led; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.

And, as this depends not a little on the nature of kindred, and the seve◄ ral degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood. (d)

Consanguinity, or kindred, is defined by the writers on these subjects to be "inculum personarum ab eodem stipite descendentium;" the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.

Lineal consanguinity is that which subsists between persons, of [203] whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards; the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil, (e) and canon, (f) as in the common law. (g)

The doctrine of lineal consanguinity is sufficiently plain and obvious;" but it is at the first view astonishing to consider the number of lineal ances tors which every man has, within no very great number of degrees; and so many different bloods (h) is a man said to contain in his veins, as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers; and by the same rule of progression, he hath an hundred and twenty-eight in the seventh; a thousand and twenty-four in the tenth and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as com mon arithmetic will demonstrate. (i) This lineal consanguinity, we may observe, falls strictly within the definition of vinculum personarum ab eodem stipite descendentium; since lineal relations are such as de- [204] scend one from the other, and both of course from the same common ancestor.

Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend one from the other." Collateral kinsmen are such then as lineally spring from one d For a fuller explanation of the doctrine of consanguinity, and the consequences resulting from a right apprehension of its nature, see An essay on collateral consanguinity. (Law tracts, Oron. 1762, 8vo. or 1771, 410.) e Ff. 58. 10. 10. g Co. Litt. 23. h Ibid. 12. i This will seem surprising to those who are unacquainted with the increasing power of progressive Dumbers; but is palpably evident from the following table of a geometrical progression, in which the first tarm is 2, and the denominator also 2; or, to speak more intelligibly, it is evident, for that each of us has two ancestors in the first degree; the number of whom is doubled at every remove, because each of our ancestors has also two immediate ancestors of bis own.

f Decretal. l. tit. 14,

(6) Collateral consanguinity is that which exists between persons who are derived from the same stock, or ancestors, however remote. Every person who is descended or propagated from the same stem (i. e. from the same male or female lineal ancestor) from which any other particu68

VOL. I.

and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. Asif John Stiles

hath two sons, who have each a numerous issue; both these issues are [205] lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.

We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father: Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin's claim to consanguinity is this, that they are both derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more (and, without such a supposition, the human species must be daily diminishing); we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are; besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more. (k) And if this calculation should appear incompatible with Lineal Degrees.

1

2

Number of Ancestors.

2

4

A shorter method of finding the number of ancestors at any even degree is by squaring the number of ancestors at half that number of degrees Thus 16 (the number of ancestors at four degrees) is the square of 4, the number of ancestors at two; 256 is the square of 16; 65536 of 256; and the number of ancestor's at 40 degrees would be the square of 1048576, or upwards of a million millions.

k This will swell more considerably than the former calculation; for here, though the first term is but 1, the denominator is 4; that is, there is one kinsman (a brother) in the first degree, who makes, together with the propositus, the two descendants from the first couple of ancestors; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately precedes it. For. since each couple of ancestors has two descendants, who increase in a duplicate ratio, it will follow that the ratio, in which all the descendants increase downwards, must be double to that in which the ancestors

lar person is descended or propagated, and who is neither the immediate parent or the progeni. tor, nor the progeny of such particular person, is properly and aptly denominated or defined to be a collateral relative. And where any person is the collateral relative of any other person, all the descendants from such persons, reciprocally and respectively, are collateral relations. And therefore, on the other hand, every person who is descended from the same stem from whence any other person is descended or propagated, and who is not the collateral relative of such other person, must necessarily be either his or her lineal ancestor or descendant, Rob. Inh. 25, 26, Chitty.

the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.

The method of computing these degrees in the canon law, () which [206] our law has adopted, (m) is as follows: We begin at the common ancestor, and reckon downwards; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree; for from the father to each of [207] them is counted only one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz. his own grandfather, the father of Titius. Or (to give a more illustrious instance from our English annals), king Henry the Seventh, who slew Richard the Third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of con

increase upwards; but we have seen that the ancestors increase upwards in a duplicate ratio; therefore the descendants must increase downwards in a double duplicate, that is, in a quadruple ratio. (7)

This calculation may also be formed by a more compendious process, viz. by squaring the couples, or half the number of ancestors, at any given degree; which will furnish us with the number of kindred we have in the same degree, at equal distance with ourselves from the common stock, besides those at unequal distances. Thus, in the tenth lineal degree, the number of ancestors is 1024; its half, or the couples, amount to 512; the number of kindred in the tenth collateral degree amounts therefore to 262144, or the square of 512. And if we will be at the trouble to recollect the state of the several families within our own knowledge, and observe how far they agree with this account; that is, whether on an average every man has not one brother or sister, four first cousins, sixteen second cousins, and so on; we shall find that the present calculation is very far from being overcharged.

1 Decretal. 4. 14. 3 & 9.

m Co. Litt. 23.

(7) "The learned judge's reasoning is just and correct; and that the collateral relations are quadrupled in each generation may be thus demonstrated:-As we are supposed, upon an average, to have one brother or sister, the two children by the father's brother or sister will make two cousins, and the mother's brother or sister will produce two more, in all, four. For the same reason, my father and mother must each have had four cousins, and their children are my second cousins; so I have eight second cousins by my father, and eight by my mother; together sixteen. And thus again, I shall have 32 third cousins on my father's side, and 32 on my mother's, in all, 64. Hence it follows that each preceding number in the series must be multiplied by twice two or four.

"This immense increase of the numbers depends upon the supposition that no one marries a relation; but to avoid such a connexion it will very soon be necessary to leave the kingdom. How these two tables of consanguinity may be reduced by the intermarriage of relations, will appear from the following simple case: If two men and two women were put upon an uninhabited island, and became two married couple, if they had only two children each, a male and female, who respectively intermarried, and in like manner produced two children, who are thus continued ad infinitum; it is clear, that there would never be more than four persons in each generation; and if the parents lived to see their great-grandchildren, the whole number would never be more than sixteen; and thus the families might be perpetuated without any incestuous connexion."--(Mr. Christian's.)

(8) See post 224.

sanguinity represent king Richard the Third, and the class marked (£) king Henry the Seventh. Now their common stock or ancestor was king Edward the Third, the abavus in the same table: from him to Edmond duke of York, the proavus, is one degree; to Richard earl of Cambridge, the avus, two; to Richard duke of York, the pater, three; to king Richard the Third, the propositus, four; and from king Edward the Third to John of Gant (a) is one degree; to John earl of Somerset (b), two; to John duke of Somerset (C), three; to Margaret countess of Richmond (D), four; to king Henry the Seventh (E), five. Which last-mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though, according to the computation of the civilians (who count upwards, from either of the persons related, to the common stock, and then downwards again to the other reckoning a degree for each person both ascending and descending), these two princes were related in the ninth degree, for from king Richard the Third to Richard duke of York is one degree; to Richard earl of Cambridge, two; to Edmond duke of York, three; to king Edward the Third, the common ancestor, four; to John of Gant, five; to John earl of Somerset, six; to John duke of Somerset, seven; to Margaret countess of Richmond, eight; to king Henry the Seventh, nine. (n) °

The nature and degrees of kindred being thus in some measure [208] explained, I shall next proceed to lay down a series of rules or ca

nons of inheritance, according to which, estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reason upon which they are founded, and in some cases their agreement with the laws of other nations.

1. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised in in infinitum; but shall never lineally descend. 10

n See the table of consanguinity annexed; wherein all the degrees of collateral kindred to the propositus are computed so far as the tenth of the civilians and the seventh of the canonists inclusive; the former being distinguished by the numeral letters, the latter by the common cypbers.

(9) The difference of the computation by the civil and canon laws may be expressed shortly thus: the civilians take the sum of the degrees in both lines to the common ancestor; the canonists take only the number of degrees in the longest line Hence when the canon law prohibits all marriages between persons related to each other within the seventh degree, this would restrain all marriages within the 14th degree of the civil law. In the 1st vol. 455. n. it is observed that all marriages are prohibited between persons who are related to each other within the third degree, according to the computation of the civil law. This affords a solution to the vulgar paradox, that first cousins may marry and second cousins cannot. For first cousins and all cousins may marry by the civil law; and neither first nor second cousins can marry by the canon law. But all the prohibitions of the canon law might have been dispensed with. It is said, that the canon law computation has been adopted by the law of England; yet I do not know a single instance in which we have occasion to refer to it. But the civil law computation is of great importance in ascertaining who are entitled to the administration, and to the distributive shares, of intestate personal property. See post, 504. 515. Christian.

(10) In a devise however, if lands be left to the heir of M. it may be good as designatio personce, and he may take in the lifetime of M. Good right d. Brooking v. White, 2 Bla. 1010. There is also an exception to this rule in the case of the duchy of Cornwall, which vests in the king's first-born son by hereditary right in the lifetime of his father. 3 Bac. Ab. 449. 8 Rep. 1. Seld. tit. Hon. 2. 5. The title of duke of Cornwall, and the inheritance of the duchy, were first created and vested in Edward the Black Prince (who was the first duke in England after the duke of Normandy), by a grant in the eleventh year of Edward III. (A.D. 1337.) This grant has been held to be an act of the legislature, or a charter confirmed by parliament; and is consequently good, though it alter the established course of descent, which the king's grant could not do. The prince's case, 8 Rep. 1. It follows that the king's eldest son, being heir apparent, is always by inheritance duke of Cornwall, without a new creation. Idib. On the death of the eldest son, the second or eldest surviving son takes the inheritance; a peculiar descent, founded

To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritances can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est haeres viventis. Before that time the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born; as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter, in the former cases, the estate shall be devested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of a posthumous son. (o)"

11

We must also remember, that no person can be properly such an ancestor, as that an inheritance of lands or tenements can be derived [209] from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of a freehold : (p) or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson, (q) and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore all the cases which will be mentioned in the present chapter, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. 12 Which notoriety had

o Bro. tit. descent. 58.

p Co. Litt. 15.

q Co. Litt. 11.

on the legislative grant. 1 Ves. 294. Collins' Bar. 148. 1 Bla. Com. 224. n. 10. by Mr. Christian. But it seems that as the duke of Cornwall must be not only the eldest son, but the heir ap parent, the second surviving son would not succeed to the dukedom, if his eldest brother left issue, who would be heir apparent; but it would in that case revert to the crown. Id. n. 10. It appears that the disibilities of minority do not hold against a duke of Cornwall with respect to the duchy rights und possessions. Id. Chitty Jun. Prerog. 404. and 376. and n. (h) Bro. Ab. Prerog. p. 132. The general rule is, that till a prince is born, the king is seised of all the possessions, Com. Dig. Roy. 9., but when born, the prince is immediately seised in fee; and leases &c. made by the king, may be determined by the prince, and he may have a scire facias for that purpose. See Chitty Jun.'s Prerog. of the Crown, p 404. [H. Chit. Desc. 15. n.] Chitty. (11) But besides the case of a posthumous child, if lands are given to a son, who dies, leaving a sister his heir; if the parents have, at any distance of time afterwards, another son, this son shall devest the descent upon the sister, and take the estate as heir to his brother. Co. Litt. 11. Doct. and Stud. 1 Dial. c. 7. So the same estate may be frequently devested by the subsequent birth of a nearer presumptive heir. As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born uncle, on whom a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother. But every one has a right to retain the rents and profits which accrued whilst he was thus legally possessed of the inheritance. Harg. Co. Litt. 11. 3 Wils. 526. That is, in the case of a descent, (see H. Chit. Desc. 294.) but where a posthumous child takes by purchase, he is entitled not only to the estate itself, but to the intermediate profits of the estate also. Id. 296, 7, 8. Christian.

(12) The nature of the seisin which a person acquires, and which will render such person an ancestor, to whom the next claimant must make himself heir, depends materially on the question,-Whether the estate was obtained by purchase or by descent?