711.42157 SA 29/1850a

The Secretary of State to the Attorney General (Jackson)

My Dear Mr. Attorney General: I enclose for your consideration a memorandum prepared by the Legal Adviser of this Department, together with a copy of a proposed agreement43 between the United States and Canada regarding the Great Lakes–St. Lawrence Deep Waterway Project. It is hoped that an agreement may be signed within the next few days.

I should appreciate it if you would advise me whether you agree that the arrangement may be effectuated by an agreement signed under the authority of the Executives of the two countries and approved by legislative enactments by the Congress and the Canadian Parliament.

Sincerely yours,

Cordell Hull
[Enclosure]

Memorandum by the Legal Adviser (Hackworth)44

For several years the United States and Canada have had under consideration the feasibility of a joint undertaking for the improvement of the Great Lakes–St. Lawrence Basin so as to make these [Page 158] waters available to sea-going vessels, the development of hydro-electric power, etc. The Legal Adviser of the Department of State, in a memorandum dated February 10, 1939,45 expressed the opinion that an arrangement between the United States and Canada concerning the project could be effected by a simple agreement between the two countries and approval of the agreement by legislation in the United States and in Canada. The negotiations have progressed to the point where an agreement is about ready to be signed, but before proceeding to signature it is thought desirable to ascertain whether the Attorney General concurs in the view that the purposes may be accomplished in this fashion.

It is not necessary here to enter into a discussion of the treaty-making power or of the power of the President to enter into executive agreements with foreign countries. It is sufficient to say that a very large number of such agreements on various subjects have been entered into from time to time throughout the history of this country. Some of them have been specifically authorized by acts of Congress; others, though not specifically authorized, have been within the framework of acts of Congress; and still others have been concluded without enabling legislation on the subject.

Following the failure of the Senate to approve a treaty for the annexation of Texas,46 the annexation was accomplished by a joint resolution approved on March 1, 1845 (5 Stat. 797), after passage by a simple majority vote of the two houses of Congress. Likewise, in the case of Hawaii, a treaty of annexation had been signed on June 16, 1897,47 and approved by the Hawaiian Legislature, but there was not sufficient support in the United States Senate to obtain approval by a two-thirds vote. Thereafter Congress passed a joint resolution to accomplish the same purpose, which was approved July 7, 1898 (30 Stat. 750).

Of interest in this connection is action by Congress with respect to the construction of bridges across the international boundary—United States and Canada, subject to similar authorization by Canada. For example, Public Resolution No. 117, 75th Congress, 3d session, created the Niagara Falls Bridge Commission and authorized it to construct and operate bridges across the Niagara River, subject to “the approval of the proper authorities in the Dominion of Canada.” (52 Stat. 767.)

On November 11, 1927, President Coolidge issued a presidential license to the Detroit–Ontario Subway, Inc., authorizing the company to construct, operate, and maintain a tunnel from a point in or near Brush or Randolph Street in the City of Detroit to a point on the international boundary line under the Detroit River. It is understood [Page 159] that corresponding authorization was given on the part of Canada by an Order in Council.

The improvement of the Great Lakes–St. Lawrence Basin for navigation and other purposes would seem clearly to fall within the commerce clause of the Constitution, giving the Congress the authority to regulate interstate and foreign commerce. Where the undertaking with respect to interstate and foreign commerce involves boundary waters over which this country does not have exclusive jurisdiction, there would seem to be no reason why the Congress should not within its Constitutional power enact legislation, contingent upon a like legislative enactment in the other country, signifying its approval of a joint undertaking signed by both Governments. The signing of an agreement by the two Governments would be but a convenient way of bringing about in advance of legislative enactments a joint understanding by the two Governments on a complicated question which could hardly be handled without such advance understanding. The agreement would contain provisions which might otherwise be incorporated in a treaty, but would not take the treaty form or follow the treaty process. It would not constitute a binding international agreement until Congress and the Canadian Parliament had indicated their approval.

Green H. Hackworth
  1. Not attached to file copy of this document; for text of agreement as signed, see p. 159.
  2. Reprinted from Department of State Bulletin, March 29, 1941, p. 364.
  3. Not printed.
  4. Signed April 12, 1844, Miller, Treaties, vol. 4, p. 697.
  5. Senate Document Executive E, 55th Cong., 1st sess.