CHAPTER VI.

THE ADVICE AND CONSENT OF THE SENATE.

(1) Prior to the Negotiation.

$33. The President in the Senate Chamber.-In the conference with the committee appointed by the Senate, August 6, 1789, to confer with the President as to the manner in which communications between the Executive and the Senate respecting treaties and nominations should be conducted, President Washington suggested that, in case of treaties, oral communications seemed to be indispensably necessary because of the variety of subjects embraced in them, which not only would require consideration but might undergo much discussion. To do this by written 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, 1789, of a rule as to the procedure to be followed whenever the President should meet the Senate either in the Senate chamber or in such other place as that body might be convened by him. The rule had just been adopted when a message was received in which the President gave notice of his intention to meet with the Senate on the following day to consider the terms of a treaty to be negotiated with the Southern Indians. In accordance with the notification, the President, accompanied by General Knox, who although not a cabinet officer at the time was familiar with Indian affairs and prepared to answer questions, appeared in the Senate chamber. After taking the chair, the President briefly stated the purpose of his meeting the Senate. A short paper containing a few explanations was read, after which the Senate was called upon to give its

1 Writings (Ford ed.), XI, 417. On July 21, 1789, the Senate requested the attendance of John Jay, who had continued in charge of foreign affairs, to give information respecting the consular convention negotiated with France. Jay complied with the request. Ex. Journal, I, 7.

2 Maclay says: "The President was introduced, and took our President's chair. He rose and told us bluntly that he had called on us for our advice and consent to some propositions respecting the treaty to be held with the Southern Indians." Sketches of Debate in the First Senate of the United States (G. W. Harris ed.), 122.

advice and consent by an affirmative or negative vote on seven specific questions as to the proposed negotiations. The Senate seemed unwilling to do this without having first fully considered the articles. Robert Morris moved to refer the matter to a special committee. To this it was objected that a council never referred anything to a committee. The President stated that, while he had no objection to a postponement, the reference to a committee would defeat the very purpose of his meeting the Senate. The questions were accordingly postponed until Monday, at which time a vote was taken on each of them separately. The Senate maintained its right to exercise an independent judgment by voting in favor of a part only of the propositions submitted.* §34. Advice Sought by Message.-Although President Washington did not again visit the Senate chamber to consult that body on proposed treaty negotiations, he continued to seek its advice by message before opening negotiations." By special messages of August 4, 1790, August 11, 1790, January 18, 1792, and March 23, 1792, he sought the advice of the Senate 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 conformity with the articles submitted." In a communication to the Senate, February 9, 1790, concerning the differences that had arisen between the United States and Great Britain as to the northeastern boundary, the President stated that he considered it advisable to postpone any negotiations on the

3 Ex. Journal, I, 19, 20-23.

4 Maclay, Sketches of Debate in the First Senate of the United States (G. W. Harris ed.), 122-126. In speaking of the withdrawal of the President on August 22, with a "discontented air," Maclay 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." Id., 125.

5 Rule XXXVI of the Standing Rules of the Senate still provides the manner in which the President is to meet the Senate in executive session. Henry Cabot Lodge, in referring to the recognition in this rule of the right of the President to meet with the Senate in the consideration of treaties, said, in the U. S. Senate, January 24, 1906: "Yet I think we should be disposed to resent it if a request of that sort was made to us by the President." Cong. Record, 59th Cong., 1st Sess., 1470.

6 Ex. Journal, I, 55, 60, 98, 116.

7 At a meeting of the heads of the departments, February 25, 1793, the President was unanimously advised not to consult the Senate prior to opening proposed negotiations with the Indians north of the Ohio. MSS. Letters to Washington, CXVI, 252.

subject until he had received the advice of the Senate as to the propositions to be offered on the part of the United States. By a message of May 8, 1792, the President enquired of the Senate whether it would approve a treaty, if one were concluded, with Algiers for the payment of ransom and peace money not to exceed certain amounts. Jefferson, the Secretary of State, in an oral opinion on March 11, and in a written communication on April 1, 1792, had advised the President that it was advisable whenever possible to consult the Senate before the opening of negotiations, since its subsequent approbation was necessary to valdidate a treaty.10 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, respecting the navigation of the Mississippi, explanations were made by the President as to the nature of the mission and the reasons for opening the negotiations at Madrid." Subsequently to the Senate's confirmation of the nominations, the Executive decided to extend the negotiations to commercial matters.12 Jefferson, in submitting to the President instructions for this purpose, observed that they ought to be laid before the Senate to determine whether that body would advise and consent that a treaty be entered into in conformity with them.13 The instructions with observations were communicated to the Senate, March 7, for its advice and consent to the extension of the powers, and to the ratification of a treaty which should conform to these instructions. On March 16, the Senate (two-thirds of the members present concurring) approved of the extension of the powers, and promised that it would advise and consent to the ratification of a treaty negotiated in conformity with these additional instructions.15 Formal instructions elaborating upon these general principles were, under date of March 18, prepared by Jefferson.10

14

8 Ex. Journal, I, 36-7.

9 Id., 122-3.

10 MSS. Washington Papers, XXI, 91; Jefferson Papers, series 4, Vol. II, No. 18.

II Ex. Journal, I, 95, 96.

12 Id., 99.

13 Writings of Jefferson (Ford ed.), V, 442.

14 Ex. Journal, I, 106.

15 Id., 115.

16 Am. State Papers, For. Rel., I, 252.

The negotiations as continued and consummated by Thomas Pinckney, whose nomination had been confirmed by the Senate with knowledge of the nature of his mission, were conducted on the basis of these instructions, together with those subsequently given relative to spoliation claims.17 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 as to the serious aspect of our relations with that country, and was not accompanied with his instructions, nor does it appear that they were subsequently submitted.18 This fact was not overlooked by the Senate. A resolution was introduced on 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; but the resolution was defeated.19 Gouverneur Morris had in October, 1789, been commissioned by the President, without confirmation by the Senate, in a private and unofficial 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.20 Although John Paul Jones and David Humphreys had been commissioned without confirmation by the Senate to negotiate with Algiers, the Senate had in other ways approved of the negotiations.21

These first attempts of the Executive to follow out the clear 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 Jackson, in a message of May 6, 1830, sought the advice of the Senate as to the conclusion of a treaty with the Choctaw Indians in accordance with certain propositions therewith submitted.22 President Polk submitted, June 10, 1846, the proposed Oregon treaty for the Senate's advice as to its conclusion. The conclusion of the treaty having been

17 Id., 533; Ex. Journal, I, 163-4.

18 Ex. Journal, I, 150.

19 Id., I, 151.

20 Id., I, 73; Am. State Papers, For. Rel., I, 122.

21 Id., 290, 294.

22 Ex. Journal, IV, 97.

advised (two-thirds concurring) the treaty was signed June 15, and thereupon submitted to the Senate for its advice and consent to the ratification.23 In a message of August 4, 1846, President Polk advised the Senate of his intention to propose terms of peace to Mexico, and suggested for the consideration of the Senate in executive session the expediency of a contingent appropriation to be available in case Mexico should agree to a cession of territory for a fair equivalent." President Buchanan communicated with the Senate, February 21, 1861, in relation to the differences that had arisen as to the meaning to be given to 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.25 President Lincoln adopted this procedure of his predecessor and sought in a message of March 16, 1861, further advice of the Senate.28 Again, on December 17, 1861, President Lincoln transmitted to the Senate for its advice a draft of a convention, which the American minister in Mexico had proposed to that government, to guarantee the payment of claims urged by certain European powers

23 Id., VII, 84, 89, 90, 95. Mr. Buchanan, Secretary of State, in instructions to Mr. McLane, minister to Great Britain, under date of February 26, 1846, said: "The Federal Constitution has made the Senate, to a certain extent, a co-ordinate branch of the treaty-making power. Without their advice and consent, no treaty can be concluded. This power could not be entrusted to wiser or better hands. Besides, in their legislative character, they constitute a portion of the war making, as in their executive capacity they compose a part of the treaty-making power. * * A rejection of the British ultimatum might probably lead to war, and as a branch of the legislative power, it would be incumbent upon them to authorize the necessary preparations to render this war successful. Under these considerations, the President, in deference to the Senate, and to the true theory of the constitutional responsibilities of the different branches of the Government, will forego his own opinions so far as to submit to that body any proposition which may be made by the British Government, not, in his judgment, wholly inconsistent with the rights and honor of the country. Neither is the fact to be disguised that from the speeches and proceedings in the Senate, it is probable that a proposition to adjust the Oregon question on the parallel of 49° would receive their favorable consideration.” MSS. Instructions to Great Britain, XV, 303; Works of Buchanan (Moore ed.), VI, 379.

24 Ex. Journal, VII, 132.

25 Id., XI, 279.

26 Id., XI, 308.