AND UTTERANCES OF NATIONAL ORGANS. 143 



admitted the same principle with reference to its own ratification 

 when instructions have been given by the full treaty power. Thus in 

 1790 two-thirds of the Senate joined with the President in instruct- 

 ing the negotiation of a treaty with the Cherokees. When the treaty 

 was submitted for ratification, the Senate committee found that it con- 

 formed to these instructions and consequently ratification became 

 obligatory.-^ The same was true of the consular convention with 

 France signed in 1788 according to instructions of Congress which 

 had power to make treaties under the Articles of Confederatioa. 

 The treaty was submitted to the Senate for ratification after or- 

 ganization of the new government under the Constitution. On his 

 advice being asked, John Jay, who continued in charge of foreign 

 afifairs, replied that " while he apprehended that the new conven- 

 tion would prove more inconvenient than beneficial to the United 

 States, the circumstances under which it had been negotiated made, 

 in his opinion, its ratification by the Senate indispensable." The 

 Senate immediately proceeded to ratify.-- 



26. Signature under Authority of the President. 



In case the agreement is of a character which the President has 



authority to make on his own responsibility, such as protocols, 



vention was finally ratified by Spain in 1818. Almost immediately a similar 

 controversy arose over the Florida cession treaty. Secretary Adams said, 

 " The President considers the treaty of 22d February last as obligatory upon 

 the honor and good faith of Spain, not as a perfect treaty, ratification being 

 an essential formality to that, but as a compact which Spain was bound to 

 ratify." He then drew an analogy between an imratified treaty and a covenant 

 to convey land, asserting that " the United States have a perfect right to do 

 what a court of chancery would do in a transaction of similar character 

 between individuals, namely, to compel the performance of the engagement 

 as far as compulsion can accomplish it, and to indemnify themselves for all 

 the damages and charges incident to the necessity of using compulsion." It 

 should be noted that in the full powers of his plenipotentiary, the Spanish 

 monarch had expressly promised to ratify " whatsoever may be stipulated and 

 Figned by you." 5 Moore, Digest, 189-190. In both of these cases the United 

 States distinguished its own position, in which the recognized constitutional 

 rights of the Senate precluded an obligation to ratify. 



21 Crandall, op. cit., p. 79. The question might be raised whether such a 

 delegation is not an unconstitutional delegation of legislative power. See 

 infra, sec. 60. 



22 Crandall, loc. cit.; Hayden, The Senate and Treaties, 1789-1817, N. Y., 

 1920, p. 7. 



