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(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.' 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 beíore 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 Sit formed no part of the treaty, not
Moore, International Arbitrations, vol. I, p. 18 et seq. * Brit, and for. State Papers, vol. xlii, p. 200. Compilation of Reports of Sen. Com. on For. Rel., vol. viii, pp. 47–61.
having been mutually agreed to by the full treaty-making powers of the two states. The purpose of the treaty had been to do away with British pretensions in Central America, not to confirm them, and any exception to this general purpose and to the wording of the treaty should have been expressly stated. Whether or no Belize was excepted from the operation of the treaty, depended entirely upon the geographical fact of its location without or within the boundaries of Central America as then known. But, if this fact was not clearly ascertainable, the memoranda, as expressions of those intimately connected with the formation of the article, could not be overlooked.'
(d) The Language If the treaty is drawn up in the language of each of the contracting parties, and each is an original,” the two versions are to be construed collectively. In case they cannot be made to harmonize, the version of the party granting is to be accepted so far as regards the concession. Article VIII of the treaty of February 22, 1819, by which Spain ceded Florida to the United States, differed in the two versions in respect to the grants made by the King of Spain prior to January 24, 1818. In the Span
Mr. Marcy, Secretary of State, in a communication to Mr. Borland, United States minister to Central America, Dec. 30, 1853, said: “It is believed that Great Britain has a qualified right over a tract of country called the Belize, from which she is not ousted by this treaty, because no part of that tract, when restricted to its proper limits, is within the boundaries of Central America.” Sen. Doc., 194, P. 99, 47th Cong., 1st sess. See in this relation For. Rel., 1899, p. 747; the case of the Diamond Rings, 183 U. S., 180.
'An express provision is sometimes inserted in the treaty declaring which text, in case of conflict, shall be the standard. See Art. XVII of the treaty of Oct. 8, 1903, between the United States and China.
ish text it was stipulated that all these grants “shall remain ratified and confirmed,”; while the English original read “shall be ratified and confirmed.” In a construction of the clause by the Supreme Court in 1832, Mr. Justice Baldwin, in delivering the decision of the Court, said, “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."
A protracted controversy between the government of the United States and the Ottoman Porte has resulted from a conflict between the English and Turkish texts of Article IV of the treaty of May 7, 1830. The draft of the treaty presented by the American commissioner, in strict conformity with which the Turkish text was said to have been drawn up and signed, was, it appears in the French language. The Senate and President in the ratification did not, however, act upon this text but upon an English translation, made in the Department of State.3 On the return of the instrument to Constantinople for exchange, the Ottoman government objected that there had been returned “the translation made in Washington, instead of the one signed at Constantinople.” To re
Quedarán ratificadas y reconocidas. United States vs. Arredondo, 6 Pet., 741.
There are three English versions in the Department of State, each of which differs slightly from the other. Treaties and Conventions, p.