Notes from Edmund Randolph, c.24 June 1795
Notes from Edmund Randolph
[c.24 June 1795]1
The resolution of the Senate is to this import: that the Senate advise and consent to the ratification of the treaty, upon condition, that an article be added to it, which shall suspend so much of the 12th article, as respects the West-India trade: and that the President be requested to open without delay further negotiations upon this head.2
The expectation of the supporters of this resolution is, that the President will send to the Senate an article to this effect, drawn in form, and ask them, whether they do assent to such an article, if it be inserted in the treaty; that upon their saying, that they will, the President will now ratify the treaty provisionally, put it into the hands of his minister, with an instruction to exchange it for a similar treaty.
This subject cannot be taken into consideration by the President too early; as it involves some critical, delicate and hazardous points.
1. If he sends an article ready drawn, it will be asked, why did he do so? The answer is, that he was anxious to prevent delays in concluding the treaty. Does he mean to exhibit his approbation of the treaty so strikingly? Thus much is true, that unless such a proposition should originate from him, it cannot originate from the Senate; because they have no right to make independent propositions upon an executive matter. I say independent for I consider the proposition of a qualified ratification, as connected with their constitutional power over the treaty.
2. As a qualified ratification is a new thing in diplomatic history; so may our forms of proceeding be accommodated to the newness of our situation. Hence the President has, on one occasion, inquired of the Senate, whether they would ratify a treaty with a certain clause in it.3 But he has never yet gone so far, as to ask them now to approve a particular article, which he proposes; and now beforehand to approve a treaty, which shall have that article in it. It is true, that the Senate will see as fully now, as they can hereafter, what will be in the treaty. But if the regular course of proceeding being to have before them the act, which they are to confirm, it will be viewed by the world as an excessive ardour to get at the treaty, were the President to overleap the usual forms by such a proposition.
3. Does he mean to ratify now, so as to render it unnecessary for the treaty to come back to himself, after the new suspending article is inserted? If he does, the propriety of putting the final seal on an act, before it is complete, or of delegating to another the power of seeing that it is complete, is, to say the least, very doubtful. And if the President ought not to do this for himself, ought he to apply to the Senate to do it for themselves?
4. The propriety of this proceeding will be determined by the public according to the effects, intended to be produced. These will be clearly seen to be, to prevent a future senate from negativeing the ratification, as they may do, if the question be not settled now, and to cut off delay. Whether the latter is so important as to counterbalance the impressions, arising from the former, the President will determine.
5. Perhaps it will be incumbent upon the President to satisfy himself on these questions: 1. Will he bind himself now to ratify upon the change being made in the West India article, so that he cannot refuse to ratify, let other circumstances be, as they will—2. what kind of person, and who is to be employed in this new business?4
1. Silence—2. positive declaration—3. qualified declaration.
1. Silence throws a doubt on Pt’s intentions; the effect incidental to an unsettled state of things.
From silence, assent argued—why not express.
P. must express to B. Govt else delay—why not now?
Qu: if form settled satisfactorily.
Is article necessary to be propounded?
May it not defeat immediate adjustment?
2. positive.
Message.
The resolution of the Senate, by which “they do consent to and advise the Pt of the U.S. to ratify the treaty of Amity, commerce and navigation, lately concluded between his B. M. and the U.S. of America,” on the co⟨ndi⟩tion therein expressed, was yesterday notified to me. It is expedient, that I should inform you, in what sense I understand that resolution. It is, that, as soon as the condition shall be fulfilled in conformity with the instructions and approbation of the President, his ratification is to take effect and he may cause the ratification to be exchanged. (I shall therefore proceed upon this idea, unless the contrary be stated to me; and, if the condition be agreed to, I shall ratify the said treaty).
1st alternative—I shall therefore hold myself free to act upon this construction, unless the contrary be stated to me.
2d Alternative. I shall therefore proceed upon this idea, unless the contrary be stated to me; and if the condition be agreed to, I shall ratify the said treaty, should no justifying cause shall cause oppose such a measure.
Qu: if necessary to say any thing about further negotiation.
Draft of an article to be added.
Whereas the President and Senate of the U.S. of America have expressed their desire that there be added to the foregoing treaty an article, suspending the operation of so much of the 12th article as respects the trade, which his majesty thereby consents may be carried on between the U.S. and his islands in the West Indias, in the manner and on the terms and conditions therein specified.
It is therefore agreed, that the operation of so much of the said article, as is now recited be suspended.
Message.
The resolution of the Senate, by which “they do consent to and advise the President of the U.S. to ratify the treaty of Amity, commerce and navigation, lately concluded between his B.M. and the U.S. of America,” on the condition therein expressed, was yesterday notified to me—I infer from hence, that it is not the expectation of the Senate, that the treaty should be returned to them for consideration; and that as soon as the condition shall be fulfilled in conformity with the instructions and approbation of the President, he is free to cause the ratification to be exchanged. But as I am desirous when I deliver my final judgment on the treaty of being assured, that I have truly understood the sense of the senate; I submit to them whether an article, which shall be in substance the same with the draught, now forwarded, will fulfil the condition intended by the resolution.
ADf, DLC:GW.
1. The date of this document is based in part on the Senate resolution of 24 June. Randolph penned these notes for GW to consider as a possible response. In addition, Randolph included two proposed messages to the Senate, and in both he referred to the resolution “yesterday notified to me.” That phrase indicates that Randolph wrote the notes in time for GW to read and then decide if he wished to respond to the Senate before it adjourned on 26 June.
2. By a vote of 20–10, the Senate resolved on 24 June “That they do consent to, and advise the President of the United States, to ratify the treaty of amity, commerce, and navigation … on condition that there be added to the said treaty an article, whereby it shall be agreed to suspend the operation of so much of the 12th article, as respects the trade” between the United States and the British West Indies “in the manner, and on the terms and conditions therein specified.” The Senate then unanimously recommended that GW “proceed, without delay, to further friendly negotiations with his Majesty, on the subject of the said trade, and of the terms and conditions in question” ( 186).
3. Randolph evidently was referring to the proposed Secret Article of the Treaty with the Creeks, enclosed with GW’s message to the Senate of 4 Aug. 1790.
4. The preceding text appears on pages docketed by Randolph: “Notes, submitted to the consideration of the President.” The remaining text is on a separate set of pages.