The exact date of the first signature of the treaty, before it was amended, is not stated therein; but a letter dated September 2, 1797, from Joseph Etienne Famin, a French merchant of Tunis who conducted the negotiations of 1797 there on behalf of the United States, to George Clark, the Charge d'Affaires at Algiers, gives the date as August 28, 1797 (D. S., 1 Archives, Tunis, 1793-1801).
The signatures and seals then affixed were those of three officials of the Regency of Tunis. On the pages of the original treaty opposite the Turkish text (of which there are fifteen pages) is written a French translation of the respective Turkish articles. That French translation was doubtless prepared by or under the direction of Famin. However, the letter of Famin to the Secretary of State making a report of those negotiations has not been found. It was dated September 25, 1797, and is mentioned in a letter of April 6, 1798 (D. S., 3 Consular Despatches, Algiers).
While it is undoubted that the treaty text was Turkish and the French a translation, it should be added that a copy of the French text of 1797 (D. S., 1 Archives, Tunis, 1793-1801) is certified by Famin in the following words: "J'affirme la presents copie conforme a ['original."
It appears that various originals of the treaty were prepared at the time. One of them was transmitted by Col. David Humphreys, then Minister to Spain, from Madrid (D. S., 4 Despatches, Spain, No. 120, November 14, 1797), and another by Joel Barlow from Paris (D. S., 2 Consular Despatches, Algiers, January 7, 1798).
Alterations (here a more accurate word than amendments) were subsequently made in the treaty in March, 1799, before ratification by the United States. The changes had their beginning in the Senate resolution of March 6, 1798, which reads as follows (Executive Journal, I, 263-64):
Resolved, (two-thirds of the Senators present concurring therein,) That the Senate do advise and consent to the ratification of the treaty of peace and friendship, between the United States of America and the Bey and government of Tunis, concluded in the month of August, one thousand seven hundred and ninety-seven, on condition that the fourteenth article of the said treaty, which relates to the duties on merchandise, (to be reciprocally paid by the citizens and subjects of the said parties, in their respective ports,) shall be suspended.
Resolved, That it be recommended to the President of the United States, to enter into a friendly negotiation with the Bey and government of Tunis, on the subject of the said article, so as to accommodate the provisions thereof to the existing treaties of the United States with other nations.
While the resolution of the Senate related only to Article 14, it was considered by the Secretary of State (Pickering) that Articles 11 and 12 were also objectionable, and changes in them were proposed, an interesting and early example of the control of treaty negotiations by the President, even after Senate action. (See instructions to Richard O'Brien, William Eaton, and James Leander Cathcart, D. S., 5 Instructions, U. S. Ministers, 16-23, December 18, 1798; printed in part in American State Papers, Foreign Relations, II, 281-82.) It may be mentioned here that in connection with those instructions the cost of the treaty was estimated at $179,044.
There is a full account of the negotiations carried on at Tunis by Cathcart and Eaton in March, 1799, in the journal of the latter dated April 15, 1799 (D. S., 1 Consular Despatches, Tunis). In a despatch of June 1, 1799, in the same volume, Eaton says that the substance of the result of the negotiations was:
The Treaty with alterations-The consent of the Bey for six months forbearance in expectation of the regalia of maritime and military stores-His demand for a present in jewels-and his request for a cruiser.
The negotiations brought about changes in the three articles mentioned-11, 12, and 14; the rest of the treaty remained unaltered. The way the alterations were made was unusual; such of the sheets of the original document as contained the original text or the translation of those three articles were removed from that document, and in place thereof were inserted other sheets on which had been written the new text of the three articles and also (but unchanged) such other articles as had appeared on the sheets removed.
It was on March 26, 1799, that the altered treaty was received from the Bey of Tunis by the representatives of the United States. The translation in French of the three altered articles was then written in, in its proper place. There was added to the document, or at least to one of its originals, the clause signed by Eaton and Cathcart on behalf of the United States, dated the day of the delivery of the altered treaty.
The original which is now in the Department of State file is in the form of a pamphlet remade in the manner above indicated. Its final page (in the Turkish order) has, however, been torn off, and in lieu thereof on one of the two added sheets, as if it were on the final page, appears the French translation of the final clause of the treaty (not quite accurately copied, as "deux" is written for "douse") and a copy of the confirmation of Eaton and Cathcart.
The whole original document is embodied in a duplicate instrument of ratification, which is written in the reverse or Turkish order of pagination. Thus the opening words of the ratification are written on the reverse of the first page of the Turkish text and (in the Turkish sense) preceding it. Accordingly, the ratification begins at what would here be called the back of the paper sheets (which are together like a pamphlet, but are not bound or even stitched); and the signatures of Adams and Pickering, and formerly the wafer for the Great Seal (which has since become detached and lies loose in the file), are at the front.
The file contains also portions of four other originals; one is of the altered treaty, nearly complete, one sheet only being missing; each of the other three comprises sheets of the treaty as first written. All four have the page with the seals and signatures on behalf of Tunis.
There are also in the file various separate or single sheets or pages torn from complete instruments; one bears the original certificate signed by David Humphreys at Madrid November 14, 1797; another bears what appears to be the original certificate of Eaton and Cathcart, but the lower part of that sheet, including the signatures, is torn away; still another, with no text except the French of the final clause, has on it the words, "approved at Paris the 12 Novr 1797," and the signature of Joel Barlow. The remaking of the treaty by the substitution of new sheets for old, has made the file a strange collection of parts and pieces; indeed, some of the old (and now separate) wrappers in the file note "remnants of the Treaties" or "remnants of the detached sheets."
After the amended articles had been agreed to, much remained to be done both by way of form and in matter of substance before the treaty could go into force. In transmitting "the treaty with the alterations inserted," Eaton wrote as follows regarding the ratification: "The ratified copy of the treaty which will be returned is expected to be an exact and entire copy of the entire treaty enclosed."
More important was the letter written (in French) by the Bey of Tunis to the President of the United States under date of April 30 1799 (original letter in D. S., I Consular Despatches, Tunis), in which it was said very flatly that if the naval munitions promised did not arrive by the following November 1, the treaty would be void ("le terme expire, sans que ces effete fussent parvenus, tout Traite serait nut et la bonne amitid qui exists, de nouveau rompue ")
The Senate resolution of advice and consent of December 24, 1799; is in rather unusual form, as it refers to amended Articles 11, 12, and 14 only (Executive Journal, I, 329-30).
The United States instrument of ratification was forwarded to Eaton in January, 1800, and with it was a letter from the President to the Bey of Tunis. The ratification embodied " one of the originals " received from Eaton (see D. S., 5 Instructions, U. S. Ministers, 277, No. 3, January 11, 1800, and 289, No. 34, January 17, 1800); and after another wrangle about the stores to be delivered, the papers were finally put into the hands of the Bey of Tunis on March 27, 1800, as the following extracts from the letter of Eaton to the Secretary of State of March 31, 1800 (1 (consular Despatches, Tunis, No. 16), indicate:
This day [March 26] was employed in rendering into Italian the President's letter to the Bey, his ratification of the treaty, and such of the communications of the Secretary of State as related to the regalia of naval and military stores.
At the palace. Made the above communications to the Bey [March 27, 11 a. m.] He expressed great satisfaction.
At the same time it seems that an understanding was reached that the last paragraph of Article 12 of the treaty was to be carried out by Tunis only on the basis of the most favored nation. A circular letter of Eaton dated at Tunis April 10, 1800 (Prentiss, The Life of the Late Glen. William Eaton, 136), is as follows:
Having at length amicably adjusted the affairs of the United States with the Bey and Regency of Tunis, I desire you will communicate this agreeable intelligenee to the masters of American vessels, and others interested, who may come within the limits of your Consulate.
The principal minister of the Bey has pledged himself that the last clause of the 12th article of our treaty with this Regency, inserted by Joseph Etienne Famin, shall have the same effect with respect to American merchant vessels as the custom of all other nations at peace with Tunis has established with respect to their own, and no other. There is therefore now no danger to be apprehended from American vessels visiting this coast: perfect health prevails here.
There is no record of any proclamation of this treaty. No publication of the treaty has been found earlier than the text contained in The Laws of the United States, Folwell ea., V, 213-23. That volume was printed in 1801; but the first section of it, the Session Laws of the first session of the Sixth Congress and including the text of this treaty, appeared in 1800.
Announcement of the alterations of March 26, 1799, was made in the following circular letter of Cathcart, dated at Tripoli May 4, 1799 (Tripoli . . . Letter Book by James Leander Cathcart, 56):
Being commissioned by the President of the United States of America to act in conjunction with Messrs. O'Brien and Eaton, in order to effect certain alterations in the treaty intervention of J. E. Famin, between the United States of America and the Regency of Tunis, I am happy to inform you that such alterations took place in said treaty as will meet the approbation of the President and Senate, on the 26th of March, 1799, and that for the nine next ensuing months from that date, all merchandise belonging to citizens of the United States imported into any of the ports of the Regency of Tunis pays duty only 3 per cent. advalorem, according to an old price current of the year 1753, which reduces the duty nearly one half. From Tunis I proceeded to Tripoli, where I have had the good fortune to persuade the Bashaw to receipt the sum of $18,000 in cash, in lieu of the stores and brig of war promised this regency when our peace took place. \ The above sum is in fun of all demands from the United States forever.
I therefore congratulate the seamen and: merchants of the United States on their being entirely out of danger from all the Barbary States, provided they are very particular with their passports which is absolutely necessary.
When the treaty was first submitted to the Senate, on February 21, 1798, the message of Adams said that he laid before that body "the original treaty." This was doubtless the example transmitted by Humphreys from Madrid, for his approval (now a separate sheet in the file) is printed with the message in American State Papers, Foreign Relations, II, 123; following it is an English translation, which (aside from Articles 11, 12, and 14, subsequently altered) is that which has since been generally printed, except that its text of Article 8 is incomplete. That incompleteness is to be thus explained: The original documents show that the 1797 French translation of the treaty omitted the final phrase of Article 8 regarding the wages to be paid by the captain of a ship; the omission was noticed during the 1799 negotiations; the proper addition to the French translation written in the original was then made, the Turkish remaining without change; and the English version was corrected here accordingly. In D. S., 1 Archives, Tunis, 1793-1801, a volume of letters and papers relating mostly to Tunis, but in part to Tripoli, is a corrected draft of the French of Articles 11, 12, and 14, with a note to the effect that the final phrase of Article 8 should be added to the French translation.
The Turkish text here reproduced is from the original above described as being now in the file and embodied in a duplicate United States instrument of ratification; the Turkish is in left-to-right order of pagination and the script runs lengthways of the pages. That text is here followed by two translations in parallel columns, French and English; thereafter is copied the approval of David Humphreys of the treaty as first signed, dated at Madrid November 14, 1797, and then the approval of Eaton and Cathcart of March 26, 1799. Following those texts is a comment on the French translation of the Turkish, written in 1930 by Dr. J. H. Kramers.
The French translation here printed is a literal copy of the French written on pages of the original treaty; the English translation is from a paper in the Department of State file, the date of which appears to be not earlier than 1810; but that same Enalish translation was printed in the Folwell edition of the laws, as noted above, in 1801. From the form of the English translation it is clear that it is a retranslation of the French and not an original translation of the Turkish; this translation is the one printed in the Statutes at Large and elsewhere generally. Doubtless the current English version of the amended Articles 11, 12, and 14, is the same as that which was laid before the Senate on December 13, 1799; but their text is not in American State Papers, Foreign Relations, II, 281-82. So far as Articles 11 and 14 are concerned, that translation of 1799 was of necessity a new one; but also in respect of Article 12 it differs from the earlier English even in those paragraphs which are the same in French.
In connection with the English text of the treaty usually printed, it is to be noted that the journal of Eaton gives the following as the English of Article 11 as agreed on during the negotiation of 1799:
When a vessel of war of one of the parties shall enter a port of the other, and demand to be saluted, there shall be paid one barrel of powder for each gun demanded for the salute; but if the demand be not made, by the consul on the part of the United States, or by the commandant of the vessel on the part of the kingdom of Tunis, no salute shall be given, nor payment demanded for the salute.
It has not been deemed necessary to reproduce the original Turkish of the three articles which were altered-11, 12, and 14. The French translation of those three articles, as written at the time, and their English translation, appear in a note following.
The French translation of the original form of Articles 11, 12, and 14, as written in 1797, is printed below, with an English translation from American State Papers, Foreign Relations, II, 124; but only the latter part of Article 12 is given here, as the first three paragraphs of the article were not changed.
ARTICLE 11
When a vessel of war of one of the parties shall enter a port of the other, she shall be saluted by the forts and shall return the salute gun for gun, neither more nor less. But there shall be given by the parties, respectively, a barrel of powder for every gun which shall be required for the salute.
ARTICLE 12
. . . . . . .
The subjects or citizens of the two nations shall be protected by the government or commandants of the places where they may be, and not by the other authorities of the country. In case the Government of Tunis shall have need of an American vessel for its service, the captain shall freight his vessel, and the freight shall be paid to him according to the agreement of the Government, without his being allowed to refuse.
ARTICLE 14
The citizens of the United States of America who shall transport into the Kingdom of Tunis the merchandise of their country in the vessels of their nation, shall pay three per cent duty. Such as may be laden by such citizens under a foreign flag, coming from the United States or elsewhere, shall pay ten per cent duty. Such as may be laden by foreigners on board of American vessels coming from any place whatever, shall also pay ten per cent duty. If any Tunisian merchant wishes to carry merchandise of his country under any flag whatever, into the United States of America, and on his own account, he shall pay three per
The notes of Doctor Kramers regarding the Turkish of the original form of Articles 11, 12, and 14, as written in 1797, and their translation, follow:
Article 11. The text differs from the text of Article 11 in the final treaty. The French translation is not correct. It should read:
Si un batiment de guerre americain arrive dans le port de Walk al-Wad [la Goulette; see Article 16 of the treaty], il sera salue par le fort avee le nombre de coupe de canon qu'il desirers, et il donnera un baril de poudre pour chaque coup de canon qui aura ete tire.
(If an American vessel of war arrives in the port of the Gouletta, she will be saluted by the fort with the number of guns that she desires, and she will give a barrel of powder for each gun.)
Article 19. The Turkish text of the first three paragraphs of this article is identical with the text of Article 12 in the treaty, except for very slight differences.
The fourth paragraph is also identical with the same paragraph in the treaty text.
The fifth paragraph in the treaty, however, is lacking in the original form.
The final paragraph of the original form has the same text as in the treaty. There is some difference in the words used, but the provisions are exactly the same.
Article 14. The French of this article in the original form is correct.
That the rate on certain goods imported, prescribed in the second paragraph of Article 14 of the treaty, was, as the French translation shows, ten per cent, is clear from Eaton's statement: "The ten per cent on goods imported in foreign bottoms &c was forced upon us" (D. S., 1 Consular Despatches, Tunis, April 11, 1799).
The English translation usually (and here) printed gives the rate as six per cent. In the translation in the Department of State file "SIX" is in two places changed in pencil to "ten," with the following Pencil footnote: "See the Orig nal Treaty (verbally altered by Col: Lear).77
The explanation is probably to be found in the negotiations carried on by Col. Tobias Lear at Tunis in 1807. The "arrangement," as Lear calls it in one of his despatches, which was then made, he reported as thus stated to him by an official of Tunis on January 21, 1807:
his Master would receive the Money in preference to the Ship,-and now that all matters were settled between us; and that the Citizens of the U. States might come here and trade upon the footing of the other Nations and feel as perfect a security as they could do in their own Country. He said the Bey was satisfied, and hoped that he should always continue in harmony with the U. States. (D. S., 7 Consular Despatches, Algiers, January 25, 1807.)
Lear also wrote on February 17, 1807, to Charles D. Coxe, whom he left in charge at Tunis:
I shall pay to His Excellency, the Bey, the sum of Ten Thousand Dollars, on behalf of the United States, as a compensation for his Cruizer and her two Prizes, which were Captured by our Squadron off Tripoli. This will settle all pecuniary matters with this Regency; and our Treaty with the Bey stands as originally agreed upon, excepting that the Citizens of the U. States, who may trade here, paying the same duties on Merchandize as are paid in the U. States, we are placed upon the footing of the most favoured Nations in Commercial Matters,-And, the Bey, will not require any Merchant Vessel of the U. States, to be Charterd to him excepting on the same terms and Conditions as she would be Charter'd to an I'ndividual. (Ibid.)
If those statements of Lear are correct, the terms of the treaty were verbally altered in various respects other than in the mere matter of the rate. Perhaps the arrangement then reached was better described by Coxe in his letter to Commodore Rogers of October 15, 1825 (D. S., 5 Consular Despatches, Tunis), where he wrote:
It will be necessary to go back to the time of Mellimelli's return from the IJnited States, and when Consul Genl Lear came to Tunis in 1807, in the Constitution Frigate Captain Campbell, by order of our Government, to settle all differences with the Bey, which it was found impossible to do with Mellimelli at Washington, who thought only of extorting presents. The result was, that Col. Lear and the Bey, (Hamuda Basha) came to an understanding, that we were to be placed on the same terms with the most favored nations in commercial matters; and in short that the old Treaty should be laid on the shelf, until, our Government should stink proper to take measures for a formal alteration of it. Our understanding with them, respecting Salutes was to remain the same as you had left it when you were here with the Squadron in 180~That is, instead of paying for them, we were neither to give or receive Salutes.
Consul General Lear after this arrangement with the Bey, appointed me to take charge of our affairs here, and I soon had the satisfaction of inducing our merchants to an advantageous commerce with Tunis from 1807 to 1814 - The old Treaty to the contrary notwithstanding.
The proclamation of the treaty with Tunis of 1824 (Document 45) includes the English of certain articles of this treaty; Article 14 is there written as here, that is, with the rate six per cent.
Prior to the first signature of this treaty a "truce" with Tunis had twice been arranged; on about June 15, 1796, a "truce for six months" was concluded by Famin (American State Papers, Foreign Relations, I, 554); and Cathcart writes thus of an arrangement made in 1795 at Algiers (The Captives, 233):
. . . between those dates I had several conferences with the Dey [of Algiers] and Hadgi Ally [Ambassador of Tunis at Algiers], and this day [November 8, 1795] procured a truce for the United States with Tunis for eight months, guaranteed by the Dey of Algiers, translated it and took the original to Mr. Donaldson, who kept his bed with the gout and colic.
The Turkish original of the truce of June, 1796, is in the archives of the Department of State; it has been thus translated by Doctor Kramers:
The motive of the writing of this document is as follows: On the 11th of the month of Zu'lhijJah of this year 1210, answering to the 15th of June [June 17, 1796, according to the chronological tables] according to the Greek calendar. The glory of the princes of the Christian nation, the selected chief among the community of Jesus, Washington, the present ruler of America-may his days end with blessings-being desirous and wishing to negotiate a treaty of peace in order to lay the foundations of friendship and to strengthen the sincere amity with the frontier post of the Holy War, the victorious garrison of Tunis the well-preserved, just as our friends, the other Christian Governments, have done the same with our victorious garrison, has confided the negotiations of the said treaty to his Consul Barlow, residing in Algiers, and the said Consul again teas confided the negotiations of the treaty to the French merchant, Joseph Famin, residing in Tunis the well-preserved. The said merchant has appeared in my presence and has stated and declared in general his wish and desire for a treaty between the American ruler and the Government of Tunis the well-preserved. After it has been immediately communicated and confirmed to the said merchant on what terms a treaty could be agreed to, the said merchant has communicated the stipulations of the treaty to the said Consul, and the said Consul has communicated it to his Government. Now, until the answer comes and within a limit of six months after the date of this document, security has been given. Therefore, if during the said period war vessels of our well-preserved garrison place meet at sea with ships of the said Americans they shall not hinder them or molest them in any way, but they shall be treated as friends, and immediately order has been given to our officers to let them go their way. If American ships meet with ships belonging to our well-preserved garrison place, it has been agreed between the two Governments, that they shall treat each other in a friendly way. This convention has been written and sealed and given into the hands of the said merchant, so that he may send it to its proper place. Until the arrival of the answer this convention shall be observed between the two Governments; according to it both parties shall act, and it shall be opposed in no way. Salutations. Written on the 11th of Zu'lhiJjah and the 15th June of the year 1210.
[Tughra (name sign) of Hamuda, commander (mir miran) of the frontier post of the Holy War, Tunis the well-preserved.]
|
Source: Treaties and Other International Acts of the United States of America. Edited by Hunter Miller Volume 2 Documents 1-40 : 1776-1818 Washington : Government Printing Office, 1931. |