"There is no rule of construction better settled, either in relation to covenants between individuals or treaties between nations, than that the whole instrument containing the stipulations is to be taken together, and that all articles in pari materia should be considered as parts of the same stipulation." Mr. Livingston, Sec. of State, to Mr. Lederer, Nov. 5, 1832. MSS. Notes, For. "Where, by the express terms of a treaty, the mode of receiving payment of money to be paid is submitted without limitation to the party entitled to receive, he alone can make the designation; and it is equally true that those modes which Governments may and often do accept by express stipulation cannot only be not deemed contrary to the rules and customs generally observed, but may be properly resorted to under a treaty, which, by excluding no particular mode, fairly embraces every one which is appropriate to such transactions between nations, and convenient to the party entitled to receive." Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833. Notes, For. Leg. "Nothing is more common in countries where the judiciary is an independent branch of the Government than for questions arising under treaties to be submitted to its decision. Indeed, in all regular Governments, questions of private right arising under treaty stipulations are in their nature judicial questions. With us a treaty is part of the supreme law of the land; as such, it influences and controls the decisions of all tribunals; and many instances might be quoted of decisions made in the Supreme Court of the United States arising under their several treaties with Spain herself, as well as under treaties between the United States and other nations. Similar instances of judicial decisions on points arising under treaties may be found in the history of France, England, and other nations; and, indeed, the undersigned would take the liberty to remind the Chevalier de Argaïz that this very treaty of 1795 has been made the subject of judicial decision by a Spanish tribunal. The undersigned would call to the recollection of the Chevalier de Argaïz the case of M. D. Hareng, in which the Spanish colonial courts decided, according to their sense, of the intention of the treaty of 1795, and the intendant confirmed their decree, which was that nothing in that treaty exempted Mr. Hareng from the payment of certain demands. From this decision this Government was inclined to dissent; but never questioned the right and duty of a Spanish court to consider the intent and effect of a treaty. "Nations are bound to maintain respectable tribunals to which the subjects of states at peace may have recourse for the redress of injuries and the maintenance of their rights. If the character of these tribunals be respectable, impartial, and independent, their decisions are to be regarded as conclusive. The United States have carried the principle of acquiescence in such cases as far as any nation upon earth; and in respect to the decisions of Spanish tribunals, quite as frequently perhaps as in respect to the tribunals of any other nation. In almost innumerable cases, reclamations sought by citizens of the United States against Spain for alleged captures, seizures, and other wrongs committed by Spanish subjects, the answer has been, that the question has been fairly tried before an impartial Spanish tribunal, having competent jurisdiction, and. decided against the claimant; and in the sufficiency of this answer the Government of the United States has acquiesced. If the tribunal be competent; if it be free from unjust influence; if it be impartial and independent, and if it has heard the case fully and fairly, its judgment is to stand as decisive of the matter before it. "This principle governs in regard to the decisions of courts of common law, courts of equity, and especially courts of admiralty, where proceedings so often affect the rights and interests of the citizens of foreign states and Governments." Mr. Webster, Sec. of State, to Mr. de Argaïz, June 21, 1842. MSS. Notes, Spain. The informal agreement between the United States and Great Britain limiting their respective forces on the lakes is conditioned, so far as concerns the United States, upon Great Britain maintaining scrupulous neutrality in respect to war, civil or otherwise, in which the United States is concerned, and of which the lakes may be the theater. Mr. Seward, Sec. of State, to Mr. Adams, Oct. 24, 1864. MSS. Inst., Gr. Brit. The covenants or guarantees in a treaty, when dependent on certain concessions, cannot be enforced until the concessions are actually made. Mr. Fish, Sec. of State, to Mr. Baxter, Mar. 20, 1871. MSS. Inst., Cent. Am.; By the treaty of March 20, 1833, between the United States and Siam, the citizens of the former are forbidden to import or sell in Siam (except to the King) "munitions of war." As to the meaning of this term "I feel clear that a nomen generalissimum, such as munitions of war' is far more comprehensive in its operation than would be any group of speci fications, no matter how exhaustive. The rule, as you well know, is that the introduction of specifications operates to limit even general terms which may precede them, and in this view I cannot but think that the terms' fire-arms, shot, or gunpowder,' which are quoted as used in the treaty between Siam and Great Britain cover a much more restricted area than does the term munitions of war.' If, for instance, poisoned arrows were called for in Siam as weapons likely to be peculiarly efficacious in Siamese warfare, they would be excluded under the term 'munitions of war,' but not under those of 'fire-arms, shot, or gunpowder.' The same might be said of preparations of dynamite. I hold, therefore, that the term ' munitions of war' gives all the protection to Siam, as to the question at issue, that could be secured by an enumeration of particulars, no matter how exhaustive." Mr. Bayard, Sec. of State, to Mr. Phelps, Jan. 7, 1886. MSS. Inst., Gr. Brit. When there is a treaty giving certain privileges as to repairing armed vessels of a belligerent, such treaty will be enforced by the neutral states, though the favors it confers on the belligerent may be in excess of what would be conferred by the law of nations. Moodie v. The Phœbe Anne, 3 Dall., 319. See Bee's Adm. R., 40, 74. A stipulation in a treaty that neutral bottoms make neutral goods, does not imply a stipulation that enemies' bottoms make enemies' goods, the two propositions being distinct. The Nereida, 9 Cranch, 388. The doctrine of cy pres performance has no application in the construction of treaties. The Amiable Isabella, 6 Wheat., 1. The court cannot supply a casus omissus in a treaty any more than in a law. By the treaty with Spain of 1795 free ships were to make free goods; and in the 17th article it was provided that a passport, issued in accordance with the form annexed to the treaty, should be conclusive proof of the nationality of the vessel. There being, in fact, no form annexed, it was held that the proprietary interest of the ship must be determined according to the ordinary rules of prize courts, and if shown to be Spanish property, that the cargo was protected from liability. Ibid., 1, 76. The doctrine of a performance cy pres, so just and appropriate in the civil concerns of private persons, belongs not to the solemn compacts of nations, so far as judicial tribunals are called upon to interpret or enforce them. Ibid., 1, 73. Stipulations in treaties having sole reference to the exercise of belligerent rights cannot be applied to govern cases exclusively of another nature, and belonging to a state of peace. The Marianna Flora, 11 Wheat., 1. The laws applicatory to treaties of cession do not apply to treaties for the recognition of independence, such as that of 1783, with Great Britain. Harcourt v. Gaillard, 12 Wheat., 523. Foreign territory, under the Constitution of the United States, may be acquired under either the treaty-making or the law-making power. American Ins. Co. v. Bales of Cotton, 1 Pet., 542. The original of the, treaty of 1819 with Spain being in the Spanish language, not corresponding precisely with the original in English, the language of the former is to be taken as expressing the intent of the grantor as to the lands granted and reserved. The King of Spain was the grantor; the treaty was his deed; the exception was made by him; and its nature and effect depended on his intention, expressed by his words, in reference to the thing granted and the thing reserved and excepted in and by the grant. The Spanish version was in his words and expressed his intention, and, though the American version showed the intention of this Government to be different, we cannot adopt it as the rule by which to decide what was granted, what excepted, and what reserved. The court must be governed by the clearly expressed and manifest intention of the grantor and not the grantee in private, a fortiori in public, grants. U. S. v. Arredondo, 6 Pet., 691. As to which of the conflicting versions of a treaty is to prevail, seo infra, § 165. When a treaty is executed in more than one language, each language being that of a contracting party, each document, so signed and attested, is to be regarded as an original, and the sense of the treaty is to be drawn from them collectively. Ibid., 710. A treaty of cession is a deed or grant by one sovereign to another, which transfers nothing to which he had no right of property, and only such right as he owned and could convey to the grantee. Mitchel v. U. S., 9 Pet., 711. The stipulation in the treaty of cession of Louisiana for the protection of the inhabitants in their property, &c., ceased, by its own limitation, to operate when the State was admitted into the Union. City of New Orleans v. Armas, 9 Pet., 224. A treaty of cession is to be construed in accordance with the state of things at the time existing. Strother v. Lucas, 12 Pet., 410. The term "grant" in a treaty comprehends not only those which are made in form, but also any concession, warrant, order, or permission to survey, possess, or settle, whether evidenced by writing or parol, or presumed from possession; and that in the term "laws" is included custom and usage, when once settled, though it may be "comparatively of recent date, and is not one of those to the contrary of which the memory of man runneth not, which contributed so much to make up the common-law code." Strother v. Lacas, 12 Pet., 436. It is a sound principle of national law, and applies to the treaty making power of this Government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. Lattimer r. Poteet, 14 Pet., 14. A treaty is to be construed so as to exclude fraud and to make its operation consistent with good faith. The Amistad, 15 Pet., 518. That a reservation in a treaty may operate as a grant of lands, see U. S. v. It has been settled by the decisions of the Supreme Court (1) that compacts between Governments or nations, like those between individuals, should be interpreted according to the natural, fair, and received acceptation of the terms in which they are expressed; (2) that the obligation of such compacts, unless suspended by some condition or stipulation therein contained, commences with their execution by the authorized agents of the contracting parties, and that their subsequent ratification by the principals themselves has relation to the period of signature; (3) that any act or proceeding, therefore, between the signing and ratification of a treaty, by either of the contracting parties, in contravention of the stipulations of the compact, would be a fraud upon the other party, and could have no validity consistently with a recogni tion of the compact itself; (4) that a nation which has ceded away her sovereignty and dominion over a territory, can, with respect to that territory, rightfully exert no power by which the dominion and sovereignty so ceded would be impaired or diminished. U. S. v. D'Auterive, 10 How., 609. A guarantee in a treaty of cession of vested rights in the ceded territory covers only rights which emanated from a prior rightful sovereign. U. S. r. Pillerin, 13 How., 9. Such a guarantee covers inchoate as well as matured rights. Delassus v. U. S., 9 Pet., 117; Strother v. Lucas, 12 Pet., 410. That benefits granted as equivalents by a treaty are not to be considered as donations, see Forsyth v. Reynolds, 15 How., 358. Whether a sovereign had the power, in making a treaty, to annul a grant, cannot be examined in the courts of the United States, the Presi dent and Senate having treated with him as having that power. Clark v. Braden, 16 How., 635. Where one of the parties to a treaty at the time of its ratification annexes a written declaration explaining ambiguous language in the instrument, or adding a new and distinct stipulation, and the treaty is S. Mis. 162-VOL. II- -3 33 |