(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 Mexican 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 th 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, 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: 666 "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.' 6 "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 |