with the Cherokees. So also, in 1791, he asked the Senate to advise him as to what answer to be made to the French Chargé des Affaires, with regard to a question of tonnage on foreign vessels.

John Quincy Adams in his Memoirs relates that Crawford told him that Washington went to the Senate with a draft of a treaty; that "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."

In fact, however, the Presidents did continue occasionally to consult with the Senate in regard to the negotiation of treaties.

In 1794, when sending the name of John Jay as Envoy Extraordinary to England, Washington explained to the Senate his purpose in doing so; and the same was done by President Adams in 1797 when nominating the special commission to France."

§ 193. Powers of the Senate.

After the first few years under the Constitution, however, the practice on the part of the President of consulting the Senate with regard to the treaties to be negotiated, became an infrequent one, but yet not one wholly obsolete. Thus, in 1818, President Monroe asked the Senate whether he alone as Executive was constitutionally competent to arrange with Great Britain as to naval armaments upon the Great Lakes; and, if not, that they would give him advice as to the proper agreement with reference thereto, that should be entered into. Again, in 1830, President Jackson asked the advice of the Senate as to the terms of a treaty to be negotiated with the Choctaw Indians. His message, however, bears evidence to the fact that he is aware that he is departing from the practice of years immediately preceding, though not from

8 VII, 427.

9 For other instances in which during the early days, as well as at later times, the advice of the Senate has been asked by the President in the negotiation of international agreements, see Crandall, Treaties: Their Making and Enforcement, pp. 54 et seq. and an article in Scribner's Magazine, Jan., 1902, by Senator Henry Cabot Lodge, entitled "The Treaty-making Power."

that of the early period. He says: "I am aware that in thus resorting to the early practice of the government, by asking the previous advice of the Senate in the discharge of this portion of my duties, I am departing from a long and for many years unbroken usage in similar cases. But being satisfied that this resort is consistent with the provisions of the Constitution, that it is strongly recommended in this instance by considerations of expediency, and that the reasons which have led to the observance of a different practice, though very cogent in negotiations with foreign nations, do not apply with equal force to those made with Indian tribes, I flatter myself that it will not meet with the disapprobation of the Senate." 10

In the article already referred to, Senator Lodge enumerates a not inconsiderable number of instances down to comparatively recent times in which the Senate has participated in the negotiation of treaties.

In a number of cases the Senate has by resolution suggested to the President that certain negotiations be initiated. Thus in 1835 the Senate requested the President to open negotiations with the Central American governments with a view to securing treaties granting protection to such individuals as might undertake the construction of an interoceanic canal. In 1888, President Cleveland was requested by the Senate to open negotiations with China for the regulation of immigration of subjects of that country into the United States. In 1880, by a concurrent resolution, the Senate and House of Representatives requested the Executive to seek the co-operation of other Powers in providing for the amicable settlement by arbitration of disputes which could be settled

10" Secretary Webster, in the important negotiations which he conducted for the adjustment of the northeastern boundary kept the Senate advised of the progress of the negotiations and it was mainly for that reason he was able to carry the treaty by an overwhelming vote in the Senate which was politically hostile to the administration. Secretary Buchanan, before signing the treaty adjusting the Oregon boundary, submitted the full text to the Senate and received an informal note approving it. President Jackson even consulted the Senate as to the propriety of refusing to accept the award (under a treaty) of the King of the Netherlands, and procured a note of that body advising him as to the course to be pursued." (J. W. Foster in Yale Law Journal, XI, 71.)

through the ordinary diplomatic channels. By an act of Congress, the President was, in 1902, advised and authorized to enter into certain treaty arrangements with reference to the construction of an interoceanic canal.

All of the instances cited above are, however, by way of general exception to the rule according to which the negotiating of treaties is in the hands of the President. The Senate's function, so far at least as its formal action is concerned, is limited to the disapproval, or ratification, with or without amendments, of the treaties after they have been agreed upon by the President and the chancellaries of the foreign countries concerned.

Though, as has just been said, the formal participation of the Senate as a body in the negotiation of treaties is not often now solicited, as a matter of fact that body is, according to modern usage frequently, indeed, it might be said, generally, kept well informed as to the progress of international negotiations by means of personal interviews between the Executive and prominent Senators, especially, of course, those serving upon the Committee on Foreign Affairs of the Senate. In 1898 three of the five Commissioners appointed to negotiate the Treaty of Peace with Spain were Senators and members of the Committee on Foreign Affairs.

Nevertheless, this practice has not prevented frequent friction between the Senate and the Executive with reference to foreign relations. Especially has this been true since the time when Mr. Blaine held the position of Secretary of State. From the time when Monroe became Secretary of State in 1811 to the resignation of Mr. Blaine in 1892, with the exception of a very few years, this Secretaryship was held by men who had previously been in the Senate, but since then, with the exception of Sherman and Knox, this has not been true. Speaking of the lack of harmony which has existed during this recent period, Professor Reinsch writes: "Under these circumstances, it is not surprising that there should have been more friction between the President and the Senate on foreign matters than existed during earlier years of our national life. Such constant friction as has during recent years existed between the Senate and the Department of State is.

11

11 Cf. Reinsch, American Legislatures, p. 95.

in fact, unprecedented in our national history. It began under Mr. Cleveland's régime, when the Olney-Pauncefote arbitration treaty was rejected, partly on account of the unpopularity of the Administration, partly on account of a strong political opposition to any arbitration arrangements with Great Britain. Even under McKinley, notwithstanding the unusual relations of friendliness between the President and the Senate, the most important treaties submitted by the Department of State were rejected or modified by the Senate. Again it proved impossible to have a British arbitration treaty ratified. The Hay-Pauncefote canal treaty failed, and this was also the fate of several important reciprocity treaties. The Senate has continued this critical attitude with the result that no important treaty has been allowed to pass without such modification as has often entirely destroyed its original purpose. The only exception is the Treaty of Paris, in the formation. of which individual senators had taken a prominent part. The Newfoundland reciprocity treaty was ruined through the interference of special interests."

In addition to these instances of disagreement, in 1905 came the disagreement between the Senate and Executive with reference to the general arbitration treaties which had been negotiated, and the irritation aroused in the Senate by the San Domingo protocol entered into by the President on January 20, 1905. Further reference to the principles involved in several of these disagreements will presently be made.

Occasionally the Senate has turned down projects to the approval of which it has earlier committed itself.

§ 194. The "Recognition" of Foreign Governments.

The recognition by the United States of a status of belligerency, or the recognition of the sovereignty and independence of a foreign government are political acts, not subject to judicial review12 and are performed by the President. At times the claim has been made that this power of recognition is one to be exercised at the dictation of Congress, but precedents are against the 12 See Chapter LI.

13

claim. It is to be presumed, however, that when the recognition of a status of belligerency or of the independence of a revolutionary government is likely to institute a casus belli with some other foreign power, the President will be guided in large measure by the wishes of the legislative branch. Upon the other hand, it is the proper province of the Executive to refuse to be guided by a resolution on the part of the legislature if, in his judgment, to do so would be unwise. The legislature may express its wishes or opinions, but may not command.

§ 195. The Power of the Senate to Amend Treaties.

There would seem to be no question but that, having the power either to approve or to disapprove an international agreement negotiated by the President, the Senate has also the power, when disapproving a proposed treaty, to state upon what conditions it will approve; in other words, to amend any treaty submitted to it. In so doing there can be no question but that the Senate is well within its constitutional right. Upon the other hand, it is equally within the province of the Executive to consider the amendment of a treaty by the Senate as equivalent to a rejection of it. When, therefore, a treaty has been amended in the Senate, it is within the President's power to abandon the whɔle treaty project, or to reopen negotiations with the foreign country or countries concerned with a view to obtaining their consent to the changes desired by the Senate, or, finally, to begin de novo and attempt to negotiate an entirely new treaty, which he may hope will secure senatorial approval. In case he decides to follow the second of these courses, namely, to secure the approval of the foreign country or countries to the amendments to the treaty project made in the Senate, and is successful in this, it would seem 13 See Senate Docs., Nos. 40 and 56, 54th Cong., 2d Sess.; Hinds, Precedents of the House of Representatives, chapters XLVIII, XLIX.

14 The approval or disapproval of a treaty project by the Senate is often spoken of as the ratification or refusal to ratify. Strictly speaking, however, this language is incorrect, as the ratification of a treaty is the final act performed by the President by which the agreement is declared in force between the United States and the foreign State or States which are the parties to it.