the United States, either the corvette or her captain would have escaped?

4thly. "The refusal to provide the means to execute the confular convention of the 14th November 1788."

As you have not felected the particular parts of this convention fuppofed to remain unexecuted, the underfigned muft neceffarily 'confider the more definite charges heretofore made on the fame fubject as being adopted by you.

Your predeceffor in office, in his letter to Mr. Monroe of the 19th Ventofe, 4th year (9th March 1796), complains, Ift, That the claufe granting to French confuls the right of judging exclufively in difputes between Frenchmen, is become illufory for the want of laws giving them the means of having their decisions executed.

2dly. The right of caufing mariners who defert to be arrested, is rendered ineffectual, because the judges charged by the laws with iffuing the mandates of arreft have lately required the prefentation of the original roll of the crew, in contempt of the 5th article admitting in the tribunals of both powers, copies certified by the conful.

It is then understood to be required,

ift. That the officers of the United States fhould execute the judgments of the confuls:

2dly. That the judges of the United States fhould iffue mandates of arreft against perfons charged with being deferters, without a view of the original roll of the crew.

It is very jultly obferved by Mr. Jefferson, in his letter to Mr, Morris, which has been already cited, that "every nation has, of natural right, entirely and exclusively all the jurisdiction which may be rightfully exercifed in the territory it occupies. If it cedes any portion of that jurifdiction to judges appointed by another nation, the limits of their power muft depend upon the instrument of ceffion." The parties to the convention profess its object to be, "to define and establish in a reciprocal and permanent manner the functions and privileges of confuls and vice-confuls."

It is to be expected then, as well from the intention of the con vention establishing the tribunal, as from the nature of the tribunal itself, which is a foreign court, conftituted by a foreign authority, governed by foreign laws, and amenable for its conduct to a foreign government, that no power is to be implied, and that it poffeffes no capacity which is not exprefsly given to it. To af certain then the precife extent of the ftipulation, let the convention itfelf be confidered.

The first point refts exclufively on the 12th article, which is in thefe words: "All differences and fuits between the fubjects of his moft Chriftian Majefty in the United States, or between the citizens of the United States within the dominions of the most

Chriftian

Christian King, and particularly all difputes relative to the wages and terms of engagement of the crews of the refpective veffels, and all differences, of whatever nature they may be, which may arise between the privates of the faid crews, or between any of them and their captains, or between the captains of different vessels of their nations, fhall be determined by the refpective confuls and vice-confuls, either by a reference to arbitrators, or by a fummary judgment, and without cofts. No officer of the country, civil or military, fhall interfere therein, or take any part whatever in the matter: and the appeals from the faid confular fentences fhall be carried before the tribunals of France or of the United States, to whom it may appertain to take cognisance thereof."

In this article no engagement is made to furnifh the means of executing confular judgments. If therefore the preceding pofitions be juft, there is an end of the queftion. But other arguments present themselves in fupport of the conftruction contended for by the United States. The confular authority in a foreign country is ufually either voluntary, or enforced by the laws of the nation to which the confuls belong, and which may bind their own citizens or fubje&ts under penalties to be inflicted on their return, or otherwife. Upon this idea it was fufficient to ftipulate a permiffion of the jurifdiction, in exclufion of the courts of the country on any other idea, it would have been neceffary to have ftipulated explicitly and perhaps in detail, the manner in which its fentences fhould be executed. To accede to the demands of France, would be to erect in a foreign country complete courts of justice, with effectual process to compel the appearance of parties and witneffes, and to execute their decifions. And as the tranfactions in commerce could not, in the nature of things, be confined to foreigners alone, the citizens of the country must often be neceffary witneffes to thofe tranfactions, and of course rendered amenable to this foreign jurifdiction in their own country; whereas the jurifdiction granted by the article, is only of French confuls over French citizens in the United States, and recipro-cally of American confuls over the citizens of the United States in France. This would be to extend, by implication, the authority of a foreigner over perfons not contemplated by the treaty as fubject to it. The article declares too, "that no officer of the country, civil or military, fhall interfere therein, or take any part in the matter." But fheriffs, marshals, and their deputies, or any other perfons appointed by, and acting under the laws of the country, are "officers of the country," and confequently cannot aid in the execution of confular decifions, because they are exprefsly forbidden "to interfere therein, or take any part whatever in the matter."

VOL. VII.

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But

But was it meant that the laws fhould give confuls the power to appoint fuch executive officers of their own nation? Should it be conceded, that a perfon fo appointed could not be considered as an officer of that nation by virtue of and according to whose laws he held his office, ftill we find no fuch thing in the convention. On the contrary, in the cafe of deferters from veffels, mentioned in the 9th article, whom the confuls are authorized to cause to be arrested, they are exprefsly directed to apply in writing to the "courts, judges, and officers competent" to make the arrefts, meaning the courts, judges, and officers of the country where the confuls refide. In addition to this, if power could be given to confuls to appoint officers to execute their decifions, thefe officers must of course have their fees of compenfation to be paid by one or other of the parties. But the article giving the jurifdiction, declares that the confular judgments fhall be "without cofts."

The fecond complaint is, that the judges of the United States have required the exhibition of the original roll of the crew as the teftimony which would authorize the iffuing of a mandate to apprehend a French mariner charged as a deferter. The right to require thefe mandates is founded entirely on the 9th article of the confular convention.

That declares, "That the confuls and vice-confuls fhall addrefs themselves to the courts, judges, and officers competent, and fhall demand the faid deferters in writing, proving by an exhibition of the registers of the veffel or fhip's roll, that thofe men were part of the faid crews; and on this demand fo proved (faving however where the contrary is proved), the delivery thall not be refused.

It would be an idle waste of time to attempt to prove to you, Citizen Minifter, that the register of the veffel or fhip's roll is not a copy of that paper, or that a copy does not fatisfy a law which peremptorily requires the exhibition of the original. Your predeceffor has thought proper to refer to the 5th article of that inftrument; but a flight perufal of that article will convince you, Citizen Minifter, that it does not apply to the cafe. When the judges of the United States determined that the mandate of arreft could not be iffued on the exhibition of a "copy of the register of the veffel or fhip's roll," they did not fo decide for the purpose of giving effect to the fyftem of the government, but be caufe the treaty was clearly understood by them pofitively to require the prefentation of the original.

The underfigned regret, Citizen Minifter, that your researches concerning the United States have not extended to their courts. You would have perceived and admired their purity. You would have perceived that America may repofe herself securely on the integrity of her judges, and your juftice would have fpared the infinuations

2

infinuations concerning them which have clofed this part of your letter.

The undersigned will now confider what you have stated with refpect to the treaty of amity, commerce, and navigation, formed with Great Britain.

You complain, Citizen Minifter, in very strong terms, of the deception alleged to have been practifed with refpect to the object of Mr. Jay's miffion to London, and alfo of the contents of the treaty which that miffion produced. You are pleased to observe, that it was then said, that Mr. Jay had been fent to London, only to negotiate arrangements relative to the depredations committed on the American commerce by the cruifers of Great Britain.

By whom, Citizen Minifter, was this faid? Not by the Prefident in his message to the Senate, announcing the nomination of Mr. Jay: nor by the then Secretary of State, in communicating to Mr. Fauchet the fubject of that miffion. The documents with refpect to this affertion have been stated, and have been fully commented on. It has been fully demonftrated that the American government did not feize this occafion to practise a deception fo unneceffary, fo foreign to its well-known character, and which could produce only mifchief to itself. As you have in no degree weakened the testimony which is relied on as difproving this allegation, or produced any fort of evidence in fupport of it, the underfigned cannot but mingle fome degree of furprife with the regrets they feel at feeing it repeated, accompanied with the charge of that "diffimulation," of which all who examine well the conduct of the government of the United States will fo readily pronounce it to be incapable. You alfo criminate the fecrecy which attended this negotiation. To this complaint, when formerly infifted on, it was answered, that so much of it as was material to this republic was immediately communicated to her minifter; and that the had no right to inquire further, or to be diffatisfied that other objects were not difclofed; that it is not the practice of France, nor of any other nation, to communicate to others the particular fubjects of negotiation which may be contemplated; and that no nation could be independent, which admitted itself to be accountable to another for the manner in' which it might judge proper to regulate its own concerns, on points in which that other was not interested, or which was bound to give previous intimation of every article which might be inferted in a treaty, formed on the avowed principle of leaving in full force all pre-existing engagements. This reafoning is anfwered only by terming it a "fophifm," "an infidious fubterfuge." May not any reafoning, on any fubject, be answered in the fame manner? But in fuch an answer impair Without doubt, Citizen Minifter, the government e

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force? Tnited

tates

States, when it informed France that the negotiations of Mr. Jay would not in any refpect weaken its engagements to this republic, would have added, that they might eventually extend to a commercial treaty, if it had been fuppofed that the omiffion to give fuch information could really be confidered as a breach of legitimate obligation, or as an evidence of diminished friendship. The information was most probably not given, because it was unufual, and because it could neither be confidered as proper, as neceffary, or as material. The undersigned trust that the painful and unavailing difcuffions on this fubject, rendered fo unpleasant by the manner in which it has been treated, will never again be renewed.

Paffing to the treaty itself, you fay that the fmall majority by which it was fanctioned in the two Houfes of Congress, and the number of refpectable voices raised against it in the nation, depofe honourably in favour of the opinion which the French government has entertained of it. But you must be fenfible, Citizen Minifter, that the criterion by which you ascertain the merits of the inftrument in queftion, is by no means infallible, nor can it warrant the inference you draw from it. In a republic like that of the United States, where no individual fears to utter what his judgment or his paffions may dictate, where an unrestrained prefs conveys alike to the public eye the labours of virtue and the efforts of particular interefts, no fubject which agitates and inte refts the public mind can unite the public voice, or entirely escape public cenfure. In purfuit of the fame objects a difference of opinion will arife in the pureft minds, from the different manner in which thofe objects are viewed; and there are fituations in which a variety of paffions combine to filence the voice of reason, and to betray the foundeft judgments. In fuch fituations, if the merit of an inftrument is to be decided, not by itself, but by the approbation or difapprobation it may experience, it would furely be a fafer rule to take as a guide the decifion of a majority, however finall that majority may be, than to follow the minority. A treaty too may be oppofed as injurious to the United States, though it fhould not contain a fingle claufe which could prejudice the interefts of France. It ought not to be fuppofed that a treaty would for that reafon be offenfive to this republic.

Had you been pleafed to ftate any objections to this inftrument drawn from the compact itself, the underfigned would have given to thofe objections the most serious and respectful confideration. But it is fuppofed that you adopt, without adding to, the complaints made by your predeceffor and by Mr. Adet, when you obferve, that you will not repeat what they have faid. Thefe complaints have been amply difcuffed in the memorial the undersigned had the honour to tranfmit you, bearing date 17th of January. It is believed to have been demonftrated that the ftipulations com

plained