CHAPTER VII. CONSTRUCTION OF TREATIES AND EXTENT OF TREATY-MAKING POWER. 115. Construction of treaties a judicial question. § 116. Interpretation in spirit of good faith. § 117. Intention to be carried out. 118. Treaties in two languages. § 119. Instructions to diplomatic officers. § 120. Both are originals. 121. Construction favorable to execution of treaty. § 122. Vague and indefinite terms. $123. Whole treaty to be taken together. § 124. Right of property in award. 125. Liberal construction. § 126. Repugnant clauses. 127. Construed as a law. § 128. Courts cannot question rights recognized by nation. § 129. Jurisdiction of crime on foreign ship. $130. Rule declared by supreme court of United States. 131. Most favored nation clause. 132. Rules of construction codified. § 133. Extent of treaty-making power. 134. General terms used. § 138. Difference between delegation of treaty-making power and legisla tive power. § 139. Expressions of courts. § 140. Extends to all proper subjects of negotiation., 152. Same subject-Is the treaty-making power limited or unlimited. § 153. Same subject-Limitation by words of Constitution. § 154. The tenth amendment. § 115. Construction of treaties a judicial question. If a treaty is silent as to the method of deciding questions of individual identity, they must be decided by the courts; and where a treaty has the effect of creating or vesting individual rights, the meaning of the treaty as to such rights is to be ascertained by the same rules that would prevail in the case of private contracts. When not repugnant to the language or purpose of the treaty, the construction of treaties adopted by the executive department should be followed by the courts.3 The treaty with Spain provides that "requisitions for the surrender of fugitives from justice shall be made by the respective diplomatic agents of the contracting parties," and that "it shall be competent for such representatives or such superior consular officers to ask and obtain a mandate or preliminary warrant of the arrest for the person whose surrender is sought," whereupon the judges shall have power, upon complaint made under oath, to issue a warrant for the apprehension of the person charged. This provision was held to be permissive only, and not obligatory, and that the demanding government might, at its option, proceed under section 5270 of the Revised Statutes without a preliminary mandate, or might demand it under the treaty provisions. If, however, such a preliminary mandate is made prerequisite by the treaty, it is said that it should be set forth upon the face of the warrant. It is not in 1 Stockton v. Williams, Walk. Ch. 120. 2 Anderson v. Lewis, Freem. Ch. 178. 3 Castro v. De Uriarte, 16 Fed. 93. Castro v. De Uriarte, 16 Fed. 93. 5 Case of Farez, 7 Blatchf. 34, Fed. Cas. No. 4644. See as to the neces sity of a preliminary mandate under certain treaties, Ex parte Kaine, 3 Blatchf. 1, Fed. Cas. No. 7597; Case of McDonnell, 11 Blatchf. 79, Fed. Cas. No. 8771; Case of Herman Thomas, 12 Blatchf. 370, Fed. Cas. No. 13,887. competent for Congress to pass laws in aid of a treaty, although a treaty may provide a mode for carrying out its provisions. By the treaty between Spain and the United States for the cession of the Floridas, no provision was made for a tribunal to decide upon the claims arising from injuries suffered by the operations of the American army in Florida, but the appointment of such a tribunal was left by the treaty to be made by the government of the United States. A treaty is a contract as well as a law, and its construction should be such as to give full effect to all its parts.8 'Castro v. De Uriarte, 16 Fed. 93. Humphrey's Administrator V. United States, Dev. Ct. of Cl., secs. 678, 679. Goetze v. United States, 103 Fed. 72. Treaties are subjected to the following general rules, which govern all contractual engagements: "(1) There must be a concurrence of minds to one and the same thing. "(2) The interpretation of obscure terms in a treaty is a matter of fact, as to which extrinsic evidence may be taken for the purpose of explaining objective obscurity. "(3) Construction of treaties is a matter of law, to be governed by the same rules mutatis mutandis, as prevail in the construction of contracts and statutes. "(4) As contracts may be modified and rescinded, so may treaties. "(5) Immoral stipulations are void in treaties as they are in contracts. "(6) 'Construction' is to be distinguished from 'interpretation.' 'Construction' gives the general sense of a treaty and is applied by rules of logic; 'interpretation' gives the meaning of particular terms, to be explained by local circumstances and by the idioms the framers of the treaty had in mind. "(7) If two meanings are admissible, that is to be preferred which the party proposing the clause knew at the time to be that which was held by the party accepting it. "Treaties are distinguishable from contracts as follows: "(1) Contracts (unless we regard marriage as a contract) are, in all cases, the subjects of a suit for debt or damages, or for a specific thing. But no such suit lies on breach of duty. "(2) Contracts can only be vacated or rescinded by consent, or by the action of a court. But this is not necessarily the case with a treaty. There is no court which can be appealed to to dissolve it, and to declare it not to be any longer binding. "(3) While a contract may be annulled on the ground of fraudulent in fluence exercised by strength over weakness, such a reason cannot be set up for regarding a treaty as a nullity, since all nations are supposed to stand on the same footing, with equal opportunities of detecting fraud, and there are many cases of finesse and false coloring or suppression of facts which would avoid contracts, which would not, mutatis mutandis, avoid a treaty. If suppressio veri abrogated treaties to the extent it abrogates contracts, few treaties would stand. § 116. Interpretation in spirit of good faith.-A convention in a treaty binding both of the contracting powers, and intended for their mutual protection, should be interpreted in a spirit of uberrima fides. Such a construction should be adopted as will carry out the manifest purpose of the treaty." "As treaties are solemn engagements, said Mr. Justice Brown, "entered into between independent nations for the common advancement of their interests and the interests of civilization, and as their main object is not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity, so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence." 10 Chancellor Kent declares that treaties "are to receive a fair and liberal interpretation according to the intention of the contracting parties, and to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts." 11 § 117. Intention to be carried out. As a corollary to the proposition that treaties should be construed in good faith, it results that the intention of the contracting parties should be effectuated. The treaty of 1832 with Russia authorizes the arrest and surrender of deserters from the ships of war of that "(4) A treaty based upon a war accepts the results determined by the war, unless otherwise provided, while a contract does not necessarily assume the existing relations of the parties as a basis. The uti possidetis is the basis of every treaty of peace, unless it be otherwise agreed. Peace gives a final and perfect title to captures without condemnation, and, as it forbids all force, it destroys all hopes of recovery (of vessels) as much as if the vessel was carried infra proesidia, and con demned.''' Wharton's Int. Law Digest, sec. 133, II, 36, citing Kent's Commentaries, 173, as citing The Legal Tender, reported in Wheat. Dig. 302; The Schooner Sophie, 6 Rob. Adm. 138. Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. Rep. 195, 46 L. ed. 264. 10 Tucker v. Alexandroff, 183 U. S. 437, 22 Sup. Ct. Rep. 195, 46 L. ed. 270. 11 1 Kent's Commentaries, 174. country. A vessel, launched, but still in process of construction under a contract to build a protected cruiser for the Russian government, is a Russian ship of war, within the purview of this provision, although by the terms of the contract the vessel may be rejected for deficiency in speed or excess in draught; and during her construction is at the risk of the contractors until actual acceptance, where it is also provided by the contract that the vessel shall be constantly subject to inspection by a board of Russian officers, and that all materials intended for the construction of the vessel when brought upon the premises of the contractors shall become the exclusive property of the foreign government.1 12 The presumption can never be indulged in that either state intends to provide the means of perpetrating or protecting frauds, and all the provisions of the treaty are to be construed as if they were intended to be applied to bona fide transactions.13 A monopoly, void by the common law and the laws of the United States, but valid and patented by the law of Spain, will be considered private property within the protection of a treaty.14 § 118. Treaties in two languages.-Treaties between the European powers were, until about the beginning of the eighteenth century, generally written in Latin. Since that time the custom has been for negotiators of countries which do not use the same language to prepare their treaties in the language of the signatory powers. The treaties of the United States with Russia form an exception to the general rule, as most of them have been written in French and English.15 Mr. Jay, Secretary of Foreign Affairs, on June 23, 1785, in transmitting to the President of Congress the consular convention with France concluded by Dr. Franklin, remarked that it appeared to be in the French language, but he observed that it seemed expedient to provide in the future that "every treaty "Tucker v. Alexandroff, 183 U. S. 437, 22 Sup. Ct. Rep. 195, 46 L. ed. 270. A dissenting opinion was filed by Mr. Justice Gray, with whom Mr. Chief Justice Fuller and Justices Harlan and White concurred. Treaties-8 13 United States v. Amistead, 15 Pet. 518, 10 L. ed. 826. 14 O'Reilly De Camera v. Brooke, 135 Fed. 384. 15 Mr. Fish, Secretary of State, to Miss Fraser, November 18, 1874, 105 MS. Dom. Let. 221. |