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.3 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,

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 the 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.

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.

'Diplomatic Correspondence 1783–9 (1833 ed.), vol. vi, p. 100. 'Ibid., p. 102.

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.

I

In the various negotiations conducted at Paris during

1Secret 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.