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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
'Lodge's Federalist, pp. 400, 465.
* Art. II, Sec. 2.
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
"Writings, (Ford ed.), vol. xi, p. 417. * Executive Journal, vol. i, p. 19.
'Toid., 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.s
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.
boundary, the President said that he thought it advisable to postpone any negotiations on the subject until he had received its advice as to the propositions most proper to be offered on the part of the United States.' On May 8, 1792, the Senate was asked if it would approve a convention with Algiers should it be concluded according to the conditions indicated. The Senate agreed to approve such a convention but at the same time specified the conditions.” Jefferson, as Secretary of State, in an oral opinion on March 11, and a written communication on April 1, 1792, had advised the President that, since the subsequent approbation of the Senate was necessary to validate a treaty, it should, if the case admitted, be consulted before the opening of the negotiations.3 In communicating, January I, 1792, to the Senate the nominations of William Carmichael, chargé d'affaires at Madrid, and William Short, chargé d'affaires at Paris, as commissioners plenipotentiary to negotiate a convention with Spain relative to the navigation of the Mississippi, explanations were made by the President, both as to the nature of the mission and the reasons for opening the negotiations at Madrid. Subsequently to the Senate's confirmation of the commissioners, the Executive decided to extend the negotiations to commercial matters. Jefferson, in submitting to the President instructions for this purpose, observed that they ought to be laid before the Senate to determine whether it would advise and consent that a treaty be entered into conformably thereto. Accordingly, a general outline of 'Executive Journal, vol. i, pp. 36-7.
' Ibid., pp. 122–3. 'MSS. Washington Papers, vol. xxi, p.91; Jefferson Papers, series 4. vol. ii, no. 18. • Executive Journal, vol. I, pp. 95, 96.
Ibid., p. 99. • Writings of Jefferson (Ford ed.), vol. v, p. 442.
the instructions was communicated to the Senate March 7 for “advice and consent to the extension of the powers.”: On March 16, the Senate (two-thirds of the members present concurring) approved the extension, promising that it would advise and consent to the ratification of a treaty negotiated conformably thereto.” Formal instructions, elaborated upon these general principles, were, under date of March 18, prepared by Jefferson.) The negotiations, as continued and consummated by Thomas Pinckney, whose nomination had been confirmed by the Senate with knowledge of the nature of the mission, were conducted under the authority of these instructions, together with one subsequently given relative to spoliation claims. In the negotiations leading up to the treaty with Great Britain of November 19, 1794, a different policy was pursued by the Executive. The message of April 16, 1794, communicating to the Senate the nomimation of John Jay as envoy extraordinary to Great Britain, contained only a general statement of the serious aspect of our relations with that country, and was not accompanied by his instructions, nor were they subsequently submitted. This was not overlooked by the Senate, as is evidenced by an unsuccessful motion introduced April 17, prior to Jay's confirmation on April 19, requesting the President to inform the Senate “ of the whole business with which the proposed envoy” was to be charged. Gouverneur Morris had in October, 1789, been commissioned by the President, without confirmation by the Senate, in a private and unofficial
· Executive Journal, vol. I, p. 106.
* Ibid., p. 115. * Am. State Papers For. Rel., vol. i, p. 252. * Ibid., p. 533, Executive Journal, vol. i, pp. 163-4. Executive Journal, vol. i, p. 150.
Ibid., p. 151.