International Executive Agreements: Democratic Procedure under the Constitution of the United States

By Wallace McClure | Go to book overview

Chapter 1 DURING THE LIVES OF THE FATHERS 1776-1817

IT IS appropriate that the executive agreement system should have been substantially inaugurated1 with the armistice which brought to an end the war of the American Revolution. The date is, of course, prior to that of the Constitution, hence to the existence of either the Executive or the Senate. But the provisions of the Articles of Confederation and the procedure of the Congress in dealing with treaties furnish a clear analogy, including a two- thirds rule, to the treaty-making method of Article II, section 2, of the Constitution. A pre-Constitution international act not formally ratified may reasonably be regarded as an executive agreement.2


Before the Constitution

Three executive agreements were entered into in the critical days between Yorktown and the consummation of a national federal government at New York. The commercial accord with France, providing for unconditional most-favored-nation treatment, and a ship-signal arrangement with Morocco, as well as the armistice, deserve brief individual mention.


THE FIRST PEACE AGREEMENT

The Preliminary Articles of Peace3 between His Britannic Majesty and the United States, agreed upon at Paris, November 30, 1782, were in preparation for a Treaty of Peace which was not to be concluded "untill Terms of a Peace" should "be agreed

____________________
1
See, however, the earlier instrument, technically an executive agreement, suppressing certain articles in the treaty of commerce ( 1778) with France, supra, pp. 10, 25.
2
While for treaty ratification and some other stated purposes the affirmation of the representatives of nine of the thirteen states was required under the Articles of Confederation, questions in general were determined by ordinary majorities.
3
2 Miller 96.

-35-

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