IV. Draft of a Model Treaty, 1784
IV. Draft of a Model Treaty
Draught of a treaty of Amity and Commerce between
his Majesty the king of Denmark and Norway
and the United States of America
The parties being willing to fix in a permanent and equitable manner the rules to be observed in the commerce they desire to establish between their respective countries, have judged that the said end cannot be better obtained than by taking the most perfect equality and reciprocity for the basis of their agreement. On these principles º, after mature deliberation they have agreed to the following articles.
Art. 1.º There shall be a firm, inviolable and universal peace and sincere friendship between his majesty the King of Denmark º and Norway his heirs, successors and subjects on the one part and the United States of America and their citizens on the other,1 without exception of persons or places.
Art. 2.º The subjects of his Majesty the king of Denmark and Norway may frequent all the coasts and countries of the United States of America and reside and trade there in all sorts of produce, manufactures and merchandize; and shall pay within the2 said United States no other or great duties, charges and fees3 whatsoever than the most favoured nation shall be obliged to pay: and they shall enjoy all the rights, privileges4 and exemptions in navigation and commerce which the most favoured nation does or shall enjoy.
Art. 3.º In like manner the citizens of the United States of America may frequent the coasts and countries of his majesty the king of Denmark and Norway and reside and trade there in all sorts of produce, manufactures and merchandize: and shall pay in the dominions of his said Majesty no other or greater duties charges or fees3 whatsoever than the most favoured nation is or shall be obliged to pay: and they shall enjoy all the rights, privileges4 and exemptions in navigation and commerce which the most favoured nation does or shall enjoy.
Art. 4.º More especially each party shall have a right to carry their own produce, manufactures and merchandize in their own vessels5 to any parts of the dominions of the other where it shall be lawful for all the subjects or citizens of that other freely to purchase them, and thence to take the produce, manufactures and merchandize of the other, which all the said citizens or subjects shall in like manner be free to sell them paying in both cases such duties, charges and fees3 only as are or shall be paid by the most favoured nation.
Art. 5.º All merchants, commanders of vessels and other subjects and citizens of each party shall have free liberty in all places within the dominion or jurisdiction of the other to manage their own business themselves or to employ whomsoever they please to manage the whole or any part thereof for them; and shall not be obliged to make use of any interpreter, broker or other person whatsoever, nor to pay them any salary or fees unless they chuse to make use of them. Moreover they shall not be obliged in loading or unloading their vessels to make use of those workmen who may be appointed by public authority for that purpose, but it shall be entirely free for them to load or unload them by themselves, or to make use of such persons in loading or unloading them as they shall think fit, without paying any fees or salary to any other whomsoever: neither shall they be forced to unload any sort of merchandize into any other vessels, or to receive them into their own or to wait for their being loaded longer than they please;6
Art. 6. That the vessels of either party loading within the ports or jurisdiction of the other may not be uselessly harrassed or detained, it is agreed that all examinations of goods required by the laws shall be made before they are laden on board the vessel and that there shall be no examination after, nor shall the vessel be searched at any time unless articles shall have been laden therein clandestinly and illegally, in which case the person by whose order they were carried on board, or who carried them without order, shall be liable to the laws of the land in which he is, but no other person shall be molested nor shall any other goods nor the vessel be seized or detained for that cause.7
Art. 7.º Each party shall endeavour by all the means in their power to protect and defend all vessels and other effects belonging to the citizens or subjects of the other, which shall be within the extent of their jurisdiction by sea or by land,8 and shall use all their efforts to recover and cause to be restored to the right owners their vessels and effects which shall be taken from them within the extent of their said jurisdiction.
Art. 8.º The vessels of the subjects or citizens of either party coming on any coast belonging to the other but not willing to enter into port, or being entered into port and not willing to unload their cargoes or break bulk, shall have liberty to depart and to pursue their voyage without molestation and without being obliged to pay any duties, charges or fees3 whatsoever or to render any account of their cargo.
Art. 9.º When any vessel of either party shall be wrecked, foundered or otherwise damaged9 on the coasts or within the dominion of the other, their respective subjects or citizens shall receive, as well for themselves as for their vessels and effects the same10 assistance, which would be due to the inhabitants of the country where the damage11 happens and shall pay the same charges and dues only as the said inhabitants would be subject to pay in a like case: and if the operations of repair shall require that the whole or any part of their cargo be unladed, they shall pay no duties, charges or fees on the part which they shall relade and carry away.
Art. 10.º The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other by testament, donation or otherwise: and their representatives being subjects or citizens of the other party shall succeed to their said personal goods, whether by testament or ab intestato, and may take possession thereof either by themselves or by others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases. And in case of the absence of the representative such care shall be taken of the said goods and for so long a time as would be taken of the goods of a native in like case until the lawful owner may take measures for receiving them, and if question shall arise among several claimants, to which of them the said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. Andº where on the death of any person holding real estate within the territories of the one party, such real estate would by the laws of the land descend on a citizen or subject of the other were he not disqualified by alienage, such subjects shall be allowed a reasonable time12 to sell the same and to withdraw the proceeds without molestation.13
Art. 11.º The most perfect freedom of conscience and of worship is granted to the citizens or subjects of either party within the jurisdiction of the other without being liable14 to molestation in that respect for any cause other than an insult on the religion of others.15 Moreover when the subjects or citizens of the one party shall die within the jurisdiction of the other their bodies shall be buried in the usual burying grounds or other decent and suitable places, and shall be protected from violation or disturbance.
Art. 12.º If one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent powers shall not be interrupted. On the contrary in that case as in full peace the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party although such things belong to an enemy of the other: and the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party: unless they be souldiers in actual service of such enemy. On the other hand enemy vessels shall make enemy goods, insomuch that whatever shall be found in the vessels of an enemy shall be confiscated without distinction; except such goods and merchandize as were put on board such vessel before the declaration of war;16 or within six months after it, which shall be free.
Art. 13.º And in the same case of one of the contracting parties being engaged in war with any other power, to prevent all the difficulties and misunderstandings that usually arise respecting the merchandize heretofore called Contraband such as arms, ammunition and 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 and a loss of property to individuals. Nevertheless it shall be lawful to stop such vessels and articles and 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 it’s destination.17
Art. 14.º And in the same case where one of the parties is engaged in war with another power, that the vessels of the neutral party may be readily and certainly known, it is agreed that they shall be provided with sea letters or passports which shall express the name, the property and burthen of the vessel, as also the name and dwelling of the master; which passports shall be made out inº good and due forms (to be settled by conventions between the parties whenever occasion shall require) and shall be renewed asº often as the vessel shall return into port; and shall be exhibited whensoever required as well in the open sea as in port. But if the said vessel be under convoy of one or more vessels of war belonging to the neutral party the simple declaration of the officer commanding the convoy that the said vessel belongs to the party of which he is shall be considered as establishing the fact and shall relieve both parties from the trouble of further examination.18
Art. 15.º And to prevent entirely all disorder and violence in such cases it is stipulated that when the vessels of the neutral party, sailing without convoy, shall be met by any vessel of war public or private of the other party, such vessel of war shall not approach within cannon shot of the said neutral vessel nor send more than two or three men in their boat on board the said same to examine her sea letters or passports. And all persons belonging to any vessel of war public or private who shall molest or injure in any manner whatever the people, vessels or effects of the other party, º shall be responsible in their persons and property for the damages and interest,19 sufficient security for which shall be given by all commanders of private armed vessels, before they are commissioned. Counterp.
Art. 16.º It is agreed that the subjects or citizens of each of the contracting parties, their vessels and effects shall not be liable14 to any embargo or detention on the part of the other, for any military expedition or other public or private purpose whatsoever. And in all cases of seizure, detention, or arrest for debts contracted, or offences committed by any citizen or subject of the one party within the jurisdiction of the other, the same shall be made and prosecuted by order and authority of law only and according to the regular course of proceedings usual in such cases.20
Art. 18.º If the citizens or subjects of either party in danger from tempest, pirates, enemies, or other accident shall take refuge with their vessels or effects within the harbours or jurisdiction of the other, they shall be received, protected and treated with humanity and kindness, and shall be permitted to furnish themselves at reasonable prices with all refreshments, provisions, and other things necessary for their sustenance, health and accomodation and for the repair of their vessels.21
Art. 19.º The vessels of war publick and private of both parties shall carry freely wheresoever they please the vessels and effects taken from their enemies without being obliged to pay any duties, charges or fees to officers of admiralty, of the customs, or any others nor shall such prizes be arrested, searched or put under legal process when they come to and enter the ports of the other party,22 but may freely be carried out again at any time by the captors to the places expressed in their commissions, which the commanding officer of such vessels shall be obliged to shew. But no vessel which shall have made prizes on the subjects of his most Christian majesty the king of France shall have a right of asylum in the ports or havens of the United States and if any such be forced therein by tempest or dangers of the sea they shall be obliged to depart as soon as possible, according to the tenor of the treaties existing between his most Christian majesty and the United States.23
Art. 20.º No citizen or subject of either of the contracting parties shall take from any power with which the other may be at war any commission or letter of marque for arming any vessel to act as a privateer against the other on pain of being punished as a pirate; nor shall either party hire, lend or give any part of their naval or military force to the enemy of the other to aid them offensively or defensively against that other.24
Art. 17.º 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.25
Art. 21.º If the two contracting parties should be engaged in war against a common enemy the following points shall be observed between them.
1st. If a vessel of one of the parties retaken by a privateer of the other shall not have been in possession of the enemy more than º twenty four hours, she shall be restored to the first owner, for one third of the value of the vessel and cargo: but if she shall have been more than twenty four hours in possession of the enemy she shall belong wholly to the recaptor.
2dly.º If in the same case the recapture were by a public vessel of war of the one party, restitution shall be made to the owner for one thirtieth part of the value of the vessel and cargo, if she shall not have been in possession of the enemy more than twenty four hours; and one tenth of the said value where she shall have been longer: which sums shall be distributed in gratuities to the recaptors.
3dly.º The restitution in the cases aforesaid shall be after due proof of property and surety given for the part to which the recaptors are entitled.
4thly.º The vessels of war public and private of the two parties shall be reciprocally admitted with their prizes into the respective ports of each: but the said prizes shall not be discharged nor sold there until their legality shall have been decided according to the laws and regulations of the state to which the captor belongs.
5thly.º It shall be free to each party to make such regulations as they shall judge necessary for the conduct of their respective vessels of war public and private relative to the vessels which they shall take and carry into the ports of the two parties.
Art. 22.º Where the parties shall have a common enemy, or shall both be neutral, the vessels of war of each shall upon all occasions take under their protection the vessels of the other going the same course, and shall defend such vessels as long as they hold the same course against all force and violence in the same manner as they ought to protect and defend vessels belonging to the party of which they are.
Art. 23.º 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 and settle their affairs,º and may depart freely, carrying off all their effects without molestation or hinderance: and all women and children, scholars of every faculty, cultivators of the earth, artizans, manufacturers and fishermen,26 unarmed, and inhabiting unfortified towns, villages, or places;27 whose occupations28 are for the common subsistence and 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 wasted29 by the armed force of the enemy into whose power, by the events of war, they may happen to fall: 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 and trading vessels employed in exchanging the products of different places and thereby rendering the necessaries, conveniences and comforts of human life more easy to be obtained and more general shall be allowed to pass free and unmolested.30 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.
Art. 25.º The two contracting parties grant to each other the liberty of having each in the ports of the other, consuls, vice consuls, agents and commissaries of their own appointment; whose functions shall be regulated by particular agreement whenever either party shall chuse to make such appointment.
Art. 27.º31 His Majesty the king of Denmark and Norway and the United States of America agree that this treaty shall be in force during the term of years from the exchange of ratifications,32 º and if the expiration of that term should happen during the course of a war between them, then the articles before provided for the regulation of their conduct during such a war shall continue in force until the conclusion of the treaty which shall reestablish peace: and that this treaty shall be ratified on both sides and the ratifications exchanged within one year from the day of it’s signature.
Art. 24.º And to prevent the destruction of prisoners of war by sending them into distant and inclement countries, or by crowding them into close and noxious places, the two contracting parties solemnly pledge themselves to each other and to the world that they will not adopt any such practice, that neither will send the prisoners whom they may take in war 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 wholsome situations, that they shall not be confined in dungeons, prisonships, nor 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 and have comfortable quarters, and the common men be disposed in cantonments open and extensive enough for air and exercise, and lodged in barracks as roomly and 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 and of the same articles and 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 souldier in their own service: the value whereof shall be paid by the other party on a mutual adjustment 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 balances 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 separate cantonment of prisoners in possession of the other, which commissary shall see the prisoners as often as he pleases, shall be allowed to receive and distribute whatever necessaries33 may be sent to them by their friends, and 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 designated 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 pretence34 that war dissolves all treaties, nor any other whatever shall be considered as annulling or suspending this and 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 acknowledged articles35 in the law of nature or nations.36
26.º If either party shall hereafter grant to any other nation any º particular favour in navigation or commerce, it shall immediately become common to the other party, freely where it is freely granted to such other nation, or on yeilding the compensation where such other nation does the same.37
Dft (DLC). MS (DLC); both in TJ’s hand. Tr (MHi: AMT); copied by John Quincy Adams from MS, but consists of only 25 articles and was completed before Articles 6, 24, and 26 had been added; see notes 7, 32, 36 and 37. TJ included with Dft the classification of treaty provisions and notes thereon which are here presented as Documents ii and iii; these were endorsed by Humphreys: “Draught of a treaty &c.” and all were copied by young Adams before being given final form. The more important differences between Dft, MS, and Tr have been indicated in notes. In DLC: TJ Papers, 17: 2976–7 there is, in TJ’s hand, the “Draught of a Supplementary treaty of Amity and Commerce between his most Christian majesty the king of France and the United States of America.” This was evidently drawn up about the same time that TJ’s “general form of a treaty” was prepared, and was no doubt intended as a similar form for supplementary treaties with France, the Netherlands, and Sweden. This supplementary treaty project included Articles numbered from 1 to 10, corresponding respectively to Articles 2, 4, 5, 10, 13, 16, 21, 23, 24, and 27 in the above text. In general this project, referred to in notes below as Supplementary Treaty, shows that it was drafted subsequent to the final form of MS, but see notes 17, 32, 34, and 35. See also note 13.
1. The following deleted in Dft: “and between the citizens and subjects of the said parties, and the countries, islands, cities, and towns situated under their respective jurisdictions and the people and inhabitants thereof of every degree.”
2. The following deleted in Dft: “ports, havens, roads, countries, islands, cities, or towns of the.”
3. TJ first wrote “duties or imports” then deleted “imports” and interlined “impositions,” then deleted “impositions” and substituted “charges and fees,” making the final phrase read as above. Tr reads as above.
4. This word interlined in Dft in substitution for “liberties,” deleted.
5. This word interlined in substitution for “bottoms,” deleted. Elsewhere TJ deleted “ships” and interlined “vessels.”
6. The following deleted in Dft: “and all and every the citizens, people and inhabitants of the said United States of America, shall reciprocally have and enjoy the same privileges and liberties in all places whatsoever within the dominions or jurisdiction of his said Danish majesty.”
7. This article, which became the sixth, was written in margin of Dft and inserted at bottom of p. 7 of MS; all numbers of articles subsequent to Article 5 were in consequence altered in both Dft and MS by overwriting. This article is not in Tr, proving that TJ added it to Dft and MS after young Adams had made Tr. See also note 31.
8. Preceding eleven words interlined in substitution for the following: “in his ports, havens, or roads, or on the seas near to his countries, islands, cities, or towns so far as his jurisdiction shall extend on the sea.”
9. This word interlined in Dft and MS in substitution for “injured,” deleted. Tr was made before this alteration, and reads “injured.”
10. These two words deleted in substitution for “all possible,” deleted. Tr was made after this alteration and reads as above.
11. This word interlined in Dft and MS in substitution for “injury,” deleted. Tr reads “injury.”
12. Preceding three words interlined in Dft and in MS in substitution for “–– years,” deleted. This alteration made after Tr, which reads “––years.”
13. Originally this article, up to this point, had stipulated rights and privileges accorded “subjects of his majesty the king of Denmark and Norway,” which made it necessary for the article to conclude with the following: “The rights and privileges stipulated in this article for the subjects of his Danish majesty as to property real or personal within the U.S. of America are with the most perfect reciprocity stipulated for the citizens of the said U.S. as to property real or personal within the dominions or jurisdiction of his said Danish majesty.” By altering the opening sentence of the paragraph so as to make the stipulations apply to the “citizens or subjects of each party … within the jurisdiction of the other,” TJ was enabled to delete this concluding sentence. Except as indicated in note 12, Tr and MS agree with the reading as given above. Article 4 of Supplementary Treaty includes only final sentence of Article 10.
14. This word interlined in substitution for “subject,” deleted. Tr agrees with the reading as given above.
15. The following words are deleted in Dft at this point: “tolerated with the state where it happens.” The corresponding article in the Danish counter-project, in its entirety, reads: “A perfect liberty of conscience shall be granted to the subjects and inhabitants of each party within the respective states, and they may, consequently, freely attend the worship of their religion without being disturbed or molested, provided that they submit, as to the public demonstration, to the ordinances and laws of the country” (Wharton, Dipl. Corr. Amer. Rev., vi, 525). Article 4 in the Netherlands treaty reads: “There shall be an entire and perfect liberty of Conscience allowed to the Subjects and Inhabitants of each Party, and to their Families: and no one shall be molested in regard to his worship, provided he submits, as to the public demonstration of it, to the Laws of the Country‥‥” (Miller, ed., Treaties and other International Acts of the United States of America, Washington, 1931, ii, p. 63; the remainder of Article 4 concerns burial rights).
16. The following deleted in Dft: “or even after such declaration if it were unknown to the owners of the goods and merchandize when he put them on board such vessel.”
17. The following was written in margin of Dft (evidently at the time of the alteration indicated in note 7) and then deleted: “Neither party shall hire, lend, or give any part of their naval or military force to the enemy of the other, to aid them offensively or defensively against that other.” The same passage appears in margin opposite Article 5 of Supplementary Treaty, and is not deleted.
18. Preceding fourteen words interlined in Dft in substitution for the following: “fully sufficient, and as removing the necessity and the right of examining the said papers.”
19. The following deleted in Dft: “over and above the reparation due for the insult offered the flag of the other.” This clause appeared in the Danish counter-project.
20. Dft originally read: “… according to the ordinary proceedings, and as to such debts and offences the proceedings shall be in a regular course according to the law of the land.” TJ then altered Dft to read as above. The corresponding clause in the Danish counter-project read: “… and with regard to debts and faults, process ought to be made by way of equity, and agreeably to the forms of the justice of the place.”
21. The following deleted in Dft: “provided they exercise no commerce contrary to the laws of the place where they are and to this treaty.” This proviso, in slightly different phraseology, appeared in the Danish counter-project.
22. The following deleted at this point in Dft: “nor shall the searchers or other officers of the place search the same or make examination concerning the lawfulness of such prizes.”
23. This sentence interlined in both MS and Dft in substitution for the following, deleted: “But this article shall not derogate from the obligation of the said U.S. stipulated by treaty with his most Christian majesty the king of France, to give no asylum in their ports or havens to those who shall have made prizes on his subjects, and if any such are forced therein by tempest or danger of the sea, to oblige them to depart as soon as possible.”
24. The clause “nor shall either party hire … against that other” is not in Tr and is interlined in both MS and Dft, having been placed there when the deletion indicated in note 17 was made.
25. This article occupies this position in Dft, but is in proper sequence in MS and in Tr.
26. As originally phrased in Dft and MS, and as copied in Tr, this passage read: “… all fishermen, all cultivators of the earth, and all artizans and manufacturers.” TJ then altered Dft and MS by deletion and interlineation to read as above.
27. The following is interlined in MS in the hand of David Humphreys: “and in general all others.” This is not in Dft or in Tr and may have been added much later.
28. Dft and MS originally read: “who labour for” and Tr reads thus; TJ then altered both Dft and MS to read as above.
29. Preceding eighteen words not in Tr and are interlined in Dft and in MS.
30. This is the sentence referred to by David Hartley in his letter to TJ of 5 Mch. 1786 as “our Quaker article, yours as first proposing; mine as first adopting.” This is almost conclusive proof that TJ’s model treaty was completed by the middle of September, for David Hartley returned to London “a few days” after his communication of 16 Sep. 1784 to the Commissioners, who heard nothing from him after his arrival back in Paris until about the first of November (see Commissioners to Congress, 11 Nov. 1784). It would appear, therefore, that TJ and Hartley had discussed the “general form” of a treaty before the latter left for London, and it was about this time, no doubt, that TJ also permitted Hartley to make the copy of the map reproduced in Vol. 6: 593.
31. This was originally Article 24 in Dft and in MS, but after the changes indicated in notes 7 and 32 had been made, and after the addition of Articles 24 and 26 below, the number was changed to 27. See Document ii, notes 2 and 3.
32. As originally written, this article in Dft, MS and Tr ended at this point, and the succeeding article read: “25. They also agree that it shall be ratified on both sides, and the ratifications exchanged within one year from the day of it’s signature.” Tr, whose Articles 24 and 25 are equated with this Article 27, ended at this point. Then TJ altered Articles 24 and 25 in Dft and MS to read as above. Article 10 of the Supplementary Treaty, with appropriate changes in title, agrees with the revised text of the combined articles as printed above.
33. In MS the word “comforts” is interlined at this point; suggested by TJ ca. Mch. 1785.
34. This word is interlined in Dft and in Supplementary Treaty in substitution for “principle,” deleted.
35. In Supplementary Treaty this word is interlined in substitution for “points,” deleted. Since Dft and MS contain no such correction, it is evident that text of Supplementary Treaty was completed before either Dft or MS and, therefore, presumably during September (see note 30).
36. This article not in Tr.
37. This article not in Tr.