William Johnson

“ It remains to examine the effect of the Virginia laws upon grants made to aliens. Those laws provide that aliens may purchase warrants for land, and pass them through all the stages necessary to obtain a patent, and may exercise every power over the inchoate interest thus acquired, in the same manner with citizens, and after returning the plat and survey to the Register's office, shall be allowed eighteen months to become a citizen, or transfer their interests to those who are citizens.
These provisions, it is contended, import a prohibition to issue a grant to an alien. ”

“ But when it is considered, that the effect of an alien's being made denizen, is not to enable him to take lands, but to enable him to hold them against the king, we at once see, that his language is to be limited to the proposition laid down in the previous sentence, to wit: that the king's grants shall not enure to the double intent, when made to an alien, of vesting in him the thing granted, and then, by implication, constituting him a denizen, so as to enable him to hold an indefeasible estate. ”

“ It is obvious, that in considering this argument, the Court cannot place the defendant on more favourable ground than by substituting Virginia for Kentucky, and allowing him all the rights that he might have set up against the former State. And it is equally obvious, that to admit of the right set up in favour of the junior patent's attaching as a patent upon the escheat, it must be affirmed that escheated land was liable to be taken up by patent; whereas the act authorizes patents to issue upon waste and unappropriated lands exclusively, and not upon escheated property. ”

“ Aliens arriving in the country could not immediately be naturalized, but they might immediately enter upon those arrangements for establishing themselves when naturalized, which were necessary to precede a grant. Hence, the only true construction of the Virginia law is, that as to all the interest acquired in land previous to grant, it was intended to enlarge their rights, and secure them from escheat; while, as to the rights which they might acquire by patent, they were to be left under the ordinary alien disabilities, whatever those were, which the law imposed. ”

“ A junior grant is to be vested with the attribute of hanging over a valid and indefeasible appropriation of soil, waiting to vest upon the occurrence of the casualty of an escheat or an indefinite failure of heirs? This may not happen in a hundred years; it may not occur upon one life as in this case, but may occur after the lapse of one hundred lives. It is impossible that such a claim can be countenanced. Neither principle nor policy sustains it. And, in fact, the decision upon the first ground is fatal to the cause of the defendant upon the last ”

“ Whereas, an alien may take by purchase, and hold until devested by office found. It is argued, that the reason usually assigned for this distinction, to wit, 'Nil frustra agit lex,' may, with the same correctness, be applied to the case of a grant by the king to an alien, as to one taking by descent, dower, or curtesy: That the alien only takes from the king to return the subject of the grant back again to the king by escheat. ”

“ The defendant's title is regularly deduced through the patent to Duncan Rose.
The record presents, first, a general instruction prayed for in behalf of the plaintiffs on their right to recover. And of this there can be no question independently of the points made in the instructions moved for by the defendant, having regard to the effects, 1st. of his alien character; 2d. that of his son; and, 3d. of the compact between Virginia and Kentucky on the rights of the parties. ”

“ The general rule is positively against it, for the books, old and new, uniformly represent the king as a competent grantor in all cases in which an individual may grant, and any person in esse, and not civiliter mortuus, as a competent grantee. ”

“ It no doubt owes its present authority, if not its origin, to a regard to the peace of society, and a desire to protect the individual from arbitrary aggression. Hence it is usually said, that it has regard to the solemnity of the livery of seisin, which ought not to be devested without some corresponding solemnity. ”