the father, and as both the brothers confeſſedly ſprung from him, it is demonſtrable that the half brother muſt be of the blood of the firſt purchaſor, who was either the father or ſome of the father's anceſtors. When therefore there is actual demonſtration of the thing to be proved, it is hard to exclude a man by a rule ſubſtituted to ſupply that proof when deficient. So far as the inheritance can be evidently traced back, there ſeems no need of calling in this preſumptive proof, this rule of probability, to inveſtigate what is already certain. Had the elder brother indeed been a purchaſor, there would have been no hardſhip at all, for the reaſons already given: or had the frater uterinus only, or brother by the mother's ſide, been excluded from an inheritance which deſcended from the father, it had been highly reaſonable.
Indeed it is this very inſtance, of excluding a frater conſanguineus, or brother by the father's ſide, from an inheritance which deſcended a patre, that Craig[1] has ſingled out, on which to ground his ſtrictures on the Engliſh law of half blood. And, really, it ſhould ſeem, as if the cuſtom of excluding the half blood in Normandy[2] extended only to exclude a frater uterinus, when the inheritance deſcended a patre, and vice verſa: as even with us it remained a doubt, in the time of Bracton[3], and of Fleta[4], whether the half blood on the father's ſide were excluded from the inheritance which originally deſcended from the common father, or only from ſuch as deſcended from the reſpective mothers, and from newly purchaſed lands. And the rule of law, as laid down by our Forteſcue[5], extends no farther than this; frater fratri uterino non ſuccedet in haereditate paterna. It is moreover worthy of obſervation, that by our law, as it now ſtands, the crown (which is the higheſt inheritance in the nation) may deſcend to the half blood of the preceding ſovereign[6], ſo as it be the blood of the firſt monarch, purchaſor, or (in the feodal language) conqueror, of the reigning family. Thus it actually
