be heir to these lands, because he was only of the halfblood to A. the person last seised; but they would descend to a sister (if any) of the whole blood to A., [for in such cases the maxim was, that possessio fratris facit sororem esse hæredem. Yet if A. had died without entry, then B. might have inherited; not as heir to A. his half-brother, but as heir to their common father, who was the person last actually seised (a).]

This exclusion of the half-blood was a feature almost peculiar to the law of England (b); and (it must be added) one of the most harsh and unreasonable aspect. Its vindication was rested entirely upon the plea that it ought to be considered as a mere auxiliary rule, to carry into effect that principle of the feudal law which required the heir to derive his blood from the purchaser. For as it was a consequence from this principle, (as already shown) that the collaterals of the deceased purchaser could only be let in by supposing them to be lineal descendants of some one of his ancestors, from whom the estate had been originally derived, so it was obvious that those related to him of the whole blood were in general more proper subjects for that supposition, than those of the half-blood. This results from the consideration that he who is the kinsman of the whole blood to the person deceased can have no ancestors beyond or higher than the common stock, but what are equally the ancestors also of the deceased, and vice versâ; and therefore is very likely to be derived from that unknown ancestor of his from whom the inheritance is supposed to have descended. But a kinsman of the halfblood in the same degree with the other, is not so probably sprung from the same original purchaser, for he has but one half his ancestors above the common stock with the deceased, the same.

[To illustrate this by example:-Let there be John Stiles and his brother Francis, by the same father and (b) Ibid. 228.

(u) 2 Bl. Com. 227.

[mother, and another brother born of the same mother by Lewis Gay, a second husband. Now if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother, in this case his brother Francis of the whole blood is sure to be in the line of descent from the first purchaser, whether it were the line of the father or the mother. But the mother's son by Lewis Gay is to the full as likely not to be descended from the original purchaser as to be descended, and there is consequently no reasonable presumption of his being derived from the original purchaser. It was argued, therefore, by the apologists of the ancient rule of exclusion, that it should not be thought hard that collateral relations of the half blood should be disinherited; for as they owed their admission only to the fiction that they were the issue of an imaginary purchaser, it was just to exclude them in every case where, supposing that purchaser to have really existed, there would be no fair reason to suppose that they could in truth have descended from him (c). It was obvious, however, even to the apologists themselves, that the exclusion was carried farther in practice than the principle on which it was founded would warrant; for a kinsman of the half blood to the deceased, supposing him to have derived the estate from some unknown ancestor, would in some instances have the same chance of being descended from that ancestor as a kinsman of the whole blood in remoter degree, and in other instances a much greater. Thus a brother of the half blood would have the same chance as an uncle of the whole, on the same side, and more than a greatuncle (u); and yet, in these instances, the remoter kinsman was always admissible, while the nearer was incompetent to succeed. The rule of exclusion was, besides, (as we have seen) applied even where the deceased tenant did not take by purchase, but by descent, and had a relative of the half

(c) See note by Christian, 2 Bl. Com, p. 231.

blood known to be descended as well as himself from the purchaser. [This was universally allowed to carry a hardship with it, even upon feodal principles; for as the estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it was demonstrable that the half-brother must be of the blood of the purchaser, who was either the father or one of the father's ancestors. And indeed it should seem as if originally the custom of excluding the half blood, in Normandy, extended only to exclude a frater uterinus where the inheritance descended a patre, and vice versa (d); and possibly in England also, as even with us it remained a doubt in the time of Bracton and of Fleta whether the half blood on the father's side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly purchased lands. So also the rule of law, as laid down by our Fortescue (e), extends no farther than this, frater fratri uterino non succedet in hæreditate paternă. It is moreover worthy of observation, in this place, that the crown (which is the highest inheritance in the nation) always by law descended (as it still does) to the half blood of the preceding sovereign (f), so that it be the blood of the first monarch of the reigning family who was conqueror (which in feudal language is the same as purchaser) of the realm. Thus it actually did descend from King Edward VI. to Queen Mary, and from her to Queen Elizabeth, who were respectively of the half blood to each other. For though none can be a claimant to the crown unless known to be descended from the original stock (which was formerly King William the Norman, and is now, by act of parliament (g), the Princess Sophia of Hanover,) while there remain heirs of her body (being protestants), [yet when such descent is known, the feudal

(d) Gr. Coustum. c. 25.

(e) Fort. De Laud. Leg. Ang. c. 5.

(f) Plowd. 245; Co. Litt. 15 b. (g) 12 & 13 Wm. 3, c. 2.

[rule is satisfied, whether he be related to the last sovereign by the whole, or by the half blood. Upon the same principle, in titles of honour (h) and in all estates tail (i), half blood was never an impediment to the descent,] because in these cases the pedigree from the first donee must be strictly proved; and the feudal maxim is consequently carried into effect, without resorting to any auxiliary rule. But now, as we have seen, the maxim which excluded the half blood has given way in every case, to a sounder and more satisfactory principle. Having been long generally disapproved, as founded on defective reasoning and opposed to natural justice, it was at length abolished by the above-mentioned act of 3 & 4 Wm. IV. c. 106, the provision of which, as regards this subject, is expressed in the following terms:-"That any person related to the person from whom the descent is to be traced by the half "blood shall be capable of being his heir; and the place "in which any such relation by the half blood shall stand "in the order of inheritance, so as to be entitled to in"herit, shall be next after any relation in the same degree "of the whole blood and his issue, where the common "ancestor shall be a male, and next after the common ancestor, where such common ancestor shall be a female; so that the brother of the half blood on the part of the "father shall inherit next after the sisters of the whole "blood on the part of the father and their issue, and "the brother of the half blood on the part of the mother "shall inherit next after the mother(k)."

66

Having now treated of the several rules of which we conceive the law of descent to consist, we may remark, as the result of the investigation, that upon the death of the owner of an estate in fee simple, we are to ascertain the heir, by considering, first, who was the purchaser of that estate, according to the sense which the statute has affixed to the term; and we are then to look for the heir, (h) Co. Litt. 15. (k) 3 & 4 Will. 4, c. 106, s. 9.

(i) Litt. ss. 14, 15 b.

first, among his issue, where the heir will be his descendant next to him in blood, but subject to the principles as to sex, primogeniture, and representation; and failing these, among his lineal ancestors, or their issue; where the heir will be his lineal ancestor next in blood in the preferable line, or the issue of such ancestor, if deceased; applying the same law of succession as in the case of the purchaser's issue, and also the principle which prefers the whole to the half blood.

Before we conclude this branch of our inquiries, however, it may not be amiss to apply the rules more particularly, and to supply the reader with a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies entitled to land which he acquired otherwise than by inheritance, and of which, therefore, he was the purchaser.

In the first place succeeds the eldest son, Matthew Stiles, or his issue, No. 1. If he and his heirs be extinct, then Gilbert Stiles, and the other sons respectively in order of birth, and their issue, No. 2. In default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue, No. 3. On failure of the descendants of John Stiles, his father Geoffrey (being his nearest lineal ancestor in the preferable line,) is admitted, No. 4. Then the issue of his father, viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue, No. 5; then Oliver Stiles and the other whole brothers respectively, in order of birth, or their issue, No. 6; then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue, No. 7; then the son of Geoffrey (the paternal brother of the half blood), No. 8, or his issue; and the paternal sisters of the half-blood, No. 9, or their issue. In default of them, George Stiles, the paternal grandfather, is admitted, No. 10, and then his issue, viz. first his issue of the whole blood with John, No. 11, then his issue of the half-blood with John, No. 12. In defect of these, Walter Stiles, the paternal grandfather's father is admitted, No. 13. Then the