The Senate and treaties, 1789-1817; the development of the treaty-making functions of the United States Senate during their formative period

' I THIS 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.

THE SENATE AND TREATIES
1789-1817

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THE SENATE
AND TREATIES

1789-1817 £

THE DEVELOPMENT OF THE TREATY-
MAKING FUNCTIONS OF THE
UNITED STATES SENATE
DURING THEIR FORM-
ATIVE PERIOD

BY

RALSTON HAYDEN, PH.D.

ASSISTANT PROFESSOR OF POLITICAL SCIENCE
UNIVERSITY OF MICHIGAN

Potfc

THE MACMILLAN COMPANY
LONDON: MACMILLAN & COMPANY, Limited

1920
All rights reserved

i Copyright, 1920

By THE UNIVERSITY OF MICHIGAN

IK

573

t^ 2.0

THE -PLIMPTON • PRESS
NOR WOOD- MASS- U • 8- A

TO
MY MOTHER AND FATHER

PREFACE

THIS book is a study in detail of the treaty-
making powers of the United States Senate during
the formative period of their history. This period
is conceived to extend from 1789 to just a little
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 hi 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
government.

X PREFACE

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 White 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 joint 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
Senate.

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

PREFACE XI

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 direction the work was undertaken and com-
pleted, to Professor Ulrich 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 HAYDEN

ANN ARBOR, MICHIGAN
October, 1919

TABLE OF CONTENTS

CHAPTER I

PAGE

THE FIRST EXERCISE OP 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 obligation to advise
and consent to ratification — Bearing on international
relations of the United States.

CHAPTER II

DEVELOPMENT OP TREATY-MAKING POWER THROUGH ACTION
ON TREATIES WITH INDIAN TRIBES, 1789-1795 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.

XIV CONTENTS

CHAPTER III

PAGE

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 — In next 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 — Treaty 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.

CHAPTER IV

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 1790 — 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 Federalist Senators — Part played by group
in securing consent of Washington 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-
sary — 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.

CHAPTER V

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

CONTENTS XV

PAGE

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

CHAPTER VI

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.

CHAPTER VII

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 —
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.

CHAPTER VIII

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 —

XVI CONTENTS

PAGE

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.

CHAPTER IX

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 with Great Britain, and treaty of peace with Algiers —
In its main outlines 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
SENATE AND TREATIES

CHAPTER I

THE FIRST EXERCISE OF THE TREATY-MAKING
POWER

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.1 Thus

1 Journal of the Executive Proceedings of the Senate of the United
States 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).

1

2 THE SENATE AND TREATIES

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.1 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 first-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
Stattd, 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.

TREATY-MAKING POWER 3

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
Continental 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.

THE CONSULAR CONVENTION WITH FRANCE, 1788

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 1788.1

On June 11, 1789, Washington laid this conven-
tion before the Senate.2 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

1 Davis, " Notes Upon the Foreign Treaties of the United States,"
in Treaties and Conventions Concluded Between the United States
of America and Other Powers since July 4, 1776, pp. 1217-1406.
See pp. 1293-1295. Davis here gives a brief account of the negoti-
ation of the treaty and the action of the Senate upon it.
2 Sen. Exec. Jour., I. 5.

TREATY-MAKING POWER 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 papers
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.1
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 itself 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.3 Four days later Jay was
requested "to attend the Senate to-morrow, at 12
o'clock, and to bring with him 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

1 Sen. Exec. Jour., I. 5. 2 Sen. Exec. Jour., I. 6. J Ibid.

6 THE SENATE AND TREATIES

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.1

This direct and personal intercourse between the
executive and the Senate is an indication of the
feeling 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
used.

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

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

TREATY-MAKING POWER 7

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 United States, previous to the
adoption of our present Constitution —

Resolved, That the Secretary of Foreign Affairs, under
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, hi
its present sense or form, the Convention now referred to
the Senate.1

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 had 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, although 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.

1 Sen. Exec. Jour., I. 7.

8 THE SENATE AND TREATIES

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."

TREATY-MAKING POWER 9

As the convention in question is free from several ob-
jections to which the one of 1784 was liable, and is, in
every respect, preferable to it, and as it contains a clause
limiting its duration to twelve years, it seems to follow,
as of necessary consequence, that the United States ought
to ratify it.1

Considering this transaction from beginning to
end, it seems evident that from the time the Con-
tinental Congress of 1782 gave its assent to a plan
for a convention, which its agent was to negotiate
with France, until the final act of ratification in
1789 the government of the United States had
acted in accordance with the principle of inter-
national law, that except under extraordinary cir-
cumstances a nation was bound to ratify any agree-
ment which it had instructed its representative to
make.2 That the Congress of the Confederation
felt the weight of this obligation is conclusively
demonstrated by its instructions and letters to
Jefferson. Later because of the promises in these
letters and because of a recognition of the principle
which had given rise to them, the Secretary of
Foreign Affairs under the Constitution informed the
Senate that in his opinion the faith of the nation
was pledged to ratify the convention which ulti-
mately had been concluded. And finally the Senate
advised ratification in accordance with this opinion
even though it was believed that the nation would
be the loser by the treaty ratified.

1 Sen. Exec. Jour., I. 7-8.

2 Moore, International Law Digest, V. 184-202, discusses thor-
oughly the principle involved, quoting Vattel and other older as
well as modern American and European authorities, and the opinions
of American statesmen on the subject. See also Foster, The Practice
of Diplomacy, Ch. XIII.

10 THE SENATE AND TREATIES

Yet despite the scrupulous observance of the rule
of international law in this instance, the later in-
terpretation and application of the constitutional
provision which divides the treaty-making power of
the United States between the President and the
Senate soon impelled the new state to demand ex-
emption from the ancient principle. As long as
the President negotiated treaties actually "by and
with the advice and consent of the Senate" the
United States possessed no better grounds than any
other nation for declining to ratify, or for ratifying
partially and conditionally, agreements signed by
its plenipotentiaries. But when the sanction of the
Senate was sought only after negotiation had been
completed, it became necessary for this country to
secure the right of rejection or amendment if the
constitutional powers of the Senate were to amount
to more than an empty form. There was, then,
an intimate relation between the manner in which
the Senate was to exercise its treaty-making powers
and the position of the United States with reference
to the principle of international law involved. The
ratification of the French consular convention il-
lustrates the position of the Senate at the outset.

CHAPTER II

DEVELOPMENT OF TREATY-MAKING POWER

THROUGH ACTION ON TREATIES WITH

INDIAN TRIBES, 1789-1795

DURING the early nineties the Senate played an
active part in negotiations which were in progress
between the United States and Great Britain,
Algiers, and France. None of the resulting treaties
came before it for final action, however, until 1795,
while in the meantime the treaty-making power was
being vigorously exercised in concluding agreements
between the United States and various Indian
tribes.1

TREATIES OF FORT HARMAR

The first of these agreements were the two treaties
of Fort Harmar submitted to the Senate on May 25,
1789. The consideration of the problems which arose
in connection with these treaties occupied the at-
tention of the Senate at intervals throughout prac-
tically all of the first session of Congress, and in the
end it withheld its advice and consent to the rati-
fication of one of them. In the meantime, however,

1 Butler, The Treaty-Making Power of the United States, II. 203,
and Ch. XIV, passim, discusses treaties with Indian tribes; also
Burr, The Treaty-Making Power of the United States, pp. 383-384,
considers the constitutional and legal status of treaties with Indian
tribes.

11

12 THE SENATE AND TREATIES

one question had been definitely decided — namely,
that the advice and consent of the Senate should
be given to the ratification of treaties with Indian
tribes in the same form as to treaties with foreign
nations. The circumstances in which this decision
was reached reveal how both the President and the
Senate were feeling their way carefully and thought-
fully in the determination of the technique of treaty-
making.

The papers which General Knox, under whose
superintendence the business had been transacted,
laid before the Senate included his report to the
President, explaining the circumstances under
which the treaties had been negotiated and signed.
In this report the Secretary suggested the necessity,
on constitutional grounds, of an explanation of the
reservation in the treaty with the Six Nations of
six square miles around the Fort at Oswego, which
reservation was within the territory of the State
of New York. He concluded by observing, "That,
if this explanation should be made, and the Senate
of the United States should concur in their approba-
tion of the said treaties, it might be proper that the
same should be ratified and published, with a
proclamation enjoining the observance thereof."
Two documents accompanied the report, No. 1
being a representation to the old Congress against
the treaties superseded, while No. 2 was a copy of
the instructions under which the new treaties were
negotiated.1

It was not until June 12 that the Senate found
time to turn its attention to these treaties. On

1 Sen. Exec. Jour., I. 3-5.

DEVELOPMENT OF TREATY-MAKING POWER 13

that day they were considered and put hi charge
of a committee of three, Few, Read, and Henry.1
Two months later the committee reported: 2

That the Governor of the Western Territory, on the
9th day of January, 1789, at Fort Harmar, entered into
two treaties, one with the sachems and warriors of the
Six Nations, the Mohawks excepted, the other with the
sachems and warriors of the Wyandot, Delaware, Ottawa,
Chippewa, Pattawattima, and Sacs nations — that those
treaties were made in pursuance of the powers and in-
structions heretofore given to the said Governor by the
late Congress, and are a confirmation of the Treaties of
Ft. Stanwix, in October, 1784, and of Ft. Mclntosh, in
January, 1785, and contain a more formal and regular
conveyance to the United States of the Indian claims to
the lands yielded to these States by the said treaties of
1784 and 1785.

Your Committee, therefore, submit the following reso-
lution, viz:

That the treaties concluded at Ft. Harmar, on the
9th day of January, 1789 between Arthur St. Clair, Esq.,
Governor of the Western Territory, on the part of the
United States, and the sachems and warriors of the Six
Nations, (the Mohawks excepted,) . . . and the sachems
and warriors of the Wyandot ... and Sacs nations, be
accepted; and that the President of the United States
be advised to execute and enjoin an observance of the
same.3

Seemingly the committee felt it to be a ,most
important part of its duty to determine whether
the treaties referred to it were in accord with the
instructions under which they were negotiated, a
feeling shared by most of .the early committees on
treaties. And it thought proper, also, to follow
closely, in the form of the resolution, the lead given

1 Sen. Exec. Jour., I. 6. > 2 Ibid., p. 17. 3 Ibid., p. 24.

14 THE SENATE AND TREATIES

in the last clause of General Knox's report to the
President.

After consideration this report was allowed to lie
over until September 8, when a resolution was
adopted advising the President "to execute and
enjoin an observance of" the treaty with the Wyan-
dots and other tribes. No mention was made in
the resolution of the treaty with the Six Nations,
although it is recorded in the journal that both
were considered.1 The reason for the failure of the
Senate to act on this treaty soon appeared.

An attested copy of the resolution adopted having
been laid before the President, the Senate soon re-
ceived a further communication from him on the
subject, again delivered by General Knox, who
meanwhile had been appointed the first Secretary
of War under the new government.2 In this mes-
sage Washington expressed the opinion that treaties
with Indian tribes should be ratified under the
same procedure as was intended to be followed with
reference to foreign treaties, although it is clear that
he did not think that such ratification was required
by the Constitution. He put the matter squarely
up to the Senate, however, in these words: "It
strikes me that this point should be well considered
and .settled, so that our national proceedings, in
this respect, may become uniform, and be directed
by fixed and stable principles." Following this
general statement is a paragraph which reveals how
in the original submission he had intentionally left
to the Senate a free field in suggesting the procedure
to be followed. Washington said:

1 Sen. Exec. Jour., I. 25. 2 Ibid., pp. 26, 27.

DEVELOPMENT OF TREATY-MAKING PO/WER 15

The treaties with certain Indian Nations, which were
laid before you with my message of the 25th of May
last, suggested two questions to my mind, viz: 1st,
Whether those treaties were to be considered as perfected,
and consequently as obligatory, without being ratified?
If not, then 2dly, Whether both, or either, and which of
them, ought to be ratified? On these questions I request
your opinion and advice.1

The Senate committed this message to another
committee of three members, Carroll, King, and
Read.2

In its report, presented next day, this committee
expressed the opinion that, in view of the fact that
in the past Indian treaties had been considered as
fully completed upon signature and without solemn
ratification, the formal ratification of the treaty
with the Wyandots and other Indian nations was
not expedient or necessary; and accordingly that
the resolution of the Senate of September 8 was all
that was required in the case, since it authorized
the President to " enjoin a due observance" of the
treaty. The committee further reported that as to
the treaty with the Six Nations, "from particular
circumstances affecting the ceded lands, the Senate
did not judge it expedient to pass any act concerning
the same." 3

This report, however, proved to be unacceptable
to the majority of the Senate and in the end Wash-
ington's suggestion as to formal ratification was
adopted. On the following Tuesday, September 22,
a resolution was passed ratifying in form the treaty
with the Wyandots et al.; but in the case of the
treaty with the Six Nations the Senate declined to

1 Sen. Exec. Jour., I. 27. 2 lUd. 3 Ibid., pp. 27, 28.

16 v THE SENATE AND TREATIES

accept any responsibility either of a positive or
of a negative sort. As the journal puts it, "And
it being suggested that the treaty concluded at
Fort Harmar . . . may be construed to prejudice
the claims of the States of Massachusetts and New
York, and of the grantees under the said states re-
spectively. Ordered, That the consideration thereof
be postponed until next session of Senate." 1 The
Senate evidently continued to deem it inexpedient
to act in this delicate matter, for no record of any
further consideration appears in the journals of the
next or of subsequent sessions.

Thus by a process of give and take the Senate and
the executive worked out the problems imposed by
their joint functions. The direct and personal con-
tact which still marked their relations in treaty-
making is illustrated by the appearance before the
Senate of General Knox as the head of the executive
department concerned.

TREATY WITH THE CREEK INDIANS, 1789

Coincidently with the discussion over the rati-
fication of the Fort Harmar treaties arose the
question of the proper role of the Senate in the
negotiation of such agreements and of foreign
treaties. Very probably the early Senators ex-
amined the treaty clause itself to see what light it
might throw upon this question. This clause ap-
pears hi the Constitution as follows: "He [the
President] shall have power, by and with the ad-
vice and consent of the Senate, to make treaties,
1 Ibid., p. 28.

DEVELOPMENT OF TKEATY-MAKING POWER 17

provided two-thirds of the Senators present concur;
and he shall nominate, and by and with the advice
and consent of the Senate, shall appoint ambas-
sadors," etc.

Senator Henry Cabot Lodge, in our own day,
has quoted the provision in regard to nominations
and appointments, in order to define more fully
the preceding one relating to treaties.1 And he
points out that it is

well to note that the carefully phrased section gives the
President absolute and unrestricted right to nominate,
and the Senate can only advise and consent to the ap-
pointment of, a given person. All right to interfere in
the remotest degree with the power of nomination and
the consequent power of selection is wholly taken from
the Senate. Very different is the wording of the treaty
clause. There the words "by and with the advice and
consent of" come in after the words "shall have power"
and before the power referred to is denned. The "advice
and consent of the Senate" are therefore coextensive
with the " power " conferred on the President, which is
"to make treaties," and apply to the entire process of
treaty-making.

Senator Lodge concludes that except for their want
of authority to send or to receive ambassadors or
ministers and their consequent inability to in-
itiate a negotiation the Senate, under the language
of the Constitution and in the intent of the framers,
stands on a perfect equality with the President in
the making of treaties. That this was the opinion
of the first executive and of the early Senates is
clearly disclosed in their handling of Indian and

1 Lodge, "The Treaty-Making Powers of the Senate," in A
Fighting Frigate and Other Essays and Addresses, pp. 231-232.

18 THE SENATE AND TREATIES

foreign affairs, which also reveals the reasons why
the Senate soon ceased to participate directly in
treaty-making during the period of negotiation.

It being then generally assumed, however, that
the President would at times discuss personally
with the Senate the subjects of nominations to
office and of treaties, the question as to where
and how, and incidentally whether, these consulta-
tions should take place soon came up for decision.
To this end, early in August, 1789, Senators Izard,
King, and Carroll were appointed as a committee,
''to wait upon the President of the United States
and confer with him on the mode of communication
proper to be pursued between him and the Senate,
in the formation of treaties, and making appoint-
ments to offices." :

Two days after their appointment, August 8,
these gentlemen conferred with the President, and
on the tenth they held a second meeting at which
his sentiments were finally expressed.2 Washington
evidently felt that nominations should be made
by written messages, but that personal conferences
were preferable in forming treaties. In the memo-
randum of his sentiments as expressed at the con-
ference of August 8 he is recorded as having taken
the position 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 of them may undergo much dis-

1 Sen. Exec. Jour., I. 12, 16.

2 Washington to Madison, Aug. 9, 1789, Washington's Writings
(Ford ed.), XI. 415; Notes on conferences, Ibid., 417-419.

DEVELOPMENT OF TREATY-MAKING POWER 19

cussion; to do which by written communications would
be tedious without being satisfactory.1

And at the second conference he is reported to have
stated his opinion as to the proper relations between
the President and the Senate in treaty matters in
these words:

The President has power, by and with the advice and
consent of the Senate, to make treaties and to appoint
officers.

The Senate, when this power is exercised, is evidently
a council only to the President, however its concurrence
may be to his acts. ... In the appointment to offices,
the agency of the Senate is purely executive, and they
may be summoned to the President. In treaties, the
agency is perhaps as much of a legislative nature, and the
business may possibly be referred to their deliberations
in their legislative chamber. The occasion for this dis-
tinction will be lessened if not destroyed, when a chamber
shall be appropriated for the joint business of the Presi-
dent and the Senate.2

With reference to the manner of consultation the
President observed,

In other cases, again, as in treaties of a complicated nature,
it may happen, that he will send his propositions in writ-
ing, and consult the Senate in person after time shall
have been allowed for consideration.

And finally, because any hard and fast rule of pro-
cedure would be very likely to prove unfortunate,
he recommended that

the Senate should accomodate their rules to the uncer-
tainty of the particular mode and place, that may be

1 Washington to Madison, Aug. 9, 1789, Washington's Writings
(Ford ed.), XI. 415; Notes on conferences, Ibid., 417-419.

2 Ibid.

20 THE SENATE AND TREATIES

preferred, providing for the reception of either oral or
written propositions, and for giving their consent and
advice in either the presence or absence of the President,
leaving him free to use the mode and place, that may be
found most eligible and accordant with other business,
which may be before him at the time.1

The views of the President evidently were con-
curred in by the committee, for its report, presented
and adopted August 21, made provision for meetings
of the Senate and the President under procedure
acceptable to both of them, but left it to the Presi-
dent to decide in each particular case whether the
business should be transacted orally or by written
messages.2

The judgment of the President and of the Senate
as to the desirability and practicability of personal
conferences upon treaties was soon to be put to
the test of practical application. The very day

1 Washington to Madison, Aug. 9, 1789, Washington's Writings
(Ford ed.), XI. 415; Notes on conferences, Ibid., 417-419.

2 This report was adopted in the following form: ''Resolved,
That when nominations shall be made in writing by the President
of the United States to the Senate, a future day shall be assigned,
unless the Senate unanimously direct otherwise, for taking them into
consideration. That when the President of the United States
shall meet the Senate in the Senate Chamber, the President of the
Senate shall have a chair on the floor, be considered as the head
of the Senate, and his chair shall be assigned to the President of
the United States. That when the Senate shall be convened by
the President of the United States to any other place, the President
of the Senate and Senators shall attend at the place appointed.
The Secretary of the Senate shall also attend to take the minutes
of the Senate.

"That all questions shall be put by the President of the Senate,
either in the presence or the absence of the President of the United
States; and the Senators shall signify their assent or dissent by
answering, viva voce, ay or no." Sen. Exec. Jour., I. 19.

DEVELOPMENT OF TREATY-MAKING POWER 21

upon which the rule of procedure was adopted the
Senate received the following communication from
Washington, delivered by Tobias Lear, his private
secretary :

Gentlemen of the Senate: The President of the United
States will meet the Senate, in the Senate Chamber, at
half past eleven o'clock, tomorrow, to advise with them
on the terms of a treaty to be negotiated with the Southern
Indians.1

The general problem which Washington sought to
solve by a treaty already was well known to the
Senate, and, indeed, to members of both houses,
and to the country. Two weeks previously he had
laid before the Senate the facts concerning the dis-
putes between Georgia and other states and certain
powerful tribes of Indians within the limits of the
Union, and had pointed out the necessity for the
interposition of the general government between the
disputants. He had also suggested that if it should
be the judgment of Congress that a treaty should
be made with the Southern Indians, it might be
expedient to institute a temporary commission of
three persons, for that purpose, whose authority
should expire with the occasion.2 Congress had
responded by providing for the expenses of the
proposed negotiations,3 and on August 21 the ap-
pointment of the three commissioners had been
confirmed.4

1 Richardson, Compilation of the Messages and Papers of the
Presidents, I. 61. Phillips, Georgia and States Rights, Ch. II, dis-
cusses the negotiation, ratification and political aspects of this
treaty.

2 Annals of Congress, 1789-1791, I. 59-60. 3 Ibid., p. 65.
4 Sen. Exec. Jour., I. 19.

22 THE SENATE AND TREATIES

From the standpoint of this study the interest of
the two conferences which followed between the
President and his constitutional advisers does not
lie in the measures which they agreed should be
taken to solve the problem of the moment. In
their effect upon the treaty-making powers of the
Senate, the meetings are of importance because they
were so uncomfortable to both parties that Wash-
ington never again personally consulted with the
Senate about treaties, or, indeed, upon any other
subject — an example which has been followed by
every one of his successors.1

After explaining the points at issue between Georgia
and North Carolina and the Indian tribes, and em-
phasizing the importance to those states and to the
union of effecting a speedy settlement of the diffi-
culty, the President asked the advice of the Senate
upon the instructions to be given to the commis-
sioners of the United States. This he did by sub-
mitting seven propositions prefaced by these words :

As it is necessary that certain principles should be
fixed, previously to forming instructions for the Com-
missioners, the following questions, arising out of the
foregoing communications, are stated by the President
of the United States, and the advice of the Senate re-
quested thereon.

Then followed the seven specific questions, cover-
ing the entire instructions to the commissioners
and designed to secure the advice of the Senate
upon what action should be taken by them in every
alternative that might arise during the negotiation.

1 The appearance of President Wilson before the Senate, July 10,
1919, was not for consultation.

DEVELOPMENT OF TREATY-MAKING POWER 23

The questions were taken up seriatim and discussed
by the Senators, the President, and General Knox.
Some of the propositions were assented to or dis-
sented from as they had been presented, while
others were modified. The proceeding took the
greater part of two legislative days, but finally the
11 advice and consent" of the Senate had been given
to a course of action intended to cover all possible
contingencies.1 The instructions later issued to the
commissioners conform strictly to this advice.2

There is little in the pages of the Senate Executive
Journal to indicate that this method of procedure
was not satisfactory to all parties concerned. For-
tunately, .however, we are permitted a more intimate
view of these conferences in the familiar diary of
Senator Maclay,3 a view which makes it seem very
likely that Washington did say when he left the
Senate chamber that he would " be damned " if he
ever came there again.4

1 Sen. Exec. Jour., I. 20-24.

2 American State Papers, Indian Affairs, I. 65-68.

3 Journal of William Maclay, pp. 128—133.

4 This story, which John Quincy Adams recounts in his diary,
and which has often been repeated, is as follows: "Mr. Crawford
told twice over the story of President Washington's having at an

• early period of his administration gone to the Senate with a project
of a treaty to be negotiated and been present at their deliberations
upon it. They debated it and proposed alterations, so that when
Washington left the Senate Chamber he said he would be damned if
he ever went there again. And ever since that time treaties have
been negotiated by the Executive before submitting them to the
consideration of the Senate.

"The President said he had come into the Senate about eighteen
months after the first organization of the present Government,
and then heard that something like this had occurred.

" Crawford then repeated the story, varying the words, so as to

24 THE SENATE AND TREATIES

It is evident from Maclay's account that con-
straint and tension marked the conferences from
beginning to end. The entire proceeding must
have been felt to be unnatural, forced, and un-
satisfactory. Maclay's own words graphically de-
scribe what occurred:

Senate met, and went on the Coasting bill. The
doorkeeper soon told us of the arrival of the President.
The President was introduced, and took our Vice-Presi-
dent's chair. He rose and told us bluntly that he had
called on us for our advice and consent to some propo-
sitions respecting the treaty to be held with the Southern
Indians. Said he had brought General Knox with him,
who was well acquainted with the business. He then
turned to General Knox, who was seated on the left of
the chair. General Knox handed him a paper, which he
handed to the President of the Senate, who was seated on
a chair on the floor to his right. Our Vice-President
hurried over the paper. Carriages were driving past,
and such a noise, I could tell it was something about
"Indians," but was not master of one sentence of it.
Signs were made to the doorkeeper to shut down the
sashes. Seven heads, as we have since learned, were
stated at the end of the paper which the Senate were to
give their advice and consent to. They were so framed
that it could not be done by aye or no.

The President told us that a paper from an agent of
the Cherokees was given to him just as he was coming to-
the Hall. He motioned to General Knox for it, and
handed it to the President of the Senate. It was read.
It complained hard of the unjust treatment of the people

say that Washington swore he would never go to the Senate again."
Memoirs of John Quincy Adams, VI. 427.

It is evident that the story had been told to Crawford by Presi-
dent Monroe. This was not the last treaty that was submitted
to the Senate before negotiation, although it is the only occasion
on which such submission was made orally by the President.

DEVELOPMENT OF TREATY-MAKING POWER 25

of North Carolina, etc., their violation of treaties, etc.
Our Vice-President now read off the first article, to which
our advice and consent were requested. It referred back
principally to some statements in the body of the writing
which had been read.

Mr. Morris rose. Said the noise of carriages had
been so great that he really could not say that he had
heard the body of the paper which had been read, and
prayed that it might be read again. It was so [read].
It was no sooner read than our Vice-President immedi-
ately read the first head over again, and put the question :
Do you advise and consent, etc.? There was a dead
pause. Mr. Morris whispered to me, "We will see who
will venture to break silence first." Our Vice-President
was proceeding, "As many as —

I rose reluctantly, indeed, and, from the length of
the pause, the hint given by Mr. Morris, and the pro-
ceeding of our Vice-President, it appeared to me that if
I did not no other one would, and we should have these
advices and consents ravished, in a degree, from us.

Maclay then called for the reading of the treaties
and the other documents referred to in the message
of the President. Whether or not he saw only
what he expected, we have no means of knowing.
But he records that he then "cast an eye at the
President of the United States. I saw he wore an
aspect of stern displeasure." Other senators par-
ticipated in the discussion and called for the reading
of particular papers. As our diarist laconically puts
it, "The business labored with the Senate." The
first two articles were postponed and a long dis-
cussion over the merits of the third article followed,
in which Ellsworth, Lee, and Izard discoursed
learnedly until Morris "at last informed the dis-
putants that they were debating a subject that was

26 THE SENATE AND TREATIES

actually postponed." This statement gave rise to a
parlimentary wrangle which ended in repassing the
motion to postpone.

At this point Morris, following a whispered sug-
gestion from his colleague, rose and moved that all
the papers be committed. More debate then fol-
lowed, in which Butler made his pertinent and oft-
quoted statement that the Senate was acting as a
council, and that no council ever committed any-
thing. Maclay himself concluded the debate by
what must have been a stilted and pedantic dis-
sertation upon the advantages of doing business by
committees. This apparently brought Washington
to his feet in exasperation, for Maclay states:

As I sat down, the President of the United States
started up in a violent fret. "This defeats every purpose
of my coming here," were the first words he said. He then
went on that he had brought his Secretary of War with
him to give every necessary information; that the Secre-
tary knew all about the business, and yet he was delayed
and could not go on with the matter. He cooled, how-
ever, by degrees.

The entry in the diary continues to describe the
whole of the two conferences. But this is enough,
perhaps, to explain why Washington changed his
mind about the desirability of oral communications
where treaties were concerned. As the Senate in-
creased in size the inherent difficulties of personal
consultation became greater, and for this and other
reasons it is not surprising that none of his succes-
sors has ever repeated an experiment which Wash-
ington found to be so unpleasant.

DEVELOPMENT OF TREATY-MAKING POWER 27

In its inception, then, the Creek treaty (1) indi-
cates that the President considered it at least de-
sirable to secure in advance the detailed and specific
advice of the Senate as to the instructions under
which treaties were to be negotiated; (2) it shows
that he believed personal consultation to be the
most advantageous method of taking this advice;
and (3) it demonstrates that such procedure was
found to be unsatisfactory both to the President
and to the Senate.

But even after having consulted the Senate upon
the instructions to be given to the commissioners,
Washington did not take the whole negotiation
into his .own hands and ignore the Senate until
the completed treaty was laid before it. Some
four months later, January 11, 1790, he commu-
nicated to the Senate the instructions which he had
given to the commissioners and their report upon
the negotiation, in which the Creeks had refused
to conclude a treaty.1

In the following summer representatives of the
Creek Nation came to New York for further nego-
tiation, and in August Washington informed the
Senate that the " adjustment of the terms of the
treaty is far advanced." 2 He also submitted a

1 American State Papers, Indian Affairs, I. 59. The entry in
the journal of the Senate is, "Ordered, That the communication
from the President of the United States be deferred for consider-
ation." Sen. Exec. Jour., I. 36.

Maclay, however, records that "a considerable part of the day"
was spent in reading the proceedings of the commissioners. Journal
of W'illiam Maclay, pp. 174-5. The papers submitted cover twenty
pages in the folio volume — some 48,000 words.

2 Sen. Exec. Jour., I. 55-56.

28 THE SENATE AND TREATIES

proposed secret article to be added to the treaty
for the purpose of transferring the trade of the
Indians from English and Spanish to American
control. After consideration it was,

Resolved, That the Senate do advise and consent to
the execution of the secret article referred to in the mes-
sage, and that the blank in said article be filed in with
the words, "the President of the United States." l

On August 6 the Senate was informed that the
negotiation had reached the point where the busi-
ness might be conducted and concluded in form.
General Knox was nominated to conclude the treaty
and the nomination was at once confirmed. On
the following day the signed treaty was transmitted
with a message explaining its salient features and
offering to have communicated to the Senate such
papers, documents, and information concerning it as
might be required.2

By taking their advice on the instructions to the
commissioners, by informing them of the progress
of the negotiation, and by securing their formal
advice and consent to the secret article, the Presi-
dent would seem to have made the agreement with
the Creeks as much the Senate's treaty as his own.
Neither party, however, seems to have assumed that
the advice and consent which the Senate had given
to the negotiation of the treaty in accordance with
certain definite propositions constituted the whole
of the senatorial assent contemplated by the Con-
stitution. Article XIV of the treaty specifically pro-
vides that, "This treaty shall take effect and be

1 Sen. Exec. Jour., I. 56. » Ibid., pp. 57-58.

DEVELOPMENT OF TREATY-MAKING POWER 29

obligatory on the contracting parties, as soon as
the same shall have been ratified by the President
of the United States, with the advice and consent
of the Senate of the United States." 1

The message of the President and the treaty were
read in the Senate on the Saturday upon which
they were received and it was then ordered that
they lie for consideration. Upon taking the matter
up the following Monday, a motion, supported by
those who opposed the treaty, to refer it to a select
committee failed by an eight to ten yea and nay
vote.2

It was then proposed:

That, on the final question, when the advice and con-
sent of the Senate is requested, any member shall have a
right to enter his protest or dissent on the journal, with
reasons in support of such dissent; provided the same be
offered within two days after the determination on such
final question.

This motion failed, fifteen to four.3

Three days later the treaty was again taken up
and by a yea and nay vote of fifteen to four the
advice and consent of the Senate given in the fol-
lowing form:

"Resolved, (two thirds of the Senators present
concurring therein,) That the Senate do consent to
the aforesaid treaty, and do advise the President of
the United States to ratify the same." 4

1 Indian Affairs, Laws and Treaties, II. 22, Sen. Doc., vol. 35,
no. 452, ser. no. 4254, 57th Cong., 1st Sess.

2 Sen. Exec. Jour., I. 59. 3 Ibid.

4 Sen. Exec. Jour., I. 61, 62. It seems to have been merely a
coincidence that the motion to allow members to enter upon the
journal their protests or dissents from the action of the Senate in

30 THE SENATE AND TREATIES

TREATY WITH THE CHEROKEE INDIANS

On the day before the final action of the Senate
on the Creek agreement a message was transmitted
to them by Washington asking their advice and
consent to the principal terms of a proposed treaty
to settle somewhat similar difficulties which had
arisen between Georgia and the Cherokees. The
United States was involved in the matter as a result
of its treaty of November, 1785, with this tribe of
Indians. The President recited that by this agree-
ment, known as the Treaty of Hopewell, the Chero-
kees had placed themselves under the protection of
the United States, that a boundary had been as-
signed to them, and that the whites on the frontier
had openly violated this boundary by settling on
the Cherokee lands, and had ignored the proclama-
tion of the Congress of 1788 ordering them out. In
view of the facts Washington felt it to be his duty
either to enforce the old treaty or to negotiate a
new one. He therefore stated the following ques-
tions and requested the advice of the Senate thereon :

1st. Is it the judgment of the Senate that overtures
shall be made to the Cherokees to arrange a new boundary
so as to embrace the settlements made by the white
people since the treaty of Hopewell, in November, 1785?

giving its advice and consent failed by the same vote by which the
treaty itself passed. Butler of South Carolina and Gunn of Georgia
voted for the first proposition, and against the resolution of advice
and consent. But Gunn's colleague Few, who also opposed the
ratification of the treaty, voted nay on the motion to allow dissent-
ing opinions to be recorded in the journal. Both Izard of North
Carolina and Lee of Virginia, who supported the latter proposition,
voted in favor of the ratification of the treaty.

DEVELOPMENT OP TREATY-MAKING POWER 31

2d. If so, shall compensation, to the amount of

dollars annually, or of dollars in gross, be made to

the Cherokees for the land they shall relinquish, holding
the occupiers of the land accountable to the United
States for its value?

3d. Shall the United States stipulate solemnly to
guarantee the new boundary which may be arranged? l

Two differences are to be noticed between these
questions and those put to the Senate in the case
of the Creek treaty. The latter were propounded
by Washington in person; the former were pre-
sented in writing by the President's secretary and
nothing was said about either Washington or Gen-
eral Knox attending or furnishing any information
other than that contained in the message itself.
Also, the questions are of a more general nature, and
do not attempt to cover the various alternatives
which might be expected to arise in the negotiation.
Further, the questions were answered in a different
manner, the Senate discussing the whole matter at
will and then summing up its conclusions in two
brief resolutions. In replying to the first of the
three questions, the Senate left it to the President
either to cause the treaty of Hopewell to be carried
into execution or to enter into arrangements with
the Cherokees for a further cession of territory.
The alternative of an annual payment was recom-
mended, the amount being limited to $1000, and
the condition was laid down that the occupiers of the
land should be confirmed in possession only by
a compliance with such terms as Congress might
afterwards prescribe. And, finally, it was

1 Sen. Exec. Jour., I. 61.

32 THE SENATE AND TREATIES

Resolved, In case a new, or other boundary than that
stipulated by the treaty of Hopewell, shall be concluded
with the Cherokee Indians, that the Senate do advise
and consent solemnly to guarantee the same.1

This last resolution was of a type adopted several
times by the Senate during the early administrations.
Later Senates did not bind themselves thus in ad-
vance, and would have deemed such a promise in-
compatible with their right to withhold their assent
from any provision of a treaty submitted to them.
What would have been the position of the Senate
had the President concluded a treaty with the
Cherokees creating a boundary that threatened to
bring Georgia into serious conflict with the federal
government? How far would it have held itself
to be bound by this resolution, — particularly if
the balance of power had passed from one party to
the other in the interim? These questions did not
then arise, but it is inevitable that sooner or later
some such situation would have been created had
this practice become established. The resolution,
however, is but another expression of the general
principle which governed in the ratification of the
French consular convention, namely, that a nation
is bound to accept treaties signed by its plenipo-
tentiaries, provided the latter have followed their
instructions. It will be perceived that at this time
both the Senate and the President were acting in
accordance with the first of the two alternatives
suggested in that connection — that is, under the
theory that the Senate should participate in deciding
what instructions should be given to the negotiator,

1 Sen. Exec. Jour., I. 61.

DEVELOPMENT OF TREATY-MAKING POWER 33

and then be bound to the same extent as was the
President to ratify the resulting treaty.

The treaty which was concluded with the Chero-
kees in accordance with the advice given by the
Senate on August 11, 1790, was submitted to the
Senate more than a year later, two days after the
meeting of the first session of the second Congress.
With it were transmitted the papers which related
to the negotiations, amounting in all to some 7000
words.1 The message, treaty, and papers were read
and ordered to lie for consideration,2 and a week
later were referred to a committee composed of
Hawkins, Cabot, and Sherman.3 This committee re-
ported, in part, as follows:

That they have examined the said treaty, and find it
strictly conformable to the instructions given by the
President of the United States.

That these instructions were founded on the advice
and consent of the Senate, of the llth of August, 1790.

That the stipulations in the 14th article are similar
to those gratuitously promised to the Creeks; and al-
though they form an excess to the sum limited in the
resolution aforesaid, yet from the beneficial effects likely
to be produced thereby, cannot be objectionable.

The committee briefly described the new boundary
and expressed the opinion that the treaty should be
ratified, whereupon the Senate agreed to the re-
port and formally gave its consent to the treaty and
advised its ratification by the President.4

Thus in the treaty with the Cherokees as in that

1 Sen. Exec. Jour., I. 85; Am. State Papers, Indian Affairs, I.
123-129.

2 Sen. Exec. Jour., I. 85. 3 Ibid., pp. 85, 88.
4 Ibid. pp. 88, 89.

34 THE SENATE AND TREATIES

with the Creeks the Senate was asked in advance
to give its advice as to the terms to be proposed by
the commissioners of the United States. The prin-
cipal difference in the procedure was that in the
earlier case this advice was given during a personal
consultation between the President and the Senate,
while the details of the later negotiation were
settled by messages between the two. The pro-
cedure of the Senate subsequently to the signature
of the treaty was much the same in each case, except
that the Cherokee agreement was referred to a
committee, while no such reference was made when
the question of the ratification of the Creek treaty
was being considered.

It should be observed that in this, as in other
cases, the report of the committee emphasized the
general conformity of the treaty with the advice
and consent of the Senate given prior to the nego-
tiation, and that evidently it was considered that
such conformity laid upon the Senate an obligation
to assent to ratification. The single stipulation not
conforming with this prior consent was noted by the
committee but was declared to be unobjectionable.

OTHER TREATIES WITH INDIAN TRIBES

In 1794 the Senate for the first time exercised
its prerogative of refusing to consent to the rati-
fication of a treaty negotiated by the executive.
In 1793 General Putnam had concluded a treaty of
peace and friendship with the Wabash and Illi-
nois Indians, acting under instructions about which
the Senate never had been consulted. The result

DEVELOPMENT OF TREATY-MAKING POWER 35

of his negotiations was submitted to the Senate
February 13, 1793, with a message in which the
President adopted a course which frequently was
followed in later years — that is, he himself sug-
gested the ratification of the treaty with an amend-
ment. In making this suggestion he said:

After the Senate shall have considered this treaty, I
request that they would give me their advice whether
the same shall be ratified and confirmed; and, if to be
ratified and confirmed, whether it would not be proper,
in order to prevent any misconception hereafter of the
fourth article, to guard, in the ratification, the exclusive
pre-emption of the United States to the land of the said
Indians.1

In this instance, however, the presidential sugges-
tion did not meet with favor in the Senate. After
that body had considered the treaty upon three
separate occasions, the whole matter was referred
to a committee of which Burr was chairman.2
The report of this committee, which was adopted,
recommended that further consideration of the
treaty be postponed until the next session of Con-
gress, and that in the meantime the President be
requested to cause an explanatory article to be nego-
tiated with the Indians, reserving the preemptive

1 The fourth article of this treaty was as follows: "The United
States solemnly guaranty to the Wabash, and the Illinois nations,
or tribes of Indians, all the lands to which they have just claim;
and no part shall ever be taken from them, but by a fair purchase,
and to their satisfaction. That the lands originally belonged to
the Indians; it is theirs and theirs only. That they have a right
to sell, and a right to refuse to sell. And that the United States
will protect them in their said just rights." Am. State Papers,
Indian Relations, I. 338.

2 Sen. Exec. Jour., I. 128.

36 THE SENATE AND TREATIES

rights in the Indian lands to the United States, as
he had suggested in his message.1

Before this could be done, however, most of the
chiefs who had signed the treaty had died of small-
pox, and early in the next session the President re-
ported that while his instructions to other com-
missioners had been modified to protect the rights
in question in the future, nothing could be effected
towards modifying this particular treaty.2 This
brought the treaty and Washington's original sug-
gestion once more before the Senate. Upon the
failure of an attempt again to postpone action until
the next session, with a renewal of the suggestion
that the President cause an explanation to the
fourth article to be negotiated, the friends of the
treaty sought to secure ratification with a proviso
such as that originally proposed by Washington.
They failed in this, however, and the matter finally
was concluded by the rejection by a vote of twenty-
one to four of a simple resolution of advice and
consent to ratification.3 It is evident from the
votes that a large minority of the Senate was ready
to give the President another opportunity to modify
the treaty and perhaps to accept it with the sug-
gested proviso. But only four of this minority,
Cabot, Ellsworth, Foster, and Strong, voted for
the resolution to accept the treaty as it stood.4
Thus the Senate for the first time declined to give
its advice and consent to the ratification of a treaty
negotiated under the direction of the President.

1 Sen. Exec. Jour., I. 134-135.

2 Ibid., p. 145; Am. State Papers, Indian Affairs, I. 470.

3 Ibid., pp. 145-6. 4 Ibid.

DEVELOPMENT OF TREATY-MAKING POWER 37

The rejection is especially notable because the treaty
from which assent was withheld was one of the
first to be negotiated by the executive independently
of the Senate. On this account the position of the
Senate with reference to ratification was likewise
one of independence — an independence which was
manifested first in the refusal to accede to the
presidential suggestion that a conditional ratification
be resorted to, and second in the rejection of the
treaty when the suggested negotiation had failed to
remove or alter the provision to which exception
had been taken.

Procedure upon all but one of the remaining
Indian treaties considered by the Senate during
Washington's administrations may be disposed of
in comparatively few words.1 Four of these were
signed by executive agents without any consulta-
tion with the Senate either before or during nego-
tiation. In no case did the latter body take ex-
ception to being thus ignored, the ratification of
each of the treaties being consented to with little
opposition. Light is thrown upon the position
taken by Washington on this point by certain facts
in connection with the Treaty of Greenville with
the Indians northwest of the Ohio. On February

1 The following additional treaties were before the Senate dur-
ing Washington's administration: Six Nations, 1794 — Sen. Exec.
Jour., I. 168-170; Oneidas and Others, 1794 — Ibid.; Indians
Northwest of the Ohio (Greenville), 1795 — Ibid., pp. 193 -197; Seven
Nations of Canada, 1797 — Ibid., pp. 219-220; Additional Article,
Cherokee Nation (1791), 1792 — Ibid., pp. 98-99; Additional Ar-
ticle, Cherokee Nation (Holston Treaty), 1794 — Ibid., pp. 168-
170; Additional Article, Five Nations, 1792 — Ibid., p. 116.

The treaty with the Creek Nation, 1796, is discussed on pp.
95-107 below.

38 THE SENATE AND TREATIES

25, 1793, the three heads of departments and the
Attorney General were asked four questions as to
the kind of treaty that should be sought, and as
to the powers in the matter possessed respectively
by the executive alone and by the executive and the
Senate. In response to the fourth question, whether
the Senate should previously be consulted upon the
extent of the relinquishments of land which should
be made to the Indians in order to secure peace,
the cabinet expressed the unanimous opinion that
it would be better not to consult them previously.
The following paragraph from a memorandum made
by Jefferson the day after the conference explains
why the cabinet gave this advice: "Fourth question.
We all thought if the Senate should be consulted,
and consequently apprised of our line, it would be-
come known to Hammond,1 and we would lose all
chance of saving anything more than our ulti-
matum." This advice was followed and the first
official intimation given to the Senate of the in-
structions under which the resulting treaty was
negotiated was received when the completed agree-
ment was laid before them.

It is only necessary to compare the procedure hi
this case with that upon two earlier Indian treaties
to appreciate the extent to which the practical
forces of politics were changing the manner in which
the President and the Senate exercised their function
of treaty-making. Before approaching the Creeks
in 1789 Washington personally appeared before the
Senate, and after prolonged consultation received
in advance their advice and consent in detail to

1 George Hammond, British minister to the United States.

DEVELOPMENT OF TREATY-MAKING POWER 39

instructions which embodied every provision of the
proposed treaty. A year later, as the Senate was
about to consent to the ratification of the Creek
treaty, he laid before them for their formal sanction,
this time by written message, the general proposi-
tions upon which he desired to base an agreement
with the Cherokees. And finally, in 1793, when it
became necessary to settle the problems arising out
of Indian and British relations in the northwest,
he decided from motives of expediency not to con-
sult the Senate in any way until after the proposed
treaty had been signed.

In addition to the new treaties with Indian
tribes which were made during Washington's ad-
ministration, it was found advisable in 1792 to
provide for increasing the annuities paid to the
Five Nations, under the Treaty of 1789,1 and to
the Cherokees, under the treaty of 1791, 2 from
$1000 to $1500. In each case the President ex-
plained to the Senate the reasons for granting the
increase and asked and received its advice as to
the negotiation of the additional article providing
for it, after which the articles were signed and pro-
claimed without any further question.

1 Sen. Exec. Jmir., I. 116. 2 Ibid., pp. 9S-99.

CHAPTER III

THE TREATIES WITH ALGIERS AND SPAIN,
1790-1796

DURING Washington's administrations the Senate
was called upon to participate in making the Jay
treaty, the treaty of peace and amity with the
Dey of Algiers, concluded in September, 1795, and
the Spanish treaty signed a month later. In each
case it played an important part not only in the
ratification of the treaty, but also during its nego-
tiation. And as these three treaties were the result
of much of the diplomacy of the first eight years of
our national existence, it follows that the Senate
exercised a constant influence over our foreign re-
lations during this period. Although these nego-
tiations will be taken up separately, it should be
borne in mind that they were being carried on
simultaneously . l

THE TREATY WITH ALGIERS, 1795

In his second annual address, delivered December
8, 1790, Washington briefly directed the attention of

1 The relations with England leading up to the Jay Treaty
were first considered in the Senate February 9, 1790; the treaty
was submitted to the Senate for its advice and consent June 8,
1795, which advice and consent were given, conditionally, June 24,
1795; for the treaty with Algiers the dates were December 30, 1790,
February 15, 1796, March 2, 1796; for the Spanish treaty, January
11, 1792, February 26, 1796, March 3, 1796.

40

THE TREATIES WITH ALGIERS AND SPAIN 41

Congress to the distressed condition of American
trade in the Mediterranean and recommended de-
liberations which might lead to its relief and pro-
tection.1 A committee consist ing of Langdon,
Morris, King, Strong, and Ellsworth was appointed
to consider the matter, and to it also was referred a
message from Washington to Congress dated De-
cember 30, 1790, submitting a report from the
Secretary of State setting forth the facts concerning
the capture of twenty-one American seamen by
the Algerines in "1785 and outlining the efforts since
made by the government to ransom them at a
reasonable price.2 On December 30, also, another
report of the Secretary of State on commerce in the
Mediterranean was submitted to the House of
Representatives and four days later was laid before
the Senate. After thoroughly analyzing the situa-
tion Jefferson concluded that "Upon the whole, it
rests with Congress to decide between war, tribute,
and ransom, as the means of establishing our Med-
iterranean commerce." 3 In the same document
Congress was informed that the death of the late
Emperor of Morocco had made it necessary to ob-
tain immediate recognition by his successor of the
liberal treaty of 1787 with that power, a treaty
necessary to our Atlantic as well as to our Med-
iterranean trade.4 It will be seen, therefore, that
the question of our Mediterranean commerce in-

1 Richardson, A Compilation of the Messages and Papers of the
Presidents, 1789-1897, 1. 83. Cited below as Richardson, Messages.

2 American State Papers, Foreign Relations, I. 100-104; Annals
of Congress, 1789-1791, II. 1735, 1740-1741.

3 Am. State Papers, For. Rels., I. 105. 4 Ibid.

42 THE SENATE AND TREATIES

volved three points: first, the ransoming or rescu-
ing of the twenty-one seamen held captive by the
Algerines; second, by force or by tribute securing
our ships from further molestation; third, securing
recognition by the new Emperor of Morocco of our
treaty with that nation. The solution of this
problem, or of any part of it, required the expenditure
of money; and circumstances were such that if
negotiations for a treaty with Algiers were resorted
to the executive must be able to go to the Dey with
cash in hand. Consequently both the executive
and the Senate soon had to decide what would be
the relations in this matter between themselves, re-
spectively, and the House of Representatives, whose
assent would be required for any appropriation.

Langdon's committee reported on January 6,
179 1,1 that the trade of the United States in the
Mediterranean could be protected only by a naval
force, and that it would be proper to resort to such
force as soon as the state of the public finances
would permit.2 When, three weeks later, the
Secretary of State transmitted another statement re-
garding the Algerine prisoners, this was referred
to the same committee, whose report of the sixth
was recommitted.3 On February 1, this time in ex-
ecutive session, Langdon's committee was again
heard from, now on the subject of the American
captives and the Moroccan treaty. It reported a
resolution :

1 See page 41 above.

2 Annals of Congress, 1789-1791, II. 1744; Am. State Papers,
For. Rels., I. 10S.

» Ibid. p. 1749; Am. Stale Papers, For. Rels., I. 116-120.

THE TREATIES WITH ALGIERS AND SPAIN 43

That the Senate advise and consent that the President
of the United States take such measures as he may think
necessary for the redemption of the citizens of the United
States now in captivity at Algiers, provided the expense
should not exceed forty thousand dollars; and also that
measures be taken to confirm that treaty now existing
between the United States and the Emperor of Morocco,
provided that no greater sum than twenty thousand
dollars be expended in that business.

With the exception of the proviso limiting the ex-
pense in the Moroccan business to $20,000 this
resolution was adopted. At the same time another
report of the committee, identical with that of
January 6, was again recommitted.1

The resolution of advice was referred by the Presi-
dent to his Secretary of State, and by February 22
Jefferson had prepared a reply which was signed by
Washington and submitted on that date.2 The
Senate was informed that the President would
proceed to ransom the Algerine captives, and to
secure recognition of the treaty with Morocco as
soon as* the necessary money had been appropriated
by the legislature.3 The matter was again referred
to Langdon's committee, and on March 3 the
Senate adopted the resolution which he reported to
it, as follows:

Whereas, since the resolution of the Senate advising the
President of the United States to take measures for the
ransom of American captives at Algiers, large appropria-

1 Sen. Exec. Jour., I. 72-73. For the conclusion of the Morocco
business, see pp. 52-53 below.

2 Writings of Thomas Jefferson, IX. 331, 343-5; Jefferson to
Madison, April 19, 1796 and enclosure.

3 Sen. Exec. Jour., I. 75.

44 THE SENATE AND TREATIES

tions of money have been made for the protection of the
Western frontiers:

Resolved, That the Senate do advise and consent that
the President of the United States suspend any opera-
tions under the said resolutions, for the ransom of said
captives, until the situation of the treasury shall more
clearly authorize the appropriation of money for that
purpose.1

As this resolution was passed on the last day of
the second session, it meant that the matter was
to be held over until the next Congress.

Probably the Senate withdrew the "advice" which
it had given a month previously not so much be-
cause the " situation of the treasury" had changed,
as because Washington had intimated that he
would not undertake the negotiations until the
money required had been appropriated by Congress.
The Senate was unwilling to ask the House of Rep-
resentatives for an advance appropriation, and at
the same time was not quite ready to advise the
President to proceed without one.

Early in the first session of the second Congress
the fate of the Algerine captives was again brought
before the Senate by a petition of one of their num-
ber who had been privately ransomed. It was now
ordered that all communications on the subject be
referred to a committee to be composed of Butler,
Langdon, Morris, King, and Strong, with instruc-
tions to report thereon.2 On December 6 this
committee recommended3 that it be, "Resolved by
the Senate of the United States, in their capacity as

1 Sen. Exec. Jour., I. 78.

2 Annals of Congress, 1791-1793, I. 26.

3 Sen. Exec. Jour., I. 91.

THE TREATIES WITH ALGIERS AND SPAIN 45

Council of Advice," that if the President should
secure a treaty with Algiers, Tunis, and Tripoli at
an expense not exceeding $100,000 per year, and
should ransom the Algerine captives at an expense
of not more than $40,000 the Senate would advise
and consent to the same and would also approve
the expenditure of $5000 in the negotiation. It
was recommended, further, that if no such treaty
should be secured $2400 should be distributed an-
nually among the families of the captives.1

This report was not accepted by the Senate but
was made the basis of debate on the general question
upon six different occasions during the following
three months.2 Early in March, 1791, it "was

1 This report was as follows: "Resolved by the Senate of the
United States, in their capacity as Council of Advice, That if the
President of the United States shall enter- into any treaty con-
vention for the purpose of establishing and preserving a peace
with the Regency of Algiers and with Tunis and Tripoli, at an
expense not exceeding one hundred thousand dollars annually,
for such term of years [as] shall be stipulated, and for the purpose
of ransoming the citizens of the United States in captivity with the
Algerines, 'at an expense not exceeding forty thousand dollars for
the said ransom.' the Senate will advise and consent to the same,
and ratify and approve any measures which the President of the
United States shall take for accomplishing these measures to an
amount not exceeding five thousand dollars, although such measures
should prove unsuccessful.

"Resolved, That if a convention or treaty for the establishment
of peace cannot be made with the Regency of Algiers the sum of
two thousand four hundred dollars annually shall be distributed
among the said captives or their families, as they may prefer, and
in such proportion as the President of the United States shall order
and direct during their captivity." Compilation of Reports of the
Committee on Foreign Relations, United States Senate, 1789-1901,
VIII. 6. Cited below as, Compilation of Reports, Sen. Com. For.
Rels.

2 .Sen. Exec. Jour., I. 91-100.

46 THE SENATE AND TREATIES

agreed to commit the report for the purpose of
conferring with the President of the United States,
on the subject matter thereof, to Mr. King, Mr.
Morris, and Mr. Izard." l In Jefferson's notes on
the conferences of this committee with Washington
is to be found the real explanation of the failure of
the Senate to act. "The President/' he recorded,

had wished to redeem our captives at Algiers, and to
make peace with them on paying an annual tribute.
The Senate were willing to approve this, but unwilling
to have the lower House applied to previously to furnish
the money; they wished the President to take the money
from the treasury, or open a loan for it. They thought
that to consult the Representatives on one occasion,
would give them a handle always to claim it, and would
let them into a participation of the power of making
treaties, which the Constitution had given exclusively to
the President and the Senate. They said, too, that if
the particular sum was voted by the Representatives, it
would not be a secret.

Concerning Washington's position, Jefferson
continued,

The President had no confidence in the Secrecy of the
Senate, and did not choose to take money from the
Treasury or to borrow. But he agreed he would enter
into provisional treaties with the Algerines not to be
binding on us until ratified here.2

1 Sen. Exec. Jour., p. 106.

* The Writings of Thomas Jefferson (Definitive edition), I. 294,
295, 305-309. "In this very case Mr. Izard made the communi-
cation to him, sitting next to him at table, on the one hand, while
a lady (Mrs. McLane) was on his other hand, and the French
minister next to her; and as Mr. Izard got on with his communi-
cation, his voice kept rising, and his stutter bolting the words out
loudly at intervals, so that the minister might hear if he would.
He said he had a great mind at one time to have got up, in order
to put a stop to Mr. Izard."

THE TREATIES WITH ALGIERS AND SPAIN 47

Jefferson himself was opposed to "hazarding this
transaction without the sanction of both Houses."
"I had observed," he wrote,

that wherever the agency of either, or both Houses
would be requisite subsequent to a treaty, to carry it
into effect, it would be prudent to consult them pre-
viously if the occasion admitted. That thus it was, we
were in the habit of consulting the Senate previously,
when the occasion permitted because their subsequent
ratification would be necessary. That there was the same
reason for consulting the lower House previously, where
they were to be called on afterwards, and especially in
the case of money, as they held the purse strings, and would
be jealous of them. However, he desired me to strike
out the intimation that the seal would not be put till
both Houses should have voted the money.1

No official record of the report of the committee
of three has been preserved.2 But whatever they
may have recommended to the Senate, the outcome
was that the appropriation which Washington de-
sired was made by Congress before he proceeded

1 The Writings of Thomas Jefferson. I. 294, 295, 305-309.

2 A number of years later Jefferson found among his press copies
the following, in his own handwriting: "The committee to report,
that the President does not think that circumstances will justify,
in the present instance, his entering into absolute engagements for
the ransom of our captives in Algiers, nor calling for money from the
Treasury, nor raising it by loan, without previous authority from
both branches of the Legislature. April 9, 1792." In sending this
paper to Madison in 1796 Jefferson stated that to the best of his
recollection this was a minute that he had given privately to a
member of the committee as expressing the substance of what had
passed with the President, and that it probably had been used by
the committee in its report to the Senate. However that may be,
it is evident that the President adhered to his decision that the
treaty should not be made until both houses should have voted the
money. The Writings of Thomas Jefferson, IX. 331, 343-345.

48 THE SENATE AND TREATIES

with the negotiations. From the beginning the
House had been kept informed of the status of our
affairs in the Mediterranean as, indeed, it was
throughout the entire negotiation of the treaty.
As a result of this policy the representatives un-
doubtedly were fully conversant with the needs of
the situation. In procuring the appropriation
Washington, or Jefferson, must have acted through
informal conferences with individual members ; prob-
ably it is on this account that it now seems to be
impossible to ascertain the manner in which they
secured the passage of the bill.1

The House voted to make the appropriation,
however, on the last day of the session, and the
measure was at once presented to the Senate.
Here the bill was read twice and referred to Morris,
Cabot, and Ellsworth, who at the same time were
asked to consider and report upon a message from
the President on the Algerine matter. In this
message Washington inquired if the Senate would
approve a treaty providing for the ransom of the

1 Tracing the matter as it appears in the Annals of Congress
it is to be observed that on April 18 a petition was presented by
two men ransomed from the Algerines by private means asking to
be reimbursed for the amount of their ransom and their expenses
from Algiers to the United States, and also that measures be taken
to secure the ransom of the remaining prisoners. Annals of Con-
gress, 1791-1793, p. 559.

The committee to which this petition was referred reported
April 26, and their report was referred to "the Committee of the
Whole House on the bill making certain appropriations therein
mentioned." Ibid., p. 580.

On May 7 this bill was considered in the Committee of the Whole,
and ordered to be engrossed and read a third time on the morrow
and on the eighth the first business recorded in the Annals is its
passage. Ibid., p. 600.

THE TREATIES WITH ALGIERS AND SPAIN 49

Algerine captives at a cost not to exceed $40,000,
or if there was any greater or lesser sum which they
would fix as the limit beyond which they would not
approve the ransom. The same question was
asked with reference to a treaty of peace at the cost
of $25,000 down and a like sum to be paid annually
during the continuance of the treaty. By adopting
the resolution reported by the committee, the
Senate promised to approve a treaty of peace pro-
viding for the payment of $25,000 upon signature
and for an annual gift of $40,000 thereafter. The
President was also informed that "in case such a
treaty be concluded," the Senate would approve
another agreement providing for the ransom of
the captives at a cost not to exceed $25,000.*

At the same tune the committee reported the
House appropriation bill with - an amendment,
which was adopted by the Senate and agreed to by
the House, the bill thus passing both chambers on
the last day of the session. Section three of the
act made the appropriation desired by the Presi-
dent by enacting

that a sum of fifty thousand dollars ... be appropriated
to defray any expense which may be incurred in relation
to the intercourse between the United States and foreign
nations, ... to be applied under the direction of the
President of the United States who, if necessary, is
authorized to borrow, on the credit of the United States,
the said sum of fifty thousand dollars; an account of the
expenditure whereof as soon as may be, shall be laid
before Congress.2

1 Sen. Exec. Jour., I. 122-123.

2 Statutes at Large of the United States of America, I. 284r-285
(Acts of 2d Cong., 1st Sess., Chap. XLI, Sec. 3).

50 THE SENATE AND TREATIES

The Senate thus had agreed to approve a treaty
or treaties which called for a preliminary payment
of $50,000, the exact amount appropriated at the
same time to provide for intercourse between the
United States and foreign nations. Evidently Morris,
Cabot, and Ellsworth had proposed the Senate
amendment to the House bill in order to make the
appropriation coincide in amount with the sum
fixed by the Senate as the limit for the preliminary
payment. That the money was for this purpose
cannot be doubted, for Jefferson in a subsequent
report to Congress stated:

In order to enable the President to effect the objects
of this (Senate) resolution, the Legislature, by their act
of May 8th, 1792, c. 41, Sec. 3, appropriated a sum of
fifty thousand dollars to defray any expense which might
be incurred in relation to the intercourse between the
United States and foreign nations.1

It is evident that in this transaction the Senate
failed to maintain the position it had assumed.
The point at issue was this: Has the President,
upon the advice of the Senate, constitutional au-
thority to draw money from the treasury or to
borrow it on the credit of the United States in order
to make the first payment on a treaty which he
negotiates with the advice and consent of the
Senate? And if so, is it the constitutional duty of
Congress subsequently to appropriate the money so
spent? The Senate answered both questions in
the affirmative. The President and his Secretary
of State seem not to have expressed any cate-
gorical opinion upon the abstract question; but

1 Am. State Papers, For. Rels., I. 290.

THE TREATIES WITH ALGIERS AND SPAIN 51

they declined to negotiate the treaty until the ap-
propriation had been made. How far their position
was based upon a consideration of the constitu-
tional powers of the President, and to what degree
the question of expediency determined their action
we have no means of knowing. The course followed
is characteristic of Washington's far-seeing caution
in constitutional interpretation and in politics.
Incidently, it left the principle at issue for the de-
cision of the future.

The incident is an interesting revelation of the
mechanics of the machine set up under the influence
of the check and balance theory of government.
The treaty-making power had been hard to fit into
the general system, but finally had been intrusted
to the executive and a part of the legislature. In
the early exercise of this power each of these au-
thorities was determined to assert to the full its
constitutional rights. Yet each hesitated to ex-
ceed its authority lest it should find itself in active
conflict with the other or with the House of Repre-
sentatives. Thus political forces tended to keep
each agent within the sphere of its legal competence,
while at the same time, also as a matter of practical
politics, each participated to some degree in per-
forming a function which lay without that sphere.
This interaction is inevitable in many phases of
governmental activity, but in none, perhaps, is
it more so than in the making of treaties which also
are laws.

During the three years of negotiation which
followed, the President, in his annual and special
messages to Congress, continued to keep the Senate

52 THE SENATE AND TREATIES

and the House equally informed of the progress of
the negotiation. Whatever information he sent to
the Senate he submitted also to the Representatives,
a course which was in accord with the opinion of
Jefferson, that when negotiating a treaty which
would require subsequent legislation, it was good
policy for the executive to keep in close touch with
both branches of the legislature.1

The treaty, which was signed September 15, 1795,
was transmitted to the Senate on the fifteenth of
the following February, along with numerous papers
and documents.2 After three days of debate, the
Senate referred it to a committee composed of
Ellsworth, Cabot, King, Langdon, and Brown.3
Their report estimated the expenditure required by
the treaty as a sum considerably in excess of that
previously authorized by the Senate, but at the
same time recommended ratification.4 Action was
delayed for several days by Senators who ap-
parently believed that the agreement to pay the
sums stipulated in naval stores might lead to dif-
ficulties later. On March 2, however, ratification
was advised by a very large majority, although a
subsequent motion to change the form of the reso-
lution by substituting "unanimously" for "two-
thirds of the Senators present," failed, 16 to II.5

It will be remembered that on February 22, 1791,
the Senate had advised the President to secure

1 Am. State Papers, For. Rels., I. 288-300, 413-422. Richardson
Messages, I, 148, 152, 17&-7.

• Sen. Exec. Jour., I. 198; Am. State Papers, For. Rels., I. 528-
532.

3 Ibid., p. 199. 4 Ibid., pp. 200-201.

5 Sen. Exec. Jour., I. 201-202.

THE TREATIES WITH ALGIERS AND SPAIN 53

recognition of the treaty of 1787 with Morocco by
the new Emperor of that state. Shortly after-
wards an appropriation of $20,000 for this purpose
was made by Congress.1 Report of the progress of
this negotiation was made to Congress in the mes-
sage of December 16, 1793, concerning both the
Moroccan and the Algerine questions. After the
recognition of the treaty had been secured, however,
it was to the Senate alone that a final report was
made.2

THE TREATY OF SAN LORENZO EL REAL

Upon, the third of March, 1796, the day following
their final action on the treaty with Algiers, the
Senate gave their advice and consent to the rati-
fication of another convention which was of much
greater importance to the nation. This was the
treaty which had been signed at San Lorenzo el
Real during the preceding October and which pro-
vided for the settlement of difficulties with Spain
of thirteen years' standing. The chief points at
issue concerned the boundary between the southern
territory of the United States and West Florida,
commerce between the two countries, and the
navigation of the lower Mississippi by American
citizens. Because it abandoned this latter right, or
privilege, for a term of years the Jay-Gardoqui
treaty, which was negotiated during the years
1785 and 1786, was rejected by the Congress of the

1 U. S. Statutes at Large, I. 214 (Acts of 3d Sess. of 1st Cong.,
Stat. Ill, Ch. XVI).

2 For a brief history of the Morocco Treaty, see Davis, Notes
Upon Foreign Treaties of the United States, pp. 1242-1244.

64 THE SENATE AND TREATIES

Confederation. This body finally referred the entire
matter to the new government under the Consti-
tution.1 By 1791 the situation had become such
that the government practically faced the alterna-
tives of securing the right to navigate the Mississippi
to its mouth for citizens of the United States or of
losing the allegiance of the settlers west of the
Alleghenies and south of the Ohio. The relations
between Spain and the powerful Indian tribes of
the southwest increased the tension and it became
"clear that an agreement or war must come. This
was as plain to Spain as to Washington and his
cabinet, and on December 16, 1791, the Spanish
minister for foreign affairs made known the readi-
ness of Madrid to negotiate." 2

Early in January, 1792, the President sought the
advice of the Senate in the matter, by laying be-
fore them a statement of the facts and asking con-
formation of the appointment of William Carmichael
and William Short "to be Commissioners Pleni-
potentiary ... for negotiating and concluding a
convention, or treaty, concerning the navigation of

1 Jay to Gardoqui, October 17, 1788. Am. State Papers, For.
Rels., I. 251.

2 Chadwick, The Relations of the United States and Spain: Diplo-
macy, p. 35. Chapters I and II of this work briefly review the
diplomatic relations between the two countries through the treaty
of 1795. See also Rives, "Spain and the United States in 1795."
American Historical Review, IV. 62-79, for the diplomacy leading
up to the treaty, and particularly for an explanation of the reasons
that led Spain to sign a convention so favorable to the United States.
See also, Lyman, Diplomacy of the United States, I. vii, for account
of Spanish American relations, 1777-1814; Moore, International
Law Digest, V. 849-855; Bassett, The Federalist System, Ch. V.;
Trescot, The Diplomatic History of the Administrations of Washing-
ton and Adams, 1789-1801, Ch. IV.

THE TREATIES WITH ALGIERS AND SPAIN 55

the river Mississippi by the citizens of the United
States; saving to the President and the Senate
their respective rights as to the ratification of the
same." 1 After the Senate had confirmed these
nominations and thereby sanctioned the proposed
treaty, Spain expressed a desire to extend the
negotiations to cover all matters considered be-
tween Jay and Gardoqui in 1785 and 1786, par-
ticularly the commercial relations between the two
countries. Jefferson believed that the Senate should
be consulted before the powers of the American
commissioners were extended to cover commercial
matters, and on March 7 the President laid before
it the proposed additional instructions. In doing so
he definitely asked the Senate if they would "advise
and consent to the extension of the powers of the
Commissioners, as proposed, and to the ratification
of a treaty which shall conform to those instructions,
should they enter into such a one with that Court."
The message and the accompanying documents
were referred to a committee composed of Cabot,
Morris, and Langdon, and on the following day
the Secretary of the Treasury was asked to furnish
the Senate with detailed information concerning
the imports and exports of the states, individually,
for one year.2 On March 16 the Senate agreed to
the proposed extension of powers in a resolution
which is significant enough to be quoted in full.
It was as follows:

Resolved, (two-thirds of the Senators concurring therein,)
That they advise and consent to the extension of the
powers of the Commissioners as proposed, and that they

1 Sen. Exec. Jour., I. 95-96. 2 Ibid., pp. 106-110.

56 THE SENATE AND TREATIES

will advise and consent to the ratification of such treaty
as the said Commissioners shall enter into with the Court
of Spain, in conformity to those instructions.1

It should be noted that this resolution explicitly
binds the Senate to agree to the ratification of a
treaty concluded in conformity with the instruc-
tions which they had approved.

Two days after the Senate had consented to the
extension of the scope of the negotiation, Jefferson
submitted to Washington his instructions to the
commissioners. These instructions deal with three
subjects, — boundary, the navigation of the Mis-
sissippi, and commerce. Those given on the latter
subject are verbatim as assented to by the Senate.2
The instructions upon boundaries and the naviga-
tion of the Mississippi never had been laid before
that body, however. This inconsistency in pro-
cedure shows to what extent Washington and the
Senate transacted the business of treaty-making
along the lines indicated by political convenience or
necessity.

Spanish procrastination and "new combinations
among the powers of Europe" having delayed the
conclusion of the treaty for more than two years,
Washington on November 21, 1794, nominated
Thomas Pmckney, then Minister of the United
States at the Court of St. James, as envoy extraor-
dinary to conclude the negotiations. The terms in
which Pmckney was nominated define his mission
as identical with that with which Short and Car-
michael had been charged, and later, hi submitting

1 Sen. Exec. Jour., I. 115.

2 Am. State Papers, For. Rels., I. 252-257.

THE TREATIES WITH ALGIERS AND SPAIN 57

the treaty which he signed, the President informed
the Senate that it had been negotiated under the
original instructions to the earlier envoys, sup-
plemented by a later instruction on the subject of
spoliation claims.1 On February 26, 1796, the
Senate unanimously gave its advice and consent to
the ratification of the treaty.2

1 Am. State Papers, For. Rels., I. 533; Sen. Exec. Jour., I. 200.

2 Sen. Exec. Jour., I. 200, 201, 203. A motion to "insert the
word ' unanimously' instead of the words ' two-thirds of the Senators
present,'" failed, 11 to 16.

CHAPTER IV

i

THE JAY TREATY

WHILE the President and the Senate were working
out the treaties thus far considered, they were also
engaged, along with the House of Representatives,
in the solution of the paramount problem of the
early foreign affairs of the United States, that of
our relations with Great Britain. The heritage of
trouble arising out of the treaty of peace of 1783
which descended to the new federal government is
too well understood to require discussion here, as
are the subsequent events which finally presented
to Washington's government the alternatives of
concluding a treaty of some sort or of going to war
with England.1 The manner in which the Senate
performed its part in Anglo-American affairs from
1790 to 1796, and the relations of the President
with both Houses of Congress in the solution of
the British problem are of primary importance,
however, in the study of the exercise of the treaty-
making powers of the Senate.

1 Moore, International Law Digest, V. 699-707; Lyman, Diplo-
macy of the United States, I. xi., traces Anglo-American relations
from 1783 through this treaty; Rankin, The Treaty of Comity, Com-
merce and Navigation Between Great Britain and the United States,
1794. Bassett, The Federalist System, Chs. IV, VIII; McMaster,
History of the People of the United States, II. viii, xi; Foster,
A Century of American Diplomacy, Ch. V; Trescot, Diplomatic
History, Ch. II.

58

THE JAY TREATY 59

The question of British-American relations was
first formally presented to the Senate on February 9,
1790, when Washington asked their advice as to
the best method of settling the old dispute over the
northeast boundary. The message states:

A plan for deciding this difference was laid before the
late Congress; and whether that, or some other plan of
a like kind, would not now be eligible, is submitted to
your consideration.

In my opinion it is desirable that all questions between
this and other nations should be speedily and amicably
settled; and in this instance, I think it advisable to post-
pone any negotiations on the subject, until I shall be
informed of the result of your deliberations, and receive
your advice as to the propositions most proper to be
offered on the part of the United States.

As I am taking measures for determining the inten-
tions of Great Britain respecting the further detention
of our posts,1 etc., I am the more solicitous that the
business now submitted to you may be prepared for
negotiation, as soon as the other important affairs which
engage your attention will permit.2

This message is characteristic of the early attitude
of Washington towards the Senate as a council of
advice in foreign affairs. It was referred, with the
accompanying documents, to a committee composed
of Strong, Butler, Patterson, Hawkins, and John-
son,3 as was another communication on the subject
subsequently received from Governor Hancock of
Massachusetts.4 Acting in accordance with the re-

1 This refers to the mission of Gouverneur Morris.

2 Sen. Exec. Jour., I. 36-37; Am. State Papers, For. RUls., I. 90-
99.

3 Sen. Exec. Jour., I. 40.

4 Ibid., pp. 40-41; Am. State Papers, For. Rels., I. 99.

60 THE SENATE AND TREATIES

port of this committee, the Senate advised that
effectual measures should be taken to settle the
dispute over the line. They suggested that the
case first be presented to Great Britain, and that if
other methods of amicable settlement failed, the
disputes be referred to commission ers for decision
in the manner advised by Jay in 1785 in the report

which had been submitted to the

Senate with the

message of February 9.1 The apVvice of the Senate
seems to have been followed^ by no immediate
action. It is interesting to note, however, that
Article V of the Jay treaty provides for the decision
of the St. Croix River boundary practically in the
manner here recommended.

The mission of Gouverneur Morris, to which
Washington had referred in his first message to the
Senate, had disclosed the attitude of the British
ministry towards the question at issue between the
two countries. On February 14, 1791, the House
was briefly informed that by informal conferences
it had been ascertained that England was not dis-
posed to enter into any arrangements merely com-
mercial.2 On the same day Washington put the
Senate in full possession of the facts concerning
Morris's mission, laying before them his instruc-
tions and reports.3 Morris had been commissioned
to prepare the way for a fulfillment of the treaty
of 1783, to sound the ministry on the subject of a
commercial convention, and to urge the sending
of a British minister to the United States. The

1 Sen. Exec. J<mr., I. 41-42.

2 Richardson, Messages, I. 96.

3 Ibid.; Am. State Papers, Far Rels., I. 121-127.

THE JAY TREATY 61

results of the mission were reported as being un-
satisfactory with reference to the first two of its
objects. Morris had been assured, however, that
the government would send a diplomatic represen-
tative to this country, and in October, 1791, George
Hammond was received as minister from the Court
of St. James.1

Hammond, however, had no authority to negotiate
a settlement of any of the points at issue, and during
the next three years the new republic and the ancient
kingdom drifted steadily towards war. The old
disputes were made more bitter by the addition of
several grievances particularly galling to the United
States. One of these grew out of the continued re-
tention by the British of the border posts, which
they now used as points of vantage from which to
incite the Indians against the settlers in the western
territory.2 Friction arose from the destruction of
American commerce and the impressment of Ameri-
can seamen as an incident of the war between Great
Britain and France. Then, too, many citizens,
particularly among those who hated England and
loved France, blamed the British for the renewed
depredations of the Algerine pirates on our Mediter-
ranean commerce. Public feeling was aroused to a
pitch that is unknown in the United States to-day.

During this period Washington kept both houses
of Congress well informed of developments. In
February he laid before the legislature dispatches

1 Foster, A Century of American Diplomacy, p. 159.

2 See McLaughlin, "Western Posts an4 British Debts," in
American Historical Association Report, 1894; also McLaughlin,
The Confederation and the Constitution, Ch. VI.

62 THE SENATE AND TREATIES

from Pinckney which indicated that the British
government had small intention of hastening a
settlement. Correspondence between Randolph and
Hammond, likewise submitted, showed that no
progress had been made in the negotiations proposed
to be carried on at Philadelphia.1 In the mean-
time Jefferson's long-expected commercial report
recommending reprisals against those European
nations which subjected American shipping to
harsh regulations had been laid before Congress.2
The House had responded by receiving favorably
Madison's resolutions proposing retaliatory measures
toward Great Britain.3 At the same time the ad-
ministration was preparing for eventualities by
proposing to provide for the fortification of harbors,
the increase of the navy, and the strengthening of
the army. The anti-English party in the country and
in Congress seemed to be preparing to meet Great
Britain more than halfway on the road to war.

Early in March it was realized that matters were
approaching a crisis. Washington's face was set
against war with England, however, and at this
juncture a small group of the most influential mem-
bers of the Senate came forward with a plan once
more to substitute negotiations for hostilities.
The extent to which this group of Federalist Sena-
tors were responsible for the Jay treaty, the cir-
cumstances in which they worked to secure their
ends, and the manner in which Senate procedure

1 Am. State Papers, For. Rels., I. 327-328.

2 Annals of Congress, 1793-1795, p. 152.

3 These resolutions were introduced January 3, 1794. Ibid.,
p. 155 et. seq.

THE JAY TREATY 63

was adapted to meet their needs show that on the
first occasion upon which the treaty-making power
was the point of stress in a national crisis, it was
exercised not in accordance with any a priori theory
but as the necessities of the moment demanded.
And the action of the Senate upon this treaty during
the stages which preceded its signature, more
closely approximates modern practice than does
that taken upon any other treaty during the first
decade of government under the Constitution.

Oliver Ellsworth of Connecticut, George Cabot
and Caleb Strong of Massachusetts, and Rufus
King of New York were the four Senators who, to a
great extent, were responsible for the Jay mission.
With them was associated Robert Morris of Penn-
sylvania. Federalists all, they were the backbone
of the administration party in the Senate. Five
more powerful men could not be selected from the
Senators of that period. The fact that they were
accustomed to working together and with Washing-
ton and his chief advisers made them an effective
unit. Investigation reveals that they were more in-
fluential than any other members of the upper
house in determining the action of that body in
foreign affairs during the whole of Washington's
administrations .

The time at which these men, or any of them,
began to consider the possibility of a British mission
has not been ascertained. There is reliable evidence,
however, that early in March some such plan was
well advanced.1 By March 10 the project was so

1 Brown, Life of Oliver Ellsworth, pp. 213-214. Here is given
an excellent account of Ellsworth's activity in connection with the

64 THE SENATE AND TREATIES

well matured that the leaders in the movement met
in King's room to consider what action should be
taken in the emergency caused by the capture and
condemnation of American vessels in the West
Indies. What transpired at this meeting is best
told in the words of Rufus King himself. Under
date of March 10, he wrote:1

The order of Britain of the 6th Nov., authorizing the
seizing and sending in of American vessels for adjudica-
tion, having produced by the great number of captures
in the West Indies, the most alarming irritation in the
middle and eastern states (more than 200 sail having
been taken and nearly half that number having been
condemned), the faction opposed to the government
having taken hold of the circumstances to embarrass
and derange the administration — Ellsworth, Cabot and
Strong met at my room in order to confer on the course
most advisable to pursue.

The Result was that Ellsworth should go the next
day to the President, that he should represent to him
that the crisis was alarming; that war might and prob-
ably would be the consequence of these aggressions of
England, unless some system calculated to calm the public

Jay treaty. A detailed account of the genesis of the Jay mission is
given in Hamilton, History of the Republic of the United States of
America, V. cviii, civ. The author views the entire transaction
largely from Hamilton's viewpoint, but his statements are based on
contemporaneous sources, in part on the manuscript of Rufus
King, to which reference is made below. Reference also is made to
Lodge, Life and Letters of George Cabot, Chs. Ill, IV, where Cabot's
career in the Senate is traced; to an essay, " Oliver Ellsworth," by the
same author, in, A Fighting Frigate and Other Essays and Addresses,
pp. 86-89; and to Gibbs, Memoirs of the Administrations of Wash-
ington and John Adams, I. V. Here appears original material in
the form of letters to and from Oliver Wolcott.

1 Rufus King's manuscript, a contemporary diary or record
written by King and published in Charles R. King, Life and Cor-
respondence of Rufus King, I. 517-519.

THE JAY TREATY 65

mind, as well as the public councils, was speedily adopted
— to avoid that scourge and to save the national honor,
as well as to procure indemnification for the wrongs that
our merchants had already suffered. . . .

Ellsworth then was to suggest the adoption of
vigorous measures for defense, the sending of an
agent to the West Indies to report on the situation
there, and

that further an envoy extraordinary should be appointed
and sent to England to require satisfaction for the loss
of our Property and to adjust these points which menaced
a war between the two countries.

Hamilton was to be suggested as the man most
likely to succeed on such a mission.1

How Ellsworth fared with the President is recorded
in King's diary for March 12, as follows:

Ellsworth executed the mission agreed on upon the
10th instant. The President was at first reserved —
finally more communicative and apparently impressed
with Ellsworth's representation. Some doubts were
suggested respecting the character — that Col. Hamilton
did not possess the general confidence of the country —
that there could be no doubts in his, the President's
mind but that their existence was of some consequence.2

On this same day King " intimated to R. Morris
the purport of Ellsworth's mission to the President
- and proposed that he should, if occasion offered,
support it — he consented to do so." 3 Morris
kept his word and lent his powerful influence to
secure negotiation as a substitute for war. And
during the next month the proposition advanced

1 Life and Correspondence of Rufus King, I. 517-519.

2 Ibid. 8 Ibid.

66

by Ellsworth and his colleagues needed all the
support that it could command. The whole project
of a mission was bitterly assailed by all Republicans
and many Federalists. Furthermore, Washington
had unerringly divined the weakness of Hamilton
in the r61e of envoy to England. The proposal to
nominate him raised such a storm of protest that
finally it became evident that from a political
standpoint, his appointment was impossible. On
April 8 Washington told Morris that he had thought
of the Vice-President, Hamilton, Jay and Jefferson
for the task.1 The attitude of the five Senators
seems to have been, Hamilton if possible, if not,
then Jay.2 Together with Hamilton they finally ac-
quiesced in the selection of the Chief Justice, and

1 Life and Correspondence of Rufus King, I., p. 519.

2 "Ap. 12. Mr. Jay arrived to hold a circuit Court in Phila. —
he came to my room, the conversation soon turned to the present
situation of the Country. I told him that the object of the Friends
of peace was such as was agreed between Ellsworth, Cabot, Strong
and myself on the 10. Mar.; that I had heard from the Pr. had
mentioned the Vice President, Hamilton, Jefferson and him as
persons whom he had thought of for the Envoyship: that his friends
were decided that it must be him or Hamilton.

" That so far as regarded the particular knowledge of the Cabinet,
and the details of Commerce, Hamilton might deserve a preference.
But that in other respects we should be perfectly satisfied with
him; that these points were not very important, and if on the other
hand, we consider weight of character abroad as well as at home,
his appointment might be more advantageous than that of Hamilton.
Besides that Hamilton was essential in his present station. Mr.
Jay gave no Reply respecting himself but appeared fully to agree
in the Propriety of Hamilton's appointment.

" We conversed respecting the Resolution before the House for
cutting off commercial intercourse and sequestering British Debts.
He joined me in opinion that they would frustrate all negotiations
and said he should tell the President so when he saw him." Ibid.

THE JAY TREATY 67

on the fourteenth, Hamilton addressed a long letter
to Washington urging the necessity of the mission,
setting forth the dangerous character of the House
propositions for commercial and other reprisals,
withdrawing his name from consideration, and urg-
ing the appointment of Jay.1 Thus it was decided
that Jay should be the envoy. King records that
on April 15 Hamilton, Strong, Cabot, Ellsworth,
and himself waited upon the Chief Justice to urge
his acceptance of the post.2 That night in a very
grave letter Jay informed his wife that there was
"here a serious determination to send me to England,
if possible to avert a war." And he declared that
if on investigation he should be convinced that it
was his duty to go he would accept the appointment. s

1 The Works of Alexander Hamilton, V. 97-115; also, Hamilton
History of the Republic, V. 544-554

2 King wrote, "Hamilton, Strong, Cabot, Ellsworth and myself
went to Mr. Jay this afternoon to press upon him the necessity
which exists that he should not decline the Envoyship; that in
short he was the only man in whom we could confide, and that we
deemed the situation of the Country too interesting and critical
to permit him to hesitate.

"He did not decline. We urged the idea that he should reinforce
the opinion that the measures before the House wd. disappoint the
objects sought for in the appointment — and that he could not
consent to be Envoy charged with complaint and menace." Life
and Correspondence of Rufus King, I. 520.

3 The gravity of the situation at this time is strikingly shown
by two letters from John Jay to his wife. On April 9 he wrote:
"I arrived here on Monday evening, and yesterday dined with the
President. The question of war or peace seems to be as much in
suspension here as in New York when I left you. I am rather
inclined to think that peace will continue, but should not be sur-
prised if war should take place. In the present state of things, it will
be best to be ready for the latter event in every respect."

And on April 10: "The aspect of the times is such, that prudential
arrangements calculated on the prospect of war should not be

68 THE SENATE AND TREATIES

Consideration over night evidently convinced him
that he should do so, for on the following day
Oliver Ellsworth wrote to his friend Oliver Wolcott,
saying that Jay had just informed him of his de-
termination to accept the appointment if it should
be made.1

In the meantime Washington had decided upon his
course of action. On the evening of the fourteenth
he had requested Randolph to draw up a message
to submit the plan and the nomination to the Senate.
Early the following morning he asked if the docu-
ment would be ready by 11 o'clock in order that it
might be laid before "the gentlemen with whom I
usually advise on these occasions." 2 Twenty-four

neglected, nor too long postponed. Peace or war appears to me
a question which cannot be solved. . . . There is much irritation
and agitation in this town, and in Congress. Great Britain has
acted unwisely and unjustly; and there is some danger of our acting
intemperately." Correspondence and Public Papers of John Jay,
IV. 2, 3.

1 Ellsworth to Oliver Wolcott, April 16, 1794. Gibbs, Memoirs
of the Administrations of Washington and Adams, I. 135.

2 Washington-Randolph, April 15, 1794, Washington's Writings
XII. 419. It is interesting to note that at this moment Washington
was considering laying before the Senate the outline of the entire
plan of action which he thought it would become necessary to
follow should the Jay mission fail. Continuing in his letter to
Randolph, he said: "My objects are, to prevent a war, if justice
can be obtained by fair and strong representations (to be made by
a special envoy) of the injuries which this country has sustained
from Great Britain in various ways, to put it in a complete state
of military defence, and to provide eventually for such measures as
seem now to be pending in Congress for execution, if negotiation
in a reasonable time proves unsuccessful..

"Such is the train of my thoughts; but how far all, or any of
them, except the first, ought to be introduced into the message, in
the present stage of the business in Congress, deserves, as I have
said before, due consideration." The message sent in on the day

THE JAY TREATY 69

hours later, April 16, 1794, the message nominating
Jay as Envoy Extraordinary of the United States
to his Britannic Majesty was sent to the Senate.1
The President had done his part towards carrying
out the plan suggested by the five Senators. It
now remained for them to secure the consent of
their colleagues to the mission. This proved to be
a task as interesting as it was difficult.

The minority in the Senate based their opposition
to confirmation upon three grounds. They main-
tained: first, that it was unnecessary and inex-
pedient to dispatch an envoy extraordinary to
carry on a negotiation that could be as well or
better conducted by Thomas Pinckney, Minister of
the United States at London; second, that the
Chief Justice of the United States should not be

following was limited to the subject of negotiation and the nomi-
nation of Jay as envoy. Ibid.

1 The Message was as follows: "Gentlemen of the Senate: The
communications which I have made to you during your present
session, from the despatches of our Minister in London, contain a
serious aspect of our affairs with Great Britain. But as peace
ought to be pursued with unremitted zeal, before the last resource,
which has so often been the scourge of nations, and cannot fail to
check the advanced prosperity of the United States, is contemplated;
I have thought proper to nominate, and do hereby nominate,
John Jay, as Envoy Extraordinary of the United States, to his
Britannic Majesty.

"My confidence in our Minister Plenipotentiary at London,
continues undiminished. But a mission like this, while it cor-
responds with the solemnity of the occasion, will announce to the
world the solicitude for a friendly adjustment of our complaints,
and a reluctance to hostility. Going immediately from the United
States, such an Envoy will carry with him a full knowledge of the
existing temper and sensibilities of our country, and will thus be
taught to vindicate our rights with firmness, and to cultivate peace
with sincerity." Sen. Exec. Jour., I. 150.

70 THE SENATE AND TREATIES

sent to negotiate a treaty which might later come
before him for judicial consideration;1 third, that
John Jay held opinions against the interest and just
claims of his country which rendered it unwise to
entrust to him the task of securing justice from Great
Britain.2 Thus the Senate debated and passed not
only upon the choice of the envoy but also upon
the expediency of the mission itself.

It did not, however, have an opportunity either
to approve or to disapprove of the proposals which
Jay was to make to England, although the pre-
cedents might have led it to expect that his instruc-
tions would be laid before it. On April 16. King
wrote, "From the difficulty of passing particular
instructions in the Senate, it seems to me the most
suitable that the Pr. shd. instruct, and that the

1 The final attempt to prevent or delay the confirmation of Jay's
nomination was made by the introduction of a motion by Burr to
postpone its consideration for the purpose of considering the fol-
lowing:

"Resolved, That any communications to be made to the Court
of Great Britain may be made through our Minister now at that
Court, with an equal facility and effect, and at much less expense,
than by an Envoy Extraordinary; and that such an appointment
is at present inexpedient and unnecessary.

"That to permit Judges of the Supreme Court to hold at the same
time any other office or employment, emanating from and holden
at the pleasure of the Executive, is contrary to the spirit of the
Constitution, and, as tending to expose them to the influence of the
Executive is mischievous and impolitic." This motion failed 10
to 17. Sen. Exec. Jour., I. 152. Also Life and Correspondence of
Rufus King, I. 522.

2 Life and Correspondence of Rufus King, I. 521; Sen. Exec.
Jour., I. 150-153; Hamilton, History of the Republic, V. cv., Trescot,
Diplomatic History of the Administrations of Washington and Adams,
pp. 101-105, gives an excellent discussion of the objections raised
to the choice of Jay for this mission.

THE JAY TREATY 71

Treaty shd. be concluded subject to the approba-
tion of the Senate." 1 Federalist leaders were not
unprepared then when, on the day following, a
motion was introduced,

That previous to going into the nomination of a special
Envoy to the Court of Great Britain, the President of
the United States be requested to inform the Senate of
the whole business with which the proposed Envoy is
to be charged.

They promptly secured the rejection of the propo-
sition.2

The feeling which then existed both in and out
of Congress was such that the "difficulty of passing
particular instructions in the Senate" certainly
would have been great. Indeed it is unlikely that
the Senate could have been brought to agree to any
detailed plan that Washington and his advisers
might have submitted. In these circumstances it
was evidently recognized that if the Senate was
to serve as a "council of advice" in such a delicate
matter it must be through a small number of its
members in whom both the executive and a majority
of their colleagues had great confidence. In later
years this became the normal mode of procedure.
The significance of the precedent set in this instance
will be discussed more fully in connection with the
ratification of the treaty.

After three days of discussion Jay's nomination
was confirmed.3 The minority attempted without
success to obtain the passage of a resolution that in
executive business the minority on any question

1 Life and Correspondence of Rufus King, I. 521.

2 Sen. Exec. Jour., I. 151. 3 Ibid., I. 152.

72 THE SENATE AND TREATIES

might enter their objections in the journals.1 It
will be remembered that a similar resolution in-
troduced at the tune of the confirmation of the Creek
treaty of 1790 failed.2

It now remained to instruct the envoy and to
dispatch him to England. In this phase of the
business the Senatorial group still exercised a power-
ful if not a predominant influence. King's diary
records under date of April 21 that Hamilton,
Ellsworth, Cabot, and he met with Jay to discuss
the subject.

All agreed that as the Pr. might give the instructions
without consulting the Senate, it would be most advisable
so to conduct the business, and that the Treaty, if any
shd. be formed, should bejsigned subject to the approba-
tion of the Senate.3

The question of spoliations on American commerce
and that of the execution of the old treaty were
considered, as, indeed, was the entire field of the
proposed negotiation. In King's words,

Various propositions relative to a commercial Treaty,
the posts, the Indian trade, the navigation of the Lakes, the
West Indies, etc., etc., were also discussed — and Mr. —
stated his conversation with the Secretary of State who
appeared disposed to leave the negotiation open and the
powers of the envoy very discretionary.3

1 Sen. Exec. Jour., I. 152, 153. 2 See p. 29 above.

3 Life and Correspondence of Rufus King, I. 523.

This general principle was the one acted upon by Randolph in
framing the instructions, part VI. of which contains the following
words: You will therefore consider the ideas, herein expressed, as
amounting to recommendations only, which in your discretion you
may modify, as seems most beneficial to the United States, except
in the two following cases, which are immutable." Then follow
references to his instructions on the relations of the United States

THE JAY TREATY 73

It is not unlikely that other informal conferences
were held between the leaders of the Senate and
executive officials before the instructions which
Randolph handed to Jay, May 6, were finally com-
pleted. Hamilton himself had a large part in
drafting the instructions, and before Jay's departure
submitted his views to him very fully in a long
letter covering many of the most important problems
to be solved.1 The entire procedure, certainly, is
very similar to that by which it later became cus-
tomary to consult the Senate through the Committee
on Foreign Relations before any important negotia-
tion was embarked upon.2

to France, and on a commercial treaty. Am. State Papers, For.
Rels., I. 474.

Hamilton's low opinion of these instructions and the degree to
which the senatorial group depended upon the inclination and
ability of Jay to carry out the measures upon which they had agreed
is strikingly exhibited by the following paragraph in a letter written
to Washington after the signature of the treaty: "I mentioned as
my opinion that the instructions to Mr. Jay, if published, would do
harm. The truth, unfortunately, is that it is in general a crude
mass, which will do no credit to the administration. This was my
impression of it at the time, but the delicacy of attempting too much
reformation in the work of another head of department, the hurry
of the moment; and a great confidence in the person sent, pre-
vented my attempting that reformation. Hamilton to Washington,
March 28, 1796. Works of Alexander Hamilton, X. 152-153.

As a member of the cabinet, however, Hamilton had a part in
drawing up these instructions, submitting memorandums of points
to be included in them, and partial drafts upon the commercial
sections to Washington and Randolph. Hamilton to Washington,
April 23, 1794; Hamilton to Randolph, April 27, 1794; Draft of
part of instructions to Jay. Ibid., V. 115-123; See also, Hamilton,
History of the Republic, VI. cxvii.

1 Hamilton to Jay, May 6, 1794. Works of Alexander Hamilton,
V. 123-128.

2 It is pointed out by William Garrott Brown that on November
19, the day upon which the treaty was signed besides letters to

74 THE SENATE AND TREATIES

It was in April, 1794, that the Senate finally
confirmed the nomination of the special envoy.
Eleven months later, on the seventh of March,
1795, the Jay treaty was placed in the hands of
the President.1 Congress had adjourned four days
previously. But before the Senators had left Phila-
delphia Washington had issued a proclamation re-
questing them to assemble in special session on
June 8.2 Upon the appointed day he was informed
that the Senate was ready to receive any communi-
cations he -might care to make, the treaty was
transmitted, and the fight for ratification was on.

It is not considered to be within the scope of this
study to trace in detail the political struggle over
the Jay treaty either in Congress or out of it. It
is deemed important, however, to outline the most
significant steps in the procedure by which the
Senate finally advised and consented to ratification
with the condition that the twelfth article be sus-
pended; to estimate the degree to which the domi-
nant group of Federalist statesmen were responsible

Washington and Edmund Randolph, Secretary of State, Jay wrote
to Hamilton, King, and Ellsworth, making a kind of brief report
to each. Brown, Life of Oliver Ellsworth, 217. Correspondence and
Public Papers of Jay, IV. 132-149.

1 McMaster, History of the People, II. 213.

2 Richardson, Messages, I. 587. Several months later in a letter
to Monroe relating what had occurred Madison states, "The Treaty
concluded by him did not arrive until a few days after the 3rd. of
March which put an end to the last session of Congress. . . . Ac-
cording to previous notification to the Senators that branch as-
sembled on the 28th (in) of June, the contents of the Treaty being
in the meantime impenetrably concealed. I understand it was
even withheld from the Secretaries of War and the Treasury, that
is Pickering and Wolcott." Madison to Monroe, December 20
1795, Writings of James Madison (Hunt edition), VI. 257-258.

THE JAY TREATY 75

for this action; to examine the methods by which
Burr and his associates opposed ratification; and
to observe the manner in which the Senate at-
tempted to guard the secrecy of its proceedings.

The first move of the opponents of ratification
was an attempt to secure the publication of the treaty
and the instructions under which it had been nego-
tiated. For five days after June 8 the contest was
over tnis question.1 On the thirteenth the Repub-
licans abandoned this line of attack and the debate
was turned to the provisions of the treaty itself.2
It soon became evident that the twelfth article was
the vulnerable point in the product of Jay's en-
deavors, and on the sixteenth it was agreed that it
should not be taken up until the rest of the treaty
had been discussed.3

It is significant that the proposition to amend the
treaty by the addition of an article suspending so
much of this twelfth article as related to the trade
between the United States and the British West
Indies originated not from the enemies of the
treaty but from its friends. It is hardly accurate
to say that the opposition Senators succeeded in
striking out this article.4 In fact, the suggestion
that the Senate advise ratification with this condi-
tion seems to have come from the very group that
was so largely responsible for the mission itself.
Before the Senate had convened, Hamilton had
written to William Bradford, Senator from Rhode
Island, telling him that the commercial agreement
in the treaty displeased him and declaring that he

1 See pp. 88-91 below. * Sen. Exec. Jour., I. 181-182.

3 Ibid., I. 182. 4 Brown, Life of Oliver Ellsworth, p. 218.

76 THE SENATE AND TREATIES

preferred a conditional ratification to an unqualified
acceptance of the instrument.1 Three days after
the debate had commenced Hamilton also wrote
to Rufus King advising the same course.2 On June
17 a resolution was introduced giving the advice
and consent of the Senate to ratification,

on condition that there shall be added to the said treaty
an article whereby it shall be agreed to suspend the opera-
tion of so much of the 12th article as respects the trade
which his said Majesty thereby consents may be carried
on between the United States and his islands in the West
Indies in the manner, and on the terms and conditions
therein specified.

And the Senate recommend to the President, to pro-
ceed without delay, to further friendly negotiations with
his Majesty, on the subject of the said trade, and of the
terms and conditions in question.3

This resolution is said to have been introduced
by King himself.4 Considering the care with which
he and his friends controlled every step towards
the consummation of their end, this was probably
the case. At any rate it formulated the course
which they had determined to follow.

After the seventeenth two major moves were made
to prevent ratification, and in addition there was one
serious attempt to couple with the recommendation
of further negotiations on the West India trade

1 Works of Alexander Hamilton, X. 99.

2 Ibid., p. 101. See Hamilton, History of the Republic, VI. cxviii,
for discussion of Hamilton's part in securing the ratification of the
treaty.

3 Sen. Exec. Jour., I. 182.

4 King, Life and Correspondence of Rufus King, II. 9-10. The
author makes this statement in guarded form, and gives no evidence
to substantiate it.

THE JAY TREATY 77

a similar recommendation with reference to com-
pensation for negroes or other American property
carried away in violation of Article VII of the
treaty of peace.1 While the way was being pre-
pared for these propositions the President at the
request of the Senate sent in various documents
bearing upon the treaty.2

On the twenty-second Burr introduced the motion
upon which the real trial of strength between the
parties was to be made. This motion may be con-
sidered to express the opinion of at least a large
number of Senators as to the lengths to which it
was proper for the Senate to go in advising the
President, to secure specific amendments to a treaty
by means of new negotiations. Burr moved the
following resolution:

That the further consideration of the treaty concluded
at London, the 19th of November, 1794, be postponed,
and that it be recommended to the President of the
United States, to proceed without delay to further friendly
negotiations with his Britannic Majesty, in order to effect
alterations in the said treaty, in the following particulars:

Then followed seven propositions involving the
amendment or excision of ten articles in the treaty
as signed.3 The alterations requested represented

1 Sen. Exec. Jour., I. 183. 2 Ibid.

3 The alterations recommended were as follows:

"That the 9th, 10th, and 24th articles, and so much of the 25th
as relates to the shelter of refuge to be given to the armed vessels
of States or Sovereigns at war with either party be expunged.

2d art. That no privilege or right be allowed to the settlers or
traders mentioned in the 2d article, other than those which are
secured to them by the treaty of 1783, and existing laws.

3d art. That the third article be expunged, or be so modified
that the citizens of the United States may have the use of all rivers,

78 THE SENATE AND TREATIES

the demands of the anti-administration, anti-British
party. So far as their practicability was concerned,
the President might as well have been advised to
secure the cession of Canada to the United States.
Nevertheless they were supported by the ten Sena-
tors who acted together in every attack upon the
treaty. The vote against the adoption of the reso-
lution was 20 to 10. l

But although Burr's proposal was defeated there
is nothing to indicate that the rejection was not
based purely upon expediency and not at all upon
the impropriety of the recommendation that the
President make a new treaty in accordance with
the ideas of the Senate. In fact, a resolution of

ports and places within the territories of His Britannic Majesty
in North America, in the same manner as his subjects may have
those of the United States.

"6th art. That the value of the negroes and other property
carried away, contrary to the 7th article of the treaty of 1783,
and the loss and damage sustained to the United States by the detention
of the posts, be paid for by the British government; the amount to
be ascertained by the Commissioners who may be appointed to
liquidate the claims of the British creditors.

" 12th art. That what relates to the West India trade, and the
provisions and conditions thereof, of the 12th article, be expunged,
or be rendered more favorable to the United States, and without
any restraint on the exportation, in vessels of the United States,
of any articles, not the growth, produce, or manufacture of the
said islands of his Britannic Majesty.

" 15th art. That no clause be admitted which may restrain
the United States from reciprocating benefits by discriminating
between foreign nations in their commercial arrangements, or pre-
vent them from increasing the tonnage or other duties on British
vessels, on terms of reciprocity, or in stipulated ratio.

"21st art. That the subjects of citizens of either party, be not
restrained from accepting commissions in the army or navy of any
foreign power." Sen. Exec. Jour., I. 183-184.

1 Sen. Exec. Jour., I. 184.

THE JAY TREATY 79

similar form had been passed in 1793 in connection
with General Putnam's treaty with the Wabash
and Illinois Indians.1 The Senate had not been
formally consulted as to the instructions under
which Jay acted. It had been so consulted prior
to the negotiation of other treaties — had been
treated as a " council" whose advice ought to be
sought before a treaty was negotiated. Taking
these facts into consideration, Burr's resolution was
in full accord with the accepted theory of the posi-
tion of the Senate in treaty-making. So far as a
treaty with Great Britain was concerned the adop-
tion of such a resolution would have made a treaty
impossible, which of course is the political reason
which caused the Federalists to reject the proposal.
It is probable that the passage of this resolution
would have modified the subsequent development
and exercise of the treaty-making powers of the
Senate. Washington might well have considered
such an act as notice that, in the future, the Senate
would expect to participate in the determination of
the conditions under which a proposed treaty would
be signed; at the very least it would have suggested
forcibly the expediency of always consulting them
before opening negotiations. It might also have led
the Senate to expect such consultation and thus
have made it easier for Senators or groups of Senators
to demand it. A legislative body eagerly creates
and tenaciously clings to precedents which increase
its power and enhance its dignity and importance.
At the time Jay's nomination was before them,
however, the necessities of the situation and the

1 See above, p. 35.

80 THE SENATE AND TREATIES

political influence of the Federalist leaders were
powerful enough to keep the Senate from demanding
the instructions which were to be issued to him.
The same forces were now sufficient to lead the
Senate to waive for the good of the nation and of
the Federalist party what it might well have re-
garded as its established prerogatives. Thus the
precedent which was established weakened rather
than strengthened its position in treaty-making.
The first great treaty under the Constitution had
been negotiated by the executive alone. Not until
the signed agreement was laid before it had the
Senate been formally consulted as to its terms.
A determined attempt to prevent ratification until
new negotiations had been attempted along lines
laid down by. the Senate had failed. The course
adopted by Washington in shifting his relations
with the Senate in this matter from a basis of
theory to one of expediency had been justified by
events and accepted by the Senate.

On June 24, the day following the rejection of
Burr's proposal, an attempt was made to add to the
resolution of advice and consent, the recommenda-
tion that the President continue negotiations for
the purpose of securing adequate compensation for
negroes carried off by the British in contravention
of the treaty of peace. The motion to this effect
was presented by Jacob Read, Federalist Senator
from South Carolina, and was seconded by Pierce
Butler, his Republican colleague.1 It was lost by
a vote of 12 to 15, Read himself and Humphrey
Marshall of Kentucky moving from the Federalist

1 Sen. Exec. Jour., I. 185.

THE JAY TREATY 81

phalanx to vote for the interests of the slave owners.
It is interesting to note the sectional character of
this division, every southern Senator except Gunn
of Georgia voting for the amendment, while Burr,
Langdon of New Hampshire, and Robinson of
Vermont cast the only northern votes in favor of
the proposal.1 The subsequent fate of this propo-
sition may be mentioned here. On June 25, after
the Senate had advised the ratification of the treaty,
James Gunn, the Federalist Senator from Georgia,
introduced a resolution advising further negotiation
to obtain compensation for the slaveholders and
suggesting that in case this should fail the President
attempt to secure an agreement- to submit the claims
to a joint commission. Coupled with it was a para-
graph declaring the opinion of the Senate to be that
the negotiation on this subject should be distinct
from and subsequent to that recommended in their
resolution of the twenty-fourth respecting the West
India trade. The Republicans refused to accept the
resolution with this declaration, and as Henry of
Maryland was not in the chamber when the final
vote came, the Federalists lacked one of the twenty
votes necessary to secure its passage.2

After this attempt to care for the interests of the
slaveholders had failed, the minority made their
final stand. A resolution was introduced that the
President be informed that the Senate would not
consent to the ratification of the treaty for seven
different reasons which were set forth in detail.3

1 Sen. Exec. Jour., I. 185. 2 Ibid., pp. 187-189.

3 The following reasons were stated:

•'1st. Because so much of the treaty as was intended to ter-

82 THE SENATE AND TREATIES

The object of this resolution probably was to write
into the record a final and formal statement of the
grounds upon which the minority opposed the
treaty. It was promptly voted down.

The Federalists then exerted their power and
forced their resolution of the seventeenth to a vote.
The question was divided and that part of the resolu-

minate the complaints flowing from the inexecution of the treaty
of 1783, contains stipulations that were not rightfully or justly
requirable of the United States, and which are -both impolitic and
injurious to their interests; and because the treaty hath not secured
that satisfaction from the British government, for the removal of
negroes in violation of the treaty of 1783, to which the citizens of
the United States were justly entitled.

"2nd. Because the rights of individual states are, by the ninth
article of the treaty, unconstitutionally invaded.

"3d. Because, however impolitic or unjust it may generally be
to exercise the power prohibited by the tenth article, yet it rests
on legislative discretion, and ought not to be prohibited by treaty.

"4th. Because so much of the treaty as relates to commercial
arrangements between the parties, wants that reciprocity upon
which alone such like arrangements ought to be founded, and will
operate ruinously to the American commerce and navigation.

" 5th. Because the treaty prevents the United States from the
exercise of that control over their commerce and navigation, as
connected with other nations, which might better the condition of
their intercourse with friendly nations.

"6th. Because the treaty asserts a power in the President and
Senate, to control, and even annihilate the constitutional right
of the Congress of the United States over their commercial inter-
course with foreign nations.

"7th. Because, if the construction of this treaty should not
produce an infraction of the treaties now subsisting between the
United States and their allies, it is calculated to excite sensations
which may not operate beneficially to the United States.

"Notwithstanding the Senate will not consent to the ratification
of this treaty, they advise the President of the United States to
continue his endeavors, by friendly negotiation with his Britannic
Majesty, to adjust all the real causes of complaint between the
two nations." Sen. Exec. Jour., I. 185-186.

THE JAY TREATY 83

tion advising and consenting to ratification, provided
that the twelfth article be amended, was carried by
the party vote of 20 to 10. The remaining para-
graph, advising further negotiation on the West
India trade was then unanimously agreed to.1 Thus
the .result of Washington's final effort to avert the
''scourge of nations" was accepted by the Senate
with only such modifications as were suggested by
the leaders of the Federalist party and likely to be
agreed to by Great 'Britain.

The assent of the Senate to conditional ratifica-
tion at once gave rise to the question of the proper
procedure to be followed in making the proposed
additional article a part of the treaty. Republican
Senators declared that the entire treaty would
have to be resubmitted to the Senate before rati-
fication.2 On June 29 the President submitted a
copy of the Senate resolution to the Secretaries of
State, Treasury, and War, and to the Attorney
General, together with these two questions:

First, is or is not that resolution intended to be the
final act of the Senate; or do they expect, that the new
article which is proposed shall be submitted to them be-
fore the treaty takes effect?

Secondly, does or does not the constitution permit the
President to ratify the treaty, without submitting the
new article, after it shall be agreed to by the British
King, to the Senate for their further advice and consent? 3

1 Sen. Exec. Jour., I. 186.

2 Crandall, Treaties, Their Making and Enforcement (2d ed.)
p. 81, citing Tazewell to Monroe, June 27, 1795, MS. Monroe
Papers, VIII. 951.

3 Written about June 29, 1795, Washington's Writings, XIII,
59, 60.

84 THE SENATE AND TREATIES

The Secretaries and the Attorney General were
agreed in the opinion that it was unnecessary to
submit the new article to the Senate.1 Hamilton,
upon this first consideration of the question at least,
seems to have taken the other position. Ac-
customed to rely upon his assistance in weighty
matters, Washington had requested his advice upon
the ratification of the treaty even though he was no
longer in official position ; 2 and in particular had
asked his opinion as to the «proper course to be
pursued on this point.3 Washington, seriously con-
sidered Hamilton's advice and as he was leaving
Philadelphia for Mt. Vernon on July 14, he re-
quested his former Secretary of the Treasury to
lay his ideas before Randolph, if, upon mature re-
flection, he should continue to disagree with the
position taken by the latter and his colleagues.
He also informed Randolph of Hamilton's opinion
and asked him to discuss the subject again with
the other officers of the government.4 There is no
record that Hamilton further expressed his views
on this matter either to Washington or to Raridolph.
Possibly he realized that a resubmission would have
jeopardized the entire treaty and for this reason
decided to hold his peace. That the opponents of

1 Washington to Hamilton, July 14, 1795, Ibid., p. 67.

2 Hamilton's resignation was accepted January 31, 1793.
McMaster, History of the People, II. 212.

3 Washington to Hamilton, July 3, 1795, Washington's Writings
XIII. 61-63; Washington to Hamilton, July 13, 1795, Ibid., pp.
63-67.

4 Washington to Hamilton, July 14, 1795, Washington's Writ-
ings, XIII. 67.

THE JAY TREATY 85

the administration felt that they had nothing to lose
and everything to gain by resubmission, explains
their position upon the constitutional point. Jeffer-
son, for example, in writing to Tazewell, observed:

I am not without hope that the operations of the 12th
article may render a recurrence to the Senate yet neces-
sary, and so give to the majority an opportunity of cor-
recting the error into which their exclusion of public
light has led them.1

Whatever may have been Hamilton's ultimate
opinion, Washington finally acted upon the advice
of the heads of the departments, and the course
then laid out has been uniformly followed since
when the Senate has advised and consented to the
ratification of treaties under certain conditions,
usually in the form of definite amendments. Ran-
dolph admirably expressed the principle upon which
this action is based.

The Secretary of State, in his written opinion, on July
12, argued that, as the final ratification was given by the
President, and not by the Senate, the action of the Senate,
even in case it advised and consented unconditionally,
was taken upon a treaty the completion of which was
reserved to the President; that the Senate consequently
might give its advice and consent without having the
very treaty which was to be ratified before it; that if
the President should ratify without again consulting
that body, he would be responsible for the accuracy with
which its advice was followed; and that if he should
ratify what had not been advised, the treaty, for that
very reason, would not be the supreme law of the land,
and in this lay the security of the Senate.2

1 Jefferson to Tazewell, September 13, 1795, Writings of Thomas
Jefferson, IX. 308.

1 Crandall, Treaties, Their Making and Enforcement (2d ed.), pp.
80-81. Reference to MS. Washington Papers, XXII. 148, 184, 200.

86 THE SENATE AND TREATIES

The decision thus made was of vital importance.
Had it been decided that resubmission to the
Senate in such circumstances was necessary and
that when resubmitted a treaty was again liable
to rejection or amendment, the power of the Senate
would have been appreciably increased and our
system of ratification made even more complicated.

By August 14 Washington finally had made his
decision that he would follow the advice of the
Senate and attempt to secure England's ratification
of the treaty with the twelfth article amended.1
This he had no difficulty in doing. Even though
the business of exchange finally fell into the hands
of W. A. Deas, who as American charge in the
absence of Thomas Pinckney seems to have made
himself unpopular at the British Foreign Office.
Lord Grenville raised no objection whatever to
the inclusion of an additional article as required
by the resolution of the Senate.2 Inasmuch as later
British foreign ministers protested with more as-
perity than courtesy against the American custom
of ratifying treaties conditionally or with amend-
ments proposed by the Senate, the position taken
by Lord Grenville upon this occasion is worthy of
exposition.3

In his report of a conference with Grenville on
the morning of the twenty-third, Deas informed
Pinckney that upon stating that he

1 Randolph to Adams, August 14, 1795, MS. State Department,
U. S. Ministers, Instructions, III. 24.

2 Memoirs of John Quincy Adams, I. 122.

3 Much of the correspondence referred to in this discussion is
to be found in Trescot, The Diplomatic History of the Adminis-
trations of Washington and Adams, pp. 119-120.

THE JAY TREATY 87

was possessed of the President's Ratification of the
Treaty conformably to the Advice of the Senate and of-
fering to exchange the same for an equivalent Ratifica-
tion on the part of this Government, his Lordship observed
unofficially that he had no reason to think such exchange
would not take place, but that it would be necessary
to lay the business before the King for his Determination.1

Five days later Deas was able to announce the ex-
change of ratifications. It is evident that Great
Britain at this time expressed no disapproval what-
ever at the modification by the Senate of the treaty
as signed, for Deas wrote to Pickering that

Lord Grenville in presenting that [the ratification] on
the part of their Government expressed the satisfaction
it afforded the King in giving his assent. You will ob-
serve from the copy of the British Ratification herein
enclosed that it corresponds with that of the President.2

1 William A. Deas to Secretary of State, October 23, 1795,
MS. State Department, England, Vol. III.

2 William A. Deas to Secretary of State, October 28, 1795, Ibid.
It may be observed that the long delay in the promulgation

of the Jay treaty probably was due to the fact that Deas forwarded to
the State Department only a copy of the British ratification instead
of the original. His letter of October 28, announcing the exchange
of ratifications, is endorsed as having been received at the Depart-
ment on December 28 . Two months more passed before the treaty
was proclaimed, during which time the Republicans roundly abused
Washington for his silence oh the subject. McM aster, History
of the People, II. 263. A letter from Pickering to Deas dated
March 9, 1796, explains the delay as follows : " No original ratification
having arrived, as expected the President at length directed the
treaty with Great Britain to be promulgated, on the evidence of its
ratification by his Majesty contained in your letter of October 28th.
But the daily expectation of an original, induced the suspension
of this promulgation until the 29th of February, and the next day
the treaty was laid before each House of Congress." Pickering
to Deas, March 9, 1796. MS. State Department, United States
Ministers, Vol. III.

88 THE SENATE AND TREATIES

On February 29, 1796, the President proclaimed
the treaty without further consultation with the Sen-
ate upon the form of ratification, and on March 1
laid it before both Houses of Congress.1 The pro-
priety and constitutionality of this course seems to
have been unquestioned at the time. Certainly
there is no record of any protest from the Senate
or from individual Senators.

In the matter of propriety, in fact, the Senate
had been put in no pleasant position by the action
of one of its own members. When Washington
had transmitted the treaty and the documents con-
nected with it his message had been silent upon the
subject of secrecy. Neither the treaty itself nor
the documents were submitted "in confidence."
The question at once arose, however, whether the
Senate should regard the matter as confidential,
and during the very first session an order was passed
laying the Senators under an injunction of secrecy
concerning the communications received from the
President.2 It was further directed that thirty-one
copies of the treaty be printed, under injunction of
secrecy, for the use of the Senate. On the following
day two additional copies were authorized.3 On the
twelfth, the opponents of ratification made a deter-
mined effort to secure the publication of the treaty.
But on the thirteenth the motion to rescind the reso-
lution enjoining secrecy was defeated by the strict
party vote that had marked the divisions on all of
the important phases of the struggle for ratification.4

1 Annals of Congress, 1795-1796, pp. 48, 394.

2 Sen. Exec. Jour., I. 178. 3 Ibid.
4 Ibid., pp. 178, 179, 181.

THE JAY TREATY 89

Thus the matter stood until after the final action
of the Senate on the treaty.

On June 25 the matter was again brought up by
Burr, who moved that the resolution of the eighth
enjoining secrecy upon the Senators be rescinded,
but that they nevertheless be enjoined not to
authorize or allow any publication in print of the
treaty or any article thereof. Ellsworth endeavored,
unsuccessfully, to substitute for this an order that
until ratification the question of publication should
be left solely with the President. Burr's motion
was then adopted as presented but was at once re-
considered. On the next day, however, after much
debate and several divisions a resolution was carried
removing the injunction of secrecy but forbidding
the Senators to give out any copy of the treaty or
of any article thereof.1

The action of the Senate in refusing to authorize
the publication of the treaty or any article thereof
seems to have come from a feeling among a majority

1 Sen. Exec,. Jour., I. 190, 191, 192. With reference to this action
Madison wrote to Monroe, December 20, 1795. "The Senate, after
a few weeks consultation, ratified the Treaty as you have seen. The
injunction of secrecy was then dissolved by a full House, and quickly
after restored sub modo, in a thin one. Mr. Mason, disregarding
the latter vote, sent the Treaty to the press, from whence it flew
with an electric velocity to every part of the Union." Writings of
James Madison, VI. 258. This statement overlooks the fact that
on the twenty-sixth practically the same motion that was recon-
sidered on the twenty-fifth was again passed, and that it did not
remove the injunction against allowing the printing of the treaty.
Some corroboration for Madison's statement about the reconsider-
ing of the original motion in a thin house may be found in the
circumstances that reconsideration was had upon motion of King,
supported by Cabot and that it was ordered that all absent Senators
be notified of the reconsideration.

90 THE SENATE AND TREATIES

of the members that this was a question which
should be left to the decision of the President.1
The pressure from without, however, was too heavy
to be withstood even by the compact body of thirty
men. As Oliver Wolcott put it, the permission
given was found to be equivalent to publication.
The contents of the mysterious document gradually
spread abroad,2 and after the appearance of an in-
complete sketch in the Aurora, Senator Stevens T.
Mason of Virginia sent his copy of the treaty to
the editor of that newspaper.3 Thus the Senate
found itself unable to enforce secrecy upon all of

1 On June 30 Hamilton wrote to Oliver Wolcott, "I find the
non-publication of the treaty is working as I expected — that is,
giving much scope to misrepresentation and misapprehension.
The Senate, I am informed by several members, did not take any step
towards publication, because they thought it the affair of the Presi-
dent to do as he thought fit." Hamilton to Wolcott, June 3. Works
of Alexander Hamilton, X. 107.

2 On June 12, Pierce Butler, one of the Senators from South
Carolina, wrote Madison that he would send him by each post a
sheet of the treaty until he had received the whole. Writings of
James Madison, VI, 234n. Madison MSS. quoted as source.
Wolcott, with humor that perhaps is unintentional seems to have
expressed pretty accurately the attitude of the Senate on the ques-
tion of publication in a letter written June 25 to his wife in which he
said, "The Senate have substantially ratified the treaty, though as
one point is suspended, it may be considered open. I understand
they have determined not to countenance a publication, though they
have reserved the right of conversing generally about it. Perhaps
this will be found equivalent to a publication." Oliver Wolcott to
Mrs. Wolcott, June 25, 1795. Gibbs, Administrations of Washington,
and Adams, I. 199. Four days later Wolcott wrote to his father
enclosing a paper which contained the substance of the treaty with
the comment, "the curiosity of the public and the impossibility
of keeping absolute secrecy has induced a compromise, that the
treaty may be communicated informally to the public." Oliver
Wolcott to Oliver Wolcott Sr., June 29, 1795, Ibid., I. 202.

3 McMaster, History of the People, II. 216.

91

its members. Nor. did it ever take any steps to
call to account the one who had ignored the in-
junction laid upon all. The special session was over
before the act was done. The publication seems to
have had little political effect, and when Congress
convened the following December no steps were
taken to censure the erring Senator from Virginia.1

The most significant of the points at which the
Jay treaty bears upon the development of the treaty-
making powers of the Senate may be summarized
in two groups, the first concerning the relation of
the Senate to the negotiation of the treaty, and the
second regarding their action in consenting to its
ratification.

In the first group may be considered Washington's
policy in communicating to Congress information
concerning British-American affairs. Almost from
the beginning of the government he kept both
houses of Congress well informed upon the rela-
tions between this country and England. In a
number of instances, however, the Senate was given
more detailed and complete reports of the situation

1 On May 4, 1796, an article which was explanatory to the third
article of the treaty of 1794 was signed at Washington by Phineas
Bond, His Majesty's Charge d' Affaires, and Timothy Pickering,
Secretary of State. The article provided that nothing in any
treaty subsequently entered into by either nation with a third
nation or any Indian tribe should derogate in any manner from
the rights of passage across the American Canadian border and
the right to carry on trade across the border as guaranteed by
Article 3. Great Britain had deemed these rights to be threat-
ened by Article 8 of the Treaty of Greenville. The additional
article was sent to the Senate on the day following its signature and
advice and consent to its ratification was given four days later.
Sen. Exec. Jour., I. 207.

92

than were vouchsafed the House, which course has
become customary.

Probably the outstanding point in connection
with the negotiation of the treaty, however, is the
extent to which a small group of Federalist Senators,
who were also among Washington's most trusted
advisers, dominated the entire proceeding. These
men suggested the mission; they secured its ac-
ceptance by the President, and practically directed
the selection of the envoy; they secured his con-
firmation by the Senate; they sent him out fully
cognizant with their views as to what sort of a
treaty should be striven for and under very flexible
instructions from the Department of State.

It is also important to remember that this group
prevailed upon the Senate to approve the general
purpose of the mission by confirming the nomination
of the envoy without demanding to be informed
of and to pass judgment upon the particular in-
structions under which the negotiation was to be
carried on.

Many points in the procedure of the Senate after
the treaty had been laid before them are worthy
of note. Again the influence of the same leaders,
possessing the confidence both of the Senate and of
the President, was sufficient to control the situation
and largely determined the action of the Senate
throughout the session. It was under their in-
fluence that the Senate consented to the ratification
of the treaty, only upon condition that the twelfth
article be amended. It was then decided that such
conditional ratification was to be considered as
the final act of the Senate; and that it was not

THE JAY TREATY 93

necessary to resubmit the treaty to the Senate
after their amendments had been accepted by the
executive and the other signatory power. The
conditional ratification of the treaty was acceded to
by England without protest.

Of much importance was the refusal of the Senate
to adopt a resolution that the President be requested
to renegotiate the treaty. This refusal, taken in
conjunction with its earlier action in voting down a
resolution demanding Jay's instructions, must have
confirmed Washington in his conclusion that it was
both constitutional and expedient to consult the
Senate through influential members during the
earlier processes of treaty-making, and to seek its
formal approval of treaties only at the time of rati-
fication, rather than prior to and during the period
of negotiation. His experience with the Senate in
connection with Indian treaties had led him to
adopt this policy, and, by not challenging it in
this important instance, the Senate may be con-
sidered to have sanctioned the practice.

Finally, by failing to maintain secrecy with
reference to the treaty, the Senate seemed to justify
the opinion of Washington that it was not a safe
repository for diplomatic secrets. This question
has been a delicate point between the Senate and
the President at various times since Washington's
day.

The participation of the Senate in making the
Jay treaty illustrates the process by which govern-
mental powers and institutions are developed. The
permanent procedure of the Senate for the con-
sideration of treaties, its relations with the Presi-

94 THE SENATE AND TREATIES

dent in this matter, and the exemption of the
United States from the rule that a nation is ordi-
narily bound to ratify treaties signed by its pleni-
potentiaries were largely determined by the course
followed at this time. Yet not constitutional
theory but rather the exigencies of national and
international politics governed the action of all
parties to the transaction. Thus constitutional pre-
cedents which in time came to have great weight
were by-products of the political process. Recog-
nition of this fact does not decrease the importance
of the procedure which here was in the making.
On the contrary, it gives to procedure a living
quality which it never can possess of itself.

CHAPTER V
THE CREEK TREATY OF 1796

THE last important treaty which Washington
sent to the Senate was that signed with the Creek
nation at Coleraine June 29, 1796. Six years
previously a treaty concluded at New York had
guaranteed to the Creeks all lands within the
United States to the westward and southward of
the boundary therein set up between them and the
State of Georgia.1 But this guarantee was believed
by most Georgians to be beyond the powers of the
central government and an infringement upon the
rights of the state as sovereign over the territory
in question.2 On account of this feeling in Georgia,
and for other reasons, the treaty had failed to settle
the Creek question. So, after four years of disorder
along the frontier, the state legislature in December,
1794, instructed the Georgia representatives in
Congress to apply to the federal government to
make a treaty securing from the Creeks the cession
of those lands lying beyond the existing boundary
line and between the Oconee and the Ocmulgee
rivers.3 Before this request was preferred, the

1 Am. State Papers, Indian Affairs, I. 82, Art. 5, Treaty,
August 7, 1790.

2 Ibid., I. 560, 561.

J Phillips, Georgia and State Rights, Ch. II.

95

96 THE SENATE AND TREATIES

Georgia legislature had passed an act authorizing
the Yazoo land sale and declaring that the state
possessed the right of preemption of the Creek
lands.1 This action on the part of Georgia had
been called to the attention of Congress by the
President,2 and in pursuance of a resolution of both
houses an inquiry into the subject had been in-
stituted.3 Therefore, when the request of Georgia
was laid before Washington near the end of the
session in the spring of 1795, it asked for action
which involved questions affecting the general policy
to be pursued towards the Creeks, the ultimate
rights of Georgia over the Indian lands, and, indi-
rectly, the attitude of the Federal Government
toward the Yazoo sale. The delicacy of the situa-
tion and the complexity and importance of the issues
involved led the President to hold the matter over
until the end of the special session of the Senate
which was called to consider the Jay treaty.

On the day following the final action of the
Senate on this treaty Washington laid the Georgia-
Creek matter before it. He stated that he had de-
cided to accede to the request of the state, but with
the explicit declaration that neither his assent nor
any treaty which might be made should be con-
sidered as affecting any question arising under the
act of sale of the Georgia assembly of January 7,
1795, and that any cession of Indian claims should
be made in the language of the treaty of New York.

1 Phillips, Georgia and State Rights, p. 30. The act was signed
January 7, 1795.

2 Richardson, Messages, I. 175.

3 President's Message, June 25, 1795, Am. State Papers, Indian
Affairs, I. 560.

THE CREEK TREATY OF 1796 97

It also was to be required that Georgia pay one-half
of the expense incident to the negotiations. Wash-
ington further stated that this seemed to be a favor-
able opportunity to inquire into all of the causes
of dissatisfaction among the Creeks, and that

The commissioners for holding the proposed treaty will,
therefore, be instructed to inquire into the causes of the
hostilities to which I have referred, and to enter into
such reasonable stipulations as will remove them, and
give permanent peace to those parts of the United States.

The nomination of three commissioners followed,1
and the last act of the special session was their
unanimous confirmation.2

Six months later the President laid before the
Senate the signed treaty.3 Although successful in
concluding a treaty of peace which proved to be last-
ing in its effect, the commissioners not only had failed
to secure the desired cession of land for Georgia, but
they had included in the treaty provisions which
aroused the determined opposition of that state.

Articles three and four provided that the Presi-
dent should have the power to establish trading or
military posts in the territory of the Creeks for the
purpose of preventing the violation of any of the
provisions or regulations subsisting between the
parties, and that the Indians should annex to each
such post a tract of land five miles square and cede
the same to the United States. It was further
provided that when such lands were no longer neces-
sary for the purpose for which they were ceded they

1 Sen. Exec. Jour., I. 189-190. 2 Ibid., p. 192.

3 Ibid., p. 219; Am. State Papers, Indian Affairs, 1. 586-S16,
for message, treaty, and documents submitted.

98 THE SENATE AND TREATIES

should revert to the Indians. At the conclusion of
the negotiations at Coleraine the three commis-
sioners whom the State of Georgia had sent to
attend them prepared a protest against the treaty
and against the manner in which it had been nego-
tiated. The fifth of the seven points made was an
objection to this cession of land to the United States
without the consent of Georgia. The act was de-
clared to be in contravention of Section 8 of Article I
of the Constitution.1

The protest of the Georgia commissioners was
submitted to the Senate along with a voluminous
record of the negotiations. In all, the documents
bulked to some forty thousand words. After five
days spent in 'going through this mass of material
the matter was referred to a committee composed of
Read of South Carolina, Sedgwick of Massachusetts,
and Ross of Pennsylvania.2 This committee recom-
mended that the treaty be ratified with the proviso
that nothing in the third and fourth articles should
be construed to affect any claim of the State of
Georgia to the right of preemption in the land
therein set apart for military or trading posts; "or
after the Indian rights to the lands adjoining thereto
shall have been legally extinguished by the State
of Georgia, to give to the United States without
the consent of the said State, a right to the soil, or
the exclusive legislation over the same."

This report was considered in five separate ex-
ecutive sessions.4 Then an amendment was intro-

1 Am. State Papers, Indian Affairs, I. 613-614.

2 -Sen. Exec. Jour., I. 220-221. 3 Ibid., p. 222.
« Ibid., pp. 222, 225, 226.

THE CREEK TREATY OF 1796 99

duced striking out of the treaty so much of the
third and fourth articles as provided for the cession
of land to the United States.1 The Senate, however,
was not ready to admit the contentions of Georgia
to this extent, and the proposed amendment was
voted down.2 The protection of whatever rights
Georgia had to the land in question was made more
explicit, however, by amending the last part of the
resolution reported by the committee so that it de-
clared that nothing in the two articles should be
construed

to give to the United States, without the consent of the
said State, any right to the soil, or the exclusive legisla-
tion over the same, or any other right than that of
establishing, maintaining and exclusively governing, mili-
tary and trading posts within the Indian territory men-
tioned in the said articles as long as the frontier of Georgia
may require these establishments.

The advice and consent of the Senate to the rati-
fication of the treaty was then given with this
proviso and condition.3

Thus the Senate exercised its power in behalf of
a state which felt that its rights were threatened by
a treaty concluded by the executive.4 Too much
significance, however, should not be attached to its
action in partially upholding the contentions of
Georgia. There is no evidence that the executive
opposed the proviso that finally was included in the
Senate resolution. In fact, the original resolution

1 Sen. Exec. Jour., I. 227. 2 Ibid., pp. 229-230. 3 Ibid., pp. 229.

4 It will be remembered that the treaty of Fort Harmar with
the Six Nations was not acted upon by the Senate because that body
feared that it infringed the rights of New York and Massachusetts
to Indian lands. See pp. 15-16 above.

100 THE SENATE AND TREATIES

to protect the rights of Georgia was proposed by a
committee two of whose three members were ad-
ministration men. The amendment to nullify the
Indian cessions completely, which was supported by
the Georgia senators and seven of their Republican
friends, was defeated 22 to 9. And that the con-
ditional ratification finally advised was unsatis-
factory to the state is shown by the fact that it
was opposed by both of her senators and by six
other Southerners. Thus, although the protesting
state received some concessions from the Senate,
there is nothing to indicate that it was given any-
thing more than the executive was willing to grant;
and certainly the condition with which ratification
was consented to did not materially alter the char-
acter of the cessions which were protested against.1
Upon this occasion, nevertheless, the Senate was
the forum in which a state was able to appear and
protest against an alleged invasion of its rights by
the federal government; and if it did not receive
all of the relief it asked for, it at least secured a very
thorough discussion of its case 2 and a more explicit
statement of the rights which the original treaty
had intended to recognize.

1 The instructions under which the Treaty of Coleraine was
negotiated are not available. It is not unlikely, however, that in
providing for the cessions in the form that they did the commis-
sioners were acting upon their own responsibility and that the
executive was glad to have this form modified by the Senate.

2 The Treaty of Coleraine was considered by the Senate in
thirteen separate executive sessions, and apparently some of the
discussions were lengthy. As the treaty was comparatively brief,
and as no other point seems to have aroused particular opposition,
it is probable that most of this time was consumed in debating the
objections of Georgia to the third and fourth paragraphs.

THE CREEK TREATY OF 1796 101

THE ADVICE OF THE SENATE UPON THE
EXECUTION OF TWO TREATIES

In addition to participating in the negotiation
and the ratification of treaties, the Senate was
called upon by Washington to assist in the interpre-
tation of one treaty and to advise upon the manner
in which another should be carried out. The first
instance occurred in 1791. In January of that year
the President laid before the Senate a representation
of the Charge d'Affaires of France that acts of
Congress of 1789 and 1790 imposing an extraordinary
tonnage on foreign vessels, without excepting those
of France, were in contravention of Article V of
the Treaty of Amity and Commerce of 1778. The
report of the Secretary of State, which accompanied
the representation, thoroughly discussed the case
from the viewpoint of American interests, and con-
cluded by the presentation of three alternative
courses of action: (1) To insist upon the American
construction of the article in question, and to ex-
plain in friendly terms the difficulties involved in
the exemption claimed by France. (2) To agree
with the French interpretation and to modify the
law accordingly. (3) To waive the matter of right
and make the amendment as an act of friendship.1

The President submitted the report and the
documents to the consideration of the Senate that
he might "be enabled to give to it such answer as
may best comport with the justice and the interests
of the United States.2" The message was referred
to Morris, King, Izard, Strong, and Ellsworth.3

1 Sen. Exec. Jour., I. 65 et seq. 2 Ibid., pp. 65-72. . 3 Ibid.

102 THE SENATE AND TREATIES

After considering the report of this committee
during several executive sessions, the Senate ex-
pressed the opinion that the American interpreta-
tion of the treaty was correct, and resolved, "That
the Senate do advise that an answer be given to the
Court of France, defending, in the most friendly
manner, this construction in opposition to that
urged by the said Court." l This course was
adopted by the executive.

In January, 1797, the President sent to both
Houses of Congress, in confidence, reports from the
Departments of State and the Treasury which dis-
closed the fact that the appropriation made for
carrying into effect the treaty with Algiers was in-
adequate for this purpose. $376,505.66 was the
sum declared to be necessary for complying with the
terms of the treaty.2 This sum included the cost
of a frigate not provided for in the agreement, but
subsequently promised to the Dey. In the Senate
this message and the accompanying documents were
referred to a committee composed of Marshall,
Goodhue, and Tichenor.3 The committee submitted
a report, which was adopted, recommending that
the money should be appropriated,4 and approving
the agreement to add a frigate to the naval equip-
ment promised the Dey. Although the message of
the President was received, discussed, and acted
upon in executive session, the House bill appropriat-
ing the money asked for was referred to another
committee, and passed through the regular legisla-

1 Sen. Exec. Jour., I. 77.

2 Am. State Papers, For. Rels., X. 553-558.

3 Sen. Exec. Jour., I. 220. 4 Ibid., p. 225.

THE CREEK TREATY OF 1796 103

tive procedure.1 The incident illustrates how, even
at this period, the Senate was developing a special,
or separate, procedure for matters relating to foreign
affairs.

SUMMARY

A review of Washington's administrations reveals
several distinct developments in the interpretation
and application of the treaty-making clause. There
can be no doubt that from the very beginning the
Senate exercised to the full the powers in treaty-
making and in foreign affairs granted. to it by the
Constitution. The Senate of Washington's ad-
ministrations was a compact body of experienced
and able statesmen. Foreign affairs and relations
with the Indian tribes were among the most im-
portant of the subjects with which the new govern-
ment had to deal. Through the constant exercise
of its treaty-making powers the Senate exerted a
powerful influence in both fields of activity. It ad-
vised the opening of negotiations, passed upon the
instructions under which they were to be carried on,
and in some instances amended or rejected treaties
already made. Washington made treaties "by and
with the advice and consent" of the Senate in a
sense and to an extent that no later President ever
has.

One very important decision reached by the logic
of events during these eight years, however, was
that the Senate could not really be a " council of
advice" to the President in treaty-making. Yet

1 Annals of Congress, 1796-1797, pp. 1556, 1559, 1567, 1570-
1571.

104 THE SENATE AND TREATIES

evidently both Washington and the Senate originally
expected that it would be such a council. The
personal element in their relations was emphasized
by the presence of the Secretary of State or the
Secretary of War, or, in the one instance, of the
President himself at their deliberations. Washing-
ton expressed it as his opinion that personal con-
ferences were indispensably necessary in treaty
matters, and provision was made for such confer-
ences. The chief result of the first conference was
that it was the last. Messages on treaty matters
came to be transmitted to the Senate by the Presi-
dent's private secretary, and communications be-
tween the Senate and the heads of departments
took on a formal and impersonal tone. Such, in
fact, came to be the general character of the rela-
tions between the President and his cabinet, and the
Senate in the performance of their joint function.
As the Senate ceased to be consulted as a real
" council of advice" its activities in that part of
treaty-making known as the negotiation became less
important. At first in making treaties both with
the Indian tribes and with foreign nations the
President usually secured the advice and consent
of the Senate to the details of the proposed treaty
before opening the negotiation. In the end it be-
came his custom merely to inform the Senate of
the proposed negotiation upon securing its consent
to the nomination of the agent, and to submit the
latter's instructions only with the completed treaty.
The vast difference between the detailed manner in
which the advice of the Senate was taken prior to
the negotiation of the Creek treaty of 1790 and the

THE CREEK TREATY OF 1796 105

brief statement in which the President made known
to them his intention to settle the differences be-
tween those Indians and the United States in 1796,
is typical of the change in procedure. The same
development is illustrated by comparing the re-
lations of the Senate and the President in making
the Spanish treaty with the manner in which the
Jay treaty was made. In the former instance the
President laid before the Senate a definite, and, as
to some subjects, a detailed statement of the treaty
he intended to secure. The Senate agreed to con-
sent to the ratification of any treaty signed in ac-
cordance with these propositions. In the latter
case John Jay was nominated as envoy to England
to "adjust our complaints" against that country.
The Senate was not informed of the particular
measures he was to take to attain this end, nor
was it bound to accept the resulting treaty. The
effect of the change in procedure was to leave the
President free to negotiate the sort of treaty which
the necessities of the situation demanded and al-
lowed, while the Senate retained a like freedom to
accept, to amend, or to reject the result of his
efforts.

The principle of independence, however, if carried
too far, obviously would have produced an un-
satisfactory, if not an unworkable, system. But
along with this method of procedure there de-
veloped another factor which tended to modify its
separative effects. This factor was the committee.
During the period under consideration the develop-
ment of the committee system with reference to
foreign affairs was spontaneous and not the result

106 THE SENATE AND TREATIES

of conscious effort on the part of the Senate. In
the case of the Jay treaty, in which a small group
of Senators secured a reasonable degree of unity
between the Senate and the President, the essential
principle of the committee system was applied
naturally, but informally, perhaps unknowingly.
The need existed; it was met in the most natural,
direct, and simple manner. As later developed, the
committee system became the recognized substi-
tute for the abandoned practice of personal con-
sultation between the Senate and the President in
treaty -making. During these first eight years,
however, committees were utilized in treaty matters
primarily to expedite and make more effective the
work of the Senate in this field, rather than as a
means of contact between the two parties to the
treaty-making power.

CHAPTER VI

TREATIES OF THE ADMINISTRATION OF
JOHN ADAMS

Two of the treaties which came before the Senate
during the John Adams administration may be con-
sidered very briefly. The first was the Treaty of
Peace and Friendship with Tripoli, signed the fourth
of November, 1796. l The second was an article ex-
planatory of the Jay treaty, releasing the com-
missioners under the fifth article from particularizing
the latitude and longitude of the River St. Croix.2
The Tripolitan treaty was submitted at the end of
May, 1797, while the explanatory article was re-
ceived just a year later. The procedure upon the
two treaties was identical except at one point.
Each was read and on a subsequent day referred to
a committee of three; in each case the committee
reported favorably and the resolution of advice and
consent was agreed to without a dissenting vote.
The single difference is that the treaty with Tripoli
was ordered to be printed immediately after being
read, while no such order was entered with reference
to the explanatory article. By this time it had be-
come the usual custom to order treaties to be printed

1 Am. Stale Papers, For. Rels., II. 18; Sen. Exec. Jour., I. 241,
244.

2 Ibid., pp. 278-9.

107

108 THE SENATE AND TREATIES

in confidence for the use of the Senate, although as
yet the practice was not invariable.

THE TREATY OF 1797 WITH TUNIS

On February 21, 1798, the President laid before
the Senate a treaty of "Peace, Friendship, Commerce
and Navigation" with the Bey of Tunis.1 This
treaty had been negotiated for the United States
by Joseph S. Famin, a French merchant, acting
under instructions from Joel Barlow, Consul Gen-
eral at Algiers. It was intended to secure American
shipping in the Mediterranean from molestation by
Tunisian corsairs and to regulate the commerce be-
tween the two countries.2 It was in connection
with one of the provisions upon the latter subject
that the Senate interposed its authority to protect
the United States from the results of a serious
diplomatic error.

Immediately after having been read, the message
and the treaty were referred to a committee com-
posed of Bingham of Pennsylvania, Read of South
Carolina, and Sedgwick of Massachusetts.3 They
reported a resolution advising and consenting to
the ratification of the treaty on condition that the
fourteenth article be suspended and recommending
that the President enter into further negotiations
with the Bey "on the subject of the said article, so

1 Sen. Exec. Jour., I. 262. For discussion of the treaty see Lyman,
Diplomacy of the United States, II. 396-402; Allen, Our Navy and
the Barbary Corsairs, pp. 59-66.

2 For original treaty and documents submitted therewith see
Am. State Papers, For. Rels., II. 123-125.

3 Sen. Exec. Jour., I. 262.

THE ADMINISTRATION OF JOHN ADAMS 109

as to accommodate the provisions thereof, to the ex-
isting treaties of the United States with other na-
tions." This resolution was adopted.1

The article which was thus suspended by the
Senate was intended to regulate the customs duties
between the two countries. It read as follows:

The Citizens of the United States of America, who shall
transport into Tunis the merchandise of their country,
in the vessels of their nation, shall pay three per cent,
duty. Such as may be laden by such citizens under a
foreign flag coming from the United States, or elsewhere,
shall pay ten per cent. duty. Such as may be laden by
foreigners on American vessels coming from any place
whatever, shall also pay ten per cent. duty. If any
Tunisian merchant wishes to carry merchandise of his
country, under any flag whatever, into the United States
of America, and on his own account, he shall pay three
per cent, duty.2

The Senate found two objections to this article.
First, the provisions governing the duties to be
paid by citizens of the two states, respectively,
upon goods carried into the other violated the
principle that treaties should be reciprocal in their
terms. These provisions, however, probably were
of little practical importance, inasmuch as the
amount of goods brought into the United States
by the merchants of Tunis was, and might be ex-
pected to remain, small.

The second objection was a more serious one.
It was based upon a direct conflict between the last
provision of the article in* question and the most
favored nation clause in our treaties with other

1 Sen. Exec. Jour., I. 263-264.

2 Am. State Papers, For. Rels., II. 124.

110 THE SENATE AND TREATIES

nations. Its probable effect upon the United States,
had it been enforced, is clearly set forth in the fol-
lowing paragraph from the instructions under which
the negotiations for its alteration were carried on:

The revenues of the United States arise chiefly from
duties on goods imported. The duties generally exceed
ten per cent. They are imposed on our own merchants,
and increased on the merchants of foreign nations. Our
treaties with these nations state that no higher duties
shall be paid by their subjects than by those of the most
favored nation. Consequently, if this article in the
Treaty with Tunis should be ratified by the American
Government, the duties on all the goods imported into
the United States by the subjects of these foreign nations
must be reduced to three per cent. This would neces-
sarily involve the reduction of the duties on goods im-
ported in our own vessels, or our whole navigation would
sink beneath the unequal burthen.1

In December, 1799, the President informed the
Senate that in accordance with their recommenda-
tion he had entered into a further negotiation with
the Bey on the subject of the fourteenth article of
the treaty, and laid the result of the negotiation
before them.2 In addition to the modification of
the article which was rejected by the Senate, the
new negotiation had resulted in alterations to the
eleventh and twelfth articles.3

1 Instructions to Richard O'Brien, William Eaton, and James
Leander Cathcart, Am. State Papers, For. Rels., II. 281.

2 Sen. Exec. Jour., I. 328.

3 The eleventh article had provided that upon entering the port of
one of the parties a war vessel of the other should be saluted by the
fort and should return the salute, gun for gun; also that she should
give to the authorities of the port a barrel of powder for each gun
fired. It was well known that no war vessel of Tunis would be

THE ADMINISTRATION OF JOHN ADAMS 111

The Senate referred the matter to the committee
which had recently been appointed to consider the
treaty with Prussia. The reference to this com-
mittee is explained by the fact that Bingham, its
chairman, and one other member had served on
the committee upon the original treaty with Tunis,
of which Bingham had been chairman. A few
days later the Senate gave its advice and consent
to the ratification of the three articles in question.1

There seem to be no means of ascertaining whether
the action of the Senate in suspending the fourteenth
article of this treaty was spontaneous or whether
the recommendation of the original committee
sprang from a suggestion from the State Department
or the President. It is obvious, however, that the
Senate gave to the government of the United States
an opportunity to propose the necessary alteration
upon grounds that Tunis could not reasonably
take exception to. The change in itself was of the
greatest importance. Had the treaty been rati-
fied as signed, the United States undoubtedly would

likely to enter an American port, while the almost constant presence
of American cruisers in the Mediterranean could thus be made to
furnish the Bey with a fairly steady supply of powder — particu-
larly as the number of guns to be fired was unlimited. In the re-
vised article it is provided that the salute should not be fired by the
forts except at the request of the American consul; that the number
of guns should be fired which he might request; and, "if the said
Consul does not want a salute, there shall be no question about it."
Article XI, Treaty of Amity, Commerce and Navigation, Tunis,
1797. Treaties, Conventions, International Acts, Protocols and
Agreements Between the United States of America and Other Powers,
1776-1909 (Sen. Doc., No. 357, 61st Cong. 2d Session), p. 1796.
1 Sen. Exec. Jour., I. 328-330.

112 THE SENATE AND TREATIES

have been compelled to secure its abrogation or
alteration as soon as the other nations with which
we had treaty relations discovered the terms of the
fourteenth article.

THE TREATY OF 1799 WITH PRUSSIA

Senate action on the treaty of 1799 with Prussia
adds but little to a study of the development of
the treaty-making power. This treaty was prac-
tically a renewal, with modifications, of the Prussian
treaty of 1785, and in itself seems to have been ac-
ceptable to the Senate. The nomination of the
negotiator, John Quincy Adams, as minister pleni-
potentiary to Prussia, was opposed by more than a
third of the Senate but this opposition seems to
have been directed primarily at the establishment
of a permanent minister at the Court of Prussia.
Adams was confirmed in May, 1797,1 and the treaty
which he negotiated was submitted to the Senate in
December, 1799. It was ordered to be printed,
and three days later was referred to a committee
composed of Bingham of Pennsylvania, Dexter of
Massachusetts, Watson of New York, Read of
South Carolina, and Goodhue of Massachusetts.
Late in January this committee reported a resolu-
tion of advice and consent to ratification. Before
adopting the report, the Senate, after extended de-
bate, passed a resolution asking for the instructions
given to Adams and for the correspondence respect-
ing the negotiation. The papers were submitted
on February 17, and on the day following, the

1 Sen. Exec. Jour., I. 240-242.

THE ADMINISTRATION OF JOHN ADAMS 113

Senate voted to advise and consent to ratification,
26 to 6.1

Although in the case of the Prussian treaty the
disapprobation of a large minority of Senators to
the nomination of a minister did not extend to the
treaty which that minister was to negotiate, it is
evident that the influence which this means of ex-
pressing disapproval of a treaty might exert upon
the executive was well understood at the time.
That it was realized is clearly shown by the action of
.certain Senators with reference to the nomination
of John Quincy Adams in 1798 as commissioner to
secure a treaty of amity and commerce with Sweden.
The nomination was sent in on March 12. Two days
later it was confirmed, 20 to 8.2 On the following
day Jefferson wrote to his friend Madison as follows :

The President has nominated John Quincy Adams
Commissioner Plenipotentiary to renew the treaty with
Sweden. Tazewell made a great stand against it, on the
general ground that we should let our treaties drop, and
remain without any. He could only get eight votes
against twenty. A trial will be made today in another
form, which he thinks will give ten or twelve against
sixteen or seventeen, declaring the renewal inexpedient.
In this case, notwithstanding the nomination has been
confirmed, it is supposed the President would perhaps
not act under it, on the probability that more than a
third would be against ratification. I believe, however,
that he would act, and that a third could not be got to
oppose the ratification.3

1 Sen. Exec. Jour., I. 326, 327, 337-340; Am. State Papers,
For. Rels., II. 244-268; Lyman, Diplomacy of the United States, I.
150-153, discusses the policy involved in renewing the treaty.

2 Sen.. Exec. Jour., I. 266.

8 Jefferson to Madison, March 15, 1798. Writings of Thomas
Jefferson, X. 8.

114 THE SENATE AND TREATIES

The journals of the Senate disclose no such at-
tempt on the part of Tazewell; possibly he had be-
come convinced of the futility of his opposition.
But in any event the incident shows clearly that at
the time it was recognized that a strong minority
could, if it desired, adopt this means of discouraging
the undertaking of any negotiation of which it
disapproved.

SENATE AMENDMENTS TO THE TREATY OF 1800
WITH FRANCE

The action of the Senate in connection with the
treaty with France of September 30, 1800, is of
importance for two reasons. First, the manner in
which the Senate amended the convention is a
striking example of the extent to which that body
can influence the treaty stipulations and affect the
foreign policy of the United States. Second, it was
during the consideration of this convention that the
Senate adopted its first set of rules formally setting
forth the procedure to be followed when a treaty
should be laid before it for ratification.

The political and commercial relations between
the United States and France had been defined by
the treaties of amity and commerce, and of alliance
of 1778, and by the consular convention which had
been ratified in 1789. Changing conditions, how-
ever, made the stipulations of these treaties dif-
ficult to fulfill, particularly for the United States.
Between 1790 and 1798, the two republics passed
from disagreement and mutual recrimination to
de facto, if not de jure war. Congress, in July, 1798,

THE ADMINISTRATION OF JOHN ADAMS 115

by law declared the treaties of 1778 and the consular
convention to be abrogated.1 In February, 1799,
in response to advances made by the French govern-
ment, the President nominated Oliver Ellsworth,
Chief Justice of the United States, Patrick Henry,
ex-Governor of Virginia and William Vans Murray,
Minister Resident at the Hague, "to be Envoys
Extraordinary and Ministers Plenipotentiary to the
French Republic, with full powers to discuss and
settle, by treaty, all controversies between the
United States and France." In December, 1799,
William R. Davie, Governor of North Carolina, was
substituted for Henry.3

Secretary Pickering's instructions to these en-
voys directed that at the opening of the negotiation
they should,4

inform the French ministers, that the United States ex-
pect from France, as an indispensable condition of the
treaty, a stipulation to make to the citizens of the United
States full compensation for all losses and damages which
they shall have sustained by reason of irregular or illegal
captures or condemnations of their vessels and other
property, under color or authority of commissions from
the French republic or its agents. And all captures and

1 United States Statutes at Large, I, 578 (Acts of 2d Sess. of 5th
Cong., Ch. XLVII).

2 Sen. Exec. Jour., I. 317. 3 Ibid., pp. 326-327.

4 These instructions, the convention, and the other papers sub-
mitted to the Senate are printed in Am. State Papers, For. Rels., I.
295-345. In Moore, International Law Digest, V. Sec. 821, is to
be found one of the best brief accounts of our treaty relations with
France, and perhaps the clearest statement of the action of the Senate
with reference to this treaty. See also Davis, Notes to Foreign
Treaties, pp. 1306-1307; Lyman, Diplomacy of the United States, I.
viii; McMaster, History of the People, II. 527-529; Foster, Century
of American Diplomacy, Ch. V.

116 THE SENATE AND TREATIES

•condemnations are deemed irregular or illegal, when con-
trary to the law of nations generally received and ac-
knowledged in Europe, and to the stipulations of the
treaty of amity and commerce, of the 6th of February,
1778, fairly and ingenuously interpreted, while that
treaty remained in force.1

And at the conclusion of the instructions it is stated
that the seven points are "to be considered as
ultimated." Of these the first is,

That an article be inserted for establishing a board,
with suitable powers, to hear and determine the claims
of our citizens, for the causes herein before expressed, and
binding France to pay or secure payment of the sums
which shall be awarded.

The second point is,

That the treaties and consular convention, declared to
be no longer obligatory by act of Congress, be not in
whole or in part revived by the new treaty; but that all
the engagements to which the United States are to be-
come parties, be specified in the new treaty.

The seventh stipulation is that with the exception
of certain specified provisions, the duration of the
proposed treaty be limited to not more than twelve
years.2

When, during the following summer the American
envoys met the citizen ministers appointed by the
First Consul to treat with them, it was found that
France was determined to agree to neither of the
two chief objects which they had been instructed
to secure. Joseph Bonaparte and his colleagues in-
sisted that the ancient treaties were still in force,

1 Am. State Papers, For. Rels., II. 302. 2 Ibid., p. 306.

THE ADMINISTRATION OF JOHN ADAMS 117

and denied that France was liable for any of the
indemnities demanded for injuries to American
shipping. An appeal to Napoleon, then in Italy,
brought fresh instructions to his negotiators. In
their own words, his proposition was " reduced to
this simple alternative: Either the ancient treaties,
carrying with them the privileges resulting from
anteriority, together with stipulations for reciprocal
indemnity; Or a new treaty, promising equality,
unattended with indemnities." l

Napoleon, in effect, had given the Americans their
choice of the two objects which they had been in-
structed to secure; they could not have both.
Nor could he be moved from this position. A
month later the American ministers became con-
vinced of this fact. Not having authority either to
give up the claims for indemnity or to admit the
present validity of the treaties which their govern-
ment had declared to be no longer binding upon
the United States or its citizens, they determined
to conclude a temporary arrangement upon both
subjects. It was proposed that permanent settle-
ment be "postponed until it can be resumed with
fewer embarrassments." 2 The result of this de-
cision was Article 2 of the treaty as signed September
30, 1800. This article was as follows:

The Ministers Plenipotentiary of the two parties not
being able to agree, at present, respecting the treaty of
alliance of 6th February, 1778, the treaty of amity and
commerce of the same date and the convention of 14th
of November, 1788, nor upon the indemnities mutually
due or claimed; the parties will negotiate further upon

1 Am. State Papers, For. Rels., II. 332. l Ibid., p. 339.

118 THE SENATE AND TREATIES

these subjects at a convenient time, and until they may
have agreed upon these points, the said treaties and con-
vention shall have no operation, and the relations between
the two countries shall be regulated as follows : l

No limit was set to the duration of the conven-
tion. Moore states that with this exception, and
that of compensation for condemnations and cap-
tures it substantially conformed to Pickering's ul-
timata.2 The fact remained, however, that the two
primary objects of the negotiation, the two questions
which seemed of the utmost importance to almost
every American of the day, were left unsettled.
The executive had secured neither indemnity nor
an abrogation of the treaties. What would the
Senate do?

The Senate received the convention on December
16, 1800.3 With it President Adams submitted the
lengthy journal of the envoys, and a few days later,
by request, the instructions under which the nego-
tiators had acted. From the first the unpopularity
of the treaty extended to the members of both
parties. Three days after it was received Jefferson
wrote to Madison that it would meet with opposition
from both sides of the House; and he stigmatized
it as the result of a " bungling negotiation."4 A
few days later Hamilton wrote from New York to
Gouverneur Morris stating that several friends had
informed him that there was "likely to be much
hesitation in the Senate about ratifying the Con-

1 Am. State Papers, For. Rels., II., 295-296.

2 Moore, International Law Digest, V. 611.

3 Sen. Exec. Jour., I. 359.

4 Jefferson to Madison, December 19, 1800, Writings of Thomas
Jefferson, X. 185.

THE ADMINISTRATION OF JOHN ADAMS 119

vention." l On the fifth of January, Pickering in a
letter to Rufus King, stated, "It is reprobated by
both parties, and if ratified it will be with excep-
tions." 2

Almost exactly a month after it had been given
into their hands the Senate referred the several
votes which had been taken on the treaty to a
committee composed of Morris, Nicholas, and Day-
ton with instructions to reduce them into the form
of a ratification.3 This proposed ratification showed
that two-thirds of the Senators had voted for rati-
fication with four provisos, as follows: 1. That the
second article be expunged. 2. That the third article
be expunged.4 3. That an article be inserted ex-

1 Hamilton to G. Morris. The Works of Alexander Hamilton
(Lodge ed.), X. 399. Hamilton thought that the convention should
be ratified, "as the least of two evils."

2 Pickering to King, January 5, 1801, Life and Correspondence
of Rufus King, III. 366. On January 2, Senator McHenry, writing
to his friend Rufus King, then our minister in London, said: "The
convention lately entered into with France is before the Senate.
Is it liked? No. As to its fate; some think it will be rejected;
others that it will be accepted with modifications and exceptions;
no one that it will be ratified as it is. McHenry to King, Life and
Correspondence of Rufus King, III. 363.

Perhaps the strongest argument in favor of ratification was
that the treaty at least would result in peace. This is graphically
expressed by Pinckney, who wrote to Rufus King, December 27,
1800, "The treaty with the French Republic is before the Senate.
... If it be ratified our little navy will be hauled up. Pickering
to King, Life and Correspondence of Rufus King, III. 353.

3 Sen. Exec. Jour., I. 370.

4 This article provided that public vessels which had been taken
on either side, or which might be taken before the exchange of
ratifications, should be restored. Am. State Papers, For. Rels.,
II. 296. Although reciprocal in terms it militated against the
United States and added to the unpopularity of the treaty. Sena-
tors and people were reluctant to return these "trophies of war.-"

120 THE SENATE AND TREATIES

pressing the understanding that nothing in the
convention should be so construed to operate
contrary to any former and existing treaties of either
party. 4. That by an additional article it be stipu-
lated that the duration of the convention should
be eight years from the time of the exchange of
ratifications. But when these questions were sever-
ally put to the Senate the fourth was the only one
which received the constitutional majority; and
the report, amended accordingly, failed, 16 to 14. l
This was understood to mean the rejection of the
treaty, and on the following Monday a resolution
was introduced to make the action a formal one.2

A large majority of the senators, however, con-
sidered the treaty, with some amendments, to be
better than the existing conditions and those which
might follow its rejection.3 Hamilton and other in-
fluential Federalists, including the President, urged
its acceptance, probably on both party and national

1 Sen. Exec. Jour., I. 370, 373-4. 2 Ibid., p. 374.

3 The following excerpts from the diary of Gouveneur Morris
throw an interesting light on the action of the Senate at this point:
"I go through the treaty in the House today," Morris says, January
15th "and agree to the amendments of the committee; some
sharpness of debate. Report the form of a ratification; consider-
ation postponed." On the 23d the Senate rejected the convention
with France, "by the intemperate passion of its friends." By
the 26th there was a general desire in the House " to recede from
the vote as it stands on the convention. As I all along expected
it will be reconsidered." Diary and Letters of Gouverneur Morris
II. 399. A reconsideration, in fact, seems to have been generally
expected. February 1, Pickering in relating to Rufus King the
details of the rejection concluded, "It is suggested, however, as
a thing to be expected from the Democrats, that a reconsideration
may be proposed in order to ratify with conditions rather than lose
the treaty." Life and Correspondence of Rufus King, III. 392.

THE ADMINISTRATION OF JOHN ADAMS 121

grounds.1 The result was that the advice and con-
sent of the Senate was given to ratification with
the provisos that the second article be expunged
and that the convention should be limited in its
operation to eight years from the time of the ex-
change of ratifications.

At this point a comparison should be made be-
tween the action of the Senate on the signed treaty,
and that taken by the original negotiators upon
the alternatives offered to them by Napoleon. A
careful consideration of the second article con-
vinced the Senate that it recognized the existence
of the treaties which Congress had declared abro-
gated. The agreement was that at a future time
the two governments should negotiate upon the
abrogation of these treaties and the payment of
indemnities; and that until then the "said treaties
and conventions shall have no operation, and the
relations between the two countries shall be regu-
lated," in accordance with the remaining articles
of the convention.2 The American envoys, devoid

1 Hamilton to G. Morris, Works of Alexander Hamilton, X. 398-
400, December 24, 1800; also see Schouler, History of the United
States, I. 477-479.

2 On January 16, Morris wrote to Hamilton, "As to the in-
duction from the words of the second article, that the old treaties
[subsisted] though their operation was suspended, I think it un-
deniable that, taken in consideration with other things, would have
involved us in serious difficulty. . . . When, therefore, acknowl-
edging their existence by suspending their effects generally, we
particularly stipulate, and literally renew a part; might not the
French demand for the part so renewed a priority? . . . Those
articles (the second and the third) being left out, the convention
must be considered merely as a treaty of peace. The preexistence
of war is admitted, and from the moment of that admission there
is an end to treaties and to claims of restitution and indemnity.

122 THE SENATE AND TREATIES

of authority to accept either one of the two alterna-
tives offered by the French, had postponed the de-
cision of both in a manner that seemed to have
strengthened the French position with reference to
the more important of the two questions — the
status of the treaties.

The authority of the Senate, however, was plen-
ary. By expunging the second article, in effect
they accepted Napoleon's second proposition,
namely, "the abrogation of ancient treaties; the
formation of a new treaty, . . . and an entire
silence on the subject of indemnities."

This amendment of the treaty put the next move
up to the executive department. Three days be-
fore the end of the session Adams sent in a message
in which he said:

I have considered the advice and consent of the Senate,
to the ratification of the convention with France, under
certain conditions. Although it would have been more
conformable to my own judgment and inclination, to
have agreed to that instrument unconditionally, yet, as
in this point, I found I had the misfortune to disagree
from so high a constitutional authority as the Senate,
I judged it more consistent with the honour and interest
of the United States to ratify it under the conditions
prescribed, than not at all.

He further stated that the matter of the exchange
of ratifications was to be left to his successor.1

Nothing, therefore, can make the matter more clear than to be
perfectly silent." Morris to Hamilton, January 16, 1801, Diary
and Letters of Gouverneur Morris, II. 399-400. This letter was
written on the day following the first vote of the Senate to expunge
the second article.

1 Sen. Exec. Jour., I. 388. French ministers to the American
envoys, August 11, 1800. Am. State Papers, For. Rels., II. 332.

THE ADMINISTRATION OF JOHN ADAMS 123

This exchange was affected by Jefferson. But in
consenting to the adoption of the amendments
suggested by the American Senate, Napoleon stipu-
lated that by the expunction of the second article,
"the two states renounce the respective pretensions
which are the object of the said article." * Thus
the First Consul stated explicitly what had been
implied by the action of the Senate. And that this
was the understanding of the Senate and of the
President is made evident by subsequent events.
On December 11, 1801, Jefferson sent in the fol-
lowing message:

Early in the last month, I received the ratification,
by the First Consul of France, of the convention between
the United States and that nation. His ratification not
being pure and simple, in the ordinary form, I have
thought it my duty, in order- to avoid all misconception,
to ask a second advice and consent of the Senate, before
I give it the last sanction, by proclaiming it to be a law
of the land.2

1 Am. State Papers, For. Rels., II. 344.

2 Sen. Exec. Jour., I. 397; Jefferson's opinion that the stipulation
made by Napoleon merely expressed what had been intended by
the Senate when it rejected Article 3 is officially set forth in the
following letter from Madison to Livingston: "As the form of
ratification by the French Government contained a clause de-
claratory of the effect given to the meaning of the treaty by the
supression of the second article, it was thought by the President
most safe, as a precedent, to ask anew the sanction of the Senate
to the instrument with that ingredient. No decision has yet been
taken by that body; and from the novelty of the case, the number of
absent members, and the delays incident to questions of form, it is
possible that it may be some little time yet before the subject is
brought to a conclusion. ... I am authorized to say that the
President does not regard the declaratory clause as more than a
legitimate inference from the rejection by the Senate of the second
article, and that he is deposed to go on with the measures due under

124 THE SENATE AND TREATIES

After careful consideration by a committee com-
posed of Logan, Jackson, and Tracy, and in debate
upon the floor in executive session, the Senate passed
the following resolution:

Resolved, that the convention, as ratified by the first
Consul of France, and declared to be considered by the
Senate, two-thirds concurring thereto, to be fully rati-
fied, be returned to the President of the United States,.
for the usual promulgation.1

This, it is to be noted, is not a second resolution
of advice and consent, but a statement that in the
opinion of the Senate the ratification of Napoleon,
with its stipulation, did not call for new action by
that body. Had the definite statement of Napoleon
as to the effect of the expunction of the second article
not been in accord with the former intentions of the
Senate it is hardly likely that they would have failed
to exercise their authority either to accept or to re-
ject it, as an explanation of the treaty.

If the process of making this French Convention
of 1800 be considered to extend from the nomina-
tion of the American envoys by the President to-
the final exchange of ratifications, the transaction
illustrates the extent to which the Senate may par-
ticipate in the actual negotiation of a treaty. The
President initiated the negotiation and issued the
instructions under which it was carried on. The
agents of the executive, acting under these in-
structions, signed a convention which settled neither

the compact to the French Republic." Madison, Secretary of
State, to Livingston, U. S. Minister to France, December 18, 1801,.
Am. State Papers, For. Rels., VI. 155.
1 Sen. Exec. Jour., I. 397-399.

THE ADMINISTRATION OF JOHN ADAMS 125

of the two cardinal points at issue between the two
nations. The instrument as signed, however, was
only the draft of a treaty. As such it was referred
to the ratifying authority of each state for the
action which alone could give it legal validity. A
part of that authority in the United States, the
Senate, declined to accept the proposed treaty as
it stood.1 After familiarizing themselves with the
details of the negotiations, in effect the Senate went
back to the point at which the French ministers
had offered their alternative propositions, the ancient
treaties with full indemnity, or a new treaty with
no indemnity. Then, by striking out the second
article, they did what the envoys could not do -
they accepted the latter proposition. Also they
limited the duration of the agreement to eight
years.

The executive acceded to these propositions and
laid them before the government of France. Na-
poleon, of course, was as free to accept them, to re-
ject them, or to accept them conditionally as though
they had been made during the course of the earlier
negotiation. He saw fit to accede to them, with an
explicit statement of what was implied by the ex-
cision of the second article. This acceptance on
his part was recognized by the Senate as completing
the ratification of the instrument.2 If, on the other

1 In this case there can be no question of the complete right of
the United States to refuse to ratify what its agents had agreed to,
for the reason that those agents had agreed to a convention which
was not in accord with their instructions.

2 That the Senate understood that in advising and consenting
to a conditional ratification they were running the risk of losing the
convention is made evident by the correspondence of leading Senators

126 THE SENATE AND TREATIES

hand, further conditions had been postulated by
the First Consul these in turn might have come be-
fore the Senate for consideration.

RULES FOR PROCEDURE UPON TREATIES

It has been noted that from the moment of the
submission of the French Convention of 1800,
senators were aware that the struggle over its
adoption would be a severe one. Perhaps this was
the reason that during its consideration the first
set of standing rules governing in detail procedure
upon treaties was adopted. Along with the con-
vention the President had submitted the journals
of the American ministers. These were read
through in three days, and Adams was then re-
quested to lay before the Senate the instructions of
the envoys.1 In complying with this request he
asked that the instructions be considered in strict
confidence and that they be returned to him as
soon as the Senate should have made all the use of
them which they might judge necessary. The fol-
lowing resolution was then adopted:

Resolved, That all confidential communications made by
the President of the United States to the Senate, shall be,
by the members thereof, kept inviolably secret; and that
all treaties which may hereafter be laid before the Senate,

on both sides. It therefore is to be assumed that the Senate pre-
ferred no treaty at all to that presented to them. See Hamilton
to Morris, January 10, 1801, Works of Alexander Hamilton, X. 410,
Pickering to King, January 5, 1801, Life and Correspondence of
Rufus King, III. 366; G. Morris to Robert Livingston, February 20,
1801, Diary and Letters of Gouverneur Morris, II. 404.
1 Sen. Exec. Jour., I. 359-360.

THE ADMINISTRATION OF JOHN ADAMS 127

shall also be kept secret, until the Senate shall by their
resolution, take off the injunction of secrecy.1

Thus the Senate established a standing rule pro-
viding for the secret consideration of all treaties
and all confidential communications from the Presi-
dent in relation to treaties or foreign affairs.

The next step in the formulation of procedure
was taken early in January. After it had discussed
the treaty for several weeks, and before balloting
thereon, the Senate laid down the following general
rule:

Resolved, (as a standing rule,) That whenever a treaty
shall be laid before the Senate for ratification, it shall be
read a first time, for information only; when no motion
to reject, ratify, or modify, the whole, or any part, shall
be received.

That its second reading shall be for consideration, and
on a subsequent day, when it shall be taken up, as in a
committee of the whole, and every one shall be free to
move a question on any particular article, in this form —
"Will the Senate advise and consent to the ratification
of this article?" or to propose amendments thereto,
either by inserting or by leaving out words; in which
last case the question shall be, "Shall the words stand
part of the article?" And in every of the said cases, the
concurrence of two-thirds of the Senators present shall be
requisite to decide affirmatively. And when through the
whole, the proceedings shall be stated to the House, and
questions be again severally put thereon for confirmation,
or new ones proposed, requiring in like manner, a con-
currence of two-thirds for whatever is retained or inserted.

That the votes so confirmed shall, by the House, or
a committee thereof, be reduced into the form of a rati-
fication, with or without modifications, as may have been
decided, and shall be proposed on a subsequent day,

1 Sen. Exec. Jour., I. 361.

128 THE SENATE AND TREATIES

when everyone shall be free again to move amendments,
either by inserting or leaving out words; in which last
case, the question shall be, "Shall the words stand part
of the resolution?" And in both cases the concurrence
of two-thirds shall be requisite to carry the affirmative;
as well as on the final question to advise and consent to
the ratification, in the form agreed to.1

The provisions of this rule may be briefly
summarized. Three readings on three different
days are provided for. The first is for infor-
mation only and at this time no motion to act
upon the treaty or any part of it is in order. Nothing
is said as to other motions, such as to refer to a
committee, to request further information from the
executive, and so on. The second reading is for
consideration, debate, and balloting in the com-
mittee of the whole. All questions to ratify, amend,
or reject any part of the treaty are to be decided
by a two thirds vote. The same majority is made
necessary for the acceptance by the House of each
part of the report of the committee. It is then
provided that the votes so confirmed shall be re-
duced into a form of ratification. This resolution
shall in turn be submitted to debate, and shall be
liable to amendment by two thirds vote. The
final question to advise and consent to the rati-
fication shall be on the form agreed to and a two
thirds vote shall be necessary to carry the affirmative.

It has been noted that after the French con-
vention had been rejected, the general sentiment
of the Senate was in favor of a reconsideration. On
February 3, accordingly, a rule was adopted which
provided,

1 Sen. Exec. Jour., I. 365.

THE ADMINISTRATION OF JOHN ADAMS 129

That when any question may have been decided by
the Senate in which two-thirds of the members present
are necessary to carry the affirmative, any member who
voted on that side which prevailed in the question, may
be at liberty to move for a reconsideration ; and a motion
for reconsideration shall be decided by a majority of
votes.1

1 Sen. Exec. Jour., I. 376.

Section LII of Jefferson's Manual treats rather of the nature of the
treaty-making power, and the relative powers of the President and
the Senate therein than of the procedure of the Senate upon treaties
laid before it. He refers to the usage in accordance with which
the President was accustomed to communicate to the Senate the
correspondence of the negotiators along with the treaty, and also
states that the mode of voting on questions of ratification was by
nominal call. Senate Manual, Containing the Standing Rules and
Orders of the United States Senate (edition 1918), pp. 306-308.

Under the present rules, the procedure of the Senate on treaties
is regulated by Rules XXXVI and XXXVII. Section three of the
former enjoins secrecy upon senators in almost the same words as
when adopted in 1801. The rule for proceedings on treaties has
been altered in a number of details. The most important change
is that which provides that a concurrence of two thirds of the Sena-
tors present shall be required to carry only the question of advice
and consent to ratification, or to postpone indefinitely, other ques-
tions being carried by a simple majority. Ibid., pp. 40-44.

CHAPTER VII

THE SENATE AND THE TREATIES OF
THOMAS JEFFERSON

THE CONVENTION OF 1802 'WITH SPAIN

THE proceedings oi the Senate upon the claims
convention of 1802 with Spain gave rise to several
interesting developments. The treaty had been
negotiated by Charles Pinckney, Minister of the
United States in Madrid, under instructions to
secure reparation from Spain for spoliations com-
mitted upon American commerce, principally during
the naval war between the United States and France.
Hundreds of American vessels had been captured
by French privateers sailing from Spanish ports,
and wrongfully condemned, either by Spanish
tribunals, or by French consuls within Spanish
jurisdiction.1 Spain admitted responsibility for the
acts of Spanish subjects, and the convention pro-
vided that claims arising out of spoliations by
them should be adjudicated by a mixed commission

1 Am. State Papers, For. Rels., II. 476. Extract of a letter
from the Secretary of State to Charles Pinckney. The correspond-
ence and other documents connected with this convention will be
found, Ibid., pp. 440-458, 475-483, 596-608, 613-695. See also
Davis, "Notes Upon Foreign Treaties of the United States," p. 1384;
McMaster, History of the People, III. 34-36; Chadwick, The Rela-
tions of the United States and Spain, Diplomacy, p. 70, et seq.; Moore,
International Law Digest, Vol. V., Sec. 821.

130

I

THE TREATIES OF THOMAS JEFFERSON 131

sitting in Madrid; but all rights arising under
claims originating from the excesses of foreign
cruisers, agents, consuls, or tribunals in the terri-
tories of either nation were to be reserved for future
negotiation.

The convention was submitted to the Senate in
January, 1803, l and was not finally passed upon
until virtually a year thereafter. Soon after it was
received, and again in March, the Senate took
definitive action upon the treaty, but in each case
reconsidered its decision.2 Late in the following
November, after the most pressing of the matters
connected with the purchase of Louisiana had been
disposed of, it resumed the consideration of the
Spanish convention. Bradley, Jackson, and Bald-
win were appointed a committee to inquire whether
further proceedings by the Senate were necessary,
and the convention was ordered to be printed.3
This committee probably consulted with the Presi-
dent or with the Secretary of State, for on Decem-
ber 21 Jefferson sent in a message explaining the
existing situation with reference to the treaty.
The President stated that Pinckney had been in-
structed to press for an additional article compre-
hending French seizures and condemnations of
American vessels in the ports of Spain. He also
submitted correspondence which showed that this
demand was being strongly resisted by the Spanish
government, and suggested that it might be ad-
visable to take what indemnities already had been
conceded and negotiate on the other claims when

1 Sen. Exec. Jour., I. 435. 2 Ibid., 436-7, 441-8.

3 Ibid., p. 459.

132 THE SENATE AND TREATIES

the question of the boundaries of Louisiana came
up for discussion.1 This was also the opinion of
the Senate, and on January 9 the convention was
ratified as it stood, after the Federalist senators
had vainly attempted to attach a condition that it
should be understood to embrace all claims arising
out of the action of Spanish subjects or American
citizens, whether official or unofficial persons.2

In reviewing the action of the Senate as outlined
above, attention should be directed to the reasons
for its hesitation to act, to the results of the delay
which this caused in the exchange of ratifications,
and to two interesting phases of its procedure upon
the convention. With reference to the first point,
there can be no doubt as to the nature of the objec-
tions to the treaty. It was felt that no settlement
should be made which did not bind Spain to make
reparation for the loss of American ships carried
into Spanish ports by French privateers or national
vessels, and there condemned by French consuls.3

1 Sen. Exec. Jour., I. 461; Am. State Papers, For. Rels, II. 596-
606.

2 Sen. Exec. Jour., I. 462.

3 Immediately after the adjournment of Congress in March,
1803, Madison instructed Pinckney to press for the inclusion of
these claims, saying, "More than a majority, but less than two-
thirds, which constitution requires, would have acquiesced in the
instrument in its present form; trusting to the success of further
negotiations for supplying its defects, particularly the omission
of the claims founded on French irregularities. But it is understood
that it would have been a mere acquiescence, no doubt being enter-
tained that Spain is bound to satisfy the omitted as well as the
included claims. In explaining, therefore, the course taken by the
Senate, which mingles respect for the Spanish government with a
cautious regard for our own rights, you will avail yourself of the
opportunity of pressing the reasonableness and sound policy of

THE TREATIES OF THOMAS JEFFERSON 133

The feeling on this point was so strong that the
Senate seemed determined to consent to no treaty
that did not provide for the settlement of both
classes of claims.

The result of the year's delay in the ratification
of this treaty by the United States was that no
American claims were ever adjusted under it.
During the interval occurred the cession of Louisi-
ana, which increased the tension between this
country and Spain; and after the passage of the
Mobile Act, setting up a United States customs
district in West Florida, Spain refused to ratify
the treaty except under conditions to which the
United States could not assent.1 Ultimately, in
1818, Spain did ratify it unchanged, but it was
annulled by Article X of the Treaty of 1819, before
any action had been taken under it.2

In the matter of procedure two points of interest
arise. The first is in connection with the opinion
given by five eminent lawyers of Philadelphia and
New York that Spain was under no obligation to
make reparation for American vessels captured by
French subjects and condemned in Spanish ports
by French consuls. The question had been pre-
sented hypothetically by Spanish agents to Jared

remodelling the convention in such a manner as to do full justice."
Am. State Papers, For. Rels., II. 596. In announcing the ratification
of the convention to Robert R. Livingston, Minister to France,
Madison wrote, "The objection to it was, that it did not provide
in sufficient extent, for repairing the injuries done to our commerce,
particularly in omitting the case of captures and condemnations by
French cruisers and consuls, within Spanish responsibility. Ibid.,
p. 614.

1 Cevallos to Pinckney, July 2, 1804. Ibid., p. 619.

2 Treaties and Conventions, II. 1655.

134 THE SENATE AND TREATIES

Ingersoll, William Rawle, J. B. McKean, P. S.
Duponceau, and Edward Livingston with a sub-
stitution of the letters A, B, and C for the names
of Spain, France, and the United States. These
gentlemen had agreed that Spain was not required
by international law to pay the indemnities referred
to. This opinion rested principally on the grounds,
first, that Spain had been unable to prevent the
spoliations, second that the claims in question had
been released by the treaty of 1800 with France.1
The signed opinion of these men was forwarded
to the Spanish government, which used it to
refute the arguments by which Pinckney sought
to obtain an additional article covering these
claims.2

The correspondence between Pinckney and Ceval-
los on this subject was submitted to the Senate
with the message of December 21, 1804, probably
in response to inquiries by Senators Bradley, Jack-
son, and Baldwin, who, it will be remembered had
been appointed to consider the expediency of taking
further action on the treaty. On the day following
the receipt of the message and documents, this
committee was discharged. Bradley immediately
introduced a resolution that a select committee be
appointed to consider and report "whether and, if
any, what, further proceedings ought to be had by
the Senate, in relation to the message on the dis-
closures made by the same." 3 This resolution was
agreed to immediately after the Senate had advised
the ratification of the treaty, and the three men

1 Am. Stale Papers, For. Rels., II. 605.

2 Ibid., p. 604 et seq. 3 Sen. Exec. Jour., I. 461.

THE TREATIES OF THOMAS JEFFERSON 135

who had composed the earlier committee were ap-
pointed to this one.1

Towards the end of the session this committee
brought in a report calling the attention of the
Senate to the opinions expressed by the five lawyers.
They stated their belief that the correspondence
which these gentlemen had carried on with the
agents of the Spanish government with an intent
to influence the measures and conduct of the gov-
ernment of Spain, and to defeat the measures of
the government of the United States, was in viola-
tion of the act of January 30, 1799.2 The report
concluded by recommending that the President be
requested to lay before the Attorney General all
documents relating to the matter and that if, in
the opinion of the latter officer, the evidence was
sufficient to warrant it the President be requested
to instruct the proper officer to commence a prose-
cution under the act of 1799.3

Although the Senate never acted upon this report,
the incident is an example of its tendency to take a
high view of its prerogatives under the treaty-making
power, and of its alertness to resent any action which
might be in derogation of them. The Senate has
always guarded well its constitutional powers, and
more than once this attitude has been an important
factor in its decisions concerning foreign affairs.

1 Sen. Exec. Jour., I. 463.

2 A discussion of the origin of this act, known as the Logan Act,
and of its subsequent history is to be found in Foster, A Century of
American Diplomacy, pp. 226-231; see also McMaster, History
of the People, III. 284.

3 Sen. Exec. Jour., I. 469-470.

136 THE SENATE AND TREATIES

The second point of interest in the procedure upon
this convention is to be found in the use of the com-
mittee in its consideration. During the session of
1803 in which definite action was twice taken, only
to be reconsidered, the Senate dealt with the matter
directly. No committee was appointed. Before
the subject was resumed in the following session,
a committee of three was chosen, simply to ascer-
tain the existing situation between the executive
and the Spanish government with reference to the
treaty. The functions of this committee ended
with the communication by the President of this
information. Acting directly the Senate then pro-
ceeded to pass the resolution of advice and consent,
and, afterwards, appointed another committee to
investigate the disclosures of interference by Ameri-
can lawyers. This course affords a typical example
of the status of the committee in treaty affairs during
this period, when no fixed rules regulated its use or
function in the procedure of the Senate upon foreign
relations.

THE SENATE AND THE LOUISIANA TREATY

In midsummer, 1803, President Jefferson issued
a proclamation convening Congress in extraordinary
session on the seventeenth of the following October
to consider certain " great and weighty matters."1
These matters concerned the treaties by which, on
the thirtieth of the preceding April, France had
ceded to the United States the vast territory of
Louisiana. Congress was to be called upon to meet

1 Richardson, Messages, I. 357.

THE TREATIES OF THOMAS JEFFERSON 137

the stipulated conditions and to provide for taking
over and governing the empire which the executive
had obtained.1

Following the usage which had become established
by that time, the Senate on January 12, 1803, had
approved the general proposition of a treaty with
France on the question of our rights on the Mis-
sissippi, by confirming the nomination of ministers
to carry on the negotiation. The sort of treaty
which the Senate had provisionally sanctioned,
however, was far different from that which subse-
quently was signed. Livingston and Monroe had
been nominated "to enter into a treaty or conven-
tion 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." 2 And their con-
firmation had been expressed in similar terms.3
The treaty which was subsequently signed, however,
was far different from that which the Senate had
thus sanctioned. Consequently, so far as their
previous action was concerned, they were now free
to judge the question of ratification strictly upon
its merits.

1 Probably the most satisfying study of the diplomatic, con-
stitutional, and political aspects of the Louisiana Purchase is to be
found in Adams, History of the United States, II. ii-vi. Reference
also has been made to McMaster, History of the People, II. xiii,
III. xiv; Hosmer, History of the Louisiana Purchase, Ch. IX; Ogg.
The Opening of the Mississippi, Chs. XI, XII. Channing, The
Jeffersonian System, Ch. V. Moore, International Law Digest,
Vol. V., Sec. 821, gives an excellent discussion of the diplomatic
phase of the purchase, but does not treat the matter in its con-
stitutional aspects.

2 Richardson, Messages, I. 351. 3 Sen. Exec. Jour., I. 436.

138 THE SENATE AND TREATIES

After summoning Congress to meet and take
such action as the situation demanded, Jefferson
spent the remaining summer months in trying to
work out the course to be recommended to them,
when they should come together. In this problem
the time element was all-important. It was, in-
deed, the determining factor in the action not only
of the President, but also of the Senate, and of the
House of Representatives in the conclusion of the
great purchase. All concerned would have given
much to have weighed, considered, debated the
issues involved, and finally to have secured the
western empire in a manner and under conditions
which squared with the political principles which the
great majority of them had enunciated for years.
But they feared that if the bargain were not sealed
and the consideration passed at once the other
party might withdraw, or perhaps might not be
able to deliver what had been promised; and in
the crisis all three either altered or ignored their
principles, and closed the transaction with a speed
which would seem to c^sprove the familiar state-
ment that under our form of government prompt
and positive action in treaty-making can never be
secured. In fact, the Senate ratified the treaty as
it stood and Congress passed the measures neces-
sary to give it effect in a shorter time than had
been required for the President to make up his
mind as to what action he should recommend to
them.

In Jefferson's correspondence upon the proper
course to be pursued in the dilemma in which he
found himself little seems to have been said about

THE TREATIES OF THOMAS JEFFERSON 139

the possibility of the rejection of the treaty by the
Senate. That rejection was not impossible, how-
ever, was suggested to the President by his friend,
Wilson Carey Nicholas, Senator from Virginia.
After urging the President to keep his ideas con-
cerning the unconstitutionality of the treaty to
himself, he added, "I should think it very probable
if the treaty should be declared by you to exceed
the constitutional authority of the treaty-making
power, it would be rejected by the Senate. . . ." l
As few men were more closely in touch with the
Republican majority in the Senate of 1803 than
Nicholas this danger may have been real. At any
rate, the- advice was followed.

By the end of September the President had
formulated the outline of his message to Congress.
One proposal in the draft which he submitted to the
members of his cabinet gave rise to an interesting
discussion on the propriety of submitting a treaty
to the House before the Senate had acted upon it.
In order to complete the purchase as speedily as
possible, Jefferson had indicated his intention of
laying the treaties before both Houses of Congress
at once. On October 1, Madison returned ^the
President's notes upon the draft message, recom-
mending that this section be altered to read, " These
stipulations (instruments) will immediately be laid
before the Senate, and if sanctioned by its concur-
rence will without delay be communicated to the
House of Reps. ..." Such a modification, Madi-
son continued,

1 Nicholas to Jefferson, September 2, 1803. Adams, History
of the United States, II. 88, citing Jefferson Mss.

140 THE SENATE AND TREATIES

will also avoid what the theory of our constitution does
not seem to have met [meant], the influence of delibera-
tions and anticipations of the H. of Reps, on a Treaty
depending in the Senate. It is not conceived that the
course here suggested can produce much delay, since the
terms of the treaty being sufficiently known, the mind
of the House can be preparing itself for the requisite
provisions. Delay would be more likely to arise from
the novelty and doubtfulness of a communication in the
first instance, of a treaty negotiated by the executive,
to both Houses for their respective deliberations.1

Gallatin took practically the same position in
the remarks on the proposed message which he
handed to the President four days later. He ob-
served :

It seems to me that the treaty ought not be laid be-
fore both Houses of Congress until after ratification by
Senate. The rights of Congress in its legislative capacity
do not extend to making treaties, but only to giving or
refusing their sanction to those conditions which come
within the powers granted by the Constitution to Congress.
The House of Representatives neither can nor ought to
act on the treaty until after it is a treaty; and if that be
true no time will be gained by an earlier communication
to that body. In asserting the rights of the House, great
care should be taken to do nothing which might be rep-
resented as countenancing any idea of encroachment of
the constitutional rights of the Senate. If, in order to
be able to carry on a negotiation, the Executive wants a
previous grant of money or other legislative act, as in
the Algerine treaty, some Indian tribes, and last session
(2) two millions appropriation, an application may be
necessary before the negotiation is opened or the treaty
held; but when as in the present case, the negotiation
has been already closed and the treaty signed, no necessity
exists to consult or communicate to the House until the

1 Writings of Thomas Jefferson (Ford ed.), VIII. 266n.

THE TREATIES OF THOMAS JEFFERSON 141

instrument shall have been completed by the Senate, and
President's ratification : in this instance there is no appar-
ent object for the communication but a supposition that
they may act, or, in other words, express their opinion
and give their advice on the inchoate instrument, which
is at that very time constitutionally before the Senate.1

A comparison of the two opinions shows that both
secretaries based their objections to a simultaneous
communication of the treaties to both Houses upon
two main grounds. * The first is one of principle
-it ought not to be done. Madison states this
most clearly when he says that the theory of the
Constitution does not seem to have intended that
the deliberations of the Senate upon an unratified
treaty should be influenced by its discussion in the
House. He might have gone farther and pointed
out that submission to the larger chamber probably
would be the equivalent of publication. In this
event the Senate would be subjected to influence
not only from the House but from the people as
well. That the application of such influence would
very seriously curtail, if not practically destroy
the power of the Senate to decide independently
the question of ratification isxobvious. This con-
clusion doubtless led to the second objection to
Jefferson's proposal which was one of expediency.
Madison and Gallatin agreed that the innovation
at this time would tend to delay rather than to
expedite action. Probably both statesmen were con-
fident that the Senate would resist any such en-
croachment upon its constitutional powers and
feared that such resistance might delay and possibly

1 Writings of Albert Gallatin (ed. Henry Adams), I. 154-156.

142 THE SENATE AND TREATIES

jeopardize the passage of the resolution of advice
and consent to ratification. Jefferson decided to
follow their advice in the matter and the treaties
were not laid before the House until after they had
been ratified.

When Congress met on October 17, the Presi-
dent, in announcing the signature of the treaties in
his message to both Houses, said, "When these
shall have received the constitutional sanction of

p

the Senate, they will without delay be communi-
cated to the Representatives also for the exercise
of their functions as to those conditions which are
within the powers vested by the Constitution in
Congress." The treaties were at once communi-
cated to the Senate. The message stated that the
ratification of the First Consul was in the hands
of his Charge d'Affaires here, to be exchanged
"whensoever, before the 30th instant, it should be
in readiness." Three days later advice and consent
to ratification was given by a vote of 24 to 7. The
promptness of this action undoubtedly is to be at-
tributed to the presence of an overwhelming Re-
publican majority under the thorough control of
the administration. ^Little is known of the debates
during these three days, but it is likely that in the
main they were along the same lines that were fol-
lowed during the later discussion of the measures
for putting the treaty into effect.1

From the standpoint of a study of the treaty-mak-
ing powers of the Senate, however, perhaps the most
interesting action in connection with the Louisiana
treaty was taken after the adoption of the 'resolu-

1 Sen. Exec. Jour., I. 449-450.

THE TREATIES OF THOMAS JEFFERSON 143

tion of advice and consent. In public discussion
the constitutionality of the treaty had been attacked
upon two grounds. First it was declared that the
President and the Senate had no authority to acquire
Louisiana by treaty; secondly, that part of the
treaty which provided for the future incorporation
of the territory into the union was declared to be
even more obviously beyond the powers of the treaty-
making part of the government. No sooner had
the Republican members of the Senate procured
the agreement of the chamber to ratification than
the following resolution was introduced by Pierce
Butler, Federalist member from South Carolina: 1

Resolved, That the President of the United States be
requested to obtain from the French Republic, such a
modification of the 3d article of the treaty, as will leave
the government of the United States at liberty to make
such future arrangements, or disposition of the territory
of Louisiana, as, in their wisdom, may best promote the
general interest; always securing to the free inhabitants
of Louisiana, protection in their persons, security in
their property, and the free and open enjoyment of their
religion.2

The object of the desired modification was, of
course, to release the nation from its pledge to in-
corporate the inhabitants of the ceded territory
into the union. Had it been secured one of the two

1 Under date of October 28, John Quincy Adams recorded in his
diary, "Attended in Senate. Mr. Butler's resolution for a further
negotiation with France, under consideration, debated until past
three p.m., when we adjourned." Memoirs of John Quincy Adams,
I. 268. Also on November 4 he noted that, "Mr. Butler's proposed
resolution for a new negotiation with France was resumed and
negatived." Ibid., I. 271.

2 Sen. Exec. Jour., I. 450.

144 THE SENATE AND TREATIES

great constitutional objections to the treaty would
have been obviated. The proposition was debated
on the twenty-first and the twenty-second. On the
twenty-first, however, the President had ratified the
treaties and had exchanged his ratification for that
of the First Consul. Saturday the twenty-second,
the completed instruments were laid before both
Houses with a request for legislation to make them
effective.1 When the Senate met again on Monday
it declined to resume consideration of the Federalist
resolution2 and proceeded to provide the legislation
which the President had asked for.

On Friday, the twenty-eighth, the Senate bill to
enable the President to take possession of the ceded
territory having been passed, and the House bill
appropriating funds to pay for it not having been
sent up, debate on Butler's motion of the twentieth
was resumed.3 Following this, the Senate debated
the purchase appropriation bill from the House until
November 3, when the measure was agreed to.4
Thus, in its legislative capacity, the Senate had done
what was necessary to put the treaty into effect.
It then immediately went into executive session for
the consideration of the resolution advising the Presi-
dent to attempt to secure a modification of Article
3. This proposal had support from both sides of
the house. But when it came to a vote it was
defeated 9 to 22, four Federalists and five Republi-
cans being found in the affirmative.5

1 Annals of Congress, 1803-1804, pp. 17-18.

2 Sen. Exec. Jour., I. 451.

3 Sen. Exec. Jour., I. 451; Annals of Congress, 1803-1804, p. 27.

4 Annals of Congress, 1803-1804, p. 75. 8 Ibid., p. 452.

THE TREATIES OF THOMAS JEFFERSON 145

Very little reference to this proposal is to be
found in the correspondence of the men involved.
It seems obvious that the resolution never had a
chance of adoption; and had the Senate presented
it to the President, the latter would have been free
to follow or to ignore the suggestion. It is clear,
however, that the request was a perfectly proper
one to be made by the Senate. That it was pro-
posed, seriously debated, and supported by members
from both parties is another interesting example of
the fact that the Senate has always felt that it is
as much within its constitutional powers to sug-
gest the initiation of a negotiation as to pass upon
a treaty already consummated by the executive.

THE KING-HAWKESBURY CONVENTION

The King-Haw kesbury Convention of May 12,
1803, was the first treaty to be lost by the refusal
of the other signatory to accept an amendment pro-
posed by the United States Senate. This conven-
tion provided for the fixing of the northeastern and
northwestern boundaries between the United States
and British territory.1 That part of the northwest
boundary between the Lake of the Woods and the
Mississippi had been described by the second article
of the treaty of 1783 as running due west from the
most northwestern point of the lake to the river.
Subsequently it was discovered that such a line
would not intersect the Mississippi. The fifth
article of the convention signed by Rufus King

1 The northwestern boundary question is treated in Reeves,
American Diplomacy Under Tyler and Polk, Ch. VIII.

146 THE SENATE AND TREATIES

and Lord Hawkesbury rectified the error by stipu-
lating that the boundary in this quarter should be
the shortest line which could be drawn from the
northwest point of the Lake of the Woods to the
nearest source of the Mississippi. It was provided,
too, that at the request of either party commis-
sioners should be appointed to determine these
points and to run the line.1

This convention was laid before the Senate on
October 24, four days after the passage of the
resolution advising the ratification of the treaties
by which Louisiana was acquired from France.2
The Senate seems to have become alarmed at once
over the possibility of our rights under the Louisi-
ana purchase being prejudiced by the terms of the
fifth article of the convention with England. John
Quincy Adams records in his diary that on October
31, "Mr. S. Smith intimated that since the ratifica-
tion of the Louisiana Treaty this one must not be
ratified at all." 3 When the matter was next dis-
cussed, Senator Wright objected to ratification be-
cause he feared possible interference between this
treaty and that containing the cession of Louisi-
ana.4 On November 15, the convention was re-

1 The convention and the correspondence submitted to the
Senate, together with documents explaining the action of the Senate
in amending the treaty by striking out the fifth article are printed
in Am. State Papers, For. Rels., II. 584-591.

2 Sen. Exec. Jour., I. 450-451. Two days before the treaty was
submitted to the Senate Madison wrote to the American ministers
in Paris, Madrid, and London expressing his confidence that the
Senate would concur in the ratification of the treaty. Ms. State
Department, U. S. Ministers, Instructions, XI. 153.

3 Memoirs of John Quincy Adams, I. 269.
« Ibid., p. 271.

THE TREATIES OF THOMAS JEFFERSON 147

ferred to a select committee composed of Adams,
Nicholas, and Wright.1

After its chairman had conferred with Madison,
personally 2 and by letter, the committee presented
the following report:

That, from the information they have obtained, they
are satisfied that the said treaty was drawn up by Mr.
King three weeks before the signature of the treaty with
the French Republic of the 30th of April, and signed by
Lord Hawkesbury, without the alteration of a word;
that it had, in the intention of our minister, no reference
whatever to the said treaty with the French Republic,
inasmuch as he had no knowledge of its existence. But,
Not having the means of ascertaining the precise northern
limits of Louisiana, as ceded to the United States, the
committee can give no opinion whether the line to be
drawn, by virtue of the third [sic^] article of the treaty
with Great Britain, would interfere with the said northern
limits of Louisiana or not.3

Adams and most of his Federalist colleagues be-
lieved that in these circumstances the fifth article
could not be construed in derogation of any rights
which the United States obtained by the purchase
of Louisiana.4 But the Republican majority did

1 Sen. Exec. Jour., I. 454.

2 Memoirs of John Quincy Adams, I. 273, 274. On the seven-
teenth Adams recorded that he had called on Madison who did not
approve of the resolution for the conditional ratification of the treaty.

3 Am. State Papers, For. Rels, II. 590; See Life and Correspond-
ence of Rufus King, IV. xxii, for evidence that this convention was
signed without knowledge of the French treaties of April 30.

4 On the question "Will the Senate advise and consent to the
ratification of the 5th article? " Adams, Bradley, Dayton, Hillhouse.
Olcott, Pickering, Plumer, Israel Smith, and Tracy voted yea.
Of these all were Federalist except Bradley, Olcott and Smith,
Samuel Wright of New Jersey was the only Federalist voting nay.
Sen. Exec. Jour., I. 463.

148 THE SENATE AND TREATIES

not care to run any risks in the matter, and on
February 9, 1804, the Senate voted, 22 to 9, to
strike the fifth article from the treaty. It was
then unanimously agreed to advise the ratification
of the convention with this amendment.1

Although the rejection of the article concerning
the northwestern boundary had not met with the
approval of Madison, he at once sent to James
Monroe, who had succeeded King at London, in-
structions to secure the exchange of ratifications
with the British government. In these instructions
Madison explained the action of the Senate and ad-
vanced four reasons which led him to think that
the British government would accept the altera-
tion. First, inasmuch as at the time when the in-
structions were drawn up and the convention signed,
neither party was aware of the conclusion of the
treaties ceding Louisiana, it would be unreasonable
that this convention should operate to restrict ter-
ritorial rights gained by the United States from
France. Second, if the fifth article were expunged
the northern boundary of Louisiana would remain
the same in the hands of the United States as it
had been in the hands of France; and it might be
adjusted and established according to the same
principles which in that case would have been ap-
plicable. Third, there was reason to believe that
the boundary between Louisiana and the British
territory north of it actually had been fixed by
commissioners appointed under the Treaty of Ut-
recht, and that a line run in accordance with article
five would pass through territory which on both

1 Sen. Exec. Jvur., 1. 463-464.

THE TREATIES OF THOMAS JEFFERSON 149

sides of the line would belong to the United States.
Fourth, the adjustment of this line would be left
open for future negotiation — a situation which in
the past Great Britain had seemed anxious to bring
about.1

The receipt of these instructions was acknowledged
by Monroe in April.2 Not deeming it worth while,
however, to press American concerns upon the de-
clining Addington ministry, our minister took no
steps to secure an exchange of ratifications until
Addington had given way to Pitt, and Lord Har-
rowby had superseded Lord Hawkesbury in the
Foreign Office. In the new Secretary of State for
Foreign Affairs, Monroe had to deal with one who
regarded the United States and its aspirations with
intolerance, if not with contempt. Moreover, as
has been the case with some other English officials
of small caliber, Harrowby did not consider it worth
while to conceal his feelings from the representative
of the former British colony. In his criticism of
the American government for ratifying the King-
Hawkesbury convention with the exception -of the
fifth article he certainly did not confine himself to
" diplomatic expressions," but used language which
Monroe deemed to be "calculated to wound and
irritate."

In a letter to Madison dated June 3, Monroe re-
ported the position taken by Harrowby on the
practice of the Senate in ratifying treaties with
alterations, and gave an account of his interview
on the subject. Monroe wrote:

1 Am. State Papers, For. Rels., III. 89-90.

2 Monroe to Madison, April 26, 1804, Writings of James Monroe,
IV. 170.

150 THE SENATE AND TREATIES

He censured in strong terms the practise into which
we had fallen of ratifying treaties, with exceptions to
parts of them, a practise which he termed new, un-
authorized and not to be sanctioned. I replied that
this was not the first example of the kind; that he must
recollect one had been given in a transaction between our
respective nations in their treaty of 1794; that in that
case the proposition for a modification in that mode was
well rec'd, and agreed to; that to make such a proposi-
tion was a proof of an existing friendship & a desire to
preserve it; that a treaty was riot obligatory 'till it was
ratified, and, in fact was not one 'till then. He said that
the doctrine was not so clear as I had stated it to be;
that there were other opinions on it, and seemed to
imply, tho' he did not state it, that an omission to ratify
did an injury to the other party of a very serious kind.

Monroe then explained why the fifth article had been
excepted from the ratification, after which Harrowby

observed with some degree of severity in the manner,
in substance, as well as I recollect, that, having dis-
covered since this treaty was formed, that you had ceded
territory which you do not wish to part from, you are
not disposed to ratify that article.

Monroe denied this and advanced the arguments
set forth in his instructions. The Englishman,
however, "repeated again the idea which he first
expressed, implying strongly that we seemed de-
sirous of getting rid of an article in finding that it
did not suit us." 1

1 Monroe to Madison, June 3, 1804. Am. State Papers, For.
Rels., III. 92-94. It is only fair to add that on June 23 Monroe
wrote that he had come to the conclusion that Harrowby's ill man-
ners during the above described interview were due to a state of
mind which he was in at the time and were the result of a momentary
impulse rather evidence of an unfriendly policy towards the United
States. Monroe to Madison, June 23, 1804, Writings of James
Monroe, IV. 197 n.

THE TREATIES OF THOMAS JEFFERSON 151

Although this unfriendly and uncompromising at-
titude on the part of the British ministers made
Monroe's task exceedingly disagreeable, he con-
tinued to urge an acceptance of the amended treaty.
On September 1 in a long interview concerning the
various points at issue between the two countries
he repeated all of his arguments, and afterwards
sent them in written form for submission to the
cabinet.1 But Harrowby and the ministry were
not to be moved. Instructions addressed to An-
thony Merry, British Minister at Washington,
under the date of November 7, 1804, stated that his
Majesty's government would at all times be ready
to reopen the whole subject:

but they can never acquiesce in the precedent which in
this as well as in a former instance the American govern-
ment has attempted to establish, of agreeing to ratify
such parts of a convention as they may select, and of

1 Writings of James Monroe, IV. 245. Monroe to Madison,
September 8, 1804. Am. State Papers For. Rels., III. 95-98. Mon-
roe reported his action at this time in the following words: "We
then proceeded to examine the convention respecting the boundaries
in the light in which the ratification presented it. On that subject
also I omitted nothing which the documents in my possession
enabled me to say; in aid of which I thought it advisable, a few
days afterwards, to send to his Lordship a note explanatory of the
motives which induced the President and the Senate to decline
ratifying the fifth article. As the affair had become by that cir-
cumstance in some degree a delicate one, and as it was in its nature
intricate, I thought it improper to let the explanation which I had
given rest on the memory of a single individual. By committing
it to paper, it might better be understood by Lord Harrowby and
the cabinet, to whom he will doubtless submit it." A copy of this
paper was sent to Madison. It traces the history of the boundary
line in question and explains why the fifth article of the convention
was rendered nugatory by the cession of Louisiana.

152 THE SENATE AND TREATIES

rejecting other stipulations of it, formally agreed upon
by a minister invested with full powers for that purpose.1

The matter of the boundary was not again pressed,
however, until the Grenville ministry was formed
in 1806. Monroe then outlined the situation to
Charles James Fox as soon as that statesman had
taken possession of the seals of the foreign office.2
In February he submitted to Fox a review of the
previous negotiations between himself, and Hawkes-
bury and Harrowby. In this document he re-
iterated the familiar arguments for the ratification
of the boundaries convention minus the fifth article.3
But the new ministry proved to be as reluctant to
countenance this innovation in treaty-making as
had been the old. Fox, to be sure, was more courte-
ous — conciliatory was the word Monroe used -
than his predecessor had been; 4 but the treaty was
not ratified. In May, when Pinckney was sent to
join Monroe in an effort to settle the differences
between the two nations, the latter was given a
special instruction with reference to this question.
If the British government declined to ratify with
the omission of the fifth article, and was willing to
do so with a proviso " against any constructive

1 Adams, History of the United States, II. 424. Reference to MS.
British Archives. In October Monroe left London on a special
mission to Madrid, after having left open for future negotiation this
and other questions pending between England and the United States.
Monroe to Madison, October 3, 1804. Am. State Papers, For. Rels.,
III. 98-99.

2 Monroe to Madison, February 12, 1806. Ibid., pp. 112-3.

3 Monroe to C. J. Fox, February 25, 1806. Ibid., pp. 113-114.

4 Monroe to Madison, March 11, 1806. MS. Department of
State, England, 12, James Monroe.

THE TREATIES OF THOMAS JEFFERSON 153

effect of the Louisiana convention on the intention
of the parties at the signature of the depending
convention" he was to "concur in the alteration
with a view to bring the subject in that form be-
fore the ratifying authority of the United States."1
This proposition, however, probably never was
presented to Fox, who was taken ill soon after the
arrival of Pinckney in London.2 After the un-
fortunate Monroe-Pinckney treaty had been signed
negotiations were entered into for a supplemental
convention relative to boundaries.3 But the ef-
fort produced no settlement and the matter was
reserved for future discussion.

The King-Hawkesbury convention, however, was
now finally recognized by the United States to be
impossible of perfection. The subsequent history
of the boundary controversy suggests very forcibly
that at this time England may have been glad of
a legitimate excuse for not ratifying the convention
which Hawkesbury had signed. The rejection by
the Senate of Article 5 gave her such an excuse
— one probably all the more appreciated because it
enabled her to put the United States in the wrong
in the matter. This was not the last occasion
upon which the action of the United States Senate
gave to another nation the opportunity to retire
gracefully from an agreement which it had come to
regret.

As has been said, the King-Hawkesbury conven-

1 Madison to Monroe, May 15, 1806, Am. State Papers For.
Rels. III. 119.

2 Ibid., pp. 128-132 passim.

3 Monroe and Pinckney to Madison, April 25, 1807. Ibid., p. 162.

154 THE SENATE AND TREATIES

tion was the first treaty to remain unperfected be-
cause the other party refused to acquiesce in a
qualified ratification by the United States. Further,
this is the only occasion upon which another govern-
ment has ever declined to proceed with ratification
for the simple reason that it refused to accept
the principle, that on account of its constitutional
system the United States should be allowed to
modify in ratification a treaty signed by its ministers
in accordance with their instructions. Lord Har-
rowby's remarks to Monroe on this subject were
not marked by the depth of the scholar, the suavity
of the diplomat, or the vision of the statesman.
Undoubtedly, however, he spoke truly when he
told the American minister that the practice into
which his country had fallen of ratifying treaties
with exceptions to parts of them was new and un-
authorized.1 It was new because, until the Con-
stitution of the United States had given to the
Senate a voice in treaty-making, the nations of the
world had commonly granted to those parts of their
governments which negotiated treaties, authority to
ratify them; and with rare exceptions treaties were
ratified as signed. It was unauthorized because by
the then generally accepted rules of international
law a sovereign was bound to ratify what his min-
ister, acting under full powers and within his in-
structions, had agreed to. Failure to ratify without
extremely cogent reasons for refusal might be con-
sidered as a grave breach of faith. When Harrowby
intimated that "an omission to ratify did an injury

1 See Moore, International Law Digest, V. 184—202, for thorough
discussion of this point in international law.

THE TREATIES OF THOMAS JEFFERSON 155

to the other party of a very serious kind" he was
only expressing the generally accepted doctrine of
his time.

The United States, in fact, was introducing a new
principle into the diplomatic practice of the world.
She had made her treaties a part of the supreme
law of the land and therefore had given to the upper
chamber of her legislature a part in enacting them.
She was a federal state and as such had given to the
representatives of her component parts a voice in
making the treaties which bound them. She was
a democracy and as such had declined to entrust
the superlatively important function of treaty-
making • to the executive alone. Thus the very
terms of her being went far towards determining
the manner in which her relations with the other
members of the family of nations were to be carried
on. But as she was the first of her kind, the pre-
existing rules of international intercourse made no
provision for her unique method of making treaties,
and when the action of her Senate made it necessary
for her executive either to offer to ratify a treaty
with modifications or to decline ratification at all,
this method brought her into conflict with the
established order of things.

In these circumstances it was inevitable that,
sooner or later, she would encounter a Lord Har-
rowby. For in this situation his Lordship occupied
a position for which he was eminently fitted and
which he doubtless would have been proud to fill -
that of the champion of things as they are. Hence
his declaration that the American practice not only
was new and unauthorized, but was not to be

156 THE SENATE AND TREATIES

sanctioned. In the case of the King-Hawkesbury
convention the established order of things pre-
vailed; the modified treaty never was perfected.
But that which the British minister lacked the
vision to see came to pass. Upon many later
occasions Senate amendments to treaties were sub-
mitted to the other party to the agreements ac-
companied by lengthy explanations of the features
of the governmental system of the United States
which put it in the power of the Senate to compel
such action. And in due time the world consented
to deal with the United States in the manner made
necessary by her form of government. To-day
what British ministry 1 would attempt to force the
United States, with her system of treaty-making,
into the mold provided for those states which still
perform this function of government under the
ancient principles? Indeed, England and practic-
ally every other democracy have now provided
some method by which the representatives of the
people may have a voice in determining what
manner of treaties shall be made. The success
of the American experiment demonstrated the prac-
ticability of such a system, and paved the way for
similar democratic developments in other nations.

JOHN QUINCY ADAMS AND THE TREATY OF
1805 WITH TRIPOLI

Although finally ratified without amendment,
the treaty of peace, amity, and commerce concluded

1 Henry Cabot Lodge's admirable essay, "The Treaty-making
Powers of the Senate," was occasioned by such a misunderstanding
on the part of Lord Lansdowne in 1901, however.

THE TREATIES OF THOMAS JEFFERSON 157

with Tripoli June 4, 1805, was before the Senate
from December of that year until the following
April, and was the subject of prolonged and acri-
monious debate in that body.1 By their insatiable
greed and unfailing bad faith, the piratical rulers
of the Barbary states finally had convinced the
government of the United States that one fight
would be cheaper than continual blackmail -
that it would cost less to win a peace than annually
to buy one. Consequently in the spring of 1805
practically every sea-going vessel in the American
navy was in the Mediterranean, for the purpose
of bringing to a successful conclusion the naval
campaign which had been carried on for several
years. Pressure of the fleet, and fear of a band of
adventurers under the leadership of William Eaton,
an American soldier of fortune, and Hamet Cara-
malli, a rival claimant of the throne, finally brought
the ruling Bashaw of Tripoli to the point of con-
sidering a permanent treaty of peace with the
United States. This treaty was signed by Tobias
Lear, of unhallowed memory. Although nego-
tiated at the cannon's mouth it provided that the
United States should pay a ransom of sixty thousand

1 Our diplomatic relations with Tripoli and the other Barbary
powers are traced in Lyman, Diplomacy of the United States, II. xiii;
the various treaties and other original material are here printed.
Gardner W. Allen, in Our Navy and the Barbary Corsairs, presents
both the naval and diplomatic phases of the question. Chapters VI
to XV cover our relations with Tripoli during this period. .See
also Adams, History of the United States, II. xviii; McMaster,
History of the People, III. xviii; Schouler, History of the United
States, II. vi; Hildreth, History of the United- States, V (Vol. II;
2d series) xvii, xviii; Channing, The Jeffersonian System, Ch. III.
Humphreys, The Life of David Humphreys, II. ix-xi.

158 THE SENATE AND TREATIES

dollars for the crew of the frigate Philadelphia.
Also it left Eaton and Caramalli, with their followers,
to shift for themselves under conditions which by
many were thought to be as disgraceful to the
United States as they were disastrous to those in-
dividuals. The treaty, to be sure, provided that
in case Caramalli withdrew from Tripoli, the reign-
ing Bashaw should return to him his wife and chil-
dren, who had been held as hostages. But the
faithless Lear on the same day had signed an agree-
ment that this delivery need not be made for four
years. Neither the other Americans on the ground
nor the United States government was informed of
this act.1

The opposition to the ratification of Lear's
treaty seems to have rested upon three grounds.
The first two concerned the treaty itself: It was
deemed subversive of the honor and interests of
the United States for it to buy a peace when it
was in a position to secure one by force of arms;
furthermore, the stipulation that the wife and
children of Caramalli be returned to him not having
been fulfilled, many Senators were of the opinion
that until they were the treaty should not be rati-
fied. If John Quincy Adams was correct in his
deductions, ratification was also opposed, or at
least its delay was advocated, because "the Mediter-
ranean fund, of two and a half per cent additional
duty, was by the terms of the law to cease three
months after the ratification of the peace with
Tripoli." 2

1 Sen. Exec. Jour., II. 38.

1 Memoirs of John Quincy Adams, I. 434.

THE TREATIES OF THOMAS JEFFERSON 159

A study of the proceedings of the Senate with
reference to this treaty discloses the extent to which
personal feeling, party politics, and the activities of
the Senate in its legislative capacity may determine
its action upon treaties. When submitted, Decem-
ber 11, 1805, the treaty was referred to Smith of
Maryland, Tracy of Connecticut, and Worthington
of Ohio, who considered it a week and then reported
a resolution of advice and consent to ratification.1
A few days later Tracy, the minority member of
the. committee, submitted a resolution which re-
flected the feelings of those senators who were
dissatisfied with the management of the entire
matter. . This resolution, which with slight altera-
tions was adopted three days later, is quoted as
introduced both because it indicates the nature of
the opposition to the ratification of this treaty and
because it is an excellent example of the wide range
of information which the Senate has always felt it
proper to demand from the executive:

Resolved, That the President of the United States be,
and he is hereby, requested to cause to be laid before
the Senate, the instructions which were given to Mr.
Lear, the Consul General at Algiers, respecting the
negotiations for the treaty with the Bey and Regency
of Tripoli; which treaty is now before the Senate for
their consideration; and, also, the correspondence of the
naval commanders, Barren and Rodgers, and of Mr.
Eaton, late Consul at Tunis, respecting the progress of
the war with Tripoli, antecedent to the treaty, and re-
specting the negotiations for the same; and whether the
wife and children of the brother of the reigning Bashaw
of Tripoli, have been delivered up, pursuant to the stipu-
lation in said treaty; and what steps have been taken to
1 Sen. Exec. Jour., II. 3, 4, 9.

160 THE SENATE AND TREATIES

carry the said stipulation into effect; and also, to lay
before the Senate any other correspondence and informa-
tion, which, in the President's opinion, may be useful to
the Senate, in their deliberations upon said treaty.1

After a delay of two weeks Jefferson responded
to the general demand for information in two
messages on the subject. One was addressed to
both Houses of Congress and was an explanation
of the cooperation of the United States and Hamet
Caramalli against Tripoli. It also laid before the
legislature an application for assistance from our
former all}7, or shall we say cooperator, who at
this time was finding it difficult to live as a sovereign
prince upon a "pension of 150 cents per day."

The other message was to the Senate in its ex-
ecutive capacity, and stated that so far as the
papers which had been asked for were available
they were laid before it.3 The reading of these
papers consumed the remainder of the session and
occupied three hours on the day following.4 After
debate covering two days, on motion of Bradley of
Vermont, both messages were referred to a select
committee composed of Bradley, Wright, Baldwin
of Georgia, Smith of Maryland, and Tracy of Con-
necticut. Of these Tracy was the only Federalist,
while Bradley, Smith, and Baldwin were among the
leaders of the Republicans in the Senate.5

1 Sen. Exec. Jour., II. 12.

2 Caramalli's petition to the people of the United States, in
Lyman, Diplomacy of the United States, II. 391, n.; Annals of Con-
gress, 1805-1806, pp. 48-50.

3 Sen. Exec. Jour., II. 14.

4 Memoirs of John Quincy Adams, I. 382-383.
* Sen. Exec. Jour., II. 14-15.

THE TREATIES OF THOMAS JEFFERSON 161

If the actions of a body of men are any index to
their sentiments, it is fairly evident that this com-
mittee doubted the sincerity of Jefferson's state-
ment that he had laid before the Senate all papers
which could assist them in passing judgment on
the treaty and the claims of Caramalli. For on
the twentieth they secured the passage of a resolu-
tion requesting him to transmit copies of eight par-
ticular documents, which they described in great
detail.1 Two weeks later the desired papers, or
extracts therefrom, were submitted with a state-
ment that the latter contained everything relating
to the case of Caramalli to be found in the original
documents.2

After this the treaty was discussed upon several
occasions, but no further action was taken until
Bradley of the committee brought in a resolution
to postpone further consideration until next session;
to request the President in the meantime to as-
certain whether the wife and children of Hamet
Bashaw had been delivered up to him, and if not,
why not; arid to cause this information to be laid
before the Senate. The motion for this resolution
was ordered to lie for consideration.3

In the meantime this same committee had been
carefully considering the application of the aban-
doned cooperator. Three days later Bradley pre-
sented a report and a bill on the subject.4 The

1 Sen. Exec. Jour., II., 17. 2 Ibid., p. 20. 3 Ibid., p. 28.

4 Of the report Pickering wrote to Rufus King as follows: " It is
drawn, substantially by Bradley, and agreed to by all of the corn-
tee. (As Tracy tells me) except Baldwin." Pickering to King,
March 21, 1806. Life and Correspondence of Rufus King, IV. 505.

162 THE SENATE AND TREATIES

report outlined the dealings of the American diplo-
matic and naval officials with Caramalli, presented
his case as that of a much injured individual, and
laid the burden of blame for the whole affair upon
Tobias Lear.1 The bill provided for substantial
relief for the injured ex-Bashaw.

The bill came up for third reading on March 3 1.2
During the several days of debate which followed,
Adams bore the chief burden of battle in opposition
to the bill and to the report of the committee.
The objection seems to have been not so much to
an appropriation for the relief of Caramalli as
against the report which based his claim upon
right and justice, and not upon the liberality and
magnanimity of the- United States. Adams also
defended Lear in the course he had taken in con-
cluding the treaty.3

1 Lear, in fact, was censured both for abandoning the ex-Bashaw
and General Eaton, and for agreeing to pay 160,000 for the American
prisoners. The report severely criticized his course from beginning
to end, and probably expressed with fair accuracy the disgust of
a considerable number of Senators with the treaty and the method
of its negotiation. Annals of Congress, 1805-1806, pp. 185-188.

2 Ibid., p. 210.

3 Of his speech of April 1 against the bill Adams wrote, "The
Invalid bill passed as amended by the committee of the Senate,
with some little debate. I was unable to give it proper attention,
being employed in preparing to meet the bill in favor of Hamet
Caramalli. This was taken up soon after twelve o'clock. Mr.
Bradley, the chairman of the committee which reported the bill,
made a speech of about an hour and a half in support of the report
accompanying the bill and in answer to my yesterday's objections
and those of Mr. Baldwin. I replied in a speech of about the same
length, and endeavored to prove, by recurrence to the documents,
that the report was erroneous in all its parts." Memoirs of John
Quincy Adams, I. 425. This speech was reported in Annals of
Congress, 1805-1806, pp. 211-224. On April 2 Adams recorded

THE TREATIES OF THOMAS JEFFERSON 163

Adams and Sumter and those of their way of
thinking seem to have had the better of the debate,
for Sumter's motion to recommit the bill, report,
and documents prevailed against stern opposition.
The vote was 14 to 15, with four of the six Federalists
present among those who supported Bradley and
his committee.1 A question then arose whether the
reference was to the same committee or to a new one.
The decision of the Senate was a final blow to the
pride of Bradley and his friends, and apparently a
source of considerable satisfaction to Adams, who
that night made the following entry in his diary:

It was finally referred to the same [committee], with
the addition of two new members — General Sumter
and myself. S. Smith, who was on the former committee,

in his diary, "about one the bill in favor of Hamet Caramalli was
again taken up, and Mr. Wright, in a speech of more than two
hours, replied to my yesterday's objections. He abandoned,
however, almost the whole ground taken by the committee, and
placed the claim upon a foundation altogether different. Mr.
Bradley began to propose amendments to his own bill. General
Sumter opposed them, on the ground that the bill was connected
with the report, which he disapproved in all its parts. Senate
adjourned without a decision. Mr. Baldwin and Mr. Sumter came
to me after adjournment, and consulted with me how we could
dismiss the bill so as to show our dissent from the report and yet
do something for the Tripolitan ex-Bashaw who, as all agree, has
some claim upon our generosity. By agreement with them I agreed
to call on Mr. Madison, who, from his knowledge of all the circum-
stances, might suggest something which we may adopt. I called
on him accordingly this evening, and he appeared to be well pleased
that something temporary, like what General Sumter has sug-
gested, should be agreed to. He expressed himself with his usual
caution, but with disapprobation of the report. ..." Memoirs
of John Quincy Adams, I. 426.

1 Annals of Congres*,, 1805-1806, p. 225. Memoirs of John
Quincy Adams, I. 427.

164 THE SENATE AND TREATIES

offered to excuse himself, being now President pro tern.;
but Mr. Tracy, complaining that the feelings of the
committee had been injured, urged Smith not to excuse
himself. So that he agreed still to serve.1

The addition of these two gentlemen could hardly
be expected to increase the harmony of the com-
mittee. Sessions were held on the fifth, the seventh
and the ninth of April, and according to Adams's
descriptions were marked by violence of language
and bitterness of feeling. All of the members of
the old committee but Wright are reported to have
become extremely anxious to postpone the whole
matter until the next session. Adams and his
followers desired to withdraw both the bill and the
report and to make mere temporary provision for
Caramalli. When Adams was not in the Senate,
or meeting with the committee, he seems to have
been interviewing naval officers, or looking up
records for evidence to support his contentions.
But even John Quincy Adams did not have the
gift of omnipresence, and on the ninth, while he was
at the auditor's office examining the state of Mr.
Eaton's accounts Bradley hurried through the Senate
a resolution which postponed further consideration
of the bill and the report until the first Monday of
the following December.2

1 Memoirs of John Quincy Adams, I. 427-428.

2 Adams's explanation of how the accident occurred is worth
reading. The entry for April 9 begins, "I called again this morning
at the Auditor's office, to examine the state of Mr. Eaton's accounts,
and obtained part of the information I want. This, however,
delayed me so that I could not attend the committee on the bill in
favor of Hamet Caramalli. I got to the Capitol about twenty
minutes after the hour at which the Senate meets and found that

THE TREATIES OF THOMAS JEFFERSON 165

In the midst of this bitter fight in legislative
sessions over the report on the negotiation and the
treaty, and the bill for Caramalli's relief, the treaty
itself was brought up again for consideration by the
Senate in its executive capacity. It will be re-
membered that on March 14, three days before the
introduction of the report on the claims of Cara-
malli, Bradley had introduced a resolution to
postpone consideration of the treaty until the next
session, and for other purposes. On April 7 con-
sideration of this resolution was resumed.1 As
might be expected the proponents of the report
were the opponents of the treaty. At this point
appears . the third ground for opposition to im-
mediate ratification, for Adams reports Bradley to
have finally made "the avowal that the two and a
half per cent additional duty, which by law must
cease three months after the proclamation of peace,
is wanted for other purposes, and is a further in-
ducement to postpone." 2

On the following day the resolution to postpone
was rejected, twenty to ten, "after a long and
animated debate." Tracy and Wright were the
only members of the committee who voted with
Bradley on this question.3 And yet Adams, al-
ways suspicious, still expected that the matter
would be postponed. That night he wrote:

the committee had taken advantage of my absence to report a
postponement of the subject until the next session, which the
Senate had agreed to." Memoirs of John Quincy Adams, I. 432.
Also Annals of Congress, 1805-1806, p. 231.

1 Sen. Exec. Jour., II. 31.

2 Memoirs of John Quincy Adams, I. 431.

3 Ibid; Sen. Exec. Jour., II. 31.

166 THE SENATE AND TREATIES

Yet from the complexion of the votes, I think it will
end in that. The Presidential votes were for postpone-
ment. I mean by this, the men who get in whispers
his secret wishes, and vote accordingly. Hence I con-
clude the Treaty shall not be ratified. And the true
reason is to avoid the discontinuance of the two and a
half per cent.1

Bradley's resources, indeed, had not been ex-
hausted with the defeat of his motion to postpone.
Its rejection was followed by an unsuccessful at-
tempt to make ratification contingent upon the de-
livery of the ex-Bashaw in accordance with the
third article of the treaty.2 On the twelfth, how-
ever, the proposed amendment was voted down,
and in the face of opposition at every step the
resolution to advise and consent to the ratification
of the treaty as signed was passed, 21 to 8.3

Adams's final comments on the proceedings reveal
the tenseness of the struggle. He wrote:

Precisely at twelve I moved to go upon executive
business, and the Treaty with Tripoli was taken up.
Mr. Bradley, who had obtained leave of absence after
Monday next, went away last night. Mr. Wright's
amendment, to make the ratification conditional on the
delivery of Hamet's wife and children, was first debated,
and rejected, twenty to nine. Mr. Smith of Ohio then
moved a postponement to the first Tuesday in December
next; and just at six o'clock P.M. the question on the
ratification was taken and passed — twenty-one to eight.
The debate was very warm, zealous and vehement —
General Sumter and myself in favor of the ratification;
Messrs. Wright, Adair, White, Smith of Ohio, Tracy,
arid Pickering against it. The speeches of these gentle-

1 Memoirs of John Quincy Adams, I. 431 .

J Sen. Exec. Jour., II. 31. » Ibid., pp. 31-32.

THE TREATIES OF THOMAS JEFFERSON 167

men, excepting Smith and Tracy, were as much at me as
to the questions in discussion; to Mr. Tracy and Mr.
Pickering I made no reply. It was seven in the evening
before I got home.1

On the nineteenth Adams again expressed his con-
viction that the desire to continue in operation the
law providing for the "Mediterranean fund" was
the real reason for the opposition to ratification.
He wrote,

The Mediterranean fund, or two and a half per cent,
additional duty, was by the terms of the law to cease
three months after the ratification of the peace with
Tripoli. This was the principal real obstacle to the rat-
fication, but did not eventually prevail. We advised
the ratification last Saturday.2

There seems to be no additional evidence to show
that Adams was justified in his belief that the
desire to continue this augmented duty was at the
bottom of the opposition to the treaty. Certainly
it is hard to believe that Jefferson was secretly in-
triguing for its defeat. The sixty thousand dollars
had been paid; the American fleet in the Mediter-
ranean had been greatly reduced and the failure
of the treaty almost certainly would have caused
the administration much additional expense and
anxiety at a time when all of its energy and re-
sources were needed in other directions; Jefferson
was the last man to fight any one on a question of
national " honor" and would have preferred to have
had his navy ''hauled up" than on the high seas.
But whether Adams was totally or only partially
wrong in his surmises there seems to be little ques-

1 Memoirs of John Quincy Adams, I. 433. 2 Ibid., p. 435.

168 THE SENATE AND TREATIES

tion that the treaty owed its ratification in large
part to his activity — a fact which did not improve
the already strained relations between him and his
party. After the ratification of the treaty Adams
brought in a bill for the temporary relief of Hamet
Caramalli which passed before the end of the
session.1

The Tripolitan treaty of 1805 was the last treaty
to be considered by the Senate for a period of
almost ten years. It has been deemed worth while
to trace in detail the action of the Senate upon it
because it illustrates the operation of the treaty-
making power of the Senate as it was then exercised,
and because it also gives some idea of the complex
forces that work for or against even the most simple
treaty when it is before the upper house.

1 Annals of Congress, 1805-1806, pp. 242, 244, 246, 1106.

CHAPTER VIII

THE GENESIS OF THE SENATE COMMITTEE
ON FOREIGN RELATIONS

BETWEEN December, 1805, and February, 1815,
no treaty was laid before the United States Senate
for its constitutional action. Yet there are few
periods in the history of this country during which
its relations with the governments of Europe played
a greater part in the political, social, and economic
life of the people, or exercised a more potent in-
fluence on the destiny of the nation. For ten years
preceding the Treaty of Ghent, at every session of
Congress a large proportion of the most important
business transacted had to do with French decrees
and British orders in council, with impressment,
with Spanish aggressions on the southern border
with the Barbary corsairs, with embargoes, with en-
forcement acts, with the privileges of foreign min-
isters, with the maintenance of neutrality, with
wars and rumors of wars. Domestic politics turned
on foreign issues; the greatest men in both parties
gave to foreign affairs their first thought and their
gravest attention. It was during this decade, as
crowded with diplomatic strivings and international
activity as it was devoid of international agree-
ments, that the Committee on Foreign Relations of
the United States Senate came into being.

169

170 THE SENATE AND TREATIES

The antecedents of the committee, however,
must be sought in the records of the earliest years
of government under the Constitution.1 The prac-
tice of referring the business of treaty-making to
select committees began with the reception of the
first Presidential message on the subject. During
Washington's administrations, however, there was
no standing rule providing for such reference, and
committees were used when and as the Senate saw
fit — as the convenience of the moment dictated.
But even in these circumstances there appears to
have been a strong tendency to concentrate re-
sponsibility in treaty affairs in the hands of a few
men. During the first eight years of the govern-
ment eighteen treaties with Indian tribes and
foreign nations 2 were submitted to the Senate for
its advice and consent to ratification, and its advice
was sought in the interpretation of one other treaty.
In the consideration of these nineteen treaties the
Senate employed nineteen committees, to which

1 McConachie, Congressional Committees, A Study of the Origins
and Development of our National and Local Legislative Methods,
devotes Chapters VIII and IX to the committee system of the
Senate. The first of these discusses sectionalism as it has been
manifested in the committee, the several methods by which com-
mittees have been chosen, and the relation of the system to political
parties. The second, entitled "Interior Organization," treats of
procedure, majority and minority representation, the organization
of the committees themselves and their relation to the business of
the Senate. Very little attempt is made to trace historically the
rise of the committee system or of any one committee. Harlow,
The History of Legislative Methods for the Period Before 1825, Chs. XII.
and XIII. traces the development of the Standing Committees of
the House of Representatives.

2 This includes additional articles upon which the Senate took
separate action.

171

were referred questions connected with the nego-
tiation, ratification, or interpretation of eleven dif-
ferent treaties. The total membership of these
nineteen committees was sixty-eight, while sixty-six
individuals served in the Senate during these years.
Yet these sixty-eight committee places were filled
by just twenty-four Senators; that is, two more
than a third of the Senate membership did all of
the committee work on foreign and Indian treaties.

Nor do these figures tell the whole story of speciali-
zation and concentration of power in this field. Of
the twenty-four Senators who served on these com-
mittees, five held more than half of the sixty-eight
places. .These five were the most powerful Federal-
ist members of the upper house. Caleb Strong
served on nine committees, Robert Morris on eight,
Rufus King and Oliver Ellsworth on seven each,
and George Cabot on four. Nor is the situation
altered when only those committees which acted
upon treaties with foreign nations are considered.
There were ten such committees, whose member-
ship totaled forty-two, and upon which sixteen dif-
ferent individuals served. The five Federalist
friends' whose names have been mentioned held
twenty-six of these forty-two places. In addition
they were primarily responsible for the Jay Treaty
from the conception of the idea to the ratification
of the completed instrument — and this despite the
fact that the Senate appointed no committee on
this matter.

These facts would seem to lead to the conclusion
that during Washington's administrations there was
a comparatively small group of members to whom

172 THE SENATE AND TREATIES

the Senate regularly intrusted a large part of the
work which devolved upon it in the performance of
its treaty-making functions, and to whom it habitu-
ally looked for guidance in this field. It is evident,
however, that.it did so not in accordance with any
rule or fixed precedent, perhaps not even con-
sciously, but simply because this was the easiest
method of transacting this sort of business. It
was only through succeeding years that the Senate
established a standing committee which assisted it
in the consideration of all problems of foreign af-
fairs in accordance with a regular procedure.

In further tracing the development of this com-
mittee, attention must be given not so much to
the activities of the Senate in the negotiation and
ratification of treaties, as to the manner in which
the upper house performed its more genuinely
legislative functions. During the first twenty-five
years of its 'existence it considered measures having
to do with foreign affairs more frequently in legis-
lative than in executive session. And it is an in-
teresting fact that the Foreign Relations Committee,
which to-day is usually thought of as a committee
primarily for the . consideration of treaties, really
grew directly out of the legislative rather than the
executive activities of the Senate.1

1 It should be noted that during the whole of the period under
consideration Senate committees were chosen by ballot, a plurality
of votes electing. In December, 1805, John Quincy Adams ob-
served, in his diary: "As our committees are all chosen by ballot
the influence and weight of a member can very well be measured
by the number and importance of those of which he is a member."
He added, "In this respect I have no excitements of vanity." Mem-
oirs of John Quincy Adams, I. 329.

SENATE COMMITTEE ON FOREIGN RELATIONS 173

As has been indicated in the case of treaties, in
no sense was there a standing committee to which
all business involving foreign relations was regularly
referred. In many instances important matters of
this sort were acted upon by the Senate without
the assistance of any committee, and lengthy and
weighty communications from the Executive ex-
plaining the labors of our diplomatic representatives
abroad frequently were read and discussed on the
floor without any suggestion that they be referred
to any smaller body of Senators. Frequently
select committees were raised to consider particular
problems, and with rare exceptions they went out.
of existence with the solution of those problems.
In a few instances, however, such a committee
might be continued throughout a session, either be-
cause the business referred to it was not more quickly
concluded, or because new references of matters
more or less germane to the original subject were
made to it from time to time. It is in these ex-
ceptional instances that are to be found the earliest
steps in the evolution from the temporary, select
committee on some specific question, to the standing
committee on foreign relations to which all business
concerning foreign affairs invariably was referred.

The first committee of this exceptional character
existed during the third session of the first Congress.
In his annual message, delivered December 8, 1790,
Washington called the attention of Congress to
the distressed condition of American commerce in
the Mediterranean, and recommended that measures
be devised for its relief and protection.1 A week

1 Annals of Congress, 1789-1791, II. 1730.

174 THE SENATE AND TREATIES

later the Senate ordered that "Messrs. Langdon,
Morris, King, Strong, and Ellsworth be a committee
to consider that part of the President's speech which
refers to the commerce of the Mediterranean."
The form of this order is worthy of note, because
it was in this manner that the Senate in later years
raised the committees which developed into the
Committee on Foreign Relations. In fact, the entire
standing committee system of the Senate grew out
of the reference of particular parts of the annual
messages to select committees. This practice, how-
ever, did not become general until after 1797.

The particular committee here under discussion
continued in active existence throughout the session,
and possessed a greater number of the character-
istics of the later standing committees than did any
committee raised for ten years afterwards. To it
was entrusted all of the business concerning Ameri-
can captives in Algiers, the protection of American
trade in the Mediterranean, and our commercial
treaty with Morocco.2 Each matter was referred as
it arose, and the Senate usually named the com-
mittee as that " appointed on the 15th day of
December to consider that part of the President's
Speech which relates to the commerce of the
Mediterranean. ' '

At the beginning of the next session of Congress
six committees were appointed to consider particular
matters of business mentioned in the President's

1 Annals of Congress, 1789-1791, p. 1735.

2 Ibid., pp. 1740-1741; 1744, 1749, 1753, 1763, 1773-1776;
Compilation of Reports, Sen. Com. For. Rels., IV., 5-6; Sen. Exec.
Jour., I. 72, 78.

SENATE COMMITTEE ON FOREIGN RELATIONS 175

address, but with the possible exception of one on
consuls and vice-consuls, none of these had to do
with treaties or foreign relations.1 Shortly after-
wards, however, a petition asking that Congress
reimburse private individuals who had ransomed an
American captive at Algiers was referred to a com-
mittee with the same personnel as the Algerine
committee of the preceding session, except that
Butler was substituted for Ellsworth. During the
remainder of the session all business pertaining to
Algiers was referred to this group.2 At the same
tune, however, other matters concerning our re-
lations with foreign nations were referred to other
select committees, so that in neither session did
there exist a body which with any degree of accuracy
could be called a committee on foreign relations.

The non-existence during this period of any such
committee may be admirably illustrated by a re-
currence to the proceedings of the Senate during
the first session of the third Congress. During this
session of 1793-1794 the situation was tense between
the United States and France, England, and Spain,
and much of the tune of Congress was occupied
with foreign affairs. On December 5, 1793, Wash-
ington communicated a message with a great mass
of papers upon French-British-American relations.
These were soon followed by a similar communica-
tion upon Spanish affairs. On January 15 addi-
tional papers revealing the situation between the
United States and France were sent in, and on the

1 Annals of Congress, 1791-1793, pp. 24-25.

2 Ibid., pp. 26, 29, 41; Compilation of Reports, Sen. Com. For.
Rels., VIII. 6; Sen. Exec. Jour., I. 91.

176 THE SENATE AND TREATIES

day following a message with further documents
touching the same subject. A week later extensive
extracts from the dispatches of our minister at
London were given to Congress, and on the next day
the Senate passed a resolution requesting Wash-
ington to lay before it the correspondence of our
minister at Paris with the French Government and
with the Department of State. During February,
March, and April other communications on foreign
relations were received from the President. Yet not
one of these messages was referred to a committee,
and during the entire session only two committees
were raised that had anything to do with foreign
affairs.1

During the administration of John Adams little
conscious progress was made in the development of
a standing committee on foreign relations. Pos-
sibly for the very reason that during these years
the attitude of the United States toward France,
England, and Spain was the paramount, or at least
the most spectacular issue of national politics, the
Senate preferred to act directly in foreign affairs.
The nearest approach to a foreign relations com-
mittee was made during the long and momentous
session which began on November 13, 1797. At
the opening of the special session of the preceding
summer Adams had recommended the strengthen-
ing of the navy as a measure of precaution against
further trouble with France.2 In his first annual

1 Annals of Congress, 1793-1795, pp. 14-15, 19, 31, 32, 37, 38, 55,
56, 62, 80; Am. State Papers, For. Rels., I. 141-243, 247-288, 309-
311, 312-314, 315-323.

2 Richardson, Messages, I. 233-239.

SENATE COMMITTEE ON FOREIGN RELATIONS 177

address he again urged that every exertion should
be made for the protection of our commerce — and
that the country should be placed in a suitable
posture of defense.1 Two weeks later the Senate
ordered that "Messrs. Goodhue, Laurance, Tracy,
Bingham, and Gunn, be a committee to take into
consideration that part of the President's speech,
which recommends some measures being adopted
for the security and protection of the commerce
of the United States; and to report thereon by bill
or otherwise." 2 During the seven months of this
session scarcely a day passed that these five men were
not engaged in considering one or more measures
having to do with, or arising out of our relations
with France. Almost all of the measures of de-
fense and offense that arose out of the French
quarrel either originated with them or passed through
their hands. To this committee was referred the
message in which the President set forth the flagrant
violations of American neutrality by the French
privateer Vertilude, after that vessel had sunk a
British merchantman in Charleston harbor. They
received for consideration Adams's pessimistic com-
munication of March 19 — which declared that
there was small chance of our envoys accomplish-
ing the objects of their mission, and recommended
energetic measures of defense. In this committee
originated the bills by which the Senate proposed
to cope with the situation, and to them were re-
ferred also those measures which were sent up from
the House. On June 21, 1798, they presented the

1 Richardson, Messages, I. 250-254.

2 Annals of Congress, 1797-1799,|l. 475.

178 THE SENATE AND TREATIES

bill declaring the French treaties to be void and of
no effect. All told, they reported eight Senate bills
and received for consideration seven House bills
concerning measures affecting our relations with
France, each of which they piloted through its
course in the Senate. In addition, they reported
one resolution and considered two Presidential mes-
sages which were referred to them.1

Yet despite this activity, a careful study of the
proceedings of the session reveals how far this group
was from being a committee on foreign relations, or
even on French affairs. It also demonstrates con-
clusively that at this time no such committee existed,
or was considered to exist. Of the eight messages
with which Adams laid before Congress the cor-
respondence of our unfortunate envoys to France,
and other documents of like nature, only two were
referred to this committee. The other six were
considered by the Senate as a whole, and not one
of them was given to any committee. In most cases
the message and accompanying documents were
ordered to be printed, and then were acted upon
directly by the Senate as it saw fit.2

It was almost at the end of Jefferson's second ad-
ministration, during the memorable special session
of 1807-1808, that the natural tendency of the
Senate to follow the lead of a relatively small group
of men in the transaction of a particular sort of

1 Annals of Congress, 1797-1799, I. 497-498, 505-506, 523-525,
529, 540, 542-543, 548, 571-573, 585-586, 590-591, 597, 604, 609;
Am. State Papers, Far. Rds., II. 116-119, 152.

2 Annals of Congress, 1797-1799, I. 516, 517, 555, 571, 581, 585-
586; Am. State Paper*, For. Rels., II. 150-151, 153-163, 169-182,
185-188, 188-199, 199-201.

SENATE COMMITTEE ON FOREIGN RELATIONS 179

business gave rise to a real, although not a recognized
standing committee on foreign relations. During
the session the following matters, dealing directly
with British relations or with measures made neces-
sary by them, were either referred to or reported
from select committees: so much of the annual
message as related to the recent outrages of British
armed vessels within the jurisdiction of the United
States, and to the legislative provisions which might
be expedient as resulting from them; Jefferson's
embargo message; the embargo bill; the enforce-
ment act, sent up from the House; the House bill
to continue the act to protect American commerce
and seamen from the Barbary Powers; Jefferson's
message submitting the British orders in council
of November 11, 1807; the supplemental non-
importation act from the House; a plan from the
President for an increase in the army; the House
bill supplementary to the embargo; the message
submitting the papers concerning the Leopard-
Chesapeake affair; the Monroe-Pinckney negotia-
tion, and the correspondence upon the subject of
the rejected treaty, and all of the correspondence
with reference to the negotiations with France;
the bill authorizing the President to suspend the
embargo under certain conditions; a report re-
viewing the condition of our foreign relations and
recommending a continuance of the existing policy;
a supplementary embargo bill; and, finally, House
amendments to this bill.1
An examination of these measures at once dis-

1 Annals of Congress, 1807-1808, I. 19, 34, 50-53, 63-64, 78, 79,
104, 127, 151, 153, 173-174, 178, 186, 361-371, 378.

180

closes a certain unity in all of them; all are directed
to a common purpose. It might be expected, then,
that they would have been referred to one standing
committee — say upon British relations and national
defense. Or, they might have been divided into
two groups, one including those bearing directly
on British relations, and the other those having
to do with measures of defense. As has been said,
however, each was referred to a select committee
raised on that one subject. But, and here is the
interesting development, all of the eleven com-
mittees created were composed of a very small
number of men — men who were leaders in the
upper house. The extent to which this concentra-
tion of control was carried is indicated by an ex-
amination of the make-up of the committees.
John Quincy Adams served upon every one of them,
and was chairman of one; General Samuel Smith
of Maryland upon ten of the eleven, and was ^chair-
man of seven; Anderson of Tennessee upon five,
and was chairman of two ; Bradley of Vermont upon
five; Mitchell of New York, and Gregg of Pennsyl-
vania upon three; Giles of Virginia upon two, and
was chairman of one; and Gaillard, Sumter, Hill-
house, and Milledge upon one each. The forty-
three committee places were held by just eleven
men, and of the eleven four sat upon only one
committee.

Thus, although formally the Senate appointed
eleven select committees, each independent of the
others, yet the sum total of these bodies in member-
ship practically amounted to a standing committee
of eleven members, or, if the four men serving on

SENATE COMMITTEE ON FOREIGN RELATIONS 181

just one committee be eliminated, of seven. In
this instance, as in many others to be found in the
study of the procedure of legislative bodies, the
fact preceded the form; the institution, a standing
committee on foreign relations, was gradually com-
ing into existence before it was formally recognized
and named.

From 1807 on, the development of the committee
took on a more obvious form. As has been inti-
mated, it finally grew out of the custom of referring
to select committees given subjects mentioned in
the annual messages. Such a committee was raised
on so much of Jefferson's last annual message as
concerned our relations with the Barbary powers.1
A year later Madison's message set forth the critical
condition of the relations of this country with Great
Britain and Spain, and with it the President sub-
mitted to Congress diplomatic correspondence show-
ing the situation with reference to these nations.2
On the day following its delivery, Giles, of Virginia,
submitted the following resolution for consideration.3

Resolved, That so much of the message of the President
of the United States as respects the relations existing be-
tween the United States and Great Britain and France,
with the accompanying documents, be referred to a select
committee, with instructions to examine the same and

1 Annals of Congress, 10th Cong. 2d. Sess., 1808-1809 p. 19.

2 Richardson, Messages, I. 473-477.

3 William Branch Giles was one of the most prominent of the
Republican Senators during this entire period. He played an
influential role in the action of the Senate in foreign relations, and
served upon many of the committees appointed on the subject.
His career is traced carefully, but without inspiration in, Anderson,
William Branch Giles: A Study in the Politics of Virginia and the
Nation from 1790 to 1830 (Menasha, Wisconsin, 1914).

182 THE SENATE AND TREATIES

report thereon to the Senate; and that the committee
have leave to report by bill, bills, or otherwise.1

The resolution was adopted by the Senate, and Giles,
Pope, Bradley, Goodrich, Leib, Sumter, and Gil-
man were chosen to be the committee.2 This com-
mittee, or its leaders, all through the session played
a predominant part in the haphazard efforts of the
politicians in the Senate at once to stave off a war
with England and to safeguard American interests,
so far as was consistent with economy, Republican
principles, and their own personal political ambi-
tions. It was this committee that reported Giles's
famous resolution, verbally castigating His Britannic
Majesty's minister, Francis James Jackson, for the
imputations of bad faith which he had cast upon
the government, and pledging to the executive the
support of Congress in repelling his insolence. At
the same time it brought in a bill to prevent the
abuse of the privileges and immunities enjoyed by
foreign ministers in the United States.3 Early in
January the message from the President recom-
mending an increase in the army and the organiza-
tion of the militia was referred to the same com-
mittee. A week later Giles reported for the com-
mittee a bill authorizing the President to man, fit
out, and officer the frigates of the United States.
In this connection the committee had carried on a
correspondence with the Secretary of the Navy,
which was now ordered to be printed. On the last

1 Annals of Congress, 1808-1809, I. 478.

2 Ibid., pp. 478-479.

3 Annals of Congress, 1808-1809, I. 481-482; see also Moore,
International Law Digest, IV. 511-513.

SENATE COMMITTEE ON FOREIGN RELATIONS 183

day of the month Mr. German presented resolu-
tions providing for convoys for American merchant-
men, and this proposition was referred to Giles's
committee. The non-intercourse bill, which came
up from the House and which was intended to re-
place the expiring embargo, was intrusted to another
group, while a House bill providing for the pro-
tection of Mediterranean commerce was passed
without any reference whatever.1 But Giles and
his colleagues participated in the action of the
Senate upon these measures, and, indeed, the com-
mittee exercised a potent influence over the Senate
during this session in all matters pertaining to
England and France.

Early in the session commencing in December,
1810, again upon motion of Giles, the Senate adopted
a resolution in terms identical with the one of 1809
setting up a committee on so much of the annual
message as referred to the relations between the
United States, Great Britain, and France.2 Giles,
Crawford, Anderson, Goodrich, and Pope were
chosen to serve, all except Goodrich being Re-
publicans of national prominence. To these men
were referred petitions of individuals asking to be
relieved from some of the provisions of the Non-
intercourse Act.3 As a matter of fact, however,
the committee was of slight consequence during
this session, because the absorbing subject of in-
terest during the winter of 1810 was that of the
Floridas; and the measures by which the Senate
proposed to bring this territory under the control

1 Annals of Congress, 1808-1809, I. 520, 526, 530-531, 550, 587.

2 Ibid., 1810-1811, p. 16. 3 Ibid., pp. 21, 250.

184 THE SENATE AND TREATIES

of the United States were referred to other com-
mittees. Upon so much of the President's message
as concerned the occupation of West Florida was
raised a committee composed of Giles, Pope, Ander-
son, Crawford, and Bradley.1 This was done upon
motion of Giles, and it is to be noticed that, except
for the substitution of Bradley for Goodrich, the
only Federalist in the other group, the two com-
mittees were identical. In response to a confiden-
tial message from Madison, the subject of East
Florida was taken up in secret session. Three
measures were passed in this connection: an act
authorizing the President to take possession of the
country, a resolution declaring to the world the
position of the United States with reference to this
territory, and a resolution ordering that these acts
be not published without the direction of the Presi-
dent.2 Three committees acted in the transaction
of this business. The first was composed of Clay,
Crawford, Bradley, Smith of Maryland, and Ander-
son; the second of Bayard, Crawford, and Clay;
the third of Anderson, Crawford, Clay, Bradley,
and Smith of Maryland.3 It will be observed, of
course, that the personnel of these committees and
of the two earlier chosen was strictly limited. All
five, in fact, were composed of a small group of the
leading Republicans of the upper house. Yet

1 Annals of Congress, 1810-1811, pp. 16-17.

2 See Hildreth, History of the United States, III. (2d series),
xxiii; Adams, History of the United States, V. xv; Chadwick, Rela-
tions of the United States and Spain, Diplomacy, Ch. VI. It was
in connection with this matter that Pickering was censured by the
Senate for reading confidential papers in open session.

3 Sen. Exec. Jour., II. 176, 182.

SENATE COMMITTEE ON FOREIGN RELATIONS 185

formally each group was a separate, independent,
select committee, bearing no organic relation to any
of the others.

Again, at the beginning of the session of 1811-
1812, so much of the annual message as concerned
the relations between the United States, France, and
Great Britain was referred to a select committee.
Giles, Crawford, Gregg, Franklin, Lloyd, and Pope
were named, Giles being once more the chairman.1

The committee which was appointed a year later
marked in its title an advance towards the form
which later became the accepted one. In his an-
nual message of 1812, Madison had adverted to our
relations with Great Britain, with whom we were
at war, and with France, Denmark, Russia, Sweden
and the Barbary States.2 On the day following,
four motions were submitted providing for the
reference of four of the most important subjects
treated in the message to as many select committees.
The first resolution includes so much of the message
as concerned "our relations with foreign powers,
the Military Establishment of the United States
and volunteers." 3 All four resolutions were
adopted, and Franklin, Campbell of Tennessee,
Taylor, Varnum, Howell, Robinson, and Worthing-
ton were chosen to serve on the first-named com-
mittee. This committee was active throughout the
session, and exhibited more of the characteristics

1 Annals of Congress, 1811-1812, pp. 15-17.

1 Ibid., 1812-1813, pp. 13-14.

3 Ibid., p. 17. The other subjects were: The naval establish-
ment of the United States; American vessels which had arrived in
the United States laden with British manufactures; the revision
of the militia laws.

186 THE SENATE AND TREATIES

of a real committee on foreign relations than had
any of its predecessors. Early in the session a
communication from Madison concerning the at-
tempt which had been made through Jonathan
Russell to bring about a suspension of hostilities
with Great Britain was referred to it as "the Com-
mittee on Foreign Relations." l A few days later
another letter on the same subject was referred to
the "committee who have under consideration so
much of the message of the President of the United
States, of the 4th instant, 'as concerns our relations
with foreign Powers." This matter of nomencla-
ture may be of little importance in itself, but it is
not without interest to observe how the name of
this great committee gradually came into use.
During this and several sessions following, the title
"Committee on Foreign Relations" frequently, in
fact usually, was applied to the body appointed
under the sort of resolution which has been de-
scribed. On the other hand, the committee often
was referred to in other ways — described, rather
than named.

A review of the measures which came before the
committee during this session reveals a slight in-
crease in the specialization of its functions. It
was occupied with fewer matters not bearing directly
on foreign relations, and at the same time the Senate
passed or considered a smaller number of measures
in this particular field without consulting it.2

A conscious step towards the specialization of the

1 Annals of Congress, 1811-1812, 19.

2 Ibid., pp. 18-19, 21, 27, 39, 94, 101, 104, 105, 112, 113, 115,
117, 121.

SENATE COMMITTEE ON FOREIGN RELATIONS 187

function of the committee was made when Congress
met in May, 1813. On the day following the read-
ing of Madison's message, a resolution was intro-
duced providing that so much of it as concerned our
relations with foreign Powers and the military
establishment be referred to a select committee.
At the same time it was moved that the part of
the message relating to the naval establishment be
referred to another committee. The next day, how-
ever, military affairs were separated from foreign
relations, select committees being set up on each of
the three subjects.1 During this session, also, a
still greater homogeneity is to be observed in the
measures considered by the committee, practically
all of the business arising from our troubles with
Great Britain passing through its hands.2 At the
same time, however, a very important part of the
business of the Senate in the field of foreign relations
was being carried on with the assistance of other
groups. Early in the session Madison submitted
to the Senate the nominations of Gallatin, Adams,
and Bayard as peace envoys, along with that of
Jonathan Russell as minister to Sweden.3 The
nominations of Gallatin and Russell were opposed,
largely from political motives, but in the former
case for the ostensible reason that the position was
incompatible with that of Secretary of the Treasury,
and in the latter upon the ground that it was in-
expedient at that time to send a minister to Sweden.
A bitter struggle followed, which resulted in the

1 Annals of Congress, 1813-1814, I, 18-19.

2 Ibid., pp. 25, 31, 36-39, 45, 47, 55, 59.

3 Sen. Exec. Jour., II. 347.

188 THE SENATE AND TREATIES

rejection of both names. The fact of interest is
that in considering the nominations, and in carry-
ing on its struggle with the President over them,
the Senate acted through select committees, rather
than through the group which had been appointed
at the beginning of the session to consider foreign
relations. Not only that, but a comparison of the
personnel of these committees with that of the
Foreign Relations Committee shows that the mem-
bership of the former contained by far the weightier
Senators.1 A few years later neither of these con-
ditions would have existed.

During the second session of the thirteenth Con-
gress, which met in December, 1813, the functions
of the Committee on Foreign Relations possessed
even greater unity, and were of larger importance
than during previous years. An enumeration of the
matters of business coming before it is, perhaps,
the most effective means of setting forth its func-
tions at this time. During the session it had under
consideration the following measures: the message
of the President recommending an embargo, a bill
which it reported in response thereto, and the House
embargo bill which ultimately became law; the bill,
which it reported, prohibiting the importation of
certain articles derived principally from Great
Britain; Madison's message submitting to Congress
the British rejection of Russian meditation, and
Lord Castlereagh's offer to treat for peace directly;
the message recommending the repeal of the embargo

1 Sen. Exec. Jour., II. 347, 352, 354, 395. Adams, History of the
United States, VII. 59-64, presents a most interesting discussion of
this struggle, its outcome, and its political significance.

SENATE COMMITTEE ON FOREIGN RELATIONS 189

and the extension of additional duties for a period
of two years after the war; two petitions on this
subject; the bill for the repeal of the Embargo Act;
a proposal to pass an act prohibiting the exporta-
tion of sheep from the United States; a bill, which
it reported but which failed to pass, prohibiting the
exportation of specie, gold or silver coins, or bullion;
bills providing for the more effectual enforcement of
the Non-Importation Act, and for the return to
their own districts of vessels detained in other dis-
tricts under the terms of the Embargo Act, and,
finally, numerous bills for the relief of individuals
seeking exemption from pains and penalties incurred
by alleged violations of the Non-Importation and
other war acts.1

These measures comprise all of the more important
matters of general business arising out of the foreign
relations of the United States at this time. All
had some bearing on the war with Great Britain,
and all were legislative in their character. But
during this session no business concerning our re-
lations with any other power came before the Senate,
except the appointment of foreign ministers. This
subject, of course, was considered in executive ses-
sion, and no committees were employed in connec-
tion with any diplomatic appointment passed upon
at this time. Thus the Committee on Foreign
Relations had practically a monopoly of the busi-
ness transacted by the Senate within its field.

The special session commencing in September,
1814, offers three points of particular interest in

1 Annals of Congress, 1813-1814, I. 549, 550, 551, 562, 565, 570,
601, 613.

190 THE SENATE AND TREATIES

the history of the committee. The first has to do
with the manner of its choice. Madison's message,
laying before Congress the facts of the military
situation and the needs of the army, the navy, and
the treasury, contained no suggestions on foreign
relations which demanded the immediate attention
of the Senate. Consequently the usual reference to
a select committee of that part of the message which
touched upon such relations was hardly in order,
and at the beginning of the session no such com-
mittee was created.1 On October 10, however,
the President communicated to Congress letters
from the American peace envoys, and four days
later submitted the instructions under which they
were acting. Whereupon the Senate passed a reso-
lution that these documents, together with the
several communications from the President since
the beginning of the session, should be referred to a
select committee. Bibb, Taylor, King, Brown, and
Chase were chosen as the committee, and during
the remainder of the session were usually referred
to as the " Committee on Foreign Relations." As
such they were the organ of the Senate for the
transaction of the same sort of business that had
been assigned to similar committees in years past.2
Such a body might, perhaps, be described as a
quasi-standing committee. It was not created as a

1 Richardson, Messages, I. 547-551. The only parts of the
message which were referred to select committees at this time were
those concerning the militia and military affairs. Annals of Con-
gress, 1814-1815, III. 16, 24, 27.

2 Ibid., pp. 24, 27, 164, 245-250, 260, 269, 270, 275, 278, 280,
294-297.

SENATE COMMITTEE ON FOREIGN RELATIONS 191

standing committee, and, so far as the formal action
of the house went, it was on the same basis as any
select committee. But in everything but name it
certainly possessed the characteristics of the stand-
ing committee, even to that of continuity of member-
ship from session to session.1

On the last day of the session Bibb's committee
brought in a report which is of interest because it
was the first of a type which frequently appears in
the later history of the Committee on Foreign Re-
lations. Soon after Congress had assembled, Madi-
son had communicated to both houses correspond-
ence which had passed between himself and Admiral
Cochrane, in command of the British fleet on the
American station, relative to the devastation which
the British threatened to mete out to American
coast towns in retaliation for wanton destruction
alleged to have been committed by the American
army in upper Canada.2 The incident mentioned
was the burning of York, which later was pointed
to by the British as a justification for the destruc-
tion of the public buildings in Washington and other
outrages of the same nature. The Senate referred
the correspondence to the Committee on Foreign
Relations, and just before adjournment the chair-

1 Bibb, the chairman of this committee, and Taylor, Chase,
and Brown had served on the Foreign Relations Committee of the
preceding session. Also the committee had dropped back to five
members, the size which it had had until the year before, when it
had gone to seven. Rufus King was the only member of the new
committee who had not served on its immediate predecessor —
and no man then in the Senate was possessed of more experience in
the field of foreign relations than King.

2 Am. State Papers, For. Rels., III. 693-695.

192 THE SENATE AND TREATIES

man of this body submitted a report giving the re-
sult of their inquiries, which, it was declared, mani-
fested "to the world that the plea which had been
advanced for the destruction of the American
Capitol and the plunder of private property" was
without foundation.1 As an organ for the formu-
lation of the opinion of the Senate upon matters
concerning the foreign relations of the United States,
the committee has produced some manifestoes which
have been of far-reaching importance in the history
of the nation. Although its report on the " re-
taliating system" as practiced by Great Britain
during the War of 1812 does not rank as an important
state paper, yet it is worth noting because it is the
first product of this sort of activity on the part of
the committee.

The third significant event of the special session
of 1814 was the use of the Committee on Foreign
Relations in executive session in connection with the
proceedings on the Treaty of Ghent. The incident
occurred two days after the Senate had consented
to the ratification of the treaty, when a motion to
remove the injunction of secrecy from the proceed-
ings and to print the documents connected there-
with was referred to the " Committee on Foreign
Relations."2 The reference marks the point at
which this committee, after having come into being
during a decade when no treaties were before the
Senate, began to perform the functions which in-
evitably were to be assigned to it, and in the exercise
of which it was to reach its greatest usefulness and

1 Am. State Papers, For. Rels., 111. 294-296.

2 Sen. Exec. Jour., II. 621.

SENATE COMMITTEE ON FOREIGN RELATIONS 193

power. Hitherto it had been a legislative com-
mittee; it had been used almost exclusively for the
transaction of legislative business; no allusion to
it is to be found in the executive journal. From
this time on, its most important business was to
be transacted in executive session, and every treaty
laid before the Senate was to be considered by it.
At the beginning of the session of 1815 the usual
reference of the several parts of the annual mes-
sage was made, and it was not until a year later,
December, 1816, that the Committee on Foreign
Relations became the first standing committee of
the United States Senate.1 On the day following
the reading of Madison's last annual address,
Nathan Sanford of New York submitted thirteen
resolutions, each referring a certain part of the mes-
sage to a select committee, with leave to report by
bill or otherwise. On the next day, however, Sena-
tor Barbour of Virginia introduced a resolution pro-
viding that it should be one of the rules of the Senate
that eleven standing committees, which were named,
should be appointed at each session. After dis-
cussion during several days, the resolution was
passed on December 10, the Committee on Foreign
Relations heading the list. Three days later Bar-
bour, Mason, King, Dana, and Lacock were chosen
to be members of the committee.2

1 Annals of Congress, 1815-1816, pp. 19, 20. Committees were
chosen to consider those parts of the message concerning foreign
affairs, the militia, military affairs, naval affairs, finance and a
uniform national currency, manufactures, roads and canals, and a
national seminary of learning within the District of Columbia.

2 Annals of Congress, 1816-1817, pp. 18-22, 30, 32. The other
committees named were these on finance, commerce and manu-

194 THE SENATE AND TREATIES

Thus was established the Committee on Foreign
Relations of the United States Senate. Along
with the ten other committees made permanent at
the same time, it had gradually come into exist-
ence during the decade and more of stress and
strain which preceded the conclusion of the War
of 1812. During the earlier years of the govern-
ment, treaties and foreign affairs generally had
been referred to select committees occasionally
but in accordance with no particular rules of
procedure. An increasing pressure of business, a
pressure which became heavy during the war,
demanded a greater efficiency of the Senate. The
demand was met by a specialization of function
-by the development of a system of standing
committees which practically came into existence
some time before it was formally made a part
of the organization of the Senate. This specializa-
tion developed first in the field of foreign relations,
and as at this time the business in this field was
almost wholly legislative in its nature, the Com-
mittee on Foreign Relations developed as a legis-
lative committee. With the consideration of the

factures, military affairs, the militia, naval affairs, public lands,
claims, the judiciary, the post office and post roads, and pensions.
All of the members of this first Standing Committee on Foreign
Relations were leaders in the Senate and in the nation. Harbour
was a member continuously from 1816 until 1824, the last session
before he left the Senate to become Secretary of War. He was
chairman in 1816, 1817, 1820, 1822, 1823, and 1824. Nathaniel
Mason was a member of the committee for twelve years, and was
thrice chairman. Except for one session, Rufus King served from
1815 to 1823. S. W. Dana served only during the session of 1816,
while Abner Lacock was a member for three years. King and Dana
were the Federalist members.

SENATE COMMITTEE ON FOREIGN RELATIONS 195

message and documents on the Treaty of Ghent
its executive functions began, and it became the
organ of the Senate for the transaction of executive
as well as legislative business within the realm of
foreign affairs.

CHAPTER IX

THE SENATE AND TREATIES AT THE END OF
THE FORMATIVE PERIOD

THE procedure followed by the Senate in its
action upon the Treaty of Ghent departs in no im-
portant particular from the norm which had be-
come established by 1805. The struggle between
Madison and the upper house over the appointment
of Gallatin, and their differences upon the propriety
of recess appointments which were not to fill con-
stitutional " vacancies," concern the appointing
more directly than the treaty-making powers of
the Senate. In finally confirming the appointment
of commissioners to negotiate treaties of peace and
of commerce with England, a treaty of commerce
with Russia, and one of commerce with Sweden,
no formal effort was made by the Senate to as-
certain in detail what it was proposed to embody in
the agreements.1

When the Treaty of Ghent was laid before the
Senate in February, 1814, that body accepted it
with what may, perhaps, be described as eagerness.
The instrument was submitted on the fifteenth,
and the President's statement that, "the termina-
tion of hostilities depends upon the time of the

1 Sen. Exec. Jour., II. 346, 348, 349, 351, 353-355, 384, 388-390,
451^54.

196

END OF THE FORMATIVE PERIOD 197

ratification of the treaty by both parties," 1 led the
Senate to expedite its consideration. The message,
the treaty, and the accompanying documents were
read, and by unanimous consent the treaty was
read a second time, after which General Smith in-
troduced a resolution giving the advice and consent
of the Senate to its ratification. Rufus King, how-
ever, interposed with a motion that the President
be requested to lay before the Senate all the in-
structions given to the envoys, together with all
correspondence and protocols connected with the
negotiation which they had not previously received.
The adoption of King's resolution held up further
consideration of the treaty until the next day, when,
upon the receipt of the documents asked for, the
resolution of advice and consent was passed without
further delay.2

During the first session of the fourteenth Congress
the two treaties which were acted upon by the Senate
were considered under procedure which seems to
have changed from that provided for by the rules
which had been adopted in 1801 only in the employ-
ment of the committee on foreign relations. In
the first executive message of the session Madison
submitted the commercial convention with Great
Britain, which had been concluded the preceding
July,3 and the treaty of peace with Algiers, which
had been signed at the end of June. Both of the
treaties and the documents which had accompanied

1 Sen. Exec. Jour., II. 618-619. It seems not unlikely that the
necessity of speedy action led the Senate to deal with the question
directly, and without the assistance of a committee.

2 Ibid., pp. 619, 620. 3 July 3, 1815.

198 THE SENATE AND TREATIES

them were ordered to be printed for the use of the
Senate, under an injunction of secrecy — action
which was almost invariably taken from this time
on immediately after the receipt of a treaty by the
Senate. On the following day the British treaty
was referred to the committee on foreign relations,
which shortly afterwards reported a resolution of
advice and consent. With slight modification this
resolution was adopted, only one Senator opposing
ratification. The treaty of peace with Algiers was
not formally referred to the committee on foreign
relations, but the resolution providing for its rati-
fication was introduced by Mr. Bibb, the chairman
of that body, and was passed without opposition.1
The commercial convention with Sweden signed
by Jonathan Russell on September 4, 1816, was
submitted to the Senate early in December.2 Pro-
cedure upon it followed the customary lines, al-
though the Senate gave its consent to ratification,
only upon the condition that three of the articles
be expunged. After first reading, the convention
was referred to the committee on foreign relations,
of which James Barbour of Virginia was then chair-
man.3 Two weeks later Barbour brought in a
report recommending that the treaty be printed in
both French and English, and that a letter from
Russell to the Secretary of State respecting its
negotiation also be printed.4 After the Senate had

1 Sen. Exec. Jour., III. 3, 4, 6-8. On January 2, 1816, on
motion of Bibb, the injunction of secrecy was removed from the
proceedings of the Senate upon the treaties with Great Britain and
Algiers. Ibid., p. 14.

2 Sen. Exec. Jour., III. 60-61. 3 Ibid., p. 61.

4 This report appears in Compilation of Reports, Sen. Com. For.

END OF THE FORMATIVE PERIOD 199

considered the treaty in committee of the whole
upon several different days, Barbour introduced a
resolution providing for its ratification with the ex-
ception of the third, fourth, and sixth articles.
This resolution was adopted on the following day
with only two votes registered in the negative.1

The procedure of the Senate in considering the
four treaties which were before them in 1815
and 1816, thus followed very closely the lines which
had been laid down during the first fifteen years
of government under the Constitution, except in
the use which was made of a standing committee on
foreign relations. Nor has there been any radical
change in Senate procedure since 1816.

THE SENATE AND THE NEGOTIATION OF TREATIES

During this same period an important principle
which had been gradually developing with reference
to another aspect of the treaty-making power
became more firmly established. This was the
principle that the Senate should not attempt to
participate formally in treaty-making until after the
process of negotiation had been completed. Wash-
ington and the earliest Senates had endeavored to
apply a different theory, which the early treaties
with Indian tribes had proved to be unworkable,
and which had gradually been abandoned in prac-
tice, although never formally renounced.

The matter had been threshed out very thor-
oughly in 1806, when the President was asked to

Rels., VIII. 26, under the incorrect date of January 3, 1817. It was
submitted January 3, 1816. Sen. Exec. Jour., III. 68.
1 Ibid., pp. 72, 74-75, 77, 78.

200 THE SENATE AND TREATIES

take certain specific action with reference to British
aggressions on American commerce. The debate
was upon the question of the adoption of the fol-
lowing resolution, the second of three which had
been introduced by a committee of which General
Smith, John Quincy Adams, and Joseph Anderson
were the leading members:

Resolved, That the President of the United States be
requested to demand and insist upon the restoration of
the property of their citizens, captured and condemned
on the pretext of its being employed in a trade with the
enemies of Great Britain, prohibited in time of peace;
and upon the indemnification of such American citizens,
for their losses and damages sustained by these captures
and condemnations; and to enter upon such arrange-
ments with the British Government, on this and all
other differences subsisting between the two nations, and
particularly respecting the impressment of American
seamen, as may be consistent with the honor and interests
of the United States, and manifest their earnest desire
to obtain for themselves, and their citizens, by amicable
negotiations, that justice to which they are entitled.1

In the debate which followed the introduction
of this resolution, some of the ablest students of the
Constitution and most influential Senators of the
day expressed their opinions upon the advisability
of attempting to outline in detail the terms to be
insisted upon by the President in a negotiation with
a foreign nation. All agreed that the Senate would
be within its constitutional rights in passing the
resolution, but great differences of opinion ap-
peared as to the expediency of such action. The
adoption of the resolution was opposed upon the

1 Annals of Congress, 1805-1806, p. 91.

END OF THE FORMATIVE PERIOD 201

ground that it would be disrespectful and officious; l
because by grouping together a number of separate
propositions, each one of which might be difficult
to attain, and requesting the President to " demand
and insist" upon all of them, it gave him only the
alternatives of disregarding the advice of the Senate
or of failing to conclude any treaty at all;2 and
because the adoption of such a resolution would de-
crease the responsibility which the executive ought
to feel for treaty-making.3 Other members urged

1 Smith of Vermont. Annals of Congress, 1805-1806. p. 95.

2 Upon this point Worthington said, "It is not, sir, that I am
opposed to demanding or insisting on our rights; but it is because
I fear the resolution taken together will embarrass the executive
in negotiating a treaty to settle our differences. . . . With so wide
a field of negotiation, with so many important objects to accomplish,
I submit it to the good sense of the Senate, whether it will be proper
to tie up the hands of the Executive in the manner contemplated
in the resolution." Ibid., p. 105. Adair emphasized the same
point, contrasting the general nature of the first resolution with the
specific instructions given in the second, and declaring that the
latter went too far. "It is circumscribing the powers of the Presi-
dent, and tying him down to a particular point. It is making that
the sine qua non, the basis on which alone he is to treat; at least
it is doing this so far as an opinion of the Senate, expressed in this
way, can do it. ... It has been well observed by the honorable
member from Tennessee, that in forming commercial treaties of
this kind, there will be various points to consider, and that it may
not be necessary to contend for strict justice in every punctilio;
arrangements or treaties, when there are existing differences to settle,
must always be a bargain of compromise and forbearance; in one
point we may give a little, that we may gain in another. So it
may turn out in settling our disputes with Great Britain. Why,
then, are we not satisfied with expressing our opinion on the great
principle of right and leave it altogether with our Chief Magistrate
to enter into and point out the details?" Annals of Congress, 1805-
1806, pp. 106-107.

3 Bayard stated this objection as follows: "Mr. President, if
there be any objection to the resolution now before us, it is that it

202 THE SENATE AND TREATIES

the adoption of the resolution on the ground that,
far from being an assumption of power by the
Senate, it was both the right and the duty of that
body to advise the President in this way; 1 on the
ground that it would impress the government of
Great Britain that the United States was a unit in
demanding the redress asked for; 2 and because by

shelters the Executive Government from that responsibility as to
its measures which properly ought to attach to it. The duty pre-
scribed by the resolution is of an Executive nature, and the
President is charged with the care of those interests for which the
resolution provides. By prescribing a course of conduct to the
Executive, we release that branch of government from responsibility
as to the event, and take it upon ourselves." Ibid., pp. 101-102.

1 Anderson set forth this position in the following words: "Let
us examine the language of the Constitution upon this point. The
Constitution says that the President shall have power, by and
with the advice and consent of the Senate, to make treaties. Now,
I contend that the true meaning of this clause is, that the advice
should precede the making of the treaty, and that it was couched
in the language in which we find it, for the purpose of obtaining
the opinion of the Senate as to the principles upon which the treaty
should be made." He then went on to cite the practice during
Washington's time, and to point out that on account of its in-
convenience this mode of taking the advice of the Senate had since
fallen into disuse. "But," he continued, "the latter practise
cannot, or ought not, be considered as condemning the construction
of which I conceive the Constitution is fairly susceptible. Because
the construction given by the first President so immediately after
the adoption of the Federal Constitution must be considered as
proceeding from the true sense and correct opinion which he then
entertained of the respective rights of the treaty-making power."
Ibid., pp. 96-97. Mitchell declared that "In questions touching
our foreign relations, the Senators are declared by the Supreme
law of the land to be the President's counsellors. In urgent and
arduous cases it was not only allowable for them to exercise this
right, but it was their duty to do so." Ibid., pp. 100-101.

2 Bayard favored the passage of the resolution for this reason.
He said, "For my part, sir, I do not consider the resolution as
intended in any degree for the President, but as designed for the

END OF THE FORMATIVE PERIOD 203

it the Senate was sharing the responsibility for the
course of the executive, and giving greater weight
to the President's action.1

These arguments include several of the chief
reasons which have always been advanced for and
against the general principle involved. It cannot
be said, however, that at this time the Senate ex-
pressed any definite opinion upon the abstract
merits of the question. The resolution, to be sure,
was adopted by a large majority, but this ap-
parently was because the Republicans believed that
it would strengthen the President in meeting the
crisis of our relations with Great Britain. The in-
cident, therefore, probably proves no more than
that the Senate believed that, constitutionally, it
possessed authority to participate in treaty-making
at any stage in the process.

Exactly the same point was brought to an issue
soon after the ratification of the Treaty of Ghent.
Immediately after the Senate had accepted the
treaty, Rufus King introduced a resolution which
provided that the Senate should " recommend to,

British Government. ... I do not mean that we should be con-
sidered as offering an empty menace to the British cabinet, but a
demonstration of the union of different branches of our Government
in demanding satisfaction for the wrongs done us. Foreign Govern-
ments calculate much on our divisions, our union will disappoint
these calculations." Ibid., p. 102.

1 Smith of Ohio exclaimed, " What is the object of the resolution?
It is, that this branch of the legislature shall share the responsibility
of employing means to execute the measure proposed. This is
magnanimous, as it is voluntary on the part of the Senate, for
in adopting the resolution we attach a degree of responsibility to
ourselves in the effects to be produced." Annals of Congress, 1805-
1806, p. 110.

204 THE SENATE AND TREATIES

and advise, the President" to pursue negotiations
with Great Britain for the purpose of securing six
different objects, which included the settlement of
all British- American differences, and the recogni-
tion of principles of international law for which the
United States had contended for the past twenty-
five years or more.1 A day or so later, after King
had revised and extended this list, it was referred
by the Senate to the committee on foreign relations.2

1 Sen. Exec. Jour., III. 7.

2 Ibid., pp. 8-9. Negotiations were to be entered into for the
purpose:

"1. Of opening and establishing, on a satisfactory footing, the
navigation, trade, and intercourse between the United States, and
His Majesty's colonies in the West Indies, and on the continent of
America.

"2. Of re-opening to the United States the navigation of the
river St. Lawrence, between their northern boundary and the city
of Quebec; of obtaining to them the navigation of that river be-
tween Quebec and the ocean; and obtaining for the trade of the
United States in that quarter, by the grant of a suitable equivalent,
a place of deposit on either bank of the St. Lawrence, within the
province of Lower Canada.

"3. Of abolishing the duties imposed on goods and merchandise,
exported from His Majesty's European dominions to the United
States, or of reserving to them a right to countervail the same,
by other and adequate duties; and of placing the vessels of both
parties on the same footing, in respect to the amount of drawbacks.

"4. Of agreeing on and establishing adequate stipulations for
the protection of American seamen from British impressment.

"5. Of defining the cases which alone shall be deemed lawful
blockades.

"6. Of enumerating the articles which alone shall be deemed
contraband of war.

"7. Of providing suitable regulations for the prosecution of
neutral trade, with the colonies of the enemy of either party.

"8. Of protecting the vessels and merchandise of each, from
loss or damage by reason of the retaliatory decrees and orders of
either against a third power."

END OF THE FORMATIVE PERIOD 205

Had Monroe been successful in securing the agree-
ment of Great Britain to the eight objects in this
revised list, international law probably would have
been advanced at least a century, and Anglo-
American diplomacy at once reduced to an exchange
of complimentary communications and ornamental
ambassadors. In reporting upon the resolution,
the committee on foreign relations confined their
inquiries to the considerations:

1. Whether there be any circumstances which call
for the proposed advice; and

2. Whether there be not serious objections to the in-
terference of the Senate in the direction of foreign re-
lations.1

In relation to the first branch of the inquiry, it
was the opinion of the committee that the executive
had already exerted every possible effort to ac-
complish the purposes set forth in the resolution,
and that the advice of the Senate would in no way
aid his future exertions.2 Upon this point the
report states:

Is it probable that the proposed advice will aid his
exertions? It can not be presumed that he entertains
any doubt concerning the opinion of the Senate with re-
spect to the interests comprised in the motion, and the
committee do not perceive how the expression of solicitude
on the part of the Senate in relation to the objects about
which no difference of opinion exists can afford any aid
whatever. Every nation in making contracts is supposed
to consult its own interests; and it is believed the history
of the world does not furnish an example of one party
yielding its pretensions in consequence of the disclosure

1 Compilations of Reports, Sen. Com. For. Rels., VIII. 23-25.

2 Ibid.

206 THE SENATE AND TREATIES

of unusual solicitude by the other party. Should, there-
fore, the proposed advice be adopted and made public,
it does not appear that any beneficial effect would be
produced; and if it be kept secret, as is usual in ex-
ecutive business (supposing it to be given by the Senate
as a branch of the executive), it would be wholly nugatory.1

The report then takes up the second proposition,
as follows:

2. The committee having endeavored to show that
the resolution is unnecessary, they proceed to submit
some positive objections to its adoption.

If it be true that the success of negotiations is greatly
influenced by time and accidental circumstances, the
importance to the negotiative authority of acquiring
regular and secret intelligence can not be doubted. The
Senate does not possess the means of acquiring such in-
telligence. It does not manage the correspondence with
our ministers abroad nor with foreign ministers here.
It must therefore, in general, be deficient in the informa-
tion most essential to a correct decision.

The President is the constitutional representative of
the United States with regard to foreign nations. He
manages our concerns with foreign nations and must
necessarily be most competent to determine when, how,
and upon what subjects negotiation may be urged with
the greatest prospect of success. For his conduct he is
responsible to the Constitution. The committee con-
sider this responsibility the surest pledge for the faithful
discharge of his duty. They think the interference of
the Senate in the direction of foreign negotiations cal-
culated to diminish that responsibility and thereby to
impair the best security for the national safety. The
nature of transactions with foreign nations, moreover,
requires caution and unity of design, and their success
frequently depends on secrecy and dispatch. A division
of opinion between the members of the Senate in debate

1 Compilation of Reports, Sen. Com. For. Rels., VIII. 24.

END OF THE FORMATIVE PERIOD 207

on propositions to advise the Executive, or between the
Senate and Executive, could not fail to give the nation
with whom we might be disposed to treat the most decided
advantages. It may also be added that if any benefits
be derived from the division of the legislature into two
bodies, the more separate and distinct in practice the
negotiating and treaty ratifying power are kept, the
more safe the national interests.

The committee are therefore of the opinion that the
resolution ought not to be adopted.1

During the nine weeks that it was before the
Senate this report, the resolution, and the principle
involved were thoroughly discussed.2 Unfortu-
nately the meager entries in the executive journal
give slight indication of the nature of the debates.
In the end, however, the Federalists refrained
from pressing the matter to a vote, and upon mo-
tion of King it was ordered that consideration of
the original motion and the report of the committee
on foreign relations be postponed "till the first
day of June next ' - a non-existent legislative
day.3

The able statement, made in this report, of the
disadvantages inevitably attendant upon a regular
and formal participation by the Senate in the
negotiation of treaties cannot have failed to ex-
ercise a powerful influence in permanently establish-
ing the principle which, in practice, had been acted
upon for more than twenty years. Certainly since
that time the Senate has only occasionally sug-
gested to the President that certain negotiations
be undertaken, or that certain definite provisions

1 Compilation of Reports, Sen. Com. For. Rels., VIII. 24-25.

2 Sen. Exec. Jour., III. 33, 37, 38, 40. 3 Ibid., p. 49.

208 THE SENATE AND TREATIES

be sought in negotiations originated by the
executive.1 '

RATIFICATION OF THE TREATY OF 1816 WITH
SWEDEN AND NORWAY

In connection with the discussion of Lord Har-
rowby's treatment of the proposal of the United
States to ratify the King-Hawkesbury convention
with the exception of the fifth article, it was stated
that, for a long time, the American government
frequently accompanied suggestions for such con-
ditional ratification with explanations of those
characteristics of our constitution which made them
necessary.2 No better example of this practice
can be cited than that furnished by the negotiations
between Sweden with reference to the Senate amend-
ments to the treaty of 1816 with Sweden and Nor-
way.3 Inasmuch as the steps taken by the executive
in the ratification of this treaty also illustrate the
problems which may be imposed by the action of
the Senate upon the President, the Secretary of

1 Crandall, Treaties, Their Making and Enforcement (2d edition),
pp. 73-74. Here are cited a number of instances in which such
action has been taken. See also Lodge, "The Treaty-making Powers
of the Senate," for an interesting discussion of the question. The
occasions upon which the President has of his own accord asked for
the formal advice of the Senate as a preliminary to undertaking
a negotiation are fairly numerous. This, however, puts the matter
on an entirely different footing from that of King's resolution.

2 See p. 156 above.

3 Very little has been published concerning this treaty. Lyman,
Diplomacy oj the United States, I. 453, note, simply mentions its
conclusion and amendment. In Ch. XIII. Lyman gives an account
of our diplomatic relations with Sweden down to 1828. The Treaty
of 1816 was negotiated to replace the treaty of 1783.

END OF THE FORMATIVE PERIOD 209

State, and our diplomatic agents abroad, it is
proposed to trace here the history of the treaty
subsequent to its qualified acceptance by the Senate.1

The three articles rejected by the Senate gave
the United States certain privileges in connection
with the importation of West Indian goods into
Sweden in American bottoms, and allowed Sweden
compensating advantages in the trade between the
Baltic nations and the United States.

The resolution of the Senate was passed in Febru-
ary, 1817,2 not two weeks before Monroe was to
succeed Madison as chief executive. The out-
going President evidently took no action towards
ratifying • the amended treaty, and it was one of
the subjects which claimed the attention of the new
administration. Apparently Monroe left Wash-
ington on his tour through the eastern and western
states without having discussed the treaty with
Richard Rush, temporarily in charge of the State
Department. The matter was forced upon the
attention of the department, however, by the

1 Of the three articles rejected by the Senate, Article 3 provided
that all goods, the growth, produce, or manufacture of the West
Indies, which might be imported into Sweden and Norway in vessels
of those states might also be imported in American vessels at a
rate of duty not more than ten per cent greater than that paid by
Swedish or Norwegian ships. Article 4 stipulated reciprocal terms
with reference to cargoes originating in the countries surrounding
the Baltic, and imported into the United States in Swedish or Nor-
wegian bottoms. Mixed cargoes were especially provided for.
Article 6 provided a means of determining what goods were to be
considered as having been produced in the respective states. These
articles appear in brackets in the treaty as printed in Conventions
and Treaties, II. 1742, et seq.

* Sen. Exec. Jour., III. 78.

210 THE SENATE AND TREATIES

necessity of formulating instructions for Jonathan
Russell, who was in the United States on leave, and
at this time was preparing to return to his post.1

In a letter written on June 25, Rush took the
matter up with the President and discussed at
length the courses of action that lay open to the
executive. He stated:

The new treaty has been adopted with the exception
of the third, fourth, and sixth articles. The two first
relate to the West Indies and Baltic trade, and settle also
the rule of paying duties on a mixed cargo. The sixth
barely prescribes the evidence which is to stamp the
reality of what purports to be the articles of the growth,
produce or manufacture of each country respectively.

As to these three articles, the necessity for any specu-
lative inquiry or opinion upon their nature or probable
operation, is, I presume, at an end. The Senate .has
seen fit to reject them.

The question then is, what do we expect, or what is
it to our interest, or our intention, to ask?

Are we willing to take the treaty stripped of these
three articles? Upon this head I need your opinion.

1 On July 20 Rush wrote to Monroe saying that Russell had
requested that his instructions be sent to Boston by the fifteenth,
but evidently had not been there himself at that time. Rush
wrote, "I hope that my letter of the 25th of June (I think that was
the date) may place this subject before you with sufficient fullness
to enable you to say a word to me, notwithstanding the din that
surrounds you. If left to myself, I should simply instruct Mr.
Russell to have the treaty adopted (should Sweden consent), with
the mere exception of the three articles, making the proper explana-
tion to that court touching their exclusion. But this is a step I
cannot take without your sanction, never having heard the least
opinion from you relative to the treaty." Rush to Monroe, July 20,
1807. Monroe Papers, Division of Manuscripts, Library of Con-
gress, Vol. XVI.

END OF THE FORMATIVE PERIOD 211

If we are the instructions will come within the narrowest
compass.

But will Sweden take it stripped of them? I cannot
see why not, for to be frank, had they stood, it seems to
me they would have been most to our advantage. Mr.
Russell may be better able than any of us to answer the
question.

If Sweden will not thus take it, does the whole treaty
fall to the ground, or have we any modifications to propose,
and what are they? *

The President's solution of the problem appears
in the instructions which Rush drew up and for-
warded to Russell under date of August 14. After
referring to the rejection of the three articles, Rush
proceeded :

The treaty being thus altered by the government,
cannot longer be regarded as the same instrument which
was assented to .by the Government of Sweden. It is
proper, therefore, that it should again be submitted to
that Government with a view to its approbation in the
shape which it now presents. In the event of its being
approved, a new ratification, at Stockholm, will, of course,
become necessary.

In apprizing the Government of Sweden of the ex-
clusion -by this Government of the articles in question
after they had been regularly agreed to by a minister
acting with full powers on its behalf, a task, will devolve
upon you which The President feels a confidence will be
performed with the best discretion and effect which such
a case will allow. The true explanation must be sought
in the principles and structure of the executive branch
of our Government. You are well informed upon this
subject, and will take care to impress the just views
which belong to it upon the Court of Sweden. You will
cause it to be distinctly understood, that it is a funda-

1 Monroe Papers, Division of Manuscripts, Library of Congress,
XVI.

212 THE SENATE AND TREATIES

mental law of our system, that every treaty made by a
minister of the United States, with whatever exact ad-
herence to his powers and instructions and whatever
the nature of its provisions, is still liable, when presented
to the Senate for ratification, to be modified, or even to
be totally rejected. There are already precedents in
our history of a similar exercise of this authority. It
will be familiar to your recollection, that the Treaty of
Amity, Commerce and Navigation between the United
States and Great Britain, entered into at London on the
19th of November, 1794, and signed by the two Pleni-
potentiaries, Mr. Jay and Lord Grenville, had part of
the 12th article relating to the West India Trade after-
wards expunged by this Government, to which Great
Britain subsequently assented. Of this precedent you
will naturally make the fit use. Above, all, you will
give the explicit assurance,1 that the rejection of the
articles must not be interpretated into the least absence
of consideration or respect for the Government of Sweden.
Any such inference, as it would be contrary to the fact
would be painful to The President; and he cherishes the
confident hope that it will not be drawn. On this head
it is The President's particular desire, that your assurances
should take a character of utmost conciliation, as truly
conforming to the spirit by which alone this government
is animated towards the Crown-Prince.

It may be, that Sweden will not accept the Treaty,
diminished as it now is from its former state, under the
mere repetition of the ceremony of ratification. In such
an event it will be considered as null, and you are em-
powered to open the negotiation anew. In forming an-
other Treaty, the instructions heretofore given you in
the letter from the Department of May the 20th, 1816,
will be your guide. It is not seen that any advantage
would flow from this course. If pursued, it must lead,
substantially, to the same result. Yet it will be at your

1 Not unnaturally, the Senate amendments to the King-Hawkes-
bury convention were not mentioned.

END OF THE FORMATIVE PERIOD 213

option even to offer it in the first instance -if you are led
to think that it would be preferred by Sweden, and
much more if there is reason to suppose that the other
course would not be acceded to. It might thus prevent
the dilemma of a refusal.1

These instructions are a revelation of the careful,
tentative manner in which the United States in
1816 was attempting to adjust her diplomatic in-
tercourse to the necessities of her constitution.
The treaty not only had been signed by the Swedish
plenipotentiary, but actually had been ratified by
the King. The greatest care, therefore was to be
taken to assure Sweden that the rejection of three
of the articles which had been agreed upon did not
imply any lack of respect for the Swedish govern-
ment. Evidently it was thought entirely possible
that Sweden would follow the example of Great
Britain and decline to acquiesce in the amendment
of the treaty. The instructions show clearly that
the government felt that in the circumstances such
action could not be justly resented by the United
States, and authorize Russell to accept such a de-
cision and to proceed with the negotiation of a new
treaty. The suggestion that it might be inadvisable
to request Sweden to accept the mutilated treaty
is evidence that the American government realized
that the proposal was not in accordance with the
recognized practice of international intercourse.

Upon his return to Stockholm Russell at once
proceeded to explain the situation to the Swedish

1 Richard Rush to Jonathan Russell, August 14, 1817. MS.
State Department, Bureau Index and Archives, U. S. Ministers,
Instructions, VIII. 145> et seq.

214 THE SENATE AND TREATIES

government, and in December, 1817, he reported
to the Secretary of State his first conversations with
Count d'Engestrom, the Swedish minister of foreign
affairs. These led him to believe that the treaty
would "eventually be accepted with the retrench-
ment made by the Senate." 1 Early in January he
submitted to Count d'Engestrom a written memoir
which officially set forth the facts which he had
been instructed to lay before the Swedish court.2
After a brief correspondence upon the points at
issue,3 the Swedish minister decided that the changes
made by the United States Senate were neither
subversive to the interests of his government nor
derogatory to its honor, and therefore, that the
treaty might be accepted as amended. His formal
notification to Russell of this decision sets forth the
view of the Swedish government in the matter, as
follows :

It is by the express order of the King, his August
Sovereign, that the undersigned has now the honor to
declare to Mr. Russell, that the three articles which the

1 Russell to Adams, December 29, 1817, MS. State Depart-
ment Bureau of Indexes and Archives, Stockholm Legation, J.
Russell, 1812-1813, Vol. I.

1 Russell to d'Engestrom, January 4, 1818, MS. State Depart-
ment, Stockholm Legation, J. Russell, 1812-1813, Vol. I.

3 Under date of January 22 Russell wrote to Adams, "In a
conversation with Count d'Engestrom, on the 3d instant, at which
Count Marnet, who also signed the treaty, was present, I was given
very distinctly to understand that the treaty, as modified by the
Senate, would be accepted by this Government. I was desired,
however, to give a more formal shape to the explanations which
I had offered on the subject that they might be duly submitted to
the consideration of the Prince Royal and of the Council of State."
Russell to d'Engestrom, January 22, 1818, Ibid. See also same to
same, January 12, 1818, Ibid.

END OF THE FORMATIVE PERIOD 215

Senate of the United States has believed ought not to be
adopted, being of no particular interest for Sweden,
and having been proposed only in the belief that they
would be agreeable to the American Government, the
King does not place any importance in maintaining them.
His Majesty accepts and ratifies, consequently, the
treaty as it has been ratified by the Senate, that is to say,
with the exclusion of Articles III, IV, and VI, and con-
sequently he has ordered the undersigned to proceed to
the exchange of ratifications to be carried out in the man-
ner which you suggest, as soon as Mr. Russell shall have
received the ratification of the United States duly signed
by the authorities of that country.1

Russell agreed that the exchange of ratifications
should take place at Stockholm,2 and exchange was
effected on September 25, 1818.3

1 Count d'Engestrom to Russell, January 24, 1818, MS. State
Department, Stockholm Legation, J. Russell, 1812-1813, Vol. I.

2 The reasonable nature of this arrangement is recognized by the
American negotiator in the following excerpt from a report to the
State Department: "You will perceive that, as I suggested in my
letter of the 29th ulto, the exchange of the ratifications is expected
to take place here. I could not very strenuously object to this
course after having been reminded that one ratification, duly exe-
cuted by this Government had already been sent to Washington
and returned hither without effect." Russell to Adams, January 26,
1818. Ibid.

3 Treaties and Conventions Between the United States and Other
Powers, II. 1742.

BIBLIOGRAPHY

BIBLIOGRAPHICAL AIDS

Channing, Hart, and Turner, Guide to the Study and Reading of
American History (revised and augmented edition, Boston, 1912).
Useful in solving bibliographical problems.

A. B. Hart, Manual of American History, Diplomacy, and Govern-
ment (Cambridge, 1908). This manual is useful in the handling
of secondary material, particularly on account of its references to
specific topics.

J. N. Larned, editor, The Literature of American History: a
Bibliographical Guide (Boston, 1902). "A bibliographical guide in
which the scope, character, and comparative worth of books in
selected lists are set forth in brief notes by critics of authority."
This work is of greater usefulness in the evaluation than in the
location of material. There is no separate treatment of any of the
subjects directly under consideration.

J. B. Moore, Digest of International Law (Washington, 1906,
8 vols.) contains a multitude of suggestive references both to second-
ary and source material bearing upon many of the topics under
consideration. It is an invaluable bibliographical aid in this field.

A. B. Hart, The Foundations of American Foreign Policy (New
York, 1901). The concluding chapter, a "Brief Bibliography of
American Diplomacy," so far as it goes, is useful in estimating the
worth of secondary works. The arrangement is topical and each
book cited is briefly described and weighed.

Justin Winsor, Narrative and Critical History of America (Boston,
1886-1889, 8 vols.). In Vol. VII, pp. 461-562, is given an estimate
of earlier works on the wars of the United States, which is of value.
Vol. VIII, pp. 413-478 is devoted to a description of the manuscript
sources of American History, followed by a description of printed
authorities, 1776-1850. The notes to Dr. Angell's article, The
Diplomacy of the United States, Chapter VII, Vol. VII, are critical
and suggestive.

J. S. Bassett, The Federalist System.

217

218 BIBLIOGRAPHY

Edward Channing, The Jeffersonian System. (The American
Nation: A History, Vols. XII and XIII, New York, 1906.) The
critical essays on authorities which form the concluding chapters
of these two works are useful in a study of any subject within the
period covered.

Ben Perley Poore, Descriptive Catalogue of the Government Publi~
cations of the United States, September 5, 1774-March 4, 1881 (Wash-
ington, 1885). Although practically superseded by more recent
guides, Poore is still useful in the location of material to be found
in the public documents. The work is in two parts, the first part
being a descriptive catalogue chronologically arranged, and the
second an index, alphabetically arranged.

Elfrida Everhart, Handbook of United States Public Documents
(Minneapolis, 1910) is a well-arranged work which is of great
assistance in mastering the mysteries of government publications.
Part 1 deals with Congressional Documents, Part 2 with Depart-
mental Publications, and Part 3 with Publications of the Independent
Publishing Offices of the Government.

U. S., Superintendent of Documents, compiler, Check List of
United States Public Documents, 1789-1909. (Washington, 1911.
3d Edition, revised and enlarged.) The arrangement is in accord-
ance with a complicated, but uniform system based upon the or-
ganization of the government. This is the most valuable aid in
finding documentary material; it is the key to the serial numbers.

T. H. McKee, compiler, (Indexes to) The Reports of the Select'
and Special Committees, United States Senate (Washington, 1887) r
barely touches the period treated in this study, as it commences-
with the year 1815.

Van Tyne and Leland, Guide to the Archives of the Government of
the United States in Washington (Washington, 1907, revised edition
by W. G. Leland) is a useful guide to the archives of the State
Department and of the Senate.

A. C. McLaughlin, Report on the Diplomatic Archives of the
Department of State, 1789-1840 (Washington, 1906). This is an
invaluable guide to the student who wishes to use the material in
these archives. It estimates the proportion of material in the
archives which has not been printed to that which has been; it
describes and analyzes, the various series of documents and the
system of indexing for each one; it points out some of the difficulties
in the use of the diplomatic correspondence that are bound to be
encountered by the student who is not thoroughly familiar with the
files of the department.

BIBLIOGRAPHY 219

MANUSCRIPT SOURCES

In the Bureau of Rolls and Library are to be found the originals
of the treaties of the United States. Each treaty is filed in a large
manila envelope containing also the official statement of the action
taken by the Senate with reference to the treaty. This is in the
form of a transcript of the Senate resolution authenticated by the
.signature of the clerk of the Senate. Besides this document, which
is missing in only a few cases, other interesting material throwing
light on the negotiation of a treaty, its reception by the Department,
its ratification, the exchange of ratifications, or some other phase
of its history frequently has been filed. To each treaty is attached
the ratification and the proclamation by the President, authenticated
by the Great Seal of the United States and attested by the signature
of the Secretary of State. The ratification precedes the treaty
itself, and in case of amendment by the Senate the amendments
usually are incorporated in the ratification rather than in the treaty.
The proclamation is bound after the treaty. The treaties on file
are divided into two series, the first comprising the perfected, and
the second the unperfected instruments. Those in each group are
Arranged alphabetically by countries, and chronologically under
each country. The perfected series are numbered from 1 to about
600; the unperfected from A to Z, and then from Al to Zl, and
so on.

The diplomatic correspondence of the United States is filed in
the Bureau of Indexes and Archives. The reader is referred to
A. C. McLaughlin's report on these archives for a description of
this correspondence.1 Most of the material bearing directly upon
the subject in hand during the period under consideration seems
to have been published, in one form or another. The principal
value of this correspondence in studying the action of the Senate
upon treaties lies in the fact that very frequently such action is
explained by the Department in its instructions to the American
•envoy accredited to the other party to the treaty; or the possibilities
of Senate action of a certain sort may be discussed; or the course
generally followed by that body in given circumstances may be
set forth. Frequently such information is unobtainable elsewhere.
In addition, the effect of Senate action upon the government of the
other party to the treaty may be most directly traced in this cor-
respondence.

1 McLaughlin, Report on the Diplomatic Archives of the Depart-
ment of State, 1789-1840 (Washington, 1906).

220 BIBLIOGRAPHY

For the early period the executive files of the Senate contain little
material that is not in print. The file room is on the top floor of the
Senate wing and the records are filed in small steel cases placed in
a filing cabinet. The documents are uncatalogued and unindexed.
Those pertaining to each session are folded into small compass,
tied with tape, and forced into the case in which they belong. Ap-
parently Congress has not seen fit to take adequate measures for
their preservation, or for rendering them available for use. In
addition to material stored in the manner just described there are
numerous chests containing all manner of documents relating to
the executive business of the Senate, the condition of which is such
that its use would be a Herculean task.

The files of the Senate committee on Foreign Relations are
conspicuous by their almost total absence. For the brief time that
the committee existed during the period under consideration there
are none at all, the student being compelled to resort to the official
reports of the committee, and the personal correspondence of its
members. It is interesting to note, however, that until recently
the records of this great committee have received little or no atten-
tion from any one. Until the time of Hawkins Taylor no official
record was kept of the meetings, although for the last twenty years
a brief journal of the proceedings has been preserved. Much of
the most important business done by the committee, however, is
transacted by correspondence between the chairman and the Secre-
tary of State. From time immemorial each successive chairman
seems to have regarded this correspondence as being his own prop-
erty, and has carried away such letters among the files of his personal
correspondence. What has been left has been turned over to the
executive clerk, who has stored it with other documents in the
attic of the Capitol. No attempt has been made to make this
material available for use, either by statesmen or by historical
investigators.1

1 This information was derived from a personal examination of
such files as the committee possesses, and from conversations with
the late Senator Stone and Senators Shiveley, Smith, and McCum-
ber, of the Committee on Foreign Relations, with the clerk of the
committee, and with the executive clerk of the Senate. Pre-
viously to December 20, 1794, the Senate sat with closed doors
in legislative as well as in executive session. The result is that for
the years previous to that da'te the Annals contain no more than a
journal of the proceedings. For the early sessions parts of records
of some executive sessions are included. These are dangerous to

BIBLIOGRAPHY 221

PUBLIC DOCUMENTS

Journal of the Executive Proceedings of the Senate of the United
States of America (Washington, 1828, 3 vols.). These three volumes
cover the period from the commencement of the first, to the ter-
mination of the nineteenth Congress, — 1798 to 1829. They are
journals only, and contain the record of the proceedings of the
Senate in executive sessions and in a few confidential sessions.
Vol. I covers the period from 1789 to 1805, Vol. II from 1805 to
1815, and Vol. Ill from 1815 to 1829.

Annals of the Congress of the United States (Washington, 1834-
1856, 42 vols.). The period under consideration is covered by
volumes 1 to 35. The several volumes are not numbered serially,
but are identified by the name of the congress, sometimes of the
session, and always by the period of time covered. Throughout
the period the reports of the debates are incomplete and fragmentary.
Many of the longer, set speeches were revised by their authors for
publication," or if previously prepared were printed as written.
But the day to day debates are far from being fully reproduced.

Walter Lowrie and Matthew St. Clair Clarke, editors, American
State Papers; Documents, Legislative and Executive, of the Congress
of the United States; Class I, Foreign Relations (Washington, 1832-
1859. Folio, 6 vols., 1789-1828). In these volumes are printed
the annual messages of the Presidents, their special messages upon
foreign relations, and, so far as they were available, the corre-
spondence and other papers on the subject submitted by them to
Congress or to either house thereof; also many reports of Senate
and House Committees, and miscellaneous documents. The
documents are arranged chronologically as transmitted to congress,
except the annual messages, which appear in a chronological series
(for the period 1789-1815) in Volume I. It should be noted, that
the documents which appear in this collection do not comprise all
of the diplomatic correspondence for the period covered. Professor
McLaughlin estimates that not more than one-fourth of the material
in the archives of the Department of State has been printed here.
And he adds, "The materials printed in the State Papers very often
appear only in extract. It is unnecessary to say that, so far as their

use, however, as the account of the proceedings for any one day is
apt to be incomplete, and in some cases no notice whatever is taken
of executive business. In either case there is nothing to indicate
the omission.

222 BIBLIOGRAPHY

importance for diplomatic history is concerned, the omitted portions
are not the least interesting."

Lowrie and Clarke, editors, American State Papers: Class II,
Indian Affairs. In this series of volumes the same thing is done
for the documents illustrating the relations of the United States
with Indian tribes as is done in Class I for those pertaining to the
foreign relations of the nation during this period.

Hawkins Taylor, compiler, Compilation of Reports of Committee on
Foreign Relations, United States Senate, 1789-1901 (Washington,
1901, 8 vols.) The subjects treated in the several volumes are
arranged as follows:

I. Claims of the United States against foreign governments.
II. The same.

III. The same; claims of United States citizens against the

United States; of citizens of foreign governments against
the United States; of consular and diplomatic officers of
the United States against the United States for reimburse-
ment and extra pay.

IV. Mediterranean Commerce; nominations; authorizations to

accept decorations; international exhibitions; miscel-
laneous matters.

V. Tariffs of the several countries; boundary and fishery dis-
putes.

VI. Diplomatic Relations with foreign nations; Hawaiian Islands.
VII. Diplomatic relations with foreign nations; affairs in Cuba.
VIII. Treaties and legislation respecting them; general index.

It is difficult for one who has been compelled to use this collection
to speak of it in terms marked by the restraint imposed by the
amenities of scholarship. Particularly for the early period, the
years previous to 1816, the work can only be referred to as a hodge-
podge of reports selected according to no apparent rules from the
Executive Journals, the Annals of Congress, and Congressional
documents, and arranged upon a system which can be intelligible
to no one but the compiler. Previous to 1816 no Senate standing
committee on foreign relations existed. Yet the compiler of this
work felt free to refer to any committee which made a report on a
subject which pertained to foreign relations as "the Committee on
Foreign Relations," without giving any indication that he was
speaking of a select committee which perhaps had an existence of
twenty-four hours only, and which never had been called "the
Committee on Foreign Relations" by any one but himself. Further,

BIBLIOGRAPHY 223

while he selected for printing many of the committee reports upon
matters concerning foreign relations, other reports he ignored
entirely. And, finally, many of the reports which appear are un-
accompanied by any citations to indicate the source from which
they were taken, nor is there any general explanation which covers
this point. On the whole, this ponderous collection has been
rendered as nearly useless to the scholar as such an imposing mass
of historical material well can be.

J. H. Haswell, compiler, Treaties and Conventions Concluded
Between the United States of America and Other Powers Since July 4,
1776. Containing notes, with references to negotiations preceding the
several treaties, to the Executive, Legislative, or Judicial construction
of them, and the causes of the abrogation of some of them; a chrono-
logical list of treaties; and an analytical index (Washington, 1889).

The reader is referred to the preface of this volume for a descrip-
tion of previous editions of the treaties of the United States.

W. H. Malloy, compiler. Treaties, Conventions, International
Acts, Protocols and Agreements between the United States of America
and Other Powers, 1776-1909 (Washington, 1910. 2 vols. Sen. Ex.
Doc., No. 357, 61st Congress, 2d Session). Also Supplement to
above. Sen. Doc. 1063, 62d Congress, 3d Sess., Garfield Charles
compiler (Washington, 1913).

This collection is better edited than is the Haswell edition
but unfortunately Davis's notes do not appear in this edition.

J. D. Richardson. A Compilation of the Messages and Papers of
the Presidents, 1789-1902 (Washington, 1905).

Senate Manual (Washington, 1918). In addition to the present
standing rules and orders of the Senate, the manual includes Jeffer-
son's Manual, and other useful material.

WRITINGS AND BIOGRAPHIES OF STATESMEN

With the exception of the Monroe manuscripts, in the Division
of Manuscripts, Library of Congress, there is little, if any, unpub-
lished material of this sort which bears upon the subject during the
period under consideration. In the published correspondence,
memoirs, and biographies of the statesmen concerned a considerable
amount of information is to be gleaned. It is apparent, however,
that these men were little interested in matters of procedure, or in
recording facts concerning the development of institutions.

224 BIBLIOGRAPHY

MONOGRAPHS AND SPECIAL STUDIES

S. B. Crandall, Treaties, Their Making and Enforcement (New
York, 1904; 2d edition, Washington, 1916). This work originally
appeared as No. 1, Vol. XXI, Columbia University, Studies in
History, Economics, and Public Law. Part 1 deals with the treaties
of the United States, Part 2 with those of foreign nations, while
Part 3 is given over to a discussion of "The Operation of Treaties."
The book is an historical treatment of the subject, and is based
upon wide research in both published and unpublished sources,
which are fully indicated in numerous footnotes. It contains a
wide amount of information, presented in such form as to be readily
accessible. The second edition is revised and considerably enlarged,
and includes a digest of the decisions of American courts construing
treaties.

C. H. Butler, The Treaty-making Power of the United States
(New York, 1902, 2 vols.) is an extensive description and analysis
of every phase of the treaty power of the nation. It is useful as
a reference work, and in the footnotes presents a vast amount
of material from the public documents, judicial decisions, the works
of publicists, the papers and biographies of statesmen and jurists
and from other sources. Chapter X (Vol. I) on the treaty-making
power and the relations of both houses of Congress thereto, and
Chapter XIII (Vol. II), on the treaty-making power as it has been
exercised with Indian tribes are the parts of the work which bear
most directly upon the subject of this monograph.

J. B. Moore, Digest of International Law (Washington, 1906,
8 vols.) is indispensable to the student of any phase of American
history touching upon diplomacy or international law because it
contains a very large amount of source material not elsewhere
available outside of the archives in Washington, and brings together
the best work of American and foreign authors upon the topics
treated.

J. C. B. Davis, Notes Upon the Foreign Treaties of the United
States, Treaties and Conventions Concluded Between the United States
of American and Other Powers since July 4, 1776 (J. H. Haswell,
editor, Washington, 1889), pp. 1219-1406. "Davis's Notes" are
familiar to all students of American diplomatic history.

Willis F. Johnson, America's Foreign Relations (New York, 1916,
2 vols.). Although deficient in its treatment of the revolutionary
period, this book is, perhaps, the best and most complete exposition
of the subject.

BIBLIOGRAPHY 225

J. W. Foster, A Century of American Diplomacy; Being a Brief
Review of the Foreign Relations of the United Stales 1776-1876 (Bos-
ton, 1900). A. B. Hart declares (Foundations of American Foreign
Policy) that this is the strongest book on American diplomacy since
the Civil War. It is useful in furnishing a general outline of diplo-
matic events.

J. W. Foster. The Practice of Diplomacy: As Illustrated
in the Foreign Relations of the United Stales (Boston, 1906). This
is a thorough work by a diplomat and a scholar. Chapter XII,
concerning the negotiation and framing of treaties, and Chap-
ter XIII, upon their ratification, bear directly upon the subject
of this monograph.

Theodore Lyman, The Diplomacy of the United States (Boston,
1828, 2 vols.), although obviously antiquated, is still useful for the
period covered (1778-1828). It contains considerable original
material.

Eugene Schuyler, American Diplomacy and the Furtherance of
Commerce (New York, 1886) contains little or no material bearing
on the action of the Senate upon treaties, although it gives a fairly
acceptable outline of many of the commercial treaties of the United
States, and the manner of their negotiation.

W. H. Trescot, The Diplomatic History of the Administrations of
Washington and Adams (Boston, 1857) contains some original mate-
rial which throws light upon the action of the Senate on the Jay
Treaty, and devotes rather more space than do most authors to the
activities of the upper house. It is characterized by Bassett (The
Federalist System) as "clear and fair, but not brilliant."

E. S. Corwin, The President's Control of Foreign Relations (Prince-
ton, 1917). Chapter III of this work contains a discussion of the
relations of the President and the Senate in the making, enforce-
ment, and termination of treaties. It is not, however, exhaustive,
from the historical standpoint.

E. S. Corwin, National Supremacy. Treaty Power vs. State Power
(New York, 1913). Except that in the opening chapter the author
discusses the general nature of the treaty-power as conceived of in
the early days of the government, his work has little direct bearing
upon the exercise by the Senate of this power between 1789 and
1817. With reference to the activities of the Senate during later
periods it is of great importance.

Charles H. Burr, The Treaty-making Power of the United States
and the Methods of its Enforcement as Affecting the Police Powers
of the States (Proceedings of the American Philosophical Society,

226 BIBLIOGRAPHY

Vol. LI, Philadelphia, 1912). "The Crowned Essay for which the
Henry M. Phillips, Prize of two thousand dollars was awarded, on
April 30, 1912, by the American Philosophical Society." As its
title indicates, the general purpose of this essay is much the same as
is that of Professor Corwin's. The introductory chapter, which
includes an excellent sketch of the evolution of the treaty clause
of the Constitution in the Federal Convention, will be found valu-
able in any study of the treaty-power.

Henry Cabot Lodge, " The Treaty-making Power of the Senate,"
in A Fighting Frigate, and Other Essays and Addresses (New York,
1902) is a stimulating essay, the purpose of which is to show that
the Senate has the power to participate in the making of treaties
at all stages, from negotiation to ratification, and that they have
exercised this power upon a great many occasions from 1789 to 1902.

Gaillard Hunt, The Department oj State of the United States,
Its History and Functions (New Haven, 1914). This is an able
work by an accomplished scholar who is particularly well qualified
to write upon this subject by long service in the Department. The
book is useful in many ways to those who study any activity with
which the Department of State is connected.

INDEX

Abrogation of Treaties of 1778,
and Consular Convention
with France, 114-118.

Adams, Henry, History of the
United States, 137, 139, 146.
152, 157, 184, 188.

Allen, G. W., Our* Navy and
the Barbary Corsairs, 109,
157.

Adams. John, President of Sen-
ate. 1 ; treaties of administra-
tion of, 107-129; message to
Senate, in re French treaty,
1799. 122; little progress in
development of foreign re-
lations committee during ad-
ministration of, 176.

Adams, John Quincy, nomi-
nated as minister to Prussia
and confirmed after opposi-
tion, 112; committee, 147, 180,
200; and treaty of 1805 with
Tripoli, 156-168; committee
membership, 172; opposition
to as envoy to England, 187;
Memoirs of John Quincy
Adams, 24, 86, 143, 147, 160.
162. 163, 164, 166, 167, 172.

Advice, of Senate, Washington
seeks as to course with Great
Britain, 1790, 59; precedent
of Jay treaty as to obliga-
tion of President to seek, 79-
80; that new negotiations be
undertaken, 80-81 ; upon in-
terpretation of treaty of 1788
with France, 102; sought and
given as to carrying out
debate upon propriety of to
treaty with Algiers, 102-103;
President, 200-208.

Advice and consent of Senate,
obligation of Senate to give
to ratification of treaties con-

cluded by President, 6-10; to
French consular convention
of 1788, 4-10; to ratification
of treaties with Indian tribes
to be given in same form as
to that of foreign treaties, 12-
16; to ratification of treaty
with six nations refused by
Senate, 15-16; coextensive
with power to "make
treaties" and applies to en-
tire process of treaty-making,
17 ; to be sought by President
by personal conference, 18-
20; given in advance to pro-
posed treaty with Creek
Indians, 1789, 21-26; given in
advance to proposed addi-
tional article to Creek treaty
of 1789, 27-28; given to ratifi-
cation of Creek treaty of
1789, 29 ; given in advance to
proposed treaty with Chero-
kees, 1790, 30-32; to ratifica-
tion of Cherokee treaty, 33-
34 ; withheld to ratification of
treaty with Wabash and
Illinois Indians, 36-37; to ad-
ditional articles, Indian
treaties. 39; that President
negotiate treaty redeeming
Algerine captives, 43; that
President 'suspend such nego-
tiations, 43-44; privilege of
members to record dissent to
resolution of, 29, 71 ; sought
and given in advance to pro-
posed treaty with Spain, 1792,
54-56; to ratification of Jay
treaty, 74-83; effect of prece-
dent of Jay treaty upon seek-
ing in advance, 79-80 ; to rati-
fication of treaty of 1796 with
Creek Indians, with reserva-

227

228

INDEX

tion, 99; when sought in ad-
vance created obligation to
consent to ratification, 105;
to French treaty of 1800
with amendments, 121 ; to
ratification, of convention of
1802 with Spain. 130-132; to
Louisiana purchase treaties,
142; to ratification King-
Hawkesbury convention, with
amendment, 148.

Algiers, treaty with, 1795, 40-
53; Senate consulted as to
executing treaty with, 102;

Amendment, first suggested by
President in case of treaty
with Wabash Indians, 1793.
35; of Jay treaty, 75;
authority of Senate to sug-
gest. 77, 79; of Jay treaty,
77^82; to treaty does not re-
quire re-submission if other
party ratifies, 83-86; to treaty
of 1796, with Creek Indians
failed. 98-99; of treaty of
1797 with Algiers. 108-112; of
King-Hawkesbury conven-
tion, 147; Great Britain ob-
jects to, on principle, 150-
151; of treaties by U.S. Sen-
ate contrary to contemporary
international practice, 154-
156.

Anderson, Joseph, committee
membership, 180, 183, 184,
200; upholds power of Sen-
ate to participate in negotia-
tion of treaties, 212.

Attorney General, opinion of as
to consultation of Senate in
advance of negotiation, 38.

Baldwin, Abraham, committee,
131, 134, 160.

Barbour, James, committee,
193; first chairman of
Foreign Relations committee,
194, 198.

Barlow, Joel. U.S. Consul Gen-
eral at Algiers, negotiates
treaty of 1797 with Tunis,
108.

Bassett, J. S., The Federalist
System, 58, 217.

Bayard, James A., opposition to
as envoy to England, 187;

. opposition to advice to
President, 201-202.

Bibb, W. W. committee, 190;
resolution. 198.

Bingham, William, on commit-
tee, 108, 111, 112, 177.

Bonaparte, Joseph, minister
appointed by Napoleon to
treat with American envoy,
1799.

Bonaparte, Xapoleon, and
treaty of» 1800 with France,
116-117, 121, 123.

Border Posts, retention of by
England, 61.

Bradley, S. R., committee, 131,
134, 160, 180, 182, 184; and
treaty of 1805 with Tripoli,
160-167.

Brown, James, committee, 190.

Brown, John, committee, 52.

Brown, W. G., Life of Oliver
Ellsworth, 63, 74. 75.

Burr, Aaron, chairman of com-
mittee on treaty with
Wabash and Illinois Indians.
35; opposition to ratification
of Jay treaty, 75-83; motion
to rescind order of secrecy
concerning Jay treaty, 89.

Burr, C. H., The Treaty-mak-
ing Powers of the United
States and the Methods of
Its Enforcement as Affecting
the Police Powers of the
States, 2. 11, 225.

Butler, C. H., The Treaty-mak-
ing Power of the United
States, 11, 224.

Butler. Pierce, chairman com-
mittee on Algerian captives,
44, 59; seconds motion rec-
ommending new negotia-
tion with Great Britain, 80;
introduces resolution to re-
quest President to obtain
modification Louisiana Pur-
chase treaty, 143.

INDEX

229

Cabinet, advice of as to con-
sulting Senate in advance of
negotiations, 38; advice of as
to re-submission of Jay treaty
to Senate, 83-86.

Cabot, George, vote, 36; com-
mittee, 33, 48 50, 52, 55; one
of group responsible for Jay
mission, 63-73.

Campbell, G. W., committee,
185.

Caramalli, Hamet, and treaty of
1805 with Tripoli, 157-168.

Carmichael, William, cammis-
sioner to negotiate treaty
with Spain, 54-55.

Chadwick, F. E., The Rela-
tions of The United States
and Spain; Diplomacy, 54,
130, 184.

Channing, Edward, The Jeffer-
sonian System, 137, 157, 218.

Check and Balance theory, 51.

Cherokee Indians, treaty of
1791 with, 30-34.

Chief Justice of United States,
selected as special envoy to
England, 66-67 ; opposition to
appointment of as envoy to
England, 69.

Claims, convention of 1802 with
Spain concerning, 130-136; no
claims ever adjusted under it,
133.

Clay, Henry, committee, 184.

Coleraine, treaty with Creeks
signed at, 1796, 95.

Committee, use of system in
treaty business during Wash-
ington's administrations, 105;
use of in consideration of
convention with Spain, 1802,
136; of foreign relations, Sen-
ate, genesis of, 169-195 (see
foreign relations, commit-
tee) ; development of system
in Senate, 194.

Congress, appropriation by to
ransom Algerine captives, 44;
appropriation for . Moroccan
treaty, 53; kept informed of
British-American affairs by
Washington, 61 ; acts of said

by France to be in contra-
vention of treaty of 1788,
101 ; informed of inadequacy
of appropriation for executing
treaty with Algiers, 102; de-
clares treaties of 1777 and
consular convention abro-
gated, 115; special session of
to consider Louisiana Pur-
chase, 136.

Congress, of Confederation, and
French consular convention
of 1788, 4-9; rejected Jay-
Gardoani treaty, 56.

Congress, Continental, Indian
treaties signed under author-
ity of, 1; authorized conclu-
sion of consular convention of
1788 with France, 4, 6-10.

Consul, First, of France, soe
Bonaparte, Napoleon.

Correspondence, diplomatic,
called for by Senate, 112, 159-
160; submitted to Senate,
131, 134, 160-161.

Council of Advice, Senate
thought to be, upon treaties
and appointments, 6; Senate
acts in capacity of, 44-45 ;
Washington's attitude to-
wards Senate as, 59; treated
as, 79; Washington's expe-
rience showed that Senate
could not well be, 103-104.

Crandall, S. B., Treaties, Their
Making and Enforcement, 83,
85, 208. 224.

Crawford, W. H., and story
that Washington swore that
he never would go to Senate
again, 23-24; committee, 183,
184, 185.

Creek Indians, treaty of 1789
with, 16-29; treaty of 1796
with, 95-100.

Dana, S. W., committee, 193.

Davie, William R., appointed
Minister to France in place
of Patrick Henry, 115.

Davis, J. C. B., Notes Upon
Foreign Treaties of the
United States, 4, 53, 115 130.

230

INDEX

Dayton, Jonathan, committee,

119.
Deas, W. A., American charge

at London, and ratification of

Jay treaty, 86-87,
D'Engestrom, Count, Minister

of Foreign Affairs, Sweden,

214-215.

Dexter, Samuel, committee, 112.
Duponceau, P. S., 134.

Eaton, William, and treaty of
1805 with Tripoli, 157-159.

Ellsworth, Oliver, vote, 36; on
Senate committee, 41, 48, 50,
52, 101. 174; one of group
responsible for Jay mission,
63-73; Chief Justice, ap-
pointed Minister to France,
1799, 115.

Famin. Joseph. negotiates
treaty of 1797 with Tunis,
108.

Foreign Affairs, Secretary of,
and French consular conven-
tion of 1788, 4-10.

Foreign Relations, Senate Com-
mittee on, group similar to,
73; genesis of. 1805-1815,
169-195; antecedents during
Washington's administration,
170-172; grew out of legisla-
tive activities of Senate, 172;
members chosen by ballot,
172; development from select
committees, 174-175; non-ex-
istence of during Washing-
ton's administrations, 175 ;
little conscious development
during John Adams's admin-
istration, 176; no such com-
mittee, 1798, 178; real but
not recognized during second
Jefferson administration, 179;
development of after 1807,
181 ; referred to as such, 186 ;
monopoly of business of
foreign relations, 189; a
quasi-standing committee,
191 ; report of on burning
New York, 191-192; and

Treaty of Ghent, 192; first
standing committee of Sen-
ate. 193; summary of de-
velopment of, 194-195.

Formative Period, Senate and
treaties at end of, 196-215.

Fort Hamar, treaties of, first
treaties to be submitted to
Senate, 1, 4; considered by
Senate, 11-16; one of them
the first treaty to fail of rati-
fication by Senate, 15-16.

Foster, Dwight, vote, 36.

Foster, J. W., A Century oj
American Diplomacy, 58, 61,
115; 135, 225.

Foster, J. W., The Practice oj
Diplomacy, 9, 225.

Fox, Charles James, and ratifi-
cation of amended King-
Hawkesbury convention, 152.

France, consular convention of
1788 with, 4-10; interpreta-
tion of treaty of 1788 with,
101-102; Senate amendments
to treaty of 1800 with, 114-
126; seizure and condemna-
tion of American ships in
Spanish ports by, 131 ; Louisi-
ana treaty with, 136-145.

Franklin, Benjamin, concluded
consular convention of 1788
with France, 4.

Franklin. Jesse, committee, 185.

Gaillard. John, committee, 180.

Gallatin, Albert, opinion upon
simultaneous submission of
treaty to Senate and House,
140; opposition to appoint-
ment of as envoy to England.
187; The Writings oj Albert
Gallatin (Henry Adams ed.),
141.

Georgia, relations between
State of, and Creek Indians,
95-100 ; legislature requests
federal government to con-
clude treaty with Creeks, 95;
opposition of to Creek treaty,
97-98, 100; reservation to pro-
tect rights of, 99.

INDEX

231

German, Obediah, presents res-
olution, 183.

Ghent, Treaty of, 192, 196-197,
203.

Gibbs, George, Memoirs of the
Administrations oj Washing-
ton and John Adams, 64, 68,
90.

Giles, W. B.. committee mem-
berships, 180, 182, 183, 184,
185.

Gilman, Nicholas, committee,
182.

Goodhue, Benjamin, commit-
tee. 112, 177.

Goodrich, Chauncy, commit-
tee, 182, 184.

Great Britain, and relations
with Indians of Northwest,
38-39; relations with leading to
Jay treaty, 58-65; and ratifi-
cation of Jay treaty, 86-87;
and King-Hawkesbury con-
vention, 145-156; Treaty of
Ghent with, 192, 196-197, 203;
commercial convention of
1815 with, 197; proposed de-
mands upon, 1806, 200; pro-
posal to settle differences
with, 203-204.

Greenville, Treaty of, 37-38.

Gregg, Andrew, committee
memberships, 180, 185.

Grenville, Lord, Secretary of
State for Foreign Affairs, and
ratification of Jay Treaty,
86-87.

Gunn, James, vote 81, intro-
duced resolution advising
further negotiation with
Great Britain after conclu-
sion of Jay treaty, 81; com-
mittee, 177.

Hamilton, Alexander, suggested
and considered as special en-
voy to Great Britain, 65-67;
withdraws name and suggests
Jay, 67; assists in drafting
instructions to Jay, 72-73; ad-
vised amendment of Jay
treaty, 75-76; opinion as to
re-submission of Jay treaty,

84-85; opinion on treaty of
1800 with France, 118, 121;
Works oj Alexander Hamil-
ton (Constitutional edition),
67, 73, 76, 90, 119.

Hamilton, J. C., History of the
Republic of the United
States of America, 64, 67, 70,
73, 76, 121, 127.

Hammond, George, Minister of
England to United States,
38, 61-62.

Hancock, John, Governor
Massachusetts, communica-
tion on British relations, 59.

Harlow, R. V., History of
Legislative Methods for the
Period Before 1825, 170.

Harrowby, Lord, and ratifica-
tion of King-Hawkesbury
convention, 149-156.

Hawkesbury, Lord, and King-
Hawkesbury convention, 145-
146.

Hawkins, Benjamin, committee,
59.

Henry, Patrick, appointed
Minister to France, 1799,
115.

Hildreth, Richard, History of
the United States, 157, 184.

Hillhouse, James, committee,
180.

Hosmer. J. K., History of the
Louisiana Purchase, 137.

House of Representatives, and
appropriation for proposed
Algerine treaty, 44, 46-51 ;
kept informed of negotia-
tions, 51-52; discussion by
Jefferson's cabinet of pro-
priety of submitting of
treaty to before Senate ac-
tion, 139-142.

Howell, J. B., committee, 185.

Humphreys, F. L., The Life
and Times of David Hum-
phreys, 157.

Indemnity, demanded from
France, 1799, 115-121.

Indian Tribes, two treaties
with first treaties to be sub-

232

INDEX

raitted to Senate, 1, 4;
treaties of Fort Harmar with,
11-16; advice and consent to
treaties with to be given in
same form as to foreign
treaties, 12-16; other treaties
with during Washington's ad-
ministrations, 21-39 ; impor-
tance of treaties with in
development of treaty-mak-
ing process. 103; See also,
Creek Indians, Cherokee
Indians, Six Nations.

Ingersoll, Jared, 134.

Instructions to Minister, obliga-
tion to ratify treaty conclu-
ded in accordance with, 7-10,
32-34; advice of Senate asked
as to, prior to negotiation of
Creek treaty, and given, 22-
23, 27-28; to General Put-
nam, Senate not consulted
concerning, 35 ; to Carmichael
and Short, 56; to Pinckney,
57; to Jay not submitted to
Senate, 70-51; drafted, 72-
73; to Adams upon treaty of
1799 with Prussia called for
by Senate, and submitted; to
Ministers to France 1799,
115-116; to Ministers to
France submitted to Senate.
118; to Monroe for amend-
ment of King-Hawkesbury
convention, 148; to Lear de-
manded by Senate, 159-161;
to Jonathan Russell, 211.

Interpretation, of treaty with
France, Senate called upon to
assist in, 101-102.

Izard, Ralph, committee, 46,
101.

Jackson, Francis James, Min-
ister from Great Britain, 182.

Jackson. James, committee, 124,
131, 134.

Jay, John, Secretary for For-
eign Affairs, and consular
convention with France, 1788,
4-9 ; suggestion for settlement
of St. Croix River boundarv

dispute, 60 ; Chief Justice, de-
cided that he should be
envoy to England, 66-67;
decides to accept, 67; confir-
mation opposed, 69-71; con-
firmed, 71. The Corre-
spondence and Public Papers
of John Jay, 68, 74.

Jay Treaty. 58-94; placed in
hands of President, 74;
amended, 75-83; Senate con-
sents to ratification, 82-83;
ratified by England, 86-87;
proclaimed, 88; influence of
upon development to treaty-
making powers of Senate,
summary, 91-94; article ex-
planatory of, 107.

Jay-Gardoqui treaty, 53.

Jefferson, Thomas, and con-
sular convention of 1788 with
France, 4, 8; messages on
Mediterranean commerce, 41-
43 ; opposes independence
from House, 47; report, 50;
believed that Senate should
be consulted, 55; his in-
structions to Carmichael and
Short, 56; commercial re-
port, 62; considered as possi-
ble special envoy to England.
66; criticises French treaty of
1800, 118; and exchange of
ratifications of French treaty,
1799, 123 ; Senate and treaties
of, 130-168; and Louisiana
Purchase, 136-145; The Writ-
ings of Thomas Jefferson
(Definitive edition), 41, 46,
47, 85, 113, 118; (Ford edi-
tion), 140.

Johnson, Samuel, committee,
59.

King. C. R., Life and Corre-
spondence of Rujus King, 64.
65. 66, 67, 70, 71, 72, 76, 119,
120, 129, 147, 161.

King. Rufus, on Senate com-
mittee, 41, 44, 46, 52, 101, 174,
190; one of group responsible
for Jay mission, 63-73; and
ratification of Jay treaty, 76;

INDEX

233

and King-Hawkesbury con-
vention, 145-156; ^ member
committee on Foreign Rela-
tions, 1815-1823, 194 n.; mo-
tion by, 197; resolution, 203-
207.

King-Hawkesbury Convention,
145-156.

Knox. General Henry, lays
Indian treaties before Senate,
1 ; report of concerning con-
clusion of Fort Harmar
treaties with Indian tribes,
12, 13, 14; delivered message
from President to Senate, 14 ;
first Secretary of War under
new government, 14.

Lacock, Abner, committee, 193;
committee on foreign rela-
tions three years, 194

Langdon,, John chairman com-
mittee on Mediterranean
trade and Algerine captives,
41, 42-43; member committee,
44, 52, 55, 174.

Laurence, John, committee, 177.

Law, international, rule of that
principle bound to ratify
concluded by plenipotentiary
acting in accordance with his
instructions, 7, 9-10.

Leib, Michael, committee, 182.

Lear, Tobias, and treaty with
Tripoli, 1805, 157-159,' 162.

Livingston, Edward, 134.

Livingston, Robert R., minister
to France, 137.

Lloyd, James, committee, 185.

Lodge, Senator H. C., opinion
of as to proper role of Senate
in treaty-making during
period of negotiation, 17-18;
The Treaty-Making Powers
of the Senate, 17, 156; Life
and Letters of George Cabot,
64; Oliver Ellsworth, 64.

Logan, George, committee, 124.

Logan Act, alleged violation of
by five New York lawyers in
connection with Spanish con-
vention of 1802, 133-135.

Louisiana, Purchase of, 136-145.

Lyman, Theodore, The Diplo-
macy of the United States,
109, 113, 115, 157, 160, 225.

McConachie, L. G., Congres-
sional Committees, 170.

McKean, J. B., 134.

McLaughlin, A. C., Western
Posts and British Debts, 61.

McMaster, J. B., History of the
People of the United States,
58, 74, 84. 87, 90, 115, 130,
135, 137, 157.

Maclay. William, The Journal
of William Maclay (ed.
1890), 1. 23, 27.

Mason, Nathaniel, committee,
193, 194n.

Madison. James, resolutions
proposing retaliation, 62 ;
opinion of upon simultaneous
submission of treaty to Sen-
ate and House, 139; The
Writings of James Madison
(Hunt edition), 74,

Marshall, Humphrey, 80.

Mason. Stevens T., violates
order of secrecy imposed bv
Senate, 90-91.

Mediterranean, American trade
in, 41-42; British blamed for
depredations upon, 61 ; treaty
of 1797 with Tunis to protect,
and regulate, 108-112, 172.

"Mediterranean Fund," con-
nection of with ratification of
treaty of 1805 with Tripoli,
158. 165-167.

Merry, Anthony, 151.

Milledge, John, committee
180.

Mississippi River, right to
navigate sought from Spain.
53-57.

Mitchell, S. L., committee
memberships, 180 ; upholds
Senate's prerogatives as coun-
cil of President, 202.

Monroe, James, minister to
France, 137; and attempts to
secure British ratification of
King-Hawkesbury conven-
tion, 148-153; and treaty of

234

INDEX

1816, with Sweden and Nor-
way, 209-215; Writings of
James Monroe, 149, 150

Moore, J. B., Digest of Interna-
tional Law, 2. 6, 9, 58, 115,
118, 130, 137, 154, 182, 217.

Morocco, treaty of 1787 with,
41-43, 52-53,

Morris, Gouverneur, mission to
England, 59-61 ; committee,
118, 174; Diary and Letters
of Gouverneur Morris, 120,
122, 127.

Morris. Robert, committee, 41,
44, 46, 48, 55, 100; associated
with group responsible for
Jay mission. 63-73.

Most Favored Nation Clause,
treaty of 1797 with Tunis
amended by Senate to avoid
conflict with, in other treaties,
109-112.

Murray, W. V., appointed min-
ister to France, 1799, 115.

Negotiation of Treaties, Senate
requests and receives infor-
mation concerning negotia-
tion of French consular con-
vention of 1788, 5, 6, 7;
proper role of Senate in, as
understood in 1789, 16-29;
Senate participation in illus-
trated by French treaty of
1800, 124-126; Senate has
authority to suggest, 142-145;
Senate and, 199-208.

Nichols, W. C., committee, 119,
147; warns Jefferson, 139.

Nomination, presidential right
of under constitution, 17; of
Jay to be special envoy to
England, 68-71 ; of commis-
sioners to negotiate treaty
with Creek Indians, 97; con-
trol of Senate over as a
means of influencing treaty-
making, 113-114, 137, 188, 196.

Ocmulgee River, 95.
Oconee River, 95.
Ogg, F. A., The Opening of the
Mississippi, 137.

Patterson, William, committee,.
59.

Philadelpftia, frigate, 158.

Phillips, U. B., Georgia and
States Rights, 21, 95, 96.

Pickering, Timothy, Secretary
of State, gives instructions to
Ministers to France, 115-116;
declares treaty with France,
1800, is reprobated, 119.

Pinckney, Charles, negotiate*
convention of 1802 with
Spain, 130-132.

Pinckney, Thomas, Minister to
England, nominated as en-
voy extraordinary to Spain,
56

Pope, John, committee, 182,
183, 184, 185.

Power, treaty-making, Consti-
tutional grant of, 2, 16-17;
exercised as necessity de-
manded in crisis, 63; de-
velopment of as influenced by
Jay treaty, 91-94; guarded
well by Senate, 135; under
Constitution explained to
Swedish government, 211-215.

Precedents, importance of
those set during Washing-
ton's administration, 2-3; as
to consultation of Senate
prior to negotiation. Jay
treaty, 79.

President of United States, pro-
cedure when he shall com-
municate with Senate in writ-
ing, or personally, 20; rela-
tions of to Senate and House
in concluding treaties re-
quiring money, 44-51 ; Senate
committee confers with, 46;
relative powers of Senate
and, in negotiation of trea-
ties, 16-18; personal consul-
tation with Senate, 18-26;
keeps House and Senate
equally informed of nego-
tiations. 51 ; relations of, with
Senate and House in Anglo-
American negotiations, 1790-
1796, 58-94; effect of Jay
treaty upon obligation to

INDEX

235

•consult Senate prior to nego-
tiation of treaties, 77-80;
proper relations with Senate
during negotiation, 198-208.

Printed, treaties usually ordered
to be by 1797, 107-108.

Procedure, rules for upon trea-
ties, adoption by Senate of
first standing rules on, 126-
129; of Senate for treaty
business, 1814, 197-199.

Prussia, treaty of 1799 with,
112-114.

Putnam, General Israel, con-
cluded treaty with Wabash
and Illinois Indians, 1793.

Randolph, Edmund, Secretary
of State, and Jay treaty, 68,
72-73, 84-85.

Ratification, obligation of Sen-
ate to consent to ratification
of treaties concluded by
President, 6-10; of French
Consular Convention of 1788,
4-10; of treaties with Indian
tribes to be in same form as
that of foreign treaties, 12-
16; of treaty with Six Na-
tions refused by Senate, 15-
16; of Jay treaty with
amendment, 82-83 ; condi-
tional, does not require re-
submission of amendments to
'Senate, 83-86; of amended
Jay treaty by Great Britain
without protest, 86-87; of
Trench treaty of 1800 ad-
vised, with amendments. 119-
121 ; in unusual form referred
to Senate, 123-124; of treaties
with amendments declared by
Cheat Britain to be contrary
to law of nations and not to
be tolerated, 149-153 ; of trea-
ties with amendments, an in-
novation necessary under
American system, 154-156; of
treaty of 1816 with Sweden
and Norway, with amend-
ments, 208-215.

Rawle, William, 134.

Read, Jacob, 80; committee,
108, 112.

Reconsideration of questions
concerning treaties, Senate
adopts rule concerning, 129;
of decision to consent to
ratification of Spanish treaty,
1802, 131.

Reeves, J. S., American Diplo-
macy Under Tyler and Polk,
145.

Rejection, by Senate of treaty
with Wabash and Illinois
Indians, 36; of three articles
of convention of 1816 with
Sweden and Norway, 209.

Reservation, to ratification of
Creek treaty of 1796, 99.

Richardson, J. D., A Compila-
tion oj the Messages and
Papers oj the Presidents,
1789-1902. 21, 41, 52, 60, 74.
96, 136, 137, 176, 177, 190, 223.

Robinson, Jonathan, committee,
185.

Rush, Richard, Secretary of
State, and treaty of 1816 with
Sweden and Norway, 209-
215.

Russell, Jonathan, opposition
to as minister to Sweden,
187; and commercial conven-
tion of 1816 with Sweden, 198.

St. Croix River Boundary, 60,
107.

San Lorenzo el Real, treaty of,
53-57.

Schouler, James, History oj the
United States, 121. 157.

Secrecy of Senate, Washington
held low opinion of, 46; upon
Jay treaty violated, 88-91 ; in-
junction of, 198.

Sedgwick, Theodore, commit-
tee, 108.

Sherman, Roger, committee,
33.

Short, William, commissioner
to negotiate treaty with
Spain, 54-55.

Session, executive, Senate met
in, 42; Secret, 184.

236

INDEX

Six Nations, treaty with, 12-16,

Smith, Israel, opposes advice to
President, 200-201.

Smith. John, upholds Senate's
power to advise negotiation
of treaties, 203.

Smith, Samuel, committee, 159,
160, 163. 180, 184, 200; and
treaty of 1805 with Tripoli,
159-167; resolution by, 197.

Spain, treaty of 1795 with, 53-
57; convention of 1802 with,
130-136.

Special Session, of Senate to
consider Jay treaty, 74.

State, Secretary of, report on
capture of American seamen
by Algerines. 41 ;. on com-
merce in Mediterranean, 41 ;
on Algerine prisoners, 42-51,
passim; personal appearances
in Senate, 104.

Strong, Senator Caleb, vote, 36 ;
on Senate committee, 41. 44,
59, 101, 174; one of group
responsible for Jay mission,
63-73.

Sumter, Thomas, and treaty of
1805 with Tripoli, 163-167;
committee, 180-184.

Sweden, opposition to nomina-
tion of J. Q. Adams as
minister to, 112; opposition
to sending a minister to, 187;
commercial convention of
1816 with, 198-199. and Nor-
wav, ratification of treaty of
1816 with, 208-215.

Taylor, John, committee, 185,
190.

Tazewell, Henry, opposed con-
firmation of J. Q. Adams as
minister to Sweden, 113-114.

Tracy, Uriah, committee, 124,
159, 160. 164, 165, 177; resolu-
tion concerning treaty of 1805
with Tripoli, 159-167.

Trescott. W. H., The Diplo-
matic History of the Admin-
istration of Washington and
Adams, 58, 70. 86. 225.

Tripoli, proposed treaty with,

45; treaty of 1796 with, 107;

treaty of 1805 with, 156-168.
Tunis, proposed treaty with,

45; treaty of 1798 with, 108-

112.

Varnum, J. B., committee, 185.
Vertitude, French privateer, 177.

War, Secretary of, appears be-
fore Senate in connection
with Indian treaties. 14;
appearance of in Senate in-
dicates personal relations be-
tween President and Senate,
104.

Washington, George, relative
powers of President and Sen-
ate in treaty-making during
administration of, 1-2; opin-
ion that treaties with Indian
tribes should be ratified in
form, 14-15; opinion upon
nominations and treaties, 18-
20; seeks advice of Senate
personally, 21-26; during
negotiation of Creek treaty,
27-28; seeks advice of Senate
prior to negotiation of Chero-
kee treaty, 30-31 ; suggests
ratification of treaty with
amendment, 35 ; and treaty of
Greenville, 37-38; and treaty
with Algiers, 1795, 40-51, pas-
sim; has no confidence in
secrecy of Senate, 46; asks
Senate advice, 1790, 59; and
Jay mission, 58-74; early
attitude towards Senate as
council 'of advice in foreign
affairs, 59; face set against
war with England, 62; con-
sults Cabinet as to re-sub-
mission of Jay treaty, 83-86;
summary of treaty-making
during administrations of,
103-106; The Writings of
George Washington (Ford
ed.), 18 19. 20. 83, 84.

Watson, James, committee, 112.

West Florida, boundary be-

INDEX 237

tween United States and, 53, mittee, 159, 185; opposition

184. to advice to President, 201.

West India Trade, 64-65, 75-76, Wright, Robert, 146; com-

83. mittee, 147, 160, 165.

Wolcott, Oliver, 90.

Worthington, Thomas, com- Yazoo land sale, 96.

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VOL. VIII. THE OLD TESTAMENT MANUSCRIPTS IN THE FREER
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Just Published — A History of High Importance Revealing
Many Surprising Facts

THE WAR WITH MEXICO— 1846-1848

By JUSTIN H. SMITH

Formerly Professor of Modern History in Dartmouth College;

Member of Massachusetts Historical Society, etc.

Author of "Annexation of Texas," etc.

The story of our war with Mexico is told here for the first time.
No writer has ever before been through the diplomatic and military
records of the two belligerents. By special authorization from the
Presidents of the United States and Mexico it was possible for the
author to examine every pertinent document belonging to the two
governments. In addition to these almost numberless documents,
-an immense quantity of material contained in local archives, the
archives of other countries, the vaults of historical societies, private
collections, books, pamphlets and periodicals — in short, sub-
stantially everything extant that bears on the subject — has been
•used. Probably more than nine-tenths of the material used in the
preparation of the work is in fact new. Needless to say innumerable
important and many surprising facts have come to light. This
whole narrative of our war with Mexico, while thorough-going and
.accurate in substance, is full of movement, personality and color,
and is supplemented with maps and an ample body of notes.

Here is an original work of permanent value that should be in
the library of every educated man who wishes to base his opinions
upon an impartial examination of the facts rather than upon tra-
ditional prejudices and misinformation.

CHAPTER CONTENTS

Volume II

Behind the Scenes at Mexico
Vera Cruz
Cerro Gordo
Puebla

On to the Capital
Contreras and Churubusco
Negotiations
Molieo del Riz
Chapultepec and Mexico
Final Military Operations
The Naval Operations
The Americans as Conquerers
Peace

The Finances of the War
The War in American Politics
The Foreign Relations of the War
Conclusion

INDEX

Each volume contains maps and
plans, conspectus of events, pronunci-
ation of Spanish, notes, and appen-
dix with lists of sources.

THE WAR WITH MEXICO, By JUSTIN H. SMITH

With maps, plans, notes, appendix and index, in two volumes

$10.00 the set.

THE MACMILLAN CO., Publishers, New York

CHAPTER CONTENTS

Volume I

Mexico and Mexicans
The Political Education of Mexico
The Relations Between the United

States and Mexico, 1825*1843 and

1843-1846
The Mexican Attitude on the Eve of

War
The American Attitude on the Eve

of War

The Preliminaries of the Conflict
Palo Alto and Resaca de Guerrero
The United States Meets the Crisis
The Chosen Leaders Advance
Taylor Sets Out for Saltillo
Monterey, Saltillo, Parras, and Tam-

pico, Santa Fe

Chihuahua, The California Question
The Conquest of California
The Genesis of Two Campaigns
Santa Anna Prepares to Strike
Buena Vista

A Brilliant Book by the Author of " The Education of
Henry Adams"

THE DEGRADATION OF THE
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BY HENRY ADAMS
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These three essays show the wide versatility of HENRY ADAMS —
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alert, brilliant mind ever searching and reviewing facts and theories
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accuracies and false conceits. These essays express and emphasize
the creed which became the heritage of Henry Adams: "The theory
of averages leads ever to a lower level. The perfect plebiscite,
the democratic ideal, is the synonym not of perfect truth but of
disaster and confusion."

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