personal consultations, by the President or the Secretary of State, with individual Senators have not been and are not uncommon. For examples of the consultation of the Senate by special message, prior to the negotiation or the signing of treaties, see Crandall, Treaties, Their Making and Enforcement, 56-61; Yale Law Journal (Dec. 1901), XI. 71. (3) REJECTION, OR FAIURE TO ACT. $ 747. "It is wholly unnecessary to say to statesmen of the intelligence which always marks those of the British Empire that the rejection of a treaty by the Senate of the United States implies no act of discourtesy to the government with which the treaty may have been negotiated. The United States can enter into no treaty without the advice and consent of the Senate; and that advice and consent, to be intelligent must be discriminating; and their refusal can be no subject of complaint, and can give no occasion for dissatisfaction or criticism." Mr. Fish, Sec. of State, to Mr. Motley, min. to England, May 15, 1869, The foregoing instruction related to the rejection by the Senate, April "Of treaties rejected by the Senate through a failure to act on them, or outright, may be mentioned, besides the various recent treaties for commercial reciprocity, the important treaties signed March 25, 1844, with the German Zollverein; July 20, 1855, with Hawaii; October 24, 1867, with Denmark for the cession of the islands of St. Thomas and St. John; November 29, 1869, for the annexation of the Dominican Republic; December 10, 1824, with Colombia for the suppression of the African slave trade; March 6, 1835, with the Swiss Confederation; April 12, 1844, for the annexation of Texas; December 14, 1859, with Mexico relative to transits and commerce; March 5, 1860, with Spain for the settlement of claims; May 21, 1867, with Hawaii for commercial reciprocity; and the following with Great Britain: January 14, 1869, for the adjustment of outstanding claims; June 25, 1886, for the extradition of criminals; February 15, 1888, for the regulation of the fisheries; and January 11, 1897, for the settlement of disputes by arbitration." Crandall, Treaties, Their Making and Enforcement (1904) 71-72. (4) PRACTICE OF AMENDMENT. § 748. In instructing the diplomatic representative of the United States at Stockholm to inform the Swedish government that the Senate had amended a treaty between the two countries by striking out one of the articles, the Department of State directed him to "cause it to be distinctly understood" that it was a "fundamental law" of the American system" that every treaty made by a minister of the United States, with whatever exact adherence to his powers and instructions and whatever the nature of its provisions," was "still liable, when presented to the Senate for ratification, to be modified or even to be totally rejected." There were, said the Department, already precedents in the history of the United States for the exercise of such authority, and particular reference was made to the action of the Senate in striking out that part of Article XII. of the Jay treaty relating to the West India trade and to Great Britain's assent thereto. "Above all," added the Department, "you will give the explicit assurance that the rejection of the articles must not be interpreted into the least absence of consideration or respect towards the Government of Sweden." Mr. Rush, Sec. of State, to Mr. Russell, Aug. 14, 1817, MS. Inst. U. As to the practice of amendment by the Senate, see The Treaty-Making May 12, 1803, a convention for settling the northern boundaries of the United States was signed at London by Rufus King and Lord Hawkesbury. On the 24th of the following October, President Jefferson submitted it to the Senate. The Senate approved it on condition that the 5th article should be expunged. The British government did not accept this amendment, and the ratifications were never exchanged. Mr. Fish, Sec. of State, to Mr. Motley, min. to England, May 15, 1869, S. The propriety of a partial approval of a treaty by the Senate was As to the amendment of the convention with France of Sept. 30, 1800, "A convention for the suppression of the African slave trade was signed at London on the 13th of March, and submitted to the Senate by President Monroe, with a message of the 21st of May, 1824. This convention was approved by the Senate with conditions which were not accepted by Great Britain." Mr. Fish, Sec. of State, to Mr. Motley, min. to England, May 15, 1869, S. See Mr. Clay, Sec. of State, to Mr. Addington, British chargé, April 6, After the Senate gave its advice and consent to the exchange of ratifica- See Com- It was with reference to the Senate's amendment of the foregoing convention that Henry Clay said: "The government of His Britannic Majesty is well acquainted with the provision of the Constitution of the United States, by which the Senate is a component part of the treaty-making power; and that the consent and advice of that branch of Congress are indispensable in the formation of all treaties. According to the practice of this government, the Senate is not ordinarily consulted in the initiatory state of a negotiation, but its consent and advice are only invoked, after a treaty is concluded, under the direction of the President, and submitted to its consideration. Each of the two branches of the treatymaking authority is independent of the other, whilst both are responsible to the States and to the people, the common sources of their respective powers. It results, from this organization, that, in the progress of the government, instances may sometimes occur of a difference of opinion between the Senate and the Executive as to the expediency of a projected treaty, of which the rejection of the Colombian convention affords an example. The people of the United States have justly considered that, if there be any inconveniences in this arrangement of their executive powers, those inconveniences are more than counterbalanced by the greater security of their interests, which is effected by the mutual checks which are thus interposed. But it is not believed that there are any inconveniences to foreign powers of which they can with propriety complain. To give validity to any treaty, the consent of the contracting parties is necessary. As to the mode by which that consent shall be expressed, it must necessarily depend with each upon its own peculiar constitutional arrangement. All that can rightly be demanded in treating is to know the contingencies on the happening of which that consent is to be regarded as sufficiently testified. This information the government of the United States has always communicated to the foreign powers with which it treats, and to none more fully than to the United Kingdom of Great Britain and Ireland. Nor can it be admitted that any just cause of complaint can arise out of the rejection by one party of a treaty which the other has previously ratified. When such a case occurs, it only proves that the consent of both, according to the constitutional precautions which have been provided for manifesting that consent, is wanting to make the treaty valid. One must necessarily precede the other in the act of ratification; and if, after a treaty be ratified by one party, a ratification of it be withheld by the other, it merely shows that one is, and the other is not, willing to come under the obligations of the proposed treaty." Mr. Clay, Sec. of State, to Mr. Addington, Apr. 6, 1825, Am. State Papers, Where a treaty is amended by the Senate of the United States, a new signature of it is not required. If the other government accepts the amendments, it is sufficient that they are duly embodied in the copies of the treaty which are prepared for the exchange of ratifications. Nor is this rule altered by the fact that, between the date of the conclusion of the treaty and the exchange of ratifications, a change of administration has taken place in the United States. Mr. Hay, Sec. of State, to Mr. Pierce, Feb. 21, 1899, MS. Notes to For. The foregoing note related to the extradition treaty between the United "Not usually consulted as to the conduct of negotiations, the Senate has freely exercised its co-ordinate authority in treaty making by means of amendments. Where the treaty as negotiated is not entirely acceptable 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 resubmission of the instrument. after the consent of the other party to the designated changes has been obtained. . While the Senate's practice of amending treaties continues to meet with criticism by foreign writers, it would not to be contended for a moment that the Senate might not reject in toto, or withhold action altogether until the changes which it might indicate by resolution or otherwise had been negotiated. So far as it affects the other contracting party, it is difficult to distinguish the latter mode from that followed by the United States. The proposed treaty is not infrequently so amended as to be unacceptable to the other power, and no treaty results." Crandall, Treaties, Their Making and Enforcement, 70-71. 3. EXCHANGE OF RATIFICATIONS. (1) ACT OF RATIFICATION. § 749. "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." Crandall, Treaties, Their Making and Enforcement, 71. "The importance of the subject-matter, the frequent changes in the personnel of the contracting organs, the inability to confirm by witness the utterances of a state, render it more necessary that contracts between nations should be carefully expressed in writing than contracts between individuals. While no particular form is essential to the validity of a treaty, it is the practice in formal treaties to make out and sign under seal as many counterparts as there are parties, one counterpart to be retained by each. In case of two parties only, which have no common language, each counterpart is usually made out in the languages of both. The texts sometimes appear on separate sheets, but more often in parallel columns or on opposite pages, the text in the language of the nation by which the counterpart is to be retained occupying the left hand column or page. Likewise with the development of the principle of the equality of states, precedence in the enumeration of the negotiators in the preamble and in the signatures is given in the counterpart to the state which retains. Otherwise the two instruments are identical. In case of several parties having various languages, the instrument often appears in only one language, customarily in Europe, the French. The same precedence is given in the retained counterpart, the order of the other countries being alphabetical or determined by lot. The ratification is not only attached to the instrument retained, but, for the assurance of the other contracting party or parties, is also attached to an exact copy of the retained instrument, which is exchanged for a similar copy from the other party, or in case of several parties is deposited in such place as is designated by the treaty. Each state, in case of two parties only, has then not only its own counterpart with its ratification attached, but a copy of the counterpart retained by the other party with the latter's ratification attached. A protocol signed by the plenipotentiaries by whom the exchange is effected records the act.” Crandall, Treaties, Their Making and Enforcement, 15-16. |