States has always communicated to the foreign powers with which it treats, and to none more fully than to the United Kingdom of Great Britain and Ireland. Nor can it be admitted that any just cause of complaint can arise out of the rejection by one party of a treaty which the other has previously ratified. When such a case occurs, it only proves that the consent of both, according to the constitutional precautions which have been provided for manifesting that consent, is wanting to make the treaty valid. One must necessarily precede the other in the act of ratification; and if, after a treaty be ratified by one party, a ratification of it be withheld by the other, it merely shows that one is, and the other is not, willing to come under the obligations of the proposed treaty." Mr. Clay, Sec. of State, to Mr. Addington, Apr. 6, 1825, Am. State Papers, Where a treaty is amended by the Senate of the United States, a new signature of it is not required. If the other government accepts the amendments, it is sufficient that they are duly embodied in the copies of the treaty which are prepared for the exchange of ratifications. Nor is this rule altered by the fact that, between the date of the conclusion of the treaty and the exchange of ratifications, a change of administration has taken place in the United States. Mr. Hay, Sec. of State, to Mr. Pierce, Feb. 21, 1899, MS. Notes to For. The foregoing note related to the extradition treaty between the United "Not usually consulted as to the conduct of negotiations, the Senate has freely exercised its co-ordinate authority in treaty making by means of amendments. Where the treaty as negotiated is not entirely acceptable to the Senate, it is the practice of that body, if it gives its advice and consent to the ratification, to do so with specific amendments, which renders unnecessary the resubmission of the instrument after the consent of the other party to the designated changes has been obtained. While the Senate's practice of amending treaties continues to meet with criticism by foreign writers, it would not to be contended for a moment that the Senate might not reject in toto, or withhold action altogether until the changes which it might indicate by resolution or otherwise had been negotiated. So far as it affects the other contracting party, it is difficult to distinguish the latter mode from that followed by the United States. The proposed treaty is not infrequently so amended as to be unacceptable to the other power, and no treaty results." Crandall, Treaties, Their Making and Enforcement, 70-71. 3. EXCHANGE OF RATIFICATIONS. (1) ACT OF RATIFICATION. § 749. "The approval, whether qualified or unqualified, of the treaty by the Senate is not to be confused with the act of ratification. The latter is performed by the President, and is unconditional, even where it relates to a treaty which, because of amendments by the Senate, differs from the one first signed." Crandall, Treaties, Their Making and Enforcement, 71. "The importance of the subject-matter, the frequent changes in the personnel of the contracting organs, the inability to confirm by witness the utterances of a state, render it more necessary that contracts between nations should be carefully expressed in writing than contracts between individuals. While no particular form is essential to the validity of a treaty, it is the practice in formal treaties to make out and sign under seal as many counterparts as there are parties, one counterpart to be retained by each. In case of two parties only, which have no common language, each counterpart is usually made out in the languages of both. The texts sometimes appear on separate sheets, but more often in parallel columns or on opposite pages, the text in the language of the nation by which the counterpart is to be retained occupying the left hand column or page. Likewise with the development of the principle of the equality of states, precedence in the enumeration of the negotiators in the preamble and in the signatures is given in the counterpart to the state which retains. Otherwise the two instruments are identical. In case of several parties having various languages, the instrument often appears in only one language, customarily in Europe, the French. The same precedence is given in the retained counterpart, the order of the other countries being alphabetical or determined by lot. The ratification is not only attached to the instrument retained, but, for the assurance of the other contracting party or parties, is also attached to an exact copy of the retained instrument, which is exchanged for a similar copy from the other party, or in case of several parties is deposited in such place as is designated by the treaty. Each state, in case of two parties only, has then not only its own counterpart with its ratification attached, but a copy of the counterpart retained by the other party with the latter's ratification attached. A protocol signed by the plenipotentiaries by whom the exchange is effected records the act.” Crandall, Treaties, Their Making and Enforcement, 15-16. (2) EXPLANATORY DECLARATIONS. § 750. In the course of their duties in the enforcement of treaties both the executive officials and the courts are constantly under the necessity of construing the provisions of treaties and interpreting their meaning. In some cases, however, the attempt to construe a treaty by means of an executive agreement has caused a question to be raised as to possible encroachments upon the prerogatives of the Senate. Obviously nothing could legally be added to or subtracted from a treaty by a mere executive agreement without the advice and consent of the Senate, and no attempt to do this has professedly been made. The question really at issue has been whether the action of the Executive fell within the legitimate lines of interpretation or whether it trenched upon the province of the treaty-making power. Where one of the parties to a treaty, at the time of its ratification, annexes a written declaration explaining ambiguous language in the instrument, or adding a new and distinct stipulation, and the treaty is afterwards ratified by the other party with the declaration attached to it, and the ratification duly exchanged, such distinct stipulation or explanation being duly approved by the constitutional authorities of each ratifying power, the declaration thus annexed is a part of the treaty, and as binding and obligatory as if it were inserted in the body of the instrument. Hence the grant of lands in Florida by the King of Spain to the Duke of Alagon, whether it takes date from the royal order of December 17, 1817, or from the grant of February 6, 1818, is annulled by the treaty between the United States and the King of Spain, of 1819, by virtue of the declaration to that effect made by the President of the United States on presenting the treaty for an exchange of ratifications, and assented to by the King in writing, and again ratified by the Senate of the United States. Doe v. Braden, 16 How. 635. A treaty between the United States and the New York Indians, having been duly signed, was submitted to the Senate. The Senate adopted several amendments, and then added a proviso (1) that the treaty should have no force or effect till these amendments were duly accepted, and (2) that if any part of the Indians should fail to emigrate, the President should deduct from the quantity of land which the treaty granted them beyond the Mississippi such number of acres as would leave to each emigrant 320 acres only. A question arose as to whether the title acquired by the Indians to western lands under the treaty was a grant in præsenti, or merely an agreement to set apart lands for them in the future. The court said that if the pro viso was to be considered as a part of the treaty, it would be difficult to avoid the conclusion that the grant was not intended to take effect immediately, since the power to deduct lands in a certain contingency would imply that there was no intention immediately to convey the whole tract, but merely an intention to allot to each emigrant a certain number of acres. But did the proviso ever become operative? It was not found, said the court, either in the original or in the published copy of the treaty or in the proclamation of the President by which the treaty was published. Continuing, the court, after suggesting that the proviso might have been considered as "mainly directory in its character," or, indeed, "as merely directory to the President," said: "In any event it is difficult to see how it can be regarded as part of the treaty or as limiting at all the terms of the grant. The power to make treaties is vested by the Constitution in the President and Senate, and, while this proviso was adopted by the Senate, there is no evidence that it ever received the sanction or approval of the President. It can not be considered as a legislative act, since the power to legislate is vested in the President, Senate and House of Representatives. There is something, too, which shocks the conscience in the idea that a treaty can be put forth as embodying the terms of an arrangement with a foreign power or an Indian tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigencies of a particular case may demand it. The proviso never appears to have been called to the attention of the tribes, who would naturally assume that the treaty, embodied in the Presidential proclamation, contained all the terms of the arrangement. It is true that the proclamation recites that the Senate did, on March 25, 1840, resolve that the treaty, together with the amendments proposed by the Senate of the 11th of June, 1838, have been satisfactorily acceded to and approved of by said tribes, but, as the proclamation purported to set forth the treaty word for word,' as so amended, of course the amendments referred to were those embodied in the treaty as published in the proclamation. "The case of Doe v. Braden, 16 How. 635, relied upon by the government in this connection, is not in point. In this case, in the ratification by the King of Spain of the treaty by which Florida was ceded to the United States, it was admitted that certain grants of land in Florida were annulled and declared to be void, and it was held that a written declaration, annexed to a treaty at the time of its ratification, was as obligatory as if the provision had been inserted in the body of the treaty itself. The question in the case was whether the King had power to annul the grant, which was con sidered a political and not a judicial question; but, as the annulling clause was inserted in the ratification and published in both countries as part of the treaty, there was no question whatever of concealment." New York Indians v. United States (1898), 170 U. S. 1, 22–24. The treaty of peace between the United States and Mexico, signed at Guadalupe Hidalgo, February 2, 1848, was so amended by the United States Senate as to create doubts as to its acceptance by the Mexican government. In order to secure its acceptance, as amended, President Polk sent Messrs. A. H. Sevier and Nathan Clifford, as commissioners, to Mexico, with instructions to explain to the Mexi can minister for foreign affairs, or to the authorized agents of the Mexican government, the reasons which had influenced the Senate in adopting the several amendments. Before the arrival of the commissioners at the seat of the Mexican government the Mexican Congress approved the treaty as amended, leaving nothing to be done but the exchange of ratifications, which took place on May 30, 1848. But before the exchange of ratifications the commissioners had several conferences with the agents of Mexico, the results of which were reduced to the form of a protocol, which was signed by Messrs. Sevier and Clifford on the part of the United States and by Señor Luis de la Rosa on the part of Mexico, and the express object of which was to make "suitable explanations" in regard to the amendments of the Senate. The protocol was defended by the administration as a mere explanation which did not purport to alter the meaning of the treaty; the President, in a message to the House of Representatives, saying that "had the protocol varied the treaty, as amended by the Senate of the United States, it would have had no binding effect." The course of the President in not submitting the protocol to the Senate before the exchange of the ratifications of the treaty was much criticised in Congress. United States Treaty Vol. (1776–1887), 692; Mr. Bayard, Sec. of State, to As the result of the discussion which took place in Congress early in 1849 concerning the protocol just referred to," the Mexican minister at Washington (who appears to have been the same person who, as plenipotentiary, exchanged the ratifications of the treaty on the part of Mexico), [was led] to ask of Mr. Buchanan, the Secretary of State, an assurance, in the form of a message from the President, that the United States adhered to the protocol. Buchanan replied that 'the President would violate the most sacred rights of the legislative branch of the government if he were to criticise or condemn any portion of their proceedings, even to his own countrymen; much less, |