66 Chace, in giving his opinion to that effect, said: "In the "construction of contracts, words are to be taken in their "natural and obvious meaning, unless some good reason be "assigned to show that they should be understood in a dif"ferent sense. The universality of the terms is equal to an express specification on the Treaty, and indeed includes it. "For it is fair and conclusive reasoning, that if any descrip"tion of debtors, or class of cases, were intended to be excepted, it would have been specified. The indefinite and sweeping words made use of by the parties exclude the "idea of any class of cases having been intended to be excepted, and explode the doctrine of constructive discrimi"nation" (h). 66 66 XCV. Under the extensive and restrictive kinds of interpretation, Jurists have been in the habit of including a once celebrated distinction between things of a favourable and things of an odious nature. (i) Barbeyrac rejected this distinction, on the ground that these assumed qualities cannot found any safe rules of interpretation; that the same characteristics may seem odious to one party and favourable to another, according to the dispositions of each, and the point of view from which they regard them; that they are incapable therefore of a certain definition; that it is admitted that the two qualities are often blended together in one and the same subject; and, above all, that without having recourse to this distinction, sound rules of interpretation may be always obtained. (k) Vattel, however, adheres to the distinction, but thinks (h) Ware v. Highton, 3 Dallas (American), Reports, p. 199. See, too, Hamiltons v. Eaton, Martin (American), Reports, 79. Pothier (Evans' trans.), vol. i. p. 39. (i) See his note on Grot. 1. ii. c. 16, 10, in which he repeats the opinion which he had already expressed in his commentary on Puffendorf, De Jure Nat. et Gent. s. 12. (:) "One of the sections of Vattel which is relied on, states this proposition, 'That whatever tends to change the present state of things, is also to be ranked in the class of odious things.' (B. ii. s. 305.) Is it not most manifest, that this proposition is, or at least may be, in many cases, that, with respect to certain things, concerning which the intention of the parties is not clear, equity gives in some cases an extensive, in others a restrictive interpretation. This is unquestionably true, and is indeed the substance of what has been already stated, but the catalogue of things favourable, to which Vattel applies the extensive, and of things odious, to which he applies the restrictive interpretations, are of a very loose and disputable character; and the rules which he lays down appear to find their place with more propriety and accuracy under the other different heads. which have been mentioned. fundamentally wrong? If a people free themselves from a despotism, is it to be said, that the change of government is odious, and ought to be construed strictly? What, upon such a principle, is to become of the American Revolution, and of our State Governments, and State Constitutions? Suppose a well-ordered Government arises out of a state of disorder and anarchy, is such a Government to be considered odious? Another section (s. 508) adds, 'Since odious things are those whose restriction tends more certainly to equity than their extension, and since we ought to pursue that line which is most comformable to equity, when the will of the Legislature or of the contracting parties is not exactly known, we should, where there is a question of odious things, interpret the terms in the most limited sense. We may even, to a certain degree, adopt a figurative meaning, in order to avert the oppressive consequences of the proper and literal sense, or anything of an odious nature which it would involve.' Does not this section contain most lax and unsatisfactory ingredients for interpretation? Who is to decide whether it is most conformable to equity to extend or to restrict the sense? Who is to decide whether the provision is odious? According to this rule, the most opposite interpretations of the same words would be equally correct, according as the interpreter should deem it odious or salutary. Nay, the words are to be deserted, and a figurative sense adopted, whenever he deems it advisable, looking to the odious nature or consequence of the common sense."-Story on the Constit. of the United States, vol. i. pp. 291, 292. CHAPTER IX. COLLISION OF TREATIES. XCVI. IT has been already remarked that it is not competent to a State to adopt customs or make Treaties which come into collision with Divine or Natural Law (a), or which affect the general International Law with respect to other States which are not parties to the Treaty (b). But a collision or opposition may happen between two human laws (c), two promises, or two Treaties; the fulfilment of both may be impossible, and in this case it is desirable to have recourse to some recognised rules for ascertaining to which the preference should be given (d). Grotius, borrowing from Cicero and Vattel, have here laid down various rules, which in such cases should be observed. XCVII. 1. In all cases where a stipulation which is permissive, conflicts with one that commands, the former must yield to the latter. This doctrine that command outweighs permission was derived by Grotius from Cicero, and is adopted by all jurists; nevertheless a universal command, according to Barbeyrac, gives way to a particular permission. 2. A stipulation which may be complied with at any time must yield to one which must be executed directly or not at (a) Vol. i. p. 26, s. 32. "Pacta, quæ turpem causam continent, non sunt observanda."-Dig. ii. xiv. 27, 4. (b) "Privatorum conventio juri publico non derogat."-Dig. L. 17, 45. Vide ante, vol. i. p. 44, s. 50. (c) Quintil. Instit. Orator. lib. vii. c. 7. (d) Grot. 1. ii. c. 16, 29. Vattel, 1. ii. c. 17, ss. 311, 321. Rutherforth, b. ii. c. 7, p. 430. (Ed. Baltimore, 1832.) all. This rule is manifestly reasonable ;-by the adoption of it both engagements may possibly be satisfied,-whereas by a contrary rule only one can be satisfied. 3. A prohibitory stipulation must be preferred, as a general rule, over one which is imperative,—upon the principle that every prohibition is absolute in itself, whereas every injunction is of necessity conditional, and supposes a power and an opportunity of doing what is enjoined. When this cannot be done without contravening a prohibitory stipulation, there is no opportunity, and therefore no moral possibility of acting; but this remark is true only in cases where the prohibition is absolute and unconditional. 4. When two stipulations, equal in other respects, conflict with each other, the more particular one has precedence over that which is more general. This is the rule in the conflict of laws, founded upon the principle that the legislator, when he speaks particularly, is held to be more carefully to guard against accidental exceptions, and therefore more unwilling to admit of any than when he speaks in general. 5. It is a rule, with respect to all prohibitions, that the prohibition which has a penalty attached to it is to be preferred to the one which has not, and that which has the greater penalty to that which has the lesser. In the case of The Ringende Jacob, it was considered whether the freighting the ship to the enemy was or was not the lending prohibited in the Swedish Treaty. (October 21st, 1666.) Sir W. Scott said, " reference has been made "to an ancient Treaty between England and Sweden, which "forbids the subjects of either powers to sell or lend their ships for the use and advantage of the enemies of the "other;' and as this prohibition is connected in the same "article with the subject of contraband, it is argued that "the carrying of contraband articles in the present cargo, "is such a lending as comes within the meaning of the 66 6 Treaty; but I cannot agree to that interpretation. To "let a ship on freight to go to the ports of the enemy, can 66 "not be termed lending, but in a very loose sense; and I "apprehend the true meaning to have been, that they "should not give up the use and management of their ships directly to the enemy, or put them under his absolute "power and direction. It is, besides, observable, that there " is no penalty annexed to this prohibition. I cannot think "that such a service as this is will make the vessel subject "to confiscation " (e). 6. A sound rule is often derived from the consideration of dates of Treaties. If there happen a collision between two affirmative Treaties concluded between the same contracting parties, the Treaty of more recent is preferred over that of later date. In this case both covenants have been made by the same powers, and therefore the subsequent might derogate from the former act. On the other hand, if a collision happened between two Treaties concluded between two different contracting parties, the more ancient one must be executed, because it was not within the competence of the party promising, to act in derogation of his antecedent engagements to another. 7. If of two engagements, contracted with the same party, only one can be fulfilled, it is true, as a general rule, the promisee may choose which of the two shall be performed; and if his will cannot be discovered, the promisor must fulfil the more important engagement, as being that of which the promisee would presumably require the fulfilment. 8. Vattel says, that when two duties stand in competition, that one which is the more considerable, the more praiseworthy and productive of the greater utility, is entitled to the preference. Lord Bacon says, that "it is a point worthy "to be observed generally of the rules of law, that when "they encounter and cross one another, that it be understood "which the law holds to be worthier and to be preferred; "and it is in this particular very notable to consider that "this being a rule of some strictness and rigour, doth not, (e) 1 Robinson's Adm. Rep. pp. 89, 90. |