Society for the Propagation of the Gospel in Foreign Parts v. New-Haven

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, 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, 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.' The case of Jackson v. Lunn, gives the same principle, and also recognises the treaty of 1794, as confirming the title of persons holding lands.

In Harden v. Fisher, 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, 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. In Orr v. Hodgson, the Court confirmed the same doctrine, and also determined, that the 6th article of the treaty of 1783, was not meant to be confined to confiscations jure belli; but completely protected the titles of British subjects from forfeiture by escheat for the defect of alienage. But the great leading case on this subject, is that of Fairfax v. Hunter, where the operation of the treaty of 1794 was determined as confirming the titles of British subjects, even where there had been a previous cause of forfeiture, but no office found, or other proceeding to assert the right of the State. And in Terett v. Taylor, which was the case of an ecclesiastical corporation, it was held, that the dissolution of the regal government no more destroyed the right to possess and enjoy the property, than it did of any other corporation or individual, the division of an empire creating no forfeiture of vested rights of property.

2. At all events, the alien lost no right, and the State acquired none, until office found.

It is firmly settled by the uniform decisions of this Court, and of the most respectable State Courts, that an alien may take an interest in lands, and hold the same against all the world, except the government, and even against it, until office found.

If, then, the plaintiffs are to be considered as aliens, and labour under no other disability, it is clear, that their title to the lands in question remains unimpaired, and as it existed previous to the 4th of July, 1776; and this upon three grounds: (1.) Of the general law on the division of an empire. (2.) Of the operation of the treaties of 1783 and 1794. (3). On the ground, that the title of the State acquired by forfeiture, if any, had not been asserted by, nor that of the plaintiffs devested by, an inquest of office. And, consequently, that the first position assumed by the Legislature of Vermont to justify its act, is unfounded in law.

The second ground taken by the Legislature is, that the plaintiffs having become a foreign corporation by the revolution, could not continue to hold lands in this country after that event.

This presents the single question, whether an alien corporation is in a different situation, in this respect, from an alien individual? On the part of the plaintiffs, we contend, that all the legal principles and rules which go to protect the title of an individual, will equally avail to protect that of a corporation; and that, whether the security of the former is founded upon the general law as to the division of an empire, or upon the peculiar stipulations of the treaties of 1783 and 1794, or the defect of an inquest of office.

In this case, although the trust is in aliens, the use is to citizens of our own country; and the forfeiture would, therefore, only affect those in whom the beneficial interest is vested. On what ground can it be insisted, that a British corporation, holding lands in this country, in trust for British subjects prior to the declaration of independence, forfeited the lands at that epoch, and that they became ipso facto vested in the State where they lie, without office found, or other equivalent legal ceremony? If there be no such principle of law, and if, where the whole interest is British, it is protected, why should it not be equally protected where the real beneficial interest is American, and the trusteeship only is British? It is obvious, that the revolution has nothing to do with the question. The position assumed by the Legislature of Vermont, must stand or fall, independent of that circumstance, and its introduction only tends to confuse the inquiry. The broad position is, that at no time, nor under any circumstances, can a foreign corporation, or trustee, hold lands in this country for any use whatever. And why is it thought indispensably necessary, that the corporation, which in this case is the trustee, should be locally within our jurisdiction? The answer will be, undoubtedly, in order to prevent neglect, or abuse of the trust. But that is properly a matter between the trustee and the cestuis que trust; and it is a strange remedy to take the property from both, least the former should impose upon the latter. If abuses should be found to exist, an appropriate legal remedy may easily be found. In England, alienage is no plea in abatement in the case of a corporation. By the old law, an abbot or prior alien, could have an action real, personal, or mixed, for any thing concerning the possessions or goods of the monastery, because they sue in their corporate capacity, and not in their own right to carry the effects out of the kingdom. The circumstance, that the execution of the trust is in England, is here regarded. A corporation can have no local habitation. The disability must result from the character of the individual members. Thus, it is held, that a body corporate, as such, cannot be a citizen of any particular State of the Union; and its right to sue, or not to sue, in the federal Courts, depends solely upon the character of the individual members.

Whatever danger there may be from a foreign corporation holding lands in this country, it can only be a reason for restraint and regulation, but not for confiscation and forfeiture. If the execution of the trust can be regulated otherwise than according to the charter, it must be from the necessity of the case only; and the legislative interference must not go beyond providing an adequate remedy by some appropriate judicial proceeding. To say, that the corporation, so far as respects these lands, is dissolved by the revolution, is to say, that the lands are forfeited by the revolution. The trust remains, the corporate body remains, the land remains; but all connexion between them (that is, the right of the corporation to hold in trust for the same purposes) is dissolved by the separation of the empire. It is only necessary to state this proposition, to show its inconsistency with the well established principles of law.

Mr. Webster, contra, contended, 1. That the capacity of the plaintiffs, as a corporation, to hold lands in Vermont, ceased by, and as a consequence of, the revolution.

2. That the Society for Propagating the Gospel, being in its politic capacity a foreign corporation, is incapable of holding lands in Vermont, on the ground of alienage; and that its rights are not protected by the treaties of 1783 and 1794.

3. That if those rights were so protected, the effect of the late war between the United States and Great Britain, was such, as to put an end to those treaties, and, consequently, to rights derived under them, unless they had been revived by the treaty of peace at Ghent, which was not done.

He argued on the first and second points, that the dismemberment of the British empire dissolved this corporation, so far as respects its capacity to hold lands in this country, not merely because they are aliens, but from the peculiar circumstances of the case. The society is such a corporation as cannot hold lands in England, under the statutes of mortmain, without a license from the crown, which they have in their charter. But this license does not extend to authorize them to hold lands in the colonies. The statutes of mortmain do not extend to the colonies. In the interpretation of treaties, the probable intention of the framers is to be taken as the guide, and the sense of the terms they use is to be limited and restrained by the circumstances of the case. The British treaties are to be construed, not only as to the sort of title meant to be protected, but also the sort of persons and property meant to be protected. The mere personal disability of British subjects to hold lands, is taken away. They are protected against escheat. But corporations, such as this, ought to be considered as impliedly excepted from this provision. This might well be contended, even as to those who have a beneficial proprietary interest, and a fortiori, as to such as are mere trustees. In the present case, the revolution has violently separated the trustees from the property, and from the cestuis que trust. The former are in a foreign country, the latter are here. Can it be imagined, that the treaties meant to take from the Courts of equity of this country the ordinary power of enforcing the trust, or of changing the trustee in case of abuse or inability to perform his trust, independent of the statute of Elizabeth? But if the Legislature cannot change the trustee, neither can the Courts. Reciprocity lies at the foundation of all treaties between nations. But the English Court of Chancery has determined, that it cannot enforce a trust connected with a charity in this country. Thus, Lord Thurlow took the administration of a charity, under an appointment by the trustees, and a plan confirmed by a decree of the Court, out of the hands of William and Mary College, in Virginia, because the trustees had become foreign subjects by the separation of the two countries; and even denied costs to the college, because its existence as a corporation had not been, and could not be proved since the revolution. So, also, where the State of Maryland claimed certain bank stock, which had been vested in the hands of trustees in England, by the colony of Maryland, before the revolution, the claim was rejected by Lord Rosslyn, upon the ground, that the colonial government, which existed under the king's charter, was dissolved by the revolution, and though Great Britain had acknowledged the State of Maryland, yet the property which belonged to a corporation, which had thus become a foreign corporation, or been dissolved, could not be transferred to a body which did not exist under the authority of the British government. The new State could take only such rights of the old as were within their jurisdiction, and the fund, no object of the trust existing, must be considered as bona vacantia at the disposal of the crown.

In the case now before this Court, either the corporation is dissolved, or it has become a foreign corporation. If it still exists, for any purpose, it may forfeit its franchises for non-user or misuser. If its franchises are forfeited, a forfeiture of its property follows as a matter of course. But how is a quo warranto, or any other process, to go against it from our Courts? And if the proceeding is in the English Courts, to whom is the property to revert? It is plain, that it can revert to no other than the grantor, i. e. the State of Vermont representing the crown.

Here, the State, instead of proceeding in a Court of equity to enforce a trust, or to present a new scheme for the administration of the charity, has proceeded to escheat the property for defect of alienage in those who claim the legal title. This it has done directly by a legislative act, and not through an inquest of office, or any analogous ceremony, which was unnecessary.

Upon the third point, he argued, that even supposing the treaties of 1783 and 1794 protected the rights of property of the plaintiffs, whether beneficial or fiduciary, yet the late war abrogated such provisions of those treaties as were not revived by the peace of Ghent. The general rule certainly is, that whatever subsists by treaty, is lost by war. Peace merely restores the two nations to their natural state.

Foreigners cannot, independent of conventional stipulations, by the general usage of nations, or by the common law, hold lands in this country. This pre-existing law, therefore, revives; there being no recognition in the treaty of Ghent of the articles of the former treaties, excepting British subjects from the operation of the rule. March 12th, 1823.

Mr. Justice WASHINGTON delivered the opinion of the Court, and, after stating the case, proceeded as follows: