The tion with Great Britain signed January 30, 1897, relative to the demarcation of the Alaskan boundaries. Instances of withdrawals for the purpose of making slight changes are quite numerous. convention with Spain, signed August 7, 1882, supplementary to the extradition convention of January 5, 1877, was returned for verbal changes at the request of the Secretary of State made to the chairman of the Committee on Foreign Relations." Crandall, Treaties, Their Making and Enforcement, 82–84. 2. PREROGATIVES OF THE SENATE. (1) NECESSITY OF SENATE'S APPROVAL. $ 745. By the Constitution of the United States, as we have seen, the President has power to make treaties, "by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur." The Secretary of the Treasury and the Secretary of War being of opinion that it was constitutional and expedient to empower Mr. Jay to conclude a treaty of commerce with Great Britain, his powers were drawn conformably with this idea. Their reasons for so holding they committed to writing; and the same course was pursued by Mr. Edmund Randolph, then Secretary of State, who entertained different sentiments on the subject. Mr. Randolph took the view that to permit a treaty of commerce to be signed by Mr. Jay and transmitted to the United States for ratification would be" to abridge the power of the Senate to judge of its merits," since, "according to the rules of good faith, a treaty which is stipulated to be ratified ought to be so, unless the conduct of the minister be disavowed and punished;" and that, if Mr. Jay was permitted to sign a treaty, form of expression can be devised to be inserted in it which will not be tantamount to a stipulation to ratify or leave the matter as much at large as if he had no such power." 66 no Mr. Randolph, Sec. of State, to the President, May 6, 1794, 6 MS. Dom. Since, in the United States, "the pleasure of the Senate must be known before a treaty can be ratified, and as delays may accordingly supervene," the government of the United States prefers that it should be provided that the exchange of ratifications shall be effected "as soon as possible," rather than within a specified time. Instructions to Diplomatic Officers of the United States (1897), § 246, p. 101. H. Doc. 551-vol 5-13 "From the first there has been inserted in the full powers of the negotiators a reservation of the right of ratification, which has regularly, although not uniformly, explicitly provided that the ratification should be by the President, by and with the advice and consent of the Senate. In commenting on Jefferson's rough draft of the instructions of March, 1792, to the commissioners to negotiate with the court of Spain, Hamilton suggested a variation of the stipulation, reserving the right of ratification, so as to indicate the participation of the Senate. Jefferson, however, considered a stipulation that the treaty should be ratified to be sufficient, without designating by what body of individuals. The instruction was unmodified, and the treaty of October 27, 1795, was drawn up accordingly. In the treaty with Great Britain of November 19, 1794, however, as has been the more usual practice, a clause was inserted specifying that it should be ratified by the President with the advice and consent of the Senate." Crandall, Treaties, Their Making and Enforcement, 72-73, citing Am. State Papers, For. Rel. I. 471, 533; S. Doc. 62, 55 Cong. 3 sess. pt. 1, p. 16; Writings of Jefferson (by Ford), V. 445. Concurrence by the Executive alone in the establishment of permanent international courts for the adjudication of questions arising out of the slave trade is not compatible with the limitations of the Constitution of the United States. Mr. Adams, Sec. of State, to Mr. Stratford Canning, Dec. 30, 1820, MS. By Article VII. of the treaty of Ghent it was provided that commissioners, to be appointed under the 6th article of the treaty, should be “authorized . . . to fix and determine," according to the "true intent" of the treaty of peace of 1783, that part of the boundary extending from the water communication between Lake Huron and Lake Superior to the most northwestern point of the Lake of the Woods," to decide to which of the two parties the several islands lying in the lakes, water communications and rivers, forming the said boundary, do respectively belong," in conformity with the "true intent" of the treaty of 1783, and "to cause such parts of the said boundary as require it to be surveyed and marked." The treaty of 1783 merely provided that the line in question should run from the water communication between Lake Huron and Lake Superior "through Lake Superior northward of the Isles Royal and Philipeaux to the Long Lake; thence through the middle of said Long Lake, and the water communication between it and the Lake of the Woods, to the said Lake of the Woods; thence through the said Lake to the most northwestern point thereof." The commissioners having differed as to what body of water was meant by the Long Lake, the British commissioner consented as a compromise to adopt a route from Lake Superior by the Grand Portage to the Pigeon River, and thence by the most easy and direct route to Lac la Pluie, provided that the American commissioner would consent that the boundary should be conducted from water to water, overland, through the old and accustomed portages, in those places where navigation was obstructed. Subsequently the British commissioner made a proposition, by which he offered to enter and ascend the Pigeon River and proceed to Lake Namekan by a water communication somewhat south of that proposed by the American commissioner, provided that the Grand Portage should remain free to both parties. The American commissioner having asked for instruction, the Department of State said: "Your powers are to be found in the treaty of Ghent, and they do not authorize your contracting any new engagements in behalf of the United States. The President is incompetent to vest you with authority to enter into any such new engagements, except in the mode in which the Constitution of the United States prescribes. According to that mode it would be necessary that you should possess a diplomatic character, and that any compact you might form in concurrence with a representative of Great Britain having a similar character should be submitted to the Senate of the United States for their advice and consent." Mr. Clay, Sec. of State, to Mr. Porter, Nov. 13, 1826, 21 MS. Dom. Let. 422. "A mere declaration by a congress of the representatives of a few powers would hardly be a proper instrument to send to the Senate for ratification. If it came from each government in an authentic form the difficulty might perhaps in that way be got over. Then it would assume the character of a contract, and a treaty is nothing more." Mr. Marcy, Sec. of State, to Mr. Mason, min. to France, Dec. 8, 1856, MS. The foregoing passage related to the declaration concerning maritime Mr. Marcy, on the part of the United States, offered to adhere to the declaration, on condition of its being amended so as to exempt private property at sea from capture, the whole to be embodied in a treaty. With reference to this offer, Mr. Marcy said: "I do not see that the provisions of the declaration of the Paris conference, amended as this government has proposed, could embarrass the government of the Emperor of the French in the way you apprehend. The amendment does not require France to go aside from the declaration; it goes a little beyond that declaration, but precisely in the same direc tion. The proposed treaty would contain all of the declaration. The engagement of the imperial government, with the other signatory powers, is not to negotiate on maritime rights without embracing the principles of the declaration, and that engagement would not in the slightest degree be departed from by the proposed treaty." (Ibid.) May 16, 1894, Mr. Alexander, American minister at Athens, was authorized to conclude with Greece a convention concerning the regis tration of trade-marks. After conference with the minister for foreign affairs, who represented that a convention would require the ratification of the Greek chamber of deputies, which in the condition of affairs then existing might be attended with great delay, Mr. Alexander, on July 19; 1894, signed with him a declaration which purported to secure the desired end by way of an interpretation of the treaty of December 10-22, 1837. The Department of State, however, being of opinion that the treaty of 1837 would not bear the interpretation given to it, considered the declaration to be “practically a new treaty," which "could only be ratified by the President of the United States by and with the advice and consent of the Senate." To this position the Department of State adhered, and, as the Greek government was disinclined to negotiate a formal convention, Mr. Alexander was instructed to permit the matter to rest. Mr. Uhl, Act. Sec. of State, to Mr. Alexander, No. 21, May 16, 1894, For. Rel. 1894, 293; Mr. Alexander to Mr. Gresham, Sec. of State, No. 41, July 21, 1894, id. 295; Mr. Gresham to Mr. Alexander, No. 43, Feb. 21, 1895, For. Rel. 1895, II. 759; Mr. Olney, Sec. of State, to Mr. Alexander, No. 75, Nov. 9, 1895, id. 763; same to same, No. 81, Jan. 21, 1896, id. 764; same to same, No. 90, May 15, 1896, MS. Inst. Roumania, I. 352. As to the declaration signed at Athens, Jan. 30-Feb. 10, 1890, to the effect that the words citizens and subjects in Art. I. of the treaty of 1837 includes corporations, joint-stock companies, and other business associations, which declaration was duly approved and published, see For. Rel. 1889, 480-483; For. Rel. 1890, 509–511. (2) MODE OF OBTAINING ADVICE AND CONSENT. § 746. "In reply to the committee, appointed by the Senate August 6, 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 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 Indian affairs 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 ever committed anything.' The President added that, while he had not 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. 6 "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." Crandall, Treaties, Their Making, and Enforcement, 54–56. The method, tried by Washington, of consulting the Senate in person, 66 was found to be subject to serious objections and quite unsatisfactory, and it was abandoned after this one experience." (The Hon. J. W. Foster, Yale Law Journal (Dec. 1901), XI. 69–71. As to Washington's unsatisfactory experience, see Maclay's Sketches of Debate in the First Senate of the United States, 122-126; 10 Washington's Writings, 26, note by Sparks; 3 Story's Com. on the Con stitution, 371. Gradually the practice of consulting the Senate, by special message, in advance of the negotiation and conclusion of treaties fell into disuse, and it has since the administration of Jefferson only occasionally been resorted to. But it may be superfluous to say that |