James Madison Papers

To James Madison from Moustier, 22 July 1788

From Moustier

Editorial Note

The case of Joseph Marie Anne Ferrier, a French ship captain accused of maritime barratry, is the subject of four documents printed in this volume (Moustier to JM, 22 July 1788; Virginia Delegates to Randolph, 25 July 1788, and enclosure; Randolph to Virginia Delegates, 2 Aug. 1788 [first letter]; and Jones to JM, 3 Aug. 1788). Martin Oster, French consul at Norfolk, had imprisoned Ferrier on a French ship in the summer of 1787 and charged him with fraudulently selling his cargo. Ferrier was subsequently removed from Oster’s custody by the local sheriff, who arrested him on the complaint of a creditor. After posting bail to appear at the county court in this civil action, Ferrier obtained his freedom. Oster thereupon applied to Governor Randolph for aid in apprehending Ferrier and his accomplices in order to send them to France for trial. On the advice of the Council of State, Randolph informed Oster that he had no authority to meet his request.

The matter came before Congress in May 1788, when French minister Moustier sent a note to Secretary Jay demanding that Ferrier be delivered up to the French consul. On 13 June, Congress passed a resolution directing Jay to transmit Moustier’s note to Governor Randolph and declaring that it was “the sense of Congress that … Ferrier ought to be apprehended in order to be dealt with according to the nature of the case.” Randolph replied to Jay on 2 July and reiterated his opinion that “the relief sought by Mr. Oster was far beyond the scope” of the executive power of Virginia. Meanwhile Moustier conferred privately with the Virginia delegates in Congress, urging them to communicate to their state officials the serious consequences if this demand was ignored. The delegates enclosed a record of this conversation in their letter to Randolph of 25 July. Randolph responded on 2 August by enclosing a copy of his letter to Jay of 2 July. The governor subsequently turned the matter over to the General Assembly. Although Moustier and Jay discussed the subject again, neither Congress nor the Virginia legislature took any further action on Moustier’s note after the fall of 1788. (The pertinent documents on the Ferrier case are printed in Diplomatic Correspondence of the U.S., I, 253–73.)

The Ferrier controversy was one of a series of incidents involving a clash of state and consular authority during the 1780s. The treaty of 1778 between France and the United States had stipulated that consular functions and powers were to be defined in a separate agreement. Ratification of a consular convention was delayed for ten years, however, owing to American reluctance. Franklin and Vergennes had signed a convention in 1784, but Congress (on the advice of Secretary Jay) had withheld ratification. Nevertheless, Moustier regarded the convention of 1784 as operative. At the time the Ferrier case was before Congress, a new consular agreement was in the final stages of negotiation at Paris. It was signed by Jefferson and Montmorin in November 1788 and ratified by the Senate the following summer (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950—). description ends , XIV, 66–180).

July the 22d. [1788]

It has appeared to Count de Moustier upon the reading of the fifth chapter book IV Vol. IV. of Blakstone’s Commentaries1 that Mr. Maddison might find there some satisfactory explanation about the question put: “which would be the proceeding of English Government in a case similar to that of Ferrier?” The less favourable induction would be that such an offender would certainly not have escaped punishment. The question would have been reduced to Know whether that offender should have been punished according to the laws of England, or whether he should have been delivered to a public officer of the K[ing o]f France to be sent by him to his native country to take there his trial. But as the English Lawyer observes that the rules upon which the States act result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual compacts or treaties between the respective communities,2 so since such treaty and a compact of such purport exist between the King of France and the United States, there seems no way for a proper excuse to the proceeding by which Ferrier was screen’d from justice for a heinous crime under the frivolous pretence of answering to justice for a doubtful debt.

RC (DLC). Unsigned. Docketed by JM. Brackets enclose letters obscured in damaged portion of Ms.

1Commentaries on the Laws of England (4th ed., 1770), IV, 66–73.

2Most of this sentence to this point is a direct quotation (ibid., IV, 66–67).

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