Washington March 15th. 1812.
Upon the representations of Mr. Quincy, I made, through him, to Mr. Elwyn, the agent of Lewis Brotherson Verchild, an offer of 2000 Dollars for the title of the Verchilds to that part of the estate which was holden by my father. He has declined accepting it, and I am not sorry, because I am satisfied, that the claim of the Verchilds is good for nothing.
I understand that Lewis B. Verchild claims by descent from his father James George Verchild, who took the whole as survivor under a joint devise to himself & his brother Jasper Paine Verchild, as joint tenants, by a residuary devise in the Will of their father President Verchild.
The first objection to this claim is, that L. B. Verchild is an alien born, & therefore can not take lands by descent. He was born, out of the United States, in the year 1776. His father died in 1786, after the treaty of peace and before Mr. Jay’s treaty.
If it be admitted that his father was once lawfully seized, that he continued to hold untill the treaty of peace, and that his estate was saved from the Effect of his disability as an alien, by the 6th. article of that treaty which provides that no future confiscations should be made, yet his son was not thereby render’d capable of taking lands by descent in this Country.
It has been decided by the Supreme Court of the U.S. that an alien cannot take lands in this Country by descent; and that a person who never owed allegiance to any State, nor to the United States, is an alien. But it has not yet been decided whether the 6th. <
section> article of the treaty of peace, which prohibits future confiscations, took away the disability of Alienage from those british subjects who then held lands in this country, or rather who would then have holden but for that disability. Such a case is now before the Supreme Court. It has been argued this term, but will not be decided untill the next, as there seems considerable difference of opinion among the Judges upon the question. The case is this—Lord Fairfax, a citizen of the Commonwealth of Virginia, claiming as Lord proprietor of a tract of land called the Northern neck, lying between the Patowmack and Rappahannock rivers, under a royal Charter, died seized thereof in 1781, having by his Will devised the same to Denny Martin a british subject, who never was in this Country, but who continued to hold, if he could hold, untill after the treaty of peace. In 1785 the legislature of Virginia by an act of assembly, assumed the rights of the Lord Proprietor and granted out such of those lands < which> as had never been granted by him. The question is, whether the rights of Denny Martin, as devisee, are saved, by the treaty of peace, from the operation of the principle, that altho’ an alien may take land by purchase yet he can hold only untill office found; or, in other words, whether the treaty of peace removes, from Denny Martin, the disability of Alienage; and consequently, whether the act of Virginia be not a violation of the 6th. article of that treaty.
It is contended, with great force of argument founded upon strong authorities, that the finding of an office; and the consequent seizure of the lands of Denny Martin, (or any other act of the Government of Virginia having the like effect,) is a confiscation founded on a disability growing out of the war, and is therefore written in both the letter and the spirit of the treaty.
But on the other hand it may be said that if it be a principle that the disability is removed by the treaty because it is a disability which grew out of the war, the principle will apply not only to Denny Martin himself, but to his heirs—and not only to his heirs but to the heirs of every person who became an alien to the United States in consequence of their separation <
of> from Great Britain. The extent of the consequences of such a principle forbids such a construction. The < class> cases contemplated by the treaty constitute a much smaller class. The confiscations intended to be prohibited by the treaty were such as arose jure belli, not jure civili. The confiscation of land purchased by an alien, is entirely under the municipal law, not under the law of Nations. It is either an appendage of the feudal system or was derived from the Saxon laws. If the exemption be limitted to those who claim’d lands at the date of the treaty It would be putting those who took a part in the war against us, in a better situation that their innocent heirs.
Thus stands the question in the case of Lord Fairfax’s devisee; but that case cannot affect ours <
case>, further than it may tend to show what effect the treaty of peace had upon the rights of those who then claim’d title to the land. It will not decide the question whether that treaty, like the other of 1794, gave inheritable blood to all the heirs of those then held the land.
I understand the law to be settled that the plea of Alienage is a good bar to all claims by descent cast between the 4th. of July 1776 and the 19th. of November 1794, (the date of Mr. Jays treaty.)
If any person who held land on the 4th. of July 1776, continued to hold on the 19th. of November 1794, such person and his heirs were never after to be consider’d aliens with respect to such land.
the> an estate in fee, in joint-tenancy, vested in Jasper P. Verchild and James Geo. Verchild, under their fathers will, and if < the> James George took the whole by survivorship, and died seized thereof, intestate, in 1786, leaving no heir at law but Lewis B. Verchild, there is an end of the Verchild claim.
But if the Estate did not pass by the will of President Verchild, either in consequence of the Will not being executed, or proved & register’d according to the laws of Massachusetts, or for any other reason, then it is to be enquired who were his heirs at law according to the laws of Mass: at the time of his death (1769) and to whom the land has descended; and if any person who was entitled to hold the land in 1776 continued to hold in 1794, the claim of such person or those claiming under him, I think, ought to be respected.
I shall be much obliged to you, Sir, if you will inform me what you think I ought to do respecting this business; and to cause to be communicated to me any facts within your knowledge relative thereto, which may enable me properly to estimate the claim.—
We are all well, and beg you to accept the assurances of our most affectionate respect for yourself, my Aunt, & the family, from yr. most obliged & affectionate
MHi: Adams Papers.