delivered the opinion of the Court.
This сase comes before the court upon a certificate of division of opinion of the jqdges 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 seised 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 he intestate estate., Two of the lessors of the plaintiffs, Bella Cohen and Rhina Mordecai are citizens of South Carolina, and claim to he the heirs át law of'the testator and of his
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 togethеr did form the law of the said colony on the 19th of 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. mаy make or deriye their title or pedigree, were pr 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
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will remain, whether it was in force in New York at the time of the present descent cast; for if it was at that time repealed, it has no bearing on the present case.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 the 27th of February 1788, chap. 90, sect. 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 descénts of New York, of the 23d of 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 hot only the common law properly so called, but the alterations and amendments Which had been made in it by British statutes antecedent td 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 vigour 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 the 19th of 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 un
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 thе act, without any necessity for such a construction. The words are “ that pone 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
We think, then, that the statute of William III. constituted no part of the law of New York at the time when the presenj 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 tb'the consideration of the common law applicable to it.
In order to clear-the way for a more, exact considеration 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 -оr 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 Rep. 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. 10, b. On the other hand, with reference to the line of pedigree or cоnsanguinity, a descent is often said to be immediate,
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 if. 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 descénf. 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. 8, a, says, that, “if-an alien cometh into England and hath issue two sons, these two sons are
iridigense,
subjects born, because they arе 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
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 M’Henry v. Somerville,
Having stated these preliminaries, which are necessary for a more clear understanding of the. case, it may be added, that the cáse 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 reásons 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 favour 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 paire: 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 descént 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 máriner: 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’s Rep. 193, and 1 Keble’s Rep. 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
• 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 me.dius 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 antécessor. But it is said that the 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 de-. scent, 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, sect. 20. York on Forfeiture, 72. 3 Salk. 129. Doe d. Durorere v. Jones, 4 Term Rep. 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 ancéstor 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
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 ancestor's 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 favour 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, 48, 49. See also Jackson v. Lunn, 3 John. Cas. 109., 121. The case of Jackson v. Wood, 7 Johns. Rep. 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. Rep. 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 favoured 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 рedigree 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.
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 seised, 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, Bellа Cohen -tmd Rhina Mordecai, were not capable of taking by descent
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 benсh, during the commonwealth, 1657 — 1659, and is reported in 1 Siderfin’s Rep. 23, 51, 148, and cited in Bannister’s Rep. 447. The second was Colllingwood v. Pace, brought in 1656, but not finally decided until many years afterwards, The third was Crane v. Ramsay, in 21 and22 Car. II. (1670), reported in 2 Vent. R. 1; Vaughan’s Rep. 274; Thomas Jones’s Rep. 10; Carter’s Rep. 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.
Notes
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. 129,a. Id. 8 a.. Com. Dig. Alien, D. Bannister’s Rep. 433.
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.