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§38. Special Agents.-The practice of negotiating treaties through special agents, appointed by the President, with countries with which at the time diplomatic relations do not exist, has evoked some criticism in the Senate. Treaties with the King of Siam and the Sultan of Muscat were signed, March 20, 1833, and September 21, 1833, respectively, on the part of the United States by Edmund Roberts, a special and secret agent commissioned for this purpose by the President. Immediately after the adoption by the Senate of the resolutions advising the ratifications, to which there appears to have been no opposition, a resolution was introduced declaring that, while the Senate deemed the ratification expedient, it felt itself constrained by a high sense of its constitutional duty to express its decided disapprobation of the practice of appointing diplomatic agents to foreign countries by the President alone, without the advice and consent of the Senate. On the motion of Mr. Webster the resolution was tabled.58 In the resolutions of January 9, 1883, advising and consenting to the ratification of the treaty with the kingdom of Korea, signed May 22, 1882, on the part of the United States by Commodore R. W. Shufeldt, specially commissioned by the President, the Senate declared that it did not by this act admit or acquiesce in any right or constitutional power in the President to authorize any person to negotiate treaties with a foreign power unless such person had been appointed for such purpose or clothed with such power by and with the advice and consent of the Senate, except in the case

H. B. Payne, in reference to the unratified fisheries treaty with Great Britain, signed February 15, 1888, this question is examined in detail. It is stated in this report that the "whole number of persons appointed or recognized by the President, without the concurrence or advice of the Senate, or the express authority of Congress, as agents to conduct negotiations and conclude treaties [prior to June 25, 1887] is four hundred and thirty-eight. Three have been appointed by the Secretary of State and thirty-two have been appointed by the President with the advice and consent of the Senate." According to the list attached to the report, only the commissioners to the Panama Congress, and those of 1880 to negotiate with China, have, since 1815, been specially commissioned by and with the advice and consent of the Senate to negotiate treaties. S. Doc. No. 231, 56th Cong., 2d Sess., VIII, 332, et seq. It should, however, be noted that the five commissioners on the part of the United States who negotiated and signed the treaty of May 8, 1871, with Great Britain, were confirmed by the Senate. Ex. Journal, XVII, 644, 651.

53 Ex. Journal, IV, 413, 445.

of a Secretary of State or a diplomatic officer appointed by the President to fill a vacancy during the recess of the Senate." A resolution of similar import was introduced in the Senate, July 20, 1888, relative to the negotiation of the unratified fisheries treaty with Great Britain." The Executive has, however, recognized no limitation in this respect.56 Numerous treaties have been concluded by special agents employed by the President."

Of the five commissioners appointed by the President, September 13, 1898, to negotiate a treaty of peace with Spain, three were members of the Senate and of the Committee on Foreign Relations. Two of the five American members of the Joint High Commission of 1898, for the adjustment of questions then pending between the United States and Great Britain, were likewise members of the Senate.58

(2) Subsequently to the Negotiation.

§39. Consular Convention of 1788 with France.-The consular convention with France, signed November 14, 1788, on the authority of instructions approved by the Congress of the Confederation, in which was vested the treaty-making power, was communicated to the Senate, June 11, 1789, and was the first treaty to come before the government under the Constitution for ratification. John Jay, who continued in charge of foreign af54 Id., XXIII, 585.

55 Id., XXVI, 314.

56 See, however, message of President Van Buren to the Senate, June 7, 1838, in reference to proposed negotiations with Ecuador. Richardson, Messages and Papers of the Presidents, III, 477.

57 Besides the three treaties mentioned above, note may be made of those signed in 1815 and 1816 with Algiers; May 7, 1830, with the Ottoman Porte; in 1846, and 1847, (negotiated by A. Dudley Mann), with certain of the German States; February 2, 1848, with Mexico; November 25, 1850, with Switzerland; and March 31, 1854, with Japan. See for lists of special missions authorized by the President, Moore, Int. Law Digest, IV, 452-457; Foster, Practice of Diplomacy, 199-203. "The President of the United States has the power to propose treaties, subject to ratification by the Senate, and he may use such agencies as he chooses to employ, except that he cannot take any money from the treasury to pay those agents without an appropriation by law. He can use such instruments as he pleases." Mr. Sherman, chairman of the Committee on Foreign Relations, in the Senate, August 7, 1888. Record, 7285.

58 See for criticism of this practice, Cong. Record, 57th Cong., 2d Sess., 2695, et seq. See also Secret Journals, II, 551; and Ex. Journal, I, 152.

59 Certain Indian treaties were submitted, May 25, 1789, but were not considered by the Senate until after its action on the French convention.

fairs, was, on July 22, requested by the Senate to give his opinion as to the extent to which he considered the faith of the United States pledged to the ratification of the convention in the form in which it was signed. In his report to the Senate, July 25, Jay observed that the original scheme, however exceptionable, had been framed and agreed to by Congress; that the refusal to ratify the convention of 1784, because of its deviation from that scheme, had been accompanied with a promise to ratify one in conformity with it, provided the new convention should be limited in its duration; that in the commission to Jefferson, Congress had likewise promised ratification in case these conditions were complied with; that, while he apprehended that the new convention would prove more inconvenient than beneficial to the United States, the circumstances under which it had been negotiated made, in his opinion, its ratification by the Senate indispensable. On July 29, it was unanimously resolved that "the Senate do consent to the said convention, and advise the President of the United States to ratify the same." So also in its action on Indian treaties, negotiated with its advice and consent, the Senate recognized an obligation to confirm what it had already authorized. The committee, to which the treaty of July 2, 1791, with the Cherokees, had been referred, observed, in its report to the Senate, that the treaty strictly conformed to the instructions of the President based upon the advice and consent of the Senate as given August 11, 1790.62

60

§40. Qualified Approval of the Jay Treaty.-In the ratification of the treaty with Great Britain, signed November 19, 1794, the position of the Senate was essentially different. Although Jay's nomination as commissioner to negotiate with Great Britain had been confirmed by the Senate, his instructions were not submitted to that body, and in the negotiations he acted upon the authority of but one branch of the treaty-making power. No doubt could therefore exist as to the constitutional right of the Senate, as a co-ordinate branch of the treaty-making power, to give an independent approval or disapproval of the treaty thus negotiated. If the treaty was in the main acceptable, but contained objectionable provisions, two courses were at this stage open to the Senate. It could withhold action altogether until the

60 Ex. Journal, I, 7; Dip. Cor. 1783-9, I, 304-322.

61 Ex. Journal, I, 9.

62 Id., I, 88.

63

desired changes had been effected, or it could advise the ratification of the treaty subject to these desired changes. On June 22, 1795, a motion, providing that further consideration of the treaty be postponed and that the President be advised to proceed to effect certain specific modifications, was offered. The ratification was, however, on June 24, advised and consented to "on condition" that an article be added to the treaty whereby it should be agreed to suspend the operation of so much of the twelfth article as related to the trade between the United States and the British West Indies. The Senate moreover advised the President to proceed without delay to further friendly negotiations with Great Britain on the subject of the said trade and of the terms and conditions in question." The Secretary of State, Edmund Randolph, seemed at first to be somewhat in doubt whether the resolution was to be considered as the final act of the Senate, or whether the proposed new article must be submitted to that body before the treaty could take effect. On June 29, the President requested the written opinions of the heads of the departments on the question. They were agreed that it would be unnecessary again to submit the treaty to the Senate. Hamilton, who, although not an officer of the government at the time, was consulted, expressed a different view.65 The Secretary of State, in his written opinion dated July 12, argued that, since the final ratification was given by the President and not by the Senate, the action of the Senate even in case it advised and consented unconditionally was taken on a treaty the completion of which was reserved to the President; that the Senate consequently might give its advice and consent without having the very treaty which was to be ratified before it; that if the President should ratify the treaty without again consulting that body he would be responsible for the accuracy with which its advice was followed; that if he should ratify what had not been advised the treaty would not be the supreme law of the land, and that the rights of the Senate would for this very reason be safeguarded. The suspension of the operation of the twelfth article was agreed to by the British

63 Id., I, 183.

64 Id., I, 186.

65 See Washington to Hamilton, July 14, 1795. MSS. Hamilton Papers.

66 MSS. Washington Papers, XXII, 148, 184, 200. See also MSS. Letters to Washington, CXVII, 271.

government and the ratifications of the treaty were exchanged at London October 28, 1795, without the treaty being again submitted to the Senate.67

In consenting, March 6, 1798, to the ratification of a treaty with Tunis, signed in August, 1797, the Senate likewise attached a condition that Article XIV should be suspended, and advised the President to enter into further negotiations on the subject of the article. As the result of the subsequent negotiations certain changes were made in other articles. Accordingly, the articles were re-submitted by President Adams to the Senate, and their ratification was advised December 24, 1799.68

§41. Specific Amendments Advised.-Not usually consulted as to the conduct of negotiations, the Senate has freely exercised its co-ordinate power in treaty making by means of amendments. In case a treaty as negotiated is not acceptable in some of its provisions to the Senate, it is the practice of that body, if it gives its advice and consent to the ratification, to do so with specific amendments, which renders unnecessary the re-submission of the instrument after the consent of the other party to the designated changes has been obtained. But the approval, whether qualified or unqualified, of the treaty by the Senate is not to be confused with the act of ratification. The latter is performed by the President, and is unconditional, even where it relates to a treaty which, because of amendments by the Senate, differs from the one first signed. There can be no doubt of the constitutional right of the Senate to reject in toto a treaty, the negotiation of which it has not advised, or to withhold action thereon until the changes which it may indicate by resolution or otherwise have been negotiated, or to advise and consent to the ratification with certain specific amendments. Against this last procedure the objection usually

67 Certain Senators in the opposition had expressed the opinion that the resolution advising ratification was so worded as to require the resubmission of the treaty to the Senate. See Tazewell to Monroe, June 27, 1795. MSS. Monroe Papers, VIII, 951.

68 Ex. Journal, I, 263, 264, 328, 330.

69 In advising the ratifications of the extradition conventions with the Netherlands signed May 29, 1856, and November 24, 1903, the Senate attached amendments. In both instances upon the representation of the Netherlands government that procedure in that country made no provision for an amendment to a treaty, new treaties were signed embodying the amendments, and submitted to the Senate.

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