before the Supreme Court of the United States, in a case calling for an exposition of the appellate jurisdiction of Congress in prize causes before the ratification of the confederation. The result of that examination was, as the opinions already cited indicate, that Congress, before the confederation, possessed, by the consent of the people of the United States, sovereign and supreme powers for national purposes; and among others the supreme powers of peace and war, and, as an incident, the right of entertaining appeals in the last resort in prize causes, even in opposition to State legislation. And that the actual powers exercised by Congress, in respect to national objects, furnished the best exposition of its constitutional authority, since they emanated from the representatives of the people, and were acquiesced in by the people." While this volume has been in press a work has been published by an eminent authority on the diplomatic history of our country in which extended references are made to the treaties under the Confederation.4

3

which also contains quotations | Joseph Story, LL. D., 5th Edition, from Story's Commentaries. Boston, 1891, vol. I., § 217, pp. 160

2 Commentaries on the Constitu- 161.

tution of the United States, by

3 JOHN W. FOSTER ON TREATIES OF THE CONFEDERATION. In "A Century of American Diplomacy" by former Secretary of State John W. Foster (New York and Boston, 1901), the author devotes several chapters of that interesting volume to the diplomatic results achieved by the representatives of this country prior to the adoption of the Constitution. Chapter I (pp. 1–40), “The Revolutionary Period,” treats of the condition of international law in 1776, and the negotiations with the French court resulting in the treaties of commerce and alliance of 1778; chapter II (pp. 41-72), is devoted to the negotiations with Spain and Holland, and the inception of the peace negotiations with Great Britain; chapter III (pp. 73-102), "Peace under the Confederation," gives the history of the Provisional Articles of 1782 and the Definitive Treaty of Peace of 1783, the treaties with Prussia and other countries, and concludes with an account of the diplomatic representatives of our country during the Revolutionary period (for Mr. Foster's opinion of Benjamin Franklin, see note on p. 298 of this volume, post); chapter IV (pp. 104-135), contains a history of the organization of the Department of State.

4 In speaking of the treaties which were concluded between the United States and foreign powers during the ante-Constitutional period, and of the high attainments of the American statesmen of that period in

international law and diplomacy, Mr. Foster says (pp. 92-94): "The year following the peace with England, John Adams, Franklin, and Thomas Jefferson were appointed commissioners to negotiate treaties of commerce with various European governments, and the convention with Prussia of 1785 was the outcome of this appointment. It was mainly the work of Dr. Franklin, and in it were inserted the principles for which he had so long contended as to neutrality, privateering, and the exemption of private property on the sea from confiscation in war. It was called a beautiful abstraction;' a dream of the philosopher who vainly sought to mitigate the cruelties of war; and when the treaty came to be renewed in 1799 these provisions were omitted. Franklin's efforts, however, have not been entirely in vain. In the Declaration of Paris of 1856, adopted by the great powers of Europe, privateering was abolished; and when the adhesion of the United States to the declaration was asked, Secretary Marcy proposed as an amendment that private property of belligerents at sea be exempt from capture; and because of the refusal of the powers to admit that principle, the adhesion of the United States was withheld. Our country, through the recent action of President McKinley in asking its adoption by the Hague conference, is on record as still advocating Franklin's liberal principle. The treaty with Prussia has the unique feature of having been signed by the four signatory parties thereto at four different dates and at three different places; the instrument being signed by Mr. Adams in London, by the Prussian minister at the Hague, by Dr. Franklin in Paris, July 9, and by Mr. Jefferson, July 28, he having arrived in the interim in that city from America.

"Other treaties of the ante-Constitutional period were those with Morocco in 1787 and the Consular Convention of 1788 with France. It is of interest to note the part which the Continental Congress played in the negotiation of all the treaties, from that with France of 1788 up to the adoption of the Constitution. There being no distinct head of the government, Congress took the part of the Executive in initiating and directing the negotiations. The terms of all treaties to be made were discussed in their details; and in almost all cases the draft or plan was first adopted by Congress, before being sent to our ministers abroad for negotiation with the other contracting party. Mention has already been made of the advanced state of international law assumed by American statesmen as indicated in the French treaty of commerce of 1778, and the same characteristic marks all the other commercial treatiesgreater guarantees and privileges to commerce, the recognition of a genuine neutrality, an effort to alleviate the horrors of war, and a restraint upon its distinctive propensities. That the old nations of Europe were willing at the instance of this infant republic to consecrate these advanced principles in treaties was high praise for the statesmen of our Revolutionary period. Nor is all the credit to be given to our representatives abroad,-Franklin, Adams, Jay, and Jefferson. A share of the praise is due likewise to the controlling members of the Continental Congress."

CHAPTER VI.

PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF 1787 RELATING TO TREATIES AND THE TREATY-MAKING POWER OF

§ 163. Critical period of American history. The six years intervening between the conclusion in 1782, of the Provisional Articles which were afterwards incorporated into the Definitive Treaty of Peace by which the war of the Revolution was terminated and Great Britain recognized the independence of the United States,' and the adoption of the Constitution in 1788, has been fitly described by one of our greatest historians as the critical period of American history.?

§ 164. Retrograde from unity.-There can be no question that after the independence which the colonies had asserted by the Declaration of Independence in 1776 had become an accomplished fact in 1783, and the States, as they were described in the Definitive Treaty of Peace, had felt their "sovereignty" in a practical manner, there was an apparent diminution in the desire for unity which had played such an important part in the assertion of independence. This was the natural result of the removal of the chief cause which had led to their united action; for, after they had achieved their independence, the States did not feel the pressing need of united protection against a common foe; local feelings, therefore, revived, and the great powers which had been exercised by the Continental Congress during the war period

§ 163.

1 For dates and titles of these treaties see § 158, note, p. 275, ante.

2 Professor John Fiske, see note under next section.

were not only more closely scrutinized, but each State desired to extend its own sovereignty as far as possible, and also to limit the supervising or central powers of the Federal Government to the narrowest possible limits.1

One of the evidences of the lack of power in the Central Government of the Confederation was its inability to enforce treaty stipulations which it had entered into with foreign powers, especially those relating to the collection of debts due to British subjects.2 The defiant attitude of the States in disregarding these national obligations was one of the prime causes which led to strengthening the Central Government and placing it in the position not only of making, but also of carrying out treaty obligations. The unfortunate results of this attitude of the States are shown by the extracts from the records of Congress which are quoted in the notes to this section.3

§ 164.

1 Critical Period of American History, by Professor John Fiske; History of the People of the United

States, by Professor John Bach Mc-
Master, vol. I, chaps. III and IV.
2 See § 156, pp. 268, et seq., ante.

3 CONGRESS OF THE CONFEDERATION AND VIOLATIONS BY STATES OF TREATY STIPULATIONS.

"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, omitting 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 upon them." Journals of Congress, ed. 1801, vol. 12, p. 24, March 21, 1787.

On the previous April 13th, the United States, in Congress assembled, unanimously recommended the several States to enact identical laws of the following frame: "Whereas certain laws or statutes made and passed in some of the United States, are regarded and complained of as repugnant to the treaty of peace with Great Britain, by reason whereof not only the good faith of the United States pledged by that treaty, has been drawn into question, but their essential interests under that treaty greatly affected. And whereas justice to Great Britain, as well as regard to the honor and interests of the United States, require that the said treaty be faithfully executed, and that all obstacles thereto, and particularly such as do or may be construed to proceed from the laws of this state, be effectually removed.

"Therefore,

LIB

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