The preceding part of this note is nearly the fame as it stood in the laft edition, and fince it appeared a pamphlet has been published by the author of the Remarks on the Laws of Descent, intitled "Remarks on the Inconfiftency of the Table of Descents "projected by Mr. Profeffor Chriftian, with the Doctrine laid down "by Sir William Blackstone, and by every other Writer on the Law "of Defcent." My endeavour in the former part of this note has been to point out to the ftudent the general principles upon which this fubject ought to be confidered, and by which, if any question upon it were brought before the courts, it would probably be determined. The authorities upon the subject are almost all referred to in the cafe of Clere and Brooke by the editor of the English edition of Plowden, p. 450. It is very remarkable that, though all the writers agree that the next and worthief of blood shall be the heir, or the next of the worthieft, yet they have not given us any plan by which in the afcending lines we are to ascertain the worthieft, or told us, whether, when we have ascertained the worthiest, the remotest of the worthiest in all cafes fhall be preferred to those, who are nearer of the lefs worthy of blood. It is agreed by all that the remoteft relation collateral to the male afcending line fhall be preferred to the nearest kinfman being collateral to a female line. And if the blood of a more remote female is more worthy than that of a nearer female united to the male ascending line, it is because it is derived through a greater number of males. If an estate has defcended in the male line of the Howards for 24 generations, the relations introduced by females within so many generations can never poffibly inherit, but the relations of females allied to more antient generations may still be heirs to it; it is not therefore abfurd to confider them of more worthy blood, even when the propofitus is himfelf the purchafer. And in the yearbook M. 12 Ed. IV. 14. ceftuy, que doit inheriter al pere, doit inheriter al fitz, is cited by the court as a general legal maxim.

Sir William Blackftone's table goes back but a very short way, and a few generations more would neceffarily make it diverge over an immenfe space. He takes for granted that all the names in the top of the table have no collateral relations, for if they had, all his figures above 9 muft neceflarily have been placed differently.

The author of the Remarks on the Inconfiftency, &c. contends that my plan of defcents is inconfiftent with Sir William Blackftone's; but to the ftudent who seriously attends to the learned Judge's reafons I need not fay more than that his preference of the great-grandmother to the grandmother united to the afcend

ing line muft neceffarily have made him prefer Anne Godfrey the great great-grandmother before Chriftian Smith the great-grandmother, and if he had supposed that Anne Godfrey had had a brother or fifter leaving defcendants, n' to must have been placed collaterally to her name. And I still think that the reason given by Mr. Juftice Manwoode for his preference of n' II to n° 10 muft produce uncertainty and confufion; viz. "For fuch heirs "come from the blood of the female fex, from which the pur"chafor's father iffued; and where they are all equally worthy, "the next of blood shall always be preferred as heir." Plowd. 448.

If proximity refers to the ancestor or perfon from whom the claimant derives his title, then we may have many claimants equally near and equally worthy. To obviate this objection the author of the Remarks on the Inconsistency, &c. wishes to give a sense to proximity, which I do not find it will bear in any of the authorities relative to this fubject, viz. that proximity is not 'to be referred to the collateral ancestor introduced by any female, but to the female as connected with the male branch.

In p. 23. he says, Sir Edward Coke in his commentary upon the word prochein in the text of Littleton, gives us the legal interpretation of proximity :

"Here is understood a divifion of next, viz. next jure repre"fentationis and next jure propinquitatis, that is, by right of "reprefentation and right of propinquity; and Littleton mean"eth of the right of reprefentation; for legally, in course of "descents, he is the next of blood inheritable. Co. Litt. 10."

The principle is ftill farther explained by Sir Matthew Hale: "Through all the degrees of fucceffion by the right of repre"sentation, the right of proximity is transferred from the root "to the branches, and gives them the fame preference as the "next and worthieft of blood. Hift. Com. Law, 237."

This authority we truft will folve all difficulties.'

I am sorry to differ from this learned writer in thinking that the difficulty is not in any degree folved by this authority, for in the paffages above cited lord Coke and lord Hale are confidering proximity jure reprefentationis in the defcending lines only, as that a grandfon of the elder brother fhall be preferred to the fon of the younger, or to the younger himself, as being the next and worthieft of blood.

But I have never found any intimation that the whole of the blood of b the grandmother shall inherit before any of the blood of c the great-grandmother. Lord Hale fays that the most part of his

rules

rules may be collected out of the cafe in Plowden; but the question between 10 and 11 was not then decided judicially by the court, though I am ready to confefs that in favour of n° 11 there is a greater number of high legal opinions.

If it fhould be admitted that the remoteft of the blood of the grandmother b fhall inherit before the nearest relation of the greatgrandmother c, my objection to the uncertainty from proximity in the fenfe, in which it seems hitherto to have been used, is removed. And I cannot think that any court can ever determine that the brother of the grandmother b fhall take before the brother of the great-grandmother c, but they must also determine that the whole of the blood of b fhall fail, before any of the blood of c can be heir to the propofitus. Upon that fuppofition I conceive the table I have propofed will be found to be equally useful, for after the failure of all the male blood, if we are to have recourse to the blood of the father's mother b, then to find the heir on the part of b, we must substitute b in the place of the propofitus, as I before described in finding the heir of z.

In difcuffing this subject my wifh has been to produce from authority and principles an univerfal plan of defcents, that when the pedigrees of any two relations whatever can be established, the priority of their claims to the inheritance may be inftantly and uncontrovertibly decided. I have no predilection for any particular system, and I shall be glad to confess my errors and to cancel all I have written upon the fubject, when a more correct plan is fanctioned by legal authority, or the general voice of the profession.

TABLE

CHAPTER THE FIFTEENTH.

OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.

PURCHASE, perquifitio, taken in its largest and most

a

extenfive fenfe, is thus defined by Littleton ; the poffeffion of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this fenfe it is contradiftinguished from acquifition by right of blood, and includes every other method of coming to an estate, but merely that by inherit ance: wherein the title is vested in a perfon, not by his own act or agreement, but by the single operation of law .

PURCHASE, indeed, in it's vulgar and confined acceptation, is applied only to fuch acquifitions of land, as are obtained by way of bargain and fale, for money, or fome other valuable confideration. But this falls far fhort of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchafor; and falls within Littleton's definition, for he comes to the eftate by his own agreement, that is, he confents to the gift. A man who has his father's eftate fettled upon him in tail, before he was born, is alfo a purchafor; for he takes quite another estate than the law of defcents would have given him. Nay even if the ancestor devises his eftate to his heir at law by will, with other limitations, or in any other fhape than the course of defcents would direct, fuch heir shall take by purchase d (1). But if a

(1) A man having two daughters his heirs, devifes his lands to them and their heirs, and dies. They fhall take by purchase as