Whether a child, born under certain circumstances, was or was not born alive, is a frequent and important question on the right of the father to the tenant of the courtesey; and as it is naturally connected with the doctrine of gestation, will be partly considered here, though the external signs of incipient and independent vitality will be more fully treated of under the head of Infanticide.

^[348]“Tenant by the courtesie of England is where a man taketh a wife seized in fee simple or in fee taile general, or seized as heir in taile especial, and hath issue by the same wife, male or female, born alive (oyes ou vife), albeit the issue after dieth or liveth, yet if the wife dies the husband shall hold the land during his life by the law of England, and he is called tenant by the courtesie of England, because is this used in no other realme but in England onely.^[349] And some have said that he shall not be tenant to the courtesie unless the childe which he hath by his wife be heard crie^[350]; for by the crie it proved^[351] that the child was borne alive. Therefore QuÆre.”^[352] Co. Litt. 29. 30.—Here therefore is another occasion^[353] where Medical Evidence may be useful or necessary, and it cannot be too often forced on the attention of practitioners, who at the expiration of many years may be called upon to give testimony, very frequently affecting property of considerable magnitude, that they should on all occasions make sufficient notes of the births which they attend, the circumstances which they have observed, and the number and descriptions of the persons present, who may at a future period be called to corroborate their testimony. We have known an instance where the books of a surgeon attending a then obscure individual, became necessary evidence before the highest tribunal of the land towards determining the right of peerage.

Foreign jurists have doubted whether a child extricated by the CÆsarian operation^[354] is capable of succession. “Illud autem valde controversum est inter jurisconsultos, an is qui editus est execto matris ventre reputetur partus naturalis et legitimus et successionis capax.” (Caranza de partu naturali et legitimo. p. 427). And though the question is now decided in the affirmative, some nice points may yet arise,^[355] if not for the instruction of the jurist at least for the amusement of the casuist.