The Lord Chief Baron Hale's Argument
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1726 |
| Date | 01 January 1726 |
| Court | Exchequer |
English Reports Citation: 86 E.R. 262
IN THE EXCHEQUER-CHAMBER.
See Kynnaird v. Leslie, 1886, L. R. 1 C. P. 396; De Geer v. Stone, 1882, 22 Ch. D. 252; In re Hawkins [1892], 1 Q. B. 904.
[413] the case of colunowood and pace in the exchequer-chamber. the lord CmE*' baron hale's argument. [See Kynnaird v. Leslie, I860, L. K. 1 C. P. 396 ; De Geer v. Stone, 1882, 22 Ch. D. 252 : In re Hawkins [1892], 1 Q. B. 904.] 1 Sid. 193. Vaugh. 274. 2 Vent. 1. Ch. J. Jones, 10. 2 Sid. 23, 51, 148. Hardr. 224. 1 Keb. 65, 174, &c. 1 Lev. 59. Carter 185. In the argument of this case I shall first suppose as clear and unquestionable, these three things, viz. First, that Patrick the son, and William the grandson of Nicholas the elder brother, are not inheritable to John the Earl, because tho' they are both denizens born, yet Nicholas their father, through whom they must convey their pedigree, was an alien. Secondly, that as Patrick and William cannot inherit, so neither can they obstruct the descent to John the son of George, because being descended from an alien, the law takes no notice of them as to this purpose ; otherwise 'tis if the said Nicholas had been a denizen born and attainted, because in such a case, tho' he could not take himself by the descent, he could obstruct the descent to the younger brother, so the land would escheat. Thirdly, that the case of George, the son naturalized, and the case of John his son, as in reference to John the Earl, and the descent from him, will be all one ; if 1VENTRIS,414. COLLINGWOOD AND PACE 263 George had survived him, John the Earl might have inherited; so will John his son, who, jure representation's, is the same with his father, & e converse. [414] These things being unquestionably clear, before I come to the arguments of the case, I shall premise certain general observations. First, touching descents. Secondly, touching the capacities or incapacities of an alien. Thirdly, touching naturalizations. Touching descents I shall consider, First, the rule whereby they are to be governed. Secondly, the various kinds of descents or hereditary successions. Concerning the rule of descents, we must not govern our selves therein by the general notions of law or proximity of nature, but by the municipal laws of the country where the question ariseth ; for the various laws of nations have variously disposed the manner of descents, even in the same law or degree of proximity. For instance. The father is certainly as near of kin to the son as the son is to the father, and is nearer in proximity than a brother, and therefore shall be preferred as next of kin in an administration. 3 Rep. Ratdi/'s case. Yet touching the succession of the father to the purchase of his son, the laws of several countries variously provide. First, according to the Jews, for want of issue of the son, the father succeeds excluding the brother, and that hath been the use and construction of the Jewish doctors, upon Numbers, cap. 27, Selden de Suceessionibus Hebr. cap. 12. But the mother was wholly excluded. Secondly, according to the Greeks, the prohibition for the succession or exclusion of the father is left doubtful. Petit Leges 1, 6, fol. 6. Thirdly, according to the Roman or civil law, by the construction of tbe law of the Twelve Tables, the father succeeds in the purchase of the son for want of issue of the son under the title of proximus agnatus, and accordingly was their usage, tho1 my Lord Coke supposed tho contrary. Co. Lit. 11. But to settle all, the Institutes of Justinian, lib. 3, tit. 3, in an authentick collection, 8, tit. de Hatred' ab Intestate Venientibus, the son dying without issue, his brothers and sisters, father and mother do succeed him in a kind of coparcenary as well to lands as goods. Fourthly, according to the customs of Normandy, which in some things have a cognation with the laws of England, the son dying without issue, his brothers are preferred before the father, but the father is preferred before the uncles, Terrier, lib. G, c. 6, la Customier de Normanclie, cap. de Successions, page 234, 235. [415] Fifthly, according to the laws of England, the son dying without issue, or brother or sister, the father cannot succeed, but it descends to the uncle. And it is a maxim of the English law, an inheritance cannot lineally ascend. Consequently, the question being in this case touching a descent of lands in England, it must be disputed and ruled according to the grounds and reasons of the laws of England. Secondly, touching the second, the division of descents are of two kinds: First, lineal, as from the father or grandfather to the son or grandson. Secondly, collateral or transversal, as from brother to brother, uncle to nephew, or e converso. And both these are again of two sorts : First, immediate, as in lineals from father to son. Secondly, mediate, as in lineals from grandfather to grandson, the father dying in the life of the grandfather, when the father is the medium differens of the descent. Thirdly, in collaterals, from the uncle to the nephew, or from the nephew to the uncle, where the father is likewise the medium differens. And I call this a mediate descent, tho' as to many purposes it be immediate ; for the father dying in the life of the grandfather, the son succeeds in point of the laws of descents immediately to the grandfather; and in a writ of entry shall be supposed in the per to the grandfather, and not in the per and cui. But I call it a mediate descent, because the father is the medium through or by whom the son derives his title to the grandfather. Therefore if any man thinks the term of mediate descent not properly used, he 264 COLLINGVVOOD AND PACE 1 VENTRIS,. may if he please use the words of mediate or immediate ancestors. Words are imposed to signify things, and therefore the terms being explained what I mean by them, I shall retain the terms of mediate or immediate descents. This distinction of descents or relations between ancestor and heir, and hereditary succession, will be of use throughout this whole debate. In immediate descents there can be no impediment, but what arises in the parties themselves. For instance. The father seised of lands, the impediment that hinders the descent must be either in the father or the son; as if the father or the son be attaint, or an alien. [416] In immediate descents, a disability of being an alien or attaint in him that I call a medius ancestor, will disable a person to take by descent, tho' he himself hath no such disability. For instance. In lineal descents; if the father be attaint or an alien, and hath issue a denizen born, and dies in the life of the grandfather, the grandfather dies seised ; the son shall not take, but the land shall escheat.* In collateral descents : A. and B. brothers, A. is an alien or attainted, and hath issue C. a denizen born. B. purchaseth lands and dies without issue, C. shall not inherit; for A. (which was the merlius ancestor, or medium differens of this descent) was incapable. Dyer 274, Gray's case. And this is apparent in this very case; for by this means Patrick, tho' a denizen, and the son of an elder brother, is disabled to inherit the earl. A. and B. brothers, A. is an alien or person attainted, and hath issue C. and dies and C. purchaseth lands and dies without issue. B. his uncle shall not inherit for the reason before going ; for A. is the medius ancestor which was disabled. This was Courtney's case, 3 Inst. 241. And if in our case Patrick the son of Nicholas, altho' a denizen born, had purchased lands and died without issue, John his uncle should not have inherited him by reason of the disability of Nicholas ; and yet Nicholas himself, had he not been an alien, could not immediately have inherited to his son ; but yet he is a block in the way to John. See the reason 17 E. 4, 9, the case of Appeals. But this must be intended of such as are absolute impediments, as attainder or alien, not temporary suspensions : as in The Lord Ddaivare's case in 11 Co. 1. But in any descents the impediment of an ancestor that is not medius ancestor, between the persons from whom and to whom, will not impede the descent. The grandfather and grandmother both aliens, or attaint of treason, have issue the father a denizen, who hath issue the sou a denizen ; tho son shall be heir to the father...
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