The pandectes of the law of nations contayning seuerall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord. Giuing great light to the vnderstanding and opening of the principall obiects, questions, rules, and cases of the ciuill law, and common lawe of this realme of England. Compiled by William Fulbecke.

The third Chapter.

That the worthinesse of blood hath beene principally respected of all nations.

THe diuision of inheritances in stirpes, & in capita, hath made great diuision in diuerse common weales, yet in all of them the worthinesse of bloud hath beene regarded: By the Romane law the sonne of

the elder sonne who is dead shall equally suc∣ceede in the inheritance with the second sonne. And whereas in Germanie there was a conten∣tion betwixt the vncles and nephewes of the right of inheritances, and for the deciding of it, the Emperour Otto the first, did cause a Parliament or generall assemblie of estates to be held for the dis∣ceptation, and deciding of this doubt: When after much busines and argument, no determina∣tion could be had, the matter was ordeined to be tried by single combate, an vsuall thing in these daies (for it was about the yeare of the incarnati∣on of our Sauiour nine hundred fortie and twoa) 1.1) and a formall triall referred to God, when mans wit was at a nonplus: But in this case, that part ouercame which did accompt the sonnes of elder sonnes as sonnes; and therefore it was ratified by Law, that they should equally diuide the inheri∣tance with their vncles. Amongest other nations diuers contentions haue risen about this matter: for when Eunomus the King of the Lacedemonians had two sonnes, Polydectes the elder, and Lycurgus the yonger, and Polydectes deceased leauing no sonne lyuing at the time of his death, and there∣fore Eunomus being dead, the septer of that king∣dome came to the handes of Lycurgus: afterward when Polydectes his widow had brought forth a sonne, Lycurgus did willingly, and readilie yeeld to him the septerb) 1.2: Which act of Lycurgus agreeth fully with our Law, whereby it is ruled, that if a

man haue a sonne, and a daughter, and the sonne purchaseth land, and dyeth, and the daughter en∣treth, and after the father begetteth an other sonne of the same wife, this sonne shall haue the landc) 1.3. So if a man enfeoffe an other vpon condition, and the condition is broken, and the feoffor dyeth without issue his wife priuement enseint, and the brother of the feoffor entreth for the condition broken, and after a sonne is borne, he shall auoide the possession of his vncle, & may lawfully claime the inheritanced) 1.4. And it is likewise said, that after two, or more discents, the heire afterward borne claiming by discent may enter into the land; but he shall not haue a writ of Accompt for the mesne profites, nor any writ of Waste) 1.5. But in cases of purchase the Law taketh a difference, and therfore it is said 5. E. 4. by Billing, that if a man deuise land to a man, and his heire, and the deuisee dieth ha∣uing issue a daughter, his wife being priuement en∣seint with a sonne, who is afterward borne, the daughter shal reteine the land in perpetuum, which the Court grauntedf) 1.6. And 9. H. 6. it is said, that if a remainder cannot veste in any at the time when it falleth, it shall not veste in him that is borne afterward, where an other hath entred beforeg) 1.7. But to retourne to the examination of this matter by historie, Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead, a con∣trouersie sprung betwixt Areus the sonne of Aco∣ratus the eldest sonne of Cleomenes, who died be∣fore

his father, and Cleonymus the second sonne, the vncle of Areus, but by Senate-decree the king∣dome was adiudged to Areush) 1.8. And Polydore Vir∣gill reporteth that king Edward the third being de∣ceased, Richard the second, the sonne of his eldest sonne obteined the kingdome, and was preferred before Iohn, Edmund, and Thomas, the sonnes of king Edwardi) 1.9. Paulus Aemilius an excellent wri∣ter of the matters of Fraunce likewise telleth, that when Hanno had inuaded the kingdome, and ex∣pulsed Erkenbalde the sonne of his elder bro∣ther, this matter was brought into question: in the ende Hanno was constrayned to laie aside armes, and to stande to the iudgement of the Peeres, who adiudged that Erkenbalde should haue the same power and interest in the king∣dome, which his father might haue had if he had suruiuedk) 1.10. Neither will I denie that examples may be produced on the contrarie part: as name∣lie the contention betwixt Artemenes and Xerxes for the kingdome of Persia: for it is deliuered by Herodotusl) 1.11, Iustinm) 1.12, Plutarchn) 1.13, that a controuer∣sie beeing raysed in the kingdome of Persia be∣twixt Artabazanes (as Herodotus) Artemenes, as (Iustinus calleth him) and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia, Demaratus was at the same time there, who was driuen and expulsed out of the kingdome of Sparta, and he signified vnto them, that the Law and custome of the Spartanes

was, that the sonne that was borne after the father had attained to the kingdome, was to be preferred before the elder brother who was borne before; for which cause the kingdome was adiudged to Xerxes the yonger sonne, who was borne of Da∣rius being king, whereas the other was begotten of him being a priuate man: But this iudgement was after reuersed; For when after the death of Darius, the same controuersie was handled be∣twixt Arsica begotten of Darius being a priuate man, and Cyrus being borne of him after his ad∣uauncement to the kingdome, and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes, and his brother, the Persians notwithstanding the former iudge∣ment, did now adiudge the kingdome to Arsicao) 1.14. Neither am I moued though in the contention for the Dukedome of Millayne, betwixt Lodwike and Galeatius bretheren, whereof the one was borne before his father obteined the Dukedome, the other after, the contrarie were determined for Lawp) 1.15: For by the most examples of euery com∣mon weale, and by the continuall practise of na∣tions most ciuill (which onely course I obserue in this discourse) the right of Primogeniture, or elder-brothership is fenced, supported, and defen∣ded against this last decree of the Millanasses, and that first of the Persians: For Herod the king of the Iewes, did preferre in the succession of his kingdome Antipater, who was borne before he

was king, before Alexander and Aristobulus be∣gotten after he was kingq) 1.16. And many yeares af∣ter in Hungarie, Bela their king being dead, Geysa being borne when he was a priuate man was in∣uested with the Crowner) 1.17: and before that Otto the first could be setled in the Empire of Rome, his brother Henry made a quarrell to it, because he was borne when his father was Emperor: But the matter discending to armes, and battaile, victorie did adiudge the Empire to Ottos) 1.18: Wherefore two or more contrarie examples are not in this case to be regarded; As that of Genzericus the king of the Vandales, who made his testament in this forme, or rather this Law in forme of his testa∣ment, Si Rex moritur, qui ei genere proximus, et natu maximus erit regni haeres esto: for Procopius no∣teth his great age when he made this Law, and it may be that others will note him for his dotage if he did amisse, for his discretion, if he did it to pre∣uent a daungert) 1.19. So when Charles the king of Sicely died he had two sonnes, Charles Martell, and Robert: Martellus died liuing his father, but leauing a sonne, whereupon the Lawyers had plentiful matter of disputation offered vnto them, whether the sonnes sonne should be preferred be∣fore the vncle in the possession of his graundfa∣ther: but by the Popes meanes, Robert obteyned the kingdome: But the Emperour Fredericke re∣uersed this sentence, and the Pope cancelled his rescript ^r. But D. Bartolus giueth this reason of

the Popes doinges, because the kingdome of Sicilia was one of the fees of the Church of Rome, so that it did not belong to Robert by any lawfull succession, but by the graunt and inuestiture of the Lord of the feex) 1.20. Neither is it materiall that the Nomades, Barbarians, did preferre the yonger bretherne before the chil∣dren of the elder bretherne, as Strabo repor∣teth: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.a) 1.21 yet I will graunt that in the succession of regall digni∣ties, the worthines of bloud is lesse to bee re∣spected, then in the succession of common in∣heritances, because in that case the commo∣ditie of the subiectes, and the abilitie of them that are to succeede is politikelie to bee re∣spected: And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes, the pro∣fite, peace, and safetie of the same, is more to be heeded quàm sanguinis series, the course of bloudb) 1.22. And Roboam preferred Abias his yonger sonne, before his elder bretherne in the succession of his kingdomec) 1.23. And Salomon the yonger brotherd) 1.24 was preferred before his elder bretherne: But this must be done warilie, and by the warrant of a good conscience; other∣wise it can neyther please God, nor profite man, least a king doe by his choise preiudice his subiectes; as Micipsa did by the adoption of

Iugurthae) 1.25. But the reasons are manie and force∣able, wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected. First, Ius quod personae inest per modum substantiae, est ab ea insepara∣bile, et in nullo alio subiecto potest verificarif) 1.26. But ius primogeniturae is in the eldest sonne, or in his issue per modum substantiae: therefore it is inseparable from him, and cannot extende to any other. Secondly, the aucthoritie of Vl∣pian prooueth it, affirming that hee is a pa∣tritian, who is borne before his father was made a Senator, as well as he, who is borne after that hee is possessed of the Senatorie cal∣lingg) 1.27. Thirdly, it is apparant by manie pla∣ces in the feudall Law, that sonnes and ne∣phewes may succeede in the fees, and inheri∣tances of Dukes, Marquesses, and Earles: and so it is of the inferiour and vulgar sort of men. And it is well said of D. Hotoman: Ius sangui∣nis quod in legitimis successionibus spectatur, ipso natiuitatis tempore quaesitum est. Fourthly, it should bee against all Lawes proximitatis gra∣duum, that they which are in a more remote de∣gree the worthines of consanguinitie should be preferred before them that are in a neerer degree. Fifthly, because Primogenitura is an insepara∣ble incident to the eldest sonne, and whatso∣euer is claymed by this, must bee claymed by

the person of the eldest sonne, and none can suc∣ceede in the place of the first begotten as first begotten, because there cannot be two first be∣gotten: But no Law more respecteth the worthi∣nes of bloud then the common Law, which pre∣ferreth the brother before the sister in case of dis∣cent: the elder brother before the yonger, where∣as the middle brother purchaseth land: the sister before the vncle, and the vncle before the co∣sinh) 1.28, and all these particular prerogatiues of kin∣red Mast. Littleton windeth vp as it were in one clew, when he saith, that when a man purcha∣seth land in fee simple, and dieth without issue, euery one, that is his next cosin collaterall for default of issue may inherite: and therefore it was well and wisely agreed by the Iustices deci∣mo quinto Elizab. in Cleeres case, that in a colla∣terall discent from any which purchaseth landes, and tenements, and dyeth without issue, the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree, as the brother of the graundfather of the fathers side, and his issues be they male or female shall be preferred before the brother of the graund∣mother of the father side and his issues: And so the brother of the great graundfather of the fathers side, namely the brother of the father, of the father, of the father of the purchasour and his issues bee they male or female shall

bee preferred before the mother of the great grandmother, namely the brother of the mother of the father of the father of the purchasor and his issues. For the female sexe is more base then the male in lawe. And it was likewise agreede, that if the purchasor dyed without issue, and hath not any heire of the part of the father that the land shall discend to the next heire of the parte of the mother, that is, to the race of the heyre of the males of whence the mother is discended, ra∣ther then to others, and in this case of Clere be∣cause the bloud which was betwixt the vncle of the part of the mother of the heire, and the heire himselfe came immediatly by the womā, but the bloud which was betwixt the cosin germane of the fathers side, & him though it came originally from the woman, namely the grandmother, yet it is deriued to the heire by the males, so that the dignitie of the bloud doth surprise and excell the proximitie of the degree; therefore it was adiud∣ged that the cosin should haue the land.i) 1.29

Notes

• a) 1.1

  Witichiu∣dus lib. 2. hi∣stor. 2. Sige∣bert in chro∣nic. Ottonis 1.
• b) 1.2

  Plut. in vit. Lycurg. Iustin. lib. hist. 3.
• c) 1.3

  19. H. 6. 6.
• d) 1.4

  9. H. 7. 25.
• e) 1.5

  9. H. 6. 23.
• f) 1.6

  5. E. 4. 6.
• g) 1.7

  9. H. 6. 23. 3. Eliz. 190. pla. 18.
• h) 1.8

  Pausan. lib. 3.
• i) 1.9

  Polyd. virg. in hist. reg. Angl.
• k) 1.10

  Paul. Aemil. in tit. Carol. Crass.
• l) 1.11

  Herodot. lib. 7.
• m) 1.12

  Iustinus lib. 11.
• n) 1.13

  Plut. in Ar∣taxerx.
• o) 1.14

  Plut. in vit. Artaxerx.
• p) 1.15

  Guicciard. lib. 1. histor.
• q) 1.16

  Ioseph. lib. antiquit. 16.
• r) 1.17

  Fl. Blondus Decad. 2. lib. 6. Micha. Ri∣tius lib. de re∣gi. Hungar. 2.
• s) 1.18

  Sigebert. in Chron.
• t) 1.19

  Procop. lib. de bel. Vandal.
• x) 1.20

  Barto. in Arth. post fratr. C. de legit. hered.
• a) 1.21

  Strabo lib. 16.
• b) 1.22

  Luc. de Pen. in 5. nepot. C. qui num. lib. 10. et in l. 1. C. de lyro. lib. 12. Bald. in c. 1. de feud. March.
• c) 1.23

  .2 paralip. 11
• d) 1.24

  2. Reg. 1.
• e) 1.25

  Salust. in bel. Iugurth.
• f) 1.26

  Arg. l. for did. C. de ex∣cus. mun. lib. 10.
• g) 1.27

  l. Senator. S. D. de Senat.
• h) 1.28

  Littlet. tit. Fee simple.
• i) 1.29

  15. Eliz. comm. cleres case. 442.