Notes on the Consular Convention of 1788
1803. May 3.
Notes on the subject of the Consular convention between the US. & France.
In 1784. a convention was entered into between Dr. Franklin & the Count de Vergennes concerning Consuls. it contained many things absolutely inadmissible by the laws of the several states, & inconsistent with their genius & character. Dr. Franklin not being a lawyer, & the projet offered by the Ct. de Vergennes being a copy of the conventions which were established between France & the despotic states on the Continent (for with England they never had one) he seems to have supposed it a formula established by universal experience, & not to have suspected that it might contain matters inconsistent with the principles of a free people. he returned to America soon after the signature of it. Congress recieved it with the deepest concern. they honoured Dr. Franklin; they were attached to the French nation; but they could not relinquish fundamental principles. they declined ratifying it, & sent it back with new powers & instructions to mr Jefferson who had succeeded Dr. Franklin at Paris. the most objectionable matters were the privileges & exemptions given to the Consuls, & their powers over persons of their nation, establishing a jurisdiction independent of that of the nation in which it was exercised, & uncontrouleable by it. the French government valued these, because they then apprehended a very extensive emigration from France to the US. which this convention enabled them to controul. it was therefore with the utmost reluctance, & inch by inch, that they could be induced to relinquish these conditions. the following changes however were effected by the Convention of 1788.
The clauses of the convention of 1784. cloathing Consuls with the privileges of the laws of Nations were struck out, & they were expressly subjected, in their persons and property, to the laws of the land.
The giving the right of Sanctuary to their houses, was reduced to a protection of their chancery room & it’s papers.
Their coercive powers over passengers were taken away; and over those whom they might have termed deserters of their nation were restrained to deserted seamen only.
The clause allowing them to arrest & send back vessels was struck out, & instead of it they were allowed to exercise a police over the ships of their nation generally.
So was that which declared the indelibility of the character of subject, and the explanation & extension of the 11th. article of the treaty of Amity.
The innovations in the laws of evidence were done away.
And the Convention, from being perpetual, was limited to 12. years.
Altho’ strong endeavors were used to do away some other disagreeable articles, yet it was found that more could not be done without disturbing the good humour which Congress wished so much to preserve, and the limitation obtained for the continuance of the Convention ensured our getting finally rid of the whole. Congress therefore satisfied with having so far amended their situation, ratified the Convention of 1788. without hesitation.
PrC (DLC); dated in ink; at foot of first page in ink: “Wingate Mr.” Recorded in SJL as a communication to “Wingate mr.”
The consular convention of 1788 had become an issue during the April elections in Massachusetts. Opponents of Jonathan Mason, a Federalist candidate for a seat in the state senate, accused him of having harmed American interests when, as a U.S. senator in February 1801, he voted with the majority to remove the second article of the Convention of 1800 before ratifying that document. The second article provided for negotiations to settle Americans’ claims against France, but also anticipated talks about restoring the 1778 treaty of alliance, the treaty of amity and commerce of that year, and the 1788 consular convention. The Palladium of Boston defended the abrogation of the treaty of alliance and the consular convention, declaring that the latter was TJ’s creation “in a moment of blind confidence and ardent fondness for France.” The “unparalleled” consular convention, the newspapers’s editors contended, “provided for a French Judiciary in every State, independent of the authority of our Government or Courts. The pretensions of the French Consuls, and the embarrassment they created, are well remembered” (New-England Palladium, 29 Mch., 1 Apr.; Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:458–9; Vol. 33:22n). TJ may have prepared these notes about the creation of the consular convention for Joshua Wingate, Jr., the chief clerk of the War Department, who was Henry Dearborn’s son-in-law. In correspondence with TJ, Dearborn referred to his daughter as Mrs. Wingate, and Joshua Wingate was the person TJ was most likely to refer to as simply Mr. Wingate, with no first name, as he did in recording this document. Wingate, the son of a prominent resident of Hallowell, Maine, and the grandson of former New Hampshire congressman Paine Wingate, later entered politics in Maine (William H. Smith, “Gen. Henry Dearborn: A Genealogical Sketch,” Maine Historical and Genealogical Recorder, 3 , 6–7; Vol. 36:200n; Vol. 38:296–7n; Dearborn to TJ, 28 Aug. 1803, two letters; Thomas Paine to TJ, 25 Jan. 1805).
When John Jay, as secretary for foreign affairs, asked TJ in 1786 to negotiate a revision of the 1784 consular convention that Congress had declined to ratify, TJ first requested new instructions, which Jay sent in July 1787. After completing the negotiations in November 1788, TJ sent Jay the new convention along with printed copies of a side-by-side comparison of its articles with those of the rejected 1784 convention (Vol. 10:430–1; Vol. 11:31, 627–9; Vol. 14:xxxiv, 56–8, 66–92, 121–6, 178n).
changes however were effected: the earlier convention would have given consular officials “a full and entire immunity for their person, their papers and their houses.” The 1788 convention gave immunity only to “their chancery and the papers which shall be therein contained.” The new agreement also had a clause making consuls subject to the laws of the land “as the natives are,” a provision not found in the earlier instrument. Under the convention of 1784, consuls would have had the power to arrest passengers as well as deserted seamen and to sequester or send back vessels. The 1788 convention allowed for the arrest of deserters, but not of passengers, and had no provision for the seizure or sending back of ships (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 , 31:727, 732; Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:230, 237).
indelibility of the character of subject: an article of the unratified convention declared that persons of either nation “shall not lose, for any cause whatever, in the respective domains and states, the quality of subjects of the country of which they originally were, conformably to the eleventh article of the treaty of amity and commerce” of 1778. That article of the treaty, which concerned the status of individuals living in the other country’s jurisdiction, stated that nothing in the treaty would alter “the laws made or that may be made hereafter in France against Emigrations, which shall remain in all their Force and Vigour” (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 , 31:734–5; Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:11–12).
innovations in the laws of evidence: under the unratified convention, if a consul wanted deserters seized, “no tribunals, judges and officers whatsoever, shall in any manner whatever take cognizance of the complaints which the said sailors and deserters may make.” To get custody of deserters under the 1788 convention, consuls must “address themselves to the courts, judges, and officers competent, and shall demand the said deserters in writing, proving by an exhibition of the registers of the vessel or ship’s roll that those men were part of the said crews” (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 , 31:732–3; Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:237–8).
The 1788 convention was to be in force for 12 years from the exchange of ratifications. The 1784 convention contained no limitation on its term. The Senate ratified the new convention in July 1789 (same, 241, 242; 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 , 31:735).