The History of the Common Law of England [69]
and Laws as within that Compass of Time he conveniently could. And thus I have given an Essay of the Reasons and Means, how and why we find so many Laws in Scotland parallel to those in England, and holding so much of Congruity and Likeness to them. And the Reason why we have but few of their Laws that correspond with ours of a later Date than Edw. I or at least Edw. 2 is because since the Beginning of Edw. 3 that Kingdom has been distinct, and held little Communion with us till the Union of the two Crowns in the Person of King James I and in so great an Interval it must needs he, that by the Intervention and Succession of new Laws, much of what was so ancient as the Times of Edw. I and Edw. 2 have received many Alterations: So that it is a great Evidence of the Excellency of our English Laws, that there remain to this Day so many of them in Force in that Part of Great Britain continuing to bear Witness, that once that excellent Prince Edw. I exercised Dominion and Jurisdiction there. And thus far of the Communion of the Laws of England to Scotland, and of the Means whereby it was effected; from whence it may appear, That as in Wales, Ireland and Normandy, so also in Scotland, such Laws which in those Places have a Congruity or Similitude with the Laws of England, were derived from the Laws of England, as from their Fountain and Original, and were not derived from any of those Places to England. XI. 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