Lowrey v. Hawaii (206 U.S. 206)/Opinion of the Court
The contentions of the parties are sharply in opposition as to the agreement, and the necessity and competency of extrinsic evidence to explain it. Appellee contends that we are confined to the letter of the agreement, and, so confined, its conditions have been fulfilled. In other words, that 'sound literature and solid science' are still cultivated, and that no religious tenet or doctrine contrary to those heretofore inculcated by the mission is taught. Or, to express the contention in language other than that of the agreement, that a school devoted to one subject of secular science, and which excludes all religious teaching, was contemplated by or is permitted by the agreement. Opposing these views, appellants contend that a mere technical school does not fulfil the agreement; that the terms of the agreement require the 'inculcation of general learning and knowledge,' accompanied with religious instruction in accordance with the confession of faith submitted to the Hawaiian government. And it is insisted that, if there is anything doubtful in the agreement, it may be interpreted by the circumstances which preceded it and the immediate and long-continued practice under it. If we may resort to those circumstances and that practice there cannot be a shade of doubt as to the intention of the parties. It is insisted, however, by the appellee, that the agreement is clear and unambiguous, and that it does not present a case for the resort to extrinsic evidence. We cannot concur with this view. There is quite a range of meaning in the words 'sound literature and solid science.' To interpret or specialize them and make definite application of them would certainly receive aid from the practice of the parties. It is contended by appellants that there was a close connection between them and the 'definite system of doctrine' which was the 'central purpose of the mission.' We, however, need not dwell further upon this contention, though a plausible argument has been advanced to sustain it, and we pass to the next controverted contention. The words of the agreement are that the government 'shall not teach or allow to be taught any religious tenet or doctrine contrary to those heretofore inculcated by the mission, a summary of which will be found in the confession of faith herewith inclosed . . .' Were these words all there was of prohibition and purpose as to religion? May we believe that it became suddenly the purpose to change an institution which had had its impulse and foundation in religious zeal to convert the Hawaiians to Christianity and to educate young men to be 'teachers of religion,' to one simply literary and scientific and nonsectarian? Had the belief of the mission in its form of Christian faith become so indifferent that it would transfer a seminary instituted for the propagation of that faith with no other condition than that contrary tenets should not be taught? There is not a syllable in this record to justify such assumptions. It must be remembered that we are considering a transaction which occurred in the Hawaiian Islands in 1849, and by the conditions of that time were the acts of the parties induced. Besides, the agreement is not in a formally executed paper. It is found in a correspondence, and is constituted and explained by the whole of the correspondence. And, taking the whole of it, there is very little aid from extrinsic evidence needed to demonstrate its meaning and purpose.

The mission reminds the Minister of Public Instruction that the seminary was established in 1831, 'to promote the diffusion of enlightened literature and Christianity throughout the islands,' and that it had been unceasingly watched over, cherished, and cared for by the mission, and that $77,000 had been expended for its benefit. It was stated that, in consequence of debts incurred 'in the prosecution of its labors of benevolence and mercy,' the American Board of Commissioners of Foreign Missions was compelled to diminish its grants to each of the missions under its care, including the Hawaiian mission, and that the latter, for that reason, would be 'unable to carry forward its operations with the vigor to be desired in all of its departments of labor.' In view of these facts, it was stated and believed that, under the circumstances, the tranfser of the institution 'to the fostering care and patronage of the government' would 'promote the highest interest of the Hawaiian people.' An offer was then made to transfer the seminary with the conditions which we have referred to. A confession of faith was inclosed. The government modified the proposal by reserving the right to pay $15,000 as an alternative to the reversion of the property to the mission if the government should not fulfil the conditions of the grant. The modification was accepted, and, in a subsequent communication, a new confession of faith was substituted for that originally proposed. The following are the reasons which were given:

'The reasons for requesting the substitution are, that the previously presented confession, although according in all its specified doctrines with our belief and with that also of the churches by whom that institution has been founded and sustained, is yet not so distinctive as to present a barrier to the introduction there of other deleterious doctrine not specified in said confession. It will admit, also, of teachings of this mission and of the churches sustaining it, such as we feel to be entirely subversive of evangelical Christianity. Not doubting but that these reasons will commend themselves to the members of his Majesty's government, we beg leave to express, in presenting them, the high consideration with which we remain.'

The correspondence concerned the transfer of a school established in 1835, the design of which was to perpetuate the Christian religion, and with an object described to be 'still more definite and of equal or greater importance,'-that is, 'to educate young men to be Christian ministers.' A religious instruction was prescribed. All this the government was informed of when the proposition was made to transfer the school to its 'fostering care and patronage.' And the government accepted the grant, accepted as it was tendered, and necessarily for the purpose it was tendered.

Even if we stopped here, conviction of the justness of that conclusion is almost indisputable. It becomes indisputable if extrinsic evidence be considered, and we have no doubt that it may be. In Bradley v. Washington, A. & G. Steam Packet Co. 13 Pet. 89, 10 L. ed. 72, a contract expressed in a correspondence between the parties for the hire of a steamboat, an exception was ingrafted which was not expressed, upon evidence that the owner of the boat knew the service for which it was intended, and that when navigation was obstructed by ice another mode of transportation was resorted to. The court said, as to extrinsic evidence, it was applied in some cases 'to ascertain the identity of the subject; in others its extent. In some, to ascertain the meaning of a term, where it had acquired by use a particular meaning; in others, to ascertain in what sense it was used where it admitted of several meanings. But in all the purpose was the same. To ascertain by this medium of proof the intention of the parties, where, without the aid of such evidence, that could not be done, so as to give a just interpretation to the contract.' And it was expressed 'as the just result' of the cases, 'that, in giving effect to a written contract by applying it to its proper subject-matter, extrinsic evidence may be admitted to prove the circumstances under which it was made, whenever, without the aid of such evidence, such application could not be made in the particular case.' In Brooklyn L. Ins. Co. v. Dutcher, 95 U.S. 269, 24 L. ed. 410, it was said: 'There is no surer way to find out what parties meant than to see what they have done.' So obvious and potent a principle hardly needs the repetition it has received. And equally obvious and potent is a resort to the circumstances and conditions which preceded a contract. Necessarily in such circumstances and conditions will be found the inducement to the contract and a test of its purpose. The conventions of parties may change such circumstances and conditions, or continue them, but it cannot be separated from them. And this makes the value of contemporaneous construction. it is valuable to explain a statute where disinterested judgment is alone invoked and exercised. It is of greater value to explain a contract where self-interest is quick to discern the extent of rights or obligations, and never yield more than the written or spoken word requires. See, for further illustration, the following: Reed v. Merchants' Mut. Ins. Co. 95 U.S. 23, 24 L. ed. 348; District of Columbia v. Gallaher, 124 U.S. 505, 31 L. ed. 526, 8 Sup. Ct. Rep. 585; Topliff v. Topliff, 122 U.S. 121, 30 L. ed. 1110, 7 Sup. Ct. Rep. 1057; Paige v. Banks, 13 Wall. 608, 20 L. ed. 709; Philadelphia, W. & B. R. Co. v. Trimble, 10 Wall. 367, 19 L. ed. 948; Chicago v. Sheldon, 9 Wall. 50, 19 L. ed. 594; Cavazos v. Trevino, 6 Wall. 773; 18 L. ed. 813; Simpson  v. United States, 199 U.S. 397, 399, 50 L. ed. 245, 246, 26 Sup. Ct. Rep. 54; Chicago Great Western R. Co. v. Northern P. R. Co. 42 C. C. A. 25, 101 Fed. 792. And many state cases could be cited.

The design of studies for the school we have detailed. The government recognized and continued both without question or change in any way. The seminary buildings were burned down in 1862. The government rebuilt them and continued the school. The petition alleges that the principal of the school, in 1862-63, in his report, said: 'The Hawaiian government has always been a liberal friend and benefactor. . . . Never, in any way, have they interfered with our manner of instruction or in the course of instruction pursued. In our work we have had all the freedom which we possibly could have had under the A. B. C. F. M.' Also, referring to pupils who, under the religious instruction at the school, became ministers, he says: 'While six who were connected with it since it has been under the care of the Hawaiian government have been ordained to the same office.'

In 1864 new interests appeared and a change in the purpose of the school commenced to be urged. It was met by an adverse opinion of the Attorney General, who pointed out the conditions of the transfer, and the condition of their nonfulfilment to be the restoration of the property to the A. B. C. F. M. And, again, in 1865, the board of education, while denying the right of the mission to nominate instructors, conceded the obligation to continue the institution, 'so as to aid, instead of defeating, the purpose for which it was founded,' and the alternative to be the surrender of the property or the payment of $15,000. 'Religious instruction,' it is alleged, 'upon the lines formerly pursued by the mission and subsequently by the government, in accordance with the agreement, was continued up to or about September 1, 1903.' We hence see that not only the immediate practice of the government construed the agreement as contended for by appellants, but the practice of over fifty years proclaimed the same meaning, proclaimed it without question and against a suggestion and agitation to reject it. It is somewhat staggering to be told that such continuity of practice is not a legal interpreter of the meaning of the parties, and that the only criterion can be a precise and isolated from of words which, at the end of a half a century of contrary admission and declaration, one of the parties finds it convenient to bring forward.

It is no defense that the government's policy has changed. It cannot so release itself from its engagement. The provision for the teaching of 'sound literature and solid science' might be considered of 'expansive character,' to use the description of Lieber, and change with the progress of both. The provision for religious teaching is unchanging. It is as definite and absolute to-day as it was when it was written. The alternative of it the agreement has made the return of the property conveyed, or the payment of $15,000.

Judgment reversed and case remanded, with directions to proceed in conformity with this opinion.

Mr. Justice Brewer took no part in the decision of this case. 

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