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from the jurisdiction of the territory by executive agreement. Although in theory only temporary, in fact the arbitration was not held until 1871 and the joint occupation continued until 1873, a period of fourteen years. Even longer, however, was the operation of the North Atlantic fisheries modus vivendi of 1885, which practically continued until the arbitration of 1909.

34

After considering such agreements as these, Professor Corwin gives his "final verdict" that "the President's prerogative in the making of international compacts of a temporary nature and not demanding enforcement by the courts, is one that is likely to become larger before it begins to shrink." 35

167. The Power to Make Military Agreements.

As Commander-in-Chief, the President undoubtedly has power to make Cartels for exchange of prisoners of war, suspensions of arms, capitulations and armistices with the enemy. Such agreements may be made by commanding officers in the field if of a local and temporary effect such as a suspension of arms, but if of a general effect such as an armistice, they must be by authority of the Commander-in-Chief.36 Thus, President Lincoln was justified in repudiating the armistice made by General Sherman with General Johnston in 1865 on the ground that a general armistice was within the President's power alone and General Sherman had exceeded his powers.37 The same is usually true of licenses to trade. The President was expressly authorized by act of Congress in 1861 to license trade with the enemy. The court held that the power was his alone and condemned a vessel running the blockade to New Orleans with a license from the Collector of Customs in New Orleans authorized by General Banks and approved by Rear Admiral Farragut.35

34 Moore, Int. Arbitrations, p. 222.

35 Corwin, op. cit., p. 112.

36 Lieber's Instructions, Gen. Ord. 100, 1863, Arts. 135, 140; Halleck, Int. Law, 4th ed. (Baker), 2: 346–347.

37 Ibid., 2: 356, supra, sec. 26.

38 The Sea Lion, 5 Wall. 630 (1866); Moore, Digest, 7: 255.

168. Armistices and Preliminaries of Peace.

But if it is difficult to draw the line separating the power of the President and that of field officers and admirals, it is equally difficult to draw the line between the power of the President as Commander-in-Chief and the treaty-making power. An armistice ending hostilities necessarily contains certain preliminaries of peace. This was true of the preliminaries of peace with Spain of August 12, 1898, and the preliminaries of peace and armistice with Germany of November 5 and 11, 1918. In each, the general conditions of peace were outlined, and in each the defeated enemy alleged that the conditions on which it had agreed to end hostilities were not carried out in the definitive treaty.39 But though a defeated enemy may have little recourse in such circumstances, a more difficult question is raised, with reference to the obligation of the Senate to consent to the ratification of a treaty in accord with the terms of the armistice. Can the President by ratification of an armistice, containing political terms of peace, oblige the full treaty-power to ratify the same terms in the final treaty? This issue. was raised with reference to Article X of the League of Nations Covenant, which though included in the President's XIVth point, and formally agreed to by the allies and Germany in the exchange of notes of November 5, 1918, on the basis of which the armistice of November II was made, was rejected by the Senate when it appeared in the final treaty.40 Clearly an armistice ought not to affect the political terms of peace beyond the minimum necessary to bring hostilities to an end. Within this minimum, however, the President, as Commander-in-Chief, is competent to conclude armistices, and his agreement ought to be observed by the Senate in consenting to the definitive peace treaty. In the protocol of 1901 ending the Boxer uprising in China, the President not only agreed to a termination of military operations, but also to the indemnity which China should pay and other conditions, such as razing forts, and improving watercourses in which she would cooperate.11

39 On the obligation of armistices see Moore, 7: 336, supra, sec. 30, note 54.

40 Supra, sec. 30; Wright, Minn. Law Rev., 4: 35.

41 Crandall, op. cit., p. 104, infra, sec. 251.

169. Validity of Military Agreements.

The President's power as Commander-in-Chief permits him to conclude agreements in time of peace as well as war. So President Monroe agreed to a delimitation of armaments on the Great Lakes in 1817, which, however, he submitted a year later to the Senate, where it received ratification as a treaty. A series of agreements were made with Mexico between 1882 and 1896 for the mutual pursuit of border Indians and the President has often authorized the transit of foreign troops across the territory, a power thus justified by the Supreme Court: 42

"While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permis sion without legislative assent was probably assumed to exist from the authority of the President as Commander-in-Chief of the military and naval forces of the United States."

In a dissenting opinion in this case, Justice Gray thought that foreign troops could be admitted only by express consent of the nation which "must rest upon express treaty or statute." "It is not necessary," he added, "to consider the full extent of the power of the President in such matters." In spite of this dissent the power has been exercised by the President on many occasions and is cognizable in the courts because it brings into operation the accepted principle of international law, that armed troops and public vessels of foreign powers, within the territory by permission, are exempt from jurisdiction. An anology may be made between the power of the President as Commander-in-Chief to permit the entry of foreign military forces, and his power as the representative organ to receive foreign diplomatic officers. In both cases, the President's act entitles the foreign agency to exemption from jurisdiction."

43

Most military agreements have been temporary in duration and of a character to be fulfilled by the President in the exercise of his independent power as Commander-in-Chief. The power of admitting troops may, however, require cooperation of the courts and 42 Tucker v. Alexandroff, 183 U. S. 424, 435.

48 The Exchange v. McFaddon, 7 Cranch 116, 139.

44 In re Baiz, 135 U. S. 403.

the power to make armistices and preliminaries of peace may require cooperation of the treaty power. An agreement of permanent character, and limiting Congress as well as the President ought, doubtless, to be by treaty, as was ultimately decided of the Great Lakes disarmament agreement of 1817.

170. Power to Make Diplomatic Agreements.

Because of his power to "receive ambassadors and other public ministers" and to negotiate treaties, the President is the representative organ of the government and the sole organ of foreign communication. As such he has certain powers of agreement making. Thus agreements, usually by exchange of notes, defining executive policy have often been concluded. The Hay open door policy of 1899-1900, the Root-Takahira and Lansing-Ishii agreements of 1908 and 1917, defining American policy in the Far East, and the Gentlemen's agreement of 1907, relating to Japanese immigration, are of this character. Such agreements are in strictness binding only on the President under whose authority they are made, but if not repudiated would be presumed to have been accepted by a succeeding President. Thus Secretary Lansing in publishing the Lansing-Ishii agreement stated that it was a reaffirmation of the "open door" policy.45

Of similar character are agreements to conclude treaties. We have referred to preliminaries of peace made under the President's power as Commander-in-Chief. From his power as representative organ, the President has agreed to negotiate treaties on specified subjects. Thus an agreement preliminary to the treaty submitting the Behring Sea case to arbitration and agreements for negotiating canal treaties with Costa Rica and Nicaragua have been made.46 Such agreements merely require that treaty negotiations be attempted. They would seem to impose no obligation upon the Senate to accept the treaty or at most an extremely attenuated obligation.

45 League of Nations (World Peace Foundation, Boston), I, No. 8, p. 459. 46 Crandall, op. cit., p. 111.

171. Diplomatic Agreements Settling Controversies.

The most frequent types of agreement made under the President's representative powers are those settling international controversies. Unless authorized by express treaty or act of Congress this power is confined to the settlement of claims by American citizens against foreign governments. Such settlement of individual claims may be made either by direct negotiation, or by submission of the case to a conciliation commission or to arbitration. J. B. Moore states that thirty-one cases have been settled directly by formal executive agreement, and twenty-seven by arbitration based on executive agreement. In nineteen such cases formal treaties have been made for submitting the case to arbitration.*

The settlement of foreign claims against the United States or of national claims involving territory, maritime jurisdiction, belligerent and neutral rights, etc., has generally been by treaty, or by arbitration authorized by treaty.48 In a few cases of foreign pecuniary claims, the President through the Secretary of State has agreed to urge upon Congress the justice of the claim, but he has never assumed to bind the United States to pay such a claim without a treaty. Should he do so, doubtless the foreign government would be entitled to hold the United States bound, since in reference to the meeting of international responsibilities, the representative organ speaks for the nation under international law.50

"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 tribunal." 51

47 Moore, Pol. Sci. Quar., 20: 414.

48 Foster, Yale Law Jl., 11: 77 (Dec., 1901); Moore, Digest, 5: 211; Willoughby, op. cit., p. 469.

49 See attitude of the Executive in Chinese and Italian Lynching cases, 1890-1901, Moore, Digest, 6: 834, 842.

50 Supra, sec. 34.

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51 C. C. Hyde, Agreements of the United States other than Treaties," Greenbag, 17: 233, cited Willoughby, op. cit., p. 469.

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