Jefferson’s “General Form” of a Treaty
“I am now to take my leave of the justlings of states,” Jefferson wrote Madison on the day he was appointed minister, “and to repair to a feild where the divisions will be fewer but on a larger scale‥‥ I shall pursue there the line I have pursued here” (TJ to Madison, 7 May 1784). What he meant is thrown into sharper relief by what he did or attempted to do at the time the three American Commissioners met in the autumn of 1784. His first object was to strengthen the American union. Article 3 of the Commissioners’ instructions, drafted by Jefferson himself, had originally stipulated that the United States, “being by their constitution consolidated into one fœderal republic,” be considered in all treaties of amity and commerce, and in every case arising under them, as one nation (Vol. 6: 394; 401, note 3). This was really the heart of the Commissioners’ instructions. An attempt was made to strike out the article, and it was somewhat altered by deletion of the prophetic words “consolidated into one fœderal republic” and by the addition of Williamson’s qualifying phrase, “upon the principles of the fœderal Constitution.” Knowing the difficulty that he had experienced in Congress in keeping this article in the instructions, Jefferson reminded his colleagues that “it is an extreme delicate point in America where a great party are jealous of their separate independance.” This divisiveness in American counsels needed to be borne in mind, but Jefferson’s goal in Europe remained the same as it had been before: “the majority [in Congress] 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” (Document iii of the present series).
Secondary objects developed almost inevitably as Jefferson moved into the sphere of international diplomacy. His love of system, his attention to language, his desire to extend humanitarian reforms—all of these came into play in much the same manner that they had exhibited themselves in his work on the revisal of Virginia law in 1779. “Will it not be better then,” he wrote, “to take up the subject as it were anew, to arrange the articles under classes, and while we are reforming the principles to reform also the language of treaties, which history alone and not grammar will justify? The articles may be rendered shorter and more conspicuous, by simplifying their stile and structure” (Document II). Part of this revealing sentence was deleted by Jefferson in the rough draft, perhaps because he felt that Franklin, more tolerant of tradition than he, would not so readily lend the great weight of his influence to an attempt at reform in an area where legal precision, diplomatic usage, and the customs and manners of European courts made change virtually impossible. But if he gave up the words in his rough draft, he did not give up the intent.
As to language, this is shown at a glance by a comparison of Jefferson’s model treaty with the texts of the treaties with France of 6 Feb. 1778, with the Netherlands of 8 Oct. 1782, and with Sweden of 3 Apr. 1783 (Document IV; Hunter Miller, ed., Treaties and other International Acts of the United States of America, Washington, 1931, p. 3–34, 59–90, 123–50). A single example will suffice to show how Jefferson clarified the language of previous treaties. The following is a part of Article 17 of the treaty with Sweden:
“One of the contracting parties being at war and the other remaining neuter, if it should happen that a merchant ship of the neutral power be taken by the enemy of the other party, and be afterwards retaken by a ship of war or privateer of the power at war, also ships and merchandises of what nature soever they may be, when recovered from a pirate or sea rover, shall be brought into a port of one of the two powers and shall be committed to the custody of the officers of the said port, that they may be restored entire to the true proprietor as soon as he shall have produced full proof of the property.”
The corresponding part of Article 17 in Jefferson’s model treaty reads:
“If any vessel or effects of the neutral power be taken by an enemy of the other or by a pirate, 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.”
This is a typical example of Jefferson’s intent with respect to language. In achieving such a result, clarity and simplicity were not purchased at the expense of substance. In the article cited, wherein Jefferson evidently aimed at an exact parallel in meaning, “ships and merchandises” gave way to the equally precise but perhaps more general “any vessel or effects.” In other instances in the model treaty Jefferson clarified the language and at the same time enlarged the meaning even more significantly.
The impress thus left on the language of treaties of amity and commerce was a natural consequence of Jefferson’s habitual attention to “stile and structure.” Structure was to him the other side of the coin called style, and the first step in achieving clarity in words was to clarify thought. The existing models—the treaties with France, the Netherlands, and Sweden—offended his sense of order and system by having their various topics fall into a sort of hodgepodge arrangement and this naturally had an effect on language. In the face of this fact, it was inevitable that his instinct for classification should have come into play. But a preliminary step was necessary—that of putting down in his own words and in summary form a restatement of what the treaty with France provided for and of collating and comparing the result with the provisions of the treaties with the Netherlands and Sweden (Document i). After this the various topics could be grouped under such rubrics as “Cases where both parties are in full Peace,” “Cases where one party is at War,” &c., with subdivisions if necessary to indicate “rights of the Neutral party” or “rights of the Belligerent party” (Document ii). In the example quoted above, such a systematization of the provisions of the treaty would have eliminated at once the need for the introductory words that appeared in the treaty with Sweden: “One of the contracting parties being at war and the other remaining neuter.” After digesting the extant treaties, classifying their provisions as reflected in the Danish project and counter-project, collating the results with the new instructions of 7 May 1784, and setting down some resultant questions for his colleagues under the heading “Notes” (Document iii), Jefferson was at last ready to undertake the drafting of a model treaty (Document iv)—“a general form to be proposed to such nations as were disposed to treat with us” (Autobiography, Ford, i, 86). These various stages were completed some time before 10 Nov. 1784 and most probably before the end of September. The unique distinction of these documents is that they show, step by step and to a degree of completeness rarely met with elsewhere, precisely what Jefferson intended to do in reforming the “stile and structure” of treaties of amity and commerce and how he went about it.
But systematic arrangement and clear language were merely the means to an end. The grand object in Jefferson’s view was to uphold “the growing party” in Congress who aimed at strengthening the band of union, and in moving toward it he believed it necessary to introduce reforms in “the principles … of treaties, which history alone and not grammar will justify.” In consequence, European balance-of-power diplomacy with its endless cabinet and court intrigues witnessed the introduction of a humanitarian note in Jefferson’s model treaty, particularly in Articles 23 and 24. In their communication to the Prussian minister on 10 Nov. 1784 the American Commissioners felt obliged to make a particular explanation of these new and unprecedented articles. No draft of this explanation in Jefferson’s hand seems to be extant, but there can scarcely be any doubt that the author of the articles themselves was also the author of the note written in justification of it. John Adams accepted the new feature with an eloquent tribute. When De Thulemeier on 24 Jan. 1785 notified the Commissioners that Frederick the Great approved such enlightened terms, John Adams replied: “I am weary of the slow Motions of other Courts and States, as much as I admire the Dispatch, Intelligence, and Decision of that of Berlin, and as much as I am charmed to find the King do us the Honor to agree 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 More” (Adams to De Thulemeier, Auteuil, 13 Feb. 1785; MHi: AMT).
This good lesson to mankind failed to extend its influence, however, and Jefferson has been pictured as becoming disillusioned within a few months after he had experienced something of the realities and complexities of European politics (Kimball, Jefferson: The Scene of Europe, p. 23). But the force of this interpretation is lost in light of the fact that Jefferson’s attempts at “reforming the principles” grew in boldness of conception. After he had been in Europe almost a year he proposed a measure so far-reaching that he knew it to be “beyond our powers; and beyond the powers of Congress too,” so revolutionary, indeed, that its author would not communicate it even to William Short or to “any other mortal living” except John Adams. This was nothing less than a proposal for extending full rights of citizenship on a reciprocal basis to those citizens of one state who should venture into the territory of the other, a proposition too advanced for the nationalism of that or of any subsequent era (for text of the proposal, see TJ to John Adams, 28 July 1785). Jefferson’s idealism was durable enough to survive his introduction to European politics, but his sense of practicality remained acute enough to restrain him from attempting the impossible. The two instincts were so balanced in him that he was able to give full rein to his humanitarian impulses without losing the check-rein of reality. Knowing that the promise of human progress could be fulfilled only at the cost of infinite labor and patience, he never allowed simple naivete or the empty satisfaction of uttering sublime sentiments to cloud what Frederick the Great called “the purest zeal in favor of humanity.”
While Jefferson’s model treaty was first submitted to Prussia, it was actually drafted in the expectation that it would be proposed to Denmark. In this fact lies a background of practical politics in Europe and in America that Jefferson had been familiar with for more than a year prior to his arrival in France and in whose development he had played a dominant role. Early in 1784 Prussia had proposed a treaty of amity and commerce. John Adams, with the approval of Franklin and Jay, had drafted a project based on the treaty of 1783 with Sweden and had received and transmitted to Congress the Prussian counter-project. But similar negotiations were begun a year earlier by Denmark when Baron Rosencrone instructed De Walterstorff, the Danish minister in France, to make every effort to cultivate Franklin’s friendship and to open conversations concerning a commercial treaty. Franklin, in consequence, drafted a project similarly based on the treaty with Sweden and on 22 July 1783 submitted the Danish counter-project to Congress. This proposed treaty, with Franklin’s covering letter and a committee report on the subject, was before Congress when Jefferson took his seat in November (Rosencrone to Walterstorff, 22 Feb. 1783; Rosencrone to Franklin, 8 July 1783; copies of both in Short’s hand in DLC: TJ Papers; Franklin to Livingston, 22–25 July 1783, Wharton, Dipl. Corr. Amer. Rev., vi, 580–8; Franklin to Rosencrone, 13 Apr. 1783, same, vi, 372–3; Carmichael to Franklin, 13 Mch. 1783, same, vi, 296–7; text of the Danish counter-project is in same, vi, 519–25). But the letters of Adams and Franklin and the resultant report had been caught in a clash in Congress between those who looked primarily to a reestablishment of commercial relations with England and those who felt that American interest required a closer connection with the continent, particularly with France. Stephen Higginson, a Massachusetts member who in the spring of 1783 declared that there “has been for a long time a party in Congress so thoroughly in the interest of France as to have preferred her interest to ours, whenever they came into competition,” was one of those who helped prepare the committee report of September 1783 (Higginson to Theophilus Parsons, Sr., [7?] Apr. 1783; Burnett, Letters of Members, vii, No. 136; JCC description begins Journals of the Continental Congress, 1774–1789, ed. W. C. Ford and others, Washington, 1904–1937 description ends , xxv, 617–20, 628–32). Jefferson may not have known when he arrived in November that two versions of the report had been before the committee, but he could not have been unaware of the conflict that produced a difference in the texts. For the report as adopted started off with the statement that “it appears … that the Court of Great Britain had discovered great Jealousy upon the subject of American commerce.” The minority report reflected the party divisions described by Higginson: “It appears clearly … that the Courts of France and Great Britain particularly the latter, hath discovered the utmost Jealousy of the commercial prosperity of America” (Burnett, Letters of Members, vii, No. 367). Both reports recommended the appointment of a special committee on this subject, but the latter, which was defeated, suggested that among the measures to be reported there “may perhaps be reckoned treaties of Amity and Commerce with the other Great Powers of Europe, and the residence of an able Minister or Agent at the Court of London.” The report as adopted contained no recommendation concerning a resident minister at London.
On the eve of Jefferson’s arrival to take his seat in Congress, Boudinot reported to Franklin that the treaty with Denmark, which had occasioned these conflicting reports, was “under Consideration, but for want of 9 States could not be finished in Time for this Opportunity” (same, vii, No. 430). But Higginson, a few months later, gave John Adams a fuller explanation of what had happened to his report, what motives he suspected lay back of the work by Jefferson and the new committee on instructions, and what he hoped would be done: “By late letters from Gerry and Osgood I learn that nothing decisive has yet been done by Congress for settling the commercial treaties necessary for us‥‥ The report which I made last Fall … recommended the sending a Minister to the Court of London, and arrangements were then made for appointing Mr. Adams, but having only from seven to nine States on the Floor, and the influence of Monsieur being opposed to it, the Report has not been accepted‥‥ Another Committee has of late been appointed by Congress, on the same subject, they have reported general principles for the direction of our ministers in settling Treaties, but I consider the appointment and the report as intended purposely to delay. The Treaty with Britain presses upon us with much greater weight than with any other Nation. Our Trade for want of it is manifestly declining and may be entirely ruined; to connect it therefore with other matters vastly less important and include it in a Report which must on account of its complexity and extent take up much time, is to obstruct the adjustment if not entirely to defeat the measure‥‥ If Mr. Adams and Mr. Jay were not in Europe, or the commission proposed was for Dr. F. alone, the matter would soon be determined, the reason on which the opposition is made would no longer exist, France would then be able to determine every point and the connexion between us and Britain would then rest upon such principles as she would approve. To me it is very evident that the greatest security we can at present obtain against the intentions of France is to form a Convention with Britain on the most liberal principles, let it be as extensive and particular as possible and to continue untill a permanent Treaty shall be formed” (Extracts of letters from Higginson, undated, but ca. Apr. 1784; MHi: AMT; the names of Jay, Adams, and France are deleted in MS).
Higginson’s was not an isolated voice calling for opposition to French influence and for a resumption of commercial connections with England as the principal object. John Adams received many urgent appeals from New England, and he himself was very willing to make the effort to open negotiations at London. “We can never know what England will do untill we try her …,” he wrote Samuel Adams. “The Treaty with England is important to all, and especially for New England. I would therefore neglect nothing in my Power. But I have none. Congress must push and force the British Ministry, and this in my Opinion is not impossible nor difficult to be done” (John Adams to Samuel Adams, 25 June 1784; MHi: AMT). The issue, of course, was not only closely connected with New England commerce, but involved the debate, to some extent sectional, over the extent of power to be given to the Confederation. “The commonwealth of Virginia,” wrote Tristram Dalton, “whose interest undoubtedly is to admit, without distinction, all nations to carry her produce, having but little navigation belonging to their citizens, has passed an Act granting Congress such powers as to enable that body to counteract the unjustifiable proclamation of the king of G. Britain … which Act they forwarded to be passed, on which condition theirs is to take place. Such jealousy unhappily prevails, in this state, against additional powers being granted to Congress, that a like bill, with that of Virginia, reported by a committee of both houses, was referred to the next session of the G. Court when I hope it may pass, for if full power of regulating our commerce with foreign nations is not given to Congress, the trade of the several states will soon be in a distracted situation and the sole benefit of it reaped by foreigners” (Dalton to Adams, undated, but during the summer of 1784). Jefferson was in Boston when the Massachusetts bill was under consideration, and had been of the impression that it would pass (TJ to Madison, 1 July 1784). But a few months later, Dalton gave an even gloomier picture to Adams: “To see the Whale Fishery decreasing, and tending rapidly to annihilation—To see the Colonies of Nova Scotia and New Brunswick fed and nursed by provisions and supplies, freely exported from these states in British Vessels, while those belonging to the Citizens of them cannot enter their ports without insult and are not permitted to land any article—To see British Vessells the only Carriers of our Lumber to their Islands which must have immediately sunk without a supply from us, while all commerce with their plantations, of the least benefit, is prohibited—To see British Ships have their preference in the transportation of their own Manufactures to these Ports, owing undoubtedly to an insiduous influence that their interest caused with the Barbary States to interrupt our Navigation—To see these things, and many others of like nature, has roused the Spirit of the People to so high a degree, that, I am humbly, of opinion, they would strictly comply with any measures, be they what they might, which Congress should think proper to recommend” (Dalton to Adams, 11 Apr. 1785; MHi: AMT).
This was the context in which Jefferson’s report of December 1783 and its outline of principles governing establishment of European treaties should be considered. In the text of these instructions Great Britain was placed between Hamburg and Spain, and was given no special distinction in the general policy of offering liberal commercial relations to the nations of Europe and the Barbary states. The displaced policy, as reflected in the Higginson report, was that of concentrating attention upon Great Britain as the great object and of reestablishing American commerce in its old channels. The new policy would not have excluded relations with Great Britain, but it aimed primarily at establishing new markets on the continent. In this respect the new instructions that Jefferson presented to his colleagues have been regarded as an example of innocent idealism in the face of European national policies which kept commerce within narrow restrictions. But in view of the political realities in America, Jefferson’s idealism had a very practical base and a concrete object. In any case, it was no more visionary than the hope entertained by Higginson that “a Convention with Britain on the most liberal Principles” would be accepted by that nation.
John Adams had expressed very strong doubts as to whether “France and Holland can supply the Place of the British Market,” or that New England merchants could be lured away from English credit, yet he readily accepted the new policy. “The success we may have with England is very problematical,” he wrote to Lieutenant Governor Thomas Cushing of Massachusetts. “… It is a great question whether we should endeavor to awaken them by Retaliation, or by seeking new Markets. I hope when we begin to treat with Powers in Germany and the North, in Italy and the South, and they see we can supply ourselves elsewhere, they will alter their conduct” (Adams to Palmer, 26 Aug. 1784; Adams to Cushing, 27 Aug. 1784; MHi: AMT; see also Adams to Livingstone, 18 July 1783; Wharton, Dipl. Corr. Amer. Rev., vi, 561). A few days after Adams wrote these words, the American Commissioners held their first formal meeting. David Hartley was the first minister to be notified that they were empowered to negotiate treaties of amity and commerce. The next day the Commissioners agreed to “request the Baron de Walterstorff to meet the Plenipotentiaries at Passy, in order to confer respecting the mode of proceeding in negotiating a treaty of amity and commerce with the Court of Denmark.” The Danish minister met the Commissioners at Passy on 4 Sep. 1784, was informed verbally of their powers, and was requested to notify his court of their readiness to proceed with the negotiations (Minutes of Commissioners, DNA: PCC, No. 116; Dipl. Corr., 1783–1789, i, 503–4; Commissioners to Congress, 11 Nov. 1784). During the next few weeks Jefferson set about the task of producing a treaty project intended to reform the principles as well as the “stile and structure” of such treaties and to bring them into line with a policy that came out of his political experience in Congress. When the resultant “draught of a Treaty of Amity and Commerce” came ultimately to be laid before John Jay for his opinion as secretary for foreign affairs, he reported that in his opinion “a system for regulating the trade of the United States should be formed and adopted before they enter into further treaties of commerce; it appearing to him more wise that such treaties should be accommodated to their system than that their system should be accommodated to such treaties” (Report on a plan of a treaty of amity and commerce, 17 May 1785; Dipl. Corr., 1783–1789, i, 529). To this view there could not have been a more striking contrast than that set forth by Jefferson in a letter to Monroe, who in the spring of 1785 had begun to show signs of sharing Jay’s views: “Congress, by the Confederation have no original and inherent power over the commerce of the states. But by the 9th. article they are authorised to enter into treaties of commerce. The moment these treaties are concluded the jurisdiction of Congress over the commerce of the states springs into existence, and that of the particular states is superseded so far as the articles of the treaty may have taken up the subject‥‥ [With two exceptions], Congress may by treaty establish any system of commerce they please. But … it is by treaty alone they can do it. Tho’ they may exercise their other powers by resolution or ordinance, those over commerce can only be exercised by forming a treaty and this probably by an accidental wording of our confederation. If therefore it is better for the states that Congress should regulate their commerce, it is proper that they should form treaties with all nations with whom we may possibly trade. You see that my primary object in the formation of treaties is to take the commerce of the states out of the hands of the states, and to place it under the superintendance of Congress, so far as the imperfect provisions of our constitution will admit, and until the states shall by new compact make them more perfect. I would say then to every nation on earth, by treaty, your people shall trade freely with us, and ours with you, paying no more than the most favoured nation, in order to put an end to the right of individual states acting by fits and starts to interrupt our commerce or to embroil us with any nation” (TJ to Monroe, 17 June 1785; see also Monroe to TJ, 12 Apr. 1785).
In these revealing words and in the documents in the present series, here published for the first time, there is ample evidence that Jefferson, far from being a strict constitutionalist in these formative years, stood ready to employ to the fullest such powers as were available under the Articles of Confederation and that in doing so his steady object was to strengthen the American union.