Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888

No. 226.
Mr. Bayard to Mr. McLane.

Department of States,
Washington, November 24, 1886.

No. 174.]

Sir: I have received your No. 305, of the 5th instant, inclosing a communication from M. de Freycinet, in relation to the protocol or declaration adopted at the submarine cables conference in Paris in May last, for the purpose of determining the construction of certain provisions of the convention of March 14, 1884. Immediately upon the reception of your dispatch, I sent you the following telegraphic instructions:

McLane, Minister, Paris:

You are authorized to sign protocol explaining cables convention, subject to Senate’s approval. Legislation pending before Congress, which meets December 6.

Bayard.

In this connection I think it proper to say that I received from the French minister at this capital, under date of the 8th July last, a note transmitting proceedings of the cables conference held at Paris in May last, and requesting me to authorize you, by telegraph, to sign the protocol in question unconditionally. The reason given for this request was that, “in order to enable the different Governments, and especially the London cabinet, to adopt such decisions as may be required by an acceptance of the proposed declaration,” it was important “to change this draft of a declaration, without delay, to a definitive instrument.”

With this request to give you authority to sign the declaration definitely, I did not deem it proper to comply for reasons which I will proceed to state, and which you may make known in a general way to M. de Freycinet.

The object of the declaration in question is to settle the interpretation and effect to be given to the second and fourth articles of the convention of the 14th of March, 1884. The first of these articles has reference to the punishment of persons for the “breaking or injury of a submarine cable, done willfully (volontairement) or through culpable negligence,” etc. The second article named provides that the “owner of a cable who, by the laying or repairing of that cable shall cause the breaking or injury of another cable, shall be required to pay the cost of the repairs which such breaking or injury shall have rendered necessary, but such payment shall not bar the enforcement, if there be ground therefor, of Article II of this convention.”

The declaration reads as follows:

Certain doubts having arisen as to the meaning of the word volontairement inserted in Article II of the convention of the 14th of March, 1884, it is understood that the imposition of penal responsibility mentioned in the said article does not apply to cases of breaking or of damage occasioned accidentally or necessarily in repairing a cable, when all precautions have been taken to avoid such breakings or damages.

It is equally understood that Article IV of the convention has no other end and ought to have no other effect than to charge the competent tribunals of each country with the determination, conformably to their laws and according to circumstances, of the question of the civil responsibility of the proprietor of a cable who, by the laying or repairing of such cable, causes the breaking or damage of another cable, and in the same manner the consequences of that responsibility if it is found to exist.

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 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 juridical 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.

The declaration in question is intended, as has been seen, to settle two questions. The first is that of penal responsibility under Article II of the convention for the accidental or necessary breaking or injury of a cable in an attempt to repair another cable; the second is that of civil responsibility under Article IV of the convention, for injuries done to a cable in an effort to lay or repair another cable.

These are judicial questions 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 Executive should now assume to interpret the force and effect of the convention, we might hereafter have the spectacle, when Congress acted, of an Executive interpretation of one purport and a different Congressional interpretation, and this in a matter not of Executive cognizance.

For the reasons stated it was not deemed expedient to authorize you to sign the declaration unconditionally. And as the session of Congress was drawing to a close when the note of the French minister was received, and it seemed impracticable to secure the Senate’s ratification of the declaration before adjournment, it was not thought best to send you such telegraphic instructions as were solicited.

I desire, however, to refer to an incident in our diplomatic history which bears upon the matter under consideration, and which might have been regarded as a precedent for the Executive in this case, if circumstances had seemed to require a different course from that which has been taken. I refer to the protocol which accompanies the treaty of Guadalupe Hidalgo, in the volume of treaties between the United States and other powers.

The treaty as signed at the city of Guadelupe Hidalgo, on the 2d of February, 1848, was so amended by the Senate as to create doubt of its acceptance by the Mexican Government. In order to secure its ratification by that Government, as amended, President Polk sent two commissioners, Mr. A. H. Sevier and Mr. Nathan Clifford, to Mexico, with instructions to explain to the Mexican minister for foreign affairs, or to the authorized agents of the Mexican Government, the reasons which had influenced the Senate in adopting the several amendments.

Before the arrival of the commissioners at the seat of the Mexican Government, the Mexican Congress approved the treaty as amended without modification or alteration, leaving nothing to be performed except the exchange of ratifications, which took place on the 30th of May, 1848. But between the dates of the approval of the treaty by the Mexican Congress and that of the exchange of ratifications, the commissioners had several conferences with the agents of Mexico, the results of which were reduced to the form of a protocol, which was signed by Messrs. Sevier and Clifford on the part of the United States, and Señor Luis de 1a Rosa on the part of Mexico.

The expressed object of this protocol was to explain the amendments of the Senate. It was defended by the administration on this ground; and in a message to the House of Representatives, the President stated that “had the protocol varied the treaty, as amended by the Senate of the United States, it would have no binding effect.”But notwithstanding this explanation, the course of the President, in not submitting the protocol to the Senate before the exchange of ratifications of the treaty was severely criticised in Congress.

I inclose herewith a copy of the bill now pending before Congress for the execution of the convention.

I am, etc.

T. F. Bayard.

[Inclosure in No. 174.]

A bill to carry into effect the international convention of the fourteenth of March, eighteen hundred and eighty-four, for the protection of submarine cables.

Be it enacted by the Senate and Mouse of Representatives of the United States of America in Congress assembled, That this act shall he known as the “Submarine Cables Act of eighteen hundred and eighty-six.”

• Sec. 2. That the provisions of this act shall be held to apply only to cables to which the convention of the fourteenth of March, eighteen hundred and eighty-four, which is hereto annexed and herein referred to as the convention, for the time being applies; and, subject to the provisions of this act, the provisions of the convention shall be of the same force as if they were embodied in this act, and shall be taken to be a part hereof.
• Sec 3. That any person who shall willfully break or injure, or attempt to break or injure, or who shall in any manner procure, counsel, aid, abet, or be accessory to such breaking or injury, or attempt to break or injure, a submarine cable, in such manner as to interrupt or obstruct, in whole or in part, telegraphic communication, shall be guilty of a misdemeanor, and, on conviction thereof, shall be liable to imprisonment for a term not exceeding two years, and to a fine either in lieu of or in addition to such imprisonment not exceeding five thousand dollars.
• Sec. 4. That any person who by culpable negligence shall break or injure a submarine cable in such manner as to interrupt or obstruct in whole or in part telegraphic communication shall be guilty of a misdemeanor, and, on conviction thereof, shall be liable to imprisonment for a term not exceeding three months, and to a fine not exceeding five hundred dollars in lieu of or in addition to such imprisonment.
• Sec. 5. That the provisions of this act shall not apply to a person who breaks or injures a cable in an effort to save the life or limb of himself or of any other person, or to save his own or any other vessel: Provided, That he takes reasonable precautions to avoid such breaking or injury.
• Sec. 6. That the provisions of the Revised Statutes from section forty-three hundred to section forty-three hundred and five, inclusive, for the trial of offenses against the navigation laws of the United States, shall extend to the trial of offenses against the provisions of articles five and six of the convention; and a person convicted of an offense against the provisions of the said articles shall be liable to a fine not exceeding five hundred dollars.
• Sec. 7. That the penalties provided in this act for the breaking or injury of a submarine cable shall not be a bar to a suit for damages on account of such breaking or injury.
• Sec. 8. That the provisions of article four of the convention, in so far as they relate to the payment by the owner of a cable of the cost of repairs of another cable broken or injured in the attempt to lay or repair the former cable, shall not apply to that part of the latter cable which is laid in a depth of water exceeding one hundred fathoms.
• Sec. 9. That for the purpose of carrying into effect the convention, a person commanding, a ship of war of the United States or of any foreign state for the time being bound by the convention, or a ship specially commissioned by the Government of the United States or by the Government of such foreign state, may exercise and perform the duties vested in and imposed on such officer by the convention.
• Sec. 10. That when an offense against this act shall have been committed by means of a vessel, or of any boat belonging to a vessel, the master of such vessel shall, unless some other person is shown to have been in charge of and navigating such vessel or boat, be deemed to have been in charge of and navigating the same, and be liable to be punished accordingly.
• Sec. 11. That any document drawn up in pursuance of article seven or article ten of the convention shall be admissible in any proceeding, civil or criminal, as prima facie evidence of the facts or matters stated therein.
• Sec 12. That unless the context of this act otherwise requires, the term “vessel” shall be taken to mean every description of vessel used in navigation, in whatever way it is propelled; the term “master” shall be taken to include every person having command or charge of a vessel; and the term “person” to include a body of persons corporate, or unincorporate.
• Sec. 13. That the district courts shall have jurisdiction of all suits of a civil nature arising under this act; and from all decrees or judgments in such suits, where the matter in dispute exceeds the sum of fifty dollars, exclusive of costs, an appeal shall be allowed to the circuit court next to be held in such district, and such circuit court is required to receive, hear, and determine such appeal.