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On the contrary, it was argued by Monroe, Gerry, Howel, Ellery and myself, that by the modern usage of Europe, the rati fication 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 ex pressly 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 commence ment 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, com menced indeed under commission and instructions from nine states, but formed by the minister in express contradiction to such instruc tions, 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 minis ters to form a definitive one by them, and their actual agreement in substance, do not render us competent to ratify *n 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 incom petent 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 surprized 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
- Vattel L. 2. 156. L. 4. 77. 1. Mably Droit D'Europe 86.
