rents, the inhabitants of the Northern Neck shall be ex- FAIRFAX'S onerated from the future claim of the proprietor.

DEVISEE บ.

"An act concerning surveyors," [Oct. 1782, ch. 33, HUNTER'S sec. 3-vide id. p. 180.] Recites that the death of lord LESSEE. 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 mode shall be taken up and adopted by the general assembly, concerning the territory of the Northern Neck.

"An act for safe keeping 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 Repealed.]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. p. 45.]

FAIRFAX'S An act to amend the foregoing, [October, 1783, ch. 27, DEVISEE vide id. p. 204,] Lands or slaves, which, by virtue of the former act, have, or shall become escheatable to the HUNTER'S Commonwealth, for defect of blood, shall descend, and LESSEE. be deemed to have descended, agreeable to the limita

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tions of the deed or will creating such estates: Provided, this act shall not extend to any lands or slavesescheated and sold for the use of the commonwealth.

C, LEE and JONES, on the part of the Plaintiff in error, contended,

1st. That lord Fairfax was, at his death, seized of an absolute and unconditional estate of inheritance in the whole of that description of land, within the boundaries of his letters patent, designated by him as "waste and ungranted;" that is to say, in all the lands within those boundaries, except such as had been parcelled out into tenements, and granted in fee, by himself or his ancestors, or predecessors, or by his or their consent or authority; and that he was in the actual seizin and possession of the soil, with the like title to the immediate pernancy and fruition of the profits, and under the like sanctions, as ordinary proprietors in fee, under grants derived from the crown prior to the revolution.

2d. That the estate, by virtue of the will of lord Fairfax, vested in Denny Fairfax, the devisee, and has never been divested out of him by office found and seizure, nor by any equivalent mode of confiscation whatsoever; and that the treaty of peace found him seized of the estate unaltered from the condition in which it was originally taken under the devise.

3d. That the treaty of peace prohibited the confiscation of the estate, whether by inquest of office, or by any other mode whatsoever; and so operated a release and confirmation to the British proprietor, whose title was again explicitly acknowledged and confirmed by the treaty of 1794; which completely removed every in capacity and disability that might possibly be supposed to remain in him, as a landed proprietor.

4th. That the patent, under which the Defendant in error claims the land in question, was not authorized by any

pre-existing law of Virginia, but was in direct contra- FAIRFAX'S vention of the treaty of peace, and of the statute of DEVISEE Virginia, enacted expressly in execution of the treaty,

v.

and strictly enjoining the observance of its stipulations HUNTER'S with good faith: and, therefore, the said patent conveys LESSEE. no title to the Defendant in error.

1. Upon the first point they relied upon the express words of the grant, from the crown to the original patentees, and the following cases: 2, Wash. 113, Picket v. Dowdall-id. 120, Johnson v. Buffington-id. 125, Curry v. Burns-1, Wash. 34, Birch v. Alexander-and 2, Dall. 99, McCurdy v. Potts.

2. The estate, by the devise, vested in Denny Fairfax, who continued to hold the same till the treaty of peace. Although an alien enemy, he could take and hold until office found. The law is perfectly settled that an alien can take by purchase, although he cannot take by descent. In this respect there is no difference between an alien enemy and an alien friend. He took a fee simple subject to the right of the sovereign to seize it. Co. Lit. 2, (b)-5, Co. 52, Page's case—9, Co. 141 (a)—2, Bl. Com. 293, Powell on dev. 316—2, Vent. 270.

It is essential to the Plaintiffs title that the estate should have vested in Denny Fairfax, for if it did not, it could not escheat to the commonwealth under whom the Plaintiff claims,

It is one of the principles of the common law, upon which the security of private property from the grasp of power depends, that the crown can take only by matter of record. 3, Bl. Com. 259. Those authorities which say an alien may take, but cannot hold, clearly mean that he cannot hold against the claim of the crown asserted in a legal manner-Co. Lit. 2, a & b. An alien may suffer a common recovery-Goldsb. 102. 4, Leon, 82. Bro. tit. Denizen and Alien, 17. And it is expressly laid down that only the tenant of the freehold can suffer a common recovery-3, Bl. Com. 356-7. But he could not be tenant of the freehold unless the estate vested and remained in him-1, Bac. ab. 133. The case of an alien purchasing and being afterwards made a

v.

FAIRFAX's denizen is very strong, for in that case, although the DEVISEE lands be forfeitable they descend. This could not be if the estate did not remain in the alien from the time HUNTER'S of his purchase till his becoming a denizen. It is also LESSEE. laid down that if an alien and a subject purchase jointly, the estate will survive upon the death of the alien, unless office be found, consequently the estate remained in the alien until his death. It is expressly decided in Page's case, 5, Co. 52, that until office found, nothing vests in the king. Nichol's case, 2, Plowden, 481, 486, 24 Vez. 589, Duplessis's case-, Co. 58, Sadler's case.

In this case no office was found, nor any equivalent act done to vest the estate in the commonwealth before the treaty of peace, of 1783. The only act on the subject passed in 1782, ch. 33. sec. 3-Chancery revisal, 180. This manifests no intention to confiscate. On the contrary by making the entries for lands in the Northern Neck returnable to the former office of lord Fairfax, the legislature show a disposition not to molest his title.

The treaty of peace then found the freehold of the land in Denny Fairfax.

3. That treaty released the forfeiture and no subsequent act of the legislature could affect the title.

The 5th article engages that Congress shall earnestly recommend the restoration of confiscated estates; and the 6th article stipulates that "no further confiscation shall be made.”

The term "confiscation" embraces every case of the money or estate of au individual, brought into the treasury in virtue of any forfeiture; and in this sense it is generally used in treaties. Cowell Tit. confiscation, 1, W. Bl. 183. 3, Dall. 234. 1, Bl. Com. 299.

Lands acquired by an alien are, on that account, liable to forfeiture. 1, Bl. Com. 372-2, Bl. Com. 274. Escheat is one mode of confiscation. Confiscation law of Virginia, 1779. 2, Bl. Com. 243, 244, 252, 272, 293.

The 5th article of the treaty illustrates the 6th. Why should congress recommend the restoration of confis

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cated estates belonging to real British subjects, if they FAIRFAX's were to be immediately taken back upon the plea of DEVISEE alienage? If an estate had been thus restored to a British subject under the 5th article, the 6th would have HUNTER'S protected him in the enjoyment of it, or the 5th would LESSEE. have been wholly nugatory. There was no provision, in the treaty, to protect restored estates, but the prohibition of future confiscations contained in the 6th artitle. If in one case the term, confiscation, in that article, meant confiscation by reason of that alienage which was the consequence of the part taken in the war, why not give it the same meaning in all cases of alicnage arising from the same cause? Denny Fairfax became an alien by reason of the part he took in the war. He chose to take part with Great Britain, and thereby became an alien, whereby his land became liable to confiscation according to the laws of Virginia. Whether the confiscation was to be mediately or immediately the consequence of the part taken in the war, was immaterial. It would have been a "future confiscation by reason of the part taken by him in the war." Any subsequent act of confiscation therefore by the state of Virginia, would have been void as being contrary to the express stipulation of the treaty. Thomas Parker's Rep. 267, 161, Co. Lit. 2, (b) Hargrave's note 4.

The treaty of 1794, is merely declaratory of the effect of the treaty of peace. It makes no new provision.

HARPER, contra.

1. As to the nature of lord Fairfax's title to the waste and unappropriated lands.

This title was not that of a common subject. It was a grant by the crown, of the same right to dispose of the lands which the sovereign had. It was a right to grant the lands to individuals, and to receive the services and quitrents due therefor. It was not contemplated that he himself should occupy the lands. It was a mere delegation of a part of the sovereign power, and so far as it was executed by him, it passed, with the other rights of sovereignty, to the commonwealth of Virginia, at the time of the revolution.