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Continental Congress to the American Commissioners: Instructions, [7 May 1784–3 June 1784]

Continental Congress to the American Commissioners: Instructions

Copies:5 Massachusetts Historical Society, National Archives; press copy of copy: American Philosophical Society

The instructions that follow established a new diplomatic commission to negotiate and sign a total of twenty treaties of amity and commerce with European and North African powers. Their creation was a long and contentious process. On October 29, 1783, Congress authorized the peace commissioners to offer a treaty to Joseph II and enter into negotiations with other European states.6 However, a congressional committee that included Thomas Jefferson pointed out in December that these instructions had failed to empower the commissioners to sign treaties and to negotiate with non-European powers. The committee’s report outlined the principles that should guide these negotiations.7 Congress debated this report over the next five months, as it struggled to maintain a quorum. Among the disputed articles was number three, which stipulated that the United States should be considered in all foreign treaties as one nation.8 Congress also argued over the demand from southern delegates to appoint two additional ministers from their states in order to ensure the adequate representation of that region.9 On May 7 the news of Jay and Laurens’ impending returns to America, contained in Franklin’s March 9 letter to Charles Thomson, created the opportunity for a compromise. Congress elected the New Yorker Jay as secretary for foreign affairs and a Virginian, Jefferson, as minister plenipotentiary to join John Adams and Franklin. It also approved a set of instructions. These were followed by further resolutions approved on May 11.1 Five days later Charles Thomson sent these instructions to Jefferson to carry to France. After Congress added one final resolution on June 3, Thomson sent the complete instructions, published here, to the commissioners on June 18.2

[May 7–June 3, 1784]

United States in Congress Assembled May 7th. 1784

Whereas Instructions bearing date the 29th. day of October 1783 were sent to the Ministers Plenipotentiary of the United States of America at the Court of Versailles empowered to Negotiate A Peace or to any one or more of them for concerting Draughts or Propositions for Treaties of Amity and Commerce with the Commercial Powers of Europe

Resolved That it will be advantageous to these United States to conclude such Treaties with Russia, the Court of Vienna, Prussia, Denmark, Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa, Tuscany, Rome, Naples, Venice, Sardinia and the Ottoman Porte.

Resolved that in the formation of these Treaties the following points be carefully stipulated.

First That each Party shall have a right to carry their own Produce, Manufactures and Merchandize in their own bottoms to the Ports of the other, and thence to take the Produce and Merchandize of the other, paying in both Cases such duties only as are paid by the most favoured Nation, freely where it is freely granted to such Nation, or paying the Compensation, where such Nation does the same—

Second. That with the Nations holding Territorial Possessions in America a direct and similar Intercourse be admitted between the United States and such Possessions; or if this cannot be obtained, then a direct and similar intercourse between the United States and certain free Ports within such Possessions; that if this neither can be obtained, permission be stipulated to bring from such Possessions in their own bottoms the Produce and Merchandize thereof to these States directly and for these States to carry in their own bottoms their Produce and Merchandize to such Possessions directly.3

Third. That these United States be considered in all such treaties, and in every Case arising under them, as one Nation upon the Principles of the Federal Constitution.—

Fourth.4 That it be proposed, though not indispensibly required, that if War should hereafter 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 and settle their Affairs, and may depart freely, carrying off all their effects without molestation or hindrance; And all Fishermen, all Cultivators of the Earth and all Artizans or Manufacturers unarmed and inhabiting unfortified towns, Villages or Places, who labour for the common subsistence and benefit of Mankind, and peaceably following their respective employments, shall be allowed to continue the same, And shall not be molested by the Armed force of the Enemy, in 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 Merchants and Traders exchanging the Products of different Places, and thereby rendering the necessaries conveniences and comforts of human life more easy to obtain and more General, shall be allowed to pass free and 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 Ships or interrupt such Commerce.

Fifth.5 And in case either of the Contracting Parties shall happen to be engaged in War with any other Nation, it be farther agreed in order to prevent all the difficulties and misunderstandings that usually arise respecting the Merchandize heretofore called Contraband, such as Arms Ammunition and Military Stores of all kinds, that no such Articles carrying by the ships or Subjects of one of the Parties to the Enemies of the other shall on any account be deemed contraband, so as to induce confiscation and a loss of Property to individuals. Nevertheless it shall be lawful to stop such Ships & 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 on their Voyage, paying however a reasonable Compensation for the loss such arrest shall occasion to the Proprietors; and it shall be further 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: But if the other contracting party will not consent to discontinue the confiscation of contraband goods, then that it be Stipulated that if the Master of the Vessell stopped will deliver out the goods charged to be contraband, he shall be admitted to do it, and the Vessell shall not in that case be carried into any port but shall be allowed to proceed on her voyage.

Sixth. That in the same case where either of the contracting parties shall happen to be engaged in War with any other Power, all goods not Contraband belonging to the Subjects of that other Power and shipped in the bottoms of the Party hereto, who is not engaged in the War, shall be entirely free; and that to ascertain what shall constitute the blockade of any place or port, it shall be understood to be in such Predicament, when the assailing power shall have taken such a station as to expose to imminent danger any Ship or Ships that would attempt to sail in or out of the said Port; and that no Vessell of the Party, who is not engaged in the said War shall be stopped without a material and well grounded cause; and in such cases justice shall be done and an Indemnification given without loss of time to the Persons aggrieved and thus stopped without sufficient cause.—

Seventh. That no rights be stipulated for aliens to hold real property within these States, this being utterly inadmissible by their several laws and Policy; but where on the death of any person holding real estate within the territories of one of the contracting parties, such real estate would by their laws descend on a subject or citizen of the other, were he not disqualified by alienage, there he shall be allowed a reasonable time to dispose of the same and with draw the proceeds without molestation.

Eighth. That such treaties be made for a term not exceeding ten years from the exchange of Ratifications.

Ninth. That these Instructions be considered as supplementary to those of October 29. 1783 and not as revoking, except where they contradict them. That where in Treaty with a particular Nation they can procure particular Advantages, to the Specification of which we have been unable to descend, our object in those Instructions having been to form out-Lines only and general Principles of treaty6 with many Nations, it is our Expectation they will procure them, though not pointed out in these Instructions; and where they may be able to form Treaties on Principles, which in their Judgment will be more beneficial to the United States than those herein directed to be made their Basis, they are permitted to adopt such Principles. That as to the Duration of the Treaties, though we have proposed to restrain them to the Term of 10 Years, yet they are at liberty to extend the same as far as fifteen years with any Nation, which may pertinaciously insist thereon; and that it will be agreeable to us to have supplementary Treaties with France, the United Netherlands and Sweden, which may bring the Treaties we have entered into with them as nearly as may be to the Principles of those now directed; but that this be not pressed, if the proposal should be found disagreable.

Resolved, That Treaties of Amity or of Amity7 and Commerce be entered into with Morocco and the Regencies of Algiers, Tunis and Tripoly to continue for the same Term of 10 Years or for a Term as much longer as can be procured.

That our Ministers to be commissioned for treating with foreign Nations make known to the Emperor of Morocco the great Satisfaction which Congress feel from the amicable Disposition he has shewn towards these States and his Readiness to enter into Alliance with them;8 that the Occupations of the War and Distance of our Situation have prevented our meeting his Friendship so early as we wished: But that Powers are now delegated to them for entering into Treaty with him, in the Execution of which they are ready to proceed. And that as to the Expences of his Minister they do therein what is for the Honour and Interest of the United States.

Resolved that a Commission be issued to Mr John Adams Mr Benjamin Franklin and Mr Thomas Jefferson giving Powers to them or to the greater Part of them to make and receive Propositions for such Treaties of Amity and Commerce and to negotiate and sign the same, transmitting them to Congress for their final Ratification and that such Commission be in force for a Term not exceeding two years.

May 11. 1784.9

Resolved That our Ministers to be commissioned for treating with foreign Nations be referred to the Instructions of the thirtieth Day of May 1783 relative to British debts1 the Objects of which they are hereby directed to urge with Perseverance.

That they require with Firmness and Decision full Satisfaction for all Slaves and other Property belonging to Citizens of these States taken and carried away in Violation of the Preliminary and definitive Articles of Peace; and to Enable them to do this on precise grounds Congress will furnish them with necessary Facts and Documents.2

Resolved, That Doctor Franklin be desired to notify to the Apostolical Nuntio at Versailles that Congress will always be pleased to testify their Respect to his Sovereign and State; but that the Subject of his Application to Doct. Franklin being purely spiritual, it is without the Jurisdiction and Powers of Congress who have no authority to permit or refuse it, these powers being reserved to the several States individually.—3

That Doct. Franklin be instructed to express to the Court of France the constant Desire of Congress to meet their Wishes; That these States are about to form a general system of Commerce by Treaties with other Nations; that at this Time they cannot foresee what claims might be given to those Nations by the explanatory Propositions from the Count de Vergennes on the 2d. & 3d. Articles of our Treaty of Amity & Commerce with His Most Christian Majesty; but that he may be assured it will be our constant Care to place no People on more advantageous ground than the Subjects of his Majesty.4

Resolved,5 That the Papers containing the claim of the five Fosters, brothers for the Prize of their Vessel “the three friends” made by Captn. Landais of the Alliance frigate which Papers were communicated by the Count de Vergennes to Doctor Franklin to the end he might apply to Congress for an indemnification of the said Fosters, be remitted to the said Ministers with a Copy of the fourth Clause of the Instructions to them of October 29th. 1783 and the following extract from Dr. Franklin’s Letter of July 22. 1783 to the Secretary for foreign Affairs viz “Mr. Barclay has in his hands the Affair of the Alliance and Bonhomme Richard. I will afford him all the Assistance in my Power. But it is a very perplexed Business. That expedition tho’ for particular reasons under American Commissions and Colours, was carried on at the King’s Expence and under his Orders. Mr. de Chaumont was the Agent appointed by the Minister of the Marine to make the outfit. He was also chosen by all the Captains of the Squadron as appears by an Instrument under their hands, to be their Agent, receive sell and divide Prizes &ca. The Crown bought two of them at Public sale, and the Money I understand is lodged in the hands of a Responsible Person at L’Orient. Mr. de Chaumont says he has given in his Accounts to the Marine and that he has no more to do with the Affair except to receive a balance due to him. That Account however is, I believe, unsettled, and the absence of some of the Captains is said to make another difficulty which retards the completion of the business. I never paid nor received any thing relating to that Expedition, nor had any other concern in it than barely ordering the Alliance to join the Squadron at Mr. de Sartine’s request.” From which extract there is Reason to believe the United States of America had no concern in the Expedition; but that it was carry’d on wholly under the Authority and for the Advantage of his Most Christian Majesty. That if this fact should not be so apparent as to give full Satisfaction to his Majesty’s Ministers, they then take such Measures as in their Discretion shall be thought most conducive to an amicable and equitable adjustment thereof on the best evidence they shall be able to procure.—

Resolved, That the Claim of the Sieur Bayard against these United States for the sum of 255236 Dollars continental Money is not founded in Justice from the Circumstances of the Case as stated by himself,6 which are “That a Vessel & Cargo in which he was interested sailing in May 1779 from Charles Town for France was taken by an English Armed Vessel, and retaken by an American Frigate called the Boston that she was carried to Boston and there sold as French Property by Mr. de Valnais Consul for France at that Port that he unfaithfully and irregularly, as is suggested, endeavoured to have the whole adjudged to the Recaptors, but that the Sentence was that they were only intitled to one eighth and the Sr. Bayard’s Correspondents obliged Mr. de Valnais to deposit with the Consul of France in Philadelphia 255236 dollars continental Money in part of the proceeds with a reserve to the Sr. Bayard against Mr. de Valnais of every right of redress for his irregular Conduct.” That no injurious intermeddling by the United States or any of them or by any of their Citizens is here complained of— That the Money was constantly in the hands of the Sr. Bayard’s Correspondents or of the Consul of his Nation— That he may indeed have suffered by its depreciation as many others have suffered both foreigners and Citizens, but the latter in a much higher Degree than the former— That this Depreciation was not effected by any arbitrary change by Congress in the Value or denomination of the Money which yet has been frequently practised by European States, who never have thought themselves bound to make good the Losses thereby incurred either by their own Citizens or by foreigners, but ensued against the will & the unremitting endeavours of Congress— That in this Case too it might have been lessened, if not prevented by investing the Money immediately in Gold or Silver or in other Commodities. Congress are therefore of opinion that these States are not bound to make Good the Loss by Depreciation—

That as to the Residue of the Claims of the Sieur Bayard, if founded in truth and right they lie only against the State of Georgia, to the Governor of which7 Congress will transmit Copies of the Papers, expressing at the same time our Confidence that that State will cause to be done in it, what Justice and the respect due between friendly nations require, and that the Sieur Bayard be referred to them.

Resolved, That the friendly Services rendered by the Sr. John Baptist Pequet, Agent for the French Nation at Lisbon, to great Numbers of American Sailors carried Prisoners into that Port during the late War, and his sufferings on that Account merit the sincere Acknowledgements of Congress, and that it be referred to the said Ministers to deliver him these in honourable Terms, & to make him such Gratification as may indemnify his losses & properly reward his Zeal.8

Resolved, That the papers relating to the detention of the schooner Nancy, captn. Gladden, belonging to Citizens of these United States residing in North Carolina, be transmitted to our ministers for negotiating Treaties with foreign Powers; and that they be instructed to make enquiry into the cause of the seizure and detention of the said schooner and her Cargo, and if it shall appear that she has been unjustly detained to demand the release of the Vessel and the restoration of her Cargo with adequate damages for her detention—9

June 3. 1784.1

Resolved, that the Ministers Plenipotentiary of the United States for negotiating Commercial Treaties with foreign Powers be, and they are hereby instructed, in any negotiations they may enter upon with the Court of Spain, not to relinquish or cede in any event whatsoever the right of the Citizens of these United States to the free Navigation of the River Mississippi from its source to the Ocean—2

(signd) Chas. Thomson. secy.

Notation by John Adams: Instructions. May 7. 1784.

[Note numbering follows the Franklin Papers source.]

5We publish the one that JA retained; it is largely, if not entirely, in BFB’s hand. We silently correct several minor copying mistakes, and note below two instances of BFB’s having omitted words, which are supplied from other official versions. The press copy at the APS was made from BFB’s copy and was kept by BF, who overwrote in pencil some of the faintest lines at the bottom of the first page. The copy at the National Archives was made by David Humphreys for the commissioners’ letterbook. It omits several May 11 instructions that were either for BF alone or did not pertain to the treaty negotiations.

6XLI, 154–8, 168. BF had written to Congress in July, 1783, that several European powers had signaled their interest in forming commercial treaties with the United States and pointed out the need for a new commission: XL, 360–1, 363, 368.

7JCC, XXV, 812–13n, 821–8; Jefferson Papers, VI, 393–402.

8For the debates in Congress see Jefferson Papers, VI, 400–1n; JCC, XXVI, 169–70, 176–7, 180–5. Later that year, TJ recalled the difficulties of passing Article 3 but observed that the “majority however is for strengthening the band of Union, they are the growing party, and if we can do any thing to help them, it will be well”: Jefferson Papers, VII, 478–9.

9Smith, Letters, XXI, 460–1, 583, 612; JCC, XXVI, 341–5.

1JCC, XXVI, 355–62.

2Jefferson Papers, VII, 261–71; Thomson to the American commissioners, June 18, below.

3TJ considered the negotiation of commercial treaties with those European nations that possessed colonies in the West Indies (i.e., Britain, Spain, Portugal, France, Holland, Denmark, and Sweden) to be the most important task of the commissioners: Jefferson Papers, VII, 638.

4BF drafted this article in December, 1782, for inclusion in the definitive peace treaty, but the British ministry rejected it: XXXVIII, 444–5; XL, 257–8, 438. On Sept. 10, 1783, the peace commissioners sent it to President of Congress Boudinot as one of the additional proposals they had made to Hartley, beyond those already accepted in the preliminary treaty: XL, 602. Two members of the congressional committee appointed on Dec. 13, 1783, to examine those documents, TJ and Elbridge Gerry, also served on the committee whose Dec. 20 report formed the basis of the present instructions: JCC, XXV, 812–13n.

5As with the previous article, the peace commissioners unsuccessfully proposed this article (without the concluding sentence) to Hartley for inclusion in the definitive peace treaty: XL, 258–9, 438.

6BFB’s copy did not include the words “of treaty.”

7BFB’s copy did not include the words “or of Amity.”

8As the peace commissioners had reported to Congress on Sept. 10: XL, 605.

9On this day Congress concluded its debate of the December report and voted to make several changes. First, it eliminated a paragraph instructing the commissioners to apologize to European powers for the fact that, because of its debts, the United States would not be able to maintain resident ministers at their courts. Second, it substituted the first resolution below for a longer paragraph instructing the commissioners to urge European powers to show “reasonable forbearance in the levy of debts due within these states to British subjects.” Congress postponed a decision about where American consuls and consuls general would be stationed. In addition to the following resolutions, Congress also approved a draft commission for the three ministers (see under [May 12], below): JCC, XXV, 825; XXVII, 367–74; Jefferson Papers, VI, 397, 401–2n.

1Congress instructed the peace commissioners on that day to negotiate an amendment to the preliminary treaty that would grant American debtors at least three years after the signing of the definitive treaty to repay their prewar debts to British creditors and that would deny all demands for interest accrued during the war. The following day Robert Livingston sent a copy of these instructions to the commissioners: XL, 87.

2On May 26, 1783, Congress directed the peace commissioners to remonstrate with the British about this issue: XL, 75–6.

3Papal Nuncio Pamphili inquired of BF in July, 1783, whether Congress would permit the appointment of a bishop or vicar apostolic in the United States. Although BF warned Pamphili that Congress would not become involved in church affairs, he forwarded the nuncio’s memoir to Congress: XL, 410–12, 516–18, 623.

4On May 20, 1783, Vergennes proposed three additional articles to the Franco-American treaty, which affirmed that the United States and France would grant each other most-favored-nation status. The peace commissioners did not forward the proposal to Congress until after the definitive treaty with Britain had been concluded: XL, 45–6, 606.

5Here Congress confused Forster frères’ attachment of prize money made by the Alliance (for the firm’s claim and the papers mentioned here see XL, 207–8, 414–15, 624) with the issue of settling the accounts of John Paul Jones’s 1779 squadron, which had been addressed in the Oct. 29 instructions from Congress (XLI, 156) and BF’s July 22 letter (XL, 364–5).

6In a memoir, which BF forwarded on Sept. 13, 1783: XL, 435, 623–4.

7John Houstoun: ANB.

8On Sept. 13, 1783, BF sent Boudinot a memoir from Jean-Baptiste Pecquet that Vergennes had forwarded to him: XL, 243–6, 423, 623–4.

9For the detention of the Nancy, Capt. John Gladin, in Castlehaven, Ireland, see XL, 381–2n. According to a report in the Independent Ledger and the American Advertiser of Dec. 15, 1783, the crew of the Nancy had cut the ship’s cables on Aug. 11 and escaped from the harbor, leaving behind their captain. We have no evidence that the commissioners ever acted on this part of their instructions.

1This final part of the instructions was based on a committee report by Edward Hand, Samuel Hardy, and James Monroe on a May 31 motion by Francis Dana and Elbridge Gerry. On the same day Congress issued commissions to JA, BF, and TJ to negotiate supplementary treaties of commerce with France, the Netherlands, and Sweden (see Charles Thomson’s letter to the commissioners of June 18): JCC, XXVII, 489–90, 529–30.

2Although Article 8 of the definitive peace treaty stipulated this right (XL, 574), the issue remained unsettled as Spain controlled both banks of the lower part of the Mississippi River.

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