The Defence No. XVII1
[New York, September 22, 1795]
The VIII article2 provides merely that the Commissioners to be appointed in the three preceding articles shall be paid in such manner as shall be agreed between the parties at the time of the exchange of the “Ratification of the Treaty, and that all other expenses attendingthe Commissions shall be defrayed jointly by the two parties the same being previously ascertained and allowed by a Majority of the Commissioners, and that in case of death sickness or necessary absence of a Commissioner, his place shall be supplied in the same manner as he was first appointed, the new Commissioner to take the same oath or affirmation and to perform the same duties as his predecessor.
Could it have been imagined that even this simple & equitable provision was destined not to escape uncensured? As if it was predetermined that not a single line of the Treaty should pass as guiltless—nothing less than an infraction of the constitution of the U States has been charged upon this article. It attempts we are told a disposition of public money unwarranted by and contrary [to] the Constitution. The examination of this wonderfully sagacious objection with others of a similar complexion must be reserved for the separate discussion which has been promised of the constitutionality of the Treaty.3
Let us proceed for the present to the IXth. article.4
This article agrees that British subjects who now hold lands in the territories of the UStates and American Citizens who now hold lands in the dominions of his Britannic 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 so far as may respect the said lands and the legal remedies incident thereto be regarded as aliens.
The misapprehension of this article which was first ushered into public view in a very incorrect and insidious shape and was conceived to amount to the grant of an indefinite and permanent right to British subjects to hold lands in the U States5 did more, it is believed, to excite prejudices against the Treaty, than any thing that is really contained in it. And yet when rightly understood it is found to be nothing more than a confirmation of those rights to lands, which prior to the Treaty the laws of the several states allowed British subjects to hold; with this inconsiderable addition perhaps, that the heirs and assigns of those persons, though aliens, may hold the same lands: But no right whatever is given to any lands of which our laws did not permit and legalise the acquisition.
These propositions will now be elucidated.
The term hold in the legal code of Great Britain & of these states has the same and that a precise technical sense. It imports a capacity legally and rightfully to have and enjoy real estate and is contradistinguished from the mere capacity of taking or purchasing, which is sometimes applicable to the acquisition of a thing that is forfieted by the very act of acquisition. Thus an alien may take real estate by purchase but he cannot hold it. Holding is synonymous with tenure which in the feudal system implies fealty of which an alien is inincapable. Land therefore is forfieted to The Government the instant it passes to an alien. The Roman law nullifies the contract intirely, so that nothing passes by the grant of land to an alien but our law derived from that of England permits the land to pass for the purpose of forfieture to the State. This is not the case with regard to descent, because the succession or transmission there being an act of law, and the alien being disqualified to hold, the law consistent with itself casts no estate upon him.
The following legal authorities selected from an infinite number of similar import establish the above positions.
Coke on Lyttleton Page 2. 3. “Some men have capacity to purchase but not ability to hold. Some capacity to purchase and ability to hold or not to hold, at the election of themselves and others. Some capacity to take and to hold. Some neither capacity to take nor to hold. And some specially disabled to take some particular thing. If an alien Christian or Infidel purchase houses lands tenements or hereditaments to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee simple but not to hold.”6 The same, Page 8 “If a man seized of lands in fee hath issue an alien he cannot be heir propter defectum subjectionis.”7 Blackstones Commentaries Book II Ch: 18 § 2 No. 2 “Alienation to an alien is a cause of forfieture to the crown of the lands so alienated, not only on account of his incapacity to hold them8 but likewise on account of his presumption in attempting by an act of his own to acquire real property.” Idem Ch 19 § 1 “The case of an alien born is also peculiar. For he may purchase a thing but after purchase he can hold nothing except a lease for years of a house for the convenience of merchandize.”
Thus it is evident, that by the laws of England which it will not be denied agree in principle with ours, an alien may take but cannot hold lands.
It is equally clear, that the laws of both countries agreeing in this particular the word hold used in the article under consideration must be understood according to those laws and therefore can only apply to those cases in which there was a legal capacity to hold, those in which our laws permitted the subjects and citizens of the two parties to hold lands in the territories of each other.9
Whatever lands therefore may have been purchased by any British subject since the Treaty of Peace which the laws of the State wherein they were purchased did not permit him to acquire and hold are intirely out of the protection of the article under consideration. The purchase will not avail him. The forfieture which was incurred by it is still in full force. As to those lands which the laws of a State allowed him to purchase & hold he owes his title to them not to the Treaty.
Let us recur to the words of the article. “British subjects who now hold lands shall continue to hold them according to the nature and tenure of their respective estates and titles therein.” But it has been seen that to hold lands is to own them in a legal and competent capacity and that an alien has no such capacity. The lands therefore which by reason of the alienage of a British subject he could not prior to the Treaty legally purchase and hold, he cannot under the Treaty continue to hold.
As if it was designed to render this conclusion palpable the provision goes on to say “according to the nature and tenure of their respective estates and titles therein.” This is equivalent to saying, they shall continue to hold as they before held. If they had no valid estate or title before they will of course continue to have none. The expressions neither give any new nor enlarge any old estate.
The succeeding clauses relate only to descents or alienations of the land originally legally holden. Here the disability of alienage is taken away from the heirs and assigns of the primitive proprietors.
While this will conduce to private justice by enabling the families and friends of the individuals to enjoy their property by descent or devise, which it is presumeable was the main object of the provision, there is no consideration of national policy that weighs against it. If we admit the whole force of the argument which opposes the expediency of permitting aliens to hold lands, (& concerning which I shall barely remark here that it is contrary to the practice of several of the states10 and to a practice from which some of them have hitherto derived material advantages) the extent to which the princeple is affected by the present Treaty is too limitted to be felt: and in the rapid mutations of property it will every day dimish. Every alienation of a parcel of the privileged land to a citizen of the U States will as to that land put an end to the future operation of the privilege, and the lapse of no great number of years may be expected to make an intire revolution in the property, so as to divest the whole of the privilege.
To manifest the unreasonableness of the loud and virulent clamour which was raised against this article, it has been observed by the friends of the Instrument that Our Treaty with France11 not only grants a much larger privilege to the citizens of France but goes the full length of removing universally and perpetually from them the disability of alienism as to the ownership of lands. This position has been flatly denied by some of the writers on the other side. Decius12 in particular after taking pains to shew that it is erroneous, that the terms “goods moveable and immoveable” in the 13 article of our Treaty with France mean only Chattels real and personal in the sense of our law, and exclude a right to the freehold or inheritance of lands, triumphantly plumes himself on the detection of a fallacy of the Writer of certain “Candid Remarks on the Treaty”14 who gives the interpre[t]ation above stated to that article.
The error of Decius’s interpretation proceeds from a misunderstanding of the term goods in the English translation of the article, to which he annexes the meaning assigned to that term in our law, instead of resorting as he ought to have done to the French laws for the true meaning of the correspondent term “biens” which is that used in the French original. Goods in our law no doubt mean chattel —interests—but goods or “biens” in the French law mean all kinds of property real as well as personal. It is equivalent to and derived from the term bona in the Roman law answering most nearly to “estates” in our law & embracing inheritances in land, corporeal and incorporeal hereditaments as well as property in moveable things. When it is necessary to distinguish one species from another it is done by the adjective “biens meubles et immeubles” answering to bona or res mobilia et immobilia, things moveable and immoveable, estates real and personal. The authorities at foot· * will shew the analogy of these different terms in the three languages. But for fixing the precise sense of those used in the Treaty, I have selected and shall quote two authorities from French books which are clear and conclusive on the point. One will be found in the work of a French Lawyer intitled Collections De Decisions Nouvelles Et De Notions Relatives A La Jurisprudence Actuelle16 under the Article Biens17—and is in these words (viz) “The word bien has a general signification and comprehends all sorts of possessions, as moveables, immoveables, purchases, acquisitions by marriage inheritances &c. It is distinguished into these particulars, moveables and immoveables purchases and inheritances, subdividing inheritances into paternal and maternal old and new. Moveable biens are those which may be moved and transported from one place to another as wares merchandizes and current mony, plate, beasts household utensils &c. Immoveable biens are those which cannot be moved from one place to another as inheritances houses &c. Biens are distinguished again into corporeal and incorporeal” Another18 is drawn from the celebrated institutes of the French law by Mr. Argou19 & is in these words “Biens—This is in general whatever composes our riches. There are two sorts of biens, moveable and immoveable—Moveable, all that may be transported from one place to another—Immoveable, lands or what are presumed to have the nature of lands. They are distinguished into two kinds real and fictitious. Real are not only the substance of the earth, which is called Fonds, but all that adheres to its surface, whether from nature, as Trees, or from the hand of man, as houses and other buildings. The others are called fictitious, because they are only real by fiction, as offices which are vendible & subject to fiscal reversions rent charges &c.” The signification of bona in the Roman law corresponds as was observed above with that of biens in the French. ““Bonorum appellatio universitatem quandam et non singulas res demonstrat” which may be thus rendered “The appellation bona designates the totality of property or estate, and not particular things” and hence it is that the cessio bonorum of a debtor is the surrender of his whole fortune.
Both these terms “bona” and “biens” are indiscriminately translated “goods”, estates effects property.* In our treaty with France they are translated “goods.” But it is evidently a great mistake to understand the expression in the limitted sense of our law. Being a mere word of translation, it must be understood according to the meaning of the French text. For it is declared in the conclusion of the Treaty, that it was originally composed and concluded in the French tongue. Moreover the term goods, when used in our language as the equivalent of the term bona or biens is always understood in the large sense of the original terms; in other words as comprehending real and personal estate, inheritances as well as chattel interests.
Having now established the true meaning of the terms “goods moveable and immoveable” let us proceed with this guide to a review of the article.21
Its first and principal feature is “that the subjects and inhabitants of the United States or of any of them shall not be reputed aubains in France.”
This is the same as if it had been said “they shall not be reputed aliens”— For the definition of aubains as given in the work before first cited22 is this “aubains are persons who are not born under the dominion of the King”—the exact equivalent of the definition of alien in the English law. If our citizens are not to be reputed aliens in France, it follows that they must be exempt from alien disabilities and must have the same rights with natives as to acquiring conveying and succeeding to real and other estate.
Accordingly the Article having pronounced that our citizens shall not be reputed aliens in France proceeds to draw certain consequences. The first is that they shall not be subject to the droit d’aubaine. The droit d’aubaine was under the monarchy one of the regalia—it was the right of the Prince to succeed to all estates or property, situate in the kingdom, belonging to foreigners who died without legitimate children born in the Kingdom.
It is to be observed that the laws of France permitted foreigners to acquire and hold even real estate, subject to this right of the sovereign in case of demise without issue born under his allegiance. But this right of the sovereign as to American Citizens is abrogated by the Treaty, so that their legal representatives wherever born, may succeed to all the property real or personal, which they may have acquired in France.
And in conformity with this, it is further declared that they may by testament donation or otherwise dispose of their goods moveable and immoveable (that is as we have seen their estates real and personal) in favour of such persons as to them shall seem good and that their heirs, subjects of the U States, whether residing in France or elsewhere may succeed to them ab intestato without being obliged to obtain letters of naturalization &c.
These are the stipulations on the part of France, and they amount to a removal from the citizens of the U States of alien disabilities as to property. I say as to property, because as to civil and ecclesiastical employments it seems to have been a principle of the French law that the incapacity of foreigners could only be removed by special dispensations directed to the particular object.23
What are the correlative stipulations on the part of the U States. They are in these terms. “The subjects of the most Christian King shall enjoy on their part in all the dominions of the said States an entire and perfect reciprocity relative to the stipulations contained in this article, but it is at the same time agreed that its contents shall not affect the laws made or that may be made hereafter in France against emigrations, which shall remain in all their force and vigour, and the U States on their part or any of them shall be at liberty to enact such laws relative to that matter as to them shall seem proper.”
Since then the article removes from our citizens the disabilities of aliens as to property in France, and stipulates for her citizens an intire and perfect reciprocity in the UStates, it follows that Frenchmen are equally exempt in the U States from the like disabilities. They may therefore hold, succeed to, and dispose of real estates.
It appears that the sense both of the French and of the American Government has corresponded with this construction.
In the year 1786, the Marquis Bellegarde & The Chevalier Meziere sons of the two sisters of General Oglethorpe,24 who claimed the lands of the General in Georgia, represented to the Count De Vergennes, the French Minister for foreign affairs, that they met with impediments to their claims from the laws of Georgia prohibiting aliens to hold lands.25 Mr. Vergennes communicated their complaint to Mr. Jefferson our then Minister in France, observing that the alien disabilities of the complainants having in common with those of all Frenchmen been removed by the Treaty between the two Countries, they ought to experience no impediment on that account—in the succession to the estate of their uncle, and that the interfering laws of Georgia ought to be repealed so as to agree with the Treaty.
Mr. Jefferson in reply states the case of the complainants, proving that they are precluded from the succession for other reasons than that of alienism; and then adds, that as the Treaty with France has placed the subjects of France in the U States on a footing with natives as to conveyances and descents of property, there is no necessity for the assemblies to pass laws on the subject, the Treaty being a law, as he conceives, superior to those of particular assemblies and repealing them when they stand in the way of its operation.26
Where now Decius is thy mighty Triumph? Where the trophies of thy fancied Victory? Learn that in political as in other science
“Shallow draughts intoxicate the brain—
And drinking largely sobers us again.”27
The fixing the true sense of the article in the Treaty with Great Britain is alone a refutation of most of the objections which have been made to it by shewing that they apply not to what really exists but to a quite different thing. It may be useful however to pass them briefly in review with some cursory remarks.
The article, it is said, infringes the rights of the states & impairs the obligation of private contracts, permits aliens to hold real estates against the fundamental policy of our laws, and at the hazard of introducing a dangerous foreign influence—is unequal, because no American has been hardy enough since the peace to purchase land in England, while millions of acres have been purchased by British subjects in our country with knowlege of the risk—is not warranted by the example of any other Treaty we have made, for if even that of France should contain a similar provision (which is denied) still the difference of circumstances would make it an inapposite precedent, since this was a Treaty made flagrante bello, in a situation which justified sacrifices.
These objections have been formally and explicitly urged. One writer afraid of risking a direct assertion but insidiously endeavouring to insinuate misconception, contents himself with putting a question. What (says he) will be the effect of this article as to the revival of the claims of British subjects, traitors or exiles?28
As to the infraction of the rights of the states, this it is presumed must relate to the depriving them of forfietures of alien property. But as the article gives no right to a British subject to hold any lands, which the laws of a state did not previously authorise him to hold, it prevents no forfieture to which he was subject by them, and consequently deprives no state of the benefit of any such forfieture. With regard to escheats, for want of qualified heirs, it depended on every proprietor to avoid them by alienation to citizens.
As to impairing the obligation of private contracts it is difficult to understand what is meant. Since land purchased by an alien passes from the former proprietor & becomes forfieted to the State can it be afterwards the subject of a valid private contract? If the effect of the article was to confirm a defective title derived from the alien how could this impair the obligation of any other private contract concerning it? But whatever may be intended, it is enough to say that the article does not confirm the title to any land which was not before good, so that the ground of the objection fails.
As to permitting aliens to hold land contrary to the policy of our laws; it has been shewn that on a true construction it only applies to the very limitted case of the alien heirs and assigns of persons who before rightfully held lands, and is confined to the identical lands so previously holden, that its greatest effect must be insignificant, and that this effect will continually decrease.
As to the millions of acres said to have been purchased by British subjects, since the peace; it has been shewn that if by the laws of the States in which the purchases were made, they were illegally acquired, they still remain in the situation in which they were before the Treaty.
As to there being no precedent of a similar stipulation with any other country; it has been proved that with France we have one much broader. The idea that this was a sacrifice to the necessity of our situation flagrante bello, is new. Are we then to understand that we in this instance gave to France as the price of her assistance a privilege in our Country which leads to the introduction of a foreign influence dangerous to our independence and prosperity? For to this result, tends the argument concerning the policy of the exclusion of aliens. Or is it that no privilege granted to France can be dangerous?
Those who are not orthodox enough to adopt this last position may nevertheless tranquillise themselves about the consequences. This is not the channel through which a dangerous foreign influence can assail us. Notwithstanding all that has been said, it may perhaps bear a serious argument whether the permission to foreigners to hold lands in our country might not by the operation of private interest give us more influence upon foreign countries than they will ever acquire upon us from the holding of those lands. Be this as it may, could we not appeal to some good patriots, as they stile themselves by way of eminence for the truth of the observation that foreign Governments have more direct and powerful means of influence than can ever result from the right in question?
Moreover there was a peculiar reason for the provision which has been made in our last treaty not applicable to any Treaty with another Country. The former relative situation of the U States and Great Britain led to the possession of lands by the citizens of each in the respective territories. It was natural & just to secure by Treaty their free transmission to the heirs & assigns of the parties.
As to the revival of the claims of traitors or exiles; if property confiscated and taken away, is property holden by those who have been deprived of it, then may there be ground for alarm on this score. How painful is it to behold such gross attempts to deceive a whole people on so momentous a question! How afflicting that imposture and fraud should be so often able to assume with success the garb of Patriotism! And that this sublime virtue should be so frequently discredited by the usurpation & abuse of its name.
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, September 22, 1795.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
The material within brackets in this document has been taken from the newspaper.
Part of this essay is based on notes supplied by Rufus King. See “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 44. King wrote: “The Stipulation is in favor of the american, & its reciprocity in favor of the Frenchman, to ascertain the limits of the reciprocity, we must first Know the Extent of the Stipulation. The first clause in the article is in these words—‘The Subjects and Inhabitants of the said U.S. or any one of them, shall not be reputed aubains (that is aliens) in France.’
“‘There are,’ says M. Argou in his celebrated Institutes of the French Law, ‘two sorts of Strangers in France, one those who are naturalized, & who enjoy the Privileges, Franchises, liberties, immunities & Rights, and are on the Footing in every Respect, of Natives; the Other, those who are not naturalised, and who denominated aubains, are subject to various alien Disabilities, among which are incapacities in acquiring, conveying, & succeeding to real Estates.’
“If the americans shall not be reputed aliens in France, the incapacities in Question must be abolished, and in respect to that subject they must stand on the Footing of Natives. So on the other Hand, as Frenchmen shall not be reputed aliens in the U.S. of consequence their alien Disabilities are in like manner abolished, and in respect to the tenure of Lands they also must stand on the footing of Natives.
“It is not proposed to enquire what other Laws of the two Nations are affected by this abolition of alienism—our object being confined to an elucidation of its Effect upon the Laws relative to lands.
“Should any one doubt the interpretation, let him pursue the article a little further. After declaring that the american Citizens shall not be reputed aliens in France it proceeds to affirm as a consequence thereof their exemption from alien Forfeitures, and asserts, that they ‘pourront disposer par Testament Donation, ou autrement, de leurs Biens meubles & immeubles en faveur de telles personnes que bon leur semblera, & leur Heritiérs subjets de dits E.U, residans soit in France soit ailleurs pourront leur succéder ab intestat, sans qu’ils aient besoin d’obtenir des Lettres de Naturalité &c. &c.’ The exposition of this clause must be sought for not in our law books but in those of France. It is from their inattention to this Circumstance that any misconception has existed in the interpretation of the article. The words ‘Biens meubles & immeubles’ have been translated ‘Goods moveable & immoveable’; from our use of the word ‘Goods’ to signify personal as distinguished from real Estate, we have been led to give to the words ‘Goods moveable & immoveable,’ A sense equivalent to Chattels real & personal thereby excluding real Estate or Lands. But let us consult the French authorities.
“Biens—C’est en général tout ce qui compose nos richisses. Il y a deux Sortes de Biens, les meubles & les immeubles. Meuble, tout ce qui peust être transporté d’un lieu a un autre. Immeubles—Biens en Fonds, ou qui sont présumé avoir la nature de fonds. On distingue deux sorts d’immeubles, les réels & les fictifs—les immeuble reel sont non seulment la substance meme de la Terre, qui est ce qu’on appelle le Fonds, mais tout ce qui est adhérent a la surface, soit par la nature comme les arbres, soit par la main des Hommes comme les maisons, & autres bâtiments. On a appellé l’autre espece d’immeubles, immeuble fictifs, parce qu’ils ne sont tels que par Fiction; de ce nombre sont les Office venaux casuels & les rentés constituté &c &c—M. au Droit francois Lib 1 &c a Argou.
“Thus it appears that ‘goods moveable & immoveable’ comprehend the Estates real as well as personal; immoveable Goods being say the french authorities not only the very substance of the Earth, but also all that which is attached to its surface, whether by nature as the Trees, or by the agency of Man as Houses and other Buildings.
“And as by this interpretation the article confers upon the American Citizens a Right to take & hold by purchase or Descent to alienate by Will or otherwise, lands in France and as it stipulates an entire & perfect reciprocity in favor of Frenchmen within the US. the inference results that the alienism of French men in respect to the tenure of lands within the U.S. is by this article abolished, so that they may take, hold & convey lands in like manner as natives.
“A question on this article arose in the year 1786 when Mr. Jefferson was our Minister in France. The Marquis Bellgarde & the Chevr. de Meziere, who were sons of the two sisters of Gen. Oglethorp, claimed the Lands that had belonged to the General in Georgia and having represented to the Count Vergennes that they met with impediments in the prosecution of their Claim, on account as they supposed of the Laws in Georgia prohibiting aliens to hold lands. The Count Vergennes stated to Mr. Jefferson the complaint, and further that by the article in question the alien Disability of the Marq. Bellgarde & the Chev. Mezieres having in common with that of all French men been removed by our treaty—they ought not to experience any impediment on that account in succeeding to the Estate in Georgia of their Uncle Genl. Oglethorpe and that the Georgia laws ought to be repealed so as to agree with the treaty.
“Mr. Jefferson in reply to the C. Vergennes states the Case of the Nephews of Gen. Oglethorp, & proves that they were precluded from the Succession [to] their Uncles Estate for reasons altogether distinct from that of their alienism—respecting which are as well as their complaints of the existence of a State law in opposition to the treaty Mr. Jefferson says, ‘the Treaty with France has placed the subjects of France on a Footing with Natives, as to conveyances & Descent of Property—there is no necessity for the Assemblies to pass laws on the subject, the Treaty being a law, as I conceive, superior to those of particular assemblies, & repealing them when they stand in the way of its Operation.’
“Extract of Mr. Jefferson letter to the Secy. of For. Affairs dated Jan 2. 1786.
“The case of the Chevalier Meziere and the Marquis Bellgarde.
“P.S. Argou’s institutes is a work of authority and is with french lawyers what the Commentaries of Blackstone is with us.” (AD, Hamilton Papers, Library of Congress.)
2. For the text of Article 8 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 42.
4. For the text of Article 9 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 43.
5. This is apparently a reference to the analysis of Article 9 of the Jay Treaty by “Decius” (Brockholst Livingston) in The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 11, 1795. For the authorship of the “Decius” articles, see the introductory note to “The Defence No. I,” July 22, 1795.
6. Coke, First Institutes description begins The First Part of the Institutes of the Laws of England; Or, A Commentary upon Littleton: Not the Name of the Author only; hut of the Law itself. Authore Edwardo Coke, Milite. The Fifteenth Edition; Revised and Corrected with further Additions of Notes, References, and Proper Tables. By Francis Hargrave and Charles Butler, Esquires, of Lincoln’s Inn. Including also the Notes of Lord Chief Justice Hale and Lord Chancellor Nottingham: And an Analysis of Littleton, written by an Unknown Hand in 1658–9 (London: Printed for E. and R. Brooke, Bell-Yard, near TempleBar, 1794). description ends , Book I, Ch. I, Sec. 1, page 2b. See also “The Defence No. XI,” August 28, 1795, note 25.
7. Book I, Ch. I, Sec. 1, page 8a.
8. Blackstone wrote: “… his incapacity to hold them which occasions him to be passed by in descents of land.…”
9. At this point in the draft H wrote and crossed out the following paragraphs: “It has constantly been admitted that the article of the treaty of peace cooperating with the maxims of the common law protected all the property of those British subjects who previous to the peace held land in the U States. The only difficulty in the case was the descent or conveyance of those rights to others. This difficulty is obviated by the last Treaty which protects the transmission of those lands to the heirs and assigns though aliens of the persons who were proprietors at the time of the peace—and this is the only alteration which is made by the article.
“I speak with respect to those States where the law concerning aliens has not been altered by particular statutes, as in the State of New York. In this.”
11. This is a reference to the Treaty of Amity and Commerce between the United States and France, February 6, 1778. See Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 3–27.
12. See note 5.
13. Space left blank in MS, but H is referring to Article 11 (originally 13) of the Treaty of Amity and Commerce between the United States and France. For this article, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 47.
14. “Candid Remarks on the Treaty of Amity and Commerce between Great Britain and the United States” appeared in The [New York] Daily Advertiser, July 4, 1795.
15. Jean Domat, Les Loix Civiles Dans Leur Ordre Naturel, le Droit Public, et Legum Delectus (2nd edition, Paris, 1695). An English translation of this by William Strahan was published in London in 1722.
16. J. B. Denisart, Collection de Décisions Nouvelles et de Notions Relatives à la Jurisprudence Actuelle (7th edition, Paris, 1771).
17. In the newspaper a footnote was inserted at this point which does not appear in the draft. The note reads: “Biens. Le mot bien a une signification generale, & comprend toutes sorts de possessions, comme meubles, immeubles, acquéts, conquéts, propres, &c.
“On distingue dans les biens des particuliers, les meubles & les immeubles, les acquéts & les propres, & entre les propres, les paternels & les maternels, les anciens & les naissans. Les biens meubles sont ceux qui peuvent se mouvoir & se transporter d’un lieu en un autre, comme des denrees, des marchandises, de deniers comptans, de la vaisselle d’argent, des bestraux, des utensiles d’hotel. Les biens immeubles sont ceux qui ne peuvent se mouvoir ou se transporter d’un lieu dans un autre, comme des heritages, des maisons, &c.”
18. In the newspaper version of this essay a footnote was inserted at this point which does not appear in the draft. The note reads: “Biens—C’est en generale tout ce qui compose nos richesses; il y a deux sorts de biens, les meubles & les immeubles; meubles, tout ce qui peut etre transporte d’un lieu a un autre, immeubles—Biens en fonds, ou qui sont presume avoir la nature de fonds—On distingue deux sorts d’immeubles, les reels & les fictifs; les immeubles reel sont non seulment la substance meme de la terre qui est ce qu’on appelle le fond, mais tout ce qui est adherent a sa surface, soit par la nature comme les arbres, soit par la main des hommes, comme les maisons, & autre batiments—On a appelle l’autre espece d’immeubles, immeubles fictifs, parcequ’ils ne sont tels que par fiction: de ce nombre sont les offices venaux, casuels & les rentes constitutes.” This quotation also appears in King’s notes. See note 1.
19. H is referring to Gabriel Argou, Institution au droit francois … Histoire du droit françois, 2 Vols. (Paris, 1692).
21. See note 13.
22. See note 16.
23. The article “Etranger” in Pierre Jean Jacques Guillaume Guyot’s Répertoire Universel et Raisonné de Jurisprudence Civile, Criminielle, Canonique et Beneficiale … (Paris, 1784), VII, 114–17, states: “... Les Etrangers qui ne sont pas naturalisés par lettres du prince dûment enregistrées, ne peuvent posséder ni office, ni bénéfice, ni faire aucune fonction publique dans le royaume. Par arrêt du 24 juillet 1615, rendu entre les nobles de Bresse, Bugey, Gex & Valromey, & les officiers du présidial de Bourg, le conseil ordonna que les justices de ces seigneurs seroient excercées par les sujets du roi.…
“Dans les lettres de naturalité accordées à l’effet de pouvoir tenir des bénéfices dans le royaume, on a soin d’inférer, 1° que l’impétrant residéra en France & y finira ses jours; 2° qu’il ne pourra être pourvu de bénéfices qui conformément aux saints décrets, concordats, libertés & franchises de l’église gallicane.…
“Suivant l’article 4 de l’ordonnance de Blois, les Etrangers, quelques lettres de naturalité ou de dispense qu’ils aient obtenues, ne peuvent être pourvus d’archêvechés, d’évêchés, ni abbayes chefs d’ordre. Mais … le roi les reléve de leur incapacité par une clause particuliére.
“…Les Etrangers ne peuvent point être reçus au serment d’advocat, ni être principaux ou régens dans les universities.…”
24. The Chevalier de Mézières was the son of the oldest sister of General James Oglethorpe, the colonizer of Georgia. The Marquis de Bellegarde was the grandson, not the son, of one of Oglethorpe’s sisters.
25. “An Act for ascertaining the Rights of Aliens, and pointing out a Mode for the Admission of Citizens,” passed in Georgia on February 7, 1785, states: “That all free white persons, being aliens, or subjects of any foreign state or kingdom at peace with the United States of America, who shall register or enrol their names in the office of the Clerk of the Superior Court of the county where such aliens purpose to reside, may be, and they are hereby vested with the rights and privileges of acquiring, possessing, or holding, and selling, devising, or otherwise disposing, of all kinds of personal property, and renting houses or lands from year to year, and shall have the right of suing for all such debts, demands, or damages, other than for real estate, as may arise, or have arisen since the twelfth July, one thousand seven hundred and eighty-two” (copy, Microfilm Collection of Early State Records, Library of Congress).
26. This information was given to H by Rufus King. See note 1.
The case of the Chevalier de Méziéres is described by Thomas Jefferson in an enclosure to a letter to John Jay on January 2, 1786. The enclosure is Jefferson’s account of a conversation which he had with Charles Gravier, Count de Vergennes, French Minister for Foreign Affairs. In his account, Jefferson included an “Amplification of Subjects Discussed with Vergennes” which he had written on or about December 20, 1785, and subsequently had handed to Joseph-Matthias Gerard de Rayneval, principal secretary to the Count de Vergennes. The “Amplification” described the Mézières case (and incidentally that of the Marquis de Bellegarde) as follows: “The Case of the Chevr. de Mezieres was supposed to furnish an instance of our Disregard to Treaties; and the Event of that Case was inferred from Opinions supposed to have been given by Mr. Adams and myself. This is ascribing a Weight to our Opinions to which they are not entitled. They will have no Influence on the Decision of the Case. The Judges in our courts would not suffer them to be read. Their Guide is the Law of the Land, of which Law its Treaties make a Part. Indeed I know not what Opinion Mr. Adams may have given on this Case. And if any be imputed to him derogatory of our Regard to the Treaty with France, I think his Opinion has been misunderstood. With Respect to myself, the Doubts which I expressed to the Chevr. de Mezieres as to the Success of his Claims, were not founded on any Question whether the Treaty between France and the United States would be observed. On the contrary I venture to pronounce that it will be religiously observed, if his Case comes under it. But I doubted whether it would come under the Treaty. The Case, as I understand it is this. Genl. Oglethorpe, a British subject, had Lands in Georgia. He died since the Peace, having devised these Lands to his Wife. His heirs are the Chevr. de Mezieres, Son of his eldest Sister, and the Marquis de Bellegarde, Son of his younger Sister. This Case gives Rise to legal Questions, some of which have not yet been decided, either in England or America, the Laws of which Countries are nearly the same....
“Seeing no Event, in which, according to the Facts stated to me, the Treaty could be applied to this Case, or could give any Right whatever to Heirs of Genl. Oglethorpe, I advised the Chevr. de Mezieres not to urge his Pretensions on the Footing of Right, or under the Treaty, but to petition the Assembly of Georgia for a Grant of these Lands. If in the Question between the State and the Widow of Genl. Oglethorpe, it should be decided that they were the Property of the State, I counted on their Generosity and the friendly Dispositions in America towards the Subjects of France, that they would be favorable to the Chevr. de Mezieres. There is nothing in the preceding Observations which would not have applied against the Heir of Genl. Oglethorpe had he been a native Citizen of Georgia, as it now applies against him being a Subject of France. The Treaty has placed the Subjects of France on a footing with Natives as to Conveiances and Descent of Property. There was no Occasion for the Assemblies to pass Laws on this Subject, the Treaty being a Law, as I conceive, superior to those of particular Assemblies, and repealing them where they stand in the Way of its Operation.” (Boyd, Papers of Thomas Jefferson description begins Julian P. Boyd, ed., The Papers of Thomas Jefferson (Princeton, 1950–). description ends , IX, 107–10, 136–46.)
27. This is a quotation from Alexander Pope, Essay on Criticism.
28. This point was made by Alexander J. Dallas in “Features of Jay’s Treaty” (Dunlap and Clay poole’s [Philadelphia] American Daily Advertiser, July 18, 1795).