Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Volume 1

by Thomas Jefferson

The remissness of Congress, and their permanent session began to be a subject of uneasiness; and even some of the legislatures had recommended to them intermissions, and periodical sessions. As the Confederation had made no provision for a visible head of the government, during vacations of Congress, and such a one was necessary to superintend the executive business, to receive and communicate with foreign ministers and nations, and to assemble Congress on sudden and extraordinary emergencies, I proposed, early in April, the appointment of a committee, to be called the ‘Committee of the States,’ to consist of a member from each state, who should remain in session during the recess of Congress: that the functions of Congress should be divided into executive and legislative, the latter to be reserved, and the former, by a general resolution, to be delegated to that Committee. This proposition was afterwards agreed to; a Committee appointed who entered on duty on the subsequent adjournment of Congress, quarrelled very soon, split into two parties, abandoned their post, and left the government without any visible head, until the next meeting of Congress. We have since seen the same thing take place, in the Directory of France; and I believe it will for ever take place in any Executive consisting of a plurality. Our plan, best, I believe, combines wisdom and practicability, by providing a plurality of Counsellors, but a single Arbiter for ultimate decision. I was in France when we heard of this schism and separation of our Committee, and, speaking with Dr. Franklin of this singular disposition of men to quarrel, and divide into parties, he gave his sentiments, as usual, by way of Apologue. He mentioned the Eddystone light-house, in the British channel, as being built on a rock, in the mid-channel, totally inaccessible in winter, from the boisterous character of that sea, in that season; that, therefore, for the two keepers employed to keep up the lights, all provisions for the winter were necessarily carried to them in autumn, as they could never be visited again till the return of the milder season; that, on the first practicable day in the spring, a boat put off to them with fresh supplies. The boatmen met at the door one of the keepers, and accosted him with a ‘How goes it, friend?’ ‘Very well.’ ‘How is your companion?’ ‘I do not know.’ ‘Don’t know? Is not he here?’ ‘I can’t tell.’ ‘Have not you seen him to-day?’ ‘No.’ ‘When did you see him?’ ‘Not since last fall.’ ‘You have killed him?’ ‘Not I, indeed.’ They were about to lay hold of him, as having certainly murdered his companion; but he desired them to go up stairs and examine for themselves. They went up, and there found the other keeper. They had quarrelled, it seems, soon after being left there, had divided into two parties, assigned the cares below to one, and those above to the other, and had never spoken to, or seen, one another since.

But to return to our Congress at Annapolis. The definitive treaty of peace which had been signed at Paris on the 3rd of September, 1783, and received here, could not be ratified without a House of nine states. On the 23rd of December, therefore, we addressed letters to the several Governors, stating the receipt of the definitive treaty; that seven states only were in attendance, while nine 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 New York, and 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, and send on the ratification. Some members had before suggested, that seven states were competent to the ratification. My motion was therefore postponed, and another brought forward by Mr. Read, of South Carolina, for an immediate ratification. This was debated the 26th and 27th. Read, Lee, Williamson, and Jeremiah Chase 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 nine states to enter into a treaty, yet, that its conclusion could not be called the entrance into it; that supposing nine states requisite, it would be in the power of five states to keep us always at war; that nine states had virtually authorized the ratification, 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 sixty-seven days for the ratification, for its passage across the Atlantic, and its exchange; that there was no hope of our soon having nine 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 seven states, it would go under our seal, without its being known to Great Britain that only seven 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 Great Britain had received from the Dutch, by the negotiations of Sir William Temple.

On the contrary, it was argued by Monroe, Gerry, Howel, Ellery, and 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.* 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 second question, who were competent to the ratification? That the Confederation expressly required nine states to enter into any treaty; that, by this, that instrument must have intended, that the assent of nine states should be necessary, as well to the completion as to the commencement of the treaty, its object having been to guard the rights of the Union in all those important cases, where nine states are called for; that by the contrary construction, seven states, containing less than one third of our whole citizens, might rivet on us a treaty, commenced indeed under commission and instructions from nine 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 nine states alone were competent to decide; that the circumstances of the ratification of the provisional articles by nine 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 nine states, and incompetent ourselves to ratify; that it was but four 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 nine states were necessary to ratify the treaty; that in the case of the Dutch ratification, Great 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 seven; that, if that circumstance was kept back, it would be known hereafter, and 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 nine 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, though a few days too late, and rested on the small importance of this circumstance, and the physical impossibilities which had prevented a punctual compliance in point of time; that this would be approved by all nations, and by Great Britain herself, if not determined to renew the war, and if so determined, she would never want excuses, were this out of the way. Mr. Read gave notice, he should call for the yeas and nays; whereon those in opposition, prepared a resolution, expressing pointedly the reasons of their 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 North Carolina, would have been divided.

Our body was little numerous, but very contentious. Day after day was wasted on the most unimportant questions. A member, one of those afflicted with the morbid rage of debate, of an ardent mind, prompt imagination, and copious flow of words, who heard with impatience any logic which was not his own, sitting near me on some occasion of a trifling but wordy debate, asked me how I could sit in silence, hearing so much false reasoning, which a word should refute? I observed to him, that to refute indeed was easy, but to silence impossible; that in measures brought forward by myself, I took the laboring oar, as was incumbent on me; but that in general, I was willing to listen; that if every sound argument or objection was used by some one or other of the numerous debaters, it was enough; if not, I thought it sufficient to suggest the omission, without going into a repetition of what had been already said by others: that this was a waste and abuse of the time and patience of the House, which could not be justified. And I believe, that if the members of deliberate bodies were to observe this course generally, they would do in a day, what takes them a week; and it is really more questionable, than may at first be thought, whether Bonaparte’s dumb legislature, which said nothing, and did much, may not be preferable to one which talks much, and does nothing. I served with General Washington in the legislature of Virginia, before the revolution, and, during it, with Dr. Franklin in Congress. I never heard either of them speak ten minutes at a time, nor to any but the main point, which was to decide the question. They laid their shoulders to the great points, knowing that the little ones would follow of themselves. If the present Congress errs in too much talking, how can it be otherwise, in a body to which the people send one hundred and fifty lawyers, whose trade it is, to question every thing, yield nothing, and talk by the hour? That one hundred and fifty lawyers should do business together, ought not to be expected. But to return again to our subject.

Those, who thought seven states competent to the ratification, being very restless under the loss of their motion, I proposed, on the third of January, to meet them on middle ground, and therefore moved a resolution, which premised, that there were but seven states present, who were unanimous for the ratification, but that they differed in opinion on the question of competency; that those however in the negative, were unwilling, that any powers which it might be supposed they possessed, should remain unexercised for the restoration of peace, provided it could be done, saving their good faith, and without importing any opinion of Congress, that seven states were competent, and resolving that the treaty be ratified so far as they had power; that it should be transmitted to our ministers, with instructions to keep it uncommunicated; to endeavor to obtain three months longer for exchange of ratifications; that they should be informed, that so soon as nine states shall be present, a ratification by nine shall be sent them: if this should get to them before the ultimate point of time for exchange, they were to use it, and not the other; if not, they were to offer the act of the seven states in exchange, informing them the treaty had come to hand while Congress was not in session, that but seven states were as yet assembled, and these had unanimously concurred in the ratification. This was debated on the third and fourth; and on the fifth, a vessel being to sail for England, from this port, (Annapolis), the House directed the President to write to our ministers accordingly.

January 14. Delegates from Connecticut having attended yesterday, and another from South Carolina coming in this day, the treaty was ratified without a dissenting voice; and three instruments of ratification were ordered to be made out, one of which was sent by Colonel Harmer, another by Colonel Franks, and the third transmitted to the Agent of Marine, to be forwarded by any good opportunity.

Congress soon took up the consideration of their foreign relations. They deemed it necessary to get their commerce placed, with every nation, on a footing as favorable as that of other nations; and for this purpose, to propose to each a distinct treaty of commerce. This act too would amount to an acknowledgment, by each, of our independence, and of our reception into the fraternity of nations; which, although as possessing our station of right, and, in fact, we would not condescend to ask, we were not unwilling to furnish opportunities for receiving their friendly salutations and welcome. With France, the United Netherlands, and Sweden, we had already treaties of commerce; but commissions were given for those countries also, should any amendments be thought necessary. The other states to which treaties were to be proposed, were England, Hamburg, Saxony, Prussia, Denmark, Russia, Austria, Venice, Rome, Naples, Tuscany, Sardinia, Genoa, Spain, Portugal, the Porte, Algiers, Tripoli, Tunis, and Morocco.

On the 7th of May, Congress resolved that a Minister Plenipotentiary should be appointed, in addition to Mr. Adams and Dr. Franklin, for negotiating treaties of commerce with foreign nations, and I was elected to that duty. I accordingly left Annapolis on the 11th, took with me my eldest daughter; then at Philadelphia (the two others being too young for the voyage), and proceeded to Boston, in quest of a passage. While passing through the different states, I made a point of informing myself of the state of the commerce of each, went on to New Hampshire with the same view, and returned to Boston. Thence I sailed on the 5th of July, in the Ceres, a merchant ship of Mr. Nathaniel Tracy, bound to Cowes. He was himself a passenger, and, after a pleasant voyage of nineteen days, from land to land, we arrived at Cowes on the 26th. I was detained there a few days by the indisposition of my daughter. On the 30th we embarked for Havre, arrived there on the 31st, left it on the 3rd of August, and arrived at Paris on the 6th. I called immediately on Dr. Franklin, at Passy, communicated to him our charge, and we wrote to Mr. Adams, then at the Hague, to join us at Paris.

Before I had left America, that is to say, in the year 1781, 1 had received a letter from M. de Marbois, of the French legation in Philadelphia, informing me, he had been instructed by his government to obtain such statistical accounts of the different states of our Union, as might be useful for their information; and addressing to me a number of queries relative to the state of Virginia. I had always made it a practice, whenever an opportunity occurred of obtaining any information of our country, which might be of use to me in any station, public or private, to commit it to writing. These memoranda were on loose papers, bundled up without order, and difficult of recurrence, when I had occasion for a particular one. I thought this a good occasion to embody their substance, which I did in the order of Mr. Marbois’ queries, so as to answer his wish, and to arrange them for my own use. Some friends, to whom they were occasionally communicated, wished for copies; but their volume rendering this too laborious by hand, I proposed to get a few printed for their gratification. I was asked such a price however, as exceeded the importance of the object. On my arrival at Paris, I found it could be done for a fourth of what I had been asked here. I therefore corrected and enlarged them, and had two hundred copies printed, under the title of ‘Notes on Virginia.’ I gave a very few copies to some particular friends in Europe, and sent the rest to my friends in America. An European copy, by the death of the owner, got into the hands of a bookseller, who engaged its translation, and when ready for the press, communicated his intentions and manuscript to me, suggesting that I should correct it, without asking any other permission for the publication. I never had seen so wretched an attempt at translation. Interverted, abridged, mutilated, and often reversing the sense of the original, I found it a blotch of errors from beginning to end. I corrected some of the most material, and, in that form, it was printed in French. A London bookseller, on seeing the translation, requested me to permit him to print the English original. I thought it best to do so, to let the world see that it was not really so bad as the French translation had made it appear. And this is the true history of that publication.

Mr. Adams soon joined us at Paris, and our first employment was to prepare a general form, to be proposed to such nations as were disposed to treat with us. During the negotiations for peace with the British Commissioner, David Hartley, our Commissioners had proposed, on the suggestion of Dr. Franklin, to insert an article, exempting from capture by the public or private armed ships, of either belligerent, when at war, all merchant vessels and their cargoes, employed merely in carrying on the commerce between nations. It was refused by England, and unwisely, in my opinion. For, in the case of a war with us, their superior commerce places infinitely more at hazard on the ocean, than ours; and, as hawks abound in proportion to game, so our privateers would swarm, in proportion to the wealth exposed to their prize, while theirs would be few, for want of subjects of capture. We inserted this article in our form, with a provision against the molestation of fishermen, husbandmen, citizens unarmed, and following their occupations in unfortified places, for the humane treatment of prisoners of war, the abolition of contraband of war, which exposes merchant vessels to such vexatious and ruinous detentions and abuses; and for the principle of free bottoms, free goods.