From Benjamin Franklin to David Hartley, 2 June 1784
To David Hartley
ALS: The Scriptorium (1990); copies:6 William L. Clements Library, National Archives (London); transcript: National Archives
Passy, June 2. 1784—
Sir,
I have considered the Observations you did me the honour of communicating to me,7 concerning certain Inaccuracies of Expression and suppos’d 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 Republick 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; tho’ in their separate Acts each Party is Master of, and alone accountable 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 Republicks,” 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 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 occasion’d 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 this 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 express’d 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, tho’ 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, tho’ 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 plac’d, 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 the 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, Esqr President;” and the Date, suppos’d 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.8
With great Esteem and Respect I have the honour to be, Sir, Your Excellency’s most obedient & most humble Servant
B. Franklin
His Excellency David Hartley, Esqr
Endorsements: DF to DH June 2/8 1784 / DF to DH June 2/8 1784
6. Both copies are in the hand of Hartley’s secretary George Hammond and conform in every respect to BF’s ALS except for the date, which was changed to June 8. On the first copy listed, which Hartley retained, the 8 was written over a 2; the second one, sent by Hartley to Carmarthen, is a fair copy of the first. (Note that Hartley endorsed the text published here as “June 2/8”.) There is no doubt that BF delayed sending this letter, as Hartley reported to Carmarthen on June 4 that he had not yet received it (Clements Library). On June 9 Hartley sent Carmarthen both his own June 1 letter to BF and this response, which he claimed to “have received this day” (Giunta, Emerging Nation, 1, 975–6).
7. On June 1, above.
8. In his letter to Carmarthen of June 9, cited above, Hartley reported on the conversation he had had with BF earlier that day. BF offered further arguments in defense of the language of the American ratification, highlighting its similarity to Congress’ ratifications of the preliminary articles and of the Swedish-American treaty. BF showed Hartley those documents and others. Hartley concluded by asking whether he should await further instructions or return to England as Carmarthen’s letter of May 25 had instructed.