The Society For the Propagation of the Gospel In Foreign Parts v. the Town Ofwilliam Wheeler

• Citation: 8 Wheat. 464,21 U.S. 464,5 L.Ed. 662
• Decision Date: 12 March 1823
• Docket Number: NEW-HAVE,AND
• Parties: THE SOCIETY FOR THE PROPAGATION OF THE GOSPEL IN FOREIGN PARTS v. THE TOWN OFWILLIAM WHEELER
• Court: United States Supreme Court

21 U.S. 464

5 L.Ed. 662

8 Wheat. 464

THE SOCIETY FOR THE PROPAGATION OF THE GOSPEL IN

FOREIGN PARTS

v. THE TOWN OF NEW-HAVEN, AND WILLIAM WHEELER.

March 12, 1823

THIS case came before the Court upon a certificate of a division in opinion of the Judges of the Circuit Court for the District of Vermont. It was an action of ejectment, brought by the plaintiffs against the defendants, in that Court. The material facts, upon which the question of law arose, were stated in a special verdict, and are as follow:

By a charter granted by William III., in the thirteenth year of his reign, a number of persons, subjects of England, and there residing, were incorporated by the name of 'The Society for the Propagation of the Gospel in Foreign Parts,' in order that a better provision might be made for the preaching of the gospel, and the maintenance of an orthodox clergy in the colonies of Great Britain. The usual corporate powers were bestowed upon this society, and, amongst others, it was authorized to purchase estates of inheritance to the value of 2000 pounds per annum, and estates for lives or years, and goods and chattels, of any value. This charter of incorporation was duly accepted by the persons therein named; and the corporation has ever since existed, and now exists, as an organized body politic and corporate, in England, all the members thereof being subjects of the king of Great Britain.

On the 2d of November, 1761, a grant was made by the governor of the province of New-Hampshire, in the name of the king, by which a certain tract of land, in that province, was granted to the inhabitants of the said province, and of the king's other governments, and to their heirs and assigns, whose names were entered on the grant. The tract so granted, was to be incorporated into a town, by the name of New-Haven, and to be divided into sixty-eight shares, one of which was granted to 'The Society for the Propagation of the Gospel in Foreign Parts.' The tract of land, thus granted, was divided among the grantees by sundry votes and proceedings of a majority of them; which, by the law and usage of Vermont, render such partition legal. The premises demanded by the plaintiffs, in this ejectment, were set off to them in the above partition, but they had no agency in the division, nor was it necessary, by the law and usage of Vermont, in order to render the same valid.

On the 30th of October, 1794, the Legislature of Vermont passed an act, declaring, that the rights to land in that State, granted under the authority of the British government, previous to the revolution, to 'The Society for the Propagation of the Gospel in Foreign Parts,' were thereby granted severally to the respective towns in which such lands lay, and to their use for ever. The act then proceeds to authorize the selectmen of each town, to sue for and recover such lands, if necessary, and to lease them out, reserving an annual rent, to be appropriated to the support of schools. Under this law, the selectmen of the town of New-Haven executed a perpetual lease of a part of the demanded premises, to the defendant, William Wheeler, on the 10th of February, 1800, reserving an annual rent of 5 dollars and 50 cents; immediately after which, the said Wheeler entered upon the land so leased, and has ever since held the possession thereof. Similar donations were made, about the same time with the above grant, to the plaintiffs, of lands lying within the limits of Vermont, by the governor of New-Hampshire, in the name of the king; but the plaintiffs never entered upon such lands, nor upon the demanded premises, nor in any manner asserted a claim or title thereto, until the commencement of this suit.

The verdict found a number of acts of the State of Vermont respecting improvements or settlements, and also the limitation of actions; but as the discussions at the bar did not involve any questions connected with those acts, those parts of the special verdict need not be more particularly noticed.

Upon this special verdict, the Judges of the Court below were divided in opinion upon the question, whether judgment should be rendered for the plaintiffs or defendants, and the question was thereupon certified to this Court.

The cause was argued at the last term by Mr. Hopkinson, for the plaintiffs, and by Mr. Webster, for the defendants, and continued to the present term for advisement.

Feb. 15th, 1822.

Mr. Hopkinson, for the plaintiffs, stated, that the act of the legislature of Vermont, of the 30th of October, 1794, could have no effect upon the title of the corporation, unless the principle upon which it purports to have been enacted, is sound and legal. Two reasons are assigned in the preamble to the act: (1.) That, by the custom and usages of nations, no aliens can, or of right ought, to hold real estate in a country to whose jurisdiction they cannot be made amenable. (2.) That the plaintiffs being a corporation erected by, and existing within a foreign jurisdiction, to which they alone are amenable, by reason whereof, at the time of the late revolution of this State, and of the United States, from the jurisdiction of Great Britain, all lands in the State, granted to the plaintiffs, became vested in the State, and have since that time remained unappropriated, &c. If these positions were true, then the plaintiffs cannot recover, independently of this act, which has no other effect than to vest the land, or the title thus accrued, in the State, or their grantees, the town schools. If, on the other hand, the position was untrue, the right of the plaintiffs remains unimpaired, and they are entitled to recover possession of the lands in the present action.

Against these positions, he would contend, (1.) That the general position, that no alien can hold real property in this country, is contradicted, at least as to all titles vested in British subjects, prior to the 4th of July, 1776, by the uniform and settled decision of this and other Courts; both upon the general principle, that the division of an empire makes no change in private rights of property, and under the operation of the treaties between the United States and Great Britain. (2.) That, independently of these treaty provisions, the title of an alien is not devested from him, nor vested in the State, until office found 1. There is no general law or custom of nations, preventing aliens from holding lands in the different states of the world. It depends upon the municipal law of each particular nation, and, in this country, upon that of the several States in the Union. There are various regulations on the subject, in the different States; and non constat, by the special verdict, but what aliens, in general, may hold lands in Vermont. Be this as it may, the treaties of 1783 and 1794, form a paramount law in that State, and in all the States. In the case of the Society, &c. v. Wheeler,^a this same corporation was sought to be defeated in its right to recover its lands in New-Hampshire, not merely as aliens, but as alien enemies. But the Court held, that a license from the government to sue might be presumed, there being no evidence to the contrary; and as to the general principle of the right of an alien to bring an action for real property, Mr. Justice Story said, that there was 'no pretence for holding that the mere alienage of the demandants would form a valid bar to the recovery in this case, suposing the two countries were at peace; for, however it might be true, in general, that an alien cannot maintain a real action, it is very clear, that either upon the ground of the 9th article of the treaty of 1794, or upon the more general ground, that the division of an empire works no forfeiture of rights previously acquired, for any thing that appears on the present record, the present action might well be maintained.'

The treaty of 1783 forbids all forfeitures on either side. That of 1794 provides, that the citizens and subjects of both nations, holding lands, (thereby strongly implying that there were no forfeitures by the revolution,) shall continue to hold, according to the tenure of their estates; that they may sell and devise them; and shall not, so far as respects these lands, and the legal remedies to obtain them, be considered as aliens. In the case of Kelly v. Harrison,^b which was that of an alien widow of a citizen of the United States, the Supreme Court of New-York held, that the plaintiff was entitled to recover dower of lands, of which her husband was seised, prior to the 4th of July, 1776, but not of lands subsequently acquired. The British treaties were not considered by the Court as bearing on the case.

It was, therefore, the naked question, of the effect of the revolution, even upon a contingent right to real property, acquired antecedent to the revolution. In the same case, Mr. Chief Justice Kent says, 'I admit the doctrine to be sound, (Calvin's Case, 7 Co. 27 b. Kirby's Rep. 413.) that the division of an empire works no forfeiture of a right previously acquired. The revolution left the demandant where she was before.'^c The case of Jackson v. Lunn,^d gives the same principle, and also recognises the treaty of 1794, as confirming the title of persons holding lands.

In Harden v. Fisher,^e which was also under the treaty of 1794, this Court held, that it was not necessary for the party to show a seisin in fact, or actual possession of the land, but only that the title was in him, or his ancestors, at the time the treaty was made. The treaty applies to his title, as existing at that epoch, and gives it the same legal validity as if he were a citizen. In a subsequent case, Jackson v. Clark,^f where the point was, whether an alien enemy could make a will of lands in New-York, or convey his estate in any manner, the Court would not hear an argument, it being settled by former decisions.^g In Orr v. Hodgson,^h the Court confirmed the same doctrine, and also determined, that the 6th article of the treaty of...