"afterwards faid to be confirmed by the three other Juftices in feparate extrajudicial conferences with "the reporter."

2d, "Because the Chief Juftice Dyer, in reporting "the refolution of the court in what seems to be the "fame cafe (Dyer 314.), takes no notice of this "doctrine."

3d, "Because it appears from Plowden's report, "that very many gentlemen of the law were diffatis"fied with the position of Justice Manwoode."

4thly, "Because the pofition itself destroys the "otherwise entire and regular fymmetry of our legal "course of defcents, as is manifeft by infpecting the "table, and destroys that conftant preference of the "male stocks in the law of inheritance, for which an "additional reafon is before given, befide the mere "dignity of blood."

5th, "Because it introduces all that uncertainty "and contradiction, pointed out by an ingenious "author, (Law of Inheritances, 2d Ed. pp. 30. 38. "61, 62. 66.) and establishes a collateral doctrine "incompatible with the principal point refolved in the "cafe of Clere and Brook, viz. the preference of "N° 11 to N° 14. And, though that learned writer "proposes to refcind the principal point then refolved "in order to clear this difficulty, it is apprehended "that the difficulty may be better cleared by rejecting

"the

"the collateral doctrine, which was never yet re"folved at all."

6th, "Because, by the reason that is given for this "doctrine in Plowden, Bacon, and Hale, (viz. that, "in any degree paramount, the first law refpecteth

proximity and not dignity of blood) N° 18 ought "alfo to be preferred to N° 16, which is contrary to "the 8th rule laid down by Hale himself. (Hift. C. "L. 247.)"

7th, "Because this pofition feems to contradict the "allowed doctrine of Sir Edward Coke, (Co. Lit. 12.) "who lays it down under different names, that the "blood of the Kempes (alias Sandies) fhall not in"herit, till the blood of the Stiles (alias Fairfields) "fail. Now, the blood of the Stiles's does certainly "not fail, till both N° 9 and N° 10 are extinct. "Wherefore N° 11, being the blood of the Kempes, "ought not to inherit till then."

8th, ' Because, in the cafe, M. 12 Edward 4. 14. "(Fitz. Ab. tit. Defcent, 2. Bro. Ab. tit. Defcent, 38.) "much relied on in that cafe of Clere and Brook, it "is laid down as a rule, that ceftuy que doit inheriter "al pere doit inheriter al fits. And fo Sir Matthew "Hale fays, (Hift. C. L. 243.) that, though the law "excludes the father from inheriting, yet it fubfti"tutes and directs the defcent as it fhould have been, "had the father inherited. Now, it is fettled by the "refolution in Clere and Brook, that N° 10 fhould have "inherited to Geoffrey Stiles the father before N° 11,

" and

"and therefore No. 11 ought to be preferred in "inheriting to John Stiles the fon."

§ 98. To these reasons full and satisfactory answers appear to us to have been given in a tract entitled,"Remarks on the laws of defcents, and on the rea"fons affigned by Mr. Juftice Blackstone for rejecting "in his table of defcent a point of doctrine laid down "in Plowden, Lord Bacon, and Hale,"-published in 1779.* And therefore the substance of those remarks fhall, for the fatisfaction of the student, be here stated.

$ 99. On the first of Sir William Blackstone's reafons the author obferves, "that the three introductory reasons are merely fpeculative, they are rather preliminary obfervations than arguments from principle; of course the remarks must be of the fame nature-as nothing pofitive can be determined from either, the reader will judge which has the best grounds for prefumption.

"It is admitted, that the prefent point was not the principal question in the cafe of Clere and Brook : however, as this doctrine was laid down by a judge fitting in court, and delivered in his judicial capacity, some respect is due to his fentiments. And, though it may not be allowed that the law, delivered obiter in the prefent cafe, was founded on the fame fubftantial reasons which led to the final judgment; ftill he will not contend that, because it was delivered obiter, it was therefore lefs reasonable; or, because it was faid

* By William Ofgoode, Efq. of Lincoln's-Inn.

to

to be confirmed by the three other juftices, that it was not their opinion, or that it was a bad opinion."

On the second reafon, he remarks, that "the report of Sir James Dyer is extremely fhort: for the Dyer 314. court were unanimous in their refolution. But, as he hath not given the distinct opinion at large of any of the bench, even to the point before them, can we reafonably expect him to take notice of any collateral matter? If we wish to hear the arguments, Plowden hath reported them. If we are not fatisfied, whither can we refer ourselves? May it not hitherto be faid,

Eft ridiculum ad ea quæ habemus nihil dicere, quærere Pro Archia. quæ habere non poffumus? Thus ftands the fact. Plowden gives a comprehenfive report of the cafe, and the doctrine laid down, when the court gave their opinion. Dyer reports the judgment with a brief state of the question, but takes no notice of this, nor any other doctrine. So far then the one is pofitive, the other neutral. Are we now to difcredit the representations of the former, and conclude, from the filence of the latter, by an argument made up of incredulity and uncertainty, to reject the only teftimony given, and extort evidence from a nullity? This were to fupport a cause in the moft effectual manner. From Plowden it appears, that the Chief Justice was prefent when Manwoode delivered this as law. What, then, can we infer from his filence, except his confent?"

To the third he replies, that "the account, given by Plowden, is thus fubjoined in a note to the report of the cafe." Note, in the cafe before put, where

"the

، the purchafer in fee dies without iffue, and the bro"ther of the grandmother on the part of the father "claims the land as heir, and the brother of the "great-grandmother alfo on the part of the father "claims the land as heir, many were of opinion, be“ caufe there was no nearer heir of the male line, the "brother of the grandmother fhould not be preferred

،،

as Juftice Manwoode had faid, but that the brother "of the great-grandmother fhould be adjudged heir, "for his blood is derived to the purchafer by two males, "viz. by his father and grandfather; whereas the "blood of the brother of the grandmother is derived ،، to the purchafer but by one male, and the grand"father was not of the blood of the brother of the

grandmother, but he was of the blood of the brother "of the great-grandmother, and therefore fuch blood "is more worthy. And upon this I put the question "again to Manwoode in the prefence of Harper, ano، ther of the juftices of the common bench, both of "whom held clearly that the brother of the grand، mother fhould be heir to the purchafer, and not “ the brother of the great-grandmother, becaufe the "former is nearer in blood to the purchaser on the

66

part of his father, which proximity holds place on "the part of females conjoined by marriage to "males, when fuch blood is once derived by a male “ to the firft purchafer. And another day I put the "fame queftion to Mounfon, puifne judge of the fame "bench, and he was of the fame opinion with the ، other juftices for the fame caufe; and, at another "time afterwards, I put the fame question to the "Lord Dyer, who was of the fame opinion alfo; fo

« that

1