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1700 - 1799
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The stated date of the signature of this treaty is September 16, 1836; but according to the chronological tables, 3 Jumada II, A H. 1252, was September 15; and in the despatch of James R. Leib, consul at Tangier, of the following October 11 (D. S., 5 Consular Despatches, Tangier, No. 39), which transmitted the treaty, he gives the equivalent date as September 17. (See vol. 2, pp. xxi-xxii, for a statement regarding the Mohammedan calendar.)
This treaty was in substance, and, indeed, almost literally, a renewal of the treaty with Morocco of 1786 (Document 14). The additional article of the earlier treaty is not embodied in the renewal; and while Article 25 of each treaty provides that it shall continue in force for fifty years, this treaty adds that thereafter the treaty shall continue unless and until twelve months' notice of denunciation is given by one party or the other. In this connection the interesting question arises as to whether the terms of fifty years and of twelve months are to be calculated according to the Mohammedan calendar or according to our calendar.
The instructions to Leib were dated August 10, 1835 (D. S., 14 Instructions, Barbary Powers, 5-7). The bearer of the communication was William B. Hodgson, who took with him on the U.S. frigate Constitution the presents "to the Emperor of Morocco and his officers upon the renewal of the Treaty with the United States".
The instructions regarding the terms of the treaty were as follows:
If there should appear to be a disposition on the part of the Emperor, so far to extend the privileges of the former arrangement, as to place the vessels of the two countries upon the same footing, you will not fail to take advantage of it. If, on the other hand, there should be an indisposition to grant more favourable terms than before, you will obtain a renewal of the old treaty exactly as it stands for the further period of fifty years; with the addition of a stipulation, that after the expiration of that term the treaty shall continue to be binding on both parties, until the one shall give twelve months' notice to the other of an intention to abandon it; in which case, its operation shall cease at the end of the twelve months. This stipulation is not to be considered indispensable; but you are to make every effort to procure its insertion, and not to relinquish the point until you find it absolutely necessary to do so.
The full power to Leib varied slightly from the usual form, its clauses of substance being the following (D. S., 2 Credences, 235):
Know Ye; That reposing special trust and confidence in the integrity, prudence and ability of J. OR. Leib, a citizen of the United States, and now their Resident Consul at Tangier, I have appointed him agent of the United States to meet, confer, treat and negotiate with His Majesty the Emperor of Morocco and his Government, or with any person or persons duly authorized in his or its behalf, of and concerning all matters of Navigation and Commerce between the United States and the said Government of Morocco, with full power to conclude and sign a treaty therewith transmitting the same to the Government of the United States for his final ratification by and with the advice and consent of the Senate.
Leib acknowledged receipt of the instructions in his despatch from Gibraltar of September 19, 1835 (D. S., 5 Consular Despatches, Tangier, No. 26). While Leib had some discussions with Moroccan officials, most of the negotiations were by correspondence, and during them he did not see the Emperor of Morocco at all. Finally, on August 22, 1836, Leib sent from Tangier the acting vice consul, John F. Mullowny, and the interpreter of the consulate, Peter Boyn, on a mission to the C'ourt of Morocco at Meknes. The instructions of Leib to Mullowny of August 21 (D. S., 5 Consular Despatches, Tangier, No. 36, enclosure) included the following:
You are provided with a copy of the old Treaty [the treaty of 1786, Document 14], procured from the Department of State; and a copy of the New Form, which has been proposed. The number of Articles in each is the same; & the principal modifications are to be found in Article 10, & 25, which can be easily pointed out to the Minister. The modification in Art. 10 is merely an incorporation of the Additional Article, attached to the old Treaty, into the body of the New:-and that in Article 25, the insertion of a clause providing that, at the expiration of the term of the new Treaty, either party shall give the other twelve months notice of an intention to abandon it. These modifications, it is presumed, will not be deemed of sufficient consequence to give rise to difficulty; but, as some importance is attached to them by Government, my instructions are, not to abandon them, until every effort has been made to procure their insertion.
You are also furnished with two blank books, to serve as models, for engrossing the New Treaty; or into which, if immediately concluded, it may be copied.
It was doubtless in the two blankbooks furnished by Leib that the two originals of the treaty were written; and the result of the negotiations is thus stated by Leib in his despatch from Tangier of September 26, 1836 (D. S., 5 Consular Despatches, Tangier, No. 38):
I have the honor to inform you that my Vice-Consul & Interpreter have this moment returned from Mequinas, bringing with them the new Treaty sealed by the Emperor. Every effort was made to introduce the additional points, but without success; with the exception of the clause in the last article by which twelve months notice is to be given by either party when disposed to abandon its provisions. The Treaty will be conveyed to the United States by a Special Messenger.
The most remarkable feature in the negotiation of the present Treaty is the fact that it was sealed by the Emperor before giving him his present, & without stipulating to give him any thing;-a circumstance unknown hitherto in the history of Morocco. Further information will be transmitted as soon as the necessary papers can be prepared. In the mean time, this note is sent by express to Gibraltar, in order that the Department may be possessed of the earliest intelligence.
The original treaty with the seal of the Emperor of Morocco is in the file. It is written in a book in the usual Arabic order, with the pregnable on a right page, the first of the twenty-five articles on the opposite left page, and the remaining articles on left pages, one on a page.
Also in the file is a copy of the treaty in Arabic, with an English translation. This document is a book very similar to the book which contains the original. The Arabic is on the right pages and the English translation on the corresponding left pages. Most of the English is written on very thin sheets of paper which are generally the alternate sheets of the book. The Arabic articles are not numbered. Following Article 25, or, as we would say, preceding it, is the certificate or clause of conclusion (which is printed), under the seal of the United States consulate at Tangier and signed by James R. Leib, consul and agent of the United States, on October 1, 1836.
The original and the copy were transmitted with the despatch of Leib of October 11, 1836, above mentioned, in which he wrote:
The Treaty, it will be observed, being sealed by the Emperor according to the diplomatic custom observed in this Empire, bears the form of a grant. Hence, it would be out of rule to deface the original with my signature or seal. I have therefore attached these to the copy and translation which will accompany the original, according to the usage observed by Diplomatic Agents in other parts of Barbary.
There are two original copies, sealed by the hands of the Emperor, the one being the counterpart of that which is now transmitted, destined to remain in this Consulate, the other to be deposited in the archives of the Department of State.
It thus appears that there were two originals under the seal of the Emperor of Morocco, one of which remained in the consulate at Tangier. No further record of that other original has been found.
In the copy of the treaty above described, on the page next to the back cover, is written the duplicate United States instrument of ratification, signed by President Jackson, sealed with the Great Seal and attested by Secretary of State Forsyth. The first part of the original proclamation is on the page next preceding, and its final clauses are on the page opposite the certificate or clause of conclusion signed by Lab.
Also in the treaty file is the attested resolution of the Senate of January 17, 1837 (Executive Journal, IV, 598).
Another paper in the treaty file is a manuscript in pamphlet form which is clearly the draft submitted by Leib, which was called the "New Form" in his above-quoted instructions of August 21 to Mullowny. This has the twenty-five articles in Arabic and English, but not the preamble. The English of the draft is almost identical with Leib's translation of the treaty, except that Article 7 of the draft adds a clause of reciprocity in respect of vessels in commercial transactions and that Article 10 has incorporated in it the substance of the additional article of the treaty of 1786 (Document 14).
The original Arabic text is first reproduced above; but the twentysix pages of Arabic are arranged in left-to-right order of pagination; then follows the text of the English translation with the clause of conclusion signed by Leib, collated with the copy in the file. It is this translation which is printed in the Statutes at Large and in treaty collections generally.
In the notes to Document 14 are some observations regarding the general practice in Morocco in respect of ratification of treaties.
It was on January 30, 1837, that the United States instrument of ratification was transmitted to Leib for delivery to the Emperor of Morocco. The following is an extract from the instructions of that date (D. S., 14 Instructions, Barbary Powers, 9):
The new Treaty between the United States and the Empire of Morocco, sealed by the Emperor, together with a copy and translation, signed by you, which were transmitted by the hands of Mr. John F. Mullowny, accompanied by a despatch from you of the 11th. of October, has been received, and a transcript of the copy in English ratified by the President with the advice and consent of the Senate is herewith returned by the same bearer for the purpose of being delivered to the Emperor.
It thus seems that the United States instrument of ratification included the English translation only. The receipt of the ratification was acknowledged by Leib in his despatch of March 20, 1837 (D. S., 5 Consular-Despatches, Tangier), in which he wrote that it would "be conveyed to the Emperor together with his presents, without any unnecessary delay". Accordingly, it is to be presumed that the United States ratification was duly delivered some time shortly after the date of that despatch.
The proclamation of January 30, 1837, did not await the delivery of the United States instrument of ratification to the Emperor of Morocco; it recites that " the said Treaty has been duly ratified by the respective Governments"; and printed copies of the proclamation were transmitted to Congress by President Jackson with his message of February 9, 1837 (Richardson, III, 279; House Document No. 145, 24th Congress, 2d session, serial 304).
The writings in Arabic have been examined by Professor C. Snouck Hurgronje, of Leiden. From his report it appears that the differences in the Arabic betwelen the original and the copy are of the most trifling character. The introduction, except for the seal, and fifteen articles, are exactly the same, and in the other articles there are a few verbal or orthographical differences of no moment.
Having compared the original of this treaty with that of the treaty of 1786 (Document 14), Professor Snouck Hurgronje finds that aside from the preamble and the opening and closing articles, the Arabic of the treaty of 1836 is almost exactly the same as that of the earlier treaty. Of the twenty-three articles numbered 2 to 24, eighteen are identical. Article 14 differs only in the order of the sentences; in Articles 5, 8, and 9, the trifling differences are merely orthographical; and in Article 11 one Arabic word for "twenty" is used in the early treaty and another word in the later.
Accordingly, the comments of Dr. Snouck Hurgronje on the English translation of the treaty of 1786, with his notes and translation of various articles, which follow the text of Document 14 in volume 2 at page 220, should be consulted.
In respect of the few real differences between the Arabic text of this treaty and that of the treaty of 1786, Dr. Snouck Hurgronje writes as follows:
The preamble differs from that of the treaty of 1786 in having a superscription, "In the name of God, the Compassionate, the Merciful"; and after the word "seal" is the word "al-sharif", meaning "the blessed, the noble".
The second sentence of the preamble of this treaty, which gives the date, may be thus translated: "Written at MiknQsah of the Olives on the third of Jumada al-Akhirah [Jumada II], one thousand two hundred and fifty-two."
The seal of this treaty (which is not legible) naturally differs from that of the former treaty.
In Article 1 the second sentence of the later treaty may be translated thus: "That took place in the presence of their Agent and Plenipotentiary and consul general, James Leib, residing at this time in the well-preserved Tangier."
Article 26 of this treaty is thus translated: "This treaty shall continue in fun force, if God please, by God's might and power, a period from [sic] fifty years, and it shall continue to be in force between the two Governments in accordance with the prevailing rule until either of the parties gives notice to the other in a period from [sic] a year, of his intention to abandon [break] it, in which case it will cease at the end of that year."
Treaties and Other International Acts of the United States of America.
Edited by Hunter Miller
Documents 1-40 : 1776-1818
Washington : Government Printing Office, 1931.