Lord Fairfax, at the time of his death, had the absolute
property, seizin, and possession of the waste and unappropriated
lands in the Northern Neck of Virginia.
An alien enemy may take lands in Virginia by devise and hold the
same until office found. The Commonwealth of Virginia could not
grant the unappropriated lands in the Northern Neck until its title
should have been perfected by possession, and the British treaty of
1794 confirmed the title to those lands in the devisee of Lord
Fairfax.
An alien can take lands by purchase, though a not by descent, at
the common law, or in other words, he cannot take it by the act of
law, but he may by the act of party.
There is no distinction whether the purchaser be by grant or by
devise; in either case, the estate vests in the alien not for his
own benefit, but for the benefit of the state. Or, in the language
of the ancient law, he has the capacity to take, but not to hold
lands, and they maybe seized into the hands of the sovereign.
Until the lands are so seized, the alien has complete dominion
over them; he is a good tenant of the freehold in a praecipe on a
common recovery, and may convey the same to a purchaser. It seems
indeed to have been held that an alien cannot maintain a real
action for the recovery of lands, but it does not thence follow
that he may not defend, in a real action, his title to the lands,
against all persons but the sovereign.
In respect to these general rights and disabilities, as to real
property, there is no difference between alien friends and alien
enemies.
During the war, the property of alien enemies is subject to
confiscation
jure belli, and their civil capacity to sue
is suspended.
The title acquired by an alien by purchase is not divested until
office found; the principle is founded upon the ground that, as the
freehold is in the alien, and he is tenant to the lord of whom the
lands are holden, it cannot be divested out of him, but by some
notorious act by which it may appear that the freehold is in
another.
The reason of the difference, why, when an alien dies, the
sovereign is seized without office found, is because otherwise the
freehold would be in abeyance, as the alien cannot have any
inheritable blood. Even after office found, the King is not judged
in possession, unless the possession were then vacant, for if the
possession were then in another, the King must enter or seize by
his officer, before, the possession in deed shall be adjudged in
him.
Until the King be in possession by office found, he cannot grant
lands which are forfeited by alienage.
This was a writ of error to the Court of Appeals of Virginia in
an action of ejectment involving the construction
Page 11 U. S. 604
of the treaties between Great Britain and the United States, the
judgment of the Court of Appeals being against the right claimed
under those treaties.
The state of the facts, as settled by the case agreed, was as
follows:
1. The title the late Lord Fairfax to all that entire territory
and tract of land, called the Northern Neck of Virginia, the nature
of his estate in the same as he inherited it, and the purport of
the several charters and grants from the Kings Charles II and James
II, under which his ancestor held, are agreed to be truly recited
in an Act of the Assembly of Virginia, passed in the year 1736
(
vide Rev.Code, v. 1, ch. 3, 5) "for the confirming and
better securing the titles to lands in the Northern Neck, held
under the Right Honorable Thomas Lord Fairfax,"
&c.
From the recitals of the act, it appears that the first letters
patent (1 Car. 2) granting the land in question to Ralph Lord
Hopton and others, being surrendered in order to have the grant
renewed with alterations, the Earl of St. Albans and others (partly
survivors of, and partly purchasers under the first patentees)
obtained new letters patent (2d Car. 2), for the same land and
appurtenances, and by the same description, but with additional
privileges and reservations, &c.
The estate granted is described to be
"All that entire tract, territory or parcel of land, situate,
&c., and bounded by, and within the heads of the Rivers
Tappachannock, &c., together with the rivers themselves, and
all the islands &c., and all woods, underwoods, timber,
&c., mines of gold and silver, lead, tin, &c., and quarries
of stone and coal, &c., to have, hold, and enjoy the said tract
of land, &c., to the said [patentees] their heirs and assigns
forever, to their only use and behoof, and to no other use, intent,
or purpose whatsoever."
There is reserved to the Crown, the annual rent of �6, 13s, 4d
"in lieu of all services and demands whatsoever;" also one fifth
part of all gold, and one tenth part of all silver mines.
Page 11 U. S. 605
To the absolute title and seizin in fee, of the land and its
appurtenances, and the beneficial use and enjoyment of the same,
assured to the patentees, as tenants
in capite, by the
most direct and abundant terms of conveyancing, there are
superadded, certain collateral powers of baronial dominion;
reserving, however, to the Governor, Council and Assembly of
Virginia, the exclusive authority in all the military concerns of
the granted territory, and the power to impose taxes on the persons
and property of its inhabitants for the public and common defense
of the colony, as well as a general jurisdiction over the
patentees, their heirs and assigns, and all other inhabitants of
the said territory.
In the enumeration of privileges specifically granted to the
patentees, their heirs and assigns, is
"freely and without molestation of the King to give, grant, or
by any ways or means, sell or alien all and singular, the granted
premises, and every part and parcel thereof, to any person or
persons being willing to contract for or buy the same."
There is also a condition to avoid the grant, as to so much of
the granted premises as should not be possessed, inhabited or
planted by the means or procurement of the patentees, their heirs
or assigns, in the space of 21 years.
The third and last of the letters patent referred to (4 Jac. 2),
after reciting a sale and conveyance of the granted premises by the
former patentees, to Thomas Lord Culpeper, "who was thereby become
sole owner and proprietor thereof in fee simple," proceeds to
confirm the same to Lord Culpeper, in fee simple, and to release
him from the said condition, of having the lands inhabited or
planted as aforesaid.
The said act of assembly then recites that Thomas Lord Fairfax,
heir at law of Lord Culpeper, had become "sole proprietor of said
territory, with the appurtenances, and the above recited letters
patent."
By another Act of Assembly, passed in the year 1748, Rev. Code,
v. 1. ch. 4, 10, certain grants from the Crown, made while the
exact boundaries of the Northern
Page 11 U. S. 606
Neck were doubtful, for lands which proved to he within those
boundaries, as then recently settled and determined, were, with the
express consent of Lord Fairfax, confirmed to the grantees, to be
held nevertheless of him, and all the rents, services, profits and
emoluments (reserved by such grants) to be paid and performed to
him.
In another act of assembly, passed May, 1779, for establishing a
land office and ascertaining the terms and manner of granting waste
and unappropriated lands, there is the following clause,
viz.,
vide Chy.Rev. of 1783, ch. 13, s. 6, 98.
"And that the proprietors of land within this commonwealth, may
no longer be subject to any servile, feudal, or precarious tenure,
and to prevent the danger to a free state from perpetual revenue.
Be it enacted that the royal mines, quit-rents, and all other
reservations and conditions in the patents or grants of land from
the Crown of England, under the former government shall be and are
hereby declared null and void, and that all lands, thereby
respectively granted, shall be held in absolute and unconditional
property, to all intents and purposes whatsoever, in the same
manner with the lands hereafter to be granted by the commonwealth,
by virtue of this act."
2d. As respects the actual exercise of his proprietary rights by
Lord Fairfax.
It is agreed that he did, in the year 1748, open and conduct at
his own expense an office within the Northern Neck for granting and
conveying what he described and called the waste and ungranted
lands therein upon certain terms and according to certain rules by
him established and published; that he did from time to time grant
parcels of such lands in fee, the deeds being registered at his
said office in books kept for that purpose, by his own clerks and
agents, that according to the uniform tenor of such grants, he did,
styling himself proprietor of the Northern Neck, &c., in
consideration of a certain composition to him paid, and of certain
annual rents therein reserved, grant, &c.; with a clause of
reentry for nonpayment of the rent, &c.; that he also demised,
for lives and terms of years,
Page 11 U. S. 607
parcels of the same description of lands, also reserving annual
rents; that he kept his said office open for the purposes
aforesaid, from the year 1748, till his death in December, 1781,
during the whole of which period and before, he exercised the right
of granting, in fee, and demising for lives and terms of years as
aforesaid, and received and enjoyed the rents annually, as they
accrued, as well under the grants in fee, as under the leases for
lives and years. It is also agreed that Lord Fairfax died seized of
lands in the Northern Neck equal to about 300,000 acres, which had
been granted by him in fee to one T. B. Martin upon the same terms
and conditions and in the same form as the other grants in fee
before described, which lands were, soon after being so granted,
reconveyed to Lord Fairfax in fee.
3d. Lord Fairfax, being a citizen and inhabitant of Virginia,
died in the month of December, 1781, and by his last will and
testament, duly made and published, devised the whole of his lands,
&c., called or known by the name of the Northern Neck of
Virginia in fee to Denny Fairfax (the original defendant in
ejectment) by the name and description of the reverend Denny
Martin, &c., upon condition of his taking the name and arms of
Fairfax, &c., and it is admitted that he fully complied with
the conditions of the devise.
4th. It is agreed that Denny Fairfax, the devisee, was a native
born British subject, and never became a citizen of the United
States, nor any one of them, but always resided in England; as well
during the Revolutionary War as from his birth about the year 1750,
to his death, which happened some time between the years 1796 and
1803, as appears from the record of the proceedings in the Court of
Appeals.
It is also admitted that Lord Fairfax left at his death a nephew
named Thomas Bryan Martin who was always a citizen of Virginia,
being the younger brother of the said devisee, and the second son
of a sister of the said Lord Fairfax; which sister was still
living, and had always been a British subject.
5th. The land demanded by this ejectment, being
Page 11 U. S. 608
agreed to be part and parcel of the said territory and tract of
land, called the Northern Neck, and to be a part of that
description of lands, within the Northern Neck, called and
described by Lord Fairfax, as "waste and ungranted," and being also
agreed never to have been escheated and seized into the hands of
the Commonwealth of Virginia, pursuant to certain acts of assembly
concerning escheators, and never to have been the subject of any
inquest of office, was contained and included in a certain patent,
bearing date 30 April, 1789, under the hand of the then governor,
and the seal of the Commonwealth of Virginia, purporting that the
land in question, is granted by the said commonwealth unto David
Hunter [the lessor of the plaintiff in ejectment] and his heirs
forever, by virtue and in consideration of a land office Treasury
warrant, issued 23 January, 1788. The said lessor of the plaintiff
in ejectment is and always has been a citizen of Virginia, and in
pursuance of his said patent entered into the land in question, and
was thereof possessed prior to the institution of the said action
of ejectment.
6th. The definitive treaty of peace concluded in the year 1783,
between the United States of America and Great Britain, and also
the several acts of the assembly of Virginia, concerning the
premises, are referred to as making a part of the case agreed.
Treaties and acts of assembly referred to.
Provisional articles of peace between Great Britain and the
United States, concluded 30 November, 1782, Art. 5 and 6.
Definitive treaty of peace between the same powers, concluded 3
September, 1783, Art. 5 and 6.
Treaty of amity, &c., between the same powers, concluded 19
November, 1794, Art. 9.
"An act respecting future confiscations" (Oct. 1783).
"Whereas it is stipulated by the sixth article of the treaty of
peace between the United States and the King of Great Britain, that
there shall be no future confiscations
Page 11 U. S. 609
made, be it enacted that no future confiscations shall be made,
any law to the contrary notwithstanding; provided that this act
shall not extend to any suit, depending in any court, which was
commenced prior to the ratification of the treaty of peace."
"An act declaring who shall be deemed citizens of this
commonwealth." [May, 1779, ch. 55, repealed.]
"An act for sequestering British property," &c. [Oct. 1777,
ch. 9.
vid. Chy.Rev. 64.] All the property and estate
whatsoever of British subjects is, by this act, sequestered into
the hands of commissioners of sequestration, by them to be
preserved, according to certain regulations, for the purpose of
being restored or otherwise dealt with, according of the King of
Great Britain should act towards the property of citizens of the
commonwealth, in the like circumstances. The preamble declaring
that inasmuch as the British sovereign was not yet known to have
set the example of confiscation, "the public faith and the law and
usages of nations," required the like forbearance on our part.
"An act concerning escheats and forfeitures from British
subjects" [May, 1779, ch. 14.
vid. Chy.Rev. 98]. After
reciting the former act, and that it had been found that the
property, so sequestered, was liable to be wasted, &c., and
that from the advanced price at which it would then sell, it would
be most for the benefit of the former owners, in the event of is
being thereafter restored, or of the public, if not so restored,
that the sale should take place immediately, &c., repeals so
much of the former act as was supposed to have suspended the
operation of the laws of escheat and forfeiture, and then declares
that all the property, real and personal within the commonwealth,
belonging, at the time of passing the act, to any British subject,
"shall be deemed to be vested in the commonwealth; the lands,
slaves and other real estate by way of escheat, and the personal
estate by forfeiture." The proceedings on inquests of office, for
the purposes of escheat under this act, are prescribed. The duties
of escheator are directed to be performed in the Northern Neck by
the sheriffs of counties. Section 3 declares who shall be deemed
British subjects within the meaning of the act,
Page 11 U. S. 610
"first, all persons, subjects of his Britannic Majesty, who, on
19 April, 1775, when hostilities commenced at Lexington, between
the United States of America, and the other parts of the British
empire, were resident or following their vocations in any part of
the world, other than the said United States, and have not since,
either entered into public employment of the said states, or joined
the same, and by overt act adhered to them,"
&c.
An act to amend the aforegoing, Oct. 1779, ch. 18,
id.,
p, 110, directs the modes of proceeding in inquests of office,
traverse of office and
monstrans de droit, as well by
British subjects as others.
"An act concerning escheators," May, 1779, ch. 45,
id.,
p. 106, Oct. 1785, ch. 63, p. 52.
vid. Rev.Code, v. 1, p.
126, directs the appointment of an escheator for every county,
except the counties in the Northern Neck; his qualification,
duties, &c., proceedings on inquests of office, traverse and
monstrans de droit, &c., prohibits the granting of any
lands, seized into the hands of the commonwealth upon office found,
till the lapse of twelve months after the return of the inquisition
and verdict, into the office of the general court; if no claim be
made within that period, or being made, shall be found and
discussed for the commonwealth, the clerk of the general court is,
within two months thereafter, to certify the fact to the proper
escheator, who is, thereupon, to proceed to sell.
"An act to extend the operation of the foregoing act, to the
counties of the Northern Neck." 1785, ch. 53, 37.
"An act to amend and reduce into one, the several acts for
ascertaining certain taxes, establishing a permanent revenue,"
&c., Oct. 1782, ch. 8, sec. 24 --
vide Chy.Rev. 176,
Sequesters, in the hands of persons holding lands in the Northern
Neck, all quit-rents then due, until the right of descent shall be
more fully ascertained, and the general assembly shall make final
provision thereon, and all quit-rents thereafter to become due,
shall be paid into the public treasury, under the operation of the
laws of that session, for which quit-rents,
Page 11 U. S. 611
the inhabitants of the Northern Neck shall be exonerated from
the future claim of the proprietor.
"An act concerning surveyors," Oct. 1782, ch. 33, sec. 3,
vide id., p. 180. Recites that the death of Lord Fairfax
may occasion great inconvenience to those inclined to make entries
for vacant lands in the Northern Neck; provides that all entries
made with the surveyors of the counties in the Northern Neck, and
returned to the office formerly kept by Lord Fairfax, shall be
deemed as good and valid in law, as those made under his direction,
until some made shall be taken up and adopted by one general
assembly, concerning the territory of the Northern Neck.
"An act for safekeeping the land papers of the Northern Neck,"
October, 1785, ch. 63, p. 36, reciting that it was customary to
keep the records, &c., of lands within the Northern Neck, in
the office of the late proprietor, and that it was necessary that
the records on which the titles to lands depended, should be all
kept in one office, provides for the removal of the same into the
register's office, &c.
Also provides for issuing grants for surveys under entries made
in the life of the proprietor and under entries made with surveyors
pursuant to the act last above recited, declaring them to be cases
till then unprovided for.
Sec. 5. Subjects the unappropriated lands, within the district
of the Northern Neck, to the same regulations, and to be granted in
the same manner, as is by law directed in cases of other
unappropriated lands belonging to the commonwealth.
Sec. 6. Forever, thereafter, exonerates land holders, within the
said district, from composition and quit-rents.
"An act declaring who shall be deemed citizens of this
commonwealth," May, 1779, ch. 55. Repealed.
"An act declaring tenants of lands or slaves in taille, to hold
the same in fee simple." May, 1776, ch. 26,
vide Chy.Rev.
45.
Page 11 U. S. 612
An act to amend the foregoing, October, 1783, ch. 27,
vide
id., p. 204, Lands or slaves, which, by virtue of the former
act, have, or shall become escheatable to the commonwealth, for
defect of blood, shall descend, and be deemed to have descended,
agreeable to the limitations of the deed or will creating such
estates, provided, this act shall not extend to any lands or slaves
escheated and sold for the use of the commonwealth.
Page 11 U. S. 618
STORY, J. delivered their opinion as follows, MR. CHIEF JUSTICE
MARSHALL and TODD J. being absent.
The first question is whether Lord Fairfax was proprietor of,
and seized of the soil of the waste and unappropriated lands in the
Northern Neck, by virtue of the royal grants, 2 Charles II and 4
James II, or whether he had mere seignoral rights therein as Lord
paramount, disconnected from all interest in the land, except of
sale or alienation.
The royal charter expressly conveys all that entire tract,
territory, and parcel of land, situate, &c., together with the
rivers, islands, woods, timber, &c., mines, quarries of stone
and coal, &c., to the grantees and their heirs and assigns, to
their only use and behoof, and to no other use, intent or purpose
whatsoever.
It is difficult to conceive terms more explicit than these to
vest a title and interest in the soil itself. The land is given,
and the exclusive use thereof, and if the union of the title and
the exclusive use do not constitute the
dominium directum &
utile, the complete and absolute dominion in property, it will
not be easy to fix any which shall constitute such dominion.
The ground of the objection would seem to have been that the
royal charter had declared that the grantees should hold of the
King as tenants
in capite, and that it proceeded to
declare that the grantees and their heirs and assigns should have
power
"freely and without molestation of the King, to give, grant, or
by any ways or means sell or alien all and singular the granted
premises, and every part and parcel thereof, to any person or
persons being willing to contract for and buy the same,"
which words were to be considered as restrictive or explanatory
of the preceding words of the charter, and as confining the rights
granted to the mere authority to sell or alien.
But it is very clear that this clause imposes no restriction or
explanation of the general terms of the grant. As the grantees held
as tenants in capite of the King, they could not sell or alien
without the royal license, and if they did, it was in ancient
strictness an
Page 11 U. S. 619
absolute forfeiture of the land. 2 Ins. 66; and after the
statute 1 Edw. III, ch. 12, though the forfeiture did not attach,
yet a reasonable fine was to be paid to the King upon the
alienation. 2 Ins. 67. Staundf. Prer. 27, 2 Bl.Com. 72. It was not
until ten years after the first charter (12 Ch. 2 ch. 24), that all
fines for alienations and tenures of the King in capite were
abolished. 2 Bl.Com. 77. So that the object of this clause was
manifestly to give the royal assent to alienations without the
claim of any fine therefor.
We are therefore satisfied that by virtue of the charter and the
intermediate grants, Lord Fairfax, at the time of his death, had
the absolute property of the soil of the land in controversy, and
the acts of ownership exercised by him over the whole waste and
unappropriated lands, as stated in the case, vested in him a
complete seizin and possession thereof. Even if there had been no
acts of ownership proved, we should have been of opinion, that as
there was no adverse possession, and the land was waste and
unappropriated, the legal seizin must be, upon principle,
considered as passing with the title.
On this point we have the satisfaction to find that our view of
the title of Lord Fairfax seems incidentally confirmed by the
opinion of the Court of Appeals of Virginia, in
Picket v.
Dowdell, 2 Wash. 106.
Johnson v. Buffington, 2 Wash.
116, and
Curry v. Burns, 2 Wash. 121.
The next question is as to the nature and character of the title
which Denny Fairfax took by the will of Lord Fairfax, he being, at
the time of the death of Lord Fairfax, an alien enemy.
It is clear by the common law that an alien can take lands by
purchase, though not by descent -- or in other words he cannot take
by the act of law, but he may by the act of the party. This
principle has been settled in the year books, and has been
uniformly recognized as sound law from that time. 11 Hen. IV, 26;
14 Hen. IV, p. 26; Co.Litt. 2b. Nor is there any distinction,
whether the purchase be by grant or by devise. In either case, the
estate vests in the alien. Pow.Dev. 316, &c., Park.Rep.
Page 11 U. S. 620
144. Co.Litt. 2b. not for his own benefit, but for the benefit
of the state, or in the language of the ancient law, the alien has
the capacity to take, but not to hold lands, and they may be seized
into the hands of the sovereign. 11 H. IV, p. 26. 14 H. IV, p. 20.
But until the lands are so seized, the alien has complete dominion
over the same. He is a good tenant of the freehold in a precipe on
a common recovery. 4 Leon 84; Goldsb. 102; 10 Mod. 128. And may
convey the same to a purchaser.
Sheafe v. O'Neile, 1 Mass.
256. Though Co.Litt. 52b, seems to the contrary, yet it must
probably mean that he can convey a defeasible estate only, which an
office found will divest. It seems indeed to have been held that an
alien cannot maintain a real action for the recovery of lands.
Co.Lit. 129b; Thel.Dig. ch. 6; Dyer 2b, but it does not then follow
that he may not defend, in a real action, his title to the lands
against all persons but the sovereign.
We do not find that in respect to these general rights and
disabilities, there is any admitted difference between alien
friends and alien enemies. During the war, the property of alien
enemies is subject to confiscation
jure belli, and their
civil capacity to sue is suspended. Dyer 2b;
Brandon v.
Nesbitt, 6 T.R. 23. 3 Bos. & Pull. 113; 5 Rob. 102. But as
to capacity to purchase, no case has been cited in which it has
been denied, and in
Attorney General v. Wheeden &
Shales, Park. 267, it was adjudged that a bequest to an alien
enemy was good, and after a peace might be enforced. Indeed the
common law in these particulars seems to coincide with the
jus
gentium. Bynk. Quest.Pub.Jur. ch. 7; Vattel, b.2, ch. 8, §
112, 114; Grot. lib. 2, ch. 6, § 16.
It has not been attempted to place the title of Denny Fairfax
upon the ground of his being an
antenatus, born under a
common allegiance before the American Revolution, and this has been
abandoned upon good reason; for whatever doubts may have been
formerly entertained, it is now settled that a British subject born
before, cannot, since the Revolution, take lands by descent in the
United States.
8 U. S. 4 Cranch
321,
Dawson's Lessee v. Godfrey.
But it has been argued that although D. Fairfax
Page 11 U. S. 621
had capacity to take the lands as devisee, yet he took to the
use of the commonwealth only, and had therefore but a momentary
seizin; that in fact he was but a mere trustee of the estate at the
will of the commonwealth, and that by operation of law, immediately
upon the death of the testator, Lord Fairfax, the title vested in
the commonwealth, and left but a mere naked possession in the
devisee.
If we are right in the position, that the capacity of an alien
enemy does not differ in this respect from an alien friend, it will
not be easy to maintain this argument. It is incontrovertibly
settled upon the fullest authority, that the title acquired by an
alien by purchase, is not divested until office found. The
principle is founded upon the ground, that as the freehold is in
the alien, and he is tenant to the Lord of whom the lands are
holden, it cannot be divested out of him but by some notorious act,
by which it may appear that the freehold is in another. 1 Bac.Abr.,
Alien C. 133. Now an office of entitling is necessary to give this
notoriety, and fix the title in the sovereign. So it was adjudged
in Page's Case, 5 Co. 22, and has been uniformly recognized. Park.
267; Park. 144; Hob. 231; Bro. Denizen, pl. 17; Co.Litt. 2b. And
the reason of the difference, why, when an alien dies, the
sovereign is seized without office found, is because otherwise the
freehold would be in abeyance, as an alien cannot have any
inheritable blood. Nay even after office found, the King is not
adjudged in possession, unless the possession were then vacant; for
if the possession were then in another, the King must enter or
seize by his officer, before the possession in deed shall be
adjudged in him. 14 H. VII, 21. 15 H. VII, 6, 20. Staundf.
Prerog.Reg. ch. 18, 54. 4 Co. 58a. And if we were to yield to the
authority of Staundford, Prer.Reg. ch. 18, 56, that in the case of
alien enemy, the King
"ratione guerrae," might seize
without office found, yet the same learned authority assures us,
"that the King must seize in those cases, ere he can have an
interest in the lands, because they be penal towards the party." 4
Co. 58b. And until the King be in possession by office found, he
cannot grant lands which are forfeited by alienage. Staundf.
Pre.Reg. ch. 18f, p. 54; Stat. 18 Hen. VI, ch. 6.
Page 11 U. S. 622
To apply these principles to the present case, Denny Fairfax had
a complete though defeasible title by virtue of the devise, and as
the possession was either vacant or not adverse, of course the law
united a seizin to his title in the lands in controversy, and this
title could only be divested by an inquest of office, perfected by
an entry and seizure where the possession was not vacant. And no
grant by the commonwealth, according to the common law, could be
valid, until the title was, by such means, fixed in the
commonwealth. It is admitted that no entry or seizure was made by
the commonwealth
"ratione guerrae" during the war. It is
also admitted, that no inquest of office was ever made pursuant to
the acts on this subject at any time. And it would seem therefore
to follow upon common law reasoning that the grant to the lessor of
the original plaintiff, by the public patent of 30 April, 1789,
issued improvidently and erroneously, and passed nothing. And if
this be true, and there be no act of Virginia altering the common
law, it is quite immaterial what is the validity of the title of
the original defendant as against the commonwealth, for the
plaintiff must recover by the strength of his own title, and not by
the weakness of that of his adversary.
But it is contended 1st that the common law as to inquests of
office and seizure, so far as the same respects the lands in
controversy, is completely dispensed with by statutes of the
commonwealth, so as to make the grant to the original plaintiff in
1789 complete and perfect -- and secondly, and further, if it be
not so, yet as the devisee died pending the suit, the freehold was
thereby cast upon the commonwealth without an inquest, and thus
arises a retroactive confirmation of the title of the original
plaintiff, of which he may now avail himself. -- As to the first
point we will not say that it was not competent for the legislature
(supposing no treaty in the way) by a special act to have vested
the land in the commonwealth without an inquest of office for the
cause of alienage. But such an effect ought not, upon principles of
public policy, to be presumed upon light grounds; that an inquest
of office should be made in cases of alienage, is a useful and
important restraint upon public proceedings. No part of the United
States seems to have been more aware of its importance or
Page 11 U. S. 623
more cautious to guard against its abolition, than the courts of
Virginia. It prevents individuals from being harassed by numerous
suits introduced by litigious grantees. It enables the owner to
contest the question of alienage directly by a traverse of the
office. It affords an opportunity for the public to know the
nature, the value, and the extent of its acquisitions
pro
defectu haeredis, and above all it operates as a salutary
suppression of that corrupt influence which the avarice of
speculation might otherwise urge upon the legislature. The common
law therefore ought not to be deemed to be repealed unless the
language of a statute be clear and explicit for this purpose.
Let us now consider the several acts which have been referred to
in the argument, from which we think it will abundantly appear that
during the war, the lands in controversy were never by any public
law vested in the commonwealth. We dismiss at once the act of 1777,
ch. 9, and of 1779, ch. 14, as they are restrained to estates held
by British subjects at the times of their respective enactments,
and do not extend to estates subsequently acquired.
The next act is that of 1782, ch. 8, the 24th sec., after
reciting that "since the death of the late proprietor of the
Northern Neck, there is reason to suppose that the said
proprietorship hath descended upon alien enemies," enacts, that
persons holding lands in said Neck shall retain sequestered in
their hands all quit-rents which were then due until the right of
descent should be more fully ascertained, and that all quit-rents
thereafter to become due shall be paid into the public Treasury,
and the parties exonerated from the future claim of the proprietor.
Admitting that this section, as to the quit-rents, was equivalent
to an inquest of office; it cannot be extended, by construction, to
include the waste lands of the proprietor. Neither the words nor
the intention of the legislature would authorize such a
construction. But it may well be doubted if, even as to the
quit-rents, the provision is not to be considered as a
sequestration
jure belli, rather than a seizure for
alienage, for it proceeds on the ground that the property
"had descended not upon aliens, but alien enemies. So far as the
treaty of peace might be deemed material in the case, this
distinction would deserve consideration. "
Page 11 U. S. 624
The next is the Act of 1782, ch. 33, which, after reciting that
"the death of Lord Fairfax may occasion great inconvenience to
those who may incline to make entries for vacant lands in the
Northern Neck," proceeds (sec. 3) to enact that all entries made
with the surveyors, &c., and returned to the office formerly
kept by Lord Fairfax shall be held as good and valid as those
heretofore made under his direction, "until some mode shall be
taken up and adopted by the general assembly, concerning the
territory of the Northern Neck." This act, so far from containing
in itself any provision for vesting all the vacant lands of Lord
Fairfax in the commonwealth, expressly reserves, to a future time,
all decisions as to the disposal of the territory. It suffers
rights and titles to be acquired exactly in the same manner, and
with the same conditions, which Lord Fairfax had by permanent
regulations prescribed in his office. No other acts were passed on
the subject during the war.
We are now led to consider the act of 1785, ch. 47 -- which has
presented some difficulty, if it stand unaffected by the treaty of
peace. The 4th sec. after a recital
"that since the death of the late proprietor, no mode hath been
adopted to enable those who had before his death made entries
within the said district according to an act, &c., Act 1782,
ch. 33, to obtain titles to the same,"
enacts that in all cases of such entries, grants shall be issued
by the commonwealth to the parties in the same manner, as by law is
directed in cases of other unappropriated lands. The 5th sec. then
declares that the unappropriated lands within the Northern Neck
should be subject to the same regulations, and be granted in the
same manner, and caveats should be proceeded upon, tried and
determined, as is by law directed, in cases of other unappropriated
lands belonging to the commonwealth. The 6th sec. extinguishes for
the future all quit-rents.
The patent of the original plaintiff issued pursuant to the 5th
sec. of this act.
It has been argued, that the act of 1785 amounts to a
legislative appropriation of all the lands in controversy. That it
must be considered as completely divesting the title of Denny
Fairfax for the cause of alienage, and
Page 11 U. S. 625
vesting it in the commonwealth. After the most mature
reflection, we cannot subscribe to the argument. In acts of
sovereignty so highly penal, it is against the ordinary rule to
enlarge, by implication and inference, the extent of the language
employed. It would be to declare purposes which the legislature
have not chosen to avow, and to create vested estates when the
common law would pronounce a contrary sentence and the guardians of
the public interests have not expressed an intention to abrogate
that law. If the legislature has proceeded upon the supposition
that the lands were already vested in the commonwealth, we do not
perceive how it helps the case. If the legislature, upon a mistake
of facts, proceed to grant defective titles, we know of no rule of
law which requires a court to declare, in penal cases, that to be
actually done which ought previously to have been done. Perhaps as
to grants under the 4th sec. where entries under the act of 1782,
ch. 33, it might not be too much to hold, that such grants conveyed
no more than the title of the commonwealth, exactly in the same
state as the commonwealth itself held it,
viz., an
inchoate right, to be reduced into possession and consummated by a
suit in the nature, or with the effect, of an inquest of office.
But we give no opinion on this point, because the patent of the
original plaintiff manifestly issued under the succeeding section
-- and upon a construction, which we give to this section, it
issued improvidently and passed no title whatever. That
construction is that the unappropriated lands in the Northern Neck
should be granted in the same manner as the other lands of the
commonwealth, when the title of the commonwealth was perfected by
possession. It seems to us difficult to contend, that the
legislature meant to grant mere titles and rights of entry, of the
commonwealth, to lands in the same manner as it did lands of which
the commonwealth was in actual possession and seizin. It would be
selling suits and controversies through the whole country, and
enacting a general statute in favor of maintenance, an offense
which the common law has denounced with extraordinary severity.
Consistent therefore with the manifest intention of the
legislature, grants were to issue for lands in the Northern Neck,
precisely in the same manner as for lands in other parts of the
state, and under the same
Page 11 U. S. 626
limitation,
viz., that the commonwealth should have, at
the time of the grant, a complete title and seizin.
We are the more confirmed in this construction by the act
concerning escheators, act 1779, ch. 45, which regulates the manner
of proceeding in cases of escheat, and was by a subsequent act, act
1785, ch. 53, expressly extended to the counties in the Northern
Neck. This act of 1779 expressly prohibits the granting of any
lands, seized into the hands of the commonwealth upon office found,
till the lapse of twelve months after the return of the inquisition
and verdict into the office of the general court, and afterwards
authorizes the proper escheator to proceed to sell in case no claim
should be filed, within that time, and substantiated against the
commonwealth. It is apparent from this act, that it was not the
intention of the legislature to dispose of lands, accruing by
escheat, in the same manner as lands to which the commonwealth
already possessed a perfect title. It has not been denied that the
regulations of this act were designed to apply as well to titles
accruing upon alienage, (which are not, in strictness, escheats),
as upon forfeitures for other causes; and, but for the act of 1785,
ch. 47, we do not perceive but that the vacant lands were, by the
devise of Lord Fairfax, in the Northern Neck, would have been
completely within the act regulating proceedings upon escheats.
The real fact appears to have been, that the legislature
supposed that the commonwealth were in actual seizin and possession
of the vacant lands of Lord Fairfax, either upon the principle that
an alien enemy could not take by devise, or the belief that the
acts of 1782, ch. 8, and ch. 33, had already vested the property in
the commonwealth. In either case it was a mistake which surely
ought not to be pressed to the injury of third persons.
But if the construction, which we have suggested, be incorrect,
we think that, at all events, the title of Hunter, under the grant
of 1789, cannot be considered as more extensive than the title of
the commonwealth,
viz., a title inchoate and imperfect; to
be consummated by an actual entry under an inquest of office, or
its equivalent, a suit and judgment at law by the grantee.
Page 11 U. S. 627
This view of the acts of Virginia, renders it wholly unnecessary
to consider a point, which has been very elaborately argued at the
bar, whether the treaty of peace, which declares "that no future
confiscations shall be made," protects from forfeiture, under the
municipal laws respecting alienage, estates held by British
subjects at the time of the ratification of that treaty. For we are
well satisfied that the treaty of 1794 completely protects and
confirms the title of Denny Fairfax, even admitting that the treaty
of peace left him wholly unprovided for.
The 9th article is in these words:
"It is agreed that British subjects who now hold lands in the
territories of the United States, and American citizens who now
hold lands in the dominions of his Majesty, shall continue to hold
them according to the nature and tenure of their respective estates
and titles therein; and may grant, sell or devise the same to whom
they please in like manner as if they were natives, and that
neither they nor their heirs or assigns shall, so far as respects
the said lands and the legal remedies incident thereto, be
considered as aliens."
Now we cannot yield to the argument that Denny Fairfax had no
title, but a mere naked possession or trust estate. In our
judgment, by virtue of the devise to him, he held a fee simple in
his own right. At the time of the commencement of this suit (in
1791) he was in complete possession and seizin of the land. That
possession and seizin continued up to and after the treaty of 1794,
which being the supreme law of the land, confirmed the title to
him, his heirs and assigns, and protected him from any forfeiture
by reason of alienage.
It was once in the power of the Commonwealth of Virginia, by an
inquest of office or its equivalent, to have vested the estate
completely in itself or its grantee. But it has not so done, and
its own inchoate title (and of course the derivative title, if any,
of its grantee) has by the operation of the treaty become
ineffectual and void.
It becomes unnecessary to consider the argument as to the effect
of the death of Denny Fairfax pending the
Page 11 U. S. 628
suit, because admitting it to be correctly applied in general,
the treaty of 1794 completely avoids it. The heirs of Denny Fairfax
were made capable in law to take from him by descent, and the
freehold was not, therefore, on his death, cast upon the
commonwealth.
On the whole, the Court is of opinion that the judgment of
the Court of Appeals of Virginia ought to be reversed, and that the
judgment of the District court of Winchester be affirmed with
costs, &c.
JOHNSON, J.
After the maturest investigation of this case that circumstances
would permit me to make, I am obliged to dissent from the opinion
of the majority of my brethren.
The material questions are
1st. Whether an alien can take lands as a devisee, and if he
can,
2d. Whether an inquest of office was indispensably necessary to
divest him of his interest for the benefit of the state?
3d. Whether the disability of the devisee was not cured by the
treaty of peace, or the treaty of 1794.
With regard to the treaty of peace it is very clear to me that,
that does not affect the case. The words of the 4th article
are,
"There shall be no future confiscations made, nor any
prosecution commenced against any person or persons for or by
reason of the part which he or they may have taken in the present
war."
Now should we admit, as has been strongly insisted, that to
escheat is to confiscate, it would still remain to show that this
was "a confiscation on account of the part taken by the devisee in
the war of the revolution." But the disability of an alien to hold
real estate is the result of a general principle of the common law,
and was in no wise attached to the individual on account of his
conduct in the revolutionary struggle. The alien who had taken part
with this country and
Page 11 U. S. 629
fought the battles of the states, may have been affected by it
no less than he who fought against us, and the member of any other
community in the world may as well have been the object of its
application as the subject of Great Britain. The object evidently
was to secure the individual from legal punishment, not to cure a
legal disability existing in him.
With regard to the bearing of the treaty of 1794 on the
interests of the parties, the only difficulty arises from the vague
signification of the words "now holding," made use of in the
article which relates to this subject. But in conformity with the
liberal spirit in which national contracts ought to be construed, I
am satisfied to consider that treaty as extending to all cases of a
rightful possession or legal title defeasible only on the ground of
alien disability and existing at the date of that treaty.
What then were the rights of the devisee in this case? and were
they in existence at the date of this treaty?
Whoever looks into the learning on the capacity of an alien to
take lands as devisee will find it involved in some difficulties.
There is no decided case, that I know of, upon the subject. And the
opinions of learned men upon it, when compared, will be found to
have been expressed with doubt, or scarcely reconcilable to each
other. The general rule is that an alien may take by purchase, but
cannot hold. Yet so fragile or flimsy is the right he acquires,
that, if tortiously dispossessed, no one contends that he can
maintain an action against the evictor. To assert that he has a
right and yet admit that he has no remedy appears to me rather
paradoxical. Yet all admit that the bailiff of the King cannot
enter on an alien purchaser until office found. But where a
freehold is cast upon the alien by act of law, as by descent,
dower, custody, &c., it is admitted that no inquest of office
is necessary to vest the estate in the King, and he may enter
immediately. Whether an alien devisee is to be considered as a
purchaser according to the meaning of that term as applied to an
alien, or whether his estate is to be considered as one of those
which are cast on him by operation of law, is an alternative,
either branch of which may be laid hold
Page 11 U. S. 630
of with some confidence. Chief baron Gilbert asserts, without
reservation, that a devise to an alien is void. Gilbert on devises
15. But Mr. Powell maintains that he takes under it as a purchaser.
Powell on Dev. 317. In support of Gilbert's opinion, it might be
urged that a devise takes effect under statute, and in that view
the interest may be said to be cast on the alien by operation of
law. Yet I have no hesitation in deciding in favor of the doctrine
as laid down by Powell. Not on the words of Lord Hardwick, as
quoted from Knight and du Plessis, for the judge there expressly
declines giving an opinion, but from a reference to the principle
upon which the doctrine is certainly founded.
The only unexceptionable reason that can be assigned why an
alien can take by deed, though he cannot hold, is that otherwise
the proprietor would be restricted in his choice of an alienee --
or in other words, in his right of alienation. And to declare such
a conveyance null and void would be attended with this absurdity,
that the estate would still remain in the alienor in opposition to
his own will and contract. It would therefore seem that the law on
this subject would be more satisfactorily expressed by asserting
that an alien is a competent party to a contract, so that a
conveyance, executed to him, shall divest the feoffer or donor, in
order that it may escheat. The tendency of this doctrine to favor
the royal prerogative of escheat would no doubt secure to it a
welcome reception, yet it is not too much to pronounce it
reasonable in the abstract. This reason is as applicable to the
case of a devise as of a contract, and in the technical application
of the term purchaser a devisee is included. But it is contended
that the grant to Lord Fairfax was a grant or cession of sovereign
power, and as such was assumed by the state when it declared itself
independent. Upon considering, as well the acts of the state, with
regard to this property, as the acts of Lord Fairfax himself, there
is reason to think that both acted under this impression. But to
decide on this question, we must look into the deed of cession, and
upon its construction the decision of this Court must depend. And
here, in every part of it, we find it divested of the chief
attributes of sovereignty -- not a power legislative, judicial or
executive given, and the words such as are adapted to convey an
interest,
Page 11 U. S. 631
but no jurisdiction. Some few royal prerogatives, it is true,
are expressly conveyed, and these unquestionably must have accrued
to the state upon the assertion of independence. But the interest
in the soil remained to the grantee. So far, therefore, I feel no
difficulty about sustaining the claim of the devisee. But did this
interest remain in him at the time of the treaty of 1794?
I am of opinion it did not. The interest acquired under the
devise was a mere
scintilla juris, and that scintilla was
extinguished by the grant of the state vesting this tract in the
plaintiff in error. I will not say what would have been the effect
of a more general grant. But this grant emanated under a law
expressly relating to the lands of Lord Fairfax authorizing them to
be entered, surveyed and granted.
The only objection that can be set up to the validity of this
grant is that it was not preceded by an inquest of office. And the
question then will be whether it was not competent for the state to
assert its rights over the alien's property, by any other means
than an inquest of office. I am of opinion that it was. That the
mere executive of the state could not have done it, I will readily
admit; but what was there to restrict the supreme legislative
power, from dispensing with the inquest of office? In the case of
Smith v. Maryland, this Court sustained a specific
confiscation of lands under a law of the state, where there was
neither conviction nor inquest of office. And in Great Britain, in
the case of treason, an inquest of office is expressly dispensed
with by the statute 33 H. VIII, c. 30. So that there is nothing
mystical, nor anything of indispensable obligation, in this inquest
of office. It is in Great Britain a salutary restraint upon the
exercise of arbitrary power by the Crown, and affords the subject a
simple and decent mode of contesting the claim of his sovereign;
but the legislative power of that country certainly may assert, and
has asserted, the right of dispensing with it, and I see no reason
why it was not competent for the Legislature of the State of
Virginia to do the same.
Several collateral questions have arisen in this case on which,
as I do not differ materially from my brethren,
Page 11 U. S. 632
I will only express my opinion in the briefest manner.
I am of opinion that whenever the case made out in the pleadings
does not in law sanction the judgment which has been given upon it,
the error sufficiently appears upon the record to bring the case
within the XXV section of the Judiciary Act.
I am also of opinion that whenever a case is brought up to this
Court under that section, the title of the parties litigant must
necessarily be inquired into, and that such an inquiry must, in the
nature of things, precede the consideration how far the law,
treaty, and so forth, is applicable to it; otherwise an appeal to
this Court would be worse than nugatory.
And that in ejectment, at least, if not in every possible case,
the decision of this Court must conform to the State of rights of
the parties at the time of its own judgment, so that a treaty,
although ratified subsequent to the decision of the court appealed
from, becomes a part of the law of the case and must control our
decision.
