Jefferson’s Amplification of Subjects Discussed with Vergennes
[ca. 20 Dec. 1785]
Explanations on some of the Subjects of the Conversation which I had the Honor of having with his Excellency the Count de Vergennes when I was last at Versailles.
The principal Design of that Conversation was to discuss those Articles of Commerce which the United States could spare, which are wanted in France, and if recieved there on a convenient footing would be exchanged for the Productions of France. But in the Course of the Conversation some Circumstances were incidentally mentioned by the Count de Vergennes which induce me to suppose he had received Impressions neither favorable to us, nor derived from perfect Information.1
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.2 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.3 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.
- 1. It is a Question under the Laws of those Countries whether Persons born before their Separation and once completely invested in both with the Character of natural Subjects, can ever become Aliens in either? There are4 respectable Opinions on both Sides. If the negative be right, then Genl. Oglethorpe having never become an Alien, and having devised his Lands to his Wife, who on this Supposition also was not an Alien, the Devise has transferred the Land to her, and there is nothing left for the Treaty to operate on.
- 2. If the affirmative Opinion be right, and the Inhabitants of Great Britain and America born before the Revolution are become Aliens to each other, it follows, by the Laws of both, that the Lands which either possessed, within the Jurisdiction of the other, became the Property of the State in which they are. But a Question arises, whether the Transfer of the Property took Place on the Declaration of Independance, or not till an Office, or an Act of Assembly had declared the Transfer. If the Property passed to the State on the Declaration of Independance, then it did not remain in Genl. Oglethorpe, and of Course at the Time of his Death, he having nothing, there was nothing to pass to his Heirs, and so nothing for the Treaty to operate on.
- 3. If the Property does not pass till declared by an Office found by Jury, or an Act passed by the Assembly, the Question then is whether an Office had been found, or an Act of Assembly been passed for that Purpose before the Peace? If there was, the Lands had passed to the State during his Life, and nothing being left in him there is nothing for his Heirs to claim under the Treaty.
- 4. If the Property had not been transferred to the State, before the Peace, either by the Declaration of Independance, or an Office or an Act of Assembly, then it remained in Genl. Oglethorpe at the Epoch of the Peace; and it will be insisted no Doubt that, by the 6th. Article of the Treaty of Peace between the U.S. and Gr. Britain, which forbids future Confiscations, Genl. Oglethorpe acquired a Capacity of holding and of conveying his Lands. He has conveyed them to his Wife. But, she being an Alien, it will be decided by the Laws of the Land whether she took them for her own Use, or for the Use of the State. For it is a general Principle of our Law that Conveyances to Aliens pass the Lands to the State; and it may be urged that tho’ by the Treaty of Peace Genl. Oglethorpe could convey, yet that Treaty did5 not mean to give him a greater Privilege of Conveyance than Natives hold, to wit, a Privilege of transferring the Property to Persons incapable by Law of taking it. However this would be a Question between the State of Georgia and the Widow of Genl. Oglethorpe, in the Decision of which the Chevr. de Mezieres is not interested, because whether she takes the Land by the Will for her own Use, or for that of the State, it is equally prevented from descending to him: there is neither a Conveiance to him, nor a Succession ab intestato devolving on him, which are the Cases provided for by our Treaty with France. To sum up this Matter in a few Words; if the Lands had passed to the State before the Epoch of the Peace, the Heirs of Genl. Oglethorpe cannot say they have descended on them, and if they remained in the General at that Epoch, the Treaty saving them to him, he could convey them away from his Heirs, and he has conveyed them to his Widow, either for her own Use or that of the State.
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 concieve, superior to those of particular Assemblies, and repealing them where they stand in the Way of its Operation.
The Supposition that the Treaty was disregarded on our Part in the Instance of the Acts of Assembly of Massachusets and New-Hampshire which made a Distinction between Natives and Foreigners as to the Duties to be paid on Commerce, was taken Notice of in the Letter of Nov. 20. which I had the Honour of addressing to the Count de Vergennes. And while I express my Hopes that, on a Revision of these Subjects, nothing will be found in them derogatory from either the Letter or Spirit of our Treaty, I will add Assurances that the U.S. will not be behind-hand in going beyond both, whenever Occasions shall offer of manifesting their sincere Attachment to this country.6
I will pass to the Observation that our commercial Regulations are difficult and repugnant to the French Merchants. To detail these Regulations minutely as they exist in every State would be beyond my Information. A general View of them however will suffice, because the States differ little in their several Regulations. On the Arrival of a Ship in America, her Cargo must be reported at the proper Office. The Duties on it are to be paid. These are commonly from 2½ to 5. Cent on its Value. On many Articles, the Value of which is tolerably uniform, the precise Sum is fixed by Law. A Tariff of these is presented to the Importer and he can see what he has to pay as well as the Officer. For other Articles the Duty is such a per Cent on their Value. That Value is either shewn by the Invoice, or by the Oath of the Importer. This Operation being once over, and it is a very short one, the Goods are considered as entered, and may then pass through the whole thirteen States without their Cargo being ever more subject to a Question, unless they be re-shipped.7 Exportation is still more simple: because as we prohibit the Exportation of nothing, and very rarely lay a Duty on any Article of Export, the State is little interested in examining outward bound Vessels. The Captain asks a Clearance for his own Purposes. As to the Operations of internal Commerce, such as Matters of Exchange, of buying, selling, bartering &c. our Laws are the same as the English. If they have been altered in any Instance, it has been to render them more simple.
Lastly, as to the Tardiness of the Administration of Justice with us, it would be equally tedious and impracticable for me to give a precise Account of it in every State. But I think it probable that it is much on the same Footing through all the States, and that an Account of it in any one of them may be found a general Presumption of it in the others. Being best acquainted with its Administration in Virginia, I shall confine myself to that. Before the Revolution, a Judgment could not be obtained under eight Years in the supreme Court, where the Suit was in the Department of the Common-law, which Department embraces about nine Tenths of the Subjects of legal Contestation. In that of the Chancery from twelve to twenty Years were requisite. This did not proceed from any Vice in the Laws, but from the Indolence of the Judges appointed by the King: and these Judges holding their Offices during his Will only, he could have reformed the Evil at any Time. This Reformation was among the first Works of the Legislature, after their Independance. A Judgment can now be obtained in the supreme Court in one Year, at the Common-law, and in about three Years in the Chancery. But more particularly to protect the Commerce of France, which at that Moment was considerable with us, a Law was past giving all Suits wherein a Foreigner was a Party, a Privilege to be tried immediately on the Return of their Process, without waiting till those of Natives shall have been decided on. Out of this Act however the British stand excluded by a subsequent one. This with its Causes must be explained. The British Army, after ravaging the State of Virginia, had sent off a great Number of Slaves to New-york. By the 7th. Article of the Treaty of Peace they stipulated not to carry away any of these. Notwithstanding this, it was known, when they were evacuating N. York, that they were carrying away the Slaves. Genl. Washington made an official Demand of Sir Guy Carleton that he should cease to send them away. He answered that these People had come to them under Promise of the Kings protection and that that Promise should be fulfilled in Preference to the Stipulation in the Treaty. The State of Virginia to which nearly the whole of these Slaves belonged passed a Law to forbid the Recovery of Debts due to British Subjects. They declared at the same Time they would repeal that Law if Congress were of Opinion they ought to do it. But desirous their Citizens should be discharging their Debts, they afterwards permitted British Creditors to prosecute their Suits, and to recieve their Debts in seven equal and annual Payments; relying that the Demand for the Slaves would either be admitted or denied in Time to lay their Hands on some of the latter Payments for Reimbursement. The Immensity of this Debt was another Reason for forbidding such a Mass of Property to be offered for Sale under Execution at once, as from the small Quantity of circulating Money, it must have sold for little or nothing, whereby the Creditor would have failed to recieve his Money, and the Debtor would have lost his whole Estate without being discharged of his Debt. This is the History of the Delay of Justice in that Country in the Case of British Creditors. As to all others its Administration is as speedy as Justice itself will admit. I presume it is equally so in all the other States, and can add that it is administered in them all with a Purity and Integrity of which few Countries afford an Example.
I cannot take Leave altogether of the Subjects of this Conversation without recalling the Attention to what had been its principal Drift. This was to endeavour to bring about a direct Exchange between France and the U.S. (without the Intervention of a third Nation) of those Productions with which each could furnish the other. We can furnish to France (because we have heretofore furnished to England) of Whale-oil and Spermaceti, of Furs and Peltry, of Ships and naval Stores, and of Pot-ash, to the Amount of fifteen millions of Livres, and the Quantities will admit of Increase. Of our Tobacco France consumes the Value of ten Millions more. Twenty-five Millions of Livres then mark the Extent of that Commerce of Exchange which is at present practicable between us. We want in Return Productions and Manufactures, not Money. If the Duties on our Produce are light and the Sale free, we shall undoubtedly bring it here, and lay out the Proceeds on the Spot in the Productions and Manufactures which we want. The Merchants of France will on their Part become active in the same Business. We shall no more think, when we shall have sold our Produce here, of making an useless Voiage to another Country to lay out the Money, than we think at present when we have sold it elsewhere, of coming here to lay out the Money. The Conclusion is that there are Commodities which form a Basis of Exchange to the Extent of a Million of Guineas annually; it is for the Wisdom of those in Power to contrive that the Exchange shall be made.
PrC (MHi: AMT); consisting of seven pages, being the first half of the text; in Short’s hand; without date; endorsed by John Adams in part: “Decr. 27. ansd. Jan. 19 1786,” referring to TJ’s letter to Adams of 27 Dec. 1785, in which this part of PrC was enclosed. Remainder of text is drawn from the retained half of PrC (DLC: TJ Papers, 36: 6243–9), also having seven pages. RC (Arch. Aff. Etr., Corr. Pol., E.-U., xxx, accompanied by a French translation); identical with the text of the two PrC just described; endorsed “31 Xbre. 1785.” Dft (ViWC); entirely in TJ’s hand; this is actually a PrC with corrections in the text made both before and after the PrC was made; some of these variants are indicated in notes below. The composition draft which was the prototype of this PrC has not been found. Tr (DLC: TJ Papers, 17:3011–3024); a PrC in Short’s hand, with two minor corrections by TJ. This and another Tr (DNA: PCC, No. 107, i) are also parts of MS copies of the report to Jay of 2 Jan. 1786. Not recorded in SJL.
Although this document formed a part of TJ’s report to Jay of his conversations with Vergennes extending from Aug. through early Dec. 1785 (see enclosure in TJ to Jay, 2 Jan. 1786), it obviously served a distinct purpose of its own aside from that of transmitting information to Congress—that is, to clarify and amplify for Vergennes what TJ had expressed on certain specific subjects brought up in their conference of 9 Dec. 1785. In this respect this document may be regarded as being in effect a letter to Vergennes, comparable to that written by TJ on 15 Aug. 1785 on the subject of the tobacco monopoly of the farmers-general. “On my Return [from the conference of 9 Dec.] … ,” TJ reported to Jay, “I wrote the following Observations on them, which, the next Time I went to Versailles, (not having an Opportunity of speaking to the Count de Vergennes) I put into the Hands of M. Rayneval, praying him to read them and to ask the Favor of the Count to do the same” (enclosure, TJ to Jay, 2 Jan. 1786). How soon after his return TJ reduced these observations to writing is not known, but the draft was evidently completed before 20 Dec., for on that day he went to Versailles and presumably handed this document to Rayneval (see TJ to William Robeson, of 21 Dec. 1785; see also TJ to the Georgia delegates in Congress, 22 Dec. 1785). The Chevr. de mezières wrote to Vergennes on 11 Oct. 1785 thanking him for promising letters of recommendation to persons in America, and adding: “Mon Avocat à Londres vient de me faire dire qu’il est de la plus grande Conséquence pour moy d’avoir le plustôt possible de forte recommendations auprès de Messieurs les Membres du Congrés, pour profiter de l’avantage que me donne le traité qu’ils onts faits avec la france. Monsieur Jferson ma assuré que je pouvois heriter dans son pays comme français, de même que si j’etois né en Amerique, et que la Veuve de mon oncle etant Anglaise et pour eux Etrangere n’étoit pas dans le Cas, mais mon avocat Craint qu’elle ne me prenne de Vitesse, en se faisant Naturaliser pour me discuter mes droits.” Mezières urged Vergennes to provide him with letters to members of Congress “assez fortes pour qu’ils y ayent egards, et qu’ils reconnoissent mon droit a cette Succession.” Vergennes replied by giving him a letter to Otto directing him to make “auprès du Congrès les demarches que vous croirez les plus propres à procurer à M. le Cher. de Mezieres la justice qu’il se croit fondé à reclamer en vertu des Traités qui subsistent entre le Roi et les Etats unis. Je recommande cette affaire à vos soins” (Mezières to Vergennes, 11 Oct.; Vergennes to Otto, 20 Oct., and to Mezières, 21 Oct. 1785; Arch. Aff. Etr., Corr. Pol., E.-U., xxx; Tr in DLC). TJ’s opinion was evidently given to Mezières in person early in Oct.; Adams’ opinion was set forth in a conversation between him and Francis Plowden, Mezières’ legal counsellor in London, as recorded in a letter from Plowden to Mezières of 31 Oct. 1785 which somehow came into TJ’s possession and which he copied, evidently before giving his present written opinion on the subject. This letter (DLC: TJ Papers, 15: 2698–9) from Plowden reads in part as follows:
“In consequence of your desire, I have procured the certificates which you tell me are requisite for your prosecuting the claim of your late uncle’s property in Georgia. I have had much conversation with Mr. Adams, the American Ambassador to our court, upon the subject. I omitted to ask him no question which could possibly tend to answer your wishes, and as much of the answers and information which he gave me as is essential to the question, I shall have the honor of communicating to you.
“He tells me that the king of France published an edict by which he gave the rights of Natural born subjects to all Americans in France, upon condition that the American states would pass acts for opening the like rights to the French in America: but that no American state having passed such an Act, the effect of this conditional edict of the French king is not yet completed.
“That he beleives, (but does not know) that the late General Oglethorpe’s property was not forfeited to the state: and he apprehends that although it were not forfeited, yet he could not have power to dispose of it to a person, who by the laws of Georgia was incapable of taking it.
“That the laws of descent, devises, representation &c. are the same in Georgia as in England.
“That the Marquis of Belgarde had been with him and told him that he had procured a conveyance of all the late General’s property from Mrs. Ogelthorpe to him (but for what consideration he could not say).
“That he will be very happy to do any thing in his power to serve you in this business.
“I could not learn from him that any collection of the acts, statutes or resolutions of the state of Georgia (nor indeed of any other state) could be procured.
“Under so much darkness and uncertainty as to the leading principles and grounds upon which this question turns, it is not possible for me to give you any other than hypothetical advice, which, tho’ the less satisfactory, is not less sincere from one who wishes earnestly to render you every possible service, on this as well as every other occasion.
“If the French are on the same footing as all other nations as to the right of taking lands by descent or purchase within the state of Georgia, and the same law there subsists as in England, all the sisters of the late General will take in Common as one heir; and their respective real representatives will take in Common in right of their respective mothers, if capable of taking at all: but if they are incapable of taking lands by descent, as they would be in England by reason of their alienage, the law takes no notice of them in casting a descent, and therefore the General will be as much dead without heirs, as if his sisters had been dead without issue: unless any person (who is an American subject) can prove himself his heir by representation. In either then of these cases, that the General had no heir at law, or that his wife, who is his devisee, is an alien, the state of Georgia is at present intitled to his lands. In the first place, if the will be void, because the devise is to an Alien, the lands will escheat to the state for want of an heir. In the second place, if the devisee be an alien, she can take by purchase under the will, tho’ not for herself, but for the benefit of the state, and immediately upon an office found that she is an alien, the inheritance will be vested in the state. As to any conveyance made by Mrs. Ogelthorpe to the Marquis de Belgarde or any other person, it can avail nothing; for if she cannot hold for her own benefit, she cannot alien the land for the benefit of others: for tho the legal estate of freehold be in her by virtue of the devise, yet it is only so in trust for the state, till office be found; and should she die before office found, the freehold will then ipso facto vest in the state, which emphatically proves that the estate vested in her by the devise is not transferable by her to others.
“Under a point of law so clear (if the laws of Georgia and England are the same in this respect) the only advice I have to submit to you is that you get yourself immediately naturalized in Georgia, and petition the state to grant to you the lands of the late General Ogelthorpe, your uncle, which appear to me at present to be vested in them, either by escheat for want of an heir, or which upon an office found will vest in them because the devisee of the late General is an alien, and consequently incapable of holding them.” In his letter to TJ of 19 Jan. 1786 Adams mentions a conversation with Granville Sharp on the Mezières case, but none with Plowden. He evidently did not consider Plowden’s conversations with him as a formal consultation, nor the views attributed to him by Plowden as constituting an opinion, for he assured TJ: “In this Case I have never given any opinion at all. Indeed I have never been consulted.” The marquis de bellegarde was the grandson, not the son of his younger sister. The Marquis de Bellegarde received the greater part of the Oglethorpe estates after the death of Mrs. Oglethorpe in 1787 (DNB description begins Dictionary of National Biography description ends ).
1. Preceding four words interlined in Dft in substitution for “conformable with fact.”
2. This sentence interlined in Dft in substitution for the following: “In the first place that case will not be decided on our opinions.”
3. This and the preceding sentence are interlined in Dft in substitution for the following deleted passage: “In the next place, I cannot say what opinion Mr. Adams has given. My confidence in his knowledge of the subject however gives me confidence as to his opinion.”
4. Preceding two words are interlined in Dft in substitution for “I have heard,” deleted.
5. Preceding three words are interlined in Dft in substitution for “it could,” deleted.
6. PrC in MHi ends at this point; text from this point on is derived from PrC in DLC.
7. Preceding four words are not in Dft.