against Mexico.27 In a message of February 10, 1868, President Johnson sought the advice of the Senate as to the transfer to the United States by the Dominican Republic of the peninsula and bay of Samana upon the terms proposed in a draft of a convention which accompanied the message.28 Again, in a message of January 15, 1869, President Johnson 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. The Senate by resolution, dated April 15, 1869, advised the negotiation of a convention in accordance with the terms of the protocol.29 President Grant, upon receiving a dispatch from our minister resident at Honolulu, relative to the annexation of the Hawaiian Islands to the United States, transmitted it to the Senate, observing at the same time that the views of the Senate with reference to any future course which there might be a disposition to adopt would be acceptable.90 In a message of May 13, 1872, the President submitted an article proposed by the British government for the adjustment of the differences that had arisen in the proceedings of the Geneva tribunal, and asked the advice of the Senate 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 for commercial reciprocity with Canada. The Senate by a resolution of February 3, 1875, declared it inexpedient to negotiate such a convention.32 A proposal from the King of the Hawaiian Islands, for the extension for a period of seven years of the reciprocity convention then in force, was, on June 9, 1884, before negotiations for that purpose were opened, communicated by President Arthur to the Senate for consideration.83 These are, however, as stated above, exceptional instances.34 835. Advice by Resolution.-The Senate may by means of 27 Id., XII, 24. 28 Id., XVI, 163. 29 Id., XVI, 441; XVII, 174. 30 Id., XVIII, 59. 31 Id., XVIII, 264. 32 Id., XIX, 355, 502. 33 Id., XXIV, 280. 34 See for a comprehensive article on this topic by Henry Cabot Lodge, Scribner's Magazine, XXXI, 33. resolutions advise the negotiation of treaties by the Executive. But such resolutions are merely advisory not mandatory, and the right of the Senate to adopt them is not dependent upon its treatymaking power. Such resolutions may be joint or concurrent, and originate as well in the House of Representatives as in the Senate.35 For instance, a joint resolution was passed by Congress and approved March 2, 1883, by which the President was requested to open negotiations with Venezuela with a view to the renewal of the convention of April 25, 1866, for the adjudication of claims of American citizens.36 The convention of December 5, 1885, resulted. By a concurrent resolution adopted by the Senate February 14, and by the House, April 3, 1890, the President was requested to invite negotiations with other powers to the end that differences, which might arise and which could not be settled through diplomatic channels, should be referred to arbitration for adjustment. Negotiations were eventually instituted which resulted in the signature on January 11, 1897, of a convention of arbitration with Great Britain. The convention, however, failed to receive the required approval of the Senate." An act of Congress, approved June 28, 1902, authorized the President to acquire of Colombia, or, in the event of the failure to acquire of Colombia, of Costa Rica and Nicaragua, perpetual control of territory deemed necessary for the construction and operation of an interoceanic canal.38 A convention for this purpose was negotiated and signed with the Colombian Government, January 22, 1903, but failed to receive the approval of the Colombian Congress. A convention for the same purpose was thereafter concluded, 35 See for examples of House resolutions of this character, 17th Cong., 2d Sess., Journal, 280; 44th Cong., 1st Sess., Record, 2158; 46th Cong., Ist Sess., Journal, 190, 584; 60th Cong., 2d Sess., Record, 1070, 3505, 3741, 3811, 3822, 3831. In May, 1826, John Forsyth, then a member of the House of Representatives, later Secretary of State, objected to a resolution of this nature on the ground that it was irregular for the House of Representatives to request the President to exercise any of his constitutional powers. Journal, 19th Cong., 1st Sess., 567, 576; Register of Debates, 19th Cong., Ist Sess., 2636. 36 28 Stats. at L. 1053. 37 Moore, Int. Arb., I, 962. 38 32 Stats. at L. 481. A joint resolution, approved March 2, 1867, directed the Secretary of State to negotiate with Colombia as to the terms upon which a right of way to construct an interoceanic canal might be obtained. 14 Stats. at L. 572. November 18, 1903, with the new republic of Panama. A joint resolution, approved April 8, 1904, requested the President to open negotiations with Great Britain, Russia and Japan for the revision of the rules regulating the taking of fur seals in the North Pacific Ocean and the Bering Sea. By a joint resolution, approved April 28, 1904, Congress declared that it was desirable for the President to bring about an understanding between the principal maritime powers for the exemption from capture of unoffending private property at sea.40 A joint resolution, approved March 4, 1909, requested the President to renew negotiations with Russia to secure by treaty, or otherwise, uniformity of treatment and protection to American citizens holding passports." In each of the instances above noted, the desired negotiations either were pending at the time of the adoption of the resolution or were eventually instituted. Although it is not to be doubted that the President will always give careful consideration to the views of Congress, deliberately expressed, as to instituting negotiations, he cannot be compelled by a resolution of either house or of both houses of Congress to exercise a power entrusted to him under the Constitution.12 The disadvantages of attempting to prescribe in advance the conditions under which negotiations are to be conducted by the Executive, were fairly set forth by Mr. Bibb in a report from the Senate Committee on Foreign Relations, February 15, 1816. After the adoption of the resolution advising the ratification of the treaty of commerce with Great Britain of July 3, 1815, resolutions were introduced in the Senate requesting the President to continue the negotiations on certain specific matters outlined in the resolutions. Mr. Bibb, in his report, observed that an examination of the correspondence furnished satisfactory evidence that no effort which belonged to the negotiators had been neglected, and that the failure to arrange for the subjects embraced in the resolutions resulted from the manifest indisposition of the British plenipotentiaries to concur in any satisfactory stipulations con 39 33 Stats. at L. 586. 40 33 Id. 592. 41 35 Id. 1170. 42 See for other examples, joint resolutions approved February 14, 1859 (11 Stats. at L. 441), and May 14, 1880 (21 Id. 306); and acts approved August 3, 1883 (22 Id. 217), July 9, 1888 (25 Id. 243), and March 3, 1897 (29 Id. 624). cerning them; that if the proper moment had arrived to renew the negotiations the President would doubtless take advantage of it, for he had, in common with the Senate, the interests of the country at heart, and, since he conducted correspondence with foreign nations, would be more competent to determine when, how, and upon what subjects negotiations could be urged with the greatest prospect of success; and that, moreover, the differences of opinion between members of the Senate on propositions about which to advise the President would prevent that unity of design, secrecy and dispatch so requisite for successful negotiations.43 §36. Consultation with Individual Members.-As a matter of expediency individual members, and especially those on the Committee on Foreign Relations, to which all treaties are referred in the Senate, are not infrequently consulted on important negotiations. For instance, in 1871, after the unqualified rejection (44 to 1) by the Senate of the Johnson-Clarendon convention, Mr. Fish, Secretary of State, did not feel warranted in reopening negotiations without some understanding with members of that body. He accordingly conferred with prominent Senators on both sides of the chamber, and sought the advice of Mr. Sumner, who was then chairman of the Committee on Foreign Relations, concerning the basis of the proposed negotiations, although he did not afterwards follow the particular course that Mr. Sumner recommended." §37. Confirmation of Negotiators.-Prior to 1815, the President, in the greater number of instances, submitted to the Senate for confirmation the names of the commissioners designated to negotiate treaties, and at the same time advised that body of the general purpose of the negotiations about to be instituted. In the message to the Senate of January 11, 1792, nominating William Carmichael and William Short as commissioners to negotiate a treaty with the Spanish government for the navigation of the Mississippi River, there was included a report of the Secretary of State on the proposed negotiations. In communicating, May 45 43 Compilation of Reports of the Sen. Com. on For. Rel., S. Doc. No. 231, 56th Cong., 2d Sess., VIII, 22. See also to the same effect, a report on February 19, 1862, by Mr. Sumner, Id., 132. 44 Moore, Int. Arb., I, 525. 45 Ex. Journal, I, 95. With reference to the nomination of Jay to negotiate with Great Britain, see supra, 70. 31, 1797, to the Senate for confirmation the nominations of C. C. Pinckney, Francis Dana and John Marshall as envoys extraordinary and ministers plenipotentiary to the French Republic, President Adams explained in general terms that they were appointed "to negotiate with the French Republic, to dissipate umbrages, to remove prejudices, to rectify errors, and adjust all differences by a treaty between the two powers." The Senate on June 5, confirmed the nominations, and on June 22, the substitution of Elbridge Gerry for Francis Dana." When negotiations were re-opened in 1799, the Senate was called upon to confirm the new nominations.48 President Jefferson submitted to the Senate, January 11, 1803, for confirmation the nominations of James Monroe and Robert R. Livingston as commissioners with full powers to enter into a treaty with the First Consul of France, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof." The nominations of J. Q. Adams, James A. Bayard, Henry Clay and Jonathan Russell, were advised and consented to by the Senate on January 18, 1814, and that of Albert Gallatin, who had previously been rejected on the grounds that the duties of an envoy were incompatible with those of the Secretary of the Treasury,50 on February 9, as ministers plenipotentiary and extraordinary to negotiate and sign a treaty of peace and a treaty of commerce with Great Britain.51 Since 1815, this course has been exceptional. Treaties have with few exceptions been negotiated through the Secretary of State, the regular diplomatic representatives and consular officers, or special agents, empowered and commissioned to negotiate the treaty by the President without special confirmation for this purpose by the Senate,52 46 Id., I, 241. 48 Id., I, 317, 326. 49 Id., I, 431. 50 His successor in the office of Secretary of the Treasury was confirmed February 9, immediately preceding his own confirmation as minister to negotiate with Great Britain. Id., II, 355, 389. 51 Id., II, 454, 471. For other confirmations during this period of special commissioners appointed to negotiate treaties, see Id., I, 265, 310, 311, 432, 440; II, 25, 29. 52 In a minority report of the Senate committee on Foreign Relations, signed by John T. Morgan, Eli Saulsbury, Joseph E. Brown and |