(But by the Author's Leave, I think the Grandchildren are impliedly provided for, as they succeed their Father or Mother Jure representationis.)4. And if the next Kindred be in an equal Degree, whether on the Part of the Father as Agnati, or on the Part of the Mother as Cognati, then they are equally called to the Inheritance, and succeeded in Capita, and not in Stirpes.
Thus far of the settled Laws of the Jews, Greeks, and Romans, but the Particular or Municipal Laws and Customs of almost every Country derogate from those Laws, and direct Successions in a much different Way. For Instance.
By the Customs of Lombardy, according to which the Rules of the Feuds, both in their Descents and in other Things, are much directed; their Descents are in a much different Manner, viz.
Leges Feiudarum, Lib. I. Tit. I. If a Feud be granted to one Brother who dies without Issue, it descends not to his other Brother unless it be specially provided for in the first Infeudation: If the Donee dies, having Issue Sons and Daughters, it descends only to the Sons; whereas by the Roman Law it descends to both: The Brother succeeds not to the Brother unless specially provided for, & Ibid. Tit. 50. The Ascendants succeed not, but only the Descendants, neither does a Daughter succeed nisi ex Pacto, vel nisi sit Feodum Faemineum If we come nearer Home to the Laws of Normandy, Lands there are of Two Kinds, viz.
Partible, and not Partible; the Lands that are partible, are Valvasories, Burgages, and such like, which are much of the Nature of our Socage Lands; these descend to all the Sons, or to all the Daughters: Lands not partible, are Fiefs and Dignities, they descend to the eldest Son, and not to all the Sons; but if there be no Sons, then to all the Daughters, and become partible.
The Rules and Directions of their Descents are as follow, viz.
1. For want of Sons or Nephews, it descends to the Daughters;if there be no Sons or Descendants from them, it goes to Brothers, and for want of Brothers, to Sisters, (observing as before the Difference between Lands partible and not partible)and accordingly the Descent runs to the Posterity of Brothers to the seventh Degree; and if there be no Brothers nor Sisters, nor any Descendants from them within the Seventh Degree, it descends to the Father, and if the Father be dead, then to the Uncles and Aunts and their Posterity, (as above is said in the Case of Brothers and Sisters) and if there be none, then to the Grandfather.
So that according to their Law, the Father is postponed to the Brother and Sister, and their Issues, but is preferred before the Uncle: Tho' according to the Jewish Law, the Father is preferred before the Brother; by the Roman Law, he succeeds together equally with the Brother; but by the English Law, the Father cannot take from his Son by an immediate Descent, but may take as Heir to his Brother, who was Heir to his Son by Collateral Descent.
2. If Lands descended from the Part of the Father, they could never resort by a Descent to the Line of the Mother; but in Case of Purchases by the Son who died without Issue, for want of Heirs of the Part of the Father, it descended to the Heirs of the Part of the Mother according to the Law of England.
3. The Son of the eldest Son dying in the Life of the Father, is preferred before a younger Son surviving his Father as the Law stands here now settled, tho' it had some Interruption, 4Johannis.
4. On Equality of Degrees in Collateral Descents, the Male Line is preferred before the Female.
5. Altho' by the Civil Law, Fratres ex utroque Parente conjuncti Praeferuntur Fratribus consanguineis tantum vel uterinis; yet it should seem by the Contumier of Normandy, Fratres consanguineis ei ex eodem Patre sed diversa Matre, shall take by Descent together with the Brothers, ex utroque conjuncti, upon the Death of any such Brothers. But Quere hereof, for this seems a Mistake; for, as I take it, the half Blood hinders the Descent between Brothers and Sisters by their Laws as well as ours.
6. Leprosy was amongst them an Impediment of Succession, but then it seems it ought to be first solemnly adjudged so by the Sentence of the Church.
Upon all this, and much more that might be observed upon the Customs of several Countries, it appears, That the Rules of Successions, or hereditary Transmissions, have been various in several Countries according to their various Laws, Customs, and Usages.
And now, after this brief Survey of the Laws and Customs of other Countries, I come to the Laws and Usages of England in relation to Descents, and the Growth that those Customs successively have had, and whereunto they are now arrived.
First, Touching hereditary Successions: It seems, that according to the ancient British Laws, the eldest Son inherited their Earldoms and Baronies; for they had great Dignities and Jurisdictions annex'd to them, and were in Nature of Principalities, but that their ordinary Freeholds descended to all their Sons; and this Custom they carried with them into Wales, whither they wvere driven. This appears by Statutum Waltiae 12 E. I. and which runs thus, viz.
Aliter usitatum est in Wallia quam in Anglia quoad successionem haereditatis; eo quod haereditas partibilis est inter haeredes Masculos, & a tempore cujus non extiterit Memoria partibilis exitit. Dominus Rex non vult quod consuetudo illa abrogetur: sed quod haereditates remaneant partibiles, inter consimiles haeredes sicut esse Consueverunt; & fiat partitio illius sicut fieri consuevit. Hoc excepto Bastardi non habeant de caetero haereditates & etiam quod non habeant purpartes, cum legitimis nec sine legitimis.
