[214] Descendit itaque Jus quasi ponderosum quid cadens deorsum. (Bracton 62. b.) “This Rule,” observes Sir Wm. Blackstone, “so far as it is affirmative, and relates to lineal descents, is almost universally adopted by all nations;” “but the negative branch, or total exclusion of Parents and all lineal Ancestors from succeeding to the Inheritance of their offspring, is peculiar to our own Laws, and such as have been derived from the same original.” (2 Com. 209.)
The Reader will recal to mind the material qualification of this Rule, which, though it precludes the Father from taking as Heir to his Son, by an immediate descent, permits him to take as Heir to his own Brother, who was Heir to the Son, by collateral descent. (Hale’s Hist. Com. Law. 216. 336. 2 P. Wms. 613. Mr. Christian’s note to 2 Bl. Com. 212.) This appears to coincide with the Rule as qualified by Bracton; for, having laid it down, that an Inheritance never ascends the same way it descends, he proceeds, a latere tamen ascendit alicui propter defectum heredum inferius provenientium. (Bracton 62. b. See also Grand Norm. Custum. c. 25.) A different Rule, from that in the text, is laid down in the Laws of Henry the first. Si quis sine liberis decesserit, pater aut mater ejus in hereditatem succedant, &c. (LL. Hen. 1. c. 70.)
[215] Dominium. The Civilians, from whom this term seems to have been borrowed, divided dominium into the directum and the utile; the first being, where a person had the propriety, without the profit,—the latter being, where a person had the profit, without the propriety. (Wood’s Inst. Civil Law. L. 2. c. 1.) This division, however, was opposed by Cujacius and some others. (Craig Jus Feud. L. 1. Dieg. 9.)
[216] The Rule laid down in the text received a partial confirmation from the Stat. of Westm. the 2. c. 41. I say partial, on the authority of Lord Coke, who lays it down, that Bishops are not comprehended in that Act. (2 Inst. 457.) “William the Conqueror thought proper to change the spiritual tenure of frankalmoigne or free-alms, under which the Bishops held their Lands during the Saxon Government, into the feudal or Norman Tenure by Barony, which subjected their Estates to all civil charges and assessments, from which they were before exempt.” (2 Bl. Com. 156.)
[217] “For where dedi,” says Lord Coke, “is accompanied with a perdurable tenure of the feoffor and his Heirs, there dedi importeth a perdurable warranty for the Feoffor and his Heirs to the feoffee and his Heirs; and herewith agreeth Glanville:” (referring to the text) (2 Inst. 275.)
[218] Plura, says Fleta, heredem reddunt hereditati propinquiorem; utpote sexus, linea, hereditas partibilis, pluralitas fœminarum, modus donationis et sanguinis. (L. 6. c. 1. s. 12.)
[219] Yet, Bracton reckons a daughter a more remote Heir when a Son was living. (Bracton 64. b.) It is clear, that author uses the term comparatively, and so the Grand Norm. Cust. uses it, (sparsim.)
[220] Avunculus. Our Author is guilty of an inaccuracy in using this term, which means, an Uncle on the Mother’s side, patruus being the Uncle on the Father’s side.
[221] V. Somneri Tractat. de Gavelkynd. pag. 42, et Bracton L. 2. c. 34. fol. 76. a. Fletam Lib. 5. c. 9. s. 15. (Al. MS.) On the Rules of descent as they existed amongst the Jews, the Grecians, the Romans, the Lombardi, the Normans, the ancient British, the Saxons, &c. I refer the Reader to Lord Hale’s admirable though unfinished Tract, the History of the Comm. Law, chapter 11th. On the Rules of descent, as existing in this Country when Bracton wrote, which Lord Hale informs us, stood settled in all points as they are at this day, except in some few matters soon after settled, the Reader may turn to the 2nd Book c. 30. 31. of Bracton.
[222] The Norman Code divides Inheritances into impartible and partible—the former appearing to answer to our military tenure, the latter to our socage tenure. (Grand Custum. c. 24.)