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Browsing: Papers of John Adams, Volume 4


Docno: ADMS-06-04-02-0116

Plan of Treaties

DocGroupNo:

12 June–17 September 1776

I. A PLAN OF TREATIES [ANTE 18 JULY 1776]
II. COMMITTEE REPORT ON A PLAN OF TREATIES [27 AUGUST 1776]
III. PLAN OF TREATIES AS ADOPTED (WITH INSTRUCTIONS) [17 SEPTEMBER 1776]

Docno: ADMS-06-04-02-0116-0001

Editorial Note

The Plan of Treaties of 1776 had its origin in a resolution of the Continental Congress on 11 June. Coming on the day following the resolution to appoint a committee to prepare a declaration of independence, it stated that a committee should be named “to prepare a plan of treaties to be proposed to foreign powers.” The next day John Dickinson, Benjamin Franklin, John Adams, Benjamin Harrison, and Robert Morris were appointed to undertake the task. On 18 July the plan was reported to Congress, and two months later, on 17 September, the treaty plan was adopted and incorporated into instructions for the American representatives in Europe (JCC, 5:431, 428–429, 433, 575, 768, 813).
The Plan of Treaties was the work of John Adams, and of all the documents composed by him during his career in the congress, it was perhaps the most important and certainly had the most lasting effect. It was the first major state paper dealing with the conduct of the United States toward other sovereign states. It would guide the makers of American foreign policy far beyond the exigencies of the Revolution. Indeed, its tone and the principles on which it was based lie at the core of almost all major pronouncements on foreign policy by American statesmen from that time until at least the beginning of World War II.
In his Autobiography, Adams states that in the committee's deliberations over the Plan of Treaties, he “contended for the same Principles, which I had before avowed and defended in Congress.” His claim is supported by an entry in his Diary for March–April 1776, a period during which overtures to France were recurrently debated in Congress. There Adams set down the principle that he believed should guide any attempt to form a Franco-American treaty: that is, that there should be only a commercial connection, with no political or military ties (Diary and Autobiography, 3:337; 2:236; see also JA to John M. Jackson, 30 Dec. 1817, JA, Works, 10:269–270). It was Adams' strong advocacy of a treaty that probably brought him the task of drafting the plan, for he had come to see an intimate connection between independence and an “alliance.” As he { 261 } championed the first, he strove mightily for the second. It is perhaps not too strong to say that by June, as he was in the midst of drafting the Plan of Treaties, Adams had come to believe that independence was necessary if a treaty was to be negotiated, but that a treaty was necessary if independence was to be maintained (see JA to Charles Lee, 13 Oct. 1775; JA to John Winthrop, 12 May; JA to Patrick Henry, 3 June, all above; JA to John Winthrop, 23 June, below).
Two principles guided Adams as he drafted the Plan of Treaties: that it would be with France and that it would be a commercial agreement. That France was the obvious choice for a treaty was clear to all, since it was the only European power with the resources to provide the needed aid. Further, France was still unreconciled to defeat in the Seven Years' War and suffering the humiliation of a subordinate role to Great Britain in the European political arena. Although a treaty with France would go in the face of ingrained American prejudices against Roman Catholicism, deepened in France's case by the long history of Anglo-French conflict in North America, the advantages would outweigh the disadvantages. In Articles 8 and 9 of the draft Adams took care to insure that France would be prohibited from establishing itself once again on the American continent and thereby posing a threat to American independence.
Yet the Plan of Treaties was first and foremost a commercial agreement. Adams strongly believed that the right to trade with the United States was sufficient compensation for any aid given to it, even if the act of providing aid involved the other nation in a war with Great Britain. Such treaties were in the interest of the United States because they avoided a political or military alliance that “might embarrass Us in after times and involve Us in future European Wars,” thus compromising the true policy of the new country, perfect neutrality (Diary and Autobiography, 2:236; 3:337–338; see JA to James Warren, 16 April, above; JA to John Winthrop, 23 June, below).
The commercial provisions of the treaty plan had several facets. First, although free trade may have been an ultimate goal, the plan provided not so much for that as for an equality of trade. Americans were to pay no higher duties on imports into France than natives of that country and vice versa. Equally important, the same principle applied to France's colonial possessions. Second, the treaty provided for a limited list of wartime contraband and the principle that free ships make free goods. Thus a strong basis for future American neutrality was laid down, since a neutral nation, by definition, would want contraband limited as much as possible and non-contraband goods, regardless of their ownership, free from seizure when carried by its ships.
These provisions, certainly in the interest of the United States, were also seen as offering advantages to France that would induce it to sign the treaty and provide aid without demanding a military or political alliance. In any future war with Great Britain it was likely that the French Navy would be rendered relatively impotent, as had been the case in the past, { 262 } with the result that French colonial trade would be cut off. A neutral America, supporting the provisions contained in the treaty plan, would be of immense benefit to France by taking over its carrying trade and mitigating for it the consequences of British naval superiority. In addition, though not necessarily considered by Adams as he drafted his plan, if this treaty opened French colonial trade to the United States in time of peace, it could avoid in wartime collision with the British Rule of 1756. In its simplest form, this rule declared that opening in time of war trade that was forbidden during peace (a common French practice in regard to its colonial trade) was illegal. Neutral ships violating the rule were subject to seizure.
Adams states in his Autobiography that “the Committee after as much deliberation upon the Subject as they chose to employ, appointed me, to draw up a Plan and Report” (Diary and Autobiography, 3:338). With that mandate and his own clear conception of what the treaty should include, he set to work, producing a draft made up of two distinct parts.
The first section, Articles 1 through 13, was apparently written almost entirely by Adams with occasional references to the third volume of A Collection of State Tracts Publish'd . . . during the Reign of King William III. To which is Prefix'd The History of the Dutch War in 1672, 3 vols., London, 1705–1707, and to [Alexander Justice], A General Treatise of the Dominion of the Sea: And a Compleat Body of the Sea-Laws . . . To which is subjoin'd, An Appendix concerning the present State and Regulations of the Admiralty and Navy, London, 1709?, both of which works are cited in marginal notes opposite the preamble and Article 5 of the draft (see No. I, notes 1 and 6, below). The pages referred to in these notes contain treaty articles that seem appropriate to Adams' purpose, and he incorporated some of their language into the articles he drafted for the treaty plan. In regard to the first thirteen articles, however, the two volumes seem to have been used by Adams as guides to the proper forms for composing treaty provisions rather than as sources for complete articles, taken verbatim from existing treaties and changed only to fit American needs.
For the remaining seventeen articles, together with the passport and certificates appended at the end of the treaty plan, we know that Adams copied appropriate articles from treaties contained in a particular collection: Henry Edmunds and William Harris, comps., A Compleat Collection of All the Articles and Clauses which Relate to the Marine, in the Several Treaties Now Subsisting Between Great Britain, and Other Kingdoms and States, To which is Prefixed a Preface or Introductory Discourse, London, 1760 (see No. I, notes 11, 17, and 18, below). The copy that Adams used was lent to him: “Franklin had made some marks with a Pencil against some Articles in a printed Volume of Treaties, which he put into my hand” (Diary and Autobiography, 3:338). The Houghton Library of Harvard University now owns Franklin's copy of A Compleat Collection, and in it various treaty articles have an “X” beside them. Moreover, the { 263 } page numbers cited opposite Articles 24 and 25 of the draft are those for the corresponding articles copied by Adams from this book.
This volume, which almost certainly came to Adams in the midst of his labors, was a godsend, enabling him to speed the drafting process. That he had not possessed it earlier is suggested by his using State Tracts and Sea Laws for the first thirteen articles. A Compleat Collection was more appropriate to his needs, for two of the treaties consulted in State Tracts and Sea Laws were also included in A Compleat Collection. It is reasonable to suppose that if Adams had possessed the latter sooner he would have followed for the earlier articles the same practice that he used for the remaining ones, that is, verbatim copying. Even though the substance of the first thirteen articles, which deal largely with the interests of the United States, did not in every case lend itself to coverage by articles simply copied from other treaties, the alterations required would have taken less time than drafting each article individually.
The process by which Adams drafted Articles 14 through 30, with the accompanying passport and certificates, is significant for revealing his intentions. From Article 14 on, the provisions of the treaty plan were copied from three existing agreements between Great Britain and France, especially the commercial treaty concluded at Utrecht in 1713. Franklin had marked three treaties between Great Britain and Spain, but Adams' object was probably to choose articles to which France was already a party, thereby making it easier for her to accept the Plan of Treaties as it was rather than insist on different articles that might compromise American interests. Whether Adams had it in mind or not, his draft was essentially a transformation of existing Anglo-French agreements into Franco-American treaties and for France amounted merely to a reratification of them in favor of the United States.
Adams' draft of the Plan of Treaties served as the basis for the report made to Congress on 18 July (see No. I, descriptive note, below). The differences between the draft and the report as ordered printed on 20 July (JCC, 5:594; No. II, below) indicate that the committee in debating the draft made additions and deletions. The Plan of Treaties as adopted by the congress (No. III, below) emerged from debates on 22 and 27 August, when it was referred back to the original committee enlarged by the addition of Richard Henry Lee and James Wilson (JCC, 5:696, 709–710). The expanded committee put the plan into its final form; yet when adopted on 17 September, the treaty plan differed little in its essentials from Adams' original draft.
The adoption of the Plan of Treaties did not, however, end Adams' worries. Much depended on the instructions that were to guide the American negotiators in Europe, for if these differed markedly from the principles set down in the plan, Adams would have labored in vain. It is not known to what extent Adams participated in the expanded committee's deliberations, but the instructions which were adopted on 24 September and which dealt specifically with Articles 1, 2, 4, 7, 8, 12, 13, 14, 16, 25, and 26 { 264 } { 265 } did not, with three important exceptions, conflict with the plan as drafted (JCC, 5:813–817). The exceptions are discussed in No. III, notes 2, 6, and 8 (below).
The editors have included the adopted version of the treaty plan, even though its inclusion adds to the repetition of text, because it has never been printed exactly as written (compare the version in JCC, 5:768–779, with No. III, below) and because notes that relate the instructions to its provisions can be provided without the clutter of notes on textual changes. The version printed in Journals of the Continental Congress, 5:576–589, seems to be a conflation of Adams' draft and the printed committee report.
Although the Treaty of Amity and Commerce concluded between the United States and France on 6 February 1778 differed from the Plan of Treaties in some ways, it clearly reflected the principles set down by John Adams. The accompanying Treaty of Alliance, however, did not (Miller, ed., Treaties, 2:3–29, 35–41). A political and military alliance had been no part of Adams' plan, and its conclusion undoubtedly colored his later attitude toward both France and Benjamin Franklin. Indeed, Franklin's part in the negotiation of 1778 probably accounts for Adams' assessment of him in the Autobiography: “Franklin although he was commonly as silent on committees as in Congress, upon this Occasion, ventured so far as to intimate his concurrence with me in these Sentiments [that there should be only a commercial connection with France], though as will be seen hereafter he shifted them as easily as the Wind ever shifted: and assumed a dogmatical Tone, in favour of an Opposite System” (Diary and Autobiography, 3:338).
In 1776, however, Adams could look upon the adoption of the treaty plan as a victory. He had drafted it and defended it in the congress, and in the end, “the Treaty passed without one Particle of Alliance, exclusive Priviledge, or Warranty” (same, 3:338). It was his plan that would guide the American negotiators when for the first time the United States exercised the most fundamental right of sovereignty, the conclusion of a treaty with another sovereign state.

Docno: ADMS-06-04-02-0116-0002

Author: Adams, John
Author: Continental Congress
Date: 1776-06-18

I. A Plan of Treaties

There Shall be a firm, inviolable, and universal Peace, and a true and Sincere Friendship between the most Serene and mighty Prince, Lewis the Sixteenth, the most Christian King his Heirs and Successors, and the united States of America; and the Subjects of the most Christian King, and of the Said States; and between the Countries, Islands, Cities, and Towns Situate under the Jurisdiction of the most Christian King and of the Said united States, <and every of them> and the People and Inhabitants thereof of every degree; without Exception of Persons or Places; and the Terms hereinafter mentioned Shall be per• { 266 } petual between the most Christian King, his Heirs and successors, and the Said united States.1
Art. 1. The Subjects of the most Christian King Shall pay no other Duties or Imposts in the Ports, Havens, Roads, Countries, Islands, Cities, or Towns of the Said united States, or any of them, than the Natives thereof, or any Commercial Companies established by them or any of them, Shall pay, but Shall enjoy all other the Rights, Liberties, Priviledges, 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
Art. 2 The Subjects, People and Inhabitants of the Said united States and every of them Shall pay no other Duties, or Imposts in the Ports, Havens, Roads, Countries, Islands, Cities, or Towns of the most Christian King, than the Natives of Such Countries, Islands, Cities, or Towns of France, or any commercial Companies established by the most Christian King Shall pay, but shall enjoy all other the Rights, Liberties, Priviledges, 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
Art. 3. The most Christian King Shall endeavour, by all the Means in his Power to protect and defend all Vessells, and the Effects belonging to the Subjects People, or Inhabitants of the Said united States, or any of them, being in his Ports, Havens, or Roads, or on the Seas, <and> near to his Countries, Islands, Cities, or Towns, and to recover and restore, to the right owners, their Agents or Attornies, all Such Vessells, 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 Vessells belonging to the Subjects, People or Inhabitants of the Said united States, or any of them, and holding the Same Course, or going the Same Way, and shall defend Such Vessells as long as they hold the Same Course, or go the same Way, against all Attacks, Force, and Violence, in the Same manner, as they ought to protect and defend Vessells belonging to the Subjects of the most Christian King.4
Art. 4. In like manner the Said united States, and their Ships of War and Convoys Sailing under their Authority Shall protect and defend all Vessells and Effects belonging to the Subjects of the most Christian King, and endeavour to recover and restore them, if taken within the Jurisdiction of the Said united States, or any of them.5
{ 267 }
Art. 5. The most Christian King and the Said united States 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 Pyrates, and Sea Robbers, and their Partners, Sharers, and Abettors be found out, apprehended, and Suffer condign Punishment; and all the Vessells and Effects piratically taken, and brought into the Ports or Havens of the most Christian King, or the Said united States, 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.6
Art. 6. The most Christian King Shall protect, defend and Secure, as far as in his Power, the Subjects, People and Inhabitants of the Said united States and every of them, and their Vessells 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 King<s> Emperor<s or> States and Powers, and of every of them, in the Same manner, and as effectually and fully, and as much to the Benefit Advantage Ease and Safety of the Said united States and every of them, and of the Subjects, People, and Inhabitants thereof, to all Intents and Purposes, as the King and Kingdom of Great Britain, before the Commencement of the present War, protected, defended, and Secured the People and Inhabitants of the Said united States, then called the British Colonies, in North America, their Vessells and Effects, against all Such Attacks, Assaults, Violences, Injuries, Depredations and Plunderings.
<Art. 7. If the most Christian King Shall in consequence of this Treaty, engage in a War with the King of Great Britain, the Said united States, Shall not assist the latter.>7
Art. 7. If, in Consequence of this Treaty the King of Great Britain, should declare War, against the most Christian King, the Said united States shall not assist Great Britain, in Such War, with Men, Money, ships, or any of the Articles in this treaty denominated Contraband Goods <or in any other way>. And if France to favour the said united States Shall join with them in their present War against Great Britain they shall not make a separate Peace.
Art. 8. In Case of any War between the most Christian King and the King of Great Britain, the most Christian King Shall never invade, { 268 } nor attempt to invade, or get Possession, for himself of Labradore, New Britain, Nova Scotia, Accadia, Canada, Florida, nor any of the Countries, Cities, or Towns, on the Continent of North America, nor of the Islands of Newfoundland, Cape Breton, St. Johns, Anticoste, nor of any other Islands lying near to the Said Continent, in the Seas, or in any Gulph, Bay, or River, it being the true intent and meaning of this Treaty, that the Said united States 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, which now are, or lately were under the Jurisdiction of or subject to the King or Crown of Great Britain, whenever the Same can be invaded, and conquered by the Said united States, or shall in any manner submit to or be confederated with them.
Art. 9. Nor Shall the most Christian King, at any Time, make any Claim, or demand's 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 the Said united States, in attacking or conquering the Same, or in obtaining Such a Submission, or Confederation as has been mentioned in the Said Preceding Articles, nor on any other Account what ever.8
Art. 10. If in any War, the most Christian King, Shall conquer, or get Possession of the Islands in the West Indies, now under the Jurisdiction of the King or Crown of Great Britain, or any of them, or any Dominions of the Said King or Crown in <Europe>[any other parts of the world], the Subjects <and> People and Inhabitants of the Said united States, and every of them Shall enjoy the Same Rights, Liberties, Priviledges, Immunities and Exemptions in Trade, Commerce and Navigation to and from the Said Islands, and Dominions, that are mentioned in the Second Article of this Treaty.
Art. 11. It is the true Intent and Meaning of this Treaty, that no higher or other Duties Shall be imposed on the Exportation of any Thing of the Growth, Production, or Manufacture of the Islands in the West Indies now belonging, or which may hereafter belong to the most Christian King, <or which>9 to the Said united States, or any of them, than the lowest that are or shall be imposed on the Exportation thereof to France or to any other Part of the World.
Art. 12. It is agreed, by and between the Said Parties that no Duties whatever more than []<Per Gallon>10 shall ever hereafter be imposed on the Exportation of Molasses, from any of the Islands and Dominions of the most Christian King in the West Indies to any of these united States.
{ 269 }
Art. 13. The Subjects, People, and Inhabitants of the Said united States, or any of them, being Merchants and residing in France, and their Property, and Effects of every Kind, shall be exempt from the Droit de Aubeine.11
Art. 14 The Merchant Ship of either of the Parties, which shall be making into a Port belonging to the Enemy of the other Ally,12 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 like wise Certificates, expressly Shewing that her Goods are not of the Number of those which have been prohibited, as Contraband.
Art. 15 <That> 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 lawfull to break up the Hatches of such ship, or to open any Chests, Coffers, Packs, Casks, or any other Vessells found therein or to remove the Smallest Parcells of her Goods, whether such Ship belong to the Subjects of France, or the Inhabitants of the said united States, unless the lading be brought on Shore in the Presence of the Officers of the Court of Admiralty, and an Inventory thereof made; but there Shall be no Allowance to sell, exchange, or alienate the same in any manner, untill after that due and lawfull Proscess 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 lawfull 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.
Art. 16 On the Contrary, it is agreed, that whatever Shall be found to be laden by the Subjects and Inhabitants of either Party, on any ship belonging to the Enemy of the other or to his Subjects, the whole, 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 { 270 } Such Goods and Merchandise as were put on board Such Ship before the Declaration of War, or even after Such Declaration, if So be it were done without 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 the Same, <within the Time and>13 without Knowledge of it, Shall noways 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 lawfull to carry them afterwards to any Ports belonging to the Enemy.
Art. 17. And that more effectual Care may be taken, for the Security of the Subjects, and Inhabitants 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 the most Christian King, and <all their Subjects, Shall be forbid,>14 of the said united States, and all their subjects and Inhabitants, Shall be forbid, doing any Injury, or Damage to the other Side; and if they act to the contrary, they Shall be punished, and Shall moreover 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.
Art. 18 All Ships, and Merchandizes, of what Nature So ever, which Shall be rescued out of the Hands of any Pirates, or Robbers on the high 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.
Art. 19 It Shall be lawfull for the Ships of War of either Party and Privateers, freely to carry whithersoever 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, when 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 Lawfullness 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 Prize of the Subjects, People, or Property, of either of the Parties; but if Such Should come in, being { 271 } 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 <, so far as>.15
Art. 20. If any Ships belonging to either of the Parties, their People, or subjects 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 Ship wrecked, 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.
Art. 21. That in Case the Subjects and Inhabitants of Either Party, with their Shipping, whether public, 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 of 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 needfull 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;
Art. 22 The Subjects, Inhabitants, Merchants, Commanders of Ships, Masters and Mariners of the States, Provinces, and Dominions of each Party respectively, shall abstain and forbear to <trade and>16 fish in all Places possessed, or which shall be possessed by <one or> the other Party <in>. The most Christian Kings Subjects Shall not fish in the Havens, Bays, Creeks, Roads, Coasts, or Places, which the said united States hold or shall hereafter hold: and in like manner, the subjects, People, and Inhabitants of the said united states, shall not fish in the Havens, Bays, Creeks, Roads, Coasts, or Places, which the <said> most Christian King possesses, or shall hereafter possess; and if any ship or Vessell shall be found <trading> fishing, contrary to the Tenor of this Treaty, the Said ship or Vessell, with its Lading, Proof being made thereof, shall be confiscated.
Art. 23 For the better promoting of Commerce on both Sides, it is agreed, that if a War should 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 { 272 } 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.
Art. 24 No Subjects of the <said> most Christian King, shall apply for, or take any Commission or Letters of Marque for arming any Ship or Ships to act as Privateers, against the Said united States or any of them, or against the Subjects, People, or Inhabitants of the Said united States or any of them, or against the Property of any of the Inhabitants of any of them, from any Prince, or State with which the Said united States Shall be at War:17
Nor shall any Citizen, Subject, or Inhabitant, of the said united States or any of them, apply for, or take any Commission or Letters of Marque for arming any ship or Ships to act as Privateers, against the Subjects of the <said> most Christian King or any of them, or the Property of any of them, from any Prince or State, with which the Said King Shall be at War: And if any Person of either Nation Shall take Such Commissions or Letters of Marque, he shall be punished as a Pirate.
Art. 25. It Shall not be lawfull for any foreign Privateers, not be<ing>[longing][to the]18 Subjects of the <said> most Christian King, nor Citizens of the Said united States, 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.
Art. 26 It Shall be lawfull for all and Singular the Subjects of the <said> most Christian King, and the Citizens, People, and Inhabitants of the Said united States, 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 the most Christian King, or the united States. It shall likewise be lawfull for the Subjects and Inhabitants aforesaid, to Sail with the Ships 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 aforemen• { 273 } tioned 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.
Art. 27 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 this Name of Contraband, or prohibited Goods, Shall be comprehended Arms, Great Guns, Bombs with their Fuzees, and other Things belonging to them; Fire-balls, Gunpowder, Match, Cannon Ball, Pikes, Swords, Lances, Spears, Halberds, Mortars, Petards, Granadoes, Saltpetre, Musketts, Muskett Ball, Helmets, Head Pieces, Breast Plates, Coats of Mail, and the like Kinds of Arms proper for arming Soldiers, Muskett-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; all Kinds of Wearing Apparell, 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 Smoaked 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 Man kind, and the Sustenance of Life: Furthermore, all Kinds of Cotton, Hemp, Flax, Tar, Pitch, Ropes, Cables, Sails, Sail Cloths, Anchors, and any Parts of Anchors; also ships Masts, Planks, Boards, and Beams, of what Trees soever; and all other Things proper either 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 Contraband, much less Such as have been already wrought and made { 274 } up for 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 freeest 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.
Art. 28 To the End that all manner of Dissentions and Quarrells may be avoided and prevented on one Side and the other, it is agreed, that in Case either of the Parties hereto, Should be engaged in War, the Ships and Vessells belonging to the Subjects or 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 Subject 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.
Art. 29 The Ships of the Subjects and Inhabitants of either of <their Most Serene>19 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 Cases of Such manifest suspicion, the Said Subjects and Inhabitants, of either of the Parties, shall be obliged to exhibit in the Ports, their Passports and Certificates, in the manner before Specified.
Art 30. That if the Ships of the Said Subjects, People or Inhabitants of either of the Parties, Shall be met with, either Sailing along the Coast, or on the high Seas, by any Ship of War of the other, or by any { 275 } 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 Vessell 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 lawfull to molest or Search her in any Manner, or to give her Chase, or force her to quit her intended Course.20
Form of the Passports and Letters, which are to be given, to the Ships and Barks, which shall go according to the twenty-seventh21 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 of [] 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 containing the Names and sirnames, the Places of Birth and Abode 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, he shall Shew this present Leave to the Officers and Judges of the Marine, and shall give a faithfull Account to them of what passed and was done during his Voyage, and he shall carry the Colours, Arms, and Ensigns of the King, (or of the united states) 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 [] 17 []
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 { 276 } taken the oath mentioned therein. Done at[] the [] Day of [] 17[].
Form of the Certificates 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 Vessells, which Sail from thence, according to the Directions of the [] Article of this present Treaty.
We A.B. Magistrate, (or) Officers of the Customs of the Town and Port of C. do certify and attest, that on the [] Day of the Month of [] in the Year of our Lord 17[] D. E. of F. personally appeared before Us, and declared by a Solemn Oath, that the Ship or Vessell called G. of about [] Tons whereof H. I. of K. his usual Place of Habitation, is Master or Commander, does rightfully and properly belong to him and others subjects of [] and to them alone: That she is now bound from the Port of L. to the Port of M. laden with the Goods and Merchandizes hereunder particularly described and enumerated, that is to say, as follows.
In Witness whereof We have Signed this Certificate, and seal it with the Seal of our Office. Given the [] day of the Month of [] in the year of our Lord 17[] .
Dft (PCC, No. 47, f. 129–149 with a gap in the numbering); docketed in Charles Thomson's hand: “Report of the comee. on the plan of treaties read 18 July 1776 Ordered to lie on the table.”
The docketing may be somewhat misleading. The committee's report was read to the congress on 18 July and tabled, but two days later was ordered to be printed for the use of the members during debate over its final form. The substantial difference between the printed version (No. II, below) and the Dft makes it unlikely that it was this Dft that was read on 18 July. No evidence has been found that changes in phrasing were made between the reading of the report and the order for printing. Two additional considerations seem to support this supposition: when the Dft was discussed in committee, changes were made which subsequently appeared in the printed version but not on the Dft; it is unlikely that a report containing so many cancellations and additions would have been presented to the congress without being recopied. It may be that the report of the committee was not returned by the printer, a not unusual circumstance, leaving JA's Dft as the only “original” approximating the final report and as such placed among the papers of the congress.
In printing JA's Dft, the editors have sought to reproduce as closely as possible the text of the MS before it was submitted to the committee. But in some instances changes made by JA while composing the Dft have been difficult to distinguish from his recording of changes made by the committee and the congress. The first step in the editorial process was the comparison of the Dft with the committee's printed report, on which Charles Thomson recorded all changes made during the debate. This comparison made possible the removal of the majority of the additions and deletions jotted down by JA. The next step was to determine the changes made by JA before he presented his Dft. { 277 } These were relatively easy to identify when his strikeouts were made necessary by overzealous copying from his sources, as in Articles 16, 17, 19, and 29. All such changes have been annotated. The remaining alterations, and there are not many, could have been made by either JA or the committee. The lack of any other copy of the Dft or committee report known to us makes determination impossible. When they involve several words or are significant, these changes have been annotated. In any case, all recorded changes that were not the result of congressional debate have been included in JA's Dft as here printed, deletions appearing, as usual, in italics within angled brackets and additions within double parentheses. All marginal notes, which are in JA's hand and in the left margin unless otherwise stipulated, have been indicated, regardless of when they were inserted. All references below to articles in the treaty plan are by Arabic numerals to differentiate them from articles in other treaties mentioned, for which Roman numerals are used.
1. In the margin opposite the opening lines appears this notation: “Coll. of State Tracts 109. Coll of Sea Laws 541.” These references are to A Collection of State Tracts and to Justice, A General Treatise of the Dominion of the Sea (both fully cited in the Editorial Note, above). State Tracts, p. 109, contains the first four articles and part of the fifth of the Treaty of Reswick, concluded between Great Britain and France on 20 Sept. 1697. Art. I contains much of the phrasing used in the preamble to the treaty plan, and it is probable that JA referred to it to obtain the proper form to use in referring to Louis XVI. Compare the phrase “the most Serene and Mighty Prince Lewis the Fourteenth the most Christian King” and that used in the treaty plan. On p. 541 of Sea Laws is Art. I of the Treaty of Peace and Union concluded between Oliver Cromwell and the United Provinces of the Low Countries in 1654, which was probably similarly used by JA as a guide for the preamble to the draft.
2. In the margin is the notation “ag.” Since this and other such notations appear also in Thomson's marked-up copy of the printed report, JA's notation very likely refers to congressional rather than committee action.
3. In the margin appear two notations: “2. Should there not be an Exception of Asia, and perhaps of Africa” and “ag.” Who proposed the exception remains undetermined.
4. In the margin is the notation “ag.”
5. In the margin is the notation “ag.”
6. In the margin appear two notations: “ag.” and “See all the Articles in Sea Laws from pa. 544 to 549. Art. 19 and 24 in pa. 542. Art. 10 in pa. 520— Art. 5 in pa. 519. if proper.” Pages 544 to 549 contain part of Art. XX and Arts. XXI through XXXVIII of the Treaty of Breda, signed by Charles II and the States General on 31 July 1667. JA may have intended that all of Art. XX, which begins on p. 543, be included, for it deals with pirates. Arts. XIX and XXIV on p. 542 are from the treaty between Cromwell and the United Provinces, mentioned in note 1 (above). Arts. V and X from p. 519 and 520 are from a treaty concluded between France and Denmark in 1645. Each of the articles noted was relevant to JA's desire that there be only a commercial agreement.
7. The replacement of this article with another with the same number indicates that JA, not the committee, decided that his first effort was insufficient.
8. In the margin, probably in Thomson's hand, is the notation “rejected”; that is, it was rejected by the congress, not the committee.
9. This deletion was almost certainly made by JA while drafting the treaty plan.
10. "Per Gallon" was canceled by either JA or the committee, probably the latter, for it is omitted in the printed version (see No. II, note 11, below).
11. Droit d'Aubaine was the ancient right of French kings to claim the property of foreigners who died within the country without being naturalized. A waiver of this right, which was not formally renounced until 14 July 1819, { 278 } was a provision common to most treaties concluded with France (OED).
This article ends in the middle of a page, Art. 14 beginning at the top of a new page. The break is significant. JA copied Arts. 14 through 30, together with the “Passport and Letters” appended to the treaty plan, from Edmunds and Harris, A Compleat Collection (cited fully in the Editorial Note, above), lent to him by Franklin. The latter had put X's opposite Arts. XV, XVII, XIX, XX, XXXVI, and XXXVII of the Treaty of Navigation and Commerce signed at Utrecht on 11 April 1713 by Great Britain and France; Art. VIII of the Marine Treaty concluded by Britain and France on 24 Feb. 1677; Arts. XXI, XXII, and XXIV of the Treaty of 1667 between Britain and Spain; Art. IX of the Treaty of Peace and Alliance signed by Britain and Spain on 15 Nov. 1630; and Art. XX of the Treaty of Peace and Alliance of 1604 between Britain and Spain. Franklin also entered page numbers referring to treaties on three pages of the introduction to A Compleat Collection, but these were not useful to JA.
As he says in his Autobiography, JA made his own selection, retaining some of Franklin's choices and rejecting others (Diary and Autobiography, 3:338). But in the end, he limited himself to three treaties between Great Britain and France. The treaties used by JA, the articles taken from them (Roman numerals), and the corresponding articles in the draft (Arabic numerals) are as follows: Treaty of Navigation and Commerce, Utrecht, 11 April 1713: Arts. XXV—14; XXVI—15; XXVII—16; XXVIII—17; XXXV—18; XXXVI—19; XV—25; XVII—26; XVIII, XIX, XX—27; XXI—28; XXII, XXIII—29; XXIV—30; and “Passport and Letters” following Art. XXXIX and 30, respectively. American Treaty of Peace, Good Correspondence, and Neutrality, London, 16 Nov. 1686: Arts. VII—20; VI—21; V—22; XV—24. Treaty of Peace, Westminster, 3 Nov. 1655: Art. XXVI—23.
12. As used in the 18th-century sense, an ally was a party to a treaty. See JA to William Cushing, 9 June, note 3 (above).
13. JA's deletion, made necessary because in copying Art. XXVII of the Treaty of Utrecht, he had gone too far. JA chose not to include in Art. 16 references to periods of time for news of war declarations to get abroad. He started to write “within the Time and Limits abovesaid,” but obviously that was not appropriate.
14. Obviously JA's deletion, made necessary by his copying from Art. XXVIII of the Treaty of Utrecht, which refers to the Queen of Great Britain and the French King.
15. JA recognized that his copying from Art. XXXVI of the Treaty of Utrecht had gone too far. The remainder of the passage reads: “so far as this shall not be contrary to former Treaties.”
16. The copying of “trade” and “trading” is another instance of JA's hand moving faster than his mind. Forbidding trade was inconsistent with earlier articles in the treaty plan.
17. In the margin is the notation: “comp. Coll. Treaties pa. 20.” On p. 20 of Edmunds and Harris, A Compleat Collection, is Art. XV of the American Treaty of Peace of 1686, which forms the basis of Art. 24 of the draft. JA's only change was to divide the article into two parts, one for France, the other for the United States.
18. Apparently the committee made a nice distinction, and JA, making the change on the draft, forgot to enter “to the.” In the margin is the notation “pa. 4,” another reference to A Compleat Collection. On that page is Art. XV of the Treaty of Utrecht, from which Art. 25 is copied verbatim.
19. Another instance of JA's copying too furiously. Art. XXII of the Treaty of Utrecht reads: “their most Serene Royal Majesties.”
20. Following this article is a paragraph on a separate page headed: “To succeed the 30th Article.” In the hand of Edward Rutledge, this addition was composed during the debates in the congress, for it was also written on the printed copy of the committee report. See No. II, note 16 (below). It was integrated into Art. 30 in the treaty plan as adopted on 17 Sept. (No. III, below).
21. The words “twenty-seventh” are not in JA's hand. The reference, of course, should be to the 28th article.
{ 279 }

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.
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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).

Docno: ADMS-06-04-02-0116-0004

Author: Adams, John
Author: Continental Congress
Date: 1776-09-17

III. Plan of Treaties as Adopted (with Instructions)

There shall be a firm inviolable and universal peace and a true and sincere friendship between the most serene and mighty prince Lewis the Sixteenth, the most Christian King, his heirs and successors and the United States of America; and the subjects of the most Christian King and of the said states; and between the countries, islands, cities and towns situate under the jurisdiction of the most Christian King, and of the said United States and the people and inhabitants thereof of every degree, without exception of persons or places; and the terms herein mentioned shall be perpetual between the most Christian King, his heirs and successors and the said United States.
Art. I. The Subjects of the most Christian King shall pay no other duties or imposts in the ports, havens, roads, countries, islands, cities or towns of the said United States or any of them than the natives thereof, or any commercial companies established by them or any of them 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.
Art. II. The Subjects, people and inhabitants of the Said United States and every of them shall pay no other duties or imposts in the { 291 } ports, havens, roads, countries, islands, cities or towns of the most Christian [King] than the natives of such countries, islands, cities, or towns of France or any commercial companies established by the most Christian King shall pay but shall enjoy all other the rights, liberties, privileges, immunities and exemptions in trade, navigation and commerce in passing from one port 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.1
Art. III. His most Christian Majesty shall retain the same rights of Fishery on the banks of Newfoundland and all other rights relating to any of the said islands, which he is entitled to by virtue of the treaty of Paris.
Art. IV. The most Christian King shall endeavour by all the means in his power to protect and defend all vessels and the effects belonging to the subjects people or inhabitants of the said United States or any of them, being in his ports, havens, or roads or on the seas near to his countries, islands cities or towns, and to recover and to 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 people or inhabitants of the said United States or any of them and holding the same course or going the same way and shall defend such vessels as long as they hold the same course or go the same way against all attacks, force and violence in the same manner as they ought to protect and defend vessels belonging to the subjects of the most Christian King.2
Art. V. In like manner the said United States and their ships of war and convoys sailing under their authority shall protect and defend all vessels and effects belonging to the subjects of the most Christian King and endeavour to recover and restore them if taken within the jurisdiction of the said United States or any of them.
Art. VI. The most Christian King and the said United States 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 the most Christian [King] or the said United States, which can be found, although they be sold shall be restored or satisfaction given therefor, { 292 } the right owners, their agents or attornies demanding the same and making the right of property to appear by due proof.
Art. VII. The most Christian King shall protect defend and secure, as far as in his power, the subjects, people and inhabitants of the said United States and every of them 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, states and powers and of every of them in the same manner and as effectually and fully, and as much to the benefit advantage, ease and safety of the Said United States and every of them and of the subjects, people and inhabitants thereof, to all intents and purposes as the King and Kingdom of Great Britain before the commencement of the present war protected, defended and secured the people and inhabitants of the said United States then called British colonies in North America, their vessels and effects against all such attacks, assaults, violences, injuries, depredations and plunderings.3
Art. VIII. If in consequence of this treaty the King of Great Britain should declare war against the most Christian King, the said United States shall not assist Great Britain in such war with men, money, ships or any of the articles in this treaty denominated contraband goods.4
Art. IX. The most Christian King shall never invade, nor under any pretence attempt to possess himself of Labradore, New Britain, Nova Scotia, Acadia, Canada, Florida nor any of the countries, cities or towns on the Continent of North America nor of the islands of Newfoundland, Cape Breton, St. Johns, Anticosti nor of any other island lying near to the said continent in the seas or in any gulph, bay or river, it being the true intent and meaning of this treaty, that the said United States 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, which now are or lately were under the jurisdiction of or subject to the king or crown of Great Britain, whenever they shall be united or confederated with the said United States.
Art. X. The subjects, inhabitants, merchants, commanders of ships, masters and mariners of the states provinces and dominions of each party respectively shall abstain and forbear to fish in all places possessed or which shall be possessed by the other party. The most { 293 } Christian King's subjects shall not fish in the havens, bays, creeks, roads, coasts or places which the said United States hold or shall hereafter hold. And in like manner the subjects, people and inhabitants of the said United States shall not fish in the havens, bays, creeks, roads, coasts or places which the most Christian king 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.
Art. XI. If in any war the most Christian king shall conquer or get possession of the islands in the West Indies now under the jurisdiction of the king or crown of Great Britain or any of them, or any dominions of the said king or crown in any other parts of the world, the subjects, people and inhabitants of the said united states and every of them shall enjoy the same rights, liberties, privileges, immunities and exemptions in trade, commerce and navigation to and from the said islands and dominions that are mentioned in the second article of this treaty.
Art. XII. It is the true intent and meaning of this treaty that no higher or other duties shall be imposed on the exportation of any thing of the growth, production or manufacture of the islands in the West Indies now belonging or which may hereafter belong to the most Christian King to the said United States or any of them than the lowest that are or shall be imposed on the exportation thereof to France or to any other part of the world.
Art. XIII. It is agreed by and between the said parties that no duties whatever shall ever hereafter be imposed on the exportation of Molasses from any of the islands and dominions of the most Christian king in the West Indies, to any of these United States.5
Art. XIV. The subjects, people and inhabitants of the said United States or any of them being merchants and residing in France and their property and effects of every kind shall be exempt from the Droit d'Aubeine.6
Art. XV. 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.
Art. XVI. If by the exhibiting of the above certificates the other party discover there are any of those sorts of goods which are prohibited { 294 } 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 ship belong to the subjects of France or the inhabitants of the said United States unless the lading be brought on shore in the presence of the Officers of the court of admiralty and an inventory thereof made; but there shall be no allowance to sell, exchange or alienate the same in any manner, untill after that due and lawful process shall have been had against such prohibited goods and the courts 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 lawfull 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.7
Art. XVII. On the contrary it is agreed that whatever shall be found to be laden by the subjects and inhabitants 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 merchandize 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 afore said, were put on board any ship belonging to an enemy before the war or after the declaration of it without the Knowledge of it, shall no wise 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.
Art. XVIII. And that more effectual care may be taken for the security of the subjects and inhabitants 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 the Most Christian King and of the said { 295 } United States and all their subjects and inhabitants shall be forbid doing any injury, or damage to the other side, and if they act to the contrary they shall be punished and shall moreover be bound to make satisfaction for all matter of damage and the interest thereof by reparation under the penalty and obligation of their persons and goods.
Art. XIX. All ships and merchandizes of what nature soever, which shall be rescued out of the hands of any pirates or robbers on the high 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.
Art. XX. It shall be lawful for the ships of war of either party and privateers freely to carry whithersoever 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 when they come to 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 prize 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.
Art. XXI. 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.
Art. XXII. In case the subjects and people of either party with their shipping, whether public 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 of shelter and harbor 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 them• { 296 } selves 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 let or hindrance.
Art. 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.
Art. XXIV. No subjects of the most Christian king shall apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the said United States or any of them or against the subjects, people or inhabitants of the said United States or any of them or against the property of any of the inhabitants of any of them from any prince or state with which the said United States shall be at war. Nor shall any citizen, subject or inhabitant of the said United States or any of them apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the subjects of the most Christian king or any of them or the property of any of them from any prince or state, with which the said King shall be at War; and if any person of either Nation shall take such commissions or letters of marque he shall be punished as a pirate.
Art. XXV. It shall not be lawful for any foreign privateers not belonging to subjects of the most Christian King nor citizens of the said United States, 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.8
Art. XXVI. It shall be lawful for all and singular the subjects of the most Christian King and the citizens people and inhabitants of the said states 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 { 297 } now are or hereafter shall be at enmity with the most Christian King or the United States. It shall likewise be lawful for the subjects and inhabitants aforesaid to sail with the ships 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.
Art. 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 this 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 ball, pikes, swords, lances, spears, halbards, mortars, petards, granadoes, saltpetre, musquets, musket balls, helmets, head-pieces, breastplates, coats of mail, and the like kind 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, 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 ships { 298 } masts, planks, boards, and beams of what trees soever, and all other things proper either 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 contraband, much less such as have been already wrought and made up for any other use, all which shall be wholly 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 and places being only excepted as are at that time besieged blocked up or invested.
Art. XXVIII. To the end that all manner of dissentions and quarrels may be avoided and prevented on one side and the other, it is agreed that in case either of the parties hereto should be engaged in a war, the ships and vessels belonging to the subjects or 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 truely belongs to the subjects of one of the parties, which passports 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 abovementioned, 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 persons to whom the goods on board belong, he may freely do it.
Art. XXIX. The ships of the subjects and inhabitants 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 parties shall be obliged to exhibit in the ports their passports and certificates in the manner before specified.
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Art. XXX. If the ships of the said subjects, people or inhabitants of either of the parties shall be met with either sailing along the coast 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 on board 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, 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 duely punished for the Offence.
The form of the Sea letters and passports to be given to ships and vessels according to the 28 Article
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 of——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 and Haven where he shall enter with his ship 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 { 300 } was done during his voyage and he shall carry the colours, arms and ensign 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.——.
The 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.——.
The 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 28 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 hereunder particularly described and enumerated that is to say——.
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 (PCC, No. 5, f. 5—26). Taken from the Secret Foreign Journal, this presumably is the most accurate text of the treaty plan as adopted by congress on 17 Sept. There was no contemporary printing of it.
As the final view of the congress on the form that a commercial treaty with France should take, the Plan of Treaties as adopted became the basis for the commercial treaty signed with that nation in 1778. To come to life, this treaty plan had to be implemented by negotiators who were guided by instructions embodying the sense of the congress. On 24 Sept. these instructions were adopted and on 20 Oct. sent by the Committee of Secret Correspondence with the Plan of Treaties to Silas Deane, then in France (JCC, 5:813–817; Wharton, ed., Dipl. Corr. Amer. Rev., 2:162–163).
The instructions defined how far negotiators might depart from specific articles in trying to conclude a treaty and even suggested alternatives. To some degree the instructions were more realistic than the plan, which was designed to serve American without much regard to French interests. The fears of some members of the congress, as noted by JA in his Autobiography, “that the present Plan reported by the Committee held out no sufficient temptation to France” were genuine and had to be taken into account if the United States was to secure the aid it desperately needed (Diary and Autobiography, 3:338).
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Formulation of instructions was entrusted to the committee responsible for the treaty plan; but because it has proved impossible to determine the role played by JA in their composition, they have not been printed here in full. Only those have been quoted which bear on articles in the Plan of Treaties. Quotations are taken from the Secret Foreign Journal (PCC, No. 5, f. 27–30) and cancellations from PCC, No. 47, f. 157, 158, 169.
1.
“If his most Christian Majesty shall not consent that the inhabitants of the United States shall have the privileges proposed in the second article, then the United States ought not to give the subjects of his most Christian Majesty the privileges proposed in the first article; but that the United States shall give to his most Christian Majesty the same privileges, liberties and immunities at least and the like favour in all things which any foreign nation the most favoured shall have, provided his Most Christian Majesty shall give to the United States the same benefits, privileges and immunities which the most favoured nation now has, uses or enjoys. And in case neither of these propositions of equal advantages are agreed to, then the whole of the said articles are to be rejected <without absolutely barring> rather than obstruct the farther progress of the treaty.”
This proposed alteration of the trade provisions of the treaty plan was well taken, for it was unrealistic to believe that France, whose trade was enmeshed in a restrictive mercantile system, would agree to place Americans on an equal basis with Frenchmen in trade, particularly with the French colonies.
2. “The fourth article must be insisted on.”
3.
“The seventh article ought to be obtained if possible, but should be waved rather than that the treaty should be interrupted by insisting upon it. His most Christian Majesty agreeing nevertheless to use his interest and influence to procure passes from the states mentioned in this article for the vessels of the United States upon the Mediterranean.”
This language would be a considerable softening of the original demand that the King of France furnish the protection afforded by Britain in the past.
4. Suggested alterations of Art. 8 appeared at two points in the instructions. The first, included as the fourth stated instruction, was altered during the debates by the cancellation of most of its original text and its replacement by an amendment (in double parentheses, below) in the hand of George Wythe. The second passage having a bearing on Art. 8 was an amendment, in the hand of Richard Henry Lee, which was not accepted and is printed here immediately after the Wythe amendment.
“The eighth article will probably be attended with some difficulty. If you find his Most Christian Majesty determined not to agree to it, you are empowered to add to it, <any of the following Proposals Offers or two of them, or all of them if one or two of them should be discovered to be unsatisfactory.>
<1. If A should undertake an Expedition to recover what she lost in the West Indies during the last War with G. Britain the United States will, in that Expedition, supply France with Provisions if required, and will not supply G. Britain with any.>
<Postpon'd 2. The United States will agree to an exclusive Contract in Favour of A. during the Term of [] Years, for Masts and naval Stores, as far as they can spare them.>
<Agreed 3. The United States will not, upon a Peace with Great Britain grant to her Terms of Commerce more advantageous than those they will grant to A> as follows [That the United States will never be subject or acknowledge allegiance or obedience to the king or crown or parliament of Great Britain, nor grant to that nation any exclusive trade or any advantages or privileges in trade more than to His Most Christian Majesty; neither shall any treaty for terminating the present war between the King of Great Britain and the United States, or any war which may be declared by the King of Great Britain against his most Christian Majesty in consequence of this treaty, take effect until the expiration of <eight> six calendar months after the negotiation for { 302 } that purpose shall have been duely notified in the former instance by the United States to his most Christian Majesty, and in the other instance by his Most Christian Majesty to the United States, to the end that both these parties may be included in the peace, if they think proper.]
<If the Court of France cannot be prevailed on to engage in the War with Great Britain for any considerations already proposed in this Treaty, you are hereby authorized to agree as a further inducement, that these united States will <wage the war in union with France> not make peace with Great Britain until <the latter> France shall gain the possession of those Islands in the West Indies formerly called Nieutral, and which by the Treaty of Paris were ceded to G. Britain; provided France shall make the conquest of these Islands an early object of the War and prosecute the same with sufficient force.>
As adopted, the instructions for Art. 8 represented a return to JA's original intention as expressed in his draft but which had been altered during the congressional debates. See Art. 7 in Nos. I and II (above). The portions finally deleted from the instructions were put forward by those who felt that the proposed treaty, which might result in an Anglo-French war, did not offer France enough inducement. The canceled material proposed “Articles of entangling Alliance, of exclusive Privileges, and of Warrantees of Possessions” that JA writes of in his Autobiography and that he kept out of the plan (Diary and Autobiography, 3:338). Although the introduction of such provisions into the instructions was successfully opposed, their substance was eventually embodied in the Treaty of Alliance of 1778.
5. “The twelfth and thirteenth articles are to be waived if you find that the treaty will be interrupted by insisting on them.” France was not likely to accept the equality in colonial trade proposed in Art. 12, and there were uncertainties about Art. 13, as is apparent from earlier revisions of this article, formerly Art. 12. See No. II, note 11 (above).
6. “You will press the fourteenth article, but let not the fate of the treaty depend upon obtaining it.”
7. “If his most Christian Majesty should be unwilling to agree to the sixteenth and twenty sixth articles, you are directed to consent that the goods and effects of enemies on board the ships and vessels of either party shall be liable to seizure and confiscation.”
The abandonment by the United States of the doctrine that free ships make free goods would have been inconsistent with its desire to expand trade and, at least in JA's mind, to be neutral in future European wars so that it could take over the carrying trade. The doctrine was becoming a standard feature in commercial treaties of the northern European trading countries. Even Great Britain, which stood to suffer the most if it became an established principle of the law of nations, had agreed to it in the Treaty of Utrecht, which formed the basis for the treaty plan.
8. “The twenty-fifth article is not to be insisted on.”
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/