The History of the Common Law of England [73]
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, 4 Johannis. 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. Whereupon Three Things are observable, viz. 1st, That at this Time the hereditary Succession of the eldest Son was then known to be the common and usual Law in England. 2dly, That the Succession of all the Sons was the ancient customary Law among the British in Wales, which by this Statute was continued to them. 3dly, That before this Time, Bastards were admitted to inherit in Wales as well as the Legitimate Children, which Custom is thereby abrogated; and although we have but few Evidences touching the British Laws before their Expulsion hence into Wales, yet this Usage in Wales seems sufficiently to evidence this to have been the ancient British Law. Secondly, As to the Times of the Saxons and Danes, their Laws collected hy Brompton and Mr Lambard, speak not much concerning the Course of Descents; yet it seems that commonly Descents of their ordinary Lands at least, except Baronies and Royal Inheritances, descended also to all the Sons: For amongst the Laws of King Canutus, in Mr Lambard is the Law, viz. No. 68. "Sive quis incuria five Morte repentina fuerit intestato mortuus, Dominus tamen nullam rerum suarum Partem (praeter eam quae jure debetur Hereoti nomine) sibi assumito. Verum eas Judicio suo Uxori, Liberis & cognatione proximis juste (pro suo cuique jure) distributio." Upon