reason of the offensive or defensive alliances provided for in the treaty. To avoid the contingency of the treaty being so plainly understood as to cause popular uprisings, the treaty was written in Latin and French and in diplomatic terms. Therefore exchange of notes became highly essential to a concrete understanding of the purpose and application of a treaty.

Much of the public language used in high places to-day requires exchange of notes, diplomatic conversations, telegrams, letters, and sundry memoranda, to arrive at the precise application and significance of the general terms employed.

SOURCE OF THE TREATY POWER IN THE UNITED STATES

When the American Revolutionists threw off their British allegiance and formed the new Republic, the people of the thirteen States became the sovereign who exercised the treaty power. Prior to the Constitution, 'Congress made the treaties-each State having 1 vote in making and ratifying. Under the Confederation, the vote of nine of the thirteen States was necessary to approve a treaty. It was deemed essential to insure that a minority of the States should not be able to bind the majority. (Vide Henry Cabot Lodge, the Treaty Making Powers of the Senate, Scribner's Magazine, January, 1902; John W. Foster, former Secretary of State, the Treaty Making Power Under the Constitution, Yale Law Journal, December, 1901.) Congress exercised the sole treaty-making power of the United States in approving all the first treaties in the founding of the Nation. It named the commissioners-John Jay, John Adams, and Benjamin Franklin-who negotiated the treaty of peace, 1783, for terminating the war with Great Britain, establishing the boundaries, and acquiring the territory of the original thirteen States. Congress reviewed the work of the commissioners and ratified the treaty.

Prior to the Constitutional Convention of 1787, Congress consummated treaties with the various powers of Europe-Great Britain, France, Prussia, Austria, Russia, Netherlands, Sweden, and the restcovering a wide range of subjects, as, amity and commerce, navigation, loans, duties and imposts, contraband of war, most-favorednation treatment, maritime warfare rules, shipping, prizes, ports, pirates, visitation and search, letters of marque and reprisal, courts abroad, and postal conventions. Each State had one vote in making and ratifying the treaty-nine States necessary for ratification. (Vide: Crandall, Samuel Benjamin, Treaties-Their Making and Enforcement, ch. 3, pp. 24-30.)

This democratic mode of treaty making was something new to Old World diplomacy, wherein the kings, not the people, were the contracting parties. On the occasion of the treaty of May 12, 1784, ratified with Great Britain, Crandall's textbook (p. 32) contains this reference:

In the instrument of ratification as adopted by Congress, there seemed to the British Government to be a want of form, wherein the United States was mentioned "before His Majesty, contrary to the established custom in every treaty in which a crowned head and a republic were parties."

So many kings, emperors, czars, and kaisers have been abolished in Europe since that day, especially since the World War, which was due to this same Old World diplomacy, that treaty making by a

republic no longer causes distress of "Majesty" because of "want of form." In that excellent Senate Document No. 26, Sixty-sixth Congress, first session, Ratification of Treaties, compiled by Griffin, and reported by the Senator from New Hampshire (Mr. Moses), June 5, 1919, we find this reference in the introduction:

The change in the form of government in Germany naturally changes the conditions of ratification in that country. The method followed in the past is modified by transferring the ratifying power from the crown to the legislature.

No longer does a German treaty begin with the words: "Wir Wilhelm von Gottes Gnaden Deutscher Kaiser," but the new sovereign, the people of Germany, give treaty sanction pursuant to the American plan now established as a world model these 148 years.

TREATY MAKING ON ADOPTION OF THE CONSTITUTION

Prior to 1787 treaty sanction was by vote of 9 of 13 States. After 1787 treaty sanction was by "advice and consent" of twothirds of the Senators of the States. The Executive was added to the Senate two-thirds as a coordinate and coequal of the joint treatymaking powers of the United States.

In the original draft of the treaty clause as adopted by the Constitutional Convention the Senate, as directly representing the States, was given the sole treaty-making function. The obvious necessity of an executive negotiator, however, prompted the committee on detail to add the name of the President, who was to conduct the negotiations by "advice and consent" of two-thirds of the Senate. A bare majority of the Senate was deemed by the framers of the Constitution as insufficient in making a treaty "the law of the land." The vote of nine-thirteenths of the States was required prior to 1787, and the vote of two-thirds was provided thereafter-insuring that no minority of States could bind the majority. (Vide: Lodge, the Treaty-Making Powers of the Senate, pp. 35-36; Id. Crandall, Treaties, Their Making and Enforcement, ch. 4.)

Senator Lodge makes this comment on the addition of the President to the treaty-making function which had been formerly in the sole hands of the States through their Representatives in Congress (p. 36):

This was an immense concession by the States, and they had no idea of giving up their ultimate control to a President elected by the people generally. Here, therefore, is the reason for the provision of the Constitution which makes the consent of the Senate by a two-thirds majority necessary to the ratification of any treaty projected or prepared by the President. The required assent of the Senate is the preservation to the States of an equal share in the sovereign power of making treaties which before the Constitution was theirs without limit or restriction.

After reviewing instances, from Washington down to Lincoln, wherein the Executive and Senate in performance of their coordinate function had joined in making the treaties of the Republic, Senator Lodge (p. 37) adds the following conclusion:

The right of the Senate to share in treaty making at any stage has always been fully recognized, both by the Senate and the Executive, not only at the beginning of the Government, when the President and many of the Senators were drawn from the framers of the Constitution and were, therefore, familiar with their intentions, but at all periods since.

This statement was made in 1902. It seems to have been good since that day—unless possibly the consideration of the present naval armament negotiation,

WASHINGTON'S INTERPRETATION OF THE TREATY CLAUSE General Washington was the presiding officer of the Constitutional Convention of 1787. He knew personally the Constitution's framers and their intentions. His Cabinet, his ministers and ambassadors abroad, the Senate with whom he joined in treaty making, were largely drawn from the framers of the Constitution.

Washington set the Executive precedent for American treaty making for these 140 years-treaty making under the provisions of the Constitution. We one and all do Washington lip service. Shall our works continue to measure up to our words?

Consulting our authorities-Moore, Crandall, Lodge, Fosterindeed, consulting the now world-known record of the Washington administration, we find that Washington interpreted the "advice and consent" clause to mean: (1) Senate "advice" prior to negotiation; (2) Senate "consent" at all stages of negotiation, with the final seal of ratification.

All subject matter in Washington's possession was laid by him before the Senate for consideration and for their "advice" prior to negotiation and for their "consent" by ratification thereafter. In all particulars, "at every stage," the Executive and Senate were the coordinate treaty makers.

Until the Senate has duly considered the negotiation and passed upon the treaty document, says Lodge (p. 34):

The treaty, so-called, is therefore inchoate, a mere project for a treaty, until the consent of the Senate has been given to it.

In obtaining Senate "advice" prior to negotiation, Washington first tried the plan of visiting the Senate in person. Maclay (see Crandall's textbook, p. 67) describes the incident:

The President was introduced, and took our President's chair. He rose and told us bluntly that he had called on us for our advise and consent to some propositions respecting the treaty to be held with the southern Indians.

Washington was accompanied by General Knox, who was familiar with Indian affairs and prepared to answer Senate questions. There appeared to be seven specific questions involved. The Senate took the papers and oral testimony under advisement and voted, affirmatively or negatively, on the seven points of proposed negotiation, at its following Monday session.

Transmission of papers prior to negotiation was deemed thereafter to be the more practicable method of Executive and Senate cooperation. Crandall (p. 68, Id.) cites the Journal record for Washington's special messages seeking Senate advice in opening Indian negotiations, as of August 4, 1790, August 11, 1790, January 18, 1792, wherein the Senate voted advice and consent prior to negotiation.

On February 9, 1790, the record shows that Washington was awaiting Senate advice in negotiating a boundary treaty with Great Britain.

May 8, 1792, he inquired for Senate advice in negotiating a proposed treaty with Algiers for payment of ransom and peace money. Secretary of State Jefferson, April 1, 1792, advised Senate consultation for validating such treaty.

Navigation on the Mississippi was the subject of the President's consulting with the Senate, January 11, 1792, with regard to instruct

ing Charges d'Affaires Carmichael and Short to negotiate with Spain at Madrid.

On February 14, 1791, the business of the mission of Gouverneur Morris to Great Britain was laid before the Senate, and on various dates during 1794 the Senate received communications with regard to the so-called Jay treaty with Great Britain.

Says Crandall (p. 70, id.):

These first attempts of the Executive to follow out the clear intention of the framers of the Constitution, in consulting the Senate prior to the opening of negotiations, have been followed only in exceptional instances.

Crandall (Treaties, Their Making and Enforcement, pp. 67-72, Ch. VI, Advice and Consent of the Senate) enumerates about 30 instances where the Executive consulted with the Senate for advice prior to negotiation. The citations range from 1790 to 1884, and the Presidents seeking Senate advice prior to negotiation include Washington, Adams, Jefferson, Madison, Monroe, Jackson, Polk, Buchanan, Lincoln, Johnson, Grant, and Arthur. Senator Lodge cites other instances (pp. 37-42, the Treaty-Making Powers of the Senate), in all about 40, and says:

From these various examples it will be seen that the Senate has been consulted at all stages of negotiations by Presidents of all parties, from Washington to Arthur (p. 42, id.).

Among the Presidents who notably and more commonly adopted the practice of consulting the Senate prior to negotiation were Washington, Monroe, Jackson, Polk, Lincoln, and Grant. It will be noted that they are 2-term Presidents, whose names stand out preeminently in the Nation's history.

Ordinarily, where the issue of peace or war is not involved, or the protection of the national boundary, the question may not be of such moment as to call for executive consultation with the Senate prior to negotiation. Nevertheless, it is interesting to note, in the textbook most frequently cited by our international jurist, John Bassett Moore, namely, Crandall's work, this passage: "the clear intention of the framers of the Constitution, in consulting the Senate prior to the opening of negotiations." It is obvious that when a President consults the Senate prior to negotiation, he lays before them the pertinent and relevant subject-matter for their consideration in giving advice.

MONROE PRECEDENT IN THE NAVAL ARMAMENT CASE OF 1818

Turning to Moore's International Law Digest, by John Bassett Moore, pages 214-215, volume 5, we read under the head, "Exchange of Notes":

The arrangement between the United States and Great Britain of April 28-29, 1817, was effected by an exchange of notes between Mr. Bagot, British minister at Washington, and Mr. Rush, Secretary of State. Orders were at once given for the proper executive officers of the two governments for its execution.

April 6, 1818, President Monroe, apparently out of abundant caution communicated the correspondence to the Senate. (American State Papers, For. Rel. IV, 202.)

The Senate, on the 16th day of the same month, by a resolution in which twothirds of the Senators present concurred, "approved and consented to" the arrangement, and, "recommended that the same be carried into effect by the President." The President proclaimed the arrangement April 28, 1818.

Outstanding in this brief citation one can not fail to note the following plain signs:

(1) That "exchange of notes" may be the res gestae of the negotiation, even in a naval armament agreement.

(2) That when the spirit of the Constitution is followed and the Executive deals frankly and promptly with his copartner, the Senate, in the proposed negotiation, the entire transaction goes through in complete harmony and dispatch.

(3) In a matter involving peace or war-the latter being a subject over which Congress has the declaratory power--it was the early view of the White House, in the case of a President so thoroughly American as James Monroe, author of our Monroe doctrine, that the Senate should have before it all relevant papers, even prior to negotiation.

Thus handled, the first American naval armament negotiation was completed within the brief space of 30 days--an excellent example of American efficiency and simplicity, when the clear intent of the Constitution framers is carried out without concealment or evasion. John Bassett Moore alludes to President Monroe's "abundant caution." One might well add to that Monroe's abundant Americanism. His Americanism was so broad and thorough that the period of the Monroe administration is alluded to in American history as the "Era of peace," when party dissent faded out until only one political party remained in the field, all followers of the Monroe American idea.

HOW POLK HANDLED THE OREGON BOUNDARY ISSUE OF 1846

The Oregon boundary question was one fraught with possible international consequences in our relations with the United Kingdom. President Polk, on June 10, 1846, laid the entire matter, with all papers, before the Senate.

In his message accompanying the papers, he called attention to American precedent:

General Washington repeatedly consulted the Senate and asked their previous advice upon pending negotiations with foreign powers, and the Senate in every instance responded to his call by giving their advice to which he always conformed his action * * *. The Senate are a branch of the treaty-making power, and by consulting them in advance of his own action upon important measures of foreign policy which may ultimately come before them for their consideration, the President secures harmony of action between that body and himself. The Senate are, moreover, a branch of the war-making power, and it may be eminently proper for the Executive to take the opinion and advice of that body in advance upon any great question which may involve in its decision the issue of peace or

war.

This message, with accompanying papers, was transmitted to the Senate on June 10. The treaty (two-thirds of the Senate concurring) was signed June 15, submitted to the Senate and ratified. In like expeditious manner the Senate cooperated with the Executive, August 4, 1846, in territorial negotiations with Mexico.

LINCOLN FOLLOWED THE PRECEDENT OF WASHINGTON

Senator Lodge (p. 41 of his review) cites six instances wherein President Lincoln followed the early examples of Washington, Monroe, and Polk, and consulted the Senate for advice and consent prior to negotiation and pending the same.