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templation at the time, is the most certain clue to lead us to the discovery of its true meaning; and great attention should be paid to this circumstance, whenever there is question either of explaining an obscure, ambiguous, indeterminate passage in a law or treaty, or of applying it to a particular case. When once we can certainly know the reason which alone has determined the will of the person speaking, we ought to interpret and apply his words in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intentions, and in opposition to his own views. Pursuant to this rule, a prince, who, on granting his daughter in marriage, has promised to assist his intended son-in-law in all his wars, is not bound to give him any assistance if the marriage does not take place.
“But we ought to be very certain that we know the true and only reason of the law, the promise, or the treaty. In matters of this nature, it is not allowable to indulge in vague and uncertain conjectures, and to suppose reasons and views where there are none certainly known. If the piece in question is in itself obscure—if, in order to discover its meaning, we have no other resource than the investigation of the author's views, or the motives of the deed—we may then have recourse to conjecture, and, in default of absolute certainty, adopt, as a true meaning, that which has the greatest degree of probability on its side. But it is a dangerous abuse to go, without necessity, in search of motives and uncertain views in order to wrest, restrict, or extend the meaning of a deed which is of itself sufficiently clear, and carries no absurdity on the face of it. Such a procedure is a violation of that incontestable maxim, that it is not allowable to interpret what has no need of interpretation. Much less are we allowed, when the author of a piece has in the piece itself declared his reasons and motives, to attribute to him some secret reason which may authorise us in giving an interpretation repugnant to the natural meaning of the expressions. Even though he should have entertained the views which we attribute to him, yet, if he has concealed them and announced different ones, it is upon the latter alone
that we must build our interpretation, and not upon those which the author has not expressed. We assume, as true, against him, what he has sufficiently declared.
“We ought to be the more circumspect in this kind of interpretation, as it frequently happens that several motives concur to determine the will of the party who speaks in a law or a promise. Perhaps the combined influence of all those motives was necessary in order to determine his will; perhaps each one of them, taken individually, would have been sufficient to produce that effect.”
The second rule to which I shall ask attention is as follows:(0)
“In unforeseen cases, that is to say, when the state of things happens to be such as the author of a deed has not foreseen, and could not be thought of, we should rather be guided by his intention than by his words, and interpret the instrument as he himself would interpret it if he were on the spot, or conformably to what he would have done if he had foreseen the circumstances which are at present known.”
After referring (9) to the distinction between things favourable and things odious, and defining the former as those of which equity admits the extension rather than the restriction—the latter as those of which the restriction tends more certainly to equity than the extension, Vattel proceeds to point out what things are favourable and what are odious. He says:0–
“In the first place, everything that tends to the common advantage in conventions, or that has a tendency to place the contracting parties on a footing of equality, is favourable. The voice of equity, and the general rule of contracts, require that the conditions between the parties should be equal. We are not to presume, without very strong reasons, that one of the contracting parties intended to favour the other to his own (1) Vattel, lib. ii., c. xvii., § 297. (2) Idem, $ 300.
(3) Idem, $ 301.
prejudice, but there is no danger in extending what is for the common advantage. If, therefore, it happens that the contracting parties have not made known their will with sufficient clearness, and with all the necessary precision, it is certainly more conformable to equity to seek for that will in the sense most favourable to equity and the common advantage, than to suppose it in the contrary sense. For the same reason, everything that is not for the common advantage, everything that tends to destroy the equality of a contract, everything that onerates only one of the parties, or that onerates the one more than the other, is odious."
Again he says :(1)—
“ Whatever tends to change the present state of things is also to be ranked in the class of odious changes; for the proprietor cannot be deprived of his right, except so far, precisely as he relinquishes it on his part; and in case of doubt, the presumption is in favour of the possessor. It is less repugnant to equity to withhold from the owner a possession which he has lost through his own neglect, than to strip the just possessor of what lawfully belongs to him. In the interpretation, therefore, we ought rather to hazard the former inconvenience than the latter. Here also may be applied, in many cases, the rule we have mentioned, that the party who endeavours to avoid a loss has a better cause to support than he who aims at obtaining an advantage.”
Guided by the rules above stated, I shall now discuss the entire boundary question as opened by the United States through their commissioner. And first as to the intention of the contracting parties. Here the preliminary question is, who are to be considered as the contracting parties whose intentions are to be sought for? The British Constitution provides that it is the
(1) Vattel, lib. ii., c. xvii., § 305.
prerogative of the Sovereign to make treaties, and the only check upon this power is that the ministry advising or concluding a treaty disadvantageous to the country or derogatory from its honour, is liable, to loss of office, or, in extreme cases, to impeachment.
The Constitution of the United States empowers the President (1), "by and with the advice and consent of the Senate,” to make treaties, provided two-thirds of the senators present concur.
It is contended by Mr. Campbell that the intention to be sought for is that of the President and Senate of the United States ; that is, the intention of the power which ratifies the treaty. I must contend, however, that the intentions and views of the negotiators of the treaty are those to be sought for, and the meaning which they attached to the language used by them, is the meaning to be sought. If otherwise, no treaty could by any possibility be rendered binding and valid, since one of the ratifying parties might subsequently evade it, or render it null and void, by attaching a meaning to its language which was not present to the minds of the negotiators. When parties contract, it is necessary that their minds should be at one, so to speak, and the minds of two contracting Governments are brought together through the medium of the agents whom they respectively authorise to conduct their negotiations. But, further, how obtain evidence as to the intentions of so numerous a body as the Senate of the United States? Some among them may have been actuated
(1) Constitution of the United States, Art. 2, $ 2.
and influenced by one set of facts, others by another set, all arriving, nevertheless, at the same conclusion.
The contention, that the arguments advanced by, one of the promoters of the treaty of 1846, in his speech to the Senate, may be used to supply evidence of the intention of the treaty makers, in the sense understood by Vattel, requires only to be stated, when its absurdity becomes manifest. If I am right, then, in the conclusion at which I have arrived (though the arguments by which I have supported it might, perhaps, be more powerfully stated), the persons whose intentions are to be sought for are Mr. (afterwards Sir Richard) Pakenham, on the part of Great Britain, and Mr. Buchanan on the part of the United States.
The next inquiry will be as to the nature of the evidence by which the intentions, respectively, of those gentlemen are to be discovered. Such evidence will consist in the instructions issued to them by their respective Governments, in their despatches, in their own declarations, in the documents from which they acquired their knowledge of the subject-matter concerning which they were about to treat, and in the nature of the subject itself. .
This evidence must, however, be in great measure governed by the actual language of the treaty which they negotiated. Evidence may explain what is doubtful, not contradict what is certain. .
Of such evidence, unfortunately, there is little extant, and to much of that little I have not been able, from reasons explained above, to obtain access.
According to Sir Richard Pakenham, the final