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 11, 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. • Writings of Jefferson (Ford ed.), vol. v, p. 442. Ibid., p. 99. the instructions was communicated to the Senate March 7 for "advice and consent to the extension of the powers." I 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.3 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 nomination 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 1 1 Executive Journal, vol. i, p. 106. Am. State Papers For. Rel., vol. i, p. 252. Ibid., p. 533, Executive Journal, vol. i, pp. 6 Executive Journal, vol. i, p. 150. Ibid., p. 115. 163-4. 6 Ibid., p. 151. character, to enter informally into conferences with the British government. His instructions, with explanations as to the nature and results of the mission, were subsequently, February 14, 1791, laid before the Senate. Although John Paul Jones and David Humphreys had been commissioned without confirmation by the Senate to negotiate with Algiers, the Senate in other ways approved of the negotiations. These first attempts of the Executive to follow out the evident intention of the framers of the Constitution, in consulting the Senate prior to the opening of negotiations, have been followed only in exceptional instances. President Van Buren in a message to the Senate, June 7, 1838, cautiously stated that he was about to open negotiations for a commercial treaty with Ecuador, and gave opportunity to the Senate for an expression of its opinion as to whether it expected to be consulted before the opening of such negotiations.3 President Polk submitted on June 10, 1846, the proposed Oregon treaty for the Senate's advice as to its conclusion. The conclusion of the treaty having been advised (two-thirds concurring), the treaty was signed June 15, and again submitted for consent to the ratification.* President Buchanan communicated with the Senate, February 21, 1861, in relation to the misunderstanding that had arisen as to the interpretation of the clause of the Oregon treaty defining the northwestern water boundary, and enquired whether the Senate would approve a treaty by which the controversy should be referred to arbitration. President Lincoln sanctioned this procedure of 'Executive Journal, vol. i, p. 73. Am. State Papers For. Rel., vol. i, P. 122. 'Ibid., pp. 290, 294. 'Executive Journal, vol. v, p. 119. Ibid., vol. xi, p. 279. his predecessor, and asked in a message of March 16, 1861, the further advice of the Senate. On December 17, 1861, the same President transmitted for its advice a draft of a convention, which he had proposed to the Mexican government, to guarantee the payment of claims urged by certain European powers against that government. President Johnson in a message of January 15, 1869, consulted the Senate as to the expediency of concluding with Great Britain a naturalization convention on the basis of a protocol signed at London, October 9, 1868.3 President Grant on receiving a dispatch from our minister resident in Honolulu relative to the annexation of the Hawaiian islands to the United States, transmitted it to the Senate, at the same time observing that "the views of the Senate if it should be deemed proper to express them would be very acceptable with reference to any future course which there might be a disposition to adopt." In a message of May 13, 1872, the President submitted an article proposed by the British government for removing the differences that had arisen in the proceedings of the Geneva tribunal, and asked advice as to its formal adoption. The Senate recommended, May 25, the negotiation of an article which did not conform to the one proposed. On June 18, 1874, the President submitted a draft of a proposed agreement with Great Britain relative to reciprocity with Canada. The Senate by a resolution of February 3, 1875, declared it inexpedient to negotiate the treaty." A proposal from the king of the Hawaiian Islands for the 1Executive Journal, vol. xi, p. 308. Ibid., vol. xvi, p. 441. Ibid., vol. xii, p. 24. 'Richardson's Messages and Papers of the Presidents, vol. vii, p. 131. 'Executive Journal, vol. xviii, p. 264. Ibid., vol. xix, pp. 355, 502. extension for a period of seven years of the existing reciprocity treaty was on June 9, 1884, before the opening of negotiations for that purpose, communicated by President Arthur to the Senate for consideration.' The Senate has occasionally of its own motion expressed, by means of resolutions, its wish as to the opening of negotiations. These are, however, not unusually joint or concurrent, and its initiative in such resolutions is not dependent upon its treaty-making authority. A joint resolution approved March 3, 1883, requested the President to open negotiations with Venezuela with a view to reopening the claims of citizens of the United States under the treaty of April 25, 1866, with that nation. The treaty of December 5, 1885, resulted.' A concurrent resolution adopted by the Senate February 14, and by the House April 3, 1890, requested the President to invite negotiations with other powers with a view to providing for the settlement by arbitration of disputes. that might not be adjusted through diplomatic channels. Negotiations were eventually instituted which resulted in the unratified treaty with Great Britain of January 11, 1897.3 An act approved June 28, 1902, advised the President as to stipulations that should be entered into for the purpose of constructing an interoceanic canal. In accordance with the act, a treaty was signed with Colombia January 22, 1903. The Senate cannot, however, be said to have been solicitous in this respect, and it has from the first recognized the inexpediency of attempting to detail in 'Executive Journal, vol. xxiv, p. 280. See for a comprehensive discussion on this topic by Senator Henry Cabot Lodge, Scribner's Magazine, vol. xxxi, p. 33. 28 U. S. Statutes at Large, 1053. 'Moore, International Arbitrations, vol. i, p. 962. 'Public Statutes, 1901-2, p. 481. |