Consular Problems
Editorial Note

In the summer of 1790, shortly after Washington sent to the Senate the first group of nominees for consular posts and thus in effect inaugurated the American consular service, Louis Guillaume Otto professed to see in the designation of a larger number of consuls for France than for England proof that the entire Cabinet was deeply impressed with the need of maintaining amicable relations with the nation he represented.1 He found it remarkable that all of the executive officers of government, including John Adams, were strongly predisposed toward France. This observation was not quite so wide of the mark as Otto’s earlier view of the inevitability of the disruption of the union into three or four separate kingdoms, but he did have the discernment to single out the Secretary of State as being unusually friendly to France.2 “It appears certain at present,” he wrote, “that [John Adams] will never be President and that he will have a very formidable competitor in Mr. Jefferson, who with more talent and knowledge than he, has infinitely more the principles and manners of a republican. There is only one voice with regard to this estimable citizen who ought to be particularly dear to us by the affection he never ceases to show for France and by a sort of enthusiasm which he communicates to persons in office for everything which concerns us. Knowing the great influence of the gazettes, he continues to discredit those of England and he even employs a writer to translate and have printed the most authentic news of France, especially that which can contribute to make the nation loved.”3

But even as the words were being written there appeared fresh confirmation of a fact long since evident—that neither the institution of consuls nor the enthusiasm of the Secretary of State could unite Americans in affection for France. On the contrary, the inauguration of the consular service, far from being an evidence of unity in the administration, afforded only another illustration of the growing cleavage there and in the nation between those whose preferences lay with England and those who wished to encourage attachments to France. The presence of French and British consuls in the United States provided opportunities enough for augmenting such cleavages. “I am endeavoring to break the Neck of some Enemies to the french Consulate” in Boston, James Lovell wrote mockingly to John Adams. “You must know I admire that Institution, because by the Kings ordonances its Chancery has all the Spirit and Essence of our Jury of Equals.”4 French consuls in America, De Moustier pointed out in 1788, had been defied by local authorities for a decade: in Norfolk a French captain indubitably guilty of barratry had been protected from the consul by a Virginia sheriff, in Philadelphia another consul had been assaulted in the streets, in New York even a French man-of-war had been deemed subject to local regulation—and yet the pledge made in the Treaty of 1778 to regulate consular powers and functions by a separate convention was still unredeemed.5 The Convention of 1788 had been negotiated, ratified, and proclaimed, but the deep-seated antipathies and differences of attitude reflected in the contrasting ways by which Thomas Jefferson and John Jay had sought to redeem the pledge had not been erased.6 The newest evidence of this came in 1790 in the petition of the French consul Létombe to the Massachusetts General Court, presenting an embarrassing problem which that body promptly passed on to the federal government.7

In general, the question was whether and how to give effect to the terms of the Consular Convention with France. But as framed by Létombe it was nothing less than a request for coercive power in enforcing consular decrees. This was only the latest of a long series of similar requests that had so greatly embarrassed the Continental Congress in its relations externally with France and internally with the several states. The fundamental nature of the issues involved is indicated by the fact that the framers of the Constitution gave to the Supreme Court original jurisdiction in all cases affecting consuls.8 But the new grant of powers to the national government did not eliminate grave constitutional difficulties or the underlying national differences and contrasts of attitude toward the institution of consuls that existed between France and the United States. For, while France had had long experience with the forms and practices of a consular establishment and, in its highly centralized state, had evolved a consular system governed by professional principles, the United States, limited by a new kind of federalism, was groping toward the establishment of a consular service that it did not particularly desire. Many shared Senator Maclay’s view that salaries for consuls were unnecessary.9 Jefferson himself believed the institution incompatible with republican principles: its history had begun “in times of barbarism and might well have ended with them.”10 The American mercantile community seemed to regard the consular service largely as an extension of its own network of foreign correspondents and factors, often indeed as a device for recovering losses and for gaining advantages in competition without any corresponding cost of commissions. The demand of merchants that consuls be permitted to engage in trade was irresistible. It would take another quarter of a century before the nation would heed the argument that for a consul to “be useful to his country in arts, sciences, and manufactures, [he] must have no commercial engagements,” that his salary should be commensurate with his situation, and that his “time and labor are not his own but those of his country, to the government of which … he sought to communicate all that is good and useful to know, concerning the laws, customs, manners, arts, commerce, and manufactures of the country of his residence.”11 Under these circumstances, the creation of a salaried and professional consular service was not within the realm of the possible. Even the necessary task of framing regulatory legislation for that service involved serious political difficulties and attempts to enforce the obligation to France under the Convention of 1788 threatened to bring on formidable constitutional problems as well.

It is not surprising, therefore that Washington had proceeded cautiously, avoiding with evident deliberateness any confrontation on the issues raised by Létombe’s appeal. Hancock’s letter enclosing that plea had arrived in mid-summer of 1790 and Jefferson had promptly drafted a response for the President, resting its argument on the plea that too little time remained in the session for the necessary legislation to be adopted. But Washington held the letter for almost a month before dispatching it, a delay that seems explicable only on the ground that he wished to give to the professed reason a higher degree of credibility.12 The issue raised by Létombe, burdened with the old familiar challenges to federal and state relations and with the divisive impact upon the feelings of partisans of England and France that had been felt at every phase of the discussion of consular matters from 1782 onward, was too explosive to be laid before a Congress that had just achieved relative calm after the bitter contests over the assumption and residence questions.13 Even the bill to regulate the functions and powers of American consuls could not be passed.14 Jefferson’s statement that Congress had “not … been able to mature the Act sufficiently” was only a polite concealment of the underlying divisions over the institution of consuls.15 Both aspects of the problem were merely postponed, if not evaded.

But at the opening of the third session the President laid the issue squarely before Congress. There is little reason to doubt that this course was urged upon him by the Secretary of State and that Jefferson, fully aware of the divisive influence of an institution that he did not think necessary for the United States, did so in terms calling for the application of national authority in its full amplitude. His draft of that part of Washington’s annual message to Congress confronted both aspects of the problem by recommending legislation to regulate the functions of American consuls abroad and to give effect to the terms of the Consular Convention.16 The phraseology of his draft was carefully chosen to place both questions in the context of national power and dignity. As originally framed, the draft rested the argument for a consular establishment and the resultant need for regulation merely on the argument that the “interests of our commerce, of our merchants and seamen” required it. But Jefferson made a deliberate and extremely significant alteration by striking out the word “interests” and substituting “patronage” in its place.17 Always precise in his choice of words, he undoubtedly intended in this instance to add some special significance to the immense authority of the President’s recommendation to Congress. For, as originally phrased, the passage implied a relatively restricted view of the power over commerce. As altered, it suggested that there rested upon the national government an obligation to give active countenance, support, and encouragement to trade, thereby investing the regulatory authority granted by the commerce clause of the Constitution with an indefinitely extended meaning. This revealing choice of a single word seems to embody the views of commercial policy that, in the years since the peace, Jefferson had pursued with an unequaled consistency and range of experience at home and abroad. It reflected his recognition of trade as an instrument of policy, his aim to redress the European balance of power in favor of America by diminishing the whale fishery of England while augmenting that of France and the United States, his attempt to arrange a concert of powers to open the Mediterranean to American trade, his endeavor to promote in every way possible the mutual exchange of American and French products, and his unremitting efforts to arrange a system of commercial reciprocity with the nations of Europe so as to induce Great Britain to ameliorate her discriminatory policy if not to negotiate a treaty of commerce. It is not surprising that this significant change of a single word came as Jefferson was considering anew the effects of Sheffield’s arguments on British policy and when he was preparing his reports on the state of the fisheries and of trade in the Mediterranean.18

The second aspect of the consular problem he met on a similar plane of national responsibility. Jefferson was well aware of the long history of American hesitance, evasion, and even opposition to meeting the pledge given to its ally in 1778. In 1782 Congress, yielding to persistent pressure from France, had authorized Franklin to negotiate a consular convention in accord with the plan it had adopted. But within a year an attempt was made to modify if not rescind this action and James Madison had been obliged to denounce it as an “indecent and dishonorable” proposal.19 Yet within a few months John Jay called for a similar action even while Franklin was carrying on the authorized negotiations. When the Convention of 1784 finally arrived, Jay defeated its ratification in an opinion that was narrowly legalistic and strongly contrasted to the attitude he assumed later in upholding the national honor in respect to treaty obligations with England.20 There were many in the nation who shared his doubts and fears, believing that French consuls enjoying extraterritorial rights would form a network of espionage detrimental to American interests. Such fears were most evident in those centers of commerce where affection for Great Britain was strongest—Boston, New York, Philadelphia, Norfolk, and Charleston—where such British consuls as Sir John Temple, Phineas Bond, and John Hamilton not only did not awake corresponding anxiety about alien surveillance but were given access to official information about American policy with considerable freedom.21 It is not surprising, therefore, that Jefferson, in his draft for the President’s message to Congress, should have called for action on a matter so long delayed and not yet effected.

Létombe’s petition was thus the latest reminder of an unredeemed pledge and Jefferson placed the issue in the context of the obligation assumed in the Convention ratified in 1789 but not proclaimed until he took office.22 Here, too, he made a significant change in his draft for Washington’s message to Congress. As originally phrased, the text declared that the Convention of 1788 had “stipulated, in certain cases, the aid of the civil power” to French consuls in the United States. This was ambiguous. Congress could have construed it as authorizing a reliance on state and local authorities, in whose hands the problem had lain so long and resulted in such evasions and animosities. Jefferson therefore struck out “civil power” and substituted the words “national authority.” Some legislative provision by Congress, he declared, was necessary to give “full effect” to this obligation that had become a part of the supreme law of the land.23 The national duty was clear but the old cleavage in attitudes remained. Jefferson’s insistence upon meeting that duty did not pass unnoticed in the mercantile community of Boston whence had arisen both Lovell’s mockery of the French consulate and Létombe’s plea for coercive authority. “Observing in the President’s Speech, that he introduced the Subject of the Consular Convention to the Consideration of Congress,” Samuel Barrett wrote to Henry Knox, “I have now to request of you (in Confidence) to inform me, on whose suggestion the matter came to be introduced; as it will be of Consequence in conducting such memorial, as, under the advice and Patronage of the Trade in this Place I may, if you shall think it eligible, lay before Congress on the subject.”24

The mere asking of the question seemed to point the finger of suspicion at the Secretary of State, whose role as promoter of improved trade relations with France and as negotiator of the Consular Convention was well known. It also reflected the enduring hostility within the mercantile community to the enforcement of the terms of that obligation. As a result, the bill to regulate consular functions again fell victim to such opposition. Jefferson seems to have anticipated this. Even before Washington’s message was delivered to Congress, he advised one consular appointee not to await passage of the bill but to depart for his post “with due dispatch.”25 Having taken a particular interest in the terms of the bill introduced at the previous session, he no doubt followed its course in the third session with equal concern.26 The Senate took up the subject first. Its bill, drawn by Oliver Ellsworth, was described by Maclay as being so chaotic as to make a new draft desirable, but the author “hung like a bat to every particle of it.”27 The Senate nevertheless passed it promptly.

The House did not act for more than a month and then seemed to concur in Maclay’s opinion by offering an amendment to the Senate bill that changed its title and struck out all save the first section. This drastic alteration crystallized the issue in unmistakable terms: it limited the bill to the single object of “carrying into effect the convention between his Most Christian Majesty and the United States.” It provided that federal district judges should assist French consuls in arresting deserters and that federal marshals should give aid in all cases in which the assistance of “the competent executive officers of the country” was pledged by the Convention.28 The Senate refused to concur. The House retaliated by passing its own bill precisely in accord with the terms of its amendment of the Senate bill.29 The ensuing debate in the Senate exhibited “such a degree of heat not usual” in that body that Secretary Otis later deemed it prudent to submit the journal to John Adams for verification.30 The House bill was defeated by a small combination of what newspaper writers occasionally referred to as “mercantile Senators.”31 Once more Jefferson was obliged to excuse the failure on the ground that there had not been sufficient time and once again his words left much unexplained.32 The old divergent attitudes toward the consular obligation to France continued. They were given fresh confirmation by the defiance of local and national authority on the part of consuls acting under the deluded guidance of Genet.33 They lingered on even after a Federalist Congress finally abrogated the Convention by law in 1798.

But if commercial interests felt no enthusiasm for the engagement with France, their attitude was quite otherwise in respect to the consular service of the United States. One desired object that was lost in the deadlock over the Senate bill would have permitted American consuls or vice-consuls, if citizens, to own ships in their own names or in partnership with other citizens residing in the United States—a loss that no doubt accounted for some of the heat engendered in the debate late in the evening of the last day of the session. The section granting this privilege to consuls did not even survive in the consular act as finally adopted in 1792.34 But what the law did not prohibit in this and other respects could be achieved in other ways.

The case of John Telles illustrates one way in which some commercial houses sought to achieve their own private objects by means of the consular establishment. Robert Morris, who had been somewhat diffident in making recommendations for consular appointment, was the chief advocate in support of Telles’ desire to be made consul at Lisbon, though he remained in the background while others presented the case.35 Telles, a naturalized citizen and a highly respected merchant in Philadelphia, had important connections with the court and with leading merchants in his native Portugal. He was well acquainted with its laws, language, and customs. Since the Revolution he had carried on an extensive trade with that country. In all these respects, his credentials should have impressed a Secretary of State eager to consummate the commercial treaty with Portugal that he and John Adams had negotiated in 1786.36 Jefferson did in fact recognize Telles’ personal merit. But nothing could have more clearly delineated the gulf between his concept of public service and that of some of the leaders in the commercial community than the manner in which they candidly urged upon him as the most persuasive reason for making the appointment what he considered to be an even more conclusive ground for not bestowing it—that is, that the office would enable both Telles and themselves to protect their own private interests. Their arguments naturally identified these interests with the public good.

In the spring of 1790 John Telles had been brought from a position of some affluence to the verge of bankruptcy through the instrumentality of one of the favorites of the Portuguese court, Antonio Ferreira. Under a license from the queen to import 80,000 barrels of flour from the United States, Ferreira ordered half of this amount from John Telles & Company. But the flour arrived a few days late and on the basis of a technicality in the contract Ferreira refused to accept the consignment, caused its forced sale and exportation, and induced the London guarantor of the shipment to protest Telles’ bills of exchange amounting to £30,000 sterling. Telles escaped bankruptcy only because of his probity and because other houses, deeply involved, saw a possible means of extrication. He himself explained the situation frankly in making his candidacy known to the Secretary of State.37 John Swanwick, representing the heaviest creditor (Willing, Morris & Swanwick), made the underlying motive of his testimonial in favor of Telles even more explicit. The mercantile interest of Philadelphia and New York, he informed Jefferson with innocent candor, had been “put in danger of loosing at least 100 to 150,000 Dollars.” Further, he believed that the matter was one on which the United States might have remonstrated to Portugal, “and perhaps by doing this strenuously, this whole Sum might yet be saved to the Commercial Interest of our Country.” By going to Portugal as a public character, Telles could prosecute his own case at court, injure no one, and of course benefit the commercial interest of the United States.38

The mere fact that a prospective benefit to private interests was openly advanced as an argument for appoinment to public office is revealing. Such an argument may have been persuasive enough to those in the Cabinet against whose concept of public administration the Secretary of State was contending. But the use of public office for private ends, no matter how often practiced or how favorably clothed as a means of cultivating ligaments of interest for the ultimate public good, was one of the evils of government that the Revolution had brought to an end as a valid philosophy of government if not as a fact. For Jefferson the controlling principle was clear. But the illumination cast by the application of John Telles on the fundamental contest of principles within the Cabinet extends also to the relations between the Secretary of State and the President. For, in giving Washington information about the various applicants for consular vacancies, Jefferson first prepared a report in finished form and then rejected it in favor of another. It is obvious that the case of John Telles caused him to do so, for while the two states of the report vary in a number of minor points, their most conspicuous difference pertains to his candidacy. In the first form of his report Jefferson referred Washington to the testimonial letters, made the brief comment that Telles was well recommended by Morris and Swanwick, and added that the candidate’s affairs were deranged if not bankrupt.39 The only other candidate for the Lisbon vacancy was scarcely to be considered, despite his important Virginia connections, for he was not a native American, he was actually bankrupt, and he was also a drunkard.40 But Jefferson evidently feared that Telles, having the powerful backing of Robert Morris, might be chosen by the President. He therefore drafted the second report and abandoned his noncommittal position. It would rest with the President, he said, to decide whether to appoint Telles or wait for another candidate. But, withholding the principle, he then advanced a compelling practical argument against the appointment. The “low reputation of our merchants … in foreign countries,” he declared, “will be confirmed rather than relieved by sending abroad as Consuls those who are under difficulties.”41 Washington, though he had meticulously reviewed Jefferson’s correspondence with John Jay when he became President, may not have remembered his even more emphatic warning in 1788 against bankrupts “or young, ephemeral adventurers in commerce without substance or conduct, or other descriptions which might disgrace the consular office, without protecting our commerce.”42 Whether or not he decided on the basis of the principle or the practical argument, or both, the President chose to wait for another candidate.

But this only stirred Telles’ influential backers to more zealous effort to obtain the nomination before Congress adjourned. Two days before the session ended, a committee of merchants appointed by the creditors of John Telles & Company appealed to the Secretary of State. The committee was composed of several of the leading commercial houses in Philadelphia and New York—Willing, Morris & Swanwick, Mordecai Lewis & Company, Robert Smith, Edward Tilghman, and John Wilcocks of Philadelphia and Lynch & Stoughton of New York —and all were involved in the loss of the flour shipment. They repeated the account of Telles’ misfortunate as detailed earlier by John Swanwick and then declared:43

In this situation Mr. Telles is desirous of passing over to Lisbon, where he has many and powerful Friends at Court, and where his character as an honest and Worthy Man stands as high, as it does on this side of the Water; he solicits the very honorable appointment of Consul General of the United States at Lisbon, because he conceives that from his having been these 30 Years a Citizen of the United States and from his knowledge of it’s Language Commerce and products he may be of use in that Capacity, while he desires from it the additional weight arising from so respectable an office in the suing from the Court that Redress from it’s Contractors so essential not only to his own, but to the general Commercial Interests of the Cities of Philadelphia and New York and which may possibly be obtained by this shorter mode of Application while the Suits at London are still depending, the favourable Issue whereof would not only pay fully all Mr. Telles’s Creditors, but leave him possessed as he was before these painfull Circumstances took place, of an Ample Fortune.

In recommending Telles for the post, the committee of merchants assured the Secretary of State that they not only would interpose no obstacle to Telles’ departure from the country but, on the contrary, would “offer … every facility to his going.” They believed all of the creditors represented by the committee would take the same position. They concluded in a final effort to identify their particular interest with the public good: “We shall esteem ourselves highly flattered if your General attention to the Interests of the Commerce of America shall point out the Propriety of your assenting to our Sentiments and views on this Occasion.” Jefferson apparently did not reply.

Later in the year Telles again asked Robert Morris, as “one of the greatest” holders of his protested bills, to intercede in his behalf with the Secretary of State. He also sought the influence of the Attorney General. Randolph, urged by “many virtuous men” in Philadelphia, talked with Jefferson about the case. Afterward he feared that the Secretary of State had not understood him and he sought to clarify the matter by pointing out that Telles’ suit was in England, that he could not sue the court or any individual in Lisbon, and in consequence he could not “be in danger of irritating any man in or out of power in Portugal.”44 But it was Randolph who had misunderstood. The committee of merchants had made it clear in their appeal to Jefferson that the candidate wished the office in order to seek redress from the Portuguese court and thus achieve a more immediate relief while the London suits were still pending.45 Randolph informed Telles that he had “had a conversation with Mr. Jefferson respecting this business, but could not do anything in it, as Mr. Jefferson, or our President, thought it improper to appoint a person that was in debt.”

Telles was stung by the implication. He appealed again to Robert Morris, conceding that some men might be capable of doing anything dishonorable but that there were others who “would rather forfeit their Lives than do the least dishonourable Action.” He denied that it had been his intent to oblige Ferreira to pay “or to apply to Government to force them to it.” Having disavowed this private object, he then innocently confessed others.46

But Sir to be plain and sincere, the reason I have to wish for that Post is this. I think I can do business here more advantageously and with greater safety, by living there than continuing here. In the 2d place I am old and have two children who are heirs to a very good Estate in the Island of Madeira, and if I and they continue here, by the Laws of Portugal they cannot inherit it. Therefore, as a Father I can do no less than do all in my power to leave them settled and Independant. But at the same time I rather will forfeit every thing than live in Portugal as a subject (vassal). I have lived too long here, and am [too] much of an American to enslave myself, tho’ at the same time No One respects Superiors and Authority more than myself.—If you think Sir that these reasons will have any influence with Mr. Jefferson, I would be glad you would communicate them to him, and Let me know the result, as I am about to depart for England in a few days.

Presumably Robert Morris did think that such reasons would influence Thomas Jefferson, a compassionate and understanding father. But the mere fact that he forwarded the letter betrays his inability to grasp the principles that animated the Secretary of State in the conduct of public office. The candidacy of John Telles for the consulate of Lisbon ended with this revealing transmittal of a letter whose disclosures were greater than its author or its conveyor realized, among these being a protestation of American attitudes combined with an equally fervid avowal of what was coming to be a hallmark of Federalist expectations from the citizenry—a due acknowledgment of respect for “Superiors and Authority.”

Thus, long before the Revolution in France had inflamed American politics, there appeared in the gropings toward an effective consular service, as in most other matters, indubitable evidences of divergent attitudes between sections, between economic interests, between pro-English and pro-French protagonists, and between two fundamentally opposed principles of administration whose respective advocates sought to guide the ship of state in this critical decade as they had done from the beginning of the struggle for independence. On this occasion the President acted in full accord with the recommendations of the Secretary of State. The decision to meet the obligation to France, the search for able and disinterested candidates for consular appointment, and the resistance to powerful pressures exerted to use public office for private ends were important. But these objects were by no means capable of dividing national opinion with the bitterness that ensued when the opposing principles of administration collided on far more momentous issues and when the President and the Secretary of State found themselves on different sides of the gulf.