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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875

Journals of the Continental Congress --WEDNESDAY, JULY 6, 1785.

Journals of the Continental Congress, 1774-1789 PREVIOUS SECTION .. NEXT SECTION .. NAVIGATOR

Journals of the Continental Congress, 1774-1789
WEDNESDAY, JULY 6, 1785.

Link to date-related documents.

Congress assembled. Present as yesterday.

Congress took into consideration the report of a grand committee, consisting of Mr. [David] Howell, Mr. [Abiel] Foster, Mr. [Rufus] King, Mr. [Joseph Platt] Cook, Mr. [Melancton] Smith, Mr. [John] Beatty, Mr. [Charles] Gardner, Mr. [John] Vining, Mr. [William] Hindman, Mr. [James] Monroe, Mr. [Hugh] Williamson, Mr. [Charles] Pinckney and Mr. [William] Houstoun, on the subject of a money unit.

And on the question, That the money unit of the United States of America be one dollar, the yeas and nays being

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required by Mr. [David] Howell; Every member answering ay, it was

Resolved, That the money unit of the United States of America be one dollar.

Resolved, That the smallest coin be of copper, of which 200 shall pass for one dollar.

Resolved, That the several pieces shall increase in a decimal ratio.1

[Note 1: 1 See ante, May 13.]

That the Board of Treasury report to Congress the allowances made, or promised to the receiver of Continental taxes by the late Superintendant of Finance. And a statement of the account of such as may have been settled with at the Treasury.2

[Note 2: 2 This motion, in the writing of David Howell, is in the Papers of the Continental Congress, No. 26, folio 563. The indorsement, by Thomson, gives it this date and says: "Referred to the Board of treasury to take order." and by Roger Alden "returned 26th July 1785 to report the allowance made to Rec.rs of Continental taxes." Committee Book No. 190 notes that the report was rendered August 29.]

Office for Foreign Affairs, July 4th, 1785.

The Secretary of the United States for the Department of foreign Affairs to whom was referred a Copy of the Convention respecting french and american Consuls.

Reports, That the Convention, of which the above mentioned is a Copy, having been formally executed by french and american Plenipotentiaries, nothing is wanting to perfect that Compact, but the Ratifications Specified in the 16th. Article.

The only Question therefore that remains to be decided is, whether Congress ought to ratify this Convention.

To decide this Question properly, it appears necessary--

It is to be observed that on the 25th. January, 1782, Congress

"Resolved, That the Minister Plenipotentiary of the United States at the Court of Versailles, be and is hereby authorized and instructed, to

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enter into a Convention with His Most Christian Majesty, on the part of the United States for the Establishment of Consular Powers and Privileges ACCORDING to the Scheme hereunto subjoined; unless it Shall be deemed by his Most Christian Majesty more expedient that the Same Should be executed in the United States.

That the said Minister Plenipotentiary use his Discretion as to the Words or Arrangement of the Convention; Confining himself to the Matter thereof in ALL RESPECTS, except as to so much of the Sixth Article, as relates to the Erection of a Chapel, taking care that reciprocal Provision be made for the Recognition of the Consuls and Vice Consuls of the United States, and for the Admission of Persons attached to the Consulate to the Priviledges stipulated in the 5th. Article, in a manner most conducive to Expedition and free'st from Difficulty."

This is the only Instruction as well as the only Authority given on the Subject, to the American Minister, that your Secretary finds.

The Stile of the Confederacy being "the United States of America," the Scheme and the Convention axe both erroneous so far as they both add the word North.

But the Title of the Convention departs essentially from that of the Scheme, in as much as it limits the Compact to the thirteen United States of America, and consequently excludes from it all such other States as might before the Ratification of it or in future be created by, or become Parties to, the Confederacy;

Whereas the Words in the Title of the Scheme United States of North America would if used, have comprehended them all.

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The Scheme expressly directs that their Commissions shall in the first Instance be presented to Congress, but the Convention by omitting this, seems to intend something else--it indeed directs that they shall present their Commission on their Arrival in the respective States according to the Form "qui s'y trouvera etablis" which shall be there found established; but whether established by the State or by Congress is undecided.

The 2d Articles in both appear to be alike in Substance.

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This article is wholly omitted in the Convention, and that omission is an Essential, though perhaps not in itself a very important Deviation from the Scheme.

The 4th. Article in the Scheme and the 3d. in the Convention respecting Agents, differ essentially only in this, that the former has these Words "nor exact any Fees or Rewards under any pretence whatever" whereas the latter seems to limit that Prohibition, by these Words "and without Power to exact from the said Merchants any Duty or Emolument whatever under any Pretext whatsoever."

The 5th. Article in the Scheme and the 4th. in the Convention have no material difference.

This Article is omitted in the Convention. By the Instruction given to the Minister, that matter seems to have been left to his

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Discretion. The Omission however appears important to your Secretary from this Consideration, that although the Catholic Religion may be freely and publicly professed and exercised in the United States, yet the protestant religion has no legal Toleration in France. This Omission therefore is a departure from the Line of Reciprocity.

The 7th. Article in the Scheme and the 5th. in the Convention are much alike.

The 8th. Article in the Scheme and the 6th. in the Convention are similar.

The 9th. Article in the Scheme and the 7th. in the Convention also correspond.

The Convention here appears to differ materially from the Scheme in three respects:

The 11th. Article in the Scheme and the 9th. in the Convention are not materially different.

These Articles differ in these Respects. The Scheme does not authorise the Consuls to send Vessels back, but the Convention does. The Scheme does not authorise them to arrest Captains and Masters of Vessels, but the Convention does. The Scheme does not authorise them to arrest Passengers, but the Convention does.

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These two Articles differ in this, that the one in the Scheme gives Cognizance of certain Offenses to Consuls and Vice Consuls, but the one in the Convention give that Cognizance to the Judges of the Country.

The 14th. Article in the Scheme and the 12th. in the Convention differ only in this, that the former refers certain Offences, Disputes and Differences to the Jurisdiction of the Consuls and Vice Consuls, Whereas, the latter is Silent as to Offences, and omits making any mention of them.

The 15th. Article in the Scheme, and the 13th. in the Convention are alike.

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These two Articles vary from each other essentially--first, in that the Certificate of the Consul is by the Convention made the sole and conclusive Proof of Nationality, whereas the Scheme requires also the Affidavit of the Party, and make that joint Evidence conclusive only in Cases where the contrary shall not manifestly appear; secondly, in that the Convention declares that Persons having such Certificates shall not lose for any Cause whatever the Quality of Subjects of the Country of which they originally were, whereas the Scheme by not giving such Operation, to these Certificates, leaves such Persons within the Reach of Naturalization.

Thirdly, in that the Convention makes this Article auxiliary to the 6th. Article of the Treaty, by declaring that it shall serve as an Interpretation

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in Case of Necessity, whereas the Scheme does not, constitute any Connection between this Article and the Treaty.

There is no Difference between the 17th. Article in the Scheme and the 15th. in the Convention except that the former refers only to the 3d. and 4th. Articles of the Treaty, whereas the latter refers to the 2nd. 3rd. and 4th.

The Convention contains an Article vizt. the 16th. which provides for the Exchange of Ratifications, but there is no such Article in the Scheme.

It appeared proper to your Secretary thus particularly to state the principal Variances between the Scheme and the Convention, that Congress may the more easily judge how far they correspond. The Deviations in Question tho' different in Degrees of Importance, yet seem to be alike in this, that they depart from the Matter of the Scheme, and not merely from the Verbage or Arrangement of it.

As Sovereigns treat and act with each ether by their Ministers, it becomes essential that the Acts of those Ministers should not be obligatory, until after they are ratified; it being reasonable that the Sovereigns shall have an Opportunity of judging whether their Powers have not been exceeded, and whether their Instructions have been pursued. A Refusal to ratify can therefore be warranted only by one or other of these Principles, vizt. either that their Ministers have exceeded the Powers delegated by their Commission, or departed from the Instructions given them to limit and regulate the Exercise and use of those Powers, which are commonly expressed in very general Terms.

Hence it becomes important that the Sovereign refusing to ratify, should be in Capacity to shew clearly what the Powers and Instructions given were, and also that the Treaty or Convention in Question is not conformable thereto.

In the present Case there can be no Difficulty, because all the Power and Authority delegated to the American Minister rest entirely on the Resolution of the 25th. of January 1782; which in a few Words so blends his Authority and his Instructions that he could not communicate to the french Minister, the one without the other.

Where an open and general Commission is given, accompanied by private and particular Instructions, the one may be shewn and the other reserved. And though a Departure from such Instructions is good Cause to refuse a Ratification; yet more Difficulties attend such Cases than the present, because the other Party being ignorant of the

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Instructions, and relying on the full Powers, treat in fun Confidence and Expectation that the Proceedings will be ratified.

But as the french Minister in this Instance knew exactly how far the American Minister could go, and saw plainly that he was not to depart from the Matter of the Scheme which accompanied, and was referred to in his Powers and Instructions; they could in Case of essential Deviations, only expect, a Ratification de Gratia, and not de Jure; and consequently can have no Reason to be dissatisfied in Case it should be declined.

Thus much appeared necessary to observe, in order to show that Congress have a Right to refuse the Ratification in Question--but whether it would be politic and expedient to do it, are Questions which must be entirely referred to the Wisdom of Congress.

Your Secretary however in Order fully to comply with what he conceived to have been the Intention of Congress in referring the Convention to him, will now proceed to State the several Objections to which in his Opinion it is liable.

The Convention appears well calculated to answer several Purposes; but the most important of them are such, as America has no Interest in promoting. They are these--

The first of these Objects is clearly evinced by the 10th. Article.

The second of these Objects though less explicitly, is still sufficiently evident from the 14th. Article.

The third of these Objects as it respects mercantile views is apparent from the general Tenor of the Convention and it appears plain to your Secretary, that a Minister, near Congress, Consuls so placed as to include every Part of the Country in one Consulate or other, Vice Consuls in the principal Ports, and Agents in the less important ones, constitute a Corps, so coherent, so capable of acting jointly and secretly, and so ready to obey the Orders of their Chief, that it cannot fail of being influential in two very important political Respects;--

first in acquiring and communicating Intelligence, and secondly in disseminating and impressing such Advices, Sentiments and Opinions,

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of Men or Measures, as it may be deemed expedient to diffuse and encourage.

These being the three great Purposes which the Convention is calculated to answer; the next Question which naturally occurs is, whether the United States have any such Purposes to answer by establishing such a Corps in France.

As to the 1st., We have no Laws for the Regulation of our Commerce with France, or any of her Dominions, and consequently we want no Provisions or Guards against the Infraction of such Laws.

As to the 2d., We have not the most distant Reason to apprehend or fear that our People will leave us and migrate either to the Kingdom of France or to any of its Territories, and consequently every Restriction or Guard against it must be superfluous and useless.

As to the 3rd., France being a Country in whose Government the People do not participate, where nothing can be printed without previous License, or said without being known, and if disliked, followed with Inconveniences, such a Corps would there be very inefficient for political Purposes. Where the People are perfectly unimportant, every measure to influence their Opinions must be equally so. For political Purposes therefore we do not want any such Corps in France.

As to assisting our Merchants, and such other Matters as properly belong to Consuls, they would answer all those Purposes just as well, without these extraordinary Powers, as with them.

Hence it is clear to your Secretary that the three great Purposes which the Convention is calculated to answer, are such as the United States have no Interest in promoting. Whether France has any such Purposes to answer in the United States, and how far this Convention may facilitate the pursuit of them, are Questions which the Discernment of Congress renders it unnecessary for your Secretary to discuss.

Your Secretary also Considers this Convention as greatly deficient in Reciprocity, inasmuch as by it we are to admit french Consuls into all our Ports and Places without Exception, whereas no Provision is made for the Admission of ours into any of the Ports, Places and Dominions of his Most Christian Majesty except the Kingdom of France only. He also thinks that the Omission of the Article securing to Consuls the right of worshipping in their own way in Chapels in their Houses, is a Deviation from Reciprocity, especially as that Liberty is not only permitted but established here.

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But independent of these general Circumstances and Considerations your Secretary thinks the Convention is liable to several strong and particular Objections.

When these States assumed a Place among the Nations of the Earth they agreed upon and published to the World the Stile and Title by which they were to be known and called, and your Secretary does not conceive that other Nations are more at Liberty to alter that Stile, than the United States are to alter the Title of his Most Christian, Most Catholic, or any other Majesty in Europe. He therefore thinks that no Act should be ratified by Congress until every Error of this kind is corrected. Though these Matters are very unimportant in themselves, yet they become so as Precedents; one little Liberty unchecked, often smoothing the Way for a greater.

The Convention directs the Consuls on their arrival in the respective States to present their Commissions according to the Forms which shall be there found established. Although the Word respective here used, relates to the two Countries, and not to the individual States of which our Confederacy is composed, yet it still is doubtful whether the Form alluded to is to be established by Congress or the State to which they may be sent and at which they may arrive. The like Remarks apply to the Case of Vice Consuls mentioned in the 2nd. Article.

In Countries where the Laws alone govern, it should in the Opinion of your Secretary, be an invariable Maxim not to permit any Civil Power to be exercised in it but by the Citizens of the Country legally and Constitutionally authorized thereto; and that as few Persons as possible, should live exempt, in any Respect, from the Jurisdiction of the Laws.

In his Opinion therefore none but the immediate Representatives of Sovereigns ought to have such Exemptions. A Consul is not of that Description. According to the Laws of Nations Embassadors must be received--but that Law does not extend to Consuls, and therefore, every Nation may admit them on their own Terms. It is not easy to assign a good Reason for granting them a full and entire Immunity for their Persons, Papers, Houses, and Servants, other than such as the free Citizens of the Country enjoy--as they are protected by the Laws, they should be subject to them.

But the Convention goes much further. It grants this Immunity not only to Consuls and also to Vice Consuls, but also to all their

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different Officers, and in general to all persons attached to the Consulate. Various Abuses, difficult to detect, and still more difficult to correct, would naturally attend such extensive Exemptions from the Process and Jurisdiction of our Laws; which can only proceed in one open plain direct Path, without the Aid of those Detours and Expedients well known and daily practiced in absolute Governments

The 5th. Article, respecting calling upon them for Evidence, seems to be an unnecessary Departure from our Laws--Why should Consuls and Vice-Consuls, be called upon to give Evidence in a Manner less formal and less coercive than the first and highest Officers of our Government are.

The 6th. and 7th. Articles establishing Consular and Vice consular Chanceries create an Imperium in Imperio, which in several respects must clash with the internal Policy of these States, and with which it is not clear that Congress can authorize any Persons to interfere, such as

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From these and other circumstances it appears that this Convention will make a Strong Line of Separation between french and american Inhabitants in this Country.

The 10th. Article needs no Comment. It gives to Consuls as Complete Jurisdiction over french Vessels in our Harbours as any of the King's Officers could exercise over them in the Harbours of France. One Circumstance, however, is very striking and merits much Attention viz: their Power to arrest Passengers, which doubtless will be the Case whenever Passengers attempt to come here in a Manner and for Purposes not consistant with the Ordinances against Emigration. And the Power to arrest also the Captains and Masters, is doubtless intended to punish Neglects of those Ordinances, and to render them very circumspect in their conduct relative to Passengers and Cargoes.

How far the Power of arresting and reexporting Sailors and Deserters may operate on Emigrants is not difficult to foresee, as the Consuls are to be the only Judges, and our Courts are excluded from hearing the Complaints of any Persons whom the Consuls may describe by those Appellations.

The 14th. Article makes the Certificate of a Consul conclusive Proof of a Man's being a Frenchman and declares that he who shall make such Proof shall not lose for any Cause whatever the Quality of Subject.

That the manifestation of so important a Fact should depend wholly on such a Certificate; that no Counter Proof should be offered and prevail; is really to make the consular Chancery a Court of Record (and that not only for Judicial Acts but also for Facts) against whose Records and even the Copies of them there can be no averment. This does not comport with the Genius and Spirit of our Constitutions or our Laws, both of which secure to every Inhabitant and Citizen the inestimable Privilege of offering in our Tribunals every Species of legal Evidence that may tend to elucidate the Merits of the Cause before them.

But this is not the only Objection to which this Article is liable--one much more interesting is obvious.

Where such Certificates appear the Person named in them is not to lose for any Cause whatever the Quality of Subject so that even legal Naturalization is not to operate as a Cause.

That this is a true Construction of that Clause is evident from its expressly referring to the 11th. Article of the Treaty, and declaring that it shall serve as an Interpretation thereof. Let us recur to that Article.

After stating the Priviledges which Persons of the two Nations shall

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enjoy in each others Country, it thus proceeds--"But it is at the same Time agreed that its Contents shall not effect the Laws made or that may be made hereafter in France, against Emigrations, which shall remain in all their Force and Vigour. And the United States on their Part, or any of them shall be at Liberty to enact such Laws relative to that Matter, as to them shall seem proper.

Now let us collect into one point of View the different Parts of the System, from their dispersed Situation in the Treaty and in the Articles of this Convention, and see how it will operate.

The King has a Right to make what Laws he may think proper respecting Navigation and Emigration. Suppose a Law directing that every Passenger shall on his Arrival in America immediately report himself to the Consul or Vice Consul nearest the Place of his Arrival to the End that his Name and Description be entered in the Consular registers.

The 10th. Article of the Convention declares that they shall cause to be executed the respective Laws, Ordinances and Rules concerning Navigation, on board the said Vessels, and that they may cause every Passenger to be arrested.

Hence it will appear that every Passenger will be noted and described in their Books before such Passenger can obtain Naturalization--and if he should afterwards obtain it, the 14th. Article renders it avoidable by ordaining that "they who shall prove that they belong to the Body of their respective Nations by the Certificate of the Consul or Vice Consul of the District, mentioning their Names, Surnames and Place of their Settlement as inscribed in the Registers of the Consulate, shall not lose, for any Cause whatever in the respective States and Domains the Quality of Subjects of the Country of which they originally were." And the ame Article proceeds to declare, what is really not the Fact; that this is conformable to the 11th. Article of the Treaty; and as if concious that the said Article does not admit of such Construction, it adds that it shall serve as an Interpretation of it--that is, that it shall be so construed in future. That 11th. Article does no more than declare the Right of the King to make what Laws he pleases against Emigration, but there is nothing in it which says or seems to say, that his Subjects producing the beforementioned Certificates shall not for any Cause whatever lose that Quality in our Country.

Although the true Policy of America does not require, but on the contrary militates against such Conventions, and although your Secretary

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is of Opinion, that the Convention as it now stands, ought not to be ratified, yet as Congress have proceeded so far in the present Instance, he thinks that Instructions should be sent to their Minister at Versailles to state their Objections to the present Form, and to assure the King of the Readiness of Congress to ratify a Convention made agreeable to the Scheme beforementioned provided an Article be added to limit its Duration to eight or ten Years, in order that Practice and Experience may enable them to judge more accurately of its Merits, than can ever be done of mere theoretical Establishments however apparently expedient.

All which is submitted to the Wisdom of Congress.

John Jay.1

[Note 1: 1 This report is in the Papers of the Continental Congress, No. 81, I, folios 275--303. According to the indorsement it. was read July 6, 1785: "Wednesday 13 assigned for Consideration. 40 Copies printed under an injunction of Secrecy. July 10, 1786, Referred back to the Secretary for foreign Affairs to report."
A printed copy of the "Scheme" is in No. 47, folio 261.
July 6: The following committees were appointed: Mr. [Elbridge] Gerry, Mr. [William] Ellery and Mr. [James] Wilson, on letter of July 6 from Oliver Pollock. A report was made July 12. Pollock's letter, which gives a statement of his debts and prays the payment of the sums owed him by the United States, is in No. 50, folio 485. Committee Book No. 190.
Also, according to Committee Book No. 190, the committee of June 30 on Mr. [James] Monroe's motion respecting facilities was discharged.
Also, the answer to Don Diego Gardoqui's speech, at his public audience, was referred back to the Secretary for Foreign Affairs to take order. This order is entered in Resolve Book No. 123. See ante, July 2.
Also, the Secretary for Foreign Affairs was ordered "To revise the ceremonials adopted by Congress and report such alterations as he shall judge proper particularly respecting the individual members of Congress and foreign Ministers."]

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