#### John Doe on the several demises of Wm. B. Sheppard and wife and others, v. William Sheppard.

From [Pasquotank.

*334Claim of the half blood in the case of a purchased estate.

Samuel Swann, sen. devised the lands in tail to his first son Samuel Swann, jun. and to his second and third sons in succession, to wit, John and Thomas, who were by a second wife. Samuel, the devisee, became seised in fee, by virtue of the act of 1784, ch. 22. He devised one part of the lands to John Swann, one of his brothers of the maternal half blood, and another part to Thomas Swann, another brother of the maternal half blood.

John died intestate, leaving' issue, Samuel Johnston Swann, who died intestate and without issue. Thomas Swann died intestate and without issue, leaving Mary, a maternal sister of the half blood, and the said Samuel Johnston Swann, a nephew of the whole blood.

A question arose who were entitled to the lands ? the kindred on the paternal side, who were further in degree ; or the maternal half sister. The kindred on the paternal side are the lessors of the Plaintiff; the maternal half sister, the Defendant’s wife.

The maternal half sister is entitled to the lands, for

1. Both John Swann and Thomas Swann tpok the lands as purchasers,— and the same person who would have been the heir of John Swann, had he died without issue, is the heir of Samuel Johnstoii Swann.

At the common law, the principle upon which the law of collateral inheritances depends is, that upon the failure of the issue in the last proprietor, the estate shall descend to the blood of the first purchaser. And he who would have been heir to the father of the deceased, shall be heir to the son.

When a man purchased an estate, he took it as a feudum novum, descen-dible to his heirs general, first of the paternal and then of the maternal line. If he died without issue, or brother or sister, or the issue of such, his eldest paternal uncle would take : if there were no such uncle or the issue of such, then his paternal aunts. If there were neither, nor the issue of such, then his eldest great uncle of tire line of his paternal grand-father, and so on until that line be exhausted, always giving a preference to the male stocks. On the failure of blood in the line of the paternal grandfather, then the same rule was to be followed as to the paternal grandmother’s line. If that fail, then the maternal grandfather’s line was to inherit. On the failure of that line, then the maternal grandmother’s line was to be sought for.

The issue of the eldest son of William Swann, who was the brother of Samuel Swann the elder, would be the heir of Samuel Johnston Swann at common law.

2. But the act of 1784, ch. 22, has let the half blood into the inheritance, ■when that half blood is in the line of inheritance. That act does not change or alter the stocks or genealogical lines, as they were known at common law. They remain the same, with the addition of the half blood, when in those lines.

*335Mary, tlie wife of William Sheppard, is the heir entitled to tírese lands under the act of 1784; because she is next in the degree of the blood of the purchasers, being a sister ; and although of the half blood, the 3d and 4th sections of that act render her capable of inheriting.

The half blood shall not inherit when out of the common law stocks or lines, although in equal or in a nearer degree. Thus, where land descends on the side of the father to a son, who dies without issue, leaving a half blood brother on the maternal side, and an uncle or more remote relation of the whole or half blood on tile paternal side ; the relation next in degree on the paternal side, shall inherit. 1st, because he is of the blood of the first purchaser. 2dly, the proviso to the 3d section of tile act of 1784, declares that the maternal half blood brother shall not inherit, until such paternal line be exhausted of the half blood, and of course, of the whole blood. Heirs shall be sought for in the paternal line ad infinitum., before any of the maternal kindred shall inherit, however near in degree. — And e converso, where the lands shall descend on the maternal line.

Special verdict — "The Jury.find that the premises " described in the Plantiff’s declaration comprehend two « tracts of land, one of 300 acres devised in fee, about the “ year 1733, by Thomas Swann the elder, to bis eldest " son Samuel $ and another of 367 acres, purchased in “ tlie year 1752, from the agents of Lord Granville, by the “ said Samuel himself; which said two tracts are known " by the name of the Elm Plantation.

" And the Jury further find, that the said Samuel “ Swann, being so seised of the premises, duly made and “ published his last will in writing, hearing date the 31st “ October 1766 j and therein and thereby devised the said “ premises to his eldest son “ Samuel, and the heirs of his " body lawfully begotten, and for the want of such, to his " second son John, and the heirs of his body lawfully “ begotten, and for the want of such, to his third son Stc- " phen, and the heirs of his body lawfully begotten, and “ for the want of such to the child with which his wife was <e then pregnant (who was afterwards born and named Thomas) and the heirs of its body lawfully begotten “ and afterwards died without revoking or altering the " said will.

*336« And the Jury further find, that after the death of the ££ said Samuel Swann, the elder, Samuel the devisee “ entered upon the premises by virtue of the said devise, <f amj was thereof seised ; and being so seised, duly made “ and published in writing' his last will, bearing’ date the1 “ 24th May 1786, and therein and thereby devised the “ said premises to his brother John Swann, the aforesaid “ second son of the said Samuel the elder, to him the said “ John and his heirs for ever ; and afterwards died with- ££ out revoking or altering the said will.

“ And the Jury further find, that the said John Swann, “ after the death of his said brother Samuel, entered upon “ the premises and ivas thereof seised, and being so seised, ££ afterwards, to wit, on the Sd day of March 17i?o, £< intestate, leaving an only child, Samuel Johnston Swann, ££ to whom the said premises descended, and he entered “ and was thereof seised.

£i And the Jury further find, that the said Samuel John- “ ston Swann, afterwards, to wit, on the 11th day of Fe- ££ bruary 1796, died intestate and without issue, or bro- “ thel’s or sisters, or the issue of such.

££ And the Jury further find, that the aforesaid Samuel C£ Swann the younger, was the only child of his father ££ Samuel the elder, by a first wife, and that the aforesaid ££ John Swann, Stephen Swann and Thomas Swann, were ££ children of the said Samuel the elder by a second wife. ££ And that after the death of the said Samuel the elder, ££ his widow intermarried with Frederick Blount, by ££ whom she had issue a daughter, Mary, now the wife of ££ William Sheppard of Ncwbern, under whom the Defen- <£ dant claims the premises, and which said Mary is the ,££ nearest collateral relation of the said Samuel Johnston ££ Swann, either paternal or maternal, the aforesaid Sam- <£ uel Swann the younger, Stephen Swann and Thomas ££ Swann the younger, being dead without issue.

££ And the Jury further find, that at the time of the ££ devise herein before mentioned, from Samuel Swann the *337“ younger to bis brother John, the aforesaid Thomas “ Swann the younger was in full life.

“ And the Jury further find, that the aforesaid Samuel “ Swann the younger, was at his death seised of another “ tract of land, which he devised to his brother, the afore- “ said Thomas Swann the younger ; that the value of the “ said tract was ¿2,000 : and the value of the premises “ contained in the Plaintiff’s declaration, was ¿6,000.

“ And the Jury further find, that Samuel Swann the “.elder, had a brother named William Swann, and a sis- “ ter, Elizabeth Tail, who are long since deceased. That “ the said William Swann left issue, all of whom are “ since dead, and of whom two only, John and Willson “ have left issue. That Rebeccah, the wife of William B. “ Shepard, and one of the lessors of the Plaintiff, is the “ daughter and only child of the said John. And that “ Polly, the wife of Isaac Williams, and Comfort, the “ wife of Daniel Williams, (which said Polly and Com- “ fort are also lessors of the Plaintiff) are the only ch.il- “ dren of the said Willson. That Elizabeth -Tail, the “ sister of Samuel Swann the elder, left issue Elizabeth “ Pemburn and Rebeccah Williamson, both of whom were “ in being at the death of Samuel Johnston Swann, and “■who, afterwards, duly conveyed and released all their “ right, estate and interest in the premises unto Mary, the “ wife of William Shepard of Newbern, under whom the “ Defendant claims.

“ The Jury further find, that the demises set forth in “ the Plaintiff’s declaration, were executed on the day, “ and in the manner therein set forth ; and afterwards, “ to wit, on the said day, by virtue of the said demises,- “ that the said John Doe entered into the premises with “ the appurtenances and was thereof possessed 3 and that “ the said John Doe being so possessed, the Defendant, by “command of the said William Shepard of Newbern, “ and Mary his wife, afterwards, to wit, on the same day, “ entered upon the premises with the appurtenances in and *338upon the possession of the said John Doe thereof, and {i ejected him from bis said farm. But whether upon the iS whole matter aforesaid, the said Defendant be guilty of (( ^¡(j sa^{j trespass and ejectment complained ol‘ in the “ said declaration, the Jury are ignorant, a)id thereof pray “ the advice and consideration of the Court.

“ If it shall appear to the Court, upon the whole matter, iS that the lessors of tlie I’mintiff, or any of them, had title “ to the whole of the premises, at tlie date of their respcC- “ tivc demises aforesaid, then tlie Jury say, that the De- “ fendant is guilty of the trespass and ejectment in manner e< and form as tlie said John Doe hath complained of, and “ assess the damages of the said John Doc to one shilling Si and costs : If it shall appear to the Court, that the les‘s sows of tlie PlainihT, or any of them, had not title to the i,! whole, hut had title to any undivided part of the prcini- “ scs, at the date of their aforesaid demises, then the Jury find that the Defendant is guilty of the trespass and u ejectment complained of, as to such part only of the pre- “ mises, and not guilty of the residue, and assess the dama- “ ges of the said John Doc, to six-pence and costs : And if “ it shall appear to the Court, that the said lessors of the “ Plaintiff, nor any of them, had not, at the date of the demises aforesaid, title to the whole, nor any part of the premises, then tlie Jury say, that the Defendant is not guilty of the trespass and ejectment, whereof the said “ John Doe hath complained.”

The questions of law arising out of this special verdict, were argued in this Court, in the case of “ Don on the de- “ mise of William B. Shepard and Wife, and others, v. Josiah Rolf,” in the year 1807". In tlie special verdict then sent up, an additional fact was inserted, to-wit, “ That “ after the death of Samuel Johnston Swann, to-wit, on “ the 30th day of November, 1803, his mother, Penelope “ Swann, widow of John Swann, conveyed all her right, i( title, interest, estate, claim and demand in and to the “ premises, to the said Mary, wife of the said William *339<• Shepard of Newbern.” The arguments then made on each side, were again relied on in this case for the respcc-tivc parties : and as the decision in this case, and in the one made at this term in the case of Ballard and others v. Hill and others,” have served in a great degree to settle questions that have been long agitated, and to establish an uniform rule of descent in such cases, the arguments delivered in the case of Shepard and others v. Rolf,” are here given, to shew the grounds of the diversity of opinion which has existed upon the construction of the act of 1784, ch. 22, regulating’ descents among collaterals. These arguments were delivered by Peter Browne, Esquire, for the lessors of the Plaintiff, who were the heirs at common law: and by William Gaston, Esquire, for hlary, the maternal half sister, wife of William Shepard, of Newborn, under whom Relf claimed.

Browne, for the lessors of the Plaintiff.

|t is obvious that some part of the special verdict in this cause has been inserted with a view of raising a question, Whether John Swann took by descent or by purchase ? Eat as I conceive that in either case the Plaintiff is entitled to recover, I shall not trouble the Court with it, conceiving it perfectly immaterial; if the Court, or any of its members, should think differently, to him or them I submit this part of the case without observation.

It is explicitly stated in the special verdict in this case,, that the lessors of the Plaintiff, or one of them, are, or is, the heirs or heir at common law; and, therefore, the Plaintiff must recover, unless lie is barred by some act of Assembly. And, accordingly, it has been contended by the counsel for the Defendant, that certain acts of Assembly have, in this particular instance, altered the common law course of descent, and given either

1st. The inheritance, or an estate for life, to the mother of S. J. Swann, the person dying last seized; or,

*3402dly. The inheritance to Mary, the wife of 'the real Defendant, who is sister of the maternal half-blood, to John Swann, who was father of the said S. J. Swann.

Whether either of these defences will avail the Defendant, must depend on the acts of Assembly themselves, and no assistance to either party can he drawn from the common law or hooks, except as to rules of construction.

The common law is a system of rules founded in reason, and supporting and supported by one another. It hath often happened, when any of these rules hath been altered by the Legislature, on account of a real or supposed hardship which existed under it, that the alteration itself hath occasioned more mischief and inconvenience than the original rule — that the remedy was worse than the disease— and the statute making the alteration hath been repealed, and the common law restored. 1 Bl. Com. 70. When a rule of the common law hath been altered, it hath soon been discovered that it was not a detached building, nor the extreme summit of the superstructure, but a part of the foundation, or so intimately connected and interwoven with the rest of the fabric, that it endangered the stability of a great part, or defaced the symmetry of the whole. Therefore the Courts have wisely said that they would make no alteration in the common law, by construction or implication, and that, whenever there was a doubt or ambiguity in a statute, they would construe it so as to suffer the rules of the common law to remain unaltered. Fitz. 233-4. If there shall, in this case, appear to be any doubt about the intention of the Legislature, the Plaintiff claims a favorable construction.

I will now proceed to a particular examination of the title which the Defendant sets up under the mother of S. J. Swann, the person dying last seised. Unless that title can be supported under § 7 of the act of April, 1784, ch. 22, it cannot, I conceive, be supported at all. It may not be improper here to cite two. principal rules for the *341construction of statutes. 44 1. There are three points i‘ (says Justice Blackstone) to be considered in the con-44 struction of all remedial statutes ; the old law, the mis-44 chief, and the remedy: that is, how the common law 44 stood at the making of the act; what the mischief was 44 for which the common law did not provide 5 and what 44 remedy the Legislature hath provided to cure the mis-44 chief. And it is the business of the Judges so to con-44 strue the act as to suppress the mischief and* advance 44 the remedy.” 1 Bl. Com. 87", 2. The preamble is a key to open the minds of the makers of the statute and the mischiefs they intended to redress. Plow. 269.

In the case now before the Court, the mother would be excluded from the inheritance, or any portion of it, by two rules of the common law: 1st. By that rule which ordains that inheritance shall never lineally ascend. 2 Bl. Com. 208. And 2dly. By that rule which ordains that the heir must be of the blood of the first purchaser, 2 Bl. Com. 220, which she is not, it being expressly stated in the spe- • cial verdict, that the lands in dispute came to her son, S. J. Swann, by descent from his father, John Swann. So stood the common law at the making of this act.

What was the mischief intended to be remedied ? The Legislature itself has answered this question in the preamble to said section as follows :

And whereas, by the law of descents, as it now stands, when any person seised of a real estate in fee simple, dies intestate, without issue, and not having any brother or sister, such estate descends to some collateral relation, notwithstanding that the intestate may have parents living, a doctrine grounded upon a maxim of law not founded in reason, and often iniquitous in its consequences.

Now what maxim of law is this which is not founded in reason ? Clearly that which declared that the inheritance of lands shall never ascend ; for in the case put in the preamble, there was no other maxim on which to ground the exclusion of both parents. In all cases where one brother purchased, and another inherited from him and then died, intestate, without issue, and not having any brother or sis-*342tor, or the issue of such, one of the parents would have been entitled, as the nearest heir of the blood of the first purchaser ; and in all cases where a child purchased and died intestate, without issue, and not having any brother or sister, or the issue of such, the father would be entitled, as the nearest male of the paternal line. So that neither the wile of the common law, giving preference to the blood of the first purchaser, nor that giving preference to male stocks, constitute the mischief recited in the preamble; for by neither of them, in the case put in the preamble, did the estate descend to a distant collateral relation; but it did so solely in consequence of the rule that inheritances should never ascend.

' Hut this maxim is. declared to be often (not always) iniquitous in its consequences; and as it is declared not to be in every case iniquitous in its consequences, we are prepared to expect that it will not he altered in every case. .And in what cases should we expect that no alteration would be made ? S urely i n those- where an alteration would take the estate of one family and give it to another : i. e. where, the lands have come to the deceased by descent. This, I take it, v/as the mischief, and, on examination, we shall find that the remedy, or enacting clause, applies to this mischief and no other.

I'e it therefore enacted by the authority aforesaid, That in case of any person dying intestate, possessed of an estate of inheritance, without leaving any issue, or not having' any brother or sister, or the lawful issue of such, who shall survive, the estate of such intestate shall be vested in fee simple in his or her parent from whom the same was derived.

This evidently means the case of a gift from the parent; for the fee simple is to vest in the parent (without naming his heirs) from whom the estate was derived (not inherited,) supposing that parent to he still alive, which could not possibly be, if the estate had come to the intestate by 'descent from the parent. And we may here remark the care with which the Legislature have provided for continuing the estate in the family to which it originally be*343longed. Hero they have made provision for that purpose in a casé where the common law did not. For if the mother had given lands in fee simple to a child, and it liad died intestate, without issue, and not having brother or sister, or the issue of such, who survived, then, as that child took as a purchaser, the inheritance would, by the common law, have vested in the collateral heir on the part of the father; but by this act it returns to the mother and her family.

Or if such estate was actually purchased or othcraise acquiror;, then the same shall be vested in the father of such intestate, if living'; but If dead, then in the mother of such intestate and her heirs; and if the mother of such intestate should be dead, then in the heirs of such intestate on the part of the father; and for want of heirs on the part of the father, then to the heirs of the intestate on the part of the mother.

It will not be pretended that the present case is included under the words actually purchased; if, then, it is within the operation of this clause at all, it must he because the words otherwise acquired comprehend estates in land which have come to the intestate by inheritance. Here, then, it is all-important to attend to the true and accurate meaning of the word acquired. To acquire title to lands, is am expression sometimes used by good writers in such a sense as would include the getting of them by inheritance 5 but this, I take it, is either from inattention, or for want of some other general term more accurately to express the1 r meaning; for the same writers, when they mean to express themselves with accuracy and precision, carefully distinguish between to acquire and to inherit. 1 El. Conn 458. But, in truth, acquire is not a technical term, and therefore its true meaning is to be searched for in eminent philological writings, and Dr. Johnson, in his Dictionary, (fol. edit.) defines it thus :

“ To acquire, v. a. (~acquirir Fr. acquire Lat.) To gain bj' one’s labour “ or power, to obtain what is not received from nature or transmit- “ ted by inheritance.”

And with this definition agrees the common understanding and practice. Every one would say that Bonaparte *344 acquired the crown of France, but no one, that Louis XVI —he inherited it.

These terms actually purchased, or otherwise acquired, arc^ ]loweyer^ extensive enough to include evei*y othci’ means of getting an estate in lands; and, as from the preamble, it appears that the Legislature considered the exclusion of the parents not always iniquitous, but in some cases right and just, in those cases they surely would continue their exclusion ; and, as that cannot be in any other cases than those in which the lands came by descent to the deceased, it will follow that in cases of that description the parents are still excluded as at common law. If the Legislature had entirely abolished the maxim of the common law, that the inheritance of lands shall never ascend, still, in cases like the present, where the lands came by descent from one parent, the other would have been excluded from the inheritance, as not being of the blood of the first purchaser. Vide a good argument against this title in 2 Hay w. Sep. 247.

Then let us examine the title which the Defendant sets up in light of his wife Mary, who is sister of the maternal half-blood to John Swann, from whom the lands descended to S. J. Swann, the person last seised.

If this title is good, it must be under the statute of April, 1784, chap. 22, § 3.

Let us see how the common law stood at the time of making this act, so far as this title is concerned.

If John Swann took by descent, the Defendant’s wife would have been excluded from the inheritance of the premises in question, because she was not of the blood of the first purchaser. 2 Bl. Com. 220.

Or, if John Swann took by purchase, she would have been excluded, because she was of the female, and not of the male, stock. 2 Bl. Com. 234.

Further, she would have been excluded, because she was only of the half-blood, even if she had been the near*345est relation of the male stock, or of the blood of the first purchaser. 2 Bl. Com. 224, and seq.

Thus stood the common law j and now for the mischief for which it did not provide.

As every part of the act of Assembly which could have the least bearing' on this subject hath been impressed into the service of one party or the other, it may here be necessary to take a review of the whole.

§1. Whereas it would tend to promote that equality of property, which is the spirit and principle of a genuine republic, that the real estate of persons dying' intestate should undergo a more general and equal distribution than has hitherto prevailed in this State.

This, which is a preamble to tlie three following' sections, and has therefore been inserted in a separate clause by itself, lias been relied upon by the counsel for the Defendant, with what propriety it is not for me to determine j hut I can see none: for if the real estate of persons dying intestate was to be equally distributed among all the citizens of'the State, it would he a more general and equal distribution than has hitherto prevailed in this State; and so would the simply abolishing the law of primogeniture occasion a more general and- equal distribution than has hitherto prevailed in this State; and that the latter (the law of primogeniture) was the only mischief which the Legislature there had in view, will appear clearly from § 2, which regulates lineal descents and solely abolishes the right of primogeniture, and makes a more general and equal distribution of the intestate’s real estate, by dividing it among all the sons, without admitting the daughters.

This second section contains in it no particular preamble, nor would Section 3, which regulates collateral descents, had not another mischief there come into the view of the Legislature, and which is therein set forth in a particular preamble.

111. And whereas it is almost peculiar to the law of Great Britain, and founded on principles of the feudal system, which no longer apply to that government, and can-never apply in this state, that the half blood should be excluded from the inheritance.

*346Tims the Legislature, have not left us to presume or conjecture what the mischiefs were which they intended to remedy; but, knowing that the ingenuity of man was superior to his sagacity, and that their intention might be ingeniously and plausibly misrepresented, they have been careful to state, in the preamble in the first section, the law of primogeniture, and in the preamble to the third section, the maxim that the half blood should be excluded from the inheritance, to be the only mischiefs which they, in this section, intended to remedy; and, for fear that we should not make the proper use of these preambles or keys, they begin the enacting clause or remedy, with a Be it therefore further enacted. Wherefore was it enacted ? Because the younger brothers were excluded from any portion of the inheritance by the eldest, and the half blood were excluded altogether: and this is the introduction to the only clause on which the Defendant’s counsel can at-1empt to support this title, and the enacting words of which are,

That ix any person dying intestate should, at the time of his or her death, be seised or possessed of, or have any right, title, or interest, in or to any estate or inheritance in lands or other real estate in fee simple, and without issue, such estate or inheritance shall descend to his or hex-brothers, and, for want of brothers, to his or her sisters, as well those of 1he half blood as those of the whole blood; to be divided among them equally, share and share alike, as tenants in connnon, and not as joint tenants; and each and every of them shall have, hold, and enjoy in their respective parts or portions such estate or inheritance as the intestate died seised and possessed of, or entitled unto.

This enacting clause may have either of two constructions put upon it. It may be construed to mean,

1st. That the lands shall descend to, and be equally divided between, all bis or her brothers, and, for want of such, all his or her sisters, as well those of the half blood as those of the whole blood, without any distinction as to their being of the half blood of the first purchaser or not, or whether of the paternal or maternal line. Or it may he construed to mean,

*3472dly. That the lands shall descend to, and be equally divided between, all his or her brothers, and, for want of such, all his or her sisters, as well those of tiie half blood as those of the whole blood, they being of the blood entitled to the inheritance by the rules of the common law.

Whichever of these constructions is put upon this clause, with regard to brothers and sisters, must be extended to more distant collateral relations, by the express words of the fourth section of the same act, which enacts

That the same rules of descent shall be observed in lineal descendants and collaterals respectively, where the- lineal descendants shall be further removed from their ancestor than grandchildren, and where the collaterals shall be further removed-than the children of brothers and sisters.

The Defendant’s counsel have contended for the first construction, and insisted upon the rule that this being a general expression (to his or her brothers, &c,J the Court cannot understand it in a restrained sense, unless they can see abundant reason to believe that the Legislature meant it so. And this I readily admit, and hope to be able to point out to the Court abundant reason for believing that the Legislature used the words to his or her brothers, and, for want of brothers, to his or her sisters, as well those of the half blood as those of the whole blood, in a restrained sen'se, to-wit, in'the sense which I have stated as the second construction which may be put upon this clause,

1st. I trust it hath been satisfactorily shewn, from the preambles and preceding part of this statute, that the only mischiefs which the Legislature intended to remedy in this clause, were those which arose from the law of primogeniture, and from the rule of the common law entirely excluding the half blood from the inheritance, solely on account of their being of the half blood. Now, if there is the utmost certainty that these were the only causes which induced the Legislature to enact this clause, and the only mischiefs intended to be remedied thereby, is there any rule, either of law or common sense, which would require *3480r authorise the Court to put such a construction upon this section as will do any thing more than remedy these mischiefs ?

Then immediately after, in' the same clause, comes this proviso:

Provided always, That when the estate shall have descended on the part of the father, and the issue to whom such inheritance shall have descended shall die without issue, male or female, hut leaving brothers or sisters of the paternal side of the half blood, and brothers or sisters of the maternal line also of the half blood, such brothers and sisters respectively of the paternal line shall inherit in the same manner as brothers and sisters of the whole blood, until such paternal line is exhausted of the half blood; and the same rule of descent and inheritance shall prevail amongst the half blood of the maternal line under similar circumstances» to the exclusion of the paternal line.

This proviso is so inaccurately drawn, that in its future construction some questions of difficulty may arise; but, at present, I shall only remark, 1st. That the Legislature, in this proviso, so far from evincing a disposition to confound together all brothers and sisters of every description, and abolish the preference which the common law gave to the blood of the first purchaser and the paternal line, (as the Defendant’s counsel contend,) do expressly enact that the half blood of the first purchaser shall exclude the other half blood. Can it be believed, that they would in one breath say that there should be no preference given to blood or stock, and in the next, that there should. Ex antecedentibus et consequenlibus fiat optima interprdatio. 2dly. When the brothers and sisters of the one half blood are to exclude the other from the inheritance, they are to do it in the same,manner as brothers and sisters ofi the whole blood would: thus referring to the rule of the common law, that brothers and sisters of the whole blood should exclude brothers and sisters of the maternal half blood from the inheritance of lands which had descended from the father to the intestate, as a law that had been long established, was well known, and still in force; for neither this act, nor any previous act of Assembly, has established any *349such rule, but the common law bad. The Defendant’s counsel contend, that by the preceding part of the act, bro-there and sisters of every description were placed on an equal footing with regard to inheritances of every description. Is not this directly at points with them ? Does it not, as far as an immediate declaration by the Legislature of its own intention can, support the construction which I contend for. That the only effect of the preceding part of this clause and this act should he a repeal of the rules of the common law establishing the right of primogeniture, and totally excluding the half blood from the inheritance in every case.

Sdly. By their construction of this third section, as I have said before, the brothers, and, for want of them, the sisters, of every description, would be equally intitled to the inheritance of all the intestate’s real estate, whether inherited or acquired $ and the fourth section enacts that the same rules of descent shall be observed among more distant collaterals, that is, that the nearest relations, whether of the blood of the first purchaser or not — whether of the paternal or maternal line, — and whether of the whole blood or half blood, shall inherit $ but, by the seventh section of the same act, where a person dies seised and possessed of an estate of inheritance, actually purchased or otherwise acquired, intestate, and without issue, and not having brother or sister, or the issue of such, who shall survive, his father and mother being' also dead, the Legislature enacts directly the reverse, and appoints that then the inheritance shall vest in the heirs of such intestate on the part of the father, and for want of such heirs on the part of the father, then to the heirs of such intestate on the part of the mother. Suppose the mother of S. J. Swann had died before Mm, and that the lands in dispute, instead of being inherited, had been actually purchased or otherwise acquired by S. J. Swann, then the present case would be exactly the one described in this seventh section, that is, of a person dying intestate, possessed of an estate of inheritance, *350actually purchased or otherwise acquired, without leaving' any issue, and not having' any brother or sister, or the lawful issue of such, who have survived, his father and mother being- both dead, and in such a case, by the construction for which the Defendant’s counsel contend of the third and fourth sections, the inheritance would descend to the Defendant’s wife, being the nearest relation on the part of the mother (or grandmother) and nearer than any on the part of the father; but by the construction of the third and fourth sections for which I contend, and also by the words of the seventh section, (which are so definite and precise that they admit of no other meaning) the inheritance would descend to the lessors of the Plaintiff, who are the heirs on the part of the father, though more remote, in exclusion of the Defendant’s wife, who is the maternal heir ; for the heirs on the part of the mother are only to inherit for want of heirs on the part of the father. By their construction, the most important parts of the most important act in our statute book, and which must have been passed after much previous consideration and deliberation, arc utterly inconsistent and repugnant to each other, and of course, one or the other must be rejected and can have no operation : — By my construction they are all reconciled, and each of them will have its due operation. The rule of construction is, that “ one part of a statute “ must be so construed by another that the whole may (if et possible) stand : ut res magis raleat qimn pereaV’ 1 Bl. Com. 89. If I have succeeded in shewing that the mother is not entitled in this case, her being alive can make no difference. And if the heir on the part of the father would be entitled to the inheritance if the lands had been actually purchased or otherwise acquired by the intestate, I think no man will be hardy enough to contend that the intestate’s having inherited the lands from his father will weaken the claim of the heir on the part of the father.

4thly. The Legislature, during its then next session, in October of the same year, in ch. 10, i'e-consider and amend *351the above mentioned act, and in tlic second section an explanation is given, not only of part of the section, but of tlie very sentence on which the Defendant’s counsel rely. Then follows the third section, the preamble to which is,

And whereas by the seventh section of the said act, (the act I have been consideringJ real estates actually purchased or otherwise acquired by any intestate, are to descend to the father, if living, but if dead, then to the mother of such intestate and her heirs, by which the descent may be altered by the accident of death, and the parental line, which is fa-voured in all other instances, may be deprived of the inheritances by such accident.

By 'parental line is here evidently meant paternal line ; for it is it which mig’ht be deprived of the inheritance by the accident of the father dying first and that inheritance vesting in the mother- of the intestate and her heirs. Then this Assembly which, if it did not wholly, must for the greater part, have consisted of the same members who esnstituted the Assembly that passed the act of April in the same year, cli. 22, having that act under consideration, and their attention particularly drawn to the section, the true construction of which is now disputed, declare that where real estate has. been actually purchased or otherwise acquired by the intestate, the paternal line is favoured by having the inheritance in all other instances, except the one there stated ; and proceed, and in the enacting part of the clause ordain, that it shall bo favoured there too, and that the heirs on the part of the father, however remote, shall take the inheritance in preference to the heirs on the part of the mother, however near t, for the heirs on the paid of the mother are only to inherit, for want of heirs' on the part of the father. This is another declaration by the Legislature of its intention and understanding, in as explicit terms as can be conceived, that the rule of the common law giving a preference to male stocks was, and ought to be, considered in force, any thing in the act of April 1784, to the contrary notwithstanding, and shews how solicitous the Legislature was to preserve it in force, and that it should apply to, and govern, every *352caga where the lands had been purchased or otherwise acquired by the intestate.

Let me not bo misrepresented or misunderstood, as con-^.en¿jn^. ^hat a statute declaring the meaning of a prior statute, can in any manner influence the construction of the prior statute with regard to cases occurring between the passing of the two statutes ; all I insist on is,’that statutes, like other laws, “ are rules prescribed by a su- " perior to an inferior” — that there are no particular set of words necessarily to be used in prescribing that rule ; but it >s sufficient if the superior makes his meaning understood by the inferior, and perfectly immaterial whether he does so at his first addressing him (as here,) or at his second addressing him (as here also :) — from the time the in fen or knows the meaning and intention of the superior, he is bound to conform himself thereto. And when we come to investigate what that intent and meaning is, it is a rule, that “ All acts in pari materia are to be taken “ together, as if they were one law.” Doug. 30. H$e it is manifest, beyond the power of doubt or di,spate, that the intent and meaning of the Legislature, on the wholc^'was that the heir on the part of the father, however remote, should take the inheritance in exclusion of the heir on the part of the mother, however near, and consequently the Plaintiff must recover.

It hath been contended, that the rule of the commonifaw giving a preference to the male stocks, is founded in principles of the feudal system ; and that as the Legislature has declared that these principles can never apply to this state, that rule can be no longer in force. To this argument two answers may be given.

1st. It is true that Mr. Justice Blackstone (2 Com. 235) is indiuecl to think that this rule is of feudal origin ; but in the paragraph immediately preceding (page 234,) he clearly shews us that he is inclined to llmk wrong ; for the three nations of antiquity, whose laws are best known, and their wisdom most admired — the Jews, the Athenians *353an'd tlie Romans — all bad tlie same rule of descent, and, as tbc feudal system did not obtain among either of them, ibe rule must have had some other foundation. It is also . worthy of remark, that tlie Athenians adopted tins rule after having had a contrary one. The reason on which this rule is founded, may be the little consideration in which women were held during the first stages of society, (Home’s Sketches,) or its being supposed to answer the purposes of society better, as among the Hindoos (Asiat. Mise, for 1802,) or because, in contemplation of our law, a woman, when she is married loses her existence, as far as property is concerned, and the family is not her‘s, but her husband’s, and, as it is the husband’s family, it seems reasonable when one of the children, or the representatives ^ of one of the children, die intestate, and without issue, to look out for an heir in the same family, i. e. in the father’s family. The father also has generally been the chief supporter of the family, and educated his children) and placed them in a situation to acquire the property for which an heir is wanted. But Lord Coke would tell us tliat all this is too much curiosity for n’est ray a dis-putcr l’ancient principles del. ley. Co. Lit. 11. a.

2dly. If this rule is to be altered it can only be done by tlie Legislature, not by the Court. And the present question is, not what the Legislature ought to have done, but what they have actually done.

It may, however, be asked, whether there are any authorities or precedents that would, under any circumstances, justify tlie Court in saying that the inheritance of the real estate of a person dying intestate and without issue, shall descend to some of his brothers only, when the Legislature have (in general terms) said that it shall descend to his or her brothers ? There are many.

The stat. 13 Eliz. ch. 10, § 3, states, in the preamble, that long and unreasonable leases were made by deans and chapters, &c. to the utter impoverishment of all successors, and then enacts that all leases made by deans anil *354chapters, &c. for a longer terra than three lives, or twen^y-°ne years, Ac. ¡shall be utterly void and of none effect, to all intents, constructions, and purposes ; yet the Court said yult }eases niat[c by a dean and chapter, for a longer terra than three lives, or twenty-one years, &c. should not be utterly void, but should be valid during the life of the dean, and void only as against his successor — 3 Hep. GO : for that would be sufficient to suppress the mischief which the act was intended to remedy, namely, the impoverishment of the successor. In that act, the words were as emphatically general as any that can be imagined, and their generality was controlad solely by the preamble, without any aid from any other parts of the act.

An act of attainder gave to the Idng all rights, heredita-ments, &c.; but the Court said that a right of action (although, in truth, it was a right, and also an hereditament) should not ho given to the king, on account of the inconvenience, but he should only have all such rights and hereditaments as might b.e forfeited and escheated at common law. Marquis of Winchester’s case. 3 Bop. 1, ef seq.

The cases of this description are far too numerous to he particularly stated, or even cited. I will, therefore, only refer to a few: Blown 109, 10. Ib. 199. lb. 203-6. lb. 465-7. Cases in the Court of Conference, 250. “ From “ which cases (and many others which might be cited) it “ appears that the Judges of the law heretofore have con- “ strued statutes cpiite contrary to the letter in some ap- “ pcarances, and those statutes which comprehend all “ tilings in the letter they have expounded to extend but “ to some things, and those which generally prohibit all “ people from doing such an act, they have interpreted to Si permit some people to do it, and those which include “ t, eery person in ike letter, they have adjudged lo reach to “ some persons only, which expositions have always been “ founded upon the intent of the Legislature, which they *-e have collected, sometimes by considering the cause and *355 necessity of malting the act, sometimes by comparing one “ part of the act with another, and sometimes by foreign (i circumstances. So that they have ever been guided by e( the intent of the Legislature.” Plow. 205. I venture to affirm that no case ever has occurred, or ever can occur, in which the intent of the Legislature was or can be clearer than in the one before the Court.

I therefore conclude, that the construction of these acts for which I contend, is the true one. It is according to the intent of the Legislature ; will suppress the mischief intended to be remedied, and give consistency and operation to every clause and part of them. The construction for which the Defendant’s counsel contend, is not the true one, because it would abolish important rules of the common law which tiie Legislature have declared to he still in force; and because it would render some parts of these statutes inconsistent with, and repugnant to, other parts of them, and, consequently, the one or the other could have no operation.

The Defendant’s Counsel have also relied upon an act of Assembly, passed in the year 1795, cli. 6, with a hope of supporting the title which they set up under the Defendant’s wife. By this statute it is enacted,

That from and after the passing' of this act, all females shall bo entitled to take by descent, equally with males, share and share alike, according to the rules of descent upon males in the before recited act, (Ap. 1784, cli. 22,) any law, usage or custom, to the contrary notwithstanding.

A very little reflection will he sufficient to shew that this is a forlorn hope.

1st. If I am right in my construction of the acts of Ap. and Oct. 1784, females were excluded by males who were of the same blood and in the same degree of proximity— the blood of the first purchaser totally excluded that which was not — and the remote heir of the male stock took in preference to the near heir of the female stock. This act, when it admits the females to inherit equally with the males, says they shall take share and share alike, which *356only applies to the cases where they were of the same blood and in the same degree of proximity : if this act had abolished the preference of blood and stocks, the females, ju many ea,,es w¡,crc they were excluded before, would have to take the whole, being nearest of kin, and not to take share and share alike. But it is unnecessary to enlarge on this point, as

2d!y. They are to' inherit according to the rules of descent vpau males in the before recited act. (Ap. 1784, ch. £2,) If I am right in my construction of that act, the rule of descent upon males was, that a male who was heir on the part of the father, however remote, would take in preference to a male who was heir on the paid of the mote, however near, and therefore the lessors of the Plaintiff, who are females and heirs on the part of the father, must have the inheritance in preference to the Defendant’s wife, who is a female, and heir on the part of the mother, (grandmother.)

On the whole, I submit it to the Court, whether the rules of the common law giving a preference to the blood of the first purchaser, where the lands have come to the intestate by descent, or to the male stock, where the intestate lias actually purchased or otherwise acquired them, are not still in force; and if they are, there can be no doubt hut the Plaintiff must recover.

Gaslon, for the Defendant.

A considerable part of the special verdict in this case, is calculated and was designed to bring into view, the title by which the premises in question came to John Swann, the intestate’s father, in order that it might be ascertained whether the claim of Mary Shepard, who is to be considered the real Defendant, is liable to the objection of her not being of the blood of the first purchaser. As this objection, although not now insisted on, has not been formally abandoned, it may not he amiss to submit one observation to shew that it is inapplicable. The premises were, indeed, devised to John Swann *357by bis brother, Samuel Swann the younger, to whom John was an heir, but not tiie sole heir, for Thomas Swann the younger, another brother, veas then in full life, and the devise was after the year 1784. The premises were devised in severalty. Now an' estate in severalty is so different in quality from any joint estate, that a devise from an ancestor to one of his co-heirs constitutes the devisee a purchaser. — Tide Powell on Devises, 440, 441. The argument will, therefore, be conducted on the part of the Defendant, upon the ground that John Swann took the premises by purchase, and, of course, with an inheritable quality corresponding with that mode of acquisition.

The Defendant’s counsel will decline, at present, the discussion of the claim of the intestate’s mother. They cannot hope to add any thing material to the very able and elaborate argument in its favor, to be found in the same book, and in the same case to which the Court has been referred for an argument against it.' — 2 Haywood’s Rents. 252. Nor can they apprehend that their main defence is so feeble as to require the assistance which may be derived from this or any other claim.

The case then made by the Special Yerdict is simply and briefly this : Samuel Johnston Swann being seised in fee of the premises in question, by descent from his father, died on the llíh of February, 1796, intestate, without brother or sister, or the issue of such surviving • but, leaving the Defendant, a paternal aunt of the half blood, who is the daughter of his paternal grandmother, and nearest collateral relation on the part of Ms father, and the lessors of the Plaintiff, who are more remote collateral relations, but on the part of his paternal grandfather and Ms heirs at common law.

On the part of the Defendant, it is insisted, that the descent in this case is regulated by statute, and that, notwithstanding the Plaintiffs are heirs at common law, the Defendant is by statute, entitled to the inheritance.

*358By the act of April, 1784, ch. 22, sect. 3, it is enacted, that “ if any person dying intestate, should at the time of « ]iis ov h('r death, be seised or possessed or have any right, (( Qr jn or to any estate of inheritance in “ lands or other real estate in fee simple, and without issue, “ such estate shall descend to his or her brothers, and for “ want of brothers, to his or her sisters, as well those of “ half blood, as those of whole blood, to be divided amongst “ them equally, share and share alike, &c.” And by the next section it is enacted, “ that the same rule of descent shall be observed amongst collaterals, when they are further removed than the children of brothers and sisters,” that is to say, such estate shall descend to his or her uncles, and for want of uncles, to his or her aunts, as well those of the half blood as those of the whole blood. No words can he more general or less ambiguous. It is not denied, that in their general sense, which is of course to be considered the legal sense, they precisely comprehend the present case. It cannot he pretended that this case is embraced by the words of any exception, proviso, or other enacting clause. Jn this sense too, it is worthy of remark, they of necessity exclude the idea of any distinction of stocks between father and mother, as such, or any other couple of ancestors, in regard to their lineal descendants or issue, for such a distinction can exist only in the relation of brothers and sisters, uncles and aunts, &c. of the half blood.

The counsel for the PIaintiff contends, that the words “ his or her brothers, and for want of brothers, his or her “ sisters, as well those of the half blood as those of the <f whole blood,” are not to be taken in their general sense, hut as restricted by a tacit modification that these brothers or sisters be of the blood entitled to the inheritance by the rules of the common law. He supposes them, in their operation, to be subject to and controlled by two common law principles, the one requiring the heir to he of the blood of the first purchaser, the other giving a preference to the kindred of male over that of female stocks, and undertakes *359to point out abundant reason for the belief, that in this res-irictcd sense they were used by the Legislature, it will be admitted by the Defendant’s counsel, that general words may receive a limited or restricted interpretation, when the obvious meaning of those who use them requires such a limitation. They think, however, that this necessary restriction must first be unequivocally shewn, and Ilion that the limitation will be co-extensive with the necessity that requires it. How far the words in question are made subject to the operation of the first of the common law principles insisted on, either by other express words in the statute, or by necessary implication, it is not now essential for them to enquire. That the words are controlled and modified by the other common law principle alleged, they deny, and will briefly examine the reasons by which such a construction is sought to he maintained.

The Plaintiff’s counsel appears to place no small reliance upon the preambles to the several sections of the act, and to suppose them penned with an extraordinary and peculiar degree of accuracy and precision, to which the enacting clauses have not the slightest pretension. This supposition is indeed necessary, to warrant the use which lie makes of them, which is not merely that of a key by which to unlock the intention of the Legislature, but of the cabinet itself, in which alone the intention is deposited. “ The Legislature,” he asserts, “ have not left us to con- “ jeeture or presume what were the mischiefs which they <s intended to remedy, but have been careful to state, in “ the preamble to the 1st section, the law of primogeniture, “ and in the preamble to the 3d section, the maxim that “ the half blood should be excluded from the-inheritance, “ as the only mischiefs which they in this (3d) section in - “ tended to remedy.” This is not only attributing to the preambles a precision and dn exclusiveness of expression which are not to be found in them, but restraining by ihe mere force of preambles, general enacting words which have not the least ambiguity, contrary to a well establish-*360cd principle, of construction. es The preamble of a statute es is no part of the statute, but only a recital of some in- “ conveniences which docs not exclude any other for which (k a rciaeljj js given by the enacting’ part of the statute.” And therefore, “ Quoties in verbis nulla esl ambiguifas ibi (i nulla expositio contra verba jvienda esl — 8 Mod. 144. 6 Mod. 62. 4 Term Reply. 793. But supposing- if correct, that the Legislature have declared these to be the only mis-chiefs which they intended to remedy, it by no means follows, that they intended to remedy them in such a manner as to suffer the issue of the mother and of the paternal grandmother ol' the intestate to be postponed to the collateral relations of the father and paternal grandfather. No where have they used language expressive of such an intention, but the very passages cited by the Plaintiff’s counsel contain the most unequivocal evidence of a contrary intention.

The common law doctrine of descents in fee simple, did not prefer the issue of the father as such to that of the, mother, hut when they were different, equally and utterly excluded both in the relation of brothers and sisters of the half blood. It was the collateral relations only of the father which were preferred to those of the mother. By the enacting words of the 3d section of the act of April, 1784, the respective issue of the parents is enabled, in precisely the same relation, and with as little distinction as by the common law it was excluded. The 7th section of* the same act, and the 3d of the act of October, of the same year, chapter 10th, which are the only clauses that refer to or recognize a preference of the father’s kindred over that of the mother, confine that preference as it was confined at common law, to his collateral relations over those cf the mother, or to cases in Avhich the intestate has left no brother or sister, nor the lawful issue of such. It is correct to restrain general words in one part of an act by particular words in another, but here the attempt is to restrain general words in one clause, by the same genei’al words in *361another. Tlie brothers and sisters, upon failure of whom, by the seventh section, the heirs on the part of the father are to be preferred to those on the part of the mother, are no doubt, to be considered as brothers and sisters of the same description with those to whom the inheritance is by the third section, to descend, but what particular nurds are there in the seventh section to restrict the meaning of these terms more than in the third, where it is admitted that in the mode of expression they are general, and what authorizes the supposition, that in either case they are qualified witli the condition that they must be on the side of the father ? The declaration of the Legislature, that the father’s relations should be preferred to those of the mother, when there is no brother or sister of the intestate surviving, so far from affording an inference that the same preference should exist when there should be brothers and sisters, leads to a conclusion directly the reverse. Supposing, therefore, this 7th section to be drawn with unusual care, and to express with the happiest perspicuity, the designs of the Legislature, instead of being an interpolation, as it has once been unjustly stigmatized, (2 Haywd. 261) “ put in by some busy, conceited ignoramus, passed “ by the Legislature without due consideration, and which, “ on account of its repugnance to the rest of the act, should “ be considered void,” what can be drawn from it by any legitimate mode of reasoning favorable to the Plaintiff’s claim ?

The counsel for the Plaintiff considers the preamble of the 3d section of the act of October, 1784, •which he has cited without the enacting clause as if he still believed the preamble to be the only depository of legislative will, “ as “ a declaration by the Legislature of its intention and un- “ derstanding, in as explicit terms as can be conceived, iS that the rule of the common law giving a preference to “ male stocks was, and ought to be, considered in force,” t( and that “ it shews how solicitous the Legislature was “ that it should apply to and govern every case where the *362« lauds liad been purchased or otherwise acquired by the “ intestate.” But if we arc permitted to take the enacting clause into view, and suppose it to have some share in expressing the will and solicitude of the Legislature, v e shall perceive the precise extent to which it was solicitous this rule'should apply to and govern cases of this kind, viz. when the intestate liad left no brother or sister of any description. Instead of ordaining, as the Plaintiff’s counsel supposes, and asserts “ that heirs on “ the part of the father however reinóte, are to take the “ inheritance in preference to heirs on the part of the moi£ thcr however near,” it declares that such heirs on the part of the father are to have the inheritance only in case nor of the intestate “ not having any heirs of 'his body, e< brother or sister or the lawful issue of such.’ inconceivable that the Legislature in October And it is 1784, composed principally as the Plaintiff’s counsel suppose it to have been of the same persons who enacted the law of April, 1784, having that very statute under consideration, and their attention drawn to that section, the true construction of which is now disputed, and being particularly minded to fix the degree of preference due to male over female stocks, should, in the very act of explaining their intention and understanding and of removing all doubts thereof, declare that the heirs on the part of the father should be preferred to those on the part of the mother whenever the intestate had not left any brother or sister, if they designed the same preference to be given when he had left brothers and sisters.

Again, by the common law, the inheritance in new purchased lands and uncertain descents, as well as in descents which could actually be traced, frequently went over to a remote collateral relation although there were issue of one of the parents' — although the intestate had brothers and sisters. This was the consequence of the total exclusion of the half blood, even when notoriously of the blood of the first purchaser, and resulted from the same principles *363 a *'•' two instances, and ordaining that th« ££ always inherit whore the estate notoriously of the feudal system which the Legislature declares can never apply to this state. The amendment of the law in this very particular, is a part of the problem submitted by Mr. Justice Blackstone to the consideration of the Legislature. 2 JB1. Com. 236. His words deserve notice. ££ How far it might he desirable for the Legislature to •' give relief by amending the law of descents in one or half blood might descended “ from its own proper ancestor, and in cases óf nexv jmr- “ chased lands and uncertain descents should never be ex-ee eluded by the whole blood in a remoter degree, or how far 6‘ a private inconvenience should be submitted to rather “ than a long established xuile should be shaken, it is not “ for me to determine.5’ Our Legislature have made the determination. They have solved the problem submitted to their consideration by the learned commentator, and Lave not hesitated to sacrifice a portion of reverence for 'antiquity and the feudal system to the spirit of reason and improvement. As there is but little reason to doubt that these observations of Justice Blackstone, in a work far more popular and more generally read in America than any other written on legal science, liad considerable influence in producing the alteration, it is not improper that they should have some influence in deciding its construction. The Legislature however (to adopt the style of the Plaintiff’s counsel) have not left us to presume or conjecture what were their intentions in this particular. They Lave taken care to declare their intention to be, in all cases of purchased lands, that the half blood shall never he excluded by remoter relations of the whole blood, for that the inheritance shall descend on failiu’c of issue to the brothers, and for want of brothers to the sisters, as well those of the half blood as those of the whole blood, and that the heirs on the pai’t of the father ax*e to he preferred to those on the part of the mother, only when the intestate has not left any brother or sister or the lawful issue of such. Thus *364no collateral relations of tbe father or mother are permit" ted to lay claim to the inheritance while there remain in being lineal descendants either of the father or mother.

The counsel for the Plaintiff has also cited the proviso in the 3d section of the act of April, 1784, to prove that the words brothers and sisters in the preceding enacting clause, are to be taken in a restricted sense. He admits the proviso to be so inaccurately drawn, that questions of great difficulty may arise about its proper construction, but yet fancies that ho discovers in it something like a recognition of the two principles of the common law for the existence and application of which he contends. 1st. That which regards the blood of the first purchaser. As this principle can have no operation prejudicial to the claim of the Defendant, she being of the blood of John Swann, the first purchaser, it will be passed over without observation. 2d. The preference of male to female stocks. This preference is supposed to be contained in the dcclara-ration, that when the estate shall have descended to the intestate on the part of his father, and the intestate shall die, leaving brothers and sisters of the half blood, both of the paternal and maternal line, those of the paternal line, shall inherit in the same manner as brothers and sisters of the ■whole blood. “ Thus referring,” he observes, “ to the <e rule of the common law, that brothers and sisters of the “ whole blood should exclude brothers and sisters of the “ maternal half blood from the inheritance of lands de- “ scended from the father of the intestate.”

This intendment is so remote and concealed, that it never could have offered itself to the mind of the most critical reader, and could have been discovered only by the help of an imagination so wanned in its pursuit as to be ready to accept of any aid, and willing to overlook many incongruities. It is too refined to be entitled to much weight though it were correct, but it is plainly founded in error. For first, it supposes that the manner referred to, in which brothers and sisters of the whole blood inherit at *365common law, is to exclude brothers and sisters of the maternal half blood only from the inheritance of lands deseen-ded from the father. And also it supposes, that the cxclusion is referable to a principle which distinguishes between father and mother as such, and applies therefoi'e only to the maternal and not to the paternal half Mood. But it also overlooks several circumstances, which whatever obscurity there may be in some parts of the proviso, arc expressed with sufficient certainty, and which are utterly repugnant to the construction into the service of which it is forced — 1st. The proviso unequivocally manifests that the Legislature were aware of the force of the general terms which they had used in the section, and that the words “ brothers and sisters of the half blood,” comprehended alike, and equally admitted as being precisely in the same relation, those of the maternal half blood, with those of the paternal half blood. For, in order to give a preference to the paternal half blood over the maternal half blood in descents from a father, where they wished such a preference to exist, they introduce an exception for the express purpose. The old maxim was supposed to be, that exceptio prdbat regulara. The Plaintiff’s counsel would have it exceptio fadt regulara.

2. Brothers and sisters of the maternal line are, by the proviso, to bo excluded only by brothel’s and sisters of the paternal line, and only until the paternal line is exhausted of such brothers and sisters; and 3d. This temporary exclusion is to obtain only when the estate shall have descended on the part of the father. Now, hy the construction of the Plaintiff’s counsel, this exclusion is made to extend to estates which have not so descended; to obtain not only in favor of the intestate’s other brothers and sisters, but also of the collateral relations of his father ; and to continue until the line of the father is exhausted of the most remote collateral kindred. Indeed it would he difficult to find words less calculated to support Ms construction, and more at points with it than llio.se contained in this proviso»

*366]f, then, the Legislature have clcaidy announced their will that a brother or sister on the part of the mother should not be excluded by, or postponed to a remote rela-()p £jie fay1P/I.. or? jn otlier words, that the inheritance (with an exception in case of descents) shall descend for want of children of the intestate to all his brothers or sisters, as well those which are the issue of both parents as those which are the issue of one only, as well those of the father as those of the mother. The same rule must apply to the issue of the grand-parents, not only because the act ordains, and the Plaintiff’s counsel admits, that the rule must be the same in both instances, but because the acts of Assembly no where recognize a preference, or a principle of preference, of the kindred of a male over the corresponding kindred of a female ancestor, but in express reference to father and mother. If the collateral relations of the father have preference of the collateral relations of the mother, hut are postponed to the issue of the mother, the collateral relations of the paternal grandfather, claiming by analogy the like preference over the collateral relations of the paternal grandmother, must also be postponed to the issue of the grandmother.

The Plaintiff’s counsel has attributed to the counsel for the Defendant, a construction for which they have never contended, or attributes to it consequences which do not flow from it, and he pronounces with more confidence than correctness, that by their interpretation, the most important parts of the most important act in our statute book, and which must have been passed after much previous deliberation, are rendered utterly inconsistent with each other, but that by his own, they are all reconciled, and each of them made to have its due operation. The counsel for the Defendant have never contended that there is no preference due to the family of the first purchaser. On the contrary, they admit such a preference is expressly given by the Legislature in certain cases, and may probably be faixdy implied in others. The precise extent of this *367preference it was not necessary for them to define, because pei'fectly irrelevant to tlicir case. They have never contended that under tiio acts of 1784, there is no preference of male over female stocks. On the contrary, they have admitted that general words in one clause of an act, must be considered as subject to the exceptions and restrictions of particular words in another, and that in the 7th section of the act of April, 1784, there is a preference given to col-laterals of the father over collaterals of the mother, which preference ought undoubtedly to he respected. They have denied, however, that a Legislative declaration that collaterals of the father shall be entitled to the inheritance when there is no brother or sister, means that they shall be entitled to it when there are brothers and sisters. They are at a loss to conceive, in what instance the slightest inconsistency, the shadow of a repugnance between the various clauses of the act can be shewn to exist under their construction. The elaborate attempt to point out what the Plaintiff's counsel deems a monstrous inconsistency, is surely not very fortunate. He supposes the lands in question to have accrued to the intestate by actual purchase, and his mother to have died before him. This would then be the case, he observes, described in the 7th section, and in which, by the Defendant’s construction of the 3d and 4th sections, the land would go to the Defendant, as the nearest relation to the intestate on the part of his mother, and nearer than any on the part of his father, although by the very words of the 7th section, the inheritance must descend to the Plaintiffs, the heirs on the part of the father. The Defendant’s counsel would indeed insist in such a case that the lands should descend to the Defendant, not however as nearest relation to the intestate on the part of his mother, but as his heir on the part of his father, — as sisters of the father — declared both by the 3d and 7th sections entitled to inherit from him (her brother) in preference to the collaterals, or the descendants of the collaterals, of cither of his ancestors' — as preferred to all others except *368his own issue. The Defendant’s counsel have not there» fore, subjected themselves to the censure of temerity, de~ nounced against those who contend “ that the intestate’s iS ]iaThjg inherited the lands from his father will weaken (i the claim of the heir on the part of the father,” nor are they under the necessity of rejecting the 7th section out of the Statute in order to prevent its conflicts with the 3d and 4th. How the counsel for the Plaintiffs will allay the feuds and reconcile the contentions between the act and his exposition, is left to conjecture. Brothers and sisters on the side of the father, it is required by the exposition, shall exclude brothers and sisters on the side of the mother, from a share in the inheritance of lands purchased by the intestate, while the act ordains, that they shall all share alike in every case, except where the lands actually descended to the intestate from one of his parents. The exposition demands for the collateral relations of the father a decided precedence over the intestate’s brothers and sisters on the side of the mother, but the act declares in the 3d section that brothers and sisters of every description shall be postponed to none but issue, and in the 7th refers to these very collaterals as having no pretensions except in the event of there not being any brother or sister. The exposition excludes the maternal half blood from the inheritance of lands descended from a father, forever, while the statute expressly enacts, that this exclusion shall be of a specified and limited duration. Till these jarring dissentions be removed, the counsel for the Defendant cannot apprehend that the Court will find themselves constrained to adopt this exposition, either as affording the only means of reconciliation between the discordant parts of the statute, as the true “ Concordia discordantimn Canonum,” or in consequence of the abundant reasons offered to shew that it alone can effectuate the intent of the Legislature — in opposition to plain precise general words, which, so far from presenting an ambiguity, can scarcely, by the subtlest ingenuity, he tortured into a doubtful sense.

*369The argument on the part of the Defendant has thus far been conducted principally with a view to the enquiry whether the general words of the Statute of April, 1784, can be taken in the restricted sense given to them by the Plaintiff’s counsel. Every part of that Statute, and every other circumstance relied upon to shew that these words are to be controlled by the operation of the common law Canons of Descent has been distinctly examined. — it was due to the learning and ingenuity displayed in the argument on the part of the Plaintiff, that it should be -thus followed step by step. But it was not necessary for the interests of the Defendant. — For the very principle upon which that argument rests, it is believed, may be conceded, and yet a short and conclusive answer rendered to the whole of it. The groundwork of the Plaintiff’s argument is this — The words in the second section “ the “ lands shall descend to and be equally divided between “ all the- brothers, and for want of brothers all the sisters <£ of the intestate, as well those of the half blood as those “ of the whole blood,” must be confined in their construction to such brothers and sisters as are of the blood entitled to the inheritance by the rule of the common lato. — Be this admitted, and what follows ? It follows, then, says the Plaintiif’s counsel, that the brothers and sisters and the most remote collaterals on the part of the father shall be preferred to the brothers and sisters on the part of the mother, for it is a rule of the common law (2 Blackstone’s Com. 234) that in collateral inheritances, the male stocks shall be preferred to the female, that is kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near. This conclusion, it might be observed, does not follow very logically from the pi’emisos. — Indeed the very opposite conclusion might he drawn with a much greater appearance of correct argumentation. The act declares that brothers of every description shall come in equally, provided only, that they be of the blood entitled *370by common law to the inheritanee. — Now by the common law? those on the side of the mother, are, in new purchased estates, of a blood entitled to the inheritance. — Therefore, in new. pUrcjiascti estates, they shall he admitted equally with all others. But it is not necessary to examine very minutely whether the Plaintiff’s syllogism he in approved form, or his conclusion warranted by his premises, for one of those premises is not true. — There is no rule of the common law, which, the disability of half blood being removed, would give to brothers and sisters or to more remote collaterals on the side of the father, a preference over brothers and sisters on the part of the mother. The rule is supposed to be contained in the 7th and last Canon for the government of descents in fee simple, which has just before been quoted from Blackstone.' — To this we answer,' — 1st. This Canon ought to be considered as Saving an operation only secxmdmi subjectam materiem, and applying therefore to those cases only which had not been provided for by preceding Canons. To the case of a descent between brothers, it has no application, because that case had been completely and in every instance provided for and disposed of. The brother to inherit, it had been already declared, should have both the same father and the same mother with the intestate. If he had the same father and not the same mother, or the same mother and not the same father, he was equally and absolutely excluded. That the use and operation of this Canon were considered by Blackstone himself as thus limited, will appear from the words with which he introduces it. After commenting on the sixth Canon, and observing that that rule with its illustration amounts to this, that in order to keep the estate of the propositus as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them, he adds “ But here another difficulty arises. “ In the second, third, fourth and evert] superior degree, “ every man has many coyples of ancestors increasing *37144 according to the distances in a geometrical progression 44 upwards, the descendants of all which respective cou-44 pies are (representatively) related to him in the same 44 degree. Thus in the second degree, the issue of the 44 two grandsires and grandmothers of John Stiles, are 45 each in the same degree of propinquity : in the third 44 degree the respective issues of the four great grandsires 44 and great grandmothers are (upon the extinction of the 44 two inferior degrees) all equally entitled” to call them" 44 selves the next kindred of the whole blood to John Stiles. 44 To which therefore of these ancestors must we first 44 resort, in order to find out the descendants to he pre-44 ferably called to the' inheritance ? In answer to this, 44 and likewise to avoid all other confusion and uncertainty 44 that might arise between the several stocks where the 44 purchasing ancestor may be sought for, another qualifi-44 cation is requisite, besides the proximity and entirety, 44 which is that of dignity or ‘worthiness of blood. For, the 44 7th and last rule or Canon is &c. &c.” — 2 EL Com. 234. It was then to answer this difficulty, and to avoid a confusion and uncertainty that might arise in other cases, bat never in that of brothers inheriting to brothers, that this rule was adopted. Yet the Plaintiff’s counsel would have it to operate upon a case to which it never had application and for which it never was designed !■ — But 2dly, we answrnr, and this is deemed conclusive, that the Canon in question cannot operate upon the case of a descent from brother to brother, because such a descent is not like that between^more remote collaterals, a descent that takes effect in respect to, or in consequence of some medius antecessor or medium differens between them (to use the language of a great Judge, Ventris 416) but direct, immediate, and in the relation of brother to brother. — The words of Chf. Baron Hale, in the case of Collingwood v. Pace, decided in the Exchequer Chamber, are so pertinent and forceable that the Court will excuse a quotation of them somewhat at length, — 44 The descent from a brother to a brother though *372 (e it be a collateral descent, yet is it an immediate descent, “ and consequently unless there be a disability or impedi- “ meat in one of them, no impediment in an ancestor will “ hinder the descent between them.” — Yentris, 423. — That the descent is of this immediate nature, he thus proceeds to prove, “ 1st, in point of pleading, one brother shall iC derive himself heir to another without mentioning1 any “ other ancestor. 2dly, according1 to the computation of de-ts g-rces according to the laws of England, brother and bro-(e the-r make one degree, and the brother is distant from his ee brother and sister in the first degree of consanguinity— “ Silly. The descent between brothers differs from all i£ other collateral descents whatsoever, for in other “ descents collateral the half blood doth inherit, but in a “ descent between brothers, the half blood doth impede “ the descent, which argues that the descent is immediate. “ The uncle on the part of the father hath no more of the “ blood of the mother, than the brother of a second venter. “ The brother by the second venter hath the immediate “ blood of his father, which the uncle, viz. the father’s “ brother, hath not, but only as they meet in the grand-44 father. Yet the uncle is preferred in the descent, and “ the reason is because that is a mediate descent, mediante “ paire, but the descent to the brother must be immediate “ if at all, and therefore the half blood impedes it. Again 4 4 it is apparent, that if in the line between brother and 44 brother, the law took notice of the father as the medium 4* thereof, the brother by the second venter should rather 44 succeed the other, because he is heir to his father, thereof ore in. a descent between brothers, the law respects only 44 the mediate relation of the brothers as brothers, and not in 44 respect of their father, although it is true the bosom or 44 foundation of their consanguinity is in the father and 44 mother.” — Ibid and 424. — Again, page 425, 44 The 44 father is not such a Medium or Nexus as is looked upon 44 by law as the means of deriving a descent between two “ brothers.” — Unless then it can be shewn that Uord Hale is *373 i! inclined to think wrong,” whenever, like Mr. Justice Blackstone, he is inclined to think differently from the Plaintiff’s counsel, let us ask, if the descent from brother to brother, be- in law direct, and not through the intervention or in respect of their common ancestor, so that it is not affeeb'd by any impediment whatever in that ancestor, and so that the ancestor is not named in tracing the descent, not taken notice of by the law as the medium of the descent, not viewed as the Nexus between the brothers— whence is it, or can.it be inferred, that upon a removal of the objection of half blood, nfraier uterinus would not succeed to the inheritance equally with & fritter consanguíneas, in the same manner as did a frater germanus before the removal of that disability ? “ Kindred,” says the 7th Canon, “ derived from the blood of a male ancestor, shall be “ preferred to kindred derived from the blood of a female “ ancestor but a brother does not derive his legal relationship through any ancestor, he “ derives himself “ heir without mention of any ancestor.” The brother though undoubtedly heir to his father, and also to his mother, shall not succeed to a son of the same father, but with a different mother, or of the same mother, but with a different father, “ because the descent from brother to “ brother, differs from all other collateral descents in this, “ that half blood is an impediment.” Half blood then, whether on the one side or on the other, is a mere personal disability. — Remove this disability, and he then comes in as if it did not exist, not as son of the father, or as son of the mother, but as brother. — The most complete impediment in a father or mother, or both, such as an attainder or alienism, preventing the transmission of any inheritable blood from either, will not prevent or affect at all the descent from one son to another. Shall a partial disability then arising from the sex of the common parent, which does not prevent the transmission of some inheritable blood, produce such an effect ? When a cause existing in complete force is without any legal operation, it would *374seem strange indeed that the same cause existing in a limited degree should be attended with great legal consequences !

The rules applying to the descent of estates tail furnish an apt illustration of the doctrine in question. It is laid down in all the books, that a brother of the half blood shall succeed to the estate tail, if an heir according to the terms of the donation of the blood of the original donee. Can any decision, any dictum, any thing that looks like an authority, be brought to establish this exception to the principle, that when the father and mother are both of the blood of the original donee, a brother on the side of the mother shall be excluded by a brother or a more remote collateral on the side of the father? It is confidently believed that none such can be produced. The most diligent search has not enabled the Defendant’s counsel to discover that the principle has any where been laid down in terms less general than they have stated it. Let it not be said that a case has not occurred in which it was necessary to lay down the restrictions of this general principle. If such restrictions ever had legal existence, innumerable cases must have happened to have rendered a decision upon them necessary. Estates tail owe their origin to the ambition of great families. Intermarriages among the collaterals of the same noble family have always been of daily occurrence; and some of these intermarriages must, in the nature of tilings, have afforded an opportunity for litigating such a case, had it been deemed worth an experiment. Let us state a case of the kind, and see how the principles which Ave can find will apply to - it. An estate is limited to A, and to the heirs of his body. B, grandson of A, marries his cousin C, the granddaughter of A, and dies seised of the estate tail, leaving a son, D. C, the mother of D, and lineal descendant of A, the original donee, marries a second husband, and dies, leaving a son by that husband, E. Then D dies seised. Does the estate tail go to E, or to a remote collateral of D on *375the side of his father ? It is believed that it will unqucs-tionably go to E. By the terms of the case he is of the blood of A, the original donee. There is, therefore, nothing in the forma doni to exclude him. What then is necessary for him to shew, in order to support his claim ? “ In a formedon in the descender,” saith my Lord Coke, “ it behoveth the demandant, 1st. To make himself son s( and heir, or cousin and heir, fo( him that was last actu- “ ally seized by force of the tail; and 2ndly. It behoveth “ that he who was last actually seised be made heir in <£ tail to the donee.” — 8th ftepts. 88 — 6. E does both. He derives himself heir to D, the person last seised as Ms brother, and D, by the question, is heir in tail to the donee.

From this view, it would appear that a fallacy has in-sinuatdd itself into the argument in question at its very commencement, and pervaded it throughout. The argu-. ment takes for granted what is not law, that upon a removal of the disability attached to half blood, a brother or a sister on the side of the mother, would not succeed to-the inheritance in a newly purchased estate, while there were any relations on the side of the father. When such ■ an error has obtained in the premises, it would not be extraordinary if the most logical reasoning has been unable to save the conclusion from absurdity. The Defendant’s counsel do therefore contend, that if the statute contained no clause but one, abolishing the disability of half blood, their client would be entitled to the inheritance as the only sister of John Swann, the intestate’s father, and ought to be considered precisely in the same light as a sister of the whole blood would have been considered, previously to the abolition of that disability. If, instead of being a sister to the intestate’s father and daughter of the intestate’s paternal grandmother, she had been the sister of the intestate’s mother, and daughter of the intestate’s maternal grandfather or grandmother, or of both, then they admit the 7th canon of descent, if in force, would have had an application to her, and, excluded her from the inheritance.

*376But tlie Defendant’s counsel do further contend, that the 7th canon, and every other rule of descents, giving a preference to male over female stocks or individuals, is utterly abolished by the act of 1795, ch. 6. — The act is in these words. 44 Whereas, by the before recited act, (1784, ch. 44 22) the inheritance of lands and other real estate in fee 44 simple, descends to the males, in exclusion of the females, “ contrary to the policy of our government, Be it enacted, 44 that from and after the passing of this act, all females 44 shall be entitled to take by descent, equally with the 44 males, share and share alike, according to the rules of 44 descent upon males in the before recited act, any law, 44 usage or custom, to the contrary notwithstanding.”— They believe that the act, fairly expounded, abolishes all •preference of sex, as well between stocks as individuals, and even though its enacting words should be considered as having a direct application to individuals only, that by necessary consequence, they must produce a like effect upon stocks. The Plaintiff’s counsel not denying hut that the act places females on the same footing with males, as individuals, strenuously insists that it does not impair his ■favourite principle, the preference of males as stocks. The impressible attachment manifested on the part of the Plaintiff for this relict of feudalism, the steady and unshaken adherence to this object of legislative hostility and proscription, are indeed, worthy of a better cause. When the enacting words of the act of 1784, seemed to menace it with injury, every ingenious and faithful art was essayed to save it from their operation, by placing it under the protection of some clement preambles — Now that the act of 1795, preamble aud all, threatens it with annihilation, a rigid, literal, and highly critical construction of the enacting words is insisted on, to evade, if possible, its destructive operation. But while we admire this ardent zeal, let not our admiration deter us from the enquiry, how far it is merited by its object. What is there in this so highly venerated tenet, 44 the blood derived from males is of supe- *377“ rior dignity and worth to that derived through females,” which should recommend it to our feelings as men, or to our approbation as citizens ? That it prevailed among our British ancestors we need not wonder, for the policy of their government, which required' an aristocracy to balance the conflicting claims and opposite interests of the monarch and the people, forbade a general division of the lands of an intestate among his next of kin, and the origin of their system of landed property, demanded an absolute exclusion of females from the inheritance. One of the first principles in the feudal code was “ Foemina áb ovyiii feudo i( tanquam inutilis sive inhabitis eocchulitur — ñeque enim ad “ muñera militaña, pro quibus solis dabantur, earum opera Dominus uti potest: Me arma tractare norunt, quod pro-(e prium est vasallorum : Ñeque in consilia Domini admitti “ mnlier potest, cum quae audit reticere nesceat.” — Crag, de jure feud. 236. When, in the process of time, the arts of peace, agriculture and civil life, had become of value, when the merits of' a vassal were no longer estimated, solely by Ms ability to bear arms and to keep a secret, and when, perhaps, according to the notion of the Plaintiff’s counsel, females held a higher station than had been assigned to them in the infancy of society, their absolute exclusion from the feud no longer prevailed — They were permitted to succeed to the inheritance of an ancestor, when there were no male heirs. “ As to the preference of males,” says Sir Martin Wright, “ it must be remembered that “ females could not, by the feudal law, succeed to a pro- “ per feud, because they were unequal to the duties or ser- “ vices for the sake of which it was chiefly created. And “ if it be farther observed, that it is ex pacto, or by the cus- “ tom of particular countries, that they are even at this “ day permitted to succeed to any, it cannot seem strange “ that the feudal preference given to males, should prevail “ with us; because as Feud. Fee and Tenure are synoni- “ mies, and import but one and the same policy, such pre- <£ ference is plainly agreeable to the nature of tenures, and *378 Is highly reasonable.” — Intro due. to Law of Tenures, 178. The same principio of policy too, which sought to keep the fee entire, at first to maintain the military force of the kingdom, and afterwards to uphold a landed aristocracy, operated against the equal admission of females. For as they, when allowed to take, came in without any distinction of primogeniture, their indiscriminate admission would have caused a too minute subdivision of estates. At the times of which we are now considering, feuds were transmissible only to the lineal descendants of the feuda-tory, and it was incumbent on the claimant to the succession (as it yet is in estates tail) to trace his pedigree up to the original donee.- — Sullivan 149. 2 BL Com. 212. To enable the feudatory’s collaterals to inherit, a mode ivas afterwards adopted, founded on a legal fiction, of granting a feudmn novum ut feudvm antiquum. Immediately then, by a natural and almost necessary conse-cpience, the same rules of preference were transferred to' the stirpes or stocks which before had obtained amongst the individual claimants. That this is the true source of the preference of male to female stocks is evident, not only from Wright, Sullivan, and Blackstone, but from Sir Matthew Hale, and, it is believed, from every eminent British author who has written upon the subject. If Blackstone then is, in this respect, “ inclined to think “ wrong,” it is not extraordinary that our legislators, deriving their information from the same sources with, himself, and probably also misled by his influence and authority, have been iS inclined to think wrong,” precisely in the same way. The belief can scarcely be resisted, that, in enacting the statute of 1795, they had in view the principle itself which preferred males to females, whether in the capacity of stocks or of individuals. It was this principle that attributes to a male, or to the descendant of a male, a superior dignity of blood, which prevented an equal division of the lands of an intestate among those equally near and dear to him. It was this principle, still *379permitted to exist in a certain degree both among* individu-ais and stocks under the act of 1784, which the Legisla-ttrre deemed adverse to the policy of our government, and which they meant to abolish, with all its consequences, and in all its ramifications. It is to be hoped that, on examination, the enacting words will not prove insufficient to effectuate their intention. te Ml females shall be entitled “ to take by descent, equally with the males, share and share “ alike, according to the rules of descent upon males by the {i before recited act.” These general nurds are to be taken in a general sense, so as completely to suppress the mischief intended to be abolished, unless strong reasons are shewn for giving to them a restricted ■ meaning. What is there to prevent the application of them to stocks, as well as to individuals ? The Plaintiff’s counsel relies on the words “ share and share alike ,” which prove, in his opinion, that the preference of stocks (for that of the blood of the first purchaser is not now in question) is still retained; for had it been taken away, females, in many instances, where they had been excluded before, would be entitled to the whole inheritance, as nearest of kin, instead of coming in share and share alike. These words do indeed shew' that the Legislature had in view a case in which the males and females spoken of, whether stocks or individuals, were in the same degree of propinquity. Thus much they prove, and they prove no more. Thus understood, they are as well reconciled with the Defendant’s construction as with the Plaintiff’s; and, unless they are thus understood, they can be reconciled with neither. According to both, the same consequences follow, and both require a rejection of this over-nice criticism. But these females are also to inherit according to the rules of descent upon males by the act of 1784. The Plaintiff’s counsel, taking it for granted that the words 54 males and females” mean male individuals and female individuals, and not also male stocks and female stocks, then proceeds to shew from these words of the act, that the preference of stocks for ivhich *380]1C contends being retained, females descended from a male ancestor would be preferred to those descended from a female ancestor. But the question recurs, are these words to be thus restricted in their application ? To presume that they are, and then to trace the consequences resulting from such a restricted application, is commencing with something very like a Pelitio Prindpii.

But even if the enacting words of this act could not have a direct and positive application to stocks, it is conceived that they must produce the same effect, indirectly and of necessary consequence, as though they had. If the view which has been taken of the origin of the principle of preference between stocks be correct, it is found to be a mere auxiliary rule of evidence, resulting altogether from considering a feiuluni novum ut feudmn antiquum, and from -the personal preference of male to female individuals. The fiction having been adopted, that the land had descended from an ancestor indefinitely remote, it was deemed more likely to find this ancestor in the male than in the female line, “ because a preference had been given to males (by es virtue of the second canon) through the whole course of 11 lineal descents from the first purchaser to the present ee time.” — 2 Bl. Com. 235. The act of 1784, by directing how all estates of inheritance shall descend, has put an end to the feudal fiction, and the act of 1795, abolishes the personal preference. When the whole foundation of this doctrine of preference is removed, what is there to uphold the doctrine itself? When a principle, which supports and gives life to a rule, that has no substantive independent existence, is itself destroyed, by what, short of a life-giving process is the rule to be kept in being ? When an ancient dogma is itself abolished, the tenets grounded upon it must fall too, unless they are preserved from a superstitious reverence for antiquity. “ Cessante causa, “ cessare debet effedns.” “ Cessante ratione legis cessat et (( ipsa lex.” If this be not a case in which these maxims should operate, it seems vain to look for one. Surely it is *381stronger than many others in which they ha,ve been allowed Ml force. It was an established principle in the distribution of intestates estates, that a child advanced by his father should bring that advancement into hotchpot with the other children, but not with the widow. Our act of 1784, directed ¡that where there were more than two children, the widow should have an equal share with the children — should take a child’s part, but was silent about the rule which forbade an advancement made to a child to be brought into hotchpot with her. The Judges, however, decided that it should be so brought, because the rule had ceased with its reason — Taylor’s Repts. 213. It was an' undoubted rule of evidence, that a bond must be proven by the subscribing vvitness. Yet the execution of a bond for keeping within the rules of a prison it was holden not necessary to be thus proven. The reason had ceased when the law had invested such a bond with some of the qualities of a record.' — Ditto 140. It is needless to multiply instances. They, clearly furnish us with this rule, that when the Legislature abolish a principle, they must be presumed to intend also the abolition of the doctrines consequent upon it,- more especially should this be presumed, in a case Avhere it is evident that the reason for l’epealing the principle applies with full force to a repeal of these doctrines also. No cause can be shown why the Legislature should denounce the old maxim, preferring males to females, in its application to individuals, and approve of it in its application to stocks. If, in the one instance, it was adverse to the policy of our government, it was equally hostile in the other.

Upon the whole, it is respectfully submitted to the Court, that the Defendant is entitled to the inheritance in ques-iion, from her propinquity to the intestate, since this claim is not rebutted or impaired by those advanced in behalf of the lessors of the Plaintiff. 1st. Both parties arc of the blood of the first purchaser, and therefore no preference-can, on that account, he claimed by either. 2d. The *382principle of preference set up by them as representing. William Swann, brother to the intestate’s grandfather, over the Defendant, sister by the maternal side to John gw£UUlj pie intestate’ father, is not supported by anything to bo found in the acts of 1784. 3d. The only impediment under which the Defendant lay at common law was, the personal disability of half blood, which is effectually removed by these statutes.

And lastly, if we be mistaken in both these latter points, the act of 1795 effectually abolishes every preference of males to females, as well in the capacity of stocks as of individuals.

Brmvne, in reply.

I am well aware of the disadvantage I labour under in the discussion of this cause. As the Plaintiff must recover by the strength of his own title, I thought myself bound to endeavor to point out a consistent, I believe the only consistent construction that can be given to the acts of April and October, 1784. I also, without the least intention of misrepresentation, stated the construction which I conceived the Defendant’s counsel had contended for, and endeavored to shew, that theirs could not be the true interpretation, but that mine was. I am now very civilly told, however, that I have, “ with more “ confidence than correctness,” attributed to them a construction for which they never contended. The Defendant’s counsel, after disclaiming the construction which I, erroneously, as it now seems, had attributed to them, do not attempt to substitute another, but, being in possession, content themselves with the easier task of making objections to mine. To such of these objections as I consider material, I will offer a reply.

I. Jls to the title which the Defendant sets up under the mother of Samuel J. Swann. I take it, with Lord Coke, Co. Lit. 11, a. 343, a. that a maxim of law and a pnndple of law are one and the same thing; and, therefore, cannot conceive where the gentleman, Mr. F. X. Martin, who *383argues by consent of tbe Defendant, got bis impression, í£ tbat tbe interpolation of two principles of tbe feudal system “ in tbe common law was tbe mischief which tbe Legislature “ had in view to remedy,” (by § 7, of tbe act of April, 1784,) as tbe Legislature itself has expressly declared, tbat the mischief, which it there intended to remedy, was grounded upon one maxim of law. The same gentleman’s conjecture, that(i tbe cases in which the expression of the “ Legislature, (used in that section,) that it (the exclusion <e of lineal ascendants) produces no mischief, must be those se in which it does not operate,” seems somewhat strange. Without running any great risque of being accused of conceding too much, I believe I may admit that a law has no mischievous operation where it does not operate at all: But the difficulty lies in conceiving, why the Legislature thought it necessary gravely and deliberately to inform us of that important truth.

The same gentleman, with a view of shewing that the construction of that section, contended for on behalf of the Plaintiff, would not suppress the whole mischief intended to be remedied thereby, puts four cases. Whether any of these cases are within the mischief intended to be remedied, I will not pretend to determine : But, if they are, there is nothing more common than for a Legislature to be under the necessity of passing a second, a third, or even more laws, on the same subject, because the first had not remedied the whole mischief.

The first case he puts is, where a son, after being of age, and purchasing lands in fee simple, dies intestate, without issue, or brothers or sisters, or the issue of such, and then the lands descend to his father, who enters into possession, and dies seised, intestate, without issue, or brother or sister, or the issue of such. The mischief imagined is, that, according to my construction of that section, the lands would not descend to the grandfather of the first purchaser —which is admitted. The answer is, that, if it is a mischief that lands should not descend to an old man. *384who can neither use or enjoy them, it would have been strange if an antideluvian Legislature, when the mischief was likely to have happened, had not provided against it; but with us, short sighted and short lived mortals, it is not surprising that it should be a casus omissus. All that can be said about it, is, that the Legislature lias not been quite so circumspect as Holy Mother Church was, when she issued her prohibition against a man marrying his grandmother.

His second case admits of the same answer.

His third case is, “ Lot a widow inherit her husband’s lands.”: — Answer. When did, or can, a widow inherit her husband’s lands ?

His fourth and last case is, “ Let an uncle inherit from ce his nephew his purchased land.”. — He does not state in' the exclusion of what parent the mischief consists. If it is in the exclusion of the first purchaser’s father, it can in no event happen. For, if the uncle entered, then the father would inherit as heir to the uncle. Lit. § 3. If the uncle did not enter, then the father would inherit as heir to his son, according to my construction of this section. If the gentleman means the father of the uncle and grandfather of the first purchaser, he is only ringing the changes on his first case.

I will not trouble the Court any further on this head, because I trust that, in my former argument, I succeeded in shewing’ that neither justice nor law required, or would permit, that lands which descended from one parent to the person dying last seised, should be taken from the. family of that parent, and given to the other parent and his or her family: and because the Defendant’s other counsel seem to abandon this, and place their chief reliance on what they call their “ main defence.”

II. The title which they set up under the sister of the maternal half blood to John Swann, the father of S. J. Swann, the person dying last seised. '

*385Whoever will take the trouble of looking’ at the Yir-ginia law of descents, (Rev. Code, 177, and scq.) will see that there exists no sort of analogy between it and our act of Assembly. It does, however, make a difference. be•tween cases of descent and purchase, and between bloods and stocks, and in no instance puts the half blood on an equal footing with the whole blood; and it also expressly enacts, that in making title by descent, it shall be n<f bar to a party that any ancestor, through whom he derives his descent from the intestate, is, or hath been, an 'si alien.’’

The gentleman who argues by consent says, that the proviso in section 3, of the act of April, 1784, has “ the “ most correct and accurate meaning. It repels the bro- *•' thers and sisters of the half blood of the parent, on the “ part of whom the inheritance did not descend, in one i£ particular case only : when there are brothers and sis-ei tors of the half blood of both pai’ents.” Then, according to him, if lands descended from the father to A, and he dies intestate and without issue, leaving a brother of the paternal half blood, and a brother of the maternal half blood, the brother of the maternal half blood would be repelled from the inheritance; but if A had left a brother of the whole blood, and a brother of the maternal half blood, the frater uterinus would not be repelled from the inheritance ; which seems somewhat odd, and induces me to put a very probable case: Suppose A had left a brother of the whole blood, a brother of the paternal half blood, and a brother of the maternal half blood, who then should have the inheritance ? All the three brothers cannot take; for, by the express words of the proviso, the brother of the paternal half blood excludes the brother of the maternal half blood. The brother of the whole blood and the brother of the paternal half blood cannot take in exclusion of the brother of the maternal half blood, if he is tight, for he says, that all brothers are on an equal footing, except brothers of the paternal half blood, and *386brothers of the maternal half blood; and, therefore, bro - tiiers of the whole blood and brothers of the maternal half blood are on an equal footing; and if the brother of the wj10|e jjj00¿ takes, so must the brother of the maternal half blood. The brother of the paternal half blood cannot take alone; for every one, I believe, agrees that the brother of the whole blood is equally entitled with him. Here-is a dilemma much worse than that of the man who had a fox, a goose, and a peck of corn, to transport across a river, and I leave the gentleman to solve it.

I view this proviso as Lord Kenyon did a clause similarly situated: “ That the anxiety of some members of “ the house induced them to insert it after the act was “ first drawn; but I think the words of the enacting clause “ could never have been extended to the case mentioned i4 in the proviso, if it had ' not been excepted.” — 4 Term Ilep. 793, To which caso I solicit the particular attention of the Court, as it hath been cited by the Defendant’s counsel, and is now relied on by me.

All that this gentleman hath said about the repealing clause is arguing in a circle; and returns the question again of, Whether the two rules of the common law contended for are within the purview, or enacting part, of the act?

T now leave that gentleman to praise, with Cicero, natural law, or bewail, alone, the stubbornness of the ancient Barons, who would not, for the canon or civil law, exchange the common law, which is “ the object of my con- “ stancy,” for two reasons: 1st. Because it has secured the liberties of our ancestors longer than those of any other civilized people ever were secured •, and, therefore, I believe it to be better calculated than any other system of law over was, or probably ever will be, to preserve those of ourselves and our posterity; and 2dly. For another trifling reason — because it is the law of the land.

It is hardly necessary to say that I never have believed myself, nor vainly wished to impress a belief upon others,. *387that the preamble was the only depository of legislative will. All I have contended for was, that the preamble was one mean of finding out the intention of the Legislature : that it was “ a key to open the minds of the makers “ of the statute and the mischiefs they intended to re- “ dress.”

If the total exclusion of the half blood resulted from any principles of the feudal law, it was not from either of the canons of descent now contended for. It is not in con - formity with the canon giving the inheritance to the blood of the first purchaser •, for, suppose that the premises now in question had descended to S. J. Swann from his paternal grandfather, and that John Swann, the father of S. J. Swann, had loft brothers or sisters of the paternal half blood, and brothers or sisters of the maternal half blood, both now alive, (and he has left a sister of the maternal half blood, whose claim we are now disputing,) that half blood on the part of the father of John Swann, being the , children of tito paternal grandfather of S. J. Sn anu, and his nearest relations of the blood of the first purchaser, would, by the canon securing the inheritance to the blood of the first purchaser, now take; but, by the canon excluding the half blood, they never could: the half blood on the part of the mother of John Swann (i. e. the present Defendant) would be equally excluded by each of these canons. Nor is it in conformity with the canon giving a preference to male stocks •, for suppose that John Swann had been the purchasing ancestor, and died, leaving a brother or sister of the paternal half blood, and a brother or sister of the maternal half blood, botb now alive, by the canon giving a preference to the male stocks, his brother or sister of the paternal half blood would now be entitled; but, by that excluding the lialf blood, they would not: the maternal half blood (i. e. the present Defendant) would be excluded by the first canon as long as there was any heir, however remote, on the part of John Swann’s father, and by the latter canon altogether. So that generally, if not *388always, when tlic canon excluding tlie half blood has any operation, it is to exclude a person who would he entitled to the inheritance by one or other of the canons now con-f01._ Tliereforc, the expression .of the Legislature, that the exclusion of the half blood from the inheritance is. “ founded on principles of the feudal system which can « never apply to this State,” does not at all militate against the existence of the two canons now contended for j because it is not founded on them. 'Whether this rule of the common law was founded on any other principles of the feudal system, or was only meant to discourage second marriages and to promote escheats, it is not my province to determine, nor is it necessary now to inquire. It does not seem to have been fully established in Fortescue’s time, (about 1450,) when the vigor of the feudal system had much declined, and which was very long after the canons now contended for had been in full force.

The seventh section of the act of April, 1784, cannot, as the Defendant’s counsel contend, be considered as an exception from the third: they both constitute parts of one entire and uniform system' — the third section regulating the descent among brothers and sisters, and their issue, and the seventh among more remote collaterals. And it did, and still does, appear to me, that as the Legislature has expressly, in the seventh section, given a preference to the heirs on the part of the father, it might fairly be inferred that it was intended to do so in the third section; the more especially, as it is explicitly declared in the fourth section, that the same rules of descent shall be observed in the cases provided for in the third section as in the cases provided for in the seventh; and as the Legislature, in its then next session, (Ird. Rev. 529,) emphatically declares, that a preference had been given to the paternal line in every case except the one there specified, and then proceeds and enacts that the same lino should have the preference in that case also. But the Defendant’s counsel, with what propriety, or for what purposes, I am unable to perceive, *389¡sometimes call their client “ heir on the part of the fa-44 ther.” Surely the same law and the same reasons which give the inheritance to the father’s relations in preference to the mother’s, gives it also to the grandfather's relations (the Plaintiffs) in preference to the grandmother’s (the Defendant.)

44 The groundwork of the Plaintiff’s argument,” says the Defendant’s counsel, 44 is this — The words in the 3d 44 section 4 the lands shall descend to and he equally divi-46 ded between all the brothers, and, for want of brothers, 44 all the sisters of the intestate, as well those of the half 44 Mood as those of the whole blood,’ must be confined in 44 their construction to such brothers and sisters as are of 44 the blood entitled to the inheritance by the rule (rules) of 44 the common law.” — Be this admitted, and what follows ? 44 It follows then, says the Plaintiff’s counsel, that the 44 brothers and sisters and the most remote collaterals on 44 the paid of the father, shall be preferred to the brothers 44 and sisters on the part of the mother $ for it is a ride of 44’the common law (2 Bl. Com. 234,) that in collateral 44 inheritances, the male stocks shall be preferred to the 44 female, that is, kindred derived from the blood of the 44 male ancestors, however remote, shall he admitted before 44 those from the blood of the female, however near : This 44 conclusion, it might be observed, does not follow very 44 logically from the premises. — Indeed, the very opposite 44 conclusion might he drawn with a much greater appear-44 anco of correct argumentation. The-act declares, that 44 brothers of every description shall come, in equally, 44 provided only, that they he of the blood entitled by com-44 mon law to the inheritance.' — Now, by the common law, 44 those on the side of the mother arc, in new purchased 44 estates, of a blood entitled to [he inheritance. — Therefore, 44 in new purchased estates, they shall he admitted equally 44 with all others.” It is admitted, that in this ostentatious display of correct argumentation and logical superiority, the conclusion may perhaps follow regularly enough *390from the premises ; but it is contended, that a fallacy is contained in the premises, where it is supposed that “ by “ the common law, those on the side of the mother are, in ff new pH1.cjiase¿ estates, of a blood entitled to the inheri- “ tance,” notwithstanding there are heirs on .the part of the father in existence. The syllogism, however, attributed to the Plaintiff’s counsel, is in fact, constructed by the Defendant’s, and he may assume over it the authority of a Roman father, and treat it as he pleases. In the argument for the Plaintiff, it was taken for granted, that the common law gave to all the heirs of the blood of the father a preference over all the heirs of the blood of the mother: it was then endeavored to be shewn, that the act of Assembly had not altered this rule of the common law j and therefore the conclusion was plain, that all the heirs of the blood of the father still had a preference over all the heirs of the blood of the mother.

It now becomes necessai*y to attempt the proof of what was formerly taken for granted ,• for the Defendant’s counsel say, — There is no rule of the common law “ which, the disability of the half blood being removed, “ would give to brothers or sisters, or to more remote “ collaterals on the side of the father, a preference over (i brothers and sisters on the part of the mother.”

It may be premised, that whatever tends to shew that the brother or sister of the maternal half blood must, although the disability of half blood were removed, be excluded from the inheritance where the lands descended on the part of the father to the person last seised, tends equally to show that they must be postponed in the inheritance of lands newly purchased\ for, in the former case, their absolute exclusion is not a more positive rule of law than their postponement, as long as there is any heir on the part of the father, is in the latter.

The total exclusion, for several centuries last past, of the half blood on the side of both parents from all inheritances, in fee simple, may seem at first view, to forbid the

*391■hope of arriving at any certain conclusion in this investí-igation; but I trust, that principios and authorities will be ■found sufficient to support my position.

Every writer on Feuds proves, and the Defendant’s counsel admit, that the great object of the common law ■ was “ to keep the estate of the propositus as nearly as “ possible in the line of the purchasing ancestor.” On this principle was founded the canon admitting among collateral relations, only those who were of the blood of the first purchaser, and excluding from the inheritance uncles and aunts who had none of the purchasing ancestor’s blood in their veins : and surely for the same reason, brothers and sisters who had none of the purchasing ancestor*^ blood in their veins, must be excluded also •, for the estate would be carried from the favoured line as much by the one succession as the other : if such brothers and sisters were admitted, and such uncles and aunts excluded, the law would not be a uniform system founded in reason, but a set of arbitrary rules neither reducible to, nor supported by principle. — When the line of the purchasing ancestor could not be proved, it was presumed to be the line of any male ancestor, so far as to give that a preference over the line of any female ancestor.

Blackstone, in his 7th canon (2 Bl. Com 234,) lays it down, that “ kindred derived from the blood of the male ei ancestors, however remote, shall be admitted before £i those from the blood of the female, however near, unless es where the lands have, in fact, descended from a female.” And immediately adds, “ thus the relations on the father’s- “ side are admitted in infinitum, before those on the mo- “ ther’s side are admitted at all; the relations of the i£ father’s father before those of the mother’s mother.” It should seem, that whoever disputes the application of this authority to the present case must maintain, either that the father and mother are not ancestors j or, that a brother wrho is the son of the mother, but not of the father. *392íh a relation on tbo father's side, or of tbo blood of tla-l father. I

Littleton, § 4, (Co. Lit. 12) says, cs And in ease where! es the son pnrehaseth land in fee simple, and dies without ee issue, they of his blood of bis father's side shall inherit “ as heirs to him, before any of the blood of (lie mother’s “ side: but if be hath no heir on the pai’t of his father, “ then the lands shall descend to the heirs on the part of “ the mother." — He afterwards, in § 6, lays down the rule excluding the brothers of the half blood ; so that even if the argument on behalf of the Defendant as to Blackstone’s authority has any force, it does not apply to Littleton’s.

Gilbert, in his Law of Tenures, p. 13, (Watkin’s edit.) says, “ The succession was established to the descendants “ of the same stock in infinitum, but could not go to anj <e other relations but to such as were descendants of tlie “ stock io wham tbe donation ivas given.”

Whoever claims as Loir by descent, must show himself of the blood of the first purchaser. Finch 117. Hale’s Hist. C. L. 239. 2 Wils. 29.

is Wherever the question is between those of the pater- “ nal and those of the maternal line, the law always gives se the preference to the former,” per Willes, J. Dong. 778. Many similar authorities might be added.

A gift in tail is to a man and the heirs of his body, and there half blood never was considered as a disability ; yet when one of the issue tenant in tail in possession dies, his brother of the half blood on the part of the first donee in tail may inherit, hut the brother of the half blood which is not of the first donee in tail cannot, not because he is only of the half blood, but because tbe half blood which he is of is not the inheritable blood, or of that line in which the heir is to ho sought for. A gift in fee simple is to a man and his Heirs for ever, and when tenant in fee simple dies in possession of lands, his heir >is to he sought for in the line of the first purchaser, if they came to him by descent, or in the paternal line, if-they were newly purchased, in *393botli cases tlic inheritable quality is created by the word heirs, and in both cases the heir is to be sousiit for in a particular line; and if the brothers and sisters of the half blood, not of that line, are excluded from the inheritance of estates tail where half blood occasions no disability, why should they not he excluded from, or postponed, in the inheritance of fee simple estates, although the disability of half blood were removed. The person who claims as heir must, in both cases, bo of the blood of the, actual or supposed first purchaser, “ for without blood none can inherit.” 3 Co. 41.

The inheritance of the crown of England was not, by any special law or constitution, limited to the family of William I. but he acquired an estate in fee simple in it by conquest : the half blood of that line often inherited without doubt or dispute : but no one ever conceived that the half blood not of that line could inherit: — The Black Prince married a widow who had had several children by her first husband, Sir Thomas Holland, and they after the death of their half brother Richard II. who was the only child of the j!!a; k Prince, and died without issue, would have been «■’early entitled to the crown, if the assertion of the' Defendant’s counsel is correct; yet neither they themselves nor any one else ever dreamed of their having any pretensions, although they are often mentioned (under the titles of Earl of Kent and Dukes of Surry and Exeter) in the history of the civil wars which soon followed between the rival families of York and Lancaster, and which attracted the attention of all men to the law of succession, it is highly probable that this admission of the one half blood, and exclusion of the other, was in conformity with the general law of inheritance of that day ; for, in all disputes relative to the right of succession, kingdoms, fiefs, and all other indivisible inheritances, were considered as governed by the same law, not only in England, hut all over Europe. Hume’s Hist. vol. 2, 258.

*394By the custom of Normandy, half blood was not a dbn-bilily 5 but the half blood on the part of the first purchaser was in due order entitled to the inheritance : the other [jj00(i was utterly excluded. 2 Bl. Com. 232. When the present system of law was fully established, if not first introduced, into England, their King’, their Parliament, their Nobles, their Judges, and their Lawyers, were all Normans, and no doubt established this Norman law. If afterwards the rule totally excluding the half blood was introduced, abolish this last rule and the former one is revived ; in the same manner as when a statute altering’or repealing a former statute is itself repealed, the former statute is thereby revived.

But the Defendant’s counsel strenuously insist, that the descent from brother to brother is direct and immediate, without any regard to the blood of the common ancestor : and in support of this position, they have cited Lord Hale’s argument in the case of Collingwood v. Pace as conclusive.. Let us examine this doctrine.

That this was not considered to be law in Lord Coke’s time is clear; for in his Commentary upon Littleton, p. 8. a. he says — ee If an alien cometh into England, and hath “ issue two sons, those two sons are indigence, subjects “ born, because they are horn within the realm. And yet “ if one of them purchase lands in fee, and dyeth without iS issue, his brother shall not be bis heir, for there never ee was any inheritable blood between the father and them $ <e and where the sons by no possibility can be heirs to the “ father, the one of them shall not he heir to the other.” And again, “ Some have holden that if a man, after he be “ attainted of treason or felony, have issue two sons, that “ one of them cannot be heir to the other, because they “ could not be heir to the father, for they never had any ee inheritable blood in them.”

In Hobby’s case, which Lord Coke cites for the last point, and which was determined in the Exchequer in the 41st of Elk. one attainted had issue a sou and a daughter, *395ilie soil purchased lands in fee simple and died, and the question was, .whether tiie daughter should be his heir ? It ivas determined, contrary to some ancient dicta, that she should, not however as heir .on the part of the father whose blood was corrupted, nor merely as sister, hut as heir on the part of the mother, who was entitled to the inheritance of these newly purchased lands in default of heirs on the part of the father. This, Lord Hale himself says, was the prindpal reason for the decision, Co. Lit. 12 a. n. 7., In that very case, as Rolle cites it, 2 Rolle’s Rep. 93, it was agreed, that the denizen sons of an alien could not inherit to one another. Yet the Defendant’s counsel say — “ The “ most complete impediment in a father or mother, or “ both, such as an attainder or alienage preventing the “ transmission of any inheritable, blood from either, will “ not prevent or affect at all the descent from one son to <£ another.” V

Cornelius Godfrey, an alien, having issue Daniel, born in Flanders, came into England, was made a denizen, had issue Cornelius, and then died. Daniel (3 Jac. I.) was naturalized by act of Parliament, purchased copy hold lands of .inheritance, and then died without issue. The question was, whether his brother Cornelius should be bis heir ? The Court at first delivered an opinion that he could not; 6i for although he claimed not from his father, but £‘ from his brother, yet the common law respects the foun((tain from which their blood flowed.” But afterwards, at another day, the Judges doubted, — “ because if the act “ of Parliament made him inheritable, that ought to make amend of the question,” and ordered the counsel to argue upon the words of the act of Parliament, which was done accordingly: — the Court then decided that the brother should inherit. 2 Rolle’s Rep. 92 and seq. That their decision was made solely on the wording of the act of naturalization, appears from the report above cited \ and further, because on a.future day, during the same term, (lb. 113.) the counsel opposed to the claim of the brother, moved *396-(J1C cause again? and, insisting that the act (of naturalization) did not enable the brother to inherit, was proceeding to argue the question, when he was interrupted by the Av])0 g^,^ that “ if the claim of the brother, who “ was a natural born subject, was overthrown, the claims “ of many others, who had been naturalized by the same iS Parliament, would be annulled.” In Cro. Jac. 539, where the same case is reported, it is said “ that the doubt te only grew upon these words, because it is enacted (in “ the act of naturalization) that he shall he heir to his an- “ ceslors, lineal or collateral, but it is not said that they “ shall be heirs to him.”

Several observations occur on this case: — 1st. That the doctrine of the Defendant’s counsel, that the descent from brother to brother is immediate, without any relation to the blood of their common ancestor, was not then the law: for if it had, tins case probably never would have been litigated, the brother dying seised, being naturalized by act of Parliament, and the one claiming as heir being a natural born subject; or, if the case had been litigated, it would have been decided on that principle of general law, without any recurrence to the act of Parliament, the construction of which was considered as so doubtful. 2ndiy, The Court expressly says, “ that by the common law he “ could not inherit; because it respected the fountain from (< which their blood flowed,” i. e. their common ancestor. And Sdly, The reason which the Court gave for interrupting the counsel opposing his brother’s claim : — From the moment James I. of England and YI. of Scotland, united these two crowns in his own person, it was a great object with the Court to unite the two kingdoms ; hut that was a Vv ork of time : in the interim, however, many acts naturalizing Court favourites were passed, the nobility of the two countries intermarried, and the Judges, who held their offices during the pleasure of the King, and were notoriously under the influence of the Court, strained, or perhaps perverted, the law in favor of aliens : which last was *397one of the complaints in the House of Commons in the 8d year of Charles I. Hume’s Hist. vol. YL p. 243.

It may bo proper to observe, that the disability of an alien or his children, correctly speaking, proceeds not from want of blood, for in that they are not defective, but from the place of birth. Cro. 3 ac. 539, or propter defednm sv.bjecliords, Co. Lit. 8 a.

The short statement of the case of Collingwood v. Tace is, the naturalized son of an alien Scot claimed as heir to his naturalized brother the Earl of Holdcrncss. The cause was decided about the time that our charter was granted by Charles II, and concerning it, the Judges differed in opinion, there being seven for, and three against; the Claimant; so that the argument of Halo can only be considered as his own opinion, and not as the opinion of the Court: The seven, it is true, concurred in giving judgment in favor of the brother ; but some of them seem to have done so for reasons different from tho.se assigned by Hale ; for in the report of that case, in 1 Lev. 59, 60, the concluding reason attributed to the Court is — “ and “ the words of the act of parliament, which say he shall be “ inheritable to any ancestor lineal or collateral, would bo in i( vain, if he being descended from an alien father could “ not have any ancestor.” Thus grounding their decision on the words of the act of naturalization, as the Court bad done in the case of Godfrey and Dixon.

As the opinion of Lord Hale, in the case of Collingwood and Pace, was different from that of Lord Coke — of the Court in the case of Godfrey and Dixon, and in Hobby’s case — of some ox his brethren in that very cause, — and even of himself at another time, as above cited, and his reasons for that opinion were assigned by him merely as an individual Judge, I trust I shall not be thought guilty of very great presumption in examining the iorce of those reasons.

“ 1st.” Says he, “ in point of pleading, one brother “ shall derive himself heir to another, without mentioning *398« any other 'ancestor.” — Suppose this to be universally true, as the Defendant’s counsel would have us believe, it by no means proves, that no regard is had to the blood of common ancestor, for the Plaintiff avers himself brother and heir, which necessarily implies that he is descended from the same father and mother ; and it could answer no purpose to allege that last fact, for expressio corum quos iadte insunt nihil operatur, and therefore, the Plaintiff is not bound to do it, for lex neminem cogil ad vana. If the Plaintiff is not brother of the whole blood, the Defendant ought to shew it. Plow. 77. But in truth, it is only where the Plaintiff is brother, or descended from the brother of the person dying last seised, that the Plaintiff derives himself heir without mentioning any other ancestor. Co. Ent. 319, 321 — which are counts in Formedon, where it cannot be pretended that the blood of the common ancestor is immaterial. But in cases, like the one now before the Court, where the Claimant is neither brother, nor representative of a brother of the person dying last seised, but claims as a more distant relation, he counts first from the common ancestor down to the person dying last seised, and then from himself up to the common ancestor, without stopping short at one of his own ancestors, and averring, that he was brother to one of those through whom the estate came from the common ancestor to the person dying last seised. Co. Ent. 317. So that if any weight is to bo allowed to the mode of pleading in Forme-don, it must be against the Defendant.

(( 2diy,” says he, “ According to the computation of “ degrees according to the laws of England, brother and “ brother make one degree, and the brother is distant “ from .his brother and sister in the first degree of consan- “ guinity.” — If the word first is not cabalistical, there is no force in this argument. The law of England holds, “ that the very being of collateral consanguinity consists iS in a descent from one and the same common ancestor.” 2 EL Com. 205, and therefore counts from the common *399ancestor, as tlie source of their blood 3 and it seems very extraordinary to cite this very mode of computation to prove that the law of England has no regard to the blood of the common ancestor. The civil law, which has less regard for stocks or bloods, counts from the propositus. "Whoever will take the trouble of looking at a table of descents, will immediately see that the succession to lands is not regulated by the degree of consanguinity of the Claimant, but by that of the common ancestor, e. g. the father’s great grandson, who is of tiie third degree of consanguinity, succeeds before the uncle, who is of the second 3 because the father, whom he represents, is of the first degree of consanguinity, and the grandfather, whom the uncle represents, is of the second.' — Homer himself sometimes nodded.

“ Sdly,” says he, “ the descent between brothers, dif-iS fers froni all other collateral descents whatsoever, for “ in other descents collateral, the half blood doth inherit, “ hut in a descent between brothers, the half blood doth *■' impede the descent,” &c. — If he here means, that in collateral descents all other persons having one half the same blood with the person dying last seised (only uncles and aunts) are in due order permitted to inherit, he is certainly correct 3 but if he means, that in all other collateral descents, a person descended from only one common ancestor may inherit, I apprehend he is mistaken. 2 Bl. Com. 228, and Tab. 240. The total exclusion of the half blood is, however, an anomalous and positive rule, not founded upon, or consistent with the general principles regulating the law of descents, and no correct argumentation can be drawn from it either way.

Lord Hale adds another reason, which, although the Defendant’s counsel have not thought it worth citing, probably liad great weight with him. “ The law of Eng- “ land,” says he, “ hath been always very gentle in the “ construction of disability, and rather contracted than “ extended it.” 1 Yent. 427. i£ And surely, if ever there ie was reason for a gentle construction, it concerns us to *400« be. guided by such an interpretation since the union of 6e ibe two kingdoms, by which many, perchance, \ ery con‘e siderable and noble families of a Scottish extract, may « |,e, concerned in the consequence of this question, both “ in England and Ireland, that enjoy their inheritance in ee peace.” ib. 428. To this I shall only subjoin the remarks which an eminent writer, often accused of partiality for the house of Stuart, has made on a case determined a few years afterwards, in the same reign: (S It is evident, “ that those who would apologize for the measures of the “ Court must, in this case, found their arguments, not on “ law, but reasons of state. The Judges, therefore, who ‘e condemned the city, are inexcusable; since the sole ob- “ jcct of their determinations must ever he the pure prin- “ ciples of justice and equity. But the office of Judge Si was, at t3>at time, held during pleasure; and it was imic possible that any cause, where the Court bent its force, “ could ever be carried against it.” Hume’s Hist, of Eng. vol. 8, 131.

• Lord Hale immediately adds, “ It is true, the bosom or “ foundation of this consanguinity is in the father and “ motherand therefore, when he afterwards says “ the áí father is not such a medium or nexus as is looked upon “ by law as the means deriving a descent between two “ brothers,” he is endeavoring to erect an edifice without a foundation — a mere castle in the air — which the Defendant’s counsel now wish your Honors to tenant.

Lord Halo seems to have been solely anxious, for the sake of those “ very considerable and noble families,” to decide against any objection arising from alienage in the parents; for he seems to admit the doctrine laid down in Hobby’s cases, that the after-born sons of persons attaint-ed cannot succeed to one another: and, in his answer to the second objection urged against the claim of the brother, be says, “ it is true that their natural blood is de-<s rived from their parents, and as it is that that makes “ them brothers, so it is that that makes them the same *401 es blood | but yet the civil qualification of their blood, “ which makes them inheritable one to the other, is from Si another fountain, (viz.) the law of the land; and the “ law finding them legitimate and utrinque conjnnctos san-íe guiñe parentali naturali, and so natural brothers, and “ finding them transplanted into the civil rights, of this 55 kingdom, by their birth here or naturalization, which is “ all one, doth superinduce and close the natural consan- “ guinity with a civil hereditary quality whereby they “ may inherit one the other.” Thus stating them in every respect entitled to the inheritance, except that their parents were aliens, and then says he, the law, finding them so, doth superinduce and close the natural consanguinity by a civil hereditary quality, whereby they may inherit one the other. Suppose he had been asked, if the Legislature should remove the disability of half blood, could the frater uterimus inherit lands descended from the father ? He probably would have answered, — “ No : he “ has not the natural consanguinity on which the law “ could superinduce a hereditary quality.” Or it must have shewn the glaring deformity of his doctrine, that a brother not of the blood of the purchasing ancestor should inherit, but no other relation not of that blood should.

It might further be replied to this case, that the question before the Court is not concerning the descent from the person dying last seised to his brother or sister, but to a more distant relation.

I cannot help hero expressing a wish that those who are so anxious that our Judiciary were dependant on the Legislature were informed, or would consider, how other Judiciaries have acted when they were in a dependant situation.

But if the Defendant’s counsel had even succeeded in establishing their position — “ That there is no rule of the “ common law which, the disability of the half blood being “ removed, would give to brothers and sisters, or to more “ remote collaterals on the side of the father, a preference ts over brothers and sisters on the part of the mother,” it *402ought not in the least to influence the decision of this cause, for the Legislature, by the act of April, 1784, in my opinion, has clearly established such a preference. jn section 4 of that act, the Legislature has declared that the same rules of descent shall be observed in the cases of descents to brothers and sisters,, or their children, as in cases of descent to collaterals, further removed, than the children of brothers and sisters.

And in section 7, of the same act, the Legislature has declared, that in cases where the lands have been actually purchased, or otherwise acquired, by the person dying last seised, and the descent must be to collaterals further removed than the children of brothers and sisters, the inheritance shall vest in the heirs of such intestate on the part of the, father, and for want of heirs on the part of the father, then (and not till then) in the heirs of such intestate on the part of the mother.

Therefore, in cases where the lands have been a aally purchased, or otherwise acquired, by the person lying last seised, and the descent must be to brothers and sisters or their children, the inheritance shall vest in the heirs of such intestate on the part of the father, and for want of heirs on the part of the father, then (and not till then) in the heirs of such intestate on the part of the mother.

Whether this argument is, or is not, in what, in tho wrangling language of schools, would be called “ approved “ form,” 1 care not: if it has substance, and is intelligible, it will answer my purpose.

To their argument on the act of 1795, it is deemed unnecessary to offer any other answer than barely to refer to the argument formerly delivered on behalf of the Lessors of the Plaintiff. It is believed to be impossible to raise a doubt on the construction of that act, as long as words retain their present meaning.

Upon the whole, it is respectfully submitted to the-Court, that the Lessors of the Plaintiff ought to recover ; because, on the death of Samuel Johnston Swann, to whom *403the premises in question descended, from his father John Swann, the mother of the said Samuel was not entitled to a life estate or the inheritance, but the heir is to be immediately sought for in the line of his said father j and be-calise, the said John Swann leaving no other issue, the nearest relation on the part of his father (the Lessors of the Plaintiff) are, by the common law, entitled to the inheritance, and not his maternal sister of the half blood (the Defendant) who has none of his father’s blood in her veins ; and because it appears to have been the manifest intention of the Legislature, in the acts of April and October, 1784, to give to the heir on the part of the father, or the male stock, in every case whatsoever, a preference over the heir on the part of the mother, or the female stock; and because the act of 1795 has made no alteration in that particular.

By the Court.

This being an acquisition by purchase on the part of John and Thomas Swann, the wife of the Defendant, is clearly entitled as heir, according to the several decisions which have been made to that effect.

Judgment must be entered up accordingly.

Daniel, Judge,

(who sat for Judge Henderson :)

The two tracts of land known by the name of the Elm plantation, were devised in tail by Samuel Swann the elder, to his first, second, third and fourth sons in succession. Samuel Swann the younger, the devisee, was seised and possessed of the Elm plantation at the time entails were docked by the act of 1784, ch. 22. The other tract mentioned in the special verdict, Samuel Swann the younger, held in fee.

Samuel Swann the younger made and published his last will, on the 24th May, 1786, and therein and thereby devised the Elm plantation, to his brother, John Swann, in fee. John Swann is considered in law as the purchaser of tiiis plantation, as he did not get title thereto by descent.

*404John Swann died intestate, leaving an only child, named Samuel Johnston Swann, an only maternal half sister, by the name of Rebecca!» Blount (who married the Defendant) and the lessors of the Plaintiff, who are his second cousins of the paternal line," all his brothers having died without issue.

Samuel Swann the younger, devised the other tract of land to his brother, Thomas Swann, in fee; and Thomas Swann, the devisee, having died without issue, this tract descended to his nephew, Samuel Johnston Swann. Thomas Swann is to be considered a purchaser of this tract of land, and, as he stood precisely in the same relation to the lessors of the Plaintiff, audio the Defendant, as John Swann the younger did, the person or persons who are entitled to the Elm plantation, will be entitled to the tract devised to him.

Samuel Johnston Swann died intestate and without issue, or brothers or sisters, or the issue of such. And the question submitted to this Court is, who are the heirs of Samuel Johnston Swann ?

At the common law, the heir would be searched for among the lessors of the Plaintiff. 1st. Because they are of the paternal line and of the male stock, to-wit, the grandchildren of William Swann, who was the brother of Samuel Swann the elder, and great uncle of Samuel Johnston Swann. 2d. Because Mrs. Shepard is of the half blood and never could have inherited.

Samuel Johnston Swann dying without issue, or brother or sister, or the issue of such, leaves the case exactly in the same situation as if John and Thomas Swann, the purchasers, had died intestate and without issue. The same person who would have been the heir of John Swann, had he died without issue, is the heir of Samuel Johnston Swann.

The great and general principle, upon which the law of collateral inheritances depends, is this, that upon the failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser. He who would have been *405heir lo the father of the deceased, shall also be heir to the son. *

'When a man takes an estate by -purchase, be takes it not 'ut feudum paternnm or maternum, which would descend only to the heirs on the side of the father or mother; but he takes it as a feudom iwcum,' to be held ut feudom anii-qnm, as a feud of indefinite antiquity, whereby it becomes inheritable to his heirs general, first of the paternal and then of the maternal line. The blood of the father is more worthy and more near in judgment of law.† Lord Coito says, every person has four immediate bloods in him, two on the part of the father, to-wit, his paternal grandfather’s blood, and his paternal grandmother’s blood : and two on the side of his mother, Ms maternal grandfather’s blood, and his maternal grandmother’s blood. If a man purchase land and die without issue, or brother or sister, or the issue of such, his eldest paternal uncle would take : If there be no paternal uncle, or the issue of such, then his paternal aunts ; if there be neither, nor the issue of such, then his eldest great uncle of the line of his paternal grandfather, and so on until that line be exhausted; always giving a preference to the male stocks. On the failure of blood or kindred in the line of the paternal grandfather, then tire same rule is to be followed as to the paternal grandmother’s line. If that fail, then the maternal grandfather’s line is to inherit. On the failure of that line, then the maternal grandmother’s line is to be sought for, and it shall inherit according to the rule aforesaid.‡

The case does not state, which of the lessors of the Plaintiff is the issue of the eldest son of William Swann. One of them certainly is ; and that person would have been the heir of Samuel Johnston Swann at common law. Let us enquire into the changes which the Legislature has made of these rules of the common law, and into the extent and reason of those changes.

*406In consequence of the revolution, the people of this State formed a republican government, and it became necessary in defending this form of government, that the aristocrati-caj doctrine of primogeniture, in the descent of real estates, should be exploded, the principles contained in the statute de donis conditionalibus be no longer enforced, joint tenancy, with its jus accrescendi, be abolished, and the half blood, (which had been entirely excluded) let in, when it was in the line of inheritance. In short, it became necessary, for the welfare of the government, that landed estates should undergo a more general and equal distribution than had hitherto prevailed. The Legislature never meant to change or alter the stocks or geneological lines, from what they were known to be at the common law. The stocks and lines remain the same, with the addition of the half blood, when in those lines, together with the ascent of real estates in certain cases.

It is in general true, that the preamble of a statute is a key stone to open the mind of the makers, as to the mis-chiefs intended to be remedied by the statute. But this rule must not be carried so far as to restrain the general words of an enacting clause, by the particular words of the preamble. The preamble to every section of the act of 1784, ch. 22, clearly explains the intention of the Legislature. The preamble to the 2d section, shews the will of the Legislature to promote an equality of property, by a more general and equal distribution of landed estates j or in other words, to destroy the rule of primogeniture — the second section then lets in all the sons : on failure of them and their issue, it lets in all the daughters. The preamble to the third section complains only of the exclusion of the half blood from the inheritance; the section then lets in the half blood, hut does not destroy the slocks or lines, as established by the common law. There is no complaint of the common law stocks and lines. This section declares, (though certainly in terms not very clear) that the old rule relative to stocks and lines shall remain; but that *407 the half blood shall inherit equally with the whole blood, when it is found in those lines, and in equal degree. And it clearly intimates fay the proviso, that the half blood shall not inherit when out of the common law stocks or lines, although in equal or in a nearer degree. Thus when land descends on the side of the father to a son, afterwards the son dies without issue, but has a half blood brother on the maternal side, and an uncle or more remote relation of the whole or half blood, on the paternal side : the relation next in degree on the paternal side, shall inherit, to the exclusion of the maternal half brother : because, 1st. He is of the blood of the first purchaser. 2d. The proviso to the third section expressly enacts, that the maternal half brother shall not inherit, until such paternal line be exhausted of the half blood, (and of course, of the whole blood.) The maternal brother is not to be let into the inheritance as soon as the paternal line is exhausted of brothers and sisters : the act says, he shall not inherit until the paternal line be exhausted of the whole and half blood. Heirs shall be sought for on that line, ad infinitum, before any of the maternal kindred shall inherit, no matter how near in degree. And the same rule e converso, when land shall descend on the maternal side. The paternal kindred shall be excluded as long as any whole or half blood can be found on the maternal side, let it be ever so remote.

The fourth section extends the rules laid down in the second section relative to lineal descendants, and, in the third section, relative to collateral relations, ad infinitum.

That this is the most proper construction, wrill manifestly appear from reading the rules of the common law, and then the third and fourth sections of the act of 1784, ch. 22. This construction does not clash with any of the grand objects which were in the view of the Legislature at the time the act was passed; but runs in unison with them. It is agreeable to justice that those who are of the blood of him who has labored for and purchased the land, should inherit; and not a stranger. If this construction *408be not adopted, tlie land might descend to a stranger in two changes ; to-wit, A purchases land, and dies, leaving a son B. The widow marries again, and has a son C. dies without issue, and the lands descend to C, his maternal half brother, who is not of kin to A, the first purchaser. Such a construction was never intended by the L egislature. The kindred of A, the first purchaser, shall be preferred, no matter how remote ; otherwise industry w ould he cramped, and men become careless of acquiring estates.

The preamble to the fifth section complains of entails ; and the section docks all entasis that are in possession, and turns them into fee simple estates.

The preamble to tlie sixth section complains of the injustice to the family of that joint tenant who shall die first. The section abolishes the principle of survivorship, and turns all joint tenancies into tenancies in common, with one exception.

Tlie preamble to the seventh section complains of the rule which forbids tlie inheritance ever to ascend. “ When lands are purchased, or otherwise acquired,” (but not by descent from a deceased parent,) “ and the owner dies “ without issue, or brother or sister, or the issue of such,” then the seventh section of the act of April, 1784, and the third section of the act of October, 1784, let in the father first j and, if lie be dead, then the mother for life; and then the heirs on the part of the father; and, if none on his side, Cad infinitum, J then tlie heirs on the part of the mother.

The reason given for this rule by the Legislature is, that the paternal line is favored in all instances.

Mrs. Shepard, the wife of the Defendant, is heir to the lands in dispute, because she is next in the degree of the blood of the purchasers, John and Tilomas Swann, being a sister: and, although of the half blood, the third and fourth sections of the act of 1784, maleo her capable of in be citing. But if Mrs. Shepard should die without issue, then the next heir to these lands would not be of her father’s line, (the Blount family,) because none of the blood of the pur*409chasers can be found in that line. They must be the persons who are next in degree and of the Mood of John and Thomas Swann: 1st. of the paternal line, (and these would be the lessors of the Plaintiff,) and when that line is exhausted, then 2dly, the maternal line of John and Thomas Swann shall inherit, as they shall he nearest in degree, until it shall be exhausted; always giving preference to the paternal or male stocks, as known at the common law 3 and is clearly intimated by the seventh section of the act of April, 1784, and positively declared by the third section of the act of October, 1784. Let judgment he entered for the Defendant.

*

2 Black. Com. 226.

‡

Coke Litt, 12. b.

†

Coke Lilt. 12 a. 12 b.