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Томас Джефферсон
The Writings of Thomas Jefferson, Vol. 2 (of 9)

TO MR. JAY

Paris, November 14, 1788.

Sir,—In my letter of December the 21st, 1787, I had the honor of acknowledging the receipt of your two favors of July the 27th, 1787, which had come to my hands December the 19th, and brought with them my full powers for treating on the subject of the consular convention. Being then much engaged in getting forward the Arret which came out on the 29th of December, and willing to leave some interval between that act and the solicitation of a reconsideration of our consular convention, I had declined mentioning it, for some time, and was just about to bring it on the carpet, when it became necessary for me to go to Amsterdam. Immediately after my return, which was about the last of April, I introduced the subject to the Count de Montmorin, and have followed it unremittingly, from that time. The office of Marine, as well as that of Foreign Affairs, being to be consulted in all the stages of the negotiation, has protracted its conclusion till this time; it is at length signed this day, and I have now the honor to enclose the original, for the ratification of Congress. The principal changes effected are the following:

The clauses of the Convention of 1784, clothing consuls with privileges of the law of nations, are struck out, and they are expressly subjected, in their persons and property, to the laws of the land.

That giving the right of sanctuary to their houses, is reduced to a protection of their chancery room and its papers.

Their coercive powers over passengers are taken away; and over those, whom they might have termed deserters of their nation, are restrained to deserted seamen only.

The clause, allowing them to arrest and send back vessels, is struck out, and instead of it, they are allowed to exercise a police over the ships of their nation generally.

So is that, which declared the indelibility of the character of the subject, and the explanation and extension of the eleventh article of the treaty of amity.

The innovations in the laws of evidence are done away; and the convention is limited to twelve years' duration. Convinced that the fewer examples, the better, of either persons or causes unamenable to the laws of the land, I could have wished still more had been done; but more could not be done, with good humor. The extensions of authority given by the convention of 1784, were so homogeneous with the spirit of this government, that they were prized here. Monsieur de Reyneval has had the principal charge of arranging this instrument with me; and, in justice to him, I must say, I could not have desired more reasonable and friendly dispositions, than he demonstrated through the whole of it.

I enclose herewith, the several schemes successively proposed between us, together with the copies of the written observations given in with them, and which served as texts of discussion, in our personal conferences. They may serve as a commentary on any passage which may need it, either now or hereafter, and as a history how any particular passage comes to stand as it does. No. 1, is the convention of 1784. No. 2, is my first scheme. No. 3, theirs in answer to it. No. 4, my next, which brought us so near together, that, in a conference on that, we arranged it in the form in which it has been signed. I add No. 5, the copy of a translation which I have put into their hands, with a request, that if they find any passages in which the sense of the original is not faithfully rendered, they will point them out to me; otherwise, we may consider it as having their approbation. This, and the convention of 1784 (marked No. 1), are placed side by side, so as to present to the eye, with less trouble, the changes made; and I enclose a number of printed copies of them, for the use of the members, who will have to decide on the ratification. It is desirable that the ratification should be sent here for exchange, as soon as possible.

With respect to the consular appointments, it is a duty on me to add some observations, which my situation here has enabled me to make. I think it was in the spring of 1784, that Congress (harassed by multiplied applications from foreigners, of whom nothing was known but on their own information, or on that of others as unknown as themselves) came to a resolution, that the interest of America would not permit the naming any person not a citizen, to the office of consul, vice-consul, agent or commissary. This was intended as a general answer to that swarm of foreign pretenders. It appears to me, that it will be best, still to preserve a part of this regulation. Native citizens, on several valuable accounts, are preferable to aliens, and to citizens alien-born. They possess our language, know our laws, customs, and commerce; have, generally, acquaintance in the United States; give better satisfaction, and are more to be relied on, in point of fidelity. Their disadvantages are, an imperfect acquaintance with the language of this country, and an ignorance of the organization of its judicial and executive powers, and consequent awkwardness, whenever application to either of these is necessary, as it frequently is. But it happens, that in some of the principal ports of France, there is not a single American (as in Marseilles, L'Orient, and Havre), in others but one (as in Nantes and Rouen), and in Bordeaux only, are there two or three. Fortunately for the present moment, most of these are worthy of appointments. But we should look forward to future times, when there may happen to be no native citizens in a port, but such as, being bankrupt, have taken asylum in France from their creditors, or young ephemeral adventurers in commerce, without substance or conduct, or other descriptions, which might disgrace the consular office, without protecting our commerce. To avail ourselves of our good native citizens, when we have one in a port, and when there are none, to have yet some person to attend to our affairs, it appears to me advisable, to declare, by a standing law, that no person but a native citizen shall be capable of the office of consul, and that the consul's presence in his port should suspend, for the time, the functions of the vice-consul. This is the rule of 1784, restrained to the office of consul, and to native citizens. The establishing this, by a standing law, will guard against the effect of particular applications, and will shut the door against such applications, which will otherwise be numerous. This done, the office of vice-consul may be given to the best subject in the port, whether citizen or alien, and that of consul be kept open for any native citizen of superior qualifications, who might come afterwards to establish himself in the port. The functions of the vice-consul would become dormant during the presence of his principal, come into activity again on his departure, and thus spare us and them, the painful operation of revoking and reviving their commissions perpetually. Add to this, that during the presence of the consul, the vice-consul would not be merely useless, but would be a valuable counsellor to his principal, new in the office, the language, laws and customs of the country. Every consul and vice-consul should be restrained in his jurisdiction, to the port for which he is named, and the territory nearer to that than to any other consular or vice consular port, and no idea be permitted to arise, that the grade of consul gives a right to any authority whatever over a vice-consul, or draws on any dependence.

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It is now proper I should give some account of the state of our dispute with Schweighauser and Dobrée. In the conversation I had with Dobrée at Nantes, he appeared to think so rationally on the subject, that I thought there would be no difficulty in accommodating it with him, and I wished rather to settle it by accommodation, than to apply to the minister. I afterwards had it intimated to him, through the medium of Mr. Carnes, that I had it in idea, to propose a reference to arbitrators. He expressed a cheerful concurrence in it. I thereupon made the proposition to him formally, by letter, mentioning particularly, that we would choose our arbitrators of some neutral nation, and, of preference, from among the Dutch refugees here. I was surprised to receive an answer from him, wherein, after expressing his own readiness to accede to this proposition, he added, that on consulting Mr. Puchilberg, he had declined it; nevertheless, he wished a fuller explanation from me, as to the subjects to be submitted to arbitration. I gave him that explanation, and he answered finally, that Mr. Puchilberg refused all accommodation, and insisted that the matter should be decided by the tribunals of the country. Accommodation being at an end, I wrote to Monsieur de Montmorin, and insisted on the usage of nations, which does not permit the effects of one sovereign to be seized in the territories of another, and subjected to judiciary decision there. I am promised that the stores shall be delivered; but the necessary formalities will occasion some delay. The King being authorized to call all causes before himself, ours will be evoked from the tribunal where it is, and will be ended by an order to deliver up the stores arrested, leaving it to the justice of Congress, to do afterwards what is right, as to the demand of Schweighauser and Dobrée. I wish I could receive instructions what to do with the stores, when delivered. The arms had certainly better be sent to America, as they are good, and yet will sell here for little or nothing. The gun stocks and old iron had better be sold here; but what should be done with the anchors? Being thoroughly persuaded that Congress wish that substantial justice should be done to Schweighauser and Dobrée, I shall, after the stores are secured, repeat my proposition of arbitration to them. If they then refuse it, I shall return all the papers to America, and consider my powers for settling this matter as at an end.

I have received no answer yet from Denmark, on the subject of the prizes; nor do I know whether to ascribe this silence to an intention to evade the demand, or to the multitude of affairs they have had on their hands lately. Patience seems to be prudence in this case; to indispose them, would do no good, and might do harm. I shall write again soon, if no answer be received in the meantime.

I have the honor to be, with sentiments of the most perfect esteem and respect, Sir, your most obedient, and most humble servant.

[The following is the translation of the convention referred to as No. 5, in the preceding letter.]

Convention between his most Christian Majesty and the United States of America, for the purpose of defining and establishing the functions and privileges of their respective Consuls and vice-Consuls.

His Majesty the most Christian King, and the United States of America, having, by the twenty-ninth article of the treaty of amity and commerce concluded between them, mutually granted the liberty of having, in their respective States and ports, Consuls, vice-Consuls, Agents and Commissaries, and being willing, in consequence thereof, to define and establish in a reciprocal and permanent manner, the functions and privileges of Consuls and vice-Consuls, which they have judged it convenient to establish of preference, his M. C. Majesty has nominated the Sieur Count of Montmorin of St. Herent, Marechal of his Camps and Armies, Knight of his Orders and of the Golden Fleece, his Counsellor in all his Councils, Minister and Secretary of State, and of his Commandments and Finances, having the department of foreign affairs, and the United States have nominated Thomas Jefferson, of the United States of America, and their Minister Plenipotentiary near the King, who after having communicated to each other their respective full powers, have agreed on what follows:

Article I. The Consuls and vice-Consuls named by the M. C. K. and the United States, shall be bound to present their commissions according to the forms which shall be established respectively by the M. C. K. within his dominions, and by the Congress within the United States, there shall be delivered to them, without any charges, the Exequatur necessary for the exercise of their functions; and on exhibiting the said Exequatur, the governors, commanders, heads of justice, bodies corporate, tribunals and other officers having authority in the ports and places of their consulates, shall cause them to enjoy immediately, and without difficulty, the pre-eminences, authority and privileges, reciprocally granted, without exacting from the said Consuls and vice-Consuls any fee under any pretext whatever.

Article II. The Consuls and vice-Consuls, and persons attached to their functions, that is to say, their chancellors and secretaries, shall enjoy a full and entire immunity for their chancery and the papers which shall be therein contained; they shall be exempt from all personal service, from soldiers' billets, militia, watch, guard, guardianship, trusteeship, as well as from all duties, taxes, impositions, and charges whatsoever, except on the estate real and personal of which they may be the proprietors or possessors, which shall be subject to the taxes imposed on the estates of all other individuals; and in all other instances, they shall be subject to the laws of the land, as the natives are.

Those of the said Consuls and vice-Consuls who shall exercise commerce, shall be respectively subject to all taxes, charges and impositions established on other merchants.

They shall place over the outward door of their house the arms of their sovereign; but this mark of indication shall not give to the said house, any privilege of asylum for any person or property whatsoever.

Article III. The respective Consuls and vice-Consuls may establish agents in the different ports and places of their departments, where necessity shall require. These agents may be chosen among the merchants, either national or foreign, and furnished with a commission from one of the said Consuls; they shall confine themselves respectively to the rendering to their respective merchants, navigators, and vessels all possible service, and to inform the nearest Consul of the wants of the said merchants, navigators and vessels, without the said agents otherwise participating in the immunities, rights and privileges attributed to Consuls and vice-Consuls, and without power under any pretext whatever, to exact from the said merchants any duty or emolument whatsoever.

Article IV. The Consuls and vice-Consuls respectively, may establish a chancery, where shall be deposited the consular determinations, acts and proceedings, as also testaments, obligations, contracts, and other acts done by or between persons of their nation, and effects left by descendents, or saved from shipwreck.

They may, consequently, appoint fit persons to act in the said chancery, qualify and swear them in, commit to them the custody of the seal, and authority to seal commissions, sentences and other consular acts, and also to discharge the functions of notaries and registers of the consulate.

Article V. The Consuls and vice-Consuls respectively, shall have the exclusive right of receiving in their chancery, or on board their vessels, the declarations and all other the acts which the captains, masters, crews, passengers and merchants of their nation may choose to make there, even their testaments and other disposals by last will; and the copies of the said acts, duly authenticated by the said Consuls or vice-Consuls, under the seal of their consulate, shall receive faith in law, equally as their originals would, in all the tribunals of the dominions of the M. C. King and the United States.

They shall also have, and exclusively, in case of the absence of the testamentary executor, guardian or lawful representative, the right to inventory, liquidate, and proceed to the sale of the personal estate left by subjects or citizens of their nation, who shall die within the extent of their consulate; they shall proceed therein with the assistance of two merchants of their said nation, or, for want of them, of any other at their choice, and shall cause to be deposited in their chancery, the effects and papers of the said estates; and no officer, military, judiciary, or of the police of the country, shall disturb them or interfere therein in any manner whatsoever; but the said Consuls and vice-Consuls shall not deliver up the said effects, nor the proceeds thereof, to the lawful representatives, or to their order, till they shall have caused to be paid all debts which the deceased shall have contracted in the country; for which purpose, the creditor shall have a right to attach the said effects in their hands, as they might in those of any other individual whatever, and proceed to obtain sale of them, till payment of what shall be lawfully due to them. When the debts shall not have been contracted by judgment, deed or note, the signature whereof shall be known, payment shall not be ordered, but on the creditor's giving sufficient surety resident in that country, to refund the sums he shall have unduly received, principal, interest and costs; which surety, nevertheless, shall stand duly discharged after the term of one year, in time of peace, and of two, in time of war, if the discharge cannot be formed before the end of this term, against the representatives who shall present themselves.

And in order that the representatives may not be unjustly kept out of the effects of the deceased, the Consuls and vice-Consuls shall notify his death in some one of the gazettes published within their consulate, and that they shall retain the said effects in their hands four months, to answer all just demands which shall be presented; and they shall be bound, after this delay, to deliver to the persons succeeding thereto, what shall be more than sufficient for the demands which shall have been formed.

Article VI. The Consuls and vice-Consuls respectively, shall receive the declarations, protests and reports, of all captains and masters of their respective nations, on account of average losses sustained at sea; and these captains and masters shall lodge in the chancery of the said Consuls and vice-Consuls, the acts which they may have made in other ports, on account of the accidents which may have happened to them on their voyage. If a subject of the M. C. K. and a citizen of the United States, or a foreigner, are interested in the said cargo, the average shall be settled by the tribunals of the country, and not by the Consuls or vice-Consuls; but when only the subjects or citizens of their own nation shall be interested, the respective Consuls or vice-Consuls shall appoint skilful persons to settle the damages and average.

Article VII. In cases where by tempest, or other accident, French ships or vessels shall be stranded on the coasts of the United States, and ships or vessels of the United States shall be stranded on the coasts of the dominions of the M. C. K., the Consul or vice-Consul nearest to the place of shipwreck shall do whatever he may judge proper, as well for the purpose of saving the said ship or vessel, its cargo and appurtenances, as for the storing and the security of the effects and merchandise saved. He may take an inventory of them, without the intermeddling of any officers of the military, of the customs, of justice, or of the police of the country, otherwise than to give the Consuls, vice-Consuls, captain and crew of the vessels shipwrecked or stranded, all the succor and favor which they shall ask of them, either for the expedition and security of the saving and of the effects saved, as to prevent all disturbance.

And in order to prevent all kind of dispute and discussion in the said cases of shipwreck, it is agreed that when there shall be no Consul or vice-Consul to attend to the saving of the wreck, or that the residence of the said Consul or vice-Consul (he not being at the place of the wreck) shall be more distant from the said place than that of the competent judge of the country, the latter shall immediately proceed therein, with all the despatch, certainty and precautions, prescribed by the respective laws; but the said territorial judge shall retire, on the arrival of the Consul or vice-Consul, and shall deliver over to him the report of his proceedings, the expenses of which, the Consul or vice-Consul shall cause to be reimbursed to him, as well as those of saving the wreck.

The merchandise and effects saved, shall be deposited in the nearest Custom-house, or other place of safety, with the inventory thereof, which shall have been made by the Consul or vice-Consul, or by the judge who shall have proceeded in their absence, that the said effects and merchandise may be afterwards delivered (after levying therefrom the costs), and without form of process, to the owners, who, being furnished with an order for their delivery, from the nearest Consul or vice-Consul, shall reclaim them by themselves, or by their order, either for the purpose of re-exporting such merchandise, in which case they shall pay no kind of duty of exportation, or for that of selling them in the country, if they be not prohibited there; and in this last case, the said merchandise, if they be damaged, shall be allowed an abatement of entrance duties, proportioned to the damage they have sustained, which shall be ascertained by the affidavits taken at the time the vessel was wrecked or struck.

Article VIII. The Consuls and vice-Consuls shall exercise police over all the vessels of their respective nations, and shall have on board the said vessels, all power and jurisdiction in civil matters, in all the disputes which may there arise; they shall have an entire inspection over the said vessels, their crew and the changes and substitutions there to be made. For which purpose, they may go on board the said vessels wherever they may judge it necessary; well understood, that the functions hereby allowed shall be confined to the interior of the vessels, and that they shall not take place in any case, which shall have any interference with the police of the ports where the said vessels shall be.

Article IX. The Consuls and vice-Consuls may cause to be arrested, the captains officers, mariners, sailors, and all other persons, being part of the crews of the vessels of their respective nations, who shall have deserted from the said vessels, in order to send them back, and transport them out of the country. For which purpose, the said Consuls and vice-Consuls shall address themselves to the courts, judges and officers competent, and shall demand the said deserters in writing, proving by an exhibition of the registers of the vessel or ship's roll, that those men were part of the said crews; and on this demand, so proved (saving, however, where the contrary is proved), the delivery shall not be refused; and there shall be given all aid and assistance to the said Consuls and vice-Consuls, for the search, seizure and arrest of the said deserters, who shall even be detained and kept in the prisons of the country, at their request and expense, until they shall have found an opportunity of sending them back. But if they be not sent back within three months, to be counted from the day of their arrest, they shall be set at liberty, and shall be no more arrested for the same cause.

Article X. In cases where the respective subjects or citizens shall have committed any crime, or breach of the peace, they shall be amenable to the judges of the country.

Article XI. When the said offenders shall be a part of the crew of a vessel of their nation, and shall have withdrawn themselves on board the said vessel, they may be there seized and arrested by order of the judges of the country; these shall give notice thereof to the Consul or vice-Consul, who may repair on board, if he thinks proper; but this notification shall not, in any case, delay execution of the order in question. The persons arrested, shall not afterwards be set at liberty, until the Consul or vice-Consul shall have been notified thereof; and they shall be delivered to him, if he requires it, to be put again on board of the vessels on which they were arrested, or of others of their nation, and to be sent out of the country.

Article XII. All differences and suits between the subjects of the M. C. K. in the U. S. or between the citizens of the United States within the dominions of the M. C. K. and particularly all disputes relative to the wages and terms of engagement of the crews of the respective vessels, and all differences of whatever nature they be, which may arise between the privates of the said crews, or between any of them and their captains, or between the captains of different vessels of their nation, shall be determined by the respective Consuls and vice-Consuls, either by a reference to arbitrators, or by a summary judgment, and without costs.

No officer of the country, civil or military, shall interfere therein, or take any part whatever in the matter; and the appeals from the said consular sentences, shall be carried before the tribunals of France or of the United States, to whom it may appertain to take cognizance thereof.

Article XIII. The general utility of commerce, having caused to be established within the dominions of the M. C. K. particular tribunals and forms, for expediting the decision of commercial affairs, the merchants of the U. S. shall enjoy the benefit of these establishments; and the Congress of the U. S. will provide in the manner the most conformable to its laws, equivalent advantages in favor of the French merchants, for the prompt despatch and decision of affairs of the same nature.

Article XIV. The subjects of the M. C. K. and citizens of the U. S. who shall prove by legal evidence, that they are of the said nations respectively, shall, in consequence, enjoy an exemption from all personal service in the place of their settlement.

Article XV. If any other nation acquires, by virtue of any convention whatever, a treatment more favorable with respect to the consular pre-eminences, powers, authority and privileges, the Consuls and vice-Consuls of the M. C. K., or of the U. S. reciprocally, shall participate therein, agreeably to the terms stipulated by the second, third, and fourth articles of the treaty of amity and commerce, concluded between the M. C. K. and the U. S.

Article XVI. The present convention shall be in full force during the term of twelve years, to be counted from the day of the exchange of ratifications, which shall be given in proper form, and exchanged on both sides, within the space of one year, or sooner, if possible.

In faith whereof, we, Ministers Plenipotentiary, have signed the present convention, and have thereto set the seal of our arms.

Done at Versailles the 14th of November, one thousand seven hundred and eighty-eight.