Foster v. 1 Inst. 8 b. n. 1. 123 b. n. 1. And natural born Subjects. cretion of allowing a longer space, where the opinion of physicians, or the circumstances of the case, have required it. In a late instance, upon an issue directed out of Chancery, a child born 43 weeks, except one day, after the husband's death, was found to be legitimate. 12. Where a widow is suspected of feigning herself pregnant, with a view to produce a supposititious child; the presumptive heir may have a writ de ventre inspiciendo, to examine whether she be pregnant or not; and if she be pregnant, to keep her under a proper restraint, till she be delivered. 13. No person is capable of inheriting lands, unless he is a natural-born subject, or naturalized by act of parliament, or made a denizen by the king's letters patent; and, by the common law, every person born out of the king's dominions or allegiance, was deemed an alien. But by the stat. 25 Edw. III. st. 2. it was enacted, that all children born abroad, whose fathers and mothers were, at the time of their birth, in allegiance to the King, and the mother had passed the seas with her husband's consent, might inherit, as if born in England. 14. By the stat. 7 Ann. c. 5. it is enacted, that the children of all natural-born subjects, born out of the allegiance of Her Majesty, her heirs or successors, shall be deemed to be natural-born subjects. And by the stat. 4 Geo. II. c. 21. reciting that doubts had arisen respecting the construction of the stat. 7 Ann., it is enacted, that all children born out of the ligeance of the Crown of England, or which should be born out of such ligeance, whose fathers were or should be natural-born subjects at the time of the birth of such children, should by virtue of the said act of 7 Ann. and of this act, be adjudged to be natural-born sub jects; provided their fathers were not attainted of high treason, or liable to the penalties of high treason, in case of their returning to Great Britain or Ireland, or in the service of any state in enmity with the Crown of England. 15. By the statute 13 Geo. III. c.. 21. it is enacted, that all persons born out of the ligeance af the Crown of England, whose fathers were or should be, by virtue of the statutes 7 Ann. and 4 Geo. II., entitled to the rights and privileges of natural-born subjects, should be deemed natural-born subjects. 16. In consequence of these statutes, all persons born out of the King's ligeance, whose fathers and grandfathers were natural-born subjects, are held to be natural-born subjects, and as such are capable of inheriting. Bacon, Cro. Car. 601. 17. It was held in the reign of Charles I., that under Bacon v. the stat. 25 Edw. III. the child of an English merchant, born abroad, whose mother was an alien, should inherit. This determination was founded on the principle that the words of the stat. 25 Edw. III. whose fathers and mothers, should be construed in the disjunctive. But this mode of construction has been denied in the following case. 4 Term R. 18. Henrietta Knight, a natnral-born subject, Doe v. Jones, quitted the kingdom, and married Count Duroure, an 300, alien, by whom she had a son, born abroad. The question was, whether this son was capable of inheriting lands in England, as heir to his mother. Lord Kenyon said, that supposing there existed any doubts respecting the meaning of the stat. 25 Edw. III. yet the subsequent statutes operated as a parliamentary exposition of it; particularly the stat. 4 Geo. II. c. 21. which had closed the question, by enacting that all children born out of the ligeance of the Crown, whose fathers were natural-born subjects, should be natural-born subjects. And also the stat.13Geo.II.c.21. which extended the same privilege to grandchildren; 1 Vent. 422. but still confined them to the paternal line: from which it clearly followed, that a person born in foreign parts, and of a foreign father, did not derive inheritable blood, in this kingdom, from his mother. Collingwood v. Pace, 1 Vent. 413. 2 Comm.250. Id. 416, 417. & 426. But a Title may be deduced through an Alien. 19. If an alien has two sons born in England, the one may inherit from the other, though none of them can inherit to their father: for the descent between them is immediate; and one shall make his title in a writ of mort d'ancestor as heir to his brother, without mention of the father. 20. Formerly, where an alien was medius antecessor, no title could be derived through him; but still an alien does not impede the descent. Thus, if an eldest son were an alien, the law took no notice of him; and the lands would descend to brother. So if a person purchased land, and died, leaving no relation on the part of his father, but an alien, it would descend to the heir on the part of the mother. the younger 21. By the statute 11 & 12 Will. III. c. 6. it is enacted, that all persons, being natural-born subjects, may inherit and make their title by descent from any of their ancestors, lineal or collateral, although their father or mother, or their ancestor, through whom they derive their pedigree, were born out of the King's allegiance. But by a subsequent statute, 25 Geɔ. II. c. 39., it is provided, that no right of inheritance shall accrue, by virtue of the former statute, to any person whatsoever, unless they are in being, and capable to take as heirs, at the death of the person last seised: with an exception to the case where lands shall descend to the daughter of an alien; which descent shall be devested in favour of an afterborn brother, or the inheritance shall be divided with an after-born sister or sisters; according to the usual rule of descents. infra, c. 3. Denizens. 129 a. 22. Where an alien is naturalized by act of par- Or naturaliliament, he becomes as capable of inheriting, as if zed, or madehe were a natural-born subject. If an alien be made a denizen by the King's letters patent, and then purchases lands, his son born before his denization 1 Inst. 8 a. cannot by the common law inherit those lands: but a son born afterwards may, even though his elder brother were living. For the father before denization had no inheritable blood to communicate to his eldest son; but by denization it acquired an hereditable quality, which was transmitted to his subsequent posterity. If he had been naturalized, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not. not inherit or transmit. 1Inst. 8 a. 391 b. 23. Persons attainted of high treason or felony Persons atare incapable of inheriting lands, or of transmitting tainted canthem by descent to their posterity. Thus Lord Coke says," If a man be attainted of treason or felony, he can be heir to no man, nor any man heir to him propter delictum; for that by his attainder his blood is corrupted; and this corruption of blood is so high, as it cannot absolutely be salved and restored, but by act of parliament.” ; 24. A person may however inherit from one of his parents, though the other were attainted of treason or felony; for duplicatus sanguis is not necessary in descents. Thus it is stated by Jenkins to have been resolved in the Exchequer Chamber, that where an attainted person married an heiress, and had issue by her, that Ꮓ Ꮞ Cent.1.Ca. 2. Cent. 5. Ca. 27. Noy, 165. 2 Hawk. P. C. c. 49. § 49. 1 Inst. 163 b. Corruption of Blood. 1 Inst. 391 b. Law of 4th ed. 72. issue should inherit; for the marriage was lawful, and the issue claimed only from the mother. 25. Lord Coke says, if a man be seised of lands in fee, and hath issue two daughters, and one of the daughters is attainted of felony; the father dies, both daughters alive; the one moiety shall descend to the one daughter, and the other moiety shall escheat. 26. There is a farther consequence of an attainder for treason or felony, which is, the corruption and extinction of all hereditary blood in the person attainted; by which he is rendered not only incapable himself of inheriting, or of transmitting his own property by heirship; but he will also obstruct the descent of lands or tenements to his posterity, in all cases where they are obliged to derive their title through him, from any remote ancestor. 27. This doctrine is thus explained by the Hon. Charles Yorke :-" It is a principle in all states, where a man is neither a subject by birth, or express compact, or has voluntarily renounced the mutual obligations, to consider him as not within their obedience, or even notice: but when he has forfeited his civil rights by crime, he is regarded as still subject - to their power; and in every respect within the strict consideration of the law: that the ancient common law of England clearly proceeds upon this principle. Where a man was not capable of civil rights by nature, as an alien born, and never naturalized, being unknown to the law, he was excluded from inheriting, and the next of kin within the allegiance, who did not claim under him, was admitted: or where he had incurred civil disabilities, by his own voluntary act, not criminal; as one who entered religion, or abjured the realm, he was taken to have |