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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

war.

Congress, under the Constitution, has the sole power to declare

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 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 sig. nificance 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 rest covering 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 modi. fied 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,

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