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Home , Treaty of Paris (1763), Treaty of Paris (1783), Treaty of Paris (1810)

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1983 The rT eaty That Made America a World Power William F. Swindler William & Mary Law School

Repository Citation Swindler, William F., "The rT eaty That Made America a World Power" (1983). Popular Media. 261. https://scholarship.law.wm.edu/popular_media/261

Copyright c 1983 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media , jl

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The Trealy That Made America a World Power Concord-demanded virtually all of the By William F. Swindler energies of the Founding Fathers.

The Treaty of , The French maneuver signed 200 THE extended bicentennial period from A preliminary treaty had been con- years ago 1976 to 1987-89 is highlighted by at least cluded in Paris the previous November this month, recognized two developments. The first occurred and ratified by Congress on April 15, the as a on March I, 1781, when the first instru- 1783. These articles, as their text made ment of national government, the Arti- clear, were "to be inserted in, and to nation and gave rise cles of Confederation, went into effect. constitute, the treaty of peace," but the to our unusual (See "Our First Constitution: The Arti- formal instrument was not to be con- cles of Confederation," ABA Journal, cluded "until terms . . . shall be agreed constitutional provision February 1981, page 166.) The second upon between Great Britain and on treaties. was the signed Sept. 3, ." 1783, which gave the formal sanction of The maneuverings for advantage of international law to the Declaration of the French negotiators, particularly the Independence. minister of state, le comte de Ver- The treaty of 1783 was an essential gennes, had dragged on for almost a step toward the Constitution itself. In year. The American representatives in enrolling the fledgling American govern- Paris-, , ment into the society of nations, the and -had diffi- treaty formally vested the United States culties enough with their British coun- under the Articles of Confederation with terparts, who finally left details to a all the responsibilities that those nations single commissioner, Robert Oswald. assumed and expected of one another. Laurens was a prisoner in the Tower of Whether the tentative republic would be London when peace conversations capable of discharging these respon- began, having been captured on the high sibilities was, at the time, an open ques- seas en route to Holland in 1780. He tion. arrived in Paris only two days before the Already the shaky internal authority preliminary articles were agreed to. nominally established by the articles was being subjected to severe strains as Meet the the necessities of defense against hostile The four American negotiators were armies now were removed. The equally perhaps the most experienced of all their pressing necessities of establishing a countrymen in foreign affairs. complete organization of state govern- In 1778 Adams arrived in France with ments to replace the former colonial his 10-year-old son, John Quincy, as governments-a matter dealt with ad commissioner to the Bourbon court, on hoc or provisionally since Lexington and the heels of French diplomatic recogni-

Artist Chuck Slack visualizes Benjamin Franklin, John Jay, Henry Laurens and John Adams, who represented the incipient United States of America in negotiating the Treaty of Paris.

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September, 1983 a Volume 69 1247 tion of the independence of the Amer- came in 1778. The commercial treaty from the British, and perhaps ican states. He took up residence in the with the Netherlands came in 1782, and Gibraltar as well. Finally, there was the same house with Benjamin Franklin, another with in 1783 before the Netherlands, which had gone to war who had spent a number of years in settlement in Paris. with England in 1780 for its unneutral England as a representative of Pennsyl- Congress also would conclude several American sympathies and its commer- vania and several other colonies and treaties with Indian nations and other cial treaty with the United States in who had held a royal commission as continental powers before it was suc- 1782. An Anglo-Dutch preliminary postmaster general for . ceeded by the government created by treaty of peace was signed in Paris on Franklin had gone to Paris as one of the Constitution. It is significant that Sept. 2, the day before the definitive the members of the wartime commission Article VI of that instrument- "This treaty with the other powers. of the , and his Constitution, and the laws of the United The new American nation was thus enjoyment of the court life there, where States which shall be made in pursuance getting its feet wet in international poli- he was a popular favorite of many of the thereof; and all treaties made, or which' tics as well as international law. The men in high office and an even greater shall be made, under the authority of the Anglo-American preliminary agreement favorite of the women of the court, United States, shall be the supreme law of 1782, in fact, had contained a secret made him a less than critical observer of of the land"-recognized and continued provision that if Florida remained in French intrigue. He may have influ- in force these agreements made by the British hands, the southern border of the enced Adams unduly, before the future Continental Congress. independent United States would be at second president learned enough to the latitude of present-day Vicksburg. make his own judgments. In any case, International politicking Although this provision was not Adams had learned enough by the clos- Ending the state of war was a compli- included in the 1783 treaty because ing years of the war to keep some of his Spain got Florida as a trade-off for aban- judgments to himself, as in opening the doning its efforts to get Gibraltar, this prolonged negotiations for a Dutch com- essentially converted the Anglo-His- mercial treaty. panic disputes into a foreign relations John Jay, the former chief justice of The Gallic imagination problem between Spain and the new and future chief justice of the would not overlook nation, not to be settled fully until 1819 United States, had served in 1779 as a when the United States acquired Florida member of a secret committee of corre- the fact that 1783 from Spain by treaty. spondence, appointed by the Continen- marked the anniversary There were other important issues left tal Congress to contact potential Eur- unsettled by the 1783 instrument. Most opean allies. The following year he had of another peace pressing was the question of pre-Revolu- been sent to Spain in the hope of gaining treaty depriving her tionary debts owed British creditors by diplomatic recognition. The best Jay of major possessions. erstwhile colonials, which at last was was able to do was to secure some disposed of by Jay's Treaty of 1795. In secret supply of materiel and money for the same year Pinckney's Treaty (the the American government. Treaty of San Lorenzo) settled other Laurens, who like Franklin had spent Spanish questions, such as the status of much of his youth as a colonial in cated business. It involved directly or "" (the Gulf Coast near England, was a Charleston merchant indirectly five different countries. The ) and the right of free navi- whose export-import business had United States and Great Britain were gation on the . developed many European commercial the principal high contracting parties. contacts. His diplomatic mission to Hol- But France-the Gallic imagination Questions of quorum land, to assist Adams in trying for a would not overlook the fact that 1783 Ratification of the Treaty of Paris was Dutch loan, had resulted in his capture marked the 20th anniversary of another delayed for a number of months, largely on the high seas by the British and a peace treaty signed in Paris that because of the slowness of trans-Atlan- British declaration of war against the deprived her of her major North Amer- tic communications and the fact that Netherlands. ican possessions in at the end of most delegates to the Continental Con- the -had sepa- gress had gone home indefinitely to par- It wasn't the first rate matters to settle with Britain. ticipate in state affairs. On Jan. 3, 1784, Although the definitive treaty, when France intended to maintain a sphere of a committee including Jefferson, finally ratified in London and in the influence in the newly independent Elbridge Gerry and others reported the United States, formally removed all United States and see to it that postwar lack of a quorum. Only seven of the 13 legal question of the legitimacy of the trade agreements did not freeze her out states were represented and "these dif- American claims to , it was of commercial advantages as the Amer- fer in opinion." Some pointed to the not the only international agreement ican resources were developed. stipulation in the Articles of Con- negotiated by the Continental Congress. French imperial politics had led her to federation that nine states were to be The military alliance with France and an alliance with Spain, with France hav- represented when Congress ratified a the concurrent treaty of commerce both ing promised assistance in recovering treaty, while others argued that since

1248 American Bar Association Journal nine had been present the previous win- Simplistic isn't good tive. In Virginia, for example, the "inter- ter when the provisional treaty had been The seedbed for subsequent diplo- regnum" government created a state ratified and had instructed the American matic and legal problems was the claims office, to which local debtors commission to sign the final version, fourth, fifth and sixth articles. The brought their written evidence of lia- seven now was a sufficient quorum. fourth simply (indeed, all too simply) bilities. The state office issued certifi- The strict constructionists won out, states: "It is agreed that creditors on cates of discharge and gathered in the however, and it was resolved that "the either side shall meet with no lawful documents presented, interposing the states now present in Congress do impediment to the recovery of the full doctrine of sovereign immunity. declare their approbation . . . so far as value in sterling money of all bona fide Postwar suits for recovery of these they have power" and proposed that the debts heretofore contracted." Article 5 prewar debts were brought in the new commissioners seek an extension of committed Congress to "earnestly rec- state courts when these eventually the deadline for ratification until at least ommend" to the individual states that opened, and there the immunity of the nine states could be represented. confiscated British property be state was entered as a plea in bar. So Things cleared up more quickly than restored, and Article 6 pledged that no long as the only available forum re- expected, however. On Jan. 14 a quorum future confiscations would be made. mained in these states, creditors were of nine had been mustered, and final These prepared the way for the early unable to obtain judgments against ratification was forwarded to Paris on constitutional cases of Ware v. Hylton, 3 either the original debtors or the state. the heels of the earlier material. Con- Dall. 199, in 1796 and, somewhat indi- Marshall and several other lawyers gress then resumed its record of spo- rectly, Martin v. Hunter's Lessee, I received so much business in defending radic attendance of delegates, with a kind Wheat. 304 (1816). as an against the creditors that they had a of executive committee of the states set attorney lost his only case before the standardized, printed form to be filled in up to perform caretaker functions. This when entering the defense plea. committee on Aug. 2, 1784, received offi- cial notice from Franklin, now minister Constitution to the rescue plenipotentiary to the Court of Versailles, Thus matters stood until the Constitu- that the final formal exchange of certified tion's Article III went into effect and copies of ratification had been made the created a system of federal courts in previous May 12. which a new action could be initiated. Under the treaty clause of Article VI, A grandiloquent preamble Hylton was again made defendant in a The treaty was a concise general suit brought by representatives of the instrument of 10 articles, although its assignee of the original creditor, now preamble was grandiloquent enough, long deceased. The Supreme Court of describing the parties of the first and the United States held that Article 4 of second parts, respectively, as "the most the Treaty of Paris retroactively nul- serene and most potent prince George lified the Virginia legislation, invalidated the Third, King of Great-Britain, France token payments made by the original John Marshall and Ireland, defender of the faith, duke debtors in return for discharge, revived of Brunswick and Lunenburg, arch-trea- Supreme Court when he represented the debt and vested a right of recovery surer and prince elector of the Holy Daniel Hylton, a Richmond merchant in the claimants notwithstanding any Roman empire," and, in plain republican whose name also figured in the first contrary state law. terms, the United States of America. major tax decision, Hylton v. United The frustration of the fourth (and fifth The first two articles recognized the States, 3 Dall. 171 (1796), and as chiefjus- and sixth) articles of the treaty in the independence of each of the 13 states by tice he recused himself in the original state courts had led to the unique lan- name and set out a detailed geographic appeal of the Hunter case when it came up guage of Article VI of the Constitution, definition of the boundaries of the new as Fairfax'sDevisee F. Hunter's Lessee. which was first construed in the Hylton nation, while the third professed to By then, after prolonged negotiations, a case. Although the Articles of Con- ensure the right of American fishing off special debts claims commission finally federation vested sovereign authority in the Banks. The seventh had settled the creditors' rights. Congress to negotiate treaties, the en- made the 1781 cease-fire permanent and The essential difficulty in discharging forcement of specific treaty undertak- stipulated that remaining British troops the undertaking in Article 4 arose from ings depended on the state courts in the were to be withdrawn from points within the practice of several of the Revolution- absence of a national court system. Brit the territory defined in Article 2. The ary state governments of sequestering ish creditors, unsuccessful in the state eighth article proclaimed freedom of the debts owed to overseas creditors, courts. complained to John Jay, Amer- navigation on the Mississippi to sometimes offsetting them with liqui- ican minister of foreign affairs under the nationals of both countries, the ninth dated property seized from departed Articles of Confederation, who finally provided for mutual restitutions and loyalists or other enemy aliens and urged Congress in 1786 to send the usual assurances and the 10th set out the sched- sometimes in effect simply extinguishing precatory communication to the states. ule for ratification. them by an assumed sovereign preroga- in this case urging them to repeal all

September, 1983 9 Volume 69 1249 laws repugnant to the treaty. This com- in the courts of that country." law of the land only when made in pur- munication was issued in April 1787, on suance of the Constitution, while the very eve of the Philadelphia Con- Treaties and migratory birds treaties are declared to be so when made vention. Some states complied; others While most treaties ratified by the under the authority of the United did not. Because of this, the draftsmen Senate, even with what appear to be States. . . .We do not mean to imply of the Constitution transferred jurisdic- self-executing provisions, then are that there are no qualifications to the tion of subject matter of "all treaties implemented by enacting domestic stat- treaty-making power; but they must be [already] made" to the national govern- utes, treaties in effect do introduce inter- ascertained in a different way. It is ment in the . national law as a source of national obvious that there may be matters of the power complementary to the other sharpest exigency for the national well- Treaty clause conceptualized powers vested by the Constitution. The being that an act of Congress could not The experience with the 1783 treaty, somewhat foirtuitous result of the expe- deal with but that a treaty followed by therefore, directly affected the con- rience with the pre-Article VI Treaty of such an act could, and it is not lightly to ceptual language of the Constitution. Paris has provided the United States in be assumed that, in matters requiring Treaties under certain circumstances its subsequent history with an option for national action, 'a power which must not only could be self-executing when implementing national policy, which on belong to and somewhere reside in every ratified by the Senate but become the appropriate occasions has been exer- civilized government' is not to be rule of decision in municipal law. The cised. found ... Supreme Court on two important occa- The best-known instance is the 1916 "Here a national interest of very sions recognized this consequence of the Migratory Bird Treaty between the nearly the first magnitude is involved. It language in Article VI. can be protected only by national action Chief Justice Marshall in 1829 in Fos- in concert with that of another national ter v. Neilson, 2 Pet. 253. made the first power. The subject matter is only tran- interpretation: sitorily within the state and has no per- "A treaty is, in its nature, a contract manent habitat there. But for the treaty between two nations, not a legislative and the statute there soon might be no act. It does not generally effect, of itself, birds for any powers to deal with. We the object to be accomplished; espec- see nothing in the Constitution that ially, so far as its operation is infrater- compels the government to sit by ritorial [sic]; but is carried into while . . .the protectors of our forests execution by the sovereign power of the and our crops are destroyed. respective parties to the instrument. In the United States, a different principle is Putting a gloss on Holmes established. Our Constitution declares a While later Congresses and Supreme treaty to be the law of the land. It is, Courts have glossed Holmes' doctrine consequently, to be regarded in courts of with assurances that the treaty power justice as equivalent to an act of the leg- may not be invoked in contravention of islature, whenever it operates of itself, any explicit limitation contained in the without the aid of any legislative provi- United States and Great Britain, acting Constitution itself, the ill-conceived sion. But when the terms of the stipula- on behalf of Canada. Two years after the effort to amend Article VI through the tion import a contract-when either of treaty's ratification, Congress passed an so-called Bricker proposal of the 1950s the parties engages to perform a particu- implementing act authorizing the De- was defeated. The fact is that treaty lar act, the treaty addresses itself to the partment of Agriculture to issue appro- provisions, whether self-executing or political, not the judicial, department; priate regulations to carry out the treaty executory and although deriving original and the legislature must execute the con- obligations to protect migratory birds in validity from international rather than tract before it can become a rule for the passage between Canada and the Amer- constitutional law, are enforceable only court." ican states. Two years later in terms of their consonance with the A variant on this was given in 1884 by sought a bill in equity to enjoin federal Constitution. This is one of the ultimate Justice Samuel F. Miller in the Head game wardens from acting under the contributions of the 200-year-old Treaty Money Cases, 112 U.S. 589, when he regulations, alleging that the treaty of Paris. -imd declared: "A treaty is primarily a com- infringed reserved state powers under pact between independent nations ... the 10th Amendment. (William F. Swindler is John Marshall But [it] may also contain provisions In Missouri v.Holland, 252 U.S. 416 professor of law emeritus at the Col- which confer certain rights upon the cit- (1920), Justice Oliver Wendell Holmes, lege of William and Mary. He is com- izens or subjects of one of the nations speaking for a seven-two majority of the pleting a manuscript on the Continen- residing in the territorial limits of the Supreme Court, upheld the district tat Congress and the events of the other, which partake of the nature of court's dismissal of the petition, declar- Revolution and the Articles of Con- municipal law, and which are capable of ing: federation leading to the Constitutional enforcement as between private parties "Acts of Congress are the supreme Convention.)

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