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move this objection the American chargé d'affaires, who was empowered to exchange the ratifications and make explanations respecting the rejection by the Senate of a separate article to the treaty, signed a memorandum in which the Turkish text was virtually recognized as the original-an act not disapproved by his government. Moreover, the President in communicating the treaty to the Senate, and later in proclaiming it, alluded to the original in the Turkish language, which was said to be accompanied by an English translation that was believed to be correct. Likewise in favor of the Turkish text is the fact that the article finds application alone within the dominion of the Ottoman Porte. In support of the English version it is contended that it remained unchallenged for a period of more than thirtyfive years; and that similar language was repeated in treaties concluded subsequently by the Porte with Belgium and Portugal. Admitting the authority of the Turkish text and the correctness of the translation presented by the Ottoman government--that American citizens " shall be punished through the agency of their ministers and consuls, according to the practice observed in regard to other Franks," and not, as the English text would have it, that they shall be "tried” and “punished”-yet, it is urged on the part of the government of the United States, that the right to try is incident to and involved in the right to punish, and that, moreover, the rights in question belong to the United States in virtue of the most-favored-nation clause of the treaty.'
If terms used in a treaty have a different legal meaning in the contracting states, that meaning which obtains within the state to which the provision applies at the
'For. Rel., 1900, p. 914.
time of the signing of the treaty is to be accepted. By Article XIV of the treaty of October 3, 1866, between Austria and Italy, it was stipulated that the inhabitants of the territory ceded by the former should, for a specified time, enjoy the privilege of withdrawing with their property. In Austria the term inhabitant was applicable to only such persons as were domiciled according to Austrian law, while in Italy it applied to any one who lived in a commune and was registered as a resident. The term was accordingly interpreted in conformity with the Austrian legal meaning, which was on the date of the treaty applicable to the territory.'
While it is usually stated that technical words are to be interpreted according to their ordinary technical meaning, the degree of civilization to which each of the con- . tracting parties has attained must be taken into consideration. A treaty with an Indian tribe must be interpreted not according to the technical meaning of its words as understood by learned lawyers, but in the sense in which it is naturally understood by the Indians.3 Words should be interpreted with a view to give efficacy to the treaty.
A treaty repeals all previous stipulations between the same parties inconsistent therewith, but treaties with a third party are unaffected by a subsequent treaty to which it has not given its assent. No priority is attached to the numerical order of the provisions in the same treaty. In a conflict between provisions of the same treaty a special provision takes precedence of a general; a prohibitory or imperative of a permissive. If the provisions are of identical nature the more important takes prece
* Hall, p. 353.
Rivier, vol. ii, p. 125. * Phillimore, vol. ii, p. 101. Vattel, bk. ii, ch. xvii, sec. 276. * Jones vs. Meehan, 175 U. S., 1.
dence. In prohibitory stipulations to which penalties are attached for non-observance, the one to which the greater penalty is attached is to be considered the more important, but the party in whose favor the provision operates has the liberty to choose the less important."
III. THE TERMINATION
(a) Change in the Form of Government An international treaty is a compact between states, not organs of governments, consequently its obligation is not, in general, dependent upon the continuance of the particular form of government under which it happened to be contracted. Treaties, the purpose of which is peculiar to the existing form, as also agreements between heads of governments, of a personal nature, which are not sensu stricto international treaties, are to be excepted. Thus the Family Compact of August 15, 1761, between the kings of France and Spain, the aim of which was to render permanent the duties which were a “natural consequent of relationship and friendship,” came to an end when the Bourbons ceased to reign in France. Of this character was also the alliance entered into September 26, 1815, by the Czar Alexander of Russia, the Emperor Francis of Austria, and King Frederick William III of Prussia.
An interesting discussion of this general question
Vattel, bk. ii, ch. xvii, secs. 312–321. Hall, pp. 356–7. 'Grotius, bk. ii, ch. xvi, sec. 16.
'Hall, p. 376. *In August, 1790, Spain having requested France to make common cause in the Nookta Sound controversy with Great Britain, the Nationa Assembly declared the compact not binding on the nation. In Art. II possessions in any part of the world had been mutually guaranteed. Rivier, vol. ii, pp. 36, 121.
occurred in Washington's cabinet in April, 1793, on the proposition to receive the minister from the republic of France with an express reservation of the question whether the treaties of 1778 ought not to be temporarily and provisionally suspended. In support of such a reservation it was urged by the Secretary of the Treasury that, if a nation thought fit to make changes in its government which rendered treaties theretofore existing between it and another nation useless, or dangerous, or hurtful to that other nation, the latter would, according to the plain dictate of reason, have a right to renounce those treaties; that a contracting state had a right to take care of its own happiness and could not be obliged to suffer this to be impaired by the means which its ally had adopted for its own advantage contrary to the ancient state of things; but that the treaties continued absolutely binding on the party making the change and would bind the other, unless in due time it declared its election to renounce them, which in good faith it ought to do only if the change had rendered them “useless or materially less advantageous, or more dangerous than before." An alliance might be formed because each had confided in the energy and efficacy of the government of the other, while the newly-formed government might be feeble, fluctuating, and liable to provoke wars. As to the French treaties, since everything was in transitu, it was his opinion that the United States had an option to consider the operation of these treaties as suspended, and would eventually have a right to renounce them, if such changes should take place as could "bona fide be pronounced to render a continuance of the connections which result from them disadvantageous or dangerous.". The fundamental principle of the elaborate
1 Works of Hamilton (Lodge ed.), vol. iv, p. 74.
opinion of the Secretary of State, with whom concurred the Attorney-General, was, to use his now classic words, that “all the acts done" by the proper agents "under the authority of the nation, are the acts of the nation, are obligatory on them, and enure to their use, and can in no wise be annulled or affected by any change in the form of the government or of the persons administering it. Consequently the treaties between the United States and France were not treaties between the United States and Louis Capet, but between the two nations of America and France, and the nations remaining in existence, though both of them have since changed their forms of government, the treaties are not annulled by these changes.” He however admitted that conditions might arise that would release the nation from the treaty obligations. “When performance, for instance, becomes im possible, non-performance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others," but the danger which absolves “must be great, inevitable and imminent." As to the French treaties, “no part of them," he declared, “but the clause of guarantee holds up danger even at a distance.". It may be added that the minister from the republic was received without reservation and our policy early established of recognizing without prejudice the de facto government."
(b) Change of State Identity. When a state' loses entirely its identity by incorporation into another, its obligation to execute pre-existing
Writings of Jefferson (Ford ed.), vol. vi, p. 219. "Upon the general proposition of release from treaty obligations by the changed relation of the parties, see Vattel, bk. ii, ch. xvii, sec. 296; Grotius, bk. ii, ch. xvi, sec. 25; Phillimore, vol. ii, p. 109.