FAIRFAX'S This was the construction put upon it by lord FaifDEVISEE fax himself-for when he intended to appropriate any

v. part of the lands to his own use, he granted it to a third HUNTER'S person, and then took back the title from his own granLESSEE. tee. His deeds were not in the common form, but were made to resemble those of the crown.

The Defendants in error still contend that there is a difference between an alien friend and an alien enemy, as to the right to hold lands. In the latter case an of fice is not necessary. The right and possession are both thrown upon the commonwealth.

3. But the principal question is, what effect had the treaty of peace upon this devise?

It is said that the provision, that no future confiscations should be made, removes the disability of alienage.

The title of the commonwealth of Virginia was complete before the treaty of peace. Nothing more was necessary than to pursue the legal proceedings to put the state into possession. The office is no part of the title. This was complete at the death of lord Fairfax. It vested eo instanti in the commonwealth. If it passed to Denny Fairfax, it was to the use of the commonwealth. But if any title vested in Denny Fairfax, what kind of title was it? It could not descend from him. Upon his death the right and possession were cast upon the commonwealth. He had no beneficial interest. was only a trustee of an estate at will-Co. Lit. 2, (b) Plowd. 229. An office is only a suit brought by the king to establish his title by proof of the facts upon which his title depends. It is not to give title, but to prove the fact of alienage. The office is the remedy, not the right. It is only the means of gaining possession. Attornment to an alien is an attornment to the use of the king-Co. Lit. $10, (b.)

He

An alien cannot sell, Co. Lit. 42, (b.) He has nothing but a naked possession. It is said he is a good tenant to the precipe, and may suffer a common recovery; but it is for the use of the king.

The treaty of peace does not protect the title.

v.

Confiscation does not mean the recovery of a debt, FAIRFAX's or of any thing to which the state had a right before; DEVISEE but it is the assumption of a new right. The creation of a right by an act of sovereign power. It is a trans- HUNTER'S fer, not of property, but of the right of property, from LESSEE. individual to public use. But here the right existed before.

If this be not the general meaning of the word " confiscation," it is the meaning of it as used in the treaty. The contracting parties were speaking of the acts of the state governments which were intended as punishments for the part which certain persons had taken in the war. The estates to be restored were not such as had escheated by reason of alienage, but such as had been confiscated on account of the part taken in the war.

If the title was not protected by the treaty, then upon the death of Denny Fairfax it vested completely in the commonwealth. The Fairfax title was extinct. The commonwealth was estopped by its deed from claiming it, so that the title of Hunter was unquestionable.

As to the 9th article of the treaty of 1794, Denny Fairfax could continue to hold only what he then held, and as he then held. If he held any thing, it was, at most, an estate for life, remainder to the commonwealth in fee defeasible, during his life, by office found. Consequently, at his death, the commonwealth had an estate in fee. The treaty of 1794 was intended to protect those only who became aliens, by the separation of the two countries, while they held the estates, and not those who were aliens when their estates accrued. If it bad intended to protect the latter class, it would have protected estates acquired by descent as well as those acquired by devise for they are both within the same reason, yet it cannot be said that an alien, who, but for his alienage, would have inherited an estate upon a descent cast before 1794, is benefitted by that treaty. It cannot be said that he then held the estate of his ancestor which his ali. enage had prevented from descending upon him.

March 15th, 1813. The Court having taken time since last term to consider this case,

FAIRFAX'S STORY, J. delivered their opinion as follows, (MKRDEVISEE SHALL Ch. J. and TODD J. being absent.)

υ.

HUNTER'S The first question is, whether lord Fairfax was proLESSEE. 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, 2 and 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.

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 powerfreely and without mo"lestation 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

v.

absolute forfeiture of the land. 2 Ins. 66; and after FAIRFAX's the statute 1 Edw. 3 ch. 12, though the forfeiture did DEVISEE not attach, yet a reasonable fine was to be paid to the king upon the alienation, 2 Ins. 67, Staundf. Prer. 27. HUNTER'S 2 Bl. Com. 72, It was not until ten years after the first LESSEE. 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. 4, 26. 14, Hen. 4, 20. Co. Litt. 2 b. 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.

v.

FAIRFAX'S Rep. 144. Co. Litt. 2 b. not for his own benefit, but for DEVISEE the benefit of the state; or in the language of the an, cient law, the alien has the capacity to take, but not to HUNTER'S hold lands, and they may be seized into the hands of the LESSEE. Sovereign. 11 H. 4, 26. 14 H. 4, 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. Rep. 256. Though Co. Litt. 52 b, seeins 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. 129 b. Thel. Dig. ch. 6. Dyer, 2. b. 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, 2 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 & 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. 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. 4 Cranch, 321, Dawson's Lessee v. Godfrey.

But it has been argued, that although D. Fairfax