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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 wag 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
policy or internal administration of any foreign state; nor shall anything con. tained in the said convention be construed to imply a relinquishment by the United States of America of its traditional attitude toward purely American questions.
It appears that the American delegates first declared this reservation on July 25, 1899, which was repeated when their signatures were placed on the convention as stated above. This action was reported to the President by the Secretary of State on December 19, 1899, when the conventions were forwarded without comment or recommendation to the President for submission to the Senate. This convention was duly ratified by the Government of the United States, by and with the advice and consent of the Senate, on February 5, 1900, the resolution being incorporated in the act of ratification deposited at The Hague, but there is no record of any comment from other Powers, although, of course, the other Powers ratified the treaty or accepted it with the reservations placed upon it. The Senate resolution of ratification, however, did not include a declaration of the reservation above referred to, which was enunciated by the plenipotentiaries at the time of signing the convention and by the President in his proclamation dated November 1, 1901.
The reservation incorporated in the resolution of ratification by the Senate of the Convention for the Pacific Settlement of International Disputes concluded in the Second International Peace Conference held at The Hague in 1907 is identical with the reservation to the convention declared by the United States delegates at the First International Peace Conference signed on July 29, 1899.
Again, in ratifying the convention and protocol signed April 2, 1906, after the Algeciras Conference, which regulated in the interest of the Powers commercial intercourse with northern Africa, the Senate resolved :
That the Senate, as a part of this act of ratification, understands that the participation of the United States in the Algeciras Conference and in the formation and adoption of the General Act and Protocol which resulted therefrom was with the sole purpose of preserving and increasing its commerce in Morocco, the preservation of the life, liberty, or property of its citizens residing or traveling therein, and of aiding by its friendly offices and efforts in removing friction and controversy which seem to menace the peace between the Powers signatory with the United States to the treaty of 1880 and without purpose to depart from the traditional American foreign policy which forbids participation by the
United States in the settlement of political questions which are entirely European in their scope.
In February, 1913, the Senate ratified the International Sanitary Convention signed at Paris, January 17, 1913, modifying the International Sanitary Convention of December 3, 1903, with the proviso:
That the Senate advise and consent to the ratiíication of said convention with the understanding, to be expressed as a part of the instrument of ratification, that nothing contained in Article 9 thereof shall be deemed to prevent the United States from carrying out any special quarantine measures against the infection of its ports which might be demanded by unusual sanitary conditions.
It does not appear that the treaty was referred back to the other Powers for approval of this proviso, nor that such action was required, as there appears to be nothing in the ninth article which would prevent the United States from carrying out such special quarantine measures in the case referred to.
On the other hand, the Senate, in ratifying the proposed arbitration convention negotiated by Secretary Knox under date of August 3, 1911, adopted as a part of the resolution of ratification a proviso—
That the Senate advise and consent to the ratification of said treaty, with the understanding, to be made part of such ratification, that the treaty does not authorize the submission to arbitration of any question which affects the admission of aliens into the United States or the admission of aliens to the educational institutions of the several States, or the territorial integrity of the several States or of the United States, or concerning the question of the alleged indebtedness or moneyed obligations of any State of the United States, or any question which depends upon or involves the maintenance of the traditional attitude of the United States concerning American questions commonly described as the Monroe Doctrine, or other purely government policy.
President Taft, considering this proviso to be at variance with the provisions of the treaty and as constituting in effect an amendment to it, withdrew the treaty from further consideration, and no further action was taken upon it.
It would seem, therefore, perfectly clear that a resolution of the Senate interpreting the treaty and clearly reserving American rights can be made without destroying the binding effect of the ratification.