Philadelphia 8th. Septr. 1815
I do myself the honor to address you on a point of the treaty of Peace of 1783, become important in a case of ejectment pending in this State, for property which I purchased in the Island of Barbados in the year 1807, not doubting immediate possession on a title perfectly clear.
The 6th. Act provides that “no more confiscations shall be made” The estate in controversy, was then, in 1783, the unquestionable property of Doctr. Oxley of Barbados, who took by devise as well as descent, prior to the Revolution. He never was in the US, was not a refugee, tory or traitor, yet of that class, the joint letter of the Commissioners at Paris dated the 10th. Septr. 1783 recommended “such discrimination” as would receive “the approbation of disinterested men, and dispassionate posterity.”
Doctr. Oxley made a will & died in 1784, his two sons, then minors also in Barbados, thus became heirs by devise as well as descent. it is however doubted whether as aliens they can take by either, our acts of Assembly on one point being very vague & the Chief Justice Tilghman having in the other, laid down, (Case of Jackson’s lessers vs Burns, 3d. Binney) that “an Alien cannot take Lands by descent in Pennsa.” an expression broader than that case required, differing from the present in all material points. Jackson was a Citizen & died intestate, without issue, his heirs were aliens, claiming the Estate of a Citizen. Dr. Oxley was an alien, made a will & left issue; his heirs being aliens also, claim the Estate of their father also an alien, to whom as such it was confirmed by treaty.
The present case affords an extraordinary contrast: the persons in possession hold under forgeries, not only of the patent, the genuine original being in my possession, (received from Mr. Sansom a Gentn. of well known reputation here, whose family had care of the Estate for 70 years) but also of three several and seperate deeds all forged.
The right of aliens to take by descent the real estates of aliens, appears a natural corollary of the right to hold their then possessions, and so was determined in New York. Johnsons cases Vol 3 pa 109 &c. the only case in point the books afford.
The argument by which C J Tilghman supports his decission, is conceived to be a sophism, not worthy of him. It is now generally if not universally acknowledged, that however the narrow notions of regal policy may have prescribed to subjects, the principle cited by the C J “that no man can, even for the most pressing reasons, divest himself of the allegiance under which he was born” yet in Republics, under free & happy Governments every Citizen disclaims and scouts such slavish doctrine. In that case the opinion of the worthy C J appears at this day of more mature experience & investigation to convey certain views of the Subject by no means consonant with the liberal policy which forms the basis of our social fabric. The distinction set up between citizens of the US & British subjects “because there was a time when the people of England and the united states owed allegiance to the same Sovereign, yet there never was a time when the people of England owed allegiance to the U States”. adding, “I am informed however, and believe it to be a fact, that by the law as now held in England, Citizens of the U States born before the Revolution, <
[. . .]> are capable of taking lands in England by descent. It is supposed by some that merely for that reason, the courts of the US should extend the same principle to the subjects of G Britain. To this I cannot assent, I confess I should be mortified, if my own Country was surpassed by any on the globe, in acts of humanity and benevolence” (1) This observation but ill accords with his charge. Without intending to imitate the conduct of G Britain, a much higher motive, a sounder policy, and a much nobler spring urges the US on the subject. Immutable Justice, it is truly matter of astonishment that this cruel and wicked idea is yet to be discarded: is it not astonishing that in this natural soil of liberty it ever existed? that it ever crept in! that this shred of royal robbery should have found shelter, could have found an advocate, after we had for years contended for our own rights? that native Americans, Irishmen, Germans, Frenchmen, Scotsmen & Englishmen, should all have united in asserting their rights, and when secured, immediately commence by law, to rob their own Kindred of their birth rights, without giving them even a pot of porridge? Here the rights of property are founded on equity and the laws of society, those of Alienage on the laws of Sovereigns.
But I have wandered from the subject which induced me to take this liberty your well known liberality and readiness at all times to promote the cause of Justice is my best excuse. Have the goodness to say how this matter was understood, what was contemplated and intended to be the effect of the 5th. & 6th. Articles of the Treaty of Peace on Real estate, at the time it was made?
With great respect I have the honor to subscribe / Sir / Your very Obedient / and humble Servant
MHi: Adams Papers.