The Court having tákefi time since, last term to consider this case;
delivered their opinion as follows, (Mar-shade Ch. J.'and Todd J. being absent.)
The first question is, whether lord Fairfax was pro-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, % and 4 James 2, 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.
. i 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 mo- « Jestation 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 irfere 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 rоyal license, and if they did, it was in ancient strictness an
We are therefore satisfied, that by virtue of the charter and the. intermediate grants, lord Fairfax at Ihe 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 - ated in thе 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 tne 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 thе will of lord Fairfax, he being, at the time of the death of lord Fair-fax, 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.
4, 26. 14,
Hen.
4, 20.
Co. Litt.
2 5. Nor is there any distinction, whether the purchase be by grant or by devise. In either case, the estate vests in the alien.
Vow. Dev.
316,
tfc.
Park.
We do not find that in respect to thesе general rights and .disabilities, there is any admitted difiérem e between alien frunds 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.' Byer, 3 b. 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 The Attorney General v. Wheeden <Sp Shales, Park. Rep. 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. Valid, &.-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 allegiancе 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 Slates. 4 Crunch, 321, Dawson’s Lessee v. Godfrey
But it has been argued, that although D. Fairfax
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, argumeut. 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.p. 133. Now an officе of entitling is necessary to give this-notoriety, and fix the title in the sovereign. So it \yas adjudged in Page’s case, 5 Co. 22, and has been , uniformly recognized. Park. Rep 267, Park. 144. Hob. 231. Bro. Denizen, pi. 17, Co. Lilt. 2. b. 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 5 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. 7, 21. 15,11. 7, 6. 20. Staundf. Prerog. Reg. ch. 18, p. 54. 4 Co. 58. a. And if we were to yield to the authority of Staundford. (Prer. Reg. ch. 18, p. 56,) that in the case of alien enemy, the king “ ratiorie 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. 58. b. And until the king be in possession by office found, he cannot grant lands which are forfeited by alienage. Staundf. Pre. Reg. ch. 18.f. 54. .mat. 48 Hen. 6, ch. 6.
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., aсcording 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 ±“ rations guerras” 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 woiild seem therefore to follow, upon common law reasoning, that the grant to the lessor of the original Plaintiff, by the public patent of 30th 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 vain ity of the title of .the original Defendаnt as against t! e commonwealth; for the Plaintiff must recover by the strengfh 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 seizin e, 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 — Ami secondly, and further, if it bo not so, yet as the devisee died pending the suit, the freehold was thereby cast upon the commonwealth without an inquest, and th.us arises a retroactive confirmation of the title of the. original Plaintiff, of which he may now avail himself.-— As to the first point wc 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 ojfi.ee 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
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 1783,'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 rénts which were then due, until the right of descent should be more fully ascertained; and that allquitrents, 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 section1, 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 pi ..prietor. 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 quitrents, 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.tréaty. of peace might be deemed material in the case, this distinction would deserve consideration,”
We are now led tci consider the act of 1785, ch. 47 — 1 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 commоnwealth 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 grant-fed 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 flth see. 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 tó á 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
We are the more confirmed in this construction bjthe act concerning escheators, (act ±779, 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, sеized 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 if 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 thе 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, cln 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 legisla.lure supposed that the commonwealth were in actual seizin and possession of the vacant lands of lord Fair-fax, either upon the principle that an alien enemy could not take by devise, or the belief that the acts of 1782, ch.,8, arid ch» 33,.hád already Vested fhe property in the commonwealth. In either case it was a mistake which surely ought not to be prfesse.il 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 inore extensive than the title of the commonwealth, viz. a title inchoate and imperfect * to, be consummated by an actual entry ufuler an inquest of-office, or its equivalent* а suit and judgment at law by. the grantee..
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 con*tin ue to hold them according to the nature and tenure of their respective estates and titles therein j 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 liad, no title, but a mere naked possession or tfust estаte. 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 4791) 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 forfeitlirc.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 lias not so done, and its own inclínate 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 ¡is to the effect of the death of Denny Fairfax pending the
On the whole, the Court are of opinion that the jhdgment of the Court of appeals оf Virginia ought to be reversed, and that the judgment of- the District Court of Winchester be affirmed with costs, &c,
After the maturest investigation of this case that circumstances would permit me to mak ■» 1 am. obliged to dissent frqm 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 crire'd 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 docs not affect the case. The words of thé 4th article arc, •* There shaH .be no future confiscations “made, -nor any prosecution commenced .against any “person or persons for dr by reason of the part which “ lie or they may have taken in the present-war.”
Now should we admit, as has been strongly insisted, that .to es,cheat 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 thé revolu- '« t-ioh.” 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 revolutiоnary struggle. The alien who had taken part with this country and
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 ddvisee in this case ? and were they in existence at the date of this treaty ?
Whoever looks into the learning, on the cap ity of an‘alien to'take jands 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 witli doubt, or scarcely reconcileable to each other. The general rule is, that an alien may take by purchase, but cannot hold. Yet so fragile, or ijfimsy is the right he acquires, that, if tortiously dispossessed, no one contends that lie can maintain an action against the evictor. To assert that he has a rigid, and yet adroit-that he lias 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-descеnt', 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 tlie mcaning of that term as applied.to an alien, or whether 1ns estate is to be considered as one of those which are cast, on him by operation of law, is án alternative, either branch of vvliich may be laid hold
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 hi's 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 оpposition to his own will and contract. It would therefore seem that the law on this subject would be more satifactorily 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 cаse of a devise as of. a con- ■ trad, and.in the technical-application of the terin
purchaser
a deyisce 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 ads 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, wе find it divested of.the chief attributes of sovereignty.— not # power .legislative, judicial or executive given, and the words such as are adapted to convey an interest,
I. am of opinion it did. not. The interest acquired under tlie 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 hate been the effect of a more general grant. But this grant emanated under a law expressly relating to the- lands of lord Fairfax authorizing thorn 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 án 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, Twill readily-admit; but what was there tq restrict the supreme legislative power, from dispensing with the inquest of office l In the case of Smith, and• the state of 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 casé of treason, an inquest of office is expressly dispensed with by the statute S3, II. 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 dectent mode of cоntesting 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 sec no reason why it was not competent for the legislature of the state of Virginia to do the sáme.
Several collateral questions have arisen, in this case or which, as I do not differ materially from my bre
I am of opinion that whenever the case, made out in the pleadings, does not, in law, sanction the judgment which lias been given upon it, the error sufficiently appears upon the record to bring the case within the XXV sectiоn '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 enquired iiito, and that' such an enquiry must, in the nature of, things, precede the consideration how far the law, treaty, and soforth, is applicable to it; otherwise an appeal to - this Court would be worse than nugatory.
' And that iti ejecfynent at least, if nót 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 frojn, becomes a part of the law.of the case and must control our decision.