The treaty has now been in force several years, and it has proved even more advantageous than was expected when it was ratified. It has restored order in the Republic, and the country's debts are rapidly being liquidated. The time may come when the United States may be compelled to take similar action with some of the other republics south of us. Such action would be beneficial both to the United States and to the people of those republics.
CHAPTER XXVII DIPLOMATIC AGREEMENTS BY PROTOCOL.
During the public discussion of the Santo Domingo question and the protocol by which the Santo Domingo Improvement Company claim was sent to arbitration, and later during the consideration of it, there was criticism of the Executive branch of the Government on account of its disposition to make international agreements of various kinds, and put them into operation without submitting them to the Senate. The practice became more general under President McKinley and Secretary Hay than it had under other Administrations, and it seemed the policy to get along in every case, if possible, without Senatorial action. It was a subject in which I took very great interest; I came to the conclusion that the practice had become too general, and I took occasion to tell Secretary Hay my views.
I found that the State Department, under different Administrations, had submitted private claims of our citizens against foreign Governments to arbitration by protocol. This has been the rule frequently adopted for very many years. There were cases, I found, where the protocol submitting a claim to arbitration had been sent to the Senate and ratified, and it was the general rule that where a claim is presented by a foreign Government against this government, and the same is submitted to arbitration, it is done by treaty.
I took occasion to look into the question of the effect of an unratified protocol. It may be said generally that an unratified protocol differs from a treaty in that the protocol is not ratified by the Senate and is not a part of the supreme law of the land. Under our system of government, treaties occupy a unique position. They are not only binding internationally, but the Constitution makes treaties a part of the supreme law of the land—that is, a part of our own municipal law. A treaty, if of later date, and in conflict with a law passed by Congress, repeals so much of the law as it conflicts with; but an unratified protocol, or any other international agreement, no matter by what name it is called, not submitted to the Senate, does not have the effect of a treaty, as that term is defined in the Constitution. A protocol is binding merely on the Executive who makes it, and, as has been well said, such protocol is binding on the administration in a moral sense only.
Nevertheless it has been the practice to make so-called diplomatic agreements concerning very important matters without their submission to the Senate.
For instance, the agreement of 1817, concerning the naval forces on the Great Lakes, was considered in force and observed by the two Governments for a year or more before it was submitted to the Senate at all. Horse Shoe Reef, in Lake Erie, was transferred to the Government by a mere exchange of notes between Lord Palmerston and Mr. Lawrence, our Minister to Great Britain; and I might refer to a long list of arbitrations, some of very great importance, agreed to by unratified protocols. The very important protocol concluded by the powers after the Boxer troubles in China was not sent to the Senate. Important agreements are often made under the name of modus vivendi without submission to the Senate.
Very little comment is to be found in books on international law concerning protocols or diplomatic agreements. There is no doubt that the Executive has the right to enter into a protocol preliminary to the negotiation of a treaty. This is a common practice. We have such protocols preliminary to treaties of peace. As to the claims protocols, the Executive Department has taken the position that the President, who is in charge of our foreign relations, has wide discretion in settling disputes by diplomacy; and that a claims protocol is in the nature of a settlement of a claim of a citizen of our country against a foreign Government, by diplomacy.
The term "protocol," or diplomatic agreement, or modus vivendi, is not found in the Constitution. The Constitution uses only one term in describing agreements between this Government and foreign powers, and that is the term "treaty"; and every agreement between the United States and a foreign Government, to have the effect of a treaty, to be a part of the supreme law of the land, must be ratified as the Constitution prescribes, by a two-thirds vote of the Senate.
When Mr. Root entered the State Department, it seems to me that he stopped the practice very largely of making diplomatic agreements. It seemed to be his policy, and a very wise one, to seek, rather than avoid, consulting the Senate. I know that under his administration agreements were made in the form of a treaty and sent to the Senate which other administrations would consider they had a perfect right to make without consulting the Senate. It will be wise for future Administrations to adhere to Mr. Root's policy in this respect.