WRIGHT— POWER TO MAKE AGREEMENTS. -327 



It was attacked vigorously in the Senate as a usurpation of the treaty- 

 making 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.^^ 



166. The Validity of Administrative Agreements. 



Other modi vivendi made by the President have related to fisher- 

 ies 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 re- 

 specting its own territory is a necessary incident to every national govern- . 

 ment, and adheres where the executive power is vested. Such conventions ' 

 are not treaties within the meaning of the Constitution, and, as treaties su- 

 preme law of the land, conclusive on the courts, but they are provisional ar- 

 langements, 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 ex- 

 pression 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. 



32 Crandall, op. cit., p. 113. 



33 Watts V. U. S., I Wash. Terr. 288, 294 (1870) ; Crandall, 0/). cit., p. 107. 



