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Britain and the United States of America, and I am ordered to represent to you, that a want of form appears in the first paragraph 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 is 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 necessary 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 it 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, &c. D. HARTLEY.
Lord Carmarthen had written as follows to Mr. Hartley."I received this morning the ratification of the treaty between Great Britain and the United States of America; and I own that it was with the greatest surprise, that I perceived so essential a want of form as appears in the very first paragraph of that instrument, wherein the United States are mentioned before his Majesty, contrary to the established custom observed in every treaty, in which a crowned head and a republic are contracting parties. The conclusion likewise appears extremely 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."-St. James's, May 28th,
TO DAVID HARTLEY.
Answer to Mr. Hartley's Objections to the Form of the Ratification of the Treaty.
Passy, 2 June, 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 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 assembled, 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 this subject more determinate or more authentic can possibly be made or given; which, when considered, may probably induce his Majesty's ministers to wave 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 mean time 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 title 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 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." 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 and eighty-four,” which made the figures unnecessary. With great esteem and respect, I have the honor to be, &c. B. FRANKLIN.
TO THE COUNT DE CAMPOMANES.
Franklin's Writings. Power of an Individual to do Good. Two erroneous Opinions injurious to national Felicity. Hereditary Descents.
Passy, 5 June, 1784.
I have received much instruction and pleasure in reading your excellent writings. I wish it were in my
* Campomanes was eminent as a scholar, a statesman, and a writer of enlarged and liberal ideas. He held various high offices at different
power to make you a suitable return of the same kind. I embrace the opportunity, my much esteemed friend, Mr. Carmichael, affords me, of sending you a late collection of some of my occasional pieces, of which, if I should live to get home, I hope to publish another edition much larger, more correct, and less unworthy your acceptance.'
You are engaged in a great work, reforming the ancient habitudes, removing the prejudices, and promoting the industry of your nation. You have in the Spanish people good stuff to work upon, and by a steady perseverance you will obtain perhaps a success beyond your expectation; for it is incredible the quantity of good that may be done in a country by a single man, who will make a business of it, and not suffer himself to be diverted from that purpose by different avocations, studies, or amusements.
There are two opinions prevalent in Europe, which have mischievous effects in diminishing national felicity; the one, that useful labor is dishonorable; the other, that families may be perpetuated with estates. In America we have neither of these prejudices, which is a great advantage to us. You will see our ideas
times, and, among others, those of President of the Royal Academy of History, President of the Council of Castile, and Minister of State. Dr. Robertson, speaking of some of his writings, says, "Almost every point of importance with respect to interior police, taxation, agriculture, manufactures, and trade, domestic as well as foreign, is examined in the course of these works; and there are not many authors, even in the nations most eminent for commercial knowledge, who have carried on their inquiries with a more thorough knowledge of those various subjects, and a more perfect freedom from vulgar and national prejudices, or who have united more happily the calm researches of philosophy with the ardent zeal of a public-spirited citizen. These books are in high estimation among the Spaniards; and it is a decisive evidence of the progress of their own ideas, that they are capable of relishing an author, whose sentiments are so liberal."— History of America, B. VIII. *This design was never fulfilled.