done by most of the maritime countries of the world. The United States has not given its formal adhesion to these Rules, although it observes them; but it has acceded to the Geneva Convention of 1864 known as the Red Cross Convention, although not an original party to it; and likewise to the convention for the protection of industrial property; in both of which almost all the commercial nations have joined. Such conventions have to follow the usual course of being submitted to the Senate for its advice and consent, and the accession of the United States being made in the terms stated in the instrument, and the same proclaimed by the President.

The last step in the completion of a treaty is its official publication. This is accomplished in the United States by the formal proclamation of the President, attested by the secretary of state; and a similar act is done in most countries. In Great Britain, however, it is not proclaimed by the sovereign, but appears in the Official Gazette and is laid before Parliament.

The foregoing review of the method and form of treaty-making shows that while the Executive as a rule initiates and conducts the negotiation and execution of treaties, the functions of the Senate constitute an influential element in this important branch of public affairs. Severe criticism is passed upon the Senate, sometimes at home, but more often abroad, for its action respecting treaties. It is frequently charged that it is composed of members who are ignorant of international law and of diplomatic practice, and that its decisions are mainly influenced by partisan politics and by a desire to thwart

the Executive. At no time in our history has the committee on foreign relations of that body been without controlling members thoroughly conversant with international law and foreign affairs; and, though not without blemish, the personnel of that body may be favorably compared in intelligence and decorum with any other legislative body of European governments. Its members are on most questions swayed by partisan considerations, but in international affairs they are generally actuated by a high spirit of patriotism, and the conduct of the Senate respecting treaties has, in the main, justified the wisdom of giving it participation in the treaty-making power. Justice Story, after half a century of experience of the Constitution, wrote: "It is difficult to perceive how the treaty-making power could have been better deposited, with a view to its safety and efficiency."

1 2 Story on the Constitution, Cooley, 1873, 355.

CHAPTER XIV

INTERPRETATION OF TREATIES

THE signing of treaties or the exchange of ratifications is sometimes accompanied by protocols signed by the representatives of the two contracting parties, or by declarations on the part of one of the representatives, designed to interpret or affect in some way the terms of the treaties. It is a well-settled principle of the government of the United States that no such document can have any effect whatever upon a treaty to which it is a party, unless the document has been submitted to the Senate and received its approval in the same manner as is required for the treaty itself.

The citation of a few cases will illustrate this practice. When the treaty of 1824 between the United States and Russia was about to be exchanged, the Russian minister informed Secretary Adams that he was instructed by his government to file an explanatory note at the time of the exchange of ratifications, stating the views of his government as to the meaning and effect of certain articles of the treaty. Secretary Adams informed him that such a note could have no effect whatever upon the treaty unless it was sent to the Senate with the treaty and received its approval, intimating that such a course might imperil the treaty. He advised the minister not to make it a part of his act of exchange

of ratifications; but to file it at some date after that event. It would then be received as the interpretation placed upon the treaty by his government. The minister pursued this course. This explanatory note, while it did not modify the treaty, was in later years brought into prominence by Secretary Blaine's discussion with Lord Salisbury in the Bering Sea controversy, and was used to support the contention of the United States.1

After the ratification of the treaty of peace of 1848 with Mexico, two American commissioners were sent to that country to exchange the ratifications. Anticipating difficulty in securing the action of the Mexican government, they were given authority to make certain verbal explanations as to the meaning and purpose of the amendments which the Senate had made to the treaty; but on their arrival they found it necessary, in order to secure the exchange, to put their explanations in the form of a protocol signed by them and the Mexican minister of foreign relations. The instrument was held to have no effect upon the treaty, but it placed the government in a bad light with the Mexicans and its conduct was severely criticised at home.2

In proceeding to the exchange of the Clayton-Bulwer treaty of 1850 relative to the Isthmus Canal, Sir Henry Bulwer filed with Secretary Clayton a declaration respecting Honduras. The secretary stated that as, in his judgment, the declaration was in conformity with

1 Fur Seal Arbitration: Proceedings of the Tribunal of Arbitration at Paris, 1893, U. S. Government publication, 1895, vol. 2, Appendix, 276.

2 Foster's American Diplomacy, 320, and documents there cited.

the treaty, he did not think it necessary to send it to the Senate or to delay the exchange of ratifications. In the long diplomatic controversy which followed, and which was only terminated by the Hay-Pauncefote treaty of 1901, this declaration played a prominent part; but it was generally held in the United States that it had no effect on the treaty.1

When the King of Spain came to ratify the treaty of 1819 by which Florida was ceded to the United States he attached thereto a declaration respecting certain grants of land. After this ratification the treaty was again submitted to the Senate and the declaration approved as a part of the treaty.2

The naturalization treaty of 1874 with Turkey had various vicissitudes because of the declarations attending the exchange of ratifications. The treaty when submitted to the Senate was approved with an amendment. In exchanging the ratifications at Constantinople the Turkish government accompanied that act with a memorandum giving its interpretation to the treaty, and this was accepted by the American minister who participated in the exchange. When reported to the secretary of state, he disavowed the act of the American minister, held the exchange of ratifications to be invalid in view of the construction placed on the amended treaty by the Turkish memorandum, and the treaty was not proclaimed. Several years elapsed in which efforts were made to secure the acceptance by the

1 2 Wharton's Digest, 190, 192; Life of Lewis Cass, Smith, 756. 22 Wharton's Digest, 281; Treaties and Conventions of the United States, Spain.