The framers of the Constitution made treatymaking a concurrent power, shared by the executive and legislative branches of government. While the Constitution stipulates that two-thirds of senators must agree to a treaty, it does not define the manner in which the Senate should offer its advice. Many of the framers thought the Senate would meet with the president in the manner of an executive council, and that they would jointly deliberate the details of a treaty. Early on in the First Congress, however, an important precedent steered the Senate towards a more independent role in exercising its treaty powers.
In early August 1789, a Senate committee met with President George Washington and they agreed that oral communications regarding treaties may be necessary at times. The resulting resolution made provisions for meetings with the president in the Senate Chamber. The first opportunity to test this mode of communication came on August 22, when President Washington and Secretary of War Henry Knox arrived at the Senate Chamber seeking “to advise with them on the terms of the Treaty to be negotiated with the Southern Indians.” While the president, seated in the presiding officer’s chair, and his secretary waited, the Senate voted to refer these questions to a committee rather than debate the issue in the presence of the august president. Irritated, Washington decided that, in the future, he would send communications regarding treaties in writing, setting the precedent that all of his successors have followed.