XIII. Jefferson’s Observations on the Contre-Projet
Article I. Agreed.
Art. II. The words ‘jouiront respectivement de l’immunité personnelle, sauf les cas de crimes ou de dettes. are omitted. Two descriptions of persons are well known to the laws of both countries. 1. Those subject to the laws of the land; and 2. those subject only to the laws of Nations. The obligations and the privileges of each of these are so well settled, that few or no disputes can arise about them. But a middle character between the two would be new and unknown, and would introduce endless questions and discussions.
If it be thought that the words ‘sauf les cas de crimes ou de dettes replace them fully under the law of the land, then the whole passage is useless. If the exception be as broad as the rule, both may be omitted. But in truth the exception as to ‘crimes and debts’ would not replace them fully under the laws of the land. For 1. they would not be obliged to give testimony in a court of justice. 2. There are cases of trespass, of trust, and of special contract, not included in a strict and legal acceptation of the terms ‘crimes and debts,’ and in which therefore they would be exempted from the justice of the country.
It is proposed also to omit the words ‘toutes les personnes attachées aux fonctions consulaires’ to prevent the abuses which would1 inevitably arise from an extension of the Consular immunities to an indefinite number of persons. The subordinate characters really attached to the Consulate, will be compleatly protected against avocation from their duties, or molestation in the exercise of them by the XVth. article ‘exempting them from all personal services,’ which is all that can be desired if they be foreigners, and which ought not to be desired if they be natives. For no native should have it in his power to withdraw himself from an obedience to the laws of his country while he remains in it.
Art. III. Agreed.
Art. IV. Agreed.
Art. V. Agreed, only reestablishing the words ‘comme le feroient’instead of ‘et auront la meme force que.’
Art. VI. Agreed.
Art. VII. Agreed.
Art. VIII. This Article proposes to give to Consuls 1st. Civil jurisdiction on board their vessels. 2. A power to execute the ordinances relative to navigation. 3. A right to go on board for these purposes at all times without hindrance. The 1st. and 3d. of these admit of no difficulty: but the 2d. could not be agreed to, because it establishes a whole code at once, the contents of which are unknown to the party within whose territory it is to be executed. When each concedes to the other a civil jurisdiction within it’s ports, it knows the extent of it’s concession; but when it permits the enforcement of all the Navigation laws of the other, in the lump, it does not know what it concedes. They may include a criminal jurisdiction; they may be contrary to bills of rights; or if not so at present, they may be hereafter. It is surely prudent and honorable for us both to stipulate to each other only what we know we can execute. But we do not know that we can execute, if we do not know what we stipulate.
Art. IX. Agreed with two alterations. 1. Omitting the words ‘et autres personnes’ because the others ‘capitaines, officiers, mariniers, et matelots’ are supposed to comprehend the whole crew. If they do not, it will be better to add other specifications, rather than words so indefinite as ‘autres personnes.’ 2. Omitting ‘par l’exhibition des registres du batiment ou role d’equipage.’ I suppose that the legal construction of these words must be weaker under the laws of France, than of the United states: otherwise they would not be proposed. Their effect in the United states would be to make the ship’s roll so conclusive that no contrary evidence could be opposed to it. A master of a ship, for instance, inserting in his roll the name of a citizen of the United states, who had never seen his ship, that citizen must be delivered to him, if these words were to remain. It is not probable indeed that the master of a ship would be so indiscreet; but neither is it proper to rest personal liberty on the discretion of a master of a ship. Without these words, the clause will stand ‘en justifiant que ces hommes faisoient partie des susdits equipages.’ His claim may then be supported and contested, as all other claims may be, by every species of legal evidence. He will stand on the same footing with Native officers reclaiming their deserted sailors.
Art. X. Agreed.
Art. XI. This article proposes 1. That there shall be no arrest for crimes or debts but in presence of the Consul or Viceconsul. 2. That no ship shall be searched but in his presence. These propositions are new. The principle on which we have proceeded hitherto has been that in all cases where the Nation or any member of it is concerned, the National jurisdiction shall have free and unrestrained course. But this article proposes to clog it with applications to the foreign Consul, and that it shall await his attendance, if he chuses to attend. How quickly he may attend will depend on his being readily found, on his being disengaged, on his distance from the ship, on his personal activity and good faith. Some, or all of these circumstances, will generally give full time for the criminal or debtor to escape, or for the Contraband goods to be withdrawn.
That part of this article which is intended to prevent a collusive desertion of sailors, not being liable to the same objections, is agreed to as follows. ‘Lorsque les dits coupables2 feront partie de l’equipage de l’un des batiments de leur nation, ils3 ne pourront etre ensuite mis en liberté qu’apres que le Consul ou Vice Consul en aura eté prevenu, et ils3 lui seront remis, s’il le requiert, pour etre reconduits sur les batiments ou ils3 auroient eté arretés, ou autres de leur nation, et etre renvoyés hors du pays.’
Art. XII. This article is new also, and liable to the same objections with the preceding, and in a higher degree, as rendering the ports of the two nations still more completely extra-territorial. The clause which would make the captain’s word conclusive evidence that the criminal who is seen standing on his deck, is not there, comes under all the objections which were made in a former paper to whatever should controul a fair and full investigation of a fact. Our laws permit every species of proof to be opposed by counter-proof. The Convention of the Neutral powers in the late war made the Captain’s word conclusive evidence that no contraband goods were on board the vessels under his convoy. But this in cases arising on the high seas. The sea belongs to no nation. No nation therefore has a natural right to search the ship of another on the high seas. The contrary practice has been an abuse, and the abandonment of it is a reformation of that abuse, a re-establishment of natural right.4 But the Ports of a nation are a part of it’s territory. They are often within the body of a town, and an immunity from the restraint of law granted to strangers within the port, would be as productive of disorder, as if granted to those in the town, or in the country. All judges, civil and criminal, derive their authority from the sovereign of the country wherein they act. For the encouragement of commerce it is become usual to permit, by Convention, foreign merchants of the same country to refer their disputes to a judge of their own. But in criminal cases, in cases which interest members of their own or any other state, or the state itself, it is apprehended not to be the practice for the nation to part with it’s authority, and that neither order nor justice would be promoted by it. Particularly to leave to the discretion of a Captain, whether his ship shall be an asylum for fugitive debtors, whether the disorders or crimes committed by his sailors, or by others taking refuge in his ship, should be punished, or not, cannot be a means of encouraging the commerce between the two nations, nor promote the interest or honor of either. Nor has this impunity any relation to the functions of a Consul, which are the sole object of the present Convention.
Art. XIII. XIV. XV. XVI. and XVII. Agreed.
Tr (DNA: PCC, No. 87, ii); in TJ’s hand (this is the copy enclosed in TJ to Jay, 14 Nov. 1788). PrC (DLC). MS (Arch. Aff. Etr., Paris, Corr. Pol., E.-U., xxxiii; Tr in DLC); in Short’s hand, with corrections by TJ; undated, but enclosed in TJ to Rayneval, 16 Sep. 1788 (Document xii). PrC (DLC); with corrections in TJ’s hand.
1. In MS and its PrC this word was omitted by Short; TJ supplied the omission interlineally in both texts.
2. Two lines are deleted at this point so heavily as to be indecipherable. They are deleted in MS and in Short’s PrC of the full text of the Convention as indicated in notes to Document xiv; in both the deletion was made by TJ. Possibly the deletion contained the words “se seront retirés à bord desdits navires,” for these had been in the French contreprojet and later appeared in the final text.
3. In MS Short originally wrote “elles,” which TJ corrected by deleting and interlining to read as above, making the same correction in PrC.
4. In MS Short erred by writing “neutral,” which TJ corrected by deleting and interlining to read as above, making the same correction in PrC.