The Consular Convention of 1788
The Consular Convention of 1788 was the last of nine treaties to be signed by authority of the Continental Congress and the Confederation, and the first to be ratified under the new Constitution. None of the nation’s international agreements in the formative period was so long in preparation or had a history so filled with potentially disruptive sources of friction between the United States and its most important ally. The treaty of amity and commerce of 1778 had granted the reciprocal right of appointing consuls, vice consuls, agents, and commissaries in the ports of the two countries, and had stated that their functions would be regulated by separate agreement.1 The pledge to make such a separate agreement was a solemn contract between the two nations, and the responsibility for the delay in its performance rests squarely upon the United States.
Even before the treaty of 1778 was ratified, Gérard de Rayneval, first minister from France to the United States and brother to the Rayneval who ten years later “had the principal charge of arranging” the Consular Convention with Jefferson, was commissioned consul general with power to appoint vice consuls.2 From that date onward until 1789, when John Jay gave a reluctant opinion before the Senate in executive session favoring ratification, France insistently pressed for an agreement defining the powers and functions of consuls while the United States pursued a dilatory course marked by apathy, evasion, and opposition. The task of conducting negotiations fell to Franklin in 1782 and to Jefferson in 1786, while Jay, as secretary for foreign affairs, provided the chief obstruction in the form of a notable report in 1785. In this opposition, however, he was aided by the Congress that so readily accepted that policy and by the states that so repeatedly clashed with French consuls who had functioned in American ports from 1778 onwards. It is true that Massachusetts in 1779 appealed to Congress to define the legitimate powers of French consuls in the United States.3 But this appeal arose out of one of the first of a long series of irritating incidents in which state officials exhibited a general desire to curtail consular powers, not an anxiety to press negotiations for a treaty they feared would enlarge those powers and put consuls beyond the reach of local magistrates. There was no genuine demand in America in the decade from 1778 to 1788 for a consular convention, and there was much opposition to one, particularly in the commercial states of the north. The insistence was wholly on the part of France.
The task of reconciling the divergent attitudes of the two countries toward this problem was very greatly complicated by dissensions in America, by struggles in Congress between the pro-English and pro-French factions, by diplomatic negotiations carried on by Jefferson concerning the tobacco monopoly and the whale fisheries, and by such embarrassing incidents involving the principle of diplomatic immunity for consuls as the Marbois-Longchamps affair in America and the imprisonment of Barclay in France. Violences against immunities guaranteed by the law of nations occurred in both countries, as in the seizure of flour in Pennsylvania destined for the French navy and of muskets in France intended for the American armies. France and the United States also had radically different concepts of the consular institution. American consuls insisted on the privilege of engaging in trade; French consuls were not only forbidden by law to do so but generally regarded themselves as civil servants whose official duties made any sort of commercial alliance incompatible with loyalty to the service. Americans feared that political surveillance was a chief object of French consuls in America; French consular personnel had a highly developed professional attitude, conceiving of their duties as primarily designed to aid commerce, the desired attributes for the service being legal and commercial, not political. What the French ministry wanted most of all was to free commerce with the United States from unwarranted obstacles imposed by state legislative and judicial action, to keep an eye on the smuggling carried on by Americans with the French West Indies, and to reduce the large number of desertions from the French navy and merchant marine that occurred whenever their ships put in at American ports.4
These divergent attitudes became manifest at once, despite the fact that the United States was still engaged in a conflict in which the aid of France was indispensable. In 1779 Gérard complained to Congress of the daily experiences in various ports of the United States which manifested a “want of the proper regulations for maintaining the immunity of the flag, which is the foundation of a free commerce.” The treaty of commerce, he pointed out, had anticipated “this state of things and … expressed the wish of the two parties to remedy it.” He therefore thought it urgent and indispensable to provide provisional regulations, and submitted a plan for this purpose.5 Congress rejected the proposal. Gérard’s successor, La Luzerne, timed the next appeal well, approaching Congress in the summer of 1781 just as the decisive campaign of the war was being launched with the indispensable cooperation of a French army that was very much in evidence and of a navy that was approaching the rendezvous at Yorktown. The draft that he submitted had been prepared by the French ministry and La Luzerne asked Congress to mark the points in the plan that presented no difficulty, to submit the others to the examination of delegates appointed by both parties, and, since this would “require discussion in repeated conferences,” to determine the manner in which the conferences should be held. He thought it was equally the interest of both nations to introduce “with all speed” consistency and uniformity in their respective commercial establishments and expressed the belief that Congress would “think it necessary to prosecute this business with all possible despatch.”6
Such an appeal, timed at such a critical juncture and outlining the necessary steps, could scarcely be disregarded. Congress appointed a committee the very next day to consider the draft. The committee reported two weeks later and was then directed to confer with La Luzerne and bring in “a plan … adapted to the subject and circumstances of America.”7 Early in 1782, after two and a half years of pressure by the French ministers, Congress adopted a “Scheme for a Convention” that accepted in substance most of the French projet, rejecting only those parts that were deemed inadmissible as being “chiefly grounded on the ambiguity of terms and a repugnance to the spirit and genius of America”—an expression that Jay would borrow for his report of 1785.
This Scheme was sent to Franklin with instructions that bound him to follow “the Matter thereof in all Respects,” but gave him discretion “as to the Words or Arrangements of the Convention.” As Jay was careful to point out later, the resolution of instructions and the Scheme limiting the minister’s powers were so intermingled that he could not present one without the other, hence the French ministry were fully aware of the bounds of Franklin’s authority. Yet Congress had hardly established that authority when it began to doubt the wisdom of its action. Thomas Barclay, appointed consul to France in 1782, strongly objected to the article forbidding consuls to engage in trade. His remonstrance came before Congress and a committee brought in a report early in 1783 “proposing that the Convention should for the present be suspended.” The debate on this report revealed conflicting points of view, some members arguing for a partial amendment or total suspension during the war, others thinking that “consuls had too many privileges in some respects, and too little power in others.” Madison had a leading part in persuading Congress to stand by its commitment, and his opinion of the report on Barclay’s letter is an indirect commentary on Jay’s similar resolution two years later: “to have suspended the convention after it had been proposed to the Court of France, and possibly acceded to,” he wrote, “would have been indecent and dishonorable; and at a juncture when G.B. was courting a commercial intimacy, to the probable uneasiness of France, of very mischievous tendency.”8
Most of Franklin’s time and energies in 1782–1783 were devoted to the extraordinary problem of framing the treaty of peace, and it was not until the spring of 1783 that he gave any hint of progress in the negotiation of the convention, then primarily because of the swarms of applicants for consulships who appealed to him from most of the ports of Europe. Franklin, who had just turned over his consular duties to Barclay, agreed with him about the article forbidding consuls to engage in trade, and he warned Congress that if this article were insisted upon, “there must be a great Expence for Salaries. If they may trade, and are Americans, the Fortunes they make will mostly settle at last in our own Country. The agreement I was to make here respecting Consuls, has not yet been concluded. The Article of Trading is important. I think it would be well to reconsider it.”9 Franklin seems to have experienced no real difficulties in the negotiation. Lafayette was useful in this business in holding several conversations with ministers, and there were, as always, projets, contre-projets, and conferences.10 The article restraining consuls from engaging in commerce was omitted because Franklin thought “either party would always have the power of imposing such restraints on its own officers whenever it should think fit.” Nevertheless, he was “of opinion that this or any other reasonable article or alteration may be obtained at the desire of Congress, and established by a supplement.”11 Later in 1783 Franklin reported that the “treaty between this Court and the United States, for regulating the Powers, Privileges, &c. of Consuls, is at length compleated, and is transcribing in order to be signed. I hope to transmit a copy by the next Packet.”12 Yet seven months elapsed before the convention was signed, during which time it was Franklin’s turn to give Vergennes a gentle prod, and, due to some fault of conveyance, the signed document did not come to the hands of Congress until early summer of 1785.13
While the various drafts prepared by the ministry and the reaction to appeals from French consuls in America have not been analyzed by scholars to determine whether the American minister was under formidable pressure from the French ministry, Franklin seems not to have thought Vergennes unreasonable or unwilling to make adjustments, nor is there evidence that the ministry displayed intransigence as to the forms or substance of the convention. Vergennes did manifest a consistent desire for inaugurating in America an establishment to which French commerce had long been accustomed and which almost every mail from America proved to be in need of legal definition in the United States. In the course of the negotiations Franklin may not have given Vergennes such a bland assurance as Jefferson gave Montmorin in 1788—that consuls were a relic of a barbarous age unsuited to civilized nations and not regarded as necessary by Americans. But he appears not to have been any more concerned than Jefferson over a possible threat of this largely commercial institution to American sovereignty. It is altogether likely that he would have agreed with Jefferson’s urbane summation of the issue for Montmorin: “That this government thinks them useful, is sufficient reason for us to give them all the functions and facilities which our circumstances will admit.”
This was a view, however, that John Jay emphatically did not share. As one who helped negotiate the treaty of peace, he had assumed a firm stand in opposition to Vergennes’ views about terms and had suspected that minister of duplicity. As a colleague of Franklin when the latter was conferring with Rayneval about the consular convention, he may also have formed further suspicions about the ulterior aims of France. He returned to America in 1784, was elected to Congress, and immediately introduced a resolution similar to the one Madison had helped defeat two years earlier. It stated the desire of Congress—the words “but not the instruction” were deleted from the resolution either by Jay himself or by amendment—to delay or suspend the negotiations. Elbridge Gerry, an inveterate opponent of the idea of a consular treaty, seconded the motion, and Congress, ignorant of the fact that the Convention had been signed five months earlier, unanimously adopted it on 14 December 1784, and appointed Jay chairman of a committee to revise the Scheme of 1782.14 A week later Jay became secretary for foreign affairs, an office that enabled him to deliver an even more effective blow against the consular jurisdiction that France desired so much.
Franklin received the resolution at the hands of Lafayette early in 1785. This, he reported to Congress “came too late to suspend signing the Convention, it having been done July last, and a copy sent so long since, that we now expected the ratification.” The astute diplomat was concerned at this further attempt to postpone the obligation of 1778, and he consulted Jefferson. “I am not informed what objection has arisen in Congress to the plan sent me,” he reported. “Mr. Jefferson thinks it may have been to the part which restrained the consuls from all concern in commerce.”15 The two ministers, on the basis of this plausible but mistaken assumption, could rest confident that the desires of Congress had been anticipated through Franklin’s omitting from the Convention the prohibition against trading by consuls—a confidence that would soon be shaken. Madison, no longer in Congress and unaware of Jay’s successful maneuver, wrote to Jefferson at this time about the troubles of Oster in Virginia, and added: “I have often wondered that the proposed convention between France and the U.S. … has never been executed. The delay may prove unfriendly both to their mutual harmony and their commerce.” While Madison was writing these words, new opposition was building up in Congress. That body had settled in New York—a city, according to a French minister, that was steeped in “Anglomanie”—and on 17 Jan. 1785 renewed the committee to revise the Scheme of 1782, naming Elbridge Gerry as chairman.16
The contradictory attitudes of Congress must also have been puzzling to the commissioners who had been authorized to negotiate treaties of commerce. Their instructions of 7 May 1784 had neither granted nor withheld specific authority to repeat the pledge made in 1778 concerning consular establishments, yet Adams, Franklin, and Jefferson seem to have assumed as a matter of course that, under the general principles of reciprocity that formed the basis for such treaties, they were authorized to adopt the precedent.17 Accordingly, when Jefferson drafted the model for a treaty of commerce in the autumn of 1784, he incorporated in it Article xxix of the treaty of 1778, and made its pledge even more specific as to time by adding the words: “whenever either party shall chuse to make such appointment.”18 The treaty with Prussia actually repeated this article in almost identical words.19 Hence, by its failure to instruct the commissioners not to repeat in other treaties the pledge that had been made to France, and by its ratification of consular arrangements included in the treaties with Prussia and Morocco, Congress pursued a course contradictory to its approach to the Convention of 1784. This inconsistency, which seemed to reflect less hostility to foreign consular jurisdictions in general than to a French consular establishment, was made more pronounced with the acceptance by Congress of Jay’s famous report of 1785. Since that report has been described as “John Jay’s most important diplomatic service to his country” because it supposedly “ended the threat of extraterritoriality to American jurisprudence,” and since it caused another long delay and another repetition of tedious negotiations, it must be examined briefly.20
Jay’s opposition extended even to the Scheme approved by Congress in 1782. He thought it “far from unexceptionable, but a former Congress having agreed to it, it would be improper now to recede.”21 Congress had not only agreed to that Scheme, but had authorized its minister to negotiate with a foreign power whose ministers were fully aware of the authority thus granted. To repudiate that authority, as Madison had suggested, was not merely improper but dishonorable. Hence Jay was forced to seize upon the only argument available to him: that is, that Franklin had exceeded his authority in agreeing to the terms of the Convention of 1784. His use of that argument was thoroughgoing, and even extended to matters of phraseology wherein Franklin had been granted a discretionary power. The dominant legalistic tone of his report is clearly shown in his objection, for example, to Franklin’s changing the title of the nation from “the United States of North-America” as it was in the Scheme of 1782 to “the Thirteen United States of North-America” as it is in the Convention of 1784. Jay declared that both titles were erroneous but that the Convention made a departure in substance from the Scheme because it “limits the compact to the thirteen United States of America, and consequently excludes from it all such other states as might before the ratification of it or in future be created by, or become parties to, the confederacy.” In this the secretary may have been correct, but there can also be no doubt that, far from being a substantial departure, this was a mere legal technicality that could have been easily disposed of in a single clause in the instrument of ratification as to those states admitted before ratification, and if, as is debatable, it had. presented any problem for states admitted afterwards, this could have been settled with equal ease.
So, too, with much of the remainder of Jay’s argument. The 1st article of the Scheme had directed consuls to present their commissions to “the United States in Congress assembled,” whereas the Convention stipulated that they should do so in “their respective states according to the form which shall be there established.” Jay conceded—some pages later in his report where it may have escaped the attention of Congress as it has that of some historians—that the words “respective states” applied to the two nations and not to the states of the confederacy, but thought the words left room for doubt as to whether the forms were to be established by Congress or by the individual states. The omission of the 3rd article forbidding consuls to engage in commerce he judged to be “an essential, though perhaps not in itself a very important deviation from the scheme.” He conceded that the omission of the 6th article giving consuls the right to have chapels in their houses seemed to be within Franklin’s discretionary power, but he regarded this as important because “the Catholic religion may be freely and publicly professed and exercised in the United States, yet the Protestant religion has no legal toleration in France.” He found a material difference in the 8th article—one that Jefferson supported with forceful arguments in his negotiations with Montmorin—in provisions that opened the door to ex parte affidavits made before consuls.
But his next discovery that the Convention was ultra vires turned out to be disconcerting. On the difference between the 12th article of the Scheme and the 10th article of the Convention, Jay wrote: “These articles differ in these respects. The Scheme does not authorise the consuls to send vessels back, but the convention does. The scheme does not authorise them to arrest captains and masters of vessels, but the convention does. The scheme does not authorise them to arrest passengers, but the convention does.” This was a most impressive argument. The right to arrest and send back a vessel, as Jefferson pointed out, was “a very great one indeed” and the right to send back passengers “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.”22 Such a substantive difference between what was authorized by Congress and what was agreed to by Franklin may very well have been decisive in persuading Congress. Unhappily, long after that body had accepted Jay’s legal argument, a clerk in the office of the secretary discovered that the Scheme did in fact carry such specific authorization and that in the Convention of 1784 Franklin, far from exceeding his powers as to this article, had done nothing more than copy the precise words of Congress. If such a discovery was acutely embarrassing to Jay, he covered his blushes with the bold assertion that this made the Convention all the more “ineligible”—a statement which can only be interpreted as meaning that identical words were more offensive when uttered by Congress than when uttered by a minister of Congress. But from this damaging blow to his lawyer’s brief Jay could see no escape except to “conclude a Convention similar even to the Scheme as it now appears to be” and to have Congress reiterate the stipulation that its duration should be limited to a term of years.23
Other points in Jay’s argument also underscore its emphasis upon technicalities. He thought the 13th article of the Scheme and the corresponding 11th of the Convention differed in that the former gave cognizance of certain offences to consuls while the latter gave it to the judges of the country. The force of the argument that this was a substantive difference is diminished somewhat by the fact that the Convention of 1788 repeated almost verbatim the words of this article as it appeared in the Convention of 1784, and that terms which Jay had objected to in his advice to Congress in 1785 he silently accepted four years later in his counsel to the Senate. Aside from the argument based on a faulty transcription of the Convention, the secretary made his most telling point on the differences between the Scheme and the Convention respecting the power of consuls to prove nationality of individuals by affidavit. Yet even this had a legalistic emphasis. The purpose of the 16th article of the Scheme and of the 14th of the Convention was solely to enable nationals to obtain exemption from personal service while residing in the domain of the state to which they did not belong. Jay contended that the consul’s power to issue such affidavits could act as a bar to the right of expatriation. Jefferson, to be sure, objected even more strenously than Jay did to the idea that a consul’s written affidavit could be upheld to the exclusion of all counter-proof, but in this he was arguing against the assumptions of both Scheme and Convention, as well as reflecting his own concern for due process of law. Both Jay and Jefferson seem to have overlooked the point that what was involved here was merely the individual’s right to assert nationality and to prove it before a consul so as to exempt him from personal service. The fact that nothing more was involved is proved not only by Franklin’s phraseology in the Convention asserting the article to be interpretative of the 11th article of the treaty of 1778 (an assertion that Jay also found to be an essential departure), but also by Moustier’s comment on Jay’s argument and the fact that the French ministry in 1788 thought the American position on this article worth no comment, readily agreeing to Jefferson’s revised phraseology.24 Jay concluded his catalogue of differences by pointing out that there was no article in the Scheme comparable to the 16th of the Convention. What Franklin had assumed authority to insert in that article was a provision for the exchange of ratifications. Legalism could go no further in its reach for arguments to convict a culprit already condemned.
This elaborate legal argument, aside from its incidental effect of making an already uneasy Congress more certain than ever that its ministers abroad were too disposed to exceed their powers, was advanced to support the proposition that the French ministry could only “expect a ratification de gratia, and not de jure.” Congress, in brief, had a right to refuse ratification. Whether it was expedient or politic to exercise this right was a matter that Jay said he would leave to the wisdom of Congress—and then proceeded to state his own views on the subject. The Convention he thought had three general objects: (1) to prevent infractions of French and American commercial laws (as shown by the 10th article); (2) to “prevent the people of one country from migrating to the other” (as “sufficiently evident from the 14th article”); and (3) to establish in each other’s country “an influential corps of officers, under one chief, to promote mercantile and political views.” These were objects that “the United States has no object in promoting.” In addition, Jay found the Convention “liable to several strong and particular objections.” First among these was the degree of immunity extended, “not only to consuls and also to vice-consuls, but also to all their different officers, and in general to all persons attached to the consulate.” The establishment of consular chanceries he thought created “an imperium in imperio, which in several respects must clash with the internal policy of these states, and with which it is not clear that Congress can authorise any persons to interfere.” Further, the making a consular certificate conclusive proof of nationality was a provision that did not “comport with the genius and spirit either of our constitutions or our laws.” In addition, an objection “much more interesting” appeared in the fact that this provision seemed to make it possible for France to prevent by such certificates any alienation of nationality “for any cause whatever,” and thus by treaty with America to block a French immigrant’s effort to become a naturalized citizen. Jay concluded that the “true policy of America does not require, but on the contrary militates against” such consular conventions. This being so, the Convention of 1784 should not be ratified, but since Congress had proceeded so far, he recommended that instructions be sent to the minister at Versailles to notify the king that Congress would ratify a convention made in conformity with the Scheme of 1782 “provided an article be added to limit its duration to eight or ten years.”
This notable report was read in Congress on 6 July 1785. Forty copies were ordered to be printed under an injunction of secrecy, and “Wednesday 13 [July] assigned for Consideration.” The injunction of secrecy had little effect. Within a month of the date Jay presented his report and almost a year and a half before Jefferson saw a copy of it, the French chargé d’affaires had obtained a copy and transmitted it to Vergennes. After the presentation of Jay’s report, opposition to the Convention of 1784 mounted. Monroe reported to both Madison and Jefferson that it was “universally disapproved” and would most likely be postponed again. Late in July Jay sent Congress a copy of the arrêt of 30 August 1784 on trade with the French West Indies thinking that its 12th article cast “light on some parts of the Consular Convention.” In October he reported on the appointment of American consuls to various countries, but recommended that all measures respecting consuls for France should be suspended until the Convention, “now under consideration of Congress,” should be settled.25 Congress, facing an election in November, debated requisitions, treaties with the Indians, and “other matters of general and pressing concern”—but did nothing about the Convention.
Early in 1786 the treaty of commerce with Prussia, containing a clause calling for an agreement to regulate consular establishments precisely similar to that which had produced the Convention of 1784, was laid before Congress. Although he had only recently argued that “the true policy of America does not require, but on the contrary militates against” consular conventions, Jay on 9 March 1786 did not include the consular clause among the objections he found in the Prussian treaty. These objections gave him no difficulty, and so he recommended its ratification as being prudent. Congress the next day directed the secretary to prepare the form of a ratification, and he did so within a week. In another two months Congress ratified the treaty that had been concluded only the preceding autumn about the time that Jay’s report on the Convention was being considered.26 Such legislative expedition was neither lost upon nor pleasing to French officials who had been pressing nearly eight years for the adoption of a consular convention.
Otto, who had succeeded Marbois as chargé d’affaires, wrote Jay on 18 April 1786 in consequence of “pressing orders … received by the last packet.” These orders were to remind Congress that ratifications of the Convention of 1784 had not been exchanged, that the king desired this formality “should be no longer deferred,” and that Congress should be requested to “send their ratification to Mr. Jefferson as soon as possible.” To make the matter even more emphatic, Otto noticed that he had received no answer to his memorial of the preceding November presenting the request of the ministry that he take notice of measures by Congress for fulfilling the conditions of two loans negotiated in 1782–1783 by Franklin. Jay dutifully presented this none-too-subtle warning to Congress, and Rufus King wrote to Elbridge Gerry, who shared his views on the subject: “France has required a ratification of the consular convention.” Congress referred Otto’s letter back to Jay for report, and Jay then explained to Congress itself at some length why Congress had not had time or sufficiency of delegates to ratify the convention. He recommended that Jefferson be informed of Otto’s note and “instructed to account and apologize for the Delays which have attended this business.” Having approved this report and authorized its apology, Congress proceeded at once to ratify the Prussian treaty—an act, of course, that required the presence of nine states.27 As if to make this evasive and contradictory conduct still more pointed, Jay, not knowing that Otto had long been in possession of his secret report condemning the Convention of 1784, gave him a solemn assurance in a private interview in April that he himself “would solicit with Congress the ratification … as soon as there should be nine States represented.” Such a solicitation would have taken less time and would have been far more candid than the extensive investigation of the files necessary to establish an unavoidably flimsy foundation for a diplomatic apology. In June Otto reminded Jay of his promise; stated that he had talked with members of Congress who gave the same reasons that Jay had furnished as a basis for the apology; and let it be understood that he knew Jefferson had been instructed to present analogous explanations to the Court of France. The chargé d’affaires concluded by delicately pointing out the inconsistency between these explanations and the ratification of the much more recent treaty with Prussia. Vergennes did the same almost simultaneously, and told Otto to let Jay know that the king would wait patiently until it should please Congress to regulate this matter according to the treaty of 1778, which, he pointedly remarked, “n’est pas encore oblitteré.”28
Again Jay was obliged to lay a remonstrance from Otto before Congress. This time neither he nor Congress could employ the same excuses—their respective actions on the Prussian treaty had deprived them of that resource. In the face of this dilemma, Congress took the extraordinary step of referring back to the secretary for foreign affairs his own report of the year before with the request that he report on his report. Jay allowed five weeks to elapse before doing so, almost as much time as was required by Congress to ratify the Prussian treaty. It is true that he was in the midst of the negotiations with Gardoqui and that some in Congress, particularly those of the Virginia delegation, were so infuriated over his stand on the Mississippi question that they were privately urging the French chargé d’affaires to have France sponsor the Spanish negotiations. It is also true that there was still strong sentiment in Congress against the Convention of 1784. While Jay deliberated on the report on his report, Otto reported to Vergennes that Elbridge Gerry had gone to Boston in the spring of 1785, had made many false representations in an audience he requested of the senate, and had spoken with such vehemence against the immunities of consuls that the Massachusetts legislature had instructed its delegation to vote against any convention incorporating a measure of such dangerous tendencies. Otto thought that Massachusetts was friendly to France but that the inveterate hostility of that state’s delegation arose in part from the attitude of Governor James Bowdoin, father-in-law of Sir John Temple, British consul, and member of a family that had an implacable hatred of France because it had fled after the revocation of the Edict of Nantes.29
Jay’s report on his report of the year previous waited almost another month before it was read by Congress. It was then referred for further report to a committee who kept it another three weeks. Finally, on 3 October 1786, Congress approved the report that Jay had first presented on 6 July 1785, and Jay forwarded the new instructions to Jefferson the same day. These instructions meant, in substance, that after four years Congress was reaffirming the Scheme of 1782 and limiting its duration to not more than ten years. The vote was unanimous, but Otto reported that the five southern states favored ratifying the Convention of 1784 as it stood, leaving it up to the French ministry to effect the few necessary changes, but that to avoid further delay they had yielded to the insistence of Jay and the northern delegates.30 It is more likely that the commercial north, where opposition to the Convention centered, and the agricultural south, where sentiment on the Mississippi question was inflamed, came to some understanding on the two issues, resulting in the southern states’ declining to press their majority advantage on the consular issue.
Otto learned of the instructions being forwarded to Jefferson, and, since it was his letter that had produced the resolution, he requested a copy of it. Congress formally declined this request, taking the position on Jay’s recommendation that instructions to its minister abroad would be officially made and therefore they did “not think it necessary to accept his polite offer of conveying any … respecting the Consular Convention.” But Otto—who already knew the substance of the instructions but not their precise terms—saw to it that Jay’s dispatch to Jefferson was placed in the trunk of the packet boat and consigned to Vergennes’ particular care, for he thought it possible that the secretary sought “encore du tems par des nouveaux delais” such as Congress had claimed was the case with the original sent by Franklin. Otto’s communications to Vergennes and to Jefferson of 15 Oct. 1786 went by the same trunk and arrived at their respective destinations on the 5th and 6th of December; two weeks later Jay’s two dispatches of 3 and 27 Oct. 1786, which had come by the same conveyance, reached Jefferson.31 It is difficult to avoid the conclusion that the instructions Jay had refused to let Otto see were, because of this two-week delay, fully possessed by Montmorin before Jefferson saw them. Montmorin would scarcely let such an opportunity slip after Otto had so pointedly presented it to him. Surprisingly, Jay had not used a courier.
Ten days after dispatching Congress’ new instructions to Jefferson, Jay submitted a brilliant report to Congress on infractions of the Treaty of Peace with Great Britain. This report, like that on the Convention of 1784, involved the treaty powers of Congress. In the report on consular establishments, Jay had said that the Convention “must in several respects clash with the internal policy of these states, and with which it is not clear that Congress can authorise any person to interfere.” In the report on the infractions of the British treaty, the secretary took a more decisive view. He insisted that the United States have “a good right to insist and require that National faith and National treaties be kept and observed throughout the Union,” and that their terms could not be contravened by acts of state legislatures. He observed further that treaties on being constitutionally made, ratified, and published became “part of the law of the land, and are not only independent of the will and power of Such Legislatures, but also binding and obligatory on them.” This statesmanlike doctrine became in substance a part of the new Constitution only six months after it had been adopted by Congress. Both the Treaty of Peace and the Convention of 1784 affected matters normally within the police powers of the states, but Jay’s constitutional position in the two cases stood in marked contrast. So, too, with other subjects involving the two international obligations. British merchants were suffering from the barriers interposed by various states against certain pledges in the Treaty of Peace. Jay’s report sympathized with the suffering of these merchants and condemned the actions of the states. French merchants, as well as consuls, had been suffering loss and indignities at the hands of state authority. But before these sufferings Jay stood unmoved, voicing no such concern for the threat to relations between the United States and France as Madison and others had expressed. The national faith and honor were pledged to Great Britain by treaty, and Jay argued eloquently that the states should be called upon to repeal all acts that compromised the national character. But the national honor had also been pledged in 1778 to make a consular agreement with France, and during all the years that France insistently tried to obtain American consent to carry out this pledge, Jay at no point urged that it be redeemed forthrightly and promptly. On the contrary, he did all that he could to prevent it.
The partiality of his policy is revealed with finality in his contradictory attitudes toward the confidential nature of his two reports, both of which Congress placed under injunctions of secrecy. To the French chargé Jay declined to reveal what Otto already knew, and his argument to Congress against such revelation was perfectly correct. To Sir John Temple, the British consul, he not only disclosed in private conversation the substance of his secret report on infractions of the Treaty of Peace, but also declared that in his opinion England was justified in maintaining the western posts so long as the states continued to violate the treaty by statutes blocking the collection of private debts. This, like Alexander Hamilton’s similar revelation and discrediting of official policy to the British minister a few years later, went so far beyond the bounds of mere indiscretion, and affected important national issues so greatly, as to constitute malfeasance in office.32
James Monroe and others of the south, in private communications, had already come close to impeaching Jay’s honor for his negotiations with Gardoqui, and if the secretary’s disclosure to the British consul had been made known to Congress at this time, as it was promptly to the British ministry, the effect upon a national unity already endangered by sectional cleavages between north and south would have been grave indeed. The conclusion is unavoidable that Jay’s friendly disposition toward Great Britain and his fear of French influence in America, rather than a hostility to the idea of consular establishments, determined his attitude toward the Convention of 1784. Though he was ably supported in this by such men in Congress as King and Gerry, he must bear the primary responsibility for the unwarranted delay in redeeming the pledge of 1778. It was a delay, as the outcome proved, that accomplished nothing save to endanger relations with France and to obtain a clause limiting the duration of the treaty. The corps of agents that Jay feared would exercise a political surveillance throughout the country were still possible under the new convention; nothing was achieved by it that would diminish the power of France to block emigration or recover deserters; and, indeed, Jay’s forcing a reopening of negotiations involved the risk that the United States in the end might be obliged to agree to terms less liberal than those obtained by Franklin. That this risk was neutralized is due primarily to the accommodating disposition of the French ministry, secondarily to the adroitness of Jefferson’s diplomacy, and not at all to the fact that Jay blocked ratification of the Convention of 1784.
For the fact is that Jefferson did not negotiate the new treaty on the basis of Jay’s legalistic argument. Indeed, he declined doing so, despite the fact that Congress had so instructed him and had gone so far as to approve Jay’s directions as to the manner of conducting the negotiations by requiring him to present Jay’s report and point out to Montmorin the differences between the Scheme of 1782 and the Convention of 1784.33 Jefferson asked for new instructions on the ground that the instructions given obliged him to present the Scheme of 1782 and that if the French ministry “should recollect the scheme and insist on it, we can but conclude it” without a jot or tittle abated. His request was carefully phrased. Its well-chosen words could have given Jay the impression that Jefferson agreed fully that both the Scheme of 1782 and the Convention of 1784 were objectionable, and that any new convention was bound to put the United States in worse condition than the existing state of affairs. In view of the vacillating course pursued by Congress, Jefferson may very well have come to the conclusion also that the “states would be very unwilling to conform their laws either to the Convention, or to the Scheme.34 But he was well aware of the dangers inherent in the undefined and conflicting status of consular privileges in the various states. As governor of Virginia he had proposed and proclaimed in 1779 one of the first of the state laws defining consular privileges, had been gravely concerned about the effect of the Marbois incident in 1784, and the next year, with Franklin, had been puzzled to know what objections Congress could have found to the Convention of 1784.35 Unquestionably, Jefferson wanted new powers principally to avoid being confined to the narrow, legalistic arguments employed by Jay. As a diplomat, he preferred his own methods. The sequel proved the wisdom of his preference. Nor is there any doubt that Montmorin preferred Jefferson’s candor and reasonableness to Jay’s legalism and suspicions.
While Jefferson suggested to Jay that his new instructions might be accompanied by a private letter directing him not to go beyond the Convention of 1784, he was in fact given far broader latitude than Franklin had enjoyed. Jefferson, acting from very different motives, had presented Jay another opportunity for delay, and the secretary responded favorably. He reported to Congress that he thought no article or provision in the Convention would escape the recollection of the French ministry, but that he believed they would consent to a limitation of its duration. He was also of the opinion that there was “no Inconvenience likely to result” from giving Jefferson “an Opportunity of endeavoring to realize the Advantages he expects … and which under a new Administration (perhaps not well advised of what has passed) may be attainable.” Clearly, Jay thought Jefferson’s chances for a successful negotiation slight. The commission that Jay framed and Congress approved included a surprising delegation of power: it promised that Congress would ratify forthwith “whatever Convention shall … be … concluded” by Jefferson, provided its duration was limited to not more than twelve years. The accompanying private instructions, however, promised that Congress would “ratify any Convention that is not liable to more Objections than the one already in part concluded,” namely, the Convention of 1784.36 Thus the private instructions drafted by Jay, even though greatly reducing the broad latitude of powers in the commission that was intended for Montmorin’s eyes, were still so broad as to amount to an abandonment of Jay’s position of the preceding year. The surrender of that position is all the more remarkable because Jefferson had not requested it. On the contrary, he had suggested private instructions limiting him to the terms of the Scheme of 1782. To this Jay responded by authorizing him to draft a treaty that would not go beyond the Convention of 1784 that he himself had so roundly condemned. There is no evidence that Jay had changed his mind in the slightest. He may have entertained little hope for a successful negotiation—Jefferson himself had expressed doubt on the point. More likely he thought the growing clashes between state authorities and French consuls increased the possibility that French demands would be correspondingly augmented, that Jefferson would find it difficult if not impossible to keep from going beyond the terms of the Convention of 1784, and that, even if the negotiations should turn out to be futile, a foundation would have been laid for another time-consuming discussion of ratification by Congress.
There was every reason to advance such plausible suppositions. French consuls in America filled their reports with complaints against the vexatious restrictions under which they labored, and Oster’s elaborate compilation of articles that he thought necessary to include in a convention (Document II in the present series) is a reflection of his own experience in Virginia. New clashes between state officials and consuls came with irritating frequency. One of the most serious involved a case of barratry committed by one Captain Ferrier, whom the French consul at Norfolk was powerless to recover from the local sheriff. This clash of authority over a particularly reprehensible maritime crime came at once to the attention of Montmorin, who directed Otto to invoke the 10th article of the Convention of 1784 in a formal protest to Jay. “Je sais,” Montmorin added, “que cette convention n’a pas été ratiffiée par le Congres; mais nous devons la regarder comme telle, parceque le plénipotentiaire des Etats-unis, qui la signée en vertu de son plein pouvoir, n’a pas été désavouée, et que d’ailleurs elle est ponctuellement exécutée dans nos ports.” Montmorin instructed Otto—Moustier was at the time feared to be lost at sea—not to refrain from letting the members of Congress, and particularly Jay, know that the ministry, offering a perfect reciprocity on its part, expected a similar eagerness on the part of the United States to support the bonds subsisting between the two countries. Moustier, who had scarcely had his first audience with Congress, received these instructions and presented the case to Jay. He also spoke to two delegates from Virginia, casually referred to his memorial to the secretary on this “affaire abominable,” and said that it was necessary to take this step so that such things could not happen again. This disturbing incident reached a crisis just at the climactic moment when the closely-divided Virginia ratifying convention of 1788 was in session. One member of Congress looked upon the triumph of a Virginia sheriff over a French vice consul as “another mournful proof that unless we have a Foederal Government we shall not long escape from the depredations of some Foreign Nation.”37 The Virginia delegates were also fully aware of the dangerous potentialities of the incident at such a juncture. They wrote at once to Governor Randolph that Jefferson had been given instructions to accommodate the matter and then added: “The business is, however, in a delicate situation, and it is the wish of Congress that the affair of Capt. Ferrier may be so treated as to produce no discussion that can possibly be avoided.” Moustier thought that the critical political situation was responsible for Congress’ prompt attention to his protest on the Ferrier episode. He found even Jay forced out of “sa lenteur ordinaire” by this episode, and the secretary informed him at once that Jefferson was instructed to conclude the Consular Convention. Moustier observed to Montmorin: “J’imagine que ce Ministre Americain aura eu l’attention de faire observer au Congrès que l’arrêt de Conseil, qui accorde des faveurs particuliers aux Americains n’est point un traité, mais un reglement d’administration, que le Roi peut revoquer ou modifier à son gré. I crois qu’il est utile qu’ils soient penetrés de cette verité.”Jefferson himself had sounded such a note. Nevertheless, though Jay and others were aware of this threat, Moustier thought the instructions to Jefferson were such as to authorize him to create delays, to grant no unavoidable concession, and to refrain from treating at all unless forced to do so. He also thought that Congress’ mere resolution recommending that Virginia deliver up Ferrier to Oster not sufficient in the case of so revolting a crime, and in a private conversation with the Virginia delegates he asserted that even if there were no treaty between the king and the United States“la dignité et l’honneur de l’Etat de Virginie auroient exigé que les Magistrats de cet Etat se fussent saisis d’un criminel, coupable envers toutes les nations et qui ne pourroit trouver d’azyle que chés des pirates our des ennemis declarés de la France.” This was strong language, but the delegates could only answer that, under Virginia law, they were powerless to do otherwise.38
Two other serious clashes occurred at this time in New York under the very eyes of Congress, of the secretary for foreign affairs, and of the French minister. The fact that both involved royal ships—one a French frigate and the other a packet—and that both asserted to an extreme degree the supremacy of local law over claims of immunity under the law of nations establishes ground for suspecting that they were neither unconnected nor uninspired. Both cases also involved the same magistrates, and it is worth noting that Moustier gave a long report upon these two episodes because he thought that they might be repeated. He was also of the opinion that they showed an urgent need for the ratification of the Convention of 1784.
The first of the two incidents consisted of charges brought by a passenger against the captain of the French packet. Moustier thought the complaints ridiculous and not at all actionable. He informed the captain that he supposed the passenger to be a fool who had fallen into the clutches of a shyster lawyer, and that the charges in any case would not afford ground for hailing into an American court an admiralty officer of the king commanding a ship that enjoyed the same immunities as a vessel of the royal navy. Indeed, Moustier believed that on such flimsy grounds the captain of a merchant ship would not have had to submit to local jurisdiction. The passenger was dissuaded by another lawyer from pursuing the case, but Moustier soon found that, in the second incident, his extended view on privileges and immunities was not at all shared by local magistrates.
The second incident involved a charge by one John Render, a citizen of New York, against one Simon, a cannoneer aboard the French frigate L’Aigrette, of stealing a watch. The captain, according to Moustier, said that he would reimburse the value of the watch and punish the sailor if the owner could produce witnesses of the theft or other convincing proofs. This Render did not do, but instead—Moustier clearly thought this was purposeful—waited until the eve of the departure of the frigate before bringing his complaint to a justice of the peace. The magistrate issued a warrant without hesitation and a constable attempted to serve it on board the frigate. He was refused, and complained to Mayor James Duane that he had been treated harshly. Duane thereupon wrote to the French consul, St. Jean de Crèvecoeur, that, while he could not vouch for the facts in the case and while he had great respect for the French flag, the law would have to run its free course in respect to the subject of an ally as well as to citizens. He therefore asked Crèvecoeur to use his good offices to permit justice to be done to the complainant without making it necessary for the civil authority to enter the warship and seize the accused. Crèvecoeur replied that he had received the mayor’s letter just as he himself, as consul, was going to register a complaint in this same matter. He denied that the constable was mistreated, but admitted he had been refused the right to serve the warrant, a refusal grounded on“l’immunité sacrée que le droit des gens accorde chez toutes les Nations aux vaisseaux de guerre d’un Souverain.” He found it very strange that a justice of the peace could thus affront French sovereignty, and, as there were other methods of protecting a citizen’s claims to justice, he requested Duane to interpose all of his influence in order to remove just grounds of complaint for this irregularity against the French flag. He asked that the affair be placed on the footing that it should have occupied in the first place, for the frigate was scheduled to sail within two days. In taking this strong stand, Crèvecoeur was following the advice of Moustier, and when the consul called on the mayor the following day, Duane conceded that an error had been made in issuing the warrant before presenting a request for extradition of the sailor. He insisted nevertheless that no foreigner could escape the force of the laws. The issue was compromised, perhaps because Duane and Crèvecoeur were both reasonable men, and the question of the immunity of the flag was left undecided.
American lawyers with whom Moustier discussed the matter went so far as to say that even the commander of a foreign vessel of war was not able to exercise any sort of jurisdiction on board his ship while in the territorial waters of the United States, and that a consul had even less claim to jurisdiction over a merchant ship. Local law, Moustier reported to Montmorin, was the Americans’ sole guide and they extended it so far over aliens as scarcely to recognize the law of nations as applied to foreign ministers. Some even claimed that the laws applied to all, and that no foreigners, whatever their rank or station, could claim exemption unless the laws expressly granted such exemption. This interpretation, Moustier continued, was felt most weightily in those areas affecting merchant ships, merchants, and sailors—in short, where it would be most necessary to have a consular jurisdiction. It was bad enough when the mayor threatened to send the harbor constable with his “rame d’argent” to arrest a ship, but much worse when, as had recently happened at Norfolk, a captain committed barratry and attempted to sell his ship, furniture, and cargo. To these dangers were added the problem of desertion of sailors: the frigate L’Aigrette had lost three sailors during her sojourn in port. Moustier concluded his long dispatch on consular difficulties by saying that the first step to be taken to promote commerce with America was to give it the necessary protection, without which it could never exist. He thought the execution of the consular convention too pressing a matter to be deferred to the time when, in accordance with his instructions, he could make a general report on commerce. With this report, therefore, he included his observations on the delay in the ratification of the Convention of 1784 (here presented as Document I).39
A month later Moustier sounded an even more dismal note on the prospect of commerce with America: Congress was enfeebled, there was no uniform, consistent commercial policy, and no effect could be given to the acts or requisitions of Congress. Jefferson, he thought, was without doubt “un excellent Citoyen Américain” and was one of those who believed that it was the interest of the United States to be allied with France. But Jefferson’s was far from being a prevalent view and therefore the American minister at Versailles“peut toujours demander et solliciter, mais … ne peut positivement rien promettre.”40 These pessimistic dispatches from the United States were written precisely at the time Americans were supposed to be glowing with gratitude over the “Wisdom and Liberality”—as Jay expressed it41—shown by France in the commercial arrangements that Jefferson had negotiated the preceding December. Moustier’s pessimism throws into bolder relief his simultaneous recommendation to Montmorin that, in view of the revolution then taking place in American affairs, France could afford to accept the Scheme of 1782.42 Having gone through the dispatch books of Marbois and Otto, Moustier knew of Jay’s report of 1785, but evidently he did not know of the change in Jay’s position and the broader powers given to Jefferson. What he wanted was a clarification by the United States and France of the powers and functions of consuls as pledged by the treaty of 1778. While the barratry of Captain Ferrier and the affront to the flag of L’Aigrette led the minister to this justifiable conclusion, it is difficult to believe that the same episodes did not have a more extreme effect when, late in May, news of them reached Paris. The exceedingly forceful language of the minister of marine in his comments on some of Jefferson’s proposals during the negotiations points to this.43 La Luzerne was already engaged in a losing struggle with Jefferson over the arrêt of 28 September excluding American whale oil, and in any case he had no exalted opinion of him as a diplomat. With such news coming from America, it may be supposed that the minister of marine was not to be easily placated on an issue falling within his own special competence—a supposition that seems to be supported by Jefferson’s remark to Jay that the need for consulting the “office of Marine … in all the stages of the negociation … protracted it’s conclusion.”
Montmorin and Rayneval, fortunately, were less volatile than La Luzerne. In acknowledging Moustier’s dispatches, Montmorin admitted that the Convention had met with some difficulties, but he thought these were due solely to“la mauvaise volonté de M. Jay, et à son envie de nuire à la réputation de M. Franklin.” Nevertheless, it was time to end “cette fastidieuse discution” with Congress—an expression which shows what the French minister of foreign affairs thought of Jay’s legal hair-splitting—and Montmorin thought that the best thing to do would be to agree to the Convention of 1784 and stipulate that it should be limited to a period of ten years. He promised to speak to Jefferson in these terms, and urged Moustier to remind Jay that it was to the interest of both countries to protect their commerce against abuses of authority and that, since the Convention was based on reciprocity, it gave to neither nation the right to injure the sovereignty of the other. This decision of Montmorin proved that he was aware of Jay’s report of 1785 but that he, too, was not yet cognizant of the fact that Jay had shifted ground. He was soon enlightened. In a postscript added before the dispatch was sent, Montmorin said: “M. Jefferson vient de me communiquer les plein-pouvoirs qui lui ont été adressés pour traiter l’affair des Consuls; nous ne tarderons pas à nous occuper de cet objet.”44 He knew now that Congress—if it redeemed the promise made in Jefferson’s commission—would ratify “whatever Convention … shall be concluded” provided it was limited as to time. It is a tribute to Montmorin’s willingess to accommodate that he did not press Jefferson to the extent of his authority, or that he did not yield to some of the formidable influences within the French ministry that were demanding a more extended consular jurisdiction. La Luzerne proved the most troublesome of the obstacles, and if he had known of the long list of articles that Oster was engaged in compiling just as the negotiations at Versailles drew to a close, an agreement on the final text of the Convention of 1788 might have been much more difficult than it was.
But the negotiations proceeded with no real obstruction. Rayneval and Jefferson understood each other very well, and the American minister was adept at getting around complicating technicalities. In dealing with the troublesome question presented by Article xiv, for example, it was his suggestion to employ the simple phrase “by legal evidence” (“authentiquement” in the French text) as applied to proof of nationality as a basis for claiming exemption to personal service. This simplification—which actually left the matter undetermined—satisfied the French ministry, accommodated Jefferson’s real or pretended fears about conflicts with bills of right, and disarmed Jay’s legalistic alarms over the chance that French deserters or immigrants might be placed “beyond the reach of naturalization.” In addition, it eliminated about three-fourths of the words in Article xiv. A negotiator so skilled in compromise could have little reason to share Jay’s apprehension.
Montmorin did not even support Moustier or La Luzerne on the question of the immunity of the flag of a warship, which, he said, though generally recognized in Europe, was a voluntary matter for each nation to decide and in any case did not extend so far as to provide asylum for criminals. This principle of immunity, he informed Moustier a few days after the Convention was signed, had come up during the negotiations and Jefferson had requested that no mention be made of it in the treaty because it would frighten the American legislatures. To this Montmorin had consented, not only for this reason but also because “cet objet n’a rien de commun avec les consuls et le commerce.” One of the arguments put forward by Jefferson was that if the principle of the immunity of the flag became general, it would be respected by the United States, but, if it were only local, it would require a particular decision there. The minister added: “Je ne puis trop me louer de la manière franche et de la bonne volonté avec lesquelles M. Jefferson a traité.” The negotiations were begun in the middle of June and concluded in the middle of October. In old age Jefferson recorded in his Autobiography that Montmorin “had retired unwillingly” from the position of 1784. The record does not support this.45 The result was considerably more palatable from the American point of view than the Scheme of 1782, as even Jay was obliged to concede.
Although he heartily disliked clerical drudgery, Jefferson enclosed in his dispatch to Jay as amply documented a report of these negotiations as he ever submitted in an official capacity. Neither John Jay nor any other lawyer combing over the result for minute differences to find an ultra vires act would need to make his own collation of the texts. Laboriously making the tedious comparisons and preparing the printer’s copy himself,46 Jefferson engaged Clousier to print the Conventions of 1784 and 1788 in parallel columns, with variations clearly delineated, and he dispatched enough copies to Jay so that every member of the Senate could make comparisons for himself. As to the actual texts, this was far more information than Jay himself had supplied Congress in his report of 1785. By going so far beyond the requirements of official duty and doing what no other foreign minister had ever done, Jefferson, considering the secretary’s legalistic view of Franklin’s work, may have been hinting subtly that Jay, by presenting to Congress only the points of disagreement between the Scheme of 1782 and the Convention of 1784 and by omitting all reference to the larger agreements, had given a distorted view of what Franklin had done. At any rate, Jay’s acknowledgement of this budget of documents was laconic. “The Alterations in the Consular Convention give Satisfaction,” he wrote Jefferson on 9 March 1789, adding that Jefferson’s conduct of the negotiations “is greatly and deservedly commended.”
On 11 June 1789 Washington transmitted the Convention to the Senate. He explained that, on directions of the former Congress, the Convention of 1784 had “been altered in several respects,” and then added: “I now lay before you the original, by the hands of Mr. Jay, for your consideration and advice. The papers relative to this negotiation are in his custody, and he has my orders to communicate to you what ever official papers and information on the subject he may possess and you may require.”47 The next day the Senate “Ordered, That Mr. Jay furnish the Senate with an accurate translation of the Consular Conventions … and a copy thereof for each member.” On complying with this request, Jay was ordered by the Senate on 17 June to “examine the translation … and report his opinion as to its fidelity”; at the same time he was directed to “lay before the Senate all the papers in his custody relative to the negotiation, and whatever official papers and information on the subject he may possess.” On 21 June the Senate again requested the secretary to attend the next day and “bring with him such papers as are requisite to give full information, relative to the Consular Convention.” Jay complied “and made the necessary explanations.” The Senate then requested him to “peruse the said Convention, and to give his opinion how far he conceives the faith of the United States to be engaged, either by former agreed stipulations, or negotiations entered into by our Minister at the Court of Versailles, to ratify, in its present sense or form, the Convention now referred to the Senate.”
Jay reported on 25 July that the copies of the “Conventions of 1784 and 1788 … received from Mr. Jefferson, and now before the Senate, are so printed, and their variations so clearly marked, as that he cannot contrast them in a manner better calculated for an easy and accurate comparison.” He also stated that there were no variations in the Convention of 1788 “but such as render it less ineligible” than the Scheme of 1782 and the Convention of 1784. He thought that the Convention would “prove more inconvenient than beneficial to the United States,” but that the “circumstances under which it was formed render its being ratified … indispensable.” In explaining these circumstances, Jay referred to the Scheme of 1782, “which, however exceptionable, was framed and agreed to by Congress”; declared—without mentioning his own report of 1785—that Congress had refused to ratify the Convention of 1784 because “in certain instances” that treaty had deviated from the Scheme; quoted at length the resultant instructions to Jefferson in Jay’s letter of 3 Oct. 1786; omitted any reference to Jefferson’s disinclination to negotiate under these instructions; cited the “commission in general terms” given Jefferson by Congress on 27 July 1787, but did not quote its important passage guaranteeing ratification of “whatever Convention shall … be … concluded” by Jefferson; and concluded by quoting Jay’s private letter of instructions which conveyed the promise of ratification of “any convention that is not liable to more objections than the one already, in part, concluded.” Jay then recommended that, since the “convention in question is free from several objections to which the one of 1784 was liable, and is, in every respect, preferable to it,” it followed “that the United States ought to ratify it.” The Senate accepted the opinion and on 29 July 1789 unanimously resolved that “the Senate do consent to the said convention, and advise the President of the United States to ratify the same.”48 On 13 Oct. 1789 Jay sent to William Short, now chargé d’affaires at Versailles, “a Ratification of the Consular Convention” with a duplicate text of the Convention itself.49
Since this was the first treaty to be ratified by the Senate, a long debate ensued on the manner in which that body should exercise the two executive functions it was given by the Constitution—that of confirming presidential appointments and of participating in treaty making. In giving its advice and consent for the first time, the Senate took two steps not subsequently repeated: first, it based its action solely on the obligation resting on the United States to ratify a treaty already negotiated, and, second, it “acted in close conformity with the advice of the former Secretary and not on its own responsibility.”50
It would have been better in respect to the accuracy of the text of the treaty if the Senate had not acted in close conformity with the advice of the former secretary. For Jay, directed to compare the translation and report upon its fidelity, was again victimized by the errors of a clerk. The caution of the Senate was understandable, and Jay’s comparison of the English and French texts was thorough. But the mistakes he uncovered were in the French original, not in the English translation. Neither he nor the Senate recognized them for what they were.
Jay did not know that Jefferson, in preparing the English text, had asked Montmorin to have the English and French texts “declared … each of them to be … equally original and authentic in all courts of justice.” This precaution had been taken because Jefferson felt that in few courts in America could “there be found a single judge or advocate capable of translating at all, much less of giving to all its terms legal and technical their exact equivalent in the laws and language of that country.” But Jay did know that Jefferson had asked the ministry to point out any “passages in which the sense of the original is not faithfully rendered” and that, since none had been reported, the English text could be considered as having official approval.51 He did not, however, report this to the Senate, although he did employ Jefferson’s printed English translation when he made the desired collation. The printed copy of the English text that he submitted to the Senate contained a considerable number of alterations made in the margin by George Taylor, Jr., an able clerk in the office of foreign affairs. Some of these alterations of Jefferson’s careful and exact legal terminology were of such a nature as to create substantial and not merely textual differences. Curiously Jay failed to make one such correction: in Article II, if Jay’s collation was as exact here as it seems to have been elsewhere, he would have noted that, in the clause “in all other instances they shall be subject to the laws of the land as the natives are,” there was no “autres” in the French text and therefore, to be consistent, he should have deleted “other” in the English text—a deletion that would have narrowed consular immunity to the point of extinction.52 But the variation evidently escaped him, and “other” was not deleted. Jefferson’s carefully selected legal terms for “decedents,” “qualify,” and “guardian or lawful representative,” were, however, deleted and Jay’s translation of the corrresponding text he found in the French original rendered respectively as “deceased persons,” “receive,” and “administrator or legal heir.”53
These attempts to purify the English text were bad enough in the potentialities they held for unnecessary litigation and friction, but one of them opened up the possibility that fraud and collusion could be legalized. In Article V the Convention as negotiated by Jefferson and Montmorin was careful to stipulate that a consul might retain the effects of a decedent “four months to answer all just demands which shall be presented.” But, on examining the original French text, Jay found no corresponding phrase “toutes les justes demandes” and so he struck out the word “just” in the official English text—a substantive difference that entitled the consul to employ the effects of a decedent “to answer all demands which shall be presented.” One can only imagine the avidity with which Jay would have seized upon such a legal exposure of private right while he was compiling his report of 1785. These and all other discrepancies between the translation and the original that Jay discovered, but did not recognize in their true nature, were duly ratified by the Senate and became part of the supreme law of the land. As in the similar error in the case of Virginia’s cession of her claim to western lands, the Statutes at Large and all subsequent official printings of the Consular Convention of 1788 perpetuated the corruptions.54 Ironically, Jefferson himself as secretary of state made the first use of the corrupt text when he drafted and published Washington’s proclamation of the Consular Convention early in 1790.55
It was appropriate that Jefferson should have done so, for the ultimate responsibility for the corrupt text lay with him and Montmorin for having attached their signatures to a document prepared with gross carelessness. This occurred in the following manner. When Jefferson had drawn up a copy of the second American proposition incorporating his objections to the French contre-projet, this text, he reported to Jay, brought him and Rayneval “so near together, that, in a conference on that,” the text was arranged in the form in which it was signed.56 If, as this seems to indicate, Jefferson meant that no French text intervened between the second American proposition and the text that was signed, he was mistaken. What evidently happened was that, after he and Rayneval had agreed to the text here presented as Document xiv, a clerk’s copy in French was prepared with the names, titles of the negotiators, and date left blank (the text referred to as a draft in the notes to Document xv). Jefferson then took this copy and supplied the missing parts in his own hand, after which he gave it (or a fair copy of it) to the copyist who employed it in preparing the engrossed French texts for the two ministers to sign and exchange. Unfortunately, the unknown clerk was unusually careless in transcribing and no one seems to have collated his defective text with its prototype before the official signing. Hence the text that was signed and transmitted to America for ratification was a corrupt “original.” Meanwhile, Jefferson’s English text was prepared on the basis of the draft, was transcribed and translated with fidelity, and was, moreover, given an official if not legal status equivalent to the French original. Both therefore stemmed from the same prototype, and while several of the errors made by the copyist should have warned Jay or the members of the Senate that something was wrong—one error produced a nonsense reading57—Jay and the Senate soberly recaptured most (but not all) of the copyist’s errors in the French original and made the English translation equivalent in debasement as well as in official status. Thus the corruptions passed into law.
One of these alterations by the Senate, however, cannot be blamed upon the anonymous copyist: it was a variation that was intentional on Jefferson’s part. In supplying the matter for the blank space reserved for names and titles in the preamble of the draft, Jefferson, in deference to French custom, wrote in his own hand the words “Le Sieur Thomas Jefferson.” But in the equivalent English text he designated himself as plain “Thomas Jefferson.” Jay and the Senate discovered the difference and deprived him of this gesture of republican simplicity by making him legally, if ungrammatically, “The Sieur Thomas Jefferson.”
Ironically, Jefferson’s successful diplomacy came on the eve of cataclysmic events which turned France from absolutism to republicanism. The Consular Convention had scarcely been ratified by the Senate when a report to the National Assembly described it as obsolete and as being founded on principles incompatible with republicanism—an opinion that Jefferson had stated to Montmorin when the negotiations opened.58 The treaty was abrogated on 8 July 1798, thus making its life much shorter than the time of its preparation. Both periods of its existence were filled with vexations for each of the signatories.
1. Treaties and Other International Acts of the United States, ed.Hunter Miller Washington, 1931, ii, 26.
2. See TJ to Jay, 14 Nov. 1788. Gérard de Rayneval and his brother are sometimes confused. (See note in Miller, same, ii, 31.) Gérard’s commission, dated 28 Mch. 1778, is printed along with his instructions in Wharton, Dipl. Corr. Am. Rev., ii,522–3.
3. JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xiii, 391. On 7 June 1779 Congress did appoint a committee consisting of Henry Laurens, Samuel Adams, and John Dickinson “to adjust and settle with the Minister Plenipotentiary of France the powers and privileges of consuls in the ports of either nation” in accordance with the agreement in the treaty of commerce, but nothing resulted from this, even though the appointment coincided with flagrant abuses in Pennsylvania against consular immunities and even against “the laws of property and personal freedom” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xiv, 696, 913; Congress found that charges made in the Penna. Packet of 24 July 1779 “unjust and ill founded”).
4. On the Marbois-Longchamps affair, see note to Thomson to TJ, 18 June 1784. Thomson thought it plain that this episode bore “strong marks of a premeditated design to embroil us with France,” an opinion that Marbois expressed to Jay in an official message the following year (see the Marbois-Jay correspondence on this matter in Dipl. Corr., 1783–1789, i, 111, 112, 113–6, 140). On the incident concerning Barclay and also the detention of American arms by Schweighauser & Dobrée, see note to TJ to Jay, 21 June 1787; also, final paragraph of state of the case of Schweighauser & Dobrée, Nov. 1788. The French concept of the consular service cannot be better shown than by the comments submitted by Moustier in 1788 and by the revision of the Convention of 1784 proposed by Oster (see notes to TJ to Jay, 14 Nov. 1788 and Document ii in the present series).
5. Gérard to the president of Congress, 21 June 1779; Wharton, Dipl. Corr. Am. Rev., iii, 228–9.
6. La Luzerne to the president of Congress, 27 July 1781; same, iv, 604.
8. For notes on the “Scheme of a Convention” and the accompanying resolution of Congress of 25 Jan. 1782, see Jay to TJ, 3 Oct. 1786. On Barclay’s letter and the resultant debate, see Livingston to Franklin, 6 Jan. 1783; Wharton, Dipl. Corr. Am. Rev., vi, 198, 329; Madison’s notes of the debates 2–3 Jan. 1783, JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxv, 846.
9. Franklin to Livingston, 15 Apr. 1783; Franklin, Writings, ed. Smyth, ix, 33.
10. Many of the documents pertinent to this negotiation are to be found in Arch. Aff. Etr., biii, a series comprising papers from the Bureau des Consulats and duplicating much of the material in the regular series—“Correspondance consulaire,” “Correspondance politique,” and “Mémoires et Documents”; Carton 440 (microfilm in DLC) is entitled “Etats Unis. 1664 à 1829. Traités et conventions de commerce; tarifs de douane,” &c. Projets and contre-projets both of the Convention of 1784 and of that of 1788 are included in this group, along with copies of state laws affecting shipping.
11. Franklin to president of Congress, 8 Feb. 1785; Franklin, Writings, ed. Smyth, ix, 289.
12. Same to same, 25 Dec. 1783; same, ix, 134.
13. Franklin to Vergennes, 31 May 1784; same, ix, 215. See Jay to TJ, 13 July 1785. Otto later showed some trace of doubt as to whether the Convention had actually been so long in reaching Congress. A clerk’s copy of the Convention as signed by Franklin and Montmorin is in DLC: TJ Papers, 11:1786–91. There is also in DLC: TJ Papers, 11:1780–5, a copy of the printed text of “The Scheme of a Convention” of 1782 and of an English translation by John Pintard of the Convention of 1784 (11 pages, described in JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvii, 722, No. 442, where it appears 40 copies were printed; endorsed “No. 2 & 3”:—the numbers given by Jay when he enclosed the pamphlet in his letter to TJ of 3 Oct. 1786). This pamphlet bears a number of minor corrections, one of them in TJ’s hand: Pintard had translated the words “les y feront jouir aussitot” in the 1st article as “shall cause them to enjoy as soon as possible”; TJ struck out the last four words and wrote “immediately” in the margin, which is the wording of the official English text as signed (see Document xvi).
15. Franklin to the president of Congress, 8 Feb. 1785; Franklin, Writings, ed. Smyth, ix, 289.
16. Madison to TJ, 9 Jan. 1785. See JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxxviii, 7n, 158n.
17. Vol. 7: 265–71.
18. Vol. 7: 486.
19. Treaties and Other International Acts of the United States, ed. Hunter Miller, Washington, 1931, ii, 181–2.
20. S. F. Bemis, “John Jay,” American Secretaries of State, New York, 1927, i,259.
22. TJ to Montmorin, 20 June 1788. TJ may have discovered the discrepancy independently of Jay. For, in the margin of his copy of Jay’s printed report as enclosed in Jay to TJ, 3 Oct. 1786, keyed by asterisk to each of the three places where Jay asserted that the Scheme “does not” grant authority, TJ wrote: “It does.”
24. See, in the present series, Document i; Document iii, note 4; and Document xii, note 22. Rayneval thought that the 14th article of TJ’s projet (Document vii)“ne demande aucune observation” (Document viii).
25. Jay’s report is in DNA: PCC, No. 81, ff. 275–303, and is printed in JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxix, 500–15. The copy enclosed in Jay to TJ, 3 Oct. 1786 is in DLC: TJ Papers, 13: 2215–9. See JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxix, 572, 831–2, 924, No. 483. Marbois sent the copy of Jay’s report in his dispatch to Vergennes on 8 Aug. 1785 (see Document i in the present series), Monroe to TJ, 15 Aug. 1785; Monroe to Madison, 14 Aug. 1785; Burnett, Letters of Members, viii, 184–5.
26. King to Gerry, 30 Apr. 1786; Burnett, Letters of Members, viii, 347; JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxx, 110–2, 114.
27. Otto to Jay, 18 Apr. 1786; Dipl. Corr., 1783–1789, i, 203, 204; JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxx, 209, 216.
29. Otto to Vergennes, 1 Aug. 1786; same, xxxii. On 29 May 1786 Otto had reported to Vergennes that Rufus King still maintained that Franklin had exceeded his powers in 1784 (same). See JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxx, 394.
30. JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxxi, 394, 528, 647, 712–35. Otto to Vergennes, 16 Oct. 1786 (Arch. Aff. Etr., Corr. Pol., E.-U., xxxii; Tr in DLC).
31. Otto to Vergennes, 15 Oct. 1786; same; xxxii. Otto explained that the prompt departure of the packet prevented him from sending a copy of Jay’s instructions; in his letter of the next day (see note 30), he remedied this by calling Vergennes’ attention to the dispatch to TJ. Otto to Jay, 9 Oct. 1786; Dipl. Corr., 1783–1789, i, 239. JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxxi, 776–7.
32. For Jay’s masterly report on infractions of the Treaty of Peace, see JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxx, 781–874. S. F. Bemis, “John Jay,” American Secretaries of State, i, 230, holds that Jay’s action in divulging the nature of his secret report and in expressing his own opinion to Temple “must perforce explain the continued determination of that Government not to evacuate the posts.” For a different view, see F. Monaghan, Jay, 254.
35. See Vol. 3:197–8, 184–6, 251–2; 6:34.
36. Jay’s report, which he made promptly on receipt of TJ’s letter of 9 Jan. 1787, is dated 10 May 1787 (DNA: PCC, No. 81, iii, 113–20). It was read 11 May and passed 27 July 1787. These new instructions were adopted as framed by Jay, as were additional instructions to John Adams in London. In commenting on this to Rufus King, Nathan Dane wrote on 12 Aug. 1787: “It is evidently the object of several gentlemen to put the affairs of our Legation at London into the hands of Mr. Jefferson. This is a thing we can by no means agree to” (Burnett, Letters of Members, viii, 636–7). In view of the generally friendly attitude in New England at this time toward TJ because of his activity in behalf of the whale trade, this remark from one of the pro-British members of Congress takes on special meaning. An American minister at Versailles who was friendly to France could do little harm: an American minister at London whose public dispatches had clearly revealed his hostility to England might do much.
37. Hugh Williamson to Richard Caswell, 30 May 1788; Burnett, Letters of Members, viii, 744.
38. Virginia Delegates to Edmund Randolph, 25 July 1788; same, viii, 766. Montmorin to Otto, 19 and 29 Feb. 1788; Moustier to Montmorin, 25 May, 25 June, 5 July, 4 Aug. 1788 (the last enclosing a précis of Moustier’s conversation with the Virginia delegates); Arch. Aff. Etr., Corr. Pol., E.-U., xxxii, xxxiii; Tr in DLC. Some months later Moustier claimed that his direct negotiations with the Virginia delegates had produced the desired results by causing Congress to send instructions to TJ and to write to the legislature of Virginia to give the satisfaction claimed by the king; nevertheless—this just as the signed Convention was on its way to America—he thought Jay’s secret instructions to TJ directed him to gain time and to avoid everything “qu’il ne seroit pas absolument constraint de finir. … Un des traits dominans dans le caractere des Americains est la ruse” (19 Jan. 1789; same, xxxiv).
39. Moustier to Montmorin, 5 Mch. 1788, enclosing copies of Duane to Crévecoeur, 19 Feb. 1788, and Crévecoeur to Duane, 19 Feb. 1788; Arch. Aff. Etr., Cor. Pol., E.-U., xxxiii; Tr in DLC.
40. Moustier to Montmorin, 21 Apr. 1788; same.
42. See Document i.
43. See Document ix, under Art. xii.
44. Montmorin to Moustier, 23 June 1788 (Arch. Aff. Etr., Corr. Pol., E.-U.; xxxiii; Tr in DLC).
45. Moustier to Montmorin, 21 Nov. 1788, enclosing a copy of the Convention; Arch. Aff. Etr., Corr. Pol., E.-U., xxxiv; Tr in DLC. Proof that the actual negotiations were completed by 19 Oct. 1788 is shown by the fact that La Luzerne on that date gave his approval to the final projet and returned it to Montmorin that he might take orders from the king to sign it (same, xxxiii). A copy of the brevet from Louis XVI to Montmorin authorizing him to conclude and sign the convention, dated 22 Oct. 1788, is in DNA: RG 59.
46. See illustration in this volume.
48. Jay’s report of 25 July 1789 is in DNA: PCC, No. 124. JEP description begins Journal of the Executive Proceedings of the Senate of the United States …to the Termination of the Nineteenth Congress, Washington, 1828 description ends , I, 6,7,8,9. The resolution of advice and consent of the Senate is in DNA: PCC, 122 and differs from the text in JEP description begins Journal of the Executive Proceedings of the Senate of the United States …to the Termination of the Nineteenth Congress, Washington, 1828 description ends , though not as to the words quoted above. The instrument of ratification was not signed by Washington until 9 Sep. 1789, the delay being caused, as Jay reported to William Short on 17 Sep. 1789, by “Doubts respecting the Seal of the United States” (Treaties and Other International Acts of the United States, ed. Hunter Miller, Washington, 1931, ii, 242).
49. Jay to Short, 13 Oct. 1789; DNA: PCC, No. 121.
50. R. J. Dangerfield, In Defense of the Senate: A Study in Treaty Making, Oklahoma, 1933, p. 40.
51. TJ to Montmorin, 20 June 1788 (Document v), TJ to Jay, 14 Nov. 1788. The copy of the English text that TJ submitted to the French ministry for approval is in Arch. Aff. Etr., Corr. Pol., E.-U., xxxiii; Tr in DLC. It bears no comment.
52. See Document xv, note 2.
53. See notes to Document xv.
54. See Vol. 6:571–5; Treaties and Other International Acts of the United States, ed. Hunter Miller, ii, 228–41.
55. See under 9 Apr. 1790.
57. See Document xv, note 8.
58. “Projet de Réforme de la Convention Consulaire,” Arch. Aff. Etr., biii, Carton 440 (microfilm in DLC).