THE TREATY MAKING POWER

Addressing the graduating class of Juniata College during the commencement exercises, at that institution recently Henry P. Fletcher, former Ambassador to Italy, took occasion to suggest to his hearers that they consider whether or not it would be advisable to amend the rules and regulations of Congress so as to provide for the participation of Members of the Cabinet in the debates. No amendment to the Constitution would be necessary to assure the participation of these officials in the deliberations of either the House or Senate.

Mr. Fletcher sees in the growing custom of appointing Senators on diplomatic commissions, such as that which recently negotiated the naval treaty, a recognition of the necessity for something like participation on the part of the President's official family in the consideration of such measures in the Senate. Like other men who have held diplomatic positions, the former ambassador appears to think that a treaty is more or less sacred and should not be subject to emasculation or amendment in the Senate without giving the Secretary of State, who is the medium of negotiation between foreign governments and their representatives on the one hand, and the United States on the other, full opportunity to appear on the floor of the Senate to defend the action of his department in the framing of the agreement.

"You might profitably stop to consider in this connection the treaty-making or rather treaty-marring power of the Senate," said Mr. Fletcher. Then he spoke of the interest which the States had in treaty making, when most of such conventions had to do with the relationship between the Federal Government and the Indian tribes. "State interests were more individualistic then, but in the course of 150 years these individual interests of States, as States, in our foreign affairs have almost entirely disappeared."

Mr. Fletcher called attention to the fact that instead of inviting the Secretary of State to explain a treaty on the floor of the Senate he is admitted only to the committee on foreign relations, and not always is he invited even thus far. The treaty-making power, said Mr. Fletcher, is given in effect to 33 "supermen” who happen to be Senators, "but who are not, in any single case, elected because of their special knowledge of or interest in foreign affairs."

This arrangement strikes Mr. Fletcher as a negation of democracy. But it may be argued that the makers of the Constitution were not trying to set up a democracy. Perhaps they thought that democracy had been allowed all that was safe to grant in other parts of the Constitution.

The above editorial signifies that public misapprehension of the treaty-making powers as provided in the Constitution may extend even to editors and ambassadors. It is common to find such misapprehension of the American treaty-making power in press columns and diplomatic utterances abroad. It is more serious when we find this misapprehension at home.

EXCHANGE OF NOTES AS VITAL SUBJECT MATTER

Before entering into a discussion of constitutional provisions and an historical outline of the practice of our Presidents and Senates, I wish, first of all, to call attention to the vital import of note exchanges and related collateral evidence regarding the meaning and purpose of a treaty.

The necessity of the Senate to have before it, in performance of its constitutional function as coordinate treaty maker, the exchange of notes leading up to and entering into the negotiations, as well as have full and free access to all relevant subject matter, is plain when we take into consideration:

1. That international agreements may be negotiated without any treaty, simply by exchange of notes-a fact demonstrated by scores of instances both in our history and in that of every nation.

2. The first naval armament negotiation of the United States, that between this country and Great Britain in 1818, regarding the navy on the Great Lakes, during the Monroe administration, was by exchange of notes, without treaty, and President Monroe set up the first American precedent of negotiation on naval armament, when he transmitted all exchanges of notes and all other papers relevant to the case with his message to the Senate. And Monroe's ultimate proclamation of the treaty was based on the Senate's "advice and consent" after study of the papers.

3. A treaty may be general in form, the concrete application being defined in notes in which particular exceptions are specified. 4. The controlling purpose of a treaty may not be clear, unless it is read in the light of the antecedent and attendant notes and diplomatic understandings.

5. Exchanges of notes, "confidential" and "secret" understandings, are among the most fruitful causes of war-as was the case in the recent World War. Also, they are fruitful causes of boundary disputes, misunderstandings over shipping and fishery rights-and are the productive cause of what is known as "paper treaties."

6. In short, it is American law and international law, that the contracting treaty parties-of which under the Constitution the Senate by its required two-thirds vote is a coequal in making all American treaties-shall have complete power over the subject matter We shall find that to be the holding of our leading American authorities, when we come to consult, as I do later such authorities as, Moore's Digest of International Law, by the international jurist, John Bassett Moore; Treaties, Their Making and Enforcement, a leading textbook by Judge Crandall; The Treaty Making Powers of the Senate, by Henry Cabot Lodge, for many years a member of the Senate Foreign Relations Committee.

7. Withholding of material subject matter, such as exchanges of notes, instructions and dispatches, protocols of the proceedings of the negotiators, indeed, the existence in itself of "confidential" and "secret" documents not communicated to a contracting party, such as the Constitution has made the Senate, constitutes what in contract making is termed "suppressio veri," which legally vitiates a contract and morally invalidates a treaty.

We shall see, as we go over the history of American treaty casesthe precedents set by the early Presidents: Washington, Adams, Jefferson, Madison, and Monroe, and followed by Jackson, Polk, Lincoln, Grant, Cleveland, and other successors that it is a wellestablished American custom, dating from the time of the framers of the Constitution, for the Executive who shares the coordinate treaty-making power with the Senate to acquaint the Senate with the complete diplomatic record. Indeed, it was the uniform practice of the early Presidents to lay all available subject matter before the Senate prior to negotiation in order to secure the Senate's "advice" in advance. Later practice was to transmit the papers with the treaty message, or sometimes in advance of the message. But there appears to be no American precedent of a refusal on the part of the Executive to transmit to the Senate, his partner and coequal in treaty making, any subject matter deemed by the Senate essential to consideration in rendering its required "advice and consent."

WHERE THE NEGOTIATION RELATES TO PEACE OR WAR

Congress, under the Constitution, has the sole power to declare war. Therefore, it has been the almost universal custom of American Presidents, if they judged the issue bore any relation to possible differences involving war, to lay the matter, including papers, before the Senate-frequently prior even to negotiations.

That was done by President Monroe in the naval armament negotiation of 1818 in the British settlement with regard to the Great Lakes.

President Jackson sought the prior advice of the Senate with regard to settlement of difficulties with the Indian tribes.

President Polk laid the whole subject, with all note exchanges and other relevant papers, before the Senate in the settlement of the Oregon boundary question with Great Britain-submitting all data prior to negotiation, and on the ground that, as Congress had the sole power of declaring war, there should be complete harmony of purpose between the executive and legislative branches of Government before entering upon a negotiation that might lead to belligerent conditions.

Presidents Lincoln and Grant followed the precedents of Monroe and Polk on several occasions. General Grant, when President, was one of the most scrupulous of all Presidents on the point that any proposed negotiation, even a treaty of arbitration with Great Britain, that might involve belligerent possibilities, should first be laid before the Senate for its advice, and that the Senate should be provided with all papers prior to the instituting of negotiations.

In the North Atlantic Fisheries case, which hardly could be said to involve a question of war, President Cleveland directed Secretary Bayard to transmit all notes to the Senate, even three years prior to any direct negotiation.

ORIGIN OF NEGOTIATION BY NOTE EXCHANGES

It is not difficult to understand the origin of the Old World custom of negotiation by exchange of diplomatic notes. Up to the early part of the eighteenth century it was the European custom to write treaties in Latin. (See Moore's Digest of International Law, vol. 5, p. 180.) Exact knowlege of what the treaty meant, the concrete particulars of the treaty's application, were supplied by exchange of notes written in a language which the writer and reader understood.

When Latin ceased to be used in treaty writing, French became the diplomatic language. When Benjamin Franklin, in 1785 (Moore's Digest, idem), transmitted to Congress a consular convention with France, John Jay remarked that it appeared to be in French, and he observed that it seemed expedient "to provide that, in the future, every treaty or convention which Congress may think proper to engage in should be formally executed in two languages," one of which should be "the language of the United States."

The Old World custom of couching treaties in terms and in a language not readily understood by the lay world may partly have been inspired by the following condition: The treaty was a contract between two monarchs. It was not presumed to be understood by the "subjects," who might lose their lives and property in war by

2. The first naval armament negotiation of the United States, that between this country and Great Britain in 1818, regarding the navy on the Great Lakes, during the Monroe administration, was by exchange of notes, without treaty, and President Monroe set up the first American precedent of negotiation on naval armament, when he transmitted all exchanges of notes and all other papers relevant to the case with his message to the Senate. And Monroe's ultimate proclamation of the treaty was based on the Senate's "advice and consent" after study of the papers.

3. A treaty may be general in form, the concrete application being defined in notes in which particular exceptions are specified. 4. The controlling purpose of a treaty may not be clear, unless it is read in the light of the antecedent and attendant notes and diplomatic understandings.

5. Exchanges of notes, "confidential" and "secret" understandings, are among the most fruitful causes of war-as was the case in the recent World War. Also, they are fruitful causes of boundary disputes, misunderstandings over shipping and fishery rights-and are the productive cause of what is known as "paper treaties."

6. In short, it is American law and international law, that the contracting treaty parties-of which under the Constitution the Senate by its required two-thirds vote is a coequal in making all American treaties shall have complete power over the subject matter We shall find that to be the holding of our leading American authorities, when we come to consult, as I do later such authorities as, Moore's Digest of International Law, by the international jurist, John Bassett Moore; Treaties, Their Making and Enforcement, a leading textbook by Judge Crandall; The Treaty Making Powers of the Senate, by Henry Cabot Lodge, for many years a member of the Senate Foreign Relations Committee.

7. Withholding of material subject matter, such as exchanges of notes, instructions and dispatches, protocols of the proceedings of the negotiators, indeed, the existence in itself of "confidential" and "secret" documents not communicated to a contracting party, such as the Constitution has made the Senate, constitutes what in contract making is termed "suppressio veri," which legally vitiates a contract and morally invalidates a treaty.

We shall see, as we go over the history of American treaty casesthe precedents set by the early Presidents: Washington, Adams, Jefferson, Madison, and Monroe, and followed by Jackson, Polk, Lincoln, Grant, Cleveland, and other successors that it is a wellestablished American custom, dating from the time of the framers of the Constitution, for the Executive who shares the coordinate treaty-making power with the Senate to acquaint the Senate with the complete diplomatic record. Indeed, it was the uniform practice of the early Presidents to lay all available subject matter before the Senate prior to negotiation in order to secure the Senate's "advice" in advance. Later practice was to transmit the papers with the treaty message, or sometimes in advance of the message. But there appears to be no American precedent of a refusal on the part of the Executive to transmit to the Senate, his partner and coequal in treaty making, any subject matter deemed by the Senate essential to consideration in rendering its required "advice and consent."

WHERE THE NEGOTIATION RELATES TO PEACE OR WAR

Congress, under the Constitution, has the sole power to declare war. Therefore, it has been the almost universal custom of American Presidents, if they judged the issue bore any relation to possible differences involving war, to lay the matter, including papers, before the Senate-frequently prior even to negotiations.

That was done by President Monroe in the naval armament negotiation of 1818 in the British settlement with regard to the Great Lakes.

President Jackson sought the prior advice of the Senate with regard to settlement of difficulties with the Indian tribes.

President Polk laid the whole subject, with all note exchanges and other relevant papers, before the Senate in the settlement of the Oregon boundary question with Great Britain-submitting all data prior to negotiation, and on the ground that, as Congress had the sole power of declaring war, there should be complete harmony of purpose between the executive and legislative branches of Government before entering upon a negotiation that might lead to belligerent conditions.

Presidents Lincoln and Grant followed the precedents of Monroe and Polk on several occasions. General Grant, when President, was one of the most scrupulous of all Presidents on the point that any proposed negotiation, even a treaty of arbitration with Great Britain, that might involve belligerent possibilities, should first be laid before the Senate for its advice, and that the Senate should be provided with all papers prior to the instituting of negotiations.

In the North Atlantic Fisheries case, which hardly could be said to involve a question of war, President Cleveland directed Secretary Bayard to transmit all notes to the Senate, even three years prior to any direct negotiation.

ORIGIN OF NEGOTIATION BY NOTE EXCHANGES

It is not difficult to understand the origin of the Old World custom of negotiation by exchange of diplomatic notes. Up to the early part of the eighteenth century it was the European custom to write treaties in Latin. (See Moore's Digest of International Law, vol. 5, p. 180.) Exact knowlege of what the treaty meant, the concrete particulars of the treaty's application, were supplied by exchange of notes written in a language which the writer and reader understood.

When Latin ceased to be used in treaty writing, French became the diplomatic language. When Benjamin Franklin, in 1785 (Moore's Digest, idem), transmitted to Congress a consular convention with France, John Jay remarked that it appeared to be in French, and he observed that it seemed expedient "to provide that, in the future, every treaty or convention which Congress may think proper to engage in should be formally executed in two languages," one of which should be "the language of the United States."

The Old World custom of couching treaties in terms and in a language not readily understood by the lay world may partly have been inspired by the following condition: The treaty was a contract between two monarchs. It was not presumed to be understood by the "subjects," who might lose their lives and property in war by