4. Notification to the Commissioners of the congress' ratification of the Franco-American treaties on 4 May was delayed because of the difficulty in obtaining a secure means to transmit the treaties to Europe and the need to make copies of the documents. Although the treaties were initially approved without reservation, apprehensions about the effect of Arts. 11 and 12, both dealing with the West Indian trade, led the congress to resolve on 5 May that the two articles should be deleted (
, 11:457, 459–460; Miller, ed., Treaties
, 2:10–11; see also Jonathan Trumbull to the Commissioners, 29 May, note 1
The decision of the congress, motivated by the belief that the two articles were not reciprocal, can be traced to the divergence between the provisions of the Plan of Treaties of 1776 and the terms of the Treaty of Amity and Commerce. In the treaty plan, Arts. 12 and 13 dealt with the West Indies, the first prohibiting higher export duties on the produce of the West Indies sent to the United States than were laid on that destined for France; and the second removing any duties on molasses exported from the West Indies to the United States. The instructions to the American negotiators provided, however, that the two articles could be waived because “France was unlikely to accept the equality in colonial trade proposed in Art. 12, and there were uncertainties about Art. 13” (vol. 4:293
and note 5
As the congress expected, France refused to accept Art. 12 of the treaty plan, but did agree to Art. 13, which was incorporated into the Treaty of Amity and Commerce as Art. 11. In return, France insisted on inserting, as Art. 12 of the treaty, the provision that Frenchmen would pay no export duties on goods sent from the United States for the use of the French islands (Miller, ed., Treaties
, 2:10–11). This concession was unacceptable because, according to a portion of the congressional resolve of 5 May that was deleted during the debate, “dissentions” might result from the right of France to levy export duties on West Indian produce sent to the United States although the United States could not do the same for American produce sent to the French islands (
, 11:459–460). Since Art. 12 was the quid pro quo for Art. 11, it was necessary that both be removed.
A more explicit objection than was contained in this letter or the resolution of 5 May appeared in a letter from the Committee for Foreign Affairs, Instruction No. 8, of 15 May (PPAmP
: Franklin Papers; Wharton, ed., Dipl. Corr. Amer. Rev.
, 2: 582–584). In that letter Lovell and R. H. Lee stated that “in addition to what is mentioned in our Letter No.  respecting the 11th and 12 Articles we observe that the 12th is capable of an interpretation and misuse, which was probably not thought of at the Time of Constructing it, which is, that it opens a door for all or a great part of The Trade of America to be carried thro the french Islands to Europe, and puts all future regulations out of our Power, either of Imposts or Prohibition, which tho' We might never find our Interest to use, yet it is by keeping those in our Power, that will hereafter enable us to preserve equality with, and regulate the Imposts of The Countries we trade with. The General Trade of France is not under the like restriction; Every Article on our part being Staked against the Single Article of Molasses on theirs—Therefore the Congress thinks it more liberal and Consistent that both Articles should be expunged.”
Although not stated, the desire to avoid sectional conflict may have been an additional reason for the deletion of the arti•
cles. Because Art. 11 was almost identical to Art. 13 of the Plan of Treaties, it would likely have been acceptable if Art. 12 of the French Treaty had not been included, for while it favored the molasses-importing states, notably New England, it did not adversely affect the other colonies. Art. 12, however, altered the situation because it prevented those colonies exporting goods to the West Indies, mainly the middle and southern colonies which were sources of foodstuffs, from imposing export duties and thus regulating trade.
France agreed to the American proposal, and on 2 Nov. declarations, which were formally dated 1 Sept., were exchanged deleting Arts. 11 and 12 from the Treaty of Amity and Commerce. For the declarations and the effect that the deletion of the two articles had on the numbering of the remaining articles, see Miller, ed., Treaties
, 2:32–34. See also the Commissioners to the Committee for Foreign Affairs, 29 July