made to open our ports to foreign commerce, but to this proposition the answer was returned that the character in which Congress should act should first be determined-whether as the representatives of independent states or as dependencies of Great Britain. committee on secret correspondence was appointed by Congress on the 29th of November, 1775. It was the duty of this committee to correspond with the friends of the colonies wherever they might be found to be throughout the world. Instructions addressed to Silas Deane were signed by Dr. Franklin, Benjamin Harrison, John Dickinson, Robert Morris and John Jay on the third day of March, 1776, directing him to enter into communication with M. de Vergennes, and to learn, if possible, whether France would enter into any treaty or alliance with them for commerce or defense, or both, should the colonies form themselves into independent states. On the 17th of September, 1775, a plan of treaty was adopted to be proposed to the King of France. The commissioners selected by the continental Congress to conclude treaties with the nations of the world were Dr. Franklin, Silas Deane and Arthur Lee, the latter having been elected in the place of Thomas Jefferson, who declined. The commissioners on January 6, 1778, concluded a treaty of alliance and a treaty of amity and commerce with the King of France, and following this, treaties were made with several other powers, the treaty of peace with Great Britain being made in 1783.18

is Notes, Treaty Volume 17761887, 1219, J. C. B. Davis; Bancroft's History of the United States, Vol. IV, p. 335; Moore's American Diplomacy, 33. The first diplomatic representatives commissioned to represent the United States were Benjamin Franklin, Silas Deane and Arthur Lee. Jefferson was appointed first, but being forced to decline, Lee was appointed in his stead. Their letters of credence was: "The Delegates of the United States of New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and

Georgia, to all who shall see these presents; send greeting;-Whereas, a trade, upon equal terms, between the subjects of his most Christian Majesty, the King of France, and the people of these States, will be beneficial to both nations;-Know ye, therefore, that we, confiding in the prudence and integrity of Benjamin Franklin, one of the Delegates in Congress from the State of Pennsylvania, and President of the Convention of said State, etc., Silas Deane, now in France, late a Delegate from the State of Connecticut, and Arthur Lee, barrister at law, have appointed and deputed, and by these presents do appoint and depute

§ 9. Congress unable to guarantee observance of treaty obligations.-Congress, under the Articles of Confederation, was unable to guarantee that commercial regulations under treaty provisions would or could be faithfully observed, and there was, therefore, a want of reciprocity. Foreign nations were bound by their treaty compacts, while the federal government had no coercive power over the states. Again, to quote Washington: "America must appear in a very contemptible point of view to those with whom she was endeavoring to form commercial treaties, without possessing the means of carrying them into effect. They must see and feel that the Union, or the states individually, are sovereign as best suits their purposes. In a word, we are a nation to-day, and thirteen to-morrow. Who will treat with us on such terms?' '19

It was not until the adoption of the Constitution that the treaty of peace of 1783 was faithfully executed in relation to British debts.20

§ 10. Refusal of states to observe treaty.-Several of the states had refused to carry out the terms of the treaty, and Great

them, the said Benjamin Franklin, Silas Deane, and Arthur Lee, our Commissioners, giving and granting to them, the said Franklin Deane, and Lee, or any two of them, and in the case of the death, absence or disability of any two, or any one of them, full power to communicate, treat, agree, and conclude with his most Christian Majesty, the King of France, or with such person or persons, as shall by him be for that purpose authorized, of and upon a true and sincere friendship, and a firm, inviolable and universal peace for the defense, protection and safety, of the navigation and mutual commerce of the subjects of his most Christian Majesty, and the people of the United States, and to do all other things, which may conduce to those desirable ends, and promising in good faith to ratify whatsoever our said Commissioners shall transact in

the premises. Done in Congress, in Philadelphia, the thirtieth day of September, in the year of our Lord, one thousand seven hundred and seventy-six'': 2 Secret Journals of Congress, 32.

They reported to Congress: "It was evident that the court [of France], while it treated us privately with all civility, was cautious of giving umbrage to England, and was, therefore, desirous of avoiding open reception and acknowledgment of us, or entering into any formal negotiations with us, as ministers from the Congress': 2 Dip. Cor. Rev. 283.

19 5 Marshall's Life of Washington, 71, 72; North American Review, Oct. 1827, p. 257.

20 Ware v. Hylton, 3 Dall. 199, 1 L. ed. 568; Hopkins v. Bell, 3 Cranch, 454, 2 L. ed. 497.

Britain demanded redress for these infractions, and had refused in consequence to comply with the stipulations of the treaty requiring her to surrender up the western ports. Through the inability of the confederacy to enforce treaty stipulations the country was in danger of attacks by Indians on our western limits, and the address, drawn up in 1787, by Mr. Jay, Secretary of Foreign Affairs, and unanimously adopted by Congress, displays the absolute weakness of the confederation and also the contemptuous disregard of the provisions of that treaty by the various states in their legislation.21

As showing the jealousy entertained by the states of the powers of the general government, it may be observed that when the British garrison was expected to surrender the western posts, and it was deemed necessary that possession of them on behalf of America should be taken by some regular troops, the power of Congress to make a requisition in the states for this object was disputed, and it was asserted that the power was dangerous to liberty. Finally, the proposition was rejected, and in place of the regular troops militia were sent.22

§ 11. Want of judicial power to enforce treaties.-Among other defects that were urged against the confederation was the want of judicial power to enforce treaty obligations. "Laws are a dead letter," said the Federalist, "without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, so far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal. And this tribunal ought to be instituted under the same authority, which forms the treaties themselves. These ingredients are both indispensable. If there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts, but the judges

Journals of Congress, April 13,

1787, p. 32; Rawle on Constitution, App. 2, p. 316; 1 Story on Constitution, sec. 262.

22 5 Marshall's Life of Washington, App., note 1.

of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort an uniform rule of justice. This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. The treaties of the United States, under the present confederation, are liable to the infractions of thirteen different legislatures and as many different courts of final jurisdiction, acting under the authority of these legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions and the interests of every member, of which these are composed. Is it possible, under such circumstances, that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation ?'' 23

§ 12. Treaty of peace with Great Britain.-A provisional treaty of peace was made with Great Britain at Paris, November 30, 1782, and was proclaimed by Congress on April 11, 1783. The armistice declaring a cessation of hostilities was concluded January 20, 1783, and the definitive treaty of peace was concluded at Paris, September 3, 1783, ratified by Congress January 14, 1784, and proclaimed the same day. The first article of this treaty recognized the independence of the United States; the second fixed the boundaries; the third made provisions for the unmolested right to take fish on the Newfoundland banks and in the gulf of St. Lawrence. The fourth article was: "It is agreed that Creditors on either Side, shall meet with no lawful Impediment to the Recovery of the full Value in Sterling Money of all bona fide debts heretofore contracted." The fifth article declared: "It is agreed that the Congress shall earnestly recommend it to the Legislatures of the respective States to provide for the Restitution of all Estates, Rights and Properties which have been confiscated belonging to real British Subjects; and also for the Estates, Rights and Prop

The Federalist, No. 22; 1 Kent's Commentaries, Lecture 10.

erties of Persons resident in Districts in the Possession of his Majesty's Arms, and who have not borne Arms against the said United States. And that Persons of any other Description shall have free Liberty to go to any Part or Parts of any of the thirteen United States and therein to remain twelve Months unmolested in their Endeavours to obtain the Restitution of such of their Estates, Rights & Properties as may have been confiscated. And that Congress shall also earnestly recommend to the several States, a Reconsideration and Revision of all Acts or Laws regarding the Premises, so as to render the said Laws or Acts perfectly consistent, not only with Justice and Equity, but with that Spirit of Conciliation, which, on the Return of the Blessings of Peace should universally prevail. And that Congress shall also earnestly recommend to the several States, that the Estates, Rights and Properties of such last mentioned Persons shall be restored to them, they refunding to any Persons who may be now in Possession, the bona fide Price (where any has been given) which such Persons may have paid on purchasing any of the said Lands, Rights or Properties, since the Confiscation.

"And it is agreed that all Persons who have any Interest in confiscated Lands, either by Debts, Marriage Settlements, or otherwise, shall meet with no lawful Impediment in the Prosecution of their just Rights."' 24

§ 13. Same subject.-The sixth article of the treaty declared: "That there shall be no future Confiscations made nor any Prosecutions commenc'd against any Person or Persons for or by Reason of the Part, which he or they may have taken in the present War, and that no Person shall on that Account suffer any future Loss or Damage, either in his Person, Liberty or Property; and that those who may be in Confinement on such Charges at the Time of the Ratification of the Treaty in America shall be immediately set at liberty, and the prosecutions so commenced be discontinued."

The seventh article stated: "There shall be a firm and perpetual Peace between his Britannic Majesty and the said States and

24

Compilation of Treaties in Force, Government Printing Office, 1904, pp.

292-294.