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Subject Area: Political Theory
Topic: The American Revolution and Constitution

REPORT ON RATIFICATION OF TREATY 1 - Thomas Jefferson, The Works, vol. 4 (Notes on Virginia II, Correspondence 1782-1786) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 4.

Part of: The Works of Thomas Jefferson, 12 vols.

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REPORT ON RATIFICATION OF TREATY1

j. mss.

[December 27, 1783.]

Resolved that however earnestly and anxiously Congress wish to proceed to the ratification of the Definitive treaty, yet

Resolved that Congress consisting at present of seven states only they are ought not to undertake that ratification of the Definitive treaty without proper explanations.

1. Because the 9th article of Confederation takes from

1. Because by the usage of modern nations it is now established them the power, by declaring that Congress shall that the ratification of a treaty by a Sovereign power is the not enter into any treaty unless nine states assent essential act which gives it validity; the signature of the to the same ministers, notwithstanding their plenipotentiary commission, being understood as placing it, according to the phrase of the writers on this subject, subsparati only & as leaving to each sovereign an acknowledged right of rejection.

2. Because it would be a precedent replete with

2. Because ratification being an act of so much energy and danger to these states, as under that on future substance the authority to perform it is reserved to occasions seven states in opposition to six may nine States by those words in the ninth article of ratify treaties entered into by ministers in Confederation which declare that Congress shall not enter direct oppositions to their instructions though such instructions should have had the con- into any treaty unless nine States assent currence of nine states to the same?

3. Because by the terms “entering into a treaty” the Confederation must have intended that the assent of nine states should be necessary to the it’s completion as well as to the it’s commencement; of a treaty; it’s the object having been to guard the rights of the Union in all those important cases wherein it has required the assent of nine states; is required: whereas by admitting the contrary construction, seven states containing less than one third of the citizens of the Union, in opposition to six containing more than two thirds, may fasten on them a treaty, commenced indeed under the co instru commission & instructions from nine states but concluded by the negotiators in express contradiction to such instructions and in direct sacrifice of their interests of so great a majority.

4. Because if 7 states be incompetent generally to the ratification of a treaty they are not made competent in this particular instance by the circumstances of the ratification of the provisional articles by nine states and in the instructions to our ministers to form a definitive one by them and their actual agreement in substance; for either these circumstances are in themselves a ratification, or are not, if they are, nothing further is requisite than to give attested copies of them in exchange for the British ratification; if they are not, then we remain where we were, without a ratification of by 9 states, and incompetent to ratify ourselves. [The next line is illegible but erased.]

5. Because the seven states now present in Congress saw this question in the same point of view only 4 days ago when by their unanimous resolution they declared that the assent of nine states was requisite to ratify this treaty and urged this as a reason to hasten forward the absent states.

6. Because such a ratification would be rejected by the other contracting party as null & unauthorized, or, if attested to them by the seal of the states without apprising them that it has been accredited expedited by order of seven states only, it will be a breach of faith in us, a prostitution of our seal, & a future ground, when that circumstance shall become known, of denying the validity, of a ratification into which they shall have been so surprised.

7. Because there being still 67. days before the exchange of ratifications is requisite and states only wanting to render us competent, we have the we may yet hope the presence of 9 states in time strongest presumptions that the measures taken by Congress will bring them forward in time for ratification & for it’s passage across the Atlantic.

And 8. because should we be disappointed in this hope, the ratification will yet be placed on more honorable and defensible ground if made by 9. states as soon as so many shall be present, and then sent for exchange, urging in it’s support the small importance of an exchange of ratifications, a few days sooner or later, the actual impossibility of an earlier compliance, and that failures produced by circumstances not under the controul of the parties & either in points so immaterial can never affect the validity of a treaty as to call for no compensation, or in those which are material and admit of compensation, can never affect the validity of the treaty itself.

[1 ]There is no record in the Journals of Congress of the appointment of the committee who made this report. It was probably the same that later reported the form of ratification, consisting of Jefferson, Gerry, Ellery, Read, and Hawkins. See Jefferson’s Autobiography (i., 85–7). The report is printed from the rough draft in Jefferson’s handwriting. No copy can be found in the files of the Continental Congress papers, nor is it printed in Wharton’s Revolutionary Diplomatic Correspondence.