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242-252 and 257-263) to the effect that executive agreements were not intended by the framers of the Constitution to be a proper mode of concluding international agreements.
The legal memorandum examines the actual practice, both before and after adoption of the Constitution, by those framers of the Constitution who subsequently became President. Excerpts from the memorandum follow:
First, under the Articles of Confederation, which gave Congress far more control over agreements than the Constitution, three important executive agreements were concluded. On November 30, 1782, the Preliminary Articles of Peace between the United States and Great Britain were concluded as an executive agreement, thus bringing hostilities to an end between the two countries. (See 2 Miller, Treaties and Other International Acts of the United States of America, 1936, p. 96.) In 1786 the United States and Morocco entered into a ship signal agreement (2 Miller 219), not as a treaty, but as an executive agreement. In 1784 the United States, at the direction of Congress, amended a treaty of amity and commerce with France by means of an executive agreement. (See 2 Miller 158 and McClure, International Executive Agreements, New York: Columbia University Press, pp. 37-38.)
The men responsible for these agreements were Thomas Jefferson, John Adams, and Benjamin Franklin.
After the adoption of the Constitution, the Congress enacted legislation approved by President Washington in 1792 authorizing the Postmaster General to make international agreements for reciprocal delivery of mailed matter. 1 Stat. 236. Many such agreements have been concluded and they have been upheld by the courts. See Cotzhausen v. Nazro, 107 U.S. 215, 217 (1882).
The early practice by the framers of the Constitution also reveals that executive agreements might be authorized not only by statute, but by the Constitution itself. In 1799 President John Adams, one of the founding fathers of the nation, acting without authority of statute or treaty, concluded an agreement with the Netherlands to settle private American claims against that country. The agreement was not submitted to the Senate, was not proclaimed by the President, and was not ratified. David Hunter Miller, one of America's foremost scholars in the area of international agreements, wrote as follows about this agreement:
this agreement with the Netherlands (which would now be called an executive agreement) is the first instance of a definitive
settlement of a claim of an American citizen against a foreign government by diplomatic negotiation, fixing the amount; and it is the earliest precedent for the practice later settled and now undoubted, that submission of such agreements to the Senate is unnecessary. (Miller, Treaties and Other International Acts of the United States of America, 1936, p. 1079.)
Another important example of a pure executive agreement concluded by a framer of the Constitution was the 1813 agreement with Great Britain for an exchange of prisoners of war, concluded by President James Madison. . . . The lengthy and formal agreement Madison concluded with Britain, entered into during the War of 1812, had nothing to do with the actual battlefield conduct of the war, but rather includes provisions on the treatment of noncombatants, the parole, safety, and sustenance of prisoners, and the methods for effecting the transfers. (For the text and history of this executive agreement, see 2 Miller, op. cit., pp. 557-573.)
An executive agreement of great importance during this early period was the Rush-Bagot Agreement of 1817 with Great Britain, about which President James Monroe inquired of the Senate whether it was "such an arrangement as the executive is competent to enter into, by the powers vested in it by the Constitution, or is such an one as requires the advice and consent of the Senate. . . This agreement to limit naval armaments on the Great Lakes was of some consequence in the life of the United States. . . . in fact one of the precursors to the contemporary unarmed border with Canada.
It is significant that President Monroe, despite the importance of the agreement, doubted whether a treaty was necessary
President Monroe sent the agreement to the Senate after he implemented it and nearly a full year after it was concluded, asking the question quoted above. While the Senate approved the agreement (after it had entered into force) and President Monroe proclaimed it, there were no ratifications exchanged. Professor Louis Henkin notes that "President Monroe had acted under the agreement before the Senate consented." (Foreign Affairs and the Constitution, 1972, p. 428.) . . . .
The very language of Monroe's request indicates the appropriateness of certain international agreements entered into by the President under his constitutional powers. Was the agreement "such an arrangement as the executive is competent to enter into, by the powers vested in it by the Constitution, or is such an one as
requires the advice and consent of the Senate." (Emphasis added.) At the least, Monroe envisaged the possibility of executive agreements concluded by the President pursuant to his independent constitutional powers. He certainly treated the agreement as one he might properly conclude without the advice and consent of the Senate.
Indeed, the historical evidence demonstrates that President Monroe did not think the agreement was a treaty at all. In the Memoirs of John Quincy Adams, IV, 41-42, under date of January 14, 1818, there appears the following statement:
Met and spoke to Mr. Bagot this morning on my way to the President's. He asked me if it was the intention of the President to communicate to Congress the letters which had passed between the Secretary of State and him (Bagot) containing the arrangements concerning armaments on the Lakes, which he said was a sort of treaty. I spoke of it to the President, who did not think it necessary that they should be communicated. (Quoted in 2 Miller, Treaties and Other International Acts of the United States of America, p. 647.)
There is also strong historical evidence that President James Madison, as well as Monroe, did not consider the agreement to be a treaty.
The Rush-Bagot agreement was . . . first proposed by President James Madison, who instructed his Secretary of State to come to an "immediate" agreement.
The Department of State, in a report to the Congress in 1892 on the history of the agreement, said that "The arrangement thus effected seems not to have suggested at the time any doubts as to its regularity or sufficiency, or as to the entire competence of the executive branch of the Government to enter into it and carry out its terms." (House of Representatives, 56th Cong., 1st Sess., Doc. No. 471, p. 14.)
The memorandum set forth further history of the Rush-Bagot agreement and the comments of legal authorities on the importance of contemporaneous construction. It concluded that practice developed during the administration of Presidents Washington, Adams, Madison and Monroe indicated that "they clearly approved
and acted upon the conviction that executive agreements are permitted by the Constitution."
Dept. of State File L/T.
International Acts Not
STATE TERRITORY, JURISDICTION, AND
State Territory and Territorial
Geraldeen G. Chester, attorney-adviser in the Office of the Legal Adviser, Department of State, wrote a memorandum on April 20, 1976, analyzing United States v. Husband R. (Roach), 453 F.2d 1054 (1971), cert. den. 406 U.S. 935 (1972), in relation to the jurisdiction of the United States in the Canal Zone. The following is an excerpt from her memorandum:
[T]he holding in the case is that the Congress has the authority to empower the Governor of the Canal Zone to issue traffic regulations for public highways within the Zone, and that the issuance of a regulation prohibiting on certain roads any bus service which had not been licensed to operate on those routes was not in violation of due process. The case can only be cited as a precedent for those propositions. In the course of the decision, the court states: "The Canal Zone is an unincorporated territory of the United States." Later the Court goes on: "Congress has complete and plenary authority to legislate for an unincorporated territory such as the Canal Zone, pursuant to art. IV. sec. 3. cl. 2 of the Constitution, empowering it 'to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States'.
Just as in Wilson v. Shaw [204 U.S. 24 (1907)], the Court here is equating the Zone with a territory of the United States in the context of establishing the authority of Congress to regulate and prescribe activities there. The Canal Zone has been treated in various ways for domestic legislative purposes. The Canal Zone is considered to be an organized territory of the U.S. for purposes of extradiction (37 Stat. 569, 48 USC 1330). It is treated as foreign territory for purposes of customs duties (33 Stat. 843, 19 USC 126) and its ports are considered foreign ports for purposes of the