Papers of John Adams, volume 4

260 Editorial Note Editorial Note
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 261championed 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, 262with 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 263page 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.

I. A Plan of Treaties, 18 June 1776 JA Continental Congress


I. A Plan of Treaties, 18 June 1776 Adams, John Continental Congress
I. A Plan of Treaties
ante 18 July 1776

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-266petual 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


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 Kings Emperors 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, 268nor 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.


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 270Such 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 271forced 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 272and 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 being 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-273tioned 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 274up 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 275Privateers, 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 276taken 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. 277These 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.


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.


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.


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.


In the margin is the notation “ag.”


In the margin is the notation “ag.”


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.


The replacement of this article with another with the same number indicates that JA, not the committee, decided that his first effort was insufficient.


In the margin, probably in Thomson's hand, is the notation “rejected”; that is, it was rejected by the congress, not the committee.


This deletion was almost certainly made by JA while drafting the treaty plan.


"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).


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, 278was 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.


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).


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.


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.


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.”


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.


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.


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.


Another instance of JA's copying too furiously. Art. XXII of the Treaty of Utrecht reads: “their most Serene Royal Majesties.”


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).


The words “twenty-seventh” are not in JA's hand. The reference, of course, should be to the 28th article.