Fairfax's Devisee v. Hunter's Lessee. 7 C.

jects 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 [*628] the effect of the death of Denny Fairfax pending the *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 are 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 devest him of his interest for the benefit of the State?

3d. Whether the disabilty 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

Fairfax's Devisee v. Hunter's Lessee. 7 C.

does not affect the case. The words of the fourth 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 fought the battles of the States, may [* 629 ] 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, curtesy, &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

Fairfax's Devisee v. Hunter's Lessee. 7 C.

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 [*630] alternative, either branch of which may be laid hold of

with some confidence. Chief Baron Gilbert asserts, without reservation, that a devise to an alien is void. (Gilbert on Devises, p. 15.) But Mr. Powell maintains that he takes under it as a purchaser. (Powell on Devises, 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 Hardwicke, 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 [*631] convey an interest, 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.

Fairfax's Devisee v. Hunter's Lessee. 7 C.

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. The State of Maryland, (6 Cranch, 286,) 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 any thing 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, *I [*632 ] 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 25th section of the Judiciary Act.1

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

11 Stats. at Large, 85.

Fairfax's Devisee v. Hunter. 7 C.

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 rati fied subsequent to the decision of the court appealed from, becomes a part of the law of the case and must control our decision.

1 W. 304; 3 W. 594, 610; 8 W. 464; 3 P. 242; 14 P. 122, 353, 614; 16 P. 367; 5 H. 233.