George Washington Papers

To George Washington from Oliver Wolcott, Jr., 30 June 1795

From Oliver Wolcott, Jr.

Treasury Department June 30th 1795.

The Secretary of the Treasury in obedience to the requisition of the President of the United States respectfully submits his opinion upon the following questions, arising upon the resolution passed by the Senate on the 24th of the present month, respecting the proposed Treaty with Great Britain.1

1st Is, or is not, the said resolution intended to be the final act of the Senate, or do they expect that the new article which is proposed, shall be submitted to them before the Treaty takes effect?

2nd Does or does not the Constitution permit the President to ratify the Treaty without submitting the new article after it shall be agreed to by the British King, to the Senate for their further advice & consent?

To the first question the Secretary of the Treasury replies, that the said resolution of the Senate is a final act of that body, by which they have expressed in the terms of the Constitution, their approbation of every article in the said proposed Treaty, excepting a part of the twelfth article to which the Senate have not assented. And it is the opinion of the said Secretary, that in case a form of ratification shall be adopted by the President and be accepted by his Brittanic Majesty, reciting an article suspending the operation of that part of the 12th article to which the Senate have not assented; that the said resolution will be fully satisfied & the proposed Treaty will become valid & obligatory upon the contracting parties, without the further concurrence of the Senate.

To the second question the said Secretary replies, that the powers of commencing negociations with foreign nations & of propounding, or receiving propositions, which are intended to be introduced into Treaties with the United States, are by the Constitution exclusively vested in the President—that in making treaties the powers of the Senate are merely deliberative & that their advice & consent can be expressed only upon such propositions, as are submitted to their consideration.2

It is conceived however that the Senate are not confined to to a general affirmative or negative decision, on a proposed Treaty embracing distinct propositions; but that they may regularly limit their concurrence by such exceptions as they judge proper.

In deciding upon a proposed Treaty which has been submitted to the consideration of the Senate, the President is however to regard the entire act as modified by any exceptions, and may approve or reject the same as he shall judge proper. But in case the President shall see fit, to approve of a proposed Treaty with the exceptions of the Senate, he may accordingly ratify the same, without submitting for their further advice & consent, such rescinding clauses or articles, as it may be necessary to introduce into the Treaty, for the mere purpose of giving effect to the concurrent decisions of the President & Senate. All which is most respectfully Submitted to the consideration of the President of the U. States by

Oliver Wolcott jr
Secr. of the Tresy

ADfS, CtHi: Oliver Wolcott, Jr., Papers.

1For the Senate resolution of 24 June, see Notes from Edmund Randolph, c.24 June, n.2. On 29 June, GW sent each of his cabinet officers a letter that posed questions pertaining to the Jay Treaty (see Randolph to GW, 25 June, n.3). The opinion of Timothy Pickering has not been identified. Nor have the written comments by William Bradford, although the attorney general did express sentiments to Alexander Hamilton on 2 July, which may have reflected the opinion he sent to GW. To Bradford, the recent Senate resolution “is so equivocally expressed that it may mean either, that the President shall now make a conditional ratification: or that he shall ratify it hereafter, if the British king shall consent to insert in the treaty the proposed article. … On either construction, I hold this act to be the final act of the Senate & that it is not necessary to submit to them the new article after it shall have been agreed to on the other side of the water” (DLC: Alexander Hamilton Papers; see also Hamilton Papers, description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends 18:394). Randolph expressed his opinions in a letter to GW of 12 July.

2Article II, section 3, of the U.S. Constitution states that the president “shall receive Ambassadors and other public Ministers.” Section 2 of that article states: “The President … shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

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