Papers of John Adams, volume 18
25 April 1786
Editorial Note
There were three attempts in the mid-1780s to negotiate a Portuguese-American commercial treaty; all failed, and only the third resulted in a final treaty ready for signature. The first was undertaken by Benjamin Franklin in 1783, and although he submitted a draft treaty to Congress after negotiations with Vicente, Conde de Sousa Coutinho, the Portuguese ambassador to France, the effort came to nothing when Congress took no action (Franklin, Papers
, 40:123–132, 360–361). The second effort began following the 1784 creation of the joint commission to negotiate commercial treaties with the nations of Europe and North Africa composed of John Adams, Franklin, and Thomas Jefferson. In September 1784 the commissioners informed the Conde de Sousa Coutinho of their new powers and in November sent the Portuguese ambassador a draft treaty virtually identical to the draft Prussian-American treaty recently sent to the Prussian minister at The Hague. The draft Portuguese-American treaty was sent to
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Lisbon, but nothing came of it because Portugal’s interest in an agreement had waned, although it was willing to exchange agents with the United States so as to better determine the interests of the two nations (vols. 16:193–202, 207–209, 320, 377–387, 429–430, 437–438, 591; 17:503–504; Jefferson, Papers
, 7:419–420, 580). The third attempt at a treaty began in November 1785 when Luiz Pinto de Balsamão, the Portuguese envoy extraordinary and minister to Britain, informed Adams that Portugal wished to conclude a treaty but had decided that negotiations should take place in London rather than Paris (vol. 17:567, 568–569). It is this third and final effort that is represented in the [25 April 1786] treaty printed below.
On 5 November 1785, Adams wrote virtually identical letters to John Jay and Jefferson, informing them of the Portuguese decision and his discussions with Pinto de Balsamão about a treaty and Portuguese-American trade. In his 27 November reply, Jefferson indicated his enthusiasm for negotiating at London rather than Paris and offered his own thoughts regarding trade and treaty provisions (same, 17:568–574, 609–614; Jefferson, Papers
, 9:18–22). Adams likely received Jefferson’s letter, carried by William Stephens Smith, on or about 5 December, the day Smith returned to London from his extended tour of the continent (
AFC
, 6:478).
There is little documentary evidence concerning the negotiations, and, with the exception of the final treaty itself, most of the existing documents are undated. This leaves much open to conjecture, but what is known is that Adams and Jefferson began negotiations with Pinto de Balsamão shortly after Jefferson’s arrival in London on 11 March 1786 and were largely finished by 6 April, when the Portuguese minister wrote to Adams requesting a date for a final conference (Adams Papers). It seems likely, however, that Adams prepared the ground for the final negotiations between early November 1785 and Jefferson’s arrival in March 1786.
In December 1785, with Jefferson’s 27 November letter in hand and Smith resuming his duties as secretary, it seems probable that Adams had a draft Portuguese-American treaty prepared (Jefferson, Papers
, 9:412–423). He probably had Smith copy from his Letterbook the draft Anglo-American treaty of amity and commerce, the commissioners’ most recent draft treaty, which had been enclosed with an 8 July 1785 letter from Franklin and Jefferson and was presented to the Marquis of Carmarthen on 29 July (vol. 17:225–236, 280–282). The only significant changes between the two drafts were the substitution of “Her Majesty the Queen of Portugal” for “his Britannic Majesty” and the insertion of a blank space in Article 3 to include the names of places outside Portugal’s European possessions, such as the Azores, Madeira, and the Cape Verde islands, with which the United States could trade. Presumably two copies were made, one for Pinto de Balsamão and the other for the commissioners’ reference.
John Adams likely gave the draft to the Portuguese minister in December 1785, but nothing further happened until 21 February 1786. On or about that date Pinto de Balsamão received full powers to negotiate (to Jay, 26 Feb., and note 2, above;
AFC
, 7:71–72). And also on that day Adams wrote
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to Jefferson, above, asking him to come to London to complete the treaty. Prior to Jefferson’s arrival in London it seems likely that the newly empowered minister sent Adams his “Observations sur le Traité D’Amitie et de Commerce,” which Adams translated (Jefferson, Papers, 9:424–426).
Soon after Jefferson’s arrival the commissioners met with the minister and negotiations began in earnest. As the commissioners’ written reply to Pinto de Balsamão “Observations” indicates, several of the issues raised by the Portuguese were settled at that first meeting (same, 9:426–432). There is no indication as to when the commissioners’ reply was presented to Pinto de Balsamão, but it is clear that the commissioners were concerned about two issues: the flour and grain trade and the treatment of contraband. The commissioners’ response regarding the first issue stemmed from Adams’ conversations with Pinto de Balsamão in early November 1785 and was a rebuttal of a policy prohibiting the importation of flour to protect Portuguese flour mills set down in an extract of a letter to Pinto de Balsamão from the Portuguese foreign minister received by Adams in February 1786 (to Jay, 26 Feb., and note 2, above). With regard to the second issue, the commissioners proposed omitting, as was the case in the Prussian-American treaty and the draft Anglo-American treaty, a specific list of contraband goods that could be seized whenever found. As is evident from Articles 3 and 12 in the final Portuguese-American treaty, below, the commissioners were unable to achieve their objective in either case.
When Pinto de Balsamão wrote to John Adams on 6 April 1786, requesting a date for a final conference and suggesting 8, 10, or 11 April (Adams Papers), Adams and Jefferson were away on their tour of English gardens. It is not known when the final meeting occurred, but it was decisive. At that meeting Pinto de Balsamão proposed a revision of Article 11 concerning “Liberty of Conscience”; a list of contraband to be included in Article 12; the deletion of Article 13; and a new article regarding the entry of vessels of war into the waters of each party that became Article 25 of the final treaty (Jefferson, Papers
, 9:432–433). It should be noted that Article 13 was not deleted, but rather revised, for which see note 6 to the treaty, below.
All that remained was to prepare the text of the final treaty in two columns, one in Portuguese, the other in English. With respect to this there is a curious document in the Jefferson Papers at the Library of Congress. In the Papers of Thomas Jefferson (vol. 9:421) it is described as a “PrC in a clerk’s hand.” With four exceptions (for which see notes 2, 6, 8, and 9 to the 25 April treaty, below) this document is likely a text prepared by the commissioners following their final meeting with Pinto de Balsamão and intended to be given to the copyist who prepared the fair copy of the final treaty. However, this particular copy is in the hand of Henry Adams, probably made while he was doing research at the Library of Congress in the 1870s and 1880s for his History of the United States. It is possible that the copy is Adams’ amalgam of the changes made in the course of the negotiations, but it is more likely a copy of a document that has not been found.
Jefferson wrote to Jay on 23 April that “the conferences with the
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minister of Portugal have been drawn to a greater length than I expected. However, every thing is now agreed and the treaty will be ready for signature the day after tomorrow” (Jefferson, Papers
, 9:402). In their letter to Jay of 25 April, above, the commissioners stated, “we propose to execute the treaty, and hope to receive the Counterpart executed by the Chevalier De Pinto, before our Commission expires.” Thus it was, according to Abigail Adams 2d, that on 25 April “Mr Jefferson and Pappa went after dinner to the Chevalier de Pintos to put their Names to the Treaty with Portugal” (
AFC
, 7:153). Only Jefferson actually signed the treaty because he was leaving London the following day. John Adams and Pinto de Balsamão did not sign because of the need to await Lisbon’s final approval of the treaty and the authorization for its minister to sign the agreement. The authorization never came, and thus the treaty never went into effect. It was not until 1840, 54 years later, that the United States and Portugal would finally conclude a “Treaty of Commerce and Navigation” (Miller, Treaties
, 4:295–324).
25 April 1786
Her Most Faithful Majesty, the Queen of Portugal and the Algarves, and the United States of America, desiring to ascertain in a permanent and equitable manner, the Rules to be observed, relative to the Intercourse, Correspondence and Commerce, which they intend to establish between their respective States, Countries, Citizens and Subjects, have judged that the said end, cannot be better obtained than by establishing the most perfect Equality and Reciprocity, for the Basis of their Agreement, and by avoiding all those burthensome Preferences which are usually the sources of Debate, Embarrassment and Discontent, by leaving also each Party at Liberty to make, respecting Commerce and Navigation such ulteriour Regulations, as it shall find most convenient to itself; and by founding the Advantages of Commerce, solely upon reciprocal utelity, and the just Rules of free Intercourse; reserving with all to each Party, the Liberty of admitting at its Pleasure, other Nations to a Participation of the same Advantages.
On those Principles, Her Most Faithful Majesty the Queen of Portugal and the Algarves, has nominated constituted, and appointed for Her Minister Plenipotentiary the Most Illustrious Lewis Pinto de Sousa Coutinho, one of Her Majesty’s, Most Honourable Council, Knight of the order of Christ, and Honorary of Malta, Colonel of Infantry, Morgado of Balcemaó, Lord of Ferreiros and Tendacs, and at present Her Envoy Extraordinary and Minister Plenipotentiary at the Court of Great Britain.
And the United States of America, on their Part, have nominated 260 constituted, and appointed for their Ministers Plenipotentiary, John Adams, late one of their Ministers Plenipotentiary, for negociating a Peace, heretofore a Delegate in Congress from the States of Massachusets and Chief Justice of the said State, and at present their Minister Plenipotentiary at the Court of Great Britain: and Thomas Jefferson, a Delegate in Congress from the State of Virginia, and late Governor of the said State, and at present their Minister Plenipotentiary at the Court of Versailles.
The said respective Ministers Plenipotentiary after exchanging their full Powers, and after mature Deliberation have Concluded and agreed upon the following Articles.2
There shall be a firm, inviolable and universal Peace and sincere Friendship, between Her Most Faithful Majesty the Queen of Portugal and the Algarves, Her Heirs, Successors and Subjects on the one part, and the United States of America and their Citizens on the other, without exceptions of Persons or Places.
The Subjects of Her Most Faithful Majesty the Queen of Portugal and the Algarves, may frequent all the Coasts, Bays, harbours, ports, rivers, and Countries of the United States of America, and reside and trade there in all sorts of produce, manufactures and merchandize, the importation or exportation of which shall not be prohibited by the Laws; and shall pay within the said United States no other or greater duties, charges or fees, whatsoever, than the most favoured Nations are, or shall be obliged to pay; and they shall enjoy all the rights, privileges and exemptions in navigation and Commerce which the Most favoured Nation does or shall enjoy.
In like manner the Citizens of the United States of America may frequent all the Coasts, bays, harbours, ports, rivers and Countries of the Domination of Her Most Faithful Majesty3 where the Commerce is not prohibited by the Laws to all Foreign Nations, and reside and trade there in all sorts of produce manufactures and merchandize, the importation or exportation of which shall not be prohibited by the Laws, and shall pay in the Dominions of Her said Majesty no other or greater Duties, charges, or fees, whatsoever, than the most favoured Nation is or shall be obliged to pay, and they 261 shall enjoy all the rights, privileges and exemptions in navigation and Commerce, which the most favoured Nation does or shall enjoy.
More especially each Party shall have a right to carry any kinds of produce, manufactures and merchandize the importation of which shall be permitted to any Foreign Nation, of whatever place they be the growth or manufacture in their own or any other Vessels to the ports of the Dominions of the other before described; where it shall be lawful for all persons freely to purchase them and thence to take produce, manufacture and merchandize of whatever place or growth 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, whose privilege is not the effect of a particular and reciprocal compensation according to Treaties now existing.— Nevertheless, the United States of America 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 each party reserves the right to prohibit in their respective Countries the exportation or importation of any species of goods or Commodities whatsoever, when reasons of State shall require it. In this case the Subjects or Citizens of either of the Contracting Parties shall not import or export the merchandize prohibited by the other, but if one of the Contracting Parties permits any person of their own or any other Nation to import or export the same merchandize, the Citizens or Subjects of the other shall immediatly enjoy the same Liberty.
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, they shall also be free to load or unload their merchandize at such time and in to such Vessels as they shall think most convenient.
That the Vessels of either Party loading within the ports or jurisdiction of the other may not be uselesly harrassed or detained, it is 262 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 illigally 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.
Each Party shall endeavour by all means in their power to protect and defend all the Vessels and other effects belonging to the Subjects or the Citizens of the other, which shall be within the extent of their Jurisdiction by Sea or by Land, 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.
The Vessels of the Subjects or Citizens of either Party coming on any Coast belonging to the other, where Commerce is not forbidden to all Foreign Nations, but not willing to enter in to Port, or being entered in to port and not willing to unload their Cargoes, or break bulk, shall have liberty to depart and to persue their voyage without molestation, and without being obliged to pay any duties, charges or fees whatever except such port charges as are paid by the most favoured Nations, nor to render any account of their Cargo, but they shall be obliged to receive the usual Guards as practised with the most favoured Nations.
When any Vessel of either Party shall be wrecked, foundered, or otherwise damaged on the Coasts or within the Dominions of the other, their respective Subjects or Citizens shall receive, as well for themselves as for their Vessels and effects the same assistance which would be due to the Inhabitants of the Country where the damage 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 unloaded, they shall pay no duties, charges, or fees, on the part which they shall relade and carry away.— The ancient and barbarous 263 right to wrecks of the Sea shall be intirely abolished, with respect to the Subjects or Citizens of the two Contracting Parties.
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 succed 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 where in 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 untill 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. And 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 Subject or Citizen shall be allowed a reasonable time to sell the same, and to withdraw the procceds without molestation.
There shall be a full intire Liberty of Conscience allowed to the Inhabitants and Subjects of each Party 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. There shall be given moreover Liberty when any Subjects or Inhabitants of either Party shall die in the Territory of the other, to bury them in decent and convenient Places, which shall be appointed for that purpose, and the two Contracting Parties shall provide each in its own Jurisdiction that the Citizens and Subjects of the other, may obtain Certificates in cases of Death whenever they shall be required to be delivered.4
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 264 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, in so much that all things shall be adjudged free which shall be on board any Vessel belonging to the Neutral Party, although such things belong to the Enemy of the other,5 except the merchandizes deemed Contraband, namely, Cannons, mortars, fire arms, pistols, bombs, grenades, bullets, balls, fusils, flints, matches, powder, salt-petre, sulphur, cuirasses, pikes, swords, cartouch-boxes, belts, saddles and bridles which shall be adjudged Contraband, and subject to confiscation; excepting nevertheless the quantity which may be requisite for the Defence of the Vessel, and of those who compose the Crew; 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 Soldiers in actual Service of such Enemy; on the other hand, enemy Vessels shall make enemy goods, in so much 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, or within six months after it, which shall be free.
In case any Vessel shall be Stoped for articles deemed Contraband, if the Master will deliver out the goods supposed to be of Contraband nature, he shall be admitted to do it, and the Vessel shall not in that Case be carried in to any Port, nor further detained, but shall be allowed to proceed on her Voyage, nor shall any such Articles be subject to be taken or delayed in any case if they be not in greater quantity than may be necessary for the use of the ships, or of the persons in it. But in case the Contraband Merchandizes cannot be all received on board the Vessel of the Captor, then the Captor may notwithstanding the offer of delivering him the Contraband goods, carry the Vessel to the nearest port.
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 in good and due forms, (to be settled by Convention between the Parties whenever 265 occasion shall require) shall be renewed as often as the Vessel shall return in to 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.
And to prevent intirely 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 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 shall be responsable in their persons and property for damages and interest, and more especially the Commanding officer of the Vessel shall be responsable civily for the same in his person and property, by whomsoever of his Crew the injury was done: sufficient security for which shall be given by all Commanders of private armed Vessels before they are Commissioned.
It is agreed that the Subjects, or Citizens of each of the Contracting Parties their Vessels and effects shall not be liable 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 seisure, detention, or arrest for Debts contracted, or offences commited 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 autority of Law only, and according to the regular course of proceedings usual in such Cases.
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 in to some port of one of the Parties and delivered in to the Custody of the officers of that port, in order to be restored intire to 266 the true proprietor as soon as due proof shall be made concerning the property thereof
If the Citizens or Subjects of either Party in danger from tempests, 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.
The Vessels of War public 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, except the port charges paid by the most favoured Nation, nor shall such Prizes be arrested, searched, or put under Legal Process, when they come to and enter the ports of the other Party, but may freely be carried out again at any time by their Captors to the places expressed in their Commissions, which the Commanding officer of such Vessels shall be obliged to shew, but nothing herein contained shall be understood to derogate from the obligations of the United States of America towards His Most Christian Majesty as Stipulated in the Seventeenth Article of their Treaty of Amity and Commerce.
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 unless bound thereto by some Treaty heretofore made.
If the two Contracting Parties should be engaged in a 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
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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.— 2d. 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.— 3d. The Restitution in the cases aforesaid shall be, after due proof of property and surety given for the part to which the Recaptors are intitled.
4th: The Vessels of War public and private of the two Parties shall be reciprocally admitted with their Prizes in to the respective ports of each; but the said Prizes shall not be discharged nor sold there untill their legality shall have been decided according to the Laws and regulations of the State to which the Captor belongs. 5th. 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 in to the ports of the two Parties.
Where the Parties shall have a Common-Enemy 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 the Vessels belonging to the Party of which they are.
If War should arise between the two Contracting Parties, the Merchants of either Country then residing in the other shall be allowed to remain one year, to collect their Debts and settle their affairs and may depart freely, carrying off all their effects; without molestation or hindrance, and all Women and Children, Scholars of every faculty, Cultivators of the earth, Artizans, Manufacturers and Fishermen, unarmed and inhabiting unfortefied Towns, Villages, or Places, and in general all others, whose occupations are for the common subsistance and benefit of Mankind, shall be allowed to continue their respective employments, and shall not be molested in 268 their persons, nor shall their Houses, or Goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the Enemy in 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 payed for at a reasonable price. And all merchant and trading Vessels employed in exchanging the products of different places, and thereby rendering the necessary conveniences and comforts of human Life more easy to be obtained and more general shall be allowed to pass free and unmolested, and neither of the Contracting Powers shall grant or issue any Commission to any Private armed Vessel empowering them to take or destroy such trading Vessels or interrupt such Commerce.
And to prevent the destruction of Prisoners of War, by sending them in to distant and inclement Countries, or by crowding them in to 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 from the other in to 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 wholesome situations; that they shall not be confined in Dungeons, Prisonships nor Prisons, nor be put in to 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 Soldier in their own Service, the value whereof shall be paid by the other Party on a mutual adjustment of Accounts for the Subsistance of Prisoners at the Close of the War, and the said Accounts shall not be mingled with, or sett off against any others, nor the Balances due on them be withheld 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 269 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 destribute whatever Comforts 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 Benefits of this Article as provides for his enlargement on Parole or Cantonment. And it is declared that neither the pretence 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 Articles in the Law of Nature or Nations.
The Squadrons or Vessels of War of the two Contracting Parties, may enter freely in to the ports, roads or bays of the one or other Dominion where Commerce is permitted, provided nevertheless that they never exceed the number of six Vessels of War, in the great Ports, and of four in the small Ports, without the express permission of the Governor or Commandant of the District, and that they do not make there a Station, with a view to hurt the Commerce of other Nations in Amity or Alliance with either of the two Contracting Parties.
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; 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
If either Party shall hereafter grant to any other Nation any particular favour in Navigation or Commerce it shall immediatly become common to the other Party, freely where it is freely granted to 270 such other Nation, or on yielding the Compensation, where such Nation does the same.
Her Most Faithful Majesty the Queen of Portugal and the Algarves and the United States of America agree that this Treaty shall be in force during the term of Ten years from the exchange of Ratifications, (and the Ratifications shall be within the space of one year after the signature, or earlier if possible) and if the expiration of that term should happen during the Course of a War between them, then the Articles twenty third and twenty fourth, before provided, for the regulation of their conduct during such a War shall continue in force untill 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 its signature,8 or sooner, if possible
In faith whereof the respective Plenipotentiaries have Signed the above Articles, both in the Portuguese and English Languages; and they have thereto affixed their Seals.
Done at London this Twenty fifth day of April, one thousand seven Hundred and eighty six.9
MS (Adams Papers); endorsed by WSS: “Project of a Treaty / with Portugal—” For the documents proceeding from the negotiations and which are with this MS in the Adams Papers or with the Jefferson Papers at the Library of Congress, see Jefferson, Papers
, 9:410–433, and Proposed Portuguese-American Treaty of Amity and Commerce, [25 April 1786], Editorial Note, above. Some loss of text due to wear at the edge.
Although designated by WSS as such, the treaty printed here is not a “Project” in the usual sense. It is in fact a fair copy of a treaty intended for signature, done after all negotiations were complete and all revisions had been made. In this instance, however, only Jefferson signed the agreement, and it was never ratified by the United States or Portugal; indeed, no copy of the treaty was ever sent to Congress. Because of this, and despite the document having parallel Portuguese and English texts, only the English language version of the treaty is being printed.
This preamble, with its identification of the negotiators, replaced the much shorter preamble to the original draft (Jefferson, Papers
, 9:412), which was nearly identical to that in the draft Anglo-American commercial treaty (vol. 17:225). The first paragraph of the new preamble, which sets down the reasons for negotiating a treaty, is virtually the same as the corresponding passage in the 1782 Dutch-American Treaty of Amity and Commerce (vol. 13:349). There is no documentary record of when the new preamble was drafted and approved, but it presumably was after the treaty’s final language was agreed upon in preparation for the treaty to be placed in its final form. But the new preamble does not appear in HA’s copy of the final text, for which see Proposed Portuguese-American Treaty of Amity and Commerce, [25 April 1786], Editorial Note, above.
As is indicated in the Editorial Note, above, at this point there was a blank space in the draft intended to be filled with the names of those Portuguese possessions with which the United States could trade. It was replaced by the passage “where the commerce …” to the next comma. Its intent was 271 to make clear that there would be no American access to Brazil.
The text of this article was proposed by Luiz Pinto de Balsamão at the final negotiating session and accepted by the commissioners (Jefferson, Papers
, 9:432).
The passage from this point through “who compose the Crew,” including its list of contraband, was proposed by Pinto de Balsamão at the final negotiating session and accepted by the commissioners (same, 9:432). The commissioners had resisted including an enumeration of contraband throughout the negotiations as is evident from their long rebuttal to its inclusion in their first response to the Portuguese ambassador’s “Observations” on the draft (same, 9:429–431). It seems likely that the ultimate inclusion of the list was owing to the Portuguese insistence that there could be no treaty without it.
See the much longer article in the original draft treaty (same, 9:415–416). According to JA’s translation of Pinto de Balsamão’s proposals at the final negotiating session, the minister declared that “this Article cannot Subsist, after the foregoing Declaration, respecting Contraband Merchandizes subject to Confiscation” (same, 9:432). It was presumably at this time that the decision was made to delete the first portion of the article and retain only its final sentence ending with “or of the persons in it.” The final sentence of the current article was likely added sometime later because it does not appear in HA’s copy of the final text.
This article does not appear in the original draft, but at the end of JA’s translation of the Portuguese “Observations” on it is the comment “N.B. There is an Article necessary to be added to this Project, to the End to give to Navigation more Security.” That is presumably a reference to the article as it appears here, which was proposed by Pinto de Balsamão at the final negotiating session (same, 9:426, 433).
The remainder of this paragraph does not appear in the original draft or in HA’s copy of the final text. It was probably entered after the final negotiating session to correct an inadvertent omission. According to JA’s translation of Pinto de Balsamão’s “Observations” on the draft, the Portuguese minister had proposed that the paragraph end “or earlier if possible.” Since in their response the commissioners agreed to the change, it was apparently accidentally omitted (same, 9:426, 431).
The final two paragraphs were presumably added after the final negotiating session, for they do not appear in HA’s copy of the final text.