James Madison Papers
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To James Madison from Henry Tazewell, [ca. 15 April] 1796

From Henry Tazewell

[ca. 15 April 1796]

Dear Sir

Since our conversation yesterday, I have reexamined the 9th. Article of the british Treaty.1 If the following remarks should be of any service to you, in considering that subject, they will have answered the purpose for which they were written.

Whatever may be the true exposition of that Article, it seems clear, that it cannot extend to give an Alien, being a british subject, a right to acquire Title to lands in the US. after the ratification of the Treaty—and you did not seem anxious to ascertain its effect between the periods of signing and ratifying the Treaty. Therefore my remarks are confined to the exposition of the Article, regardless of the time when it is to commence.

British Subjects who now hold Lands are intitled to the benefit of the Article. The Claim to possess, and actual occupation, amount in a legal sense to the same thing, if the Title is a good one. Every british Subject therefore, who has a Title to possess Lands, now holds—whether he is in, or out of possession. All those Titles which existed prior to the late War, are still good, unless some circumstance has intervened to destroy them. Confiscation during the War, is the single circumstance I have in my Mind. Where that has not happened, and possession accompanies the Title, without the 9th. Article of the Treaty the proprietor is safe.

The 9th. Article gives a remedy for the recovery of the possession where it does not accompany the Title, which an Alien could not exercise without it. A Title therefore which once was complete, may now be reduced to possession by a process in the federal Courts if the impediments in its way can be removed.

The Act of confiscation, may be removed upon either of two grounds. 1t. An informality in the proceeding. 2dly. By the stipulation in the Treaty of 1783. The same technical nicety in this proceeding is required, as in any other, known to the british, or American Laws. If the proceeding is once annulled because of informality, that defect cannot be cured by a subsequent Act, because the Treaty of 1783, interdicts all future Acts of confiscation. If therefore a British subject having a Title, brings his Action for Confiscated Lands, and the proceeding under the State is determined to have been erronious he will recover the possession under his Title, regardless of the Act of Confiscation.

An Act of confiscation subsequent to the Treaty of 1783 could not destroy the Title of a british Subject. He would be said now to hold. A prior Act of confiscation would loose its effect if the competent Authorities had by that Treaty stipulated for restitution, on the same principle which the federal Courts have decided in favour of the british debts paid into the Treasury of Virginia.2 If the stipulation to recommend3 had been made a positive stipulation to restore, and the then Treaty power had been competent to it. The 9th. Article by giving a real Action to the british subject would have enabled him to recover possession of his Lands altho they had been confiscated.

The recommendation was to be made to the States in earnest. It was made. Before it was acted upon, the power to do what was recommended, was given to the Congress. The recommendation therefore, having proceeded from a defect of power to stipulate positively, is by a transfer of the power necessary to make it a positive stipulation to the Congress, converted into a positive Contract. If it is—the impediment which confiscation threw in the way of british Titles is now removed—and the old proprietors Now hold.

How these principles apply to particular cases I cannot tell, because those cases are not known to me.

RC (DLC). Unsigned. Docketed by JM, “April 1796, from Henry Tazewell.” Conjectural date here assigned by comparison with JM’s speech of 15 Apr. 1796, which in part discussed “the permission to aliens to hold land in perpetuity as a very extraordinary feature in this part of the treaty.”

1By article 9 of the Jay treaty, “It is agreed, that British Subjects who now hold Lands in the Territories of the United States, and American Citizens who now hold Lands in the Dominions of His Majesty, shall continue to hold them according to the nature and Tenure of their respective Estates and Titles therein, and may grant Sell or Devise the same to whom they please, in like manner as if they were Natives; and that neither they nor their Heirs or assigns shall, so far as may respect the said Lands, and the legal remedies incident thereto, be regarded as Aliens” (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:253–54).

2On the U.S. Supreme Court’s decision in Ware, Administrator of Jones v. Hylton, see JM to Monroe, 26 Feb. 1796, and n. 12.

3By article 5 of the Treaty of Paris of 1783, Great Britain and the U.S. agreed in part “that the Congress shall earnestly recommend it to the Legislatures of the respective States to provide for the Restitution of all Estates, Rights and Properties which have been confiscated belonging to real British Subjects” (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:154).

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