‘Many other varieties may be suggested as to the mode by practice’
When the United States Senate and President George Washington met in the Senate chamber on 22 August 1789 (this meeting took place in Federal Hall, New York City), no procedural rules governed the choreography for this meeting.
Constitution II vested the President of the United States with the power to make treaties; a condition subsequent required that he obtain Senate ratification by a two-thirds vote.23 On that date, President George Washington ‘came into the Senate Chamber, attended by General Knox, and laid before the Senate [a] state of facts... for their advice and consent’. Knox, Washington’s Secretary of War, made the presentation. When ratification came before that body, the Senators were obliged to consider, as the official record states, ‘their advice and consent’. This action was the response that Article II, Section 1 contemplated.24The Senate formally invited Washington to attend and named a committee to deliver its invitation (6 August 1789). These events were set in motion by negotiations with the Creek Indians on the Georgia frontier.25 Washington informed the Senate of his view of the ‘state of facts’ surrounding the current negotiations with the Creek Indians.
The measure includes, not only peace and security to the whole southern frontier, but is calculated to form a barrier against the colonies of a European power that, in the mutations of policy, may one day become the enemy of the United States. The fate of the southern States, therefore, or the neighboring colonies, may principally depend on the present measures of the Union towards the southern Indians.26
Washington prepared himself for the meeting of 22 August by writing two lengthy memoranda.27 In his initial ‘Sentiments Expressed’ dated 8 August 1789, Washington suggested that written ‘communications’ between the President and Senate would be ‘tedious without being satisfactory’.
In ‘all matters respecting Treaties’, he continued, ‘oral communications seem indispensably necessary’. Washington speculated on where these meetings should take place.If in the Senate-chamber, how are the President and Vice-President to be arranged? the latter by the constitution being ex-officio President of the Senate. Would the Vice-President be disposed to give up the chair? If not, ought the President of the United States to be placed in an awkward situation when there? These are matters, which require previous consideration and adjustment for meetings in the Senate-chamber or elsewhere.28
At that point Washington turned his attention to the process by which the Senate took up his nominations for federal office. Hence, the ‘smallest restraint from his presence’ might impede ‘fullest and freest inquiry into the character of the person nominated’. In other words, the Senate might be reluctant to engage in a free-wheeling discussion of Washington’s nominees in the presence of the chief executive who had forwarded their names to that body for its consideration.29
Washington also weighed other details of the nomination and ratification process. Washington explored the possibility of a public space dedicated for these deliberations. Was the work of the Senate, he wondered, a species of treaty-making itself or legislative in nature? ‘The occasion for this
‘The average price of peace and war’ 101 distinction will be lessened if not destroyed, when a chamber shall be appropriated for the joint business of the President and the Senate’. The difficulty with an agreed-upon solution, Washington warned, was that it might reduce the President’s freedom to select his preferred ‘time and place’.30
The inclination or ideas of different Presidents may be different. The opinions, both of President and Senators, as to the proper manner, may be changed by experience. In some kinds of business it may be found best for the President to make his propositions orally and in person, in others by a written message.
On some occasions it may be most convenient, that the President should attend the deliberations and decisions on his propositions; on others that he should not; or that he should not attend the whole of the time. In other cases, again, as in treaties of a complicated nature, it may happen, that he will send his propositions in writing, and consult the Senate in person after time shall have been allowed for consideration. Many other varieties may be suggested as to the mode by practice.31The Senate did not approve rules governing and guiding treaty ratification until after the Adams administration negotiated a treaty with France in 1800. The Treaty of Mortefontaine brought the so-called Quasi-War to an end. This outcome was the result of very persistent diplomatic efforts mounted by the Adams administration. In October 1797 Adams dispatched a high-level mission to Paris. The corrupt manoeuvring of Talleyrand’s agents blocked progress towards serious discussion at that time.
After the coup of 18th Brumaire (9 November 1799) - which brought Napoleon Bonaparte to power - the First Consul decided to settle France’s difficulties with the United States. The demands of the War of the Second Coalition with Great Britain took priority, Napoleon calculated, over escalating the naval war with the United States. The United States Senate ratified the treaty (with the hiccup noted below) on 3 February 1801.32 Napoleon’s next gambit - seeking to keep the United States from allying its fortunes with the United Kingdom - took place in March 1803 when the First Consul offered to sell the Louisiana Territory - real estate to which France lacked title at the time - to the United States. Jefferson publicly doubted that Constitution II conferred on Congress the power to acquire territory by treaty from a foreign power. Congress brushed his doubts aside.33
On 16 December 1800, the Senate opened deliberations on the proposed Treaty of Mortefontaine.
During the course of this debate, the Senate voted to expunge Article II, thereby refusing to ratify that article of the proposed agreement. The Senate concluded its ratification on 3 February 1801.34 This action sent the Treaty back to France where Talleyrand stage-managed tit-for- tat tinkering (31 July 1801) which brought the treaty, now twice tweaked, back to the United States. Final Senate ratification came about on 19 December 1801, that is, early in Jefferson’s first term as President. Neither Adamsnor Jefferson met with the Senate or discussed new rules to govern ratification proceedings.
During its consideration of the proposed Treaty, the Senate adopted the following new procedural rules. Jefferson copied the text of these two new rules into his Manual at the conclusion of his Section LII, ‘Treaties’. The first rule provided
That the votes so confirmed shall, by the House, or a committee thereof, be reduced into the form of a ratification, with or without modifications, as may have been decided, and shall be proposed on a subsequent day, when every one shall again be free to move amendments, either by inserting or leaving out words; in which last case the question shall be, “Shall the words stand part of the resolution?” And in both cases the concurrence of two thirds shall be requisite to carry the affirmative; as well as on the final question to advise and consent to the ratification in the form agreed to. Rule of Jan. 6, 1801.35
The second rule provided
Resolved, That when any question may have been decided by the Senate, in which two thirds of the members present are necessary to carry the affirmative, any member who voted on that side which prevailed in the question may be at liberty to move for a reconsideration: and a motion for reconsideration shall be decided by a majority of votes. Rule of Feb. 3, 1801.36
Washington composed two memoranda in August 1789; these suggested that the Senate refine its ‘mode of proceedings’ governing ratification of international agreements. After 11 years Senators took up Washington’s suggestions, refining some (but not all) of his recommendations. The Senate published a new code of procedures in the following year; this publication supplied an updated print resource for this code of rules.37 The Senate’s 1801 code also included an explanatory reference keyed to each rule. The Senate’s format closely resembles Hatsell’s unofficial edition of the House of Commons Standing Orders (1774) and his official edition (1792) of the Standing Orders.38 The Senate’s Rule 19, for example, refers the readers to ‘1 Con. 1 Sess. 17th April, 1789 5 Con. 2 Sess. 25th June, 1798’, with like explanatory material for each of the next 20 rules.