ubmitted 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 Execut