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graph of that instrument, wherein the United States are mentioned before his Majesty, contrary to the established custom in every treaty in which a crowned head and a republic are parties. It is likewise to be observed, that the term

definitive articles.", 18" used instead of definitive treaty ; and the conclusion appears likewise deficient, as it is neither signed by the president, nor is it dated, and consequently is wanting in some of the most essential points of form nécessary towards authenticating the validity of the instrument. *

I am ordered to propose to you, Sir, that these defects in the ratification should be corrected, which might very easily be done either by signing a declaration in the name of congress for preventing the particular mode of expression so far as relates to precedency in the first paragraph being considered as a precedent to be adopted on any future occasion; or else by having a new copy made out in America in which these mistakes should be corrected, and which might be done without any prejudice arising to either of the parties from the delay. I am, sir, with great respect and consideration, your most obedient humble servant, D. HARTLEY To his Excellency B. Franklin, Esq.

4

To His EXCELLENCY DAVID HARTLEY, Esg.

Sir,

Passy, June 2, 1784. 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 that we should distinguish between the 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 on their separate acts, each party is master of, and alone accountable for, its own mode. If the ministers of the United States had insisted, or even proposed naming in the treaty the States before the king, it might have been deemed injurious to his dignity, as requiring him to acknowledge by that joint act their superiority. But this was not the

e case; on inspecting the treaty it will be found that his majesty is always regularly named before the United States. How it happened that the same order was not observed in the ratification I am not informed. Our secretaries are new in this kind of business, which methinks should be favorably considered if they chance to make mistakes. They may have been led by some precedent; or being republicans, and of course' preferring that kind of government, as in their opinions more excellent than monarchy, they may naturally have thought it right, when the two kinds were to be named in their own instrument, to give their own kind the precedence; an effect of that sort of complaisance which almost every nation seems to have for itself, and of which the English too afford an instance, when in the title of the king they always name Great Britain before France. The congress however adopted the form presented to them, and it is thus become an act of theirs; but the king having no part in it, if it is improper, it reflects only upon those who committed the impropriety, and can no way affect his majesty. Whatever may have occasioned this transposition, Pam confident no disrespect to the king was intended in it by the

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congress. They as little thought of affronting his majesty by naming the states before him, as your ministers did of affronting the Supreme Being, when in the corresponding first paragraph of their ratification they named the king before the Deity. There cannot be a clearer proof of this than what is to be found in the ratification itself. In the treaty the king, as I said before, is always first named. Thus the established custom in treaties between "crowned heads and republics," contended for on your part, was strictly observed; and the ratification following the treaty contains these words: "Now know ye, that We the United States in Congress assembled, having seen and considered the definitive articles, have approved, ratified, and confirmed, and by these presents do approve, ratify, and confirm the said articles, AND EVERY PART AND CLAUSE THEREof, &c.” Thus 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 minister 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 still desired, transmit to congress the observation and the difficulty occasioned by it, and request their orders upon it. I can have no doubt of their willingness to give every reasonable satisfaction.

If the words definitive treaty had been used, 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 it 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." It is true that the signature of the president is not placed at the end of the piece. Among the infinite number of treaties and ratifications that have been made in different ages and countries, there are found a great variety in the forms, and in the manner of placing the seals and signatures, all however equally authentic and binding! Which of the precedents we have followed, I know not; but I think our ratifications have generally been sealed in the margin near the beginning, and the president's name subscribed by him, as it ought to be, near the seal. This is then our usage. And it has never hitherto been objected to by any of the powers with whom we have treated, not even by yourselves in our ratification of the preliminary articles exchanged in 1783. And I observe that your own method is not always uniform; for in your last ratification the king signs only at the end; in the first, at both the end and the beginning. If we had, like older nations, a great seal, the impression of which, from its bulk and weight, could only be appended, the signature might properly be placed above it at the end of the instrument. Probably the want of an able artist prevented our having hitherto such a seal. In the mean time, as all the parts of the instrument are connected by a ribband whose ends are secured under the impression, the signature and seal wherever placed, relate to, and authenticate the whole. This is expressly declared by the congress in the concluding sentence, viz. In testimony whereof, "we have caused the seal of the United States to be hereunto affixed. Witness, His Excellency Thomas Mifflin, Esq. President, this fourteenth day of January, in the year of our Lord one

thousand seven hundred and eighty-four.". It is thus that the duplicate before me is dated, in these words at length, and I apprehend the original exchanged must be the same; so that the essential article of a date was not wanting as supposed, but has been overlooked by the person who made the objection.

The ratification was passed in congress unanimously; and the treaty will, I firmly believe, be punctually and faithfully executed on their part: we confide that the same will be done on yours. Let us endeavor on all sides to establish the "firm and perpetual peace" we have promised to each other, and not suffer even the prospect of it to be clouded by too critical an attention to small forms and immaterial circumstances. With great esteem and respect, I have the honor to be, sir, your Excellency's most obedient and most humble B. FRANKLIN. servant,

to DAVID HARTLEY, ESQ. TO DR. FRANKLIN.

1 MY DEAR FRIEND,

Bath Dec. 1, 1784.

I write to you from Bath, where I am with my sister, who goes on slowly in her recovery, but I hope ina fair way towards it. She desires to be remembered to you. As to any matters of American negotiation I am not at present in any state of information. I am at present drawing up such opinions as occur to me upon the subject, and propose to lay them before the administration. I presume that some determination will be made upon this subject soon after the next meeting of parliament. And probably there may be some arrangements in the administration before that time. The public papers will inform you that your old friend Lord Shelburne is made Marquis of Lansdown, which