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the Secretary, John Jay, to conduct the negotiations, a special commission was issued July 21, 1785. In the resolution passed by Congress, July 20, authorizing the negotiations, it was provided that previous to the making of any proposition or to the agreeing upon any article, compact or convention, the Secretary should communicate to Congress the proposition to be made or received." The inconvenience which would necessarily result, led the Secretary to observe, in a communication to Congress on August 15, that while it was usual to instruct ministers on great points to be agitated, he was inclined to think it was very seldom thought necessary to leave nothing at all to their discretion. While the instruction restraining him from agreeing to any article without the previous approbation of Congress seemed to him prudent and wise, to be further obliged to communicate, for the approval of Congress, every proposition which it might be deemed expedient to make to the Spanish negotiator in the conferences, was exceedingly embarrassing. The instructions of August 25 accordingly removed this embarrassment, but still required that no treaty should be signed until approved by Congress.3
During the negotiations, the question of the power of the delegates of a majority of the States to repeal instructions was raised. In the instructions of August 25, 1785, nine States concurring, the Secretary was required “particularly" to stipulate for the right of the United States to its territorial bounds and the free navigation of the Mississippi from the source to the ocean, as established in the treaty of peace. On August 29, 1786, Congress
Secret Journals, vol. iii, p. 570.
voted, seven States in the affirmative, to repeal this instruction. The view of the minority on the constitutional question involved was expressed by resolutions, moved August 31 by Charles Pinckney, in which it was declared, “If a treaty entered into in pursuance of instructions be not ratified, by the law of nations it is causa belli. If only seven States repeal the said last-recited clause of Mr. Jay's instructions, and he thereupon proceeds to enter into a treaty upon different principles than those under which he was formerly authorized by nine States, the said treaty cannot be considered as formed under instructions constitutionally sanctioned by the authority required under the confederation; nor are the United States, under the laws or usages of nations, bound to ratify and confirm the same.”: The effect of the vote of repeal was never tested, as the negotiations were, September 16, 1788, postponed by Congress for the future government. It may be observed, in support of the contention advanced by the minority, that the negotiator, with the instructions thus amended, would act as agent not for the treatymaking power, but for a part of it only. The revocation by a vote of seven States of the commission of 1779 to John Adams, empowering him to negotiate with Great Britain, was entirely different.' The termination of a mission and the modifying of instructions under which the treaty may be negotiated are acts quite distinct.
In the various negotiations conducted at Paris during
Secret Journals, vol. iv, p. 125. The debates that followed were sectional and unfortunate. John Brown, a faithful representative in Congress of the Kentucky district, wrote to Jefferson August 10, 1788: “Indeed the ill-advised attempt to cede the navigation of that River has laid the foundation for the dismemberment of the American Empire." MSS. Jefferson Papers, series 2, vol. iv, no. 22.
* Writings of Madison (Hunt ed.), vol. ii, p. 38.
this period, Congress was led to recognize the necessity of intrusting more to the discretion of the negotiators. In the instructions of October 29, 1783, authorizing negotiations with the commercial powers of Europe, provision, however, was at first inserted that treaties should not be “finally conclusive until they had been transmitted to the United States in Congress assembled, for their examination and final direction," which was construed by the commissioners to require their transmission to Congress before the signing.' This was modified by the supplementary instructions of May 7, 1784, and the commissions issued May 11, according to which Congress reserved only a final ratification.3
There were signed, and subsequently ratified by Congress during this period, besides the two agreements of July 16, 1782, and February 25, 1783, with France relative to loans: October 8, 1782, a treaty of commerce and a separate article relative to recaptured vessels with the Netherlands; April 3, 1783, a treaty of commerce, together with separate articles with Sweden; November 30, 1782, provisional articles of peace, and September 3, 1783, a definitive treaty of peace with a separate and secret article with Great Britain; July 9, 28, August 5, and September 10, 1785, a treaty of amity and commerce with Prussia; and a treaty with Morocco ratified by Congress July 28, 1787. Various fruitless negotiations were entered into. At our own seat of government the Chevalier de la Luzerne, the minister from the court of France, on July 27, 1781, transmitted to Congress for consideration a memorial accompanied by a proposed consular
"Secret Journals, vol. iii, p. 413. * Works of John Adams, vol. ix, p. 521. Dip. Cor. 1783-9, vol. ii, p. 134.
Secret Journals, vol. iii, pp. 489, 499.
convention. The draft was referred by Congress to a special committee with authority to confer with the French minister. So also the French chargé d'affaires, on November 28, 1785, transmitted to Mr. Jay for submission to Congress a plan of a postal convention. The project anticipated more than fifty years our first treaty in this respect. Although Congress had in the resolutions of May 7, 1784, declared it advantageous to conclude "treaties with Russia, the court of Vienna, Prussia, Denmark, Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa, Tuscany, Rome, Naples, Venice, Sardinia and the Ottoman Porte," with Prussia alone of these does a treaty record the efforts of the Paris commissioners and the advanced principles of international law upon which their instructions were based. For the signing of this treaty it was impossible for the commissioners to meet at one place; accordingly Franklin signed at Passy July 9, Jefferson at Paris July 28, Adams at London August 5, and F. G. de Thulemeier, the Prussian negotiator, at The Hague September 10, 1785. Franklin, who was about to depart for America, signed the instrument before the insertion of the French text. Jay, to whom Congress referred the treaty, expressed the opinion that the duration of the treaty, ten years, would be from the date of the last signature. The treaty with Morocco, negotiated on the part of the commissioners by Thomas Barclay, was signed and approved by Jefferson, January 1, and by Adams, January 25, 1787. Secret Journals, vol. iii, p. 5.
Ibid., pp. 20, 23. * Dip. Cor. 1783-9, vol. i. p. 255. *Secret Journals, vol. iii, p. 484.
s Negotiations were commenced with nearly every power of Europe and in some cases nearly consummated. Dip. Cor., vol. ii, pp, 239, 255, 264, 281, 299, 308, 323, 330, 335, 386.
* Ibid., pp. 329, 330, 335.
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
'Dip. Cor., vol. I, pp. 305, 312, 322. Secret Journals, vol. iii, p. 66; vol. iv, p. 132.