After establishing in favor of consuls, the general immunities of the law of nations, one consequence of which would have been, that they could not have been called upon to give testimony in courts of justice, the fifth article requires, that after the observance of certain formalities, which imply very high respect, they shall make a declaration; but in their own houses [chez eux] as may be pretended, if not justly inferred, from the expressions in the article.  But our laws require, indispensably, a personal examination of witnesses in the presence of the parties, of their counsel, the jury, and judges, each of whom has a right to ask of them all questions pertinent to the fact.  The first and highest officers of our government are obliged to appear personally to the order of a court, to give evidence.  The court takes care that they are treated with respect.  It is proposed, therefore, to omit this article for these particular reasons, as well as for the general one, that the fourth being expunged, this, which was but an exception to that, falls of course.

The seventh, eighth, tenth, and fourteenth articles extend their pre-eminences far beyond those, which the laws of nations would have given.  These articles require that the declarations made in the presence of consuls, and certified by them, shall be received in evidence in all courts whatever:  and, in some instances, give to their certificates a credibility which excludes all other testimony.  The cases are rare, in which our laws admit written evidence of facts; and such evidence, when admitted, must have been given in the presence of both parties, and must contain the answers to all the pertinent questions, which they may have desired to ask of the witness:  and to no evidence, of whatever nature, written or oral, do our laws give so high credit, as to exclude all counter-proof.  These principles are of such ancient foundation in our system of jurisprudence, and are so much valued and venerated by our citizens, that perhaps it would be impossible to execute articles, which should contravene them, nor is it imagined that these stipulations can be so interesting to this country, as to balance the inconvenience and hazard of such an innovation with us.  Perhaps it might be found, that the laws of both countries require a modification of this article; as it is inconceivable that the certificate of an American consul in France could be permitted by one of its courts to establish a fact, the falsehood of which should be notorious to the court itself.

The eighth article gives to the consuls of either nation a jurisdiction, in certain cases, over foreigners of any other.  On a dispute arising in France, between an American and a Spaniard or an Englishman, it would not be fair to abandon the Spaniard or Englishman to an American consul.  On the contrary, the territorial judge, as neutral, would seem to be the most impartial.  Probably, therefore, it will be thought convenient for both parties, to correct this stipulation.