The term "Protocol," as used in International Law, has ascribed to it several meanings. The two most common of these meanings are:

1. As describing the records of the meetings of commissioners for the negotiation of a treaty. These records, though, of course, not parts of the treaty finally entered into, are often of value for the interpretation of such treaty.

2. As describing an agreement reached between the foreign offices of two countries, which has been reduced to definite written statement, but has not been ratified as a treaty by the States parties to it. How far such agreements, though not legally binding, morally bind the parties to them, depends upon the particular circumstances of each case.

6 Political Science Quarterly, XX, p. 114.

7 In two instances claims of foreigners against the United States were niitted to arbitral tribunals by executive agreement, but in both instances it was expressly provided that any awards that might be made should be a claim not against the United States, but solely against the estates of certain American citizens whose estates were to be adjusted before the same arbitral tribunals. of Greenbag, XVII, 233, Article 'Agreements of the United States Other than Treaties."

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.8

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.9

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 practically 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 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 content plated was one which could be authorized only by a treaty which had had the approval of the Senate. Though the protocol of Jamu ary 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 hit 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.

8 30 U. S. Stat, at Large, 1742.

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