Томас Джефферсон
The Writings of Thomas Jefferson, Vol. 2 (of 9)
TO THE COUNT DE MONTMORIN
Paris, June 20, 1788.
Sir,—Having had the honor of mentioning to your Excellency the wish of Congress that certain changes should be made in the articles for a consular convention, which had been sent to them, I have now that, conformably to the desire you expressed, of giving a general idea of the alterations to be proposed.
The fourth article gives to the consuls the immunities of the law of nations. It has been understood, however, that the laws of France do not admit of this; and that it might be desirable to expunge this article. In this we are ready to concur, as in every other case where an article might call for changes in the established laws, either inconvenient or disagreeable.
After establishing in favor of consuls, the general immunities of the law of nations, one consequence of which would have been, that they could not have been called upon to give testimony in courts of justice, the fifth article requires that after the observance of certain formalities, which imply very high respect, they shall make a declaration; but in their own houses [chez eux] as may be pretended, if not justly inferred, from the expressions in the article. But our laws require, indispensably, a personal examination of witnesses in the presence of the parties, of their counsel, the jury and judges, each of whom has a right to ask of them all questions pertinent to the fact. The first and highest officers of our government are obliged to appear personally to the order of a court to give evidence. The court takes care that they are treated with respect. It is proposed, therefore, to omit this article for these particular reasons, as well as for the general one, that the fourth being expunged, this, which was but an exception to that, falls of course.
The seventh, eighth, tenth and fourteenth articles extend their pre-eminences far beyond those which the laws of nations would have given. These articles require that the declarations made in the presence of consuls, and certified by them, shall be received in evidence in all courts whatever; and in some instances give to their certificates a credibility which excludes all other testimony. The cases are rare in which our laws admit written evidence of facts; and such evidence, when admitted, must have been given in the presence of both parties, and must contain the answers to all the pertinent questions which they may have desired to ask of the witness; and to no evidence, of whatever nature, written or oral, do our laws give so high credit, as to exclude all counter-proof. These principles are of such ancient foundation in our system of jurisprudence, and are so much valued and venerated by our citizens, that perhaps it would be impossible to execute articles which should contravene them, nor is it imagined that these stipulations can be so interesting to this country, as to balance the inconvenience and hazard of such an innovation with us. Perhaps it might be found, that the laws of both countries require a modification of this article; as it is inconceivable that the certificate of an American consul in France could be permitted by one of its courts to establish a fact, the falsehood of which should be notorious to the court itself.
The eighth article gives to the consuls of either nation a jurisdiction, in certain cases, over foreigners of any other. On a dispute arising in France, between an American and a Spaniard or an Englishman, it would not be fair to abandon the Spaniard or Englishman to an American consul. On the contrary, the territorial judge, as neutral, would seem to be the most impartial. Probably, therefore, it will be thought convenient for both parties to correct this stipulation.
A dispute arising between two subjects of France, the one being in France, and the other in the United States, the regular tribunals of France would seem entitled to a preference of jurisdiction. Yet the twelfth article gives it to their consul in America; and to the consul of the United States in France, in a like case between their citizens.
The power given by the tenth article, of arresting and sending back a vessel, its captain, and crew, is a very great one indeed, and, in our opinion, more safely lodged with the territorial judge. We would ourselves trust the tribunals of France to decide when there is just cause for so high-handed an act of authority over the persons and property of so many of our citizens, to all of whom these tribunals will stand in a neutral and impartial relation, rather than any single person whom we may appoint as consul, who will seldom be learned in the laws, and often susceptible of influence from private interest and personal pique. With us, applications for the arrest of vessels, and of their masters, are made to the admiralty courts. These are composed of the most learned and virtuous characters of the several States, and the maritime law common to all nations, is the rule of their proceedings. The exercise of foreign jurisdiction, within the pale of their own laws, in a very high case, and wherein those laws have made honorable provisions, would be a phenomenon never yet seen in our country, and which would be seen with great jealousy and uneasiness. On the contrary, to leave this power with the territorial judge, will inspire confidence and friendship, and be really, at the same time, more secure against abuse. The power of arresting deserted seamen seems necessary for the purposes of navigation and commerce, and will be more attentively and effectually exercised by the consul, than by the territorial judge. To this part of the tenth article, therefore, as well as to that which requires the territorial judge to assist the consul in the exercise of this function, we can accede. But the extension of the like power to passengers, seems not necessary for the purposes either of navigation or commerce. It does not come, therefore, within the functions of the consul, whose institution is for those two objects only, nor within the powers of a commissioner, authorized to treat and conclude a convention, solely for regulating the powers, privileges, and duties of consuls. The arrest and detention of passengers, moreover, would often be in contradiction to our bills of rights, which being fundamental, cannot be obstructed in their operation by any law or convention whatever.
Consular institutions being entirely new with us, Congress think it wise to make their first convention probationary, and not perpetual. They propose, therefore, a clause for limiting its duration to a certain term of years. If after the experience of a few years, it should be found to answer the purposes intended by it, both parties will have sufficient inducements to renew it, either in its present form, or with such alterations and amendments as time, experience, and other circumstances may indicate.
The convention, as expressed in the French language, will fully answer our purposes in France, because it will there be understood. But it will not equally answer the purposes of France in America, because it will not there be understood. In very few of the courts wherein it may be presented, will there be found a single judge or advocate capable of translating it at all, much less of giving to all its terms, legal and technical, their exact equivalent in the laws and language of that country. Should any translation which Congress would undertake to publish, for the use of our courts, be conceived on any occasion not to render fully the idea of the French original, it might be imputed as an indirect attempt to abridge or extend the terms of a contract, at the will of one party only. At no place are there better helps than here, for establishing an English text equivalent to the French, in all its phrases; no person can be supposed to know what is meant by these phrases better than those who form them; and no time more proper to ascertain their meaning in both languages, than that at which they are formed. I have, therefore, the honor to propose, that the convention shall be faithfully expressed in English as well as in French, in two columns, side by side, that these columns be declared each of them to be text, and to be equally original and authentic in all courts of justice.
This, Sir, is a general sketch of the alterations which our laws and our manner of thinking render necessary in this convention, before the faith of our country is engaged for its execution. Some of its articles, in their present form, could not be executed at all, and others would produce embarrassments and ill humor, to which it would not be prudent for our government to commit itself. Inexact execution on the one part, would naturally beget dissatisfaction and complaints on the other, and an instrument intended to strengthen our connection, might thus become the means of loosening it. Fewer articles, better observed, will better promote our common interests. As to ourselves, we do not find the institution of consuls very necessary. Its history commences in times of barbarism, and might well have ended with them. During these, they were perhaps useful, and may still be so, in countries, not yet emerged from that condition. But all civilized nations at this day, understand so well the advantages of commerce, that they provide protection and encouragement for merchant strangers and vessels coming among them. So extensive, too, have commercial connections now become, that every mercantile house has correspondents in almost every port. They address their vessels to these correspondents, who are found to take better care of their interests, and to obtain more effectually the protection of the laws of the country for them, than the consul of their nation can. He is generally a foreigner, unpossessed of the little details of knowledge of greatest use to them. He makes national questions of all the difficulties which arise; the correspondent prevents them. We carry on commerce with good success in all parts of the world; yet we have not a consul in a single port, nor a complaint for the want of one, except from the persons who wish to be consuls themselves. Though these considerations may not be strong enough to establish the absolute inutility of consuls, they may make us less anxious to extend their privileges and jurisdictions, so as to render them objects of jealousy and irritation in the places of their residence. That this government thinks them useful, is sufficient reason for us to give them all the functions and facilities which our circumstances will admit. Instead, therefore, of declining every article which will be useless to us, we accede to every one which will not be inconvenient. Had this nation been alone concerned, our desire to gratify them, might have tempted us to press still harder on the laws and opinions of our country. But your Excellency knows, that we stand engaged in treaties with some nations, which will give them occasion to claim whatever privileges we yield to any other. This renders circumspection more necessary. Permit me to add one other observation. The English allow to foreign consuls scarcely any functions within their ports. This proceeds, in a great measure, from the character of their laws, which eye with peculiar jealousy every exemption from their control. Ours are the same in their general character, and rendered still more unpliant, by our having thirteen parliaments to relax, instead of one. Upon the whole, I hope your Excellency will see the causes of the delay which this convention has met with, in the difficulties it presents, and our desire to surmount them; and will be sensible that the alterations proposed, are dictated to us by the necessity of our circumstances, and by a caution, which cannot be disapproved, to commit ourselves to no engagements which we foresee we might not be able to fulfil.
These alterations, with some other smaller ones, which may be offered on the sole principle of joint convenience, shall be the subject of more particular explanation, whenever your Excellency shall honor me with a conference thereon. I shall then also point out the verbal changes which appear to me necessary, to accommodate the instrument to the views before expressed. In the meantime, I have the honor to be, with sentiments of the most perfect respect and esteem, your Excellency's most obedient, and most humble servant.
TO – –
Paris, June 28, 1788.
Sir,– * * * * * * * * A treaty of alliance between England and Prussia was signed on the 13th instant. Sweden is believed to have given out a declaration of the reasons of her arming, which has very much the air of a declaration of war against Russia. We have not yet seen it here. It would not be unexpected to hear that she has commenced hostilities. She is subsidized by England, and if she does begin a war, we must believe it to be on the instigation of England, with a view to bring on a general war. This power, with Denmark and Holland, ranging themselves on the side of England, destroys the equilibrium of power at sea, which we had hoped was established. I am, with great esteem, Sir, your most obedient humble servant.
TO MONSIEUR DIRIEKS
Paris, July 2, 1788.
Sir,—As a private individual and citizen of America, I can with propriety and truth deliver it to you as my firm belief, that the loan office certificate you showed me, and all others of the same kind, will be paid, principal and interest, as soon as the circumstances of the United States will permit: that I do not consider this as a distant epoch, nor suppose there is a public debt on earth less doubtful. This I speak as my private opinion. But it does not belong to me to say that it will be paid in two years, or that it will be paid at all, so as by the authority of my affirmation to give it any new sanction or credit. The board of treasury or Congress can alone do this. You will be sensible, therefore, Sir, of the impropriety, and even the hazard, of my going out of the line of my office so far as to undertake, or to aver, that these certificates will be paid within one or two years. On every occasion where I can do it of right, I shall be happy to render you every possible service, being with sentiments of the most perfect esteem, Sir, your most obedient humble servant.
TO T. L. SHIPPEN, ESQ
Paris, July 13, 1788.
Dear Sir,—In a former letter to Mr. Rutledge, I suggested to him the idea of extending his tour to Constantinople, and in one of to-day, I mention it again. I do not know how far that extension may accord with your plan, nor indeed how far it may be safe for either of you; for, though it has been thought there has been a relaxation in the warlike dispositions of the belligerent powers, yet we have no symptoms of a suspension of hostilities. The Ottoman dominions are generally represented as unsafe for travellers, even when in peace. They must be much more so during war. This article, therefore, merits exact inquiry before that journey is undertaken.
We have letters from America to June 11. Maryland has acceded to the Constitution by a vote of 63 to 11, and South Carolina by 149 to 72. Mr. Henry had disseminated propositions there for a Southern confederacy. It is now thought that Virginia will not hesitate to accede. Governor Randolph has come over to the Federalists. No doubt is entertained of New Hampshire and North Carolina, and it is thought that even New York will agree when she sees she will be left with Rhode Island alone. Two-thirds of their Convention are decidedly anti-federal. The die is now thrown, and it cannot be many days before we know what has finally turned up. Congress has granted the prayer of Kentucky to be made independent, and a committee was occupied in preparing an act for that purpose. Mr. Barlow, the American poet, is arrived in Paris.
We expect daily to hear that the Swedes have commenced hostilities. Whether this will draw in the other nations of Europe immediately, cannot be foreseen; probably it will in the long run. I sincerely wish this country may be able previously to arrange its internal affairs. To spare the trouble of repetition, I am obliged to ask of yourself and Mr. Rutledge, to consider the letter of each as a supplement to the other. Under the possibility, however, of your going different routes, I enclose duplicates of my letters of introduction. After acknowledging the receipt of your favor of the 6th inst., from Spa, I shall only beg a continuance of them, and that you will both keep me constantly informed how to convey letters to you; and to assure you of those sentiments of sincere esteem with which I have the honor to be, dear Sir, your friend and servant.
TO DOCTOR GORDON
Paris, July 16, 1788.
Sir,—In your favor of the 8th instant, you mentioned that you had written to me in February last. This letter never came to hand. That of April the 24th came here during my absence on a journey through Holland and Germany; and my having been obliged to devote the first moments after my return, to some very pressing matters, must be my apology for not having been able to write to you till now. As soon as I knew that it would be agreeable to you, to have such a disposal of your work for translation, as I had made for Dr. Ramsay, I applied to the same bookseller with propositions on your behalf. He told me, that he had lost so much by that work, that he could hardly think of undertaking another, and at any rate, not without first seeing and examining it. As he was the only bookseller I could induce to give anything on the former occasion, I went to no other with my proposal, meaning to ask you to send me immediately as much of the work as is printed. This you can do by the Diligence, which comes three times a week from London to Paris. Furnished with this, I will renew my proposition, and do the best for you I can; though I fear that the ill success of the translation of Dr. Ramsay's work, and of another work on the subject of America, will permit less to be done for you than I had hoped. I think Dr. Ramsay failed from the inelegance of the translation, and the translator's having departed entirely from the Doctor's instructions. I will be obliged to you, to set me down as a subscriber for half a dozen copies, and to ask Mr. Trumbull (No. 2, North street, Rathbone Place) to pay you the whole subscription price for me, which he will do on showing him this letter. These copies can be sent by the Diligence. I have not yet received the pictures Mr. Trumbull was to send me, nor consequently that of M. de La Fayette. I will take care of it when it arrives. His title is simply, le Marquis de La Fayette.
You ask, in your letter of April the 24th, details of my sufferings by Colonel Tarleton. I did not suffer by him. On the contrary, he behaved very genteelly with me. On his approach to Charlottesville, which is within three miles of my house at Monticello, he despatched a troop of his horse, under Captain McLeod, with the double object of taking me prisoner, with the two Speakers of the Senate and Delegates, who then lodged with me, and of remaining there in vidette, my house commanding a view of ten or twelve miles round about. He gave strict orders to Captain McLeod to suffer nothing to be injured. The troop failed in one of their objects, as we had notice of their coming, so that the two Speakers had gone off about two hours before their arrival at Monticello, and myself, with my family, about five minutes. But Captain McLeod preserved everything with sacred care, during about eighteen hours that he remained there. Colonel Tarleton was just so long at Charlottesville, being hurried from thence by the news of the rising of the militia, and by a sudden fall of rain, which threatened to swell the river, and intercept his return. In general, he did little injury to the inhabitants, on that short and hasty excursion, which was of about sixty miles from their main army, then in Spotsylvania, and ours in Orange. It was early in June, 1781. Lord Cornwallis then proceeded to the Point of Fork, and encamped his army from thence all along the main James River, to a seat of mine called Elk-hill, opposite to Elk Island, and a little below the mouth of the Byrd Creek. (You will see all these places exactly laid down in the map annexed to my notes on Virginia, printed by Stockdale.) He remained in this position ten days, his own head quarters being in my house, at that place. I had time to remove most of the effects out of the house. He destroyed all my growing crops of corn and tobacco; he burned all my barns, containing the same articles of the last year, having first taken what corn he wanted; he used, as was to be expected, all my stock of cattle, sheep and hogs, for the sustenance of his army, and carried off all the horses capable of service; of those too young for service he cut the throats; and he burned all the fences on the plantation, so as to leave it an absolute waste. He carried off also about thirty slaves. Had this been to give them freedom, he would have done right; but it was to consign them to inevitable death from the small pox and putrid fever, then raging in his camp. This I knew afterwards to be the fate of twenty-seven of them. I never had news of the remaining three, but presume they shared the same fate. When I say that Lord Cornwallis did all this, I do not mean that he carried about the torch in his own hands, but that it was all done under his eye; the situation of the house in which he was, commanding a view of every part of the plantation, so that he must have seen every fire. I relate these things on my own knowledge, in a great degree, as I was on the ground soon after he left it. He treated the rest of the neighborhood somewhat in the same style, but not with that spirit of total extermination with which he seemed to rage over my possessions. Wherever he went, the dwelling houses were plundered of everything which could be carried off. Lord Cornwallis' character in England, would forbid the belief that he shared in the plunder; but that his table was served with the plate thus pillaged from private houses, can be proved by many hundred eye-witnesses. From an estimate I made at that time, on the best information I could collect, I supposed the State of Virginia lost, under Lord Cornwallis' hands, that year, about thirty thousand slaves; and that of these, about twenty-seven thousand died of the small pox and camp fever, and the rest were partly sent to the West Indies, and exchanged for rum, sugar, coffee and fruit, and partly sent to New York, from whence they went, at the peace, either to Nova Scotia or England. From this last place, I believe they have been lately sent to Africa. History will never relate the horrors committed by the British army in the southern States of America. They raged in Virginia six months only, from the middle of April to the middle of October, 1781, when they were all taken prisoners; and I give you a faithful specimen of their transactions for ten days of that time, and on one spot only. Ex pede Herculem. I suppose their whole devastations during those six months, amounted to about three millions sterling. The copiousness of this subject has only left me space to assure you of the sentiments of esteem and respect, with which I am, Sir, your most obedient humble servant.
