I have the honor to inform you, that I have transmitted to London the ratification on the part of Congress of the Definitive Treaty of peace, between Great 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.
DAVID HARTLEY.
TO DAVID HARTLEY.
Passy, June 2d, 1784.
Sir,
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.