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 'Dip. Cor. 1783-9, vol. ii, pp. 28, 31.

the granting to them of certain powers over French subjects and their property within the jurisdiction of the States. How were these promises to be executed and the faith of the nation to be preserved inviolate? Not by Congress, with nothing but a recommendatory power over these subjects. Not by the States unless the stipulations met with universal approval.'

On January 14, 1780, Congress was obliged to resort to a recommendation to the legislatures of the several States to make, where not already made, provision for conferring on French subjects privileges agreeably to the spirit of article XI of the treaty of commerce." A committee composed of Madison, Clymer, and Duane, in a report to Congress July 5, 1782, advised against incorporating in the proposed treaty with the Netherlands a provision by which it should be agreed that the subjects of the one should enjoy the privileges of disposing of their goods, movable and immovable, by testament, donation or otherwise, in the territory of the other, observing that in the opinion of the committee it was at least questionable whether the extension of this privilege to the subjects of other powers than France and Spain would not encroach on the rights reserved by the articles of union to the individual States.3 The proclamation of the treaty of peace was accompanied by a resolution earnestly recommending to the legislatures of the respective States to provide for the restitution of confiscated estates, and to revise all their acts or laws so as to conform to Articles IV and V of the treaty. The proc

'The Virginian legislature, to remove all doubts as to the effect of the ratification by the Continental Congress of the treaties of 1778, had on June 2, 1779, formally ratified and declared them binding on the State. Secret Journals, vol. ii, p. 568.

3 Writings of Madison (Hunt ed.), vol. i, p. 214.

lamation enjoined all bodies of magistracy, legislative, executive and judiciary, and citizens of the States to carry into effect," while the proclamations of the treaties with France, the Netherlands and Sweden had directly enjoined the citizens and inhabitants, and more especially the military and naval officers of the United States, "to govern themselves strictly in all things" according to the provisions of the treaty. At times it was even suggested in Congress that treaties of commerce should be submitted to the several States for approval. Fruitless propositions were introduced for the leasing from the States of the control over commerce. The impossibility

of obtaining the latter, and the impracticability of the former, led to the advancement of a national doctrine. Jefferson, whose later conservatism in such matters entitles his opinion to much consideration, wrote to Monroe, June 17, 1785, at a time when the commercial independence of the States had become intolerable: "Congress by the Confederation have no original and inherent power over the commerce of the States. But by the ninth article they are authorized to enter into treaties of commerce. The moment these treaties are concluded the jurisdiction of Congress over the commerce of the State springs into existence, and that of the particular States is superseded so far as the articles of the treaty may have taken up the subject." He advised the negotiation of such treaties so as to remove foreign commerce from State interference." It was on Article IV of the treaty of peace, in which it was stipulated that British creditors should meet with no lawful impediment to the recovery of bone fide debts

'Journals of Congress, vol. iv, p. 189. Secret Journals, vol. iii, pp. 318, 395, 444, 446.

'Writings of Jefferson (Ford ed.), vol. iv, p. 55.

that the issue was tried. The stipulation not only was odious, owing to the natural prejudice against the loyal subjects of Great Britain, but also required for its execution a repeal of State laws. Congress had not the power in its legislative capacity to execute—must the nation depend upon the action of prejudiced State legislatures? Assured by the British government of its willingness to co-operate in the execution whenever the United States should manifest a “real determination” to fulfil its part of the treaty, Jay, the Secretary for Foreign Affairs, to whom the matter was referred, made a careful investigation with the conclusion that the failures of the States could not be justified by violations on the part of Great Britain. In his elaborate report on October 13, 1786, he made recommendations which were agreed to by Congress, without a dissenting vote, March 21, 1787. As communicated to the several States in the federal letter, prepared by Jay and adopted by Congress April 13, they read in part:

Resolved, That the legislatures of the several States cannot of right pass any act or acts for interpreting, explaining, or construing a national treaty, or any part or clause of it; nor for restraining, limiting, or in any manner impeding, retarding or counteracting the operation and execution of the same; for that on being constitutionally made, ratified and published, they become in virtue of the confederation, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them.

Resolved, That all such acts or parts of acts as may be now existing in any of the States, repugnant to the treaty of peace ought to be forthwith repealed; as well to prevent their con

"An investigation of the subject had proved that the violations on our part were not only most numerous and important, but were of earliest date." Madison to Edmund Pendleton, April 22, 1787. Writings of Madison (Hunt ed.), vol. ii, p. 355.

tinuing to be regarded as violations of that treaty, as to avoid the disagreeable necessity there might otherwise be of raising and discussing questions touching their validity and obligation.

The third resolution recommended to the several States to make such repeal by a general declaratory act binding the courts of law and equity to decide and adjudge according to the true intent and meaning of the treaty "anything in the said acts, or parts of acts, to the contrary thereof in anywise notwithstanding."'

The requests in the second and third resolutions for repeal by the States seemed to some members of Congress unnecessary, and even inconsistent with the first. Upon this Madison observed in the debate, that a law of repeal by the States was both expedient and necessary, since the oaths bound the judges more strongly to State than to federal authority, and even if the treaty had the validity of a law only, while it would repeal all antecedent inconsistent laws, confusion might arise as to those passed subsequently. Later, in a communication to Edmund Pendleton of January 2, 1791, in direct answer to the question whether Congress did not, in calling on the States to repeal the laws, consider Article IV of the treaty a covenant that a law of repeal should be passed rather than a law of repeal in itself, Madison said: "As well as I recollect, the act of Congress on that occasion. supposed the impediments repealed by the treaty, and recommended a repeal by the States merely as declaratory, and in order to obviate doubts and discussions." 3

Again Jay was called upon to express an opinion as to the relative effect of State laws and of treaties. According

'Secret Journals, vol. iv, pp. 185, 282, 295, 329.

Madison Papers, vol. ii, pp. 595, 596.

'Letters and Writings of Madison, vol. i, p. 523.