manwoode having answered fome objections to this decifion, obferved that," where they (the "competitors) are equally worthy in blood, then the "nearest shall be preferred; as if the purchaser die "without iffue, and the brother of the purchaser's "father claim, and the brother of the purchafer's "grandfather, that is to fay, the brother of the fa"ther of the purchaser's father alfo claims the land, "and the brother of the purchafer's great-grand

father, that is to fay on the part of the father in "the lineal ascent of males, alfo 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 fex, and therefore "the nearest shall be preferred as heir. And, if "there is no fuch brother of the purchafer's father, "nor any issue of fuch brother, nor any fifter of the

"purchaser's

"purchaser's father, nor any iffue of her (for the fifter fhall be in the fame degree as the brother, "where there is no brother); then the brother of the "purchaser's grandfather, or his iffue, or the fifter "of the purchaser's grandfather, or her iffue, fhall "be preferred before the brother or fifter of the pur"chafer's great-grandfather, and their iffues, and fo "on from them in infinitum. And fo the brother or fifter of the purchafer's grandmother, viz. the mo"ther of the purchafer's father, fhall be preferred before the brother or fifter of the purchaser's greatgrandmother, viz. mother of the purchaser's father's father, because they are equally worthy in blood, for "fuch heirs come from the blood of the female fex, from "which the purchafer's father issued; and, where "they are equally worthy, the next of blood fhall always be preferred as heir."

66

To this doctrine Mr. Juftice 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 fame fide. Accordingly, in the table of descents annexed to the fecond volume of the Commentaries, he hath preferred the former, whom he diftinguifhes by N° 10, to the latter or N° 11, for the fol lowing reasons :

ift, "Because this point was not the principal "queftion in the cafe of Clere and Brook, but the law concerning it is delivered obiter only, and in the "courfe of argument, by Justice Manwoode; though

"afterwards