But to return to our Congress at Annapolis, the definitive treaty of peace which had been signed at Paris on the 3d. of Sep.
1783. and received here, could not be ratified without a House of 9.
states. On the 23d. of Dec. therefore we addressed letters to the several governors, stating the receipt of the definitive treaty, that 7 states only were in attendance, while 9. were necessary to its ratification, and urging them to press on their delegates the necessity of their immediate attendance. And on the 26th. to save time I moved that the Agent of Marine (Robert Morris) should be instructed to have ready a vessel at this place, at N. York, & at some Eastern port, to carry over the ratification of the treaty when agreed to. It met the general sense of the house, but was opposed by Dr. Lee on the ground of expense which it would authorize the agent to incur for us; and he said it would be better to ratify at once &send on the ratification. Some members had before suggested that 7states were competent to the ratification. My motion was therefore postponed and another brought forward by Mr. Read of S. C. for an immediate ratification. This was debated the 26th. and 27th. Reed, Lee, [Hugh] Williamson & Jeremiah Chace urged that ratification was a mere matter of form, that the treaty was conclusive from the moment it was signed by the ministers; that although the Confederation requires the assent of 9. _states_ to _enter into_ a treaty, yet that it's conclusion could not be called _entrance into it_; that supposing 9. states requisite, it would be in the power of 5. states to keep us always at war; that 9. states had virtually authorized the ratifion having ratified the provisional treaty, and instructed their ministers to agree to a definitive one in the same terms, and the present one was in fact substantially and almost verbatim the same;that there now remain but 67. days for the ratification, for it's passage across the Atlantic, and it's exchange; that there was no hope of our soon having 9. states present; in fact that this was the ultimate point of time to which we could venture to wait; that if the ratification was not in Paris by the time stipulated, the treaty would become void; that if ratified by 7 states, it would go under our seal without it's being known to Gr. Britain that only 7. had concurred; that it was a question of which they had no right to take cognizance, and we were only answerable for it to our constituents;that it was like the ratification which Gr. Britain had received from the Dutch by the negotiations of Sr. Wm. Temple.
On the contrary, it was argued by Monroe, Gerry, Howel, Ellery & myself that by the modern usage of Europe the ratification was considered as the act which gave validity to a treaty, until which it was not obligatory. (* 3) That the commission to the ministers reserved the ratification to Congress; that the treaty itself stipulated that it should be ratified; that it became a 2d. question who were competent to the ratification? That the Confederation expressly required 9 states to enter into any treaty; that, by this, that instrument must have intended that the assent of 9. states should be necessary as well to the _completion_ as to the _commencement_ of the treaty, it's object having been to guard the rights of the Union in all those important cases where 9. states are called for; that, by the contrary construction, 7 states, containing less than one third of our whole citizens, might rivet on us a treaty, commenced indeed under commission and instructions from 9.
states, but formed by the minister in express contradiction to such instructions, and in direct sacrifice of the interests of so great a majority; that the definitive treaty was admitted not to be a verbal copy of the provisional one, and whether the departures from it were of substance or not, was a question on which 9. states alone were competent to decide; that the circumstances of the ratification of the provisional articles by 9. states, the instructions to our ministers to form a definitive one by them, and their actual agreement in substance, do not render us competent to ratify in the present instance; if these circumstances are in themselves a ratification, nothing further is requisite than to give attested copies of them, in exchange for the British ratification; if they are not, we remain where we were, without a ratification by 9. states, and incompetent ourselves to ratify; that it was but 4. days since the seven states now present unanimously concurred in a resolution to be forwarded to the governors of the absent states, in which they stated as a cause for urging on their delegates, that 9. states were necessary to ratify the treaty; that in the case of the Dutch ratification, Gr. Britain had courted it, and therefore was glad to accept it as it was; that they knew our constitution, and would object to a ratification by 7. that if that circumstance was kept back, it would be known hereafter, & would give them ground to deny the validity of a ratification into which they should have been surprised and cheated, and it would be a dishonorable prostitution of our seal; that there is a hope of 9. states; that if the treaty would become null if not ratified in time, it would not be saved by an imperfect ratification; but that in fact it would not be null, and would be placed on better ground, going in unexceptionable form, tho'
