*

possessed from the first meeting, in September 1774, until the ratification of the Articles of Confederation on the 1st of March, 1781? It appears to me, that the powers of Congress, during that whole period, were derived from the people they represented, expressly given, through the medium of their State Conventions, or State Legislatures; or that after they were exercised they were impliedly ratified by the acquiescence and obedience of the people. The powers of Congress originated from necessity, and arose out of, and were only limited by, events; or, in other words, they were revolutionary in their very nature. Their extent depended on the exigencies and necessities of public affairs. It was absolutely and indispensably necessary that Congress should possess the power of conducting the war against Great Britain, and therefore if not expressly given by all (as it was by some of the States), I do not hesitate to say, that Congress did rightfully possess such power. The authority to make war, of necessity implies the power to make peace; or the war must be perpetual. I entertain this general idea, that the several States retained all internal sovereignty; and that Congress properly possessed the great rights of external sovereignty: Among others, the right to make treaties of commerce and alliances; as with France on the 6th of February, 1778.” 9916

§12. Other Negotiations.-During this period other commissioners were appointed to negotiate with various European states: May 7, 1777, Ralph Izard, to negotiate with the Grand Duke of Tuscany;17 May 9, 1777, William Lee, with the Courts of Vienna and Berlin;18 September 27, 1779, John Jay, with Spain;19 September 27, 1779, John Adams, with Great Britain;20 November 1, 1779, Henry Laurens, with the Netherlands;21 December 19, 1780, Francis Dana, with Russia;22 and December 29, 1780, John Adams, with the Netherlands.23 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, 1780,24 gave full powers to "confer, treat, agree and conclude," the Congress promising to ratify whatsoever should be transacted in the premises.25 The commission to Francis Dana contained a clause specifically requiring the transmission of the treaty to the Congress for final ratification.26 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 the Congress, and the projet of the French treaty formed the basis of the instructions, so far as they were confined to amity and commerce.

§13. Organs of Communication with Foreign Governments. -The committee through which the correspondence with foreign countries 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 Committee of Foreign Affairs. On January 10, 1781, a permanent department of foreign affairs, the occupant of which was to be known as Secretary for Foreign Affairs, was created."

24 Id., 49, 358.

25 Id., 258, 264, 276, 290.

26 See Livingston to Dana, May 1, 1783. Wharton, Dip. Cor. Am. Rev., VI, 403; also Secret Journals, III, 353.

27 Secret Journals, II, 5, 479, 581. See as to the defects of the committee, Wharton, Dip. Cor. Am. Rev., III, 288; IV, 105, 107.

CHAPTER III.

UNDER THE ARTICLES OF CONFEDERATION.

1. The Making.

§14. Treaty-making Power Exclusively Vested in Congress. -Of the three committees chosen by the Congress in the early part of June, 1776, the committee to prepare a draft of a declaration of independence reported, June 28, and the declaration was adopted, July 4; the committee to prepare a plan of treaties reported, July 18, and a plan was adopted, September 17; the committee to prepare a form of union reported, July 12;1 but the plan was not adopted until November 15, 1777, and did not become effective until March 1, 1781, upon its ratification by the Maryland delegates. The provisions directly relating to treaty making in the draft as reported, July 12, 1776, and in the Articles of Confederation as finally adopted, were essentially the same. In both, not only was the sole and exclusive right and power to make treaties vested in Congress, but the States were expressly prohibited from entering, without the consent of Congress, into any "conference, agreement, alliance or treaty" with any king, prince, or state, or any "treaty, confederation or alliance whatever" with another State of the Confederation. Each State had

I The draft is in the handwriting of John Dickinson.

2 "The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article-of sending and receiving ambassadors -entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever. * * The United States in Congress assembled shall never * * enter into any treaties or alliances * unless nine States assent to the same." Art. IX. See Dickinson's draft, Art. XVIII.

*

3 In Dickinson's draft the terms used are "treaty, convention, or conference."

4 "No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king prince or state. *** No two or more States shall enter into any treaty, confedera

5

one vote in Congress. No treaty could be entered into unless nine States assented to the same. Congress was expressly prohibited from entering into any treaty whereby the States should be restrained from imposing such duties and imposts on foreigners as their own people were subjected to, or from prohibiting the exportation or importation of any species of goods whatsoever." On the other hand, the States were expressly prohibited from laying imposts or duties which might interfere with any stipulations in treaties entered into by the United States with any foreign power in pursuance of any treaties theretofore proposed by the Congress to the courts of France and Spain."

§15. Control Exercised by Congress Over Negotiations.In the resolutions for the re-organization of the Department of Foreign Affairs, adopted by Congress 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 of the United States for the Department of Foreign Affairs; that all instructions to ministers of the United States or letters to ministers of foreign powers having direct reference to treaties proposed to be entered into should be submitted to the inspection and receive the approbation of Congress before they were transmitted; 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

tion or alliance whatever, between them, without the consent of the United States in Congress assembled, specifying accurately the purpose for which the same is to be entered into, and how long it shall continue." Art. VI. In Dickinson's draft the words "previous and free" appear before the word "consent" in the prohibition as against compacts between States of the Confederation.

5 In the margin of Dickinson's draft it is questioned whether so large a majority is necessary in concluding a treaty of peace. A clause was inserted in the draft excepting treaties of peace from the requirement of the assent of nine States, and appeared in subsequent copies, but not in the final Articles as adopted. MSS. Cont. Cong. Papers, XLVII, 17. 6 Art. IX.

7 Art. VI.

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 the Spanish chargé d'affaires, respecting boundaries, the navigation of the Mississippi, and commerce. To enable the Secretary to conduct the negotiations, a special commission was issued, July 21, 1785. In the resolutions adopted by Congress, July 20, 1785, authorizing the negotiations, it was provided that, before making any proposition or 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 from this procedure, led the Secretary to observe in a communication to Congress, August 15, 1785, that while it was usual to instruct ministers on great points to be agitated it was very seldom thought necessary to leave nothing at all to their discretion; that while the instruction restraining him from agreeing to any article without the previous approbation of Congress seemed to be prudent and wise, the requirement that he must communicate, for the approval of Congress, every proposition that he might deem expedient to make to the Spanish negotiator in the conferences was exceedingly embarrassing.10 By instructions adopted August 25, this requirement was modified; but the Secretary was still directed that no treaty should be signed until approved by Congress.11

In the negotiations conducted at Paris during this period, Congress came to recognize the necessity of entrusting greater power to the negotiator. The instructions, adopted October 29, 1783, authorizing negotiations with the various commercial powers of Europe, contained the reservation that no treaty should be "finally conclusive" until it had "been transmitted to the United States

8 Secret Journals, III, 93, 96. Robert R. Livingston was chosen Secretary August 10, 1781, assumed the duties of the office on October 20, 1781, and resigned in June, 1783. John Jay was chosen May 7, 1784, qualified on December 21, 1784, and continued in office until the adoption of the Constitution. During the interim from June, 1783, to December, 1784, the President of Congress acted as the Secretary. Notes to Treaties and Conventions (1889 ed.), 1230.

9 Secret Journals, III, 570.

10 Dip. Cor. 1783-9 (1833 ed.), VI, 100.

II Id., 102.