Bridgman oh Collingwood v pace Mr hargrave note on this case in No fol be as  follow in vol three of these manuscript fol to Lord Bridgmans argument in c b  be give and S C in c b keb and side SC in the exchequer Chamber vol two of  these report to Lord Bridgmans argument fol to judge windham argument and fol  to Lord hale but the last only as in I Ventris SC in the exchequer Chamber I  side Hardres Keble and upon the division of the judge in the common plea the  opinion of the exchequer Chamber be take where this copious argument seem to  have be deliver see keb it be hold by hale C B and by six other judge against  the opinion of sir Orlando Bridgman and of two other judge that the plaintiff  a nativeborn son of a naturalize son of a alien not naturalize shall inherit  to another naturalize son of the alien a devise to the heir of n and to the  heir of the say heir for ever hold to be void as n be live at the decease of  the testator the point on the will be determine in the time of the  commonwealth in another case see side and b hark ms No fol in the court of  common plea see S C in exchequer Chamber Ventris e r with note this term Tr  car hark ms No fol c the great case of Collingwood and pace be argue by the  judge who be divide in opinion in it brown and ride for the plaintiff That two  Bridgman oh er p brother be naturalize several the issue of one may inherit to  the other see the reason at large in my argument the argument at large be in  No fol of Mr hargrave collection so much only of it be print here as relate to  the point on the construction of the will upon which the court agree that part  of it which relate to the point adjourn to the exchequer Chamber be probable  better state in the argument of sir Orlando Bridgman there and it be print at  length from No fol of the manuscript in p of this volume d but we all agree in  this point sir John Ramsey be seize in fee of the rectory of Kingston in  reversion expectant upon a estate limit to his wife for her life and have a  brother Nicholas who be a alien but have issue Patrick his only son bear in  England and sir John have by his will make James devise that his executor  shall pay to Nicholas l per annum for forty year if he live so long towards  the maintenance and bring up of his old son Bridgman oh devise in these word  item I give and bequeathe unto the heir of my brother Nicholas Ramsey and to  the heir of the say heir for ever all that manor and parsonage of Kingston  upon the trust and confidence that the say heir and heir shall from time to  time pay and discharge all the debt and specialty which I owe and be  Chargeable withal except such debt which be mention in a schedule hereunto  annex and die within a fortnight Nicholas and Patrick be both live I conceive  this devise be void in wild case   No fol this be the argument at large of sir  Orlando Bridgman on the construction of the will and deliver in the common  plea in Tr term car e land be devise to a for life remainder to b in tail  remainder to Roland wile and his wife and after their deceases to their child  they have then a son and a daughter the question be whether Roland and his  wife have a estate tail or for life with remainder to their child for life I  which case be argue before all the judge of England the judge first consider  the judgement of the commonlaw if the conveyance have be make by the devisor  in his life and second what reason there be why the judgement shall not be  accord to the rule of law No reason as it be there say can be give but the  intent of the testator but that intent must be manifest and certain not  obscure and doubtful Hobart Ann needler case make a difference in the king  grant between the intent mental and the express intent legal that rule be also  lie in Coundens case Hobart that the devise must be take accord to the intent  of the devisor but that intent must be so express in the will write that it  may be certain to the court and not against law now it be clear by a  conveyance at the commonlaw a immediate estate limit to the heir of Nicholas  be void and will convey nothing to Patrick first because he be a  alien secondly because his father be alive and so he be no heir then for the  intent it be to be agree here that when the earl devise to the heir of his  brother Nicholas that by the word heir he intend to design some person certain  and that it shall not be take to be a word of limitation of estate the rather  also because it be a devise to the heir and the heir of that heir so that the  latter word only be the word of limitation and therefore I conceive the  principal case in Coundens case and Ashenhursts case come not home nor be any  authority to guide this case for the devise to the heir Bridgman oh male or  right heir male there amount not only to describe the person but also to limit  the estate and there be probable ground to conjecture he intend Patrick to be  the devisee because the devise be to take effect immediate after his death and  during the life of Nicholas for there be a express devise to Nicholas by the  will and therefore he can not intend a legal heir but heir accord to the  vulgar acceptation of the word and possible he may not know the Christian name  of Patrick for it appear by the will he know not the Christian name of his  brethreninlaw who marry his sister but we be to expound will not to make they  and where the intent appear not clear and demonstrative otherwise we be to  judge the word of a will accord to the construction of law upon such word in a  deed it be not clear he intend it to Patrick particular for then if Patrick  have die before he Patrick son William shall not take nor any other son of  Nicholas whereas by his will he intend the heir of Nicholas shall take and his  heir Bridgman oh er p second it be not clear he intend the old son of Nicholas  at the time of the devise for if he have he may have name he as he do in the  other part of the will name the old son of Nicholas three possible he may  intend only a legal heir who may take and transmit it to his heir collateral  which can not be here if Patrick take and may conceive that Nicholas his child  be post born be capable as heir and therefore may devise it so and not know  the force of law that there can be haeres to live and possible in regard the  countess his wife have a estate for her life he may imagine the devise can not  take effect till after her death and a remainder may be limit to one not  capable and before her death Nicholas may be naturalize every one of these may  be conjecture as well as any one of they there be no clear certainty of his  intent in the will if the devise here have be to the heir of I e a Englishman  and he outlive the devisor I take it somewhat a strong case the devise shall  be void for there be a possibility it may have be good in a legal sense the  case of a alien make indeed a difference but it appear not by the will that  Nicholas be a alien nor do it appear be take that into consideration perhaps  he do not and what ground have we to suppose it and therefore have choose such  a description of the person to who he devise as require the law to ascertain  it that devise must fall within the legal acceptation and be a Bridgman oh  legal heir or otherwise he take not and I hold it a good rule in case of  wills that the intention to pass a inheritance to any person contrary to the  word of the will or rule of law must not only appear within the will itself  but must be so express that it be certain to the court which it be not in this  case and it be a good marginal note in Hobart in cambden case No man shall  show I a case in law where by purchase by a devise to a heir any may take that  be not heir indeed without declaration plain that case be put of the heir of  the devisor but the reason be the same where the same expression be use in a  will concern the heir of another a great objection have be made that  construction ought to be make ut res to be strong and by this construction the  will be void in its first creation for first Nicholas be a alien he can have  no heir secondly that he can not be haeres to live I answer it be true that  the law be that a alien can have no heir and that one can be his father heir  in vita father but if this objection have any force it must be suppose that  the devisor be a lawyer whereas the law suppose he weak council and the  question be not what the operation of law be upon the devise but what he  intend by it and his intention must be gather by his word and his word  construe accord the letter and legal propriety of they where nothing appear to  the contrary and it not be find that Patrick be repute heir or know by the  name of heir of Nicholas in Nicholas his lifetime which be matter of fact I  conceive the word in the will shall have such interpretation as they shall  have have in a grant or conveyance at the commonlaw and no other and  consequent that the devise can be good because Nicholas have no heir at the  time of the death of the devisor no more than a devise to a corporation not  find or a person not in be Hobart h and Hobart Coundens ease and for express  authority in this case beside the judgement of the court hereto before in this  very point I know the opinion of my Lord Branston justice Bacon and some other  very learned person now live do in the point full concur therein Bridgman oh  construction of act of naturalize hark ms No fol in the exchequer Chamber maii  car hark ms No fol Bridgman c j gawen Collingwood bring a action of trespass  and ejectment against perses pace and declare that John Ramsey the that of  July at kingstonuponthames do demise to he one message one garden acre of land  acre of meadow and acre of pasture with the appurtenance in Kingston and the  rectory of the church there from saint June then last pass for seven year by  virtue whereof the plaintiff enter and be thereof possess till the Bridgman oh  er p defendant the say that day of July do he eject to his damage c and upon  not guilty plead there be a special verdict find that as to all the tenement  aforesaid beside the say rectory the jury find the defendant not guilty but as  to the rectory they say that one Robert Ramsey a alien bear of Scottish parent  in Scotland and a subject of the king of Scotland before the accession of the  crown of Scotland to the crown of England have four son videlicet Robert the  first bear son Nicholas the second John his three and George his four all  alien bear that Robert the first son have issue three daughter Margaret Isabel  and jennet all alien bear yet live and that Nicholas the second son have issue  of his body Patrick bear in England at Kingston aforesaid saint may and that  Patrick have issue William bear in England c yet live and that the say John  who be afterward earl of Holderness naturalize by Act of parliament begin of  Mars I throw and find the Act in haec word which be to this effect that he and  his child to be bear be natural subject and be adjudge and take in every  respect condition and degree and to all intent and purpose the king natural  liege subject of this realm and as free to all intent construction and purpose  as if they have be bear within this realm in some act of naturalize child be  not mention a Act before one make Geo and naturalize Anthony Sapte and Francis  Sapte his brother make no mention of the child of either note by Mr Hargrave  and shall Bridgman oh be enable and adjudge able to all intent construction  and purpose to demand have and enjoy any manor land and tenement and to make  their resort and pedigree to any of their ancestor lineal and collateral by  reason of any descent remainder or any other title which shall descend or grow  unto they as also to prosecute suit and other lawful thing whatsoever to do as  lawful frank full liberal sure and free as if they have be bear in England and  as other person here may do and further find that the say George be also  naturalize by a like Act of parliament in James and find the Act in haec word  also and that the say George have issue John the lessor of the plaintiff his  old son bear in England c and find that John earl of Holderness be seize in  fee of the rectory in question hold of the king as of his manor of east  Greenwich in socage and convey it to the use of himself for life the remainder  to Martha his wife for life the remainder to his own right heir and find the  will in haec word and that the earl the that of January car die without issue  and that the say Martha survive he and enter into the rectory and marry the  Lord Willoughby and find that July George die have issue the say John the  lessor of the plaintiff and that Nicholas ult maii die leave the say Patrick  his only son live and that Feb car a inquisition under the great seal be take  at in Surrey by which it be find that the earl die without issue and without  heir whereby the say rectory escheat to the king and find that Oct car the  king do by his letter patent c grant the say rectory to William Murray and his  heir and the reversion thereof c and find that the say Lord Willoughby and  Martha his wife William Murray and Patrick after the death of Nicholas do  grant their estate in the say rectory to the earl of Elgin and Edward Sydnam  and their heir and that Martha June die and that John the lessor of the  plaintiff ult June enter into the rectory and be thereof seize prout law  postulate and be so seize make the Bridgman oh lease to the plaintiff who  enter upon who the defendant as servant to the Lord Elgin and Sydnam and by  their command enter but whether guilty or not the jury pray the advice of the  court c upon this record the case in effect and as to the matter for which it  be adjourn hither be this Robert Ramsey a alien bear in Scotland before the  accession of the crown of England to king James have issue son alien Robert  Nicholas John Bridgman oh er p afterward earl of Holderness and naturalize by  Act of parliament I James and George naturalize by Act of parliament throw who  afterward have issue John the plaintiff lessor bear in England Nicholas have  issue Patrick bear in England who have issue William bear in England and yet  live John the earl have purchase the rectory of Kingston in question die seize  thereof without issue Nicholas die George die John the lessor of the plaintiff  be his son and heir the question be whether John the lessor of the plaintiff  the son of George the heir by dissent to the earl his uncle or that for want  of a heir the rectory shall escheat unto the king of who it be hold to make  this not to be the case upon the verdict one objection be make by my brother  Windham I I Keble and hark ms fol h who first argue for the plaintiff that it  be express find that Robert the father be bear of alien parent and that he  have issue four son alien but it be not find that their mother be a alien and  therefore she shall be intend a englishwoman and so without question by her  line John and George the two brother be inheritable one to the other but this  have already receive a full answer her husband appear upon record to be bear  out of the king allegiance and to have have all his son there she shall be  presume a native where her husband live and have issue unless the contrary  have be express find to this sir Matthew hall reed against the opinion of  other judge who give judgement for the plaintiff Ventris Keble I to which I  shall add that this be not the point argue at the bar for difficulty whereof  the case be adjourn that in rei in point of fact the mother be also antenata  in Scotland and so the matter itself fit to receive the determination of this  court whereas it have be agree by all that have argue this case1st that  Bridgman oh neither the daughter of Robert the son of Robert be alien nor  Patrick the son of Nicholas though bear in England can inherit because his  father be a alien though descend from the elder brother of John the earl and  dly that as the estate can descend to they so neither do any of they stand in  the way to binder the descent to George the difference have be often put out  of our book between the case of a son or brother alien who be in law as non to  step out and the brother or son of a person attaint as to this point Lord hale  statement of this point be in Ventris where in Mr hargrave copy in the British  museum the follow note be preserve Acc cro James   Litt a d and S dial c fol a  of old edition be all with Lord hale in the difference and Lord Bridgman in  his manuscript note of his own argument in Collingwood v pace though differ  with Lord hale on the other point agree clear on this head indeed the yearbook  of h be contrary and be so abridge in bro Deniz but brook cite against the  yearbook doctor and student and seem with approbation he also cite the same  doctrine from doctor and student in title descent pi it be observable also  that in a Scotch appeal of count Leslie v grant before the lord in the case of  the respondent treat the doctrine as unquestionable both in respect to our law  and the law of France and Mr Charles York be one of the counsel for respondent  and as such sign the case on his side king and dly that there be no difference  between the descent to George and the descent to John his son the plaintiff  who jure representationis be the same with his father so that now the point of  the case be come to this John Ramsay and George Ramsay two brother of alien  parent be naturalize by two several act of Parliamentthe one purchase land and  die whether the land shall descend to the other and as to the point of descent  there will not be though in some other respect there may be a essential  difference between the two son of a alien bear in England and the two son of a  alien who be naturalize and so have a civil birth here and so the point of the  case will come to be the same in effect with that put by my Lord coke and  wherein he have deliver his opinion negative a alien come into England and  have issue two son one of they purchase land and die whether Bridgman oh er p  the other of they shall be his heir I say it will come to be the same point in  effect unless there be something especial in the pen of these act of  naturalize of John and George Ramsay to alter the case which I Bridgman oh  conceive with my two brother that argue last that there be not of which I  speak anon I hold that if husband and wife alien have two son naturalize or  bear in England and one of the son purchase land and die the other brother  shall not be his heir and I take the reason and the rule for it set down by my  Lord coke to be good videlicet for there never be any inheritable blood  between the parent and they and where the son by no possibility can be heir to  one of the parent the one of they shall not be heir to the other in the  discuss of this point some who have go before I and hold the contrary have lie  down some thing as preliminary or ground to the reason of their opinion which  for the true state of the case and show wherein we differ it will be necessary  to consider some thing have be observe concern descent some thing touch alien  or alienship some thing of naturalizations and some thing will be fit to be  premise concern natural and civil blood for descent whether collateral or  lineal they have be divide into two sort into immediate descent as in lineal  from father to son and in collateral from brother to brother and mediate  descent as in lineal from grandfather to grandson the father die in the life  of the grandfather where the father be medium to bring away of the descent  collateral as from the uncle to the nephew or the nephew to the uncle and it  have be infer that in immediate descent there can be no impediment but what  arise in the party themselves but in mediate descent it be agree the  disability of be a alien or attaint in he that be the medius antecessor will  disable the other though he have no such disability and therefore Patrick here  though bear in England can inherit to John his uncle nor John to he by reason  of the disability of Nicholas the medium antecessor but it be say that the  descent from brother to brother though it be a collateral descent yet it be a  immediate descent and so no impediment in another ancestor will binder a  descent between they to this I answer and it be not deny I that in propriety  of speech a descent be call mediate or immediate not in respect of the  mediateness or immediateness of the pedigree or degree of consanguinity but in  respect of the mediate or immediate descent of the estate or right and  therefore a descent from the grandfather who die in possession to the  grandchild the father be then dead or from the uncle to the nephew the brother  be then dead be in law a immediate descent as well as from brother to brother  and he be in the Bridgman oh per and not in the per and who I have not know in  my own observation that the distinction of mediate and immediate descent have  be otherwise apply in law but if as it have be explain by immediate or mediate  descent they mean only the mediateness or immediateness in respect of the line  or pedigree and so by a ancestor who they call medium to bring away intend  medium to bring away sanguinen only whether courtesy or physical scientist  then he be a immediate ancestor from who the other derive his blood immediate  and he be a mediate ancestor from who the kindred be derive mediant one and  then as to natural blood it be standing against in interposing to say that  there be a immediate descent between brother and brother in the collateral  line for the brother be of kindred to his brother by the common stock of the  father and not otherwise and as to civil blood we say that the consanguinity  between brother and brother as in the natural course so in the civil or  hereditary course it must be consider as derive mediant patre though in plead  it be not mention and that therefore the capacity or incapacity of the father  influence or affect both the son as to hereditary descent and so this division  of descent into mediate or immediate in the collateral line be no more but to  say that brother may inherit brother without have respect to the qualification  of the father which be the thing in question and be deny by we who argue for  the defendant rest ad to make good and I shall consider the proof of it anon  but in the mean time it be of itself no foundation for a superstructure the  next consideration be concern alien or alienship and the influence it have  upon person bear in England of alien parent upon denizen and person naturalize  it must be agree that the law which be the rule of descent in England be also  the Bridgman oh er p measure of the incapacity of a alien and the only rule  which must determine how far it extend in case of inheritance for with other  case we have now nothing to do it be say that there be in a alien a disability  personal or original in the alien himself or a consequential or consecutive  disability that reflect from a alien to one that must derive by or through he  as in our principal case Nicholas be a alien there be a consequential  impediment derive upon Patrick though bear in England whereby he be disable to  inherit John his uncle which disability they make parallel to the corruption  of blood which be the consequent of a attainder this require some far  explication first I say the incapacity of a alien be not proper term a  disability but a nonability and therefore have a near resemblance to a  Bridgman oh bar as be in Edward and Roger case W Jones S C cro car march and  see Godfrey v wade W Jones f h l than to a attainder of which distinction I  shall have occasion hereafter to make use next though the distinction between  disability personal and consequential or consecutive as it be term may in some  case hold yet it be not large enough for our case for upon that distinction  the disability be make to be fix and to move only from the alien but the  defect or inability or incapacity in our case look not upon the alien alone  but upon the son of the alien from who his brother claim for the right of  descent or law bloodrelationship whereby one inherit to another have a aspect  as well ad boundary a quo the person from who it descend or be derive as ad  boundary ad who the person to who it be descend or derive and therefore in the  case of hereditary blood or right of descent the law require a capacity or  ability in he who be terminus a quo from who it move as well as a capacity or  ability in the person who be terminus ad who to take a estate by hereditary  descent just as in all case of donation the donor must be a person capable to  give or communicate as well as the donee to receive or partake and the defect  of capacity to transmit in the person of the transmitter be equal a impediment  to transfer as the defect of he to who it shall be transmit be to take for  instance a Englishman have a son alien bear beyond the sea and have diverse  other son bear in England the alien son be make denizen by letter patent those  son who be here bear have a capacity to take as well in the collateral line as  lineal from any ancestor but the son who be make a denizen have a ability only  to transmit a hereditary blood in the direct line and therefore the other  brother shall not take as heir to he not in respect of any defect in  themselves but for want of power in their denizen brother to transmit a right  of descent of hereditary consanguinity to apply it to our case John earl of  Holderness whenhhe be a alien have a total inability or incapacity to retain a  estate to himself or to transmit any hereditary right either in lineal or  collateral line the Act of naturalize cure the two first impediment that be  the incapacity to retain a estate to himself and the incapacity to remit it to  his issue but as I shall endeavour to show leaves the capacity to remit a  right of descent or law civil consanquinitatis to any of the collateral line  as it be before so we that be for the defendant place Bridgman oh a impediment  as well in the person of John earl of Holderness the purchaser to transmit a  estate to his brother as in the person of George the brother who shall take by  descent and fix it not only in their alien parent and this bring I to the  three thing that be the consideration of naturalizations what retrospect  either of these act of naturalize may have and how far the word as they be  panned invest a power or right in John or George beyond what they will have  have if they have be bear in England have be speak to already and I shall have  occasion to touch it further anon but now consider what capacity the act of  naturalize give to John and George and when it leaves there in position that  blossom first and for the explication of this I must again distinguish between  alien of a English extraction and alien of a foreign extraction if a  Englishman have a alien son bear beyond sea if this son be naturalize he be  now engraft into the common stock by the Act of naturalize and communicate and  receive sap and influence from the root there be now one common Bridgman oh er  p vinculum a common ancestor from who and to who there be a resort but if a  alien not of English but foreign extraction be naturalize the case be  otherwise he can be set upon a old stock but be a new plant which communicate  to none but to its own branch the word be the same in both act that he and his  child lawful to be beget shall be his majesty liege people and natural subject  of this realm of England and I may suppose in the act of naturalize of George  Ramsey wherein some other be also naturalize some of they may have be of  English extraction but ration lying near on the person naturalize the  inference or operation of the Act be differ between the one and the other as  the poet say limus ut hic to grow hard et haec ut wax to become fluid to make  one loci fiery the beat of the fire be the same though it have a contrary  influence upon the clay and the wax to harden the one and to soften the other  it have be agree if the father and son be alien and the son be naturalize by  such a Act as we be his uncle a Englishman shall not inherit his nephew but if  the father have be bear in England or naturalize and of English extraction  then the uncle will have inherit he which prove the difference so far as I  have urge it that the same word Bridgman oh in the Act of naturalize in  respect of the several qualification of the person naturalize may have a  several operation whether they have so as to the collateral descent between  brother and brother be the matter in question and I shall endeavour to prove  that they have the word indeed of the Act of naturalize of John Ramsay be that  he shall be as if he be bear in England but that must be understand accord to  the measure of his capacity whether of English or foreign extraction but must  be understand as if he be bear in England of foreign parent for a Frenchman  though naturalize be a Frenchman still and ad fide king France and if there be  a difference between the two crown the allegiance and obligation to the French  crown precede in nature and order of time prevail over the late to the English  crown and I further observe upon the word of this Act of naturalize that it be  apparent that the intent of it be to provide only for the issue of the body of  John and not for the brother or other collateral heir forth word be that he  and his child by he thereafter to be beget not his brother or heir shall be  his majesty liege people and natural subject and shall be take as natural and  liege subject as if he and they be bear in England and though there be a  clause in it that give power to he and his child to make resort and pedigree  as heir to any of his or their ancestor lineal or collateral I say where the  person naturalize be of English extraction and will have have such ancestor if  they have be bear here it be a effectual clause but it make no ancestor where  the law make none before and the word be but as the clerk form for it be a  sufficient Act of naturalize to enact that John shall be adjudge his majesty  liege and natural subject without any other word and in the print report of  Godfrey and Dixon case Cr it be so agree and that all the other word be but ex  abundant but still the word show the intent be to provide for the lineal heir  the issue of the body of John and not the collateral and as I shall have  occasion to show anon there ought to be a strict and not a favourable  construction of act of naturalize it be clear a Act of naturalize may by  express word be with a quoad only as to enable in blood or only as to inherit  in the lineal descent and whether it be so by express word or operation of law  in respect of incapacity of the person nam Bridgman oh turalized it will make  do difference the law be the same in both case if it be object that the Act of  George naturalize reach to he and his child and that they shall have resort to  the lineal or collateral ancestor and that John be first naturalize be such a  collateral ancestor I answer that George naturalize make not John a ancestor  to he unless John be in that capacity before no more than it make their uncle  or father a ancestor or than it will make John a ancestor to he if he be a  denizen by letter patent only for if John have no capacity by virtue of this  Act of naturalize to transmit George Act of naturalize will not give he power  to take a estate by descent the last thing premise be the explication of the  term of natural and civil or hereditary blood which though they be not in the  special verdict yet be of necessary use in the case Bridgman oh er p the term  of descent or conveyance of natural blood and of civil or hereditary blood  from one to another either in the direct line or in the collateral or  transversal line be pure figurative and be to be take as figure to express one  thing by another in our acceptation by natural blood no more be mean but the  line or medium or vehiculum whereby by nature kindred be derive or communicate  from one to another so the line or medium whereby the grandson be of kindred  to his grandfather be by derive his be from the father who have his from the  grandfather who be the propositus or radix and this be the direct line or  course but suppose the grandfather have more son and those son have son now  the kindred between the grandson and his uncle or cousin germane arise by  reason of this union not in the father but in the grandfather for they must  both be in a direct line from he from who their consanguinity or kindred be  derive and so it be between two brother they be of kindred one to the other by  reason they both derive in a direct line from the father who be medium to  bring away sanguinen by who they come to be of kindred and so communicate  blood to all now civil and hereditary blood be that line or medium or vehicle  whereby consanguinity which give a capacity to inherit by law be derive or  communicate from or by one to another it have be say that the distinction of  civil and natural blood be not to be apply to a alien for the incapacity of a  alien to inherit be near diminution ligeanciae et native land not near  diminution blood which if I shall admit to be true as to a mere alien yet it  reach not our case which be of a Bridgman oh alien enable to purchase and a  descent from he if be die without issue the escheat be because to go without  heir as if a alien have a son bear here and be after make denizen and purchase  land and die without other issue the land escheat because to go without heir  that be there be no hereditary blood to be transmit to his son bear before  though there be a natural blood between they and this distinction of civil and  natural blood must by all mean be retain for else as my Lord say who last  argue the father will inherit the son and Patrick in our case will inherit to  John his uncle and certain the law blood duplicate speak of so much by Bracton  and Britton and the corruption of blood mention in our book be undeniable  proof of this distinction between civil or legal and natural blood for there  be no corruption of the natural blood but it be agree on all side that this  consanguinity by nature be the foundation of the civil or hereditary blood for  instance cousin or brother must have one common ancestor by nature to make  they inheritable one to the other and in resemblance to the derivation of the  natural blood be the derivation of the civil or legal blood there must be some  common vinculum whereby the civil blood must be derive brother can inherit to  brother if either of they want that civil blood as by reason of alienship or  attainder of one of they and thus far we all agree but herein be the  difference first on the plaintiff part it be say that this civil or legal  blood needs not to be derive high than the brother themselves that though they  can be brother but by the father yet the civil blood be superinduce upon the  natural blood and the law of the land into which by birth or naturalize of the  two brother they be translate be the fountain of their hereditariness that  common vinculum or to some degree for the third time in quo to come together  in royal power civil but second we that be for the defendant hold that as a  civil or legal blood superadd to the natural be necessary to be between  brother to make they inherit one to the other so it be necessary this civil or  legal blood must be derive from the father to make they inherit for as the  natural blood communicate by the common parent make they by nature brother so  we conceive the civil blood communicate by the same parent qualify to transmit  it must make they brother inheritable in this right of hereditary civil  consanguinity between brother we allow the law to have the part of a tutor or  governor to direct this civil or hereditary right and to keep it within rule  and bind but not the part of a parent in the formation of it Bridgman oh to  clear this we must distinguish again upon this civil and inheritable blood  there be a civil and inheritable blood which be ancestral derive or  communicate itself from or through the ancestor and there be a civil and  inheritable blood personal in the propositus or person himself without respect  to any ancestor and this Bridgman oh er p last every man have that be a  Englishman bear or be so make he be as it be a fountain of himself that this  be so be undeniable for the son of a alien or of a person attaint or a bastard  eigne who have no legal ancestor have yet this civil and inheritable blood  personal in they to transmit to their children what they purchase themselves  their child shall inherit notwithstanding any incapacity of the grandfather  and this ancestral blood be such because it have respect to the ancestor and  be not tie to a ancestral estate for if a man purchase land who have English  ancestor all those of his kindred of the ancestral blood whether by the father  of his father the mother of his father or the mother of his mother be  inheritable to he these thing be premise wherein I have be force to be the  long by follow the method of those who go before I I come to give the reason  of my opinion wherein I do not pretend to make any demonstrative proof a  priori neither have they do it of the other side as I think for have vary in  the ground we have lie as appear by what be premise there can be no  demonstrative proof from principle not agree on but our law be a science or  art which consist much of individual or particular I must use argument accord  by analogy similitude of case and adjudication the first be the enforcement of  my Lord coke reason that where two brother can by possibility inherit the  parent they shall not inherit one to the other which I prove thus there be not  one case in law that can be instance wherein two brother shall inherit one to  the other where they can by possibility inherit one of their parent for  instance in the other incapacity ancestral a man be attaint of treason or  felony and pardon he now set up upon a new stock none but his child bear after  can inherit to he you may say the blood be corrupt between he and his brother  which corruption remain as between they and I acknowledge a great difference  between the case of attainder and alien in that point a alien brother shall  not binder a descent to another brother but suppose a man that be attaint and  pardon have a brother bear after his pardon be shall not inherit if the  descent can be immediate from brother to brother Bridgman oh without respect  unto the fatherwhy shall not the brother inherit to he that be pardon No other  reason can be give but that they be not inheritable to the father he that be  pardon have a personal blood but no ancestral blood so two son of a person  attaint which be Hobbis case of which I shall speak anon if they be  inheritable one unto the other it be either in respect of the possibility  which they have to inherit one another by the father which be within my Lord  coke reason or the possibility which they still have to inherit one another by  the mother where there be still soundness blood and the line of communication  continue for either of they may inherit one the other in the mother line and  so that also be within my Lord coke case I leave the case of disability and  come to the case of nonability a bastard eigne enter after the death of the  father he now be heir to all purpose save only as to the mulier he have a son  his son shall inherit upon the account of the personal blood derive from his  father this son shall be oblige by the warranty ancestral and shall be vouch  as heir and so to all respect as to stranger look upon as heir to the  grandfather yet if be die without issue the mulier shall not inherit it shall  escheat what be the reason but that there be no inheritable blood between the  mulier and the bastard eigne the bastard eigne be set up upon a stock of his  own he be the commencement of his family and estate as the phrase be use e and  can transmit any inheritable blood but in a direct line I will instance near  yet in the case of a alien a alien be make denizen by letter patent the king  grant that he and his heir shall be liege and shall be repute and take to all  purpose as englishmen bear the child which the alien denizen shall have shall  inherit because be make a denizen he have a personal blood which may be  transmit in a direct line to his child but his brother though a Englishman  bear and of English parent which be not in our principal case shall not  inherit to he what reason can be give for it but what be give in my Lord coke  the alien denizen can not inherit the father which be common vinculum between  he and his brother and therefore be shall not inherit to his brother nor his  brother to he you may make the same observation in that case for the other  brother heirship as in Bridgman oh er p this that there be a immediate descent  from brother to brotherthat in plead be need not mention the father yet the  law be clear his brother shall not be his heir Bridgman oh and true by all the  observation I can make upon all the instance that can be give it be not only  universal true that one can be heir to the other where both can not by  possibility inherit the common parent as my Lord coke wary express it but it  be also true than no man who be as I say before commencer of his family or  first of his family in law can have a heir but in a direct line my next reason  or rather the enforcement of this be ground upon the distinction before make  of legal and civil blood into ancestral and personal every man who be a lawful  subject of England whether factus or born have a personal blood which  whatsoever impediment be in the ancestor or kindred he may derive to his child  but to no other but to those who derive their blood a mask from his person but  if he be of lawful English ancestor and bear here or naturalize beside the  blood derive from himself as the fountain he have a ancestral blood transmit  from his ancestor by virtue whereof they who be conjoin to he in the same  common ancestor though they proceed not a mask from his person may inherit to  he and be to they this ancestral blood must have a relish of the ancestor and  as in the natural blood the consanguinity in the collateral line have its rise  from the common ancestor from who both derive in a direct linea brother be a  brother because they have one and the same natural father so the law imitate  naturea brother can be a legal heir to a brother but as be derive his blood or  heirship through one and the same legal father and therefore in case of  descent in the collateral line the law require this ancestral blood and look  upon and respect the common ancestor Littleton say sect that if a purchaser  die without issue they of his blood on the part of his father shall inherit as  heir to he and in default thereof they of his blood on the part of his mother  and if be have none such it shall escheat so that law look upon the collateral  heir to the purchaser with reference to his father or mother so again say  Littleton sect no collateral descent can be of feesimple land but to such as  be next of kin and of the whole blood how remote soever to he that be last  seize so that the brother of the second venture shall not inherit it be  impossible to distinguish the whole blood from the half blood but by take  notice of the derivation of the legal blood from the parent and that be look  into it appear there be no ancestral blood descend from the parent that be the  cause his brother can not inherit he and so there be a defect in the ancestral  blood and so this want of legal ancestral blood be Bridgman oh the reason of  those other instance I give before that a person attaint and pardoned a  bastard eigne or denizen by patent can be inherit by their brother they have  no ancestral legal blood and they can transmit none and so in our case sir  John Ramsey have no ancestral inheritable blood and accord to the rule no one  that quod non to have but this have be large insist on before and I pass it  over my brother brown say every purchaser of land as to that land be become  the common ancestor and all the line of descent as to it be to be make from he  I agree to it but where he add that they never go higher  I utter deny it for  then the uncle or great uncle of the father side and for default of issue of  the father side the uncle or great uncle of the mother side and other of the  take hold paramount as it be call e will be exclude from inherit who not only  go high in the transversal line but be force to go high in the direct line in  make themselves of kindred and so make out their title my three reason be  thisThe operative and essential word of the Act of naturalize of John which do  naturalize he and give he power to transmit a estate by hereditary descent be  the same word which be in letter patent of denization videlicet that he and  his child or heir shall be the king natural and liege subject of this realm  and as free to all intent and purpose as if they have be bear in England but  the word in letter patent of denization give power only to inherit in the  direct line and not in the brother to inherit Bagots case e pl in Bagots case  in the yearbook e the letter patent be set forth at length e   ergo they shall  give no further power Bridgman oh er p in the Act of Naturalization I desire  to be observe I do not deny but that there be more power give by the Act of  naturalize than there be by the letter patent of denization I shall show how  by and by but I say there be no more power give by those word in the Act of  naturalize for John to be inherit in the collateral line than there be by  letter patent of denization for what reason can there be assign that the  propriety of speech shall extend those word that he and his child or heir  shall be the king liege as bear in England shall extend only to give a  capacity to his child in the letter patent of denization and yet the same word  go further in the Act of naturalize if you say the Act of naturalize may do  more and extend it to the brother of the person naturalize who be bear in  England I deny it not but it may do so and so it may do to the uncle if there  be word to that purpose and that the meaning Bridgman oh of the Act appear  that it shall go so far you yourselves deny it extend to give the uncle a  capacity to inherit to the alien naturalize and I deny it extend to give it to  the brother and if the meaning of the Act be look after it incline to I for it  provide only for a man and his child in the direct line there be no ground of  law as to conceive that the word shall not have the same construction in this  Act of naturalize as they have in letter patent of denization there be a great  deal of difference between act of parliament where the king answer be Le king  Le voet which concern all in general and soit fait come ill be desire which  concern particular person these be find upon the desire and suggestion of the  party and the same acceptation or construction as the word bear in the  suggestion the same the whole Act shall have it be not so proper a Act of  parliament as a charter or grant of the king and so express in the Act I h c  indeed the power of parliament will give they a strong relation and work in a  estoppel or conclusion against all person so far as the word go or the clear  intention appear but the word will carry no other signification or sense in  such a charter by parliament than they will in a charter out of parliament for  instance if a man be attaint of treason or felony by this his blood be corrupt  if the king pardon the felony by letter patent yet the blood be corrupt if the  king pardon by Act of oblivion or general pardon yet still the blood be  corrupt for the word carry as much in the letter patent as in the pardon by  parliament and therefore there be in all pardon by parliament not only a  pardon but a clause of restitution in blood without which it will make no far  than a charter of pardon but it be true if the king pardon the attainder and  also pardon the corruption of blood and grant restitution in blood by letter  patent the last clause be void in the letter patent because it concern other  in point of escheat and in point of descent but in a Act of parliament it be  good because those other who be concern in the Act do in law give their  consent but still the word be of the same interpretation in the king letter  patent as in the charter by parliament but there want power to make they  effectual accord to the word in one case which want not in the other in this  Act of naturalize indeed there be a clause that sir John and his child may  have any land and make his and their resort in pedigree as heir to his or any  of their ancestor lineal or collateral as free as any other person bear in  England Bridgman oh this clause give he and his child liberty to inherit any  ancestor lineal or collateral and so to inherit to a brother or uncle and I  will not take advantage of it that it give he and his child liberty to inherit  they and not for they to inherit he for I think that it will follow if the  bridge be make for he to go over to his uncle his uncle may by the same bridge  go to he the rule hold in all case of collaterals where one may inherit to I I  may inherit to he in the direct line in be otherwise upon another rulethat the  inheritance shall not ascend but that a collateral kinsman shall inherit to he  be not by the express word or mention of the Act but by the consequence and  operation of the law from the word but this clause as I say before will make  no ancestor to sir John where there will have be none have be be bear  inEngland if there be two brother one denized by letter patent the other  naturalize this clause in the Act of naturalize clear give not power to he  that be denized to inherit to he that be naturalize nor e turning to he who be  naturalize to inherit to the brother who be denized for he that be denized by  letter patent have no hereditary blood or capacity either to take Bridgman oh  er p by descent or to transmit a right of descent in the collateral line as be  agree on all hand and therefore sir John be a alien of foreign extraction can  make no use of this clause but have be be of a English extraction though a  alien accord to the difference lie down before this clause will have be of use  for then there be a common ancestor to who they may inherit not only the  brother but the uncle and all the rest in the collateral line may have inherit  unto he and he unto they yet such a clause in letter patent of denization that  he shall make his resort to any ancestor lineal or collateral will have be  void not by reason of any other construction to be make of the word in the  letter patent than be make in the Act of naturalize but for want of power to  make they effectual but in this case of the naturalize of John the word that  be operative be the same both in the letter patent of denization and the Act  of Naturalization  That he and his child or heir shall be the king natural and  liege subject and as free to all purpose as if they have be bear in England  and therefore shall have the same interpretation in the one place as in the  other to extend only to child or lineal heir and not to brother or collateral  heir and if John Act of naturalize make he no far a ancestor than in re  Bridgman oh speck to those who lineal descend from he then as I say before he  can be a ancestor to George he have no power to transmit a estate by descent  to George nor George by this Act of naturalize power to take a estate by  descent from he no more than if John have be only make a denizen my next  reason why these two alien brother naturalize shall not inherit one to the  other be the consideration of the personsthat they be alien bear and that of a  foreign extraction their parent be also alien bear and that therefore all  privilege and advantage whereby they may take or inherit land ought to be take  strict and not extend by inference or equity hale C B to the contrary urge  that the law of England be very gentle in construe disability Ventris Atkins b  say that the Act be choice father royal power de to some place in subditum  suum jure adoption of child therefore these act of grace must be so construe  as may effect such intent keb turner b say that the Act be to be take  favourable as that it do restore man to the law of nature keb m and  consequently there be no express word in the say Act of naturalize to direct  the descent in the collateral line or otherwise than to the child it shall not  be extend to the brother and so likewise where two son be bear of alien parent  that rule of descent shall not be enlarge to extend far than it will in case  two son be denizen by letter patent this I confess be a more general reason  than the former but yet my brother who have argue for the plaintiff have  maintain the contrary and make use of it as a argument that naturalizations  and adoptions be favour which be to be amplify and that the law have rather  contract than enlarge the incapacity of a alien which say they be not to be  contract far than the parallel case of disability by attainder will warrant  touch the case of attainder I shall have occasion to speak anon but that the  privilege of alien bear as touch land be to draw tight law I prove first by  the politic ground see appendix n n why a alien be not capable of inheritance  in England they be give in calvin case the secret of the realm may be thereby  discover ndly the revenue of the realm the sinew of war shall be take and  enjoy by stranger dly it tend to the destruction of the realm by admit  stranger to fortify in the heart of the kingdom then consider the person here  alien of a alien extraction I shall not instance it in those bear in Scotland  Bridgman oh because as I shall show present they of Scotland be little concern  in the consequence of the case but in two bear in France or the low country  who parent be of foreign extraction one of those be naturalize in England  which be our case he be still a Frenchman or Dutchman if by be naturalize as  person profess at this day pretend to be they be world corpse dead to their  country and change their name and family with enter into their Bridgman oh er  p religion or as Tacitus speak of the proselyte of the Jews Nec any prius wet  how to draw out native land parent book c if he have relinquish his own  country and relation there upon his naturalize it be something but he still  owe obedience to the king of France or the state before this to the king of  England and if a difference fall out between the two nation they be  incompatible he can be ad fide skin and king but so as the one obligation be  inferior to the other and therefore such a person be not to be look upon  entire as a Englishman if it be object that he that be naturalize be to be  repute as bear in England I answer Yet be that be bear in England of alien  extraction be within the same politic ground not to have his privilege of  favour extended his interest dependency relation correspondence be foreign the  stat I h c provide that any person make or hereafter to be make denizen by  letter patent or act of parliament shall pay for his merchandise like custom  and subsidy as be ought or shall pay after that he be make denizen h c be to  the same purpose a man be afterward naturalize and law m earlier times  contrary abrogate yet it have be adjudge such a one shall pay double the  ancient custom as it be cite at the bar pasch car Grett and wood case next  consider the nature of the privilege which a alien naturalize have and it be  not fit to be enlarge among the Roman they have degree in naturalize law  domiciliijus civitatisjus tribusjus honor but he that be naturalize among we  be Self facto capable of all these at once and it may be a question whether he  be not so if he be naturalize in Scotland or Ireland therefore it be not fit  to be extend our law relate to alien here ought to have some analogy with the  law of other nation the use in other nation be that they who obtain their  naturalize by charter do so for such time and with such caution as may be  grant unto they and take it not by the general law of that nation whereto they  be unite the speech of sir Edwyn Sandys in the case of the post born more be  Rep and state trial in the case of bishop burnet charge with high treason  there be some remark on the force of naturalize in foreign country state trial  p howel edit oh as to we especial our Bridgman oh neigbbours the French if a  Englishman be naturalize there yet none of big collateral line shall  inherit the same reason hold here in the Act for the last subsidy car every  person bear in England shall pay for every subsidy S d the pound and every  alien and stranger bear out of the king obedience as well denizen as other S d  and every alien and stranger bear out of the king dominion be denizen or not  denizen not be contributory to the rate aforesaid shall pay d every poll which  word denizen or not denizen must extend to those who be naturalize or else  they pay nothing at all for they be not bear in England and the word denizen  in the Act must be understand of all person whatsoever bear out of the king  dominion whether naturalize or not for the word denizen in its proper  signification extend to such as appear by the statute I h c which I before  cite and our book name three sort of denization by act of parliament by patent  or by conquest the word of naturalize be but late bring in the very same  distinction between those bear in England and those bear out of the king  dominion whether denizen or not denizen be make in the very same word in the  Act of parliament throw in which parliament George here be naturalize and in  other parliament precede and subsequent and many other act of parliament there  be some in matter relate to trade and employment which have the same  distinction so that it be apparent that our statute law look with a strict eye  upon alien though naturalize than those that be bear here and so do the  commonlaw too as I say before   f or though a man be make a denizen by patent  to he and his heir which be the common way of denization and he be thereby  make tanquam ligeus et indigena yet the law will not extend the word to their  full propriety but he shall have no heir to inherit in the collateral line  though bear in England and of a capacity to take a inheritance two instance  have be give that the law concern alien shall be take in favour of they  Bridgman oh er p the first the case of the post born in Scotland adjudge in  favour of alien to which I answer there be a great difference between the  endenization or grant the benefit of English birthright by wholesale there  they shall have better Bridgman oh measure that whole nation be to that  purpose make part of this and each nation mutual enjoy the freedom of the  other and therefore ought to be take favourable and a grant of such privilege  by retail as it be to particular person such privilege be by all law strict  take dly nothing of equity be in that case but the law be the same before that  those who be bear under the king obedience in one kingdom shall be his subject  in all his dominion and be plain by e prerog king in the case of the Norman  and the common practice concern those part of France which belong to the king  of England the second instance upon e c de born ultra mare that it declare the  issue bear beyond sea of a Englishman upon a englishwoman shall be denizen and  yet construction have be make that though a English merchant marry a foreigner  and have issue by her beyond sea that issue be a natural bear subject to which  I answer 1st this case be concern those who ancestor be of English extraction  who naturalize have some resemblance of a restitution because he be graft as I  say before into a old legal stock his dependency interest relation be English  our case of alien of a foreign extraction but dly in the particular the  statute e extend not to the case of Bacon and Stephenson but by the very  commonlaw if a merchant have a son by a feme alien the issue be a denizen as  appear by the statute e c so that by the commonlaw a merchant may go beyond  the sea without licence for the business of traffic and merchandise and a  merchant who be beyond the sea upon traffic and merchandise be suppose to have  mind see revertor  and his case it be pro good public to go beyond the sea for  traffic and commerce be like the case of a ambassador who be beyond sea only  on his master errand his child be natural bear subject king v Eaton Litt Rep  be on this point and it seem to be the case allude to in the text as  Stephensons Littleton report be not print till p but I hold the law to be that  if a Englishman not licence or qualify by law as a merchant go beyond sea to  liver there not for the cause of religion and there marry a feme alien and  have issue that his issue be a alien see the statute Ann c Ann c g c Q the  common practice to procure letter patent of denization or act of naturalize in  such case prove it and so do all those authority in Bridgman oh law which put  and admit the case of a englishwoman have a alien son beyond sea and the  opinion of Hussey see do d Duroure v Jones t r where the position of Mr  justice Ashurst that the circumstance of a person be bear out of the king  allegiance make he prima fancy a alien seem too broad see Hussey opinion in  the text and the petition to which e c refer note that there be then no fix  law on this point cotton record r r be not the contrary son opinion to be and  celui and e nee per dela et sonpere et mere fueront langlois and lour issue  enheritera per Le come lie mes lstatut fait clear c for he put his case where  the father and mother be English and not where the father only be English that  the child bear beyond sea shall inherit by the commonlaw and if the law shall  be otherwise that the son of a Englishman or scotchman bear beyond sea of a  alien mother shall be as those bear in England then the son of those son shall  be denizen and born to be born c and so the king have more subject who shall  have the privilege of englishmen than be fit or safe for the realm so that I  take it the stat of e be take strict accord to the letter nay where the father  and mother be both English though I will not now deliver my positive opinion  in the point not be now before we yet I may say there be more authority for it  than against it if the parent go over without licence in law or licence in  fact or against a prohibition ne exeat royal power or return not after a privy  seal that the issue bear after beyond sea shall not inherit so be the  judgement of the case between hide and hill Elizabeth b r Cr and I have the  same under the hand of a reverend judge in queen Elizabeth time without name  of the person and yet the stat e be general where the child be bear of a  Englishman upon Bridgman oh er p a englishwoman and do not make any difference  where the parent have any licence to stay or not so that upon all these reason  I do conceive that the law and statute make in the behalf of alien especial of  foreign extraction ought to be take strict and consequent this Act of  naturalize of John Ramsay shall not be extend beyond the word of it to direct  the descent to any other than his child some other reason there be whereupon I  shall enforce my opinion in this great point that a brother naturalize shall  not inherit his brother naturalize but they arise upon the answer to the  objection make on the plaintiff part which therefore be the next thing to be  take into consideration Bridgman oh the argument on the part of the plaintiff  be draw from the reason of law and from authority from the reason of law the  great objection which be make from the reason of law be this that one brother  may claim as heir to his brother without any mention of the father and  therefore the disability or incapacity of the father shall not binder he from  inherit his brother this have be enforce several way Ventris and see Watkins  on descent note a S as first and principal that which I mention before that  the descent from brother to brother though it be a collateral descent be a  immediate descent between the brother and no impediment in the ancestor will  hinder the descent between they and this be prove saint by the pleading it be  enough to make the descent ut frati et heir without go any further dly from  the computation of degrees according to the law ofEngland brother and brother  make but one degree dly that the halfblood do not Mr Hargrave suggest that the  not be improper insert here t impede the descent between brother which it do  not to the uncle and other descent collateral which argue that the descent  between brother be immediate if at all and this be far enforce that the  brother by the second venture be heir to the father and yet shall not inherit  his brother and therefore in a descent between they the law respect only their  immediate relation between they as brother and not their relation in respect  of their father touch this enforcement of the objection by make the descent  from brother to brother to be a immediate descent I must touch what I have  before say that be to say the descent of the and from brother to brother be  not mean here for so the descent to the uncle or any other to who the land  next and immediate come after the death of the brother will be a immediate  descent because it be enough to say that one brother may resort in his  pedigree to the other without mention the father and demand as brother and  heir or plead a descent as brother and heir without name the father in his  plead whereas in all other case of plead the descent except it be from father  to sot he set forth he be cousin and heir and show comment cousin and so name  the father or other person who be common vinculum or common stock if we admit  this to be call in this sense a immediate descent Bridgman oh yet it must be  take only as a immediate descent in the collateral line and have no  resemblance to a immediate descent in the direct line for though as the case  be put the grandfather be attaint or a alien yet the father bear in England  have a personal blood of his own which he derive to his son who shall  therefore inherit to he without respect to the incapacity of the grandfather  yet as to descent from brother to brother the case be otherwise the blood be  not derive but communicate which communication can be otherwise than mediant  patre but to give a further answer to it all this touch the immediateness of  the descent amount to no more than what be say in other term that one brother  in plead may claim as heir to his brother without mention of his father which  I agree but the inference from thence that therefore the defect or incapacity  of the father shall not binder one brother from inherit the other brother be  that which we on the defendant part do deny for first this reason be ground  upon the formality of plead for to set forth a descent brother et heir be  short and certain to a common intent which be all the law require but this  conclude not that therefore he be heir for I may allege what I Bridgman oh er  p can to falsify his be heir though he be his brother as bastardy or that all  elder brother be attaint and pardon or attaint and survive the father or that  his brother be of the halfblood or the like or if it be not plead yet if on a  verdict the matter appear to the court as in our principal case it do the  court be to adjudge upon the whole record and shall adjudge he heir if he be  so and not heir if he be not so notwithstanding be plead a descent ut brother  et heir and to infer because he plead that he be frater et haeres that  therefore he be frater et haeres be clear a inconsequence again this manner of  plead brother et heir without go further be not appropriate to the brother  upon any substantial difference from the plead ut kinsman et heir but from the  barrenness of the word our law tie itself strict to the word of the register  we have no word of descent whether in a direct or collateral line but thread  frater kinsman if we can have adopt the word fratruus as well as frater he may  have plead a descent brother et heir and then by the force of this objection  the uncle of a alien son may inherit he but the truth be we have no such legal  word if my uncle be my heir it be plead ut kinsman et heir as well as where a  remote kinsman be my heir nay if ray grandchild be my heir be Bridgman oh  shall plead it ut kinsman et heir for the word grandson be of too large extent  and be not in our law Latin in the register and yet my grandchild be as near I  in the direct line as my brother in the transversal line there be certainty  enough prima fancy when I say brother et heir the court know how near of kin I  be I be brother but one way but I may be cousin many way and therefore that it  may appear how I be heir I must in all these case when I plead as cousin show  comment cousin to ascertain the kindred to the court and the party to which he  may reply if he deny my kindred and yet if I fail in show comment cousin it be  but matter of form and aid upon a general demurrer as be adjudge in herd and  Baservills case Hobart mich James rot which show that this observation from  the not mention the father in plead a descent from the brother arise from the  form of plead and not the substance of the matter if the uncle make title to  the nephew land he set forth that he be frater father if he make title to the  brother land then he set forth that he be frater what be that but in the  periphrasis thread father who be a alien in the one case the kindred to the  father be express and in the other it be necessary imply and here express find  by verdict when I do name the father I name he only as father his incapacity  by alienship appear not on my show if it after appear by the other side or on  verdict that he be a alien whether that be a impediment or not a impediment to  a descent will rest upon the judgement of law but arise not upon my name he in  clear case Com a sir Edward clear the uncle make title to his nephew clear  Haddon as his cousin and heir videlicet son and heir of sir John clear father  of Margaret mother of clear Haddon and yet he may have plead as brother and  heir of Margaret mother of clear Haddon and in like manner young there make  title as son and heir of John young father of Dorothy mother of Walter Haddon  father of clear and certain that plead be good to pass through the brother to  the father the common stock by the same reason if John Ramsay the lessor here  make his title in plead as he may as soil and heir of George son of Robert  father of sir John Ramsay the name of Robert because he be a alien will it  have prejudice he in make his descent if it will by the same reason the find  it here by the special verdict will prejudice he it show that if it will not  then the impediment to descent ancestral be not by the name or not name the  father it show that there be no necessity to plead that George be frater et  haeres but thread roberti father John Bridgman oh Ramsay and so as to the  manner of plead it be but formality three the rule itself out of which the  argument from plead be enforce hold not general of either side either that I  shall not be bar by reason of the act or defect of a ancestor who I need not  name or that I shall be bar by the act or defect of all ancestor who I must  name in my pedigree or plead this have be speak to at large and case instance  on both kind by my brother who argue on my side I wave they not but I shall  enforce they another way trick ad man by their ground the name the father  alien in derive the pedigree between Bridgman oh er p the nephew and uncle  will not binder a descent and I say by the same reason the not name the father  alien in the pedigree between brother and brother will not advantage the  descent for they have hold that it be diminution ligeantiae not any disability  or diminution blood courtesy that incapacitate a alien and upon that ground I  infer that in all case of incapacity ancestral when I make my resort only to  he for my pedigree not title my name he do not hinder I as to a feesimple  estate for the case of a estate tail be otherwise by virtue of the stat h that  be the ground of Edward and Roger case the fine levy by the uncle of a idiot  binder not the son of the uncle to inherit the idiot it be say that it be a  bar not a disability and I agree the difference for a disability proper  suppose a crime but this bar by fine no other than a inability or incapacity  to take put upon he by his own act the uncle shall entitle himself as heir to  the nephew though the father who have no capacity to take by the commonlaw or  though another brother who have enter into religion and so be bar by his own  act and so the uncle of the mother may bring his appeal of the death of the  nephew and make himself heir through the mother who be bar by the statute I do  not remember that any case can be instance where the incapacity of he through  who I derive my pedigree only shall hurt I if I be hot hinder per diminution  satnguinis haereditarii so that upon this ground Patrick may derive his  pedigree through her father Nicholas to John the uncle and consequent will  have a betterright than George or his issue whereas on the ground which we  have lie Patrick and his uncle John can derive a hereditary blood from one  common ancestor for Robert the father to one and grandfather to the other the  common vinculum be a alien and therefore they can not inherit the one the  other and whereas it be say that the natural blood derive from the pa Bridgman  oh rent make John and George to be brother but it be the law which superinduce  and clothes that natural blood with a hereditary quality whereby they may  inherit one the other although this be gratis dictum and may be as easy deny  as grant yet if true there be the same reason that the law shall also cloth  the same natural blood which make John and Patrick uncle and nephew with the  like hereditary quality and then also the defendantwould have a better title  than the plaintiff I say the mention of the alien father in the pedigree from  the son to the uncle upon the ground lie down by my brother who argue for the  plaintiff be no reason from hinder the uncle from inherit to the nephew and  acquire ration the not mention the alien father in the pedigree between the  brother be no reason why one brother shall inherit to the other if Patrick  have purchase land the name Nicholas his father in the pedigree be not the  cause why John the earl can not inherit to Patrick and acquire ration the not  name Robert the father of John in the pedigree between he and his brother be  not a reason why George may inherit John the consequence hold upon the rule  and reason of parallel but I enforce it by a strong argument in our principal  case if John the uncle may inherit to Patrick the nephew then Patrick may also  inherit to John the uncle and so the lessor of the plaintiff come from a young  brother will have no title for in collateral descent the rule most certain  hold if the bridge be make up for I to pass over and to inherit my uncle it be  also make up for my uncle to pass over and to inherit I that be agree by all  that argue in Godfrey and Dixon case that where the word of the  naturalizations of Daniel be that be shall be enable to enjoy land to any  ancestor lineal or collateral that though it be not express in the Act it  necessary follow that a collateral ancestor may be heir to he and it be a  chief cause of the judgement that be give in that case as in case of a act of  restitution of a person attaint the word be that he shall be restore in blood  and inheritable to his ancestor but no word in the Act that his ancestor or  cousin shall be inheritable to he and yet they be inheritable to he as be  agree in that case and be also prove by courtney case c pl cor so that the  consequence be clear that if John may be heir to Patrick Patrick may be heir  to he I shall now endeavour to prove the antecedent or proposition that the  alienship of Nicholas the father of Patrick be do reason to hinder John from  inherit to Patrick by the ground lie down by my brother Bridgman oh and herein  I must make use of the distinction I take before between a Bridgman oh er p  disability which proper arise by reason of crime and a nonability or  incapacity my brother of the other side have say that the reason why a alien  shall not inherit or be inherit be from a disability in he but it be a want of  ability no defect in his blood as they say but a incapacity by law in respect  of the place of his birth this be their ground hereupon I assume that no case  can be put where I claim a estate in feesimple from a ancestor lineal or  collateral that the incapacity or inability of another ancestor through who I  derive my pedigree only shall binder I unless it be near diminution blood  haereditarii whereby he shall become my legal ancestor I say feesimple estate  for the case of a estate tail be otherwise upon the word of the stat of h as  it appear in the case of Stobble and Bradstocke Mackwilliams case and  Wingfield and Duncombe case and I say where I derive my pedigree only for  where I derive my title it be otherwise that be the ground of Edward and Roger  case hob Cr Tr car which in effect be but this the uncle of a idiot levy a  fine and dies the idiot die the son of the uncle shall inherit though he must  make his pedigree through his father to come to the idiot the difference be  make that this be not a disability but a bar and I agree the difference for a  disability as I say before proper suppose a crime but a bar be but a inability  or incapacity put upon he to take by his own act his fine put a nonability  upon himself to take and upon his son too if he have survive the idiot for  then he make his title through heir and not his pedigree only I shall  therefore put case of notability in the ancestor of all hand whether by the  commonlaw or by the act of the party or by the statute law and yet in none of  these the resort for the pedigree shall binder the party Littleton case The  son purchase land and die without issue in the life of his father the uncle  shall inherit he and yet must make his pedigree through his father who  incapacity and nonability by law to take from his son hinder he but do not  binder the uncle but if the uncle die the father shall not take benefit of a  warranty make to the son though the uncle may for the uncle make only the  pedigree through the father but the father must make his title to the warranty  from the soil which the law allow not so in our case if there can be a  collateral descent from the earl of Holderness the obstacle by the father will  not binder the uncle because it be a impediment only in the pedigree unless  you suppose a defect in the blood which make he no Bridgman oh legal ancestor  or a disability by the alienship which my brother will not have so if the heir  apparent of the purchaser have enter into religion and be possess by his own  act there be a incapacity or nonability in he to take and yet the uncle or  grandchild or other cousin may make resort in pedigree through he a woman have  issue a son who be murder not have any heir of the part of the father at the  commonlaw a woman may have have a appeal of the death of any of her ancestor  by m Ch cap nullus to take in hand or imprisonetur near oppellam thigh de  death of one another how man Himself so that she can bring the appeal e by the  opinion of four judge against three the uncle of the part of the mother shall  have the appeal though he must in his pedigree make mention of the mother  notwithstanding the book of h but agreeable to the judgement of all the judge  e cor Fitzherbert and Stamford take the authority of e to be accordant and I  hold it to be agreeable both to law and reason and my Lord coke be express in  it nay even in the case of disability for a crime where it extend not to  corruption of blood which be a distinct penalty inflict by law resort as to  the pedigree may be make through a ancestor lineal disable as William delawar  be disable during his life to the barony yet his son may make his pedigree  through he so then upon my brother ground there be no defect of hereditary  blood in the alien father and no other impediment without a disability by  reason of crime be of force to hinder the resort as to the pedigree will not  hinder John the uncle to inherit to Patrick or Patrick to inherit John his  uncle for Nicholas be as to legal blood tanquam mask non to step out so that  first the set forth that he be frater et haeres without mention the father  make not the brother heir if he be not so in truth ndly it be ground upon the  form of plead not the substance of the matter dly it be no rule that hold  either that the name a ancestor who be under a Bridgman oh er p incapacity  shall bar a man from resort through he in pedigree to another ancestor or that  he shall not be bar where he needs not name such a ancestor for if the middle  brother be attaint and survive the old though he die before entry the young  brother shall be bar and yet need not name he in his pedigree Bridgman oh and  thly by the same reason that the brother who do not mention the father in his  pedigree may inherit his brother the uncle who be not hinder to name he in the  pedigree may inherit the nephew and the nephew inherit the uncle and exclude  George the young brother and therefore whereas it be say that the natural  blood derive from the parent make John and George to be brother but it be the  law that superinduce and clothes that natural blood with a hereditary quality  whereby they may inherit one the other although this be gratis dictum and may  be as easy deny as grant yet if true there be the same reason that the law  shall also cloth the same natural blood which make John and Patrick uncle and  nephew with the like hereditary quality and then also the defendant will have  a better title than the plaintiff I have do with this part of the objection  only I will not be misunderstand that I set up a title to Patrick the son of  Nicholas I urge it only as a consequent of the other opinion that Patrick will  inherit to John his uncle whereas on the ground which we have laid it be clear  Patrick and his uncle John can derive a hereditary blood from one common  ancestor or as my Lord coke reason be can not by any possibility inherit any  common ancestor for Robert the father to the one and grandfather to the other  that be the common vinculum be a alien and therefore they can inherit one the  other I come now to the other enforcement of the objection that brother and  brother accord to the law of England make but one degree this seem to be the  foundation of the opinion of Lord hale who reject the argument on the word of  the statute rely on by some of the other judge Ventris Keble c wonder from  whence it be infer that the descent between they be immediate if I shall agree  that this be a immediate descent in the collateral line in such sense as it be  before explain under pardon it do not at all hurt my conclusion but yet I  conceive neither the premise nor the inference be warrantable by our law it be  say that accord to the canon law frater et sister are in primo step and  therefore prohibit marriage between kindred within the four degree take  brother and sister to be the first degree of the four and it be urge that the  law of England in the computation of the degree of consanguinity agree with  the canon law the manuscript be common by a obvious mistake but the passage be  so print also in the judgement of hale C B in Ventris ten I answer that the  commonlaw in the computation of degree Bridgman oh follow the canon law  because right of marriage be proper of ecclesiastical cognizance which be  guide by the canon law but in other case it do not account the degree accord  to the canon law the doctor of the Commons who be doctor a bag of hide law  give the reason why the canonist reckon their degree not by one and by one as  the civil law do but by two and by two because the canon law do loan daughter  of the Sun wedlock wherein two person be at once concern but the civil law be  touch succession to estate wherein but one at once and successive be concern  and that be our present case the truth is where I fix the point of my compass  to make a circle with the other point there be my centre so do our commonlaw  where it make its propositus if we will know in what degree of kindred two do  stand accord to the civil law we begin our reckon from one by ascend to the  person from who both be branch and then by descend to the other to who we do  count and it will appear in what degree they be for example in brother son  take one of they and ascend to his father there be one degree from the father  to the grandfather that be the second degree then descend from the grandfather  to his son that be the three degree then from his son to his son that be the  four degree just as it be in the case of challenge but if we will know in what  degree the son of two brother stand by the canon law we begin ever from the  common stock we begin from the grandfather and descend to one son that be one  degree then descend to his son Bridgman oh er p that be another degree then  descend again from the grandfather to his other son that be one degree then  descend to his son that be another degree so in what degree either of they be  distant from the common stock in the same degree they be distant between  themselves thus far my Lord Coke from who I infer that in reckon upward as the  civilian through the common stock or downward as the canonist from the common  stock both come to one though they differ in word and the immediateness of the  descent be no more prove from the one than the other and a party from who it  reckon thence it count the degree upon a gift in frank marriage it reckon the  first degree from the donor to the donee whether the wife be sister or  daughter or cousin in writ of entry it reckon the degree with respect to the  seize not the kindred in challenge it set forth the whole kindred as in Vernon  and manner case Com that zouch the sheriff be by the common ancestor roe  kinsman to the tenant videlicet thread george zouch c and run on to Elizabeth  daughter of George Lord Bridgman oh Roos father of William Lord Roos father of  Thomas Lord Roos c and it be not sufficient to say sister of William Lord Roos  father of Thomas as the plaintiff here will have it and the degree of  consanguinity in Bracton and the tree of consanguinity which he mention be  accord to the civil law as be express say Com a and not accord to the canon  law and so in show comment cousin to a collateral ancestor we reckon accord to  the civil law upward to the common stock and so down again as appear by clear  case Com but if I shall agree that the computation of degree be accord to the  canon law which neither my Lord coke nor Littleton do affirm general but only  in respect of the computation of degree in marriage per Le saint church yet as  I conceive the plaintiff gain nothing by it my Lord coke say whithersoever of  these way we reckon respect be have to the father who be the radix or common  stock for the objection see Ventris in hale judgement that that the halfblood  impede the descent between brother which it do not to the uncle and other  descent collateral and that therefore the descent between brother be immediate  it be infer first for that the uncle have no more of the blood of the mother  than the brother by the second venture second that the brother of the second  venture have the immediate blood of the father which the uncle have not but  only as they meet in the grandfather three that if in the line between brother  and brother the law take notice of the father as the medium thereof the  brother by the second venture shall rather succeed the other brothel because  he be heir to the father and therefore in the descent between brother the law  respect only the immediate relation of the brother though the foundation of  the consanguinity be their father and mother I do not through understand the  necessity of the consequence that the descent be immediate because the brother  of the halfblood shall not inherit and therefore it seem to I to be a  sufficient answer to say that the uncle of the halfblood Lord hale deny this z  shall no more inherit the nephew than the brother of the halfblood but I  further answer that in descent from brother to brother the law respect not  only the father but the mother also of he from who the descent be and bar  kindred be in some case inheritable so that the argument that the son of the  second venture be heir to the fatherland therefore shall in Bridgman oh herit  rather than the uncle if the law take notice of the father hold not for the  law indeed take notice of the father but not of he alone but of the mother  also but to clear this far Littleton text be which I cite before nun shall  have land of feesimple by descent as heir to any man unless he be his heir of  the whole blood so that the law require entirety or integrity of blood this  entirety of bloodwhat be it but to have the same common parent both father and  mother the father and the mother be the common vinculum or copulan and if they  have not the same father and the same mother the link be fasten but at one end  now this whole blood or halfblood as have be former urge can be say to be in  the brother in respect of themselves but in respect of their parents for what  make the halfblood but that they have several parent on one side or the whole  blood but that they have the same parent on both side which in my opinion be a  strong argument for I and manifest prove that the law in descent from Bridgman  oh er p brother to brother look to the derivation of the blood from the parent  nun can say that they be of the halfblood one to another but by resort to  their parent videlicet that they have several mother and one father as to the  ancestral blood of the son the father and mother may be say each of they to  contribute half to the blood of the son the father two blood videlicet the  blood of his father and mother and the mother two blood videlicet the blood of  her father and mother as c c instance in the case of Fairfield now when they  be of two venture they agree but in half the blood videlicet in two of these  four blood transmit by the father there be but a halfblood or two blood of the  four to make up the copulan or common vinculum but otherwise it be of the  uncle for though he be remote in degree than the brother of the halfblood yet  the common vinculum or copulan wherein they agree that be the grandfather and  grandmother communicate to the uncle and the nephew to who he be to inherit  four blood videlicet the blood of the father and mother of the grandfather and  the two blood of the father and mother of the grandmother which make they  inheritable and if the uncle be of the halfblood to the father and do not  communicate of these four blood he can not inherit any more than the  halfbrother as I say before it be true the same blood be communicate from the  grandparent to the grandchild the two brother of the halfblood which be  communicate to the uncle of the whole blood Bridgman oh but it be halved  parent who be not the same they have several mother and therefore that union  which they have in their parent be not sufficient for want of entirety of  blood and as to the union which the two brother have one with the other by  their grandparent as a common stock the uncle be near that common stock than  thehalfbrother and though the uncle be no more of kindred to the mother of the  elder son than be the young son of the halfblood yet the law look to the  immediate stock the immediate ancestor in who they agree require therein  soundness blood and prefer the uncle who have the entire blood from the  immediate ancestor wherein they join before the other brother who have it not  why the law prefer the uncle or remote cousin before the brother of the  halfblood in natural reason will be as difficult to prove as it be why the  uncle or remote cousin ball inherit before the father it be sufficient there  be positive ground and rule in law for it et principia non are to make good  but upon the whole matter as I conceive it appear that the consideration of  the whole and halfblood in descent between brother and brother the law respect  not only the immediate relation between brother but also the ancestor from and  by who their blood be derive and communicate I have do with the objection on  the plaintiff part I now descend to the authority the authority which this  case itself have make have not be much insist on by my brother p in No of the  Hargrave ms there be three note of successive argument of this case in the  Upper Benchp b t t the authority cite be Instit folio and Rep dyer Inst h f  cosinage pur Le volunt h dyer Br corporation Perk Rep wild case Br Nosme Doct  and saint con p b t r the case be argue this term by shaftoe for the plaintiff  on the question of alienage he cite Stamford pl cor on the derivation of title  from brother to brother he cite Edward and Roger cro Rep and cro Bradstock v  Stowell dyer and state the opinion of   Inst to be draw from Hobbis case on  the question whether heir shall be a word of purchase he cite e devise uni  fili be void per Le uncertainty et un devise ne poit direct un descent  encounter less rule de lie and h die Com Fitzherbert devise dit and devise all  heir de I S I S esteant attaint be void case put by Fleming in hoby case it  admit in case de restitution and be mult favour in lie tiel limitation be bon  Vid Inst e Le case de wm de Albo monastery car la Le party restore solement be  favor finch contra Le lie respect Le fountain de sink Inst ogle case et Le  devise be bon car less parols be sufficient description de person h e sir ffr  m rep devise all child semble and un bastard prendra per Ceo p b t hill  Twisden for the plaintiff cite on the derivation of title from brother to  brother h p Newton dr and saint Br denizen Inst Br escheat lou frere ne claim  interest deal frere la un frere inheritera all auter Instit and ogle case h  hob Rep a hear v Baskerville and Mackwilliamss case dyer and Inst marquis of  Exeter case aa foster and Ramsey case b r argue by Glyn donque Bridgman oh er  p chief justice siderfin to the marginal note Mr umfreville add this reference  ms bb and indeed rather give occasion to this special verdict which be find in  the same term in than settle the question there be but one argument that ever  I hear make in it at the bench in Bridgman oh another court and depend the  suit and ground principal upon the authority of Godfrey and Dixon case to  which I hope I shall give a satisfactory answer and he say that all the  expression of coke put together do not amount to a absolute opinion fol on the  question of the devise Twisden reply on h h h serj Maynard contra argue  against the brother be heritable one to the other and cite h ff cosinage e  hoby case and Inst Ch I Glynn Le main point be sur Le Act de Naluralization  those Maynard dit in son argument and ce ne do plus and naturalize per birth  Adjornatur two authority be rely upon the first be Hobbis case upon which the  great stress have be lie in and Elizabeth in scacc William hobby have issue by  Alice his wife Philip and mary he be attaint and dies Philip purchase land and  die without issue and it be adjudge that notwithstanding the father attainder  mary shall inherit her brother Philip and thence be infer that the father be  not such a medium or nexus as be look upon by the law as the mean derive the  descent between two brother in answer to which I shall first consider the  authority of the case and then the resemblance it have to we in be a  information bring by the attorneygeneral mich and Elizabeth Nov in the  exchequer on behalf of the queen against Boraston and Adam for intrusion into  Alton Woods the very same land which be in Alton wood case in I   and the same  whether countess of Warwick concern in it after argument at the bar by Fleming  solicitorgeneral to the queen and Stephens for the defendant it be adjudge  Bridgman oh without argument at the bench that ever I can hear by the three  baron periam clerk and Ewens against the queen in vis mich follow so that the  information come in but the first of Nov there be in effect but three term in  which it defend I have see a authentic report a short note of other argument  in the case by sergeant Glanville for the defendant and attorneygeneral coke  for the queen be preserve in the lansdown collection of manuscript in the  British museum No fol a to which be add the follow memorandum confirmatory of  sir Orlando Bridgmans remark on the case notam this case be decide afterward  against Coke that the daughter shall inherit and a writ of error be bring upon  this but because there be at the same time another case videlicet Welsh case  adjudge also on this point against the queen upon which a writ of error be  bring and the judgement reverse wherefore this land also be restore to the  queen so that they do not proceed in the writ of error it be unnecessary the  queen have the land by another course cc of Mr Noy lend I by my brother brown  wherein after the argument of Stephens and Fleming in that case be these word  memorandum quod postea Le case to be adjudge pur Le countess de Warwick vers  la Reyne pur Le reason de Stephens above because ne besoyne en fesance de  title de mentioner son poor mes so much a dire and son poor to be seisi et ill  be heir come Fleming solicitor dit a moi mes ill oustre dit and counsel Le  reign to be fortement encontre Ceo et de mome Le opinion be Le seigneur  Egerton et chief justice to clean who si error soit port Ceo judgement oust  estre reverse and it appear by the record that a writ of error be bring the  writ of error be bring in vis mich return Feb hill Eliz and so be keep on foot  by several continuances till the that of June follow which I observe that they  be so careful in it that the lord be present and attend it all the time and do  not suffer it to be discontinue all that day be the that of June Bridgman oh  er p Trin Eliz the attorneygeneral appear in person require si ipse beyond in  to send forward ultra say beforehand advance Hugo Boraston et Thomas Adam to  go before lightarmed footsoldier to say in it record Trin Elizabeth rot in in  process versus quemdam ricardum bishop law et titulus speech owner queen ad et  in kind of water fowl peremptory or urgent call Alton alias Clomplon wood  satis manifest that this only is apparent ex judgment pro dictam owner queen  ibidem recently red therefore idem attorney owner queen to say quod ipse usque  say beforehand advance Hugo Boraston et though Adam pro dictam owner queen  super wandering pillage beyond attendance non Bridgman oh vult in the mean  time the queen recover these very land upon the title now in print in Alton  wood case against the judgement of the say court of exchequer and therefore it  be to no purpose to proceed upon this writ of error for the land already  recover but a non vult attendance be enter and the reason enter upon the  record because the queen have in the mean time recover the land by another  title and upon the record of that case of Alton wood in print you will find  that the judgement against the queen for bishop be reverse June Eliz and  thereupon this nol pro enter the that of June five day after if that have not  be reverse they will have proceed in this so the non pro be not in respect of  the matter in law and this case be adjudge without argument at the bench in  the exchequer court and the land enjoy contrary to the title and the judgement  dash by a writ of error so bring and by such opinion of those learned person  the authority of that judgement in itself be not great in the case of the king  v Eaton hill car the report of which by Littleton I be not print till Hobbis  case be cite by Yelverton I as decide that the daughter shall not be heir to  her brother because in show herself to be his heir she must mention her father  which bridge be break down by the attainder a circumstance not occur in the  principal case Litt Rep dead it be true Hobbis case have receive some  countenance of authority since but obiter only and in passage to other thing  it be cite in Godfrey and Dixon case cro James c c and my Lord coke set it  down as law but the reason be give for it make direct for I because say he  each of the brother may by possibility have be heir to the father whereas in  our case neither of the brother can be heir to the father so that if that case  be make good by the authority of my Lord coke you must take it upon his reason  or otherwise the authority of his opinion must be take against you in this  case of attainder as it be in the case of the alien but dly the resemblance be  not alike between Hobbis case and we here there be never a inheritable blood  from the parent be alien there be a inheritable blood vest in the brother  before attainder which be also another reason give by my Lord coke if the son  have purchase land and die and his brother have inherit and after the father  have be attaint the subsequent attainder will not have divest the land which  be vest by the same reason not the right of inherit which be vest between they  if it corrupt not the blood ab origin in one case why shall it in the other  they Bridgman oh be once inheritable both to the father and mother and after  the attainder they be still inheritable to the mother common vinculum large  single pearl remain in our case of a alien the brother draw no inheritable  blood from either parent and therefore to make the case parallel to we it must  be put that both parent be attaint and so tinder a incapacity and afterward  have two son and one purchase lands that his brother shall be his heir in  which case there never be a inheritable blood from either parent and in that  case as yet there have be no judgement and such authority as there be in it  seem to be that in that case they shall not inherit one the other in c c it be  say some have hold that if a man after he be attaint have issue two son one  can be heir to the other but there be a maternal blood by which they may  inherit one to the other if the case have be put by he that both father and  mother have be attaint it may be suppose that he will have set down his  opinion more positive it have be urge that one brother can inherit the other  in the capacity of heir of part of the mother if by the attainder he be  disable to take as heir by his father blood I must agree the case that the  uncle on the part of the father who be attaint though be shall not inherit the  son yet shall hinder the resort to the maternal line Bridgman oh er p for  those who shall have inherit on the father line and can by reason of his  attainder may binder other from inherit but it stand not upon the same reason  that therefore a brother who have two blood and so two title to inherit by a  patre et matre shall be hinder from enjoy by the one because he be disable by  the other he be the same person who have both title so have not the uncle on  the father side and it be no reason he shall be a bar to himself I confess I  know no authority for this distinction nor do I find any against it where the  corrupt blood and the pure inheritable blood concur in the same innocent  person but that the pure blood which remain may be sufficient to preserve the  other which be once vest and incorporate with it from be divest but yet this  reason be not I alone Bracton and Britton who both hold that a son bear after  the attainder of the father can not inherit the mother yet hold if he be bear  before the attainder he may still inherit the mother for the reason give by my  Lord coke because a pure blood blood duplicate as they call it be once vest in  the son which be not divest by the father attainder I urge it not for the  authority for I hold the first videlicet that a son bear after the father  attainder may not inherit the mother to be no law though ogle case be not  Bridgman oh against it but for the reason of their opinion in the latter case  which be law that the son bear before the attainder may inherit the mother e  Quant tiel inheritance sur purchase per Le party ne vie unques en descent de  nul cepamount mes and ill e primer purchaser mes and leur branch de heir de  part Le peer fault ill e reason and less heir de part lemere Le on it pluistot  and ill serr eschete all seigneur here it never come all cepamount but remain  in the same person who have both blood et de mem take hold but I do not  pretend to impose this upon any man judgement I do it not upon my own but only  I enforce my Lord coke reason of Hobbis case there be a pure blood vest  between the brother and sister which can not be divest by the subsequent  attainder if that reason be deny I may with the great authority as I conceive  deny the law to be accord to the judgement on Hobbis case that the two son of  a person attaint shall inherit one the other for true it be a case chiefs  impression and I think it to be no law and that upon as great authority I  suppose as that judgement be in courtney case Michaelmas Elizabeth which be  refer to the two chief justice and chief baron Egerton attorney and coke  solicitorgeneral the case concern the cousin and collateral heir of Edward  Courtney son of Henry Courtney marquis of Exeter who be attaintedwhether they  shall inherit to Edward but it be resolve that without a act of restitution  the heir collateral can not have inherit he and that other heir than lineal he  can not have so long as that attainder stand in force and thereupon the  question grow whether the act of restitution in that case as it be pen do  extend only to the lineal heir or not of Edward that point concern not only  our case but this resolution which I have mentioned That Edward the son of a  person attaint can have no other heir but lineal which be the ground of the  debate in that case be direct contrary to Hobbis case which make the brother  who be a collateral and not a lineal heir to inherit the brother this be about  three or four year before Hobbis case and add to this that which I observe  before that the same four person videlicet the two chief justice and Egerton  then Lord chancellor and former attorneygeneral and coke attorneygeneral and  Fleming solicitorgeneral after the judgement in Hobbis case do declare their  opinion against it and direct the writ of error and that it so continue till  the queen herself have recover the very same land and that cause particular  enter upon record as the cause of the discontinuance of the writ of error and  I think their opinion will have as much force as that judgement in the  exchequer to the contrary by three baron without argument at the bench  Bridgman oh the law be clear that a person attaint though pardon shall have  none but lineal heir bear after his pardon the same reason there be that his  son who have no ancestral blood but what be corrupt shall have do but lineal  heir also and Stamford be express that the son of a person attaint ne poet  estre heir a ill ne a ascun auter ancest he can be heir to his father nor to  any other ancestor ergo he can be heir to his brother for he can be heir to  his brother unless his brother be a ancestor so that Stamford also be direct  in point for I against that opinion in Hobbis case and true if we consider the  case of attainder by the reason of our old book we shall find that other  disability or incapacity be but like paint upon Bridgman oh er p cloth or  glass which colour the superficies only but attainder be like the die of cloth  or wool which give a tincture to and discolour the whole mass so that our case  of a alien and a person attaint be not to be make parallel but then there be  another objection make from hence upon Hobbis casethat the case of a attainder  put a great incapacity upon a family than that of a alien and therefore a  strong if the son of a person attaint may inherit his brother a son of a alien  may inherit his brother I conceive that neither in the one case or the other  the brother may inherit but yet the objection receive a answer from what have  be already say if you look to their person there be much more respect to he  have to the alien who have no natural allegiance than to a traitor who break  it to he who have no birthright than to he who forfeit it but as to legal and  political consideration it be otherwise first in respect of the person attaint  himself a person attaint be still a Englishman and owe allegiance which a  alien of foreign extraction do not save only local while he be here and such a  person attaint have still as to his life a protection against all but the king  and his justice but dly in respect of the kindred which be our case there be  much more respect to he have to the kindred of a person attaint than of a  alien the innocent kindred of a person attaint be all the king natural subject  their relation correspondence and interest be English and therefore much more  to be respect as to the have and inherit of land here than the kindred of a  alien of foreign extraction and therefore our law favour act of restitution of  blood more than it do indenizations or act of naturalize as I have say before  but I have do with this case of a person attaint I conceive it be no way  parallel to the case of a alien the other authority which have be cite be in  the case Bridgman oh of a alien it be Godfrey and Dixon case p throw b r roll  I must put the case at large Cornelius Godfrey a alien bear in Flanders have  issue there Daniel his old son he and his wife and son Daniel come over into  England the father be make a denizen by letter patent and afterward have issue  by the same wife Cornelius his second son and dieS Daniel the old son by Act  of parliament November James be naturalized purchaseth copyhold land parcel of  the manor of Stepney and leas render rend and die without issue Cornelius the  second son as heir to his brother bring a action of debt for the arrear of  rend and adjudge it will lie the word of the Act of naturalize be in effect  the same that be in our case  That Daniel shall be at all time hereafter his  majesty liege natural subject of England and as free to all intent and purpose  as if he have be bear in England and shall be from henceforth enable to demand  challenge have and enjoy land as heir to any of his ancestor lineal or  collateral by reason of any descent reversion remainder right or title which  after the first day of this present parliament shall descend c with other such  word as be in this Act of naturalize of John and George but have not no more  than in these act any express word that his cousin shall be heir to he but  only that he shall be heir to they which principal make the doubt in that case  but as I have say before it be agree that when the Act make he a natural bear  subject the consequent be be shall have his lineal and collateral heir and if  he may be heir to a collateral cousin a collateral cousin may be heir to he  the difference between our case and that of Godfrey and Dixon be apparent in  our case Robert the father of John and George be a alien and can not transmit  any heritable blood to his son nor be he a legal ancestor unto they he be in  the law tanquam mask non to step out as it have be phrase in Godfrey case the  father be a denizen by letter patent one of the son be bear in England after  denization and the other naturalize which be the legal birth the father be  such a ancestor from who both the brother may draw a inheritable blood and by  consequence inherit one to the other and it be no more in effect but a alien  make denizen by letter patent have afterward two son bear in England there be  no question but each may inherit to the land which the father purchase and  each may inherit one the other Bridgman oh some difference have be put between  the case for that Daniel the old son be naturalize after the death of his  father and after his young brother be Bridgman oh er p heir to his father and  so it be say there be never inheritable blood between Daniel and his father so  much as in fiction or relation this I conceive will be plain clear by consider  the relation of a act of naturalize distinguish by time saint if the son be  naturalize or bear in England and after the father be indenizened and purchase  land it be clear that this naturalize be before the father be capable to  transmit a inheritance the son shall not inherit the father for the father  have no power to transmit a inheritable blood by big denization but to his son  bear after whether the law be the same if after the father be endenized the  son be by Act of naturalize make a subject bear from the time of big birthday  by reason of the violent relation of the Act of parliament I will not now  debate it not be to our present business dly if the father and the son be both  at once naturalize by Act of parliament and then the father purchase land it  be the opinion on Godfreys case that the son shall inherit the father the law  will make a priority though in the same Act accord to the order of nature and  the intent of the Act rdly if the father be a Englishman or naturalize or make  a denizen for it will be all one as to lineal succession and have a son bear  beyond sea a alien and another after bear here the young son be now heir  apparent to his father and must inherit by his death but if the old son be  naturalize and the naturalize either by construction of the Act or by the  express word as it be in Godfrey case and as it be here in the act of John and  George Ramsey and indeed be general in act of naturalize be restrain to the  time of pass the Act or the beginning of that session of parliament the elder  son that be so naturalize in the life of big father shall be heir at the time  of his father death and not the young brother see fish v Klein Merivale thou  this every day practice teach we in the act of naturalize of person bear  beyond seas they inherit their parent in the same degree as if bear here if  the father alien have a son bear in England and after the father be naturalize  this son bear before shall inherit to he the same reason it be where the son  be naturalize in the lifetime of the father as where the father be naturalize  in the lifetime of the son and it be observable the word in that Act of  Godfrey and so in our case be to this effect that he Bridgman oh shall be from  henceforth adjudge and take as if he have be bear in England and enable to  make his resort and pedigree as heir to any ancestor but do not say as if he  have be bear in England the first of July or that day wherein he be bear for  then he must have be account as bear before big father denization and so not  inheritable and so will contradict the meaning of the Act and the letter also  which intend he shall have resort to the pedigree of his ancestor and  therefore the word as if he have be bear in England not mention the time when  bear must admit this reasonable construction as if he have be bear at such a  time when if he have be bear in England he be capable to have inherit to his  father for otherwise if the father be make a denizen and the son bear before  be after naturalize in his lifetime the Act of naturalize extend to a time  precedent to the father denization will be of no force as to the inherit big  father which no man ever yet say or at least the word as if he have be bear in  England must have this construction as if he have be in England when the Act  passed that be as if he have be bear natural when he be bear civil make which  of these construction you will one of they must be make yet the old son  naturalize shall inherit the denizen father before the young son bear here but  thly to come home to the case of Godfrey the father alien have a son bear  beyond sea be denized and have issue another son and purchase land and die the  young son be his heir the elder son be afterward naturalize with these  relative word that he shall be at all time hereafter the king liege subject  and be from henceforth adjudge and take as if he be bear in England and enable  to make his resort and pedigree as heir to any ancestor by reason of any  descent right or title which after the first day of this parliament shall  descend or come to he under pardon it be very clear he may by virtue of this  naturalize be heir to and make his resort to his father though big father be  dead before for he be as a Bridgman oh er p posthumous son who though the  father be dead may derive both title and pedigree from and through his father  fish v Klein Merivale ff some of my brother have take the case as if it be  urge that Daniel Godfrey naturalize reach to the time of his birth if it be so  I must agree they make a right conclusion for then Daniel be as if he be bear  before his father be endenized and can not inherit he but there be a  posthumous son as well by naturalize as by birth Bridgman oh therefore I can  no way agree to that which be say that there be never inheritable blood  between Daniel Godfrey and his father so much as in fiction or relation if a  man have issue a son and die and after another son be born can it be say there  be never any inheritable blood between they Daniel have a civil birth give he  by Act of parliament after the death of his father the Act say that from  thenceforth he shall be and adjudge to be his father legal son and inheritable  to him  Every man be estopped to say the contrary whether he shall be  immediate heir to his father and by relation of the Act immediate inherit and  divest the estate purchase by the father and descend to his young brother or  may take it only after he if he die without issue as his brother will not be  material to our case for be it in one case or the other both now draw a  inheritable blood from the father and through he may communicate it to one  another it be necessary that the line of communication as I may call it shall  be draw through the father but it be not necessary it shall be draw in the  lifetime of the father but yet as to this point of relation I shall deliver my  opinion father and old son alien the father be endenized purchase land have  issue a second son and die now the second son be heir then the elder be  naturalize with these relative word from henceforth and hereafter c I think  this shall not relate to divest the estate vest in the young brother but it be  restrain by the word of the Act from henceforth and hereafter he shall have  the future benefit of heirship not for the time pass but Vet for the time to  come and for the estate to come be that be naturalize shall be heir to his  father suppose there have be a warranty annex to the purchase when the father  purchase it and the young son have inherit to he and die and the elder brother  have inherit to he and be implead he must of necessity vouch to warranty as  heir to his father to who the warranty be make or else the warranty be lose  and I think it be clear by the word of the Act of naturalize he may vouch as  heir to his father who be endenized and be dead before so here be not only in  relation but in reality a inheritable legal blood between the father that be  endenized and dead and the son who be naturalize thly if the father have be a  Englishman or naturalize and die and his land have descend to the young son  bear Bridgman oh in England and after the elder son have be naturalize as  Daniel Godfrey as John and George Ramsey here be that be that he shall  hereafter and henceforth be a liege and natural subject c he shall not divest  the estate vest in his young brother but yet if the uncle have afterward die  seize of land without issue he shall have be heir to the uncle and make his  pedigree through his father it be true in that case of Godfrey he can not be  heir to his uncle because his father through who he be toderive his kindred be  but a denizen by patent and can not transmit any blood but in the direct line  but suppose the father alien have a alien son after his denization have have  two young son and die and the elder of those be his heir the young purchase  land and the old son the alien be naturalize I conceive it clear that he shall  now inherit his young brother for from the time of his naturalize he be heir  to his father and not the second brother who be heir at his father death so  that one shall be heir at one time and the other at another time by force of a  Act of parliament and as a natural posthumous son draw a natural and  inheritable blood from his father who be dead before he be bear so do a son  who be naturalize after his father death and so have not a civil birth till  then draw and derive a legal and inheritable blood from his father and that be  the case of Godfrey and Dixon the two son by possibility may be heir to the  father one to the other but in our principal case Bridgman oh er p John and  George Ramsey can not by possibility be heir to their father and so can not be  heir one to the other so that I conceive with some clearness that the  authority of Godfrey and Dixon case make nothing against I neither in truth do  the reason give in that case by the judge make against I that report of  justice croak be somewhat too short and set down the reason give by the  counsel not by the judge the reason give by the judge as by the justice Jones  report lend I by my brother brown there be other good report of Godfrey v  Dixon in the British museum videlicet No hark ms fol and No Lansd ms fol gg  appear be first the difference between denization by letter patent and  naturalize by Act dly the specal word contain in the Act of naturalize which  certain be very effectual in that case as in all other where the defect be  only in the person naturalize not his ancestor the father be a denizen and  capable to be a ancestor a legal ancestor to those descend from he and it be  express provide that Daniel may make his resort to his ancestor in our case  the father be Bridgman oh a alien and John and George the two brother  naturalize be of alien extraction can have no legal ancestor by the act of  naturalize which curedtheir own defect of legiance not their ancestor and this  may be one cause why in car to encourage the scot to plant in Ulster they do  express provide a Act which naturalize all the antenati and this by the way  answer a objection that since the union of the two kingdom it may concern many  considerable family of Scottish extraction who enjoy their inheritance in  peace it concern none in Ireland I suppose there be none so concern here in  England the law be so general receive that the alienship of the father make  the son not inheritable one to the other and for particular family instance at  the bar I have reason to believe that the case concern they not there be now  no antenatus under sixty year old it can concern but few of the Scottish  nation for ever hereafter but it will for ever concern the French and other  nation and there be in every parliament such multitude of person naturalize as  we see and many of they in one and the same Act of parliament if there be ever  reason for a strict construction of act of naturalize it concern we now to  make it and the rather also for that our neighbour of France be very strict in  their naturalizations and allow none to be heir to those who be naturalize  there but their child it be the measure our ancestor take to deal with  stranger of other nation as they deal with we it stand with the same justice  and policy to do so still in the privilege of alien of foreign extraction I  shall conclude this great point with one argument more which I confess have  some force with I though perhaps not with other this case concern the king of  the one side in a great prerogative touch escheat in case of alien denized and  naturalize die without issue the office of escheator be heretofore  considerable and the revenue by escheat be the principal of his office reckon  a great branch of the revenue escheat save only in respect of alien be very  rare and inconsiderable to hold up the right and prerogative of the king in  point of revenue whatever opinion be take up I have always hold be the great  interest of the people who be necessitate for their own safety to supply what  the king revenue fall short of to answer the public charge and therefore those  right which concern the king and people in Bridgman oh general be to be prefer  before the interest of particular subject on the other side in the consequence  of this cage on the plaintiff part none be concern but alien or those who  ancestor be whole of alien extraction the scot if subject if not already will  be short quite out of the case there have not be one instance give  notwithstanding the many hundred year wherein by reason of our alliance and  interest in foreign nation particular in France it be probable the case have  often happen that there have be two brother of alien extraction and the one  have purchase land and die without issue that the other brother have enjoy the  estate as heir it have be argue in express word by diverse of my brother who  argue that this be a new case and no authority in it but what this case itself  have make which be since this very verdict find I conclude this great point  with this Bridgman oh er p but in the very case of Godfrey and Dixon there be  express authority for I justice Doddridge indeed say that if there be father  and two son alien and the two son be naturalize and not the father he will  deliver no opinion whether the brother may inherit one the other but the chief  justice say that if a alien have two son bear in England which be the same  case in effect with the other doubt that such brother shall not be heir one to  the other ad quod non to be responsum so that the chief justice in effect  resolve what justice Doddridge doubt and justice Houghton not gainsay it be a  tacit consent for my Lord coke opinion I must attribute more to it than to any  single opinion of any one judge No one man have deserve so well of the  professor of the law no one man in any human profession have write so much and  with so few error as be in those two work which be publish by himself in his  lifetime and of which this of his commentary be one and in this case his  opinion be of the more weight because he be himself a principal counsel in  Hobbis case and publish his commentary upon Littleton after Godfrey and Dixon  case but I shall not further press the authority of his opinion in this case  but I may enforce it out of he as the opinion of those time even after Hobbis  case and Godfrey and Dixon case that two son of alien parent bear here or  naturalize shall not inherit one to the other and that appear also by the  office mention in this special verdict after the death of the earl of  Holderness whereby the commissioner and jury take Bridgman oh the law to be  that George can not nherit to his brother John the earl and that therefore be  die without heir in case of public concernment and not former resolve but  doubtful we ought to interpret and declare the law so as be most in favour of  the king et pro good publico that be the reason where the king be party the  array shall not be challenge for favour because in his allegiance every man  ought to favour the king more than the party and it be part of our oath which  we take as judge accord to the statute of e that we shall do and procure the  profit of the king and of his crown in all thing where we may reasonable do  the same some of my brother who argue against my opinion do say this be a new  and doubtful case in doubt presumendum pro rege if any of they be still of  that opinion that it be doubtful they ought for that cause to concur with I in  their judgement and therefore it concern in consequence the king and his  revenue by escheat by alien and consequent good public officer on the one  side and none but alien or such who ancestor be whole of alien extraction of  the other side these reason have move I to be of opinion in this point for the  defendant who claim under the king title I do not find in Bracton or Britton  Britton c de success Bracton though they purposely treat of succession and  descent nor in any other author of our book this new landmark of descent of  make a brother a radix or propositus or another root or line of descent but  from the parent and both have tree common sanguinitatis or a distinction  express make between a brother and a uncle to that purpose and therefore I  conceive it be but of a novel invention in our principal case if I have not  give satisfaction that the law be for the defendant yet I have not in my own  judgement by which whether erroneous or not I must stand or fall receive  satisfaction that the law be for the plaintiff so as to myself this case come  within thecompass of my oath and within the reason of law which favour the  king before any subject much more before those of a alien extraction and  therefore suppose it to be a new and doubtful case I ought to deliver as I  have do my opinion for the defendant the second question in this case be admit  as I have argue that if John Ramsay and George Ramsay have be bear in England  of alien parent they can not be heir one to the other whether the word in this  Act do naturalize they to a high degree than if bear in England and I hold it  do not Bridgman oh wherein I shall say but a few word for that I have borrow  already more time than be allot I and that my Lord chief baron and brother  Twisden have agree in this point with my brother who argue for the defendant  and have deliver the reason so full that I can add nothing and my brother  Atkins have if I mistake not omit this point so that in this point the great  number be already forth defendant Bridgman oh er p it appear by the whole  scope of the act of naturalize that the intent thereof be to put John and  George in the same condition as if they be bear in England and no better the  title of it be a Act of naturalize and no more saint the Act for George  naturalize say he shall be adjudge and take in every respect the king liege  subject and as a person bear within England if he shall be take in all respect  as if be be bear in England he shall be take in no respect better than if he  be bear in England if you shall construe the word of the Act as my brother of  the common plea do that they shall be as free to prosecute or defend and enjoy  the law as any person bear in England and to make resort and pedigree from any  ancestor lineal or collateral as any person bear in England though the word be  not such yet it ought to have a reasonable intendment only to cure the defect  of his own birth and to make he as free as if he have be bear in England or as  any other person so qualified viz who have alien parent and have be bear in  England and not to make he in all respect as any person whatsoever who have be  bear in England do you think be shall have the privilege of a nobleman not to  be sue by a capias or to have a knight of his jury yet be shall if he must  enjoy the privilege of any man bear in England dly it do clear seem to I as my  Lord chief baron say that the word as if they be bear in England be the govern  clause both in the first and last sentence and have a influence upon all the  clause that intervene and to break the context and to make any other  construction of the intervene clause be to alter the scope of the Act the Act  intend to make he as if he have be bear in England but not to break any rule  of law or descent for his sake if it have it shall be intend it will have make  special provision for it thly that which induce someof my brother to put so  much stress upon the word of the Act of naturalize be because the judge do so  in Godfrey and Dixon case but that be as I have already show upon another  reason before the Act of naturalize of Daniel Godfrey the father Bridgman oh  incapacity for want of birth be cure by his denization he be a legal ancestor  if there can be a legal heir that Act cure the incapacity of Daniel the alien  son for want of birth to be heir to his father and so consequent he be  inheritable to his brother and his brother to he and every clause of that Act  be of use to clear it it be observe by my brother Terrell that while by  construction of the Act of naturalize you will make one brother heir to the  other you must make both inheritable to the father which in Godfrey case may  but in our case can be the father be still a alien in our act of naturalize  the son personal incapacity of not be heir for want of birth be cure but the  father incapacity of be a legal ancestor still remain and therefore the Act  have no further influence on the son than to cure his own want of natural  birth and to make he be as if be be bear in England thly as I have argue act  of naturalize be to be take strict if that ground shall be allow I as I think  it ought yet it be a unreasonable and preposterous course as have be say to  expound the general word of this Act to give more favour to a stranger bear of  alien parent and who still owe obedience to a foreign prince for so it be in  the rule though not in this particular case and who obedience tie he to break  his allegiance here if they fall out to be contrary than you will unto a  natural bear subject and so I conclude this point also I think that judgement  ought to be give for the defendant