66 fer the existence of the facts themselves" (a), or, as Dr. SECTION 2. XXV. With respect to posthumous children, the Ultimum law has varied, at least from the rule laid down by endi. (a) Le Marchant, p. 490; Nicolas, p. 522. (b) Le Marchant, p. 424; Nicolas, p. 448. tempus pari SECTION 2. Natural-born subject. Who deemed an alien by the common law. Common law altered by the Lord Coke, who regarded forty weeks as the ultimum tempus pariendi (a): the general opinion, fortified by the medical evidence given in the Gardner case, now is, that gestation may be protracted beyond the period above mentioned-to what extent, however, has neither been ascertained de facto, nor de jure defined. XXVI. Again, it is an established rule, that no one is capable of inheriting, unless he is a natural born subject, or naturalised by act of parliament, or ❝idenized," (as Bacon terms it), i. e. made a denizen by the King's letters patent. According to the common law, every one born out of the allegiance of the Crown, or, if within its dominions, of parents not in actual obedience to the Crown, was accounted an alien (b). It was, however, enacted by the stat. 25 25 Edw. 3, s. 2. Edw. 3, § 2, that all children born abroad, whose fathers and mothers were, at the time of their birth, in allegiance to the King, (the mother having passed the seas with her husband's consent), might inherit, as if born in England. And by the stat. 7 Anne, c. 5, it was enacted, that the children of all natural-born subjects, born out of the allegiance of the Crown, shall be deemed to be natural-born subjects. Doubts having arisen respecting the construction of this act, it was 4 Geo. 2, c. 21. enacted, by the stat. 4 Geo. 2, c. 21, that all children born out of the allegiance of the Crown, or which should be born out of such allegiance, whose fathers 7 Anne, c. 5. (a) Co. Litt. 123. b., n. by Mr. Hargrave; and see also Hargrave's Juris. Exer. iii. 409. (b) Calvin's case, 7 Rep.16 a, 18 a; Com. Dig. tit. Alien, (A), i. 540, 541. SECTION 2. were or should be natural-born subjects at the time of the birth of such children, should be adjudged to be natural-born subjects, 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 were not in the service of any state in enmity with Great Britain. And the provisions of the two last-mentioned statutes were further extended by the 13 Geo. 3, c. 21, to grand- 13 Geo.3, c. 21. children on the father's side, by enacting, that all persons born out of the allegiance of the Crown of England or of Great Britain, whose fathers were or should, by virtue of the statutes 7 Anne and 4 Geo. 2, be entitled to the rights and privileges of naturalborn subjects, should be deemed natural-born subjects: so that the ultimate effect of these enactments is, that any child or grandchild born out of the King's allegiance, whose father or grandfather was, at the time of the birth of such child, not only a subject, but a subject by birth, (for both characters must unite in the ancestor), is capable of inheriting lands in England (a). Hence it follows, that one born abroad of a mother who was a natural-born subject, but of a father who was an alien, does not derive inheritable blood in this country; for the privilege conferred by the foregoing statutes is confined to the paternal line (b). XXVII. According to the definition above given, one who is born of parents, not in actual obedience Any child or born out of the ance, whose grandchild King's allegi father or grand father was at birth of such the time of the child a na tural-born subject, is capable of inheriting. Children born in the United 1783, of parents to the Crown, is an alien; and hence, children born born there be (a) 2 Barn. & Cr. 795. (b) Doe d. Douroure v. Jones, 4 T. R. 300. SECTION 2. fore that time, and continuing to reside there afterwards, are aliens. in the United States of America since the recognition of their independence by the treaty of peace in 1783, of parents born there before that time, and continuing to reside there afterwards, (thus putting off their allegiance to the Crown of Great Britain), have been held to be aliens, incapable of inheriting lands in this country (a). And this judgment is conformable to the decisions of the courts of the United States upon a similar question brought before them, on the claim of a British subject to land in America; with this difference only, that, instead of reckoning the independence of the United States from the treaty of peace in 1783, when it was recognised by Great Britain, they refer back to 1776, the time when it was declared (b). Notwithstanding, however, these decisions, some very eminent counsel of the Scottish bar (c) have strenuously contended against (a) Doe d. Thomas v. Acklam, 2 Barn. & Cr. 773. If the parent did not adhere to the United States at the time of the treaty, the case is then within the stat. 4 Geo. 2, c. 21. Auchmuty v. Mulcaster, 5 Barn. & Cr. 771. (b) Kent's Commentaries on American Law, ii. 56, 59, third edit. (New York, 1836), referring to Reed v. Reed, 1 Munf. 225; Dawson v. Godfrey, 4 Cranch, 321; Jackson v. Burns, 3 Bonney, 75; Blight v. Rochester, 7 Wheat. 535. (c) The MS. opinions of the Scottish lawyers are too volu 66 minous for quotation: the following extract, however, will be read with interest, when known to be from the pen of Lord Jeffrey: By the treaty of 1783, the independence of the United States is no doubt fully recognised, and the character of citizens of that new state is conferred on all its permanent and voluntary inhabitants. But there is no provision in that treaty forfeiting or renouncing for such persons their rights and privileges as denizens of Great Britain; and the question therefore is, whether such forfeiture or renunciation can be legally inferred the alienage; but the views entertained by them have not been generally acquiesced in: and some members of the English bar, equally distinguished for from the terms of the treaty. Now, we humbly conceive, that one individual may completely acquire the right of a denizen or free citizen of any country without forfeiting thereby any similar rights that he may have previously had in another. It is a certain fact, at least, that thousands of natural-born British subjects have within the last twenty or thirty years acquired the full rights of natural-born citizens of America, chiefly for the purpose of mercantile speculations, or other gainful pursuits in that country, and have resided more or less in its territory, without its having been surmised that they thereby became aliens as to Great Britain, or incapable of holding or succeeding to lands in this country. During the prevalence of what was called the continental system, in the late war, hundreds of Britons in like manner were for similar purposes naturalized, and became citizens of various of the small states in the north of Europe; and yet no one it is believed ever thought of dealing with them on this account as aliens, or of depriving them of their rights of inheritance. We are not aware, indeed, that there is any authority for denying that a man may have the rights of a denizen in two or more countries, and may in time of peace claim all the privileges, and be liable to the duties of a citizen in them all. In the case of a war between these countries, indeed, the distressing question of double allegiance will arise; and the principles are perhaps not yet settled on which it should be adjusted. But, in time of peace, and in so far as regards ordinary civil rights, we conceive that a man may lawfully be a citizen of two countries; and that the mere acquisition of the rights of citizenship, whether in a new or in an old country, can never of itself infer the forfeiture of any such right of citizenship as he previously enjoyed in another. "But the treaty of 1783 merely gives to persons who were previously natural-born subjects of Great Britain, the rights of the citizens of the new and independent States of America, and contains nothing importing a forfeiture or deprivation of their original rights as subjects, which we are of opinion might competently and would naturally remain with them along with those afterwards acquired, if the only objection to this were found SECTION 2. |