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within the limits of their instructions. Later writers, however, generally hold that this ratification may, for strong and substantial reasons, be refused.21

Up to 1815 the general practice of the President was to obtain the approval of the Senate to the appointment of, and to the instructions given to, commissioners for the negotiation of contemplated treaties. Since that time, however, this practice has been seldom followed. This change has, however, not escaped occasional formal protest from the Senate.

After a treaty has been signed by the commissioners appointed to negotiate it, or agreed upon between the departments of State of the countries concerned, there is no constitutional obligation upon the President to submit it to the Senate, and, even after submission to that body, he may withdraw it, as for instance was done by President Cleveland with reference to a reciprocity treaty with Spain which had been sent to the Senate in 1884 by President Arthur. In a like manner the Hawaiian annexation treaty of 1893 and the Nicaraguan Canal Convention of 1884 were withdrawn "for re-examination," after having been sent to the Senate.

Even after being favorably acted upon by the Senate, it would appear that, under certain circumstances, the President may refuse his ratification. Thus, in 1888, when China proposed certain changes in an agreement with this country which had already been approved by the Senate, the President abandoned the entire project.

21 Crandall, pp. 12 et seq.

CHAPTER XXXIII.

INTERNATIONAL AGREEMENTS WHICH DO NOT REQUIRE THE APPROVAL OF THE SENATE.1

§ 198. International Agreements not Requiring Approval by Senate.

As has been seen, all treaties to which the United States is a party, in order to become legally binding upon the United States and enforceable in its courts, require, in some stage of their negotiation, the approval of the Senate as manifested by a vote of twothirds of its members present when the approval is given.2 Not all agreements entered into by the United States with foreign powers are held to be treaties in the sense in which that term is used in the treaty clause of the Constitution. Such agreements as are held not to be treaties in this sense, it has been the practice of the President, acting in pursuance of his general powers as Chief Executive or as authorized by congressional statute, to enter into and promulgate without submission to the Senate. Furthermore, in not a few instances the Senate has itself expressly conferred upon the President the power to contract with foreign powers with reference to specified matters.

This power, then, of the President to enter into international arrangements free from the necessity of obtaining the subsequent approval of the Senate may be treated under the following heads: 1. His power inherent in him as the Chief Executive and commander-in-chief of the army and navy,

1 Upon this subject see the pamphlet entitled " International Agreements Without the Advice and Consent of the Senate," by Mr. James F. Barnett, reprinted, with additions, from the Yale Review; the article by Hon. J. B. Moore in the Political Science Quarterly for September, 1905, entitled "Treaties and Executive Agreements;" and the article by Mr. C. C. Hyde in the Greenbag for April, 1905, entitled "Agreements of the United States other than Treaties."

2 Only the final vote of approval or to postpone indefinitely requires the two-thirds vote. For all other parliamentary motions with reference to a treaty, a simple majority is sufficient.

2. His power as granted him by statute,

3. His power as delegated to him by the Senate, the co-possessor with him of the treaty-making power.

§ 199. International Powers of the President as Chief Executive: International Correspondence.

International correspondence is exclusively in the hands of the President, or his agent, the Secretary of State. Hence it is improper for any international documents to be addressed to, or sent directly to the Senate, or for any attempt to be made, in any way, by an agent of a foreign power to influence directly the action of the Senate upon a treaty that is pending before it or is later to be sent to it for its action thereupon. Upon the other hand, it is, of course, improper for the Senate or any other organ of the Federal Government, by resolution or otherwise, to attempt to communicate with a foreign power except through the President. Thus, when in 1877 Congress passed two joint resolutions congratulating the Argentine Republic and the Republic of Pretoria upon their having established a republican form of government, and directing, in the one case, the Secretary of State to acknowledge the receipt of a despatch from Argentine, and in the other to communicate with Pretoria, the President vetoed both resolutions.4

By virtue of the power exclusively vested in him to conduct diplomatic negotiations between this and foreign countries, the President has, since early years, entered into numerous agreements with foreign chancellaries for the settlement of claims made by private American citizens against foreign governments. In a considerable number of cases, these claims have been settled by

5

3 Communications between the States of the Union and the Federal Government are made through the Secretary of State and not through the President. This rule was, however, several times disregarded by President Roosevelt.

4 Richardson's Messages and Papers of the President, VII, 430.

5 An especially interesting case was that of the Mora claim. For an account of this by Professor J. B. Moore, see the Political Science Quarterly, XX, pp. 403 et seq.

means of arbitration agreed upon between the foreign offices concerned. After describing the various instances of executive action under this head, Professor Moore says: "It thus appears that, if we include only the more formal settlements, there have been thirty-one cases in which claims against foreign governments have been settled by executive agreement, and that twenty-seven arbitrations have been held under such agreements as against nineteen under treaties, where the settlement embraced claims against the foreign government alone and not against the United States.

In no case has the President attempted, without consulting the Senate, to adjust finally claims brought by foreigners against the United States. In no case, also, has the President, by executive action, attempted the settlement of claims set up by the United States in its own behalf.

$ 200. Protocols.

The term "Protocol," as used in International Law, has ascribed to it several meanings. The two most common of these meanings are:

1. As describing the records of the meetings of commissioners for the negotiation of a treaty. These records, though, of course, not parts of the treaty finally entered into, are often of value for the interpretation of such treaty.

2. As describing an agreement reached between the foreign offices of two countries, which has been reduced to definite written statement, but has not been ratified as a treaty by the States parties to it. How far such agreements, though not legally binding, morally bind the parties to them, depends upon the particular circumstances of each case.

6 Political Science Quarterly, XX, p. 414.

7 In two instances claims of foreigners against the United States were submitted to arbitral tribunals by executive agreement, but in both instances it was expressly provided that any awards that might be made should be a claim not against the United States, but solely against the estates of certain American citizens whose estates were to be adjusted before the same arbitral tribunals. Cf Greenbag, XVII, 233, Article " Agreements of the United States Other than Treaties."

The most common use to which protocols in this sense are put, is in fixing the general terms in which a final treaty — especially a treaty of peace is to be negotiated. A recent example of this is the protocol of 1898 providing for the appointment of a commission to negotiate the Treaty of Peace with Spain.s

The constitutional authority of the President without consulting the Senate to enter into protocols of agreement as the basis for treaties to be negotiated, is beyond question, and has repeatedly been exercised without demur from the Senate.

9

The protocol signed by the allies (the United States being among their number) at Pekin in 1901 after the Boxer troubles, though in the nature of a military convention, providing as it did for the withdrawal of the allied forces from Pekin, was yet practically of a treaty character. It provided for the payment of indemnities by China, for an international commission to receive and distribute these indemnities, the prohibition of the importation into China for two years of arms and ammunition, the delimitation of the legation quarters in Pekin, and for various reforms and concessions on the part of China. Commenting upon this protocol, Mr. Barnett observes: "This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. As has been pointed out above, purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Pekin, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot.”

In the case of the Boxer Protocol, no serious objection was made to the President's failure to adjust the questions involved by

830 U. S. Stat. at Large, 1742.

9 For instances of protocols, see Butler, The Treaty Making Power, II, p. 371, note.

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