ment, and adheres where the executive power is vested. Such conventions are not treaties within the meaning of the Constitution, and, as treaties, supreme law of the land, conclusive on the courts, but they are provisional arrangements, rendered necessary by national differences involving the faith of the nation and entitled to the respect of the courts. They are not a casting of the national will into the firm and permanent condition of law, and yet in some sort they are for the occasion an expression of the will of the people through their political organ, touching the matters affected; and to avoid unhappy collision between the political and judicial branches of the government, both which are in theory inseparably all one, such an expression to a reasonable limit should be followed by the courts and not opposed, though extending to the temporary restraint or modification of the operation of existing statutes. Just as here, we think, this particular convention respecting San Juan should be allowed to modify for the time being the operation of the organic act of this Territory, so far forth as to exclude to the extent demanded by the political branch of the government of the United States, in the interest of peace, all territorial interference for the government of that island."17 On November 29, 1873, Mr. Fish, Secretary of State, and Rear Admiral Polo, Spanish minister, signed a protocol of an agreement in which the Spanish government agreed forthwith to restore the steamer Virginius and the survivors of her passengers and crew, which had been seized on the high seas by a Spanish man-of-war, and to salute the flag of the United States, or, in case the United States should become satisfied that the vessel was not entitled at the time of capture to carry the flag of the United States, to make a disclaimer of intent of indignity to the flag of the United States. A subsequent protocol, signed December 8, 1873, prescribed the manner in which the protocol of November 29 should be carried out.18 By an agreement

17 Watts v. United States (1870), 1 Wash. Ter. 288, 294. It was held that a murder committed on San Juan, in 1869, while that island was under the joint military occupancy of the United States and Great Britain, pursuant to the agreement, pending the final adjustment of the boundary, was not an offense committed at a place within the sole and exclusive jurisdiction of the United States within the meaning of section 3 of the act of Congress of April 30, 1790.

18 Report of Secretary of State, March 15, 1875, For. Rel., 1874, p. 987; H. Ex. Doc. No. 30, 43d Cong., 1st Sess. It was subsequently established to the satisfaction of the government of the United States, that the Vir

signed at Madrid, February 27, 1875, by Mr. Cushing, American minister, and the Spanish minister of state, the government of Spain agreed to pay, and the government of the United States agreed to accept, in full satisfaction of claims for personal indemnification, the sum of eighty thousand dollars.

$57. Adjustment and Settlement of Pecuniary Claims of Citizens Against Foreign Governments.-The President, being entrusted with the right of conducting all negotiations with foreign governments, is the sole judge of the expediency of instituting, conducting or terminating them in respect of reclamations for injuries sustained by citizens abroad. Agreements for the adjustment or settlement of pecuniary claims of citizens against foreign governments, which meet with the approval of the claimants, and by which no obligation, except to relinquish the claim, is assumed on the part of the United States, are not usually submitted to the Senate.19 President Buchanan, in submitting to the Senate, February 9, 1860, an agreement with Venezuela, signed January 14, 1859, for the settlement of claims of citizens of the United States as the result of their expulsion by the Venezuelan authorities from the Aves Island, said: "Usually it is not deemed necessary to consult the Senate in regard to similar instruments relating to private claims of small amount when the aggrieved parties are satisfied with their terms." In the particular instance, it was thought advisable on account of the unstable condition of the Venezuelan government to give the agreement a formal ratification with the advice and consent of the Senate.20 ginius was not entitled under the laws of the United States to fly the American flag, and the salute was dispensed with. The Spanish minister duly expressed on behalf of his government "a disclaimer of an intent of indignity to the flag of the United States." Richardson, Messages, VII, 256.

19 See in this relation, veto message of President Jackson, March 3, 1835 (Richardson, Messages and Papers of the Presidents, III, 146); opinion of Drake, C. J., in Great Western Insurance Co. v. United States, (19 C. Cls. 206, 217, s. c. 112 U. S. 193); decision of William R. Day, arbitrator, in the claim of Metzger & Co. against Haiti under the protocol signed October 18, 1899 (For. Rel., 1901, pp. 270-271); report of Mr. Bayard, Secretary of State, to the President, January 30, 1887, on the claims of Antonio Pelletier and A. H. Lazare against Haiti (S. Ex. Doc. No. 64, 49th Cong., 2d Sess., 2-3, 19-20); United States v. Diekelman, 92 U. S. 520, 524; Frelinghuysen v. Key, 110 U. S. 63.

20 Ex. Journal, XI, 142. See Mr. Cass to Mr. Sanford, October 22, 1859, S. Ex. Doc. No. 10, 36th Cong., 2d Sess., 472.

21

The agreement may be recorded by an exchange of notes, or it may be embodied in a protocol or memorandum. Instances of adjustment and direct settlement are numerous. A notable instance is that of the Mora claim against Spain, finally settled by the agreement of August 10, 1895, for the payment by Spain of the sum of 1,500,000 gold pesos. An agreement for the settlement and payment of the claim had originally been reached by exchange of notes in 1886, but the Spanish Cortes failed to vote the necessary appropriation. The Congress of the United States by a joint resolution, approved March 2, 1895, requested the President to insist upon the payment of the sum so agreed upon, with interest from the date when payment should have been made under the agreement.2 Another notable instance of agreement for direct settlement is recorded in notes exchanged, May 28, 1881, between Sir Edward Thornton, British minister, and Mr. Blaine, Secretary of State, in which the government of Great Britain agreed to pay, and the government of the United States agreed to receive, the sum of £15,000 in full satisfaction of claims of American fishermen for injuries sustained in their fishing operations on the coasts of Newfoundland, with particular reference to the Fortune Bay episode of January 6, 1878. These claims grew out of mob enforcement of local regulations alleged by the government of the United States to have been in violation of the fishery liberties secured to inhabitants of the United States under the treaty with Great Britain of 1818.22

Of important agreements for the submission to arbitration of such claims, made and carried into effect without the advice and consent of the Senate, mention may be made of those recorded in notes exchanged, or protocols of agreement signed, as follows: February 11-12, 1871, claims of citizens of the United States. against Spain for injuries committed by Spanish authorities in Cuba;23 August 17, 1874, claims of citizens against Colombia for the seizure of the "Montijo"; June 13, 1891, claims of Amer

21 28 Stats. at L. 975; For. Rel., 1894, Appendix I, 364-450; For. Rel., 1895, II, 1162-1176.

22 Proceedings in the North Atlanic Coast Fisheries Arbitration, III, 736. Many references to the adjustment and direct settlement of claims of citizens may be found in the annual messages of the Presidents. See for instances, Richardson, Messages and Papers of the Presidents, IV, 263; For. Rel., 1899, p. XV; Id., 1900, p. XXII. See also For. Rel., 1881, pp. 589-591; Id., 1885, pp. 323, 493; Id., 1894, p. 287.

23 In the case of Angarica v. Bayard, it was declared by the Supreme

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ican citizens and British subjects against Portugal on account of the recision by the Portuguese government of the concession to the Lourenco Marques Railroad Company; July 6, 1897, claim of the Cheek estate against Siam;24 May 28, 1884, May 24, 1888, and October 18, 1899, claims of Pelletier and Lazare, Van Bokkelen, and Metzger & Company, respectively, against Haiti; March 14, 1870, claims against Brazil resulting from the wreck of the "Canada"; September 6, 1902, claim of Brenner, et al., against Brazil; April 28, 1902, claim of Sala & Company against the Dominican Republic; January 31, 1903, certain questions as to the time and manner of payments to be made by the Dominican Republic to the San Domingo Improvement Company; February 23, 1900, claim of Robert H. May against Guatemala and the counter-claim of Guatemala against May; March 2, 1897, claims of Charles Obelander and Barbara Messenger against Mexico; March 22, 1900, amounts to be awarded by Nicaragua to Orr and Laubenheimer and the Post-Glover Electric Company; May 17, 1898, amount of damages to be awarded by Peru to Victor H. MacCord; December 19, 1901, claim of the Salvador Commercial Company against Salvador; September 8, (August 26) 1900, claims against Russia for the detention of certain American schooners by Russian cruisers; May 22, 1902, (ratified by the Mexican Senate, May 30, 1902), the Pious Fund claim against Mexico; February 17, 1903, the unsettled claims of American citizens against Venezuela; May 7, 1903, the question of the preferential treatment of the claims of certain powers against Venezuela; February 13, 1909, the claims of the Orinoco Steamship Company, the Orinoco Corporation, and the United States and Venezuela Company against Venezuela;25 May 25, 1909, claim of the George D. Emery ComCourt of the District of Columbia that this agreement was not a treaty and that it could not modify the operation of a statute even if such had been the intention. 4 Mackey (1885) 310.

24 The case of E. V. Kellett, U. S. vice-consul general in Siam, likewise submitted to a board of arbitration, involved the question of an affront to an American consular officer. Moore, Int. Arb., II, 1862.

25 Only the claim of the first named company was finally submitted. The claims of the others were settled and the settlements recorded in protocols signed September 9, 1909, and August 21, 1909, respectively. The claim of A. F. Jaurett was settled and a memorandum of settlement was signed at Caracas by Mr. Buchanan and the Venezuelan minister for foreign affairs, February 13, 1909. A settlement of the case of the New York and Bermudez Company was reached on the same date by the claimant acting directly with the Venezuelan government. Sen. Doc. No. 13, 61st Cong., 1st Sess., 10.

pany against Nicaragua ;26 and December 1, 1909, the Alsop claim against Chile.27

§58. Agreements as Basis of Future Negotiations, or of Foreign Policy.-Protocols of agreement as to the basis of future negotiations are clearly within the authority of the President. Such are for instance the protocols signed with Costa Rica and

26 The claim was subsequently settled by direct agreement and a protocol of settlement signed September 18, 1909.

27 Note may also be made of the claims of the owners of the steamer "Colonel Lloyd Aspinwall" against Spain, submitted in 1870 (Moore, Int. Arb., II, 1013; Richardson, Messages, VII, 98); the claim of the owner of the bark "Masonic" against Spain, submitted in 1885 (Moore, Int. Arb., II, 1055, 1060); the claim for the seizure of the "Good Return" against Chile, submitted in 1873, which was subsequently settled by direct agreement, (Id., 1466-1468); the claim of Henry Savage against Guatemala, submitted by agreement signed May 4, 1864 (Id., 1855, 1857); the claim of Dr. Ashmore against China, submitted in 1884 (Id., 1857); and the claims of various citizens against Haiti resulting from riots in Port au Prince in 1883. (Id., 1859). See also For. Rel., 1904, p. 368; Moore, Int. Law Digest, I, 50-51. Of claims against the government of the United States of nominal amounts adjusted by the Executive, note may be made of the claim of Zambrano, formally presented by the Mexican ambassador, and settled by the Secretary of State by the payment of $500, (For. Rel., 1904, pp. 481, 482), and the claim of Luciano Arestuche, settled by the payment to the Cuban government of $500. For. Rel., 1905, pp. 276, 277, 279). By an arrangement effected by exchange of notes between the United States, Great Britain, and Germany, in 1900, (For. Rel., 1900, pp. 476, 627, 899, 902), the arbitrator under the treaty between those powers of November 7, 1899, was requested to include in his awards claims of foreigners not under the jurisdiction of the treaty powers, to which by the treaty he was limited. As the result of this arrangement the United States was found liable for claims of Danish subjects in the sum of $760 (Sen. Doc. No. 160, 59th Cong., 1st Sess.), and of French subjects in the sum of $3,391.13. (H. Doc. No. 612, 59th Cong., 1st Sess.) An act of Congress, approved June 30, 1906, made provision for the payment of these amounts. See for agreement between Great Britain and the United States that each should pay one-half of the amount found due German subjects, Sen. Doc. No. 85, 59th Cong., 1st Sess. The question of the fault of the U. S. S. "San Jacinto" for the collision with the French brig "Jules et Marie" on November 3, 1861, was referred by the Executive to a commission composed of American and French naval officers with a naval officer of Italy as arbiter. It was found that the collision resulted through the fault of the "San Jacinto," and that the sum of $9,500 would be an equitable allowance to the injured party. (Richardson, Messages, VI, 142). By an act approved December 15, 1862, Congress made provision for the payment to the French government of the amount so found due. (12 Stats. at L.