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.' "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 first to agree as to the accountability of the government, and then for each of them to name a commissioner to examine and decide upon the details. You may adopt either course if it should be consented to by that government." Mr. Forsyth, Sec. of State, to Mr. La Branche, No. 9, May 2, 1838, MS. "No case has yet occurred where the Executive has entered into an See a paper by Mr. Lodge on constitutional methods of making and rati- See, also, "Treaties and Executive Agreements," by J. B. Moore, Political Science Quarterly (Sept., 1905), XX. 385, and especially a very meritorious discussion, entitled "International Agreements Without the Advice and Consent of the Senate," by James T. Barnett, of the Michigan Bar, Yale Law Journal, XV. (Nov. and Dec., 1905) 18, 63. Mr. Barnett's paper has been revised by him, and reprinted, with additions, at Grand Rapids, Michigan, 1906. "It has not been the practice of the government to submit to the Senate conventions providing for the adjustment of private claims, unless such a course is indicated in the instrument itself. It does not appear, from an examination of Mr. Turpin's convention, that any ratification or approval of it on the part of the United States is contemplated. But the want of such ratification on the part of this government, does not prevent recourse to that formality at any future period, should it be deemed expedient; nor does it in any respect weaken or invalidate the binding effect of the convention upon Venezuela. Indeed, the good faith of the government of that Republic having been pledged to the provisions of the convention, by the ratification of the proper authorities, there would be no more hesitation on the part of this government to enforce its stipulations, should it become necessary, than if the instrument had been ratified by the United States as well as Venezuela. In order, however, that the rights of the parties interested may be properly guarded, Mr. Turpin has been instructed to forward to this Department the original convention signed by him, as well as an authenticated copy of the acts of ratification and confirmation by the Venezuelan authorities." Mr. Cass, Sec. of State, to Mr. Sanford, Oct. 22, 1859, S. Ex. Doc. 10, 36 On Jan. 12, 1877, Mr. Cushing, as minister plenipotentiary of the United States to Spain, and Señor Calderon y Collantes, as Spanish minister of state, signed at Madrid a "protocol of conference and declarations concerning judicial procedure." The protocol contained certain pledges on the part of Spain as to the treatment of citizens of the United States residing in her ultramarine possessions. On the part of the United States Mr. Cushing made certain declarations as to the state of the existing law in that country. United States Treaty Volume (1776-1887), 1030. "An agreement was reached June 6, 1882, by Mr. Frelinghuysen, Secretary of State, and Señor Romero, the Mexican minister, providing for the reciprocal crossing and recrossing of the frontier by the troops of the United States and Mexico in pursuit of marauding Indians, which was successively prolonged until 1886. A more formal agreement for the same purpose was entered into, June 4, 1896, by Mr. Olney and Señor Romero. The Mexican minister was authorized by the Mexican Senate to enter into the agreement.” Crandall, Treaties, Their Making and Enforcement, 87-88, citing For. Rel. 1882, 419, 421, 426; For. Rel. 1896, 438. The agreement between Mr. Frelinghuysen and Mr. Romero, which Mr. Frelinghuysen considered as completed by his note of June 6, 1882, and thenceforth effective," was afterwards embodied in a memorandum which was signed by them on July 29, 1882. August 10, 1899, Brig. Gen. J. C. Bates, U. S. Volunteers, negotiated with the Sultan of Sulu and his principal chiefs an agreement, by the first article of which the sovereignty of the United States was acknowledged over the whole of the Sulu [Jolo] Archipelago and its dependencies. It was agreed that piracy should be suppressed; that there should be free trade in the products of the archipelago |