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Constitution has imposed on it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered." So also the Court has recognized as political the question whether power remains in a foreign state to carry out its treaty obligations, and has refused to interfere with the decision of the political department in this regard. The fact that extradition had been mutually requested and granted since the formation of the German Empire in 1871 under the treaty originally concluded with Prussia June 16, 1852-its subsequent existence thus having been recognized by the executive branch-was regarded by the Supreme Court "as of controlling importance" in deciding that the treaty was still in force. If the legislature has expressed itself clearly as to the boundaries of the nation as defined by treaty, the courts will accept its construction without going into the merits.3 A construction of a treaty stipulation defining the jurisdictional limits of the United States which has been insisted upon by the Executive will be accepted by the courts, the construction placed upon it by Congress, while not definite, being conformable thereto. The consideration in the first instance of questions of a judicial character, which may later come before the courts, naturally devolves at times upon the department of government entrusted with foreign relations.

Under the Articles of Confederation the Secretary for

'Doe vs. Braden, 16 How., 657.

2 Terlinden vs. Ames, 184 U. S., 285, 288. Foster vs. Neilson, 2 Pet., 253, 309.

4 In re Cooper, 143 U. S., 472.

Foreign Affairs found it advisable to submit questions arising in the interpretation of treaties to the Congress.' Under the Constitution the Senate, although a co-ordinate branch of the treaty-making power, is not usually consulted by the President in matters of interpretation. Nevertheless, on representations by the French government that acts of Congress which imposed extra tonnage dues on foreign vessels, and did not except therefrom French vessels, contravened the fifth article of the treaty of 1778, President Washington, before making answer, submitted the question to the Senate for its consideration. The Senate advised as to the meaning of the article in a resolution adopted February 26, 1791. The Executive likewise submitted to the Senate the political question which arose in 1868 between this government and the Ottoman Porte on the construction of Article IV of the treaty of May 7, 1830.3 Decisions of international commissions have been submitted by the President to the Senate for its opinion whether the commissioners had acted within their powers, i. e., interpreted correctly the convention under which they were appointed. The decision of the commission under the claims convention with Paraguay, signed February 4, 1859, was communicated by President Buchanan February 12, 1861, to the Senate for this purpose. In the case of the award of the King of the Netherlands as arbitrator under the convention of September 29, 1827, which was submitted by President Jackson, the Senate advised that the award was not obligatory.5

'Dip. Cor. 1783-9, vol. i, p. 245. Treaties and Conventions, p. 1371. As to the nature of the award, see tions, vol. i, p. 138.

2

Ex. Journal, vol. i, p. 77. 'Ex. Journal, vol. xi, p. 268. Moore, International Arbitra

(c) General Intent

As the agency through which the state contracts the obligation often consists of distinct branches acting separately, it is peculiarly necessary that the express provisions of the treaty should be considered as conveying accurately the intention of the parties. The intention as there expressed is, however, to be found by a consideration of the whole instrument, not by viewing the stipulations separately. From this it follows that a literal interpretation of a clause may not be made to defeat the main purpose of the parties as gathered from the entire treaty.

Article I of the treaty of June 15, 1846, between the United States and Great Britain for the establishment of a boundary between their territories west of the Rocky Mountains, provided for the continuation of the 49th parallel westward to the middle of the channel which separates the continent from Vancouver's Island, and "thence southerly through the middle of the said channel, and of Fuca's Straits to the Pacific Ocean." As a matter of fact there proved to be two principal navigable straits-the Canal de Haro and Rosario Strait-leading from the middle of the channel through the archipelago to the Strait of Juan de Fuca. In favor of the British contention for the Rosario Strait, the one nearer the continent, was the fact that a line through the Canal de Haro must proceed for some distance in a westerly direction, instead of southerly, as provided in the treaty. In favor of the American contention was the general purpose of the treaty, which, as indicated by the treaty itself, had without doubt been to adopt the 49th parallel as the line for the division of the disputed territory, and to allow a deflection from that line only in order to avoid dividing

Vancouver's Island. This view had been expressed in the Senate at the time of the ratification of the treaty. William I, German Emperor, acting as arbitrator under Article XXXIV of the treaty of May 8, 1871, after seeking the advice of eminent German jurists, rendered a decision favorable to the United States.' As a further illustration of the principle, the familiar case of the destruction of the fortifications at Dunkirk may be noted. By the ninth article of the peace of Utrecht between France and Great Britain, it was agreed that the fortifications at Dunkirk should be destroyed. While destroying those at Dunkirk, the King of France proceeded to erect new ones at Mardyck, a short distance away. The evident intention of the stipulation on the part of the British government was to prevent the existence of a French fort on the English Channel, not the mere destruction of the particular fortifications then standing. The British government objected to the narrow construction, and ultimately the work was discontinued."

In the case of an ambiguous clause, opinions of the negotiators, who were presumably acquainted with its origin, expressed at the time of the conclusion of the treaty, naturally have much influence in determining the intention of the parties. An interesting use of negotiators' testimony may be found in the proceedings of the mixed commission under Article V of the treaty of

'Moore, International Arbitrations, vol. i, pp. 214, 219, 220, 224, 229. Similar arguments were advanced by the American commissioners in the arbitration of the northeastern boundary dispute before the King of Netherlands in construing the terms "Highlands," "Atlantic Ocean," and "St. Lawrence," as used in Art. II of the treaty of peace of 1783. Ibid., pp. 107, 114.

'Phillimore, vol. ii, p. 97.

November 19, 1794, with Great Britain to determine the St. Croix River and its source under Article II of the treaty of peace. The boundaries of the United States as therein defined began with "that angle which is formed by a line drawn due north from the source of Saint Croix River to the Highlands." There proved to be no river in that region then known by that name. Under these circumstances President Adams and John Jay, the surviving American negotiators, made depositions, which were duly admitted in evidence, as to the map used by the negotiators. Likewise a letter written by Franklin was introduced as evidence. Extrinsic evidence of intention cannot, however, be accepted in contradiction of a literal and natural interpretation. Before proceeding to the exchange of ratifications of the treaty of April 19, 1850, between the United States and Great Britain, but subsequently to the action of the United States Senate thereon, memoranda were filed by the negotiators declaring that the language of Article I, which provided that neither party would ever "occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America," was not understood by the states contracting or by themselves, to include the British settlement at Honduras and the small islands adjacent thereto. Although the declaration of the American negotiator was given with the approval of the chairman of the Senate Committee on Foreign Relations, who professed to speak as to the understanding of the Senate -an assumption denied and much criticised later by different members -it formed no part of the treaty, not

1 Moore, International Arbitrations, vol. i, p. 18 et seq.

2

1 Brit, and For. State Papers, vol. xlii, p. 200. Compilation of Reports of Sen. Com. on For. Rel., vol. viii, pp. 47-61.

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