The Franco-American Consular Convention: Editorial Note
The Franco-American Consular Convention
Article 31 (29) of the Franco-American Treaty of Commerce (1778) gave its signatories the right to have consular personnel in each other’s ports whose functions would be regulated by a consular convention. Vergennes hoped that independence would open American markets to French goods at Britain’s expense, and French diplomats pressured Congress to acknowledge America’s debt to France by ratifying a convention that conferred significantly expanded powers on its consuls.1
Shortly after the treaty of commerce was signed, a royal edict of June 1778 gave French consuls judicial and police functions similar to those exercised by foreign ministers but not exercised by consuls of other European powers. In 1779, when Jay was president of Congress, Conrad Alexandre Gérard proposed a consular arrangement to Congress that incorporated the new French definition of consular functions. Congress appointed a committee to consider it, but the matter went no further. Jay was elected Minister to Spain on 27 September of that year and departed for Europe a month later.2
When, in the fall of 1780, Vergennes asked why the convention had not been approved, Franklin suggested that Congress might not be sufficiently acquainted with consuls’ functions and powers to send him proper instructions and added that it was not clear whether Congress or the states had power over consuls. The quickest way to resolve these issues, he recommended, would be to have La Luzerne, the newly appointed French minister to the United States, take them up with Congress. The Articles of Confederation vested Congress with some power over diplomatic matters, but did not empower it to enforce its decisions. Individual states had, thus, considerable latitude in their relations with foreign nations.3
On 26 July 1781, La Luzerne sent Congress a new proposal for a consular convention prepared jointly by Vergennes and French naval minister Antoine Raymond Jean Gualbert Gabriel de Sartine. Congress referred it to a committee chaired by Edmund Randolph, which reported to Congress on 9 January 1782. Although the committee acknowledged that the convention preserved “perfect reciprocity” in every article, it noted that, given the actual patterns of trade and migration, the proposed convention favored France more than the United States, granted consuls an excessive amount of extraterritorial jurisdiction, and impeded Frenchmen from seeking American citizenship. The committee considered some parts of the plan “inadmissible,” ambiguous, or repugnant “to the spirit and genius of America,” and the authority granted to consular agents insufficiently circumscribed and likely to lead to improper interference with American usages.4
On 25 January, after considerable debate, Congress revised the proposal La Luzerne had presented, authorized Franklin to conclude a consular convention based on its version, and allowed him to “use his discretion as to the words or arrangement of the convention.” Secretary for Foreign Affairs Livingston forwarded the modified “scheme” to Franklin and informed him that he could either sign the convention in France, or, if Congress’s plan had been altered, send it to the United States to be executed.5
Although Gérard began appointing consuls in 1778, Congress waited until December 1780 before appointing William Palfrey consul to France. After Palfrey was lost at sea Congress named Thomas Barclay to replace him.6 Franklin postponed discussion of the consular scheme with Vergennes until Barclay had an opportunity to review it. Barclay complained that France had refused to allow him to appoint vice consuls because it reserved that power exclusively to consul generals, and he objected to the article that forbade the consuls of either power from engaging in commerce for their own or another’s benefit—French consuls were salaried, but American consuls depended on private trade to support themselves.7
Congress considered the convention again early in January 1783. Madison reported a diversity of opinion about the provision that prohibited consuls from commerce, and about the convention itself: some thought it should be suspended during the war, and others that “the whole ought to be new modeled, the Consuls having too many privileges in some respects, & too little power in others.” Only eight states were then represented, so the matter was postponed.8 No progress was made for well over a year as the energies of all parties were absorbed by peace negotiations.9
After they were concluded, Vergennes and Castries reviewed Congress’s draft, and Vergennes presented Franklin with a revised version of it in September 1783. On 31 May 1784, Franklin told Vergennes that “Some inconveniencies” had arisen “from a want of certainty in the powers of our Consuls,” that he and Rayneval had agreed on them some time ago, and that if the changes were acceptable, he was ready to sign the convention. It was not until 29 July, however, that the signing took place.10 Trade surged after the peace, and with it came a host of problems. La Luzerne went to Annapolis in January 1784 to discuss with Congress “the jurisdictions and privileges” French consuls and vice consuls were to enjoy, among them the right to send expatriate Frenchmen to France if the king found it expedient.11
Jay returned to the United States in the summer of 1784 to find that Congress had chosen him to replace Robert R. Livingston. He did not immediately accept, and was elected as a delegate to Congress from New York. Unaware that Franklin had signed the convention on 29 July, Jay moved, Elbridge Gerry seconded, and Congress approved a resolution on 14 December to inform him to do nothing to advance the consular convention if it had not already been concluded.12 A month later, Gerry replaced Jay, now secretary for foreign affairs, as chair of the committee charged to revise the convention proposal. Almost immediately Jay was confronted with the Longschamps affair, which raised questions of extraterritorial and state versus national jurisdiction in cases where foreign diplomats were involved.13
It was not until 6 June 1785 that Congress received Franklin’s letter of 8 February enclosing the convention. Jay returned a translation of the document to Congress on 23 June and recommended that the convention’s term should be limited.14 Congress returned it to Jay with instructions to report on it.15 Jay’s report of 4 July immediately and dramatically questioned whether Congress should ratify the convention since, he said, it departed significantly from the “scheme” of 1782 and Franklin’s instructions had bound him to send it back to Congress if that were the case.16 Congress ordered 40 copies of the report printed under an injunction of secrecy,17 scheduled it for reconsideration on 13 July, but did not take it up at that time.18
At this same time Jay learned that Barbé-Marbois had been reassigned and that Louis Guillaume Otto was named chargé d’affaires. Otto immediately reported to Vergennes that Gerry had spoken vehemently and falsely at a special session of the Massachusetts Senate about the disadvantages that would result from “a number of French Consuls spread through the continent and enjoying all the same privileges and prerogatives as the Ambassadors.” Excited by Gerry’s “clamors,” he said, the Senate then ordered its delegates to oppose ratification of the convention and to “prevent the extension of the powers and privileges of the Consuls beyond their customary limits.”19
Otto viewed approval of the convention as part of a debt of gratitude Congress owed to France. He made its ratification a priority and charged that Congress was attempting to get out of “embarrassing difficulties” by inaction. La Luzerne, he continued, had not hid the fact that the convention favored France more than the United States to counterbalance British trade advantages over the French. Like La Luzerne, he criticized Congress for refusing to ratify the French proposal once its need for French assistance had passed. He faulted Jay for trying to prove himself “the declared Enemy of all foreign influence,” and blamed Adams for making “erroneous representations” about the French to New Englanders, who, he anticipated, would be an obstacle to approving the convention. Although he and Barbé-Marbois frequently benefited from delegates’ breaches of secrecy injunctions, he also complained about the “discretion and reserve” members of Congress observed about meeting with foreign ministers. He recommended that Jefferson, whom he regarded as “very attached to the alliance,” should be enlisted to destroy these false impressions and to convince Congress to approve the draft La Luzerne had submitted to Congress in 1781.20
On 18 November 1785, Otto visited Franklin, whom he described as “much astonished” that the convention had not been ratified, since he believed it “conformed entirely” to the 1782 draft with only a few unimportant changes. Franklin, he said, considered Jay’s objections superficial and was persuaded that after more careful consideration Congress would ratify it. Jay’s objections, Otto asserted, were “dictated more by animosity than by justice.”21
Vergennes declared the delay in taking up the convention “irregular in itself,” and its duration “disobliging to His Majesty.” He sent Otto a note of complaint to be reported to Congress. Otto forwarded it to Jay on 18 April 1786 and Jay reported on it ten days later.22 After a wait of two months, Otto reminded Jay that he had promised to ask Congress to take up the convention as soon as nine states were represented and that Congress now had a quorum and had ratified a treaty with Prussia that was more recent than the consular convention with France. Jay promised Otto that he would call it to Congress’s attention as quickly as possible.23
On 10 July 1786, Congress finally referred Jay’s original report on the convention back to him. On 18 August, when it was fully occupied with the debate over his negotiations with Gardoqui, Jay recommended that Congress should send Jefferson a copy of his report of 4 July 1785, a certified copy of its act of 25 January 1782, and the accompanying “scheme”, which he described as “far from being unexceptionable”, but which Congress had already approved, to enable him to point out where the convention deviated from the “scheme” and Congress’s instructions.24
Not until 12 September 1786 did Congress appoint a committee to consider Jay’s report on the consular convention. On 3 October, it directed Jefferson to conclude and sign a consular convention with France “conformably to the scheme abovementioned in every respect” except where its act of 25 January 1782 permitted deviations, as long as the duration of convention did not exceed ten years. On that very day, Jay wrote a cover letter for the documents Congress directed to be sent to Jefferson. On 9 October, Otto asked Jay for a copy of Congress’s resolution. Jay refused to give it to him and informed him that Congress would “communicate with the French court via their minister in Paris.” To prevent “loss” of the communication, however, Otto arranged to have Jay’s letter delivered directly to Vergennes under cover of his own letter.25
After these letters were put on board the packet, Jay advised Congress that it was “accidentally and seasonably discovered, that the Entry of the Scheme of the Convention in the Books of this Office was erroneous, with the result that “correspondent Errors naturally took place” in his report of 4 July 1785.26 Congress approved the solution he recommended: concluding a convention similar “to the Scheme as it now appears to be,” but limiting its Duration. Jay informed Jefferson of the matter in a letter of 27 October that Jefferson received, along with the earlier dispatch, on 20 December.
Jefferson completely supported the position Congress had adopted on Jay’s recommendation because he believed that the states would be “very unwilling to conform their laws either to the Convention, or to the Scheme.” He was not optimistic that he would succeed in revising the convention, but thought he might be able to “reduce” the number of objectionable provisions. He then suggested that Congress send him new powers that did not oblige him to follow the scheme of 1782, from which he thought the French would abate not “a tittle.” His best hope of removing the difficulties, he thought, was to begin afresh, without reference to the previous formulation.27
Jay received Jefferson’s letter on 9 April 1787, and sent it to Congress, then thinly attended. Congress ordered him to report on it. In his report of 10 May (below), Jay recommended that Congress send Jefferson a commission in general terms.28 Congress approved his report on 27 July, on which day Jay wrote two letters informing Jefferson that Congress directed him to give his immediate attention to the convention as soon as he returned to Paris. He added that Congress expected the convention to delineate the duties, powers, and privileges of consuls and lesser consular officials carefully and to circumscribe them as much as possible. Jay then conveyed an “express and special Commission” that authorized Jefferson “to conclude, sign, and seal” a convention that Congress promised to ratify if it was not more “exceptionable than the one already in part concluded” and if its duration did not exceed twelve years. Jay’s letters and the enclosed commission went to Jefferson under cover of a letter of 24 October.29
Jefferson received the dispatches on 19 December 1787. He did not start negotiations until April 1788 and did not communicate the changes Congress wanted to Montmorin until 20 June. The need to involve both the French marine and foreign affairs departments took time, but negotiations were finally concluded in late October. Jefferson signed the convention on 14 November 1788 and enclosed the original in a letter of that date for Congress’s ratification. He detailed the concessions he had won, admitted that he had hoped to be able to do more, but acknowledged that “more could not be done with good humor.” Jay acknowledged the letter and the accompanying copies of the Conventions of 1784 and 1788, in parallel columns, on 9 March 1789. There had been no Congress for a long time, he told Jefferson, but he promised to give the documents to Washington as soon as he took office. The “Alterations” in the convention, Jay commented, “give Satisfaction,” and Jefferson’s conduct had been “greatly and deservedly commended.”30 As amiable and conciliatory as his diplomacy was, Jefferson recognized what Franklin and some Francophile delegates did not, that the concessions the French demanded had to be refused and that Jay had correctly advised Congress to withhold ratification until the convention was “compatible with our laws.”
Washington submitted the convention Jefferson had negotiated and the 1784 version it had replaced to the Senate on 11 June 1789. He charged Jay to provide it with accurate translations and all papers relevant to the negotiations. Jay complied. When asked by the Senate whether the faith of the United States required it to ratify the convention, Jay reported that the 1788 version was free from several objections to which the 1784 version was liable and that Congress was bound to ratify it. Jay’s work was finally complete when, on 13 October 1789, he sent the ratification to William Short, chargé d’affaires in France in Jefferson’s absence. The convention did not end problems about extraterritoriality. For example, in 1793, Jefferson, now secretary of state, was confronted with Citizen Genet’s insistence that French consular courts had exclusive jurisdiction over prizes brought to American ports.31
1. See Robert R. Crout, “The Diplomacy of Trade: The Influence of Commercial Considerations on French Involvement in the Angloamerican War of Independence, 1775–78” (PhD. diss., University of Georgia, 1977), 229–30, 233, 241n., 242.; and Emory R. Johnson, “The Early History of the United States Consular Service, 1776–1792,” Political Science Quarterly 13, No. 1 (March 1898): 34.
2. Although consuls once exercised exclusive civil and criminal jurisdiction over merchants of their nationality, from the sixteenth century onward their functions became more exclusively commercial. In the 18th century, France began to move in the opposite direction: its consuls were salaried and were forbidden to engage in commerce; the edict of June 1778 deprived French nationals abroad of the right to recur to local justice and obliged French consuls to report on all matters of political, military and economic importance within their jurisdiction. See Anne Mézin, Les consuls de France au siècle des lumières (1715–1920) (Paris, 1998), 3–5, 9–11, 24–43; and “The Legal Position and Functions of Consuls,” American Journal of International Law 26, Supplement: “Research in International Law” (1932): 202–6; and 1318–19. For Britain’s attempt to have its consuls exercise ministerial functions, and for JJ’s resistance to this, see the editorial note “Consuls de Gratia: The Role of British Consuls,” below.
3. See 1: 709–18; 13: 391; 14: 696, 760; 3: 228–29; BF to Vergennes, 7 Sept. 1780, 33: 256. The first article of the 1782 scheme Congress sent to BF required French consuls to present their commissions to Congress. The French proposal of 1784 stipulated that the convention was between France and the “Thirteen United States,” and directed French consuls to present their commissions to the respective states rather than to Congress.
4. For Edward Bancroft’s report on American objections to the French proposal, and for Dutch opposition to enlarged consular powers, see 2: 383, 788. Britain objected to allowing French consuls to exercise judicial functions during negotiations for the Anglo-French commercial treaty of 1786. Wee Marie Donaghay, “The Maréchal de Castries and the Anglo-French Commercial Negotiations of 1786–1787,” Historical Journal 22, no. 2 (June 1979): 295–312.
5. La Luzerne sent a copy of Congress’s draft to Castries, who succeeded Sartine as Minister of Marine. See 21: 792–810, 845; 22: 1–26; 3: 7–24; and 3: 201n.
6. See 11: 948; 12: 948, 1098–99; 14: 899–900; 18: 1134; 20: 698; 21: 1036; Mézin, Consuls de France, 398, 405–6, 468, 496, 567, 577; 15: 1108; Abraham P. Nasatir and Gary Elwin Monell, French Consuls in the United States: A Calendar of their Correspondence in the Archives Nationales (Washington, D.C., 1967), 561–63, 567–68; and 3: 263. There was a new round of appointments in 1784. See 2: 299.
7. See BF to RRL, 25 June, and Barclay to BF, 3 Sept. 1782, 36: 484, 535; 38: 63; 1: 826; 2: 55–56, 64; 6: 5, 15–17. For his views, see JJ’s Report on Consular Salaries and Fees, 31 Oct. 1785, below.
8. JM considered suspending the convention “indecent and dishonorable.” See 6: 15–17.
9. La Luzerne suspected that Congress would refuse to ratify the convention because his influence over certain delegates had weakened and thought it had agreed to the plan only to insure continued French support in the war effort. He also believed that the states would resist French attempts to curtail immigration. See 2: 293.
10. See BF to RRL, 15 Apr. 1783, 39: 470; to the President of Congress, 25 Dec. 1783, 6: 740–43; and to Vergennes, 31 May 1784, ALS, NNGL; C, FrPMAE: CP-EU.
11. See 2: 293, 371–72.
12. Congress’s resolution of 14 Dec. was carried to BF by Lafayette who left for France immediately. See 27: 685–86; 28: 5; and 22: 70. BF claimed in his letter to the President of Congress of 8 Feb. 1785 that a copy of the convention had been sent to Congress “so long ago that we expected the ratification,” but no covering letter from him has been found. On 15 Mar. Lafayette suggested to BF that he send a duplicate of it by the next packet. ALS, PPamP.
13. See the editorial note “The Longchamps Affair,” above.
14. JJ sent the convention to Pintard to be translated on 8 June. Pintard returned a translation to JJ five days later. , 8 and 13 June (EJ: 3752). For translation problems in the 1788 convention text, see 14: 90–93.
15. JJ recommended that treaties should be executed in the languages of both parties, and that commercial treaties have a limited term. See his Report to Congress, 17 May, above; and JJ to the President of Congress, 23 June 1785, LS, DNA: PCC, item 80, 1: 225–27 (EJ: 108); Dft, NNC (EJ: 5739); LbkCs, , 1: 311 (EJ: 1682); NNC, JJ Lbk. 3; 28: 480 and n. Enclosure: Consular Convention with France, 29 July 1784, in French, DS, DNA: PCC, item 47, 219–35; Tr, of convention and translation by John Pintard, DNA: PCC, item 100, 2: 231–55; 31: 725–35. The convention was forwarded in BF to R. H. Lee, 8 Feb. 1785, Tr, DNA: PCC, item 100, 2: 230, and sent to JJ on 6 June for translation. See 28: 480 and n.; the OFA journal for 6, 8, 13 June (EJ: 3752). See JJ’s report on the convention, 4 July 1785, below.
16. For favorable assessments of JJ’s report by Gerry and Monroe, see 8: 292–93; 28: 432; 22: 509, 563; and 8: 342. Bemis described it as his most important diplomatic service because it ended the threat of extraterritoriality. See Bemis, “John Jay” in The American Secretaries of State and their Diplomacy, ed. Samuel Flagg Bemis (10 vols.; New York, 1927–29), 1: 253–59. For criticism of the report as consisting principally of elaborately argued but insignificant legal technicalities, and the claim that BF had not exceeded the authorization granted him by Congress, see 14: 73–76. TJ, however, also considered the convention defective.
17. Barbé-Marbois had obtained a copy of JJ’s report by 8 Aug. 1785. Otto was also well informed about JJ’s sentiments about the convention. See 14: 76 n.2.; and 2: 788.
18. On 13 July and 2 Nov. 1785, JJ reported to TJ that Congress was still considering the convention and that he had no orders on the subject. See JJ to TJ, 13 July and 2 Nov. 1785, LbkCs, , 90–91, 156–57 (EJ: 2415, 2444); and 8: 292–93; 9: 9. Several weeks after his report, JJ had called Congress’s attention to Article 12 of the French decree of 30 Aug. 1784, which restricted French traders to only those foreign ports where French consular agents resided and required them to present their papers to them on arrival and on their return to French territory. See JJ to the President of Congress, 22 July 1785, LS, DNA: PCC, item 80, 1: 233 (EJ: 111), with enclosures; LbkC, , 1: 381 (EJ: 1716).
19. Otto attributed opposition to the convention in Massachusetts to Governor Bowdoin, whose son-in-law was the British consul, whose powers Congress had limited. See 3: 246–47, and the editorial note “Consuls de Gratia: The Role of British Consuls,” below.
20. See 2: 836–40; and 3: 52–54, 783.
21. See ibid., 3: 54–57. For Montmorin’s charges that JJ had little affection for France and was jealous of BF, see ibid., 3: 802.
22. See ibid., 3: 957; and Otto to JJ, 18 Apr. 1786, in French with translation, , 2: 239 (EJ: 2066). JJ received Otto’s note on 19 Apr. and sent a translation of it to the President of Congress on 21 Apr. In his report of 28 Apr. 1786 [DNA: PCC, item 81, 2: 83–85 (EJ: 3894)], JJ noted that Congress had deferred consideration of his report of 4 July 1785, because there were not enough states represented. JJ sent a copy of his April report to TJ under cover of a letter of 5 May 1786, Dft, NNC (EJ: 5806); LbkC, , 182–83 (EJ: 2458).
23. See Otto to JJ, 27 June and 6 July, and JJ to Otto, 3 July 1786, , 2: 173–76, 399–401, 387–88 (EJ: 1985, 1996, 2070; and the for April and May 1786 (EJ: 3762, 3763). On the treaty with Prussia, see JJ to JA, 4 May 1786 (second letter), below.
24. See 30: 395; and JJ’s report of 18 Aug. 1786, below. Moustier later reported that Otto had learned “by private ways” that Congress had to compel JJ to present a more favorable report on the convention than his report of 4 July 1785, and to instruct TJ to conclude the convention. See 3: 783–85.
25. See 31: 712–35; JJ to TJ, 3 Oct., C, , 207–9 (EJ: 2472); 10: 430–31; Otto to JJ, 9 Oct., and JJ to Otto, 12 Oct., , 2: 469–70, 471 (EJ: 2048, 2050), all 1786; and 3: 784.
26. The most significant discrepancy involved the extent of a consul’s power to arrest, sequester, or detain captains, masters, seamen, passengers, or vessels carrying their respective flags and to send them back to their home country. JJ further noted that the copy he had worked from contained 20 other variations, none of which had materially affected the substance of his report. See 31: 647–49; JJ to the President of Congress, 9 Oct., DNA: PCC, item 80, 3: 105–9 (EJ: 256), and 31: 712–35; JJ to TJ, 27 Oct. 1786, C, , 211–15 (EJ: 2475); 10: 488–90; and 23: 567–68.
27. TJ suggested that the delay required for him to receive new instructions could be covered by his plan to travel to southern France for reasons of health. At this time, Vergennes and Calonne were both ill. Vergennes died on 14 February. See TJ to JJ, 9 Jan. 1787, DLC: Jefferson (EJ: 10140); ll: 29–33.
28. See JJ’s report of 10 May 1787, below; JJ to the President of Congress, 18 Apr. 1787, DNA: PCC, item 80, 3: 221 (EJ: 282); and the , April 1787 (EJ: 3774).
29. See JJ to TJ, 27 July [1st, 2nd] (two letters), and 24 Oct. 1787, LbCs, , 269–71, 285–88 (EJ: 2508, 2509, 2517); 11: 627–29, and 12: 268–69; the for July and October 1787 (EJ: 3777, 3780). The letters of 24 Oct. and TJ’s commission were sent in the care of John Paul Jones.
30. See TJ to JJ, 14 Nov. 1788, 14: 56–61, and 87–88; JJ to TJ, 9 Mar. 1789, Dft, NNC (EJ: 6661); LbkC, , 318–19 (EJ: 2538); and 14: 628–29; and the for February and March (EJ 3796, 3797) JJ forwarded a copy of the convention to Congress on 11 June under cover of a letter from GW. , 12 June 1789 (EJ: 3800). TJ described the 1784 convention as containing articles “so entirely inconsistent” with the “general spirit of our citizens” that Congress refused to ratify it, and reported that the French “retired unwillingly” from provisions that authorized the exercise of “powers very offensive in a free state.” See Paul Leicester Ford, ed., Autobiography of Thomas Jefferson: 1743–1780 (Philadelphia, 2005), 127.
For allegations that TJ had deliberately delayed opening his negotiations for the new convention on JJ’s instructions, see Moustier to Montmorin, 28 May 1788, 3: 783–84.
31. See JJ’s report of 25 July 1789, LbkC, DNA: PCC, item 124, 3: 205–9 (EJ: 4633); the for June and July 1789 (EJ: 3800, 3801). On the Citizen Genet affair, see 343–49, 353. The consular convention of 1788 was abrogated on 8 July 1798 and restored on 3 Oct. 1800. Ibid., 686–87, 872n109; and 14: 92.