NOTES

The treaty document here printed consists, first, of the treaty which was signed by the respective plenipotentiaries at Paris under date of September 30, 1800, and which was submitted to the Senate on December 16, 1800.

The resolution of the Senate of February 3, 1801 (Executive Journal, I, 377), was as follows:

Resolved, by the Senate of the United States, (two-thirds of the Senators present concurring therein,) That they do consent to, and advise the ratification of the convention between the French Republic and the United States of America, made at Paris, the eighth day of Vendemaire, of the ninth year of the French Republic; the thirtieth day of September, anno Domini, eighteen hundred:

Provided, the second article be expunged, and that the following article be added or inserted:

It is agreed, that the present Convention shall be in force for the term of eight years, from the time of the exchange of the ratifications.

The ratification of the United States by John Adams fifteen days later followed strictly the Senate resolution. Its relevant language is here printed, as being part of the agreement, immediately after the signatures to the treaty.

The negotiations which resulted in Paris from the American proposal to expunge Article 2 of the treaty and to add an article limiting the term of the treaty to eight years, lasted for some two months and had, in point of form, a somewhat unusual conclusion.

The circumstances were quite out of the ordinary. Following the action of the Senate, Adams executed the instrument of ratification, though he was opposed to the Senate proviso. When James A. Bayard refused the appointment as Minister to France, after confirmation by the Senate, Adams left the whole matter to the new administration of Jefferson, who was to take office a few days later, on March 4, 1801 (Executive Journal, I, 388). While James Madison was nominated by Jefferson and confirmed as Secretary of State on March 5, he did not take over the duties of that office until May 2; in the meantime Levi Lincoln, Attorney (general, acted as Secretary of State. Instructions regarding the exchange of ratifications were sent on March 18, 1801 (American State Papers, Foreign Relations, VI, 151); the letter of credence, a purely formal document, ran to " Oliver Ellsworth and William Vans Murray [Minister at The Hague] or either of them" (D. S., 1 Credences, 115); but Ellsworth had left Paris and Murray acted alone. His instructions were silent on the points of substance that were brought forward by the French negotiators. France raised no serious objection to so much of the Senate proviso as limited the term of the treaty to eight years; and while the fact that Murray had no proper full power was mentioned, it was not pressed; but the French flatly refused to consent to the unconditional suppression of Article 2 of the treaty, as the Senate had proposed, fearing that that would mean an agreement on their part that the earlier treaties with the United States (the Treaty of Amity and Commerce of February 6, 1778, Document 1; the Treaty of Alliance of the same date, Document 2; and the Consular Convention of November 14, 1788, Document 15) were at an end (as had been contended by the United States), but at the same time leaving the American claims against France under those treaties still existing. The French insisted that the claims in question should not be advanced in the future. Accordingly, after suggestions of other procedure, a clause was written into the French instrument of ratification to the effect that the "respective pretensions which are the object" of Article 2, were renounced on each side. Murray, without instructions on the point, assumed the responsibility and agreed to the exchange; he believed, rightly, that the matter should and would go again to the Senate. The view later expressed by Jefferson that he did not "regard the declaratory clause [the French proviso] as more than a legitimate inference from the rejection by the Senate of the 2d article" (D. S., 6 Instructions, U. S. Ministers, 13; American State Papers, Foreign Relations, VI, 155), was one which, in the absence of further Senate action, would certainly later have been disputed; but the years of differences between the two countries which had led up to the treaty, and the bearing of the final agreement on the French spoliation claims and their long history, are not for discussion here.

The despatches of Murray regarding the negotiations which preceded the exchange of ratifications are in D. S.,4 Despatches, Netherlands, and are printed in American State Papers, Foreign Relations, VI, 137-47.

In this state of the papers the ratifications were exchanged. The French proviso had introduced a new and, as it proved, a highly important clause into the agreement, and one which it is not possible to understand except in connection with the text of the treaty as a whole, including the "omitted" Article 2 (see the reference to that article in the preambles of Documents 28 and 30). The relevant clauses of the French instrument of ratification are printed above, as being part of the agreement, following the extracts from the United States instrument of ratification.

The period for the exchange of ratifications, pursuant to Article 27, was six months from the date of signature; the date of exchange was ten months later than the signature; but no point as to the delay was raised by either party. Reference was made to it in the instructions of March 18, 1801, above mentioned.

When the French ratification was received at Washington, the advice and consent of the Senate was again asked by Jefferson; his message of December 11, 1801 (Executive Journal, I, 397), follows:

Early in the last month, I received the ratification, by the first Consul of France of the convention between the United States and that nation. His ratification not being pure and simple, in the ordinary form, I have thought it my duty, in order to avoid all misconception, to ask a second advice and consent of the Senate, before I give it the last sanction, by proclaiming it to be a law of the land.

The Senate on December 19 passed this resolution:

Resolved, That the Senate, (two-thirds of the members present concurring therein,) consider the convention between the United States and the French Republic as fully ratified; and then, by a separate resolution, returned the convention to the President "for the usual promulgation" (ibid., 398-99).

Accordingly, the whole agreement comprises not only the signed convention, but also the modifications resulting from the respective instruments of ratification, the relevant clauses whereof are printed above; and it may be noted that, strictly speaking, all the terms of the whole agreement are not written in the two languages; the modifications of the signed convention are in part in English and in part in French. The translation of the French ratification above printed is from the original proclamation of the treaty.

NOTE REGARDING THE SIGNED TREATY

The convention was, in fact, signed in two slightly different forms on two dates.

Shortly before the date of signature the French plenipotentiaries raised the question of language; they proposed that the agreement should be in the French language alone, without more, or else with a separate article to the effect that the use of French should not constitute a precedent or prejudice either party; their third suggestion was that the language of the attestation clauses of the treaties of 1778 (Documents 1 and 2) be used. To this last suggestion the United States representatives "with great reluctance" agreed (American State Papers, Foreign Relations, II, 340-42); and the agreement, then called "provisional treaty," was so signed on September 30, 1800.

The subsequent procedure is set forth in the following extracts from the journal of Ellsworth, Davie, and Murray (ibid., 342):

October 2.

The French ministers called this morning with the treaties, proposing some alterations, with regard to the style of the French republic, and that the word "provisional" should be stricken out in the name or description of the treaty. The American ministers availed themselves of this opportunity to resume their opposition to the admission in favor of the French language, and consented to the proposed alterations, respecting the style of the French Government, and offered to change the term " provisional treaty " for that of " convention," on the condition that that part of the treaty which respected the French language was stricken out, agreeing, at the same time, that a clause might be inserted, saving the right of both nations; to which the French ministers acceded without any further discussion.

October 3.

Six copies being now prepared, as agreed to be amended, they were signed and sealed under the former date of the 30th of September, (9 Vendemiaire;) two copies were retained by the French commissioners two were left with Mr. Murray and the other two were taken in charge by Mr. Ellsworth and Mr. Davie.

So the provisional treaty became a convention, and the attestation clause was changed to its present form; and the entry of October 3 clearly indicates that there were three original sets of the treaty executed, each set being composed of two documents, one the treaty in French and one in English; one of those three sets was delivered to Murray and another to Ellsworth and Davie.

There is no doubt that the provisions of the treaty were, in general, written first in French and then put into English. The two texts, however, might have been made more precise equivalents than they are; in Article 18, the French phrase "ainsi que les certificaes susmentionnes relatifs a la (?argaison" (and also the above-mentioned certificates regarding the cargo) is entirely absent in the English.

There are indications in the original documents of the haste with which they were written at the last moment of the negotiations. Some Points of form and the question as to whether or not there would be an English text, were open as late as September 29, 1800 (American State Papers, Foreign Relations, II, 341-42). In particular the English text is poorly written in the physical sense, as instanced by the meaningless dotted spaces in Articles 2, 8, and 9; and it is poorly written in the literary sense also.

NOTE REGARDING THE FILE

This treaty file contains the following three papers: first, the French instrument of ratification of July 31, 1801, which has written on the page following the signatures a certificate, in French, of the exchange of ratifications on the same date, signed by the three French plenipotentiaries and by William Tans Murray; second, the original proclamation of December 21, 1801, which includes the full text of the United States instrument of ratification of February 18, 1801; and third, a copy of the French text of the signed treaty, certified by the Chief of the Division of the Archives of the French Ministry of Foreign Affairs under date of January 8, 1887.

Also in the file are facsimiles from the French archives of the treaty as signed under date of September 30, 1800, in French and English.

Thus the file contains no signed original of the treaty, either in French or in English. The absence of the documents is not to be explained. No record has been found of the French and English texts which, as above mentioned, were delivered to Murray. Those in charge of Ellsworth and Davie appear to have been duly delivered with the report of October 4, 1800 (American State Papers, Foreign Relations, II, 342), sent to the Senate and duly returned (Executive Journal, I, 359, 383); that they again went to the Senate in Feces her, lS01, seems probable but not quite certain (ibid., 397-99). The absence from the file of any signed original of the treaty was noticed in 1886, resulting in a request for and the receipt of the certified copy of the French text above mentioned (see D. S., 21 Instructions, France, No. 178, and 99 Despatches, France, No. 341).

The text of the signed treaty printed here in the two languages has been collated with that in facsimile of the originals in the French archives; the text here printed of the United States instrument of ratification is from that recited in the original proclamation; and the text here printed of the French instrument of ratification is from the original in the file. That ratification includes the French text of the convention but not the English.

NOTE REGARDING THE ALTERNAT

It has been noted that the French and English texts of the treaty were signed as separate papers. In the testimonium clause it is declared that " the signing in the two languages, shall not be brought into precedent nor in any way operate to the prejudice of either party." The French text is here printed at the left, in view of the discussion which led up to the final form of the text and also because the altertat was not observed; for the signatures of the French plenipotentiaries are at the left in each paper, the French Republic is named before the United States of America, and the First Consul before the President.

NOTE REGARDING THE PROCLAMATION

In view of the unusual procedure in respect of the ratifications of the convention and their exchange, the essential clauses of the proclamation are printed, as follows:

By the President of the United States of America.

A Proclamation.

Whereas a Convention for terminating certain differences which had arisen between the United States of America and the French Republic was concluded and signed by the Plenipotentiaries of the two nations duly and respectively authorized for that purpose, and was duly ratified and confirmed by the President of the United States with the advice and consent of the Senate, which Convention so ratified is in the form following:

[Here the text of the United States instrument of ratification, including the English text of the convention.]

And Whereas the said Convention was on the other part ratified and confirmed by the first Consul of France in the form of which the following is a translation from the French language to wit:

[Here follow extracts, in translation, from the French instrument of ratification.]

Which ratifications were duly exchanged at Paris on the 31st day of July in the present year, and having been so exchanged were again submitted to the Senate of the United States, who on the 19th day of the present month resolved that they considered the said Convention as fully ratified and returned the same to the President for the usual promulgation. Now therefore to the end that the said Convention may be observed and performed with good faith on the part of the United States, I have caused the premises to be made public, and I do hereby enjoin and require an persons bearing office, civil or military within the United States and all others, citizens or inhabitants thereof, or being within the same faithfully to observe and fulfil the said Convention and every clause and article thereof.

In Testimony whereof, I have caused the Seal of the United States to be affixed to these Presents and signed the same with my hand.

Done at the City of Washington the twenty first day of December in the year of our Lord one thousand eight hundred and one, and of the sovereignty and independence of the United States the twenty sixth.

TH: JEFFERSON

By the President

JAMES MADISON

Secretary of State

It appears that the text of the convention as signed was published at Paris and at London in October, 1800 (American State Papers, Foreign Relations, II, 343).

In The Laws of the United States, Folwell ea., VI (printed in 1803), i-xlvii (following the table of contents), the proclamation, including the ratification on the part of the United States, and the French instrument of ratification, including the certificate of exchange, are printed. The same texts are in the Bioren & Duane edition, I, 114-34 (printed in 1815); and the print in 8 Statutes at Large, 178-96, is similar, except that it omits the opening recitals of each document.