CHAPTER VIII.

AGREEMENTS REACHED
REACHED BY

THE EXECUTIVE

WITHOUT THE ADVICE AND CONSENT

OF THE SENATE.

§56. Agreements Involving the Military Power of the President. The executive power is by the Constitution vested in the President. He is also the commander-in-chief of the army and navy of the United States. As incident and necessary to the exercise of these powers as also of the power of negotiation temporary arrangements and administrative agreements are frequently made by the President with foreign governments, which are not submitted to the Senate for its approval.1

An agreement, terminable on six months' notice, was reached with Great Britain and recorded in notes exchanged at Washington, April 28-29, 1817, between Mr. Bagot, British minister, and Mr. Rush, Acting Secretary of State, for the limitation of the naval forces to be maintained by the two governments on the Great Lakes. Nearly one year later, April 6, 1818, President Monroe submitted the correspondence to the Senate for its consideration whether it was such an arrangement as the Executive was competent to enter into by the powers vested in him by the Constitution, or was such as required the advice and consent of the Senate. The Senate by a resolution of April 16 (two-thirds of the Senators present concurring), approved of and consented to the arrangement, and recommended that it be carried into effect by the President. There was no formal exchange of ratifications, but the arrangement was proclaimed by the President, April 28, 1818. An act of Congress approved February 27, 1815, had authorized the President to cause all armed vessels on the Lakes, except such as in his opinion were necessary for the execu

I "It [the conduct of foreign relations] involves intercourse, oral and written, conferences, administrative agreements and understandings, not included in the generic word 'treaty,' as used in the Constitution. All treaties are agreements, but all international agreements and understandings are not 'treaties.'” John C. Spooner, in the U. S. Senate, January 23, 1906, Cong. Record, 59th Cong., Ist Sess., 1420.

2 Ex. Journal, III, 132, 134.

tion of the revenue laws, to be dismantled and sold or laid up.3 Immediately upon the exchange of notes and prior to any action thereon by the Senate, the President had proceeded to give effect to the arrangement; and in his annual message to Congress, December 2, 1817, he had referred to the arrangement as having been concluded. Its submission to the Senate appears to have been an afterthought and as an act of prudence. This wise and beneficial arrangement has in its general principle now continued in force for nearly a century.

Note may also be made of the agreements recorded in the protocols signed November 23, 1863, and December 24, 1863, by the Secretary of State and the diplomatic representatives in Washington of France and Austria-Hungary, respectively, permitting the exportation from the United States of certain quantities of tobacco from places within the limits of the blockaded section. At the outbreak of the war with Spain, the Swiss government proposed the adoption by the United States and Spain, as a modus vivendi during the continuance of hostilities, of the additional articles proposed by the Geneva Conference of 1868, extending to naval warfare, so far as practicable, the provisions of the Red Cross Convention of 1864. This proposal was simultaneously accepted by both governments. The Senate had, however, on March 16, 1882, in advising and consenting to the accession of the United States to the convention of 1864, also advised and consented to the accession of the United States to the additional articles of 1868; but the ratifications of the additional articles had never been exchanged.' The most important agreement of this character entered into by the Executive, without the advice and consent of the Senate, is the protocol of August 12, 1898, which

3 3 Stats. at L. 217.

4 H. Doc. No. 471, 56th Cong., 1st Sess., 14.

See as to legislative authority, 12 Stats. at L. 257.

5 Id., 14. See also Memoirs of J. Q. Adams, IV, 41, 84; Richardson, Messages and Papers of the Presidents, II, 12. 6 Hamilton v. Dillin (1874), 21 Wall. 73. section 5 of the act approved July 13, 1861. 7 For. Rel., 1898, pp. LXXXII, 1148. During the progress of the European War, a protocol of an agreement was signed October 10, 1914, by Mr. Lansing, Acting Secretary of State, and Mr. Morales, minister of Panama, in which it was agreed that hospitality extended in the waters of Panama to a vessel in the military or naval service of a belligerent should serve to deprive for a period of three months such vessel of like hospitality in the Panama Canal Zone, and vice versa.

constituted preliminary articles of peace with Spain. By the terms of the protocol Spain, as a basis for the establishment of peace, agreed to relinquish all claim of sovereignty over and title to Cuba, and to cede to the United States Porto Rico and other islands under Spanish sovereignty in the West Indies, and also an island in the Ladrones to be selected by the United States. The disposition of the Philippines was to be determined by the treaty of peace. It further provided for the suspension of hostilities and for the immediate evacuation by Spain of Cuba and Porto Rico. The evacuation of Porto Rico was completed by October 18, 1898, and of Cuba by January 1, 1899, although the treaty of peace was not signed until December 10, 1898, and did not become finally effective until the exchange of ratifications, April 11, 1899. The final protocol signed at Peking, September 7, 1901, by the foreign powers on the one hand, and by China on the other, at the conclusion of the Boxer uprising, likewise was not submitted to the Senate. By this protocol the powers, on their part, agreed to evacuate, with certain exceptions and within a certain period, the city of Peking and the province of Chihli. Among other things China, on her part, agreed to punish certain of the authors of the crimes committed against the foreign governments and their citizens, to pay an indemnity of four hundred and fifty millions of taels as representing the total amount of state and private indemnities, to assign as security for the payment of the indemnity certain revenues, to raze certain forts which might impede communication between Peking and the sea, and to cooperate in the improvement of certain water-courses.

On July 29, 1882, a memorandum of an agreement was signed by Mr. Frelinghuysen, Secretary of State, and Mr. Romero, Mexican minister, providing reciprocally for the crossing of the international boundary line in unpopulated places by the troops of the respective countries in close pursuit of savage bands of Indians. It was recited in the memorandum that since the Mexican Senate had authorized the President of that republic to allow the passing of Mexican troops into the United States and of the troops of the United States into Mexico, and that since the Constitution of the United States empowered the President to allow the passage

8 For. Rel., 1898, p. LXV; For. Rel., 1899, p. XXVIII; Moore, Int. Law Digest, I, 285.

9 For. Rel., 1901, Appendix, 312.

without the consent of the Senate, the agreement did not require the sanction of the Senate of either country, and would take effect on August 18, 1882. Subsequently, on September 21, 1882, a protocol was signed limiting the duration of the agreement to one year. By protocols of agreement signed June 28, 1883, October 31, 1884, and October 16, 1885, the provisions of the agreement of July 29, 1882 were renewed and the period of its duration extended. A provisional and temporary agreement of similar nature was signed by Mr. Blaine, Secretary of State, and Mr. Romero, June 25, 1890. This agreement was renewed November 25, 1892. On June 4, 1896, Mr. Olney, Secretary of State, and Mr. Romero reached a similar agreement which was to remain in force until Kid's band of hostile Indians had been entirely exterminated or rendered obedient to one of the two governments. In 1883, an arrangement with Great Britain as to the crossing of the Canadian boundary, similar to that with Mexico, was proposed by Mr. Frelinghuysen, but the proposal was not acceptable to Canada.10 Mr. Justice Brown in writing the opinion of the court in the case of Tucker v. Alexandroff,11 after noting instances in which permission had been granted by the Executive for the entry into the United States of troops of foreign nations-in 1862, to the British government to land troops at Portland and transport them to Canada; in 1876, to the Mexican government to land troops in Texas supposed to be intended to aid in the defense of Matamoras; and in 1893, and 1901, to various nations to participate in the celebrations at Chicago and Buffalo of those years-said: "While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander-in-chief of the military and naval forces of the United States." In a dissenting opinion, Mr. Justice Gray observed: "The jurisdiction of every nation within its own territory is absolute and exclusive; by its own consent only can any exception to that jurisdiction exist in favor of a foreign nation; and

10 For. Rel., 1883, pp. 496, 527. As to the deportation and delivery to Canadian authorities of refugee Cree Indians, see S. Rept. No. 821, 54th Cong., Ist Sess.; 29 Stats. at L. 117. As to the removal of remnants of Sitting Bull's band, see For. Rel., 1884, pp. 234, 236, 239.

11 183 U. S. 424, 435.

any authority in its own courts to give effect to such an exception by affirmative action must rest upon express treaty or statute. *** It is not necessary in this case to consider the full extent of the power of the President in such matters." The grant of free passage to foreign armed troops implies a waiver of all jurisdiction over them during their passage.1

13

In 1892 with a view to uphold the judicature established in the Samoan Islands by the General Act of Berlin of 1889, the Governments of the three powers,-Great Britain, Germany and the United States-signatories of that act, agreed to support the authority of the Supreme Court therein established in the execution of warrants of arrest, on condition that the ships should be used for that purpose only in case the resident consuls of the three powers were unanimously of opinion that such support was necessary. This agreement was taken into consideration by the arbitrator under the Samoan claims convention of November 7, 1899, in determining the necessity of the co-operation of all three of the powers in enforcing a decision of the court.14 In August, 1904, an agreement was reached between the governments of the United States and Great Britain as to the patrol for the protection of seals in the region of Commander Islands in the Northern Pacific during the Russo-Japanese War.15 By an exchange of notes in 1859, an agreement was reached between the governments of the United States and Great Britain for the joint military occupation of the island San Juan, which agreement continued in force until the final evacuation of the island in 1873 by the British forces in consequence of the arbitral decision of the German Emperor under the treaty of May 8, 1871.16 The Supreme Court of the Territory of Washington, in giving effect to this agreement, by Greene, J., said: "The power to make and enforce such a temporary convention respecting its own territory is a necessary incident to every national govern

12 Id., 456, 459. See for other instances in which permission for entry of foreign troops has been granted by the President, Moore, Int. Law Digest, II, 389. See also For. Rel., 1898, p. 358.

13 Schooner Exchange v. McFaddon, 7 Cranch 116, 139.

14 Translation of memorandum presented by the German government, 10, Annex No. 90; Counter Case of the British government, 7. 15 For. Rel., 1904, pp. 339-342.

16 Moore, Int. Arb., I, 223; Sen. Ex. Doc. No. 29, 40th Cong., 2d Sess., 263.