The Department of State file of this agreement contains two documents only the original proclamation and a copy of the convention, as the agreement is called in the proclamation.

Accordingly, the original signed convention is not available as a source text. The absence of the document from the archives cannot be satisfactorily explained, for it is certain that the original convention was received at Washington.

The negotiations for the revision of various articles of the earlier treaty with Tunis (Document 21) were carried on on behalf of the United States by Dr. Samuel D. Heap, then Charge d'Affaires and Acting Consul at Tunis. His despatch of June 13,1824, transmitting the original convention (copies of which he had forwarded earlier), was received at the Department of State on December 10, 1824 (D. S., 5 Consular Despatches, Tunis); another letter of the same date from Heap, transmitting another original document, is with that document in the same volume and is marked with the same date of receipt. Both letters came by the U. S. S. Erie, Captain Deacon.

There can thus be no doubt that the original convention was received at Washington on December 10, 1824, and that it was transmitted to the Senate with the presidential message dated three days later (Executive Journal, III, 395). This conclusion is supported by the statement in the annual message of President Monroe of December 7, 1824 (American State Papers, Foreign Relations, V, 354): "An advantageous alteration in our treaty with Tunis has been obtained by our (consular Agent residing there, the official document of which, when received, will be laid before the Senate"; and in an instruction to Heap dated August 27, 1824 (D. S., 2 Instructions to Consuls, 335), it was said that "the Treaty when received in the original will be submitted to the Senate for its advice and consent."

Presumably the original convention was returned to the President with the attested Senate resolution of advice and consent of January 13, 1825 (Executive Journal, III, 405). Possibly it was sent to Tunis as a part of the United States instrument of ratification; but there is no instruction or other record mentioning the transmittal of the ratification.

The papers which accompanied the presidential message of December 13, 1824, transmitting the convention to the Senate, comprised merely an extract from a despatch of Heap of January 24, 1824, and his despatch of March 4, which enclosed a copy of the convention (American State Papers, Foreign Relations, V, 430-32).

The attested Senate resolution of advice and consent of January 13, 1825, is in D. S., Miscellaneous Letters, January-March, 1825.

THE LANGUAGE

While the matter is not beyond doubt, it is fairly certain that the language of the convention was English. Heap's journal (D. S., 5 Consular Despatches, Tunis) shows that he submitted a draft of the desired alterations, which was certainly in English; among the entries of that journal are also the following:

[February 24, 1824, the recited date of signature of the convention.] Went to Bardo with the Treaty when the Bey informed me he had conceded all the alterations I had required.

March 3d Sidi Assuna brought the Treaty signed and sealed by the Bashaw Bey, and the Bey.-Who informed me that the Turkish Secretary allways received a present for translating a Treaty.

The foregoing seems to imply a Turkish equivalent of the English; but it still leaves the question of the language of the original somewhat uncertain.

A despatch from Heap of March 4, 1824 (D. S., 5 Consular Despatches, Tunis), received at the Department of State August 14, lg24, enclosed a copy of the convention in English, which is with the despatch. Nothing is said as to any other language. According to the enclosed copy, the convention was signed by Heap but (which seems unlikely) not sealed by him; and it indicates two seals (but no signatures) for Tunis, one of Mahmoud Pasha and one of Hassan Bey. This is confirmed in part by the journal entry above quoted; Hassan was the son of Mahmoud and succeeded as Pasha on the death of his father on March 28 or 29, 1824, only a few weeks after the date of the treaty (letter of Hassan to the President, March 29, 1824, Ibid.)

In a letter to Commodore John Rodgers, dated at Tunis October 15, 1825, a copy of which was enclosed in a despatch of February 25, 1826, from Charles D. Coxe, then Consul at Tunis, to the Secretary of State (D. S., 5 Consular Despatches, Tunis), Coxe criticizes in considerable detail the alterations in the four articles of the earlier treaty which were made by this convention. In his strictures Coxe writes of the amended articles as if their text were in English, quoting the language of some phrases with substantial accuracy. But this is perhaps not very significant, particularly as Coxe similarly refers to certain clauses of the earlier treaty with Tunis (Document 21), where the English is unquestionably a translation.

The proclamation of January 21, 1825, says that certain alterations in the treaty of 1797 "were agreed upon . . . by the Articles in the words following"; this is consistent with an English original, and persuasive but perhaps not conclusive. According to the proclamation, the convention was signed and sealed by Heap and Sidi Mahmoud.

In the Department of State file is a copy of the provisions of the agreement, in English, written at Tunis, though in that copy is no mention of signatures or seals; and in the archives are two other copies *om Tunis, also in English, sent in 1825 and 1826 (ibid.).

In the presidential message of February 2, 1825, communicating to Congress "copies of the alterations in the treaty of peace and friendship of August, 1797, between the United States and the Bashaw Bey of Tunis [Document 21], concluded at the palace of Bardo, near Tunis, on the 24th of February last," there is no hint of any language text other than English (American State Papers, Foreign Relations, V, 587-89).

On the whole, it can be said that the text of the agreement as proposed by Heap was in English, and there is nothing in the archives of the Department of State to indicate that the agreement, as signed by him, was in any language other than English. As far as the records go, they indicate an English text only.

THE SOURCE TEXT

There are various available sources from which the text of this document might be printed. Three of them are the three copies of the convention to be found in D. S., 5 Consular Despatches, Tunis. The first of those sources is the enclosure with Heap's despatch of March 4, 1824 (printed in American State Papers, Foreign Relations, V 431). The second is the enclosure with the letter of C. D. Coxe (then Consul at Tunis) to Commodore John Rodgers of October 15, 1825, which Rodgers forwarded to the Secretary of State with his letter of May 13, 1826. The third is a copy of the above-mentioned letter and enclosure of Coxe to Rodgers, which Coxe enclosed with his despatch of February 25, 1826. A fourth possible source is the copy of the provisions of the agreement, in English like the other copies, but without mention of signatures or seals, which is in the Department of State file of this convention. The fifth is the text as copied in the original proclamation, which is the only other paper in the Department of State file. The sixth is the print of the text which was ordered by the Senate December 15, 1824 (Executive Journal, III, 395), and which was taken, it seems reasonable to suppose, from the original convention which was then before the Senate. A copy of that print is in Senate Confidential Document, 18th Congress, 2d session, December 15, 1824, Regular Confidential Documents, II, 5-7.

The three copies in D. S., 5 Consular Despatches, Tunis, and the copy of the provisions in the file, are all in the same handwriting- that of Ambrose Allegro, who served the United States Consulate at Tunis "since the commencement of 1801 . . . in the triple capacity of Chancellor, Secretary and Interpreter" (ibid., Allegro to the Secretary of State, May l' 1825, enclosure with Coxe's despatch of the same date). Numerous despatches and other papers from Tunis are also in the handwriting of Allegro, and it seems not improbable that the original convention was likewise in his handwriting The two copies of the text enclosed in letters of Coxe are of later date than the transmittal of the original to the United States; but the copy enclosed by Heap in his despatch of March 4, 1824, was doubtless made from the original, which he had received, "sinned and sealed by the Bashaw Bey, and the Bey," on March 2 (Heap's journal). And, as has been observed, it seems that even the handwriting may be the same as that of the original;

The copy of the provisions of the agreement which is in the treaty file bears no endorsement as to its source or date of receipt; aside from the fact that it was made at Tunis by Allegro, nothing definite is known regarding its history. Heap states In his despatches of June 13 and June 26, 1824 (ibid.), that he sent one copy of the convention to the Department of State by way of Leghorn in April, 1824 (for March 26 Heap's journal contains the remark, "Despatched letters to Consuls Appleton and Anderson at Leghorn"), and another by way of Marseilles in May. That copy which accompanied the despatch of March 4, 1824 (ibid.), is the one sent by way of Marseilles in May; possibly the copy in the treaty is the is the one sent by way of Leghorn in March or April.

The text of the convention as it appears in the original proclamation was copied in the press of the period (e.g., Niles' Weekly Register, XXVII, 355-57, February 5, 1825) and has been printed in treaty collections generally ever since. That text may possibly have been taken from the original convention; but it differs, in its indication of the signatures and seals, from the copy sent by Heap with his despatch of March 4, 1824, and from the Senate print.

The choice as to the source of the text to be printed is between the copy enclosed with Heap's despatch of March 4, 1824, and the Senate print, both of which were probably copied fron1 the original. But if the original was in the handwriting of Allegro (an unusually accurate scrivener), as might be supposed, then the copy enclosed by Heap is doubtless snore nearly like the original than is the Senate print, with its alterations of style.

Aside from matters of punctuation, capitalization, etc., the Senate print differs from the copy enclosed by Heap (and from all other available handwritten copies) in three places, which are almost certainly printer's changes or errors.

Accordingly, the copy enclosed by Heap with his despatch of March 4, 1824, has been adopted as the source text of the convention.

In all the possible sources available, the textual date of signature of the convention is given as February 24, 1824, and the corresponding date by the Mohammedan calendar as 24 Jumada II, A. H. 1239, which would be February 25, 1824, according to the chronological tables; see, however, the remarks as to the Mohammedan calendar in Volume 2, pages xxi-xxii.

THE RATIFICATION

While on the part of Tunis the agreement was doubtless complete upon its signature, ratification on the part of the United States appears to have been considered necessary. In the letter of Consul (]oxe to Commodore Rodgers of October 15, 1825, which has been mentioned, Coxe wrote that on his arrival at Tunis (on December 11, 1824) "they [the officials of Tunis] were extremely anxious to know my opinion of their 'alterations,' and the probability of their being ratified "; and, in the case of the earlier treaty with Tunis, the United States instrument of ratification was duly delivered (see the notes to Document 21).

There has been found, however, no duplicate or other record of the United States instrument of ratification, nor is there any record that such a document was sent to Tunis. The fact that the convention had been ratified by the United States is recited in the proclamation, but the date of the ratification cannot be definitely stated. It was not earlier than January 13, 1825, the date of the Senate resolution of advice and consent; and it could not have been later than the following January 21, the date of the proclamation.

THE PROCLAMATION

The original proclamation, which is in the treaty file, is in rather unusual form, as it includes not only the text of the convention but also the text of Articles 6, 11, 12, and 14 as they appear in the earlier treaty (Document 21), according to the English translation thereof. The opening recital of the proclamation, which is printed in full in American State Papers, Foreign Relations, V, 587-89, with the presidential message of February 2,1825, reads thus:

Whereas certain alterations in the Treaty of Peace and Friendship of August 1797, between the United-States and the Bashaw Bey of Tunis, were agreed upon and concluded between His Highness Sidi Mahmoud, the Bey, and it. D. Heap, Charge d'Affaires of the United-States, at Tunis, on the twenty-fourth day of February one thousand eight hundred and twenty-four, by the Articles in the words following, to which are annexed the altered Articles as they were in the Treaty before the alterations.

Following the preamble of the convention, the two texts of the four articles are written in parallel columns in the proclamation, each article in the left column having as part of its heading "As it now is" and each article in the right column having as part of its heading "As it was."

It is in the form of the proclamation that this convention has been printed in treaty collections generally, though usually without the clauses of the proclamation itself; but it seems certain that this was not at all the form of the original convention; for all the four copies written at Tunis by Allegro and sent to the Department of State, and also the Senate print of the convention, to which reference has been made, contain only the text of the articles as altered in 1824.

THE ALTERATIONS

The alterations of the earlier treaty with Tunis (Document 21) which were made by this convention, were limited to Articles 6, 11, 12, and 14. It is to be remembered that three of those articles (11, 12, and 14) had previously been altered from the form in which they were originally signed on August 28, 1797, by the changes made on March 26, 1799, before the treaty was finally ratified by the United States. In this connection the notes to Document 21 should be consulted generally. Furthermore, as is indicated in those notes, there had been, at least in respect of Article 14, some subsequent and quite informal alterations agreed upon in 1807.

The 1824 negotiations were carried on by Heap without any full power and without instructions from the Department of State (D. S., 5 Consular Despatches, Tunis, March 4, 1824), but Heap must have had before him at the time the instructions which had been given to O'Brien, Cathcart, and Eaton, under date of December 18, 1798 (D. S., 5 Instructions, U. S. Ministers, 16-23; printed in part in American State Papers, Foreign Relations, II, 281-82), regarding the alterations of Articles 11, 12, and 14 then desired; for those instructions were only partly carried out in 1799; and in respect of those three articles the text of this convention follows those instructions with precision. Article 14 and the latter part of Article 12 as proposed in 1798 were embodied almost word for word in this convention, and the further instructions then given as to Articles 11 and 12 were accurately carried out. Only in regard to Article 6 did Heap go outside of the instructions of 1798, and the improvement there made in the treaty is, from the American point of view, both obvious and striking.

Accordingly, it seems unnecessary to review the criticism by Coxe of the alterations, to which reference has been made. In part those comments of C'oxe complained of the fact that Heap acted without instructions; in part they relate to clauses of the treaty which were not altered by Heap; and, in general, they seem to have been written with the purpose of putting the course of Heap in an unfavorable light.

The criticism of Coxe, however, is interesting for another reason. It was written on October 15, 1825, and was submitted for the consideration of the Department of State with the despatch of Coxe of February 25, 1826 (D. S., 5 Consular Despatches, Tunis); this was more than one year after the convention had been ratified by the United States and proclaimed, and it shows that at that time Coxe had no knowledge of the action of this Government. Doubt as to whether the United States instrument of ratification was transmitted to Tunis must be increased by this circumstance.