terminable upon a certain notice, should be entered into," but that "all that would be necessary would be to formulate a protocol" containing declarations that corporations of each country were to be regarded as citizens or subjects within the meaning of Article I of the treaty of 1837, and therefore might reciprocally exercise the rights and privileges therein stipulated in the territory of the other. 16

Postal conventions, which prior to 1844 took the form of treaties and were submitted to the Senate, have since the act of June 8, 1872, authorizing the procedure, been negotiated and signed by the Postmaster General, by and with the advice and consent of the President. These are not submitted to the Senate. 17 Indeed, Section 210 of the revised statutes recognizes that there is a distinction between postal conventions and treatises. As Judge Simeon E. Baldwin has said: "There may be a bargain between independent States which is something less than a treaty and postal conventions are in the nature of commercial transactions without any direct political significance." 18

The so-called Platt amendment to the act of March 2, 1901, contained a provision for the acquisition of naval and coaling stations in Cuba "at certain specified points to be agreed upon with the President of the United States." 19 The agreements of February 16 and July 2, 1903, for the lease of naval and coaling stations therefore became definitive without the concurrence of the Senate. The agreement of July 2, in addition to providing for an annual rental of two thousand dollars, contained stipulation as to matters of extradition.

The making of agreements by virtue of an act of Congress seems to show a tendency toward the practice which prevails in other States of the world. In no European Constitution is the approbation of treaties intrusted to one branch of the legislative body alone. A simple majority vote of both branches is the universal requirement. Moreover, the general rule is that only certain kinds of treaties, such as those relating to cessions of territory, to commerce, or those imposing finan

16.

Treaties and conventions of the U. S., p. 1030, For. Rel. 1877, p. 493. Ibid. 1899, p. 481; Ibid. 1890, p. 510.

17. Crandall, Treaties, their Making and Enforcement, p. 92 (c). The last cited work is a succinct and valuable examination of the treaty making power. Mr. Crandall's connection with the State Department and his familiarity with its manuscript and other sources makes his work especially authoritative.

18. Yale Review, Vol. 9, P. 414.

19. R. S. Suppl. II, p. 1504.

cial obligations, need be submitted to the legislature. These are subjects which are regulated by legislation in all constitutional governments. There are, of course, other subjects which, if dealt with by treaty, must have legislative sanction; as in Germany, where the list includes treaties relating to industrial and literary property, citizenship, posts and telegraphs; as in Spain, where relating to the admission of foreign troops into the kingdom; as in the Netherlands, where relating to legal rights; as in France, where relating to the persons and property of French citizens in foreign countries. Generally speaking, as to other sorts of treaties, the executive may enter into binding engagements without legislative assent. This necessarily includes many treaties of a political character, such as the Triple Alliance (Italy, Austro-Hungary, and Germany); the treaty of Berlin of 1888 (France).

Portugal and Switzerland are the only European States in which legislative approbation is required for all treaties. 20

4

In the United States, as we have seen, the participation of Congress has manifested itself chiefly in relation to regulations of commerce, and as to trade-marks, copyright 21 and postal relations. In all of these cases there has been a general law, in pursuance of which the President has made agreements. In all, except the case of postal conventions, the theory on which the President acts, is that he is merely putting into execution a law whose operation is contingent upon the existence of certain facts-reciprocal legislation or practice in a foreign State.

Thus under the tariff acts of 1890 and 1897, the question of what were "reciprocally unequal and unreasonable," or "reciprocal and equivalent" tariff concessions, offered by foreign countries, was one to be decided by the President. The discretionary power conferred necessarily had considerable scope and importance. Whether those rates were reciprocally reasonable or equivalent is just such a question as would have to be determined in the negotiation of any reciprocity treaty; and the President's determination as to their reasonableness or equivalence would be final. It is difficult to perceive how the transaction differs to this extent from any reciprocity treaty. On the whole it seems necessary to conclude that there are certain ends, which, under our Constitution, may be attained in two different ways. It is true as to annexations of territory, which have been made both by treaty and

20. Crandall, op. cit. 178 ff.

21.

Act of March 3, 1891, Sec. 13 and note. R. S. Suppl. I, 954.

2.

by act of Congress. 22 The Constitution gives Congress power to make laws respecting foreign commerce and revenue. It follows that as a necessary incident thereof, it may also empower the President to effect their execution by means of agreements relating to those subjects. The military power is conferred on the President by that clause of the Constitution which declares that he "shall be Commanderin-Chief of the army and navy of the United States and of the militia of the several States, when called into the service of the United States." 23 The power to direct belligerent operations necessarily involves the right to suspend them under an agreement, which may embody terms of peace, to be settled in a future formal treaty. Such, of course, are the so-called "preliminaries of peace" which have usually preceded the actual closing of the great wars of modern history. The most familiar example in recent years is the peace protocol signed

22. Louisiana in 1803; Texas in 1845, and Hawaii in 1898.

The annexations of Texas and the Hawaiian Islands were accomplished by reciprocal legislation in the two countries. The joint resolution of March 1, 1845, provided an alternative method of effecting the annexation of Texas. Either the President might submit to the Republic of Texas, as an overture, the text of the resolution, which provided that Congress consented to the admission of Texas as a State, or he might resort to negotiations with the Republic through the medium of a mission "to agree upon the terms of said admission and cession, either by treaty to be submitted to the Senate, or by articles to be submitted to the two houses of Congress, as the President may direct."

In the case of Hawaii the joint resolution of July 7, 1898, provided that, "WHEREAS, The Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its Constitution, to cede absolutely and without reserve to the United States all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies

"Resolved, That said cession is accepted, ratified and confirmed, and that the said Hawaiian Islands are hereby annexed, as a part of the territory of the United States, and are subject to the sovereign dominion thereof."

The Hawaiian Constitution of 1894 gave the President of that country power to make a treaty of annexation with the United States, and the Hawaiian Legislature in 1896 had passed a joint resolution in favor of annexation. When the annexation treaty, entered into by Mr. Sherman, Secretary of State, and the Hawaiian commissioners, on June 16, 1897, seemed likely not to receive the assent of the Senate, the text of the treaty, with such verbal changes as were necessary, from the different character of the two documents, was incorporated in the joint resolution of July 7.

Stat. at Large, 5:797; 9: 108. S. Rep. 681, 55 Cong., 2 sess., p. 96. 23. Art. II § 2.

August 12, 1898, which brought actual hostilities to a close in our late war with Spain. It is described in its title as "embodying the terms of a basis for the establishment of peace between the two countries." It, settled, practically, however, the fate of Cuba and Porto Rico, leaving only the title to the Philippines to be agreed upon at the future negotiations of a treaty of peace. Nevertheless, the preliminary character of the arrangement and its relation to the war power, made its submission. to the Senate unnecessary. 24

The President's control of the army and navy of the United States exists in time of peace as well as in war. It includes necessarily the disposition of these forces in whatsoever localities the President may select. 25 Therefore, when the Rush-Bagot agreement, by an exchange of notes on April 28 and 29, 1817, limited the naval forces of the United States and Great Britain on the great lakes to a certain number of vessels, the President was merely exercising his power as Commander in Chief of the navy. Four days later (May 2) orders were issued by the Secretary of the Navy, on the direction of the President, to make the reduction to the number of naval vessels, required by the terms of the agreement. Nearly a year afterwards (April 6, 1818) the President. submitted the agreement to the Senate, with the question as to whether it was "such an agreement as the Executive is competent to enter into

24. The protocol is commented on by a writer in the Review Générale de Droit International Public (6:578) as follows:

"Instead of concluding a definite treaty, the parties contented themselves with a simple protocol, for which the assent of the legislative bodies was not necessary on either side. This protocol being declared provisionally executory, the United States obtained the same advantages that it would have derived from a definite treaty, viz: the evacuation of Cuba, Porto Rico, &c., | while the rights of the legislative bodies remained nevertheless in theory reserved."

In the following September, and before the meeting of the Peace Conference in Paris, the Spanish Cortes gave its sanction to the negotiation of a peace on the basis of the protocol, and thus approved its terms. (Ibid, p. 580).

A modus vivendi was entered into August 17, September 6, 1898, by Mr. Moore, acting Secretary of State, and Mr. Cambon, French Ambassador, representing Spain, in reference to the postal service and the importation of supplies in Spanish vessels into Cuba, Porto Rico and the Phillipines, pending the adoption of a treaty of peace.

For. Rel. 1898, pp. 801, 802, 811.

25. Burgess, Political Science, II, 260.

For a narrower view of the President's powers as commander-in-chief, see David Dudley Field, Speeches, Arguments, etc., II:165.

し

Vaval

by the powers vested in it by the Constitution, or is such a one as requires the advice and consent of the Senate, and in the latter case for its advice and consent, should it be approved." Having been approved by the Senate, it was formally proclaimed by the President on April 28, 1818. 26 According to Mr. Foster, Secretary of State, writing in 1892, public official documents do not show why the agreement was submitted to the Senate. 27 All that we know is that on January 14, 1818. Mr. Bagot asked John Quincy Adams, then Secretary of State, whether the correspondence on the subject, which he said was a sort of treaty, would be communicated to the Senate. On the matter being called to the attention of President Monroe, he said he did not think it necessary to do so. Subsequently (April 30) Bagot, in conversation with Adams, adverted to the fact of the arrangement being proclaimed. 28 It is possible that Monroe decided to add the Senate as a party to the agreement, and thus remove any doubts that there might be in the mind of the British government as to its binding character.

Pending the settlement of the dispute with Great Britain over the northwest water boundary, in which the United States asserted that the line passed through the de Haro Channel, the island of San Juan, lying south and east of the latter, was jointly occupied from 1860 to 1873 by the military forces of the United States and Great Britain. This arrangement was effected on the part of the United States by General Winfield Scott. Under instructions from President Buchanan, he made a proposition on October 25, 1859, to Governor Douglas, of Vancouver Island, for a joint military occupation. Although the proposition was declined by Governor Douglas, it was subsequently acceded to, when, on March 20, 1860, Rear Admiral Baynes, commanding the British naval forces in the Pacific, announced to Captain Hunt, commanding the United States troops on the island that a detachment of royal marines, equal in number to the troops of the United States, would be landed on the island "for the purpose of establishing a joint military occupation agreeably to the proposition of Lieutenant-General Scott." The arrangement was formally recognized as binding in notes exchanged between the State Department and the British Legation at Washington, June 6-8, August 17-18, 1860. The occupation, however, gave rise to conflicts between the military and civil authorities of the

26. American State Papers, Foreign Relations, IV; 202-207.

27. H. Ex. Doc. 471, 56 Congress, Ist sess., p. 14.

28. Memoirs of John Quincy Adams, IV; 41, 84.