VIII. The American Commissioners
to the Baron von Thulemeier
Passy March 14th: 1785.1
We had the honour of receiving your Letter of Janry: 24. covering a translation into French of the Draught of a treaty proposed between His Majesty the King of Prussia & the United States of America, together with answers to the several articles. We have considered them with attention, & with all those dispositions to accomodate them to the wishes of His Majesty which a respect for his character, & a desire of connecting the two nations in amity & commerce would naturally produce. We will now take the liberty of troubling you with the result of our deliberations article by article.
Art. 2. We agree to add the restriction proposed to the end of this clause, to wit, “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. Agreed to add a like clause, to wit “submitting themselves nevertheless to the laws & usages there established, and to which are submitted the subjects of His Majesty the King of Prussia & the subjects & citizens of the most favoured nations.”
Art. 4. Three effects of this article are objected to.
- 1. the permission to export & import all the merchandize of either country without exception.
- 2. the permission to all persons to be buyers & sellers.
- 3. the not extending in express terms the right of transportation beyond the vessels of the two contracting parties.
As to the first we agree to make to the clause the addition proposed, to wit, “Nevertheless the King of Prussia & the United States, and each of them, reserve to themselves the right to prohibit in their respective countries the importation & exportation of all merchandize whatsoever, when reasons of State shall require it. In this case the subjects 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 other nation to import or export the same merchandize, the subjects or citizens of the other shall immediately enjoy the same liberty.”
With respect to the second object, a permission to all persons to become buyers & sellers in this intercourse, it does indeed interfere with the practice of some nations of Europe, wherein the right of buying & selling particular articles of merchandize is frequently given to particular persons or discriptions of persons exclusively. The origin of this practice is to be found in a very remote & unenlightened period, when religion, physics, & every other branch of science was sophisticated & abused. The progress of information & of liberal sentiment has led to reformations in those and in this also seems to have matured principles which should produce a reformation equally wanted. Commerce performs the important office of procuring vent for superfluities, of supplying wants, & of adjusting prices. on a reasonable scale. This it does best where it is freest. Casting an eye over the states of Europe we find them wealthy & populous nearly in proportion to the freedom of their commerce. and we may conclude from thence that were it perfectly free, they would probably attain the highest points of wealth & population of which their other circumstances would admit. A free competition between buyers & sellers, is the most certain means of fixing the true worth of merchandize: on the other hand the restraint of this right to particular persons which constitutes a monopoly, has been found in experience the most powerful engine ever employed for the suffocation of commerce. It is interesting to both parties therefore to guard against this in their stipulations. The law of Konigsberg which prohibits a foreigner from selling his merchandize to any but native subjects, is a monopoly in a certain degree. It would rather seem desireable that foreigners should come into our ports & there transact together all their business of exchange. It is not for us to judge whether under actual circumstances this law of Konigsberg is a proper object of reformation. His Prussian Majesty will decide this, who has already so much extended the limits of happiness for his subjects by the removal of other bars to which time & habit had given their sanction. Should it be indispensable to save the force of this law, we would propose to retain the expressions in this article which give freedom to all buyers & sellers but that at the end of the addition before agreed to a further one should be made in this form. “Nor shall this article derogate from the force of the laws of the city of Konigsberg, which forbid traffic between foreigners within the limits of their jurisdiction.” This will guard against monopoly so much of the feild of commerce as is not already occupied by it. We wish however that in this article the word “persons” should be substituted instead of the “subjects or citizens of that other.” & again instead of “the said subjects or citizens.”
The third objection to this article is that it does not extend the right of transportation beyond the vessels of the two countries. It was thought that the securing this right so far was making a valuable step towards the freedom of intercourse. A right would remain to each party of refusing that privilege to vessels foreign to both; a right which probly would never be exercised but in retaliation on any particular nation adopting that narrow principle. We abandon freely the reservation in its general form in pursuit of an object so valuable to mankind as the total emancipation of commerce & the bringing together all nations for a free intercommunication of happiness. And agree after the words “in their own” to insert “or any other.” but we still propose it for consideration whether it will be expedient to either party to disarm itself entirely of the power of retaliating on any particular nation which may restrain the loading of vessels to articles of the growth or manufacture of the country to which they belong? Circumstances may be produced which would render the retaliation essential to the honour & interests of the parties. We therefore propose after the words “reserve to themselves the right” in the amendment before agreed to, to insert these “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”
This fourth article with the several amendments which we have proposed or agreed to will stand thus “More especially each party shall have a right to carry their own produce, manufactures & merchandize in their own or any other vessels to any parts of the dominions of the other where it shall be lawful for all persons2 freely to purchase them, and thence to take the produce, manufactures & merchandize of the other, which all persons shall in like manner be free to sell them paying in both cases such duties, charges & fees only as are or shall be paid by the most favored nation. Nevertheless the King of Prussia and the United States & each of them reserve to themselves 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 importation and exportation of all merchandize whatsoever when reasons of state shall require it. In this case the subjects 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 other nation to import or export the same merchandize the citizens or subjects of the other shall immediately enjoy the same liberty. Nor shall this article derogate from the laws of the city of Konigsberg which forbid traffic between foreigners within their limits of their jurisdiction.”
Art. 5. We agree that the fifth article shall stand in the form proposed, to wit, “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.”
Art. 8. Agreed to omit the words “and without being obliged to pay any duties charges or fees whatsoever, or to render any account of their cargo” and to substitute those proposed, to wit, “and without being obliged to render any account of their cargo, or to pay any duties charges or fees whatsoever, except those established for vessels entered into port and appropriated to the maintenance of the port itself, or of other establishments for the safety and convenience of navigators, which duties charges & fees shall be the same, & shall be paid on the same footing as in the case of subjects or citizens of the country where they are established.[”]
Art. 9. We agree to the amendment proposed by adding to this article these words “the antient & barbarous right to wrecks of the sea shall be entirely abolished with respect to the subjects or citizens of the two contracting parties.[”]
Art. 10. By the laws of the United States copied in this instance from those of England, aliens are incapable of holding real estate. When an estate of that nature descends to an alien, it passes on by escheat to the State. The policy of the United States does not permit the giving to the subjects of any other power a capacity to hold lands within their limits, which was proposed by the project formerly delivered to Mr Adams. But they are perfectly willing to relieve such persons from all loss on this account by permitting them to sell the inheritance and withdraw the proceeds without any detraction. Again, tho’ with them it is a fundamental principle that every man has a natural right to quit the country in which either chance or choice has placed him, and to become a Member of any other where he thinks he can be happier, and the laws of some of them direct the particular form in which it is to be done, & therefore these States can pass no law to prevent the emigration of their fellow-citizens, yet they will respect the principles of other governments where the practice is different. We consent therefore to add to the end of this clause, from the 8th of the project these words “and exempt from all rights of detraction on the part of the government of the respective States. But this article shall not derogate in any manner from the force of the laws already published or hereafter to be published by his Majesty the King of Prussia to prevent the emigrations of his subjects.[”]3
Art. 12. Agreed to omit the clause “on the other hand enemy vessels shall make enemy goods” &c to the end of the article & to leave that question undecided.
Art. 13. The stipulation “to pay a reasonable compensation for the loss such arrest shall occasion to the proprietors” is not so determinate as to save the necessity of a future arrangement. It was thought questionable whether any mode which might now be thought of, might not, by a change of circumstances, before the case should arise, become inapplicable: and that arrangements would then be easily & amicably taken for doing justice to the individuals interested. We are ready however to receive a proposition for defining the mode at this time. We agree also to the addition proposed to this clause, to wit, “but in the case supposed of a vessel stopped for articles heretofore deemed contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature he shall be admitted to do it, & the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.”
Art. 19. A clause in the treaty with France, the first the United States ever entered into, renders necessary the exception subjoined to this Article.4 It has not been repeated, nor is proposed to be repeated in any subsequent treaty. If any antecedent treaties would require a like exception on the part of his Prussian Majesty, we shall chearfully concur in its insertion, the case being either particularly specifyed or generally described. The practice of carrying prizes into neutral ports & there selling them, is admitted by the usage of nations, & can give offence to none where they have not guarded against it by particular contract. Were the clause now under cosideration to be so changed as to exclude the prizes made on the enemies of either from being sold in the ports of the other, and that kind of stipulation to take place generally, it would operate very injuriously against the United States in cases wherein it is not presumed his Majesty would wish it. For suppose them to be hereafter in war with any power in Europe, their enemy, tho’ excluded from the ports of every other State, will yet have their own ports at hand, into which they may carry & sell the prizes they shall make on the United States, but the United States under a like general exclusion, having no ports of their own in Europe their prizes in those seas must be hazarded across the ocean to seek a market at home: an incumbrance which would cripple all their efforts on that element, & give to their enemies great advantage over them.
Art. 21. Agreed to add as proposed “but by the judicatures of the place into which the prize shall be conducted.”
Art. 25 Agreed to add as proposed “but if any such Consuls shall exercise commerce, they shall be submitted to the same laws & usages to which the private individuals of their nation are submitted in the same place”
Upon the whole it will be seen that we accomodate ourselves to the amendments proposed to the 2d. 3d. 5th. 8th. 9th. 10th. 12th. 13th. 21st & 25th articles, that we agree to the amendments proposed to the 4th. article with certain qualifications, and we cannot but hope that the 4th & the 19th articles so amended & qualified may be permitted to stand.5
We have the honor to be with sentiments of the highest respect / Sir your most obedt & / most hble. Servts
FC in David Humphreys’ hand (PCC, No. 116, f. 229–244); internal address: “His Excellency / The Baron de Thulemeier / &c. &c. &c.”
1. In responding to the Prussian suggestions for revisions that Thulemeier enclosed with his letter of 24 Jan. (No. VI, above), the commissioners accepted virtually all of the Prussian proposals with little if any change. This likely reflected at least to some degree the confidential advice that Thulemeier offered JA in his letter of 24 Jan. and which JA, replying on 13 Feb., indicated he had relayed to his colleagues (Nos. V and VII, above). The annotation has been limited to those instances in which the language offered by the commissioners differs from that in the treaty of 10 Sept., or where the commissioners commented at length on the Prussian proposals. It should also be noted that the commissioners may have enclosed with this letter a list of proposed changes to Thulemeier’s French translation of the treaty, and while the Prussian diplomat does not mention receiving it, several of the proposed changes appear in the final treaty (Jefferson, Papers, description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, Princeton, 1950–. description ends 8:9–10).
2. Here and in the second line below, the word “persons” was replaced in the final treaty with the phrase “Subjects or Citizens.” In addition, the final sentence, referring to the laws of Königsberg, does not appear in the 10 Sept. treaty (Miller, Treaties, description begins Treaties and Other International Acts of the United States of America, ed. Hunter Miller, Washington, D.C., 1931–1948; 8 vols. description ends 2:165–166). For the decision to add that phrase and to remove the reference to Königsberg, see Thulemeier’s 3 May 1785 letter to the commissioners (Jefferson, Papers, description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, Princeton, 1950–. description ends 8:135). There the Prussian diplomat indicated that the Königsberg law had been mentioned only as an example of an internal trade regulation with reference to Articles 2 and 3 of the draft treaty.
3. The text proposed by the commissioners is their translation of a passage in Art. 8 of the draft treaty presented by Thulemeier to JA in April 1784. At least in part owing to their lack of any power to negotiate, neither JA nor his colleagues, Benjamin Franklin and John Jay, apparently raised any objection to Art. 8’s language concerning inheritance or the right of aliens to hold property in their proposals for changes in the draft (Proposed Prussian-American Treaty of Amity and Commerce, [9 April – post 5 May], Nos. I and II, above). It should be noted that Art. 8 of the draft is virtually identical to Art. 6 of the 1783 Swedish-American treaty, which does not mention any disqualification owing to “alienage” (Miller, Treaties, description begins Treaties and Other International Acts of the United States of America, ed. Hunter Miller, Washington, D.C., 1931–1948; 8 vols. description ends 2:127–128).
4. Art. 19 (as originally numbered) of the 1778 Franco-American Treaty of Amity and Commerce (same, p. 16–17).
5. This letter effectively ended negotiations for the Prussian-American treaty. The American response and the revisions suggested by the commissioners were apparently accepted by the Prussian foreign ministry. In Thulemeier’s reply of 3 May 1785, which he enclosed in his letter to JA of the same date, he advised the commissioners that it remained for them only to prepare an English language version of the treaty (Jefferson, Papers, description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, Princeton, 1950–. description ends 8:134–135; Adams Papers, JA, Works, description begins The Works of John Adams, Second President of the United States: with a Life of the Author, ed. Charles Francis Adams, Boston, 1850–1856; 10 vols. description ends 8:238–239).