175. The Appointment of Negotiators.

Before 1815, special missions, appointed by the President with advice and consent of the Senate, were sent to conclude the most important treaties, although a number of less important missions, such as that of John Paul Jones to Algeria in 1792, were commissioned by the President alone. Since 1815 "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." " Commissioners to the Panama Congress of 1826, to negotiate the treaty of Washington with Great Britain in 1871, and to negotiate with China in 1880 appear to be the only special missions consented to by the Senate since the war of 1812. Possibly the difficulty which President Madison encountered in getting the Senate to consent to the appointments of commissioners for concluding the treaty of Ghent ending that war, accounts in part for this fact. Over four hundred commissioners and agents have been authorized to negotiate by the President alone, including the important missions ending the Mexican, Spanish and World Wars, and the missions representing the United States at the two Hague, the Algeciras, the Versailles and the limitation of armament conferences. The Senate objected to this practice of negotiating through presidential agents in the case of the Korean treaty of 1882, but in 1888 and in 1893 the Senate Foreign Relations Committee recognized the legitimacy of the practice.69

"The President of the United States," said Senator Sherman, Chairman of the Committee in 1888, "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 these agents without an appropriation by law. He can use such instruments as he pleases."

176. The Negotiation and Signature of Treaties.

Negotiation and signature have usually been under authority of the President alone. He has usually prepared the instructions and P. 76.

68 Crandall, op. cit.,

69 Cong. Rec., Aug. 7, 1888, p. 7285. See also infra, secs. 239, 240.

70

full powers of the negotiators. Not since the first few years of the Republic have these been submitted to the Senate. In about eighteen instances the advice of the Senate has been sought by the President prior to signature of the treaty and almost half of these cases occurred in the administration of Washington, prior to the negotiation of the Jay treaty (1794) which established the precedent of Presidential independence in negotiation. Only once was advice sought by the President in person and on that occasion, a few months after the Constitution went into operation, President Washington's experiences were such that an eye witness described his departure from the Senate chamber as "with sullen dignity" and "a disconsolate air." On the few occasions since this experience when Senate advice has been sought before signature, it has been by message responded to by Senate resolution. Thus in 1830 President Jackson sought the advice of the Senate on an Indian treaty prior to signature, but in doing so apologized "for departing from a long and for many years an unbroken usage in similar cases," which departure he thought justified by distinctive considerations applicable to Indian treaties. In only ten later cases has such prior advice been sought, though informal conferences with individual senators or with the Senate Foreign Relations Committee have been more frequent.

72

71

"The fact," said Senator Bacon in 1906, that he (Washington) conferred personally with the Senate as to the propriety of making treaties before attempting to negotiate them, shows what he understood to be the intention of the Convention-that the Senate should be not simply the body to say yes or no to the President when he proposed a treaty, but that the Senate should be the advisor of the President whether he should attempt to negotiate a treaty. What possible doubt can there be under such circumstances as to what was his understanding of the purpose and intention of those who framed the Constitution? And what possible doubt can there be that his understanding was correct? It is true that that practice 70 Hayden, op. cit., p. 80.

71 Maclay, Sketches of Debates in the First Senate of the United States, G. W. Harris, ed., p. 125. See also Crandall, op. cit., 67–68; Hayden, op. cit., 18-27, and infra, sec. 260.

72 Senate debate, Feb. 6, 1906, cited supra, sec. 76, note 16. See also Richardson, Messages, 2: 478. See also Senator Lodge, Scribners, 31: 33, Sen. Doc. 104, 57th Cong., 1st Sess.; and Crandall, op. cit., pp. 68–72, 75.

has been abandoned, so far as concerns the President coming in person to sit in a chair on the right of the presiding officer to confer with members of the Senate, as our rules still provide he shall do should he come here personally, showing we recognize the propriety of his coming and his right to 73 But nevertheless during my official term it has been the practice of Presidents and Secretaries of State to confer with Senators as to the propriety of negotiating or attempting to negotiate a treaty.

come.

"I know in my own experience that it was the frequent practice of Secretary Hay, not simply after a proposed treaty had been negotiated, but before he had ever conferred with the representatives of the foreign power, to seek to have conferences with Senators to know what they thought of such and such a proposition; and if the subject-matter was a proper matter for negotiation, what Senators thought as to certain provisions; and he advised with them as to what provisions should be incorporated.

"I recollect two treaties in particular. One is the general arbitration treaty. I do not know whether he conferred with all Senators, but I think he did. I think he conferred with every Senator in this Chamber, either in writing or in person, as to the general arbitration treaty. He certainly conferred with me."

74

Such informal conferences clearly lack legal significance. They do not bind the Senate in any way. The practice, however, indicates the development of an important constitutional understanding.75

On some occasions, notably for concluding the Treaty of Paris ending the Spanish war, Senators have been appointed as commissioners to negotiate, a practice deplored by Senator Hoar on the grounds that it prevents an independent consideration of the treaty by the Senate.76

Signature of treaties has, since very early times, been under the authority of the President alone. On several occasions the American negotiators have appended reservations to their signatures of multilateral treaties such as the Hague Conventions.77

73 But see opinion of Senator Lodge, infra, sec. 266, note 35.

74 See Senator Spooner's suggestion following Senator Bacon's remarks, and Corwin, op. cit., p. 188, footnote.

75 Infra, sec. 266, par. 4.

76 Cong. Rec., 57th Cong., 2d Sess., p. 2695; Senator Hoar, Autobiography, 2: 50; Crandall, op. cit., p. 78; Corwin, op. cit., p. 66. Senators Lodge and Underwood were appointed delegates to the conference on limitation of armament, 1921.

77 Crandall, op. cit., pp. 76, 93; Scott, ed., Reports of the Hague Conferences, Introduction, pp. xxv et seq.; A. D. White, Autobiography, 2: 339-341.

PROC. AMER. PHIL. SOC., VOL. LX, W, MARCH 13, 1922.

177. Consent to the Ratification of Treaties.

78

The need of Senate consent to treaties is absolute, consequently the Senate may reject a treaty altogether, though, according to Jay, such action would be improper if it had consented to the full powers and instructions of the negotiators and these instructions had been faithfully observed. But with the present practice of presidential negotiation and signature, this limitation is unimportant. Of about 650 signed treaties the Senate has refused consent to ratification of about twenty.79 Among the more important treaties thus vetoed may be mentioned commercial and reciprocity treaties with Switzerland, 1835; with the German Zollverein, 1844; with Great Britain for Canada in settlement of the fisheries question, 1888; and the Kasson reciprocity treaties of 1899; annexation treaties with Texas, 1844; Hawaii, 1855; San Domingo, 1869; and Denmark for the Virgin Islands, 1868; arbitration and claims treaties including the Johnson-Clarendon treaty for settlement of the Alabama claims, 1868; and the Olney-Pauncefote general arbitration treaty with Great Britain, 1897; canal treaties with Colombia, 1869 and 1870; the Knox financial administration treaties with Nicaragua and Honduras, 1911; and the Treaty of Versailles, 1920. It is to be noticed that in most of these cases, the end sought was eventually achieved, though in the cases of annexation of Hawaii and the Virgin Islands, and settlement of the Canadian fisheries question, not until many years later. This practice appears to conflict with the assertion of John Quincy Adams as Secretary of State, that the King of Spain was under an absolute obligation to ratify the Florida purchase treaty of 1819 on failure of which the United States would be entitled "to compel the performance of the engagement as far as compulsion can accomplish it." 80 Other Secretaries of State have.

78 Crandall, op. cit., p. 79, supra, sec. 25.

79 Crandall, op. cit., p. 82; Moore, Digest, 3: 26; Latané, U. S. and Latin America, N. Y., 1920, p. 283; Jones, Caribbean Interests of the U. S., N. Y., 1916, pp. 170, 179. For resolution rejecting Treaty of Versailles, see Cong. Rec., March 19, 1920, 59: 4916., For summary of Senate Proceedings on this treaty see League of Nations (World Peace Foundation), vol. 3, No. 4. For Proceedings in cases of treaties rejected by the Senate see 66th Cong., Ist Sess., Sen. Doc. No. 26, pp. 80 et seq.

80 Moore, Digest, 5: 189-190.

explained, however, that the United States is under no similar obligation to ratify negotiated treaties, because the other party is presumed to understand the lack of identity between the negotiating and ratifying authorities under our Constitution, even when the right of reservation has not, as it has in most cases, been expressly reserved in the full powers of the negotiators.81

The Senate's right to qualify its consent to ratification by reservations, amendments and interpretations was established through a reservation to the Jay treaty of 1794,82 has been exercised in about seventy cases, and has been judicially recognized.84

,83

"In this country a treaty is something more than a contract, for the Federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify or approve it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it."

A refusal of the Senate either to reject or consent to ratification is of questionable propriety. Senator Sumner of Massachusetts, as Chairman of the Senate Foreign Relations Committee, succeeded in keeping the treaty for cession of the Virgin Islands by Denmark, submitted to it on December 3, 1867, pigeon-holed for over two years, when it was finally rejected.85

The Senate may suggest interpretations or pass resolutions not qualifying its consent to a treaty, as it did in the case of the Treaty of Paris ending the Spanish war. A majority of the Senate passed a resolution favoring the ultimate independence of the Philippines but the court held that such resolutions are legally of no effect. "The meaning of the treaty," said the Supreme Court, "cannot be 81 Supra, sec. 26; Moore, Digest, 5: 200; Crandall, op. cit., p. 94. 82 Hayden, op. cit., p. 75.

83 Senator Lodge, loc. cit., supra, note 67; Crandall, op. cit., pp. 79-81; Treaty Reservations by Foreign Powers and the United States, Sen. Doc. 72, 67th Cong., 1st Sess., 1921; David Hunter Miller, Reservations to Treaties, N. Y., 1919; Q. Wright, Amendments and Reservations to the Treaty, Minn.

L. R., 4: 14.

84 Haver v. Yaker, 9 Wall. 32. See also Brown, J., in Fourteen Diamond Rings v. U. S., 176 (1901); Willoughby, op. cit., p. 462.

85 Moore, Digest, 1: 610. The French guarantee treaty, signed at the same time as the treaty of Versailles, appears to have been reposing in the archives of the Senate Foreign Relations Committee since its submission to the Senate by President Wilson in 1919.