CHAPTER VIII.

INTERPRETATION OF TREATIES (a).

LXIV. (b). ALL International Treaties are covenants bona fidei, and are, therefore, to be equitably and not technically construed (c).

LXV. The imperfection of language as an instrument of expressing intention must occasionally, if there were no other reasons, render interpretation necessary (d).

(a) The authorities principally relied upon in this Chapter are—

Grotius, 1. ii. c. xvi.

Puffendorf, 1. v. c. xii.

Vattel, 1. v. c. xii.

INTERNATIONAL JURISTS.

Rutherforth, B. ii. c. vii.

COMMENTATORS ON THE ROMAN LAW.

ANCIENT.

Donellus de Jur. Civ. 1. i. c. xv.

Pothier on Obligations, p. i. c. i. art. vii., translated and amplified by Evans, vol. i. p. 53; vol. ii. p. 35, number 5.

Domat. Prél. t. i. s. 2. ; tr. ch. 12.

MODERN.

Savigny, R. R. i. Viertes Kapitel.

Mühlenbruch, Doctrina Pandect. i. ss. 58-65, s. 115.

Suarez, De Leg., &c. 1. vi.

PUBLICISTS.

Story on the American Constitution, vol. i. c. v.

WRITERS ON ENGLISH LAW.

Broom's Legal Maxims, c. viii. The Interpretation of Deeds and Written Instruments.

Bacon (Matthew), Abridgement, tit. Statutes, i. Rules to be observed in the Construction of a Statute.

Wildman's International Law, i. pp. 177–185.

(b) Grot. 1. ii. c. xvi. De Interpretatione.

(c) Ib. l. ii. c. xvi. 11. "Discrimen actuum bonæ fidei et stricti juris, quatenus ex jure est Romano, ad jus gentium non pertinet."

Maltass v. Maltass, 1 Robertson's Reports, p. 76.

(d) "Sed quia interni actus per se spectabiles non sunt, et certi aliquid

But in truth there are other reasons; in all laws and in all conventions the language of the rule must be general, and the application of it particular. Moreover, cases arise which have, perhaps, not been foreseen, which may fall under the principle, but which are not provided for by the letter, of the law or contract. Circumstances may give rise to real or apparent contradictions in the different dispositions of the same instrument, or of another instrument, in pari materiâ, which may require to be reconciled. These are difficulties. which may arise between contracting parties disposed to act honestly towards each other. But they may not be so disposed; one of them may endeavour to avoid his share of the mutual obligation. Indeed there is no need for à priori reasoning on a subject amply demonstrated, both in the covenants of individuals and the Treaties of States, to be a matter of practical necessity.

LXVI. The interpretation is the life of the dead letter; but what is meant by the term "interpretation?" The meaning which any party may choose to affix? or a meaning governed by settled rules (e) and fixed principles, originally deduced from right reason and rational equity, and subsequently formed into laws? Clearly the latter. The necessities of the great society of States as much demand such laws for the exposition of their Treaties, as the necessities of each individual State for the covenants of their subjects. The rules by which International covenants are interpreted, have been collected by jurists both from the Roman law itself, from commentators upon that law, and from the writings of International Jurists. Grotius, Puffendorf, Vattel, and Rutherforth, have each written chapters upon this subject, which have obtained general approbation from the manifest equity

statuendum est, ne nulla sit obligatio, si quisque sensum quem vellet sibi affingendo liberare se posset; ipsa dictante naturali ratione jus est ei, cui quid promissum est, promissorem cogere ad id quod recta interpretatio suggerit, nam alioqui res exitum non reperiret: quod in moralibus pro impossibili habetur."—Grotius, 1. ii. c. xvi. s. 1.

(e) Vattel, ib. s. 265.

of the doctrines which they contain, and the clear manner in which they are expressed. But great advantage is to be derived from the writings of Suarez and Donellus, Pothier and Domat, who have treated the subject of the interpretation of laws and covenants in a manner, which combines the profoundest reasoning with the most perspicuous arrangement. The value of such writers, as expounders of International as well as of Public Law, has already been dwelt upon (f).

Sound principles upon this subject are moreover to be found scattered up and down the pages of the Roman Law, with respect to the interpretation of contracts (g), laws, and testaments. The Roman Lawyers were, indeed, apt to confound the limits of interpretation and of explanation by a new law, but they were careful not to apply to the Public Treaty (publica conventio) (h) the peculiarities attending the forms and rules of the private covenant (i). There is a manifest distinction between Laws, and Covenants or Treaties, which modifies in some degree the application of the rules of interpretation, transferred from the former to the latter. The Law enacted by the Supreme Power of the State

(f) Vol. i. p. 65.

(g) Savigny remarks (Obligationenrecht, II. 189), that with respect to contracts, these principles are of a very general character, and scarcely afford any aid beyond that which an intelligent and dispassionate consideration of each particular case would discover. This may be

so; but the circumstance adds to their value as rules of Interpretation of Contracts between States having no common superior.-Vide ante, vol. i. c. ix.

(h) Dig. ii. 14, 5, De Pactis.

(i) Gaius, iii. s. 94. Having remarked that only Roman citizens could validly contract in the formula, "Spondes ? Spondeo," continues, "Unde dicitur, uno casu hoc verbo peregrinum quoque obligari posse, velut si Imperator noster Principem alicujus peregrini populi de pace ita interroget: Pacem futuram spondes? vel ipse eodem modo interrogetur. Quod nimium subtiliter dictum est: quia si quid adversus pactionem fiat non ex stipulatu agitur, sed jure belli res vindicatur." This passage is cited by Savigny, R. R. i. 310, n. c. It affords an additional proof that the Romans were not ignorant of International Law.-Vide ante, vol. i. Pref. p. xlvi.; p. 31, &c.; App. II.

is to be interpreted according to the intention of that one power. The Covenant or Treaty contracted by two or more parties is to be interpreted with reference to the intention of them all "conventio seu pactio est duorum vel plurium in "idem placitum consensus" (k). It is proposed to give a concise statement of those leading principles and rules, which appear to be sanctioned by the reason of the thing, by usage, by the authority of jurists, and by the rules and analogies of the Roman Law (7), with respect to the interpretation of Treaties.

LXVII. The general heads under which, for the sake of perspicuity, we may range the principles and rules of Interpretation, are the following :—

a. Authentic Interpretation, that is, the exposition supplied by the Lawgiver himself (m).

B. Usual Interpretation, that which is founded upon usage and upon precedent.

y. Doctrinal Interpretation; that which is founded upon a scientific exposition of the terms of the instrument, and which, according to many jurists, is the only interpretation properly so called. This again admits of a sub-division into, 1. Grammatical, and, 2. Logical exposition.

LXVIII. Authentic Interpretation, in its strict sense, means the exposition given by the Lawgiver himself; it is, therefore, strictly speaking, inapplicable to the case of Treaties; but a contemporanea expositio may be gathered from the acts of the parties which preceded, accompanied, and followed soon after the making of the Treaty. In truth, however, this kind of interpretation generally takes the form of a new law, reciting and removing the doubts of the old one; and this mode of interpretation may, of course, be

(k) Dig. ii. 14, I. 1.

Bowyer's Third Reading.

(1) Vide ante, vol. i. cc. iii. viii. pp. 14, 67.

(m) Cod. i. 14, 12.

"Tam conditor quam interpres legum solus

Imperator juste existimabitur."

adopted in the case of Treaties. The contracting powers may promulgate a subsidiary and explanatory Treaty, the preamble of which, like the preamble of a Statute, may be declaratory with respect to existing doubts upon the construction of a former convention. But this is, in fact, not so much a particular mode of interpretation, as the enactment of a new law, or the conclusion of a new Treaty, as the case may be.

LXIX. Usual Interpretation is, in the case of Treaties, that meaning which the practice of nations has affixed to the use of certain expressions and phrases, or to the conclusions deducible from their omissions, whether they are or are not to be understood by necessary implication. A clear usage is the best of all interpreters between nations, as between individuals; and it is not legally competent to either nation or party to recede from its verdict (n).

LXX. Doctrinal Interpretation is, as has been said, either, 1. Grammatical or Philological; or, 2. Logical; and first,As to Grammatical Interpretation, we must not confound translation and etymology with interpretation. It has been well observed (o) that though it may not be easy to determine with exact precision where the province of the grammarian and the lexicographer ends and that of the interpreter begins, and though their provinces may be scarcely distinguishable upon their confines, yet that in their remotest extremities, and

(n) "Minime sunt mutanda, quæ interpretationem certam semper habuerunt."-Dig. I. 3. 23.

"Si non appareat quid actum est: erit consequens ut id sequamur quod in regione in qua actum est frequentatur."-Ib. L. 17–34.

"In obscuris inspici solet, quod verisimilius est, aut quod plerumque fieri solet."-Ib. 114.

"Si de interpretatione legis quæratur, in primis inspiciendum est quo jure civitas retro in ejusmodi casibus usa fuisset: optima enim est legum interpres consuetudo."-Ib. i. 3, 37.

"Nam Imperator noster Severus rescripsit: in ambiguitatibus, quæ ex legibus proficiscuntur, consuetudinem, aut rerum perpetuo similiter judicatarum autoritatem, vim legis obtinere debere."-Ib. 38.

(0) Rutherforth, b. 2, c. vii.