Report on Treaty with the Netherlands
MS (NA: PCC, No. 25, II, 121–23). In JM’s hand. Docketed: “Report of Committee for revising the instructions to Mr. Adams. July 3. Mr Madison Mr Duane Mr Clymer Delivered and read July 12. 1782. Entd. Monday the 15h assigned for the Consideration—July 17. 1782 Question on the resolution passed in the negative.”
[12 July 1782]
The Committee to whom was recommitted the report relative to the Instructions of Mr. Adams1—Submit the following remarks and resolution—
They observe that in the Treaty between the U. S. and his M. C. M. it is among other things stipulated that the subjects of the parties, “may by testament, donation or otherwise dispose of their goods immoveable2 as well as moveable, in favor of such persons as to them shall seem good; and their heirs wheresoever residing, may succeed them ab intestat, without being obliged to obtain letters of naturalization[”].3
That the 2d. Art. of the proposed treaty between the U. S. & the U. Provinces with which the Minister Plenipo: of the former is charged, contains a general stipulation to the subjects of the parties, that they shall enjoy mutually the same commercial exemptions and privileges, as are or may be allowed to the most favored nations;4 under which general stipulation, claims & expectations may be excited in the subjects of the U. Provinces, of an entire equality under the laws of the U. S. with the subjects of his M. C. M.
That the 6th. Art: of the said proposed Treaty proceeds farther and expressly stipulates that the subjects of the parties may by, Will or otherwise dispose of to such persons as to them may seem good, the effects, moneys, debts, or goods immoveable as well as moveable which they have or ought to have, within the dominions of either of the partys and their heirs altho’ not naturalised, shall freely & quietly take possession of all the said goods & effects whatsoever, according to the laws of each Country respectively: in such manner however that the wills & right of entering upon the inheritances of persons dying intestate, must be proved according to the law in those places where such person may happen to die; any law, statute custom or right whatsoever notwithstanding.5
That in the opinion of the Committee it is not altogether clear that the stipulation of the right above stated to the subjects of his M. C. M. does not encroach on the rights reserved by the federal articles to the individual States;6 And very clear, that on extension of it to the subjects of other powers than of Spain, will be chargeable with such encroachment;7
That without enquiring into the inequality of this stipulation, as it will probably be exercised by the Citizens of the U. S. and the subjects of the U. P. or into the inconveniences which may result from an indefinite licence to aliens to possess real property within the U. S. The Committee infer from the repugnance shewn by some of the States to such an indulgence to the subjects of France, notwithstanding the special clause in the federal articles relative to that country8 and our peculiar relation to it, that the compliance of the States with a like engagement to another, power, will be extremely precarious.
That in order to avoid these difficulties & consequences, it appears to the Committee expedient to resolve as follows; viz
That the Minister Plenipo: for negociating a treaty of amity & commerce with the U. Provinces of the low Countries, be & he hereby is instructed, so to vary the tenor of the 2d. & 6th. Articles in the plan of treaty transmitted to him, as to exclude all right or pretext in the subjects of either of the Contracting parties, to acquire, or hold within the dominions of the other party, any real property or estate of inheritance whatsoever; and to be careful not to admit into any other parts of the said Treaty, any terms or expressions from which such right or pretext may be inferred: provided that the said Minister Plenipotentiary be at liberty to depart from this instruction in case he shall have taken steps towards a conclusion of a Treaty with the U. Provinces, which in his opinion are inconsistent therewith.9
2. That is, realty.
9. Ibid., and n. 24. On 17 July 1782, “the yeas and nays being required by Mr. [James] Madison,” every state delegation except New Jersey’s rejected the resolution. Arthur Lee’s and Bland’s adverse votes overrode JM’s “ay.” Of the twenty-nine delegates in Congress, only six favored the proposal (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 396).