Resolution Opposing Ratification of the Definitive Treaty by Less than Nine States
[27 December 1783]
Resolved that however earnestly and anxiously Congress wish to proceed to the ratification of the Definitive treaty, yet1 <Resolved that Congress> consisting at present of seven states only they ought not to undertake <the> that ratification <of the Definitive treaty> without proper explanations.
<1. Because the 9th. article of Confederation takes from them the power, by declaring that Congress shall not ‘enter into any treaty unless nine states assent to the same.’>
1. Because by the usage of modern nations it is now established that the ratification of a treaty by the sovereign power is the essential act which gives it validity; the signature of the ministers, notwithstanding their plenipotentiary commission, being understood as placing it, according to the phrase of the writers on this subject, sub spe rati, only, and as leaving to each sovereign an acknoleged right of rejection.
<2. Because it would be a precedent replete with danger to these states as under that on future occasions seven states in opposition to six may ratify treaties entered into by ministers in direct opposition to their instructions though such instructions should have had the concurrence of nine states.>
2. Because ratification being an act of so much energy and substance, the authority to perform it is reserved to nine states by those words in the ninth article of Confederation which declare that Congress ‘shall not enter into any treaty, unless nine states assent to the same.’
3. Because by the terms ‘enter 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 instr> commission and instructions from nine states, but concluded <by the ministers> in express contradiction to such instructions and in direct sacrifice of the<ir> 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 ins>, 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 <seven states have no authority to assume any circumstances where they are themselves> we remain where we are, without a ratification by 9. states and incompetent to ratify ourselves.2
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 unanimous3 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 and unauthorized, or, if attested to them by the seal of the states without apprising them that it has been expedited by order of seven states only, it will be a breach of faith in us, a prostitution of our seal, and 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, <we may yet hope the presence of 9. states in time> and two4 states only wanting to render us competent, we have the strongest presumptions that the measures taken by Congress will bring them forward in time for ratification and 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 honourable 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, <and> 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.
MS (DLC). Despite numerous alterations, noted below, this was obviously not a composition draft but a copy made by TJ from an earlier text. MS (DLC: Rives Papers). Both are entirely in TJ’s hand. MS in Rives Papers is a fair copy that is nearly identical with MS (DLC) as corrected, though see notes 2–4 below. It is the copy that TJ enclosed in his letter to Madison of 20 Feb. 1784. Neither MS bears a date, but the time of composition is precisely ascertainable: in paragraph 5 TJ unquestionably refers to a motion made by Williamson and seconded by him, 23 Dec. 1783, as having been agreed to four days earlier (JCC description begins Journals of the Continental Congress, 1774–1789, ed. W. C. Ford and others, Washington, 1904–1937 description ends , xxv, 836–7). In paragraph 7 he states that the time left before ratifications must be exchanged is 67 days. The deadline was 3 Mch. 1784 (six months from the date of signing on 3 Sep. 1783), which was 67 days from 27 Dec. 1783.
This resolution, though never introduced in Congress, is evidence that TJ was unwilling to compromise the integrity of the seal of the United States despite his great anxiety to have the Treaty ratified. It was drafted because of a movement among some of the delegates “to ratify the Definitive treaty by seven states only, and to impose this under the sanction of our seal (without letting our actual state appear) on the British court”; TJ informed Madison that “[Jacob] Reade, [Hugh] Williamson and [Arthur] Lee were violent for this, and gave notice that when the question should be put they would call the yeas and nays, and shew by whose fault the ratification of this important instrument should fail, if it should fail” (TJ to Madison, 20 Feb. 1784). In his “Autobiography” he gave a more detailed account of this rather bitter legislative skirmishing. He stated that, after the resolution of 23 Dec. had been adopted, urging the governors of various states to “press on their delegates the necessity of their immediate attendance” so that the requisite nine states could ratify, he had on 26 Dec. moved a resolution to direct the “Agent of Marine (Robert Morris) … to have ready a vessel at this place [Annapolis], at N. York, and at some Eastern port” so that the Treaty could be sent forward with all possible speed the moment ratification took place. This was opposed by Arthur Lee on the ground of expense, and, instead, Jacob Read brought forward a motion to ratify by seven states and send the Treaty on at once, whereupon “those in opposition prepared a resolution expressing pointedly the reasons of the dissent from his motion. It appearing however that his proposition could not be carried, it was thought better to make no entry at all. Massachusetts alone would have been for it; Rhode Island, Pennsylvania and Virginia against it. Delaware, Maryland, and N. Carolina would have been divided” (Ford, description begins Paul Leicester Ford, ed.,The Writings of Thomas Jefferson,“Letterpress Edition,” N.Y., 1892–1899 description ends i, 77–81). In his letter to Madison of 20 Feb. 1784, however, TJ stated that he himself had “prepared the … resolution” and that he had “informed them [Read and others] I would place that also on the journals with the yeas and nays, as a justification of those who oppose the proposition.” In these debates of 26 and 27 Dec. 1783, TJ was clearly the leader of the successful move to thwart the efforts of Read, Lee, and others, though in his “Autobiography” he stated that opposition to Read’s motion was “argued by Monroe, Gerry, Howel, Ellery and myself” (Ford, description begins Paul Leicester Ford, ed.,The Writings of Thomas Jefferson,“Letterpress Edition,” N.Y., 1892–1899 description ends I, 79). The present resolution and its background, therefore, provide an excellent example of TJ’s skill as a legislator: defending a principle, he was unyielding and at the same time successful in his tactics. Having won, he was ready to meet “on middle ground” those who had become “very restless under the loss of their motion”; hence on 3 Jan. 1784 he proposed a compromise motion that would protect the good faith of the nation and at the same time send forward a tentative “ratification” by seven states (see under that date). In these maneuvers he found himself linked with strange allies: David Howell and William Ellery of Rhode Island, who were as consistent in defending the rights of the individual states as TJ was in upholding the strength of the Confederation.
1. This introductory paragraph was an afterthought, and the alterations in what appears here as the second paragraph were made after it was prefixed to the MS.
2. This paragraph was also an after-thought and was written in the margin; the numbers of the succeeding paragraphs were accordingly changed in the MS by overwriting. MS in Rives Papers shows a slight modification in phrasing at this point, reading: “if they are not, then we remain where we were, without a ratification by nine states, or a competency to ratify by seven.”
3. This word is underscored in MS in Rives Papers.
4. Blank in MS (DLC); number supplied from MS in Rives Papers.