States, took measures at each term of the circuit court, to prepare the cause for trial, and on a plea calculated to defeat the prosecution. At length, in October term, 1796, the cause was brought to a hearing. In the course of the argument, the question of jurisdiction presented itself. The court adjourned until next day to consider of it: and the following morning dismissed the suit.

The undersigned may be permitted to ask, whether, in a change of situation, placing France precisely in the circumstances of the United States, either the corvette or her captain would have escaped?

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

As you have not selected the particuler parts of this convention supposed to remain unexecuted, the undersigned must necessarily consider the more definite charges heretofore made on the same subject as being adopted by you.

Your predecessor in office, in his letter to Mr. Monroe, of the 19th Ventos 4th year (9th March, 1796,) complains, 1st, That the clause granting to French consuls the right of judging exclusively in disputes between Frenchmen, is become illusory for the want of laws giving them the means of having their decisions executed. 2dly. The right of causing mariners who desert to be arrested, is rendered ineffectual, because the judges charged by the laws with issuing the mandates of arrest have lately required the presentation of the original roll of the crew, in contempt of the 5th article admitting in the tribunals of both powers, copies certified by the consul.

It is then understood to be required

1st. Than the officers of the United States should execute the judgments of the consuis:

2ndly. That the judges of the United States should issue mandates of arrest against persons charged with being deserters, without a view of the original roll of the crew.

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

It is to be expected, then, as well from the intention of the convention establishing the tribunals, as from the nature of the tribunal itself, which is a foreign court, constituted by a foreign authority, governed by foreign laws, and amenable for its conduct to a foreign government, that no power is to be implied, and that it possesses no capacity which is not expressly given to it. To ascertain then the precise extent of the stipulation, let the convention itself be considered.

The first point rests exclusively on the 12th article, which is in these words: “All differences and suits between the subjects of his Most

Christian Majesty in the United States, or between the citizens of the United States within the dominions of the Most Christian King, and particularly all disputes relative to the wages and terms of engagement of the crews of the respective vessels, and all differences, of whatever nature they may be, which may arise between the privates of the said crews, or between any of them and their captains, or between the captains of different vessels of their nations. shall be determined by the respective consuls and vice consuls, either by a reference to arbitrators, or by a summary judgment, an without costs.

No officer of the country, civil or military, shall interfere therein, or take any part whatever in the matter; and the appeals from the said consular sentences shall be carried before the tribunals of France or of the United States, to whom it may appertain to take cognizance thereof."

In this article no engagement is made to furnish the means of executing consular judgments. If, therefore, the preceding positions be just, there is an end of the question. But other arguments presen themselves in support of the construction contended for by the United States. The consular authority in a foreign country is usually either voluntary, or enforced by the laws of the nation to which the consuls belong, and which may bind their own citizens or subjects under penalties, to be inflicted on their return, or otherwise.

Upon this idea it was sufficient to stipulate a permission of the jurisdiction in exclusion of the courts of the country: on any other idea, it would have been necessary to have stipulated explicitly and perhaps in detail the manner in which its sentences should be executed. To accede to the demands of France would be to erect in a foreign country complete courts of justice with effectual process to compel the appearance of parties and witnesses, and to execute their decisions. And as the transactions in commerce could not in the nature of things be confined to 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 granted by the article 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.

This would be to extend, by implication, the authority of a foreigner over persons not contemplated by the treaty as subject to it. The article declares, too, that no officer of the country, civil or military, shall interfere therein, or take any part in the matter." But sheriffs, marshals, and their deputies, or any other persons appointed by and acting under the laws of the country, are "officers of the country," and consequently cannot aid in the execution of consular decisions, because they are expressly forbidden to interfere therein, or take any part whatever in the matter."

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But was it meant that the laws should give consuls the power to appoint such executive officers of their own nation? Should it be conceded that a person so appointed, could not be considered as an

officer of that nation, by virtue of and according to whose laws he held his office, still 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. In addition to this, 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 article giving the jurisdiction declares, that the consular judgments shall be without costs."

The second complaint is, that the judges of the United States have required the exhibition of the original roll of the crew, as the testimony which would authorize the issuing of a mandate, to apprehend a French mariner charged as a deserter. The right to require these mandates, is founded entirely on the 9th article of the consular convention.

That declares, That the consuls and vice consuls shall address themselves to the courts, judges, and officers competent, and shall demand the said deserters, in writing, proving by an exhibition of the registers of the vessel, or ship's roll, that those men were part of the said crews; and on this demand so proved, (saving however, where the contrary is proved,) the delivery shall not be refused." It would be an idle waste of time, to attempt to prove to you, Citizen Minister, that the register of the vessel, or ship's roll, is not a copy of that paper; or that a copy does not satisfy a law which peremptorily requires the exhibition of the original.

Your predecessor has thought proper to refer to the 5th article of that instrument; but a slight perusal of that article will convince you, Citizen Minister, that it does not apply to the case. When the judges of the United States determined that the mandate of arrest could not be issued on the exhibition of a "copy of the register of the vessel or ship's roll," they did not so decide for the purpose of giving effect to the system of the Government, but because the treaty was clearly understood by them positively to require the presentation of the original.

The undersigned regret, Citizen Minister, that your researches concerning the United States have not extended to their courts. You would have perceived and admired their purity. You would have perceived that America may repose herself securely on the integrity of her judges, and your justice would have spared the insinuations concerning them, which have closed this part of your letter.

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

You complain, Citizen Minister, in very strong terms, of the deception alleged to have been practised with respect to the objects of Mr. Jay's mission to London, and also of the contents of the treaty which that mission produced.

You are pleased to observe, that it was then said, that Mr. Jay had been sent to London, only to negotiate arrangements relative to the depredations committed on the American commerce by the cruisers of Great Britain.

By whom, Citizen Minister, was this said? Not by the President, in his message to the Senate, announcing the nomination of Mr. Jay; nor by the then Secretary of State, in communicating to Mr. Fauchet the subject of that mission. The documents with respect to this assertion have been stated, and have been, fully commented on. It has been fully demonstrated that the American Government did not seize this occasion to practise a deception so unnecessary, so foreign to its well-known character, and which could produce only mischief to itself. As you have in no degree weakened the testimony which is relied on as disproving this allegation, or produced any sort of evidence in support of it. the undersigned cannot but mingle some degree of surprise with the regrets they feel at seeing it repeated, accompanied with the charge of that "dissimulation," of which all who examine well the conduct of the Government of the United States, will so readily pronounce it to be inca pable. You also criminate the secrecy which attended this negotiation.

To this complaint, when formerly insisted on, it was answered, that so much of it as was material to this Republic was immediately communicated to her minister; and that she had no right to inquire further, or to be dissatisfied that other objects were not disclosed; that it is not the practice of France, nor of any other nation, to communicate to others the particular subjects of negotiation which may be contemplated; and that no nation could be independent, which admitted itself to be accountable to another, for the manner in which it might judge proper to regulate its own concerns, on points in which that other was not interested, or which was bound to give previous intimation of every article, which might be inserted in a treaty, formed on the avowed principle of leaving in full force all pre-exist- • ing engagements.

This reasoning is answered only by terming it a "sophism," "an insidious subterfuge." May not any reasoning, on any subject, be answered in the same manner? But can such an answer impair its force? Without doubt, Citizen Minister, the Government of the United States, when it informed France that the negotiations of Mr. Jay would not in any respect weaken its engagements to this republic, would have added, that they might eventually extend to a commercial treaty, if it had been supposed that the omission to give such information could really be considered as a breach of legitimate obligation, or as an evidence of diminished friendship. The information was most probably given, because it was unusual, and because it could neither be considered as proper, as necessary, or as material. The undersigned trust that the painful and unavailing discussions on this subject, rendered so unpleasant by the manner in which it has been treated, will never again be answered.

Passing to the treaty itself, you say that the small majority by which it was sanctioned in the two Houses of Congress, and the number of respectable voices raised against it in the nation. depose honorably in favor of the opinion which the French Government has entertained of it.

But you must be sensible, Citizen Minister, that the criterion by which you ascertain the merits of the instrument in question, is by no means infallible, nor can it warrant the inference you draw from it. In a Republic like that of the United States, where no individual fears to utter what his judgment or his passions may dictate, where an unrestrained press, conveys alike to the public eye the labors of virtue, and the efforts of particular interests, no subject which agitates and interests the public mind can unite the public voice, or entirely escape public censure. In pursuit of the same objects, a difference of opinion will arise in the purest minds, from the different manner in which those objects are viewed; and there are situations in which a variety of passions combine to silence the voice of reason, and to betray the soundest judgments.

In such situations, if the merit of an instrument is to be decided, not by itself, but by the approbation or disapprobation it may experience, it would surely by a safer rule, to take as a guide the decision of a majority, however small that majority may be, than to follow the minority.

A treaty, too, may be opposed as injurious to the United States, though it should not contain a single clause which could prejudice the interests of France. It ought not to be supposed that a treaty would for that reason be offensive to this Republic.

Had you been pleased to state any objections to this instrument, drawn from the compact itself, the undersigned would have given to those objections the most serious and respectful consideration. But it is supposed that you adopt, without adding to the complaints made by your predecessor and by Mr. Adet, when you observe, that you will not repeat what they have said. These complaints have been amply discussed in the memorial the undersigned had the honour to transmit you, bearing date 17th of January. It is believed to have beer. demonstrated that the stipulations complained of, do not, in the most remote degree, wound the interests of France, affect the pre-existing engagements of the United States, or change their situation in relation to the belligerent Powers. Such, incontestibly, was and is the opinion of the American Government, and in this opinion only would the treaty have been agreed to.

As no one of the arguments which have at various times been urged on this subject, on the part of the United States, has ever yet been noticed, the undersigned deem unnecessary any attempt to re-urge or to strengthen them.

You say that you will content yourself with observing summarily, that, in this treaty every thing having been provided to turn the neutrality of the United States to the disadvantage of the French republic, and to the advantage of En land; that the Federal Government having in this act made to Great Britain concessions the most unheard