ment as to the incorporation into the new treaty of all the provisions of the former one, is reasonable and just."

$168. Casus Omissus.-Articles XVII and XVIII of the treaty between the United States and Spain of 1795 provided that, in case either party should be engaged in war, the vessels belonging to the subjects of the other party should be furnished with sealetters or passports to be made out according to the "form annexed" to the treaty; and that upon the exhibition of this passport, "made out according to the form inserted" in the treaty, the vessel would be allowed to pursue her voyage. No such form of passport was annexed to the treaty. The reason for the omission did not appear. The Supreme Court of the United States refused to supply this omission and held the provision to be inoperative. Mr. Justice Story for the court said: "In the first place, this court does not possess any treaty-making power. That power belongs by the Constitution to another department of the government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. Neither can this court supply a casus omissus in a treaty, any more than in a law. *** The parties who formed this treaty, and they alone, have a right to annex the form of a passport. It is a high act of sovereignty, as high as the formation of any other stipulation of the treaty. It is a matter of negotiation between the governments. The treaty does not leave it to the discretion of either party to annex the form of the passport; it requires it to be the joint act of both. * ** The same powers which have contracted, are alone competent to change or dispense with any formality. The doctrine of a performance cy pres, so just and appropriate in the civil concerns of private persons, belongs not to the solemn compacts of nations, so far as judicial tribunals are called upon to interpret them. We can as little dispense with forms as with substance."35

The boundary line between the United States and Canada in its course through the Great Lakes was described in Article II of the treaty of peace of 1783 as passing through the middle of Lake Ontario to the water communication between that lake and Lake Erie; thence along the middle of said communication into

34 Field, J., In re Ross, 140 U. S. 453, 466.

35 The Amiable Isabella, (1821), 6 Wheat. 1, 71-73.

Lake Erie, through the middle of said lake until it arrived at the water communication between that lake and Lake Huron; thence along the middle of said water communication into Lake Huron; "thence through the middle of said lake to the water communication between that lake and Lake Superior; thence through Lake Superior." It will be noted that it was expressly provided that the line should pass through the middle of the water communications between Lake Ontario and Lake Erie, and between Lake Erie and Lake Huron, and that there was no reference to the line through the water communication between Lake Huron and Lake Superior. The joint commissioners, appointed under Article VII of the treaty of Ghent, to determine the boundary, treated this "omission as a mere inadvertance," and interpreted the provision as if the line had been expressly continued on through this water communication in the same phraseology as uniformly used with reference to every other water communication in the treaty, namely,— "through the middle."""

By the convention concluded between Great Britain and Portugal, June 11, 1891, for the settlement of boundaries between their respective possessions and spheres of influence in eastern and central Africa, it was agreed that the line of boundary, in one section, should follow the upper part of the eastern slope of the "Manica plateau" southward to the centre of the main channel of the Sabi. Upon an attempt to survey the line so described, it was found that the elevation of land called the "Manica plateau" became much depressed before reaching the Sabi, and ceased to have the elevation usually ascribed to a plateau. It was urged by Portugal that there was an omission in the treaty as a result of the supposition that the plateau extended southward to the Sabi. The arbitrator, to whom this, with other disputed questions as to the boundary line, was referred, held otherwise. "In our case," said the arbitrator, "the rule of legal interpretation, according to which the expressions made use of in a contract must be taken in the sense most in accordance with the intentions of the parties who have arranged it and the most favorable to the aim of the contract, obliges us to give to the word 'plateau' the

36 Moore, Int. Arb., I, 179. It may be noted that these commissioners ultimately failed to agree as to various parts of the boundary and no final decision was reached; and that the differences were not settled until the conclusion of the Webster-Ashburton treaty.

broadest possible signification-that is to say, to require only the minimum normal altitude-so as to be able to affirm its existence as far as the Sabi, as the high contracting parties had supposed, and so as thus to render possible the application of the text of Article II of the treaty. Following thus, from the legal point of view, an universal rule of interpretation, and from the technical point of view, the opinion of the most illustrious geographers to whom the two parties have made reference, we come to the conclusion that the plateau of Manica, though it falls gradually towards the south and becomes reduced to the smallest proportions, preserves, nevertheless, a sufficient elevation (as was supposed by the authors of the treaty) for it to be admitted that it exists right to the Sabi."s

$169. Discrepancies Between the Two Texts.-If the treaty is drawn up in the language of each of the contracting parties, and each is an original, the texts are to be construed collectively. They are intended by the parties to be identical. Neither is to be preferred to the other. If the two can, without violence to the language, be made to agree, that construction which establishes this conformity is to prevail.39 In case they cannot be made to harmonize, other rules of construction must be resorted to for the purpose of determining, if possible, the common intention of the parties. In last resort, the text in the language of the party which by the stipulation incurs the obligation will, it seems, prevail in determining what obligation has been incurred.40 The rule of construction in the English law of grants as between private

37 Paul-Honoré Vigliani, arbitrator under the declaration concluded between Great Britain and Portugal, January 7, 1895. Moore, Int. Arb., V, 4985, 5011.

38 The parties may expressly agree in the treaty which text, in case of conflict, shall be taken as the standard. See, for instance, Article XVII of the treaty of October 8, 1903, between the United States and China.

39 Marshall, C. J., United States v. Percheman, 7 Pet. 51, 88; Edmonds, J., In re Metzger, 1 Barb. 248; Moore, Int. Arb., V, 4985, 4990, 4992.

40 "An incorrected discrepancy might prove embarrassing, in view of the rule of international law that when a treaty is executed in duplicate in two languages, each party has the right to appeal to its own text, in the interpretation of its provisions, unless it be exceptionally stipulated that the one or the other shall be the standard; but this expedient is rarely resorted to, and is, besides, in its nature offensive to the one or the other contractant." Mr. Hay, Secretary of State, to Mr. Storer, minister to Spain, December 20, 1901.

individuals, that the terms are to be construed against, rather than in favor of, the grantor,"—has no application in determining which of the two conflicting texts of a treaty is to be accepted as defining the concession made or obligation incurred. The reason of the rule is wanting. The words of the treaty are the words of both parties. The doubt as to the intention of the parties results not from the use by the grantor of ambiguous terms in defining the grant, but from the failure of the parties to use terms of identical meaning in the two languages. For this failure the grantee, as such, is not less responsible than the grantor."2

The Spanish and English texts, both declared to be originals, of Article VIII of the treaty of February 22, 1819, by which Spain ceded Florida to the United States, were not identical in meaning as to the confirmation of the grants to land in Florida

41 A different rule prevails as to grants by the state to private individuals. "By a familiar rule, every public grant of property, or of privileges or franchises, if ambiguous, is to be construed against the grantee and in favor of the public." Gray, J., Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, 49, citing Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544-548; Dubuque & Pacific R. R. Co. v. Litchfield, 23 How. 66, 88, 89; Slidell v. Grandjean, 111 U. S. 412, 437, 438; Oregon Railway v. Oregonian Railway, 130 U. S. 1, 26, 27.

42 "But here a distinction must be taken between an indenture and a deed-poll; for the words of an indenture, executed by both parties, are to be considered as the words of them both; for, though delivered as the words of one party, yet they are not his words only, because the other party hath given his consent to every one of them. But in a deed-poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him." Blackstone, Commentaries (Sharswood ed.), II, 379. Pothier gives the following as a rule (No. 7) of interpretation: "In case of doubt, a clause ought to be interpreted against the person who stipulates any thing, and in discharge of the person who contracts the obligation. In stipulationibus cum quaeritur qui actum sit, verba contra stipulatorem interpretanda sunt." Evans in his notes says: "The rule of the English law is directly the reverse, and the words of an engagement are to be construed most strongly against the person engaging. These two opposite rules have probably both resulted from the same maxim, that verba ambigua fortius accipiuntur contra proferentum. By the Roman law, the words of the stipulation were necessarily those of the person to whom the promise was made; the person promising, only assented to the question proposed by the person stipulating. There is nothing similar to this in the covenants and engagements used in England; but an indenture is the deed of both parties and the words it contains are taken as the words of both, except as to those parts which are in their nature only applicable to one of them." Pothier on Obligations (Evans), I, 58.

made by the King of Spain prior to January 24, 1818. In the Spanish text it was provided that the grants "quedarán ratificadas y reconocidas" (shall remain ratified and confirmed), whereas the clause in the English text read "shall be ratified and confirmed." In construing these clauses, the Supreme Court of the United States, by Mr. Justice Baldwin, said: "The King of Spain was the grantor, the treaty was his deed, the exception was made by him, and its nature and effect depended on his intention, expressed by his words, in reference to the thing granted and the thing reserved and excepted in and by the grant. The Spanish version was in his words and expressed his intention, and though the American version showed the intention of this government to be different, we cannot adopt it as the rule by which to decide what was granted, what excepted and what reserved; the rules of law are too clear to be mistaken, and too imperative to be disregarded by this court. We must be governed by the clearly expressed and manifest intention of the grantor, and not the grantee in private a fortiori in public grants."43

The convention of January 15, 1880, between the United States and France, for the adjudication by a mixed commission of claims of the citizens of the one against the other, was signed in duplicate, each in the English and French languages. The English text provided for the submission of all claims of citizens of France against the United States arising out of acts committed by the civil or military authorities of the government of the United States, "upon the high seas or within the territorial jurisdiction of the United States," during the period from April 13,

43 United States v. Arredondo, (1832), 6 Pet. 691, 741. The umpire, Jackson H. Ralston, of the Italian-Venezuelan Commission, constituted under the protocol of February 13, 1903, laid down the following rules of construction: "(a) If two meanings are admissible, that is to be preferred which is least for the advantage of the party for whose benefit a clause is inserted; (b) the sense which the acceptor of conditions attaches to them ought rather to be followed than that of the offerer; (c) two meanings being admissible, preference is given to that which the party proposing the clause knew at the time was held by the party accepting it; (d) doubtful stipulations should be interpreted in the least onerous sense for the party obligated; (e) conditions not expressed cannot be invoked by the party who should have clearly expressed them." Case of Sambiaggio, Ralston's Report, 666. See also opinion as to the acceptance of the English as the "basic" language in preference to the Italian text in case of conflict, case of Guastini, Id., 749.