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course of trade.

The obvious course of trade is that they should carry their native commodities to other countries, where they can be exchanged with the most advantage for articles proper for the East India market, and that they should then proceed to India to carry on a trade there in those articles. There is nothing in the treaty to warrant the inference, that it was the intention of the contracting parties, that the trade conceded by the treaty should not be so carried on. Whether this trade should have been conceded under any qualifications or restrictions is one thing; it having been conceded, now to attempt to cramp it by a narrow, vigorous, forced construction of the words is another and a very different consideration. It cannot be supposed that an indirect advantage was intended to be reserved to the East India Company by so framing the treaty, that the American trade might by construction be put under disadvantage, because this would be a chicanery unworthy of the British government and contrary to the character of its negotiations. The nature of the trade fixes the construction of the grant. Strong arguments may be drawn from the construction of this article, and the contrast which the comparing it with the preceding article will produce. From the context it appears, that the trade was to be free, subject only to certain specific regulations. The citizens of the United States are put upon the same footing as to duties with British subjects. No question is proposed, no means of ascertaining the fact are provided, where they come from; though it is anxiously stipulated where they are to go to. The words "original cargo" are to be found in the article, and it was supposed they might be used as a ground to infer, that the trade was to be direct from the United States. But original cargo is plainly set in opposition to cargo taken in in India. The provision respecting it is that, though the coasting trade is not permitted to the citizens of the United States, they may carry the cargo which they originally brought with them into the ports of the British territories, from the port of delivery to another, for the purpose of a market. The word

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"original" serves the purpose for which it is used perfectly well, and it marks a total indifference to the question where the cargo was picked up. But when this article is contrasted with the language of the preceding article, the true construction of it will be seen in a still clearer light. The trade to be carried on between the citizens of the United States and the British West Indian islands by virtue of the twelfth article is required to be in goods of the growth, produce, or manufacture of the islands and United States respectively. This trade in the nature of it must be immediate and direct. The contracting parties could not look to so remote a possible case as that a citizen of the United States might load the native commodities of the United States in a foreign port; and therefore we are not driven to collect the meaning of this article from the precision of the language it uses. Its language, however, is most precise. Thus contrasted these articles afford an illustration of the internal evidence of the import and true intent and meaning of each considered separately, and the conclusion from the whole appears to be irresistible, that the trade to be carried on under the twelfth article between the United States and the British West Indian Islands is a direct trade, and that the trade to be carried on between the United States and the British territories in the East Indies under the thirteenth article may be as circuitous as the enterprising spirit of commerce can make it (o).

Sixthly. Clauses of a favourable nature are to be construed liberally; those that are odious are to be construed strictly. Provisions in furtherance of natural justice and humanity, and consequently much more those that are declaratory of the common law of nations, are favourable; those that are penal or in restraint of common right are odious. Incommoda vitantis Arrianus ait multum

melior, quam commoda petentis est causa. interesse quæras, utrum aliquis obligetur, an aliquis liberetur. Ubi de obligando quæritur, propensiores esse debere nos, si

(9) Marryat r. Wilson, 1 B. & P. 430.

habeamus occasionem, ad negandum. Ubi de liberando, ex diverso, ut facilior sis ad liberationem (p). Thus the case of parties to be restored to their own by compact is extremely favourable. The word restitution is so favourable, that when a heinous malefactor hath it in his pardon from his prince, it does not only take off his punishment, but also restore him to his good name, honours and estates; much more than shall those that are restored ex debito justitiæ, recover every thing that the treaty does not in very clear and express terms deny them (q).

Seventhly. Where clauses of a treaty are repugnant, that which is special is to be preferred to that which is general; that which is prohibitory to that which is permissive; and the later to the earlier clause (r).

Eighthly. Where there is a conflict of treaties between the same parties, the latter must prevail. But where the conflict is between treaties with different parties, the former must prevail, for treaties cannot affect the rights of strangers; and every engagement made by a state is subject to its existing obligations (s).

Ninthly. Clauses that are conditional are inoperative until the condition is performed, and are annulled when the condition becomes impossible. Thus donations in consideration of marriage are inoperative until the marriage is celebrated, and are annulled by the death of either party before marriage (t).

(p) Grot. ii. 16, x. xii.—iii. 20, xi.; Puff. v. 12, xii., et seq.; Vatt. ii. § 300, 301, 303, ff. xliv. 7, § xlvii.

(9) Life of Sir L. Jenkins, ii. 736. As to the effect of the words, the state in which things were before the war; vid. suprà; and as to the relative extent of clauses of restitution as to different matters, suprà, p. 163. (r) Grot. ii. 16, xxix.; Puff. v. 12, vi. xxiii.; Vatt. ii. § 312, 313, 314,

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(s) Vatt. ii. § 165, 315.

(t) Grot. ii. 16, viii,

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CHAPTER V.

OF ARBITRATION AND REPRISALS.

THE only pacific modes of settling differences, which cannot be adjusted by negotiation, are arbitration and reprisals.

First. With respect to arbitration. An arbitrator is a person authorized by the parties in difference to decide, what shall be done with regard to the matters submitted to his judgment. Where the award of an arbitrator is final and confined to the terms of the submission, it is conclusive; unless it has been made in collusion with one of the parties (a). For there is no superior authority by which the validity of such an award can be examined, and consequently it is binding although it be unjust (b).

Where the matter in dispute is territorial the arbitrator cannot determine the possession as distinguished from the right of property. For possessory judgments are the creatures of civil law. By the law of nations the right of property draws after it the right of possession, and the possessor ought not to be prejudiced by disturbance of his possession until the question of right is determined (c). But this does not preclude the arbitrator from inquiring into all the circumstances of possession as part of the evidence of title (d).

Secondly. The right of reprisals is the right which every sovereign has to do justice to himself or to his subjects for any

(a) Puff. v. 13, iv.-cf. Vatt. ii. § 329.

(b) Grot. ii. 20, xlvi.; Puff. ibid.

(c) Grot. iii. 20, xlviii.

(d) Puff. v. 13, vi.

injury committed by any foreign prince or subject, where justice is denied (e). The exercise of the right consists in seizing any portion of the territory of the offending state, or the bodies or goods of any of its subjects, until satisfaction is obtained (ƒ). Recourse is had to reprisals to enable a state to do itself justice, where redress cannot be obtained by other means. When a state has seized that which belongs to another, or refuses to repair any injury, or to pay a debt, or to redress any wrong, the state that is injured may seize any thing that belongs to the offending state, and detain or confiscate it in satisfaction of such wrong. For this purpose the property of all private persons forms part of the property of the state whereof they are members (g); whether as natural born subjects or as persons domiciled therein (h). Sovereigns act immediately upon each other, and can only regard a foreign state as an entire body of individuals possessing common interests (i).

Reprisals appear at first sight contrary to natural justice, as they expose the bodies and goods of innocent subjects to be seized for wrongs done by their sovereign. But this is a necessary consequence of the constitution of independent states, whereby the will of all subjects is bound by the will of the sovereign, and they become responsible for the liabilities of the state (j). It is an inevitable inconvenience of civilized society, and is of little consequence in comparison with the benefits derived therefrom (k). The same mischief occurs in war, and nothing is ground of reprisals which would not be

(e) Grot. iii. 2, iv.; Bynk. Q. J. P. i. xxiv.; Guidon x.; Valin Comm. iii. 10.

(ƒ) Grot. iii. 2, ii. iii.; Barbey, note Puff. viii. 6, xiii.

(g) Vatt. ii. § 342, 344.

(h) Grot. iii. 2, vii.; Heinecc. Prælec. in loc.; Life of Sir L. Jenkins, ii. 713.

(i) Vatt. ii. § 346.

(j) Heinecc. Prælec. in Grot. iii. 2, ii.

(k) Puff. viii. 6, xiii.; Barbey, (n); Grot. iii. 2, ii.

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