and the treaty of October 27, 1795, was drawn up accordingly. In the treaty with Great Britain of November 19, 1794, however, as has been the more usual practice, a clause was inserted specifying that it should be ratified by the President with the advice and consent of the Senate.

It

All motions and questions in the Senate upon a treaty, except to postpone indefinitely and to give the final advice and consent to the ratification, both of which require a two-thirds vote, are decided by a majori has not unfrequently happened that a treaty as amended has failed on the final vote to receive the requisite twothirds, but has been reconsidered, differently_amended, and agreed to. This causes no embarrassment so long as the reconsideration, as is usually the case, immediately follows. On March 16, 1860, the Senate rejected a treaty with Nicaragua, signed March 16, 1859, and the resolution of rejection was ordered to be placed before the President. Four days later the Senate requested the President to return the resolution. The request being complied with, it reconsidered its action and approved the treaty with amendments, June 26.3 The ratification of an agreement with Venezuela, signed January 14, 1859, for the settlement of the Aves Island claims was, with amendment, advised June 26, 1860, and a resolution to that effect laid before the President. On January 24, 1861, the Senate requested the return of the agreement for further consideration. In complying with the request, President Buchanan recommended the with

'Standing Rule XXXVII, clause 1.

'See Executive Journal, vol. ix, p. 312; vol. x, p. 144; vol. xiii, pp. 416, 423; vol. xxvii, p. 470.

Ibid., vol. xi, pp. 165, 218.

drawal of the amendment. The ratification was advised without amendment February 21, 1861.' On March 27, 1874, the Senate unanimously advised the ratification of an extradition convention with Belgium, signed March 19, and the resolution was ordered to be laid before the President. On April 8, subsequently to the ratification by the President on March 31, but prior to the exchange of ratifications on April 30, the Senate passed a resolution requesting the President to return the resolution of Mar 27, advising ratification. Two days later, however, the resolution of April 8 was rescinded. On June 12, 1884, the Senate voted unanimously against the accession of the United States to the international convention for the protection of industrial property, signed at Paris, March 20, 1883. The convention was returned to the Senate, February 2, 1885, by President Arthur, with a message recommending reconsideration, and on March 2, 1887, the Senate advised the ratification.3

2

The Senate sat with closed doors during its legislative as well as its executive sessions down to the end of the first session of the third Congress. A resolution adopted February 20, 1794, provided that the legislative proceedings, except in such cases as might in the opinion of the Senate require secrecy, should, after the end of that session, be with open doors. On December 22, 1800, a rule was adopted providing that all treaties laid before the Senate should be kept secret until the injunction of secrecy had been removed by a resolution. This obviated the necessity of voting a special injunction of

1Executive Journal, vol. xi, pp. 222, 254, 276.

'Ibid., vol. xix, pp. 281, 291.

8 Ibid., vol. xxiv, pp. 287, 455.

5

See also vol. xi, pp. 147, 153.

1 Executive Journal, vol. i, p. 361.

'Annals 3rd Congress, pp. 9, 47.

I

secrecy. According to Clause 3 of Rule XXXVI of the Standing Rules of the Senate "all treaties which may be laid before the Senate, and all remarks, votes, and proceedings thereon shall also be kept secret, until the Senate shall by their resolution, take off the injunction of secrecy, or unless the same shall be considered in open Executive session." This has been interpreted by the Committee on Rules as extending to each step in the consideration of treaties "including the fact of ratification." The injunction of secrecy is often renfoved from the treaty itself early in the proceedings. In the case of the recent Cuban reciprocity treaty, however, the Senate adjourned without removing the injunction, although it had given its qualified consent to the ratification. The treaty with the Senate amendments was made public by the President in a communication to Congress, November 10, 1903, prior to the removal by the Senate of the injunction of secrecy. The proposed fisheries treaty of February 15, 1888, was formally debated in open executive session, and appears to be the only treaty thus discussed, pursuant to a formal vote.a

As amendments to a treaty are made by the Senate in secret session, and no opportunity is given for mutual consideration, the other contracting party having had no part in the formation and wording of them, the Execu tive is often met, before proceeding to the exchange off ratifications, with requests for explanations as to their construction and the reasons for their insertion. An im

1 Manual, p. 31.

The difficulty which has frequently been experienced in keeping a treaty and the proceedings on it secret, was portended in the proceedings on the Jay treaty. Contrary to the special resolution of the Senate imposing an injunction of secrecy, a copy of the treaty was given out by Senator Mason of Virginia to be printed.

portant discussion as to the value of such explanations resulted from the signing of the protocol of May 26, 1848, explanatory of the amendments made by the Senate to the treaty of peace with Mexico. Ambrose H. Sevier and Nathan Clifford were commissioned, March 18, 1848, to exchange the ratifications of the treaty on the part of this government, in the form in which it had been amended by the Senate. An additional power was given to modify the method of payment as provided in Article XII as amended, specifically reserving to the President, with the advice and consent of the Senate, the ratification of such modification. In the accompanying instructions, the commissioners were carefully reminded that they were not sent to Mexico for the purpose of negotiating a new treaty; that the amendments adopted by the Senate could not be rejected or modified except by authority of that body; that, if it should become necessary, as it "most probably" would, to explain the reasons which had influenced the Senate in adopting the several amendments, such explanations were to be given so far as possible informally and verbally; and that the authority of the mission did not extend to the slightest modification of the provisions of the treaty. Subsequently to the approval of the treaty by the Mexican Congress, but prior to its ratification by the President of Mexico ad interim, the American commissioners were induced to sign in "the name of their government," the protocol making "suitable explanations in regard to the amendments." President Polk, considering the explanations to be in accordance with the treaty, did not deem it necessary to take any action on the subject, but treated them in the same manner as if they had been "verbally given." In February, 1849, the Mexican minister at Washington requested a definite

assurance that the United States would never give to the amended articles any other sense or interpretation than that expressed in the protocol. To this Mr. Clayton, Secretary of State, on April 11, replied in conclusion: "It is clear, therefore, that the protocol must be regarded merely as an instrument stating the opinions of the commissioners of the United States upon the amendments of the Senate, and utterly void if not approved by that body." In the Senate, on March 22, a resolution was introduced by Mr. Benton to the effect that the explanations of the commissioners duly commissioned to give them, ought to be held binding upon the United States. On the following day, Mr. Seward offered a resolution declaring the attached protocol to be no part of the treaty, not having been passed upon by the Senate. Neither resolution brought out an official expression of the Senate.

While the government that refuses to exchange the ratifications of a treaty with the United States until explanations are made, cannot plead ignorance of the constitutional provisions under which all treaty obligations must be contracted, yet such explanations, even if only tacitly approved by the Executive, although they cannot without the approval of the Senate modify or form part of the treaty and of the law of the land for judicial construction, are not without influence in a diplomatic controversy. Safe precedents have been established in this respect. The Senate in advising the ratification of the convention with France of September 30, 1800, struck out Article II. The First Consul in

1Sen. Doc. 1, pp. 69, 84, 85, 31st Cong., 1st Sess.; Ex. Doc. 50, pp. 9, 47, 48, 30th Cong., 2nd Sess.

2 Ex. Journal, vol. viii, pp. 94, 96.