The most common use to which protocols in this sense are put, is in fixing the general terms in which a final treaty - especially a treaty of peace is to be negotiated. A recent example of this is the protocol of 1898 providing for the appointment of a commission to negotiate the Treaty of Peace with Spain.s

The constitutional authority of the President without consulting the Senate to enter into protocols of agreement as the basis for treaties to be negotiated, is beyond question, and has repeatedly been exercised without demur from the Senate."

The protocol signed by the allies (the United States being among their number) at Pekin in 1901 after the Boxer troubles, though in the nature of a military convention, providing as it did for the withdrawal of the allied forces from Pekin, was yet prac tically of a treaty character. It provided for the payment of indemnities by China, for an international commission to receive and distribute these indemnities, the prohibition of the importation into China for two years of arms and ammunition, the delimitation of the legation quarters in Pekin, and for various reforms and concessions on the part of China. Commenting upon this protocol, Mr. Barnett observes: "This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. As has been pointed out above, purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Pekin, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot.'

In the case of the Boxer Protocol, no serious objection was made to the President's failure to adjust the questions involved by

830 U. S. Stat. at Large, 1742.

9 For instances of protocols, see Butler, The Treaty Making Power, II, p. 371, note.

means of a treaty submitted to the Senate for its approval. When, however, in January, 1905, President Roosevelt entered into a protocol agreement with San Domingo for the administration of its customs with a view to providing for the adjustment and payment of foreign creditors of that country, it was immediately urged, upon the fact becoming known, that the action contemplated was one which could be authorized only by a treaty which had had the approval of the Senate. Though the protocol of January 20th made no reference to the Senate's approval being necessary to its validity, and contained the provision that it was to go into effect on February 1st, the President disclaimed the purpose of entering into the arrangement without first obtaining the Senate's consent. The protocol, in amended form, expressly providing for the Senate's approval, was submitted to that body, but upon that body's failure to act upon it, the President, acting upon his own responsibility, was able to secure, informally, substantially the end aimed at in the protocol. A treaty governing the subject was finally approved by the Senate and ratified by the Dominican Government.

§ 201. Modi Vivendi.

As the term indicates, a modus vivendi is a temporary arrangement entered into for the purpose of regulating a matter of conflicting interests, until a more definite and permanent arrangement can be obtained in treaty form. Continued and unquestioned practice supports the doctrine that these modi vivendi may be entered into by the President without consulting the Senate.10

§ 202. International Agreements Entered into by the President under His Military Powers.

In the exercise of his powers as Commander-in-Chief of the army and navy the President of the United States, from both necessity and convenience, is often called upon to enter into arrangements which are of an international character. These conventions do not require the approval of the Senate. A con10 For instances of modi vivendi, see Butler, I, p. 369, note.

spicuous example of international agreements thus entered into is the protocol signed at Pekin in 1901, to which reference has already been made. All protocols of agreement entered into for the purpose of furnishing a basis for treaties of peace, as for example, the Protocol of 1898 with Spain, come under this head. So do all conventions providing in time of war for an armistice, or the exchange of prisoners, etc.

The President's military powers exist in times of peace as well as during war. And thus, in 1817, the President, without obtaining the advice and consent of the Senate, was able, by an exchange of diplomatic notes, to arrange with England regarding the number of vessels of war to be kept by the two powers upon the Great Lakes. So also, upon his own discretion, the President is able to send American vessels of war to whatever ports he sees fit, whether for the purpose of friendly visit, of furnishing protection to American citizens or their property, or of making a "demonstration" in order to obtain desired action on the part of the State thus overawed.

§ 203. International Agreements Entered Into, or Action Taken by the President, by Virtue of Authority Granted Him by Treaties Previously Ratified.

The preceding sections have considered the power of the Presi dent to enter into international agreements, and to take action with reference to matters of an international character, by virtue of powers inherent in him either as the Chief Executive of the Nation or as constitutional Commander-in-Chief of the army and navy. We turn now to a consideration of treaty-making powers which may constitutionally be exercised by him, without in each instance obtaining the advice and consent of the Senate, by virtue of general authority given to him in treaties previously entered into and approved by the Senate.

This question, which is one of both political expediency and of constitutional law, received thorough discussion both in Congress and the press in connection with the general treaties of arbitration which were agreed upon in 1904 and 1905 between Secretary

of State Hay in behalf of the United States, and the foreign ministers of various other countries.

At The Hague Conference in 1899 an attempt was made to provide for obligatory arbitration in certain cases. This failed, but by Article XVI it was declared that: "In questions of a judicial character, and especially in questions regarding the interpretation and application of international treaties or conventions, arbitration is recognized by the Signatory Powers as the most efficacious and at the same time the most equitable method of deciding controversies which have not been settled by diplomatic methods;" and article XX provided for the establishment of" a permanent Court of Arbitration, accessible at all times, and acting, unless otherwise stipulated by the parties, in accordance with rules of procedure included in the present convention," to which resort might be had for the settlement of disputes which diplomatic methods had failed to adjust. In addition to these provisions, by Article XIX of The Hague Convention the Signatory Powers reserved the right to enter into general or particular treaties providing for obligatory arbitration with reference to such subjects as they might think advisable.

In 1903, by a treaty signed at London, October 14th, France and England agreed in the future to submit to The Hague Tribunal certain specified classes of questions. Article II provided that "Dans chaque cas particulier, les Hautes Parties Contractantes, avant de s'addresser à la Cour permanante d'arbitrage, signeront un compromis spécial, déterminant l'objet du litige, l'entendue des pouvoirs des arbitres." This Anglo-French treaty became the model for a number of treaties between other European nations, as well as for ten arbitration treaties negotiated by Mr. Hay in 1904-1905, and submitted to the Senate for its approval.

The first two articles of these treaty projects read as follows: "Article I. Differences which may arise of legal nature, or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the permanent court of

arbitration established at The Hague by the convention of the 29th of July, 1899, provided, nevertheless, that they do not affect the vital interests, the independence or the honor of the two contracting States, and do not concern the interests of third parties."

"Article II. In each individual case the high contracting parties, before appealing to the permanent court of arbitration, shall conclude a special agreement defining clearly the matter in dispute and the scope of the powers of the arbitrators, and fixing the periods for the formation of the arbitral tribunal and the several stages of the procedure."

In the Senate objection developed to the provision that the definition of the matter in dispute and the fixing of the powers of the arbitrators should be "by special agreements," which, the terminology would imply, might be entered into, in each case, by the President without consulting the Senate. That body, therefore, amended the treaty projects by substituting the word "Treaty" for the word "Agreement." The effect of this change was, of course, to make it necessary to obtain the approval and consent of the Senate to each and every proposition that might thereafter arise for submitting a dispute to arbitration, even when such propositions were clearly within the scope of Article I of the treaties which Secretary Hay had negotiated. President Roosevelt holding that thus, in any event, a special treaty would have to be negotiated and approved by the Senate before a matter could be submitted to arbitration, declared that the ratification of the so-called general arbitration treaties which the Senate had amended, would achieve nothing, and declined to submit them, as thus amended, to the foreign countries concerned, for their approval, and the whole project was, for the time being at least, abandoned.

With the policy or impolicy of the Senate's refusal explicitly to endow the Executive with the authority by "special agreements" to submit to arbitration before The Hague tribunal of matters coming within the terms of the ten arbitration treaties negotiated by Secretary IIay, a treatise on Constitutional Law is not concerned. As regards, however, the point made by some of