ingston as plenipotentiaries, with full powers "to enter into a treaty or convention with the First Consul of France, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof." The nominations of J. Q. Adams, James A. Bayard, Henry Clay, and Jonathan Russell, were advised and consented to January 18, 1814, and that of Albert Gallatin, who had previously been rejected on the grounds that the duties. of an envoy were incompatible with those of the Secretary of the Treasury, February 9, as ministers plenipotentiary and extraordinary to negotiate and sign a treaty of peace and a treaty of commerce with Great Britain.3 Since 1815 this course has been exceptional. Nearly 'Executive Journal, vol. i, p. 431. 'His successor in the office of Secretary of the Treasury was confirmed Feb. 9, immediately preceding his own confirmation as minister to negotiate with Great Britain. Ibid., vol. ii, pp. 355, 389. 'Ibid., pp. 454, 471. See for other confirmations, during this period, of special commissioners appointed to negotiate treaties, ibid., vol. i, pp. 265, 310, 311, 432, 440; vol. ii, pp. 25, 29. In a minority report of the Senate Committee on Foreign Relations, signed by John T. Morgan, Eli Saulsbury, Joseph E. Brown and H. B. Payne upon the unratified fisheries treaty with Great Britain of Feb. 15, 1888, this question was examined in detail. The report states that the "whole number of persons appointed or recognized by the President without the concurrence or advice of the Senate, or the express authority of Congress, as agents to conduct negotiations and conclude treaties [prior to June 25, 1887] was four hundred and thirty-eight. Three have been appointed by the Secretary of State and thirty-two have been appointed by the President with the advice and consent of the Senate." According to the list attached to the report, only the commissioners to the Panama Congress, and those of 1880 to negotiate with China, had, since 1815, been specially commissioned by and with the advice and consent of the Senate. Sen. Doc. 231, pt. 8, p. 332 et seq., 56th Cong., 2d Sess. one-third of all the treaties concluded have been signed at Washington by the Secretary of State, while a large proportion of the remainder have been negotiated through regular diplomatic representatives confirmed as such by the Senate, but commissioned to enter upon the negotiations solely on Executive authority. In consenting to the ratification of treaties concluded by special agents appointed without its consent, the Senate has taken occasion to express its disapproval of the practice. Treaties with the King of Siam and the Sultan of Muscat were signed March 20, and September 21, 1833, respectively, on the part of the United States by Edmund Roberts, a special and secret agent commissioned for this purpose by the President. Immediately after advising their ratification, to which no opposition appears to have been made, a resolution was introduced declaring that, while the Senate deemed the ratification expedient, it felt itself constrained by a high sense of its constitutional duty to express its decided disapprobation of the practice of appointing diplomatic agents to foreign countries by the President alone, without the advice and consent of the Senate." On the motion of Mr. Webster the resolution was tabled.' In the resolutions of January 9, 1883, advising and consenting to the ratification of the treaty with the Kingdom of Korea, signed May 22, 1882, on the part of the United States, by Commodore R. W. Shufeldt, specially commissioned by the President, the Senate declared that it did not by this act “admit or acquiesce in any right or constitutional power in the President to authorize" any person to negotiate treaties with a foreign power unless such person had been appointed for such purpose or clothed with such power by 1Executive Journal, vol. iv, pp. 413, 445. and with the advice and consent of the Senate, except in the case of a Secretary of State or a diplomatic officer appointed by the President to fill a vacancy during the recess of the Senate. The purpose of the declaration was to prevent the means employed being drawn into precedent. A resolution of similar import was introduced into the Senate July 20, 1888, relative to the negotiation of the unratified fisheries treaty with Great Britain. The Executive has recognized no limitation in this respect. Among treaties thus concluded, by special agents employed by the President, with countries with which diplomatic relations did not at the time exist, besides the three mentioned above, may be enumerated those signed in 1815 and 1816 with Algiers; May 7, 1830, with the Ottoman Porte; September 16, 1836, with Morocco; November 26, 1838, with Sardinia; various treaties of 1846 and 1847, negotiated by A. Dudley Mann with certain of the German states; February 2, 1848, with Mexico; November 25, 1850, with Switzerland; March 31, 1854, June 17, 1857, and July 29, 1858, with Japan; May 29, 1856, with Siam; November 3, 1864, with Hayti; February 8, 1867, with the Dominican Republic; December 22, 1871, with the Orange Free State; November 16, 1884, with Egypt; and July 3, 1886, with Zanzibar. Special agents have also been employed instead of the regular diplomatic officers when the latter were available. For instance, the recent reciprocity treaty with Cuba was negotiated by Gen. T. H. Bliss, who was specially commissioned by the President, although a diplomatic officer had been accredited to the new republic. Of the five commissioners appointed by the Presi'Ibid., vol. xxvi, p. 314. 1 Executive Journal, vol. xxiii, p. 585. dent, September 13, 1898, to negotiate a treaty of peace with Spain, three were prominent members of the Senate, and of the Committee on Foreign Relations, a procedure quite without precedent. 2 THE RATIFICATION Treaties are ratified by the President with the advice. and consent of the Senate. (a) The Senate.-The consular convention with France, signed November 14, 1788, on the authority of instructions approved by the Congress, which was the treatymaking power under the Articles of Confederation, was communicated to the Senate June 11, 1789, and was the first to come before the government under the Constitution for ratification. Many objections having been raised against it, Jay, who continued in charge of foreign affairs, was, on July 22, requested to give his opinion how far he conceived the faith of the United States to be engaged to ratify the convention in its then existing form. In his report to the Senate, on July 25, he observed that the original scheme, however exceptionable, was framed and agreed to by Congress; that the refusal to ratify the convention of 1784, because of its deviation from that scheme, was accompanied by a promise to ratify one in conformity with it, provided that the new convention should be limited in its duration; and that in the commission to Jefferson, Congress had likewise promised ratification if these conditions were complied with. Although he apprehended that the new convention would prove more inconvenient than beneficial to the United States, yet he thought the circumstances under which it 'Various Indian treaties were submitted May 25, but were not considered by the Senate until after its action on the French convention. was formed rendered its ratification by the Senate indispensable. On July 29 it was unanimously resolved that "the Senate do consent to the said convention, and advise the President of the United States to ratify the same." So also in its action on Indian treaties, negotiated on its advice and consent, the Senate recognized an obligation to confirm what it had already authorized. The committee, to which the treaty of July 2, 1791, with the Cherokees had been referred, observed, in its report to the Senate, that the treaty strictly conformed to the instructions of the President, founded on the advice and consent of the Senate, given August 11, 1790.3 In the ratification of the Jay treaty, the position of the Senate was essentially different. Although Jay's nomination as minister to England was submitted to, and confirmed by the Senate, his instructions were not submitted to that body, and in his negotiations he acted under the directions of but one branch of the treatymaking power. No doubt could therefore exist as to the constitutional right of the Senate as a co-ordinate branch of the treaty-making power to give an independent approval or disapproval of the treaty thus negotiated. If the treaty were in the main acceptable, but contained objectionable provisions, two courses were at this stage open to the Senate-to withhold action altogether until the desired changes had been effected, or to advise the ratification on condition that the changes be made. On June 22, 1795, a motion was introduced providing that further consideration of the treaty be postponed, and that the President be recommended to proceed to effect certain enumerated changes. The ratification was, however, on 1Executive Journal, vol. i, p. 7. Executive Journal, vol. i, p. 9. Dip. Cor. 1783–9, vol. i, pp. 304–322. 'Ibid., p. 88. |