To John Adams, with Enclosure
Paris July 28. 1785.
Your favors of July 16. and 18. came to hand the same day on which I had received Baron Thulemeier’s inclosing the ultimate draught for the treaty. As this draught, which was in French, was to be copied into the two instruments which Doctr. Franklin had signed, it is finished this day only. Mr. Short sets out immediately. I have put into his hands a letter of instructions how to conduct himself, which I have signed, leaving a space above for your signature. The two treaties I have signed at the left hand, Dr. Franklin having informed me that the signatures are read backwards. Besides the instructions to Mr. Short I signed also a letter to Mr. Dumas associating him with Mr. Short. These two letters I made out as nearly as I could to your ideas expressed in your letter of the 18th. If any thing more be necessary, be so good as to make a separate instruction for them signed by yourself, to which I will accede. I have not directed Mr. Dumas’s letter. I have heretofore directed to him as ‘Agent for the U.S. at the Hague’ that being the description under which the journals of Congress speak of him. In his last letter to me is this paragraph. ‘Mon nom à la Haie est assez connu, surtout au bureau de la poste, pour que mes lettres me soient rendus exactement, quand il n’y auroit d’autre direction.’ From this I conclude that the address I have used is not agreeable, and perhaps may be wrong. Will you be so good as to address the letter to him and to inform me how to address him hereafter? Mr. Short carries also the other papers necessary. His equipment for his journey requiring expences which cannot come into the account of ordinary expences, such as clothes &c. what allowance should be made him? I have supposed somewhere between a guinea a day and 1000 dollars a year which I beleive is the salary of a private secretary. This I mean as over and above his travelling expences. Be so good as to say, and I will give him an order on his return. The danger of robbery has induced me to furnish him with only money enough to carry him to London. You will be so good as to procure him enough to carry him to the Hague and back to Paris.
The Confederation of the K. of Prussia with some members of the Germanic body for the preservation of their constitution, is I think beyond a doubt. The Emperor has certainly complained of it in formal communications at several courts. By what can be collected from diplomatic conversation here I also conclude it tolerably certain that the Elector of Hanover has been invited to accede to the confederation and has done or is doing it. You will have better circumstances however, on the spot, to form a just judgment. Our matters with the first of these powers being now in conclusion, I wish it was so with the elector of Hanover. I conclude from the general expressions in your letter that little may be expected. Mr. Short furnishing so safe a conveyance that the trouble of the cypher may be dispensed with, I will thank you for such details of what has passed as may not be too troublesome to you.
The difficulties of getting books into Paris delayed for some time my receipt of the Corps diplomatique left by Dr. Franklin. Since that we have been engaged with expediting Mr. Short. A huge packet also brought by Mr. Mazzei has added to the causes which have as yet prevented me from examining Dr. Franklin’s notes on the Barbary treaty. It shall be one of my first occupations. Still the possibility is too obvious that we may run counter to the instructions of Congress of which Mr. Lambe is said to be the bearer. There is a great impatience in America for these treaties. I am much distressed between this impatience, and the known will of Congress on the one hand, and the incertainty of the details committed to this tardy servant.
The D. of Dorset sets out for London tomorrow. He says he shall be absent two months. Some whisper that he will not return and that Ld. Carmarthen wishes to come here. I am sorry to lose so honest a man as the Duke. I take the liberty to ask an answer about the insurance of Houdon’s life.
Congress is not likely to adjourn this summer. They have passed an ordinance for selling their lands. I have not received it.
What would you think of the inclosed Draught to be proposed to the courts of London and Versailles? I would add Madrid and Lisbon, but that they are still more desperate than the others. I know it goes beyond our powers; and beyond the powers of Congress too. But it is so evidently for the good of all the states that I should not be afraid to risk myself on it if you are of the same opinion. Consider it if you please and give me your thoughts on it by Mr. Short: but I do not communicate it to him nor any other mortal living but yourself.
Be pleased to present me in the most friendly terms to the ladies and believe me to be with great esteem Dear Sir Your friend & servant,
You say nothing in your letter about your wine at Auteuil. I think I sent you Petit’s bill for I do not find it among my papers. It’s amount was 173 8s.
The parties, being desirous of promoting as much as possible the happiness of their citizens and subjects respectively and mutually, believing that a free and friendly intercourse between them will contribute much to this end, and that this intercourse cannot be established on a better footing than that of a mutual adoption by each of the citizens or subjects of the other, insomuch that while those of the one shall be travelling or sojourning with the other, they shall be considered to every intent and purpose as members of the nation where they are, entitled to all the protections, rights and advantages of it’s native members, have, on mature deliberation, covenanted with each other, that the intercourse between all the subjects and citizens of the two parties shall be free and unrestrained: that those of either party while in places within the jurisdiction or possession of the other, shall be entitled to the same protection, the same privileges, immunities, capacities, advantages and rights of every possible species or description, which the subjects or citizens natives of the same place shall at the same time be entitled to:
And that property in places within the jurisdiction or possession of either belonging to a citizen or subject of the other, or which would belong to him were he a native of the place where it is, shall belong to such citizen or subject as if he were a native, and shall be at his disposal by deed or will, or by other his act with or without writing, or, in case of his death without will, shall pass to his representatives designated by the laws of the land where such property is as if he were a native citizen or subject of the same country; and in all cases shall be covered with the same protections, privileges and exemptions, and shall give the same advantages, rights, and capacities to the owner, as if he were a native citizen or subject of the place where it is: insomuch that no distinction between the two nations shall be known to the laws of either as to persons within their jurisdiction citizens or subjects of the other, or property within their jurisdiction belonging to subjects or citizens of the other, or which would belong to them if they were natives.
And lest an attempt to enumerate and describe these rights more particularly might give rise to inferences that none are meant to be communicated but those which such enumeration or description might perfectly comprehend, the parties will not attempt such description, but chuse to rest this covenant for it’s greatest effect on the general terms before used, which are to be understood at all times, in all places, and in every possible case as meant to be extended to every right of a native citizen or subject which any subject or citizen of the other may at any time or place think proper to claim.
The following cases only are meant to be excepted out of these general stipulations.
1. Laws made, or hereafter to be made for restraining public offices to native citizens or subjects shall exclude the citizens or subjects of the other from a capacity to hold them, so long as the subjects or citizens of all other nations are likewise excluded.
2. Ambassadors, ministers, or other persons who by the usages of nations are exempt from the jurisdiction of the laws of the country where they are shall retain that exemption: and the Consuls of either party with the other shall enjoy the protection and privileges of the law of nations. But if any such Ambassador, Minister, Consul or other person exercises or is interested in commerce within the territories of the party with whom his functions lay, neither his person nor property shall have the protection or privileges of the law of nations, but shall be submitted to the same laws as those of the natives of the place where he is.
3. The subjects or citizens of either party in the territories of the other shall be free in the exercise of their religion, shall not be required to conform in word or deed to any other, not suffer any molestation on account of religion, unless it be for a real insult on that of any other person.
And as the interests and happiness of the subjects and citizens of the two parties will be further promoted by the establishment of a free commerce between them, it is moreover agreed that it shall be lawful for the subjects or citizens of either party freely to transport in their own or any other bottoms any merchandize of the produce or manufacture of either party from any part of the territories of either party into any part of the territories of the other paying on the exportation or importation not more than per cent on the value of the said merchandize at the place where it is exported or imported by way of duties, imposts, fees, taxes on alienation, or in any other form whatever.
And to solace as much as possible the condition of humanity in it’s worst situations, particularly to mitigate the calamities with which it is afflicted in times of war, and to remove some of the inducements to enter into war, the following stipulations are provided in the several cases: 1. where one of the parties only shall be at war; 2. where both shall be at war against a common enemy; or 3. where there shall be a war between the two parties. [Then add the articles from the general draught from Art. 13. inclusive to the end, except the 25th.]1
RC (MHi: AMT); endorsed in part: “4. Augt. recd.” and in part “ansd. Aug. 4.”; lacks postscript, and, in view of the fact that postscript appears on PrC, TJ must have written it on a separate slip or on the address leaf; the former is more likely, since it is on p. 3 of PrC. PrC (DLC); fragment, including only the last two pages of the letter. Recorded in SJL as sent by Short; entry in SJPL reads: “Adams John. Instructions to Short. Engld. Mazzei. Lambe. Barbary. Dorset. Caermarthen. Project of treaty Engld. and France.” Enclosure: MS (DLC: TJ Papers, 17: 2970; undated and without caption; in TJ’s hand); PrC (MHi: AMT).
The remarkable document printed above as an enclosure is not associated with the text of the letter either in MHi: AMT or in DLC: TJ Papers. Being also undated and without a caption or other external evidence that it was actually sent to Adams, it can nevertheless be certainly identified as the proposal that was beyond our powers; and beyond the powers of congress too and that was, moreover, so daring a venture that TJ was unwilling to tell Short about it or to communicate it to … any other mortal living but Adams. No other draft of a treaty fits the case. This document was doubtless intended to supplant the existing “general form” of a treaty, at least with respect to England and France (see above, under 10 Nov. 1784), and it could not have been written before the arrival of TJ’s copying press, since TJ retained the draught—actually a fair copy of some earlier composition draft—and sent Adams a press copy of it (see TJ to Barré, 3 June 1785, note). Evidently this far-reaching proposal has escaped publication until now. The idea itself, at least in elementary form, had been advanced at an early meeting of the Commissioners. Presumably TJ himself had made the initial proposal. Adams must not have done so, since, by his own admission, he had opposed it at that time (Adams to TJ, 24 July 1785; but see Adams to TJ, 31 July 1785, especially note 3). Franklin, aged, infirm, and bent on returning to America, would not have been likely to advance so revolutionary a proposition under these circumstances when he had failed to do so in his treaty negotiations before 1784. When, late in June, Adams requested Franklin and TJ to prepare a projet of a treaty to be proposed to Great Britain, the one they drew up and forwarded was only a revision of the earlier “general form” of a treaty and was, like that, based on the most-favored-nation principle (Franklin and TJ to Adams, 8 July 1785). It is significant, too, that, immediately after Franklin had departed, TJ not only brought forth the present elaboration of the idea but Adams himself, in a letter that crossed this one in the mails, recurred to it (Adams to TJ, 24 July 1785). Adams seems to have referred to the subject in noncommittal terms in his reply to the present letter, and perhaps did not elaborate because, as Short reported to TJ, “he thought it unnecessary [to write] and communicated to me, as he said, what he wished you to know” (Short to TJ, 23 Aug. 1785; Adams to TJ, 4 Aug. 1785). We can only conjecture what it was Adams wished TJ to know. Perhaps he cautioned against making the proposal to Great Britain because of the existing state of feeling between the two countries. More probably, he may have advised against any proposal of the sort, since TJ’s extension of the idea was much more revolutionary than the original plan which was merely that of placing aliens and natives on an equal footing commercially. He may have suggested that TJ put out a feeler toward France. Whatever his advice, TJ did open the subject with Vergennes: “Both nations,” he wrote, “perhaps may come into the opinion that their friendship and their interest may be better cemented by approaching the condition of their citizens reciprocally to that of natives, as a better ground of intercourse than that of the most favoured nation” (TJ to Vergennes, 20 Nov. 1785).
As late as June 17, when he wrote Monroe, TJ revealed himself to be very conscious of the limitations imposed upon the treaty power by the reserved powers of the states and to be willing to abide by those limitations. Yet, little over a month later, he had drafted this projet of a treaty that, as he well knew, would clearly have contravened the Commissioners’ powers and also the powers of the Confederation. Indeed, if successfully carried out, it would have altered the very nature of the union and of the society of nations.
It is puzzling that TJ says he had not received Congress’ ordinance for selling their lands, for it was enclosed in Monroe to TJ, 16 June 1785, which was received on 22 July in the huge packet … brought by Mr. Mazzei; also, TJ’s letter to Hogendorp, 29 July 1785, shows that he had received the ordinance. The other letters received in Mazzei’s packet were those from Mrs. Trist, 25 Dec. 1784; the Rev. James Madison, 10 Apr.; Peter Carr, 20 Apr.; Maury, 20 Apr.; Madison, 27 Apr.; Page, 28 Apr.; Mrs. Carr, 6 May; House, 28 May; Jay, 14 and 15 June; Jamieson, 14 June; and Ramsay, 15 June 1785.
1. Opening bracket in MS but closing bracket supplied.