DAVID HARTLEY.
TO DAVID HARTLEY.
Pa.s.sy, June 2d, 1784.
Sir,
I have considered the observations you did me the honor of communicating to me, concerning certain inaccuracies of expression, and supposed defects of formality, in the instrument of ratification, some of which are said to be of such a nature as to affect the validity of the instrument.
The first is, "that the United States are named before his Majesty, contrary to the established custom observed in every treaty in which a crowned head and a republic are the contracting parties." With respect to this, it seems to me we should distinguish between that act in which both join, to wit, the treaty, and that which is the act of each separately, the ratification. It is necessary, that all the modes of expression in the joint act should be agreed to by both parties, though in their separate acts each party is master of, and alone unaccountable for its own mode. And, on inspecting the treaty, it will be found that his Majesty is always regularly named before the United States. Thus, "the established custom _in treaties_ between crowned heads and republics," contended for on your part, is strictly observed; and the ratification following the treaty contains these words. "Now know ye, that we, the United States in Congress a.s.sembled, having seen and considered the definitive articles aforesaid, have _approved_, _ratified_, and _confirmed_, and by these presents do _approve_, _ratify_, and _confirm_ the said articles, AND EVERY PART AND CLAUSE THEREOF," &c. Hereby all those articles, parts, and clauses, wherein the King is named before the United States, are _approved_, _ratified_, and _confirmed_, and this solemnly under the signature of the President of Congress, with the public seal affixed by their order, and countersigned by their Secretary.
No declaration on the subject more determinate or more authentic can possibly be made or given, which, when considered, may probably induce his Majesty"s Ministers to waive the proposition of our signing a similar declaration, or of sending back the ratification to be corrected in this point, neither appearing to be really necessary. I will, however, if it be still desired, transmit to Congress the observation, and the difficulty occasioned by it, and request their orders upon it. In the meantime I may venture to say, that I am confident there was no intention of affronting his Majesty by their order of nomination, but that it resulted merely from that sort of complaisance, which every nation seems to have for itself, and of that respect for its own government, customarily so expressed in its own acts, of which the English among the rest afford an instance, when in the t.i.tle of the King they always name Great Britain before France.
The second objection is, "that the term definitive _articles_ is used instead of definitive _treaty_" If the words _definitive treaty_ had been used in the ratification instead of _definitive articles_, it might have been more correct, though the difference seems not great nor of much importance, as in the treaty itself it is called the present _Definitive Treaty_.
The other objections are, "that the conclusion likewise appears deficient, as if is neither signed by the President, nor is it dated, and consequently is wanting in some of the most essential points of form necessary towards authenticating the validity of the instrument."
The situation of seals and signatures, in public instruments, differs in different countries, though all equally valid; for when all the parts of an instrument are connected by a ribband, whose ends are secured under the impression of the seal, the signature and seal wherever placed are understood as relating to and authenticating the whole. Our usage is, to place them both together in the broad margin near the beginning of the piece, and so they stand in the present ratification, the concluding words of which declare the intention of such signing and sealing to be giving authenticity to the whole instrument, viz. "_In testimony_ whereof, We have _caused_ the seal of the United States to be hereunto affixed; Witness his Excellency Thomas Mifflin, Esquire, President;" and the date supposed to be omitted, perhaps from its not appearing in figures, is nevertheless to be found written in words at length, viz. "this fourteenth day of January, in the year of our Lord one thousand seven hundred eightyfour," which made the figures unnecessary.
With great esteem and respect, I have the honor to be, &c.
B. FRANKLIN.
TO THE PRESIDENT OF CONGRESS.
Pa.s.sy, June 16th, 1784.
Sir,
My letter by Mr Jay acquainted your Excellency, that the ratifications of the Definitive Treaty were exchanged. A copy of the British part was also sent by him.
Mr Hartley remained here expecting instructions to treat with us on the subject of commerce. The bustle attending a new election and meeting of Parliament, he imagined might occasion the long delay of those instructions. He now thinks that the affair of the American trade, being under the consideration of Parliament, it is probable no treaty will be proposed till the result is known. Mr Jay, who sailed for America the first instant from Dover, and who saw there several of our friends from London before his departure, and Mr Laurens who left London the 6th to go on in the Falmouth packet, will be able to give you more perfect informations than I can, of what may be expected as the determination of the British government respecting our intercourse with their Islands; and, therefore, I omit my conjectures, only mentioning, that from various circ.u.mstances there seems to be some lurking remains of ill humor there, and of resentment against us, which only wants a favorable opportunity to manifest itself.
This makes it more necessary for us to be upon our guard, and prepared for events, that a change in the affairs of Europe may produce; its tranquillity depending, perhaps, on the life of one man, and it being impossible to foresee in what situation a new arrangement of its various interests may place us. Ours will be respected in proportion to the apparent solidity of our government, the support of our credit, the maintenance of a good understanding with our friends, and our readiness for defence. All which I persuade myself will be taken care of.
Enclosed I send a copy of a letter from Mr Hartley to me, respecting some supposed defects in the ratification, together with my answer, which he has transmitted to London. The objections appeared to me trivial and absurd, but I thought it prudent to treat them with as much decency as I could, lest the ill temper should be augmented, which might be particularly inconvenient, while the commerce was under consideration. There has not yet been time for Mr Hartley to hear whether my answer has been satisfactory, or whether the Ministers will still insist on my sending for an amended copy from America, as they proposed.
I do not perceive the least diminution in the good disposition of this Court towards us, and I hope care will be taken to preserve it.
The Marquis de Lafayette, who will have the honor of delivering this to you, has, ever since his arrival in Europe, been very industrious in his endeavors to serve us and promote our interests, and has been of great use on several occasions. I should wish the Congress might think fit to express in some proper manner their sense of his merit.
My malady prevents my going to Versailles, as I cannot bear a carriage upon pavement, but my grandson goes regularly on Court days to supply my place, and is well received there. The last letters I have had the honor of receiving from you, are of the 14th of January.
With great respect, I am, Sir, &c.
B. FRANKLIN.
CONSULAR CONVENTION.
Convention between His Most Christian Majesty and the Thirteen United States of North America, for the purpose of determining and fixing the functions and prerogatives of their respective consuls, vice consuls, agents, and commissaries.
His Majesty, The Most Christian King, and the Thirteen United States of North America, having, by the 29th article of the Treaty of Amity and Commerce concluded between them, mutually granted the liberty of having in their respective States and ports, consuls, vice consuls, agents, and commissaries, and being willing in consequence thereof, to determine and fix in a reciprocal and permanent manner the functions and prerogatives of the said consuls, vice consuls, agents, and commissaries, His Most Christian Majesty has nominated the Sieur Charles Gravier, Count of Vergennes, Baron of Welfording, &c.
Counsellor of the King in all his Councils, Commander of his Orders, Head of the Royal Council of Finances, Counsellor of the State of the Sword, Minister and Secretary of State, and of his Commands and Finances; and the United States, Mr Benjamin Franklin, their Minister Plenipotentiary to His Most Christian Majesty, who, after having communicated to each other their respective full powers, agreed upon what follows.
ARTICLE I.
The consuls and vice consuls, nominated by His Most Christian Majesty and the United States, shall be bound to present their commissions on their arrival in their respective States, according to the form which shall be there established. There shall be delivered to them without any charges the _Exequatur_ necessary for the exercise of their functions; and, on the exhibition they shall make of the said Exequatur, the governors, commanders, heads of justice, public bodies, tribunals, and other officers, having authority in the ports and places of their consulates, shall cause them to enjoy, as soon as possible, and without difficulty, the pre-eminences, authority, and privileges, reciprocally granted, without exacting from said consuls and vice consuls, any duty under any pretext whatever.
ARTICLE II.
The respective consuls shall have power to establish vice consuls in the different ports and places of their departments, where necessity shall require. There shall be delivered to them likewise the Exequatur necessary to the exercise of their functions, in the form pointed out in the preceding article, and on the exhibition, which they shall make of the said Exequatur, they shall be admitted and acknowledged in the terms and according to the powers, authority, and privileges, stipulated by the 1st, 4th and 5th articles of the present convention.
ARTICLE III.
The respective consuls and vice consuls may establish agents in the different ports and places of their departments, where necessity shall require; these agents may be chosen among the merchants, either national or foreign, and furnished with a commission from one of the said consuls. It shall be their business, respectively, to render to their respective merchants, navigators, and vessels, all possible service, and to inform the nearest consul or vice consul of the wants of the said merchants, navigators, and vessels, without the said agents otherwise partic.i.p.ating in the immunities, rights, and privileges, attributed to the consuls and vice consuls, and without power to exact from the said merchants any duty or emolument whatever, under any pretext whatever.
ARTICLE IV.
The consuls and vice consuls, officers of the consulate, and in general, all persons attached to the consular functions, shall enjoy respectively a full and entire immunity for their persons, their papers, and their houses. The list of the said persons shall be approved and inspected by the executive power of the place of their residence.
They shall be exempt from all personal service and public offices, from soldier"s billets, militia, watch guard, guardianship and trusteeship, as well as from all duties, taxes, impositions, and charges whatsoever, except the real estates of which they may be proprietors, which shall be subject to the taxes imposed on the estates of all other individuals.
They shall place over the outward door of their house the arms of their sovereign, without this mark of distinction giving to the said house the right of asylum for any malefactor or criminal, so that in case it should happen that any malefactor or criminal take refuge there, he shall be instantly delivered up on the first requisition, and without difficulty.
ARTICLE V.
Generally, in all cases whatever, which concern the police or administration of justice, where it may be necessary to have a juridical declaration from the said consuls and vice consuls respectively, the governors, commandants, chief justice, public bodies, tribunals, or other officers whatever of their respective residence there, having authority, shall be bound to inform them of it, by writing to them, or sending to them a military or civil officer to let them know, either the object which is proposed, or the necessity there is for going to them to demand from them this declaration, and the said consuls end vice consuls shall be bound on their part to comply faithfully with what shall be desired of them on these occasions.
ARTICLE VI.
The consuls and vice consuls respectively may establish a chancery, where shall be deposited the consular acts and deliberations, all effects left by deceased persons, or saved from shipwreck, as well as testaments, obligations, contracts, and, in general, all the acts and proceedings done between, or by, persons of their nations.
They may, in consequence, appoint for the _business_ of the said chancery capable persons, receive them, administer an oath to them, give to them the keeping of the seal, and the right of seal, commissions, judgments, and other acts of the consulate, as well as there to discharge the functions of notaries and registers.
ARTICLE VII.
The consuls and vice consuls respectively shall have the exclusive right of receiving in their chancery, or on board of vessels, the declarations and all other acts, which the captains, masters, seamen, pa.s.sengers, and merchants of their nation would make there, even their testaments and other dispositions of last will, and the copies of the said acts duly authenticated by the said consuls, or vice consuls, and under the seal of their consulate shall receive faith in law in all the tribunals of France and the United States.