[failure of issue, the father or other lineal ancestor was himself said to be the heir, though long since dead, as being represented by the persons of his issue, who were held to succeed, not in their own rights, as brethren, uncles, &c., but in right of representation, as the offspring of the father, grandfather, &c. of the deceased (z).]

As to the remaining branch of the Rule, viz. that which regards the distinction between the whole and half-blood, -it results from the first branch thereof (taken in connection with Rule VI.) that the collateral heir of the purchaser is the issue of the nearest of his lineal ancestors in the preferable line, who has left posterity living at the death of the purchaser, subject to the principles as to sex, primogeniture, and representation. But among such issue, some may be relations to the purchaser of the whole blood, and some of the half-blood only; and it is consequently necessary to lay down an additional principle to determine whether both these classes are admissible, and whether any and what precedency is to be allowed between them.

[A kinsman of the whole blood, is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For every man's blood is compounded of the bloods of his respective ancestors; and he only is of the whole or entire blood with another, who hath, so far as the distance of degrees will permit, all the same ingredients in the composition of his blood, that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, has entirely the same blood with John Stiles, or he is his brother of the whole blood (a). But if, after the death of Geoffrey, Lucy Baker the mother, marries a second husband, Lewis Gay, and hath issue by him, the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis (a) Table of Descent (No. II.)

(x) Num. c. 27; Seld. de Succ. Ebræor. c. 12.

[Gay instead of Geoffrey Stiles on the other part, it hath therefore only half the same ingredients with that of John Stiles, so that he is only his brother of the half-blood.] So also if the father has two sons, A. and B., by different wives (or, according to the technical expression, by different venters), now these brethren are not brethren of the whole blood, but of the half-blood only.

The Inheritance Act assigns to such of the purchaser's collateral kinsmen as are of the whole blood, and their issue, the preference to those who are of the half-blood only, in the same degree, but admits the latter to the next place in the succession (b). Thus if the father have a son A., by one venter,-and two sons, B. and C., and a daughter by another venter,-and B. purchases land, and dies without issue, and the father be also dead, C., the younger brother, or, on failure of C. and his issue, the sister, shall succeed in preference to A., the elder brother. But the latter (though only of the half-blood), and his issue, will succeed in preference to any collateral relation not descended from B.'s father, though of the whole blood with B. So on the death of John Stiles the purchaser, in the annexed Table (No. II.), without issue, his father Geoffrey being also dead, he will be succeeded, not only by his elder brother Francis, or his second brother Oliver, but even by his sisters Bridget and Alice, in preference to his half-brother, the son of his mother Lucy and Lewis Gay, who cannot indeed inherit until the paternal line are exhausted; for his mother, whom he represents, could not (by the sixth rule) have taken while any of the paternal line remained. But the son of Lucy and Lewis Gray (and his issue after him) will stand next to his mother, in the order of succession, and in preference to any other collateral relation of John Stiles ex parte maternâ, though of the whole blood with John Stiles.

In the admission of the half-blood, the Inheritance Act introduces a new principle of inheritance; for, as the law

(b) 3 & 4 Will. 4, c. 106, s. 9.

before stood, the half-blood (like the lineal ancestor) were totally excluded, and the land would rather escheat to the lord than go to any kinsman (however near), bearing that kind of relation to the person from whom descent was to be traced. Therefore A. in one of the cases just supposed, and the son of Lucy and Lewis Gay in the other, would have been absolutely incapable of the succession. Nay, even when a father died, and his lands descended to his eldest son A., who entered thereon, and died seised without issue, still B., the son of the same father by another venter, could not be heir to these lands, because he was only of the half-blood 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 (c).]

This exclusion of the half-blood was a feature almost peculiar to the law of England (d); 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 ; (c) 2 Bl. Com. 227. (d) 2 Bl. Com. 228.

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 half-blood 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, beyond or higher than the common stock, the same with those of the deceased.

[To illustrate this by example:-Let there be John Stiles and his brother Francis, by the same father and 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 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 antient 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 (e). It was obvious, however, even to the apologists themselves, that the exclusion was carried further in practice than the principle on which it was founded would warrant: for a kinsman of the halfblood 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 a remoter degree, and in other instances a much greater. Thus a brother of the half-blood would have the same chance as an uncle

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

of the whole, on the same side, and more than a great uncle and yet, in these instances, the remoter kinsman was always admissible, while the nearer was incompetent to succeed. The rule of exclusion was, besides, applied even where the deceased tenant did not take by purchase, but by descent, and had a relative of the half-blood known to be descended as well as himself from the purchaser;as in the case already noticed, where upon the death of A. without issue, seised of lands which had descended to him, from his father, his half-brother B., son of the same father, was debarred from the inheritance. [This was universally allowed to carry a hardship with it, even upon feudal 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 versú (f); 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 (g), extends no further than this, frater fratri uterino non succedet in hæreditate paternâ. 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 (h), 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 the sixth to Queen Mary, and from her to (h) Plowd. 245; Co. Litt. 15 b.

(f) Gr. Coustom. c. 25.

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