登陆注册
5247300000058

第58章 XI. (6)

And altho' by the Canon or Civil Law, if A. have a Son born of B. before Marriage, and after A. marries B. this Son shall be legitimate and heritable; yet according to the Laws of England then, and ever since used, he was not heritable, Glanvil. lib. 7. cap. 15.

Sixthly, In case the Purchaser died without Issue, the Land descended to the Brothers; and for want of Brothers, to the Sisters; and for want of them, to the Children of the Brothers or Sisters; and for want of them, to the Uncles; and so onward according to the Rules of Descents at this Day; and the Father or Mother were not to inherit to the Son, but the Brothers or Uncles, and their Children. Ibid. cap. 1. & 4.

And it seems, That in all Things else the Rules of Descents in reference to the Colateral Line were much the same as now; as namely, That if Lands descended of the Part of the Father, it should not resort to the Part of the Mother, or e converso; but in the Case of Purchasers, for want of Heirs of the Part of the Father, it resorted to the Line of the Mother, and the nearer and more worthy of Blood were preferred: So that if there were any of the Part of the Father, tho' never so far distant, it hindred the Descent to the Line of the Mother, though much nearer.

But in those Times it seems there were two Impediments of Descents or hereditary Successions which do not now obtain, viz.

First, Leprosy, if so adjudged by Sentence of the Church:

This indeed I find not in Glanville; but I find it pleaded and allowed in the Time of King John, and thereupon the Land was adjudged from the Leprous Brother to the Sister. Pasch. 4Johannis.

Secondly, There was another Curiosity in Law, and it was wonderful to see how much and how long it prevailed; for we find it in Use in Glanville, who wrote Temp. Hen. 2. in Bracton Temp.

Hen. 3. in Fleta Temp. Edw. I and in the broken Year of 13 E. I.

Fitzh. Avowry 235. Nemo potest esse Tenens & Dominus, & Homagium repellit Perquisitum: And therefore if there had been three Brothers, and the eldest Brother had enfeoffed the second, reserving Homage, and had received Homage, and then the second had died without Issue, the Land should have descended to the youngest Brother and not to the eldest Brother, Qiuia Homagium repellit perquisitum, as 'tis here said, for he could not pay Homage to himself. Vide for this, Bracton, Lib. 2. cap. 30.

Glanvil. Lib. 7. cap. I. Fleta, Lib. 6. cap. I.

But at this Day the Law is altered, and so it has been for ought I can find ever since 13 E. I. Indeed, it is antiquated rather than altered, and the Fancy upon which it was grounded has appear'd trivial; for if the eldest Son enfeoff the second, reserving Homage, and that Homage paid, and then the second Son dies without Issue, it will descend to the Eldest as Heir, and the Seigniory is extinct. It might indeed have had some Color of Reason to have examined, whether he might not have waved the Descent, in case his Services had been more beneficial than the Land: But there could be little Reason from thence to exclude him from the Succession. I shall mention no more of this Impediment, nor of that of Leprosy, for that they both are vanished and antiquated long since; and, as the Law now is, neither of these are any Impediment of Descents.

And now passing over the Time of King John and Richard Ibecause I find nothing of Moment therein on this Head, unless the Usurpation of King John upon his eldest Brother's Son, which he would fain have justified by introducing a Law of prefering the younger Son before the Nephew descended from the elder Brother:

But this Pretention could no way justify his Usurpation, as has been already shewn in the Time of Hen. 2.

Next, I come to the Time of Hen. 3 in whose Time the Tractate of Bracton was written, and thereby in Lib. 2. cap. 30 & 31 and Lib. 5. cap. It appears, That there is so little Variance as to Point of Descents between the Law as it was taken when Bracton wrote, and the Law as afterwards taken in Edw. I's Time, when Britton and Fleta wrote, that there is very little Difference between them, as may easily appear by comparing Bracton ubi supra. & Fleta, Lib. 5. cap. 9. Lib. 6. cap. 1, 2. that the latter seem to be only Transcripts or Abstracts of the former.

Wherefore I shall set down the Substance of what both say, and thereby it will appear, that the Rules of Descents in Hen. 3. and Edw. I's Time were very much one.

First, At this Time the Law seems to be unquestionably settled, that the eldest Son was of Common Right Heir, not only in Cases of Knight Service Lands, but also of Socage Lands, (unless there were a special Custom to the contrary, as in Kent and some other Places) and so that Point of the Common Law was fully settled.

Secondly, That all the Descendants in infinitum, from any Person that had been Heir, if living, were inheritable Jure representationis; as, the Descendants of the Son, of the Brother, of the Uncle, &c. And also, Thirdly, That the eldest Son dying in the Life-time of the Father, his Son or Issue was to have the Preference as Heir to the Father before the younger Brother, and so the Doubt in Glanville's Time was settled, Glanvil. Lib. 7, cap. 3. "Cum quis autem moriatur habens Filium postnatum, & ex primogenito Filio praemortuo Nepotem, Magna quidem Juris dubitatio solet isse uter illorum preferendus fit alii in illa Successioni, scilicet, utrum Filius aut Nepos?"Fourthly, The Father, or Grandfather, could not by Law inherit immediately to the Son.

Fifthly, Leprosy, Though it were an Exception to a Plaintiff, because he ought not to converse in the Courts of Law, as Bracton, Lib. 5. cap. 20 yet we no where find it to be an Impediment of a Descent.

So that upon the whole Matter, for any Thing I can observe in them, the Rules of Descents then stood settled in all Points as they are at this Day, except some few Matters (which yet soon after settled as they now stand) viz.

First, That Impediment or Hindrance of a Descent from him that did Homage to him that received it, seems to have heen yet in Use, at least till 13 E. I. and in Fleta's Time, for he puts the Case and admits it.

同类推荐
  • 长沙方歌括

    长沙方歌括

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
  • 上清金书玉字上经

    上清金书玉字上经

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
  • 菩萨璎珞经

    菩萨璎珞经

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
  • 东西汉演义

    东西汉演义

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
  • NORTH AND SOUTH

    NORTH AND SOUTH

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
热门推荐
  • 张作霖大传:一个乱世枭雄的崛起与殒落

    张作霖大传:一个乱世枭雄的崛起与殒落

    本书是以张作霖传主的历史人物传记,通过讲述张作霖如何从受招安的土匪,进而一步步成为“关外王”、“满蒙之王”乃至在北京“登基”担任大元帅的过程,展现了在特殊历史背景下,一个乱世枭雄极具传奇色彩的一生。本书力求从一个更为全面和客观的角度进行观察,既如实地描写张传霖为了“取天下”,不惜穷兵黩武,争霸中原,导致误国误民误己的一面,同时也没有忽略他顶着压力,巧妙地与日本人进行周旋,从而千方百计维护国家主权的一面。
  • 左宗棠全传

    左宗棠全传

    左宗棠(1812年11月10日-1885年9月5日),汉族,字季高,一字朴存,号湘上农人。晚清重臣,军事家,政治家,著名湘军将领,洋务派首领。左宗棠少时屡试不第,转而留意农事,遍读群书,钻研舆地、兵法。后竞因此成为清朝晚期著名大臣,官至东阁大学士、军机大臣,封二等恪靖侯。一生经历了湘军平定太平天国运动,洋务运动,镇压陕甘回变和收复新疆等重要历史事件。
  • 我杀死了系统

    我杀死了系统

    这是一名自以为不是主角的主角,猎杀其它自以为是主角的配角,顺便尝试一下拯救世界的故事。————————————“你是天之骄子?气运所钟?废材逆袭?”易亦着一身布衣,手持书卷,剑指一名锦衣华服的男子,偏头问道。男子没有回复,鼓动全身灵力,一脸凝重。剑光之后,男子倒下。“现在你不是了。”易亦甩去剑尖的一缕血丝,语气平淡,陈述事实。他低头看向书卷,上面赫然写着“无限复活系统”六个大字。“这下可麻烦了。”他嘟囔着。
  • 广群芳谱

    广群芳谱

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
  • 普贤菩萨发愿文

    普贤菩萨发愿文

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
  • 女扮男装少爷我们回家吧

    女扮男装少爷我们回家吧

    【女扮男装】【爽文】【男强,女强】夜文珏,三大家族夜家继承人,但因为无奈,女扮男装生活,有个妹妹在三岁时走丢,让她十分愧疚...仇逸安,三大家族仇家继承人,从小生活在尔欺我诈的环境里,小时候母亲被人杀害,发誓一定要找出凶手!报仇!两个本是毫无联系的人,在机缘巧合下走到了一起
  • Memories and Portraits

    Memories and Portraits

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。汇聚授权电子版权。
  • 未闻天子笑

    未闻天子笑

    来世若有君相伴,不羡鸳鸯不羡仙……(本文为穿越+架空+江湖文,作者虽然懒但文章并不懒!请看原文就知道了。。。)
  • 僵临仙魔

    僵临仙魔

    局中局,局外局,生亦也,死亦也,这是一场由天布置的局,将由一头僵尸拉开新一轮盛世的帷幕……
  • 女配才是真绝色

    女配才是真绝色

    她不幸穿越进一本看过的玛丽苏小白文中?却没有穿成那个套着“人人爱我,我爱人人”主角光环的白莲花女主!而是穿成了教科书般的人物——恶毒女配!坑爹呢?未婚夫爱上女主无法自拔,嫡亲兄弟疏远她却百般讨好女主。自己三天两头找女主麻烦,却落得一个众叛亲离、名声狼藉、清白被污,惨死乱葬岗的下场。她表示鸭梨山大,摆脱命运从我做起!白莲花既然你非要不依不饶的踩着我上位,那就别怪我将反派进行到底了!且看她揭穿白莲花伪善的真面目,勇斗主角光环!只是,男主男配们……你们那么如狼似虎的盯着我干嘛?【情节虚构,请勿模仿】