gree; then from his son to his son, that is the fourth degree. 1 Inst. 23.

But by the canon law, there is another computation. For the canonists do ever begin from the stock, namely, from the person of whom they do descend, of whose distance the question is. For example, if the question be, In what degree the sons of the two brothers stand by the canon law, we must begin from the grandfather, and descend to one son, that is one degree; then descend to his son, that is another degree; then descend again from the grandfather to his other son, that is one degree; then descend to his son, that is a second degree. So in what degree either of them are distant from the common stock, in the same degree they are distant between themselves. And if they be not equally distant, then we must observe another rule, viz. in what degree the most remote is distant from the [406] common stock, in the same degree they are distant between themselves; and so the most remote makes the degree. 1 Inst. 24. Collateral kinsmen agree with the lineal in this, that they descend from the same stock or ancestor; but they differ in this, that they do not descend from each other. Collateral kinsmen then are such as lineally spring from one and the same ancestor, who is the stirps, root, or common stock, from whence these relations are branched out. As if John has two sons, who have each a numerous issue; both these issues are lineally descended from John as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguinei. Blackst. Desc. 9, 10.

And the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus John and his brother are related: why? because both are derived from one father: John and his first cousin are related; why? because both descend from the same grandfather and his second cousin's claim to consanguinity is this, that they both are derived from one and the same greatgrandfather. In short, as many ancestors as a man hath, so many common stocks he hath, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended; the obvious and undeniable consequence is, that all men are in some degree related to each other. Id. 10, 11.

The different manner of calculating the degrees, may perhaps be better apprehended by the following table: wherein it is to be observed, that the numeral roman letters at the top express the degrees by the civil law, and the figures at the bottom express the degrees by the canon law.

17

And here it is evident, that the degrees in the descending an ascending lines are by both laws the same. Thus the son i in the first degree, the grandson in the second, and the great grandson in the third, by both laws, in the descending line. Sc the father is in the first degree, the grandfather in the second, and the greatgrandfather in the third, and so on, by both laws, in the ascending line.

But in the collateral line the calculation is different.

Thus the cousin german is in the fourth degree by the civil law, and in the second degree by the canon law. For by the civil law, we ascend first to the father, which is one degree; from him to the common ancestor the grandfather, which is the second degree; from the grandfather we descend to the uncle, which is the third degree; and from the uncle to the cousin german, which is the fourth degree. But by the canon law, we begin at the common ancestor, the grandfather, and reckon downwards from him to the father, which is one degree; from the father to the intestate is the second degree: so, on the other side, from the grandfather to the uncle is the first degree; and from the uncle to the cousin german is the second degree: and by what degree they are distant from the common ancestor, by the same degree they are distant from each other, that is, in the second canonical degree. So in reckoning to the son of the nephew, or brother's grandson: by the civil law we ascend to the father, which is one degree; from the father we descend to the brother, which is the second degree; from the brother to the nephew, which is the third degree; and from the nephew to the son of the nephew, which is the fourth degree. But by the canon law we begin at the common ancestor, the father, and reckon down from him to the intestate, which is one degree: then on the other side, from the same common ancestor the father to the brother is one degree; from the brother to the nephew is the second degree; and from the nephew to the son of the nephew is the third degree: and by the rule before laid down, in what degree the further of them is distant from the common ancestor, in the same degree they are distant from each other; so that here the intestate and the son of his nephew, or brother's grandson, are distant by the canon law in the third degree of kindred. And the reason of the different methods of computing the demethods of grees of consanguinity in the collateral line, between the civil law on the one hand, and the canon law on the other, seemeth to be this: the civil law regards consanguinity principally with respect to successions, and therein very naturally considers only consangui- the person deceased, to whom the relation is claimed; it therefore nity by the counts the degrees of kindred according to the number of persons through whom the claim must be derived from him, and makes not only the son of his nephew, but also his cousin ger

[Reason for the different

computing

the collateral degrees of

civil and canon

laws.]

man, to be both related to him in the fourth degree, because there
are three persons between him and each of them.
The canon
law regards consanguinity principally with a view to prevent
incestuous marriages, between those who have a large portion of
the same blood running in their respective veins; and therefore
looks up to the author of that blood, or the common ancestor,
reckoning the degrees from him: so that the son of the nephew
is related in the third canonical degree to the person proposed,
and the cousin german in the second; the former being distant
three degrees from the common ancestor, and therefore deriving
only one-fourth of his blood from the same fountain with the
person proposed; the latter, and also the person proposed being
each of them distant only two degrees from the common ancestor,
and therefore having one half of each of their bloods the same.
Blackst. Desc. 41, 42.

For persons descended from one common ancestor, in the first degree, have the whole blood of their said common ancestor; in the second degree, they have but half the blood of the said common ancestor; in the third degree, they have but half of that half, that is, one-fourth; in the fourth degree, only half of that fourth, that is, one-eighth; in the fifth degree, onesisteenth; and so on in infinitum.

The common law regards consanguinity principally with respect to descents; and having therein the same object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts its degrees in the same manner. (8) Indeed the designation of person, in seeking for the next of kin, will come to exactly the same end (though the degrees will be differently numbered) whichever method of computation we suppose the law of England to use; since the right of representation in the descent of real estates (of the father by the son, and so on) is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degrees of [410] kindred, as (for instance) uncles and nephews of the deceased; which multiplicity, though no inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion, where the right of sole succession, as with us, is established. The issue or descendents therefore of the brother of John, are all of them in the first degree of kindred, with respect to inheritances, as their father when living was those

(8) But see even as to calculating descents of real estates. 2 Bla. Com. 207. n. (4) 227. n. (12) by Christian.

of his uncle in the second; and so on; and are called to the succession in right of such their representative proximity.

The right of representation being thus established, the rule with regard to the descent of real estates amounts to this; that, on failure of issue of the person last seised, the inheritance shall descend to the issue of his next immediate ancestor. Thus if John dies without issue, his estate shall descend to his brother, who is lineally descended from his next immediate ancestor, their father. On failure of brethren, or sisters, and their issue, it shall descend to the uncle of John, the lineal descendant of their common ancestor, the grandfather; and so on. Blackst. Desc. 41, 42.

But this representation in infinitum amongst collaterals, is not admitted in the succession to personal estate, the same being restrained and limited by the statute (as will appear afterwards).

In the case of Wingate and Fitch, M. 21. Ja. Administration upon the statute of Hen. 8. was granted to the brother of the half-blood. The brother of the whole blood appealed to the delegates, alleging that he was nearer of kin by the ecclesiastical law; and the delegates inclining to repeal the administration, and to grant it to the brother of the whole blood, a prohibition was granted to try the matter thereupon by the common law; for this being ordained by statute, it was said, that it ought to be interpreted according to the common law. 2 Roll's Abr. 303.

And in the case of Blackborough and Davis, E. 13 W. Holt chief justice said, that the construction of the statute of distribution, on the proximity of degrees, must be according to the common law. 12 Mod. 616.

But the more modern cases seem to suppose, that the said statute, being made in an ecclesiastical matter, shall be construed according to the rules of the civil law. (9)

Upon which account, the learned Dr. Harris observes, that [411] the three first chapters of the 118th Novel of Justinian deserve the reader's attentive consideration; not only because they contain the latest policy of the civil law, in regard to the disposition of intestate's estates; but because they are the foundation of our statute law in this respect. And they are still (he says) almost of continual use, by being the general guide of the courts in England, which hold cognizance of distributions, in all those cases, concerning which our own laws have been either silent, or not sufficiently express. Har. Justin. ad finem.

Prec. Ch. 594. Carter

(9) See Mentney v. Petty, T. 1722. v. Crawley, T. Raym. 496. 506. Lloyd v. Tench, 2 Ves. 215. Pett's case, 1 P. Wms. 25. Bowers v. Littlewood, id. 595. tericke, 1 Ves. 333. Wallis v. Hodson, 2 Atk. 118.

Thomas v. Ket