III. Observations by the Commissioners
Observations on the alterations proposed in the draught of the treaty between her most faithful majesty, and the U.S. of America.
Note 1. 2. 3. Art. 1 & 2 agreed to.
Note 4 Art. 2. proposes after the words ‘trade there in all sorts of produce manufactures and merchandize’ in the 2d and 3d clauses, to add ‘the importation of which shall not be prohibited1 by the laws.’
[A regulation of the government of Portugal, prohibiting the importation of flour into that country, having borne extremely hard on the commerce of the U.S. in that article it was made the subject of consideration in an early part of the present negociations: and the objections to that regulation having been communicated by the minister of Portugal to his court he has been pleased to give us a copy of their answer and observations. In reply to these we must say that the price of the manufacture weighs little with us in comparison with other considerations. It would not have produced any pertinacious adherence on our part; and the less, as the manufacture of this article goes to the maintenance of machines only and not men. The truth is that whatever either country might gain by the operation of manufacture is lost manifold by both from other circumstances. There is in America an insect called the Weavil, which deposits it’s egg in the grain of wheat while growing. To prevent this from hatching and destroying the grain requires constant attention and expence until the grain be ground: nor will any degree of attention or expence always ensure the farmer against it. His object is therefore to have his grain ground as soon as possible. But the regulation in Portugal rejecting foreign flour, so much as is intended for that market must be preserved in the form of grain. The losses which occur in attempting this are very great. Sometimes the whole mass is lost, and always a good part of it. These attempts serve also to perpetuate and to multiply this insect. These losses fall in the first instance on individual farmers; but as the farmer must live by his calling he is obliged to calculate them in the subsequent sales of his grain and to ask so much the more for it; so that the effect reaches ultimately the Consumer also.
The states of America, which raise grain for exportation, are mostly those of the Middle parts. Their summer heats are excessive; and these take place, not only by land, but in the seas they must traverse to get to an European market, especially one so far Southward as Portugal. Grain collected in large masses generates of itself a great heat, which in those climates is such as to hasten it immediately to putrefaction. The farmer strives against this by shovelling it constantly in large and aery barns. This increases it’s cost. But when it is laden on ship-board, there is no longer room to perform this operation, nor can the ship’s crew attend to it from their ordinary ship duties. The heat of the hold of the ship adds to that of the climate and both together produce frequent, great, and sometimes total losses of the cargo. These losses must therefore be calculated in the price of the wheat which gets safe to market and must affect the consumer. The consequences of these circumstances are obvious. Portugal loses by an increase of the price of the grain, and infinitely more than she gains by it’s manufacture. The American merchant could send her the flour of any given quantity of wheat for much less than he is obliged to ask for the wheat itself. The transportation of the bran is lost, as that will not pay it’s own transportation. These are circumstances by which both nations lose, and neither gains. It is objected that this regulation is general against all nations, and that it cannot be relaxed in favor of America without letting all nations into the benefit of that relaxation. The Dutch and Russians are supposed to be among the principal furnishers of grain to Portugal. It is not for us to say how Portugal would be affected by extending such a relaxation to other nations as well as America. But it is evident that while this regulation exists, it gives to the Dutch, Russian and other European furnishers a monopoly of the grain trade to Portugal and excludes the American from competition so long as grain is below a certain price; that is to say, till the wants of that kingdom rise to such a height as to oblige her to give what will pay the American for his grain, the losses on it, and it’s transportation. Could he be permitted to bring flour and thus avoid those losses, it is possible his large supplies might prevent the price of bread from ever rising to this height. The object of the present treaty is to place each nation on the footing of equality with other the most favoured nations. But on the part of the U.S. this equality is but nominal in the article now under consideration. A difference of circumstance renders this seeming equality a mere delusion. Confining the importation to a form which the nature of their climate forbids is a suppression of the trade to the loss of Portugal and the only gain of the Dutch and Russian merchant. These obtain their grain in countries where it’s preservation in that form exposes it to no insect, where the cold of the climate counteracts instead of co-operating with the natural causes of it’s destruction.2 The greater part of their navigation too is through colder seas.3
Notwithstanding however the inequality and4 the pressure of this restriction on the commerce of the U.S. respect to her most faithful majesty, and a desire of cultivating her friendship induce us not to insist further on the subject at this moment, nor to make it a bar to the establishment of fixed principles of commerce between the two nations. We accede therefore to the amendment proposed; relying for a revisal of it on the wisdom and magnanimity of the Queen, on her dispositions to meet the friendship of the U.S., her willingness to encourage an interchange of productions between the two countries, and the conviction which will arise from experience and reflection that this restriction produces loss to both parties.]5
Note 5. and 6. Art. 3. and 4. agreed.
Note 7. Art 4. proposes after the words ‘favoured nation’ to add ‘dont le privilege ne seroit point l’effet d’une compensation particuliere.’ Future privileges of this kind are provided for by the 26th article. This alteration therefore respects only those actually subsisting. But instead of providing for them by a general expression, the extent of which is unknown, and the effect of which might in fact be to destroy what it is the object of this treaty to fix, it is proposed to specify particularly the privileges allowed to other nations, and which are not to be communicated by this treaty. If the British privilege for the importation of their woollen cloths into Portugal be the only one, it may be provided for by adding at the end of the clause some such words as these. ‘And it is further specially agreed that the liberty of introducing woollens into the kingdom of Portugal which has been stipulated to his Britannic majesty on behalf of his subjects of Great Britain in compensation for certain privileges in favor of the wines of Portugal shall not be understood to be communicated to the citizens of the U.S. by this or any other article of the present treaty.’6
Note. 8. Art. 4. Instead of omitting the paragraph ‘Nevertheless each party &c’ we propose to alter it so that it may stand as follows. ‘The U.S. of America 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 each party reserves the right to prohibit &c.
Note. 9, Art. 5. Agreed to omit the part of the article objected to, so as that the 5th article shall stand thus. ‘All merchants commanders of vessels and other subjects and 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: they shall also be free to unload their merchandize at such time and into such vessels as they shall think most convenient.’
Notes 10. 11. Art. 8: agreed to, and the 12th. Art. 11. was relinquished by the minister of Portugal in conversation on the subject.
[Note 13. 14, Art. 12. 13. To lessen the misfortunes and miseries of mankind during the course of war is very much to be desired. The emancipation of agriculture and commerce from the effects of war is making a good step towards attaining this end. This emancipation will be effected in a great measure by the stipulations proposed and agreed to in the 23d article. But the 13th article proposes another measure which is also material. It is, to relieve the commerce of neutral nations from the vexations, delays and losses it meets with from those who are belligerent, under pretence of their vessels being charged with contraband articles. During the course of the last war these oppressions were carried so far, that at length the neutral powers found it necessary to combine and arm against them. They entered into stipulations declaring that in future certain articles, which they enumerated, should not be deemed contraband and that if any of the belligerent parties pretended to seize and confiscate them as such they could make common cause of it. They struck off by this measure, much from the catalogue of contraband. This was the first step: it has met the approbation of the whole world and is become a part of the laws of nations. The second step is that now proposed to be taken, to wit, to strike off the residue of this catalogue, and thus take from the officers of belligerent ships the temptation of confiscable articles which induces them to stop all neutral vessels at sea, to7 enter them for the purposes of search, and when entered to commit irregularities, and often to take their men from them to man their own vessels. The last war furnished innumerable instances of this; and it is believed every war does. Nor does the retaining this power over the articles called contraband produce a single good effect. In the infancy of the arts, when the practice of seizing such articles was introduced, it might be one of the means of distressing an enemy to intercept supplies of the implements of war passing to them by sea. But the arts are now too much diffused to leave nations at all dependant on importations by sea, excepting the case of a beseiged town, against which sufficient provision is retained by the article. There is no nation in Europe which cannot either furnish those implements within themselves, or procure them by land from their neighbors; especially since the Armed neutrality has struck naval stores from the catalogue of contraband. The residue of that catalogue therefore are the remains of a practice which continues after the causes producing it have ceased to exist; and it is become an abuse. It is therefore well worthy the benevolence and magnanimity of her most faithful majesty to be among the first in eradicating the remains of an abusive institution which she has been among the first to check. The first reformation was enforced by arms. For the second we propose example only. This being once set, and the vexations of contraband abolished between two nations by their particular convention, it is to be hoped it will gain from nation to nation and soon become general. The advances made and making in liberality and benevolence of mind, and the enlarged views of some of the crowned heads of Europe and particularly of her most faithful majesty, are the foundation of our hope that this article will be agreed to on her part.]8
Art. 15. We agree between the words ‘interest’ and ‘sufficient’ to insert ‘and more especially the commanding officer of the vessel shall be responsible civilly for the same in his person and property by whomsoever of his crew the injury was done.’
Note 15. Agreed.
Note 16. Article 19. Instead of the paragraph proposed to be omitted we agree to substitute the following. ‘But nothing herein contained shall be understood to derogate from the obligations of the U.S. of America towards his most Christian majesty as stipulated in the article of their treaty of Amity and commerce.
Note. 17. Article 22. Relinquished by the minister of Portugal in our conference with him.
Note 18. 19. Art. 23 and 27. Agreed.
Dft (DLC: TJ Papers, 17: 2971–4); in TJ’s hand, endorsed by Adams: “Our Reply to the Chevr. De Pintos Remarks” contains deletions and interlineations, some of which are noted below. Two lengthy extracts from this document are subjoined to the PrC of the projet of the treaty in DLC: TJ Papers, 27: 4630–9 (described in notes to Document i in this series), entitled respectively “Observations on the transportation of flour to Portugal” and “Observations on Contraband Goods” these are indicated below in notes 5 and 8. In addition, there is also to be found in DLC: TJ Papers, 17: 2975 a brief résumé in TJ’s hand of the substance of the Commissioners’ Observations as contained in Dft; this résumé omits the two lengthy observations on the flour trade and contraband; on its verso is the following notation by TJ:
3. not to arm privateers
4. not to disturb trading vessels
5. even under pretence of contraband
1. not to waste country
2. nor to take husbandmen.”
The Dft was prepared by TJ for use (by Smith perhaps) in making a fair copy to be submitted to De Pinto; the one-page résumé was probably made by him as an aide-mémoire for himself. In addition to these, there is in MHi: AMT a rough draft of that part of the text of the Commissioners’ Observations concerning woolens; see note 6 below.
1. In De Pinto’s Observations this word is “défendue,” which Adams translated as “forbidden” TJ’s translation as “prohibited” was adopted in the final text.
2. Preceding three words are interlined in Dft in substitution for “which tend to produce a putrefaction,” deleted.
3. At this point the following is deleted in Dft: “The interests of Portugal as well as of the U.S. are so obviously bound up in the repeal of this regulation, that.”
4. The following is deleted at this point in Dft: “injury which.”
5. The paragraphs enclosed in brackets (supplied) constitute the whole of the first extract subjoined to PrC of projet, as described above.
6. There is in MHi: AMT a draft in TJ’s hand of an early form of this section of the Commissioners’ Observations. As originally phrased it read: “And it is further especially agreed that the liberty of introducing woollens into the kingdom of Portugal, which has been ceded to certain nations in compensation for other privileges yielded on their part to the commerce of Portugal, shall not be understood to be communicated to the citizens of the U.S. by this or any other article of the present treaty.” Below this, TJ wrote: “strike out the words ‘whose privilege is not the effect of a particular and reciprocal compensation’ and add at the end of the clause the above paragraph.” Accordingly, this paragraph was altered by deletion and interlineation so as to read: “except the liberty of introducing woollens into the Kingdom of Portugal ceded to certain nations, which is the effect of a particular and reciprocal compensation.” At the bottom of the passage thus altered, Adams wrote: “Saving however the Liberty of introducing woolens.” All of these were rejected in favor of the phraseology quoted above in Dft, and even that was not adopted in the final text of the projet.
7. The words “their great loss” are deleted in Dft.
8. The passage enclosed in brackets (supplied) constitutes the whole of the second extract subjoined to PrC of projet, as described above.