In adopting in their entirety these two articles, it is essential to add at the end of each: “submitting themselves nevertheless, in the places where they would do business, to the laws and usages there established and to which are submitted the citizens of the United States (the subjects of His Majesty the King of Prussia) and the citizens and subjects of the most favored foreign nations.” It is even more indispensable to insist on this clause because the dominions of His Prussian Majesty are composed of provinces, the majority of which have laws and customs of their own. We could not annul the police laws common to all the nations of Europe or take away without injustice the ancient rights of companies, communities, or guilds. The city of Königsberg has a law of intermediation, by which a foreign merchant there may not sell directly to another foreigner. In several ports, where large vessels cannot enter fully loaded, we have companies that maintain lighters for unloading cargo in the roadstead and carrying it in. In some places we have guilds of stevedores, who for a fixed price help to unload vessels, etc. All this should not and cannot alarm the other contracting party. The majority of these regulations were established for 410 the advantage as well as convenience of foreigners, who when they arrive in our ports could not manage without the assistance of pilots and other skilled persons, and without our police regulations would find themselves exposed to greed and chicanery. All the nations of Europe have similar practices, and no one has complained of ours.

This article requires very considerable changes and clarifications:

1. It is necessary to strike out the clause “in their own vessels,” which is in the spirit of the British Navigation Act but not at all in ours. The main goal of this treaty is a reciprocal commerce between the two nations, and the safe and easy flow of their goods. The king’s intention is less to enlarge his subjects’ trade in distant seas than to stimulate national industry and facilitate the exportation of the products of Prussian workshops, so that the clause, by not according the stipulated advantages to all our goods in the same way as those imported by our vessels, directly collides with our motives and renders practically null for us the advantages that this treaty should secure reciprocally.

2. The freedom to sell and buy, stipulated by this article, is so general that it does not admit the possibility of a commodity or type of merchandise the importation or exportation of which might be forbidden, and what is more, Article IV of our draft drawn up in the month of March of this year is entirely omitted from the counterproject.3 The king must therefore insist that Article IV be revised in the following manner: “More especially each party shall have a right to carry their own produce, manufactures, and merchandise to any parts of the dominions of the other, there freely to sell them and to purchase and take in exchange the produce, manufactures, and merchandise of the other nation. All such produce, manufactures, and merchandise, whether they are imported or exported by vessels belonging to one of the two nations or on ships of any other nation whatsoever, shall pay on entering and on leaving no higher duties than are paid for the produce, manufactures, and merchandise of the most favored nation. Nevertheless the king of Prussia and the United States reserve to themselves the liberty to prohibit in their respective countries the importation and exportation of all merchandise whatsoever when reasons of state shall require it. In this case the subjects or citizens of either of the contracting parties to the present treaty shall not import nor export the merchandise prohibited by the other, but if one of the contracting parties permits any other nation to import or export this same merchandise, the subjects of the other shall immediately enjoy the same liberty.” Article XI of our draft, stipulating that all advantages in matters of commerce and trade accorded to other nations in the future will be shared by the contracting parties immediately, would also find its rightful place here, but as the counterproject draft makes it a separate article, XXVI, it is quite immaterial whether this article is placed here or below.

The reasoning that motivated the clause to be added to Articles II and III renders entirely superfluous Article V of the draft, of which, however, one can without difficulty retain the last passage, stipulating that “The merchants, etc., of either party shall not be forced to unload any sort of merchandise into any other vessels, nor to receive them into their own, nor to wait for their being loaded longer than they please.”

This article could be adopted in its entirety without the phrase “that the vessels that leave port without having unloaded will pay no duties, etc.” This cannot present any difficulty when it is a question of merchandise or when the vessel is in the roadstead. But once the vessel has entered into port, it seems that it must be subject to the duties established for the maintenance of the port itself and for the various arrangements necessary to make the entry and departure of vessels safer (for instance, port fees, pilotage, and beaconage). It is therefore fitting to revise the end of this article as follows: “and without being obliged to render account of their cargo or to pay any duties, charges, or fees whatsoever except the fees established for vessels entered into port and appropriated to the maintenance of the port itself or of other establishments for the safety and convenience of navigators, which fees nonetheless shall only be paid on the same footing as in the case of the subjects and citizens themselves of the country where they are established.”

It would be very much in line with the humane principles that form the basis of several articles of this draft to add to the end of this one: “The ancient and barbarous right to wrecks of the sea shall be entirely abolished with respect to the subjects of the two contracting parties.”

This article is pretty nearly equivalent to Article VIII of our draft. But as in this one the right of detraction is reciprocally exempted, and the force of past or future ordinances against emigration is reserved to the king, it is necessary to restore our Article VIII in its entirety and put it in place of Article X of the counterproject.

This article could not be adopted in its entirety, above all the last point, stipulating “that enemy vessels make neutral goods confiscable without distinction.” The principles that the court of Berlin has adopted in several public statements, in particular in the circular declaration of 30 April 1781,4 directly contradict the designated stipulations. The American plenipotentiaries, inspired by the philosophic spirit of humanity and equity that has dictated several articles of the counterproject, will no doubt voluntarily give up such a clause and consent to substitute the following: “that the 412 effects and merchandise belonging to the subjects of the neutral contracting party, except for munitions of war, that are found on board an enemy vessel, will be returned to their owners or at least paid for according to just and reasonable prices.” In any case, one might omit all this, simply insert the final passage, beginning with the words “On the other hand” until the end, and leave this question undecided, as was done in the convention on the Armed Neutrality approved by the king and by other powers.

In general there is no difficulty in adopting this article. However, as the expression “reasonable compensation for the loss such arrest shall occasion” is a bit vague, it would be desirable to define this compensation more precisely. And as there are cases where a neutral vessel whose entire cargo is composed of merchandise that is not suspect has on board a mariner’s private cargo of munitions of war destined for the enemy of the other contracting party, a case noted in Article XV of our draft, it would be very fitting to insert in Article XIII of the counterproject the clause “and in these stipulated cases, if the owner of the vessel would prefer to deliver the suspected private cargo to the vessel that discovered it, the merchant vessel could no longer be detained but would have complete liberty to continue its voyage.”

Just as the United States of America, by the terms of an earlier treaty, finds itself obligated to allow prizes taken by the subjects of the king of France to enter their ports, there may be cases where it might compromise the king to receive in his ports prizes made against other nations. Because of this consideration it would be better to restore this article to the form that it took in our responses to the observations of Mr. Adams sent to the king’s minister in Holland in May of this year, to the effect “that the armed vessels of the contracting parties shall not conduct the prizes they shall have taken from their enemies into the ports of the other, unless they are forced to enter therein by stress of weather or danger of the sea. In this last case they shall not be stopped nor seized but shall be obliged to go away as soon as possible,” which renders the exception of the vessels taken from France entirely superfluous.

Addendum 4. After the words “to which the captor belongs,” one might add for greater clarity: “but by the judicatures of the place into which the prize shall have been conducted.”

At the end of this article and to make it consistent with Articles II and III with their proposed additions, it will be indispensable to add the clause “that when the consuls shall exercise commerce they shall be submitted to the laws and usages of the places where they shall do so.”

All the other articles of the counterproject, which are not specifically 413 mentioned in these observations, may be adopted without additions or changes.