Joseph Ralston Hayden.

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^T^HIS volume is published by authority of the Exe-
■*- cutive Board of the Graduate School of the Univer-
sity of Michigan. A list of other volumes thus far
published or arranged is given at the end of this volume.






MACMILLAN «fe CO., Limited










iI5eto gork


London: Macmillan & Company, Limited


All rights reserved

CopjTight, 1920






This book is a study in detail of the treaty-
making powers of the United States Senate during
the formative period of then- history. This period
is conceived to extend from 1789 to just a Uttle
beyond the first twenty-five years of government
under the Constitution. No powers of the federal
government underwent a more interesting develop-
ment during this first quarter-century than did
those which have to do with the making of treaties.
There are good reasons for this. The treaty clause
of the Constitution is so flexible that the exact re-
lations of the Senate and the executive in treaty-
making could be worked out only in actual practice.
And there never has been a period in the history of
this nation when foreign relations — threats of war,
avoidances of armed conflicts, diplomatic defeats
and victories, treaties made and denounced — have
played so vital a part in the affairs of the govern-
ment and in the lives of the people. The young
republic was fixing her status in the family of nations
— finding her level among a jostling throng who
regarded her with indifferent, hostile, or designing
eyes. Consequently that part of her constitutional
organization which concerned treaty-making, and
foreign relations generally, was rapidly developed
by constant application to the problems of actual


After the War of 1812 the United States turned
her thoughts and her energies more largely into
domestic channels. Her treaty-making power was
exercised in a new spirit after 1815. But if the
spirit of American diplomacy has changed with the
generations since Monroe entered the WTiite House,
the manner in which this country has made the in-
ternational agreements which are also her national
laws has been altered but little. This is particularly
true of the manner in which the Senate has per-
formed its part in the making of treaties. The
Senate is a conservative body. Its procedure in
dealing with treaties and its relations with the ex-
ecutive in the performance of their jomt functions
are to-day very much as they were a century ago,
although quite different from what they were ex-
pected to be in 1789. It is for these reasons that
the first twenty-five years under the Constitution
have been said to be the formative period in the
history of the treaty-making functions of the

In the events of these years the writer has at-
tempted to discover the conception of the place of
the Senate in treaty-making then held by the
various departments of the government, to trace
the development of the procedure of the Senate in
the transaction of treaty business, to ascertain the
relations between the Senate and the executive in
this field, and to investigate the effect of the posi-
tion of the Senate in our constitutional system upon
the relations between the United States and other
nations. The study has been carried to the year
1817 for the purpose of examining the early exercise


of the treaty functions after they had reached their
normal development.

The writer makes grateful acknowledgment of
his obligations to Professor Jesse S. Reeves, under
whose dii-ection the work was undertaken and com-
pleted, to Professor Uh-ich B. Phillips for carefully
reading the text, and to his wife for valuable lit-
erary assistance. He is also indebted to The
American Journal of International Law for permission
to reprint as Chapter VIII an article which first
appeared in that magazine.

Ralston Ha yd en

Ann Akbor, Michigan
October, 1919




The First Exercise of the Treaty-making Power 1

Introduction to study of early period — French Consular
Convention, 1788 — History of negotiation — Advice and
consent to ratification — Personal relations between execu-
tive and Senate — Senate action based upon general prin-
ciple that obligation exists to ratify treaty signed by
authorized agent, and on promises of Congress to ratify
this convention — Jay's opinion — Relation between partici-
pation of Senate in negotiation and its obhgation to advise
and consent to ratification — Bearing on international
relations of the United States.


Development of Treaty-making Power through Action
ON Treaties with Indian Tribes, 178{>-1795 11

Problems of procedure solved by action on Indian treaties —
Treaties of Fort Harmar — Decided that advice and con-
sent of the Senate should be formally given to such pacts —
Senate refuses to act upon one of them — Personal nature
of relations between executive and Senate — Discussion of
the constitutional part assigned to the Senate in the negotia-
tion of treaties — Provision made for personal meetings with
the President — Conference on negotiation of treaty with
Creek Indians proves personal consultation to be imprac-
ticable — Subsequent action on Creek treaty — In treaty
with Cherokees Senate advice received in advance, but not
in personal consultation — Senate promises to ratify treaty
concluded in accordance with instructions which it has
approved — Ratification — Rejection of General Putnam's
treaty of 1793 — Other treaties with Indian tribes during
Washington's administrations — Changes in procedure —
Senate approval of additional articles.




The Treaties with Algiers and Spain, 1790-1796 ... 40
Complicated problem presented by commerce in Mediter-
ranean — Senate adopts committee report advising ransom
of Algerine captives and confirmation of treaty with Morocco
— President requests appropriation in advance — Senate
advises suspension of negotiation for ransom of captives —
Significance of this action — Injiext session Senate advises
ransom of captives and negotiation of treaty with Algiers —
Struggle with President, who desires appropriation in ad-
vance — Victory of Washington — Negotiation and rati-
fication of treaty — Treatj^ of San Lorenzo el Real — In con-
firming appointment of negotiators the Senate agrees to
consent to ratification of treaty negotiated by them —
Senate consents to extension of their powers — Ratification
of treaty.


The Jay Treaty 58

Early relations of the President and the Senate upon the
subject of Anglo-American affairs — Washington asks and
receives advice in 1 790 — Results of mission of Gouverneur
Morris laid before the House and the Senate — Drifting
towards war — Peace mission planned by Hamilton and
small group of Federahst Senators — Part played by group
in securing consent of Wasliington in the selection of the
envoy, in securing his acceptance by the Senate, and in
drawing his instructions — Senate declines to ask for in-
structions when nomination is confirmed — Struggle for
ratification of the treaty — Amended by its friends — It is
decided that resubmission of amended treaty is not neces-
8ar>' — England makes no objection to conditional ratifica-
tion — Senate fails to preserve secrecy on treaty — Accept-
ance of Jay treaty by Senate tends to confirm President in
practice of not consulting Senate in advance as to details
of proposed treaties — Summary.


The Creek Treaty of 1796 95

The Creeks, the State of Georgia, and the United States —
General nature of proposed treaty laid before Senate when



commissioners arc nominated — Georgia objects to treaty
and appeals to Senate — Senate amends treaty — Inter-
pretation of French treaty of 1778 — Execution of tre.aty ^^,^
with Algiers — Summary of exercise of treaty-making power
during Washington's administrations.


Treaties of the Administration of John Adams 107

Procedure on Tripolitan treaty of 1796, and the supplementary
article to the Jay treaty — Senate amendments to the com-
mercial treaty of 1797 with Tunis — Prussian treaty of 1799
indicates possibility of Senate control through powers of ap-
pointment — The Senate amendments to treaty of 1800
with France an example of influence of Senate in foreign
affairs, and of its participation in negotiation — Formulation
of Senate rules of procedure on treaties.


The Senate and the Treaties of Thomas Jefferson. . . 130
Claims convention of 1802 with Spain — Vacillation of Senate
— Final acceptance, and result of delay — Senate resents in-
terference of American lawyers — The Louisiana Purchase — r
President given a free hand in negotiation — Cabinet ad-
vises Jefferson not to lay treaty before Senate and House at
same time — Prompt advice to ratify given by Senate —
Attempt to advise further negotiation — The King-Hawkes-
bury Convention — Senate rejects Article 5 — England
declines to accept principle that the United States ' may
ratify with amendments — John Quincy Adams and the
treaty of 1805 with Tripoli.


The Genesis of the Senate Committee on Foreign

Relations 169

Committee grew out of legislative, not executive, functions of
Senate during period of stress — Committees on foreign
relations during administrations of Washington — No regu-
lar procedure on subject, and no standing committee —



Little progress during Adams's administration — Natural
tendency in direction of system later evolved — From 1807
on, more rapid development through custom of referring
various parts of annual message to select committees which,
in fact, sat throughout session and to which were referred
most matters within their respective fields — "Committee
on Foreign Relations" — Specialization of functions — In
1816 becomes the first standing committee of the United
States Senate.


The Treaty-making Powers of the Senate at the End

OF the Formative Period, 1815-1817 196

Procedure on Treaty of Ghent, commercial convention of
1815 wath Great Britain, and treaty of peace with Algiers —
'^ In its main outhnes procedure of Senate on treaties fixed —
Principle that ordinarily Senate shall not, on its own initi-
ative, advise the President to negotiate in accordance with
detailed plan — Action in 1806 and in 1815 — Acceptance
by foreign states of treaties amended by the Senate — Negoti-
ations which secured acquiescence of Sweden to Senate
amendments to treaty of 1816 with Sweden and Norway.

Bibliography 217

Index 227



The First Exercise of the Treaty-making

On the twenty-fifth of May, 1789, while the
Senate of the first Congress under the Constitution
was engaged in debating the impost bill, a message
was announced from the President of the United
States to be delivered by General Knox. The dis-
tinguished messenger advanced, laid a bulky pack-
age of papers on the table before John Adams, the
President of the Senate, and withdrew. The mes-
sage transmitted to the upper house of the national
legislature for its constitutional action two treaties
with Indian tribes which had been negotiated and
signed under the authority of the Continental
Congress, together with sundry papers respecting
them. It was ordered that the message of the
President, with the accompanying papers, lie on
the table for consideration, and the Senate returned
to the debate in which it had been engagedi^ Thus

1 Journal oj the Exeaitive Proceedings of the Senate of the United
Stales of America. From the Commencement of the First to the Ter-
mination of the Nineteenth Congress (Washington, 1828), I. 3. Cited
below as Sen. Exec. Jour.

The Journal of William Maclay, United States Senator from
Pennsylvania, 1789-1791, p. 49 (ed. 1890).



for the first time the Senate was faced with the ex-
ecutive duties laid upon it by the treaty clause of
the Constitution. This clause declares, ''He [the
President] shall have power, by and with the advice
and consent of the Senate, to make treaties, provided
two-thirds of the Senators present concur; ..."
In these few words one of the most important powers
of government is vested in the chief executive and
the upper house of the Congress of the United
States.^ This bare grant told Washington and the
members of the first Senate, as it tells us, merely
that they were the joint possessors of this great
power. With that elasticity in details which calls
forth the admiration of the most discerning critic
of our commonwealth, the Constitution left to suc-
cessive Senates and to successive Presidents the
problem and the privilege of determining under
the stress of actual government the precise manner
in which they were to make the treaties of the nation.
At no subsequent period was more done to fix the
relative powers of the President and the Senate in
treaty-making, and to determine when and how the
Senate should exercise its functions in this field
than during the administrations of President Wash-
ington; the precedents which were then set, either
on the basis of fii'st-hand knowledge of the intention

1 Burr, The Treaty-Making Power of the United States and the
Methods of Its Enforcement as Affecting the Police Powers of the
Slatis, gives a clear account of the evolution of the treaty clauses of
the Constitution in the Federal Convention. See also Moore, Inter-
national Law Digest, V., xviii, for a discussion of the treaty power,
the negotiation and conclusion of treaties, their ratification, agree-
ments not submitted to the Senate, and the enforcement, inter-
pretation, and termination of treaties.


of the framers of the Constitution, or through the
necessities of the moment, have governed, in large
part, the manner in which these functions have been
performed ever since.

Certainly if any body of men ever have been quali-
fied by experience to complete harmoniously in
working detail the general plan of the constitutional
convention of 1787, those men were the early
Senators, the members of the early cabinets, and
the first President. We have only to recall the
personnel of these early governments to realize the
extent to which this is true. Of the sixty-six men
who served in the Senate during Washington's ad-
ministrations, thirty-one had been members of the
Contmental Congress or of the Congress of the Con-
federation, twelve had helped draft the Constitution
in the convention at Philadelphia, and ten had been
members of state conventions which had ratified
the federal instrument. Many had been active in
organizing the rebellion and had served with dis-
tinction in the revolutionary forces and in the legis-
latures and constitutional conventions of their own
states. Together with the members of the executive
branch of the government they formed a body of
men trained in politics and statesmanship, and emi-
nently qualified to apply the newly made Consti-
tution, not only wisely, but in the spirit of the great
convention which had framed it, and of the state
assemblies whose action had made it the supreme
law of the land.



Although the two pacts signed with Indian tribes
at Fort Harmar and submitted to the Senate on
May 2, 1789, were the first treaties to be laid be-
fore that body, it was to the ratification of a con-
sular convention with France that the Senate first
gave its advice and consent. This convention was
a heritage from the government under the Con-
federation. Its previous history is succinctly told
by J. C. B. Davis, as follows:

On the 25th of January, 1782, the Continental Congress
passed an act authorizing and directing Dr. Franklin to
conclude a Consular Convention with France on the
basis of a scheme which was submitted to that body.
Dr. Franklin concluded a very different convention,
which Jay, the Secretary for Foreign Affairs, and Congress
did not approve. Franklin having returned to America,
the negotiations then fell upon Jefferson, who concluded
the Convention of 1788.^

On June 11, 1789, Washington laid this conven-
tion before the Senate.- One of the striking aspects
of the subsequent proceedings is the close relation-
ship which was set up between the Senate and John
Jay, who still filled the office of Secretary of Foreign
Affairs, which had been held over from the govern-
ment under the Confederation. The message sub-
mitting the convention, after briefly mentioning the

' Davis, "Notes Ui)on tlie Foreign Treaties of the United States,"
in Treaties and Convenlions Concluded Between the United States
of America and Other Powers since July 4, 1776, pp. 1217-1406.
See pp. 1293-129.5. Davis here gives a brief account of the negoti-
ation of the treaty and the action of the Senate upon it.
^ Sen. Exec. Jour., I. .5.


purposes of the treaty and some of the circumstances
of its negotiation concluded:

I now lay before you the original, by the hands of
Mr. Jay, for your consideration and advice. The pap(^rs
relative to this negotiation are in his custody, and he
has my orders to communicate to you whatever official
papers and information on the subject he may possess
and you may require.

When received, the President's message was
simply read and ordered to lie for consideration.^
The Senate evidently desired to proceed in this new
business with the care and caution commensurate
with its importance, for on the following day the
message was again read before an order was adopted,
''That Mr. Jay furnish the Senate with an accurate
translation of the Consular Convention between His
Most Christian Majesty and the United States, and
a copy thereof for each member of the Senate." -
On the seventeenth the Senate sought further to
assure itselt of the accuracy of this translation by
adopting an order that Jay examine it and report his
opinion of its fidelity. It also sought further infor-
mation by asking the Secretary to lay before it all
the papers in his custody relative to the negotiation,
and whatever official papers and information on the
subject he might possess.^ Four days later Jay was
requested "to attend the Senate to-morrow, at 12
o'clock, and to bring with hmi such papers as are
requisite to give full information, relative" to the
convention. Accordingly on the twenty-second the
Secretary "made the necessary explanations," after

' Sen. Exec. Jour., I. 5. ^ Sen. Exec. Jour., I. (3. ^ Ibid.


which he was asked to give his opinion as to how far
he conceived the faith of the United States to be en-
gaged to ratify the convention in its existing ''sense
or form." On the following Monday, this opinion
was presented in writing. Jay considered in detail
the circumstances in which the treaty had been
negotiated, and ended with the conclusion that it
should be ratified by the United States. Two days
later the Senate unanimously consented to the con-
vention and advised the President to ratify it.^

This direct and personal intercourse between the
executive and the Senate is an indication of the
fueling which seems to have been prevalent that
the latter really was a council of advice upon treaties
and appointments — a council which expected to
discuss these matters directly with the other branch
of the government. There is much evidence to
support this view and also the ■ conclusion that
the practice of personal consultation failed to be-
come firmly established largely because it proved
to be an inconvenient and impracticable method of
transacting business. For its knowledge of treaties
the Senate came to depend, even during Washington's
administrations, upon documents submitted rather
than upon verbal reports. In the consideration of
the French consular convention both means were

A second point of interest offered by this con-
vention is to be found in the motives which led the
Senate to advise and consent to its ratification.
On July 22, after Jay had personally explahied the

• .Sen. Exec. Jour., I. 7, 8, 9; see Moore, International Law Di-
gest, V. 587, for brief statement.


status of the convention, the Senate formally pro-
posed this question to him:

Whereas a convention referred this day to the Senate,
bears reference to a convention pending between the most
Christian King and the Ignited States, previous to the
adoption of our present Constitution —

Resolved, That the Secretary of Foreign Affairs, \uider
the former Congress, be requested to peruse the said
Convention, and to give his opinion how far he conceives
the faith of the United States to be engaged, either by
former agreed stipulations, or negotiations entered into
by our Minister at the Court of Versailles, to ratify, in
its present sense or form-, the Convention now referred to
the Senate.^

In the written reply which he handed to the
Senate five days later Jay recommended ratifica-
tion. This recommendation seems to have been
based upon two grounds: first, the general prin-
ciple that a government was bound to ratify a
treaty concluded by its minister acting in accordance
with his instructions; second, that the Continental
Congress k^d specifically promised to ratify this
particular convention under certain conditions,
which conditions had been met by France.

The report states that in the opinion of the
Secretary :

There exist, in the convention of 1788, no variations
from the original scheme sent to Dr. Franklin in 1782,
nor from the convention of 1784, but such as render it
less ineligible than either of the other two.

That, ahhough he apprehends that this convention will

prove more inconvenient than beneficial to the United

States, yet he thinks that the circumstances under which it

was formed render its being ratified by them indispensable.

» Sen. Exec. Jour., I. 7.


The circumstances alluded to, are these:

The original scheme of 1782, however exceptionable,
was framed and agreed to by Congress.

The convention of 1784 was modeled by that scheme,
but in certain instances deviated from it; but both of
them were to be perpetual in their duration.

On account of these deviations, Congress refused to
ratify it, but promised to ratify one corresponding with
the scheme, provided its duration was limited to eight
or ten years; but they afterwards extended it to twelve.

Jay then cited a paragraph from the instruc-
tions sent to Jefferson in 1786, and quoted a letter
accompanying them in which the Congress clearly
recognized its obligation to ratify a treaty made
in accordance with the scheme which, through
their envoy, they had proposed to France. This
recognition was in the following words:

" The original scheme of the convention is far from being
unexceptionable, but a former Congress having agreed
to it, it would be improper now to recede ; and therefore
Congress are content to ratify a convention made con-
formable to that scheme, and to their act of 25th January,
1782, provided a clause limiting its duration be added."

The report then continues:

On the 27th July, 1787, Congress gave to Mr. Jefferson
a commission, in general terms, to negotiate and conclude
with his most Christian Majesty, a convention for regu-
lating the privileges, &c., of their respective Consuls.

In one of the letters then written him is this paragraph:

''Congress confide fully in your talents and discre-
tion, and they will ratify any convention that is not liable
to more objections than the one already, in part concluded,
provided that an article, limiting its duration to a term
not exceeding twelve years be inserted."


As the convontion in question is free fioni several ol)-

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Online LibraryJoseph Ralston HaydenThe Senate and treaties, 1789-1817, the development of the treaty-making functions of the United States Senate during their formative period → online text (page 1 of 19)