The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-04-02
THE TREATY MAKING POWER.
where Does the Jurisdiction OF the senate
begin?


Senator Bacon IN me North American Rerlen'
Not only do the letter and spirit OF the .oh-
stitution, and the history OF the treaty maklhe
power az well, deny the proposition that the
duty and jurisdiction OF the Senate 90 NOV
begin until the President sends the treaty 10
the Senate, but the practice oil the no'erh-
ment from its foundation TO the present tiHie
also denies II. Washlng ton. during hS ao-
ministration, before negotiating ~treatles'
visited the Senate TO advise with IL on tne
policy and propriety of making such treaties.
He was the president of the convention that
framed the Constitution. He had heard all
the debates in that convention. lie mao
doubtless, conferred during all the months
OF Its sitting with the dele gates relative 10 the
organ Eation of the treaty making power
q question, in the consideration OF which tine
delegates. throughout the delioeratiohS Oh
the convention, held most tenaolously 10 inc
preservation Of the power OF the STATES ~
represented In the Senate. He knew what
the understanding and intentions were OF
the trainers Of the Constitution In this pro-
vision; and he conformed his practice when
President to such understanding and inten-
ton. And that purpose OF the convention
was most strongly emphasized when IL re-
Quired that not only q majority out t"o-
thirds Of the Senate should be necessary 10
assent to q treaty. Indeed. the Importance
Of the Senate In the making OF treaties was
held in such esteem that q serious and de-
termined effort was made to require two
. thirds OF the entire Senate to ratify a treaty.
whether present or not. This fact Ia. men
toned by Washington In O message OF March
so. 1893.
While that practice OF personally visiting
the Senate for consultation has been aoan-
doned. the practice Of consulting the Senate
prior 10 making a treaty has not been aoan-
doned by subsequent Presidents Did space
permit. many instanc es could be given in
which Presidents have asked the advice OF
the Senate as TO the policy Of making a treaty
prior 10 entering into negotiations concerning
the same. These instances would include
not only Washington. but the elder Adams.
jefferson. Madison. Monroe. Jackson. Van
Buren,. Polk. Taylor. Fillmore. Pierce, Blu
chanan. Lincoln. Grant and Arthur.
In addition to these formal submissions to
the Senate for advice, instances are innumer-
able, up TO the most recent date. of the Presi-
dents asking the advice OF individual Sena-
tors prior to the negotiation of q proposed
treaty. 1t has also been the well recognized
and continuous practice Of the Senate by
resolution to inform the President that In
the opinion of the Senate 1t would be adj
visable to negotiate a treaty to effect @ stated
purpose.
II the construction IL correct that the Sem
ate has no jurisdiction. no duty, no respon-
slbility, until q treaty has been submitted to
II by the President for ratification or rejec-
tlon. then none of these Presid ents had the
right to ask the advice either of the Senate
or of individual Senators; nor has the Senate
had the right to advise the President as TO the
policy Of negotiating any treaty for a stated
purpose. On the contrary such advice
when given by the Senate would be a gratui-
tous intrusion upon the Presidents exclusive
Jurisdiction. But, 80 far from this being
true. these numerous and long continued
prece dents Illustrate the correct construc-
ton Of this clause OF the Constitution. The
law makes the Senate the adviser Of the Presl-
dent In the making Of a treaty through all
Its s~tages-not that 1t requires that In every
Instance the President shall have the advice
and consent Of the Senate. but that in every
instance the President has the right to have
1t, and correspondingly in every instance
the Senate has the right 10 offer it. II IL q
reciprocal right for q common benefit.