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not until February 6, 1778, that success attended their efforts. On that date a treaty of amity and commerce and a treaty of alliance, together with a separate and secret article, were signed. The treaty of commerce was the first to be concluded,' and conformed to the project with what might seem to be the necessary and implied reciprocal concessions. An alliance had from the first been associated with the proposed treaty. The Committee of Secret Correspondence, in notifying Silas Deane, had spoken of the plan of a treaty of commerce and alliance. Subsequent instructions had been more explicit. Those adopted by Congress December 30, 1776, had authorized the negotiation of an article according to which the forces of the two nations should be joined in reducing British possessions. But in the nature and permanent character of the alliance as entered into, the commissioners without doubt exceeded their instructions.
The treaties were received by Congress late Saturday, May 2, and were unanimously ratified the following Monday. In Article XI of the treaty of commerce, corresponding to Article XIII of the project, it was stipulated that no duty should ever be imposed on the exportation of molasses by the subjects of the United States from islands of America which were or should be under French jurisdiction. Article XII, which was not specifically authorized in the project, provided in compensation for this concession that no duties should ever be laid on the exportation of any kind of merchandise which French subjects might take from the United States and
'In the opening of the treaty of alliance is found this clause: “having this day concluded a treaty of amity and commerce."
* Wharton's Dip. Cor. Am. Rev., vol. ii, pp. 162, 181.
possessions, present and future, for the use of the islands furnishing the molasses. The commissioners at Paris had seriously differed as to the relative value of the two articles. To Congress the concessions of the two articles seemed unequal, and on the day following the ratification, a resolution was adopted authorizing the commissioners to inform the French government that, although Congress had readily ratified the treaties, it was desirous that Articles XI and XII should be expunged.' The ratifications of the treaty as signed were exchanged July 17,- but subsequently, in accordance with the expressed wish of Congress, the two articles were rescinded by counter declarations.3
During this period other commissioners were sent out to negotiate with different European states: May 7, 1777, Ralph Izard to negotiate with the Grand Duke of Tuscany; May 9, William Lee, with the Courts of Vienna and Berlin;5 September 27, 1779, John Jay, with Spain ;' September 27, John Adams, with Great Britain;' November 1, 1779, Henry Laurens, with the Netherlands;8 December 19, 1780, Francis Dana, with Russia,' and December 29, 1780, John Adams, with the Netherlands.ro The commissions, with the exception of those issued to William Lee and Ralph Izard under date of July 1, 1777, and to Francis Dana under date of December 19, 1780," gave full powers to “coníer, treat, agree and conclude, Congress promising to ratify whatever should be transacted in the premises." The commission issued to
Journals of Congress, vol. iv, p. 185.
• Secret Journals, vol. ii, p. 44.
' Ibid., p. 257. "Ibid., p. 286. Ibid., p. 357.
10 Ibid., p. 376. "Ibid., pp. 49, 358.
1? Ibid., pp. 258, 264, 276, 290.
Francis Dana contained a clause specifically requiring the transmission to Congress for final ratification. No treaty resulted during this period from these missions. The instructions and the form and authority of the commissions were, before the opening of the formal negotiations, approved by Congress, and the first project formed the basis of the instructions so far as they were confined to amity and commerce.
The committee through which the correspondence was chiefly conducted had originally, November 29, 1775, been formed for the sole purpose of corresponding with friends of the colonies in Great Britain, Ireland and other parts of the world, and was known as the Committee of Secret Correspondence. On April 17, 1777, the name was changed to the “Committee of Foreign Affairs." The inadequacy of this unorganized and changing committee of Congress resulted in the establishment, January 10, 1781, of a permanent department of foreign affairs, the occupant of which was to be styled “Secretary for Foreign Affairs.".
II. UNDER THE ARTICLES OF CONFEDERATION
I. THE NEGOTIATION
Of the three committees appointed in the early part of June, 1776—the committee to prepare a draft of a Declaration of Independence had reported June 28, and the Declaration had been adopted July 4; the committee to prepare a plan of treaties had reported July 18, and a
See Livingston to Dana, May 1, 1783, Wharton's Dip. Cor. Am. Rev., vol. vi, p. 403; Secret Journals, vol. iii, p. 353.
* Secret Journals, vol. ii, pp. 5, 479, 581. See defects of the committee, Wharton's Dip. Cor. Am. Rev., vol. iii, p. 288; vol. iv, pp. 105, 107.
plan had been adopted September 17; the committee to prepare a form of union had reported July 12, but the plan was not adopted until November 15, 1777, and did not become binding until March 1, 1781, with the ratification of the Maryland delegates. The draft of the Articles of Confederation in John Dickinson's hand-writing reported July 12, and the Articles as finally adopted, agree essentially in the provisions relating directly to treaty-making. In both not only is the sole and exclusive right and power to make treaties vested in Congress, but the States without the consent of Congress are specifically prohibited from entering into any treaty with a foreign prince or state, or any treaty, confederation or alliance whatever with another State of the Confederation. No treaty shall be made by Congress unless nine States “assent to the same.”. Congress is expressly prohibited from entering into any treaty whereby the States shall be restrained from imposing such duties and imposts on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods whatsoever.' On the other hand, the States are expressly prohibited from laying imposts or duties which may interfere with any stipulations in treaties entered into with any foreign power in pursuance of any treaties already proposed by Congress to the courts of France and Spain. This specific restriction
'In Dickinson's draft, Articles IV, V, XVIII. In the final form, Articles VI, IX. Dickinson had placed in the margin of his draft the query whether so large a majority was necessary in concluding a treaty of peace. A clause was inserted excepting treaties of peace from the required assent of nine States and appeared in subsequent copies but not in the final Articles as adopted. MSS. Cont. Cong. Papers, vol. xlvii, p. 17. 'Art. IX.
on the States might, if considered separately, be construed as indicating that they retained the right to interfere, by the imposition of duties, with treaty stipulations not conforming to those already proposed to France and Spain; but it should be read with the preceding specific prohibition on Congress from which, by a similar construction, it might be inferred that the power to deal by treaty with matters of commerce belonged to Congress so far as not expressly denied.
In tlie re-organization of the department of foreign affairs on February 22, 1782, it was provided that all communications with diplomatic officers and consular agents of the United States in foreign countries, or with ministers of foreign powers, should be conducted through the Secretary to the United States for the department of foreign affairs; and that all instructions, communications, letters of credence, plans of treaties and other acts of Congress relative to foreign affairs should, when the substance of them had been previously agreed to in Congress, “be reduced to form in the office of foreign affairs, and submitted to the opinion of Congress; and when passed, signed and attested, sent to the office of foreign affairs to be countersigned and forwarded.”: The absolute dependence of the Secretary upon authority from Congress is illustrated in the negotiations at our own seat of government with Don Diego de Gardoqui, the Spanish chargé d'affaires, relative to boundaries, the navigation of the Mississippi and commerce. To enable
* Secret Journals, vol. iii, pp. 93, 96. During this period two different secretaries served-R. R. Livingston, elected August 10, 1781, but not assuming the duties of the office until October 20 following; and John Jay, elected May 7, 1784, assuming duties December 21. From the resignation of Livingston in June, 1783, until December, 1784, the office was vacant. Treaties and Conventions (1889 ed.), p. 1230.