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13

never designed to undertake. It must, therefore, be the sense, (for there is no other remaining,) in which the promiser believed that the promisee accepted the promise. This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve; but we put the rule in the above form to exclude evasion in cases in which the popular meaning of a phrase and the strict grammatical signification of the words differ; or, in general, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used. Zemures promised the garrison of Sebastia, that if they would surrender, no blood should be shed. The garrison surrendered, and Zemures buried them all alive. Now Zemures fulfilled the promise in one sense, and in the sense, too, in which he intended at the time; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Zemures himself knew that the garrison received it, which last sense, according to our rule, was the sense in which he was, in conscience, bound to have performed it."

"Many efforts have been made by other writers to lay down precise and positive rules, and to

frame formula for the various modes of interpretation. In order to facilitate this, a nomenclature of classes, modes and species of construction has been attempted, and numerous cases, actual or possible, have been resorted to for the purpose of elucidating these definitions, and of exhibiting the application of these rules. Thus, Leiber distinguishes between interpretation and construction, dividing the former into close, extensive, extravagant, limited or free, predestinated and authentic; and the latter in close, comprehensive, transcendent, and extravagant. The

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classifications, rules, and arbitrary formula which he has given under these heads, are more calculated to astonish and puzzle the reader, as a metaphysical curiosity, than to afford any real assistance in the interpretation or construction. of treaties or laws. The same remark is applicable, in a qualified sense, to the numerous rules of the learned Domat. Others, again, as Mackelday and Phillimore, have adopted a more simple classification, and fewer and more general rules."

"The best modern writers on interpretation have confined themselves to stating the general principles which are to guide us in ascertaining the true meaning of a treaty, law or contract, avoiding all metaphysical distinctions, minute subdivision of terms and the use of arbitrary formulæ. Of this character are the rules laid down by Story, in his commentaries on the constitution of the United States. He regards some of the rules of Vattel as erroneous, but speaks in high terms of those given by Rutherforth, a summary of which is found in the preceding pages. Savigny regards the civil law rules of interpretation-which are substantially those of Domat-as affording little aid beyond that which an intelligent and dispassionate consideration of each particular case would fournish. Sedgwick thinks it 'as vain to attempt to frame positive and fixed rules of interpretation as to endeavour, in the same way, to define the mode by which the mind shall draw conclusions from testimony. Nor do I believe it easy to prescribe any system of rules of interpretation for cases of ambiguity, in written language, that will really avail to guide the mind in the decision of doubts.' But while we fully agree with Savigny and Sedgwick, that metaphysical classifications,

minute sub-divisions and arbitrary formulæ, are not calculated to facilitate the interpretation and construction of laws, it must not be inferred that all rules established for that purpose should be rejected. On the contrary, general rules, which restrain from latitudinarian construction, and from extravagant and false interpretation, have received the approval of the most learned jurists and most distinguished publicists of all ages. Indeed, the very necessity and importance of such rules, for the interpretation of constitutional and statutory laws, have led some authors into the extravagant nomenclature and minute classification which are here objected to. Sedgwick, notwithstanding his objection to rules, very justly remarks that there must be some general principles to control' the construction and interpretation of laws, the subject being too important to be left to the mere arbitrary discretion of the judiciary.'"

"And if the necessity of well-established rules for the interpretation of laws be generally admitted, it certainly will hardly be denied that such rules are equally important in connection with international jurisprudence. Some of the bloodiest wars that have been inflicted upon the human race have originated in a conflict of opinions respecting the interpretation of treaty stipulations. Moreover, it not unfrequently happens, that when one Nation seeks an excuse for quarrelling with another, or for encroaching on another's rights, some old and long forgotten treaty is brought forth from the dusty archives, or some new interpretation is introduced, with corresponding allegations of a violation of its stipulations. It is not pretended that any rules of interpretation, however complete or well established they may be, will entirely prevent such

Interpretation of conflicting agreements.

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conflicts and aggressions; nevertheless, they will greatly contribute towards such a result, or, at least, will prevent the real aggressor in an unjust war from escaping the odium which should attach to one who disturbs the peace of Nations, under the cloak of a false interpretation of treaty stipulations." *

Where treaties or treaty stipulations are in collision or opposition, that is, where two promises are not contradictory to themselves, but are of such a nature as to render it impossible to Rules of Vattel. fulfil both at the same time, Vattel lays down the following rules for determining which shall have the preference. 1st. If what is permitted is incompatible with what is prescribed, the latter is to be preferred. 2nd. What is permitted must yield to what is forbidden. 3rd. What is ordained must yield to what is forbidden. 4th. Other things being equal, that of the most recent date is to be preferred. 5th. A special promise is to be preferred to a general one. 6th. What, from its nature, cannot be delayed is to be preferred to what may be done at another time. 7th. When two promises or duties are incompatible, that of the highest honesty and utility is to have the preference. 8th. If we cannot perform at the same time two promises to the same person, he may select which he prefers. 9th. The stronger obligation has the preference over the weaker. 10th. What is promised under the higher penalty, has the preference over one with the lesser penalty, or with no penalty at all. †

Rules of Mr.
Hall.

Mr. Hall gives with regard to conflicts occurring between different provisions of a treaty or between different treaties, the following rules:

* HALLECK. Intern. Law. Edit. Sir Sherston Baker. Vol. I. Chapt. VIII.

† VATTEL. Droit des Gens. Liv. II. Ch. 17. §§ 311-322. PUFFENDORF. De Jure Gent. Liv. V. Cap. 12. § 23.

1. A generally or specifically imperative provision takes precedence of a general permission. Thus if a treaty concedes a right of fishing over certain territorial waters, and at the same time prohibits the persons to whom permission is given from landing to dry or cure the fish which may be caught, the prohibition out-weighs the permission, notwithstanding that the power of curing and drying on the spot may be found to be so essential to the enjoyment of the fishing, that the right to fish is nullified by its absence.

2. On the other hand, a special permission takes precedence of a general imperative provision; that is to say, if a treaty contains an agreement couched in general terms, and also an agreement with regard to a particular matter which, if allowed to operate, will act as an exception from the former agreement, effect is given to the exception.

3. If a penalty for non-observance is attached. to one of two prohibitory stipulations and not to the other, or if a more severe penalty is attached to one than the other, preference is given to that which is the better guarded. If a penalty is attached to neither, the stipulation has precedence which has the more precision in its command.

4.. When stipulations are of identical nature, that is to say when both are general and prohibitory or special and imperative etc., and no priority can be ascribed to either upon the grounds mentioned in the last rule, that which is the more important must be observed by the party obliged, unless the promisee, who is at liberty to choose that the less important stipulation shall be performed, exercises his power of choice in that direction.