adopted. In each case a few examples will be given. The various treaty volumes already referred to, and the appenthe treaty terminated, to December 31, 1886. (See U. S. For. Rel. 1885, pp. 460, et seq.) A second modus vivendi was entered into in regard to the North At lantic Fisheries in 1888. This was arranged by the Commissioners who framed the Bayard-Chamberlain treaty of 1888 which was rejected by the Senate. (See Sen. Ex. Doc. 113, 50th Cong., 1st Sess,, March 5, 1888, pp. 125 and 141.) It granted certain privileges to American fishermen as to purchasing bait and other supplies on payment of a fixed license. It expired by its own limitation February 15, 1890, and has never been renewed, although in 1898 the Dominion government was still issuing licenses under it. Neither of these modi appear to have been ratified by the Senate. They were simply protocols of the class which will be referred to in the next subdivision of this note. A modus in regard to the protection of fur seals in Bering Sea was entered into between this country and Great Britain in June, 1891. This modus was never ratified by the Senate but was proclaimed by the President. (27 U. S. Stat. at L., p. 980.) The protection of the seals during the pendency of the arbitration in Paris on the subject was covered by a formally ratified convention. (27 U. S. Stat. at L. p. 952). A modus was also entered into between the United States and Russia in regard to fur seals in 1894 (28 U. S. Stat. at L. p. 1202; U. S. Treaties in Force, 1899, p. 545) which was ratified by the Senate. IV. PROTOCOLS AND DIPLOMATIC AGREEMENTS. There have, however, been occasions when international matters have been adjusted without the usual formalities attendant upon the negotiation of treaties, and without ratification of the Senate. One method is by protocol between the foreign offices of the two countries. The definition of protocol includes a record of the proceedings of commissioners, and in that sense it is not used to designate a completed agreement (for an instance in this sense, see proceedings of the commissioners negotiating the Treaty of Washington of 1871 with Great Britain, U. S. Foreign Relations, 1871, pp. 495, et seq). When, however, the foreign offices of two countries agree in a matter and reduce it to writing it is often called a protocol. It is not, so far as the United States is concerned, a treaty, and does not become the supreme law of the land. How far it is binding upon the national conscience is therefore a political and not a legal question. The extent to which foreign relations can be settled in this manner is one which has not been, and cannot be, generally stated. Such protocols and agreement when first made are binding in a moral sense upon the Executive department of the administration making them; they are not laws nor are they contracts which the legislatures of either party are bound to render effectual by legislation, until after they have assumed legal form by ratification. It is doubtful if they are binding even morally upon any administration other than that which dices and the digests thereto must be consulted in order to find all the cases of each class, and the list of treaties in the entered into them. See Angerica vs. Bayard, U. S. Sup. Ct. 1887, 127 U. S. 251, BLATCHFORD, J., and extract therefrom in note 8 to § 444, p. 305, unte, in which the Supreme Court held that a letter of Secretary of State Evarts allowing interest on money received from Mexico, was not binding on his successors. Some of the instances in which instruments in writing have been exchanged by the Secretary of State with the representatives of foreign countries, and acted upon thereafter as agreements between the United States and the said countries respectively, are: The Armistice between the United States and Great Britain pending the negotiation of the Preliminary Articles and Definite Treaty of Peace terminating the Revolutionary war. (8 U. S. Stat. at L., p. 58.) The Protocol of 1898 providing for the appointment of a Commission to negotiate the Treaty of Peace terminating the Spanish-American war of 1898. (Printed in full in INSULAR CASES APPENDIX at end of volume I.) The two Modi Vivendi as to North Atlantic Fisheries, referred to in the preceding subdivision of this note. The agreement of April, 1817, between the United States and Great Britain as to the naval force to be maintained by those governments upon the American lakes. (8 U. S. Stat. at L., p. 231.) The two governments observed the terms of this agreement, in that form, for about a year when it was approved by the Senate, and proclaimed by the President on April 28, 1818. (11 U. S. Stat. at L., p. 766.) For a history of this agreement, see Johns Hopkins University Studies in Historical and Political Science, Series XVI, No. 4, pp. 59, et seq., Baltimore, 1898. There have also been occasions on which claims of citizens of the United States and of foreign governments have been referred to arbitration by protocol, although a formal convention ratified by the Senate is the usual method. (As to The Hague treaties and the necessity for a convention or the sufficiency of a protocol for referring claims to the Tribunal, see note 1 under § 465, p. 376, post.) The claims of American citizens against Spain for wrongs and injuries committed by the authorities of Spain and Cuba were referred to a commission which sat for several years in Washington, by an agreement evidenced only by an exchange of notes between Major General Daniel E. Sickles, our then Minister to Spain, and the Spanish Secretary of State. This agreement was never ratified by the Senate. (See U. S. Tr. and Con. 1889, p. 1025.) Many awards were made thereunder and paid by Spain. Had the awards been made against the United States some question might have been raised as to their validity on account of the nonratification by the Senate. Spain does not seem to have raised any question in regard thereto. Some other unratified protocols or agreements, by which the claims of citizens of the United States were submitted to arbitration are: The protocol of 1870 with Brazil (Moore's History of International Arbitration, p. 4687); the protocols of 1884 (23 U. S. Stat. at L., p. 785), of Treaties Appendix at the end of this volume will also be found of some use in this respect. 1885 (U. S. For. Rel., 1885, p. 500), and of 1888, with Haiti (Moore's History of International Arbitration p. 4770); and the agreement of 1885 with Spain (U. S. For. Rel. 1885, p. 683). On one occasion at least the United states has acquired territory by protocol only. Horse Shoe Reef in Lake Erie was transferred to this government by a protocol and statement, and no formal treaty was ever made. (See U. S. Tr. and Con. 1889, p. 444.) Protocols have also been made on the signature or exchange of a treaty, to determine the exact meaning of a clause therein contained; as on the signature of the treaty between Bavaria and the United States, May 26, 1868. (See U. S. Tr. and Con. 1889, p. 50.) The extent to which a protocol of this nature, when made after ratification by the Senate, can affect the treaty itself is one of the numerous questions connected with the Clayton-Bulwer treaty of 1850 with Great Britain. (See U. S. Senate Document 194, 47th Congress, 1st Sess. pp. 82-87, and report of same with other documents, 1885, p. 235.) V. RECIPROCAL LEGISLATION AND EXECUTIVE PROCLAMATION. Another method by which relations with foreign governments can be arranged and one that has often been resorted to is reciprocal legislation. That is each country enacts similar laws affording to citizens of the other reciprocal rights, or certain matters are arranged by the legislature of one country adopting a certain statute and the legislature of the other country accepting the provisions therein contained. There have been two instances of annexation by reciprocal legislation. Texas was annexed as a State, and the Hawaii Islands as a territory, of the United States, by the Congress of the United States adopting joint resolutions specifying the terms on which the annexation could be made, and the legislatures of the other country accepting the terms. In neither of these instances was there any danger of the legislation of the other country being repealed, as in both cases the annexed government ceased to exist as an independent power and therefore no legislature with national power existed which could pass a repealing law. Reciprocal legislation has been resorted to in regard to commercial relations, reciprocity in tariff rates, protection of copyright and like matters. A few instances only will be cited. Tonnage dues are generally regulated by allowing to foreign vessels the same rates as American vessels when the country whose flag they fly accord to American vessels the same immunities. This is pursuant to acts of Congress and is generally evidenced by a proclamation of the President. Under the Tariff Act of 1890 (26 U. S. Stat. at L., p. 567; see p. 612), the President was empowered to remit certain duties on goods brought from such foreign countries as accorded certain specified privileges to American goods. The constitutionality of this act was attacked on the ground that it delegated treaty-making power to the President, but the Supreme § 464. Powers of, and checks upon, ministers plenipotentiary. The faith and honor of the nation are not affected by the refusal of the Senate to ratify a treaty negotiated by commissioners representing the United States, as all commissions of plenipotentiaries appointed for that purpose contain provisions that their action is subject to the approval of the President, and to ratification by the Senate. Plenipotenti Court sustained the validity of this method of regulating foreign relations; Field vs. Clark, U. S. Sup. Ct. 1892, 143 U. S. 649, HARLAN, J.; CHIEF JUSTICE FULLER Wrote a dissenting opinion. When the tariff act of 1890 was repealed these reciprocal provisions under the proclamations necessarily ceased and the duties under the new tariff law were exacted alike from all countries. Under the reciprocity provisions of the tariff act of July 24, 1897, (30 U. S. Stat. at L., p. 151, see sec. 3, p. 203,) the President, in July, 1900, by two proclamations, granted reduced duties on certain articles to Germany and Italy respectively. (31 U. S. Stat. at L., pp. 1978 and 1979.) Under the Copyright Laws of 1891 and Rev. St. U. S. §§ 4952, et seq., as thereby amended, protection is afforded to foreign authors whose countries afford similar protection to American authors. It is an executive act to determine when these provisions are complied with and the Executive announces the fact by proclamation. See Bulletin No. 4, issued by the Copyright Department of the Library of Congress for a list of countries which have afforded this protection to Americans, and whose citizens are allowed to copyright their works in the United States. See For. Rel. U. S. 1879, pp. 481, et seq. for correspondence of Secretary of State, Wm. M. Evarts, on the subject of reciprocal legislation in regard to wreckage and salvage in the Great Lakes. The danger of reciprocal legislation is that either country can repeal or modify its own legislation and deprive citizens of the other country of the protection formerly afforded. This necessarily is met by counter legislation or by Executive proclamation. As stated at the outset of this note only a few instances are given of each of the methods referred to in this note. § 464. the ratification of their Government." 1The Commissions and Full Powers of the American plenipoten- The Full Power of the Spanish tiaries to negotiate the Treaty of Commission was broader and con1898 with Spain appear at pp. 15, et tained the following: “And everyseq., of Senate Document, No. 62 thing you may so confer and agree (Part 1), 55th Congress, 3d Session, upon, negotiate, conclude and sign, Message from the President of the I now confirm and ratify, I will obUnited States transmitting the serve and execute, will cause to be treaty. The plenipotentiaries were observed and executed, the same appointed "to negotiate and sign a as if I myself had conferred and Treaty of peace between the Uni- agreed upon, negotiated, conted States and Spain, subject to cluded and signed it, for all of aries of foreign governments dealing with the United States are always fully aware of the existence of those limitations, as the examination and exchange of the commissions, or "full powers" as they are called in diplomatic terms, of the plenipotentiary, always precede any negotiation whatsoever.2 It is also a principle of international law that the ministers of one government are bound to know the constitutional limitations on the power of the ministers of another government with whom they may be dealing. This rule applies with peculiar force to the negotiation and ratification of treaties with governments which exist under a written constitution, as all which I confer upon you ample etc. 66 Signed: MARÍA CHRISTINA." The Full Powers of the American and British Commissions to negotiate the Treaty of Washington of 1871 appear at pp. 495, et seq., For. Rel. U. S. for 1871. They do not contain any words of limitation as to ratification. As a general rule the treaties themselves contain a provision that the ratification of the President and Senate is essential to their validity. 2 The first clause of nearly every treaty in the Treaty Volumes show that this form of procedure is adopted. 66 the nation is, in some cases, required for that purpose. In some republics, as in that of the United States of America, the advice and consent of the Senate are essential, to enable the chief executive magistrate to pledge the national faith in this form. In all these cases, it is, consequently, an implied condition in negotiating with foreign powers, that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the fundamental laws of the state. "He who contracts with another,' says Ulpian, 'knows, or ought to know, his condition.' Qui cum alio contrahit, vel est, vel debet esse non ignarus conditionis ejus (1. 19, D. de div. R. J. 50, 17). But, in practice, the full powers given by the government of the United States to their plenipotentiaries always expressly reserve the ratification of the treaties concluded by them, by the President, with the advice and consent of the Senate." Wheaton's Elements of International Law, § 265, page 366, Boyd's Third English Edition. 8" The municipal constitution of every particular State determines in whom resides the authority to ratify treaties negotiated and concluded with foreign powers, so as to render them obligatory upon the nation. In absolute monarchies, it is the prerogative of the sovereign himself to confirm the act of his plenipotentiary by his final sanction. In certain limited See also § 131, vol. II, pp. 5 et or constitutional monarchies, the seq., Wharton's Digest of Internaconsent of the legislative power of | tional Law. |