Chapter IV.—Principles of construction applicable to the rules of the treaty.
The two questions last considered (that of the supposed obligation of Great Britain, under the First Rule, to seize or detain such vessels as the Alabama or the Florida, when they came into British ports as duly commissioned public ships of war of the Confederate States, and as to her supposed obligation, under the Second Rule, either not to permit at all, or by an exact supervision to limit, the coaling of Confederate. steam-vessels of war in British ports) involve points of such grave importance as to the principles of construction to be applied to those Rules for the purpose of the present controversy, that some further general observations on that subject seem to be imperatively called for.1. Importance of the second and third questions, as to the principles of construction applicable to the three Rules.
Among the rules for the interpretation of Treaties, laid down by Vattel, (Articles 262–310,) are found the following:2. Rules for the interpretation of public conventions and treaties.
(1.) Since the lawful interpretation of a contract ought to tend only to the discovery of the thoughts of the author or authors of that contract, as soon as we meet with any obscurity we should seek for what was. probably in the thoughts of those who drew it up and interpret it accordingly. This is the general rule of all interpretations. It particularly serves to fix the sense of certain expressions the signification of which is not sufficiently determined. In virtue of this rule we should take those expressions in the most extensive sense, when it is probable that he who speaks has had in his view everything pointed out in this extensive sense; and, on the contrary, we ought to confine the signification, if it appears that the author has bounded his thoughts by what is comprehended in the more limited sense. (Art. 270.)
(2.) In the interpretation of treaties, pacts, and promises, we ought not to deviate from the common use of the language; at least if we have not very strong reasons for it. In all human affairs, where there is a want of certainty, we ought to follow probability. It is commonly very probable that they have spoken according to custom; this always forms a very strong presumption, which cannot be surmounted but by a contrary presumption that is still stronger. (Art. 271.)
(3.) Words are only designed to express the thoughts; thus the true signification of an expression in common use is the idea which custom has affixed to that expression. It is, then, a gross quibble to affix a particular sense to a word in order to elude the true sense of the entire expression.
(4.) When we manifestly see what is the sense that agrees with the intention of the Contracting Powers it is not permitted to turn their words to a contrary meaning. The intention, sufficiently known, furnishes the true matter of the Convention, of what is perceived and accepted, demanded and granted. To violate the Treaty is to go contrary to the intention, sufficiently manifested, rather than against the terms in which it is conceived; for the terms are nothing without the intention that ought to dictate them. (Art. 274.)
(5.) We ought always to give to expressions the sense most suitable to the subject or to the matter to which they relate. For we endeavor, by a true interpretation, to discover the thoughts of those who speak or of the Contracting Powers in a Treaty. Now, it ought to be presumed that he who has employed a word capable of many different significations has taken it in that which agrees with the subject. In proportion as he employs himself on the matter in question the terms proper to express his thoughts present themselves to his mind. This equivocal word could, then, only offer [Page 439] itself in the sense proper to express the thought of him who makes use of it; that is, in the sense agreeable to the subject. (Art. 280.)
(6.) Every interpretation that leads to an absurdity ought to be rejected; or, in other words, we should not give to any piece a sense from which follows anything absurd, but interpret it in such a manner as to avoid absurdity. As it cannot be presume d that any one desires what is absurd, it cannot be supposed that he who speaks has intended that his words should be understood in a sense from which that absurdity follows. Neither is it allowable to presume that he sports with a serious act; for what is shameful and unlawful is not to be presumed. We call absurd not only that which is physically impossible, but what is morally so; that is, what is so contrary to right reason that it cannot be attributed to a man in his right senses. * * * The rule we have just mentioned is absolutely necessary, and ought to be followed, even when there is neither obscurity nor anything equivocal in the text of the law or the Treaty itself. For it must be observed that the uncertainty of the sense that ought to be given to a law or a Treaty does not merely proceed from the obscurity or any other fault in the expression, but also from the narrow limits of the human mind, which cannot foresee all cases and circumstances, nor include all consequences of what is appointed or promised; in short, from the impossibility of entering into this immense detail. We can only make laws or Treaties in a general manner; and the interpretation ought to apply them to particular cases, conformably to the intention of the legislature or of the Contracting Powers. Now, it cannot be presumed that in any case they would lead to anything absurd. When, therefore, their expressions, if taken in their proper and ordinary sense, lead to it, it is necessary to turn them from that sense just so far as is sufficient to avoid absurdity. (Art. 282.)
(7.) If he who has expressed himself in an obscure or equivocal manner has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure or vague expressions in such a manner that they may agree with those terms that are clear and without ambiguity which he has used elsewhere, either in the same Treaty or in some other of the like kind. In fact, while we have no proof that a man has changed his mind or manner of thinking, it is pressumed that his thoughts have been the same on the same occasions; so that if he has anywhere clearly shown his intention with respect to anything, we ought to give the same sense to what he has elsewhere said obscurely on the same affair. (Art. 284.)
(8.) Frequently, in order to abridge, people express imperfectly, and with some obscurity, what they suppose is sufficiently elucidated by the things which preceded it, or even what they propose to explain afterward; and besides, the expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification it may receive in itself, as that it ought to have from the thread and spirit of the discourse. (Art. 285.)
(9.) The reason of the law or the Treaty, that is, the motive which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense; and great attention ought to be paid it, whenever it is required to explain an obscure, equivocal, and undetermined point, either of law or of a Treaty, or to make an application of them to a particular case. (Art. 287.)
(10.) We use the restrictive interpretation to avoid falling into an absurdity. * * * The same method of interpretation takes place, when a case is presented, in which the law or Treaty, according to the rigor of the terms, leads to something unlawful. This exception must then be made; since nobody can promise to ordain what is unlawful. (Art. 293.)
(11.) When a case arises, in which it would be too prejudicial to any one to take a law or promise according to the rigor of the terms, a restrictive interpretation is also then used; and we except the case, agreeably to the intention of the legislature, or of him who made the promise. For the legislature requires only what is just and equitable; and in contracts no one can engage in favor of another, in such a manner as to be essentially wanting to himself. It is then presumed, with reason, that neither the legislature, nor the Contracting Powers, have intended to extend their regulation to cases of this nature; and that they themselves would have excepted them, had these cases presented themselves. (Art. 294.)
Let us apply these principles to the interpretation of the Rules of the present Treaty. The British interpretation of the latter part of the first Rule, which makes it applicable only to the prevention of the departure from British jurisdiction of vessels over which British jurisdiction had never ceased or been displaced, and whose warlike character rests only in an (as yet) unexecuted intention or purpose, is agreeable to the fifth, sixth, eighth, ninth, and tenth of the foregoing principles. The American interpretation, [Page 440] which would extend it to vessels coming, as public ships of war of the Confederates, into British waters, without any notice beforehand that they would be either excluded or detained, is opposed to the same principles in the most marked manner, and especially it is opposed to those numbered 6 and 10, which are, perhaps, the most cogent and undeniable of them all.3. Applications of these principles to the interpretation of the three Rules, as to the points in controversy.
The British interpretation of the first part of the second Rule, which applies the phrase “base of naval operations” in the same sense in which it has always been used by the leading authorities on international law, and particularly by those of Great Britain and the United States, (e. g., by Lord Stowell and Chancellor Kent,) is in accordance with the second, third, and seventh of these principles; while the American interpretation, which would extend it to every combination of circumstances which those words, in their most lax, popular, and unscientific acceptation could possibly be made to embrace, offends against the same, and also against the tenth principle.
The British interpretation of the words “the renewal or augmentation of military supplies or arms,” in the latter part of the second Rule, which applies them to augmentations of the warlike force of belligerent vessels, the same, or ejusdem generis, with those which were forbidden by President Washington’s Rules, and by the British and American Foreign-Enlistment Acts, is in harmony with the second, third, fifth, seventh, eighth, and ninth of the foregoing principles. The American interpretation, which would extend them to supplies of articles, such as coals, which, according to the doctrine and practice of asylum and hospitality hitherto recognized and acted upon by all civilized nations, (notably by Great Britain and the United States,) were never yet deemed unlawful, and from the supply of which, in neutral ports, it would be highly prejudicial to two great maritime Powers, such as the two Contracting Parties, to debar themselves in case of their being engaged in war, in the present days of steam navigation, offends against the same principles, and also against that numbered 11.
The force of these objections to the American interpretation of the three Rules is greatly increased when it is borne in mind, first, that Great Britain agreed to their being retrospectively applied to the decision of “the questions between the two countries arising out of the claims mentioned in Article I” or the Treaty, those being the claims “growing out of acts committed by the several vessels which had given rise to the claims generically known as the Alabama Claims.”4. Influence on the construction of the retrospective terms of the agreement.
Down to the date of the Treaty no claim had ever been made against Great Britain, on the specific ground of supplies of coal to Confederate vessels; every claim for captures, of which any intelligible notice had been given, was in respect of captures by ships, said to have been equipped and fitted out in British ports, or to have received their armaments by means directly supplied from Great Britain. The British Government, therefore, was warranted in believing, as it did believe, that the controversy between itself and the Government of the United States was confined to claims growing out of acts committed by ships of this description only; and, in agreeing to the terms of the Rule, it could not be supposed to have had any claims in view which were grounded only on supplies of coal to Confederate vessels. A retrospective engagement of this sort cannot, without a complete departure from all the principles of justice, be enlarged by any uncertain or unnecessary implication.
The United States have expressly declared, in their Case, that they consider all the Rules—of course, therefore, the second—to be coincident [Page 441] with, and not to exceed, the previously known rules of international law. Great Britain, though taking a different view of the other Rules, has also expressly declared, in her Counter Case, that she too regards the second Rule as in no way enlarging the previously known prohibitions of international law, on the subject to which it relates. The practice of the United States, by habitually receiving supplies of coal in British ports during the war, was in accordance with the views of international law, applicable to this subject, which had been previously announced and acted upon by all the highest political and judicial authorities of that country. Thus it is made quite apparent that the construction now sought to be placed by the United States upon this second Rule is at variance with the real intention and meaning of both the Contracting Parties; and therefore with the 1st and 4th of the principles extracted from Vattel, as well as with the others already specified.5. The admitted intention of both the parties as to the second Rule.
But further: not only did Great Britain consent to the retrospective application of those Rules, upon the tooting formerly explained, to the determination of what she understood as “the claims generically known as the Alabama Claims,” growing out of acts committed by particular vessels which had historically given rise to that designation, and of no other kind of claims; not only did the two Contracting Parties “agree to observe these Rules as between themselves in future;” but they also agreed to “bring them to the knowledge of other maritime Powers, and to invite them to accede to them.”6. Influence upon the construction of the agreement to propose the three Rules for general adoption to other maritime nations.
They did not attempt to make a general code of all the rules of international law connected with the subject; they were not careful, and did not attempt, to express the explanation or qualifications of any expressions used in these particular Rules, which a sound acquaintance with the rules and usages of international law would supply. Rules of this nature, which could rationally be supposed proper to be proposed for general acceptance to all the maritime Powers of the civilized world, must evidently have been meant to be interpreted in a simple and reasonable sense, conformable to, and not largely transcending the views of international maritime law and policy which would be likely to commend themselves to the general interests and intelligence of that portion of mankind. They must have been meant to be definitely, candidly, and fairly interpreted; not to be strained to every unforeseen and novel consequence, which perverse latitude of construction might be capable of deducing from the generality of their expressions. They must have been understood by their framers, and intended to be understood by other States, as assuring the continuance, and involving in their true interpretation the recognition of all those principles, rules, and practical distinctions, established by international law and usage, a departure from which was not required by the natural and necessary meaning of the words in which they were expressed; they cannot have been meant to involve large and important changes, upon subjects not expressly mentioned or adverted to by mere implication; nor to lay a series of traps and pitfalls, in future contingencies and cases, for all nations which might accede to them. Great Britain certainly, for her own part, agreed to them, in the full belief that the Tribunal of Arbitration, before which these claims would come, might be relied upon to reject every strained application of their phraseology, which could wrest them to purposes not clearly within the contemplation of both the Contracting Parties, and calculated to make them rather a danger to be avoided than a light to be followed by other nations.