THE

AMERICAN LAW JOURNAL.

VIRGINIA-COURT OF APPEALS.

FAIRFAX'S Devisee v. HUNTER.

The 25th section of the judicial act of congress, giving appellate jurisdiction to the Supreme court of the United States, in certain cases therein specified, to re-examine, and reverse or affirm, the decisions of the Supreme state courts, is unconstitutional.

THE original case was determined in the court of Appeals of Virginia, by judges Fleming and Roane, and is reported in vol. 1. p. 218. of Munford's Virginia Reports. The following succinct state of the case, by judge Roane, in giving his opinion, is full enough for our present purpose.

"This was an ejectment, brought by the appellant (David Hunter) against Denny Fairfax, under whom the appellee (devisee of David Fairfax) claims in the District court of Winchester.

"At the trial, the parties argued a case in lieu of a special verdict. That case agrees, inter alia, various acts of assembly respecting the territory of the Northern Neck, as is therein more particularly stated; the treaty of peace of 1783, between the United States and the king of Great Britain; the act of 1784, respecting future confiscations; that lord Fairfax (the proprietor No. XXIII. Rr

of the Northern Neck) died, a citizen of this commonwealth. in December 1781, having devised his lands in the Northern Neck to Denny Fairfax, who was born in England, in the year 1750, and has never become a citizen of Virginia, nor of any of the United States; that the land in controversy was a part of the lands in that territory called and described by lord Fairfax, as waste and ungranted land; that the appellant (Hunter) obtained a grant therefor, from the commonwealth of Virginia, on the 30th of April, 1789, entered, and was possessed in pursu- . ance thereof, until ejected; and that no inquisition of escheat or forfeiture was ever found 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 seignoral 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 (Fairfax's devisee), from which an appeal was taken by the appellant (Hunter) to this court. It is necessary here to state, that the judgment was rendered the 20th day of April, 1794; which accounts for the omission to state in the case agreed, either the treaty of 19 November, 1794, between the United States and Great Britain, or the act of compromise of 10 October, 1796, between the commonwealth and the purchasers under Denny Fairfax.

"On the part of the appellant (Hunter) 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 relion 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 (Hunter), even if it were not complete without it.

"On the part of the appellee (Fairfax's devisee), 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 equivalent act, and that no such act had taken place prior 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 (being passed subsequent to the judgment in this case) does not affect that it, and cannot be introduced into the cause so as to vary Judgment."

The opinion of judge Roane was in favour of Hunter, on all the points above stated; judge Fleming's opinion was in favour of Fairfax's devisee, on all the points but the last; on which he agreed that the act of compromise of 1796* vested a com

*This act, reciting a controversy between the commonwealth of Firginia and the devisees of lord Fairfax, and a resolution of the legislature, that in case the devisees of lord Fairfax, or those claiming under them, would relinquish all claim to lands, supposed to lie within the Northern Neck, which were waste and unappropriated at the time of lord Fairfax's death, it would be advisable for the commonwealth to relinquish all claim to any lands specifically appropriated by the said lord Fairfax to his own use, either by deed or actual survey; and reciting, that this proposal had been accepted:-for carrying the said agreement and accommodation into effect, Enacted, “That upon the execution of a deed by Denny Fairfax, or those having title under him or lord Fairfax, extinguishing, on behalf of the commonwealth, his or their title to all lands lying within the Northern Neck, which, by the terms of the above recited proposal and agreement, he or they are bound to relinquish; all claim, right, and title of the commonwealth of Virginia, in and to any lands lying in the said Northern Neck, which are by the terms of the said proposal and agreement to be relinquished, shall from thenceforth be extinguished, null, and void; and the said Denny Fairfax, and those claiming under him, and his or their heirs, shall hold the same, as if he the said Denny had been a native citizen

plete title in Hunter. The result was that the judgment of the District court for Fairfax's devisee was reversed, and judgment entered for Hunter.

To this judgment Fairfax's devisee obtained a writ of error from the Supreme court of the United States; where the judgment of the court of Appeals of Virginia was reversed, and that of the District court of Winchester affirmed. Upon which the Supreme court of the United States sent to the court of Appeals of Virginia the following mandate:

"United States of America, to wit: the president of the United States, to the honourable the judges of the court of Appeals in and for the commonwealth of Virginia, greeting: Whereas lately, in the court of Appeals in and for the commonwealth of Virginia, in a cause wherein Timothy Trytitle, lessee of David Hunter, was plaintiff and appellant, in said court, and Philip Martin, heir at law and devisee of Denny Fairfax, deceased, was defendant and appellee, in a plea of ejectment (the same being an appeal from the court held for the district, &c.) the said court of Appeals did, by judgment of said court, reverse and annul the judgment of the said court, for the district, &c. with costs, and did give judgment for the appellant in the said court of Appeals, against the said appellee, and the costs of the said appellant in the said District court; as by the inspection of the transcript of the record of the said court of Appeals, which was brought into the Supreme court of the United States, by virtue of a writ of error, agreeably to an act of congress in such case made and provided, fully and at large appears. And whereas, in the term of February, 1813, the said cause came on to be heard in the said Supreme court, on the said transcript of the record of the said court of Appeals, and was argued by counsel; on consideration whereof this court is of opinion that there is error in the judgment of the court of Appeals in and for the commonwealth of Virginia: It is therefore adjudged and ordered that the judgment of the court of Appeals in and for the commonwealth of Virgiof this commonwealth, and as if no escheat or forfeiture thereof had ever taken place; any act to the contrary notwithstanding."

nia, in this case, be and the same is hereby reversed and annulled, and that the judgment of the District court of Winchester be affirmed, with costs; and it is further ordered that the said cause be remanded to the said court of Appeals, in and for the commonwealth of Virginia, with instructions to enter judg ment for the appellant, Philip Martin—and the same is hereby remanded accordingly. You therefore are hereby commanded, that such proceedings be had in the cause as, according to right and justice, and the laws of the United States, and agreeably to said judgment and instructions of said Supreme court, ought to be had, the said writ of error notwithstanding. Wit ness, &c."

When this mandate was presented to the court of Appeals of Virginia,, that court, after much reflection, informed the bar, "that it had doubts whether it ought to register and enforce the mandate? whether this was a case in which jurisdic, tion was given to the Supreme court of the United States by the judicial act of congress? whether it was shown of record that any decision was given by this court against the validity or application of any treaty? and whether the jurisdiction exercised in this case by the Supreme court of the United States be justified by the constitution?" Upon these points the court desired to hear the counsel of the parties, and any other gentleman who was disposed to express his sentiments, the questions being of great delicacy, and of public concernment.

These points, thus suggested, were accordingly argued by Wirt and Leigh, of counsel for Fairfax's devisee, and by Williams, of counsel for Hunter; and (in consequence of the inyitation of the court) by Nicholas, attorney-general of Virginia, and Hay, then district attorney of the United States.

Leigh, for Fairfax's devisee. The doubts suggested by the court are resolvable into two questions: Is the judicial act of congress, giving the Supreme court of the United States appellate jurisdiction over the Supreme state courts, in the cases therein specified, constitutional? If so, does it give such appellate jurisdiction in this case? But there is a preliminary question, which I must beg the court to consider: To which does it