Page:Memoir, correspondence, and miscellanies, from the papers of Thomas Jefferson - Volume 1.djvu/400

 384

Declaration of Independence, then it did not remain in General Oglethorpe, and, of course, at the time of his death, he having no thing, 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 noting being left in him, there is nothing for his heirs to claim widen the treaty.

4. If the property had not been transferred id the State, before the peace, either by the Declaration of Independence, or an office, or an act of Assembly, then it remained in Geijpral 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 Ogle thorpe 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, thari 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, be cause, 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 Cheva lier 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