Treaties - Creating a framework for making treaties

During and immediately following the war of independence, Benjamin Franklin, John Jay, John Adams, and the other American negotiators found their dealings with the French, Spanish, Dutch and other European powers extremely harrowing. Accordingly, they sought to avoid becoming involved in the intricacies of European politics. American leaders were determined to follow an independent foreign policy and to avoid all treaties other than those promoting (free) commerce and manufactures. In 1776, John Adams drew up a "Model Treaty," and it became the basis for the Americans' first treaties, the U.S.–French treaties signed by Benjamin Franklin and French Foreign Minister Charles Gravier, count of Vergennes, on 6 February 1778.

Negotiations between the American colonists and France began at Passy and resulted in two treaties. The first was a treaty of military alliance, the object of which was "to establish the liberty, sovereignty, and absolute and unlimited independence of the United States, in affairs of government as well as in affairs of commerce." It was asserted that the treaty "is based on the most perfect equality and reciprocity." The second treaty was a treaty of amity and commerce, under which each nation granted most-favored-nation status to the other.

On 4 May 1778, Congress unanimously ratified the two treaties, with the exception of a few secondary clauses. Under the Articles of Confederation, Congress had responsibility for conducting foreign policy, and every treaty had to be approved by at least nine of the thirteen states. Thus, through these first two treaties in American history, the United States was "introduced among the nations." It should be noted that these treaties dealt simultaneously with alliance, commerce, and the creation of international law, or "treaty law"—reciprocity of treatment, freedom of the seas, and the rights of neutral powers.

Peace negotiations between Britain and the Americans, already under way, proceeded apace following the American military success at Yorktown on 19 October 1781. The American delegates, Jay and Adams in particular, demanded more than independence; they also wanted the Newfoundland fisheries, the area west of the Alleghenies as far as the Mississippi River, the cession of Canada, and a war indemnity. Jay opened secret negotiations with England that led to British acceptance of the Mississippi frontier, of the Great Lakes frontier, and of a northeast boundary line at the St. Croix River. Although it was customary in the eighteenth and nineteenth centuries for the loser to pay the winner a cash indemnity for its costly victory, the British refused to consider paying an indemnity.

A treaty—considered as only preliminary, in conformity with European usage—was signed at Paris on 30 November 1782. France and Spain followed the American example and on 20 January 1783 also signed preliminary treaties with England. The definitive treaties were signed on 3 September 1783, at Paris, between the United States and England, and a few days later, at Versailles, between France and England.

The first article of the 1783 Treaty of Paris states: "His Britannic Majesty acknowledges the United States, viz. [here follows a list of the thirteen colonies], to be free, sovereign and Independent States; that he treats with them as such, and for himself, his Heirs and Successors, relinquishes all Claims to the Government Propriety and Territorial Rights." Thus, following France (1778) and the Netherlands (1782), England extended recognition to its former colony. At first, the new nation's dealings with other nations tended to lack direction. Each state wished to be consulted about international affairs. A consular convention signed with France in 1784 was not accepted by Congress until 1788, after the elimination of a clause treating each of the thirteen states as sovereign. And when commercial and territorial negotiations with Spain produced the Jay-Gardoqui Treaty in 1786, its ratification was blocked by the southern states, which felt that their interests had been neglected. However, commercial treaties were signed with Sweden in 1783 and Prussia in 1785, as well as a treaty of peace and friendship with Morocco in 1786.

The situation of drift persisted until the adoption of the Constitution. When the Constitution came into force in 1788, it brought with it a more precise definition of "treaty-making power." On the question of the role the Senate would play in the negotiation of treaties, the Founders did not wish to see the Senate play the dominant role in foreign affairs that had been the prerogative of the Roman Senate, whose exploits in this domain were known and appreciated by such cultivated leaders as Jefferson. From the beginning, George Washington established the tradition of presidential designation of negotiators. (In 1778 and 1782 negotiators had been chosen by Congress.) The president was required, however, to obtain the "advice and consent" of the Senate (with a twothirds majority) in the appointment of the secretary of state and of ambassadors.