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The Two-Thirds Rule in Senate Action Upon Treaties

Published online by Cambridge University Press:  12 April 2017

R. Earl McClendon
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American Journal of International Law , Volume 26 , Issue 1 , January 1932 , pp. 37 - 56
Copyright
Copyright © American Society of International Law 1932

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References

1 His attitude may be understood by specific reference to only a few of the pointed statements he made in that regard. Just after the Senate had agreed with but one vote to spare to the ratification of the treaty of peace with Spain in February, 1899, Hay stated that there were several outstanding questions which should be settled by the treaty method. He believed that each of the treaties would be supported by a majority of the Senate, but that “a malcontent third would certainly dish every one of them.” (See Henry, Adams, The Education of Henry Adams, Boston, 1918, p. 374 Google Scholar.)

In the spring of 1899, when on the verge of a nervous collapse, Hay wrote to his intimate friend J. G. Nicolay that the thing which had aged and broken him was the attitude of a “minority of the Senate which brings to naught all the work a State Department can do.” (Quoted in Thayer, W. R., The Life and Letters of John Hay, 2 vols., Boston, 1915, II, pp. 239–240 Google Scholar.) When in October, 1900, the Secretary came to the point of resigning his post, he stated that one reason for taking this action was because the Senate made it impossible for him to carry out the policies he had expected to pursue. (Hay to Samuel Mather, Oct. 8, 1900, in Thayer, John Hay, II, p. 254.)

2 He once compared a treaty entering the Senate to a “bull going into an arena.” (Thayer II, p. 393.) Familiar to many, too, is the story that more than once Hay stated that because he was so hampered by the Senate in dealing with foreign nations he felt “as if he had one hand tied behind his back and a ball and chain about his leg.” See Low, A. M., “The Usurped Powers of the Senate,” in The American Political Science Review, I, pp. 1–16 Google Scholar.

3 For a representative portion of this type of criticism, see McCall, S. W., “The Power of the Senate,” in Atlantic Monthly, XCII, pp. 433–442 Google Scholar; Perry, S. H., “The Treaty-Making Power,” in North American Review, CCXVI, pp. 32–40 Google Scholar; Garner, J. W., American Foreign Policies (New York, 1928), pp. 29–30 Google Scholar.

4 See Perry, op. cit., Presidential address of Davis, John W., in Report of 46th Annual Meeting, American Bar Association, August, 1923 (Baltimore, 1923), pp. 202–203 Google Scholar; Mathews, J. M., American Foreign Relations (New York and London, 1928), pp. 425 Google Scholar, note, and 429.

5 55th Cong., 3rd Sees., House of Representatives Journal, Feb. 6,1899, p. 137; 56th Cong., 1st Sess., H. R. Journal, Dec. 4, 1899, p. 10.

6 66th Cong., 2nd Sess., Congressional Record, March 22, 1920, p. 4674.

7 66th Cong., 3rd Sess., Congr. Record, Dec. 6, 1920, p. 11.

8 67th Cong., 1st Sess., Congr. Record, April 12, 1921, p. 151; 68th Cong., 1st Sess., Congr. Record, Dec. 10,1923, p. 150. John W. Davis, as President of the American Bar Association in 1923, and again as candidate for President of the United States the following year, warmly approved this proposal. See Report of the American Bar Association, August, 1923, pp. 202–203; N. Y. Times, July 26, 1924.

9 66th Cong., 1st Sess., Congr. Record, July 28, 1919, p. 3292; 67th Cong., 1st Sess., Congr. Record, April 11, 1921, p. 100; 68th Cong., 1st Sess., Congr. Record, Dec. 5, 1923, p. 43; 69th Cong., 1st Sess., Congr. Record, Dec. 7, 1925, p. 455; 70th Cong., 1st Sess., Congr. Record, Dec. 5, 1927, p. 99. The persistent representative was A. J. Griffin of New York. The late Bryan, W. J., in his Jackson Day Address, January, 1920 Google Scholar, favored this change. See 66th Cong., 2nd Sess., Congr. Record, Jan. 9, 1920, pp. 1250–1251. It has been favored by Quincy Wright, The Control of American Foreign Relations (New York, 1922), p. 368, note; and Garner, , American Foreign Policies, p. 30 Google Scholar. See also Fleming, D. F., The Treaty Veto of the American Senate (New York and London, 1930), especially, pp. 282 Google Scholar ff.

10 See 66th Cong., 3rd Sess., Congr. Record, Jan. 7, 1921, p. 1134.

11 These figures have been derived from a careful survey of the Journal of the Executive Proceedings of the Senate of the United States of America, 1789–1901 (32 vols., in 34, Washington, 1828–1911), which is to be cited hereafter simply as Senate Executive Journal (Sen. Ex. Jour.). It is to be noted that no attempt has been made to state with exact mathematical accuracy the largest figures which have been given in this summary. The chances of error are too great, especially, since in some cases the records are not entirely free from error. Moreover, a number of documents which passed through the Senate as regular treaties were nothing more than additional articles or agreements to extend the time-limit for an exchange of ratification, or again merely the extension of the duration of a former treaty. It is hoped, however, that the smaller figures are exactly correct. That is particularly true with regard to the number of treaties which have been defeated by the operation of the two-thirds rule.

The totals given, it should be understood, include agreements with Indian tribes which, until 1871, were submitted to the Senate for approval just as those with foreign countries. For secondary statements of treaty totals, see Lodge, H. C., A Fighting Frigate and Other Essays (New York, 1902), pp. 253–254 Google Scholar; Tansil, C. C., “The Treaty-Making Power of the Senate,” in this Journal, Vol. 18 (1924), pp. 459–482 Google Scholar; “Treaty-Making Powers of the Senate,” Foreign Policy Association Pamphlet, IV, No. 16.

12 This rule is printed in Sen. Ex. Jour., I, p. 376.

13 As will be seen, all were ratified eventually. For the texts, see Indian Affairs Laws and Treaties, comp. by C. J. Kappler (2 vols., Washington, 1904), issued as 58th Cong., 2nd Sess., Senate Doc. No. 319, II, pp. 519–524, 557–560, and 776–780, respectively.

14 For these votes on the resolutions of advice and consent to ratification, see Sen. Ex. Jour., V, pp. 181–182; VII, p. 124; and X, pp. 439–440.

15 The information pertaining to the political party affiliation of the individual senators who participated in these votes was gained largely from The Biographical Directory of the American Congress, 1774–1927 (Washington, 1928), issued as 69th Cong., 2nd Sess., House Doc. No. 783. The brief biographical sketches, which form the major portion of this work, give in practically every case the party adherence of each person who has served as a member of Congress. As these sketches are arranged alphabetically according to the name of the individuals, and with no regard for the time of the periods of service, it is obviously impracticable to cite specific page references. Later statements made in the text of this paper with regard to the political complexion of any vote, it is to be understood, are based upon this same source. Further citations to it, therefore, seem unnecessary.

16 Sen. Ex. Jour., V, p. 183; VII, p. 126; and XI, p. 56.

17 Treaty with the Dacotah (Sioux) Indians, Oct. 9, 1849. MSS., Dept. of Interior, Office of Indian Affairs. The tract was familiarly known as the Wabasha Reservation.

18 Sen. Ex. Jour., VIII, p. 229.

19 Sen. Ex. Jour., VIII, p. 248.

20 U. S. Stat, at Large (44 vols., Boston and Washington, 1845-1927), X, p. 304.

21 W. P. Cole, Commissioner of Indian Affairs, to the Senate Committee of Indian Affairs, May 4, 1864, in 38th Cong., 1st Sess., Sen. Report No. 62, pp. 1-2. For a general account of this whole affair, see Folwell, W. W., A History of Minnesota (4 vols., Saint Paul, 1921–1929), I, pp. 267–304, 321–325 Google Scholar, 483.

22 This treaty, of course, was ratified. In the amended form, it is found in Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers, 1776–1909, comp. by W. M. Malloy (2 vols., Washington, 1910), issued as 61st Cong., 2nd Sess., Sen. Doc. No. 357, 1, pp. 1121–1125. The original text may be reconstructed by comparing this amended form with the resolution of ratification (stating the amendments) as given in Sen. Ex. Jour., IX, pp. 312-315. The original text, however, appeared in a very accurate form in the N.Y. Daily Times, Feb. 15, 1854.

23 Sen. Ex. Jour., IX, pp. 238–239.

24 Garber, P. N., The Gadsden Treaty (Philadelphia, 1923)Google Scholar, discusses in full the diplomatic situations which produced the treaty, the negotiation, and the Senate action upon it. Rippy, J. F., The United States and Mexico (New York, 1926)Google Scholar, devotes several chapters to this phase of the relations between the two countries. See pp. 42–168.

25 Sen. Ex. Jour., IX, pp. 302–306.

26 Ibid., pp. 311–315.

27 Sen. Ex. Jour., X, p. 139. Two minor amendments had been adopted before the vote was taken.

28 Ibid., X, pp. 142–143.

29 Ibid., pp. 143–144.

30 See Malloy, , Treaties, Conventions, etc., II, pp. 1814–1823 Google Scholar.

31 Treaty with Nicaragua, March 16, 1859, MSS., Dept. of State. A copy of this treaty was published in the N. Y. Herald, March 21, 1860.

32 Sen. Ex. Jour., XI, pp. 160–161.

33 Ibid., p. 163. One minor, technical change had been made.

34 N. Y. Herald, March 21, 1860.

35 Sen. Ex. Jour., XI, pp. 217–218.

36 This was due largely to dilatory tactics on the part of Nicaragua, and issues connected with the Civil War on the part of the United States. President Lincoln ratified a slightly modified form of it on May 19, 1862. But Nicaragua failed to take similar action.

37 Sen. Ex. Jour., XVI, p. 152.

38 See Malloy, , Treaties, Conventions, etc., II, pp. 1279–1287 Google Scholar.

39 Treaty with Spain, March 5, 1860; MSS., Dept. of State. The facts in the case of the “Cuban claims” may be noted in the preamble to the treaty, and in President Franklin Pierce’s message to Congress, Dec. 31, 1855, in A Compilation of the Messages and Papers of the Presidents, ed. by Richardson, J. D. (10 vols., Washington, 1896–1899)Google Scholar, issued as 53rd Cong., 2nd Sess., House Misc. Doc. 210, V, p. 336. For the history of the Amistad affair see 31st Cong., 2nd Sess., Sen. Rep. No. 301; Henry Wilson, History of the Rise and Fall of the Slave Power in America (3 vols., Boston, 1872–1877), I, pp. 456–469.

40 Sen. Ex. Jour., XI, pp. 226–227.

41 Ibid., p. 227.

42 Ibid.

43 See Malloy, , Treaties, Conventions, etc., I, pp. 73–75 Google Scholar. The treaty dealt in a small way also with the general subject of commerce and navigation.

44 Sen. Ex. Jour., XIII, p. 416.

45 Ibid., p. 423.

46 For a copy of this treaty, see Hawaiian Islands, in 53rd Cong., 2nd Sess., Sen. Rep. No. 227, pp. 45–47. On March 11, 1857, the Senate Committee on Foreign Relations recommended that it be not approved. See Sen. Ex. Jour., X, p. 237.

47 W. H. Seward to James McBride, Feb. 8, 1864, in Compilation of the Reports of the Senate Committee on Foreign Relations, VIII, p. 147.

48 Treaty with Hawaii, May 21, 1867, MSS., Dept. of State.

49 Seward to E. M. McCook, Sept. 12, 1867, in 52nd Cong., 2nd Sess., Sen. Ex. Doc. No. 77, p. 139.

50 Sen. Ex. Jour., XVII, p. 466. This vote was in no sense sectional or political.

51 See Malloy, , Treaties, Conventions, etc., I, pp. 915–917 Google Scholar.

52 The text of the treaty is printed in 41st Cong., 3rd Sess., Sen. Ex. Doc. No. 17, pp. 98–100.

53 Sen. Ex. Jour., XVII, p. 392. Nine days later Sumner defended the committee’s action in a four-hour speech. See N. Y. Herald, March 25, 1870; E. L. Pierce, Memoirs and Letters of Charles Sumner (4 vols., Boston, 1877–1894), IV, pp. 440–441.

54 Sen. Ex. Jour., XVTI, pp. 502–503. Two of these amendments had been suggested by Grant, See ibid., pp. 460-462.

55 If a newspaper account in this case is trustworthy, there remains one further piece of evidence that a majority favored the treaty. The N. Y. Herald, July 1, 1870, states that one senator who voted in the negative really meant to support the treaty, but got on the wrong side at the last moment.

56 For the text of the treaty, see 49th Cong., 1st Sess., Sen. Rep. No. 1316, pp. 16–17. The work of the commission under the Convention of 1868 is summarized in J. B. Moore, History and Digest of International Arbitration (6 vols., Washington, 1898), issued as 53rd Cong., 2nd Sess., House Misc. Doc. No. 212, II, pp. 1314 ff.

57 Sen. Ex. Jour., XXIII, p. 595.

58 This is explained in a letter by Secretary of State T. F. Bayard to President Grover Cleveland, Feb. 28, 1888. See Awards of the Mexican Claims Commission, in 50th Cong., 1st Sess., Sen. Ex. Doc. No. 109, p. 6. Bayard was a Senator when the treaty was defeated.

59 Sen. Ex. Jour., XXV, pp. 429–30.

60 49th Cong., 1st Sess., Congr. Record, April 21, 1886, p. 3660.

61 U. S. Stat, at Large, XXVII, pp. 409–412.

62 See La Abra Silver Mining Company, in 56th Cong., 1st Sess., Sen. Doc. No. 271; 56th Cong., 2nd Sess., Sen. Rep. No. 1758.

63 The amount returned in both cases was $690,863.85. See John Hay to M. de Aspiro, March 28, 1900, in La Abra Silver Mining Company in 56th Cong., 1st Sess., Sen. Doc. No. 271, p. 42; Hay to Aspiro, Nov. 12, 1900, in Unexpended Balance of Award in Favor of Benjamin Weil, in 56th Cong., 2nd Sess., House Doc. No. 182, p. 2.

64 U. S. Stat, at Large, XXXII, p. 5.

65 Treaty with Nicaragua, Dec. 1, 1884, MSS., Dept. of State. A copy was printed later in Nicaragua Canal, in 55th Cong., 2nd Sess., Sen. Rep. No. 1265, pp. 20-27.

66 For attempts to postpone consideration in the Senate until after March 4, 1885, see Sen. Ex. Jour., XXIV, p. 450; N. Y. Tribune, Jan. 29, 1885.

67 Sen. Ex. Jour., XXIV, pp. 451–452. This, of course, was aimed at the Clayton-Bulwer Treaty.

68 Ibid., pp. 452–453.

69 Ibid., p. 456.

70 Sen. Ex. Jour., XXV, pp. 7–8.

71 This treaty was ratified. For the original text, compare the Senate amendments as given in Sen. Ex. Jour., XXIV, pp. 210–211, with the amended form in Malloy, Treaties, Conventions, etc., I, pp. 1146–1152.

72 Sen. Ex. Jour., XXIV, p. 129.

73 Ibid., p. 140.

74 Ibid., pp. 140–141.

75 Ibid., pp. 209–210.

76 Sen. Ex. Jour., XXIV, p. 210.

77 The text of this treaty as amended slightly, is in Malloy, Treaties, Conventions, etc., I, pp. 740–742. A correct copy of the original text was printed in the N. Y. Tribune, Jan. 26, 1890.

78 Sen. Ex. Jour., XXVII, p. 468.

79 Ibid., pp. 468–469.

80 Ibid., p. 469.

81 Sherman had opposed both amendments; and he later offered a motion for reconsideration. See Sen. Ex. Jour., XXVII, pp. 468–469, 470.

82 Sen. Ex. Jour., XXVII, pp. 468–469, 470. The votes on the amendments were not recorded.

83 Treaty with Great Britain, Jan. 11, 1897, MSS., Dept. of State. It has been printed in a number of places. See, for instance, 54th Cong., 2nd Sess., Sen. Doc. No. 63.

84 Cleveland to T. F. Bayard, Feb. 13, 1895, quoted in Robert McElroy, Grover Cleveland The Man and Statesman (2 vols., New York, 1923), II, pp. 89–92.

85 Cf. Henry, James, Richard Olney and His Public Service (Boston and New York, 1923), pp. 168–169 Google Scholar.

86 For a statement of the main objections to the treaty, see the minority report of the Committee on Foreign Relations in Compilation of the Reports of the Senate Committee on Foreign Relations, VIII, pp. 410–425.

87 President McKinley in his inaugural address heartily approved it. The shifts among the members of the Senate did not alter the vote appreciably.

88 For the text of the amendments, see Sen. Ex. Jour., XXXI, pp. 102–105.

89 Ibid., p. 105.

90 A fairly definite idea of the part played by the money question in the defeat of the treaty may be gained by a comparison of this vote with one on what amounted to an act to restore the coinage of silver dollars, Feb. 1, 1896. See 54th Cong., 1st Sess., Congr. Record, Feb. 1, 1896, p. 1216. Allowance must be made, of course, for a few changes which had been made in the Senate between these dates.