or convention which Congress may think proper to engage in should be formally executed in two languages, viz., the language of the United States and such other language as the party contracting with them may prefer." 16

§ 119. Instructions to diplomatic officers.-Where English is not officially employed, the standing instructions of diplomatic officers of the United States are, as to the language of treaties: "(a) The texts in the two languages should be engrossed in parallel columns on the same page, if possible, or on opposite pages of the same sheet. Two separate copies in different languages are not advisable, although this expedient is sometimes resorted to in eastern countries. (b) In the copy of the treaty to be retained by the diplomatic representative for transmission to this government, the United States should be named first throughout both texts in all places where the alternative change may be made conveniently. Conversely, in both texts, throughout the copy the foreign government is to retain, it should be first named. (c) The language of the respective government should always occupy the left-hand place in the copy to be delivered to it. (d) The utmost care should be taken to insure the substantial equivalence of sense of the two texts, so as to exclude any erroneous effect due to translation. Though a strictly liberal translation is often harsh and sometimes impossible the absolute identity of the idea conveyed is indispensable. To this end, the punctuation of the two texts should also be attentively scrutinized and brought into substantial conformity."

17

§ 120. Both are originals.—Where a treaty is executed in two different languages, both are considered as originals, and they must be construed together.18

Where a treaty between the United States and France is formulated both in the French and English languages, both being originals and intended to be identical, but in some particulars differing, such a construction will be given to them as will establish conformity between them, if possible, without doing vio

10 1 MS. Am. Let. 311.

17 Instructions to Diplomatic Officers of the United States, 1897, sec. 245, p. 100.

18 United States v. Percheman, 7 Pet. 51, 8 L. ed. 604.

115 CONSTRUCTION FAVORABLE TO EXECUTION OF TREATY. [§§ 121, 122

lence to the terms of either.19 The text in each language is considered as the equivalent of the other, and in a certain sense as explanatory of it, and by this interpretation the two texts have a common meaning. Both parties to the treaty stand on the same footing of equality, and the object sought to be attained by them has been accomplished.20

§ 121. Construction favorable to execution of treaty.-If a treaty admits of two constructions, preference will be given to that construction which is more favorable to its execution as designed by the parties.21 It is like an ordinary contract or statute. Effect should be given to it, if possible. Courts, to enable them properly to construe a treaty, have a right to take into consideration the situation of the parties at the time of its execution, the property which constitutes the subject matter of the treaty, and the intention and purposes of the parties. The construction of a treaty which has been adopted and acted upon by all the parties to it will be taken as the true one, unless the parties were, by fraud or mistake, mutually led into this construction. If the mutual construction is in the face of the language used, and the rights of third parties have intervened, the language of the treaty will control.22

§ 122. Vague and indefinite terms.-If a treaty uses terms vague and indefinite, the nature of the thing to which they relate should be regarded for the purpose of ascertaining the intention. Such a construction should be given to these terms as will be in accordance with reason, and without injury to either will subserve the convenience of both the contracting parties.23

A preamble to a treaty does not, strictly speaking, constitute a part of the contract. But inasmuch as it is authenticated by the signatures of the contracting parties, its averments are to be treated as admitted truths.24

"In re Metzger, 1 Barb. 248. "See note of Mr. Hay, Secretary of State, to Mr. Beaupré, No. 331, November 6, 1900, MS. Inst. Colombia, XIX, 123.

21 United States v. Payne, 2 McCrary, 289, 8 Fed. 883.

22 United States v. Payne, 2 McCrary, 289, 8 Fed. 883.

23 Howard v. Ingersoll, 17 Ala. 780. Little v. Watson, 32 Me. 214.

The treaty of 1783 with Great Britain contained a clause that there should be no confiscations or prosecutions for anything done during the war, but this provision, it was determined, could not be construed as excusing trespassers from liability for damage in civil suits brought to obtain judgments for damages.25

§ 123. Whole treaty to be taken together. It was said by Mr. Livingston, Secretary of State: "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 stipulation is to be taken together, and that all articles in pari materia should be considered as parts of the same stipulations." 26

Reference cannot be made to the supplemental article of the treaty of 1800, by which the spoliation claims were released to France for the purpose of explaining the preceding articles, where such supplemental article was not appended to the treaty until ten months after the treaty was signed.27

§ 124. Right of property in award.-Although an award has been made pursuant to the terms of a treaty, it is competent for the government to negotiate for the retrial of any claim allowed, and to withhold the amount of such claim pending the negotiations. There is no right of property in the citizen of one country in the amount awarded to him that is not subject to the control of his government. The persons presenting claims are not parties to the treaty, and while between the two governments the awards are final, yet one country may treat with another for a re

25 Whitaker's Administrator v. English, 1 Bay, 15.

20 Mr. Livingston, Secretary of State, to Baron Lederer, Consul-General of Austria, November 5, 1832, MS. Notes to For. Leg., V, 63.

27 The Tom, 29 Ct. of Cl. 68; English v. United States, Id.; Boutwell v. United States, Id.; Atkinson v. United States, Id.; Hunt v. United States, Id. It was held that neither by the treaty of San Ildefonso of October 1, 1800, nor by that of Ma

drid of March 21, 1801, was the transfer by the King of Spain of the sovereignty of Louisiana to the French Republic complete. Spain continued to be the sovereign de facto, and the terms of these treaties do not necessarily import a change of sovereignty de jure, but only express the idea of a promise to cede on the performance of certain conditions precedent. Kenton v. Baroness of Pontalba, 1 Rob. 343.

trial. If our government should discover that it had been made the instrument for imposition upon a friendly power, the highest principles of national good faith require it to make reparation as far as possible.28

Thus, the treaty between the United States and Mexico of 1868 provided for the submission to a commission to be created under a treaty of all claims of the United States, and that the award should be a full, perfect and final settlement as between the parties. While it was admitted that the awards were final and conclusive between the United States and Mexico until set aside by an agreement between the two governments, yet, it was held that the United States might negotiate with Mexico for a retrial of a particular award on account of the alleged fraudulent character of the proof offered to sustain the claim.29 The view taken

Frelinghuysen v. United States,

110 U. S. 63, 3 Sup. Ct. Rep. 462, 28 L. ed. 71.

> Frelinghuysen v. United States, 110 C. S. 63, 3 Sup. Ct. Rep. 462, 28 L. ed. 71. Mr. Chief Justice Waite, in delivering the opinion of the court, said:

"There is no doubt that the provisions of the Convention as to the eonelusiveness of the awards are as strong as language can make them. The decision of the commissioners of the umpire, on each claim, is to be absolutely final and conclusive and without appeal. The President of the United States and the President of the Mexican Republic are to give full effect to such decisions, without any objection, evasion or delay whatsoever, and the result of the proceedings of the commission is to be considered a full, perfect and final settlement of every claim upon either Government, arising out of transactions prior to the exchange of the ratifications of the. . . . Convention.' But this is to be construed as language used in a compact of two nations for the adjustment of the

claims of the citizens of either .. against the other,' entered into 'To increase the friendly feeling between' republics and so to strengthen the system and principles of republican government on the American continent. No nation treats with a citizen of another nation, except through his government. The treaty, when made, represents a compact between the governments, and each government holds the other responsible for everything done by their respective citizens under it. The citizens of the United States having claims against Mexico were not parties to this Convention. They induced the United States to assume the responsibility of seeking redress for injuries they claimed to have sustained by the conduct of Mexico, and as a means of obtaining such redress the Convention was entered into, by which not only claims of citizens of the United States against Mexico were to be adjusted and paid, but those of citizens of Mexico against the United States as well. By the terms of the compact, the individual claimants could not themselves submit their claims and

by the court was that the citizens of the respective countries were not parties to the treaty, because a treaty is a compact between governments, and one government holds the other responsible for all acts performed by its citizens under the treaty.