Iuterpretation of treaties and

would be to convey an impression to the other party, that he is making a sincere declaration of the terms on which he is willing to treat. And even when the negotiator has followed his private instructions, there are cases, according to Dr. Wheaton, where the sovereign may refuse his ratification. He may do so when the motive for making the treaty was an error in regard to a matter of fact, or when the treaty would involve an injury to a third party, or when there is a physical impossibility of fulfilling it, or when such a change of circumstances takes place as would make the treaty void after ratification. All questions would be removed if in the full power of the negotiation or in a clause of the treaty itself, it were declared that the sovereign reserved to himself the power of giving validity to the treaty by ratification. This, if we are not deceived, is now very generally the case." *

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§ 133. "Treaties of every kind," says Kent, conventions. 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." The same general rule is laid down by Wheaton, but he adds: "Such is the inevitable imperfection and ambiguity of all human language, that the mere words alone of any writing, literally expounded, will go a very little way towards explaining the meaning. Certain technical rules of interpretation have, therefore, been adopted by writers on ethics and public law, to explain the meaning of international compacts, in cases of doubts." These rules are most fully expounded by Grotius, Vattel, Rutherforth and Paley. *

Halleck gives a brief outline of the principles of interpretation, as laid down by these authors, of which we quote the following.

"Grotius has devoted an entire chapter to the interpretation of difficult and ambiguous terms. He sets out with the saying of Cicero, that, 'when you promise, we must consider rather what you mean, than what you say.' But as inward motives are not in themselves discernible, we can determine what they were only from the words used, and conjectures drawn from other parts of the treaty, and from the peculiar circumstances of the particular case. These, he says, must sometimes be considered together, and sometimes separately. Words are not to be strictly construed according to their etymology, but according to their common use, as 'use is the judge, the law, and rule of speech.' Technical words, or terms of art are to be construed according to their meaning in such art. Conjectures are to be drawn from the subject matter, the effect of the terms used, and the circumstances under which the engagement was entered into. He divides things promised into three classes, favourable, odious and mixed. Favourable promises are those which carry in them an equality and a common advantage; odious promises are those where the charge and burthen are all on one side; and mixed promises are those which partake of both characters, but in which the favourable predominates. In the first, he says, the words must be taken in their full propriety, as they are generally understood, and if ambiguous, they must be allowed their largest sense.

In

the second, the words are to be taken in a stricter sense, whether they have reference to the subject matter, time, or circumstances. In the third kind of promises, the words are to be taken according to the character of the particular stipulation in which they occur, or of the particular matter or circumstances to which they refer." *

These distinctions are particularly commented on by Vattel, who lays down several maxims for the interpretation of treaties, which may be briefly stated as follows. 1st. It is not allowable to interpret what has no need of interpretation, for when a treaty is conceived in clear and precise terms, and the sense is manifest, and leads to no absurdity, there can be no reason for refusing the sense which is naturally presented and manifest. To go elsewhere in search of conjectures, is to endeavour to elude it. 2nd. If he who could and ought to have explained himself clearly, has not done so, he cannot be allowed to introduce subsequent restrictions for his own benefit. Pactionem obscuram iis nocere, in quorum fuit potestate legem assertius conscribere. 3rd. Neither of the contracting Powers is allowed to interpret the treaty at his own pleasure. 4th. As the party which made the promise ought to have known his intention, what he has sufficiently declared must be taken for true against him. 5th. The interpretation should be made according to the rules established for determining the sense in which the parties naturally understood it when the treaty was entered into. He next proceeds to lay down the following particular rules on which the interpretation ought to be formed, in order to be just and right. 1st. We must seek to discover the thoughts of the parties who drew up the treaty, and interpret it accordingly. Thus, we must give to a disposition the full extent properly implied in the terms, if such appears to have been the intention of the parties; but its signification should be restrained, if it is probable that the parties at the time so understood it. 2nd. No mental reservations can be admitted. 3rd. Common expressions and terms are to be taken according to common custom. 4th. Technical terms, or terms proper to the arts and sciences, are generally to be interpreted according to the definition given to them by persons versed in such art or science. 5th. We should give to equivocal expressions the sense most suitable to the subject or matter to which they relate. 6th. The same term is not necessarily to be taken in the same sense wherever it appears in the same instrument. 7th. Every interpretation that leads to an absurdity should be rejected. 8th. An interpretation that would render a treaty null and without effect should be rejected. 9th. Vague and obscure expressions should be interpreted in such a manner as to agree with the terms which are clear and without ambiguity. 10th. The whole treaty must be considered together, and an interpretation given to each particular expression so as to agree with the tenor of the whole instrument. 11th. The words of a party should be construed in accordance with the general reasons and motives of the agreement. 12th. The interpretation may be restrictive or extensive, according to reasons and probable intention of the contracting parties. *

"Rutherforth, says Halleck further, has discussed this subject with his usual perspicuity and ability, but in a manner somewhat diffuse. We will attempt but a brief outline of his remarks, referring the reader to his chapter on interpretation, the perusal of which will afford both pleasure and profit. A promise, he says, gives us a right to whatever the promiser designed or intended to make ours. But his design or intention, if it be considered merely as an act of his mind, cannot be known to anyone besides himself. When, therefore, we speak of his design or intention as the measure of our claim, we must necessarily be understood to mean the design or intention which he has made known or expressed by some outward mark; because a design or intention, which does not appear, can have no more effect, or can no more produce a claim, than a design or intention which does not exist. Hence, the way to ascertain our claims, as they arise from promises or contracts, is to collect the meaning and intention of the promiser or contractor, from some outward signs or marks. The collecting of a man's intention from such signs or marks is called interpretation."

"The remarks of Dr. Paley, in his work onMoral and Political Philosophy, are well worthy of attention, being as applicable to questions of International Law as to questions in ethics. He says: 'Where the terms of promise admit of more senses than one, the promise is to be performed in that sense in which the promiser apprehended at the time that the promisee received it.' It is not the sense in which the promiser actually intended it, that always governs the interpretation of an equivocal promise, because, at that rate, you might excite expectations which you never meant, nor would be obliged to satisfy. Much less is it the sense in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements which you