American Commissioners to De Thulemeier
Passy March 14th. 1785
We had the honor of receiving your letter of Janry. 24. covering a translation into French of the Draught of a treaty proposed between his majesty the King of Prussia and the United States of America, together with answers to the several articles. We have considered them with attention, and with all those dispositions to accomodate them to the wishes of his majesty which a respect for his character, and a desire of connecting the two nations in amity and commerce would naturally produce. We will now take the liberty of troubling you with the result of our deliberations article by article.
Art. 2. We agree to add the restriction proposed to the end of this clause, to wit, “submitting1 themselves nevertheless to the laws and usages there established, and to which are submitted the citizens of the United states, and the citizens and subjects of the most favoured nations.”
Art. 3. Agreed to add a like clause, to wit, “submitting2 themselves nevertheless to the laws and usages there established, and to which are submitted the subjects of his majesty the K. of Prussia, and the subjects and citizens of the most favored nations.”
Art. 4. Three effects of this article are objected to.
- 1. the permission to export and import all the merchandize of either country without exception.
- 2. the permission to all persons to be buyers and sellers.
- 3. the not extending in express terms the right of transportation beyond the vessels of the two contracting parties.
As to the first we agree to make to the clause the addition proposed, to wit, “Nevertheless the King of Prussia and the United states, and each of them, reserve to themselves 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 either of the contracting parties shall not import nor export the merchandize prohibited by the other. But if one of the contracting parties permits any other nation to import or export the same merchandize, the subjects or citizens of the other shall immediately enjoy the same liberty.”
With respect to the second object, a permission to all persons to become buyers and sellers in this intercourse, it does indeed interfere with the practice of some nations of Europe, wherein the right of buying and selling particular articles of merchandize is frequently given to particular persons or descriptions of persons exclusively. The origin of this practice is to be found in a very remote and unenlightened period, when religion, physics, and every other branch of science was sophisticated and abused. The progress of information and of liberal sentiment has led to reformations in those, and in this also seems to have matured principles which should produce a reformation equally wanted.3 Commerce performs the important office of procuring vent for superfluities, of supplying wants, and of adjusting prices on a reasonable scale. This it does best where it is freest. Casting an eye over the states of Europe, we find them wealthy and populous nearly in proportion to the freedom of their commerce; and we may conclude from thence that were it perfectly free, they would probably attain the highest points of wealth and population of which their other circumstances would admit. A free competition between buyers and sellers, is the most certain means of fixing the true worth of merchandize: on the other hand the restraint of this right to particular persons, which constitutes a monopoly, has been found in experience the most powerful engine ever employed for the suffocation of commerce. It is interesting to both parties therefore to guard against this in their stipulations.4 The law of Konigsberg which prohibits a foreigner from selling his merchandize to any but native subjects is a monopoly in a certain degree. It would rather seem desireable that foreigners should come into our ports and there transact together all their business of exchange. It is not for us to judge whether under actual circumstances this law of Konigsberg is a proper object of reformation. His Prussian majesty will decide this, who has already so much extended the limits of happiness for his subjects by the removal of other bars to which time and habit had given their sanction. Should it be indispensable to save the force of this law, we would propose to retain the expressions in this article which give freedom to all buyers and sellers, but that at the end of the addition before agreed to a further one should be made in this form. “Nor shall this article derogate from the force of the laws of the city of Konigsberg, which forbid traffic between foreigners within the limits of their jurisdiction.” This will guard against monopoly so much of the feild of commerce as is not already occupied by it. We wish however that in this article the word “persons” should be substituted instead of “the subjects or citizens of that other” and again instead of “the said subjects or citizens.”
3. The third objection to this article is that it does not extend the right of transportation beyond the vessels of the two countries. It was thought that the securing this right so far was making a valuable step towards the freedom of intercourse. A right would remain to each party of refusing that privilege to vessels foreign to both; a right which probably would never be exercised but in retaliation on any particular nation adopting that narrow principle. We abandon freely the reservation in its general form in pursuit of an object so valuable to mankind as the total emancipation of commerce and the bringing together all nations for a free inter-communication of happiness, and agree after the words “in their own” to insert “or any other.”5 But we still propose it for consideration whether it will be expedient to either party to disarm itself entirely of the power of retaliating on any particular nation which may restrain the loading of vessels to articles of the growth or manufacture of the country to which they belong? Circumstances may be produced which would render the retaliation essential to the honour and interests of the parties. We therefore propose after the words “reserve to themselves the right” in the amendment before agreed to, to insert these, “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 also the right.”6
This fourth article with the several amendments which we have proposed or agreed to will stand thus “More especially each party shall have a right to carry their own produce, manufactures and merchandize 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 the produce manufactures and merchandize of the other, which all persons shall in like manner be free to sell them, paying in both cases such duties, charges and fees only as are or shall be paid by the most favoured nation. Nevertheless the King of Prussia 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 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 either of the contracting parties shall not import nor export the merchandize prohibited by the other. But if one of the contracting parties permits any other nation to import or export the same merchandize the citizens or subjects of the other shall immediately enjoy the same liberty. Nor shall this article derogate from the laws of the city of Konigsberg which forbid traffic between foreigners within the limits of their jurisdiction.”
Art. 5. We agree that the fifth Article shall stand in the form proposed, to wit, “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, nor to receive them into their own, nor to wait for their being loaded longer than they please.”7
Art. 8. Agreed to omit the words “and without being obliged to pay any duties charges or fees whatsoever, or to render any account of their cargo” and to substitute those proposed, to wit, “and without being obliged to render account of their cargo, or to pay any duties8 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, 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 amendment proposed by adding to this article these words “the ancient and barbarous right to wrecks of the sea shall be entirely abolished with respect to the subjects or citizens of the two contracting parties.”
Art. 10. By the laws of the United States copied in this instance from those of England, aliens are incapable of holding real estate. When an estate of that nature descends to an alien, it passes on by escheat to the State. The policy of the United States does not permit the giving to the subjects of any other power a capacity to hold lands within their limits, which was proposed by the project formerly delivered to Mr. Adams. But they are perfectly willing to relieve such persons from all loss on this account by permitting them to sell the inheritance and withdraw the proceeds without any detraction. Again, tho’ with them it is a fundamental principle that every man has a natural right to quit the country in which either chance or choice has placed him, and to become a member of any other where he thinks he can be happier, and the laws of some of them direct the particular form in which it is to be done, and therefore these States can pass no laws to prevent the emigration of their fellow-citizens, yet they will respect the principles of other governments where the practice is different. We consent therefore to add to the end of this clause, from the 8th. of the project these words “and exempt from all rights of detraction on the part of the government of the respective states. But this article shall not derogate in any manner from the force of the laws already published or hereafter to be published by his Majesty the King of Prussia to prevent the emigrations of his subjects.”
Art. 12. Agreed to omit the clause “on the other hand enemy vessels shall make enemy goods” &c. to the end of the article and to leave that question undecided.
Art. 13. The stipulation “to pay a reasonable compensation for the loss such arrest shall occasion to the proprietors” is not so determinate as to save the necessity of a future arrangement. It was thought questionable whether any mode which might now be thought of, might not, by a change of circumstances, before the case should arise, become inapplicable: and that arrangements would then be easily and amicably taken for doing justice to the individuals interested. We are ready however to receive a proposition for defining the mode at this time. We agree also to the addition proposed to this clause, to wit “but in the case supposed of a vessel stopped for articles heretofore deemed contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature9 he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.”
Art. 19. A clause in the treaty with France, the first the United States ever entered into, renders necessary the exception subjoined to this Article. It has not been repeated, nor is proposed to be repeated in any subsequent treaty. If any antecedent treaties would require a like exception on the part of his Prussian majesty we shall chearfully concur in its insertion, the case being either particularly specified or generally described. The practice of carrying prizes into neutral ports and there selling them, is admitted by the usage of nations, and can give offence to none where they have not guarded against it by particular contract. Were the clause now under consideration to be so changed as to exclude the prizes made on the enemies of either from being sold in the ports of the other, and that kind of stipulation to take place generally, it would operate very injuriously against the United States in cases wherein it is not presumed his Majesty would wish it. For suppose them to be hereafter in war with any power in Europe, their enemy, tho’ excluded from the ports of every other State, will yet have their own ports at hand, into which they may carry and sell the prizes they shall make on the United States. But the United States under a like general exclusion, having no ports of their own in Europe, their prizes in these seas must be hazarded across the ocean to seek a market at home: an incumbrance which would cripple all their efforts on that element, and give to their enemies great advantage over them.
Art. 21. Agreed to add as proposed “but by the judicatures of the place into which the prize shall be conducted.”
Art. 25. Agreed to add as proposed “but if any such Consuls shall exercise commerce, they shall be submitted to the same laws and usages to which the private individuals of their nation are submitted in the same place.”
Upon the whole it will be seen that we accomodate ourselves to the amendments proposed to the 2d. 3d. 5th. 8th. 9th. 10th. 12th. 13th. 21st. and 25th. articles, that we agree to the amendments proposed to the 4th. article with certain qualifications, and we cannot but hope that the 4th. and the 19th. articles so amended and qualified may be permitted to stand.10
We have the honor to be with sentiments of the highest respect Sir Your most obedt. & most hble. Servts.
FC (DNA: PCC, No. 116); in Humphrey’s hand. Dft (DLC); in TJ’s hand, except for place and date and several marginal notations in French in the hand of David Humphreys. MS includes, in addition to seven numbered pages, one unnumbered page which has been scored out; this, with its verso (page 5), forms the right half of a folded sheet, on the left half of which are pages 1 and 2. Between the halves is an unfolded leaf of different size, whose recto and verso are pages 3 and 4; and pasted on the recto of 3 is a slip with text to be inserted. It is clear from this that the MS is a combination of two drafts; and possibly the present Dft is a revision of TJ’s “Notes” of 1 Mch. (see notes 4 and 8). Further, it bears a separate set of alterations in red ink which evidently constitutes another stage of composition. It is not possible to say when these various alterations were made, but they must have been arrived at during various discussions in early Mch. 1785. The more important differences within the draft and between it and FC are indicated below.
1. Opposite in margin there is a note in Humphreys’ hand: “ajoutez a la fin d’art 2.” This was probably an instruction to a French copyist concerning this or another treaty; identical notations appear on TJ’s draft of a treaty with Great Britain, enclosed in Franklin and TJ to Adams, 8 July 1785.
2. Opposite in margin there is a similar note in Humphreys’ hand: “ajoutez a la fin d’art 3.”
3. TJ first wrote, and then deleted, in Dft: “The office of commerce is to find a vent for all the productions of agriculture and of art, and to supply materials for the.”
4. The beginning of the text of the unnumbered deleted page coincides with the text at approximately this point and reads: “as established in the city of Konigsberg is a monopoly in a certain degree. It prohibits a foreigner to sell to any but native subjects. His majesty, who has already so much extended the limits of happiness for his subjects is the best judge whether under actual circumstances this regulation is a proper object of reformation; and whether it’s continuance will be as valuable to the inhabitants of that city as the establishment of the principle that Commerce shall be subject to no monopolies. If he concurs in the expediency of this principle, he will agree instead of the words ‘all the subjects or citizens of that other’ and again ‘the said citizens or subjects’ to substitute the words ‘persons’ as more effectually answering that end than those proposed in our original draught.” The final sentence, which is interlined, is obviously addressed to Franklin and Adams rather than to De Thulemeier, and suggests, therefore, that TJ’s “notes” as transmitted to them on 1 Mch. were utilized as the basis for the final draft of the actual letter.
5. The portion of the deleted unnumbered page relating to this paragraph reads: “3. The third objection to this article is the defect of not extending the right of transportation beyond the vessels of the two countries. It was thought that the securing this right to the vessels of the two nations was making a valuable step towards the freedom of intercourse. A right would have remained to each party to refuse that privilege to vessels foreign to both nations. Nevertheless the principle of emancipating commerce is so sound, that we are not afraid of being led too far by it. The right of restraint which would have remained could never have been advantageously exercised but in retaliation on a particular nation. However we willingly abandon it in adherence to a uniform principle, and agree that this article shall be amended by inserting after the words ‘in their own’ the words ‘or any other.’”
6. Preceding three sentences constitute the inserted text on slip pasted to bottom of page 3 of Dft; they are in red ink, as are several deletions and insertions on page 3.
7. The text of this paragraph as set forth on the unnumbered deleted page reads: “The obligation to use the agency of lighters, porters and others appointed by government is liable to the same observations. It is a monopoly also, a certain description of persons being alone privileged to exercise a certain vocation. A free competition is much more likely to produce to the labourer a just hire, and to the employer faithful and expeditious service.”
8. The text of the unnumbered deleted page ends at this point; that part of Article 8 included thereon agrees with the text as given above.
9. At this point in Dft TJ inserted within square brackets the words “and abandon the same.” At the end of the paragraph he added the following explanation for this insertion: “The words ‘and abandon the same’ are inserted because the case supposing a property of little value, perhaps it will produce less inconvenience on the whole for the owner to abandon it, than for the captor to be embarrassed with the future care of it.” He then deleted both insertion and explanation. This, too, has the appearance of a comment made for his colleagues rather than for De Thulemeier.
10. For the latter part of this paragraph Dft reads: “… and to two out of three of the amendments proposed to the 4th. article; and we cannot but hope that as to the other amendment of the 4th. and as to the 19th. they may be permitted to stand as we have proposed, or with such qualifying additions as we have herein suggested.” The alterations in this paragraph were made in red ink.