in Congress assembled for their examination and final direction."12 This was construed by the commissioners as requiring them to transmit the proposed treaty to Congress before they signed it.13 By the supplementary instructions of May 7, 1784, and the commissions issued May 11, this provision was modified so that Congress reserved only the right of final ratification.14

§16. Power of Seven States to Modify Instructions.-During the negotiations with the Spanish chargé, respecting commerce, boundaries and the navigation of the Mississippi, the question of the power of the delegates of a majority of the States to repeal instructions adopted by nine States 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 its source to the ocean, as established in the treaty of peace. On August 29, 1786, Congress voted, seven States in the affirmative, to repeal this instruction. The views of the minority as expressed in the resolutions, moved, August 31, 1786, by Charles Pinckney, were: "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."15 The effect of the vote of repeal was never tested, since the negotiations were, September 16, 1788, postponed by Congress for the consideration of the government about to be organized under the Constitution. It may be observed, in support of the proposed resolutions, that the negotiator with the instructions thus amended would not act as the agent of the treaty-making power. By a vote of seven States the commission issued to John Adams, empowering him to negotiate with Great Britain, was revoked;16 but the termination 12 Secret Journals, III, 413.

13 Works of John Adams, IX, 521; Dip. Cor. 1783-9, II, 134. 14 Secret Journals, III, 489, 499.

15 Secret Journals, IV, 125.

16 Writings of Madison (Hunt ed.), II, 38.

of a mission and the modification of instructions under which a treaty may be negotiated are however quite different acts.

§17. Treaties Concluded During This Period.-There were signed, and subsequently ratified by Congress, during this period: July 16, 1782, and February 25, 1783, two agreements, relative to loans, with France; October 8, 1782, a treaty of commerce, and separate articles 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 Great Britain; July 9, July 28, August 5, and September 10, 1785, a treaty of amity and commerce with Prussia;1 and a treaty with Morocco ratified by Congress July 18, 1787.18 A consular convention with France was signed November 14, 1788, but was not ratified until after the adoption of the Constitution. The stipulations in these treaties are in general reciprocal in nature. They cover a wide range of subjects, including the following: peace; most-favored-nation treatment in respect of commerce, navigation, duties and imposts;19 loans; the rights of the subjects of the one in the territories of the other;20 rules of maritime warfare;21 the disposition of prizes of the one in the ports of the other;22 definitions of contraband of war;23 proofs of nationality of vessels; prohibitions against visitation and search;25 and declarations for the punishment as pirates of subjects of the one accepting from another country at war with the

17 It was impossible for the commissioners to meet at the same place to sign this treaty. 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. Jay, to whom Congress referred the treaty, advised that the date of the treaty was September 10, 1785. Dip. Cor., II, 329, 330, 335.

18 The treaty with Morocco, negotiated on the part of the commissioners at Paris by Thomas Barclay, was signed and approved by Jefferson, January 1, 1787, and by Adams, January 25, 1787.

19 The Netherlands, Art. II; Sweden, Arts. II and III; Prussia, Arts. II and XXVI.

20 See infra, 33.

21 The Netherlands, Art. XII; Sweden, Arts. VII, XIV; Prussia, Art. XII.

22 Sweden, Art. XIX; Prussia, Art. XIX.

23 The Netherlands, Art. XXIV; Sweden, Art. IX.

24 The Netherlands, Art. XXV; Prussia, Art. XIV. 25 Sweden, separate Article V.

other contracting party letters of marque and reprisal.20 Various fruitless negotiations were likewise entered into during this period. At our own seat of government, the French chargé d'affaires, on November 28, 1785, transmitted to Jay, for submission to Congress, a plan of a postal convention.27 Congress in resolutions adopted, 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."28 Negotiations were opened by the commissioners at Paris with many of these powers, but with Prussia alone does a treaty record their efforts and the advanced principles of international law upon which their instructions were based.29

§18. Ratification. Amendments.-Congress, in which were combined the negotiating and ratifying functions, recognized an obligation to ratify what it had previously authorized. A consular convention with France, signed at Paris, July 29, 1784, having met with some opposition in the Congress, was referred to the Secretary for Foreign Affairs, John Jay, for examination. Proceeding on the principle that a refusal to ratify would be justified only on the grounds that the commissioners either had exceeded the powers delegated by their commission or had departed from the instructions given them, the Secretary made a careful comparison of the convention with the projet and instructions, which had been adopted by Congress, nine States concurring, January 25, 1782. He concluded that the convention differed from the projet not merely in wording and arrangement, but in subjectmatter, and advised against ratification of the convention in the form in which it was signed. He added, however, that although conventions of the character of the one under consideration were contrary to the true policy of the United States, nevertheless since Congress had proceeded so far, assurance should be given to the King of France of the readiness of Congress to ratify a convention made in conformity with the projet, provided an article were added limiting its duration. Congress, following the recommendation, withheld ratification and at the same time in26 The Netherlands, Art. XIX; Sweden, Art. XXIII; Prussia, Art. XX.

27 Dip. Cor. 1783-9, I, 255.

28 Secret Journals, III, 484.

29 Dip. Cor., II, 239, 255, 264, 281, 299, 308, 323, 330, 335, 386.

structed Jefferson, the plenipotentiary at Paris, to make the explanations, and to secure the modifications, in accordance with the suggestions of the Secretary.so In case of the treaty concluded with Sweden, April 3, 1783, certain verbal changes seemed to Congress to be essential. The national title as used in the treaty was the "United States of North America," whereas the title as defined in the Articles of Confederation was the "United States of America." Likewise, the expression, "the counties of New Castle, Kent and Sussex on the Delaware," was used, although the title of the State was Delaware. Congress, however, ratified the treaty as signed, but at the same time directed Franklin, the plenipotentiary who negotiated the treaty, to have these verbal corrections made.31

§19. Ratification of the Treaty of Peace.-The provisional articles of peace, signed November 30, 1782, were, by express terms, to be inserted in, and to constitute, the treaty of peace proposed to be concluded between Great Britain and the United States, which treaty should not be concluded until terms of peace had been agreed upon between Great Britain and France. They contained no provision for ratification, the only reference to the subject being found in Article VI, in which it was stipulated that those confined at the time of the ratification of the treaty in America for the part taken by them in the war should be immediately set free and the prosecutions so commenced be discontinued. A letter from Franklin, dated January 21, 1783, notifying Congress that provisional articles of peace had been signed January 20, 1783, by Great Britain on the one hand, and France and Spain, respectively, on the other, was received, April 10. A report of the Secretary for Foreign Affairs advising the ratification of the provisional articles was referred to a committee of which Madison and Hamilton were members. The committee reported, April 14, Hamilton dissenting, that Congress was in no wise bound to the ratification, since the act to be ratified was not the provisional articles but the peace proposed by the articles to be concluded an act "distinct, future, and even contingent"; and that a ratification might oblige Congress immediately to fulfill the stipulations of the treaty without assurance that a corresponding obligation would be assumed by the other party. Hamilton, on

30 Dip. Cor., I, 305, 312, 322. Secret Journals, III, 66; IV, 132. 31 Secret Journals, III, 392.

the other hand, urged that Congress was bound by the tenor of the treaty immediately to ratify it and to execute the several stipulations. The ratification was unanimously voted on the following day, and the exchange of ratifications in due form ordered if necessary. The definitive treaty, signed September 3, 1783, differed only in unessential wording from the provisional articles. A question arose in Congress as to the necessity of a new ratification. Only seven States were, at the time of the receipt of the treaty, December 13, 1783, represented in Congress, and the ratifications were by the terms of the treaty to be exchanged within six months from the date of signing. It was suggested, and a motion to that effect debated, that the representatives of seven States were competent to authorize the exchange of ratifications, since the ratification was authorized by the action of nine States on the provisional articles. On the other hand it was contended, among others by Jefferson and Monroe, that there should be a complete ratification, since, as was admitted, the treaty did not agree literally with the one ratified, and that it was for the treatymaking authority to decide whether or not the changes were material. Later, a plan for a provisional ratification by the seven States, with a promise that the question of ratification would be taken up as soon as nine States were assembled, was reported.33 Letters had in the meantime been addressed to the governors of the delinquent States urging on them the necessity of an immediate representation, and the arrival of new delegates rendered the provisional ratification unnecessary. On January 14, 1784, the treaty received the unanimous ratification of the nine States represented. As a result of the delay of more than a month it was impossible to effect the exchange of ratifications within the time specified in the treaty for that purpose. It was not, however, deemed necessary on the part of the British government that a formal convention for the prolongation of the period should be concluded, since the delay in America appeared to have resulted "merely in consequence of the inclemency of the season"; and the ratifications were duly exchanged at Paris, May 12, 1784.

32 Secret Journals, III, 327; Writings of Madison (Hunt ed.), I, 446, 448, 450; MSS. Cont. Cong. Papers, No. 25, Vol. II, p. 197.

33 Writings of Jefferson (Ford ed.), I, 77-83; III, 372.

34 Secret Journals, III, 433.

35 Wharton, Dip. Cor. Am. Rev., VI, 789, 806. The ratification of the treaty with Sweden was also delayed through the failure of delegates to attend Congress.