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made a treaty with Switzerland giving to Swiss aliens in this country the right to own land and in case of their decease intestate that the foreign heirs might have the lands converted into money under state laws here, and take away the funds as their own property. The "time" in which this might be done was not settled in the treaty, but was to be governed by the laws of the state in which the land lay. A prior treaty had fixed the time limit to three years, but this was changed in the new treaty which was under consideration. The land was in Virginia and this state had fixed no time limit by which an alien could sell and export the proceeds. It was claimed that as no limit was fixed that the sale could not be made at all, and that the treaty was wholly inoperative and a nullity. The court held that "the terms of the limitation imply clearly that some time, and not that none, was to be allowed." And further said: "When a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred. Shanks v. Dupont 3 Peters 242. Such is the settled rule in this court."
Another cardinal rule of construction of treaties is: that if the words are ambiguous their meaning is to be determined from the surrounding circumstances; and even parol evidence may be used to demonstrate the meaning and intention of the nations thus signing the compact.
Justice Miller held in Head Money Cases 112 U. .S Rep. that: "a treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party
chooses to seek redress, which in the end may be enforced by actual war. With all of this the judicial courts have nothing to do *** * But a treaty may contain provisions which confer rights upon citizens of one nation residing in the territory of the other which partake of the nature of municipal law*** an illustration of this character is found in treaties which regulate the mutual rights of citizens *** in regard to rights of property by descent or inheritance when the individuals concerned are aliens."
He further held, that a treaty is a law of the land just the same as a statute is; and when such rights are to be enforced in court, reference is made to the treaty the same as to a statute. The constitution gives it no superiority over an act of Congress. A treaty is made by the President and Senate. Statutes are made by the President, Senate and House of Representatives. Justice Miller makes a closing statement on this line, as follows: "In short we are of opinion that so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal."
The learned judge loses sight of one very important party to a treaty. A treaty must be made by the President, the Senate and the other contracting nation. The latter can have no part in enacting a law of Congress. How can such a statute have any binding force on the nation not privy to it? A treaty is a mutual compact; a statute is wholly unilateral. It would be a strange proceeding, when a contract made by and between two nations could be revoked or abrogated by the legislative body of one. A subsequent act of Congress might revoke a treaty but it would not bind the other contract
ing nation. It is not always a wholesome doctrine to teach, that a treaty can be overthrown by a subsequent act of Congress. This could not be done without our nation assuming the full responsibility for the act. The better doctrine to inculcate would be that if a nation makes a proper treaty it should observe it, rather than attempt to find a way to renounce it by a subsequent legislative act.
Congress has the right to declare war, and some time this might be the result of a Congressional revocation of a treaty. Since the treaty-making power is vested in a proper department, it would be better to rest it there and not turn it over to Congress, except under the necessities of war.
There is nothing clearer in international polity than this: that war between contracting nations suspends or abrogates all treaty and contract relations between them. It is impossible to be at peace with your enemy in war. Certain acts of humanity are authorized by the law of nations and a nation at war may pledge its faith to this extent. Society &c., vs. New Haven 8 Wheaton.
A treaty may in many cases cease to operate after an entire change of circumstances; but this rule could not be universal. A continuing treaty relating to the building and operating of a public utility could not be ignored by some trivial change in conditions. If a treaty provided for a certain charge for services, this would not fail because the utility company saw fit to change the title of its right of way from a leasehold to a fee. A railroad company does not change its legal rates when it changes its holdings from a condemned to a fee title.
Here would be an example of a change of circumstances that would render a treaty void: If a nation agreed to protect a weaker nation for a consideration
and became unable to give protection the treaty would be avoided by this change of circumstance. A change of circumstance is not a rule that always revokes a treaty; but the most that can be said is that some changes in circumstances may abrogate a treaty.
It has been argued that the Hay-Pauncefote treaty is annulled because we secured title to the canal zone after the making of the treaty. But two nations were bound by that treaty-England and America. England did not abrogate it because we became owner of the canal lands. And America did not and cannot because in the very grant, that some now claim was a ground for revoking the treaty, we, the only one claiming that the treaty has ceased to operate through a "change of circumstance," in Article 18 of the Panama treaty, expressly recognized and ratified the very HayPauncefote treaty. We expressly agreed to operate the canal under the terms of the Hay-Pauncefote treaty.
It is a very lame argument, even to suggest, that a treaty is not binding on us because we have most positively and solemnly reaffirmed it in a subsequent compact. How can the grant from Panama revoke the treaty when we in this grant declare that we will observe it?
A nation may in one treaty be grantee and in another it may be grantor; and in diplomacy it must be consistent. If it contends for a restricted grant as against the grantee in one case it cannot claim that a grantee's rights are to be enlarged in another instance. A nation will not be permitted to play "fast and loose" in matters of diplomacy, for international rules must be certain, invariable and consistent.
We are grantor in the English treaty and grantee under Panama. Shall we construe both in favor of the grantor?
But here is where all parties seem to get astray; they construe a treaty governing a public utility, by the rules which control ordinary commercial relations between nations. These are based on reciprocal dealings between the contracting nations. We did not build the Panama Canal because other nations build canals; and our treaties say nothing about reciprocation with any other canal or with other rates of charge. Transportation is not governed by tariff rules or rules governing barter and trade.
The labor and expense of taking coastwise and foreign ships through the canal are equal; the same for American or English ships. The kind of ship does not affect the labor or service, or the compensation. When a ship arrives at the canal, or a wagon at a toll gate, it is not a question where it hails from; the charge should be based on the service rendered not upon who is the customer.
A railroad company fixes its rate per head and not upon the color or occupation of the passenger, or the nationality of the patron. It is not usual to meddle with transit rates in a commercial treaty; if so, it is in a separate proviso. A treaty might require equal treatment, but if it expressly required discrimination or unequal treatment it would be a wonder!
The canal is not a class enterprise; its purpose is to pick up a ship in one ocean and launch it into the other. Would it not be strange to donate this service to one customer and not to another?
Many publicists hold that the equality, prescribed by the treaties, means equality in the conditions of treatment of all ships, being served by the canal, without regard to flag, origin or destination. The