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Browsing: Papers of John Adams, Volume 4


Docno: ADMS-06-04-02-0116-0003

Author: Adams, John
Author: Continental Congress
Date: 1776-08-27

II. Committee Report on A Plan of Treaties

There shall be a firm, inviolable, and universal peace, and a true and sincere friendship between A. and B.1 and the subjects of A. and of B. and between the countries, islands, cities, and towns situate under the jurisdiction of A. and of B. and the people and inhabitants thereof of every degree, without exception of persons or places; and the Terms herein after mentioned shall be perpetual between A. and B.
I. The subjects of A. shall pay no other duties or imposts in the ports, havens, roads, countries, islands, cities or towns of B. than the natives thereof or any commercial Companies established therein shall pay, but shall enjoy all other the rights, liberties, privileges, immunities and exemptions in trade, navigation and commerce, in passing from one part thereof to another, and in going to and from the same, from and to any part of the world, which the said natives or Companies enjoy.2
II. The subjects of B. shall pay no other duties or imposts in the ports, havens, roads, countries, islands, cities or towns of A. than the natives thereof or any commercial Companies established therein; but shall enjoy all other the rights, liberties, privileges, immunities and exemptions in trade, navigation and commerce in passing from one part thereof to another, and in going to and from the same from and to any part of the world, which the said natives or Companies enjoy.3
[That A <be permitted to> shall retain the same rights of fishery on the banks of Newfoundland and all other rights relating to any the said islands which he is intitled to by virtue of the treaty of Paris.]
III. A. shall endeavour by all the means in his power to protect and defend all vessels and the effects belonging to the subjects and people of B. being in his ports, havens or roads, or on the seas <, or> 4 and near to his countries, islands, cities or towns, and to recover and restore to the right owners, their agents or attornies, all such vessels and effects which shall be taken within his jurisdiction; and his ships of war or any convoys sailing under his authority shall upon all occasions take under their protection all vessels belonging to the subjects or people of B. and holding the same course or going the same way, and shall defend such vessels so long as they hold the same course or go the same { 280 } way, against all attacks, force and violence, in the same manner as they ought to protect and defend vessels belonging to the subjects or people of A.5
IV. In like manner B. and his ships of war, and convoys, sailing under his authority, shall protect and defend all vessels and effects belonging to the subjects or people of A. and endeavour to recover and restore them, if taken in his jurisdiction.
V. A. and B. shall not receive nor suffer to be received into any of their ports, havens, roads, countries, islands, cities or towns, any pirates or sea robbers, or afford or suffer any entertainment, assistance or provision to be afforded to them, but shall endeavour by all means that all pirates and sea robbers and their partners, sharers and abettors be found out, apprehended and suffer condign punishment; and all the vessels and effects piratically taken and brought into the ports and havens of A. or B. which can be found, altho' they be sold, shall be restored or satisfaction given therefor to the right owners, their agents or attornies demanding the same and making the right of property to appear by due proof.
VI. A. shall protect, defend and secure, as far as in his power the subjects or people of B. and their vessels and effects of every kind, against all attacks, assaults, violences, injuries, depredations or plunderings by or from the King or Emperor of Morocco or Fez, and the States of Algiers, Tunis and Tripoli, and any of them, and every other prince, state and power on the coast of Barbary in Africa, and the subjects of the said Kings, Emperors, &c. in as full a manner, &c.6
VII. If, in consequence of this Treaty, the——of——should declare war against A. the said B. shall not assist——with men, money, ships, or any of the articles in this treaty denominated contraband goods,7 <or in any other way. And if A. to favour the said B. shall join in the present war against——, A. shall not make a separate peace.> 8
VIII.<In case of any war between A. and——,> A. shall never invade, nor <attempt to invade, or get possession for himself>[under any pretence attempt to possess himself] of——, nor any of the countries, cities or towns, on the Continent of——, nor of the Islands of——nor any other island lying near to the said Continent, in the seas, or in any gulph, bay, or river thereof, it being the true intent and meaning of this Treaty, that the said B. shall have the sole, exclusive, undivided and perpetual possession of all the countries, cities and towns on the said Continent, and of all islands near to it, whenever the same9 <can be invaded and conquered by B. or shall in any { 281 } manner submit to or>[they] be confederated <with B>[or united with B].
IX. <Nor shall A. at any time make any claim or demands to the said countries, islands, cities and towns mentioned in the next preceding article, or any of them, or to any part thereof, for or on account of any assistance afforded to B. in attacking or conquering the same, or in obtaining such submission or confederation as has been mentioned in the preceding articles, nor on any other account whatever.> 10
X. If in any war A. shall conquer or get possession of——, now under the jurisdiction of——or any of them, or any dominions of——in——, the subjects or people of B. shall enjoy the same rights, liberties, privileges, immunities and exemptions in trade, commerce and navigation to and from the said——that are mentioned in the second article in this treaty.
XI. It is the true intent and meaning of this Treaty that no higher or other duties shall be imposed on the exportation to B. of any thing of the growth, production, or manufacture of——, now belonging or which may hereafter belong to A. than the lowest that are or shall be imposed on the exportation thereof to——or to any other part of the world.
XII. It is agreed by and between the said parties, that no duties whatever <more than [] > 11 shall ever hereafter be imposed on the exportation of——from any of the islands and dominions of A. to B.
XIII. The subjects or people of B. being merchants and residing in—— and their property and effects, shall be exempt from——.12
XIV. The merchant ship of either of the parties, which shall be making into a port belonging to the enemy of the other ally, and concerning whose voyage and the species of goods on board her there shall be just grounds of suspicion, shall be obliged to exhibit as well upon the high seas as in the ports and havens, not only her passports, but likewise certificates expressly shewing that her goods are not of the number of those which have been prohibited as contraband.
XV. If by the exhibiting of the abovesaid certificates the other party discover there are any of those sorts of goods, which are prohibited and declared contraband, and consigned for a port under the obedience of his enemies, it shall not be lawful to break up the hatches of such ship, or to open any chest, coffers, packs, casks or any other vessels found therein, or to remove the smallest parcels of her goods, whether such belong to the subjects or people of A. or B. unless the lading be brought on shore in the presence of the Officers of the { 282 } Court of Admiralty and an inventory thereof made; but there shall be no allowance made to sell, exchange, or alienate the same in any manner until after that due and lawful process shall have been had against such prohibited goods, and the Court of Admiralty shall, by a sentence pronounced, have confiscated the same, saving always as well the ship itself as any other goods found therein, which by this Treaty are to be esteemed free; neither may they be detained on pretence of their being as it were infected by the prohibited goods, much less shall they be confiscated as lawful prize; but if not the whole cargo, but only part thereof, shall consist of prohibited or contraband goods, and the Commander of the ship shall be ready and willing to deliver them to the captor, who has discovered them, in such case the captor, having received those goods, shall forthwith discharge the ship and not hinder her by any means freely to prosecute the voyage on which she was bound.
XVI. On the contrary it is agreed, that whatever shall be found to be <taken> 13 laden by the subjects or people of either party on any ship belonging to the enemy of the other or to his subjects, although it be not of the sort of prohibited goods, may be confiscated in the same manner as if it belonged to the enemy himself; except such goods and merchandizes as were put on board such ship before the declaration of war, or even after such declaration, if so be it were done without the knowledge of such declaration. So that the goods of the subjects and people of either party, whether they be of the nature of such as are prohibited or otherwise which, as is aforesaid, were put on board any ship belonging to an enemy before the war, or after the declaration of it without knowledge of it, shall nowise be liable to confiscation, but shall well and truly be restored without delay to the proprietors demanding the same; but so as that if the said merchandizes be contraband, it shall not be any ways lawful to carry them afterwards to any ports belonging to the enemy.
XVII. And that more effectual care may be taken for the security of the subjects and people of both parties, that they suffer no injury by the men of war or privateers of the other party, all the Commanders of the ships of A. and of B. and all their subjects and people shall be forbid doing any injury or damage to the other side; and if they act to the contrary, they shall be punished, and moreover shall be bound to make satisfaction for all matter of damage and the interest thereof, by reparation, under the pain and obligation of their person and goods.
XVIII. All ships and merchandizes, of what nature soever, which shall be rescued out of the hands of any pirates or robbers on the high { 283 } seas, shall be brought into some port of either state, and shall be delivered to the custody of the Officers of that port, in order to be restored entire to the true proprietor as soon as due and sufficient proof shall be made concerning the property thereof.
XIX. It shall be lawful for the ships of war of either party, and privateers, freely to carry whither soever they please the ships and goods taken from their enemies, without being obliged to pay any duty to the Officers of the Admiralty or any other judges; nor shall such prizes be arrested or seized where they come to, and enter the ports of either party; nor shall the Searchers or other Officers of those places search the same, or make examination concerning the lawfulness of such prizes; but they may hoist sail at any time and depart and carry their prizes to the place expressed in their commissions, which the commanders of such ships of war shall be obliged to shew: On the contrary, no shelter or refuge shall be given in their ports to such as shall have made prizes of the subjects, people or property of either of the parties; but if such should come in, being forced by stress of weather or the danger of the sea, all proper means shall be vigorously used, that they go out and retire from thence as soon as possible.
XX. If any ships belonging to either of the parties, their subjects or people, shall within the coasts or dominions of the other stick upon the sands or be wrecked, or suffer any other damage, all friendly assistance and relief shall be given to the persons shipwrecked or such as shall be in danger thereof; and letters of safe conduct shall likewise be given to them for their free and quiet passage from thence, and the return of every one to his own country.
XXI. In case the subjects and people of either party with their shipping, whether publick and of war or private and of merchants, be forced through stress of weather, pursuit of pirates or enemies, or any other urgent necessity, for seeking shelter and harbour to retreat and enter into any of the rivers, creeks, bays, havens, roads, ports or shores belonging to the other party, they shall be received and treated with all humanity and kindness, and enjoy all friendly protection and help; and they shall be permitted to refresh and provide themselves at reasonable rates with victuals and all things needful for the sustenance of their persons or reparation of their ships and conveniency of their voyage; and they shall no ways be detained or hindered from returning out of the said ports or roads, but may remove and depart when and whither they please, without any lett or hindrance.
XXII. The subjects, inhabitants, merchants, commanders of ships, master and mariners of the states, provinces and dominions of each { 284 } party respectively, shall abstain and forbear to fish in all places possessed, or which shall be possessed, by <one or> the other party. A.'s subjects shall not fish in the havens, bays, creeks, roads, coasts or places which B. holds or shall hereafter hold; and in the like manner the subjects and people of B. shall not fish in the havens, bays, creeks, roads, coasts or places which A. possesses or shall hereafter possess; and if any ship or vessel shall be found fishing, contrary to the tenor of this Treaty, the said ship or vessel, with its lading, proof being made thereof, shall be confiscated.14
XXIII. For the better promoting of commerce on both sides it is agreed, that if a war shall break out between the said two nations, six months after the proclamation of war shall be allowed to the merchants in the cities and towns where they live, for settling and transporting their goods and merchandizes; and if any thing be taken from them or any injury be done them within that term by either party or the people or subjects of either, full satisfaction shall be made for the same.
XXIV. No subjects of A. shall apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against B. or the subjects or people of B. or any of them, or the property of any of them, from any prince or state with which B. shall be at war: Nor shall any citizen or subject of B. apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the subjects or people of A. or any of them, or the property of any of them, from any prince or state with which A. shall be at war: And if any person of either nation shall take such commission or letters of marque, he shall be punished as a pirate.
XXV. It shall not be lawful for any foreign privateers not belonging to the subjects or people of A. or of B. who have commissions from any other prince or state in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other manner whatsoever to exchange either ships, merchandizes or any other lading; neither shall they be allowed even to purchase victuals, except such as shall be necessary for their going to the next port of that prince or state from which they have commissions.
XXVI. It shall be lawful for all and singular the subjects and people of A. and B. to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandizes, laden thereon from any port to the places of those who now are or hereafter shall be at enmity with A. or B. It shall likewise be lawful for the subjects and people aforesaid to sail with the ships { 285 } and merchandizes aforementioned, and to trade with the same liberty and security from the places, ports and havens of those who are enemies of both or either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same prince or under several: And it is hereby stipulated that free ships shall also give a freedom to goods, and that every thing shall be deemed to be free and exempt, which shall be found on board the ships belonging to the subjects of either of the Confederates; although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted. It is also agreed in like manner that the same liberty be extended to persons who are on board a free ship with this effect, that although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies.
XXVII. This liberty of navigation and commerce shall extend to all kinds of merchandizes, excepting those only which are distinguished by the name of contraband; and under the name of contraband or prohibited goods shall be comprehended arms, great guns, bombs, with their fuzes and other things belonging to them, fire-balls, gunpowder, match, cannon balls, pikes, swords, lances, spears, halberts, mortars, petards, granadoes, salt-petre, muskets, musket balls, helmets, head-pieces, breast-plates, coats of mail, and like kinds of arms proper for arming soldiers, musket-rests, belts, horses with their furniture, and all other warlike instruments whatever. These merchandizes which follow shall not be reckoned among contraband or prohibited goods, that is to say, all sorts of cloths, and all other manufactures woven of any wool, flax, silk, cotton or any other materials whatever <indigo and all other materials for dying> 15; all kinds of wearing apparel, together with the species whereof they are used to be made; gold and silver as well coined as uncoined, tin, iron, lead, copper, brass, coals; as also wheat and barley, and any other kind of corn and pulse; tobacco and likewise all manner of spices; salted and smoked flesh, salted fish, cheese and butter, beer, oils, wines, sugars, and all sorts of salt; and in general all provisions, which serve for the nourishment of mankind and the sustenance of life; furthermore all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, sails, sail-cloth, anchors and any parts of anchors; also ship-masts, planks, boards, and beams of what trees soever, and all other things proper either { 286 } for building or repairing ships, and all other goods whatever which have not been worked into the form of any instrument or thing prepared for war by land or by sea shall not be reputed countraband, much less such as have been already wrought and made up [f]or any other use; all which shall wholly be reckoned among free goods; as likewise all other merchandizes and things, which are not comprehended and particularly mentioned in the foregoing enumeration of contraband goods, so that they may be transported and carried in the freest manner by the subjects of both Confederates even to places belonging to an enemy, such towns or places being only excepted, as are at that time besieged, blocked up or invested.
XXVIII. To the end that all manner of dissensions and quarrels may be avoided and prevented on one side and the other, it is agreed, that in case either of the parties hereto shall be engaged in war, the ships and vessels belonging to the subjects and people of the other ally must be furnished with sea letters or passports expressing the name, property, and bulk of the ship, as also the name and place of habitation of the master or commander of the said ship, that it may appear thereby, that the ship really and truly belongs to the subjects of one of the parties; which passport shall be made out and granted according to the form annexed to this Treaty; they shall likewise be recalled every year, that is, if the ship happens to return home within the space of a year. It is likewise agreed, that such ships being laden are to be provided not only with passports as above mentioned, but also with certificates containing the several particulars of the cargo, the place whence the ship sailed and whither she is bound; that so it may be known whether any forbidden or contraband goods be on board the same; which certificates shall be made out by the officers of the place whence the ship set sail in the accustomed form; and if any one shall think it fit or adviseable to express in the said certificates the person to whom the goods on board belong, he may freely do so.
XXIX. The ships of the subjects or people of either of the parties coming upon any coast belonging to either of the said allies, but not willing to enter into port, or being entered into port and not willing to unload their cargoes or break bulk, shall not be obliged to give an account of their lading, unless they should be suspected upon some manifest tokens of carrying to the enemy of the other ally any prohibited goods called contraband; and in case of such manifest suspicion, the said subjects or people of either of the parties shall be obliged to exhibit in the ports, their passports and certificates in the manner before specified.
{ 287 }
XXX. If the ships of the said subjects or people of either of the parties shall be met with either sailing along the coasts or on the high seas by any ship of war of the other, or by any privateers, the said ships of war or privateers, for the avoiding of any disorder, shall remain out of cannon shot, and may send their boats aboard the merchant ship which they shall so meet with, and may enter her to the number of two or three men only, to whom the master or commander of such ship or vessel shall exhibit his passport concerning the property of the ship, made out according to the form inserted in this present Treaty; and the ship, when she shall have shewed such passport, shall be free and at liberty to pursue her voyage, so as it shall not be lawful to molest or search her in any manner, or to give her chase, or force her to quit her intended course.
[It is also agreed that all goods when once put on board the ships or vessels of either parties shall be subject to no farther visitation; <or search> but all visitation or search shall be made before hand and all prohibited goods shall be stopped on the spot before the same be put on board the ships or vessels of the respective state: nor shall either the persons or goods of the subjects of his most Christian Majesty, or the united States be put under any arrest or molested by any other Kind of Embargo for that cause; and only the subject of that State to whom the said goods have been or shall be prohibited and shall presume to sell or alienate such sort of goods shall be duly punished for the offence.] 16
Form of the Passports and Letters which are to be given to the ships and barks which shall go according to the [] Article of this Treaty:
TO ALL who shall see these presents, Greeting: It is hereby made known, that leave and permission has been given to——master and commander of the ship called——of the town of——burthen——tons or thereabouts, lying at present in the port and haven——and bound for——and laden with——after that his ship has been visited and before sailing he shall make oath before the Officers who have the jurisdiction of maritime affairs, that the said ship belongs to one or more of the subjects of——the act whereof shall be put at the end of these presents; as likewise, that he will keep and cause to be kept by his crew on board, the Marine Ordinances and Regulations, and enter in the proper office a list signed and witnessed of the crew of his ship and of all who shall embark on board her, whom he shall not take on board without the knowledge and permission of the Officers of the Marine; and in every port or haven where he shall enter with his ship { 288 } he shall shew this present leave to the Officers and Judges of the Marine, and shall give a faithful account to them of what passed and was done during his voyage, and he shall carry the colors, arms and ensigns of——during his voyage. In Witness whereof we have signed these presents and put the seal of our arms thereunto, and caused the same to be countersigned, by——at——the—day of—, A.D.—.
Form of the Act containing the Oath
WE——, of the Admiralty of——, do certify, that——master of the ship named in the above passport hath taken the oath mentioned therein. Done at——, the——, day of——, A.D.
Form of the Certificate to be required of and to be given by the Magistrates or Officers of the Customs of the town and port in their respective towns and ports to the ships and vessels which sail from thence, according to the directions of the——Article of this present Treaty.
WE——, Magistrates (or Officers of the Customs) of the town and port of——, do certify and attest, that on the——day of the month of——, in the year of our Lord——, personally appeared before us——of——, and declared by a solemn oath that the ship or vessel called——of about——tons, whereof——of——his usual place of habitation, is master or commander, does rightfully and properly belong to him and other subjects of——and to them alone, that she is now bound from the port of ——to the port of——, laden with the goods and merchandizes here—under particularly described and enumerated, that is to say as follows——
In witness whereof we have signed this certificate, and sealed it with the seal of our office. Given the——day of the month of——in the year of our Lord——.
MS not found. Reprinted from copy in (PCC, No. 47;) docketed in the hand of Charles Thomson: “Plan of treaties gone through in comee. of the whole Aug. 27. 1776 & recommended, that instructions may be drawn conformable thereto. Aug. 29 1776 The Comee. farther impowered to prepare such instructions as to them shall seem proper & make report thereof to Congress.”
This copy of the treaty plan was printed for the use of the members of the congress exclusively and was not circulated outside that body. The document here printed was that used by Thomson to record changes made in the plan during debate. The additions made are inserted at the points indicated by Thomson and are set off with double parentheses. On another copy, also in PCC, No. 47, James Wilson made notes relating to the instructions that his committee would be writing.
{ 289 }
1. An immediately perceived difference between the printed report and JA 's draft is the absence of the names of the parties to the proposed treaty: “A” for France and “B” for the United States were substituted. The change was ordered on 20 July, when the congress resolved that the committee's report should be printed “under the restrictions and regulations prescribed for printing the plan of confederation.” That is, only eighty copies were to be printed, one going to each member; the printer was to be under oath to deliver all the printed copies, together with the copy sheets, to the secretary of the congress; and no member was to furnish any person with his copy or make any effort to have it reprinted ( JCC , 5:594, 555—556). Despite these stringent precautions, the copy from which the printer worked is not among the papers of the congress, as mentioned earlier. These regulations reflected the continuing desire of the congress for secrecy and probably also the conviction that although France was the obvious choice for such a treaty, the premature and unofficial disclosure of plans for such an agreement would cause problems among the American people and place obstacles in the way of future negotiations. The lengths to which the congress went to preserve secrecy and avoid problems are apparent in Arts. 6, 12, and 13. See notes 6, 11, and 12 (below). The decision not to have printed the treaty plan as finally adopted thus becomes understandable.
2. In the margin is the notation “Agreed.” For the remaining articles, with the exception of 7, 8, and 9, Thomson indicated adoption by writing “pass'd” beside Arts. 2 through 6 and “agreed” beside Arts. 10 through 30.
3. In the margin beside Art. 2 is the notation: “The additional Resolution to follow this article.” The addition, which follows in parentheses, was at the bottom of the page. In the treaty plan as adopted it became Art. 3. It refers to Arts. V and VI of the Definitive Treaty of Peace signed by Great Britain, France, and Spain at Paris on 10 Feb. 1763 that ended the Seven Years' War. These articles confirmed French fishing rights on Newfoundland and ceded to France the islands of St. Pierre and Miquelon as places of refuge for its fishermen. The passage as written by Thomson has “be permitted to” underlined; it was apparently meant to be canceled, for it does not appear in Art. 3 of No. III (below).
4. This change from “or” to “and” does not appear in the corresponding Art. 4 of No. III (below). This may be because the “and,” inserted by Thomson in the form of a very faint “&,” was not noticed when the plan was put into its final form.
5. In the margin is a notation that has been canceled: “A Resolution of [ . . . ] subjoined to this Article.” What the resolution was remains undetermined.
6. In the margin is the notation: “Pass'd with an additional R.” It refers to the omission of the remainder of this article as it appears in both JA 's draft and the treaty plan as adopted (Art. 6 in No. I, above, and Art. 7 in No. III, below). Calling on “A” to protect American shipping from the Barbary pirates as satisfactorily as Britain had done in the past hardly accorded with the spirit of the Declaration of Independence. Such a demand was certain to provoke controversy if it came to the attention of the public. Keeping it out of print but retaining it for negotiations that would be in the American interest must have seemed prudent.
7. In the margin is the canceled notation: “P[ost] P[oned] for consideration.”
8. Although this canceled provision would seem necessary if France was to give aid and possibly enter the war, it may have seemed inappropriate for a commercial treaty. Such a provision did become part of the Franco-American Treaty of Alliance of 1778.
9. Failure to cancel “the same” was an inadvertence.
10. This article was probably canceled because Art. 22 made it redundant and it would be an unnecessary irritant to France in any negotiations.
11. In JA 's draft this phrase appeared as “more than [] Per Gallon.” Because “more than” is canceled on the draft and is omitted from the plan as adopted, its appearance here and subsequent deletion indicates that it was done during the congressional debates rather than { 290 } earlier by JA or the committee and that his cancellation on the draft was a result of this later action. See No. I, note 10 (above). The decision “that no duties whatever” were to be imposed on molasses was probably a concession to New England as well as other sections where molasses was important for the rum distilleries.
The removal of the word “molasses,” which had appeared in JA 's draft, from this article is also significant. Since molasses was a valuable import from the French islands, leaving out the word may have been intended as an effort to conceal the name of the intended party to the treaty in keeping with other such efforts in the printed version.
12. The omission here of Droit d'Aubaine is meant to conceal the participation of France in the treaty.
13. A printing error.
14. In the margin is the notation: “to be transposed and placed so as immediately follow the 8th.” In the treaty plan as adopted this provision became Art. 10 rather than 9 because of the addition of a new Art. 3.
15. This phrase was written in the margin for inclusion at this point, perhaps to appeal to indigo growers. It may have been canceled because on such an important subject as contraband and noncontraband, the congress decided not to depart from the text of the Treaty of Utrecht.
16. This, the longest addition to the treaty plan, was written in the margin for inclusion here. See No. I, note 20 (above).