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 Independence, or an office or an act of Assembly, then it remained in General Oglethorpe at the epoch of the peace and it will be insisted, no doubt, that, by the sixth article of the treaty of peace between the United States and Great Britain, which forbids future confiscations, General 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 though, by the treaty of peace, General Oglethorpe could convey, yet that treaty did 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 General Oglethorpe, in the decision of which the Chevalier 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 conveyance to him, nor a succession ab intestato devolving on him, which are the cases provided for by our treaty with France. To sum up the matter in a few words; if the lands had passed to the State before the epoch of peace, the heirs of General 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 for 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 the heirs of General Oglethorpe, I advised the Chevalier de Mezieres not to urge his pretensions on the footing of right, nor 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 General Oglethorpe, it should be decided that they were the property of the State, I expected from their generosity, and the friendly dispositions in America towards the subjects of France, that they would be favorable to the Chevalier de Mezieres. There is nothing in the preceding observations, which would not have applied against the heir of General Ogiethorpe, 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 conveyances 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 operations.
The supposition that the treaty was disregarded on our part, in the instance of the acts of Assembly of Massachusetts 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 November the 20th, which I had the honor 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 United States will not be behind hand, in going beyond both, when occasions shall ever offer of manifesting their sincere attachment to this country.
I will pass on 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 two and a half to five per 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 shown 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 being ever more subject to a question, unless they be re-shipped. 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 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 our independence. 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 passed, giving all suits wherein a foreigner was a party, a privilege to be tried immediately, on the return of his process, without waiting till those of natives, which stand before them, 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 very great number of slaves to New York. By the seventh article of the treaty of peace, they stipulated not to carry away any of these. Notwithstanding this, it was known, when they were evacuating New York, that they were carrying away the slaves. General 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 King’s 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 the law, if Congress were of opinion they ought to do it. But, desirous that their citizens should be discharging their debts, they afterwards permitted British creditors to prosecute their suits, and to receive 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 receive 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 of the Count de Vergennes to what had been its principal drift. This was to endeavor to bring about a direct exchange between France and the United States, (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 potash, 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 voyage 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.
Having put this paper into the hands of Monsieur Reyneval, we entered into conversation again, on the subject of the Farms, which were now understood to be approaching to a conclusion. He told me, that he was decidedly of opinion, that the interest of the State required the Farm of tobacco to be discontinued, and that he had, accordingly, given every aid to my proposition, which lay within his sphere: that the Count de Vergennes was very clearly of the same opinion, and had supported it strongly with reasons of his own, when he transmitted it to the Comptroller General; but that the Comptroller, in the discussions of this subject which had taken place, besides the objections which the Count de Vergennes had repeated to me, and which are before mentioned, had added, that the contract with the Farmers General was now so far advanced, that the article of tobacco could not be withdrawn from it, without unraveling the whole transaction. Having understood, that, in this contract, there was always reserved to the crown, a right to discontinue it at any moment, making just reimbursements to the Farmers, I asked M. Reyneval, if the contract should be concluded in its present form, whether it might still be practicable to have it discontinued, as to the article of tobacco, at some future moment. He said it might be possible.
Upon the whole, the true obstacle to this proposition has penetrated, in various ways, through the veil which covers it. The influence of the Farmers General has been heretofore found sufficient to shake a minister in his office. Monsieur de Calonne’s continuance or dismission has been thought, for some time, to be on a poise. Were he to shift this great weight, therefore, out of his own scale into that of his adversaries, it would decide their preponderance. The joint interests of France and America would be an insufficient counterpoise in his favor.
It will be observed, that these efforts to improve the commerce of the United States have been confined to that branch only, which respects France itself, and that nothing passed on the subject of our commerce with the West Indies, except an incidental conversation as to our fish. The reason of this was no want of a due sense of its importance. Of that I am thoroughly sensible. But efforts in favor of this branch would, at present, be desperate. To nations with which we have not yet treated, and who have possessions in America, we may offer a free vent of their manufactures in the United States, for a full, or a modified admittance into those possessions. But to France, we are obliged to give that freedom for a different compensation; to wit, for her aid in effecting our independence. It is difficult, therefore, to say what we have now to offer her, for an admission into her West Indies. Doubtless it has its price. But the question is, what this would be, and whether worth our while to give it. Were we to propose to give to each other’s citizens all the rights of natives, they would, of course, count what they should gain by this enlargement of right, and examine whether it would be worth to them, as much as their monopoly of their West India commerce. If not, that commercial freedom which we wish to preserve, and which, indeed, is so valuable, leaves us little else to offer. An expression in my letter to the Count de Vergennes, of November the 20th, wherein I hinted, that both nations might, perhaps, come into the opinion, that the condition of natives might be a better ground of intercourse for their citizens, than that of the most favored nation, was intended to furnish an opportunity to the minister, of parleying on that subject, if he was so disposed, and to myself, of seeing whereabouts they would begin, that I might communicate it to Congress, and leave them to judge of the expediency of pursuing the subject. But no overtures have followed; for I have no right to consider, as coming from the minister, certain questions which were, very soon after, proposed to me by an individual. It sufficiently accounts for these questions, that that individual had written a memorial on the subject, for the consideration of the minister, and might wish to know what we would be willing to do. The idea that I should answer such questions to him, is equally unaccountable, whether we suppose them originating with himself, or coming from the minister. In fact, I must suppose them to be his own; and I transmit them, only that Congress my see what one Frenchman, at least, thinks on the subject. If we can obtain from Great Britain reasonable conditions of commerce (which, in my idea, must for ever include an admission into her islands), the freest ground between these two nations would seem to be the best. But if we can obtain no equal terms from her, perhaps Congress might think it prudent, as Holland has done, to connect us unequivocally with France. Holland has purchased the protection of France. The price she pays is, aid in time of war. It is interesting for us to purchase a free commerce with the French islands. But whether it is best to pay for it, by aids in war, or by privileges in commerce; or not to purchase it at all, is the question.