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• Points to Be Considered In the Instructions to Mr. Jay, Envoy Extraordinary to Great Britain
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• No . Xxiii 1

no. XVII

1795.

The eighth article 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 attending the 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 and equitable provision was destined not to escape uncensured? As if it was predetermined that not a single line of the treaty should pass without the imputation of guilt; nothing less than an infraction of the Constitution of the United States has been charged upon this article. It attempts, we are told, a disposition of the public money, unwarranted by and contrary to the Constitution. The examination of this wonderful, 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.

Let us proceed, for the present, to the 9th article.

This article agrees 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 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 incidental thereto, shall 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 in the grant of an indefinite and permanent right to British subjects to hold lands in the United States, did more, it is believed, to excite prejudices against the treaty than any thing that is really contained in it. And yet when truly 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 lands of which our laws did not permit and legalize the acquisition.

These propositions will now be elucidated.

The term—hold—in the legal code of Great Britain and 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 forfeited 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 incapable. Land, therefore, is forfeited to the Government the instant it passes to an alien. The Roman law nullifies the contract entirely, 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 forfeiture 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 ones, establish the above positions, viz.: Coke on Littleton, pages 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 are specially disabled to take some particular thing. If an alien, Christian or infidel, purchase houses, lands, tenements, or hereditaments to him or his aliens, albeit he can have no heirs, yet he is of capacity to take a fee simple, but not to hold.— The same, page 8:—If a man seized of land in fee, hath issue an alien, he cannot be heir, propter defectum subjectionis.— Blackstone’s Commentaries, Book II., Chap. XVIII., § 2:—Alienation to an alien is a cause of forfeiture to the crown of the lands so alienated, not only on account of his incapacity to hold them, but likewise on account of his presumption in attempting, by an act of his own, to acquire real property.—Idem., Chap. XIX., § 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 merchandise.—

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, the laws of both countries agreeing in this particular, that 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—in other words, those in which our laws permitted the subjects and citizens of the two parties to hold lands in the territories of each other. Some of these cases existed prior to the treaty of peace; and where confiscations had not taken place, there has never been a doubt, that the property was effectually protected by that treaty. Others have arisen since that treaty, under special statutes of particular States. Whether there are any others depending on the principles of the common law, need not be inquired into here, since the late treaty will neither strengthen nor impair the operation of those principles.

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 entirely out of the protection of the article under consideration; the purchase will not avail him; the forfeiture, which was incurred by it, is still in full force. As to those lands which the laws of a State allowed him to purchase and 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 individuals to enjoy their property by descent or devise, which, it is presumable 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 (and concerning which I shall barely remark here, that it is contrary to the practice of several of the States, and to a practice from which some of them have hitherto derived material advantages) the extent to which the principle is affected by the present treaty is too limited to be felt, and in the rapid mutations of property, it will every day diminish. Every alienation of a parcel of the privileged land to a citizen of the United States, will, as to that land, by interrupting the chain, put an end to the future operations of the privilege; and the lapse of no great number of years may be expected to make an entire revolution in the property, so as to divest the whole of the privilege.

To manifest the unreasonableness of the loud and virulent clamor, which was incited against this article, it has been observed by the friends of the instrument, that our treaty with France 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. Decius in particular, after taking pains to show that it is erroneous—that the terms—goods movable and immovable,—in the 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 and inheritance of lands, triumphantly plumes himself on the detection of a fallacy of the writer of certain—candid remarks on the treaty,—who gives the interpretation 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, and embracing inheritances in land, corporeal and incorporeal hereditaments, as well as property in movable things.

When it is necessary to distinguish one species from another, it is done by an adjective——biens meubles et immeubles,— answering to bona or res mobilia, or immobilia, things movable and immovable, estates real and personal. The authorities at foot1 will show the analogy of these different terms in the three different 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, entitled, Collection de Decisions Nouvelles, et de Notions Relatives à la furisprudence Actuelle, under the article Biens,2 and is in these words, viz.: “The word bien has a general signification, and comprehends all sorts of possessions as movables, immovables, purchases, acquisitions by marriage, inheritance, etc. It is distinguished into these particulars: movables, immovables, purchases, and inheritances; subdividing inheritances into paternal and maternal, old and new. Movable biens are those which may be moved and transported from one place to another, as wares, merchandises, and current money, plate, beasts, household utensils, etc. Immovable biens are those which cannot be moved from one place to another, as inheritances, houses,etc. Biens are distinguished again into corporeal and incorporeal.” Another1 is drawn from the celebrated institutes of the French law, by Mr. Argou, and is in these words: “Biens—This is in general whatever composes our riches. There are two sorts of biens, movable and immovable. Movable, all that may be transported from one place to another. Immovable, lands or what is presumed to have the nature of land. They are distinguished into two kinds, real and fictitious. Real are not only the substance of the earth, which is called fond; 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, and subject to fiscal reversion, rent-charges, etc. “The signification of bona in the Roman law, corresponds, as was observed above, with that of biens in the French. “Bonorum appellatio universitatem quandem, et non singulas res demonstrat”; which may be rendered, “The appellation of 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.1 In our treaty with France they are translated “goods”; but it is evidently a great mistake to understand the expression in the limited 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 term; 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 movable and immovable,” let us proceed with this guide to a review of the article.

Its first and principal feature is: “that the subjects and inhabitants of the United States, or 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 cited, is this: “Aubains are persons 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 exempted 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 estates, subject to the 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 to this, it is further declared that they may, by testament, donation, or otherwise, dispose of their goods, movable and immovable (that is, as we have seen, their estates, real and personal) in favor of such persons as to them shall appear good; so that their heirs, subjects of the United States, whether residing in France or elsewhere, may succeed to them, ab intestato, without being obliged to obtain letters of naturalization.

These are the stipulations on the part of France; and they amount to a removal from the citizens of the United States of alien disabilities in that country 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.

What are the correlative stipulations on the part of the United 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 vigor; and the United States, on their part, or any of them, shall be at liberty to enact such laws relative to that matter as to them shall appear proper.”

Since, then, the article removes from our citizens the disabilities of aliens as to property in France, and stipulates for her citizens an entire and perfect reciprocity in the United States, it follows that Frenchmen are equally exempt in the United 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 and the Chevalier Meziere, sons of the two sisters of General Oglethorpe, 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. M. de 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 impediments 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 were precluded from the succession for other reasons than that of alienism; and then adds, that as the treaty with France having placed the subjects of France in the United 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.

Where now, Decius, is thy mighty triumph? Where the trophies of thy fancied victory? Learn that in political, as well as other science,

“Shallow draughts intoxicate the brain, And drinking largely, sobers us again.”

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 showing, 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, and 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 lands in England, while millions of acres have been purchased by British subjects in our country, with knowledge 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 endeavoring 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?

As to the infraction of the rights of the States, this, it is presumed, must relate to the depriving them of forfeitures of alien property. But as the article gives no right to a British subject to hold any lands which the laws of the State did not previously authorize him to hold, it prevents no forfeiture to which he was subject by them, and, consequently, deprives no State of the benefit of any such forfeiture. With regard to escheats for want of qualified heirs, it depended on every proprietor to avoid them by alienations 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, and becomes forfeited 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 shown, that on a true construction, it only applies to the very limited 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 shown, 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, tranquillize 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 style 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 United States and Great Britain led to the possession of lands by the citizens of each in the respective territories. It was natural and just to secure by treaty their free transmission to the heirs and 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 there may 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 and abuse of its name!

Camillus.

[1]Justinian’s Institutes, lib. iii., tit. 10, 11, 12, 13; lib. iv., tit. 2. Domat’s Civil and Public Law. Prel. Book, tit. 3, secs. 1, 2; book iv., sec. 1.

[2]Biens. Le mot, bien, a une signification generale, & comprend toutes sortes de possessions, comme meubles, immeubles, acquĕts, conquĕts, propres, etc.

On distingue dans les biens des particuliers, les meubles & les immeubles, les acquĕts & 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 bestiaux, 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, etc.

[1]Biens.—C’est en generale tout ce qui compose nos richesses; il y a deux sortes de biens, les meubles & les immeubles; meubles, tout ce qui peut etre transporté d’un lieu à un autre: immeubles—biens en fonds, ou qui sont presumé avoir la nature de fonds—On distingue deux sortes d’immeubles, les réels, & les fictifs; les immeubles réels sont non seulement la substance meme de la terre qui est ce qu’on appelle le fond, mais tout ce qui est adherent à sa surface, soit par la nature, comme les arbres, soit par la main des hommes, comme les maisons & autres batiments—On a appellé l’autre espece d’immeubles, immeubles fictifs; parce qu’ils ne sont telles que par fiction; de ce nombre sont les offices venaux, casuels, & les rentes constituées.

[1]See authorities before cited. See also Puffendorff, Book VIII., ch. v., sec. 8; Grotius, Book III., ch. v., sec. 11, 12; Vatel, Book I., ch. xx., sec. 245, 246, 247.