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Notwithstanding the statement in the attestation clause of this treaty that it was "originally composed and concluded in the French Language," much of the language of the English text is that of the "plan of a treaty" voted by Congress on September 17, 1776 (Journals, V, 768-79).
As stated elsewhere generally, pencil notes on an original document are disregarded in the printed text. Thus in the "Form of the Passports" the word "Subjects" (sujets de) is in the original of this treaty crossed out in pencil and in its place is written "citizens," and in the blank following, "the U. S. of A." (citoyens des etats unis d'Amerique); but these and other pencil notations obviously postdate the signature of the treaty and were made after the original was received in this country.
Prior to the Constitution, ratification of treaties by the United States was effected by resolution of Congress; and either as part of the resolution or by separate vote Congress also passed on the form of the instrument of ratification, which in this case is copied in 135 Cal. (I. Papers, I; also in Journals, XI, 462-63. A facsimile of the instrument, received from the French archives, is now in the Department of State file. Like the corresponding French ratification, it recites both the French and the English texts at length, with the English in the left of the two columns. The signature of Henry Laurens (President of Congress) and the attest of Charles Thomson, as Secretary, are at the end; the seal is that of Laurens, as there was then no Great Seal of the United States.
This treaty, with the Treaty of Alliance and the Act Separate and Secret of the same date, was received by Congress on May 2, 1778 (Journals, XI, 418). The three agreements were ratified on May 4, 1778, and the ratifications were concurrently exchanged.
The ratification of the three agreements was prior to the entering into force of the Articles of Confederation (March 1, 1781) and was voted unanimously, although there is no record of the States represented or voting.
Perhaps only nine States were fully represented at that session of Congress on May 4, 1778. It seems clear that New Hampshire and North Carolina were not then represented at all (Journals, X,399-401; XI, 519, 555); there is doubt as to Delaware, which is recorded as voting on April 26 and again on May 11 (Journals, X, 396; XI, 489), but not in the interval; there is also uncertainty as to Massachusetts, the presence of three delegates being then necessary from that State (Journals, X, 27). Gerry, Lovell, and Dana voted for Massachusetts on April 29 and again on May 8 (Journals, X, 409; XI, 483); but on May 5, when the vote on Articles 11 and 12 of the treaty was recorded, Gerry was absent (Journals, XI, 460). There is no record of any vote in Congress on April 30, May 1, 2, or 4; but there is no reason to doubt that on May 4 all of the remaining nine States were represented (see Burnett, Letters of Members of the Continental Congress, III, li-lxii). So the unanimous vote then taken was that of not more than eleven States and probably of only nine or ten.
The urgency of the occasion overrode any technical necessity of a ratification voted by thirteen States; at least the requirements of the Articles of Confederation for a vote of nine States were satisfied; and while not in force, those Articles had been adopted by Congress on November 15, 1777, and by May 4, 1778, had been ratified by the legislatures of ten States (all but Delaware, New Jersey, and Maryland); and the record of Congress was clear, for it merely recorded unanimity without any listing of the States assenting. Similarly the United States instrument of ratification states that Congress had "unanimously ratified & confirmed."
In June, 1779, there was a separate ratification of this treaty and of the Treaty of Alliance of the same date (Document 2) by Virginia (for an account of this, see Scott, Sovereign States and Suits, 55-56); but whatever political significance this act of Virginia may have had in the circumstances of the time (a point which is interestingly discussed in Doniol, IV, Ch. III), it cannot be considered as adding to the legal effect of the ratifications of the United States and of France, which had been exchanged on July 17, 1778. Each of the two treaties in terms speaks of "the two contracting Parties" (e. 9., Treaty of Amity and Commerce, Article 31; Treaty of Alliance, Article 3); and it seems that Congress considered the ratification by Virginia to be ultra vires (Doniol, IV, 167, "Le Congres est un pen affecte d'une demarche qu'til croft contraire a sa prerogative").
The Department of State file contains no protocol or other record of the exchange of ratifications, and no such record has been found in the archives of France. The date is reported in the letter of Benjamin Franklin, Arthur Lee, and John Adams of July 20, 1778 (see Wharton, Diplomatic Correspondence, II, 650-52).
The French Minister (Gerard) seems not to have been consulted regarding the printing, ordered by Congress November 4, 1778, of this treaty and of the Treaty of Alliance. At that time Gerard had been only a few months in the United States; he had received his first audience of Congress on August 6,1778; it was he who had signed the treaties of February 6, 1778, on behalf of France. Gerard, whose full style of name was Conrad Alexandre Gerard de Rayneval, had a younger brother, also in the French diplomatic service, Joseph Matthias Gerard de Rayneval; while Doniol, I, ix, speaks of the notes "des deux Gerard de Rayneval," the older brother is almost invariably mentioned as Gerard and the younger as De Rayneval the two are not always properly distinguished (see Wharton, Diplomatic Correspondence, I, 124,209,335).
Gerard submitted a memorial to (Congress on November 20, 1778 (see Wharton, Diplomatic Correspondence, II, 843; Journals, XII, 1149); the original thereof and a translation, which follows, are in 94 C. C. Papers, folios 38,42:
The Minister of France thinks himself called to the honor of communicating to the President of Congress the Suggestion that usually Treaties are not published till the respective Ratifications are exchanged; and, so far as I am acquainted, that of the King is not yet arrived.
If, however, Congress had motives for proceeding immediately in that publication, the Minister begs them not to desist upon his Suggestion, the Wisdom of its Views meriting all Preference above what we should regard only as a simple Formality.
PHILADA, 20th Novr, 1778.
Later on the French comments were much more severe in tone: "such a proceeding is but little consistent with reason, and with the general practice of courts and nations" (see Journals, XIV, 830,832, JU1Y 14,1779).
As to the Treaty of Paris, see the note regarding Article 6 of the Treaty of Alliance.
The Treaty of Utrecht mentioned in Article 10 is the Treaty of Peace and Friendship between Great Britain and France, one of the various acts of April 11, 1713. For references to the text, which was in Latin and French, see Myers, Manual of Collections of Treaties, 58-61. The relevant clauses of the Treaty of Utrecht regarding fishing are Articles 12 and 13, which follow in translation (from British and Foreign State Papers, XXXV, 842-43):
XII. The most Christian King shall take care to have delivered to the Queen of Great Britain, on the same day that the ratifications of this Treaty shall be exchanged, solemn and authentic letter, or instruments, by virtue whereof it shall appear that the Island of St. Christophers is to be possessed alone hereafter by British subjects, likewise all Nova Scotia or Accadie, with its ancient boundaries, as also the city of Port Royal, now called Annapolis Royal, and all other things in those parts, which depend on the said lands and islands, together with the dominion, propriety, and possession of the said islands, lands, and places, and an rights whatsoever, by Treaties, or by any other way obtained, which the most Christian King, the crown of France, or any the subjects thereof, have hitherto had to the said islands, lands, and places, and the inhabitants of the same, are yielded and made over to the Queen of Great Britain, and to her crown for ever, as the most Christian King cloth at present yield and make over all the particulars abovesaid; and that in such ample manner and form, that the subjects of the most Christian King shall hereafter be excluded from all kind of fishing in the said seas, bays, and other places, on the coasts of Nova Scotia, that is to say, on those which lie towards the east, within 30 leagues, beginning from the island commonly called Sable, inclusively, and thence stretching along towards the south-west.
XIII. The island called Newfoundland, with the adjacent islands, shall from this time forward belong of right wholly to Britain; and to that end the town and fortress of Placentia and whatever other places in the said island are in the possession of the French, shall be yielded and given up, within 7 months from the exchange of the ratifications of this Treaty, or sooner if possible, by the most Christian King, to those who have a commission from the Queen of Great Britain for that purpose. Nor shall the most Christian King, his heirs and successors, or any of their subjects, at any time hereafter lay claim to any right to the said island and islands, or to any part of it or them. Moreover it shall not be lawful for the subjects of France to fortify any place in the said Island of Newfoundland, or to erect any buildings there, besides stages wade of boards and huts necessary and usual for drying of fish; or to resort to the said island, beyond the time necessary for fishing and drying of fish. But it shall be allowed to the subjects of France to catch fish, and to dry them on land, in that part only, and in no other besides that of the said Island of Newfoundland, which stretches from the place called Cape Bonavista to the northern point of the said island, and from thence running down by the western side, reaches as far as the place called Point Riehe. But the island called Cape Breton, as also all others, both in the mouth of the River St. Lawrence and in the gulf of the same name, shall hereafter belong of right to the French; and the most Christian King shall have all manner of liberty to fortify any place or places there.
The treaty is here printed as it was originally signed, with the numbering of the articles unchanged. The very early records and prints in the United States were in this form; and on June 7, 1779, original Article 31 was referred to in Congress by its original number (Journals, XIV, 696). Very soon thereafter, however, and certainly from 1781 on, the prints of the treaty omit Articles 11 and 12 from the text and renumber the articles following so that original Article 13 becomes 11, and so on; indeed the signed treaty has, in pencil, a marginal note to Articles 11 and 12, reading, "to be omitted, & the subsequent numbers changed accordingly." See the reference to various articles of this treaty in Article 22 of the Treaty of Amity and Commerce with the Netherlands of October 8, 1782 (Document 5). In France, however, the very earliest prints, of October, 1778 had no reference to original Articles 11 and 12 (Doniol, III, 521; and see a facsimile of the French print following page 554). Accordingly the article numbers bracketed in the text, from 11 to 31, inclusive, are those of usual reference.
The congressional ratification of May 4, 1778, was complete and unconditional. The next day, however, Congress (by a vote of seven States to two, with one State partially represented but not counted) expressed the desire that Articles 11 and 12 "be revoked and utterly expunged" (Journals, XI, 460; there can be no doubt that this was the vote taken, although the original record in 1C. C. Papers, XVI, is crossed with three strokes of the pen). While the American Commissioners were instructed accordingly, their formal authority was not at hand on July 17, 1778, and the ratifications then exchanged recited the entire treaty; although at that time the omission of the two articles received the verbal assent of Count de Vergennes (Wharton, Diplomatic Correspondence, II, 651). It had been discussed even before the signature of the treaty (ibid., 481-82,485).
Under date of September 1, 1778, Articles 11 and 12 were formally suppressed pursuant to the declarations given below. The original French declaration, which is in French only, and a copy of the American declaration (which is said to be in part in the handwriting of Franklin) are in the Department of State file; but the copy is neither correct nor complete. There is now also in the file a facsimile of the original American declaration, obtained from the French archives; and from this, which is in both languages, the text here is printed. No reference to these declarations has been found in the Journals of Congress, although they are printed in the Library of Congress edition (XI, 461); it is there stated that they are not mentioned in the correspondence of the time; but it appears that the actual exchange of the declarations took place on November 2,1778, and a copy of the French declaration was transmitted to Congress on November 7 (Wharton, Diplomatic Correspondence, II, 817,819, 829,830). With his letter of August 10, 1780, Franklin sent "copies of the instruments" to James Lovell, of the Committee of Foreign Affairs, referring to the numbering of the articles (ibid., IV, 27); and Luzerne made a formal communication to Congress on September 15, 1780, stating that "some American merchants" did not know that Articles 11 and 12 had been suppressed (ibid., IV, 57).
The translation of the French declaration here printed is from that made by John Pintard, which is in the Department of State file; it is substantially the same as that in the Statutes at Large and in various treaty collections.
Numerous translations from the French signed by John Pintard are among the Continental Congress papers. He was born May 18, 1759, was nephew to Elias Boudinot of New Jersey (President of the Continental Congress from 1782 to 1783), was a prominent citizen of New York, and founded the New York Historical Society in 1804. He died June 21,1844 (James Grant Wilson, John Pintard, Founder of the New York Historical Society).
The General Congress of the United States of North America having represented to the King that the execution of the eleventh article of the Treaty of Amity and Commerce, signed the sixth of February last, might be productive of inconveniences, and having therefore desired the suppression of this article, consenting in return that the twelfth article shall likewise be considered of no effect, His Majesty, in order to give a new proof of his affection, as also of his desire to consolidate the union and good correspondence established between the two States, has been pleased to consider their representations. His Majesty has consequently declared, and does declare by these presents, that he consents to the suppression of the eleventh and twelfth articles aforementioned, and that his intention is that they be considered as having never been comprehended in the treaty signed the sixth of February last.
Done at Versailles the first day of the month of September, one thousand seven hundred and seventy-eight.
GRAVIER DE VERGENNES
The most Christian King having been pleased to regard the Representation made to him by the general Congress of North America, relating to the eleventh Article of the Treaty of Commerce signed the sixth of February in the present Year, and his Majesty i having therefore consented that the said Article should be suppressed on Condition that the twelfth Article of the same Treaty be equally regarded as of none Effect; the general Congress , both declar'd on their Part, and do declare, that they consent to the suppression of the eleventh and twelfth Articles of the abovementioned Treaty, and that their Intention is, that these Articles be regarded as having never been comprised in the Treaty sign'd the Sixth of February.
Done at Versailles this first of September One thousand seven hundred and seventy eight.
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.