Under the laws of New York, one citizen of the state cannot
inherit in the collateral line to the other when he must take his
pedigree or title through a deceased alien ancestor. The
legislature must be presumed to use words in their known and
ordinary signification unless that sense be repelled by the
context. "The common law" is constantly used in contradistinction
to the statute law.
Descents are, as is well known, of two sorts -- lineal, as from
father to son or grandfather to son or grandson, and collateral, as
from brother to brother and cousin to cousin, &c. They are also
distinguished into mediate and immediate. But here the terms are
susceptible of different interpretations, which circumstance has
introduced some confusion into legal discussions, since different
judges have used them in different senses. A descent may be said to
be mediate or immediate in regard to the mediate or immediate
descent of the estate or right, or it may be said to be mediate or
immediate in regard to the mediateness or immediateness of the
pedigree or degree of consanguinity. Thus, a descent from the
grandfather, who dies in possession, to the grandchild, the father
being then dead, or from the uncle to the nephew, the brother being
dead, is in law an immediate descent, although the one is
collateral and the other lineal, for the heir is in the per, and
not in the per and cui. On the other hand, with reference to the
line of pedigree or consanguinity, a descent is often said to be
immediate when the ancestor from whom the party derives his blood
is immediate and without any intervening link or degree, and
mediate when the kindred is derived from him,
mediante
altero, another ancestor intervening between them.
That an alien has no inheritable blood, and can neither take
land himself by descent nor transmit land from himself to others by
descent, is common learning.
The case of
Collingwood v. Pace, 1 Ventris 413,
furnishes conclusive evidence that by the common law, in all cases
of mediate descents, if any mediate ancestor through whom the party
makes his pedigree as heir is an alien, that is a bar to his title
as heir.
In that court the lessee of the plaintiffs instituted an action
of ejectment for the recovery of certain real estate in the City of
New York. The jury found the following special verdict.
"And the jurors aforesaid, upon their oaths aforesaid, do
further find, that, at the time of the commencement of this suit,
to
Page 31 U. S. 103
wit, on 22 April in the year 1828, the said defendant, Peter
McCartee, was in the possession of the lands and premises in
question in this suit, known and described as a house and lot
numbered forty-seven, fronting on Murray Street in the City of New
York. And the jurors aforesaid, upon their oaths aforesaid, to
further find that Philip Jacobs, late of the City of New York, on 6
October in the year 1818, was seized in fee simple of the said
premises in question, and on that day the said Philip Jacobs, being
so seized thereof and leaving no child born to him, the said Philip
Jacobs, but his wife Elizabeth was then pregnant of a female child,
which was born alive on 23 January in the year 1819, which female
child continued to live until 5 April in the year 1821, and then
the said child died without issue. And the jurors aforesaid, upon
their oaths aforesaid, do further find that the said Philip Jacobs
was born in Germany, and that he came to the City of New York
before the year 1772, where he resided in that year, and that he
continued to reside there until his death. And the jurors
aforesaid, upon their oaths aforesaid, do further find that the
said Philip Jacobs had one brother only, and his name was Simon
Jacobs, who was also born in Germany, but who went to England and
resided in London from the year 1765 till his death in the year
1807; that said Simon Jacobs never came to America; "
brk:
that said Simon Jacobs had two sons, to-wit, Jacob and Abraham;
that the said son Jacob came from London to New York in the year
1808, and remained at New York a short time and then went to
Canada, where he soon after died, having never been married; and
the other son of said Simon Jacobs never was in America, and now
resides in England; and the said Philip Jacobs also had a sister,
who was born in Germany and lived and died there, leaving several
children, born and residing there. And the jurors aforesaid, upon
their oath aforesaid, do further find that the father and mother of
the said Philip Jacobs were born in Germany, and they both died
before the death of said Philip Jacobs. And the jurors aforesaid,
upon their oaths aforesaid, do further find that Leipman Cohen was
brother of the mother of the said Philip Jacobs; that the said
Leipman Cohen and his wife
Page 31 U. S. 104
were also born in Germany; that they had children, three sons,
to-wit, Philip, Moses and Elias, and three daughters, Jane, Mary,
and Catharine; that all the said children of Leipman Cohen were
born in Germany; that said Leipman Cohen, with his said children,
removed to England many years before the year 1822, and continued
to reside in England until his death. And the jurors aforesaid,
upon their oaths aforesaid, do further find that the said Philip,
son of Leipman Cohen, came from London to America and resided in
South Carolina from the year 1772 until the year 1786, when he died
without issue, having never been married. And the jurors aforesaid,
on their oaths aforesaid, do further find that Moses Cohen, son of
the said Leipman Cohen, came from London to the City of New York in
the year 1772; that in the same year the said Moses Cohen went to
Charleston, in South Carolina, where he married Judith de
brk:
Lyon; that he soon after removed to Savannah, in Georgia, and
resided there from the year 1774 until his death, which occurred in
the year 1791; that the said Moses Cohen had two daughters of his
said marriage, to-wit, Rhina and Bella, who were born in Charleston
or Savannah aforesaid, and the said Rhina is now forty-one years of
age, and is the widow of Mordecai, and was such widow at the
commencement of this suit; the said Bella Cohen is now forty years
of age, and the said Rhina and Bella have resided within the United
States of America ever since their birth. The said Bella Cohen has
never been married. The said Rhina and Bella are now alive, and
reside in Charleston aforesaid, and are the only children of said
Moses Cohen, and are two lessors of the plaintiff in this suit. And
the jurors aforesaid, upon their oaths aforesaid, do further find
that Mary, one of the daughters of said Leipman Cohen, was lawfully
married to Mordecai Levy, in London aforesaid, where she and her
said husband continued to reside until their death, and they had of
such marriage five children, to-wit, one son named Emanuel, and
four daughters, to-wit, Jane, Bella, Hannah, and Flora, which
children were all born in London aforesaid, and they all came to
Charleston, in South Carolina, between the year 1788 and the year
1792. The said Bella Levy afterwards married Daniel Hart, and is
now his widow, and resides in Charleston aforesaid. The said Hannah
Levy is now the wife
Page 31 U. S. 105
of Moses Davies and resides in the City of New York. Said Flora
Levy married Michael Emanuel before she came from London to
Charleston; and she and her said husband both died in Charleston,
in South Carolina, leaving their children there, to-wit, Michael,
Nathan, Simon Joel, Charlotte, and another daughter, whose name is
unknown. The children of said Flora, by her said husband Michael
Emanuel, were all born in England. The said Charlotte, and the
other daughter of Flora Emanuel, whose name is unknown, were never
married, and they are both dead.
brk:
And the jurors aforesaid, upon their oaths aforesaid, do further
find, that the said Emanuel Levy, the son of Mary and Mordecai
Levy, died in the year 1816, leaving lawful issue, to-wit, a son
named Mordecai Levy, one of the lessors of the plaintiff, now
living in the State of South Carolina; a daughter, Flora, who
married Chapman Levy of South Carolina, and died in the year 1823,
leaving a daughter named Flora, one of the lessors of the
plaintiff, now living in South Carolina aforesaid, and six years
old. Said Emanuel Levy also left another daughter named Rosina, who
was married to the said Chapman Levy after the death of her said
sister Flora. The said Chapman Levy and Rosina his wife, are two of
the lessors of the plaintiff, and reside in the State of South
Carolina aforesaid, and the said Rosina has died since the
commencement of this suit, leaving an infant son of her said
marriage named Edward Anderson Levy; and the said Emanuel Levy also
left a daughter named Elizabeth, who is now living, aged fifteen
years, and is one of the lessors of the plaintiff, and resides in
South Carolina aforesaid. All the said children of the said Emanuel
Levy were born in Charleston aforesaid, and the said Chapman and
all his children were born in Sough Carolina. And the jurors
aforesaid, upon their oaths aforesaid, do further find, that
Catharine, one of the said daughters of Leipman Cohen, died
unmarried and while an infant; that the son of said Leipman Cohen,
named Elias, had children and is dead; and that the said Elias and
his children were born in Germany, and have never been in America.
And the jurors aforesaid, upon their oaths aforesaid, do further
find that the said Leipman Cohen and his wife, and their children,
and the said Philip Jacobs and his said brother Simon Jacobs, and
their father and mother, were all natives of Germany, and
Page 31 U. S. 106
were all Jews. And the jurors aforesaid, upon their oaths
aforesaid, do further find that the said land and premises in
question in this suit are of the value of more than two thousand
dollars. And the jurors aforesaid, upon their oaths aforesaid, do
further find that on 7 September in the year 1818, the said Philip
Jacobs, being seized in fee simple of the said lands and premises,
made his last will and testament in writing, and signed, sealed and
published, and declared the same as and for his last will and
testament, in the presence of three credible witnesses, who, at his
request, and in his presence, and in the presence of each other,
severally subscribed their names as witnesses thereto; that the
said will remained unrevoked and uncancelled at the time of the
death of the said Philip Jacobs, and which will and testament is in
the words and figures following, to-wit:
After giving certain legacies, and making provision for his
wife, the testator proceeds to dispose of his real estate as
follows:
"It is my will that if, at the time of my decease, there shall
be any child of mine alive, that then all the rents and profits of
my real estate shall be received by my executors hereinafter named,
or the survivor of survivors of them, and be applied by him or them
to the support, maintenance and education of such child, until such
child attain the age of twenty-one years, or intermarry; and if,
from the yearly application of such rents and profits to the
purposes aforesaid, there should be a surplus remaining, the said
executors, or the survivor or survivors of them, shall, from time
to time, in his or their discretion, invest the same in some safe
stock, for the benefit of said child, to be paid over to such child
at the age of twenty-one years, or on marriage, whichever event
shall first take place, and that my said executors, or the survivor
or survivors of them, receive for such their trouble and attention
such sums as the law may allow. Item -- After the payment of all
legacies and other bequests contained in this my last will, I do
hereby give, devise and bequeath all the rest, residue and
remainder of my estate, real and personal, to the Orphan Asylum
Society in the City of New York, to be applied to the charitable
purposes for which said association was established; this bequest
to take effect immediately after all other debts and legacies are
paid,
Page 31 U. S. 107
if I should leave no child at the time of my death, or, if I
should leave a child, then upon the death, intermarriage, or the
attaining the age of twenty-one years by such child. Item -- I do
hereby devise and bequeath unto my said executors, or the survivor
or the survivors of them, or such of them as may act in the
premises, all my real estate, of whatsoever nature or kind the same
may be, subject to the trusts aforesaid, and it is my will, that
whenever such child shall attain the age of twenty-one years, or
marry, that my real estate be sold by my said executors, or the
survivor or survivors of them, or such of them as may act herein,
and the one-half of the proceeds thereof paid to my said child, if
the said child shall attain the age of twenty-one years or marry.
And lastly, I do nominate and appoint my worthy friends, Peter
McCartee, Richard Cunningham and John Anthon, all of the City of
New York, Esqs., to be the executors of this my last will and
testament. In witness whereof, I, the said Philip Jacobs, have
hereunto set my hand and seal, 7 September 1818."
"[L.S.] PHILIP JACOBS"
"But whether or not, upon the whole matters aforesaid, by the
jurors aforesaid in form aforesaid found, the said Peter McCartee
is guilty of the trespass and ejectment above mentioned, the jurors
aforesaid are ignorant, and therefore they pray the advice of the
said Circuit Court of the United States of America for the Southern
District of New York, in the Second Circuit, and if, upon the whole
matter aforesaid, it shall seem to the said court that the said
plaintiff is entitled to the possession of the said land and
premises claimed by the plaintiff in this suit, or of any part
thereof, then the jurors aforesaid, upon their oath aforesaid, say
that the said Peter McCartee is guilty of the trespass and
ejectment aforesaid in manner and form as the said James Jackson
hath above thereof complained against him, and in that case they
assess the damages of the said James Jackson, on occasion of the
trespass and ejectment aforesaid, besides his costs and charges by
him about his suit in that behalf expended, to six cents, and for
his costs and charges to six cents."
"But if, upon the whole matter aforesaid, it shall seem to the
said court that the plaintiff is not entitled to the possession of
the said land and premises so claimed by the plaintiffs as
aforesaid
Page 31 U. S. 108
nor of any part thereof, then the jurors aforesaid, upon their
oaths aforesaid, say that the said Peter McCartee is not guilty of
the trespass and ejectment aforesaid in manner and form as the said
James Jackson hath above thereof complained against him."
And at the October term of the court 1829, the cause came on for
argument upon the said special verdict.
And at the said argument before the said judges, it was
contended by the plaintiff's counsel, on his part, that the said
lessors, Bella Cohen and Rhina Mordecai, were capable of taking the
premises described in said special verdict, whereof the said Philip
Jacobs died seized, as therein stated, as heirs at law of the said
Jacobs, and his said child, and that the said estate descended and
came to the said Bella and Rhina, notwithstanding the alienism of
the mother of the said Philip Jacobs, and his maternal uncle,
Leipman Cohen, and their father; but on the part of the defendant
it was contended by his counsel that by reason of the said alienism
of the said mother of the said Philip Jacobs and his said maternal
uncle, the said estate did not descend and come to Bella Cohen and
Rhina Mordecai, and upon this question, which thus occurred before
the said court, the opinions of the said judges were opposed, and
upon request of the counsel for the plaintiff, the point on which
said disagreement happened is stated as above set forth, under the
direction of the said judges, in order to be certified to the
Supreme Court of the United States.
MR. JUSTICE STORY delivered the opinion of the Court.
This case comes before the Court upon a certificate of division
of opinion of the judges of the Circuit Court for the Southern
District of New York, in a case stated in a special verdict.
Philip Jacobs, an American citizen, died in 1818 seized of
certain real estate in the State of New York, having made his last
will and testament, but the land in controversy in the present suit
(which is an ejectment) is supposed by the plaintiff to be
intestate estate. Two of the lessors of the plaintiffs, Bella Cohen
and Rhina Mordecai are citizens of South Carolina, and claim to be
the heirs at law of the testator and of his
Page 31 U. S. 109
posthumous child, and as such are entitled to the premises. They
are the children of Moses Cohen, who was the son of Leipman Cohen,
an alien, and the maternal uncle of the testator, and as such claim
to be his next of kin. The mother of the testator (who was also an
alien) and the said Leipman Cohen and Moses Cohen are dead. The
testator died, leaving his wife pregnant, who was afterwards
delivered of a posthumous child, who died in infancy in 1821 and
who took certain estate under the will not now material to be
mentioned. Under these circumstances, the question arises whether
the said lessors of the plaintiffs, notwithstanding the alienage of
the intermediate ancestors through whom they make their pedigree,
are capable of taking the premises by descent from the testator or
his posthumous child as heirs at law under the laws of New York,
and this is the question upon which the judges in the court below
were divided in opinion. It resolves itself into this -- whether
one citizen can inherit in the collateral line to another when he
must make his pedigree or title through a deceased alien
ancestor.
The question is one of purely local law, and as such must be
decided by this Court. By the thirty-fifth article of the
Constitution of New York of 1777 it was ordained and declared
"That such parts of the common law of England and of the statute
law of England and Great Britain and of the acts of the Legislature
of the Colony of New York as together did form the law of the said
colony on 19 April, 1775, shall be and continue the law of this
state, subject to such alterations and provisions as the
Legislature of this state shall from time to time make concerning
the same."
By the statute of 11 and 12 William III. chap. 6, it is
enacted
"That all and every person or persons, being the King's natural
born subject or subjects within any of the King's realms or
dominions, shall and may hereafter lawfully inherit and be
inheritable as heir or heirs, &c., and make their pedigrees and
titles by descent from any of their ancestors, lineal or
collateral, although the father and mother, or fathers and mothers,
or other ancestor of such person or persons, by, from, through, or
under whom he, she, or they shall or may make or derive their title
or pedigree were or was or is or are or shall be born out of the
King's allegiance, &c., as freely, &c., as if such father,
&c., or
Page 31 U. S. 110
other ancestor, &c., had been naturalized or natural born
subjects, &c."
It has been argued at the bar that this statute of William III,
extending to all his subjects within all his dominions, constituted
a part of the statute law of England which was in force, and formed
a part of the law of New York in the year 1775, and as such was
recognized by the Constitution of New York. But, assuming for the
sake of the argument that this is so, still the inquiry will remain
whether it was in force in New York at the time of the present
descent cast, for if it was at that time repealed, it has no
bearing on the present case. By an Act of the Legislature of New
York passed on 27 February, 1788, chap. 90, sec. 38, it is enacted
"That none of the statutes of England or Great Britain shall be
considered as laws of this state." And by the Statute of Descents
of New York of 23 February, 1786, chap. 12, it is enacted "That in
all cases of descents not particularly provided for by this act,
the common law shall govern." These statutes were in full force at
the time of the descent cast in the present case, and of course
govern the rights of the parties.
It has been argued that the reference to the common law in the
Statute of Descents of 1786 includes not only the common law
properly so called, but the alterations and amendments which had
been made in it by British statutes antecedent to the American
Revolution, and that the repeal of the British statutes by the act
of 1788 repealed them only as statutes, but left them in full vigor
and operation so far as they then constituted a part of the law of
New York, thus making them in some sort a part of its common law.
We cannot yield to the argument in either respect. The legislature
must be presumed to use words in their known and ordinary
signification unless that sense be repelled by the context. The
common law is constantly and generally used in contradistinction to
statute law. This very distinction is pointed out in the clause of
the Constitution of New York already cited,
"such parts of the common law of England, and of the statute law
of England and Great Britain, and of the acts, &c., which did
form the law of the said colony on 19 April, 1775, shall continue
the law of the state."
It is too plain for argument that the common law is here spoken
of in its appropriate sense as the
Page 31 U. S. 111
unwritten law of the land, independent of statutable enactments.
The same meaning must be applied to it in the act respecting
descents of 1786. That act propounds a scheme of descents varying
in many respects from the common law, and then provides that in all
cases of descent not provided for by the act, the common law shall
govern. If it had been intended to recognize any statute enactments
of England, we should naturally expect to find some clear
expression of such an intention by some appropriate words. None
such are given, and it is therefore not to be doubted that the
common law canons of descent were referred to and made the basis of
descent in all cases not otherwise positively provided for. In
England, the canons of descent by the common law are never
confounded with descents specially authorized by statute, and the
statute of New York refers not to any peculiar law of that state,
then existing, but to the common origin of our jurisprudence, the
common law of England.
There is still less reason for giving the meaning contended for
to the repealing clause of the act of 1788, for that would be a
plain departure from the very words of the act, without any
necessity for such a construction. The words are "that none of the
statutes of England, &c., shall be considered as laws of this
state." The "statutes of England" can mean nothing else but the
acts of Parliament. The object was not to repeal some existing
laws, but to repeal laws then in force in New York. It would be
almost absurd to suppose that the act meant to repeal the statutes
of England, which had no operation whatever in that state. What
were the British statutes then in force? Plainly those referred to
and continued in force by the thirty-fifth article of the
Constitution, already quoted. The repeal then was co-extensive with
the original adoption of them. In any other view of the matter,
this extraordinary consequence would follow, that the legislature
could solemnly perform the vain act of repealing, as statutes, what
in the same breath it confirmed as the common law of the state;
that it would propose a useless ceremony, and by words of repeal
would intend to preserve all the existing laws in full force. And
this, it may be added, it would be doing at the same time by
contemporaneous legislation at the same session as well as in the
same act it was revising, and incorporating into the text
Page 31 U. S. 112
of its own laws, many of the provisions of the old English
statutes, which had previously been, by adoption, a part of its
jurisprudence. Such a course of proceeding would be consistent and
intelligible and in harmony with a design to repeal all the English
statutes which were not revised and reenacted, but it would be
unintelligible and inconsistent with a design to retain them all as
a part of its own common law.
We think, then, that the statute of William III constituted no
part of the law of New York at the time when the present descent
was cast, and that the case must rest for its decision exclusively
upon the principles of the common law. The residue of this opinion
will therefore be exclusively confined to the consideration of the
common law applicable to it.
In order to clear the way for a more exact consideration of the
subject, it may be proper to take notice of some few distinctions
in regard to descents which are of frequent occurrence in the
authorities. Descents are, as is well known, of two sorts --
lineal, as from father or grandfather to son or grandson, and
collateral as from brother to brother, and cousin to cousin,
&c. They are also distinguished into mediate and immediate
descents. But here the terms are susceptible of different
interpretations, which circumstance has introduced some confusion
into legal discussions, since different judges have used them in
different senses. A descent may be said to be mediate or immediate
in regard to the mediate or immediate descent of the estate or
right, or it may be said to be mediate or immediate in regard to
the mediateness or immediateness of the pedigree, or degrees of
consanguinity. Thus, a descent from the grandfather who dies in
possession to the grandchild (the father being then dead) or from
the uncle to the nephew (the brother being dead) is in the former
sense in law an immediate descent, although the one is collateral
and the other lineal, for the heir is in the per, and not in the
per and cui. And this, in the opinion of Lord Chief Justice
Bridgman,
Collingwood v. Pace, Bannister's of Sir O.
Bridgman, 410, 418, is the true meaning and appreciation of the
terms. So they are used by Lord Coke in his first Institute,
Co.Litt. 10b. On the other hand, with reference to the line of
pedigree or consanguinity, a descent is often said to be
immediate
Page 31 U. S. 113
when the ancestor from whom the party derives his blood is
immediate and without any intervening link or degrees, and mediate
when the kindred is derived from him
mediante altero,
another ancestor intervening between them. Thus a descent in
lineals from father to son is in this sense immediate, but a
descent from grandfather to grandson (the father being dead) or
from uncle to nephew (the brother being dead) is deemed mediate,
the father and the brother being in these latter cases the
medium deferens, as it is called, of the descent or
consanguinity. And this is the sense in which Lord Hale uses the
words, assigning as a reason that he calls it a "mediate descent"
because the father or brother is the medium, through or by whom the
son or nephew derives his title to the grandfather or uncle.
Collingwood v. Pace, 1 Vent. 413, 415,
S.C. 1
Keble 671. And in this sense the words are equivalent to mediate
and immediate ancestors. In the great case of
Collingwood v.
Pace, upon which we shall hereafter comment at large, these
distinctions were insisted on by the learned judges already
referred to with much particularity, and they will help us to
understand the reasoning of the court with more readiness and
accuracy. We shall constantly use the words in the sense adopted by
Lord Hale.
That an alien has no inheritable blood and can neither take land
himself by descent nor transmit land from himself to others by
descent is common learning and requires no reasoning to support it.
If we were to trust to the doctrines promulgated by elementary
writers, it is no less true that alienage in any mediate ancestor
will interrupt the descent between persons who are capable of
taking and transmitting land by descent. It is so laid down in
Comyn's Digest (Alien C. I), a work of rare excellence and
accuracy, and in Bacon's Abridgement (Alien, C): and it is implied
in the text of Blackstone's Commentaries, 2 Black.Comm. 250, where
the only exception admitted is of a descent from brother to
brother. Lord Coke, in his First Institute, Co.Litt. 8a, says
that
"If an alien cometh into England and hath issue two sons, these
two sons are
indigenae, subjects born, because they are
born within the realm, and yet if one of them purchase lands in fee
and dieth without issue, his brother shall not be his heir, for
there was never any inheritable blood between the father and them,
and
Page 31 U. S. 114
where the sons by no possibility can be heirs to the father, the
one of them shall not be heir to the other."
The case put by Lord Coke of a descent from brother to brother
afterwards became an exceedingly vexed question, and was finally
resolved in the case of
Collingwood v. Pace in favor of
the descent from brother to brother by seven judges against three
on deliberate argument before all the judges in the Exchequer
Chamber upon an adjournment of the cause from the common pleas. All
the judges gave seriatim opinions, but the whole case turned upon
the point whether the descent was to be considered as mediate or
immediate. Three judges (Lord Chief Justice Bridgman, and Tyrrel,
J. and Keeling, J.) were of opinion that the descent from brother
to brother was not immediate, but mediate through the father
(mediante patre); the other judges were of opinion that by
the common law the descent from brother to brother was immediate,
and not through the father, as a
medium deferens. The case
is reported in various books, and in all of them, considering its
magnitude and importance, in a very imperfect and unsatisfactory
manner. The original arguments and opinions in the common pleas are
given in 1 Keble 65, and in the Exchequer Chamber in 1 Keble 174,
et seq. 216, 265, 538, 579, 585, 603, 670, 699, in 2
Siderfin 193, and very briefly in 1 Levin's 59,
S.C. Hard.
224. The opinion of Lord Hale is reported at large in 1 Ventris
413, and Mr. Bannister, in his excellent edition of the judgments
of Lord Chief Justice Bridgman (Bannister 410, 414), has recently
and for the first time given us the opinion of this eminent judge
from his own manuscript. It is a most luminous and profound
argument, and contains a large survey of the whole doctrine of
alienage. In this opinion the special verdict is set forth, and
thus gets us rid of some of the obscurities thrown upon it in the
former reports. The substance of the facts is as follows:
Robert Ramsay, an alien born in Scotland before the accession of
the Crown of England to King James, had issue four sons, aliens,
viz., Robert, Nicholas, John, afterwards Earl of
Itchderness, and naturalized by an act of Parliament in 1 Jac. I.
and George, naturalized by an act of Parliament, 7 Jac. I. who
afterwards had issue John, the plaintiff's lessor, born in England.
Nicholas had issue Patrick, born in England in
Page 31 U. S. 115
1618, who had issue William, born in England, who was then
living. John, the earl, having purchased the rectory of Kingston in
question in the case, died seized thereof, without issue, in
January, 1 Car. I (1625). Afterwards, in July, 1636, George died,
leaving issue the said John, the lessor of the plaintiff;
afterwards, in May, 1638, Nicholas died, leaving the said Patrick
his only son living. It did not appear when Robert the eldest son
died, but he left three daughters, all aliens born, then living.
The question was whether John, the lessor of the plaintiff, the son
of George, would take the premises as heir by descent to the earl,
his uncle, or for want of an heir the rectory should escheat to the
Crown. In the argument of the case by the judges, we are informed
both by Lord Hale and Lord Bridgman that three things were agreed
to as unquestionable by all of them. 1. That neither the daughters
of Robert, the son of Robert, being aliens, nor Patrick, the son of
Nicholas, though born in England, can inherit, because his father,
through whom he must convey his pedigree, was an alien. 2. That as
the estate cannot descend to them, so neither do any of them stand
in the way to hinder the descent to George. The difference hath
been often put between the case of a son or brother, aliens, who
are in law as
nonexistentes, and the brother or son of a
person attainted, as to this point. 3. That there is no difference
between the descent to George and the descent to John his son, the
lessor of the plaintiff, who,
jure representationis, is
the same with the father. If George, having survived John, the
earl, might have inherited the estate, so will John, the son, who
represents him. So that the point of the case came to this --
whether, if two brothers of alien parents, one naturalized by acts
of Parliament, and the one purchaseth lands and dies, the lands
shall descend to the other. And so it is put by Lord Bridgman and
Lord Hale.
In regard to Patrick, the son of Nicholas, it is material to
observe that as Nicholas survived John, the earl, he would, except
for his being an alien, have been capable to inherit the latter.
But being alive, he would intercept the descent to Patrick, who was
a native born subject, according to the principles of the common
law stated by this Court in
McHenry v.
Somerville, 9 Wheat. 354. The learned judges,
however, in
Collingwood v. Pace, take no particular notice
of the
Page 31 U. S. 116
fact that Nicholas was living at the death of John, the earl,
but treat the case exactly in the same manner as if he had been
then dead, and apparently rely on no distinction as arising from
that fact. But George, the brother of John, the earl, survived him,
and being a naturalized subject, was capable of taking by descent
from him unless the alienage of his father Robert (whether dead or
living) interrupted the descent, and John, the lessor of the
plaintiff,
jure representationis, derived his title
directly from his father.
Having stated these preliminaries, which are necessary for a
more clear understanding of the case, it may be added that the case
furnishes conclusive evidence that by the common law, in all cases
of mediate descents, if any mediate ancestor through whom the party
makes his pedigree as heir is an alien, that is a bar to his title
as heir for the reasons stated by Lord Coke that such an alien
ancestor can communicate no inheritable blood. This was admitted by
all the judges, as well by those who were in favor of the lessor of
the plaintiff as by those who argued the other way. It was
necessarily the doctrine of the latter, for they held the alienage
of the father a good bar to the descent, deeming a descent from
brother to brother to be a mediate descent only,
mediante
patre; on the other hand, the seven judges who were for the
lessor of the plaintiff admitted the general doctrine but contended
that it did not apply to the case of a descent from brother to
brother because it was an immediate descent. And this constituted
the whole controversy between them -- that is, whether the descent
was mediate or immediate. It will be our business to demonstrate
this by passages from the opinions of Lord Bridgman and Lord Hale,
who took opposite sides in the argument. Their opinions are given
at large and in an authentic form; those of the other judges, who
agreed with them respectively, are given by the reporters in a very
abridged and loose manner, but all of them manifestly assume the
same general basis of reasoning on this point, as will appear by
referring to their opinions in 2 Siderfin 193, and 1 Keble 579,
585, 603, 670, 699.
In the first place, we will begin with Lord Hale. He says
"In immediate descents there can be no impediment but what
arises in the parties themselves. For instance, the father
Page 31 U. S. 117
seized of lands, the impediment that hinders the descent must be
either in the father or the son; as if the father or the son be
attaint or an alien. In mediate [printed 'immediate' by mistake, as
the context shows] descents, a disability of being an alien, or
attaint in him, that I call a
medius ancestor, will
disable a person to take by descent, though he himself hath no such
disability. For instance, in lineal descents, if a father be
attaint or be an alien and hath issue a denizen born, and dies in
the life of the grandfather, the grandfather dies seized; the son
shall not take, but the land shall escheat. In collateral descents,
A. and B. brothers; A. is an alien or attainted, and hath issue to
a denizen born; [
Footnote 1] B.
purchaseth lands and dies without issue, C. shall not inherit, for
A., which was the
medius ancestor or
medium
deferens of this descent, was incapable. And this is very
apparent in this very case, for by this means Patrick, though a
denizen born and the son of an elder brother, is disabled to
inherit the earl. A. and B. brothers; A. is an alien or person
attainted, and hath issue C. and dies, and C. purchaseth lands and
dies without issue; B., his uncle, shall not inherit for the reason
beforegoing, for A. is a
medius, which was disabled. And
if in our case Patrick, the son of Nicholas, although a denizen
born, had purchased lands and died without issue, John, his uncle,
should not have inherited him, by reason of the disability of
Nicholas, and yet Nicholas himself, had he not been an alien, could
not immediately have inherited to his son, but yet he is a block in
the way of John."
Collingwood v. Pace, 1 Vent. 415, 416;
S.P. id., 419,
423.
See also S.C. 1 Keble 671, &c. These passages
distinctly establish the doctrine contended for in all cases of
mediate descents in the sense given to these terms by Lord Hale --
that is, that an alien mediate ancestor through whom the party must
claim is a bar to the descent. The cases put of a descent from
grandfather to grandson, the father being an alien and dead, and of
a descent from an uncle to a nephew, the brother being an alien and
dead, are direct to the point and are put as unquestionable. Lord
Hale also cites in illustration
Page 31 U. S. 118
of this doctrine,
Grey's Case, Dyer 274, and
Courtney's Case, cited 1 Vent. 425, Bannister 452. Both of
these were cases of attaint in the mediate ancestor creating an
incapacity to inherit, and although in some cases there is a
difference between alienage and attaint where the claim is not
through the ancestor, yet where the claim is through him, there is
no difference. The disability equally applies to each, and breaks
the inheritance. Lord Hale takes notice of this distinction in
another part of his argument, in speaking of the disability of an
alien, which is general or original to himself in reference to
inheritance, and where it is a consequential or consecutive
disability, that reflects to an alien from one that must derive by
or through him, though he perchance be a natural born subject. Thus
he says
"In respect to this incapacity (personal), he doth resemble a
personal attaint, yet with this difference. The law looks upon a
person attaint as one that it takes notice of, and therefore the
eldest son attaint, overliving his father, though he shall not take
by descent in respect of his disability, yet he shall hinder the
descent of the younger son. But if the eldest son be an alien, the
law takes no notice of him, and therefore, as he shall not take by
descent, so he shall not impede the descent to his younger brother.
A consequential consecutive disability, that reflects to an alien
from one that must derive by or through him, though he perchance be
a natural born subject (doth impede). [
Footnote 2] As in our case, though Patrick, the son of
Nicholas, be a natural born subject, yet because Nicholas his
father was an alien, there is a consecutive impediment derived upon
Patrick whereby he is consequentially disabled to inherit John his
uncle, and this consecutive disability is parallel to that which we
call corruption of blood, which is a consequent of attainder. If
the father be attainted, the blood of the grandfather is not
corrupted; no, nor the blood of his son, though he could not
inherit him, but only the blood of the father. But that corruption
of blood in the father draws a consequential impediment upon the
son to inherit the grandfather, because the father's corruption of
blood obstructs the transmission of the hereditary descent between
the grandfather and the son."
1 Vent. 417-418.
Page 31 U. S. 119
Lord Hale afterwards proceeds to state the reasons why,
notwithstanding the general rule, he was of opinion that in the
case at bar, George, and by parity of reasoning his son John, the
lessor of the plaintiff, could inherit to the earl. "My first
reason," says he,
"is because the descent from brother to brother, though it be a
collateral descent, yet it is an immediate descent, and
consequently upon what has been premised at first, unless we can
find a disability or impediment in them, no impediment in another
ancestor will hinder the descent between them."
1 Vent. 423. He then proceeds to establish his doctrine that it
is an immediate descent, and that in this respect it differs from
all other collateral descents whatsoever. He then adds
"If the father, in case of a descent between brothers, were such
an ancestor as the law looks upon as a medium that derives the one
descent from the other, then the attainder of the father would
hinder the descent between the brothers. But the attainder of the
father doth not hinder the descent between the brothers; therefore
the father is not such a medium or nexus as is looked upon by law
as the means deriving such descent between the two brothers."
1 Vent. 425.
These passages from Lord Hale's opinion have been cited the more
at large because they afford a satisfactory answer to the argument
at the bar as to the incongruity and inconclusiveness of his
reasoning and establish beyond controversy that in his opinion, the
common law interrupted the descent wherever a mediate ancestor was
either an alien or attaint, and that the case of a descent from
brother to brother was excepted because the descent was
immediate.
Let us now proceed in the next place to the opinion of Lord
Bridgman. He begins by stating the very same proposition as Lord
Hale. "It hath been inferred," says he,
"that in immediate descents there can be no impediment but what
ariseth in the parties themselves. But in mediate descents, it is
agreed, the disability of being an alien or attainted in him that
is the medius antecessor will disable the other, though he have no
such disability. And therefore Patrick here, though born in
England, cannot inherit John his uncle, nor John to him, by reason
of the disability of Nicholas, the
medius antecessor. But
it is said that the descent from brother to brother,
Page 31 U. S. 120
though it be a collateral descent, yet it is an immediate
descent, and so no impediment could hinder a descent between them.
Bannister 418, 436. And the whole of his argument is then employed
in an attempt to disprove that the descent between brothers is by
the common law immediate, and in affirming the doctrine of Lord
Coke in Co.Litt. 8a for the same reason,
viz., there is no
inheritable blood between them otherwise than
mediante
patre. Bannister 437, 442-443, 445, 460. It is unnecessary to
go over that reasoning, because it proceeds upon the ground as
conceded and clearly established in the common law, there can be no
title made by descent where there is a mediate alien ancestor
unless it be the case of a descent from brother to brother."
The case of
Collingwood v. Pace, then, does
conclusively establish the doctrine of the common law to be, by the
admission of all the judges, that if the pedigree must be traced
through a mediate alien ancestor, the party cannot take by descent,
for the inheritable blood is stopped, and there is a flat bar to
the assertion of any title derived through the alien, so that the
elementary writers are fully borne out in their assertions on this
subject.
See Com.Dig. Alien c. Bac.Abridg. Alien C.,
Cruise's Dig. tit. 29, chap. 2, sec. 20. York on Forfeiture 72. 3
Salk. 129.
Doe d. Durorere v. Jones, 4 Term 300.
The preamble to the statute of 11 and 12 William III, ch. 6,
also affords strong evidence of the antecedent state of the law on
this point, and that the statute is remedial, and not, as has been
argued at the bar, in any respect declaratory. It is in the
following words:
"Whereas divers persons born within the King's dominions are
disabled to inherit and make their titles by descent from their
ancestors by reason that their father or mother, or some other
ancestor by whom they are to derive their descent, was an alien and
not born within the King's dominions, for remedy whereof,"
&c.
Here, the disability to inherit and make title is plainly stated
to exist -- not that there is a doubt upon the subject -- and the
disability is stated to arise from the fact that the ancestor by
whom they are to derive their descent is an alien, not that the
ancestor from whom they derive their title to the estate is an
alien, and a remedy is therefore provided to meet that which
Page 31 U. S. 121
was deemed the only inconvenience, a descent through a mediate
alien ancestor.
Upon the clear result, then, of the English authorities, we
should be of opinion, even if there were no further lights on the
subject, that the alienage of the mediate ancestors in the present
case, would be a bar to the recovery of the plaintiff. But the same
doctrine will be found fully recognized by Mr. Chancellor Kent in
his learned Commentaries with the additional declaration, that the
statute of William III had never been adopted in New York, though
he very properly admits that the enlarged policy of the present day
would naturally incline us to a benignant interpretation of the law
of descents in favor of natural born citizens, who were obliged to
deduce a title to land from a pure and legitimate source, through
an alien ancestor. 2 Kent's Comm. 47-49.
See also Jackson v.
Lunn, 3 John.Cas. 109, 121. The case of
Jackson v.
Wood, 7 Johns. 289, 297, has not the slightest bearing on the
subject. It decided no more than that an Indian was incapable of
passing a title to lands in New York, without the consent of the
legislature, or in any other manner than is provided for by the
laws of the state. The case of
Jackson v. Jackson, 7
Johns. 213, turned upon the known distinction, that an alien who
cannot inherit, shall not prevent the descent to a citizen, who can
make title as heir, not through the alien, but aside from him; as
in the common case in England of a younger brother inheriting from
his father, though he has an elder brother living who is an
alien.
But there is a very recent decision in the State of New York,
not yet in print, which is direct to the point now before us. It is
the case of
Jackson v. Green, decided by the supreme court
of that state in 1831. We have been favored with a manuscript copy
of the opinion delivered by the court on that occasion. The
question in that case was whether one naturalized citizen could
take by descent from another naturalized citizen who was his
cousin, the pedigree being to be made through alien ancestors. It
was held that he could not. The court fully recognized the
distinction already adverted to between mediate and immediate
descents, holding that an alien ancestor, through whom the pedigree
must be traced, intercepted the descent, and produced a fatal bar
to the recovery.
Page 31 U. S. 122
A certificate will be sent to the circuit court that the lessors
of the plaintiff, Bella Cohen and Rhina Mordecai, were not capable
of taking by descent the premises described in the special verdict
in the case, whereof the said Philip Jacobs died seized, as therein
stated, as heirs at law of the said Philip Jacobs; by reason of the
alienage of the mother of the said Philip Jacobs, and his maternal
uncle, Leipman Cohen, and their father, the lessors of the
plaintiff deriving their pedigree and title by descent through
mediate alien ancestors. [
Footnote
3] Certificate accordingly.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York, and on the point and question on which the
judges of the said circuit court were opposed in opinion and which
was certified to this Court for its opinion agreeably to the act of
Congress in such cases made and provided, and was argued by
counsel, on consideration whereof it is the opinion of this Court
that the lessors of the plaintiff, Bella Cohen, and Rhina Mordecai
were not capable of taking by descent the premises described in the
special verdict in the case whereof the said Philip Jacobs died
seized, as therein stated, as heirs at law of the said Philip
Jacobs, by reason of the alienage of the mother of the said Philip
Jacobs and his maternal uncle, Leipman Cohen, and his father, the
lessors of the plaintiff deriving their pedigree and title by
descent through mediate alien ancestors. Whereupon it is ordered
and adjudged by this Court that it be certified to the judges of
the said circuit court that the lessors of the plaintiff, Bella
Cohen and Rhina Mordecai, were not capable of taking by descent
Page 31 U. S. 123
the premises described in the special verdict in the case,
whereof the said Philip Jacobs died seized, as therein stated, as
heirs at law of the said Philip Jacobs by reason of the alienage of
the mother of the said Philip Jacobs, and his maternal uncle,
Leipman Cohen, and their father, the lessors of the plaintiff
deriving their pedigree and title by descent through mediate alien
ancestors.
[
Footnote 1]
The word "denizen" is used in the common law in a double sense.
It sometimes means a natural born subject and sometimes a person
who, being an alien, has been denizenized by letters patent of the
Crown. Co.Litt. 129a.
Id., 8a. Com.Dig. Alien, D.
Bannister 433.
[
Footnote 2]
These words are not found in Vent. 417, but the immediate
context shows that they are omitted by mistake, and the sentence is
left imperfect.
[
Footnote 3]
Note. It may not be useless to state that the title of
the parties in
Collingwood v. Pace underwent judicial
examination and decision at three different periods. The first was
in
Foster v. Ramsay, in the upper bench, during the
commonwealth, 1657-1659, and is reported in 1 Siderfin 23, 51, 148,
and cited in Bannister 447. The second was
Collingwood v.
Pace, brought in 1656 but not finally decided until many years
afterwards. The third was
Crane v. Ramsay, in 21 and 22
Car. II. (1670), reported in 2 Vent. 1; Vaughan 274; Thomas Jones
10; Carter 188. In the two first cases, John, the son of George,
was lessor of the plaintiff. In the last, the lessors of the
plaintiff claimed by grant from Patrick, the son of Nicholas, and
John was defendant.
