From Thomas Jefferson to Thomas Newton, Jr., 8 September 1791
To Thomas Newton, Jr.
George town Sep. 8. 1791.
Dear Sir
I was in the moment of my departure from Philadelphia for Virginia when I recieved your favor enquiring how far the law of nations is to govern in proceedings respecting foreign Consuls.
The law of nations does not of itself extend to Consuls at all. They are not of the diplomatic class of characters to which alone that law extends of right. Convention indeed may give it to them, and sometimes has done so: but in that case the Convention can1 be produced. In ours with France, it is expressly declared that Consuls shall not have the privileges of that law, and we have no convention with any other nation.
Congress have had before them a bill on the subject of consuls, but have not as yet passed it. Their code then furnishes no law to govern these cases.
Consequently they are to be decided by the State laws alone. Some of these, I know, have given certain privileges to Consuls; and I think those of Virginia did at one time. Of the extent and continuance of those laws, you are a better judge than I am.
Independantly of law, Consuls are to be considered as distinguished foreigners, dignified by a commission from their sovereign, and specially recommended by him to the respect of the nation with whom they reside. They are subject to the laws of the land indeed precisely as other foreigners are, a convention, where there is one, making a part of the laws of the land: but2 if at any time their conduct should render it necessary to assert the authority of the laws over them the rigour of those laws should be tempered by our respect for their sovereign as far as the case will admit. This moderate and respectful treatment towards foreign Consuls it is my duty to recommend and press on our citizens, because I ask it for their good, towards our own consuls, from the people with whom they reside.
In what I have said I beg leave to be understood as laying down general principles only, and not as applying them to the facts which may have arisen. Before such application, those facts should be heard from all whom they interest. You, who have so heard them, will be able to make the application yourself, and that, not only in the present, but in future cases.
Dft (DLC); written by TJ on verso of address cover on which is written in an unidentified hand: “[Thom]as Jefferson Esquire Secretary of State Philadelphia.” FC (DNA: RG 360, DL). Tr (DNA: RG 60, T326/1).
Under the terms of Virginia law, the master of a British vessel could apply to a justice of the peace for a warrant to apprehend a deserting British seaman and return him to his ship, or a British consul could request the governor to order sheriffs, constables, or militia officers to cooperate with the master in achieving these goals. But in the case in question the British consul in Norfolk, John Hamilton, after first having appealed in vain for assistance from some local justices, had exceeded his authority under the laws of Virginia by personally authorizing the master of a British merchant vessel to seize a British mariner who had deserted his ship (Newton to TJ, 24 Aug. 1791; x, 202–3).
In laying down general principles only, TJ had the support of three wellknown authorities—Abraham de Wicquefort, Emmerich de Vattel, and Wyndham Beawes—among whom only Vattel argued that consuls “must be accorded, to a certain extent, the protection of the Law of Nations” because they bore a commission from their sovereign and were received by the local sovereign (Wicquefort, The Embassador and his Functions [London, 1716], p. 40; Vattel, The Law of Nations or the Principles of Natural Law [Washington, D.C., 1916], p. 124; Beawes, Lex Mercatori a Rediviva [London, 1752], p. 260; Nos. 1411, 1428, 2101).
In 1793 TJ reiterated his belief in the inapplicability of the law of nations to consuls, and successive attorneys general and secretaries of state reaffirmed this principle during the next half-century. Under the impact of the nation’s increasing interest in international trade, however, the State Department issued new consular regulations in 1856 and 1881 that finally placed consuls under the protection of international law (TJ to Christopher Gore, 2 Sep. 1793; Irvin Stewart, Consular Privileges and Immunities [New York, 1926], p. 23–33).
1. This word interlined in Dft in substitution for “must,” deleted.
2. At this point TJ first wrote in Dft “but in the application of those laws to them, their rigor should be tempered, as far as the case will admit, by our respect for their sovereign, even where his Consul may have so acted as to forfeit his right to personal respect”; then deleted, interlined, and otherwise altered to obtain the reading: “if at any time … the case will admit.”