Abbildungen der Seite
PDF
EPUB

itself in the sense proper to express the thought of him who makes use of it; that is, in the sense agreeable to the subject. (Art. 280.)

*

*

*

(6.) Every interpretation that leads to an absurdity ought to be rejected; or, in other words, we should not give to any piece a sense from which follows anything absurd, but interpret it in such a manner as to avoid absurdity. As it cannot be presumed that any one desires what is absurd, it cannot be supposed that he who speaks has intended that his words should be understood in a sense from which that absurdity follows. Neither is it allowable to presume that he sports with a serious act; for what is shameful and unlawful is not to be presumed. We call absurd not only that which is physically impossible, but what is morally so; that is, what is so contrary to right reason that it cannot be attributed to a man in his right senses. The rule we have just mentioned is absolutely necessary, and ought to be followed, even when there is neither obscurity nor anything equivocal in the text of the law or the Treaty itself. For it must be observed that the uncertainty of the sense that ought to be given to a law or a Treaty does not merely proceed from the obscurity or any other fault in the expression, but also from the narrow limits of the human mind, which cannot foresee all cases and circumstances, nor include all consequences of what is appointed or promised; in short, from the impossibility of entering into this immense detail. We can only make laws or Treaties in a general manner; and the interpretation ought to apply them to particular cases, conformably to the intention of the legislature or of the Contracting Powers. Now, it cannot be presumed that in any case they would lead to anything absurd. When, therefore, their expressions, if taken in their proper and ordinary sense, lead to it, it is necessary to turn them from that sense just so far as is sufficient to avoid absurdity. (Art. 282.)

(7.) If he who has expressed himself in an obscure or equivocal manner has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure or vague expressions in such a manner that they may agree with those terms that are clear and without ambiguity which he has used elsewhere, either in the same Treaty or in some other of the like kind. In fact, while we have no proof that a man has changed his mind or manner of thinking, it is presumed that his thoughts have been the same on the same occasions; so that if he has anywhere clearly shown his intention with respect to anything, we ought to give the same sense to what he has elsewhere said obscurely on the same affair. (Art. 284.) (8.) Frequently, in order to abridge, people express imperfectly, and with some obscurity, what they suppose is sufficiently elucidated by the things which preceded it, or even what they propose to explain afterward; and besides, the expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the siguification it may receive in itself, as that it ought to have from the thread and spirit of the discourse. (Art. 285.)

(9.) The reason of the law or the Treaty, that is, the motive which led to the making of it, and the view there proposed, is one of the most certain means of establishing the true sense; and great attention ought to be paid it, whenever it is required to explain an obscure, equivocal, and undetermined point, either of law or of a Treaty, or to make an application of them to a particular case. (Art. 237.)

(10.) We use the restrictive interpretation to avoid falling into an absurdity.

The same method of interpretation takes place, when a case is presented, in which the law or Treaty, according to the rigor of the terms, leads to something unlawful. This exception must then be made; since nobody can promise to ordain what is unlawful. (Art. 293.)

(11.) When a case arises, in which it would be too prejudicial to any one to take a law or promise according to the rigor of the terms, a restrictive interpretation is also then used; and we except the case, agreeably to the intention of the legislature, or of him who made the promise. For the legislature requires only what is just and equitable; and in contracts no one can engage in favor of another, in such a manner as to be essentially wanting to himself. It is then presumed, with reason, that neither the legislature, nor the Contracting Powers, have intended to extend their regulation to cases of this nature; and that they themselves would have excepted them, had these cases presented themselves. (Art. 294.)

these principles to

to the points con

Let us apply these principles to the interpretation of the Rules of the present Treaty. The British interpretation of the latter part 3. Applications of of the first Rule, which makes it applicable only to the pre- the interpretation of vention of the departure from British jurisdiction of vessels the rests in a over which British jurisdiction had never ceased or been troversy. displaced, and whose warlike character rests only in an (as yet) unexecuted intention or purpose, is agreeable to the fifth, sixth, eighth, ninth, and tenth of the foregoing principles. The American interpretation,

which would extend it to vessels coming, as public ships of war of the Confederates, into British waters, without any notice beforehand that they would be either excluded or detained, is opposed to the same principles in the most marked manner, and especially it is opposed to those numbered 6 and 10, which are, perhaps, the most cogent and undeniable of them all.

The British interpretation of the first part of the second Rule, which applies the phrase "base of naval operations" in the same sense in which it has always been used by the leading authorities on international law, and particularly by those of Great Britain and the United States, (e. g., by Lord Stowell and Chancellor Kent,) is in accordance with the second, third, and seventh of these principles; while the American interpretation, which would extend it to every combination of circumstances which those words, in their most lax, popular, and unscientific acceptation could possibly be made to embrace, offends against the same, and also against the tenth principle.

The British interpretation of the words "the renewal or augmentation of military supplies or arms," in the latter part of the second Rule, which applies them to augmentations of the warlike force of belligerent vessels, the same, or ejusdem generis, with those which were forbidden by President Washington's Rules, and by the British and American Foreign-Enlistment Acts, is in harmony with the second, third, fifth, seventh, eighth, and ninth of the foregoing principles. The American interpretation, which would extend them to supplies of articles, such as coals, which, according to the doctrine and practice of asylum and hospitality hitherto recognized and acted upon by all civilized nations, (notably by Great Britain and the United States,) were never yet deemed unlawful, and from the supply of which, in neutral ports, it would be highly prejudicial to two great maritime Powers, such as the two Contracting Parties, to debar themselves in case of their being engaged in war, in the present days of steam navigation, offends against the same principles, and also against that numbered 11. The force of these objections to the American interpretation of the three Rules is greatly increased when it is borne in mind. first, that Great Britain agreed to their being retrospect ively applied to the decision of "the questions between the two countries arising out of the claims mentioned in Article I" of the Treaty, those being the claims "growing out of acts committed by the several vessels which had given rise to the claims generically known as the Alabama Claims."

4. Influence on the construction of the retrospective terms of the agreement.

Down to the date of the Treaty no claim had ever been made against Great Britain, on the specific ground of supplies of coal to Confederate vessels; every claim for captures, of which any intelligible notice had been given, was in respect of captures by ships, said to have been equipped and fitted out in British ports, or to have received their armaments by means directly supplied from Great Britain. The British Government, therefore, was warranted in believing, as it did believe. that the controversy between itself and the Government of the United States was confined to claims growing out of acts committed by ships of this description only; and, in agreeing to the terms of the Rule, it could not be supposed to have had any claims in view which were grounded only on supplies of coal to Confederate vessels. A retrospective engagement of this sort cannot, without a complete departure from all the principles of justice, be enlarged by any uncertain or unnecessary implication.

The United States have expressly declared, in their Case, that they consider all the Rules-of course, therefore, the second-to be coiner

parties as to the se

dent with, and not to exceed, the previously known rules of 3. The adm, 4 international law. Great Britain, though taking a different intention of both t view of the other Rules, has also expressly declared, in her on Rule. Counter Case, that she too regards the second Rule as in no way enlarg. ing the previously known prohibitions of international law, on the subject to which it relates. The practice of the United States, by habitually receiving supplies of coal in British ports during the war, was in accordance with the views of international law, applicable to this subject, which had been previously announced and acted upon by all the highest political and judicial authorities of that country. Thus it is made quite apparent that the construction now sought to be placed by the United States upon this second Rule is at variance with the real intention and meaning of both the Contracting Parties; and therefore with the 1st and 4th of the principles extracted from Vattel, as well as with the others already specified.

6. Indence up in

the agreement to pro

for general adoptio

But further: not only did Great Britain consent to the retrospective application of those Rules, upon the footing formerly explained, to the determination of what she understood as the construction of "the claims generically known as the Alabama Claims," pose the three Rules growing out of acts committed by particular vessels which to other maritime na had historically given rise to that designation, and of no other kind of claims; not only did the two Contracting Parties to observe these Rules as between themselves in future;" but they also agreed to "bring them to the knowledge of other maritime Powers, and to invite them to accede to them.”

tions.

agree

They did not attempt to make a general code of all the rules of international law connected with the subject; they were not careful, and did not attempt, to express the explanation or qualifications of any expressions used in these particular Rules, which a sound acquaintance with the rules and usages of international law would supply. Rules of this nature, which could rationally be supposed proper to be proposed for general acceptance to all the maritime Powers of the civilized world, must evidently have been meant to be interpreted in a simple and reasonable sense, conformable to, and not largely transcending the views of international maritime law and policy which would be likely to commend themselves to the general interests and intelligence of that portion of mankind. They must have been meant to be definitely, candidly, and fairly interpreted; not to be strained to every unforeseen and novel consequence, which perverse latitude of construction might be capable of deducing from the generality of their expressions. They must have been understood by their framers, and intended to be understood by other States, as assuring the continuance, and involving in their true interpretation the recognition of all those principles, rules, and practical distinctions, established by international law and usage, a departure from which was not required by the natural and necessary meaning of the words in which they were expressed; they cannot have been meant to involve large and important changes, upon subjects not expressly mentioned or adverted to by mere implication; nor to lay a series of traps and pitfalls, in future contingencies and cases, for all nations which might accede to them. Great Britain certainly, for her own part, agreed to them, in the full belief that the Tribunal of Arbitration, before which these claims would come, might be relied upon to reject every strained application of their phraseology, which could wrest them to purposes not clearly within the contemplation of both the Contracting Parties, and calculated to make them rather a danger to be avoided than a light to be followed by other nations. ROUNDELL PALMER.

IV. ARGUMENT OF MR. EVARTS, ONE OF THE COUNSEL OF THE UNITED STATES, ADDRESSED TO THE TRIBUNAL OF ARBITRATION AT GENEVA, ON THE 5TH AND 6TH AUGUST, 1872, IN REPLY TO THE SPECIAL ARGUMENT OF THE COUNSEL OF HER BRITANNIC MAJESTY. SEE PROTOCOLS XVII AND XVIII.

ARGUMENT OF MR. EVARTS.

At the Conference held on the 5th day of August Mr. Erarts addressed the Tribunal as follows:

[ocr errors]

In the course of the deliberations of the Tribunal it has seemed good Scope of the dis to the Arbitrators, in pursuance of the provision of the fifth Article of the Treaty of Washington, to intimate that on certain specific points they would desire a further discussion on the part of the Counsel of Her Britannic Majesty for the elucidation of those points in the consideration of the Tribunal. Under that invitation the eminent Counsel for the British Government has presented an argument which distributes itself, as it seems to us, while dealing with the three points suggested, over a very general examination of the Argument which has already been presented on the part of the United States.

In availing ourselves of the right, under the Treaty, of replying to this special argument upon the points named by the Tribunal, it has been a matter of some embarrassment to determine exactly how far this discussion on our part might properly go. In one sense our deliberate judg ment is that this new discussion has really added but little to the views or the Argument which had already been presented on behalf of the British Government, and that it has not disturbed the positions which had been insisted upon, on the part of the United States, in answer to the previous discussions on the part of the British Government, contained in its Case, Counter Case, and Argument.

But to have treated the matter in this way, and left our previous Argument to be itself such an answer as we were satisfied to rely upon to the new developments of contrary views that were presented in this special argument of the British Government, would have seemed to as sume too confidently in favor of our Argument, that it was an adequate response in itself, and would have been not altogether respectful to the very able, very comprehensive, and very thorough criticism upon the main points of that Argument, which the eminent Counsel of Her Majesty has now presented. Nevertheless it seems quite foreign from our duty, and quite unnecessary for any great service to the Tribunal, to pursue in detail every point and suggestion, however pertinent and however skillfully applied, that is raised in this new argument of the eminent Counsel. We shall endeavor, therefore, to present such views as seem to us useful and valuable, and as tend in their general bearing to dispose of the difficulties and counter propositions opposed to our views in the learned Counsel's present criticism upon them.

The American Argument, presented on the 15th of June, as bearing upon these three points now under discussion, had distributed the subject under the general heads of the measure of international duties; of the means which Great Britain possessed for the performance of those duties; of the true scope and meaning of the phrase "due diligence," as used in the Treaty; of the particular application of the duties of the Treaty to the case of cruisers on their subsequent visits to British ports; and then of the faults, or failures, or shortcomings of Great Britain in its actual conduct of the transactions under review, in reference to these measures of duty, and this exaction of due diligence.

Due diligence,

The special topic now raised for discussion in the matter of "due diligence" generally considered, has been regarded by the Counsel of the British Government as involving a consideration, not only of the measure of diligence required for the discharge of ascertained duties, but also the discussion of what the measure of those duties was; and then of the exaction of due diligence as applicable to the different instances or occasions for the discharge of that duty, which the actual transactions in controversy between the parties disclosed. That treatment of the points is, of course, suitable enough, if, in the judgment of the learned Counsel, necessary for properly meeting the question specifically under considération, because all those elements do bear upon the question of "due diligence" as relative to the time, and place, and circumstances that called for its exercise. Nevertheless, the general question, thus largely construed, is really equivalent to the main controversy submitted to the disposition of this Tribunal by the Treaty, to wit, whether the required due diligence has been applied in the actual conduct of affairs by Great Britain to the different situations for and in which it was exacted.

The reach and effort of this special argument in behalf of the British Government seem to us to aim at the reduction of the duties incumbent on Great Britain, the reduction of the obligation to perform those duties, in its source and in its authority, and to the calling back of the cause to the position assumed and insisted upon in the previous Argument in behalf of the British Government, that this was a matter not of international duty, and not of international obligation, and not to be judged of in the court of nations as a duty due by one nation, Great Britain, to another nation, the United States, but only as a question of its duty to itself, in the maintenance of its neutrality, and to its own laws and its own people, in exerting the means placed at the service of the Government by the Foreign-Enlistment Act for controlling any efforts against the peace and dignity of the nation.

The Rules of the

Case.

We had supposed, and have so in our Argument insisted, that all that long debate was concluded by what had been settled by definitive convention between the two nations as the law of Treaty the law of this this Tribunal, upon which the conduct and duty of Great Britain, and the claims and rights of the United States, were to be adjudged, and had been distinctly expressed, and authoritatively and finally established in the Three Rules of the Treaty.

Sir R. Palmer's atto dispiridu the Rules examined.

Before undertaking to meet the more particular inquiries that are to be disposed of in this Argument, it is proper that, at the outset, we should take notice of an attempt to disparage the tempt efficacy of those Rules, the source of their authority, and the nature of their obligation upon Great Britain. The first five sections of the special argument are devoted to this consideration. It is said that the only way that these Rules come to be important in passing judgment upon the conduct of Great Britain, in the matter of the

« ZurückWeiter »