Touching the Course of Descents in England Among the many Preferences that the Laws of England have above others, I shall single out Two particular Titles which are of Common Use, wherein their Preference is very visible, and the due Consideration of their Excellence therein, may give us a handsome Indication or Specimen of their Excellencies above other Laws in other Parts or Titles of the same also.
Those Titles, or Capitula Legum, which I shall single out for this Purpose, are these Two, viz. 1st, The hereditary Transmission of Lands from Ancestor to Heir, and the Certainty thereof: and 2dly, The Manner of Trial by Jury, which, as it stands at this Day settled in England, together with the Circumstances and Appendixes thereof, is certainly the best Manner of Trial in the World; and I shall herein give an Account of the successive Progress of those Capitula Legis, and what Growth they have had in Succession of Time till they arriv'd so that State and Perfection which they have now obtain'd.
First, Then, touching Descents and hereditary Transmissions:
It seems by the Laws of the Greeks and Romans, that the same Rule was held both in Relation to Lands and Goods, where they were not otherwise disposed of by the Ancestor, which the Romans therefore called Successio ab intestato; but the Customs of particular Countries, and especially here in England, do put a great Difference, and direct a several Method in the Transmission of Goods or Chattels, and that of the Inheritances of Lands.
Now as to hereditary Transmissions or Successions, commonly called with us Descents, I shall hold this Order in my Discourse, viz.
First, I shall give some short Account of the ancient Laws both of the Jews, the Greeks, and the Romans, touching this Matter.
Secondly, I shall observe some Things wherein it may appear, how the particular Customs or Municipal Laws of other Countries varied from those Laws, and the Laws here formerly used.
Thirdly, I shall give some Account of the Rules and Laws of Descents or hereditary Transmissions as they formerly stood, and as at this Day they stand in England, with the successive Alterations, that Process of Time, and the Wisdom of our Ancestors, and certain Customs grown up, tacitly, gradually, and successively have made therein.
And First, touching the Laws of Succession, as well of Descent of Inheritances of Lands, as also of Goods and Chattels, which among the Jews was the same in both.
Mr Selden, in his Book De Successionibus apud Hebraeos, has given us an excellent Account, as well out of the Holy Text as out of the Comments of the Rabins, or Jewish Lawyers, touching the same, which you may see at large in the 5th, 6th, 7th, 12th and 13th Chapters of that Book; and which, for so much thereof as concerns my present Purpose, I shall briefly comprise under the Eight following Heads, viz.
First, That in the Descending Line, the Descent or Succession was to all the Sons, only the eldest Son had a double Portion to any one of the rest, viz. If there were three Sons, the Estate was to be divided into four Parts, of which the eldest was to have two Fourth Parts, and the other two Sons were to have one Fourth Part each.
Secondly, If the Son died in his Father's Life-time, then the Grandson, and so in lnfinitum, succeeded in the Portion of his Father, as if his Father had been in Possession of it, according to the Jus Representationis now in Use here.
Thirdly, The Daughter did not succeed in the Inheritance of the Father as long as there were Sons, or any Descendants from Sons in Being; but if any of the Sons died in the Life-time of his Father having Daughters, but without Sons, the Daughters succeeded in his Part as if he himself had been Possessed.
Fourthly, And in Case the Father left only Daughters and no Sons, the Daughters equally succeeded to their Father as in Copartnership, without any Prelation or Preference of the eldest Daughter to two Parts, or a double Portion.
Fifthly, But if the son had purchased an Inheritance and died without Issue, leaving a Father and Brothers, the Inheritance of such Son so dying did not descend to the Brothers, (unless in Case of the next Brother's taking to Wife the Deceased's Widow to raise up Children to his deceased Brother) but in such Case the Father inherited to such Son entirely.
Sixthly, But if the Father in that Case was dead, then it came to the Brothers, as it were as Heirs to the Father, in the same Manner as if the Father had been actually Possess'd thereof;and therefore the Father's other Sons and their Descendants in Infinitum succeeded; but yet especially, and without any double Portion to the eldest, because tho' in Truth the Brothers succeeded as it were in Right of Representation from the Father, yet if the Father died before the Son, the Descent was de Facto immediately from the Brother deceased to the other Brothers, in which Case their Law gave not a double Portion; and in Case the Father had no Sons or Descendants from them, then it descended to all the Sisters.
Seventhly, If the Son died without Issue, and his Father or any Descendants from him were extant, it went not to the Grandfather or his other Descendants; but if the Father was dead without Issue, then it descended to the Grandfather, and if he were dead, then it went to his Sons and their Descendants, and for want of them, then to his Daughters or their Descendants, as if the Grandfather himself had been actually possess'd and had died, and so miutatis mutandis to the Proavus, Abavus, Atavus, &c. and their Descendants.
Eighthly, But the Inheritance of the Son never resorted to the Mother, or to any of her Ancestors, but both she and they were totally excluded from the Succession.
