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APRIL, 1810.

Hunter

V.

Fairfax's
Devisee.

in relation to this land, under the ordinary acts on this subject, as extended to the said territory since the death of Lord Fairfax.

Referring to the case itself for a more particular statement, these are the facts which seem most important in the present instance: there are other facts which seem to relate to the question whether Lord Fairfax had an absolute fee estate in the soil of the said territory, or only a seignioral right thereto; a question unnecessary to be stirred in the present instance, as my opinion will go upon the admission that he had the former. The District Court gave judgment for the appellee, from which an appeal was taken by the appellant to this Court. It is necessary here to state that the judgment was rendered the 24th of April, 1794, which accounts for the omission to state in the case agreed, either the treaty of November 19, 1794, between the United States and Great Britain, or the act of compromise of October 10, 1796, between the Commonwealth of Virginia and the purchasers under Denny Fairfax.

On the part of the appellant it is contended, that Denny Fairfax was, at the time of the devise in question, and ever after, an alien, and incapable of holding lands in this Commonwealth; that, admitting an inquest of office to have been necessary under the general laws as applying to ordinary cases, the several acts of Assembly, stated in the case, respecting the mode of acquiring titles to waste and unappropriated lands in the Northern Neck, were equivalent thereto, and supplied the place thereof, in relation to such lands, and justified the grant by the Commonwealth; and that the act of compromise of 1796, aforesaid, ceded the title to the appellant, even if it were not complete without it.

On the part of the appellee, on the contrary, it is contended, that the original appellee, Denny Fairfax, was capable of taking and holding the land devised to him, until devested by an inquest of office, or some

1810.

Hunter

V.

Fairfax's
Devisee.

equivalent act; and that no such act had taken place prior APRIL, to the treaty of peace, which, it is further alleged, protected his property, and released the right of the Commonwealth to the land in question: it is also contended, that the act of compromise aforesaid (being passed subsequent to the judgment in this case) does not affect it, and cannot be introduced into the cause so as to vary that judgment.

In the case of Reed v. Reed, (MS. April, 1805,) it was solemnly decided by this Court, that a man standing in the predicament of Denny Fairfax, is to be considered as an alien under our laws, and that the treaty of peace did not operate to protect or enlarge the inheritable rights of British antenati accruing after the date thereof. These were the points actually before the Court in that case, and, therefore, judicially decided: every thing which may have fallen from any of the Judges in relation to other points, or to topics not necessarily presented by the case, I conceive to be extrajudicial, and, as such, not entitled to the weight of binding authority. It was not, for example, decided, on the other hand, that the descents to British antenati accruing between the epoch of the declaration of our independence and that treaty, were protected and enlarged thereby; or, in other words, that that treaty should be construed to arrest the operation of the ordinary laws of escheat and forfeiture of the several states: much less was it decided, in that case, or any other within my knowledge, that the several legislative acts stated in the verdict were incompetent to perfect the title of the Commonwealth to the land in question, as being equivalent to inquisitions of office. however, although such were the only points necessarily and judicially decided in the case of Reed v. Reed, the question touching the operation of the treaty upon prior cases, was discussed much at large by myself, which question now stands for the opinion of this Court, I must beg leave to refer to a part of my opinion in that case, as containing the grounds of my opinion in this. What was then entirely extrajudicial, and inserted only from the difficulty of taking

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As,

APRIL, 1810.

Hunter

V.

Fairfax's
Devisee.

a partial view of the subject, I beg leave now to adopt and
render judicial, it being called for by the actual question de-
pending before us. I regret the necessity of reading any part
of that opinion; which arises from the lapse of time since it
was delivered, and the inconvenient circumstance that the
decisions of this Court, of that period, have not yet seen the
light, and exist only perhaps in a single manuscript.
I re-
gret it, however, the less, because I shall take the liberty,
en passant, to fortify some of the positions then taken, by
means of notes of some subsequent decisions in the Supreme
Court of the United States, and other authorities. If the
opinion is long, it must be admitted that the question is im-
portant; and I offer it also by way of apology, that we had
then to explore the subject in the first instance.

[Here Judge ROANE, read from the notes of his opinion in the case of Reed v. Reed, that part thereof which immediately relates to the present question.*]

I have thus endeavoured to shew by referring to and adopting the sentiments I delivered in the case of Reed v. Reed, that the treaty of peace has nothing to do with the laws of alienage of the several states; that, if it had any effect upon rights like the present, it would be to enlarge a null and defeasible interest into an absolute and indefeasible one, contrary to what is contended for, that the treaty was to protect rights antecedently existing, and that this construction (while there is no strong necessity for it) is opposed by many and insurmountable objections. In relation to cases happening after that treaty, the decision in Reed v. Reed is a direct authority in the negative: but the question relating to prior cases has never been decided, that I can learn, either in this Court or in the Supreme Court of the United States. It was not decided in the case of Marshall v. Conrad. (MS.) In that case Judges FLEMING and CARRINGTON expressly waived the consideration of the

* See Appendix.

APRIL, 1810.

Hunter

V.

Devisee.

operation of the treaty upon it, as being rendered unnecessary by the act of compromise of 1796. Judge Fleming considered the case, also, as embraced by the treaty of 1794; as to which, however, his opinion seems to be differ- Fairfax's ent from that of the Supreme Court of the United States in the case of Dawson v. Godfrey, 4 Cranch, 321. in which it was held, that a British antenata could not recover lands. which descended upon her in Maryland, in the year 1793. Keposing in that case, therefore, upon the ground of the compromise, in which, I believe, the other members of the Court (myself dissenting) entirely concurred, these Judges did not enter into the great question now before us, which therefore is not concluded by that decision. As for the case of The Commonwealth v. Bristow, (MS., Spring term, 1806,) I consider it to be in favour of the appellants. While it decides that a confiscation, which is complete prior to the date of the treaty, (which I shall endeavour to shew was the case in the present instance,) is not affected thereby, it passes no opinion as to the operation of the treaty upon the ordinary laws of alienage of the several states; for the confiscation in question in that case was under the legislative act of 1779, which, the Court properly admitted, (without any inquiry as to the question of alienage,) vested all British property, then holden, in the Commonwealth, on the ground of its being the property of enemies; and that act (as I think the act of 1782 may be) was properly compared to a general bill of attainder. That decision, however, is important on account of the analogy which holds, as aforesaid, between the general inquisition (if I may so express it) contained in the act of 1779, and that resulting from the act of 1782, hereafter mentioned, for taking possession of the vacant lands in the Northern Neck. It is also important in deciding (or considering the case of Reed v. Reed to have decided) that British subjects were aliens here from the date of the declaration of independence, as is before abundantly stated; from whence it would follow that stronger expressions in the treaty would be necessary to

APRIL,
1810.

Hunter

V.

Fairfax's
Devisee.

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operate the effect in question, than under a contrary sup position. The question before us is, therefore, I conceive, entirely open.

Being decidedly of opinion, for the reasons already stated, that neither the treaty of peace, nor the act of 1784 respecting future confiscations, related at all to the subject of alienage, it follows, in my judgment, that the act of 1785, c. 67. was undoubtedly competent to vest the possession of the vacant lands of the Northern Neck in the Commonwealth. Except for the bar supposed to be set up by the treaty, to the power of the legislature, this, I presume, would be admitted by the appellee's counsel themselves: but, even admitting the application of the treaty to the case before us, I will go further and contend, that the title of the Commonwealth to the vacant lands of the Northern Neck was perfected before the date of that instrument.

Lord Fairfax having died in 1781, the legislature of the then sovereign State of Virginia, premising that they had reason to believe that the whole of that extensive territory

had devolved on alien enemies, turned their attention to the (a) Ch. Rev. subject in October, 1782. By their act of that session,(a) p. 176. s. 24. they sequestered the quit rents then due in the hands of the land-holders, ordered all quit rents thereafter accruing to be paid into the treasury, and exonerated the said landholders therefor. I know of no means more efficacious than this, to have taken possession of the quit rents, and even of the granted lands in that territory, so far as a title thereto existed in Lord Fairfax; and, although in May, (b) Ibid. 206. 1783,(b) they released to his executors all the quit rents due at the time of his death, they retained their hold on those subsequently arising, until they finally abolished them by the act of 1785. So much for the quit rents and granted lands in that territory. As to the vacant lands thereof, by (e) Ibid. 180, their act of 1782, (c) after premising that by Lord Fairsession, s. 3. fax's death great inconveniences would accrue to those inclined to make entries for vacant lands in the Northern Neck, they enacted "that all entries made with the surveyors

c. 35 of Oct.

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