The Short-Lived Franco-American Consular Convention (1788–1800) and the Trouble with Reciprocal Extraterritorial Jurisdictional Privileges
By: Ana Delic (Tilburg University)
Eighteenth-century law of nations authors highlighted how European powers entered into bilateral agreements endowing extraterritorial jurisdictional privileges to aid in the flow and ease of mutual commerce. Emer de Vattel (1714–1767) was a big proponent of consuls, calling them one of the most useful modern institutions for the advantage of commerce. He wrote that consuls in seaports and large trading cities watch over the rights and privileges of their national merchants and adjudicate cases between them. Consular jurisdictions allowed foreign privileged merchants access to their own adjudication or arbitration in civil, commercial, and criminal suits among themselves as opposed to having to seek justice in front of territorial jurisdictional courts. Any mixed cases between natives and privileged Westerners were heard in front of the domestic territorial court, as indicated by a passage from Johann Jakob Moser (1701–1785). Cornelius van Bynkershoek (1673–1743) defined consuls as protectors of their national merchants and judges of their fellow citizen merchants trading on the territory of a foreign government.
One of the earliest reciprocal consular jurisdictional privileges, if not the earliest, can be found in the treaty of commerce and alliance between England and France. The treaty of peace and commerce between England and France of 1606 was an early example of a treaty which included reciprocal consular judicial privileges concluded between James I of England (1566–1625) and King Henry IV of France (1535–1610) for their defence against Spain in support of the united Dutch provinces. The second article of the treaty outlined how a French consul was to be established in London and an English consul was to be positioned in Rouen. Furthermore, ‘all controversies between merchants shall be referred to two merchants of each nation, who shall be called the conservators of the commerce, and shall take an oath for the faithful execution of their office, and shall be appointed anew every year.’
During the latter half of the eighteenth century and the first decade of the nineteenth century, there was a boom in consular jurisdictional clauses in treaties of amity and commerce among Western nations, particularly France and Russia. However, not all consular privileges were created equal and an analysis of these bilateral and reciprocal arrangements reveals various kinds of solutions. The relevant treaties and varieties of privileges offered within them are delineated in the table below.
|Species of Consular Privileges||Treaties of Commerce and Amity with Reciprocal Consular Jurisdictional Privileges|
|Recourse to consular arbitration or domestic jurisdiction||
|Recourse to consular jurisdiction, appeals heard in either domestic jurisdiction||
|Recourse to consular jurisdiction with local enforcement of consular judgment|
|Recourse to consular jurisdiction with local enforcement of consular judgment or recourse to jurisdiction which is the domicile of the party who does not accept consular jurisdiction||
|Consular privileges on par with most favoured nation||
The turn of the nineteenth century witnessed the end of Western consular jurisdictional privileges. This study will focus on one example of a consular jurisdictional arrangement, the Franco-American Consular Convention (1788), in terms of its conception as well as its execution, in order to gather clues as to the reasons behind the demise of Western reciprocal consular jurisdictional privileges.
The Rise of the Franco-American Consular Convention (1788)
The first set of consular jurisdictional privileges concluded by the United States were with France and came as result of diplomatic negotiations begun by Benjamin Franklin (1706–1790), the American ambassador to France (1776–1785). France recognized American independence with the Treaty of Amity and Commerce between France and the United States, signed at Paris, 6 February 1778 (46 CTS 417), and the Treaty of Alliance between France and the United States, signed at Paris, 6 February 1778 (46 CTS 447). Specifically, Article 11 of the latter treaty guaranteed the new nation ‘liberty, Sovereignty, and Independence absolute, and unlimited’. Article 31 of the Treaty of Amity and Commerce mentioned the liberty of having consuls, vice consuls, agents and commissaries in the ports of the other power as ‘shall be regulated by a particular Agreement’. With the signing of these two treaties, the United States obtained not only an ally and commercial partner but also its first Consul-General: the Frenchman Conrad Alexandre Gérard (1729–1790). This office was previously unknown in the United States since the British navigation system had not allowed this foreign commercial function. From the beginning of negotiations, the French delegation had pressed the Americans for the inclusion of consuls. French consuls were members of the civil service who were prohibited from engaging in commerce. On the other hand, there were no government consular functionaries in the United States and there was no applicable code of conduct. American consuls were merchants who performed consular duties alongside their mercantile endeavours. The road to a convention on consuls was not a smooth one with the stance of Congress being rather evasive when it was time to negotiate the treaty because of an apathetic view of the possibility of French consular extraterritorial jurisdiction infringing on American territorial sovereignty.
The principal minister of the state, Gravier de Vergennes (1719–1787), exchanged notes with Franklin at Versailles from 27 August to 3/9 September 1784 (49 CTS 141), which highlighted the reciprocal promises of most favoured nation treatment. In the same year, Franklin signed a treaty with France but it was never ratified by the American government because of the provisions dealing with extraterritorial consular jurisdiction. In 1788, negotiations intensified for the conclusion of the consular convention. In a letter from Thomas Jefferson (1743–1826), the second American Minister to France (1785–1789) after Franklin, to Armand Marc, Comte de Montmorin (1745–1792), the French Minister of Foreign Affairs (1789–1791), Jefferson presented the idea that the first convention be probationary and not perpetual, limited to a term of a certain number of years. He also included a general observation that the English allow foreign consuls scarcely any functions within their ports, an approach stemming from the character of English laws, ‘which eye with peculiar jealousy, every exemption from their control’. The character of American law, Jefferson added, was the same and rendered more unpliant by thirteen parliaments instead of one. Later that year, the Consular Convention between France and the United States (50 CTS 387) was finally signed at Versailles on 14 November 1788, achieving broad civil and criminal authority of consuls for a period of 12 years after the exchange of ratifications (Article 16). Article 12 determined that ‘[a]ll differences and suits between the subjects of the Most Christian King in the United States, or between the citizens of the United States within the dominions of the Most Christian King, … shall be determined by the respective consuls’ without interference of any civil or military officer of the country. The provision explicitly dealt with disputes relative to wages and terms of engagements of ships’ crews. Appeals of consular sentences could be heard in either the French or American tribunals. Article 13 described how the general utility of commerce led to the establishment of ‘particular tribunals and forms for expediting the decisions of commercial affairs’. American merchants in France should enjoy the benefits of such establishments and likewise the United States Congress would provide French merchants similar establishments on American soil. In a letter of 8 September 1791 to Thomas Newton, Jefferson, then the first American Secretary of State, reflected on the status of French consuls, noting that they should not have diplomatic privileges, and specified that ‘we have no [such] convention with any other nation.’
The following two cases will outline the workings of the Consular Convention in practice in the United States and France.
The Workings of the French Consular Jurisdiction in Boston
On 19 December 1791, a French merchant residing in Boston, Martin de Villeneuve, wrote to Jefferson. Villeneuve began the letter with a personal memory of their encounter during Jefferson’s stay in Paris, but quickly turned to the pressing matter at hand, namely, the request for an assurance from Jefferson that the consular convention determined the competence of consular jurisdiction for civil cases. Villeneuve was in the midst of a dispute with Michel Barriou. Both men were Frenchmen from Bordeaux domiciled in Boston. The dispute began a week before Villeneuve wrote the letter to Jefferson. Villeneuve demanded payment from Barriou, who had sold goods on his behalf. After rejecting an offer by Barriou to refer the matter to the French consul, Philippe Létombe, in Boston, Villeneuve obtained an order from the Suffolk County Court of Common Pleas to summon Barriou to appear. Barriou sent a complaint to the French consul, arguing that Villeneuve’s resort to the Massachusetts court was a direct violation of the 1778 treaty between France and the United States and Article 12 of the 1788 Consular Convention, which indicated that civil disputes between French parties were to go before the French consul. The French consular court in Boston issued an order to Villeneuve to bring his complaint, but he refused, describing how the treaty did not apply to commercial disagreements between French citizens. Villeneuve wrote to Jefferson twice within a three-day period in an effort to compel him to support his claim in the Massachusetts court. Jefferson never responded to the letter since in respect to Article 12, he accepted the view that ‘[f]or the encouragement of commerce it is become usual to permit, by Convention, foreign merchants of the same country to refer their disputes to a judge of their own’. The silence was Jefferson’s tacit approval of the French consul’s jurisdiction over the case as determined by the treaty. However, in a letter in July of the following year (1792), Jefferson was also critical of consuls. He wrote how correspondents of mercantile houses in ports addressed concerns, took better care of mercantile interests, and obtained greater protection of the laws of the country than the consul of the nation. Two years later, an official protestation dated 21 June 1793 during the French Revolution (1789–1799), by the French consul in the United States, Alexandre Maurice Blanc de Lanautte, Comte d’Hauterive (1745–1830), revealed the continuation of the American consular jurisdiction in the First French Republic (1792–1804). The protestation to the American government by the French consul insisted on reciprocity, or in other words the continuation of the French consular jurisdiction on American soil on the basis of the Consular Convention concluded before the creation of French Republic.
The Workings of the American Consular Jurisdiction in Paris
Philippe-Antoine Merlin de Douai (1754–1838), a leading jurist during the French revolution and the subsequent Napoleonic regime, discussed the case of Fulwar Skipwith (1765–1839), the American consul in Paris who entered into a contract concluded on 2 May 1799 with his chancellor, James Mountflorence (1745–1820). When a dispute arose between the two of them, Skipwith offered Mountflorence arbitration in front of Mr. Gord, an American living in Paris, or if he refused, Skipwith threatened summoning him in front of the Parisian commercial tribunal. In the letter to Mountflorence, Skipwith specified that the commercial tribunal could claim jurisdiction because the dispute revolved around an agreement established in France. After a failed attempt at finding a resolution in arbitration, Mountflorence summoned Skipwith in front of the Parisian commercial tribunal on 4 October 1804. Skipwith declined the jurisdiction of the court. The Parisian commercial tribunal decided that since the case dealt with a company (société) in France between these parties as commercial agents, the tribunal assumed jurisdiction. The court proclaimed that both parties were to select arbitrators or that arbitrators would be selected for them. Skipwith refused jurisdiction and demanded that the case be heard in front of the American consul. The Appeals Court of Paris on 4 March 1805 nullified the decision of the commercial tribunal, determining that the case dealt with two Americans who had voluntarily finalized a contract in English according to American form and thus should be heard in front of the American consular jurisdiction in Paris. However, this verdict brought with it a key issue, that Skipwith was himself the American consul in Paris and therefore could not be his own judge. The bilateral treaty had failed to anticipate this sort of situation. The problem was reflective of the fact that unlike in France where the consul was a public servant, American consuls were likewise engaged in business and entered into disputes like any other merchants. Merlin’s text offered no indication of what happened next. It is likely that arbitration in front of an American merchant in Paris may have been the only viable solution.
The End of the Consular Convention
The Consular Convention had a twelve-year expiration date and consular privileges were not renewed with a new bilateral legal instrument. In a number of American Supreme Court decisions from the first decades of the nineteenth century, the demise of jurisdictional privileges of the consular office was delineated. Joseph Story (1779–1845), who was an Associate Justice of the United States Supreme Court from 1811 until his death in 1845, alluded to the judicial functions and limitations of the consul: ‘[a] consul … is … clothed with authority only for commercial purposes’ (The Anne, at 445). By the turn of the nineteenth century, consuls also forwarded authenticated copies of their national law or translations of it to American courts upon request. John Marshall (1755–1835), the fourth Chief Justice of the United States Supreme Court (1801–1835), disagreed with this practice, saying that consuls were not the keepers of those laws. He deemed that the translation of a consul not under oath had no greater validity than the translation of any respectable man. Marshall’s latter comments depict the fall of the commercial consul’s judicial powers. The consul was no longer a judge or mouthpiece of the law and authenticated copies and translations of foreign law provided by the consul not under oath were inadmissible as authoritative sources in American courts.
In conclusion, the particular case of the Franco-American Consular Treaty (1788–1800) provides hints as to why the creation of extraterritorial jurisdictions on the territories of the Western signatory states became in the nineteenth century an obsolete solution to the issues arising from multijurisdictional commercial dealings, namely conflicts of forums and laws. Firstly, an extraterritorial jurisdiction was an exception both to the omnipotence of domestic courts and to the idea of national territorial sovereignty, as the reluctance of the American government to conclude this treaty attests. Secondly, the creation of extraterritorial jurisdiction increased forum shopping and law shopping by the disputing merchants, which created confusion among foreign merchants, in domestic courts and across diplomatic channels. This confusion in turn led to legal uncertainty, but on other hand this initial phase of chaos would eventually have been stabilized had the Consular Convention not become obsolete only twelve short years after its arduous conception. Thirdly, there was confusion about the applicability of this bilateral legal instrument at the heels of revolution and regime changes, specifically when the First French Republic overthrew the French monarchy. Lastly, consular jurisdiction worked more efficiently when consuls were civil servants (as in France) as opposed to merchants themselves. As the case between Skipwith and Mountflorence—an American consul in Paris and his chancellor—proves, consuls could not adjudicate disputes in which they themselves were involved and recourse to a third-party American arbitrator was likely the only available option, which diminished the relevance of the consul as protector and adjudicator of native merchants abroad.
Cornelius van Bynkershoek, Traité du juge competent des ambassadeurs, tant pour le civil, que pour le criminel, traduit du latin de mr. de Bynkershoek (Jean Barbeyrac trans., The Hague: Thomas Johnson 1723).
Charles T. Cullen, Eugene R. Sheridan, and Ruth W. Lester (eds.), The Papers of Thomas Jefferson Volume 22: 6 August–31 December 1791 (Princeton: Princeton University Press 1986).
A.G. Gebhardt (ed.), State Papers relating to the Diplomatick Transactions between the American and French Governments, from the year 1793, to the Conclusion of the Convention, on the 30th of September, 1800 (London: J.B.G Vogel 1816).
Mary A. Giunta and J. Dane Hartgrove (eds.), Documents of the Emerging Nation: U.S. Foreign Relations 1775–1789 (Wilmington, DE: Scholarly Resources Inc. 1998).
James P. McClure (ed.), The Papers of Thomas Jefferson, Volume 22: 6 August–31 December 1791 (Princeton: Princeton University Press 1950).
Philippe-Antoine Merlin, Repertoire de Jurisprudence Tome XI (Bruxelles: H. Tarlier 1828).
Johann Jakob Moser, Versuch des neuesten europäischen Völkerrechts (Frankfurt am Main 1777–80) Vol. VII.
Emer de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle, appliqués à la conduite & aux affaires des Nations et des Souverains (London 1758) Vol. II.
Charles M. Wiltse, ‘Thomas Jefferson on the Law of Nations’ The American Journal of International Law 29(1) (1935) 66.
Benjamin Ziegler, The International Law of John Marshall: A Study of First Principles (Chapel Hill: University of North Carolina Press 1939).
Treaty of Amity and Commerce between England and France of 1606
Reproduced in David MacPherson, Annals of Commerce, Manufactures, Fisheries, and Navigation (London: Nichols and Son 1805) Vol. II, 245.
Relevant US Supreme Court Cases
The Anne, 3 Wheaton 435 (1818).
The Bello Corrunes, 6 Wheaton 168 (1821).
Church v Hubbart, 2 Cranch 187 (1804).