Imágenes de páginas
PDF
EPUB

or even scandals that arise under the present system of Collector-Magistrates; though, as our readers are aware, these powerful local magnates sometimes use their personal influence in course of trials, and occasionally let Sessions Judges know what they think as to the line that decisions should take.

Here it may be well to recall that the objections to the proposed change as stated by the Hon. Mr. Birdwood, though expressed with more of the lawyer's precision, are very similar to those maintained by the Bengal Civilian. But it must be noted that on the Bombay side the judicial and revenue (executive) branches of the service have long been separate to a large extent. Hence the Bombay men are apt to regard too lightly the need for this long desired reform in Indian administration. Thus Sir William Lee-Warner (formerly a Bombay Civilian, now occupying a high position at the India Office), after acknowledging that "the broad principle of a thorough separation of judicial from executive action is sound," and stating that "the victory of the separatists has long been won," asserts that "only one very small residuum of a great principle is at stake." He proceeded to magnify the supposed cost of the change, and make the most of " the loss of prestige" objection. Sir William, who, by the way, had no judicial experience, ignores the mischief frequently arising in other provinces of India from the incongruous union of these two functions in one officer, or the friction and obstruction caused in the administration of justice by interference with the provincial Judiciary. Hence the passing reference was scarcely intelligible, which he made to what is known as "The Chupra Case" one that had already been dealt with in a condemnatory Minute by the Government of India.

In conclusion it may be pointed out that the foregoing are only a few details, though important ones, amongst many

that were reviewed in course of the wide and discriminating survey of Indian judicial administration in the discussion. evoked by the reading of Sir John Scott's crisply written, and comprehensive paper.

W. MARTIN WOOD.

VI. THE INTERPRETATION OF TREATIES.

THE

one

HE interpretation of treaties is of those questions which have been brought into sudden prominence by the dispute between this country and the late South African Republic which led to the war now practically concluded. For that war we had political, besides legal, justification which warranted us in making representations, and in enforcing them when they were disregarded. Such considerations, however, transcend the sphere of international law, which recognises and always has recognised that it is not the sole measure of conduct between nations; they belong to the diplomatist and the politician rather than to the lawyer. Our case then (fortunately, some will say) does not rest on the legal question alone. Yet the differences to which the wording of the London Convention have given rise furnish a forcible proof of the need there is for generally recognised principles of interpretation. It may safely be said that more wars have been caused, or justified, by disputes as to the construction of international compacts than by any other cause or pretext. Some would have us believe that the evil is without a remedy. Sedgwick, for instance, states that it is as useless to frame fixed rules of interpretation as to endeavour to define the mode by which the mind shall draw conclusions from evidence. This may be an argument against subtle and elaborate formulæ for solving any and every case that may present itself, but it

does not disprove the value of establishing a consensus of opinion on the means that may and should properly be applied, in order to obtain a plain and definite sense from an ambiguous or uncertain stipulation.

Words are a means, and an imperfect means, of conveying intention. If treaties are to have any force and stability, it is imperative that the party promising and the party to whom a promise is made should know that their words will in the future be mutually construed in general accordance with a certain fixed system of interpretation; otherwise they cannot tell into what stipulations they are entering, it being impossible for them to foresee and provide in writing for every particular combination of circumstances that may arise. And, if this is the case with honest States, entering into a bonâ fide contract, the difficulty and the danger to the public peace must be infinitely increased when we have to deal with a dishonest party who purposely introduces words of a doubtful meaning, that they may hereafter furnish him with a handle for oppression, or a loophole for evasion. It has been said, and I think justly, that, ipso facto, by entering into a compact, States acquire a mutual right to have a fair and usual interpretation put upon its terms in the future. It is, moreover, essential that the rules of interpretation, whatever they are, should become matters of active common knowledge, and not be allowed to lie dormant in the public sub-consciousness, if an aggressor is to be effectually prevented from successfully cloaking his injustice in the pretext that his victim has committed an infraction of his engagements.

The necessity for some system of interpretation being recognised, the question arises, where and how can rules. be found of such fairness and authority as readily to recommend themselves to all the members of the family of nations? Custom and usage are poor guides here, for,

V

unfortunately, it is just in the most important cases that we find law ousted by war and inter arma silent leges.

An obvious solution would be to adopt the rules which obtain for the construction of private instruments. And thus Kent: "Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to private contracts." There would be much to be said for such a proceeding, were it not that hardly any two nations have the same rules. The English law, for instance, as to the construction of written contracts, is that the document should be construed as a whole; and, unless it is obviously incomplete, must be taken to embody the whole intention of the parties. The court will not go behind the written word if it is clear, even though it be proved up to the hilt that the parties intended something different. In a recent case the Lord Chancellor said: "So far as I am aware, no principle has ever been more universally or vigorously insisted upon than that written instruments, if they are plain and unambiguous, must be construed according to the plain and unambiguous language of the instrument itself." He instances an old case where, under a demise of certain coal mines, the lessee covenanted to pay half the money that any coal therefrom obtained "should sell for at the pit's mouth." At the time when the contract was drawn, all the coal was sold at the pit's mouth; but afterwards a canal was made and an opportunity afforded of carrying the coal to a more distant market, where it was sold at an enhanced price. It was amply proved that circumstances showed what the real meaning of the parties was, namely, that the lessor should receive one-half of the price which the coal fetched in the market, and it was urged that the court would not tie down the parties to the mere words, but would look at the meaning. The court, however, rejected the evidence and held *North-Eastern Railway v. Lord Hastings, A.C. (1900), at p. 263.

that the covenant, not being ambiguous in its terms, could not be explained in the way suggested.

The old Prussian Code* says: "In deciding upon "dubious cases the judge is not allowed to substitute any "other meaning for the laws than that which clearly appears from the words, their connection with reference "to the doubtful subject, or from the next and undoubted reason of the law."

16

The French Code, again, provides t: "The common "intention of the contracting parties should be sought (in "contracts) rather than the taking of the literal meaning "of the words. Where a clause is susceptible of two "interpretations, it shall be construed in preference "according to the meaning which may produce some "effect, rather than that which would produce none. In "case of doubt, a contract shall be interpreted against the "party who has made the stipulations and in favour of him. "who assumed the obligation."

Something, no doubt, can be effected towards arriving at principles acceptable to all, by a comparison of the laws of different nations on the subject. But at the same time it must not be forgotten that there is a wide difference between the subjects with which national and international law deal. The laws of evidence which municipal law has approved are largely compromises between justice and despatch. They are comparatively unobjectionable where private gains and losses are concerned. But where the interests, and sometimes the very existence, of whole States are at stake there is no place for considerations of mere convenience. A country cannot afford to allow matters of vital moment to itself to hang upon a word or a letter; frequently it must feel itself morally justified rather in repudiating a whole treaty than in fulfilling onerous

* Introduction, sec. 46.

+ Sec. 1156 sqq.

« AnteriorContinuar »