the United States which a strong sense of injury and a proper regard for the rights and interests of the nation may dictate." (President Monroe, Annual Message, Richardson's Messages, II, 55.) "The refusal to ratify a second treaty within the time stipulated, and then to send a minister to demand new conditions, the sanction of which was to depend upon the government of Madrid without his becoming responsible for it, was an occurrence with which I have known no parallel." (Mr. Monroe, President, to Mr. Gallatin, May 26, 1820, 2 Gallatin's Writings, 140.) from Senate's functions. "It may be replied that in all cases of a treaty thus negotiated, the other contracting party being under no obligation to Condition implied ratify the compact before it shall have been ascertained whether, and in what manner, it has been disposed of in the United States, its ratification can in no case be rendered unavailing by the proceedings of the government of the United States upon the treaty; and that every government contracting with the United States, and with a full knowledge that all their treaties until sanctioned by the constitutional majority of their Senate are, and must be considered, as merely inchoate and not consummated compacts, is entirely free to withhold its own ratification until it shall have knowledge of the ratification on their part. In the full powers of European governments to their ministers, the Sovereign usually promises to ratify that which his minister shall conclude in his name; and yet if the minister transcends his instructions, though not known to the other party, the sovereign is not held bound to ratify his engagements. Of this principle Great Britain has once availed herself in her negotiations with the United States. But the full powers of our ministers abroad are necessarily modified by the provisions of our Constitution and promise the ratification of treaties signed by them, only in the event of their receiving the constitutional sanction of cur government." Mr. Adams, Sec. of State, to Mr. Rush, Nov. 12, 1824, MS. Inst. U. President J. Q. Adams's message of Dec. 27, 1825, with correspondence Mere signing, by the Executive, of a treaty containing a clause for its ratification, in the usual form, is no guarantee that the treaty should be ratified, nor does a payment of an installment of money by the Executive as a preliminary payment under such a treaty which provides for a lease of foreign property bind the government to future payments. Mr. Evarts, Sec. of State, to Mr. Delmonte, Feb. 19, 1880, MS. Notes to "The ratifications are exchanged on the authority of powers conferred by the President. The power of ratification is not delegated. "As all treaties must receive this final ratification, the President may at will, so far as depends on his constitutional power, withhold from the Senate a treaty already negotiated. Of treaties thus withheld the Monroe-Pinkney treaty with Great Britain of December 31, 1806, a treaty with Mexico signed March 21, 1853, relative to a transit way across the Isthmus of Tehuantepec, an extradition convention with Colombia signed March 30, 1872, a convention with Switzerland signed February 14, 1885, for the protection of trademarks, and the convention adopted in April, 1890, by the First International American Conference for the establishment of a tribunal of arbitration, are examples. Or the treaty may be submitted, accompanied with recommendations for amendments. President Pierce in submitting on February 10, 1854, the Gadsden treaty of December 30, 1853, recommended certain amendments. President Cleveland in submitting, July 5, 1888, an extradition treaty signed May 7, 1888, with Colombia, called attention to changes suggested by the Secretary of State. On December 16, 1845, President Polk communicated to the Senate an extradition treaty, signed January 29, 1845, with Prussia and certain other German States, and at the same time sug gested a modification of Article III., in which it was stipulated, contrary to the rule then consistently maintained by the United States, that the contracting parties should not be bound to deliver up their own citizens. The Senate having failed to make the amendment in its resolution of June 21, 1848, advising the ratification, the President, for this as well as for other reasons, refused to ratify the treaty. "So also treaties may be withdrawn from the consideration of the Senate either to effect changes by negotiation or to terminate proceedings on them. A treaty with Belgium, signed November 4, 1884, regulating the right of succession to and the acquisition of property, was withdrawn from the Senate by President Arthur by a message of February 17, 1885, and was not resubmitted. President Cleveland in messages of March 13, 1885, April 2, 1885, and March 9, 1893, requested the return of treaties concluded by his predecessors-November 18, 1884, with Spain for commercial reciprocity; December 1, 1884, with Nicaragua relative to the construction of an interoceanic canal; December 4, 1884, with the Dominican Republic for commercial reciprocity; an article signed June 23, 1884, with the Argentine Confederation supplementary to the treaty of commerce of July 27, 1853; and the Hawaiian annexation treaty signed February 14, 1893. President Roosevelt, in a message of December 8, 1902, requested the return of a commercial convention with the Dominican Republic signed June 25, 1900, together with an additional article thereto, and a conven 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. The 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, no 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 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 66 "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 com-. missioners, 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 |