THE CASE OF Founder's Kinsmen. THE CASE OF Founder's Kinsmen: WITH Relation to the STATUTES of— College, IN The University of— Humbly proposed and submitted to Better Judgements. LONDON, Printed for J. Whitlock, near Stationers-Hall. THE CASE OF Founder's Kinsmen, etc. A. Found'st a College 250 Years ago, dies unmarried; by the Statutes of his College, he gives preference in Election of Fellows, to those, Qui sunt vel erunt de consanguinitate nostra, & genere. Q. Whether there are any such persons now who can claim the Preference as Kinsmen? and who can claim? IT is not unlikely, but that I shall be charged with Ingratitude, upon account of these Papers, which scruple at the pretensions of Kindred, having myself eaten a Founder's Bread: A Charge indeed, which of all things I abominate; and tho' the Argument may be popular, yet I hope it will not appear conclusive. Suppose this A. had been my Founder; yet, since Gratitude is but one part of duty to a Founder, if this which is called Gratitude, shall interfere with the observance of his Statutes, I conceive he Acts most consistently, who keeps to them, which are the Rule of his Obedience, as to every particular. Besides, I thought myself obliged in common justice to propose somewhat of this nature; for tho' in Acts of mere favour and grace, the respect had to any (tho' never so remote) Relation to a Founder, or Benefactor, be truly commendable, yet when they pretend to a strict right, and many additional advantages, to the prejudice of others it may be more deserving, nay sometimes of their Seniors in the College; I thought I say in Common Justice, such a pretention ought to be scrupled and examined, and, if groundless, utterly discountenanced. I shall therefore propose these Queries, Collections, and Observations, entirely submitting them to better Judgements how far they are conclusive against such pretensions, for to be peremptory and positive; besides, that 'tis a disgrace to fail in such undertake, I shall not take the Confidence, or pretend to that Authority magisterially to assert. I come now to the thing in hand, which is to be satisfied in these three Points. First, What this Consanguinity is. Secondly, Who are these Consanguinei. Thirdly, How far this Right of Consanguinity extends. As to the first Point, I find, that by the Civil and Canon Law, this Consanguinity must be defined * C. 2. 35. quaest. 3. and stated. Now by the Civil Law there is no proper Consanguinity strictly taken, as I think, but between Brothers, and Sisters of the same Father. All other Relation, being either Agnatio per lineam masculinam, or else Cognatio per lineam foemininam. But the difference of these two being taken away † Novel. De Haered. ab intestato, 118. §. Nullam vero. , Kindred may be more largely called Cognatio generalis, or Jus eorum quos ab eodem stipite descendentes sanguis conjunxit: And according to this definition we find Consanguinitas, q. sanguinis unitas, to signify this Cognatio generalis, by the Civil Law ‖ L. descriptionis C. de imponend. lucrat. descript. & consanguinitate in gloss. . Thus much for the strict, and for the more large acceptation of the word by the Civil Law; consonant to which large use of the word the Canonists take the same; the Laws therefore agreeing, Consanguinity is it not That Relation which one person has to another as descended lineally from him, or that Relation which two persons have to each other as coming from the same common stock, whether by the male or female side? This Consanguinity I find also is threefold: 1ᵒ. Ascendentium, The Relation of the Father, Grand father and their Wives, to their Children, grandchildren, & sic Ascendendo. 2ᵒ. Descendentium, as of the Children, etc. to their Father, etc. & sic descendendo. 3o. Transversalium, as between Brothers and Sisters and their Children, Uncles and Aunts and their Children, & sic de Caeteris ex utroque latere per dictam Novellam, 118. Thus much for the usual definition, description, and division of Consanguinity allowed by all, as I conceive. I come now to the second Point, who are these Consanguinei. Eos Consanguineos dicimus, says the Canon Law * C. 2. 35. quaest. 3. , quos divinae, & Imperatorum ac Romanorum atque Graecorum leges, Consanguineos appellant, ac in Haereditate suscipiunt, nec repellere possunt. In some Books indeed I find, Affines, so termed; and Bartolus says, Quod communis usus loquendi, Consanguineum appellat, etiam quocunque modo sanguine conjunctum. But if we consider that in our Case, A. the Founder was never Married; that cuts off all pretensions by Affinity, and of Children, and their Descendants: Ascendants cannot be supposed by any means; and they being to be de nostra Consanguinitate, and de nostro Sanguine; none sure can be his kin, but by the Fathers, and Mother's side, and that will exclude all remoter Alliance, or those quocunque modo; i. e. remotissimo sanguine Conjuncti. These things being premised, Are not the Consanguinei to the Founder, those allied to him ex linea Transversali, as Brothers and their Children, etc. Sister's Children, etc. & sic de Caeteris in linea Transversali, of Statutable Age? Now these, ex utroque latere, being equally privileged * Novella, de Haered. ab intestato, 118. §. Nullam vero. , they all claim to the very same degree. Which brings me to the third Point, how far, or to what degree this Right of Consanguinity extends. Now because the Civil and Canon Law differ in the Computation of their Degrees, this difference must first be stated: It must therefore be observed, what is said, that the chief design of the Canon Law, is to reckon the degrees, so as not to interfere with prohibited blood, to prevent incestuous mixtures, and to promote relation and public decency and honesty. And because Marriage cannot be, but between two * C. 2. 35. quaest. 4. persons, therefore the Canon's place two in one degree, who, according to the Civil Law, are in two. For the Civil Law respecting only the Conveyance of Estates, and the Right of Succession; and because that Right is conveyed down from one to another, therefore generata persona gradum adjicit. The Rules of each Law's Computation, see in the Decretum immediately preceding † Ibid. c. 6. . This being observed, the next thing is, to ascertain which Computation we ought to follow: and, say our Books ‖ Garcias de beneficiis 7. par. c. 15. nu. 25. , Certum est sequendum esse Computationem legalem pro gradibus, nam quoad successiones & in earum materia servanda est in utroque foro, Computatio legalis & non Canonica: And that this is a sort of Succession, may appear by and by. Now Consanguinity extends itself more or less, according to the different matters, it is referred to, as may be seen at large * Bertachini Repertorium Verb. Consanguinitas. . But without doubt there cannot be a more substantial and favourable Consideration, upon which account Kindred may claim the greatest privileges, than in case of Succession; and if the greatest are there allowed, there can be no reason to complain: And tho' in a Fellowship of a College, Non succeditur Jure haereditario, & Successionis merae; yet where Kindred are called, it may be said it is Successio aliquo modo, seu ad instar. Now A. the Founder having made over his Estate to a certain number of Men, and having appointed them and their Successors, his Heirs, he did Illorum fidei committere, to admit his Kindred into some part of the Inheritance in Common with them, and to allow them a Maintenance among them. And tho' fidei commissum may not take in, in all respects the true notion of such a Fellowship; yet where we cannot be punctual, I conceive the Law will justify a Reference to what is most likely. A Fellowship therefore in Relation to Kindred, especially if we either consider the Obligation the Law then laid upon the Clergy to provide for their Consanguinei (and the Founder was of very high rank in that Order) or the design of the Foundation, namely. a Maintenance for Students: I say, if we consider this, a Fellowship is a provision, a livelihood, by way of a singular fidei commissum, to be given them by the College; as the Haeredes fidei Commissarii, or Fiduciarii in this respect. And Succession in fidei commissis, being to be regulated according to the Order of Succession ab intestato * Grassi receipt. Sent. lib. 1. §. Fidei commissum, quaest. 19 nu. 4. , the Ascendants and Descendants succeed in infinitum; the Collaterals, who are meant here, only to the tenth degree, as you treat of simple and particular Succession, as this is. Now that the tenth degree is the very last, may it not appear with submission? First, From the Letter of the Law. Secondly, From Reason. Thirdly, From the Universal Consent of the Doctors. And first from the Letter of the Law, as by the Quotations † §. Fin. Instit. de Success. Agnat. gloss. ibid. Auth. de Haered. ab intestato venientibus. §. Si vero neque fratres Verticulo Agnatorum. L. de legitimis Haeredibus & D. D. Covarrav. lib. 1. tit. 13. De Success. ab intestato. Anton. Gomez. l. 8. nu. 5. Ad L. Tauri. Cabed Decis. Lusitan. 51, 52. & 61. Surdis de aliment. tit. 1. quaest. 11. Joan. Fab. Ang. Porc. Myns. Schneid. Wesembec. & Grot. lib. . 2ly. From Reason. For why should the tenth degree be mentioned, if a longer Succession was designed; and tho' some think decimus quasi numero rotundus & certus pro incerto ponitur; yet when we find an allowance ‖ Introduct. cap. 30. , etsi decimo: Etsi there, without any force, may signify thus much; namely, that they might succeed, etsi, nay tho', in the very utmost degree; namely, the tenth. Again, why should the Law be less restrained in its Computation in one Case than in another, barely as to the use of Words; for here all the Commentators agree, that when it says Cognati shall claim usque ad sextum gradum * Instit. de Cognat. Success. §. 5. ; there sextus est ultimus & non certus pro incerto: But when the same Paragraph says, the Agnati shall succeed etsi decimo, than we must have an Evasion, Sed ratio non pati videtur, ut dicamus uno numero successionem terminari, altero non item. And altho' it may seem that there is some ground to extend it to Longissimus † Instit. de legitima Agnat. Success. §. 3. yet that longissimus must be de Jure longissimus, and that is explained by Vinnius ‖ Vinnius ibidem. upon the place to be Decimus. Once more in vain would be the Provision for the Succession of the Fiscus * L. variiae Causae, ss. Divus Pius, D. de jure Fisci. or Ecclesia † C. 5. & 7. 12. quaest. 5. etc. 21. 12. quaest. 1. c. sed hoc de Success. ab intestato, & Abbas ibidem. , or Unde Vir & Uxor ‖ L. maritus, C. unde Vir & Vxor. , whose respective Rights in Cases of Failures are settled by Law, if all relation was perpetually privileged to succeed, tho' never so remote, even in infinitum. And therefore the Jus Agnationis & Cognationis being aequatum by Novella 118, are not both admissable only in the tenth degree, and no farther? I come now to the third Point the Authority of the D. D. who may be consulted * Vid. D. D. citatos in pag. 10. nempe Covarrav. Gomez. Cabed. s●rdum, etc. ; as also Sanchez † Sanchez Consil. Moral. lib. 4. cap. 1. Dub. 24. and Lynwood ‖ Lynwood Provinciale, c. Ita quorundam, de testamentis. . But to instance more particularly in those who have with submission decided the Case in terminis. And first for Sanchez, in the place aforecited, he says from Ancharanus, Propinqui (who are the same as Consanguinei by the Law) sunt illi tantum qui vocantur de jure civili ad Successionem ab intestato. And again from Tiraquellus, Leges concedentes Consanguineis retractum, sanguinis ratione, intelligi debent de Consanguineis usque ad eum gradum in quo de jure civili succedunt. And again, Ad legatum Consanguineis relictum, tantum habent jus Collaterales qui succedunt ab intestato, caeteri omnes pro extraneis habendi; and there quotes D. D. Again, Fidei commissum Consanguineis relictum iis tantum relictum intelligitur, qui vocantur de jure civili ab intestato ad successionem, scilicet usque ad decimum gradum. And this holds not only in Temporalibus, but also in perpetuis; for tho', as he goes on, Quidam J. Christi in legatis perpetuis, Consanguineos Collaterales in quocunque gradu extraneis praeferendos dicunt, & rationem ponunt ex praesumptâ voluntate testatoris, cum enim velit legatum esse perpetuum, & nôrit Consanguinitatem intra gradum successibilem non durare in perpetuum, censendus est, velle in hoc Casu Consanguinitatem durare in perpetuum. Sed idem tenent D. D. says Sanchez, in perpetuis ac temporalibus, and quotes Mantica, who is my second Author. Now Mantica says * Mantica de Conject. ultim. volunt. lib. 8. tit. 12. , Si relictum sit cuilibet ex Consanguineis, omnes admittuntur ad decimum gradum, quia eo usque protenditur & defertur successio, & ideo qui vult admitti tanquam ex progeny, debet probare se esse in aliquo gradu, qui non sit ultra decimum. Quinetiam generaliter licet in legato, vel fidei commisso familiae, vel Propinquis relicto, ex aequitate defendi possit, ut ultra decimum gradum protendatur, inspectâ testatoris voluntate & consideratâ communi horum fidei commissorum (i. e. perpetuorum) interpretatione, quae sunt conservandae Agnationis gratiâ; yet, says Sanchez † Loco prius citato. , this Consideration, namely, Conservandae Agnationis gratiâ, is instar majoratûs, & sic aperte vult successionem esse perpetuam. To reconcile this difference, he goes on, that, Si perpetuitas cadit solum in eos: i. e. Consanguineos ne reddatur caducum, tum succedunt in infinitum, sed cum perpetuitas non cadit solum in Consanguineos, sed in aliis servatur, tum non est clara testatoris voluntas, quod eos vocaverat in infinitum, & sic standum est communi sententiae D. D. quod solum usque ad decimum gradum extenditur. And this is also Mantica's * Mantica lib. 8. tit. 12. Num. 46. Opinion, That if the Will of their being so called in infinitum, non potest ex verbis testamenti, sive ex legitimis conjecturis colligi, à communi D. D. Opinion non est recedendum, nam mutanda non sunt quae certam interpretationem semper habuerunt; & in dubio crebrior sententia accipienda est, nam integrum est judicium quod plurimorum sententiis comprobatur. My third Author is Grassus † Grassus' receipt. Sent. lib. 1. §. Fidei commissum, q. 19 , who agreeing, 'tis needless to transcribe him. Now if neither from the Letter of the Statutes, or from any reasonable Conjectures it shall appear, that A. the Founder designed this Right of Consanguinity to extend ad infinitum, then will not this Point be cleared? The Statute than runs thus: Insuper cum secundùm Apostolum teneamur bonum facere ad omnes; maxim autem ad domesticos fidei, statuimus, ordinamus & volumus, quod in omni Electione Scholarium praedictorum futuris temporibus in dictum Collegium faciendâ, Principaliter & ante omnes alios, illi, qui sunt vel erunt de Consanguinitate nostrâ, & genere, (si qui tales sint) ubicunque oriundi, dum tamen sint reperti habiles & idonei secundùm conditiones superius & inferius recitatas, sine aliquo probationis tempore in veros dicti Collegii socios, ab initio eligantur, & etiam admittantur: Quibus deficientibus, tunc illi qui sunt vel erunt de locis vel parochiis, in quibus possessiones & res spirituales & temporales dicti Collegii consistunt, si juxta Ordinationes praedictas habiles sint, prae caeteris eligantur. Quod si tales in dicta Vniversitate, tempore Electionis hujusmodi celebratae, minime reperti sunt, tunc pauperiores & indigentiores Scholares Clerici in dicta Vniversitate studentes hoc ordine praeferantur; viz. Prae Caeteris oriundi de Diocaesi A. & deinde seriatim de Comitatu, B. C. D. E. & sic de caeteris Comitatibus infra Provinciam F. dummodo in Grammatica sufficienter, & in cantu ut praedicitur competenter eruditi sint, & secundùm qualitates & Conditiones superius & inferius recitatas habiles & idonei reperti & probati fuerint, ad dictum Collegium eligantur ac etiam assumantur, tot quot supplere poterint deficientem numerum. Quos omnes sic electos seu assumptos (his qui de nostro sanguine fuerint duntaxat exceptis) per unum Annum in eodem Collegio stare volumus antequam in veros socios ejusdem Collegii admittantur. This then being the Statute, let us see whether this Right in perpetuum follows from the Letter of the Statute. A. the Founder begins, Quia secundàm Apostolum, etc. which also we find enforced by the Canon Law * C. 14. & 16. distinct. 86. c. 5. de penitent. distinct. 2. c. inhibendum est. De Cohabit Cleric. & mulierum, & subministrent, c. 1. 12. quaest. 3. etc. 4, 5, 6, & 7. 12. quaest. 5. . And since he takes the hints from the Law, may we not reasonably suppose he pursues the Law according to the Obligation of it. And this being the Obligation, in case any one should happen to die intestate, and so the Consanguinei to be unprovided for, by the Party whilst living: Here the Law did enjoin the Bishops and other Ordinaries to distribute what the person died possessed of in Pias Causas, Personis decedentium Consanguineis, Servitoribus, & Propinquis, seu aliis: And this is Ordained also by a Provincial Constitution * Cap. Ita quorundam, de testamentis in Lynwood. . Again, from the using the Words Consanguinitas nostra, Genus, & sanguis noster; for without doubt, had it been designed that all manner of Relation, how distant soever, should have been privileged, the Founder might have had terms of a less strict Sense: And therefore, as we have good reason to suppose that he was not ignorant of that Constitution in Lynwood, so may we not suppose, that according to the same Law from which he took the hint, he would intend also the Persons, he was obliged to take care for. And accordingly Lynwood, on the Constitution aforementioned, says, Et Consanguinei, & qui sunt Consanguinei, patet ex Hostiens, summa † Hostiens. Summ. Tit. de Consanguin. & Affin. §. 1, etc. ; where they are explained to be communem sanguinem habentes: And again the same Lynwood ‖ C. Ecclesiarum, de rebus Eccles. non alienand. & consanguineis. says they are, Qui de nostro sanguine sunt: Consonant to which Acceptation, the Founder says, Consanguinei, & qui de nostro sanguine. And if we should allow Genus to be more large than either Consanguinitas, or Sanguis noster, yet is it not restrained by those two? It being never once more mentioned, but the Founder keeps to Consanguinei and Sanguis. And having thus far proceeded to show the Founder had respect to the Law, both for the Obligation of providing for his Kindred, and also for what Persons were truly so, come we now to see to what degree he meant them. And here according to Lynwood * C. ita quorundam, de testamentis & decedentium. , of whom I cannot suppose the Founder ignorant; and what say you, if Lynwood made this Statute? We find the tenth degree to be the utmost, for which the Church was to provide, in the Distribution of Intestate's Goods; and the Church being only to supply the Testator's neglect, and supplying it only to the tenth degree, can we suppose the Law to oblige farther? His Words are these † Ita quorundam & Decedentium. De testamentis. , Unde breviter scias, quod in successione ab intestato, Prima Causa est, Liberorum. Secunda, Ascendentium cum quibusdam Collateralibus, si extent. Tertia, Transversalium. Primae duae in infinitum protenduntur, Tertia usque ad decimum gradum. Et sic in bonis Laici, & sic in bonis Clerici intestati, deficientibus praedictis, Ecclesia praefertur fisco. And the more to confirm this, that the Founder had an eye to Lynwood in this Provincial; or if it was Lynwood's Opinion and Draught, he meant it pursuant thereto, we find the persons to be provided for, in the College, are ranked in the same Order. Consanguineis Servitoribus, & Propinquis, seu aliis. The Statute says, Illi qui sunt vel erunt de Consanguinitate nostra. The Provincial Consanguineis. The Statute says, Illi qui sunt vel erunt de locis in quibus possessiones, etc. The Provincial, Servitoribus & Propinquis, and the Gloss & Propinquis, tam ratione loci quam sanguinis. Lastly, The Statute says, Tum pauperiores scholar's, etc. The Provincial, Aliisque, which the gloss upon Aliisque, calls extraneis, dummodo sint pauperes. Come we now to consider, whether he designed a Perpetuity to his Kindred. If the Founder had intended they should claim in perpetuum, he might have used more express words. And tho' he says, Qui sunt vel erunt, yet Erunt may be understood, of those which should be in the tenth Degree; for 'tis likely there were some then capable when the Statute was made. Again, Erunt must be kept to de nostra Consanguinitate; and what that is, has been endeavoured to be explained. Nor is futuris temporibus only to be restrained to the Consanguinei, but relates also to Elections in general, which were to be made in Cases of Vacancy for ever. Besides, what ever these words may signify, yet may not, Quibus deficientibus, well agree with what has been proposed? A word used in all Books to express the extinction of Kindred, and as it were purposely put here to prevent all ambiguity: And that Deficere does imply a total extinction, a final period, may it not appear, from the constant use of the word, when joined to terms, signifying Stock, Family, Kindred, and Lineage; being also explained in that sense, from the Founders making after a new Degree of Privileged persons, a new Substitution? Again, because when he provides for the pauperiores Scholar's, &c. in case of want of those in locis ubi possessiones, etc. he is so far from using that word Deficere, as well conceiving, there would not be a want of People in those places, a total extinction as I may say; but he uses these words, Quod si tales tempore Electionis minime reperti fuerint. And thus doth it not appear from Statute, and fair Conjectures, That here is a new Substitution, Et perpetuitas non cadit in Consanguineos, sed in aliis servatur; which is the difference required by Sanchez, in the place aforecited, to fix it to a certain degree, and not to extend it in infinitum. Since therefore neither according to Law, the General Opinion of the D. D. Statute, or fair Conjectures it does appear (with submission still) that there is any privilege beyond the tenth Degree, may we not conclude with Mantica, aforecited, Ideo qui vult admitti tanquam ex progeny, debet probare se in aliquo gradu, qui non sit ultra Decimum? And that too, ascending to the very Founder; for altho' in other Cases, a Relation to the last immediate Possessor, is a good claim for the next Heir, yet here the Law looks no farther than a Possession continued from the immediate to the next Taker: But in our Case, no one claims by Right of Succession, strictly so called; or as related to a former Kinsman, but from his own next akin, as mediately related to the Founder; so that a flaw in immediate or mediate Kindred spoils the Line. Besides, suppose I am indisputably related to one who speed as a Founder's Kinsman, the proof he made of His relation is unknown to the Present College; and since I found my Right upon a Special qualification, even to the prejudice of others else Eligible, I ought to show my Pretensions, and the Society are to judge of the clearness of my Title. It may not be amiss perhaps to say, how improbable now it is to fix any tolerable Descent; and where such Memoirs, which require all the punctilios of Niceness, which are so difficultly adjusted, and which are often so carelessly neglected: I say, where such Memoirs have great Chasms and Discontinuances, and cannot carry the Relation up to the first of the Branch. Again, where the ancientest Memorandums are an hundred Years short of such a Founder, there is, I say, just reason to suspect the exactness of such a Descent. Besides, the Methods of such Registring are very faulty, and so far from being exact, and to be relied upon, that they deserve little credit, it having been ingeniously confessed, that the very persons Words have (and that usually too) been taken, for what Family they have been related to. But however unlikely it may be, to bring an exact and nice Title; yet where there is some specious show, especially since the Electors are sworn when admitted Fellows, to prefer the Consanguinei, 'tis best to err on the safest side. 'Tis true indeed, this may be so, where no one else is like to be wronged by these Pretensions, who may be equally, nay more eligible; and here we ought to judge rather nicely than favourably; especially too, where he claims other advantages, besides those of a bare Election. And as to the Oath, the Clause indeed is still administered; but it was then made, when there were, or would be, in some time, Kindred. However, the intent of the Founder, and the Law having determined this Right of Consanguinity, according to what we have proposed, the Obligation must cease on Course. And besides, that there are also other Clauses or Things deducible from them, now sworn to likewise in that Oath, not now warrantable. And thus much for these Queries, Collections, Observations, or what else you will call them. But put the Case the most favourable for the Consanguineus: Either he claims upon the Title of mere Consanguinity; or, Of Consanguinity backed with the other necessary Statutable qualifications. He cannot claim upon the first account, because that very Statute which gives him a Right as Consanguineus, gives it not merely as such, but upon these Terms, Dummodo sit habilis, etc. If he claims upon the Second, there the College are Judges of his Qualifications, both by Statute of the Founder, and Orders of their Visitor; which Orders provide, That the Candidates shall approve themselves by a three-days Examination, to every Fellow singly if he requires it, Tam quoad quam ad doctrinam; by which Examen, the Fellows are to judge. Now this Right of Judging and Choosing is not to be taken from the College; and if they Elect in due time, the Election is good, nor can a Fellow be put upon them. First, Because none are Elected, but by the Head and Majority of the Fellows; and if the Choice be made in due time, there can be no Lapse or Devolution. Secondly, The College are upon their Oaths; and when they have Judged and Elected under that Obligation, which is the highest can be laid upon them, the Election of a qualified person is irreversible. I have nothing more to add, but that these Papers are entirely submitted, to the more knowing and experienced. FINIS.