The sun., 1906-02-02
"ADVICE AND CONSENT"
Course Followed BY secretary Fish In DEAL
ing With the Senate.

Ing With the Senate.
To THE Enron or THE SrN-.'Sir' with
reference to your article Advice and con-
sent" In THE Sun OF January 20. which COM
mented on the recent speech OF senator
Spooner. may observe that Mr.. j. {. Ban
croft Davis. one of the oldest. as he Is one OF
the ables. of our living publlcists, In his
interesting book Mr. Fish and the Alabama
Claims" says:
More than once Mr., Fish, as Secretary Of State.
showed himself disposed to give force to the word
advice" as well as the word consent IN the
clause Of the Constitution which makes the Senate
coordinate with the Executive In the negotiation
OF treaties.
1t was in accord with Mr.. Fishs conduct as
we'll as his convictions, as Judge Davis shows.
that he deemed 10 his duty to ascertain on
behalf OF the President the opinion Of the
Committed on Foreign Affairs Of the Senate
before entering upon the formal negotiations
with Great Britain on the basis proposed
which finally led to the famous Treaty OF
Washington.
In Your comments upon Senator Spooner,s
speech you refer to the fact that tho words
advice and consent" are used In the next
clause OF Section of Article il. Of the Con-
stitution, which relates to the confirmation
of the Presidents nominations to public
offices. and YOU say that the able and learned
Senator did not think 1t necessary to refer to
that clause by way Of argument In support
Of his views on the subject Of the Executive
power In regard TO treaties. 1t Is highly
probable. however. as / think. that Mr.
Spooner. than whom no man In the Senate
has studied the Constitution more thor
oughly. refraned advsedly from ba5ng any
part Of his argument upon the form OF words
In the particular clause TO which you refer.
1t is not clear by any means that the Same
words In the two clauses OF Secl.on OF Ar
ticle II. Of the Constitution alluded to are
properly subject TO the same Interpretation,
in view of the nature and character OF
treaty as the supreme law of the land, and
the special provision requiring the concur.
renee Of two-thrds Of the Senators present
to give validity and effect to any treaty nego-
tlated by the President. 1t is manifest from
these provisions that the relations between
the President and the Senate in respect to
treaties are infinitely more close and intimate,
and it was intended by the trainers Of the
Constitution that they should be. than their
relations with re gard to the nomination and
appointment of officers OF the United States.
The President and the Senate are engaged
In no such momentous function or business
as that OF making "ths supreme law Of the
land" when they are acting with regard to
appointments TO office. The words advice
and consent" may, and indeed must, have
somewhat different meanings By legal con.
struction in the respective clauses of the Con-
stitution to which you have referred. and
that view is in. eed implied In the action of
Mr.. Fish and other Secretaries Of State. in
often consulting the Senate. on behalf of the
President, directly or indirectly. In the intia-
tory state of foreign ne negotiatons. Appoint
ments to office are purely Executive func-
tions, while the making OF treaties Is legisla-
tive in it's character, although the jurisdiction
has been confided to the President and the
Senate in the manner provided by the Con-
stitution.
Chancellor Kent in his Commentaries" has
stated the substance Of the law of the Consti-
tuition on the subject in the clearest terms.
The President Is the constitutional organ OF COM
nnun,cation with foreign Powers and the efficient
agent In the conclusion of treaties. but tho consent
OF two thirds of the Senators present is essential
TO give validity to his negotiations.
One Of the reasons why the Senate was
selected for the deposit of this power, as the
Chancellor states. was that they are easily
assembled and can act with promptitude and
frmness" 1t was obviously contemplated
that the President should take no step or
action for or looking to the execution or en-
forcement Of his negotiations for treaty In
any case while those ne negotiations were pend
ing before the Senate. inasmuch as that body
can always be assembled and held together
by hin, for the purpose OF approving or dis
two-thrds Of the Senator's present Is essential
to give validity to his ne gotiations.'
If the President may treat his negotiations
as valid and effective for the purpose designed
by him while they are pending in the Senate
and before they have received the consent
Of the prescribed majority of that body. he
has the power TO defeat the whole object OF
the Constitution in making the Senate part
of the treaty making power Of the Govern
ment. which was Of course not intended by
the trainers of that instrument
Whether or not the President exceeded his
constitutional rights or powers in the matter
OF the Santo Domingo negotiations. by the
particular arrangement Of March 2s. 1908.
with Morales. which has been called modus
tirend, is certainly an important question.
which might have been avoided, however. II
would seem II the Senate. Us the executive
council had been required to take conclusive
action at the proper time upon the original
negotiations with Santo Domingo as sub
mitted for its consideration. MADISON.