convention with Turkey signed August 11, 1874, the Senate attached amendments. According to the convention as signed, a naturalized person who went back to the country of his origin without an intention to return to the country of his adoption, was to be considered as having renounced his naturalization; and the absence of an intention to return was conclusively to be presumed from a residence of more than two years. By the convention as amended this presumption was to be merely prima facie. In the ratification exchanged at Constantinople, a proviso was introduced by the Sublime Porte to the effect that the Ottoman government should have the right to consider native Ottoman subjects who had resided in the Empire more than two years as having renounced their naturalization in the United States, the latter country to have the same right as to its citizens naturalized in the Empire. Although the proviso rendered the Senate amendment practically nugatory, the American minister proceeded to the exchange of ratifications. On being informed of the proviso, Mr. Fish, Secretary of State, immediately declared the exchange of ratifications to be invalid; and the convention was not proclaimed. Again, Mr. Bayard, Secretary of State, on being asked by the Hawaiian minister at Washington to confirm the view, that an amendment made by the Senate to the convention of December 6, 1884, for the purpose of giving to the United States the exclusive use of Pearl Harbor for a naval station, did not diminish the autonomous jurisdiction of Hawaii or convey a privilege that would survive the convention, replied in the sense desired, but added: "The limitation of my official powers does not make it competent for me in this connection to qualify, expand, or explain the amendments ingrafted on that convention by the Senate."85 During the negotiations at London in 1861, with a view to the incorporation of the principles of the Declaration of Paris into a convention between the United States and Great Britain, the British government proposed to make, upon the signing of such convention, a declaration that Her Majesty did not intend thereby to undertake any engagement which should have any bearing direct or indirect on the internal differences then prevailing in the United States. To this proposition, Charles Francis Adams, American minister, replied that if

84

83 Ex. Journal, I, 397-9.

84 For. Rel., 1896, pp. 930, 934.

the declaration were to be considered as a part of the convention, it must be submitted to the Senate for its advice and consent; and that if it were not so to be considered, the party making it could obtain no advantage from it.86

87

It need hardly be added that such a declaration or explanation when agreed to by the Senate and duly ratified by both parties forms a part of the treaty and is as binding and obligatory as if it were inserted in the body of the treaty. Of this character is the declaration of the Japanese ambassador to the United States, made upon the conclusion of the treaty of commerce and navigation of February 21, 1911, that his government was fully prepared to maintain with equal effectiveness the limitation and control which it had for the past three years exercised in the regulation of the emigration of laborers to the United States. The explanatory protocol, signed April 29, 1872, upon the exchange of ratifications of the consular convention of December 11, 1871, with the German Empire, construing terms in that convention, was expressly authorized by a resolution of the Senate dated April 24, 1872, and is in effect a part of the treaty.88 In advising, March 26, 1868, the ratification of the naturalization convention, signed February 22, 1868, with the North German Confederation, the Senate attached an amendment declaring that Article I of the convention should apply as well to those theretofore, as to those thereafter, naturalized. This amendment was duly communicated to the government of the North German Confederation, and was accepted as the true interpretation of the article. It was, however, omitted in the exchange copy given by that government, May 9, 1868. Later, this omission was noticed, and on June 12, 1871, a protocol was signed in which the amendment was recognized by the two governments as a part of the convention. In consenting, June 11, 1838, to the ratification of a treaty with certain Indian tribes, the Senate in executive session attached a proviso. The President in his proclamation made no allusion to this proviso and it was never communicated to the Indian tribes. There being no evidence that the President approved the proviso, and the other contracting party never having been advised of its existence,

85 For. Rel., 1887, p. 591.

86 Dip. Cor., 1861, p. 138.

87 Doe v. Braden, 16 How. 635, 636. 88 Ex. Journal, XVIII, 240.

the Supreme Court held that it formed no part of the treaty. Mr. Justice Brewer, speaking for the court, said: "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 may demand it."89 Upon signing the arbitration convention with Great Britain, April 4, 1908, Mr. Bryce, British ambassador, addressed a note to Mr. Root, Secretary of State, in which it was stated that the final sentence of Article II had been inserted in order to reserve to both governments the freedom of action secured to the government of the United States under the Constitution, and further that it was understood that the convention would not apply to existing pecuniary claims or to the conclusion of the special treaty recently recomended by the International Waterways Commission or any other such treaty for the settlement of questions connected with boundary waters. On the same date Mr. Root replied concurring in these views. These notes were communicated with the convention to the Senate for its information but not as forming part of the convention.

§46. Consent to Extension of Period for Exchange of Ratifications.-The manner in which the consent of the Senate has been given to the extension of the period fixed in the treaty, within which the exchange of ratifications is to take place, has not been uniform. The ratifications of the treaty of September 30, 1800, with France, were by the terms of the treaty to be ex

89 New York Indians v. United States, 170 U. S. 1, 23. The Senate in advising the ratification of a treaty negotiated with the Sioux and other tribes of Indians introduced an amendment. The modification was consented to by some tribes but not by others, and the treaty was never proclaimed. Both Congress and the President nevertheless recognized the validity and binding force of the treaty as to the United States-Congress in making appropriations to carry the treaty into effect from 1853 to 1865, and the President in extending the time for the payment of the annuities for five additional years. The Court of Claims held "that the action of the Congress and the Executive in respect of the treaty aforesaid and the acceptance by the Indians of the fruits thereunder were sufficient to constitute the contract a treaty within the intent of Congress as expressed in the act of 1885." The peculiar nature of a treaty with an Indian tribe, as distinguished from one with a foreign nation, was, however, pointed out by the court. Moore v. United States, 32 C. Cls. 593, 598.

changed within six months, but they were not exchanged until July 31, 1801. The treaty was, however, subsequently re-submitted by the President to the Senate because of the proviso attached to the ratification by the First Consul. The exchange of ratifications of the treaty of September 4, 1816, with Sweden and Norway, did not take place until September 25, 1818, more than a year and four months after the expiration of the time limit, and it does not appear that the Senate was asked to consent to the exchange. In the treaty with Spain of February 22, 1819, the period for the exchange was limited to six months. The King of Spain failed to ratify the treaty until October 24, 1820. The time having expired, President Monroe in a message of February 13, 1821, asked for the advice and consent of the Senate to receive the Spanish ratification in exchange for the ratification of the United States theretofore executed. The Senate considered both the Spanish ratification and the treaty itself, and, on February 19, 1821, again advised the ratification of the treaty, not, however, unanimously, as on the first occasion. It was on the authority of this second resolution that the treaty was finally ratified by President Monroe, February 22, 1821.90 The time for the exchange of the ratifications of the treaty with Prussia of May 1, 1828, having elapsed, President Jackson, “to avoid all future questions," asked in a message of March 6, 1829, the advice and consent of the Senate as to the proposed exchange. The Senate re-examined the treaty, and advised, on March 9, 1829, the President to proceed to the exchange of ratifications, notwithstanding the expiration of the time limit.01 Four other cases arose during Jackson's administration, namely, with the treaties signed: January 12, 1828, with Mexico; August 27, 1829, with Austria-Hungary; May 7, 1830, with the Ottoman Porte; and May 16, 1832, with Chile. In each instance the Senate was called upon to consent to the exchange of ratifications. In case of the treaties with Mexico and Chile, additional articles for the extension of the time were concluded and submitted to the Senate. This procedure has since been regularly, but not uniformly, followed." The exchange of ratifications of the treaty of March 26, 1844, with the Grand Duchy of Hesse, was effected twenty days after the expiration of

90 Ex. Journal, III, 242-4.

91 Id., IV, 7, 9.

22 Id., IV, 146, 150, 151, 213, 237, 391.

the period fixed by the treaty. President Tyler submitted the matter to the Senate. By a resolution dated January 13, 1845, the Senate agreed to an extension of time, and declared that an exchange made prior thereto should be deemed and taken to have been regularly made." In advising and consenting, February 13, 1850, to the ratification of the treaty with Austria-Hungary of May 8, 1848, the time for the exchange of ratifications having expired-the Senate advised and consented to the exchange at any time prior to July 4, 1850. Similar authorization is found in the resolution of June 23, 1852, advising ratification of the treaty with Borneo of June 23, 1850. The Senate on March 12, 1861, having previously advised ratification, advised and consented to the extension of the period for the exchange of ratifications of a claims convention with Costa Rico, signed July 2, 1860, to such time as might be convenient. On the exchange of ratifications, June 2, 1852, of a treaty with Salvador concluded January 2, 1850, which exchange did not take place within the time specified, a proviso was signed declaring that the convention should not be binding until the Senate had sanctioned the exchange.95 The Senate by a resolution of April 4, 1853, advised and consented to the exchange. A similar proviso was inserted in the certificate of exchange of ratifications, on May 13, 1852, of the treaty with Guatemala of March 3, 1849. The exchange was duly sanctioned by the Senate, June 7, 1852. A proviso of the same nature was likewise inserted in the certificate of exchange of ratifications, on May 22, 1865, of the treaty with Haiti of November 3, 1864. On January 24, 1860, the Senate advised and consented to the exchange of ratifications of the treaty with China, signed June 18, 1858, which was effected on August 16, 1859, the limitations contained in the treaty to the contrary notwithstanding. On March 2, 1870, the Senate advised and consented to the exchange of ratifications of the treaty with Württemburg of July 27, 1868, and of the treaty with Belgium of December

93 Id., VI, 363, 379.

94 See also resolutions of the Senate of May 12, 1871, May 8, 1879, and January 5, 1881, advising and consenting to extensions of the periods for exchange of ratifications of the treaties of July 11, 1870, with AustriaHungary, May 23, 1878, with the Netherlands, and March 9, 1880, with Belgium, respectively.

95 Id., VIII, 437; IX, 144.