2. THE RATIFICATION

Congress, in which were combined the negotiating and ratifying functions, recognized an obligation to ratify what it had authorized. A consular convention with France, signed at Paris July 29, 1784, having met with some opposition was referred to Jay, the Secretary for Foreign Affairs, for examination. Proceeding upon the principle that a refusal to ratify could be warranted only on the grounds "either that their ministers have exceeded the powers delegated by their commission or departed from the instructions given them," the Secretary made a careful comparison of the convention with the project and the instructions adopted by Congress, nine States concurring, January 25, 1782. He concluded that it departed not merely from the wording and arrangement, but from the subject-matter of the project, and advised against its ratification in the present form. He added, however, that although such conventions were contrary to the true policy of the United States, yet since Congress had proceeded so far in the present instance, assurance should be given to the king of France of the readiness of Congress to ratify a convention made in conformity to the project, provided an article be added to limit its duration. Congress, following the recommendation, withheld ratification and at the same time. instructed Jefferson to make the explanations and to secure the modifications.*

In examining the treaty concluded with Sweden some verbal changes seemed essential. The national title used in the treaty was the "United States of North America" whereas the title as defined in the Articles of Confedera

1Dip. Cor., vol. i, pp. 305, 312, 322. Secret Journals, vol. iii, p. 66; vol. iv, p. 132.

tion was the "United States of America"; the expression "the counties of New Castle, Kent and Sussex on the Delaware" was employed, although the title of the State was now Delaware. Congress, however, ratified the treaty as signed, but authorized Franklin to secure the corrections."

In the ratification both of the provisional articles, and of the definitive treaty of peace, questions were raised. The provisional articles were to be inserted in, and to constitute the treaty of peace proposed to be concluded, which treaty should not be "concluded" until terms of peace had been agreed upon between Great Britain and France. They contained no provision for ratification; the only reference to the subject being found in Article VI, in which it was stipulated that immediately on the ratification of the treaty in America, those confined for the part they had taken in the war should be released and the prosecutions discontinued. A letter from Franklin of January 21, notifying Congress that provisional articles of peace had been signed January 20, 1783, by Great Britain on the one hand, and France and Spain respectively on the other, was received April 10. A report of the Secretary for Foreign Affairs, advising the ratification of the provisional articles, was referred to a committee of which Madison and Hamilton were members. The committee reported April 14, Hamilton dissenting, that Congress was in no wise bound to the ratification, since the act to be ratified was not the provisional articles but the peace proposed by the articles to be concluded-an act "distinct, future, and even contingent"; and that a ratification might oblige Congress immediately to fulfill all the stipulations of the treaty without evidence that a cor

'Secret Journals, vol. iii, p. 392.

2

responding obligation would be assumed by the other party. Hamilton, on the other hand, urged that Congress was bound by the tenor of the treaty immediately to ratify it and to execute the several stipulations. The ratification was unanimously voted on the following day,' and the exchange of ratifications in due form ordered if necessary. The definitive treaty, signed September 3, 1783, differed only in unessential wording from the provisional; and on its submission to Congress, December 13, a question arose as to the necessity of a new ratification. Only seven States were represented, and the ratifications were to be exchanged within six months from the signing. It was suggested, and a motion to that effect debated, that the representatives of seven States were competent to authorize the exchange of ratifications, since it was in reality authorized by the action of the nine States on the provisional treaty. On the other hand it was contended, among others by Jefferson and Monroe, that the ratification should be complete since, as was admitted, the treaty did not agree literally with the one ratified, and that it was for the treaty-making authority to decide whether the changes were material. Later, instructions to the commissioners were drawn up by Jefferson, and reported January 3, providing for a provisional ratification by the seven States, with a promise that the question of ratification would be taken up as soon as nine States were assembled.3 Letters having been addressed to the governors of the delinquent States urging on them the necessity of an immediate representation, the arrival of new delegates rendered the 1Secret Journals, vol. iii, p. 327.

'Writings of Madison (Hunt ed.), vol. i, pp. 446, 448, 450. MSS. Cont. Cong. Papers, no. 25, vol. ii, p. 197.

8 Writings of Jefferson (Ford ed.), vol. i, pp. 77-83; vol. iii, p. 372.

provisional ratification unnecessary; and on January 14, 1784, the treaty received the unanimous ratification of the nine States represented.' The delay of more than a month nevertheless rendered impossible the exchange within the time limited. As this appeared to the British government to have resulted "merely in consequence of the inclemency of the season," it was not thought necessary to enter into any formal convention for the prolongation of the time, and the exchange of ratifications was effected May 12.2 In the instrument of ratification as adopted by Congress, there appeared to the British government a want of form, wherein the United States were mentioned "before his Majesty contrary to the established custom in every treaty in which a crowned head and a republic" were parties. In reply to this objection Franklin noted the difference between a treaty and the instrument of ratification, saying that in the latter each was master of its own instrument. Although agreeing to submit the matter to Congress, if still desired, for the reason as later expressed in his communication to the President of Congress, June 16, "lest the ill temper should be augmented which might be particularly inconvenient while the commerce was under consideration," he ventured in the meantime to say that he was confident "there was no intention of affronting his Majesty by their order of nomination; but that it resulted merely from that sort of complaisance which every nation seems to have for itself, and of that respect for its own government, customarily so expressed in its own acts, of which 1 Secret Journals, vol. iii, p. 433.

'Wharton's Dip. Cor. of Am. Rev., vol. vi, pp. 789, 806. The ratification of the treaty with Sweden was also delayed through the failure of delegates to attend Congress.

Hartley to Franklin, June 1, 1784, Dip. Cor. 1783–9, vol. ii, p. 26.

I

the English, among the rest, afford an instance, when, in the title of the King, they always name Great Britain before France." The reply seems to have been incontrovertible. It may be added that it was not till the conclusion of the treaty of July 3, 1815, with Great Britain, that the United States insisted upon alternate precedence in the treaty itself, with a crowned head of Europe.

3 THE EXECUTION

The treaty of commerce of 1778 with France had promised, inter alia, the exaction of no other or greater duties in any port of the United States from French subjects than from the subjects of the most favored nation (Art. III); the exemption of French subjects from the droit d'aubaine; the right to dispose of their goods, movable or immovable, by testament, donation or otherwise, and to succeed to the same, without being obliged to obtain letters of naturalization (Art. XI). Similar provisions were inserted in the treaties with the Netherlands (Arts. II and VI), Sweden (Arts. III and VI), and Prussia (Arts. II and X). The treaty with Prussia granted further the most perfect freedom of conscience and worship to Prussian subjects within the United States (Art. XI). In accordance with the frank but far-reaching statement of John Adams the treaty of peace had pledged the nation that British creditors should meet "with no lawful impediment to the recovery" of all bona fide debts theretofore contracted (Art. IV). The consular convention with France, which, while not ratified during this period, was negotiated under the authority of the Articles of Confederation, stipulated for an extensive exemption of French consuls from local jurisdiction (Art. II), and for 1Dip. Cor. 1783-9, vol. ii, pp. 28, 31.

.