Article Proposed by the Lord Chancellor (Loughborough), [c. 9 October 1794]
Article Proposed by the Lord Chancellor (Loughborough)
[London, [c. 9 Oct. 1794]]
| 1. That the Native Subjects of the united States & those of H[is]. B[rittanic]. M[ajesty]. shall not be considered in either Country as Aliens in respect of any legal disability.1 | The Consequences of this Article to the American in the British Dominions would be |
| 1. That He could take to his own use by descent or purchase any Interest in Land | |
| [in lighter ink] But This stipulation is not to extend to |
2. That He could exercise any trade or occupation, from many of which Aliens are excluded by particular acts. |
| 3. That He would not be liable to alien duties of any sort even Light House & anchorage dues | |
| 4. That He could become a Member of any Corporation, and entitled to all the priviledges of It. | |
| [in lighter ink] Q[uery]. Is |
5. That He could hold any Office by Election or Commission from the Crown & could become a Member of Parl[iamen]t. or of the privy Council. |
| =not knowing how far the Disabilitys of Alienage extend in America, It cannot be accurately stated what would be the Effect of the Article wh. respect to the British Subject in America. Supposing the Law to be the same in both Countrys, the First consequence would be reciprocal;— But the Advantage from it is evidently on the side of America. For It is more likely that British Capital would be attracted to the cultivation of American Land, than that any American Capital shd. be transferred to Britain— | |
| as to all the other consequences It is probable that the advantage is solely on the side of America | |
| But there is an Advantage, common to both Countrys, by which ^each^ gains what It gives— That the connections of both ^would be so^ interwoven— That the Subjects of each would find themselves at home in the other, and their Union would be cemented by kindness as well as by Policy— | |
| 2nd: That Wills made in either Country affecting real Estates in both, remaining ^(as they must)^ in that Country where they are made, An Exemplification of the Will (which as the British dominions wo[ul]d. be under the Great Seal & probably in America under that of the fœderal Court) should be allowed to have the same effect as the Will Itself. | |
| Observation | |
| The Copy of a Will of personal Estate duely authenticated from America is admitted here & |
|
| 3d: All Deeds conveying any real Estate or Interest in Land or any personal property ^in America^, of the value of £100 ^executed in England^ should be enrolled in one of the Courts of West[minster] Hall upon the acknowledgement of one of the Partys ^before a Judge^ & also an Affidavit filed of the Witnesses of the Execution of ^by^ the other Partys— The Deed with an office Copy of the affidavit being Transmitted to America should be there received as proved & in case of its Loss an Exemplification from the Roll should supply its place. | The Regulation which wod. be necessary as to this Article in America must be submitted to Mr. Jay. |
| It would still be necessary to add another guard; As the Signature of the Judge to the order on the Deed when the deed ^itself^ is sent, or of the officer who attests the will Copy could not be proved abroad, & therefore an Affidavit should be made of that fact, before the Mayor ^annexed to the Instrument^ & certified under the Seal of the City— | |
| The forgery of any Signature or counterfeiting the Seal (if they are not already subject to Punishment) should be subjected to the same that is provided in like cases.3 | |
| 4. The preceding Article wod. likewise extend to the office Copys of the Judgments of all Courts that have no known Seal viz. that the Handwriting of the officer delivering out the Copy shd. be proved by affidavit ^&^ certified under the City Seal | |
| The Court of Admiralty has a Seal as well as the Court for the probate of Wills | |
| 5. The Mode of taking Evidence under Commissions is extremely defective & a great embarrassment to Justice I should think it a great advancement of Justice if the Chancellor instead of leaving to the Partys the carriage & the Execution of their own Commission were enabled to address the Cheif Justice of the fœderal Court & request Him to interpose His authority by appointing Commissioners to examine the Witnesses on the Interrogatories transmitted, to administer the oath to them, & cause their Answers to be taken down in their presence & then to return the whole sealed up, and authenticated under the Seal of the Court. The same thing might be done here & I should add to It a Qualification that no Person shd. be appointed a Commissioner ^here^ who had not been a Barrister of at least five Years standing. | |
| It would be inconvenient to appoint a Standing Commission here, because in each case convenience would require that the Time & place of executing It should be considered; But in Effect It would be inconvenient to appoint a Standing Commission here, because in each case convenience would require that the Time & place of executing It should be considered; But in Effect there would be very little change in the Commissioners.4 | |
| The greater part of these Articles would require the Sanction of Parl[iamen]t: for what respects the British dominions; But if the outline I have attempted to draw meets Mr. Jay’s Approbation, I think it would not be difficult to frame one or two articles expressive of the general principles that govern them, which might find their place without impropriety in a diplomatick act, and which would soon be developed in a Legislative Act.5 |
AD, in JJ’s hand, n.d., NHi: Jay Papers (EJ: 00892, images 9–16), entitled “Lord Chancellor’s proposed Article”. In file entitled: “Papers connected with the Negociation of the British Treaty, 1794”. LbkC, in JT’s hand, enclosed in JJ to ER, 19 Nov. 1794, NNC:JJ Lbk. 8.
1. Loughborough proposed this article to JJ on or shortly before 9 Oct. 1794. They met to discuss it on 10–11 October. See JJ to Loughborough, 9 Oct. 1794, above. JJ’s instructions regarding alienage issues stated “The intercourse with England make it necessary that the disabilities, arising from alienage in case of inheritance, should be put upon a liberal footing or rather abolished.” ER to JJ, 6 May 1794, , 5: 640.
2. This and the next comment are by Grenville.
3. On JJ’s legal difficulties regarding securing evidence needed for settling Jay family inheritances from the Peloquin estate in England, see , 3: 361–62, 491–92. Alienage, however, was not among the obstacles in that case.
4. On the use of commissions to collect evidence for court cases involving parties abroad, see the notes on the Van Staphorst case, and the Minutes of the Supreme Court, 1–3 Aug. 1792, , 5: 184, 329, 331.
5. On this proposal, see also JJ to GW (private), 3 Sept., and (private), 4 Sept. 1795, below.
JQA noted in his diary: “The Article proposed by Lord Loughborough, the Chancellor, is certainly extremely liberal, although Mr Jay thinks it best to leave it as a subject for future consideration. It is that in either Country the subjects or citizens of the other shall be exempted from all the disability of alienage. Such an article would certainly tend to promote the friendly intercourse
between the nations; and I do not know that it could produce any material intercourse with inconveniences to either. But it would be necessary to have an Act of parliament to confirm the stipulation here, which his Lordship says may be obtained without difficulty. A more material obstacle arises from the Constitution of the United States, with one clause of which, such an article would certainly militate.”
JQA Diaries, 22 Oct. 1794, vol. 21, MHi: Adams; , http://www.masshist.org/jqadiaries/php/doc?id=jqad21_44 (accessed Aug. 2019).