Chancery, which thus continues the administration
of justice progressive almost in equal pace with the
progress of commerce and refinement of morality.
One practice only is wanting to render this court com-
pletely valuable. That is that when a class of cases
has been formed & has been the subject of so many
decisions in the Court of Chancery as to have been
seen there under all circumstances, & in all its com-
binations and the rules for its decision are modified
accordingly & thoroughly digested, the legislature
should reduce these rules to a text and transplant
them into the department of the common law, which
is competent then to the application of them, and is
a safer depository for the general administration of
justice. This would be to make the Chancery a
nursery only for the forming new plants for the De-
partment of the common law. Much of the business
of Chancery is now actually in a state of perfect
preparation for removal into the common law.
It has often been predicted in England that the
Chancery would swallow up the common law, during
many centuries however, that these two courts have
gone on together, the jurisdiction of the common
law has not been narrowed in a single article : on the
contrary it has been enlarged from time to time by
ii4 THE WRITINGS OF [1785
act of the legislature ; but jealousy uncorrected by
reason or experience, sees certainty where ever there
is a possibility and sensible men still think that the
danger from this court overweighs its utility.
Even some of the states in our Union have chosen
to do without this court ; and it has been proposed
to others to follow their example in this case. One of
two consequences must follow. Either, i the cases
now remediable in Chancery must be left without
remedy, in which event the clamorers for justice
which originally begat this court, would produce it's
re-institution ; or 2 the courts of common law
must be permitted to perform the discretionary func-
tions of the Chancery. This will be either by adopt-
ing at once all the rules of the Chancery, with the
consent of the legislature, or if that is withheld, these
courts will be led, by the desire of doing justice, to
extend the text of the law according to it's equity as
was done in England before the Chancery took a
regular form. This will be worse than running on
Scylla to avoid Charybdis, for at present nine tenths
of our legal contestations are perfectly remedied by
the common law, & can be carried before that judi-
cature only. This proportion then of our rights is
placed on sure ground. Relieve the judges from the
rigour of text law, and permit them, with prsetorian
discretion, to wander into its equity, & the whole
legal system becomes incertain. This has been it's
fate in every country where the fixed, & the dis-
cretionary law have been committed into the same
hands. It is probable that the singular certainty, with
1785] THOMAS JEFFERSON. 115
which justice has been administered in England, has
been the consequence of their distribution into two
distinct departments. Unhappily for that country,
however, a very unexpected revolution is working in
their laws of late years. L^ Mansfield, a man of the
clearest head & most seducing eloquence coming
from a country where the powers of the common law
& chancery are united in the same court, has been
able since his admission to the bench of judges in
England, to persuade the courts of common law to
revise the practice of construing their text equitably.
The object of former judges has been to render the
law more & more certain. That of this personage to
render it more incertain under pretence of rendering
it more reasonable. No period of the English law
of what ever length it be taken, can be produced
wherein so many of it's settled rules have been
reversed as during the time of this judge. His
decisions will be precious in those states where no
chancery is established, but his accession to the
bench should form the epoch, after which all recur-
rence to English decisions should be proscribed in
those states which have separated the two courts.
His plan of rendering the chancery useless by ad-
ministering justice in the same way in the courts of
common law has been admirably seconded by the
celebrated D- Blackstone, a judge in the same
department, who has endeavored seriously to prove
that the jurisdiction of the Chancery is a chaos,
irreducible to system, insusceptible of fixed rules, &
incapable of definition or explanation. Were this true,
n6 THOMAS JEFFERSON. [1785
it would be a monster whose existence should not be
suffered one moment in a free country wherein every
power is dangerous which is not bound up by general
rules.
Before I end up my letter I will further observe,
to guard still more effectually against the dangers
apprehended from a court of Chancery, the legisla-
ture of Virginia have very wisely introduced into it
the trial by jury for all matters of fact.
I have thus gone over, with much rapidity the
subject of your inquiries, yet I fear I have been more
lengthy than you wished. You can, however, extract
such of these details as will fulfill your object, neglect-
ing those which go beyond it. I shall close therefore
with assurances of the sincere esteem with which I
am Dear Sir, Your friend & servant.
CONFERENCE WITH THE COUNT DE VERGENNES ON THE
SUBJECT OF THE COMMERCE OF THE UNITED
STATES WITH FRANCE. 1
1785.
The next levee day at Versailles, I meant to bring again under
the view of the Count de Vergennes, the whole subject of our
commerce with France ; but the number of audiences of ambas-
sadors and other ministers, which take place, of course, before
mine, and which seldom, indeed, leave me an opportunity of
audience at all, prevented me that day. I was only able to ask
the Count de Vergennes, as a particular favor, that he would
permit me to wait on him some day that week. He did so, and
I went to Versailles the Friday following (the pth of December).
M. de Reyneval was with the Count. Our conversation began
with the usual topic ; that the trade of the United States had not
yet learned the way to France, but continued to centre in Eng-
land, though no longer obliged by law to go there. I observed,
that the real cause of this, was to be found in the difference of
the commercial arrangements in the two countries ; that mer-
chants would not, and could not trade but where there was to be
1 In a letter to John Jay, dated Paris, January 2, 1786, Jefferson wrote :
" SIR, Several conferences and letters having passed between the Count de
Vergennes and myself, on the subject of the commerce of this country with the
United States, I think them sufficiently interesting to be communicated to
Congress. They are stated in the form of a report, and are herein enclosed.
The length of this despatch, perhaps, needs apology. Yet I have not been
able to abridge it, without omitting circumstances which I thought Congress
would rather choose to know. Some of the objects of these conferences pre-
sent but small hopes for the present, but they seem to admit a possibility of
success at some future moment. . . ."
See also post, letter to Jay, of May 23, 1786.
TIT
n8 THE WRITINGS OF [1785
some gain ; that the commerce between two countries could not
be kept up, but by an exchange of commodities ; that, if an
American merchant was forced to carry his produce to London,
it could not be expected he would make a voyage from thence to
France, with the money, to lay it out here ; and, in like manner,
that if he could bring his commodities, with advantage, to this
country, he would not make another voyage to England, with the
money, to lay it out there, but would take in exchange the mer-
chandise of this country. The Count de Vergennes agreed to
this, and particularly that where there was no exchange of mer-
chandise, there could be no durable commerce ; and that it was
natural for merchants to take their returns in the port where they
sold their cargo. I desired his permission then, to take a sum-
mary view of the productions of the United States, that we might
see which of them could be brought here to advantage.
i. Rice. France gets from the Mediterranean a rice not so
good indeed, but cheaper than ours. He said that they bought
of our rice, but that they got from Egypt also, rice of a very fine
quality. I observed that such was the actual state of their com-
merce, in that article, that they take little from us. 2. Indigo.
They make a plenty in their own colonies. He observed that
they did, and that they thought it better than ours. 3. Flour,
fish, and provisions of all sorts, they produce for themselves.
That these articles might, therefore, be considered as not exist-
ing, for commerce, between the United States and the kingdom
of France.
I proceeded to those capable of becoming objects of exchange
between the two nations, i. Peltry and furs. Our posts being
in the hands of the English, we are cut off from that article. I
am not sure even, whether we are not obliged to buy of them, for
our own use. When these posts are given up, if ever they are, we
shall be able to furnish France with skins and furs, to the amount
of two millions of livres, in exchange for her merchandise ; but
at present, these articles are to be counted as nothing. 2. Potash.
An experiment is making whether this can be brought here. We
hope it may, but at present it stands for nothing. He observed
that it was much wanted in France, and he thought it would suc-
ceed. 3. Naval stores. Trials are also making on these, as sub-
1785] THOMAS JEFFERSON. 119
jects of commerce with France. They are heavy, and the voyage
long. The result, therefore, is doubtful. At present, they are
as nothing in our commerce with this country. 4. Whale oil.
I told him I had great hopes that the late diminution of duty
would enable us to bring this article, with advantage, to France ;
that a merchant was just arrived (Mr. Barrett) who proposed to
settle at L'Orient, for the purpose of selling the cargoes of this
article, and choosing the returns. That he had informed me,
that in the first year, it would be necessary to take one-third in
money, and the remainder only in merchandise ; because the
fishermen require, indispensably, some money. But he thought
that after the first year, the merchandise of the preceding year,
would always produce money for the ensuing one, and that the
whole amount would continue to be taken annually afterwards,
in merchandise. I added, that though the diminution of duty
was expressed to be but for one year, yet I hoped they would find
their advantage in renewing and continuing it ; for that if they
intended really to admit it for one year only, the fishermen would
not find it worth while to rebuild their vessels, and to prepare
themselves for the business. The Count expressed satisfaction
on the view of commercial exchange held up by this article. He
made no answer as to the continuance of it ; and I did not choose
to tell him, at that time, that we should claim its continuance
under their treaty with the Hanseatic towns, which fixes this duty
for them, and our own treaty, which gives us the rights of the
most favored nation. 5. Tobacco. I recalled to the memory of
the Count de Vergennes, the letter I had written to him on this
article ; and the object of the present conversation being, how
to facilitate the exchange of commerciable articles between the
two countries, I pressed that of tobacco, in this point of view ;
observed that France, at present, paid us two millions of livres
for this article ; that for such portions of it as were bought in
London, they sent the money directly there, and for what they
bought in the United States, the money was still remitted to
London, by bills of exchange ; whereas, if they would permit our
merchants to sell this article freely, they would bring it here, and
take the returns on the spot, in merchandise, not money. The
Count observed, that my proposition contained what was doubt-
120 THE WRITINGS OF [1785
less useful, but that the King received on this article, at present,
a revenue of twenty-eight millions, which was so considerable, as
to render them fearful of tampering with it ; that the collection
of this revenue by way of Farm, was of very ancient date, and
that it was always hazardous to alter arrangements of long stand-
ing, and of such infinite combinations with the fiscal system. I
answered, that the simplicity of the mode of collection proposed
for this article, withdrew it from all fear of deranging other parts
of their system ; that I supposed they would confine the importa-
tion to some of their principal ports, probably not more than five
or six ; that a single collector in each of these, was the only new
officer requisite ; that he could get rich himself on six livres a
hogshead, and would receive the whole revenue, and pay it into
the treasury, at short hand. M. de Reyneval entered particularly
into this part of the conversation, and explained to the Count,
more in detail, the advantages and simplicity of it, and concluded
by observing to me, that it sometimes happened that useful prop-
ositions, though not practicable at one time, might become so at
another. I told him that that consideration had induced me to
press the matter when I did, because I had understood the re-
newal of the Farm was then on the carpet, and that it was the
precise moment when I supposed that this portion might be
detached from the mass of the Farms. I asked Count de Ver-
gennes whether, if the renewal of the Farm was pressing, this
article might not be separated, merely in suspense, till govern-
ment should have time to satisfy themselves on the expediency of
renewing it. He said no promises could be made.
In the course of this conversation he had mentioned the lib-
erty we enjoyed of carrying our fish to the French islands. I
repeated to him what I had hinted in my letter, of November the
zoth, 1785, that I considered as a prohibition the laying such
duties on our fish, and giving such premiums on theirs, as made a
difference between their and our fishermen of fifteen livres the
quintal, in an article which sold for but fifteen livres. He said it
would not have that effect, for two reasons : i. That their fisher-
men could not furnish supplies sufficient for their islands, and, of
course, the inhabitants must, of necessity, buy our fish. 2. That
from the constancy of our fishery, and the short season during
1785] THOMAS JEFFERSON. 121
which theirs continued, and also from the economy and manage-
ment of ours, compared with the expense of theirs, we had always
been able to sell our fish, in their islands, at twenty-five livres the
quintal, while they were obliged to ask thirty-six livres. (I sup-
pose he meant the livre of the French islands.) That thus, the
duty and premium had been a necessary operation on their side,
to place the sale of their fish on a level with ours, and that with-
out this, theirs could not bear the competition.
I have here brought together the substance of what was said on
the preceding subjects, not pretending to give it verbatim, which
my memory does not enable me to do. I have, probably, omitted
many things which were spoken, but have mentioned nothing
which was not. It was interrupted, at times, with collateral mat-
ters. One of these was important. The Count de Vergennes
complained, and with a good deal of stress, that they did not find
a sufficient dependence on arrangements taken with us. This
was the third time too, he had done it ; first, in a conversation at
Fontainebleau, when he first complained to me of the navigation
acts of Massachusetts and New Hampshire ; secondly, in his letter
of October the 3oth, 1785, on the same subject ; and now, in the
present conversation, wherein he added, as another instance, the
case of the Chevalier de Mezieres, heir of General Oglethorpe,
who, notwithstanding that the i ith article of the treaty provides,
that the subjects or citizens of either party shall succeed, ab intes-
tato, to the lands of their ancestors, within the dominions of the
other, had been informed from Mr. Adams, and by me also, that
his right of succession to the General's estate in Georgia was
doubtful. He observed too, that the administration of justice
with us was tardy, insomuch that their merchants, when they had
money due to them within our States, considered it as desperate ;
and that our commercial regulations, in general, were disgusting
to them. These ideas were new, serious and delicate. I decided,
therefore, not to enter into them at that moment, and the rather,
as we were speaking in French, in which language I did not choose
to hazard myself. I withdrew from the objections of the tardi-
ness of justice with us, and the disagreeableness of our commer-
cial regulations, by a general observation, that I was not sensible
they were well founded. With respect to the case of the Cheva-
122 THE WRITINGS OF [1785
Her de Mezieres, I was obliged to enter into some explanations.
They related chiefly to the legal operation of our Declaration of
Independence, to the undecided question whether our citizens
and British subjects were thereby made aliens to one another, to the
general laws as to the conveyances of land to aliens, and the
doubt whether an act of the Assembly of Georgia might not have
been passed, to confiscate General Oglethorpe's property, which
would of course prevent its devolution on any heir. Mr. Rey-
neval observed, that in this case, it became a mere question of
fact, whether a confiscation of these lands had taken place before
the death of General Oglethorpe, which fact might be easily known
by inquiries in Georgia, where the possessions lay. I thought it
very material, that the opinion of this court should be set to rights
on these points. On my return, therefore, 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. Reyneval, praying him to read them,
and to ask the favor of the Count to do the same.
Explanations on some of the subjects of 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 received there on a convenient foot-
ing, would be exchanged for the productions of France. But in
the course of the conversation, some circumstances were incident-
ally mentioned by the Count de Vergennes, which induced me to
suppose he had received impressions, neither favorable to us, nor
derived from perfect information.
The case of the Chevalier 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 opin-
ions, to which they are not entitled. 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
1785] THOMAS JEFFERSON. 123
which law its treaties make a part. Indeed, I know not what
opinion Mr. Adams may have given on the case. And, if any be
imputed to him derogatory of our regard to the treaty with France,
I think his opinion has been misunderstood. With respect to my-
self, the doubts which I expressed to the Chevalier 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 : General Oglethorpe, a British subject, had
lands in Georgia. He died since the peace, having devised these
lands to his wife. His heirs are the Chevalier de Mezieres, son of
his elder sister, and the Marquise de Belgarde, 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 are respectable opinions on both sides.
If the negative be right, then General 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 trans-
ferred the lands 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, be-
came 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 Independence, 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 Independence, then it did not
remain in General 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.
i2 4 THE WRITINGS OF [1785
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 pro-
vided 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
1785] THOMAS JEFFERSON. 125
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 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 gener-
osity, and the friendly disposition in America to the subjects