[dateline] Charlestown 29th. Sepr. 1759
[salute] Dear Sir
Absence from home for this Week past has occasioned my delaying an Answer to your very agreable Favor of the 14th. Instant.2
It gives me the most sensible Pleasure to find in my Friend so becoming a Resolution to persevere in the sublime Study of the Law, maugre all the Difficultys and perplexing Intricacies with which it seems embarrassed. I call it a sublime Study; and what more sublime! what more worthy the indefatigable Labours and Pursuit of a reasonable Man! than that Science by which Mankind raise themselves from the forlorn helpless State in which Nature leave's them, to the full Enjoyment of all the inestimable Blessings of Social Union, and by which, they (if you will allow the Expression) triumph over the Frailty and Imperfections of Humanity?
Tho' in my last3
I mentioned the Greatness of the Task we have voluntarily set ourselves; and the Shortness of the Time to which by the present Constitution of Things we are confined, as an Apology for my
attempting to assist you
in your Progress; and to justify you
in making Use of Means so vastly disproportionate to the End; I say, tho' I hinted these Things to these Purposes; yet I would not have you conclude from hence; that I am discouraged from the Pursuit. No my Friend, I thank God, I am at present far from a State of Despondency. The Difficultys, 'tis true, are great, but the Motives to Resolution and Diligence are superiour. The Obstacles are surmounted by the Industrious; are insurmountable only to the perversely indolent and effeminately irresolute. For my own part, I am determined, as I have (to return you a Scripture-metaphorical-Phrase) put my Hand
to the Plough, not to look back, and it is not the smallest Encouragement, that I have found in you a fellow-Traveller who, if at any Time thro' Inattention, Inability or Ignorance I should stop short or deviate, can, and I doubt not will, kindly lend an helping Hand and set me right.
Your Account of Mr. Blackstone's Lectures4
is entirely new to me, but I am greatly pleased with it. The Embellishments of historical and critical Learning, as well as the alluring Ornaments of Language, (too much neglected by Law-writers) would undoubtedly render much more agreable the Study of the Laws of England, in their present System, too abstracted and dry. I could wish Mr. Blackstone, or some other Friend to this invaluable Branch of Knowledge, would undertake to abridge the Reports, that we might not be forced to throw away so much of our Time upon needless Repetitions.
You refer me to Hawkins5
for an Answer to my Question touching Survivorship where a power to sell is devised. I had before consulted Co. Lit., Hawk.6
who all agree the Law to be the same, but I am not satisfyed. At common Law, it seems, if one Executor refused to sell, the others could not, but this appearing too rigorous and militating with an established Rule, (viz) that in the Construction of Wills the Testator's Intent is to be followed; the Stat[ute]
of 21. H.8, ch. 4. was made, by which it is enacted, that where one or more refuseth yet the Residue may sell; but no Provision is made by it where one Executor dies, tho it seems to me there is the same Reason for abating the Rigour of the common Law in this Case as in the former; and ubi eadem ratio, ibi idem jus, is a favourite Maxim which I am always pleased to find true in Practice as it undoubtedly is in Theory; and whenever the Law appears to rest on any other Foundation than that of Reason, I find it difficult to retain that Veneration which I am always desirous to preserve in my Mind for the former.
And by the way, I would ask, whether this must not sometimes, if not often, be the Case, while the latest Resolution is Law? But not to ramble, Hawkins in his Abridgment (page 170.) tells us that by a favourable Construction of the (above-mentioned) Statute, where Land is devised to Executors to be sold, and some refuse, yet the others may sell, tho' this is not within the Letter of the Statute, which provides only in Cases where a bare power to sell
is devised; but the reason is the same. Whether it would be a Construction of the Statute, too liberal, to extend it to the enabling the Survivors to sell where one Executor dies, I will not take upon me to say; but it seems to me this Construction would not be more forced than Hawkins's; (for the
Statute provides only in Cases where a bare Trust
is devised, and he extends it to the Case where a Trust coupled with an Interest
is devised; which two Cases are, I think, as different as these two, where an Executor refuseth
to sell, and where an Executor dies
and therefore can't sell). If you see any essential Difference you will communicate it. Perhaps you may meet with some Statute in Point which may easily have escaped my Notice. I mentioned the Case one Day to several of my Superiours in the Law, who all seemd to think there was some such Statute, but could not recollect it.
To your Question, what Rule the Superiour Court go by in computing the Degrees of Kindred among Collaterals
? I am at a Loss what to answer. The Case you put when I saw you last (which, if my Memory serve's me, was, where a Child died intestate leaving a Father and Brother, the Court adjudged his Estate to the Father) seems primâ Facie, not properly determinable by any Rules for computing the Degrees of Kindred among Collaterals
, the Father being in the right
Line ascending from the Son, and not in the Collateral
Line. But this is a sudden Thought and it is quite supposeable I may be wrong. However, Wood in his Inst. Co. Law.8
(page 354.) says, if a Child dies intestate and unmarried, the Father surviving has the Childs whole Estate at this Day: and cites 1. Williams 48.9
I have not Williams by me; but this Resolution seems to be upon a Clause in the Statute of 1. Ja.2. ch. 17. so that the Superiour Court, I imagine, have determined agreable to the Practice of the Courts in England. Perhaps I have misapprehended your Difficulty; if I have, pray state the Case more fully in your next.
If you should think me deficient in the Number of my Letters I believe you will readily allow that I make ample amends in the Size, and I shall own your Patience is great if it will hold, while, to the Exorbitancy of this in particular I add that, I am your sincere Friend,