tive should now assume to interpret the force and effect of the convention, we might hereafter have the spectacle, when Congress acted, of an Executive interpretation of one purport and a different Congressional interpretation, and this in a matter not of Executive cognizance. "For the reasons stated it was not deemed expedient to authorize you to sign the declaration unconditionally. And as the session of Congress was drawing to a close when the note of the French minister was received, and it seemed impracticable to secure the Senate's ratification of the declaration before adjournment, it was not thought best to send you such telegraphic instructions as were solicited. "I desire, however, to refer to an incident in our diplomatic history which bears upon the matter under consideration and which might have been regarded as a precedent for the Executive in this case, if circumstances had seemed to require a different course from that which has been taken. I refer to the protocol which accompanies the treaty of Guadalupe Hidalgo, in the volume of treaties between the United States and other powers. ... . The expressed object of this protocol was to explain the amendments of the Senate. It was defended by the administration on this ground; and in a message to the House of Representatives, the President stated that 'had the protocol varied the treaty, as amended by the Senate of the United States, it would have no binding effect.' But notwithstanding this explanation, the course of the President in not submitting the protocol to the Senate before the exchange of ratifications of the treaty was severely criticised in Congress." 29 69. Senate resolution controlling meaning of treaty.-The meaning of a treaty cannot be controlled by a resolution of the Senate adopted by a vote of less than two-thirds of a quorum that it was not intended to have a certain effect. After the ratification of the treaty with Spain, by which the Philippine Islands were ceded to the United States, the Senate adopted a resolution, "That by the ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of the Philippine * Mr. Bayard, Secretary of State, to Mr. McLane, Min. to France, Nov. 24, 1886, For. Rel. 1887, 274. 1930 Islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the United States to establish on said islands a government suitable to the wants and conditions of the inhabitants of said islands, to prepare them for local self-government, and in due time to make such disposition of said islands as will best promote the interests of the United States and the inhabitants of said islands. Mr. Chief Justice Fuller, speaking of the effect of this resolution, said: "It is enough that this was a joint resolution; that it was adopted by the Senate by a vote of 26 to 22, not two-thirds of a quorum; and that it is absolutely without legal significance in the question before us. The meaning of the treaty cannot be controlled by subsequent explanations of those who may have voted to ratify it. What view the House might have taken as to the intention of the Senate in ratifying the treaty we are not informed, nor is it material; and if any implication from the action referred to could properly be indulged in it would seem to be that two-thirds of a quorum of the Senate did not consent to the ratification on the grounds indicated." Mr. Justice Brown, in a concurring opinion, declared that the case would not be essentially different if the resolution had been adopted by a unanimous vote of the Senate. "Obviously, the treaty," said he, "must contain the whole contract between the parties, and the power of the Senate is limited to a ratification. of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adoption of amendments to the treaty. If, for instance, the treaty with Spain had contained a provision instating the inhabitants of the Philippines as citizens of the United States, the Senate might have refused to ratify it until this provision was stricken out. But it could not, in my opinion, ratify the treaty and then adopt a resolution declaring it not to be its intention to admit the inhabitants of the Philippine Islands to the privileges of citizen30 32 Cong. Rec., 55 Cong., p. 1847. ship of the United States. Such resolution would be inoperative as an amendment to the treaty, since it had not received the assent of the President or the Spanish commissioners."'31 § 70. Executive agreements.--The President has frequently, pending negotiations for a permanent settlement of controversies, made agreements taking the shape of an exchange of notes or of a formal protocol. These, ordinarily, are not submitted to the Senate for ratification. An agreement of this character, commonly called a modus vivendi, was made with Great Britain in 1891, to provide for the protection of fur seals in Bering Sea. While negotiations for a treaty of arbitration were pending, a similar modus vivendi was concluded in 1893, but as it admitted the possibility of a future award of damages against the United States, it was submitted to the Senate. In 1899, pending the permanent settlement of the boundary of Alaska, a modus vivendi was concluded, and likewise while the ratification of the convention signed February 15, 1888, for the adjustment of the question relating to the northeastern fisheries, was pending, a modus vivendi was arranged by the commissioners of the United States and Great Britain.32 In 1877 a "protocol of conference and declarations concerning judicial procedure was signed by Mr. Cushing, as minister plenipotentiary of the United States to Spain, and Señor Calderon y Collantes, as Spanish minister of state. Certain pledges were contained in the protocol on the part of Spain, as to the treatment of citizens of the United States residing in her ultramarine possessions, while Mr. Cushing made, on the part of the United States, certain declarations as to the state of the existing law in that country.' § 71. Protocols within executive authority. "Protocols of agreement as to the basis of future negotiations are clearly within Executive authority. Such are, for instance, the protocols signed with Costa Rica and Nicaragua, December 1, 1900, in reference to possible future negotiations for the construction of an interoceanic canal by way of Lake Nicaragua. . . . . The final The Diamond Rings, 183 U. S. 176, 22 Sup. Ct. Rep. 59, 46 L. ed. 138. J. W. Foster, Treaty-making Power Under the Constitution, 11 33 United States Treaty, Volume 1030. protocol signed at Peking, September 7, 1901, by the allied powers on the one hand, and by China, on the other, at the conclusion of the Chinese troubles, likewise was not submitted to the Senate. 734 On October 20, 1899, a provisional boundary line between Alaska and the Dominion of Canada, in the vicinity of Lynn Canal, was effected through a modus vivendi, by an exchange of notes between Mr. Hay, Secretary of State, and Mr. Tower, British chargé d'affaires at Washington.35 In 1882, Mr. Frelinghuysen, Secretary of State, and Señor Romero, the Mexican Minister, arranged for the reciprocal crossing and recrossing of the frontier, by the troops of the United States and Mexico, in pursuit of marauding Indians, and this agreement was prolonged successively until 1886. On June 4, 1896, an agreement of a more formal character for the same purpose was entered into between Mr. Olney and Señor Romero, who by the Mexican Senate was authorized to enter into the agreement.36 Mr. Foster, Secretary of State, in a report to the President, stated that "an exchange of diplomatic notes has often sufficed without any further formality of ratification or exchange of ratifications, or even of proclamation, to effect purposes more usually accomplished by the more complex machinery of treaties. "37 34 Crandall's Treaties, Their Making and Enforcement, 87. 35 For. Rel. 1899, 328-330. 36 For. Rel. 1882, 419, 421; For. Rel. 1896, 438. 37 Sen. Ex. Doc. 9, 52 Cong. 2 Sess., H. Doc. 471, 56 Cong. 1 Sess. 16, 17. In that report he said: "On December 9, 1850, in a conference held at the foreign office in London between the United States Minister, Abbott Lawrence and Lord Palmerston, it was agreed that the Canadian territory of Horseshoe Reef, in the Niagara River, should be ceded to the United States for the purpose of erecting a lighthouse thereon. memorandum, or protocol, of this agreement was drawn up and signed by Mr. Lawrence and Lord Palmer A ston. On receipt of this protocol, Mr. Webster, January 17, 1851, instructed Mr. Lawrence to address a note to the British secretary of state for foreign affairs, acquainting him that the arrangement referred to is approved by this government.' Mr. Lawrence did so on the 10th of February, 1851, and the acknowledgment of his note by the British secretary of state closed the transaction. No ratification occurred on either side. Congress appropriated money for the erection of a lighthouse which was built; and the United States thus possesses and exercises full jurisdiction over territory acquired by cession from a foreign power without a treaty." § 72. Instances. In 1899, an agreement was entered into by Brigadier-General Bates, with the Sultan of Sulu and his prineipal chiefs, acknowledging the sovereignty of the United States over the archipelago, suppressing piracy, providing for free. trade in the products of the archipelago with the Philippine Islands, protecting the sultan against foreign aggression, and providing for the payment of certain salaries to the sultan and his associates in the administration of the islands. President McKinley, in his annual message of 1899, stated that he had confirmed the agreement subject to the action of Congress, and with the reservation, communicated to the Sultan at Sulu, that the agreement should not be deemed a consent on the part of the United States to the existence of slavery in the archipelago.38 In 1871 a settlement of claims of American citizens arising from the acts of the Spanish authorities in Cuba was arranged by an exchange of notes between General Sickles, the American Minister to Spain, and the Spanish minister of state.39 The President is empowered by section 13 of the law of March 3, 1891, to extend the benefits of international copyright to citizens and subjects of a foreign state when he has received assurance that citizens of the United States are allowed the benefit of copyright in that state, on the basis substantially as its own citizens, or when it appears that the state is a party to an international agreement providing for reciprocity in the granting of copyright, and permitting the United States at its pleasure to become a party. The benefits of this has been extended by the President to the subjects of several nations, among them Belgium, Great Britain, France, Switzerland, Germany, Italy, Denmark, Portugal, Spain, Mexico, Chile, Costa Rica, Netherlands, Cuba and Norway. "Following the postal convention with New Granada of March 6, 1844, numerous other conventions of the same nature were concluded by the President and ratified with the consent of the Senate. By the act of June 8, 1872, the Postmaster-General is given the power to enter into money-order agreements with the post departments of foreign governments, and by and with the advice and consent of the President, to negotiate and conclude postal conventions. In virtue of this act, con 3 For. Rel. 1899, XLIX. 39 Report of Mr. Foster, Secretary of State, to the President, December 7, 1892; H. Doc. 471, 56 Cong. 1 Sess. 17; Sen. Ex. Doc. 9, 56 Cong. 1 Sess. |