years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land, and not merely by a direction of the Chief Executive, which would lapse when that particular Executive left office. I, therefore, did my best to get the Senate to ratify what I had done. There was a good deal of difficulty about it. Enough Republicans were absent to prevent the securing of a two-thirds vote for the treaty, and the Senate adjourned without any action at all, and with the feeling of entire self-satisfaction at having left the country in the position of assuming a responsibility and then failing to fulfill it. Apparently the Senators in question felt that in some way they had upheld their dignity. All that they had really done was to shirk their duty. Somebody had to do that duty, so accordingly I did it. I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the Executive which would be converted into a treaty whenever the Senate acted. After a couple of years, the Senate did act, having previously made some utterly unimportant changes, which I ratified and persuaded Santo Domingo to ratify." This statement indicates that agreements of considerable political importance may be made by the President and that they cannot be prevented by the Senate, when the President controls the necessary means of execution. It is to be noted, however, that in President Roosevelt's opinion, they are binding only on the President that makes them. The latter limitation often does not apply in practice, though presumably the foreign government would have no ground for objection if a subsequent President discontinued such an executive agreement. President Taft describes the executive agreement made by him as Secretary of War, under authority of President Roosevelt, for defining the relative jurisdictions of the United States and Panama in the cities of Colon and Panama at either end of the Canal.80 "The plan contained a great many different provisions. I had no power to make a treaty with Panama, but I did have, with the authority of the President, the right to make rules equivalent to law in the Zone. I therefore issued an order directing the carrying out of the plan agreed upon in so far as it was necessary to carry it out on our side of the line, on conditions that, and as long as, the regulations to be made by Panama were enforced by that government. This was approved by Secretary Hay, and the President, and has constituted down until the present day, I believe, the basis upon which the two governments are carried on in this close proximity. 30 Taft, op. cit., p. 112. It was attacked vigorously in the Senate as a usurpation of the treatymaking power of the Senate and I was summoned before a committee in the Senate to justify what had been done. There was a great deal of eloquence over this usurpation of the Senate's prerogative by Mr. Morgan and other Senators, but the modus vivendi continued as the practical agreement between the nations for certainly more than seven years, and my impression is that it is still in force in most of its provisions." A similar agreement with Panama was made in October, 1914, for enforcing the neutrality of the Canal during the European war."1 166. The Validity of Administrative Agreements. 32 Other modi vivendi made by the President have related to fisheries and boundary lines, pending permanent settlement by treaty or arbitration. With reference to a modus vivendi made in 1859 for joint occupation of the Island of San Juan, pending decision of the Fuca sound boundary question, the court said: " "The power to make and enforce such a temporary convention respecting its own territory is a necessary incident to every national government, and adheres where the executive power is vested. Such conventions are not treaties within the meaning of the Constitution, and, as treaties supreme law of the land, conclusive on the courts, but they are provisional arrangements, rendered necessary by national differences involving the faith of the nation and entitled to the respect of the courts. They are not a casting of the national will into the firm and permanent condition of law, and yet in some sort they are for the occasion an expression of the will of the people through their political organ, touching the matters affected; and to avoid unhappy collision between the political and judicial branches of the government, both which are in theory inseparably all one, such an expression to a reasonable limit should be followed by the courts and not opposed, though extending to the temporary restraint or modification of the operation of existing statutes. Just as here, we think, this particular convention respecting San Juan should be allowed to modify for the time being the operation of the organic act of this Territory (Washington) so far forth as to exclude to the extent demanded by the political branch of the government of the United States, in the interest of peace, all territorial interference for the government of that island." In this case the court had refused to take jurisdiction of a murder committed on the island. Thus the island claimed by the United States, and justly so according to the final arbitration, was removed 31 Naval War College, Int. Law. Docs., 1916, p. 94. 82 Crandall, op. cit., p. 113. 33 Watts v. U. S., 1 Wash. Terr. 288, 294 (1870); Crandall, op. cit., p. 107. 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. 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." 5 167. 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. 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. 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. 38 84 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. 39 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. 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 89 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 permission 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." 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. |