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of two-thirds of the whole number of senators, and that no treaty ceding or compromising in any manner the rights or claims of the United States to territory, fisheries in the American seas, or the navigation of American rivers, should be concluded, except in the most urgent and extreme necessity, and then only with the concurrence of three-fourths of all the members of both houses respectively.' The first convention in North Carolina which, proceeding on the principle that the modifications should precede the ratification, adjourned in August, 1788, without having definitively acted on the Constitution, recommended the same amendment, as also another which provided that no treaty which might be directly opposed to existing laws of Congress should be valid until such laws had been repealed or made conformable to the treaty, and that no treaty should be valid which was contradictory to the Constitution of the United States." The conference that met at Harrisburg, subsequently to the ratification by Pennsylvania, petitioned the State legislature to secure certain modifications of the Constitution, one of which should provide that no treaty thereafter concluded should be deemed or construed to alter or affect any law of the United States or of any State until assented to by the House of Representatives.3

Although much is found in the literature of the period on the clauses of the Constitution relating to the treatymaking power, nothing excels the expositions of the 'Ibid., pp. 271, 274.

1 Doc. Hist., vol. ii, p. 382.

8 Elliot's Debates, vol. ii, p. 546.

'See Address of David Ramsay to his fellow countrymen of South Carolina, Ford's Pamphlets on the Constitution, p. 376; R. H. Lee in the Letters of a Federal Farmer, ibid., p. 312; George Mason's Objections, ibid., p. 331; James Iredell in the State Gazette of North Carolina, ibid., p. 355.

Federalist. Jay, in No. 64, after calling attention to the peculiar fitness of the Senate to co-operate with the President in this capacity writes: "It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite." "The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest." He intimates, however, that the President might proceed independently in "those preparatory and auxiliary measures," important only "to facilitate the attainment of the objects of the negotiation." In reply to those who "profess to believe, that treaties like acts of assembly, should be repealable at pleasure," he says: "This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear." "They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently that as the consent of both was essential to their formation at first so must it ever afterwards be to alter or cancel them." In No. 75 Hamilton discusses the peculiar nature of the treaty-making power as distinguished from the executive and legislative powers. "It relates neither to the execution of the subsisting laws, nor to the sanction of new ones." "Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith." Qualities "indispensable in the management of foreign negotiations, point out the Executive as the most fit

agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them." As to the co-operation of the House, he observes: "Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous." So also "The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty" would be a source of great inconvenience and expense.'

IV. UNDER THE CONSTITUTION

I THE NEGOTIATION

The President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."

In reply to the committee, appointed by the Senate August 3, 1789, to confer with the President on the method of communication between the Executive and the Senate respecting treaties and nominations, President Washington suggested that "In all matters respecting treaties, oral communications seem indispensably necessary, because in these a variety of matters are contained, all of which not only require consideration, but some may undergo much discussion, to do which by written. 'Art. II, Sec. 2.

'Lodge's Federalist, pp. 400, 465.

communications would be tedious without being satisfactory." The report of the committee, based upon this suggestion, resulted in the adoption by the Senate, August 21, of a rule regulating the manner in which the President should meet the Senate, either in the Senate chamber or in such other place as it might be convened by him. The rule had just been adopted when a message was received announcing the President's intention to meet the Senate the next day "to advise with them on the terms of the treaty to be negotiated with the southern Indians." Following also the practice under the Articles of Confederation of securing prior to the negotiation of Indian treaties an appropriation to defray the necessary expense, President Washington had, on August 7, suggested by special message to both houses the necessity of negotiating with the Indians in the southern district, and the expediency of appointing commissioners for that purpose. The House bill making the appropriation was approved August 20. According to the notification, the President, accompanied by General Knox, who, although not a cabinet officer at the time, was acquainted with the business and prepared to answer questions, appeared in the Senate chamber. After listening to a short paper containing a few explanations, the Senate was called upon to give its advice by answering yes or no to seven questions. This it seemed unwilling to do without having first examined the articles. To a motion made by Robert Morris, to refer the papers to a special committee, a Senator well objected that "No council

1 Writings, (Ford ed.), vol. xi, p. 417. 'Executive Journal, vol. i, p. 19.

'Ibid., p. 20.

'I, Annals of Congress, pp. 59, 63, 65, 711; II, p. 2216.

'Executive Journal, vol. i, pp. 20-23.

ever committed anything." The President added that, while he had no objection to a postponement, he did not understand "the matter of commitment," that it would defeat every purpose of his meeting the Senate.' The questions were accordingly postponed until Monday, at which time they were settled by the Executive and the Senate. The latter maintained its co-ordinate authority by a partial consent to the propositions."

Although President Washington did not again meet the Senate in person to ask its advice, he continued to consult it by message prior to the opening of negotiations. In special messages of August 4, 1790, August 11, 1790, January 18, 1792, and March 26, 1792, he asked advice as to the conclusion of treaties with certain Indian tribes; and the advice and consent of the Senate was in each case given to the conclusion of the treaty in accordance with the articles submitted. In a meeting of the heads of the departments, February 25, 1793, the President was unanimously advised not to consult the Senate previous to the negotiating of a proposed stipulation with the Indians north of the Ohio.5

In a communication to the Senate, on February 9, 1790, concerning the differences that had arisen between. the United States and Great Britain over the northeastern

'Maclay's Sketches of Debate in the First Senate of the United States, (G. W. Harris ed.), pp. 122-6.

'Maclay in speaking of the withdrawal of the President on Aug. 22 with a "discontented air" says: "Had it been any other than the man who I wish to regard as the first character in the world I would have said with sullen dignity," p. 125.

'Rule XXXVI of the Standing Rules of the Senate still provides the method by which the President shall meet the Senate in Executive session.

'Executive Journal, vol. i, pp. 55, 60, 98, 116.

'MSS. Letters to Washington, vol. cxvi, p. 252.

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