Papers of John Adams, volume 17

From Thomas Jefferson, 7 July 1785 Jefferson, Thomas Adams, John
From Thomas Jefferson
Dear Sir Paris July 7. 1785.1

This will accompany a joint letter inclosing the draught of a treaty,2 and my private letter of June 22. which has waited so long for a private conveiance. we daily expect from the Baron Thulemeyer the French column for our treaty with his sovereign. in the mean while two copies are preparing with the English column which Doctr. Franklin wishes to sign before his departure, which will be within four or five days.3 the French, when received, will be inserted in the blank column of each copy. as the measure of signing at separate times & places is new, we think it necessary to omit no other circumstance of ceremony which can be observed. that of sending it by a person of confidence & invested with a character relative to the object, who shall attest our signature here, yours in London & Baron Thulemeyer’s at the Hague, and who shall make the actual exchanges, we think will contribute to supply the departure from the usual form in other instances. for this reason we have agreed to send mr̃ Short on this business, to make him a Secretary pro hac vice,4 and to join Mr. Dumas for the operations of exchange &c.5 as Dr. Franklin will have left us before mr̃ Short’s mission will commence, and I have never been concerned in the ceremonials of a treaty, I will thank you for your immediate information as to the papers he should be furnished with from hence. he will repair first to you in London, thence to the Hague, & so return to Paris.

what is become of mr̃ Lambe? supposing he was to call on the Commissioners for instructions, and thinking it best these should be in readiness, Dr. Franklin undertook to consult well the Barbary treaties with other nations. & to prepare a sketch which we should have sent for your correction. he tells me he has consulted those treaties, & made references to the articles proper for us, which however he shall not have time to put into form, but will leave them with me to reduce. as soon as I see them you shall hear from me.—6 a late conversation with an English gentleman here makes me beleive, what I did not believe before, that his nation think seriously that Congress have no power to form a treaty of commerce. as the explanations of this matter which you & I may separately give may 221 222 be handed to their minister, it would be well that they should agree. for this reason, as well as for the hope of your shewing me wherein I am wrong, and confirming me where I am right, I will give you my creed on the subject. it is contained in these few principles. by the Confederation Congress have no power given them in the first instance over the commerce of the states. but they have a power given them of entering into treaties of commerce, and these treaties may cover the whole feild of commerce, with two restrictions only. 1. that the states may impose equal duties on foreigners as natives, and 2. that they may prohibit the exportation or importation of any species of goods whatsoever. when they shall have entered into such treaty the superintendance of it results to them, all the operations of commerce which are protected by it’s stipulations, come under their jurisdiction, and the power of the states to thwart them by their separate acts, ceases. if Great Britain asks then why she should enter into treaty with us, why not carry on her commerce without treaty? I answer, because till a treaty is made no Consul of hers can be received (his functions being called into existence by a convention only, and the states having abandoned the right of separate agreements & treaties) no protection to her commerce can be given by Congress, no cover to it from those checks and discouragements with which the states will oppress it, acting separately & by fits and starts. that they will act so till a treaty is made, Great Britain has had several proofs, and I am convinced those proofs will become general. it is then to put her commerce with us on systematical ground, and under safe cover, that it behoves Great Britain to enter into treaty. and I own to you that my wish to enter into treaties with the other powers of Europe arises more from a desire of bringing all our commerce under the jurisdiction of Congress, than from any other views. because, according to my idea, the commerce of the United states with those countries not under treaty with us, is under the jurisdiction of each state separately, but that of the countries which have treated with us is under the jurisdiction of Congress, with the two fundamental restraints only, which I have before noted.

I shall be happy to receive your corrections of these ideas as I have found in the course of our joint services that I think right when I think with you.

I am with sincere affection Dear Sir / Your friend & servt

Th: Jefferson 223

P.S. Monsr. Houdon has agreed to go to America to take the figure of General Washington. in case of his death between his departure from Paris and his return to it we may lose 20,000 livres. I ask the favour of you to enquire what it will cost to ensure that sum, on his life, in London, & to give me as early an answer as possible that I may order the insurance if I think the terms easy enough. he is I beleive between 30 & 35 years of age, healthy enough, and will be absent about 6. months.7

RC (Adams Papers); endorsed: “Mr Jefferson July 7. 1785. / Houdon”; notation by CFA: “published in his Writings / Vol. 1st. p 245,” that is, Jefferson, Correspondence, ed. Randolph, 1:245–247.


Jefferson also wrote to AA on this date ( AFC , 6:223–224).


Of 8 July, below.


Benjamin Franklin signed the Prussian-American treaty on 9 July and left Passy for America on the 12th (Miller, Treaties , 2:183; from Jefferson, 11 July, note 1, below).


For this occasion.


For the exchange of signed copies of the Prussian-American Treaty of Amity and Commerce at The Hague by C. W. F. Dumas and William Short, see JA’s 24 July letter to the Baron von Thulemeier and the commissioners’ 5 Aug. letter to Short, both below.


For the draft treaty with the Barbary States, see Jefferson’s letter of 6 Aug., below.


In June 1784 the Virginia legislature voted to procure “a statue of General Washington, to be of the finest marble and best workmanship.” In letters of 20 and 27 July 1784 to Jefferson and Franklin, respectively, Gov. Benjamin Harrison requested that the two men obtain the services of an artist to execute the work (Jefferson, Papers , 7:378–379; Cal. Franklin Papers, A.P.S. , 3:205). Their choice was Jean Antoine Houdon (1741–1828), a French sculptor known for his classical busts, and by the summer of 1785 negotiations were complete. One of Houdon’s demands—Jefferson called it a sine qua non—was for a life insurance policy, the procurement of which JA undertook but did not complete until mid-October (from Richard Price, [22 Oct.], and note 1, below). In the meantime, Houdon sailed for America on the vessel carrying Franklin and reached Mount Vernon on 2 October. There, during a two-week stay, the artist executed a terra-cotta bust and a life mask of George Washington and then returned to France with plaster copies of both to complete the work. The statue, depicting Washington in his Revolutionary War uniform with one foot resting against a plow, was finished in 1788 but not installed until May 1796 owing to the construction of the new capitol in Richmond (Tracy L. Kamerer and Scott W. Nolley, “Rediscovering an American Icon: Houdon’s Washington,” Colonial Williamsburg, The Journal of the Colonial Williamsburg Foundation, 25:74–79 [Autumn 2003]; Hoefer, Nouv. biog. générale ). For more on Houdon’s work, see Descriptive List of Illustrations, No. 1, above.

From Benjamin Franklin and Thomas Jefferson with a Draft Anglo-American Treaty of Amity and Commerce, 8 July 1785 Franklin, Benjamin Jefferson, Thomas Adams, John
From Benjamin Franklin and Thomas Jefferson with a Draft Anglo-American Treaty of Amity and Commerce
Sir Passy July 8th 1785

We duly received your letter of the 20th of June, and now in consequence thereof send you a draught of a treaty which we should be 224willing to have proposed to the court of London. We have taken for our groundwork the original draught proposed to Denmark, making such alterations & additions only as had occurred in the course of our negociations with Prussia & Tûscany and which we thought were for the better. These you will find in the 4th. 9th. 13th. and 25th. articles, and are such as met your approbation when we were considering those treaties.1 Nevertheless we shall be happy to concur with you in any thing better which you may wish to propose either in the original draught or the amendments. Particularly we wish it were possible to convince the British court that it might be for their interest to continue their former bounties on the productions of our country on account of their quality, and of the nature of the returns, which have always been in manufactures & not in money.

We have the honour to be with / sentiments of the highest respect / Your Most obedient & / Most humble Servants

B Franklin Th: Jefferson

N.B All the differences between the draughts of the Prussian & British are noted in the two columns hereunto annexed—2

British Prussian
Art 2. At end of clause, add–“submitting themselves” &c.
Art. 3. Do.
Art. 4.
line. 1 to carry any kinds of produce, manufactures & merchandize of whatever place they be the growth or manufacture to carry their own produce manufactures & merchandize
1. 4. persons     the other the subjects or citizens whatever place or growth
1. 6. each party reserves to itself the K of P. & the U.S. & each of them reserve to themselves
1. 13. permits any person of their own or any other nation permits any other nation
Art. 5. retains last paragraph only.
Art. 8. obliged to pay any duties, charges, or fees whatsoever, or to render any account of their cargo obliged to render any account of their cargo, or to pay any duties &c to the end of the clause.
Art 10. the following addition to the clause. “& exempt from all rights of detraction” &c.
Art 12. on the other hand &c omitted–
Art 13. Nevertheless &c. Nevertheless &c.

Draught of a treaty of amity & commerce between his Britannic Majesty & the United States of America.

[ 8 July 1785 ]3

The parties being willing to fix in a permanent & equitable manner the rules to be observed in the commerce they desire to establish between their respective countries, have Judged that the said end Cannot be better obtained than by taking the most perfect equality & reciprocity for the basis of their agreement. On these principles, after mature déliberation, the have agreed to the following articles.

Art. 1. There shall be a firm, inviolable, and universal peace, & Sincere friendship between, his Britannic Majesty, his heirs successors & Subjects on the one part and the United States of America & their citizens on the other, without exception of persons or places.

2. The Subjects of his Britannic Majesty may frequent all the coasts et countries of the United States of america and reside and trade there in all sorts of produce, manufactures, & merchandize; and Shall pay within the said United States no other or greater duties, charges or fees whatsoever than the most favoured nations are or shall be obliged to pay: and they shall enjoy all the rights, previleges and Exemptions in navigation & Commerce which the most favoured nation does or shall enjoy.4

3. In like manner the citizens, of the United States of America may frequent all the coasts, & Countries of his Britannic Majesty, and reside & trade there in all sorts of produce, manufactures & merchandize; and Shall pay in the dominions of his Said Majesty no other or greater duties, charges or fees whatsoever than the most favoured nation is or shall be obliged to pay and they shall enjoy all the rights, previleges & exemptions in navigation & commerce, which the most favoured nation does or shall enjoy.

4.5 More especially each Party have a right to Carry any Kinds of 226 produce manufactures & merchandize of whatever place they be the growth or manufacture in their own or any other vessels to any parts of the dominions of the other where it shall be lawful for all persons 6 freely to purchase them, and thence to take produce manufactures and merchandize of whatever place or growth which all persons shall in like manner be free to sell them paying in both cases such duties charges and fees only as are or shall be paid by the most favoured nation.7 Nevertheless each party reserves to it self the right where any nation restrains the transportation of merchandize to the vessels of the country of which it is the growth or manufacture to establish against such nation retaliating regulations: and also the right to prohibit in their respective countries the exportation, or importation of any species of goods or Commodities whatsoever, when reasons of State Shall require it. in this case the Subjets or Citizens of either of the contracting parties shall not import nor export the merchandize prohibited by the other. but if one of the contracting parties permits any person of their own or any other nation to import, or export the Same merchandize, the citizens or subjects of the other shall immediately enjoy the same liberty.

5: all Merchants, Commanders of vessels, & other Subjets & Citizens of each party shall have free liberty, in all places within the dominion or jurisdiction of the other, to manage their own business themselves, or to Employ whomsoever they please to manage, the whole or any part thereof for them; and shall not be obliged to make use of any interpreter, broker, or other person whatsoever, nor to pay them any salary or fees, unless they chuse to make use of them. Moreover they Shall not be obliged in loading or unloading their vessels to make use of those workmen who may be appointed by public authority for that purpose, but it Shall be entirely frée for them to load or unload them by themselves, or to make use of Such persons in loading or unloading them as they Shall think fit, without paying any fees or salary to any other whomsoever: neither shall they be forced to unload any sort of merchandize into any other vessels, or to receive them into their own, or to wait for their being loaded longer than they please.8

6. That the vessels of either party loading Within the ports or jurisdiction of the other may not be uselessly harrassed or detained, it is agreed that all examinations of goods required by the laws shall be made before they are laden on board the vessel & that there Shall be no examination after; nor shall the vessel be Searched at any time unless articles Shall have been laden therein clandestinely 227& illegally, in which case the person by whose order they were carried on board, or who carried them without order, shall be liable to the laws of the land in which he is. but no other person shall be molested, nor shall any other goods nor the vessel be Seized or detained for that cause.

7o. Each party shall endeavour by all the means in their power to protect & defend all vessels and other effects belonging to the citizens or subjects of the other, which shall be within the extent of their jurisdiction by sea or by land; and Shall use all their efforts to recover & cause to be restored to the right owners their vessels & effects which shall be taken from them within the extent of their said jurisdiction.

8 The vessels of the Subjects or Citizens of either party coming on any coast belonging to the other, but not willing to enter into port, or being entered into port & not willing to Unload their Cargoes or break bulk, Shall have liberty to départ & to pursue their voyage without molestation, and without being9 obliged to pay any duties, charges or fees whatsoever, or to render any account of their Cargo.

9. When any vessel of either party shall be wrecked, foundered or otherwise damaged on the coasts or within the dominion of the other, their respective subjects or citizens Shall receive, as well for themselves as for their vessels & effects the same assistance which would be due to the inhabitants of the country where the damage happens, & Shall pay the same charges & dues only as the said inhabitants would be subject to pay in a like case. and if the operations of repair shall require that the whole or any part of their cargo be unladed they shall pay no duties, charges or fees on the part which they shall relade & Carry away.10 the antient and Barbarous right to wrecks of the sea shall be entirely abolished, with respect to the subjects or Citizens of the two contracting parties.

10 The Citizens or Subjects of each party Shall have power to dispose of their personal goods within the jurisdiction of the other by testament, donation, or otherwise: & their réprésentatives being subjects or citizens of the other party, Shall Succeed to their said personal goods whether by testament, or ab intestato; and may take possession thereof either by themselves or by others acting for them, & dispose of the same at their will, paying Such dues only as the inhabitants of the country wherein the said goods are shall be subjects to pay in like Cases. and in case of the absence of the représentative, such care shall be taken of the sd. goods & for so 228long a time as would be taken of the goods of a native in like case until the Lawful owner may take measures for receiving them. and if question shall arise among several Claimants to which of them the said goods belong, the Same shall be decided finally by the laws & judges of the land wherein the said goods are, and where on the death of any person holding real estate within the territories of the one party, Such real estate would by the laws of the land descend on a citizen or Subject of the other were he not disqualified by alien-age, such subject shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation.11

11. The most perfect freedom of conscience and of worship is granted to the Citizens or subjects of either party within the jurisdiction of the other, without being liable to molestation in that respect for any cause other than an insult on the religion of others. Moreover when the Subjects or Citizens of the one party shall die Within the jurisdiction of the other, their bodies shall be buried in the usual burying grounds or other decent & Suitable places, & Shall be protected from violation or disturbance.

12. If one of the contracting parties should be engaged in war with any other power, the free intercourse & commerce of the Subjects or Citizens of the party remaining neuter with the Belligerent powers Shall not be interrupted. On the contrary in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports & on the coasts of the belligerent parties, frée vessels making frée goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other. and the same freedom shall be extended to persons who shall be on board a frée vessel, although they should be enemies to the other party, unless they be soldiers in actual service of Such enemy. On the other hand, enemy vessels shall make enemy goods; insomuch that whatever shall be found in the vessels of an enemy shall be confiscated without distinction except Such goods & merchandize as were put on board such vessel béfore the déclaration of war, or within six months after it which Shall be frée.12

Art. 13. And in the same case of one of the contracting parties being engaged in war with any other power, to prevent all the difficulties & misunderstandings that usually arise respecting the merchandize heretofore called contraband, such as arms, ammunition & military stores of every kind, no such articles carried in the 229vessels or by the subjects or citizens of one of the parties to the enemies of the other shall be deemed contraband so as to induce confiscation or condemnation & a loss of property to individuals—13

13 Nevertheless it shall be lawful to stop Such vessels and to make them unlade such articles in the nearest port, putting them under Safekeeping or to detain them for such length of time as the Captors may think necessary to prevent the inconvenience or damage that might ensue from their proceding paying however a reasonable compensation for the loss such arrest shall occasion to the proprietors: or it shall be allouwed to use in the service of the Captors the whole or any part of the military stores so detained, paying the owners the full value of the same to be ascertained by the Current price at the place of it’s destination. But in the case of a vessel so stopped for articles heretofore deemed contraband, if the master will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried ento any post, nor further detained but shall be allowed to proceed on her voyage. nor shall any Such articles be Subject to be taken or delayed in any case if they be not in greater quantity than may be necessary for the use of the ship, or of the persons in it.

14. And in the same Case where one of the parties is engaged in war with another power, that the vessels of the neutral party may be readily & certainly Known, it is agreed that they Shall be provided with sea letters or passports which shall express, the name the property & Burthen of the vessel, as also the name & dwelling of the master; which passports shall be made out in good & due forms (to be settled by conventions between the parties whenever occasion shall require)14 shall benenewed as often as the vessel shall return into port; and Shall be exhibited whenever required as well in the open sea as in port. but if the said vessel be under convoy of one or more vessels of war belonging to the neutral party, the simple déclaration of the officer commanding the convoy that the Said vessel belongs to the parti of which he is Shall be considered as establishing the fact, and shall relieve both parties from the trouble of further examination.

15 And to prevent entirely all discorder & violence in such cases, it is stipulated that when the vessels of the neutral party, Sailing without convoy, shall be met by any vessel of war public, or private, of the other party, such vessel of war shall not approach within cannon shot of the sd. neutral vessel, nor send more than two or three 230men in their boat on board the same to examine her sea letters or passports. & all persons belonging to any vessel of war public or private who shall molest or injure in any manner whatever the people vessels or effects of the other party shall be responsible in their persons & property for damages & intérest, sufficient security for which shall be given by all commanders of Private armed vessels before they are Commissioned.

16. It is agreed that the subjects or Citizens, of each of the contracting parties, their vessels, and effects shall not be liable to any embargo or detention on the part of the other, for any military expedition or other public, or private purpose whatsoever. And in all cases of seizure, detention, or arrest for debts contracted, or offences committed by any citizen or subject of the one party within the jurisdiction of the other, the same shall be made & prosecuted by order and authority of law only, and according to the regular course of proceedings usual in such Cases.

17 If any vessel or effects of the neutral power be taken by an enemy of the other or by a pirate, and retaken by that other, they shall be brought into some port, of one of the parties, and delivered into the Custody of the officers of that port, in order to be restored entire to the true proprietor as soon as due proof shall be made concerning the property thereof

18. If the citizens or subjects of either party, in danger from tempests, pirates, enemies, or other accident, shall take refuge with their vessels or effects within, the harbours or jurisdiction of the other, they shall be received, protected, & treated with humanity & Kindness, and Shall be permitted to furnish themselves at reasonable prices with all refreshments, provisions, & other things necessary for their sustenance, health & accomodation & for the repair of their vessels.

19 the vessels of war public & private of both parties Shall Carry freely wheresoever they please, the vessels & effects takin from their enemies without being obliged to pay any duties, charges, or fees to officers of admiralty, of the Customs, or any others, nor shall such prizes be arrested, Searched, or put under legal process when they come to & enter the ports of the other party, but may freely be Carried out again at any time by their Captors to the places expressed in their commissions which the commanding officer of Such vessels shall be obliged to show. but no vessel which shall have made prizes on the subjects of his most christian Majesty the King of France 231shall have a right of Asylum in the ports or havens of the Said United States; and if any such be forced therein by tempest or dangers of the sea, they shall be obliged to depart, as soon as possible according to the tenor of the treaties existing between his Said most christian Majesty & the said United States.

20 No Citizen or Subject of either of the contracting parties shall take from any power with which the other may be at war any commission or letter of marque for arming any vessel to act as a privateer against the other, on pain of being punished as a pirate. Nor shall either party hire, lend, or give any part of their naval or military force to the enemy of the other to aid them offensively or defensively against that other.

21 If the two contracting parties should be engaged in war against a common Enemy the following points shall be observed between them. 1o if a vessel of one of the parties retaken by a privateer of the other shall not have been in possession of the enemy more than twenty four hours, she shall be restored to the first owner for one third of the value of the vessel & cargo: but if she shall have been more than twenty four hours in possession of the enemy she shall belong wholly to the recaptor. 2 if in the same case the recapture were by a public vessel of war of the one party, restitution shall be made to the owner for one thirtieh part of the value of the vessel & cargo, if She shall not have been in possession of the enemy more than twenty four hours; and one tenth of the said value where she shall have been longer: which sums Shall be distributed in gratuities to the recaptors. 3 the restitution in the cases aforesaid shall be after due proof of property & Surety given for the part to which the recaptors are entitled. 4. the vessels of war, public & private of the two parties shall be reciprocally admitted with their prizes into the respective ports of each: but the said prizes Shall not be discharged nor sold there until there legality shall have been decided according to the laws & regulation of the States to which the Captor belongs. 5. it Shall be frée to each party to make Such regulations as they judge necessary for the conduct of their respective vessels of war public & private relative to the vessels which they shall take & carry into the ports of the two parties.

22 Where the parties shall have a common enemy, or shall both be neutral the vessels, of war of each shall upon all occasions take under their protection the vessels of the other going the same course, & Shall défend such vessels as long as they hold the same 232course against all force & violence, in the same manner as they ought to protect & defend vessels belonging to the party of which they are.

23 If war should arise between the two Contracting parties, the merchants of either Country then residing in the other shall be allowed to remain nine months to Collect their debts & Settle their affairs, & may depart freely, Carrying of all their effects, without molestation or hindrance and all women & children, Scholars of every faculty, cultivators of the earth, artizans, manufacturers, & fishermen unarmed, & inhabiting unfortified towns villages or places, whose15 occupations are for the Common subsistance & benefit of mankind shall be allowed to continue their respective employments, and shall not be molested in their persons nor Shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy into whose power, by the events of war, they may happen to fall: but if any thing is necessary to be taken from them for the use of Such armed force, the same shall be paid for at a reasonable price. and all merchant & trading vessels employed in exchanging the products of différent places, & thereby rendering the necessaries, conveniences & conforts of human life more easy to be obtained & more general, Shall be allowed to pass free & unmolested. and neither of the contracting powers Shall grant or issue any commission to any private armed vessels empowering them to take or destroy such trading vessels or interrupt Such commerce.

24. And to prevent the destruction of prisoners of war by sending them into distant & inclement countries, or by crouding them into close & noxious places, the two contracting parties solemly pledge themselves to each other & to the World that they will not adopt any such practise; that neither will send the prisoners whom they may take from the other into the East-Indies or any other parts of asia, or africa; but that they shall be placed in some part of their dominions in Europe or america, in wholesome situations, that they shall not be confined in dungeons, prisonships, or prisons; nor be put into irons, nor bound, nor otherwise restrained in the use of their limbs, that the officers shall be onlarged on their paroles within convenient districts & have confortable quarters, & the common men be disposed in cantonments open & extensive enough for air & exercise, & lodged in barraks as roomly & good as are provided by the party in whose power they are for their own troops, that the 233officers shall also be daily furnished by the party in whose power they are with as many rations & of the same articles & quality as are allowed by them, either in Kind or by commutation, to officers of equal rank in their own army, and all others Shall be daily furnished by them with such ration as they allow to a common Soldier in their own service; the value whereof shall be paid by the other party on a mutual adjusment of accounts for the subsistence of prisoners at the close of the war: and the said accounts shall not be mingled with, or set off against any others, nor the ballances due on them be witheld as a satisfaction or reprisal for any other article, or for any other cause real or prétended whatever: that each party shall be allowed to Keep a commissary of prisonners of their own appointment with every seperate cantonment of prisoners in possession on the other, which commissary shall see the prisoners as often as he pleases, shall be allowed to receive & distribute whatever conforts16 may be sent to them by their friends & shall be free to make his reports in open letters to those who employ him. but if any officer shall break his parole, or any other prisoner shall escape from the limits of his cantonment, after they shall have been disignated to him, Such individual officer or other prisoner shall forfeit Somuch of the benefit of this article as provides for his enlargement on parole or cantonment. and it is declared that neither the pretence that war dissolves all treaties, nor any other whatever shall be considered as annulling or suspending this & the next preceding article, but on the contrary that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowled articles in the law of nature or nations.

25 The two contracting parties grant to each other the liberty of having each in the ports of the other, consuls, vice-consuls agents & commissaries of their own appointment; whose functions Shall be regulated by particular agreement whenever either party shall chuse to make such appointment.17 but if any such consuls shall exercise commerce, they shall be submitted to the same laws and usages to which the private individuals of their nation are submitted in the same place.

26. If either party shall hereafter grant to any other nation any particular favour in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely granted to such other nation, or on yeilding the compensation where Such nation does the same.


27. his Britannic Majesty, and the United States of america agree that this treaty shall be in force during the term of ——— years from the exchange of ratifications, and if the expiration of that term should happen during the course of a war between them, then the articles before provided for the regulation of their conduct during such a war shall continue in force until the conclusion of the treaty which shall reestablish peace, and that this treaty shall be ratified on both sides, and the ratifications exchanged within one year from the day of its signature.

RC and enclosure (Adams Papers); internal address: “His Excellency / John Adams Esqr / &c. &c. &c.”; endorsed: “M. M. Franklin & Jefferson / Differences bet. the Draughts / of the Prussian & British.”; enclosure endorsed: “Project of a / Treaty with Gt Britain.” LbC (Adams Papers); APM Reel 111.


This is Jefferson’s draft model treaty that was originally made for submission to Denmark (Jefferson, Papers , 7:479–490), but which formed the basis, as is indicated here, for draft treaties submitted to Prussia and Tuscany. For the differences between the model treaty’s Arts. 4, 9, 13, and 25 and their equivalents in the Prussian and Anglo-American treaties (no English draft of the proposed treaty with Tuscany having been found), see notes 5, 6, 7, 10, and 17.


The most obvious differences between the two treaties relate to the nations with which the treaty was to be made. For example, Art. 1 of the Prussian treaty refers to “his Majesty the King of Prussia,” while in the treaty with Britain the reference is to “his Britannic Majesty” (Miller, Treaties , 2:163). But the differences indicated by Franklin and Jefferson are more substantive and are dealt with in notes to the particular articles.


Although the draft Anglo-American treaty sent by Franklin and Jefferson is virtually identical to the soon-to-be-signed treaty with Prussia, the text of the draft was not copied from the Prussian treaty but rather from Jefferson’s model treaty. This is evident from Jefferson’s instructions to the unknown copyist. There he indicated that the text was to be “as in the draught proposed to Denmark in every part, except in the following passages.” Jefferson then indicated the changes to be made to Arts. 4, 9, 13, 22, 24, and 25 (Jefferson, Papers , 8:274–275).

JA probably received the draft on or shortly before 18 July (to Jefferson, 18 July, below), and he enclosed it in his letter to the Marquis of Carmarthen of 29 July, below. In reality, however, the work done by Franklin and Jefferson in drafting an Anglo-American commercial treaty and JA’s effort to open negotiations for the conclusion of such a treaty were exercises in futility. This was in part because the British government believed that the United States either could not or would not retaliate against British restrictions under the Navigation Act on trade with America, but also because, since the passage of the annually renewed American Manifest Act in 1783, Parliament had ceded control of Anglo-American trade to the Privy Council through its issuance of Orders in Council. This situation did not change until 1797 when the Jay Treaty was in effect (vol. 15:33–34).

But there was another element in the draft that made it virtually impossible to conclude an Anglo-American commercial treaty. All four commercial treaties thus far negotiated by the United States with France, the Netherlands, Sweden, and Prussia contained a provision, similar to that in Art. 12 of the draft Anglo-American treaty, that free ships made free goods (Miller, Treaties , 2:14–15, 68–71, 133–135, 170–172). This was intended to safeguard American neutrality should war break out in Europe. The most adamant opposition to that principle, however, came from Great Britain, which in 1780 renounced the provision in its treaty of 1674 and Explanatory Convention of 1675 with the Netherlands (vol. 7:34–35; 9:237). It is notable that, much to France’s chagrin, the provision did not appear in the Jay Treaty. Indeed, in 1791 when George Hammond, the British minister to the 235United States, was authorized to negotiate an Anglo-American commercial treaty, he was instructed to accept no provision, however worded, that would give the slightest implication that Britain recognized the doctrine of “free ships make free goods” because “it would be more dangerous to concede this privilege to the ships of the United States, than to those of any other Foreign Country” (“Instructions to the British Ministers to the United States, 1791–1812,” ed. Bernard Mayo, Amer. Hist. Assoc., Ann. Rpt. for 1936 , p. 8–13). Although stated explicitly in 1791, the British position regarding an American treaty recognizing the principle was likely not much different in 1785.


In the Prussian treaty this and the following article continued from this point “submitting themselves nevertheless to the laws & usages there established, and to which are submitted the Citizens of the united States and the Citizens & Subjects of the most favoured nations.” Art. 3, of course, referred to “the Subjects of his Majesty the King of Prussia” (Miller, Treaties , 2:164–165).


Because of the number of differences between the Anglo-American draft and both the model treaty and the Prussian-American treaty, Jefferson provided the copyist with the complete text of the revised article (Jefferson, Papers , 8:274). However, the line numbers provided by Franklin and Jefferson to indicate where modifications of the text of the Prussian-American treaty were inserted do not match the lines in the draft received by JA or in the text printed here, and therefore the modifications have been underlined for clarity.


At this point, following Jefferson’s text, the copyist inserted, “persons,” as indicated in Franklin’s and Jefferson’s list of differences from the Prussian-American treaty, but he did not insert, “of the other.” This is because Jefferson failed to include that change when he rewrote the article. The Prussian treaty Art. 4 at this point read, “it shall be lawful for all the Subjects or citizens of that other to freely to purchase them” (same; Miller, Treaties , 2:165). The draft Anglo-American treaty should have read, “it shall be lawful for all persons of the other freely to purchase them.”


The remainder of this article does not appear in Jefferson’s model treaty but is included in the treaty with Prussia (Jefferson, Papers , 7:480; Miller, Treaties , 2:165–166).


The note by Franklin and Jefferson that this article retains the “last paragraph only” of Art. 5 of the Prussian-American treaty is misleading. In fact that article retains only portions of the first two and the final three lines of the article as printed here and returns to the wording of Art. 5 of Jefferson’s model treaty that formed the basis for Art. 5 of the draft Prussian-American treaty submitted by the commissioners to Baron von Thulemeier on 10 Nov. 1784 (vol. 16:379–380; Jefferson, Papers , 7:480–481). In the Prussian-American treaty as signed the article is much shorter and reads, “the merchants commanders of Vessels or other Subjects or Citizens of either party shall not within the ports or jurisdiction of the other be forced to unload any Sort of merchandize into any other Vessels, nor to receive them into their own, nor to wait for their being loaded Longer than they please” (Miller, Treaties , 2:166).


The text from this point returns the article to its form in Jefferson’s model treaty (Jefferson, Papers , 7:481).


The remainder of this article does not appear in Jefferson’s model treaty but is included in the Prussian-American treaty and was indicated by Jefferson for insertion by the copyist (same, 7:481, 8:274; Miller, Treaties , 2:168).


The deletion of the remainder of this article as it appears in the Prussian-American treaty returns it to the language of Jefferson’s model treaty (Miller, Treaties , 2:168–170; Jefferson, Papers , 7:481–482).


This article returns to the text of Jefferson’s model treaty by specifying that enemy ships make enemy goods, the reciprocal of the principle stated in the first portion of the article that free ships make free goods (Jefferson, Papers , 7:482–483). For the significance of the inclusion of these principles for any Anglo-American treaty negotiations, see note 3.


The remainder of this article appears in this form in neither Jefferson’s model treaty nor the Prussian-American treaty and was presumably drafted to ameliorate, for the British, the effect of the article’s first paragraph wherein the designation of articles as contraband is effectively abandoned. In his instructions to the copyist, Jefferson indicated that the new text was to be inserted in place of a passage also beginning “Nevertheless” in the model treaty. However, the copyist assumed that the new text was to become 236the new Art. 13 and replace the article as it appeared in the model treaty in its entirety. To correct the copyist’s error, Franklin copied the first paragraph on a separate sheet, and it was tipped into the enclosure at this point (Jefferson, Papers , 7:483; 8:274; Miller, Treaties , 2:171–172).


The closing parenthesis, omitted owing to a copying error, is editorially supplied following the text of Jefferson’s model treaty. There it is followed by the words “and shall be renewed”; but in the Prussian treaty the wording follows the text here, reading “shall be renewed” (Jefferson, Papers , 7:483; Miller, Treaties , 2:172).


At this point, between the words “places” and “whose” in his model treaty, Jefferson directed the copyist to make an insertion to bring the wording into line with that in the Prussian treaty. He mistakenly indicated, however, that it was to be done in Art. 22, with the result that the insertion was not entered (Jefferson, Papers , 8:274; Miller, Treaties , 2:178). Thus the text at this point should read, “places and in general all others whose.”


In his instructions to the copyist, Jefferson indicated that “comforts” was to be inserted in place of “necessaries” in his model treaty, thereby bringing the text into line with the Prussian treaty (Jefferson, Papers , 8:274; Miller, Treaties , 2:180).


Jefferson instructed the copyist to insert the remainder of this article to bring it into line with the corresponding article in the Prussian treaty (Jefferson, Papers , 8:274–275; Miller, Treaties , 2:182).