The twenty-seven-article treaty proposal that the American commissioners sent to Thulemeier on November 10 was copied, with the appropriate adjustments, from the one they had prepared for use with Denmark; see the headnote and documents immediately above. Jefferson’s final draft of the proposal for Denmark is published in The Papers of Thomas Jefferson, with all discrepancies between it and his first draft noted in annotation.5 The proposal as sent to Thulemeier is published in The Papers of John Adams, alongside the French translation that Thulemeier subsequently commissioned.6 Given these excellent resources, this edition does not reproduce the proposal in its entirety. We confine ourselves here to the three articles that can be traced directly or indirectly to Franklin. Two of them, which date from 1782, have appeared in previous volumes in their original form; the third is published here for the first time. All three grew out of Franklin’s determination to use the occasion of forging international treaties as a means to advance civilization toward more humane practices. In his own words, Franklin wanted to “improve” the Law of Nations.7 Radically new, and ratified by Prussia, these three articles are the ones for which the Prussian-American Treaty of Amity and Commerce is still renowned.

Franklin conceived the original versions of what are here listed as Articles 13 and 23 in the wake of signing the preliminary articles with Great Britain, when he and his fellow peace commissioners were drafting additional articles to propose for the definitive peace treaty.8 Rejected by Britain, the articles were approved by Congress, which, in the spring of 1784, sent them back to Paris in slightly edited form for inclusion in the new proposal for commercial treaties.9

Article 23 was further altered during the commissioners’ deliberations. Jefferson initially suggested that the qualifying phrase “peaceably following their respective emploiments” after “Cultivators of the earth” be deleted so as not to exclude militiamen (presumably because they could be accused of not being “peaceably” employed); he incorporated this change into his first draft of the proposal, which he submitted to Franklin and Adams for review.1 By the time the commissioners settled on a final draft, the article included women, children, and “scholars of every faculty,” as well as farmers, fishermen, and merchants.

Article 24, stipulating the humane treatment of prisoners of war, was composed during that final phase of editing. Though commonly assumed to have been Jefferson’s idea, the article was not in his initial draft proposal, nor did he suggest it in his set of queries for his colleagues. It may be that the idea grew out of the commissioners’ discussions of how to broaden Article 23. The United States would be amending international law with this set of treaties: why not take full advantage of the opportunity and extend the protections to include a class of men who, in the recent war, had been deprived of food and exposed to inhumane living conditions?

The gross mistreatment of prisoners had been an urgent, longstanding concern of all three commissioners. As governor of Virginia, Jefferson faced the question of how to deal with British prisoners of war given the notorious British abuse of American captives. In 1779 he noted to Patrick Henry: “It is for the benefit of mankind to mitigate the horrors of war as much as possible. The practice therefore of modern nations of treating captive enemies with politeness and generosity is not only delightful in contemplation but really interesting to all the world, friends foes and neutrals.”2 Franklin, as has been well documented in this edition, received continual accounts of the appalling mistreatment of Americans in British jails. He arranged for agents to assist these men on site; he aided the escaped prisoners who came to his door; and he worked energetically, if often futilely, to arrange prisoner exchanges. As early as 1777, Franklin denounced one of the specific practices proscribed in Article 24, the deportation of prisoners to faraway colonies.3 Adams, who, like Franklin, received many pleas for help from American prisoners, had actually drafted the germ of Article 24 in one of the articles he had written in 1782 for the definitive peace treaty: a provision for compensating each side for its expenditures in sheltering enemy captives, intended to promote the humane treatment of prisoners of war.4

None of the commissioners ever took credit for the innovative articles of the Prussian-American treaty. Adams wrote to Thulemeier on February 13, 1785, that he was “charmed” that Frederick II agreed “to the Platonic Philosophy of some of our Articles, which are at least a good Lesson to Mankind, and will derive more Influence from a Treaty ratified by the King of Prussia, than from the writings of Plato, or sir Thomas Moore.”5 After his return to Philadelphia in September, 1785, Franklin wrote to John Jay that he had signed the treaty two days before his departure from Paris and that Frederick II, “without the least hesitation, had approved and conceded to the new humane articles proposed by Congress.”6 In June, 1786, Jefferson sent Jean-Nicolas Démeunier, who was writing the entry on the United States for the Encyclopédie Méthodique, copies of Articles 13, 23, and 24 of the Prussian-American treaty, describing at length the British abuses of American prisoners that were reflected in Article 24. The following September, in a letter to Ezra Stiles, Jefferson mentioned the death of Frederick II and noted: “The articles of this [treaty] which were intended to prevent or mitigate wars, by lessening their ailment, are so much applauded in Europe that I think the example will be followed.”7

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 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 & a loss of property to individuals. Nevertheless it shall be lawful to stop such vessels & articles & 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.8

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, whose occupations are for the common subsistence & 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:9 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 different places, & thereby rendering the necessaries, conveniences & comforts 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 solemnly pledge themselves to each other & to the world that they will not adopt any such practice; 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 enlarged on their paroles within convenient districts & have comfortable quarters, & the common men be disposed in cantonments open & extensive enough for air & exercise, & lodged in barracks as roomly & good as are provided by the party in whose power they are for their own troops, that the officers 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 pretended whatever: that each party shall be allowed to keep a commissary of prisoners 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 necessaries 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 so much 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 & nations.