the Northern Neck, of which the lands in controversy were part.

4. The commonwealth's grant of these lands to David Hunter, the plaintiff; and

5. The lease, entry, and ouster, in the declaration mentioned.

In settling the law upon this case, what was the court called to consider? In favour of the defendant they were called to consider these questions:

1. Had Lord Fairfax title?

2. Did that title pass to Denny Fairfax by the devise of his ancestor?

This last question divided itself into two others, namely, 1. Was the devise to Denny Fairfax ineffectual on the ground of his incompetency to hold, as an alien and subject of the British king; or

2. Was his title saved and covered by the treaty of peace of 1783.

In favour of Hunter the court were called upon by the case agreed to decide,

1. Whether the treaty of peace of 1783 could be construed as applying to this case; whether that treaty did not merely go to prevent future confiscations; and whether a previous confiscation had not been effected here?

2. Whether our act of assembly of 1782, confiscating the quit rents and subjecting the land to location, did not supply the place of an inquisition of escheat; withdraw the case from the operation of the treaty of 1783, and give validity to the grant to Hunter? or

2. If the act of '82 did not effect a compleat escheat, whether the act of '85 united with it, did not consummate the escheat, and, of course, the commonwealth's grant to the plaintiff?

4. If the act of '85 was to have any effect in the confiscation, was that act valid or not as being repugnant to the prior treaty? was the treaty to give way to that act, or the act to the treaty?

These are the points on which any court, settling the controversy on the case agreed, would be, unavoidably, compelled to pass; and hence it is clear that all the three cases deduced from the 25th section of the judicial act of congress, as giving appellate power to the Supreme court, appears, by the record, to have arisen in the case at bar.

1. The validity of a treaty is drawn in question, for a posterior act of the state legislature, that of 1785 is relied upon as consummating a confiscation against the faith of that treaty, and the decision of this court was against the validity of that treaty, in this particular.

2. The validity of a state law, that of '85, was drawn in question, as being repugnant to the treaty and the decision was in favour of the validity of the state law.

3. It is most clear that the construction of a treaty and its application to the case at bar, was drawn in question, and the decision of this court was against the right of Denny Fairfax, which was set up under that treaty.

This last is, in truth and substance, the whole and sole question raised by the record; for, on the one hand, Hunter did not deny,

1st. The title of Lord Fairfax; nor

2nd. The devise to Denny Fairfax; nor

3d. The treaty of peace.

So on the other the defendant did not deny,

1. That a grant had issued from the commonwealth to Mr. Hunter, nor

2. That this grant had issued under the several laws of the

state.

So that the very pivot of the controversy was the protection of the treaty on the one hand, and its non-application on the other. If the treaty, by a fair construction, covered the title of Denny Fairfax, his success was inevitable, for the rest of his title was not controverted. If the treaty did not, by a fair construction, apply to the case, the success of Mr. Hunter was inevitable for the rest of his title was not questioned.

So that the clear and single question upon the record was, whether the treaty by a fair construction did apply to the case so as to shield the devise to Denny Fairfax and perfect his title. It is not possible for the human mind to imagine a route by which a court could arrive at the decision of the title, put in controversy by this record, without encountering and crossing and settling the construction of the treaty. I answer the question of the court therefore with confidence that this is a case in which it appears by the record, that the application and construction of a treaty were drawn in question, and in which the decision was against the title set up under the treaty.

Mr. Williams, however, objects that the mere finding of the treaty does not by any means prove that the decision turned on the treaty; for there are many other facts found besides the treaty, and he adds that if such a finding would of itself, give the Supreme court appellate jurisdiction, it would be easy to give such jurisdiction in every case-in a common action of assault and battery, for example, it would be only necessary to introduce a finding of the treaty of peace, and the appellate power of the Supreme court would, at once, attach upon the

case.

My respect for Mr. Williams will lead me to give this objection a much graver answer than I think it merits; though such is the nature of the objection itself, that even the gravity of an answer becomes, in some degree, ludicrous. The objection proceeds from a misconception of the act of congress, and a misconception of our argument under it. We have never contended that the mere finding of a treaty in a case ·would, ipso facto, found the appellate jurisdiction of the Supreme court; on the contrary we have always said, and so says the act of congress, that the case itself must be of such a character as to draw in question and render inevitable, the application or construction of the treaty so found. Suppose, for example, in an action of detinue between two citizens for a horse; or in an action of ejectment between two citizens of the same state, both claiming under state grants, the carelessness No. XXIII.

Xx

artifice of counsel should introduce into a special verdict setting out the titles, the strange and irrelevant fact of the British treaty: neither title being set up under that treaty, nor in any manner connected with it, the question of its application or construction, could not possibly occur, but the decision of the court must, of necessity, stand wholly clear of it: hence in such a cause, the case put by the act of congress of a decision against a title set up under a treaty, could 'by no possibility arise. But is the case at bar a case of this character? Is the treaty of '83 an irrelevant fact which has strayed into this cause without having any relationship with, or bearing upon it? No, sir: it is a fact intimately and indissolubly blended with the question of title: it is the very shield of Denny Fairfax, rendering him safe and invulnerable as long as he can stand behind it, and the sole question upon the record is, whether he can lawfully stand behind it. If Mr. Williams will reflect but a moment on the course which the mind of a judge must take to adjust this title on the case agreed, he will perceive how necessarily and inevitably the question of the application and construction of the treaty arose, and how utterly impossible it was to decide that title, without deciding also the question of the treaty.

For example: It was a question of title to lands. Either title in the absence of its rival, was good. The court, therefore, was forced into a comparison of the titles. Either being perfect, by itself, the question must have arisen in the first place as to priority; because between titles equally complete in all other respects, that which is prior is best. In this comparison the title of the defendant must have had the advantage, because the title of Lord Fairfax, under which he claimed, is shown by the case agreed to have been complete, previously to the year 1736, whereas that of the commonwealth, under which Hunter claimed, is shown by the case agreed not to have arisen until after the death of Lord Fairfax in 1781. The defendant thus having the advantage of priority in his favour, it remained to be inquired whether this prior title of Lord Fairfax had been regularly transmitted to him. It is agreed that

1

Lord Fairfax died in '81, a citizen of Virginia, seized of this perfect title, and that he devised the same to Denny Fairfax the defendant. If this devise were good and effectual to pass the title to the defendant and cause it to abide in him, the deduction of title was complete, and Denny Fairfax occupied precisely the ground of his devisor, holding the prior and paramount title. In trying the efficacy of the devise, it was shown by the case agreed, that Lord Fairfax was competent as a devisor, and that the devise, in itself, was unexceptionable. The contest arose on the competency of the devisee. It was agreed that he was an alien, and therefore under the general law of the land, although competent to take lands by devise, incompetent to hold them; if then being an alien, he could hold at all, it must be on some ground which distinguished him from aliens at large, and the court were to look into the record to see if there were any thing therein which did so distinguish his case. The only facts on the record which could support such a distinction were these: 1. That he was a subject of the king of Great Britain. 2. The treaty of peace of '83 which protected the titles of British subjects against future confiscations. Did the treaty apply to this case and provide for it, was the only remaining question? If it did, there was an end of the cause in his favour; if it did not, his title was gone and that of his adversary stood without a rival. Was then the treaty an erratic and irrelevant fact in this cause? Is it not apparent that it was the very point of collision between the parties, the very nodus of the controversy? I can conceive no mode of reasoning more simple and conclusive than this, to show that this is a case in which it appears, upon the face of the record, that the application and construction of a treaty, were drawn in question; and hence, that the cases put by Mr. Williams of a treaty irrelevantly found bear no resemblance to this case, and furnish no inference which can fairly apply to it.

སྙ

To object that the treaty is not the only fact found in this case, but is merely one of several other findings, would be to require, by implication, a perfect absurdity; for it would be ta require that, in order to bring a case within the act of con