ment that the parties contemplated, as shown by Article IV of the treaty, a line subsequently to be fixed with more precision by commissioners and surveyors representing the respective countries; and that the reference in the treaty to the 100th meridian was to that meridian astronomically located, rather than to the 100th meridian as located on the Melish map.15

$166. Contemporaneous Declarations and Prior Negotiations. It is a general rule of interpretation of written contracts, applicable to treaties, that prior negotiations are merged in the written instrument, and cannot be resorted to for the purpose of contradicting or explaining its plain provisions. The reason of the rule is obvious. The object of the written instrument is to record the final and common intention of the parties, which may have undergone a change during the progress of the negotiations. Moreover, in the case of treaties, the contracting parties are the states, not the individuals through whom the negotiations are conducted, whose acts are binding on the state only so far as they are duly authorized. However, in case of ambiguity or doubt in the application of the terms of a treaty, reference is frequently made to the contemporaneous declarations of the negotiators who framed the treaty, and to prior negotiations, not to make a treaty where the parties have failed to do so, nor to change the terms of the treaty actually made, but to determine the general object of the negotiations, the particular sense in which the terms, otherwise uncertain of application, were used at the time, or the conditions as they existed at the time of the conclusion of the treaty.16 The records of international tribunals of arbitration contain many instances of the use of contemporaneous declarations and prior correspondence for this purpose. Thus, in the North Atlantic coast fisheries arbitration of 1910 between the United States and Great Britain, the tribunal, in determining whether the inhabitants of the United States, while exercising the liberties referred to in Article I of the convention of 1818, had a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States, took into consideration the correspondence between Mr. Adams and Lord Bathurst of 1815.

15 United States v. Texas, 162 U. S. 1, 36-38.

16 See Brawley v. United States, 96 U. S. 168, 173; Simpson v. United States, 199 U. S. 397, 399; United States v. Bethlehem Steel Co., 205 U. S. 105, 118.

Again, in denying the contention of the United States that the words in the treaty, "in common with British subjects," should be held not as importing a common subjection to regulation, but as intended to negative a possible pretension on the part of the United States to the liberties of fishery to the exclusion of British subjects, the tribunal observed that such an interpretation was "inconsistent with the historical basis of the American fishing liberty," and referred to the proposal submitted by John Adams in the negotiations of 1782 leading up to the first treaty of peace." In United States v. Texas, the Supreme Court of the United States referred to the diplomatic correspondence that led up to the treaty with Spain of February 22, 1819, "to show the circumstances under which the treaty of 1819 was made, and to bring out distinctly two facts,"-(1) that the negotiators had access to the map of Melish, improved to 1818, and published at Philadelphia (expressly referred to in the treaty); and (2) that the river referred to in the correspondence as Red River was believed by the negotiators to have had its source near Santa Fé and the Snow Mountains.18 Lord Chief Justice Alverstone, in a written opinion filed in support of the decision of the majority of the members of the Alaskan Boundary Tribunal, under the convention between the United States and Great Britain of January 24, 1903, as to the meaning of the word "coast" (la côte) as used in Article III, paragraph 2, of the treaty between Great Britain and Russia of 1825 in the description of the boundary line between their possessions, said: "It is in my opinion correctly pointed out, on behalf of the United States, that the word 'coast' is an ambiguous term, and may be used in two, possibly in more than two, senses. I think, therefore, we are not only entitled, but bound to ascertain as far as we can from the facts which were before the negotiators the sense in which they used the word 'coast' in the treaty. Before considering this latter view of the case, it is desirable to ascertain, as far as possible from the treaty itself, what it means, and what can be gathered from the language of the treaty alone." A consideration of the different passages

17 S. Doc. No. 870, 61st Cong., 3d Sess., I, 78; Am. Journal of Int. Law, IV, 948, 960, 962, 974. See case of Kinkead v. United States, 150 U. S. 483, in which correspondence between the Secretary of State and the Russian minister was considered in determining the meaning of Article VI of the treaty for the cession of Alaska.

18 162 U. S. 1, 23-27.

in the treaty, in which the word coast was used, led the learned arbitrator to conclude that they did not, without reference to the previous negotiations, enable one to answer whether the line should follow the sinuosities of the shore line or should cross the inlets. Before turning from the consideration of the language of the treaty alone to a consideration of the negotiations, the Lord Chief Justice observed: "There is, as far as I know, no recognized rule of international law which would by implication give a recognized meaning to the word 'coast' as applied to such sinuosities and such waters different from the coast itself."19 The three American members of the tribunal, Elihu Root, Henry Cabot Lodge, and George Turner, with whose decision Lord Chief Justice Alverstone concurred, in the opinion filed by them said: "We are of the opinion that the true construction of the treaty is that which carries the line around the heads of the inlets, and that the following considerations all require the adoption of this construction:-1. The purpose of the treaty, well understood by the negotiators, would be accomplished by this construction, and would be defeated by the other construction. 2. The natural and ordinary meaning of the terms used in the treaty, when applied to the natural features of the country known to the negotiators, or supposed by them to exist, require this construction. 3. The meaning expressly given to the words used in the treaty by the negotiators, in their written communications during the course of the negotiations, requires this construction. 4. The official maps published by Russia, Great Britain, Canada, British Columbia, and the United States-many in number-for a period of more than sixty years after the treaty, known to the public officers of the different governments, and accepted as the basis of official action, without a single exception carried the line around the heads of all the inlets, and were wholly irreconcilable with the other construction * * *. 5. For more than sixty years after the treaty, Russia, and in succession to her the United States, oc

19 S. Doc. No. 162, 58th Cong., 2d Sess., I, 37, 39. It may be noted that the treaty by which the Alaskan Tribunal was constituted expressly provides that the "tribunal shall also take into consideration any action of the several governments or of their respective representatives preliminary or subsequent to the conclusion of said treaties so far as the same tends to show the original and effective understanding of the parties in respect to the limits of their several territorial jurisdictions under and by virtue of the provisions of said treaties."

cupied, possessed, and governed the territory around the heads of the inlets without any protest or objection, while Great Britain never exercised the rights or performed the duties of sovereignty there, or attempted to do so, or suggested that she considered herself entitled to do so. This was a practical interpretation of the treaty by all parties concerned."20 This same tribunal was called upon to determine the Portland Channel along which the line of demarcation was, by the treaty of 1825, to run. The treaty provided that the line should ascend along the channel "called" Portland Channel.21 "The answer to this question," said Lord Alverstone, "as indicated by the learned counsel on both sides, depends upon the simple question: What did the contracting parties mean by the words 'the channel called the Portland Channel' in Article III of the treaty of 1825? This is a pure question of identity. In order to answer it one must endeavour to put oneself in the position of the contracting parties, and ascertain as accurately as possible what was known to them of the geography of the district so far as relates to the channel called the Portland Channel * * *. It was perfectly well known before, and at the date of the treaty, that there were two channels or inlets, the one called Portland Channel, the other Observatory Inlet, both of them coming out into the Pacific Ocean ***. For the purpose of identifying the channel, commonly known as Portland Channel, the maps which were before the negotiators may be useful. This is one of the points upon which the evidence of contemporary maps as to general reputation is undoubtedly admissible."22

An unusual use of negotiators' testimony is found in the proceedings of the mixed commission constituted under Article V of the treaty of November 19, 1794, between the United States and Great Britain, to determine the St. Croix River and its source as described in Article II of the treaty of peace. The boundaries. of the United States were defined as starting at an angle which

20 Id., 48-49.

21 "la dite ligne remontera au Nord le long de passe dite Portland Channel."

22 Id., 33-35. See also opinion of the U. S. members, Id., 43. See also opinion of Henry M. Duffield, umpire of the German-Venezuelan Claims Commission of 1903, in the case of Van Dissel & Co., Ralston's Report, 568; and opinion of Frank Plumley, umpire of the British-Venezuelan Claims Commission of 1903, in the case of Aroa Mines, Id., 358. See also Moore, Int. Arb., V, 4873, 4876.

was 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 to establish the map used by the negotiators. Likewise a letter written by Franklin was considered for the same purpose.23

Before proceeding to the exchange of ratifications of the treaty of April 19, 1850, between the United States and Great Britain, but after the adoption by the United States Senate of the resolution advising ratification, memoranda were filed by the negotiators in which it was stated that the language of Article I,-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 contracting states, nor by themselves, to include the British settlement at Honduras and adjacent islands. 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-24 it formed no part of the treaty, not having been mutally agreed to by the treaty-making authorities of the two states. A main 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 Belize was or was not excepted from the operation of the treaty, depended solely 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.25

23 Moore, Int. Arb., I, 18, et seq.

24 Brit. and For. State Papers, XLII, 200; Compilation of Reports of Sen. Com. on For. Rel., VIII, 47-61.

25 Mr. Marcy, Secretary of State, in a communication to Mr. Borland, U. S. minister to Central America, December 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." S. Doc. No. 194, 47th Cong., 1st Sess., 99.