Consuls de Gratia: The Role of British Consuls: Editorial Note
Consuls de Gratia: The Role of British Consuls
France, the United Provinces, and Sweden, European powers with whom the United States had concluded commercial treaties, had all established a consular presence in the United States by 1785.1 Although any pretense of negotiations for an Anglo-American commercial treaty had come to an end by the fall of 1784,2 Britain appointed John Temple consul general to the United States. As Jay advised in the report below, Congress received him with qualifications. This decision, coupled with its resistance to French proposals for a consular convention, aroused suspicions on the part of France. Neither nation had a ministerial presence for much of the time Jay served as secretary for foreign affairs. Instead, each attempted to use consuls with expanded powers and functions to achieve their objectives.3
Britain’s initial appointees, John Temple and Phineas Bond Jr., had some unique advantages and disadvantages. Their familial relations and associations with highly placed Americans and their knowledge of the American economy were assets that were offset by the suspicions and resentment aroused by their compromised personal histories. Temple was a native Bostonian with ties to the powerful Temple-Grenville family in England and was the son-in-law of James Bowdoin, a future governor of Massachusetts. He and his family moved to England in 1773. He was dismissed from his well-paying position as British customs officer for Boston in 1774 because he was suspected of complicity in the publication of Thomas Hutchinson’s controversial letters in a Boston newspaper. Before he returned to the United States in 1781, he had endeavored to use his contacts with friends in Britain, among them David Hartley, to effect a reconciliation between the two nations, an effort that left him suspect as a Loyalist in the United States. At the end of 1783, Temple returned to England again, partly, it was reported to John Adams, to assist “in forming a commercial treaty,” for which his knowledge of American commercial affairs qualified him, but also to obtain redress from the British ministry for the “injustice done him” by depriving him of his position as customs officer.4
Redress came in the form of appointment as British consul general to the United States on 5 February 1785. Carmarthen’s initial instructions required Temple to keep registries of all British ships entering and leaving American ports and to endeavor to prevent fraud and irregularities involving passes granted to British ships trading on the Barbary coast. In August, he submitted a list of questions to British Foreign Secretary Lord Carmarthen: where he should reside; whether he was empowered to appoint temporary consuls; whether he should take an oath of allegiance to the king; whether, since he might have more important business than commerce to attend to, he should have a higher title than consul general. Carmarthen subsequently instructed him to assist the commissioners for Loyalist claims in obtaining copies of the records necessary to validate them.5
Temple arrived in the United States in late fall and presented his commission to Jay on 24 November 1785. Jay notified Congress and indicated that it should decide whether to receive him, if at all, “de Jure,” which would be proper only if there was an Anglo-American commercial treaty, or “de Gratia”, that is, by favor or grace. Since he thought a refusal might adversely affect Anglo-American commerce, Jay recommended the final alternative. Congress agreed and awarded Temple all the privileges and authority that the laws of nations and of the United States provided for a consul general received from a nation with whom the United States had no commercial treaty. Jay conveyed the decision to Temple on 3 December.6
Temple immediately tested the limits of his powers by attempting to facilitate the processing of Loyalist claims for compensation from the king, which, he suggested, had been delayed by the Loyalists’ inability to gain access to public records. Jay forwarded Temple’s letter to Congress. His report of 31 December recommended referring the matter to Adams on grounds that Loyalist affairs were beyond the competence of a consul general. Jay further suggested that Adams should remind the king that Congress expected and would welcome a minister.7
Britain, however, was not about to send a minister.8 This became obvious when Phineas Bond Jr., an unabashed Loyalist from a distinguished Philadelphia family, arrived in New York City on 15 November 1786 with two commissions dated 5 April 1786, each of which was problematic. The first involved a conflict of jurisdiction with Temple, as Bond’s consular jurisdiction, the middle states, included New York, where Temple resided.9 The second appointed Bond commissary for commercial affairs within the dominions of the United States. Jay forwarded Bond’s commissions to Congress on 8 December 1786, but it was not in session and did not act on them until February 1787, when it referred them to Jay to report.10
Jay’s report of 28 March, below, reminded Congress that, as in the case of Temple, the absence of a consular treaty made admission of Bond as consul a matter of favor and expediency, not of right. Since by receiving Temple Congress had established a precedent, Jay recommended receiving Bond. He noted, however, that there was no precedent for admitting commissaries, and he recommended strongly against doing so since a commissary’s authority was undefined, and its powers appeared to place Bond “in the Capacity of a Minister.”11 Once again, Jay suggested instructing Adams to inform the King that Congress would not allow anyone but a minister to fulfill a minister’s functions.12 Congress was not of one mind about admitting Bond even as consul. Madison argued that doing so would diminish, not encourage, Britain’s willingness to conclude a commercial treaty. He considered it an indignity that Britain, which had long since admitted Adams as minister, had failed to appoint a minister to the United States. James Mitchell Varnum considered Bond’s “obnoxious” Loyalism reason enough not to admit him. Edward Carrington advocated vigilance when an insidious foe came in the garb of peace and friendship. Abraham Clark recommended that Congress postpone but not refuse recognition. His suggestion carried: Bond was not received as consul until 3 May 1787. Several months later he reported that, of the five states to which he was accredited, only Pennsylvania recognized his commission, in a “qualified manner.” Finally, on 2 September, he received assurances from Jay that he could begin to exercise his duties in the remaining middle states. He served as consul until 1812. He was never recognized as commissary for commercial affairs.13
1. See the editorial notes “The Franco-American Consular Convention, and “John Jay and Dutch Affairs,” both above.
2. David Hartley, the British negotiator, was withdrawn in the fall of 1784. See 3: 373–86, 608.
3. Otto accused Temple of seeding the press with insinuations injurious to France and prejudicial to the alliance and warned that he was attempting to irritate the French government or to incite the Americans to “violent alarms” by asserting that the recent Franco-British treaty of commerce suggested a rapprochement between the two nations. Moustier held similar suspicions. See 3: 394–95, 726; and note 6 below. For examples of attempts by consuls to enlarge their functions and privileges, see the editorial note “The Longchamps Affair,” above; and JJ’s report of 25 Sept. 1787, C, DNA: PCC, item 81, 159–62 (EJ: 3958), and C, DNA: PCC, item 124, 3: 117–20 (EJ: 4608).
4. Hutchinson’s letters to Under-secretary of State Thomas Whately suggested that the colonies could only be kept in the Empire if their rights were restrained. Although BF claimed that he alone was responsible for publishing the letters and never revealed how he had obtained them, Temple was rumored to have been involved. 2: 91; 5: 272; 11: 449–52; 15: 358, 364–65, 368, 431–32; 4: 385–88; 35, 672; 11: 859–60; 20: 101–2; 2: 587, 606, 674–75; Matthew Ridley to JJ, 2 May 1785, ALS, MHi: Ridley (EJ: 4865). On American suspicions of Temple, see the report of a committee of Congress on a letter of November 1781 from the Secretary for Foreign Affairs, 22: 101–2.
5. See 2: 722–26, 752–53; 3: 462. The British informant Peter Allaire later reported that Temple thought the post beneath him because he was a baronet.
6. See JJ to the President of Congress, 24 Nov. 1785, LS, DNA: PCC, item 80, 2: 61–64 (EJ: 163); LbkC, , 1: 511–13 (EJ: 1808); and 2: 918–19. On 25 Nov., Congress referred JJ’s letter to him to report, which he did on 28 Nov. (below). See the entries for November and December 1785 (EJ: 3757, 3758); 29: 894, 896–97; and 23: 43–45.
Otto reported that Temple, who had played a role “not agreeable to Americans during the war,” had been received with distinction, that he would live “with all the pomp of a Minister Plenipotentiary,” and that he would spend annually 4000 Louis the king accorded him to dazzle Americans by display. He also predicted that Bowdoin would support Temple on all occasions. 3: 57. For Temple’s presence at the reception accorded JA as minister to Great Britain, see the editorial note “Anglo-American Relations,” above; and JA to JJ, 2 June 1785, LS, body largely in code, with deciphered text, DNA: PCC, item 84, 5: 469–75, 477–84 (EJ: 11841); ALS (FC), marked “Duplicate,” NNGL (EJ: 90513); LbkC, with deciphered text, DNA: PCC, item 104, 5: 251–57, 258–64; C, NHi: King, 1785–87 (EJ: 638); 4: 198–203.
The ceremonies and Temple’s salary may have led some Americans to hope, as Temple himself did, that the British would eventually raise him to ministerial status. See 23: 30, 32, and 39. On 2 Dec., Congress ordered copies of its resolutions recognizing him as consul general to be transmitted to all the states. The Massachusetts delegates informed Bowdoin that recognition differed from that used for a consul received under a treaty of commerce and added that the issuing of exequatur by state executives would be unnecessary. See 29: 897–98; and 23: 44–45, 49–50. JJ informed JA and TJ that Temple had been received in letters of 5 and 7 Dec., AD, NNC (EJ: 5789); LbkC, , 164–65 (EJ: 2448); 9: 84. Temple informed Carmarthen of his reception on 7 Dec. See 2: 946.
Otto believed that the “equivocal” manner in which Congress received Temple showed that the United States “ardently” wanted to conclude an advantageous commercial treaty with Great Britain. He noted that Temple was striving to make himself popular, and was courting the Dutch minister, who distrusted his “demonstrations of amity.” He described the powers conceded Temple under the law of nations as entirely imaginary, conferring neither the jurisdiction nor the power to negotiate anything with Congress. See 2: 958–60.
7. See Temple to JJ, 21 Dec., LbkC, , 2: 41–42 (EJ: 1830); and 2: 961–62; JJ to the President of Congress, 29 Dec., LS, DNA: PCC, item 80, 2: 89–90 (EJ: 169); LbkC, , 2: 53 (EJ: 1840), JJ to Temple, 30 Dec. 1785, and 2 Jan. 1786, LbkCs, , 2: 55, 61–62 (EJ: 1842, 1847); Temple to JJ, 30 Dec., LbkC, , 2: 57–58 (EJ 1845); JJ’s report to Congress, 31 Dec. 1785, below; and JJ to JA, 2 Jan. 1786, LbkC, , 165–67 (EJ: 2449).
In his monthly report to Carmarthen of 5 Jan. 1786, Temple mentioned that the commissioners on Loyalists had asked him to obtain copies of all state acts pertaining to Loyalists and their property, which he apparently intended to travel to obtain. Congress, however, refused to permit him to travel outside his jurisdiction, and indicated that if Britain did not send a minister whose rank was equivalent to JA’s, JA would be recalled. Otto reported that, when Temple travelled to Philadelphia, he had his British passport published in the newspapers because he feared being attacked along the way. See 3: 63–64, 271; 23: 264; and 834–38. On contentions over Loyalist affairs, see 3: 265–66, 266n8; and the editorial note “Anglo-American Relations,” above; Temple to JJ, 25 Feb. 1786, LbkC, , 2: 110–13 (EJ: 1881); JJ to the President of Congress, 28 Feb. 1786, LS, DNA: PCC, item 80, 2: 161–62 (EJ: 186); and JJ’s reports to Congress of 31 Dec. 1785 and 8 Mar. 1786 (both below), in which he noted that Loyalist issues were beyond the competence of a consul general, a position he reiterated in his report to Congress of 26 May 1788, DS, DNA: PCC, item 81, 3: 63–69; LbkC, DNA: PCC, item 124, 3: 173–79 (EJ: 4625); and 3: 777–80.
8. On Britain’s refusal to negotiate a treaty of commerce with the United States and send a minister until it had demonstrated its ability to ensure that British creditors were repaid by ratifying the Constitution, and on the inclusion in the Jay Treaty of an article banning the sequestration or confiscation of public and private debts in the event of hostilities, see 53–59, 62–70, 75.
9. See Bond to Carmarthen, 26 Nov. 1786, 3: 369–70.
10. Phineas Bond Sr. (1717–73) was a distinguished medical doctor and a long-time member of the Common Council of Philadelphia, who had been closely involved in establishing the American Philosophical Society and the College of Philadelphia. The consul, Phineas Bond Jr. (1749–1815), was educated in the Academy of Philadelphia, the College of Philadelphia, and the Middle Temple in London. He was brother-in-law to General John Cadwalader. In 1775 and 1776, he served as a signer of Congress’s bills of credit. He left for England in 1778 when the British evacuated Philadelphia. He was related by marriage to David Steuart Erskine, Earl of Buchan, who informed BF that Bond had been recommended for appointment by the “united Voice of our Merchants trading to America.” Peter Allaire asserted, however, that Bond knew nothing about the “Mercantile line,” and noted that he had been trying, with his friends’ assistance, to have his attainder repealed “by the assistance of that Old Rascal Franklin, but nothing is yet done.” See Erskine to BF, 5 Sept. 1786, ALS, PPamP; “Cadwalader Family Papers,” Collection 1454 (Historical Society of Pennsylvania, 2007), 7; 3: 423; 4: 194; and 3: 462. For action on Bond’s commissions, see 3: 387–88, 431–34, 488–90; and JJ’s report of 28 Mar. 1787, below. For a detailed discussion of Bond’s appointment and consular career, see Joanne Loewe Neel, Phineas Bond: A Study in Anglo-American Relations, 1786–1812 (Philadelphia, 1968), esp. 19–80.
11. London merchants unable to collect from American debtors had recommended appointing Bond as commissary. They considered Congress ineffective and wanted someone clothed with governmental authority to present their complaints to individual states. See 3: 506–8.
12. On JJ’s objections to articles in the French consular convention that endowed consuls with ill-defined functions approximating those of an ambassador, see the editorial note “The Franco-American Consular Convention,” cited above.
13. See JJ to JA, 3 May 1787, LbkC, DNA: PCC, Foreign Letters, 252–53 (EJ: 2497); 24: 45–46, 187, 228; 32: 253–55, 275; 3: 462, 491, 540–43, 575; and “Letters of Phineas Bond, British Consul at Philadelphia, to the Foreign Office of Great Britain, 1787, 1788, 1789,” Annual Report of the American Historical Association for the Year 1896 (reprint ed., 2 vols.; Washington, D.C., 1897), 1: 536, 538–42.