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rious examination or hearing, addressing himself to the captain, pronounced sentence, in these words—" I have confiscated your vessel and cargo"—closing the sentence with opprobrious language.
Mr. Adet, on the 18th of May last revived his predecessor's claim of right by treaty to sell their prizes in our ports. This occasioned the correspondence on this subject, which you will find among the documents collected on this occasion. He contents himself, however, with considering it as a right granted not positively, but by implication. That is, because the treaty forbids the enemies of France to sell their prizes in our ports—therefore it grants to her a right of selling her prizes. As if my friend's denial of a favour to my enemy, was in fact A grant of the same favour to me. The simple statement of the ground of the claim would seem sufficient to show that the treaty will not support it. That sales of French prizes have been at all permitted, has been owing to the indulgence of the government. This indulgence was continued until it interfered with a new positive obligation : an obligation precisely the same that France herself contracted eight years subsequent to her treaty with us, and with the same power. This obligation is found in the 24th article of our treaty and the 16th of the French treaty with Great Britain. Thus France and the United States alike engaged to permit no enemy of Great Britain to arm privateers initheir ports, or to sell their prizes there, or in any manner to exchange them. Consequently had France remained at peace and we engaged in a war with Great Britain, our privateers would not be permitted to sell their prizes in French ports.
And by the maritime law of France,* prizes except they are taken from her enemies, can stay in her ports no more than 24 hours, unless compelled by tempest to remain longer; and the sales of such prizes are forbidden under severe penalties. But notwithstanding the certainty of our right to forbid the sales of prizes in our ports, and notwithstanding the express legal command of the chief justice of the United States, holding a circuit court in South Carolina in May last, prohibiting the sale of a particular prize (the British ship Amity) at Charleston—the
* Valin, vol. 2, p. 21%
French agents .sold the prize vessel, and the sale received the formal sanction of the French consul. Yet even this affair has been made a subject of complaint by Mr. Adc-t, because the collector of that port refused a clearance to the prize vessel thus sold in defiance of the authority of the United States; and because he also delayed, until, in a new case, he should get advice to permit the exportation of the cargo of the prize ship which on a survey had been reported to be irreparable.
Indeed the French minister has discovered an aptitude to complain. I may cite as instances his letters of the 9th January, and 3d of March, 1796: the former because the colours of France, which he had presented to the United States, were not permanently fixed and displayed before Congress: the latter, because some printers of almanacks or other periodical publications in the United States, in arranging the names of the foreign ministers and agents resident among us, had placed those of Great Britain before those of France and Spain. Mr. Adet desired my declaration in writing, that the government of the United States had no concern in printing the works in which the agents of the French Republick were registered after those of Great Britain, and that the works themselves might be suppressed. I gave him an answer in writing with my consent to his publishing it in the newspapers, agreeably to his request. The answer states, that in matters of this kind the government did not and could not interfere. With regard to the colours, I must observe that in what concerns our foreign relations, the President being the sole representative of the people of the United States, they were properly presented to him. He received them with all possible respect, and directed them to be deposited with our national archives, that both might be preserved with equal care.
It remains to notice a summary of complaints exhibited by M. De la Croix, the French minister for foreign affairs, to Mr. Monroe, our minister at Paris, under the date of March 9th, 1796, to which the latter returned an answer, under the date of March 15th. These were enclosed in Mr. Monroe's letter of the 2d of May, and received at the department of state, on the 19th of July. Copies of both papers and an extract of so much of his letter as relates to this subject arc among the documents now collected.
First complaint—The inexecution of treaties. 1st. The courts of justice have taken and still take cognizance of prizes brought by French privateers into the ports of the United States.
2d. English ships of war have been admitted into those ports, even in cases prohibited by the 17th article of the treaty; that is, when they have made prizes on the French Republick or its citizens; and have also conducted thither their prizes.
3d. The consular convention has in two points become illusory—1st. For want of giving to the consuls the means of having their decisions executed in all disputes between Frenchmen, of which the consuls have the exclusive cognizance: 2d. Because the judges charged with issuing warrants for apprehending French mariners who desert, require the original roll of the crew to be first produced: 4th. The arrest of the corvette Le Cassius and her captain.
Second complaint—The impunity of the outrage committed on the Republick in the person of its minister, the citizen Fauchet, by the English ship Africa, in concert with the vice-consul of that nation, within the waters of the United States.
Third complaint—" The treaty concluded in November, 1794, between the United States and Great Britain."
Excepting the second complaint, relative to the attempt of the English ship Africa to seize Mr. Fauchet and his papers—and the 3d article under the first complaint relative to the consular convention, all the charges in this summary have been already examined, and we think proved to be unfounded.
As to the consular convention, many inconveniences would attend the giving to the consuls a jurisdiction to the extent contended for on the part of the French Republick, to be exercised by the French consuls in the United States; and consequently by American consuls in France. The inconveniences are manifestly so great as to require very explicit language in the convention of the two nations on this subject, to authorize the conclusion that such enlarged jurisdiction was intended. It would be to erect in foreign countries, complete courts of justice, with effectual process to compel the appearance of parties and witnesses, anil to execute their decisions. And as the transactions in commerce and navigation could not in the nature of things be confined to the foreigners alone* the citizens of the country must often be necessary witnesses to those transactions, and of course rendered amenable to this foreign jurisdiction in their own country ; whereas the jurisdiction demanded is only of French consuls over French citizens in the United States; and reciprocally of American consuls over the citizens of the United States in France. From these considerations a presumption would arise, that the jurisdiction contemplated in the consular convention was to be merely voluntary, but at the same time exclusive of the courts of the country. An examination of the convention we believe will supporj this and no other construction. The 12th article provides that all differences and suits between Frenchmen in the United States, and between eitizens of the United States in France, and particularly all disputes between seamen and their captains, and between captains of diiTerent vessels of their nation, shall be determined by the respective consuls, either by a reference to arbitrators, or by a summary judgment and without costs. H No officer of the country, civil or military, shall interfere therein, or take any part whatever in the matter."— This last clause alone would seem sufficient to repel the claim we are considering. Sheriffs, marshals, and their deputies, cannot aid in the execution of consular decisions, because they are " officers of the country," expressly forbidden to " take any part in the matter." But was it meant that the laws should give consuls the power to appoint such executive officers of their own nation? We find no such thing in the convention. On the contrary, in the case of deserters from vessels mentioned in the 9th article, whom the consuls are authorized to cause to be arrested, they are expressly directed to apply in writing to the "courts, judges and officers, competent" to make the arrests; meaning the courts, judges and officers of the country where the consuls reside. Besides, if power could be given to consuls to appoint officers to execute their decisions, these officers must of course have their fees of compensation to be paid by one or other of the parties: but the 12th article declares that the consular judgments shall be "without costs."—To these observations I subjoin the deliberate opinions of two respectable lawyers.
Mr. Harrison, of New York, and Mr. Bradford, the late attorney general of the United States.
"I have considered the 12th article of the convention between his late most christian majesty and the United States of America, and also the act of Congress concerning consuls and viceconsuls, as far as it prescribes the duty of marshals of the United States; and it is my opinion that the marshals are not bound by law to execute any sentence of a French consul, arising under the said article.
"RICHARD HARRISON, Attorney U. S. for the New York district. "New York, March 6, 1794."
"I have considered the convention and act above referred to, and I perfectly coincide in the opinion given by the attorney of the United States for the district of New York.
"Philadelphia, March 14, 1794."
The other complaint under this head is, that the judges who are charged (by an act of Congress) to issue warrants of arrest against deserters from French vessels have required the original ship's roll to prove that the men alleged to have deserted were a part of the crew, in contempt of the 5th article, which admits in the tribunals of both countries copies certified by the consul.
If we look at the 9th article of the consular treaty wo shall see that the consuls who demand the arrests of de, aerters from vessels of their nation, must prove "by an exhibition of the registers of the vessel or ship's roll, that those men were a part of the crew." It is apparent that the original roll, and not a copy is here referred to; nor. indeed is the contrary pretended; but it is said that the 5th article admits certified consular copies as evidence in the courts of both nations. But the 5th article appears to have no relation to the subject of the 9th.—It stipulates that "the consuls respectively shall have the exclusive right of receiving in their chancery, or on board of vessels, the declarations and all other acts, which the captains, masters, crews, passengers and merchants of their nation may choose to make there, even their testaments and other disposals by last will; and the copies of the said nets duly