NOTES

There are two originals of this treaty in the Department of State file; no differences between them have been noticed; the text here printed has been collated with that one of them which forms a part of the proclamation and which is indorsed as received on April 12, 1796. The other was received on February 22,1796, and is so indorsed; it is the example sent to the Senate (D. S., 3 Instructions, U. S. Ministers, 103, letter to Pinckney of February 27, 1796); from it the signature and seal of E1 Principe de la Paz, following the Spanish text, have been cut away.

The Department of State file now contains a facsimile of the United States instrument of ratification, obtained from the Spanish archives; it is in usual form, including both English and Spanish texts. A draft of the instrument, bearing the same date, March 7, 1796, is in D. S., Miscellaneous Letters, January-April, 1796.

The treaty was not received by the Department of State until February 22, 1796. The effort made to accomplish the exchange of ratifications by the date fixed by Article 23 of the treaty six months from the date of signature, or April 27, 1796, was successful. In a letter to Charles Rutledge of March 1796 (D. S., 3 Instructions, U. S. Ministers, 111), Pickering wrote:

To guard against accidents from the danger of the seas, three ratified copies of the treaty will be sent addressed to you. For the same reason it will be proper for you to obtain at least duplicate copies, each formally ratified by the King, one of which you will forward to this office by the earliest good opportunity; and retain the other until a conveyance offers by some American citizen of reputation who shall be returning to this Country. And because the President desires to receive the earliest possible authentic information of the ratification by his Catholic Majesty, you will, besides forwarding at least one copy of the treaty with the original ratification thereon by the King, transmit to this office, by three separate conveyances, three original certificates of the exchange of the ratifications, under the hand and seal of the Spanish minister with whom the exchange shall be made. Of this mode of giving certificates we have an example in the case of the exchange of the ratifications of the late treaty between the United States and Great Britain: and the forms of the certificates proper to be used on this occasion you will find inclosed. One such certificate given by you, on the part of the United States, to the Spanish minister, will suffice: but three originals will be proper for you to receive from him, because of the hazard of failure in crossing the sea.

The letter of credence from the President to his Catholic Majesty declares your special powers to exchange the ratifications. The original and a copy of that letter are inclosed.

The certificate of the exchange of ratifications was executed in triplicate at Aranjuez on the date of the exchange. An original is in the Department of State file, which contains also the Spanish instrument of ratification; this was received at Philadelphia on JULY 30, 1796 (D.S.,3 Instructions, U. S. Ministers, 218), and the proclamation was issued three days later.

The original proclamation is in the Department of State file; inclusion of a duplicate original of the treaty was not usual in the early practice, but otherwise the document is in the customary form.

NOTE REGARDING ARTICLES 17 AND 18

Each of these articles speaks of sea letters or passports "according to the form annexed to" or "inserted in" the treaty; but no such form is part of either of the two originals of the treaty in the Department of State file or of either instrument of ratification; the protocol of exchange of ratifications makes no mention of any form of passport or sea letter; and no such form is set forth in the proclamation of the treaty. It may be said here that in the records of the period the expressions "passport" and "sea letter" were interchangeably used as meaning the same kind of paper.

The omission of the form of passport from the treaty when signed was deliberate; the reason given was doubtless inadequate, but Pinckney is explicit on the point in his letter from Paris of December 18, 1795 (received May 12, 1796; D. S., 6 Despatches, Spain; copy in D. S., 4 Despatches, Great Britain, 354):

Not being furnished with a copy of the Sea Letter issued by the President I could not annex it to the treaty as I had intended in pursuance of the provision in the 17th Article You will no doubt, Sir, have observed & supplied that deficiency-it will likewise be essential in ease the treaty should be ratified to send proper powers to whoever may be charged with the Exchange of the ratifications in Spain.

The omission of any form of passport or sea letter from the treaty had consequences which were elaborately discussed in The Amiable Isabella, 6 Wheaton, 1-101.

There is no doubt, however, that the deliberate omission of the form from the treaty was well known to the Department of State from the above-quoted despatch of Pinckney of December 18, 1795.

Pinckney's letter of December 18, 1795, was answered on May 23, 1796 (D. S. 3 Instructions, U. S. Ministers, 131). The ratification by the United States had, of course, already been sent to Spain, and indeed had been delivered on the previous April 25. The only reference to the point in the instruction was this paragraph:

With the treaty with Spain ratified by the President, were transmitted to Mr. Rutledge the necessary powers to exchange the ratifications with the Spanish Minister.

That forms were agreed on and exchanged between the two Governments shortly after the going into force of the treaty is almost equally certain.

In earlier treaty editions (Davis, 780-81, Haswell, 1012, and Malloy, II, 1647), reference is made to the fact that in Volume III (not Volume II) of a collection of Spanish treaties printed at Madrid in 1801 (not 1800), at pages 429-31 (Coleccion de los tratados de paz), there appear two forms of Spanish sea letters as annexes to the treaty text. These are also printed in 6 Wheaton, 97-101. In the English version of the memoirs of the Prince of the Peace (Memoirs of Don Manuel de Godoy) are to be found nearly accurate English translations of those Spanish forms of sea letters, which are there called " models of passports or naval patents "; it seems from that work that those forms, with the text of the treaty, were embraced in an ordinance or decree of September 4, 1796 (ibid., II, 402-18). There is no copy of that document in the Spanish edition of the memoirs of Godoy.

With the note of Davis above mentioned, which remarks that "no explanation of these facts has ever been discovered," there is printed also a letter from Jacob Wanner to the Secretary of State under date of November 3,1814 (original in D. S., Miscellaneous Letters, October-December, 1814), in which he says:

Averse to a correspondence with the writer of the enclosed letter, but willing to answer the object for public purposes, I take the liberty of doing it to you.

No form of a passport was annexed to the treaty with Spain, though referred to in one of the articles as annexed. To remedy this defect, the Secretary of State agreed with the Chevalier (now Marquis) Yrujo, Envoy of Spain, upon a form which has been constantly printed in the Spanish language, in the sea letters issued to American vessels. It was closely translated from one of the other passports in the ordinary formulary, under the inspection of the Chevalier. From which of them I do not recollect-most probably it was from that contained in the treaty with Great Britain. My knowledge of the matter is the more certain from having had some agency in it.

I suppose there must be something in the correspondence of the Department of State in perpetuam rei memoriam; but as it passed about 18 years ago I cannot refer to it from memory.

Among the printed State Papers I collected and had bound together, when employed in the Department of State, was a quarto volume, comprehending an official copy of the treaty as promulged by the Spanish Sovereign. If the volume remains in the office, it may be consulted with advantage, as it embraces a variety of passports prescribed in consequence of the treaty and probably adopts and sanctions the one agreed upon at Philadelphia, as above explained.

The precise position of Wagner in the Department of State in 1796-97 does not appear; but he was Chief Clerk from February 8, 1798 to March 31, 1807. Wagner's letter was written in response to a letter to him from J. B. Colvin dated November 2, 1814, which Wagner enclosed to the Secretary of State. Colvin was then editor of the Bioren and Duane edition of the laws of the United States. There is a brief note to Article 17 of the treaty in Volume I of that edition (printed in 1815), at page 274, based seemingly on Wagner's letter.

Wagner's recollection, nearly eighteen years after the event, was somewhat at fault. The form of the United States passport under the Spanish treaty was certainly not taken from any "treaty with Great Britain," for there was no such form to take; however, Wagner's statement that the two Governments agreed "upon a form which has been constantly printed in the Spanish language, in the sealetters issued to American vessels," is confirmed by the following note of February 24, 1797, from the Minister of Spain to Colone] Pickering, the original of which is in D. S., 1A Notes from the Spanish Legation:

The Chevalier d'Yrujo presents his Compliments to Colonel Pickering, and has just received the Copy of the passports or Sea letters, agreed on by our Treaty. The Chevalier will have immediately a Translation made in Spanish, which he will send to the Secretary of State to be printed.

In the printed Copies received from Madrid, of the Treaty, there is only the model of the Sea letters given by the King of Spain, and as it will be convenient to have a Copy in the office of the Secretary of State the Chevalier d'Yrujo takes the liberty of sending one to Colonel Pickering, at the same time the Chevalier will keep in his office the printed Copy of the American sea letters, which he has just sent him

From the above note it is clear that D'Yrujo had received from Pickering the United States printed form of sea letter in English; he was translating that form into Spanish for printing by this Government; and he transmitted a copy of the Spanish forms. The agreement between the two Governments, while informal, was thus complete.

There seems no reason to doubt that the Spanish forms transmitted to Pickering by D'Yrujo were those embodied in the Spanish decree and referred to above. Just what United States form was printed in Spanish by this Government is not so certain. The "quarto volume" mentioned in the last paragraph of the letter of Wagner above quoted has not been found; but it is highly probable that that United States form was similar to one which was in use in the early part of the nineteenth century, some original examples of which are in the Manuscript Division of the Library of Congress. The earliest in date is of 1805; others, issued during the next few years, are in the archives of the Department of State.

The form of document just mentioned was based in part on the provisions of the treaty with the Netherlands of 1782 (Document 5), to which there are annexed three forms of ship's documents, the first being called a passport, the second a certificate, and the third a sea letter; it was printed in four languages, French, Spanish, English, and Dutch, in parallel columns. At the top of the sheet, in the English and the Dutch, is the first form annexed to the treaty with the Netherlands and there called a passport; this is followed by the signatures of the President and the Secretary of State, with the Great Seal, and the countersignature of the collector of the port; then follows the third form from the treaty with the Netherlands, in the four languages, with the signature of the official before whom the oath was taken. But in the first part of the document, the passport proper, the French and the Spanish are quite different in their wording from the English and the Dutch; they contain the provisions of the form annexed to the Treaty of Amity and Commerce with France of February 6, 1778 (Document 1), and included in Article 4 of the convention of September 30,1800 (Document 25). It appears that passports under the French treaty had earlier been issued in English and that Jefferson, as Secretary of State, had in 1793 made some slight changes in their wording (American State Papers, Foreign Relations, II, 302).

That the above-described document embodied the wording sent by D'Yrujo to Pickering on February 24,1797, is very likely, particularly in view of Wagner's later statement that it had "been constantly printed in the Spanish language, in the sea-letters issued to American vessels."

At the same time there was also in current use a much shorter form of passport. There are numerous original examples extant, some in the archives of the Department of State and others in the Manuscript Division of the Library of Congress. Some of these are dated as early as 1802, and there is one which, while mutilated, could not have been later than 1801; and this form continued in use at least as late as 1841, for among the examples in the archives of the Department of State is one signed in blank by John Tyler and Daniel Webster.

This short form is in English only. It is an engraved parchment, and all the examples which have been seen are cut or indented at the top. It appears that this form was prepared under the statute of June 1, 1796 (1 Statutes at Large, 489-90). It was issued under the Great Seal, with the signatures of the President and of the Secretary of State and a further signature by the collector of the port. A letter of Pickering of August 16,1796, transmits twenty-four such passports to President Washington " to be completed by your signature " (D. S., Miscellaneous Letters, August-December, 1796).

The reference in the letter of Pinckney above quoted of December 18,1795, to " the Sea Letter issued by the President, " is perhaps to form prepared by John Jay and approved by Washington late in the year 1789 (D. S., 130 O. C. Papers, Passports, folios 13-14). That form of 1789 replaced a still earlier form under the resolution of the Continental Congress of February 12, 1788 (ibid., folios 1-3). The form of 1789 was similar to that of 1796 in its requirements of signatures and seal.

NOTE REGARDING ARTICLE 3

The Commissioner of the United States to run the line under Article 3 was Andrew Ellicott. Two volumes of his papers, including his journal for about two months of 1799 and correspondence with the Secretary of State and other officials, Spanish and American, are in the archives of the Department of State. Some of the correspondence is printed in American State Papers, Foreign Relations, II, 20-27, 78-87. The Journal of Andrew Ellicott, which covers the entire period of his work, front 1796 to 1800, with six maps, was printed in Philadelphia in 1803; following the journal proper is an appendix of "Astronomical, and Thermometrical Observations," with eight plates. This appendix (seemingly with only one plate) had been separately printed in Philadelphia in 1801.

However, the original report (or reports) of the Commissioners under Article 3 and their map (or maps) of the boundary are not to be found in the archives of the Department of State. It appears from a letter of Albert Gallatin, dated at New York February 18, 1830 (original in the archives of the Department of State), that while he was Secretary of the Treasury (18!01-1813) they had been loaned for use in the Land Office and that thereafter they (or at least the snap) had been loaned to "a Committee of Congress." Glallatin's letter enclosed Ellicott's manuscript of "observations to accompany the Map of part of the Mississippi River; the southern boundary of the United States; and the coast of West Florida" (which was used in parts of the book of 1803), and also a copy of the book of 1801.

NOTE REGARDING ARTICLE 5

It is not possible to state positively just what treaties between the United States and the Indian nations in question were then in force; those that had previously been made are the following: with the Cherokee, November 28, 1785 (a treaty of 1783 is mentioned in American State Papers, Indian Affairs, I, 326, but this was probably with the State of Virginia); with the Choctaw, January 3, 1786; with the Chickasaw, January 10, 1786; with the Creeks, August 7, 1790; with the Cherokee, July 2, 1791, February 17, 1792, and June 26, 1794. The texts of those treaties are in Kappler, Indian Affairs; Laws and Treaties, II, 8-16, 25-34.

There were also secret articles of the treaty with the Creeks of 1790, the original of which is in the Department of State archives; their provisions are summarized in the work of Samuel Flagg Bemis, Pinckney's Treaty, at pages 200-1; the first of those articles received the assent of the Senate during the negotiations (Executive Journal, I, 55-6); but with that exception it seems that the text of the six secret articles has not heretofore been published. They read as follows:

Article 1st-The commerce necessary for the Creek nation shall be carried on through the ports, and by the citizens of the United States, if substantial and effectual1 arrangements shall be made for that purpose by the United States, on or before the first day of August one thousand seven hundred and ninety two- In the mean time, the said commerce may be carried on through its present channels and according to its present regulations.

And whereas the trade of the said Creek nation is now carried on wholly or principally through the territories of Spain and obstructions thereto may happen by war or prohibitions of the Spanish government:

It is therefore agreed between the said parties that in the event of any such obstructions happening it shall be lawful for such persons as the President of the United States shall designate to introduce into and transport through the territories of the United States to the country of the said Creek nation, any quantity of goods wares and merchandise not exceeding in value in any one year Sixty thousand dollars, and that free from any duties or impositions whatsoever, but subject to such regulations for guarding against abuse, as the United States shall judge necessary; which privilege shall continue as long as such obstructions shall continue.

Article 2nd-The United States also agree to allow to each of the great medal chiefs herein after named, a commission, a great medal with proper ornaments, and each one hundred dollars annually for themselves and the other beloved men of their towns respectively-to wit-

Of the Upper Creeks-The Chiefs the Oakfuskees, Tuckabatchees, and the present Talissee King of the half-way house.

Of the lower Creeks-The Chiefs of the Cusitahs and Cowetas- And-

Of the Semanolees-The Chief of Micasukee-

Article 3rd-In order to effect a consolidation of the interests of the United States and the Creek nation, it is hereby stipulated that Alexander M9Gillivray the beloved Chief of the said nation shall also be constituted the Agent of the United States in the said nation with the rank of Brigadier General and the pay of one thousand two hundred dollars per annum, on his taking the usual oaths required by law.

Article 4th-And the said Alexander McGillivray hereby stipulates to use his highest exertions to endeavor to cultivate the firmest friendship between the United States and the said Creek nation.

Article 5th-The United States agree to educate and clothe such of the Creek youth as shall be agreed upon, not exceeding four in number at any one time.

Article 6th-These secret articles shall take effect and be obligatory on the contracting parties as soon as the same shall have been ratified by the President of the United States, with the advice and consent of the Senate of the United States.

An account of the relations between Spain and the Indian nations, by Jane M. Berry, with citations of various treaties, is in The Mississippi Valley Historical Review, III, 462-77. Two of the Spanish treaties, that with the Talapuche of June 1, 1784, and that with the Chickasaw and Choctaw of May 14, 1790, are printed in American State Papers, Foreign Relations, I, 278-80. Texts (in Spanish) of three treaties made by Spain are in Serrano y Sanz, Espaha y los Indios Cherokis y Chactas (Seville, 1916), 82-92; these are a treaty with the Choctaw of July 14, 1784, a treaty with the Choctaw and Chickasaw of May 10, 1793, and a treaty with the Chickasaw and various other nations of October 28, 1793. In Documentos historicos de la Florida y la Luisiana (Madrid, 1912) is the text (in Spanish) of a treaty with the Chickasaw and Choctaw of May 14, 1792 (436-39); and the book of Doctor Bemis, cited above, discusses the relations of both countries with the Indian tribes in Chapters II and IX; see also generally, The Spanish-American Frontier, 1783-1795, by Arthur Preston Whitaker.