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be assigned to Italy. Why, therefore, is it especially the Italian aspirations that are to be suspected of imperialistic cupidity?
Despite all these reasons, the history of these negotiations will demonstrate that the firmness which was necessary to the Italian delegation was always accompanied by a great spirit of conciliation in seeking the general agreement that we all wished for fervently.
The Presidential message ends by a warm declaration of friendship of America toward Italy. I answer in the name of the Italian people and I proudly claim this right and this honor, which is due to me as the man who in the most tragic hour of this war uttered to the Italian people the cry of resistance at all costs: this cry was heard and answered with a courage and abnegation of which few examples can be found in the history of the world. And Italy, thanks to the most heroic sacrifices of the purest blood of her children, has been able to climb from an abyss of misfortune to the radiant summit of the most brilliant victory. It is, therefore, in the name of Italy that, in my turn, I express the Italian people's sentiment of admiration and deep sympathy for the American people.
EFFECT OF RESERVATIONS AND AMENDMENTS TO TREATIES
Extract from Speech of Hon. Frank B. Kellogg in the U. S. Senate, Thursday, August 7, 1919, on the Treaty of Peace with Germany.1
The effect of reservations and amendments to treaties has been considered by the Supreme Court in a number of cases: Doe v. Braden (16 How. 622); New York Indians v. United States (170) U. S. 1); Arkansas v. Kansas and Texas Coal Co. (183 U. S. 185); the Diamond Ring case (183 U. S. 176).
In Doe v. Braden (16 How. 635), the effect of a reservation as to the validity of certain grants made by the King of Spain in Florida pending the negotiation of the treaty was considered, and Chief Justice Taney, writing the opinion of the court, said:
We have made this statement in relation to the negotiations and correspondence between the two governments for the purpose of showing the circumstances which occasioned the introduction of the eighth article, confirming Spanish grants made before the 24th of January, 1818, and annulling those made afterward; and also for the purpose of showing how it happened that the three large grants by
1 Congressional Record, Vol. 58, No. 66, p. 3976, at p. 3981.
name were declared to be annulled in the ratification and not by a stipulation in the body of the treaty. But the statement is in no other respect material. For it is too plain for argument that 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 afterward ratified by the other party with the declaration attached to it and the ratifications duly exchanged, 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. The intention of the parties is to be gathered from the whole instrument as it stood when the ratifications were exchanged.
In the case of New York Indians v. United States (170 U. S. 1), a reservation adopted by the Senate, which was not submitted to the Indian tribes or published by the President as a part of the treaty, was held not binding.
Mr. Justice Brown, writing the opinion of the court, said:
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 cannot 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 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.
In the case of Fourteen Diamond Rings (183 U. S. 176), a question similar to the one in De Lima against Bidwell arose. It appears that after the ratification of the treaty the Senate passed a resolution by vote of 26 to 22, as follows:
Resolved, etc., That by the ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of the Philippine Islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the United States to establish on said islands a government suitable
to the wants and conditions of the inhabitants of said islands to prepare them for local self-government, and in due time to make such disposition of said islands as will best promote the interests of the United States and the inhabitants of the said islands.
The court said:
We need not consider the force and effect of a resolution of this sort, if adopted by Congress, not like that of April 20, 1898, in respect of Cuba, preliminary to the declaration of war, but after title had passed by ratified cession. It is enough that this was a joint resolution; that it was adopted by the Senate by a vote of 26 to 22, not two-thirds of a quorum; and that it is absolutely without legal significance on the question before us. The meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it. What view the House might have taken as to the intention of the Senate in ratifying the treaty we are not informed, nor is it material; and if any implication from the action referred to could properly be indulged, it would seem to be that two-thirds of a quorum of the Senate did not consent to the ratification on the grounds indicated.
Mr. Justice Brown, in a concurring opinion, stated more in detail his reasons for not giving effect to the resolution :
It cannot be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. A treaty in its legal sense is defined by Bouvier as "a compact made between two or more independent nations with a view to the public welfare" (2 Law Dic., 1136), and by Webster as "an agreement, league, or contract between two or more nations or sovereigns, formally signed by commissioners, properly authorized, and solemnly ratified by the sovereigns or the supreme power of each State."
In its essence it is a contract. It differs from an ordinary contract only in being an agreement between independent States instead of private parties. (Foster v. Neilson, 2 Pet., 253, 314; Head Money Cases, 112 U. S., 580.) By the Constitution (Art. II, sec. 2), the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to a ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adoption of amendments to the treaty. If, for instance, the treaty with Spain had contained a provision in stating the inhabitants of the Philippines as citizens of the United States, the Senate might have refused to ratify it until this provision was stricken out. But it could not, in my opinion, ratify the treaty and
then adopt a resolution declaring it not to be its intention to admit the inhabitants of the Philippine Islands to the privileges of citizenship of the United States. Such a resolution would be inoperative as an amendment to the treaty, since it had not received the assent of the President or the Spanish commissioners.
While this is the well-settled rule respecting amendments to treaties, it is also equally well settled that in case of ambiguity or doubt in the application of the terms of a treaty reference is frequently made to the contemporary declarations of the negotiators who framed the treaties and to prior negotiations, not to make a treaty where the parties have failed to do so, nor to change the terms of the treaty actually made, but to determine the general object of the negotiations, the particular sense in which the terms, otherwise uncertain of application, were used at the time, or the conditions as they existed at the time of the conclusion of the treaty. (Crandall on "Treaties, Their Making, etc.," sec. 166.)
The author there reviews a number of instances of the application of this rule, among others the case of United States v. Texas (163 U. S. 1, 23, 37), where the Supreme Court of the United States referred to the diplomatic correspondence that led to the treaty with Spain of February 22, 1819, "to show the circumstances under which the treaty of 1819 was made and to bring out distinctly two facts"(1) that the negotiators had access to the map of Melish, improved to 1818, and published at Philadelphia (expressly referred to in the treaty), and (2) that the river referred to in the correspondence as Red River was believed by the negotiators to have had its source near Santa Fé and the Snow Mountains.
Again, in the Alaskan boundary tribunal Lord Chief Justice Alverstone, writing an opinion in support of the decision of a majority of the members of the tribunal for the purpose of giving construction to the meaning of the words employed in the treaty, referred to the meanings given to those words by the negotiators in their written communications during the course of the negotiations.
In the case of the proceedings before the mixed commission constituted under the Jay treaty with Great Britain to determine the St. Croix River and its sources as described in the treaty a letter written by Franklin was considered for the purpose of establishing a map used by the negotiators, as there appeared to be no river in the region under consideration known by the name used in the treaty.
So an explanatory note filed by the Russian Minister as to the interpretation placed by his government on the treaty of 1824 between the United States and Russia was at a later period used by the United States, who had succeeded Russia in all her rights to Alaska, in support of her contention in the Bering Sea controversy with Great Britain. (Crandall, p. 382.)
One of the most striking instances of the use of these contemporary memoranda is given by Crandall in the case of the treaty between the United States and Great Britain of April 19, 1850, where, after the adoption by the United States Senate of the resolution advising ratification, memoranda were filed by the negotiators in which it was stated that the language of Article 1-that neither party would ever "occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America"-was not understood by the contracting states, nor by themselves, to include the British settlement at Honduras and adjacent islands.
Although the declaration of the American negotiator was given with the approval of the chairman of the Senate Committee on Foreign Relations, who professed to speak as to the understanding of the Senate-an assumption denied and much criticized later by different members-it formed no part of the treaty, not having been mutually agreed to by the treaty-making authorities of the two states. A main purpose of the treaty had been to do away with British pretensions in Central America, not to confirm them, and any exception to this general purpose and to the wording of the treaty should have been expressly stated. Whether Belize was or was not excepted from the operation of the treaty depended solely upon the geographical fact of its location without or within the boundaries of Central America as then known. But if this fact was not clearly ascertainable the memoranda, as expressions of those intimately connected with the formation of the article, could not be overlooked. (Crandall, p. 381.)
At the conclusion of the convention at the First International Peace Conference, held at The Hague on July 29, 1899 (2 Malloy, 2016-2032), the plenipotentiaries of the United States signed the Convention for the Pacific Settlement of International Disputes under reservation of the following declaration:
Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of