Thomas Jefferson to Benjamin Franklin, November 10, 1784

When Congress instructed the commissioners to negotiate twenty treaties in two years, it did not send a draft treaty; it specified nine “points [to] be carefully stipulated” in the accords. 8 Faced with so daunting an assignment to complete in so short a period of time, Adams, Jefferson, and Franklin decided to create a single treaty proposal that could be offered to all potential commercial partners as a point of departure. The work of crafting that proposal fell to Jefferson. 9 As indicated by the memoranda published here, Jefferson composed the proposal in stages and in consultation with his fellow commissioners. Exactly when he began this process is not known, but it was completed by November 10, when the commissioners sent the proposal to Thulemeier, the first envoy to request it.

Jefferson used the unratified Danish-American draft treaty that Franklin had sent to Congress in July, 1783, as his template. 1 All articles that related to, or were supplanted by, the articles and guidelines sent by Congress, were revised accordingly. He made outlines of the treaties the United States had signed with France, Holland, and Sweden; 2 traced the genealogies of the articles in the draft Danish treaty; and considered the draft treaties that Franklin had negotiated with Portugal and Adams had negotiated with Prussia. 3 Jefferson found the order of articles in these treaties confusing, and their language archaic. In the memoranda published here, he sought permission to revise both. His first draft of Memorandum (I) contained a passage that he reconsidered and deleted, shown here in italics: “Will it not be better then 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 & not grammar will justify? The articles may be rendered shorter & more conspicuous, by simplifying their stile & structure in some such order as the following?” He may not have wanted to lecture the veteran diplomats Franklin and Adams, who, in their previous negotiations of treaties of commerce, had followed the customary language of longstanding European treaties. Finally, he prepared Memorandum (II), which posed additional questions to his colleagues.

John Quincy Adams made fair copies of the memoranda as well as of Jefferson’s twenty-five-article draft treaty. John Adams retained these copies; if Franklin had his own set it has not been located. When the commissioners met to talk about the draft is not known. Our only clues to the nature of their discussions are the changes that Jefferson made to Memorandum (I), described in annotation below, and the differences between his first draft of the treaty and the final proposal. Over and above any emendations to the texts of individual articles, the final proposal included three additional articles, for a total of twenty-seven. (Articles 24 and 25 of the first draft, regarding ratification, were merged into one.) The first (Article 6) was taken from the French and Swedish treaties and was the subject of Jefferson’s second question in Memorandum (II). The second (Article 24) was an entirely new article, on the humane treatment of prisoners of war, which TJ did not address in his list of questions. The third (Article 26) was taken from the French and Prussian treaties and was the subject of Jefferson’s final query in Memorandum (II).

[before November 10, 1784]

On comparing the Project and Counterproject of the treaty with Denmark with our instructions it will be found that these render it necessary to strike out some of the articles, to insert some new, & to alter others; insomuch that it’s whole texture & plan will be defaced & mutilated. Will it not be better then to take up the subject as it were anew, & to arrange the articles under classes in some such order as the following?

Art. 1. There shall be peace

2. free intercourse & commerce for the Danes in America.

3. and for the Americans in the Danish dominions.

4. each may carry for themselves & to be privileged against monopolies.

5. each may transact their own business.

6. goods shall be examined before they are put on ship board. 4

7. mutual protection in each others’ ports & coasts.

8. vessels not breaking bulk to pay no duties.

9. Vessels wrecked or injured shall be assisted.

10. the goods of persons dying shall go to their representatives.

11. liberty of conscience & the rights of burial.

12. free vessels make free goods & persons, & enemy vessels make enemy goods.

13. nothing shall be deemed Contraband.

14. Vessels shall sail with Passports.

15. armed vessels shall not approach trading vessels.

16. no embargoes for military expeditions or other purposes.

17. vessels recaptured shall be restored.

18. vessels pursued or in distress shall be received & protected.

19. armed vessels with their prizes may enter & depart freely.

20. citizens of Neutral party shall not act as privateers against the belligerent.

21. 1. Recapture by a private vessel of war.

2. Recapture by a public vessel of war.

3. when Restitution shall be made.

4. vessels of war & their prizes to be received.

5. each to regulate the conduct of their own vessels.

22. benefits of convoy extended by each to the other.

23. War not to interrupt commerce, husbandry 5 &c. nor to be exercised by private vessels.

24. prisoners of to be well used.

25. Consuls.

26. future favours in trade.

27. Ratification. 6

Notes.

French treaty Art. 9. 10. not to disturb rights of fishing. would it be better to insert such articles with other nations as to our rights at Newfoundland, or to be silent about them? also the stipulation to leave the Danes in quiet possession of the E. and W. Indies? 7

French. 28. Swed. 5. no searches for prohibited goods after the ships are laden. will it be best to insert this? 8

Dutch. 22. this treaty not to derogate from certain articles in the French. to consider if there be any thing in the Draught which would derogate, and to correct it. 9

Instructions. May. 7. 1784. Art. 3. that the U.S. be considered as one nation. this was meant to prevent Great Br. from applying her navigation act against us separately. what is necessary to be done by us on this point? 1 it is an extreme delicate point in America where a great party are jealous of their separate independence. it was difficult to get this article past in Congress and the modifying words ‘on the principles of the Confederation’ were admitted as an amendment to satisfy the jealous members. the majority however is for strengthening the hand of Union, they are the growing party, and if we can do any thing to help them, it will be well.

Instructions Art. 4. ’Cultivators of the earth peaceably following their respective emploiments.’ better omit these words lest they be considered as excluding militia men from the benefit of this article. 2

French. Art. 2. Prussian Art. 2. that favours granted hereafter to any other nation shall become common to the other contracting party. will not this be merely superabundant if inserted in the draught.

The treaty to be in Danish & English.