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 registration 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, H. 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, "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 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. 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 ratifications of the treaty of commerce with Great Britain of July 3, 1815, resolutions were introduced advising the President to pursue the negotiations in order to secure certain specified objects. See Compilation of Reports of Senate Com. on For. Rel. VIII. 22. See, also, Executive Journal of the Senate, XII. 126. 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 |