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

Front matter

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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 Uttle beyond the first twenty-five years of government under the Constitution. No powers of the federal government underwent a more interesting development 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 relations of the Senate and the executive in treaty-making could be worked out only in actual practice. And there never has been a period in the history of this nation when foreign relations — threats of war, avoidances of armed conflicts, diplomatic defeats and victories, treaties made and denounced — have played so vital a part in the affairs of the government 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 appUcation 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 international agreements which are also her national laws has been altered but little. This is particularly true of the manner in which the Senate has performed its part in the making of treaties. The Senate is a conservative body. Its procedure in dealing with treaties and its relations with the executive 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 expected 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 attempted 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 position 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 completed, to Professor Ulrich B. Phillips for carefully reading the text, and to his wife for valuable literary 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 Akbor, Michigan October, 1919

Chapter I Page

The First Exercise of the Treaty-making Power 1

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

Chapter II

Development of 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 consent 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 negotiation of treaties — Provision made for personal meetings with the President — Conference on negotiation of treaty with Creek Indians proves personal consultation to be impracticable — 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.

' CONTENTS

Chapter III Page

E Treaties with Algiers and Spain, 1790-1796 ... 40 mplicated problem presented by commerce in Mediteranean — Senate adopts committee report advising ransom )f 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 advance — Victory of Washington — Negotiation and ratification of treaty — Treaty of San Lorenzo el Real — In confirming 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 HE Jay Treaty 58

arly relations of the President and the Senate upon the subject of Anglo-American affairs — Washington asks and receives advice in 1 790 — Results of mission of Gouverneur Morris laid before the House and the Senate — Drifting towards war — Peace mission planned by Hamilton and small group of Federahst Senators — Part played by group in securing consent of Washington in the selection of the envoy, in securing his acceptance by the Senate, and in drawing his instructions — Senate declines to ask for instructions when nomination is confirmed — Struggle for ratification of the treaty — Amended by its friends — It is decided that resubmission of amended treaty is not necessary — England makes no objection to conditional ratification — Senate fails to preserve secrecy on treaty — Acceptance 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 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 — Interpretation 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 op John Adams 107

Procedure on Tripolitan treaty of 1796, and the supplementary article to the Jay treaty — Senate amendments to the commercial treaty of 1797 with Tunis — Prussian treaty of 1799 indicates possibility of Senate control through powers of appointment — 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 op Thomas Jefferson ... 130 Claims convention of 1802 with Spain — Vacillation of Senate — Final acceptance, and result of delay — Senate resents interference of American lawyers — The Louisiana Purchase — President given a free hand in negotiation — Cabinet advises 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-Hawkesbury 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 TripoU.

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 regular 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 Tbeaty-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 outUnes procedure of Senate on treaties fixed — Principle that ordinarily Senate shall not, on its own initiative, 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 — Negotiations which secured acquiescence of Sweden to Senate amendments to treaty of 1816 with Sweden and Norway.

Index 227

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 distinguished messenger advanced, laid a bulky package of papers on the table before John Adams, the President of the Senate, and withdrew. The message 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 engaged:^ Thus

^ Journal of the Executive Proceedings of the Senate of the United States of America. From the Commencement of the First to the Termination 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).

Z THE SENATE AND TKEATIES

for the first tinie the Senate was faced with the executive duties laid upon it by the treaty clause of the Constitution. This clause declares, "He [the President]] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; . . ." In these few words one of the most important powers of government is vested in the chief executive and the upper house of the Congress' of the United States.^ This bare grant told Washington and the members of the first Senate, as it tells us, merely that they were the joint possessors of this great power. With that elasticity in details which calls forth the admiration of the most discerning critic of our commonwealth, the Constitution left to successive 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 Washington; 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 jthe Police Powers of the States, gives a clear account of the evolution of the treaty clauses of the Constitution in the Federal Convention. See also Moore, International Law Digest, V., xviii, for a discussion of the treaty power, the negotiation and conclusion of treaties, their ratification, agreements not submitted to the Senate, and the enforcement, interpretation, and termination of treaties.

TREATY-MAKING POWER 6

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 qualified 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 administrations, thirty-one had been members of the Continental Congress or of the Congress of the Confederation, 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 distinction in the revolutionary forces and in the legislatures 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 eminently qualified to apply the newly made Constitution, 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.

4 THE SENATE AND TKEATIES

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 before that body, it was to the ratification of a consular convention with France that the Senate first gave its advice and consent. This convention was a heritage from the government under the Confederation. Its previous history is succinctly told by J. C. B. Davis, as follows:

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

On June 11, 1789, Washington laid this convention before the Senate.- One of the striking aspects of the subsequent proceedings is the close relationship 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 government under the Confederation. The message submitting 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 negotiation of the treaty and the action of the Senate upon it. 2 Sen. Exec. Jour., I. 5.

TREATY-MAKING POWER O

purposes of the treaty and some of the cu-cumstances 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.^ 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 information by asking the Secretary to lay before it all the papers in his custody relative to the negotiation, and whatever official papers and information on the subject he might possess.^ Four days later Jay was requested "to attend the Senate to-morrow, at 12 o'clock, and to bring with 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. ^ gg^. Exec. Jour., I. 6. ' Ibid.

which he was asked to give his opinion as to how far he conceived the faith of the United States to be engaged 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 convention and advised the President to ratify it.^

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 become 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 convention is to be found in the motives which led the Senate to advise and consent to its ratification. On July 22, after Jay had personally explained the

' Sen. Exec. Jour., I. 7, 8, 9; see Moore, International Law Digest, V. 587, for brief statement.

TREATY-MAKING POWER /

status of the convention, the Senate formally proposed 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, in its present sense or form, the Convention now referred to the Senate.^

In the written reply which he handed to the Senate five days later Jay recommended ratification. This recommendation seems to have been based upon two grounds: first, the general principle 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.

^ Sen. Exec. Jour., 1. 7.

The circumstances alluded to, are these:

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

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

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

Jay then cited a paragraph from the instructions 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 conformable 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 regulating 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 discretion, 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 terra not exceeding twelve years be inserted."

TREATY-MAKING POWER 9

As the convention in question is free from several objections to which the one of 1784 was Hable, 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.^

Considering this transaction from beginning to end, it seems evident that from the time the Continental 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 i'n accordance with the principle of international law, that except under extraordinary circumstances a nation was bound to ratify any agreement which it had instructed its representative to make.^ 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 ultimately 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.

^ Moore, International Law Digest, V. 184-202, discusses thoroughly 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.

Yet despite the scrupulous obseTvance of the rule of international law in this instance, the later interpretation 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 exemption 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 illustrates the position of the Senate at the outset.

CHAPTER II Development of Teeaty-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.^

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 attention of the Senate at intervals throughout practically all of the first session of Congress, and in the end it withheld its advice and consent to the ratification of one of them. In the meantime, however,

^ 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.

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 thoughtfully 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 approbation 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.^

It was not until June 12 that the Senate found time to turn its attention to these treaties. On that day they were considered and put in charge of a committee of three, Few, Read, and Henry. ^ Two months later the committee reported: ^

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 pm-suance of the powers and instructions 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. Mcintosh, 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 resolution, 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.^

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

After consideration this report was allowed to he over until September 8, when a resolution was adopted advising the President ''to execute and enjoin an observance of" the treaty with the Wyandots 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.^ 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 received 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.^ In this message 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: