one is, and th other is not, willing to come under the obligations of the proposed treaty."20 As a ratification by the Senate is essential to the full execution of a treaty, it is competent for the President to withhold from the Senate a treaty that has been negotiated, or he may submit a treaty with a recommendation that it be amended in certain particulars, and treaties may also be withheld either for the purpose of modification by negotiation or of termination of proceedings on them.21 20 Mr. Clay, Secretary of State, to Mr. Addington, April 6, 1825, Am. State Papers, For. Rel., V, 783. 21 Mr. Crandall on this subject says: "As all treaties must receive this final ratification, the President may at will, so far as depends on his constitutional power, withhold from the Senate a treaty already negotiated. Of treaties thus withheld the MonroePinkney treaty with Great Britain of December 31, 1806, a treaty with Mexico signed March 21, 1853, relative to a transit way across the Isthmus of Tehuantepec, an extradition convention with Colombia signed March 30, 1872, a convention with Switzerland signed February 14, 1885, for the protection of trademarks, and the convention adopted in April, 1890, by the First International American Conference for the establishment of a tribunal of arbitration, are examples. Or the treaty may be submitted, accompanied with recommendations for amendments. President Pierce in submitting on February 10, 1854, the Gadsden treaty of December 30, 1853, recommended certain amendments. President Cleveland in submitting, July 5, 1888, an extradition treaty signed May 7, 1888, with Colombia, called attention to changes suggested by the Secretary of State. On December 16, 1845, President Polk communicated to the Senate an extra dition treaty, signed January 29, 1845, with Prussia, and certain other German states, and at the same time suggested a modification of Article III, in which it was stipulated, contrary to the rule then consistently maintained by the United States, that the contracting parties should not be bound to deliver up their own citizens. The Senate having failed to make the amendment in its resolution of June 21, 1848, advising the ratification, the President, for this as well as for other reasons, refused to ratify the treaty. "So also treaties may be withdrawn from the consideration of the Senate either to effect changes by negotiation or to terminate proceedings on them. A treaty with Belgium, signed November 4, 1884, regulating the right of succession to and the acquisition of property, was withdrawn from the Senate by President Arthur by a message of February 17, 1885, and was not resubmitted. President Cleveland in messages of March 13, 1885, April 2, 1885, and March 9, 1893, requested the return of treaties concluded by his predecessors-November 18, 1884, with Spain for commercial reciprocity; December 1, 1884, with Nicaragua relative to the construction of an interoceanie canal; December 4, 1884, with the Dominican Republic for commercial reciprocity; an article signed June § 65. Adding declaration.-When a written declaration is annexed by one of the parties to the treaty at the time of its ratification for the purpose of explaining ambiguous language or of adding a new and distinct stipulation, and the treaty with such declaration attached is afterward ratified by the other party, the declaration becomes a part of the treaty.22 But a proviso made by one party that a treaty shall be considered effective only on certain conditions may be considered as directory merely.23 The treaty made in 1819 between the United States and the King of Spain annuls the grant of lands in Florida by the King of Spain to the Duke of Alagon, irrespective of the fact whether it takes date from the royal order of December 17, 1817, or from 23, 1884, with the Argentine Confederation supplementary to the treaty of commerce of July 27, 1853; and the Hawaiian annexation treaty signed February 14, 1893. President Roosevelt, in a message of December 8, 1902, requested the return of a commercial convention with the Dominitan Republic signed June 25, 1900, together with an additional article thereto, and a convention with Great Britain signed January 30, 1897, relative to the demarcation of the Alaskan boundaries. Instances of withdrawals for the purpose of making slight thanges are quite numerous. The convention with Spain, signed August 7, 1882, supplementary to the extradition convention of January 5, 1877, was returned for verbal changes at the request of the Secretary of State made to the chairman of the Committee on Foreign Relations.'' Crandall's Treaties, Their Making and Enforcement, 82, 83. Speaking of treaties rejected by the Senate, he says: "Of treaties rejected by the Senate, through a failure to act on them, or outright, may be mentioned, besides the various recent treaties for commercial reciprocity, the important treaties signed March Treaties-5 25, 1844, with the German Zollverein; July 20, 1855, with Hawaii; October 24, 1867, with Denmark for the cession of the islands of St. Thomas and St. John; November 29, 1869, for the annexation of the Dominican Republic; December 10, 1824, with Colombia for the suppression of the African slave trade; March 6, 1835, with the Swiss Confederation; April 12, 1844, for the annexation of Texas; December 14, 1859, with Mexico relative to transits and commerce; March 5, 1860, with Spain for the settlement of claims; May 21, 1867, with Hawaii for commercial reciprocity; and the following with Great Britain; January 14, 1869, for the adjustment of outstanding claims; June 25, 1886, for the extradition of criminals; February 15, 1888, for the regulation of the fisheries; and January 11, 1897, for the settlement of disputes by arbitration." Crandall's Treaties, Their Making and Enforcement, 71, 72. 22 Doe v. Braden, 16 How. 635, 14 L. ed. 1090. 23 New York Indians V. United States, 170 U. S. 22, 18 Sup. Ct. Rep. 531, 42 L. ed. 927. the grant of February 6, 1818, by reason of a declaration to that effect which the President of the United States made on the presentation of the treaty for an exchange of ratifications, and to which the King of Spain gave his assent in writing, and which was again ratified by the Senate of the United States.2 24 § 66. Proviso adopted by Senate.-The Senate adopted several amendments to a treaty between the United States and the New York Indians, which had been duly signed and submitted to the Senate, and also added a proviso that the treaty should have no force or effect until the acceptance of these amendments, and that if any part of the Indians should fail to emigrate, the President should deduct a quantity of land from that granted to them. The proviso was not found either in the original or in the published copy of the treaty, or in the proclamation of the President publishing the treaty. The question arose whether the proviso ever became operative, and the government relied upon Doe v. Braden,25 but the court said that the question in that case was whether the king had power to annul the grant, which was considered a political and not a judicial question, and that from the fact that the annulling clause had been inserted in the ratification and published in both countries as part of the treaty, there could be no question whatever of concealment. But as to the proviso added by the Senate to the Indian treaty, the court 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 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 24 Doe v. Braden, 16 How. 635, 14 L. ed. 1090. 25 16 How. 635, 14 L. ed. 1090. particular case may demand it."26 The supplemental article of the treaty of 1800 was appended to the treaty after it was signed, and therefore cannot be referred to for the purpose of explaining the preceding articles.27 $67. Amendment by declaration of interpretation.-A treaty cannot be amended without the consent of the Senate by making a declaration of interpretation. The American Minister at Athens was authorized in 1864 to conclude with Greece a convention relative to the registration of trademarks. He conferred with the minister for foreign affairs of that country, and was advised that the ratification of the chamber of deputies was necessary to the execution of the convention, and that much time might elapse, owing to the condition of affairs then existing, before the consent of that body could be secured. The American Minister signed with the minister for foreign affairs a declaration, which by means of an interpretation of the existing treaty attempted to accomplish the purpose desired. The Department of State took the view that the treaty then in existence was not susceptible of the construction placed upon it, and deemed the declaration to be in effect a new treaty, which could be ratified only by the President, with the advice and consent of the Senate. The State Department maintained this view, and as there was a disinclination on the part of the government of Greece to negotiate a formal convention, instructions were sent to the Ameriean Minister to proceed no further.28 § 68. Views of Department of State. It was proposed by a protocol or declaration to determine the construction of certain provisions of the convention of March 14, 1884, relating to submarine cables, and the American Minister was authorized to sign the protocol subject to the approval of the Senate. The *New York Indians V. United States, 170 U. S. 22, 18 Sup. Ct. Rep. 531, 42 L. ed. 927. "The Tom, 39 Ct. of Cl. 290. Mr. Uhl, Acting Secretary of State, to Mr. Alexander, No. 21, May 16, 1894, For. Rel. 1894, 293; Mr. Alexander, to Mr. Gresham, Secre tary of State, No. 41, July 21, 1894, For. Rel. 1894, 295; Mr. Gresham to Mr. Alexander, No. 43, February 21, 1895, For. Rel. 1895, II, 759; Mr. Olney, Secretary of State, to Mr. Alexander, No. 75, November 9, 1895, Id. 763. Secretary of State was requested to authorize the signing of the protocol unconditionally. With this request he did not comply, and in a note to the American Minister to France stated: "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 of 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 judicial 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." He stated that the declaration in question was intended determine two questions, that of penal responsibility, for the accidental or necessary breaking or injury of a cable in an attempt to repair another cable; and that of civil responsibility, for injuries done to a cable in an effort to lay or repair another cable. "These are judicial questions," he declared, "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 treaty-making 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 Execu |