therefore, can he be called upon by the representative of a foreign government for any explanation, condemnation, defense, or approval of their proceedings. The President will be ever ready, . . in the kindest spirit, to attend to all representations of the Mexican government, communicated in a form which does not interfere with his own rights or those of Congress.' Davis, Notes, United States Treaty Vol. (1776–1887), 1356. On April 11, 1849, Mr. Clayton, in a note to the Mexican minister, referring to the same subject, said: "It is clear .. that the protocol must be regarded merely as an instrument stating the opinions of the commissioners of the United States upon the amendments of the Senate, and utterly void if not approved by that body." On March 22, 1849, Mr. Benton offered in the Senate a resolution declaring that the explanations of the commissioners ought to be held binding upon the United States. Next day Mr. Seward offered a resolution declaring the protocol to be no part of the treaty. Neither resolution came to a vote. Crandall, Treaties, Their Making and Enforcement, 77. In the exchange of ratifications of the Clayton-Bulwer treaty, Sir Henry Bulwer, by direction of his government, made a declaration to the effect that the British settlement at Honduras and its dependencies were not subject to its provisions against the occupation or colonization of Central America. Mr. Clayton made a counter declaration, accepting this view. 'This declaration was not submitted to the Senate, but seems to have been shown to the Hon. William R. King, who was chairman of the Committee on Foreign Relations when the treaty was approved by the Senate, and who stated that "the Senate perfectly understood that the treaty did not include British Honduras.” Subsequently, when the correspondence was communicated to the Senate, it gave rise to a discussion, in which Mr. Cass bore a leading part. Mr. Cass denied the authority of Mr. King to speak for him, and offered a resolution instructing the Committee on Foreign Relations to inquire and report what measures, if any, should be taken by the Senate in regard to the correspondence. The committee reported that no measures were, in its opinion, necessary, and none were taken. The Interoceanic Canal and the Hay-Pauncefote Treaty, by J. B. Moore, The Senate having approved a consular convention between the United States and Belgium, signed March 9, 1880, with an amendment suppressing the word "alone," in the 16th line of the 12th article, the Belgian minister, at the instance of his government, asked to be informed of the reasons for the omission of the word, which was found in the previous convention of 1868, and, if possible, to be furnished with the minutes of the debate on the subject in the Senate. Mr. Evarts, who was then Secretary of State, replied "that, in view of the independent and coordinate function of the Senate of the United States, under the Constitution, in the completion of treaties, the proceedings of that high body in executive session are held under the seal of secrecy, and the results alone of its deliberations are communicated to the executive branch of the government." Consequently he was, he said, unable to communicate the information which the minister had requested. He proceeded, however, to give his own views as to the omission, which he considered to have been due to the fact that the word in question was redundant and ambiguous. Mr. Evarts, Sec. of State, to Mr. Neyt, Belgium chargé, Aug. 13, 1880, "I have received your No. 305, of the 5th instant, inclosing a communication from M. de Freycinet, in relation to the protocol or declaration adopted at the submarine cables conference in Paris in May last, for the purpose of determining the construction of certain provisions of the convention of March 14, 1884. Immediately upon the reception of your dispatch, I sent you the following telegraphic instructions: "MCLANE, Minister, Paris: "You are authorized to sign protocol explaining cables convention, subject to Senate's approval. Legislation pending before Congress, which meets December 6. "BAYARD.' "In this connection I think it proper to say that I received from the French minister at this capital, under date of the 8th July last, a note transmitting proceedings of the cables conference held at Paris in May last, and requesting me to authorize you, by telegraph, to sign the protocol in question unconditionally. The reason given for this request was that, in order to enable the different governments, and especially the London cabinet, to adopt such decisions, as may be required by an acceptance of the proposed declaration,' it was important to change this draft of a declaration, without delay, to a definitive instrument.' "With this request to give you authority to sign the declaration. definitively, I did not deem it proper to comply, for reasons which I will proceed to state, and which you may make known in a general way to M. de Freycinet. "The object of the declaration in question is to settle the interpretation and effect to be given to the second and fourth articles of the convention of the 14th of March, 1884. The first of these articles has reference to the punishment of persons for the 'breaking or injury of a submarine cable, done willfully (volontairement) or through culpable negligence,' etc. The second article named provides that the owner of a cable who, by the laying or repairing of that cable shall cause the breaking or injury of another cable, shall be required to pay the cost of the repairs which such breaking or injury shall have rendered necessary, but such payment shall not bar the enforcement, if there be ground therefor, of Article II. of this convention.' 6 "The declaration reads as follows: "Certain doubts having arisen as to the meaning of the word volontairement inserted in Article II. of the convention of the 14th of March, 1884, it is understood that the imposition of penal responsibility mentioned in the said article does not apply to cases of breaking or of damage occasioned accidentally or necessarily in repairing a cable, when all precautions have been taken to avoid such breakings or damages. "It is equally understood that Article IV. of the convention has no other end and ought to have no other effect than to charge the competent tribunals of each country with the determination, conformably to their laws and according to circumstances, of the question of the civil responsibility of the proprietor of a cable who, by the laying or repairing of such cable, causes the breaking or damage of another cable, and in the same manner the consequences of that responsibility if it is found to exist.' "By the Constitution of the United States treaties made under the authority of the United States are a part of the supreme law of the land, and the convention of the 14th March, 1884, having been made in accordance with the Constitution, is a part of that supreme law. "But, whilst it is true that treaties are a part of the supreme law of the land, they are nevertheless to be viewed in two lights; that is to say, in the light of politics and in the light of juridical law. Where the construction of a treaty is a matter of national policy, the authoritative construction is that of the political branch of the government. It is the function of the Executive or of Congress, as the case may be. When a political question is so determined, the courts follow that determination. Such was the decision of the Supreme Court in cases arising under the treaty of 1803 with France, of 1819 with Spain, and of 1848 with Mexico. "But where a treaty is to be construed merely as a municipal law, affecting private rights, the courts act with entire independence of the Executive, in construing both the treaty and the legislation that Congress may have adopted to carry it into effect. And while great weight might be given by the courts to an opinion of the Executive in that relation, such an opinion would not be regarded as having controlling force. "The declaration in question is intended, as has been seen, to settle two questions. The first is that of penal responsibility under Article II. of the convention for the accidental or necessary breaking or injury of a cable in an attempt to repair another cable; the second is that of civil responsibility under Article IV. of the convention, for injuries done to a cable in an effort to lay or repair another cable. "These are judicial questions to be determined by the courts before whom the appropriate suits may be brought. The only power that can authoritatively construe a treaty for the judicial tribunal on questions of the character described is the legislature, or the treatymaking power itself. In either case the result would be a law which would be binding upon the courts. "It is to be observed in this connection that the treaty in question is not self-executing, and that it requires appropriate legislation to give it effect. If, under these circumstances, the Executive should now assume to interpret the force and effect of the convention, we might hereafter have the spectacle, when Congress acted, of an Executive interpretation of one purport and a different Congressional interpretation, and this in a matter not of Executive cognizance. "For the reasons stated it was not deemed expedient to authorize you to sign the declaration unconditionally. And as the session of Congress was drawing to a close when the note of the French minister was received, and it seemed impracticable to secure the Senate's ratification of the declaration before adjournment, it was not thought best to send you such telegraphic instructions as were solicited. "I desire, however, to refer to an incident in our diplomatic history which bears upon the matter under consideration, and which might have been regarded as a precedent for the Executive in this case, if circumstances had seemed to require a different course from that which has been taken. I refer to the protocol which accompanies the treaty of Guadalupe Hidalgo, in the volume of treaties between the United States and other powers. The expressed object of this protocol was to explain the amendments of the Senate. It was defended by the administration on this ground; and in a message to the House of Representatives, the President stated that 'had the protocol varied the treaty, as amended by the Senate of the United States, it would have no binding effect.' But notwithstanding this explanation, the course of the President in not submitting the protocol to the Senate before the exchange of ratifications of the treaty was severely criticised in Congress.” Mr. Bayard, Sec. of State, to Mr. McLane, min, to France, Nov. 24, 1886, For. Rel. 1887, 274. H. Doc. 551-vol 5-14 February 6, 1899, the Senate, by the necessary two-thirds vote, advised and consented to the exchange of ratifications of the treaty of peace with Spain, signed at Paris, Dec. 10, 1898, by which the Philippine Islands were ceded to the United States. Feb. 14, 1899, the Senate, by a vote of 26 to 22, not two-thirds of a quorum, adopted a resolution to the effect that by the ratification of the treaty it was not intended to incorporate the inhabitants of the Philippines into the citizenship of the United States or permanently to annex the islands as an integral part of the territory of the United States, but that it was the intention of the United States to prepare the people for selfgovernment, and in due time to make such disposition of the islands. as would best promote the interests of their people and of the United States. Held, that the meaning of the treaty could not be controlled by subsequent explanations of some of those who may have voted for it, and that the resolution was in this respect "absolutely without legal significance." The Diamond Rings (1901), 183 U. S. 176. 4. PROCLAMATION. § 751. The proclamation of a ratified treaty can be made only by the President of the United States, and can not be issued by the legation by whom the treaty is negotiated. Mr. Blaine, Sec. of State, to Mr. Angell, Oct. 10, 1881, MS. Inst. China, IV. AGREEMENTS NOT SUBMITTED TO THE SENATE. Protocols. 1. SIMPLE EXECUTIVE ACTS. § 752. In 1838 the chargé d'affaires of the United States to Texas was furnished with a full power to enable him to conclude a convention for the adjustment of the claims of citizens of the United States against the government of Texas. At the same time he was instructed as follows: "You need not, however, use the power unless it should be required. Claims, where they are few in number and inconsiderable in amount, are frequently adjusted by an informal agreement between the diplomatic agent and the minister of foreign affairs, recognizing the amounts to be paid and the time and manner of payment. Another common method for transacting such business is for the diplomatic agent and the minister |