American Commissioners to Favi, with Observations on Treaty Project
Passy June 8th. 1785
We have the honour of transmitting herewith our sentiments on the counter-draught of the treaty proposed to be established between His Royal Highness the Grand Duke of Tuscany and the United States of America; you will therein perceive that we accede to most of the changes proposed by the counter-draught. Some of them we wish to modify, and on others we offer reasons which we hope will be satisfactory to your court. It is with great pleasure that we meet their dispositions to promote by this establishment the friendship and happiness of the two nations. We have the honour to be With very high respect & esteem Sir Your most obt. & Most humble Servts.,
Observations on the alterations proposed on the part of His Royal Highness the Grand Duke of Tuscany in the articles of treaty offered by the Commissioners of the United States of America.1
We agree that the 2nd. and 3d. articles shall stand with the changes proposed as follows.
Art. 2. The subjects of His Royal Highness may frequent all the coasts and countries of the United States of America and reside and trade therein in all sorts of produce, manufactures and merchandize, without exception of any, and shall pay within the said U.S. no other or greater duties, charges, or fees whatsoever, and shall be obliged to observe no other or stricter formalities, regulations, or cautions than the most favoured European nations are or shall be obliged to pay and observe: and they shall enjoy all the rights, privileges and exemptions for their persons and property and in navigation and commerce which the most favoured European nation does or shall enjoy.
Art. 3. In like manner the Citizens of the U.S. of America may frequent the coasts and countries of His Royal Highness the Grand Duke of Tuscany and reside and trade therein in all sorts of produce, manufactures and merchandize, without exception of any, and shall pay in the dominions of His said Royal Highness no other or greater duties, charges and fees whatsoever, and shall be obliged to observe no other or stricter formalities, regulations, or cautions than the most favoured European nations are or shall be obliged to pay and observe: and they shall enjoy all the rights, privileges, and exemptions for their persons and property and in navigation and commerce which the most favoured European nation does or shall enjoy.
Art. 4. We accede to the alterations proposed for the 4th. article. But we wish then to add two modifications to that article which seem equally necessary and proper for both parties. 1. That each party reserve a power to prohibit absolutely within their own territories the exportation or importation of any particular commodity when necessity or reasons of state require it. As for instance the exportation of grain when a famine prevails or is apprehended: or the importation of any particular manufacture which either party wishes to encourage at home by excluding what would come from abroad. It is only necessary in these cases to provide that the moment such exportation or importation is allowed to any persons at all, it shall be permitted to the other party also. The 2. modification is that where any nation restrains the transportation of commodities to the vessels of the state of which they are the produce, each party shall have a right to establish against that nation retaliating restraints. We therefore propose that the 4th. article with the alterations offered on the other part, and the modifications abovementioned shall stand in this form.2
Art. 4. More especially each party shall have a right to carry any kinds of produce, manufactures and 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 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, and observing such formalities, regulations and cautions only as are or shall be paid or observed by the most favoured European nation. Nevertheless His Royal Highness and the United States and 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 produce 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 the contracting parties shall not import nor export the merchandize prohibited by the other. But whenever3 one of the contracting parties permits any other nation or its own citizens or subjects4 to import or export the same merchandize, the citizens or subjects of the other shall immediately enjoy the same liberty.
Art. 5. This article had in view to authorize the merchants on each side to employ 1. what persons they please, and 2. what vessels they please, in the transaction of their business, lading and unlading their ships. The Tuscan regulations of commerce having rendered it necessary as to the first object to add a proviso “that the person so employed be thereunto authorized” and again “that they should use the public porters in places where they are or shall be established” it is apprehended that these restrictions of the first branch of the article are so broad as to leave very little for it to operate on, while at the same time it might in some cases produce embarrassment and contradictory5 constructions. It is therefore proposed to omit altogether what relates to the persons to be employed, and retain only what relates to the vessels: so that this article may6 stand thus.
Art. 5. 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, or to receive them into their own, or to wait for their being loaded longer than they please.
Art. 6. The additions proposed to this article are 1. that the laws as to prohibited merchandize shall be observed by the vessels of each party: 2. that they shall receive on board the usual custom house guards: and 3. that vessels in harbour shall not be asylums for delinquents. It is supposed that these effects flow from the laws of every state; and as there is no stipulation proposed in this treaty which would suspend the force of these laws, it is submitted whether it be necessary to stipulate their observance; and whether the referring the obligation of these laws to a false basis, that of national convention, when the true basis of their obligation is the authority of the legislature within its own territories, might not weaken the energy of the laws in some other possible cases, and in the end produce more doubt than these stipulations would remove. Nevertheless the American Commissioners not objecting to the effect of the additions, but only supposing they will take place without express stipulation, are ready to acquiesce in them if it will be more satisfactory to the other party. But if thought indifferent by them, we propose that the 6th. Art. shall remain as originally formed.
Art. 8. We agree to the 8th. Art. in the following form, which it is apprehended will include the additions proposed.7
Art. 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, and not willing to unload their cargoes or break bulk, shall put out and send their boat to the proper place, and shall give due account of themselves: but they shall then have liberty to depart and to pursue their voyage without molestation, and without being obliged 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 and excepting also the charges of the visits of the health officer, which duties, charges and fees shall be the same and 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 alterations proposed in this article, the latter clause of which will stand, with the alterations, in these words: “And if the operations of repair shall require that the whole or any part of their cargo be unladed, the same rules shall be observed as to the paiment of dues which are observed in like cases with the inhabitants of the country, and with the other the most favoured nations of Europe.”
Art. 10. One of the alterations proposes that a subject or citizen of either party dying in the country of the other, and leaving no person on the spot to take care of his goods, the courts of the country shall take them into their custody and keep them &c. but by the laws of our states the courts do not take into their own custody the goods of persons dying,8 but appoint trusty persons to do it, and make those persons accountable to the owners. Therefore we proposed that in such cases, the goods should be taken care of in the same way as those of natives are in the like case, leaving the particular mode to the laws of the country. We still suppose this will be best for both parties and therefore propose the tenth article, with the alterations to which we accede, in the following form.
Art. 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: and their representatives, whosoever they be, 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 and dispose of the same at their will, paying such dues only as the inhabitants of the country and of the nations of Europe the most favoured shall be subject to pay in like cases. And in case of the absence of the executor, attorney and other representatives, such care shall be taken of the said goods and for so long a time as would by the laws of the Country9 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 and 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 subject or citizen of the other were he not disqualified by alienage, such subject shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation.
Art. 13. We agree to the alterations proposed in the 13th. article, and that it shall stand thus:
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 and misunderstandings that usually arise respecting the merchandize heretofore called contraband, such as arms ammunition and military stores of every kind, no such articles carried in the vessels 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 and a loss of property to individuals. Nevertheless it shall be lawful to stop such vessels and to make them unlade such articles in the nearest port putting them under safekeeping, and 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 proceeding, paying however a reasonable compensation for the loss such arrest shall occasion to the proprietors: and it shall further be allowed 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 its destination. And to remove all doubt respecting the merchandize and effects which shall be subject to the arrangements in this article, it is declared that they are the following, Canons, mortars &c. but these articles shall not be subject to be stayed, provided they be not in greater quantity than may be necessary for the use of the ship, or of the persons in it.
Art. 14. We agree to the alteration proposed in the 14th. article, and that the clause “shall be provided” &c. shall stand thus “shall be provided with sea-letters or passports which shall express the name the property and burthen of the vessel, as also the name and dwelling of the master, which passports shall be made out in good and due forms, and in the manner and for the time which is usual with the respective nation in time of peace, on which subject such further explanations shall be entered into as occasion may render necessary; and shall be exhibited whensoever required &c.” to the end of the clause as proposed in the original draught.
Art. 16. The 16th. Article, among other things, proposes that no other than the ordinary legal procedure shall be used against subjects or citizens of the one party committing offences within the jurisdiction of the other: it has been proposed to add “and with the subjects, citizens or inhabitants of the other.” If the effect of this addition is rightly understood, it would be contrary to our wish in such cases as these. A Tuscan commits an offence against an Englishman, both of them being transiently in a port of America. This article would not prohibit an extraordinary procedure contrary to the common course of law against the Tuscan. It is submitted therefore whether it is not better to extend to our people the benefits of the ordinary course of procedure in every case of offence committed by one of them within the jurisdiction of the other, whether the party offended be an inhabitant or not. This is what was proposed by the article as it stands in the original draught.10
Art. 17. We agree to the alterations proposed to the 17th. article, and that it shall stand thus.
Art. 17. If any vessel or effects of the neutral power be taken by an enemy of the other, 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, without any pretensions whatever to salvage. But if a vessel of the one party be taken by pirates or sea rovers and retaken by a vessel of the other, one third part of the value of the vessel and cargo retaken shall be given to the recaptors.
Art. 18. Two additions are proposed in the 18th. article. 1. to insert among the causes of refuge in each others ports, that for the ordinary affairs of their commerce and navigation. But as the 2d. and 3d. articles relate solely to cases of commerce, and give every privilege and still more in all such cases, it is submitted whether the insertion here proposed is necessary or can give any additional advantage to our merchants and sailors; and if it cannot, then whether it is not better omitted, as two articles relating to the subject but differently expressed may sometimes produce confusion. The 2. addition is of these words: “nevertheless in every case the vessels which shall come into the respective ports, scales, or roads shall exactly observe the laws &c.” We beg leave to refer to our observations on the 6th. article as containing our sentiments on this addition also. We propose therefore that this 18th. article shall retain its original form.
Art. 19. The 19th. Article had provided that the armed vessels of either party might carry their prizes freely wheresoever they please: the words “within the jurisdiction of the other” are proposed to be added, to which there could be no objection but that they produce an implication that they may not be carried out of their jurisdiction when once they shall have entered into it.
We agree to all the other alterations of this article, only proposing that the last shall be in these words “and the same shall take place in all those cases in which the most serene Grand Duke of Tuscany has made like conventions with other powers.” It is just that preceding obligations should prevail against the present treaty, but that the present should prevail against those which shall be subsequent. The Article with its alterations will stand thus.
Art. 19. The vessels of war public and private of both parties shall carry freely wheresoever they please the vessels and effects taken from their enemies without being obliged to pay to officers of admiralty, of the customs or any others, any duties charges or fees, other than those established for other vessels and merchandize, and which are paid by other the most favoured nations of Europe: nor shall such prizes be arrested, searched or put under legal process when they come to and enter the ports of the other party, except the case where the prize is charged to have been made against the laws of neutrality existing in the country: but may freely be carried out again at any time by the captors to the places expressed in their commissions, or wheresoever they please, the commanding officer of the vessel making the capture being obliged to shew his commission and instructions, or to give other sufficient proofs whenever it shall be alledged that he was not authorized to hoist the flag of the nation under which he made the prize. But no vessel which shall have made prizes on the subjects of his most Christian Majesty the King of France shall have a right of asylum in the ports or havens of the U.S. 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 and the United States. And the same shall take place in all those cases in which the most serene Grand Duke of Tuscany has made like conventions with other powers.
Art. 20. Our laws do not assume cognisance of acts done neither within their jurisdiction, nor by their citizens. Therefore a subject of Tuscany, committing hostilities on us, at sea, under the flag of another power, would not be liable to their sentence. But a stipulation by his Sovereign that he should be liable, would give that authority. It would be necessary however to say in what predicament he should stand liable. That of a pirate seems most analogous to his proceedings. We propose therefore to retain that word in order to adapt the article to our laws, while those proposed on the other part may be also retained to adapt it to the laws of Tuscany: and that the article shall stand thus:
Art. 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 or otherwise severely according to the rigor of the laws.
Art. 21. §4. We agree that the 4th. section of the 21st. article shall stand as proposed, thus. 4thly. The vessels of war public and private of the two parties shall be reciprocally admitted with their prizes into the respective ports of each: and shall be freely at the disposal of the captor, according to the laws, usages, and regulations of the state to which the captor belongs.
Art. 24. The 24th. Article proposed that officers breaking their parole, and privates escaping from their cantonment should lose so much of the benefit of the article as provides for their enlargement on parole or in cantonment. It is proposed on the other part that they shall lose the benefit of this article; that is to say the whole benefit of it. But it would seem to be a rigour neither laudable nor useful, to deprive them of their wholesome and plentiful ration, and all other the benefits of this article, for a breach of the limits of their confinement. We would therefore repeat our wish that they should thereupon be subject only to close confinement, as originally proposed, and of course that this article should remain in its first form.
Art. 25. We agree that the 25. article shall be as proposed, thus Art. 25. The two contracting parties grant to each other the liberty of having each in the ports of the other, consuls, vice consuls, agents and commissaries of their own appointment, observing the usual forms of notification and admission and on the same footing as is or shall be allowed to any other the most favoured European nation.
We agree also that the first part of the 26th. Art. shall stand thus.
Art. 26. If either party shall hereafter grant to any other European nation &c.
The articles on which no observations have been made, that is to say the 1st. 7th. 11th. 12th. 15th. 22nd. 23d. and 27th. to remain in the form originally proposed.
FC (DNA: PCC, No. 116); in David Humphreys’ hand; at foot of letter: “M. Favi Charge des Affaires of Tuscany.” Dft (DLC); in TJ’s hand; endorsed by Humphreys. Tr (DNA: PCC, No. 86); also in Humphreys’ hand. Enclosure: FC (DNA: PCC, No. 116; in Humphreys’ hand); Dft (DLC; in TJ’s hand, with several notations and additions in red ink in Franklin’s hand); and Tr (DNA: PCC, No. 86; also in Humphreys’ hand). A copy of the covering letter and its enclosure were sent with the Commissioners’ letter to Jay of 18 June 1785. In addition to the textual variations between Dft and Tr of the Commissioners’ observations, there are several minor differences or clerical errors not noted here. For a preliminary form of TJ’s draft of the observations, see his notes on alterations proposed by Favi under 26 Apr. 1785. The contents of the present enclosure were agreed to by Adams, Franklin, and TJ before Adams left Auteuil for London on 20 May.
1. This caption was inserted in Dft by TJ above the following deleted passage: “Many of the articles in the original Draught being returned without objections or any alterations proposed, it is presumed that they are to stand as originally proposed. We shall therefore note here [… such] articles only as are proposed to be changed.”
2. This sentence in Dft is interlined in substitution for the following, which TJ deleted: “The second modification is that each party shall reserve a power of excluding from the right of transportation to or from their country the vessels of any power which shall exclude the vessels of such party from carrying productions foreign to their own country. Great Britain does this by her navigation act. A power of retaliating on her therefore, or on any other power which should adopt a similar policy, should be reserved by every nation.”
3. This word was interlined in Dft by Franklin to replace TJ’s “if.”
4. This and the preceding five words were interlined in Dft by Franklin.
5. Dft and Tr read: “contrary.”
6. This word was substituted in Dft by Franklin for TJ’s “shall.”
7. In Dft Franklin made the following comment which was later deleted: “One is omitted, dovranno spedire la lancia, &c. Perhaps not necessary, tho& usual and respectful for Strangers entring a Port to give an Account of themselves, and in some Cases it may be useful.”
8. The words “by the laws … persons dying,” were inserted by TJ in Dft in substitution for the following: “with us the courts never take the goods of persons dying into their own custody.”
9. This and the preceding five words were interlined in Dft by Franklin.
10. Franklin inserted at this point in Dft the following comment which was later struck out: “Might it not be well to separate the Parts of the 16th. Article, and make of them two distinct Articles?”