66 "great-grandfather: for, although by the law of England, the father or grandfather cannot immedi"ately inherit to the fon, yet the direction of the "descent to the collateral afcending line, is as much 66 as if the father and grandfather had been by law "inheritable, and should have inherited to the fon "before the grandfather, and the grandfather before "the great-grandfather, and confequently if the fa"ther had inherited and died without iffue, his eldest "brother and his defcendants fhould have inherited, "before the younger brother and his descendants; " and, if he had no brothers but fifters, the fifters "and their defcendants fhould have inherited before "his uncles, or the grandfather's brothers and their "defcendants; fo, though the law of England ex"cludes the father from inheriting, yet it fubstitutes "and directs the defcent, as it fhould have been, "had the father inherited, viz. it lets in those first, "that are in the next degree to him.” "Such is the second authority; and it is prefumed the reader will be of opinion, that by this detail the learned Chief Justice meant to exemplify the doctrine of proximity by its feveral degrees; and to inform us, that, though the father, grandfather, and great-grandfather cannot immediately inherit, ftill we must resort to them as to the stocks, whence we are to trace proximity and primogeniture. And to this rule he hath referred the matter at prefent in queftion, which he hath stated and decided in the following terms. "When the fon is once feifed, and dies without iffue,, "his grandmother's brother (or N° 11.) is to him "heir Gg3 heir of the part of his father; and, being nearer "than his great-grandmother's brother, is preferred "in the descent." An opinion, fo clear and decifive on the question itself, will allow us to pay little regard to the construction put on a detached fentence from the fame authority, in order to fupport a contrary argument. And here we muft obferve, that, though it be allowable, where an author involves himself in contradictions, to oppose one part of his doctrine to another; still it is to the last degree uncandid, when he is confiftent, to force a diftin&t affertion into the service of an argument that he difavows. 66 Upon the whole, we think the citation from Hale a very full comment on the dictum advanced in the Year Book. And that the learned author fo un derstood the fame, is obvious from the following paf2 Comm.2:6. fage: "Now, here it must be obferved, that the lineal "ancestors, though (according to the first rule) inca"pable themselves of fucceeding to the estate, because "it is fuppofed to have already paffed them, are yet "the common stocks, from which the next fucceffor "must spring." "Thus then we admit both authorities; but, what is moft material, we fee on what occafion and to what intent they were originally laid down. When therefore they shall be cited to establish a future argument, we shall know how far their influence extends; and, knowing to whom the inheritance was given, we may judge with what propriety a reference is made thereto. But, if these very authorities be advanced for the pnrpose purpose of giving the inheritance to another, what fhall be then faid? Shall we not ask, is it candid to adopt a rule and to apply it fo as to produce a confequence, totally different from the original conclufion? For it is evident, that the purpose of introducing these authorities was, to collect an inference or point of doctrine therefrom, which, though not delivered in exprefs terms, is nevertheless made and adopted. To have stated it openly would have alarmed the reader; but the doctrine infinuated is, that on account of the rule ceftuy que doit inheriter al pere doit inheriter at fits, in fearching for the heir of the Son, we ought to trace from the father, as from the propofitus. Reference is then made to the cafe of Clere and Brook for reasons, that we fhall presently discover. However, in the first place, it is prefumed, no fuch doctrine can be gathered from the authors cited; and we have now to examine whether, if it be a point, it is confiftent with the laws of defcent, Firft, that the learned Commentator, in a former inftance, put a much more liberal conftruction on the dictum in the Year Book, may be gathered from the following paffage. "This, then, is the great and general principle, upon 2 Comm.223 " which the law of collateral inheritances depends; "that, upon failure of iffue in the last proprietor, "the eftate fhall defcend to the blood of the first "purchafer; or that it fhall refult back to the heirs "of the body of that anceftor, from whom it either really has, or is fuppofed by fiction of law to have, "originally defcended: according to the rule laid "down in the Year Book, Fitzherbert, Brook, and "Hale, that he, who would have been heir to the "father of the deceafed" (and of courfe to the mother 66 or any other purchafing ancestor)" fhall also be heir "to the fon." Now, if any one chofe to adopt the paffage contained in the above parenthesis, in the fame manner as the dictum in the Year Book is, in the prefent cafe, applied to make the father become the propofitus; it might thereby be proved, that as he, who would have been heir to the mother, fhall also be heir to the fon, fo therefore the mother ought to become the perfona propofita. Secondly, in contradiction to this doctrine is the approved maxim, Scifina facit ftipitem; and, " as the 2 Comm.209.feifin of any perfon makes him the root or stock, Id. 228 "from which all future inheritance by right of blood "must be derived," on the authority of the Commentaries, which also tell us that "the law only re"quires that the claimant be next of the whole blood "to the perfon last in poffeffion," we conclude that the fon being the perfon laft feifed, he fhall be the root or ftock from which fuch inheritance must be derived. "Thirdly, if we are to trace from the father, it will introduce univerfal confufion, it will confound the distinction made by Sir Edward Coke "that the "father hath two bloods in him, by which means the "father's mother, though of the female line to him, "is of the male line to the fon." For, if we are to trace trace from the father, his mother must be of the female line to the fon; and, what is ftill more injurious, in such case the whole maternal line will be totally excluded, for there is no privity of blood between the father and the line of the mother. "Thus have we endeavoured to prove, that no fuch point has been nor can be established. We now contend, that the cafe to which it is applied, the refolution in Clere and Brook, is indirectly stated. It was there fettled, that the heir of Dorothy Young, the paternal grandmother of the perfon laft feised, should fucceed in preference to Edward Clere his mother's brother; that is, N° 11 fhall fucceed to John Stiles the fon. Whereas, we are told in the Commentaries, who might or should have fucceeded to Geoffrey Stiles the father. That N° 10 fhould have inherited to Geoffrey Stiles the father before No 11. This may be true, if John Stiles the fon had never been seised; but, the contrary being the cafe, there was no queftion, who fhould have inherited the father. The matter fettled was, that N° 11 fhould inherit the fon. This indirect stating of the cafe leads us to the reason why the point above mentioned was attempted to be establifhed. It was introduced with a view to difcard the fon; and that the father fhould become the propofitus or root, to whom N° 10 is exactly in the same relation as N° II is to the fon. Now, can there be a more prefumptive proof how far the judgment is here facrificed, than the forced construction put upon different texts in order to establish a point for the purpose of getting rid of the fon? For, when once that is effected, |