With respect to the manner in which treaty-making is, according to the Constitution, to be conducted, the first question that arises is as to the extent to which the Senate may properly participate not only in the ratification, but in the preliminary negotiation of international agreements.

In the same clause, indeed in the same sentence, of the Constitution in which provision is made for entering into treaties, it is provided that the President "shall nominate and by and with the advice of the Senate shall appoint ambassadors, other public ministers and consuls," etc. Here the phraseology shows that the act of nominating the public officials mentioned, is clearly distinguished from their appointment. They are to be nominated by the President, but to be appointed by the Senate and President. The negotiating of treaties is not, however, by the phraseology of the treaty clause thus sharply distinguished from their ratification as regards the federal organs by which this negotiation and ratification is to be performed. The language is that the President "shall have power, by and with the advice and consent of the Senate, to make treaties," not that "he shall negotiate, and, with the consent of the Senate, ratify treaties."

As further indicative of an intended participation of the Senate, in the negotiation of treaties is the fact, already adverted to, that in the Convention, until almost the last moment, it was agreed that the treaty-making power should be vested exclusively in the Senate, a body the membership of which at that time it was thought would remain comparatively small.7

Actual practice exhibits frequent instances in which the Senate has participated in the negotiation of treaties.

During the first years under the Constitution the relations be-tween the President and the Senate were especially close. In 1789 President Washington notified the Senate that he would confer with them with reference to a treaty with certain of the Indian tribes, and, on the next day, and again two days later, went with General Knox before that body for that purpose. Again, in 1790, President Washington in a written communication asked the advice of the Senate as to a new boundary treaty to be entered into with the Cherokees. So also, in 1791, he asked the Senate to advise him as to what answer to be made to the French Charge des Affaires, with regard to a question of tonnage on foreign vessels.

1 It would appear that the original intention of the framers of the Constitution was that the Senate should act more as an executive council than as an upper legislative chamber. See Ford, Rise and Growth of American Politics, " The law makes the Senate the adviser of the President in the making of a treaty through all its stages - not that it requires that, in every Instance, the President shall have the advice and consent of the Senate, hut that, in .'very instance, the President has the right to have it. and correspondingly, in every instance, the Senate has the right to enforce it. It is a reciprocal right for a common benefit." Senator A. 0. Bacon in the North American Review, April 19, 1906.

John Quincy Adams in his Memoirs8 relates that Crawford told him that Washington went to the Senate with a draft of a treaty; that "they debated it, and proposed alterations, so that, when Washington left the Senate Chamber, he said he would be damned if he ever went there again. And ever since that time treaties have been negotiated by the Executive before submitting them to the consideration of the Senate."

In fact, however, the Presidents did continue occasionally to consult with the Senate in regard to the negotiation of treaties.

In 1794, when sending the name of John Jay as Envoy Extraordinary to England, Washington explained to the Senate his purpose in doing so; and the same was done by President Adams in 1797 when nominating the special commission to France.9