« ElőzőTovább »
drew their information from treaties and other public acts; and that those persons, who, like Leibnitz, had published collections of this sort, had paved the way for them."
It is not pretended that a single treaty is of itself conclusive authority on a controverted doctrine of law; but it furnishes a presumption of what the law is, and it has a degree of weight in defining and ascertaining it, so far as it is unsettled. Considered as the expression of a nation's opinion and wishes, every treaty is entitled to some consideration. But still, when a treaty is appealed to for the purpose of ascertaining what the Law of nations is, it ought to be examined with much caution, because, like the decisions of Admiralty courts, it is in some sense ex parte, and is unavoidably exposed to the sinister suspicion of being prompted by views of convenience and interest. But putting the interested views of the authors of treaties out of the question, and inquiring merely for the facts which they present, we shall find that they are far from being concordant in their testimony on matters of international law. For instance, on the principle of "free ships, free goods," while we find a considerable number of treaties recognizing it, there are others that reject it. "The treaties of Europe, which, (says a writer,)* form so vast a part of the rule which governs the conduct of each of its states, have swelled to such an enormous size in point of number, contain so many various, and sometimes contradictory stipulations, and open a field so immense for discussion, by way of analogy and comparison, that it is not an easy thing to settle what general principle may be collected from them except by a thorough and accurate inspection of the whole." It may be added, that the thorough inspection here spoken of will not always answer the pur* Ward on the Rights of Neutral and Belligerent Powers, p. 95.
pose. There will still remain contradictory stipulations, laying the foundation for contradictory and uncertain deductions. Especially, as it is impossible in the examination of treaties, to state precisely at what period we ought to begin; and beyond which the examination shall not be prosecuted. Accordingly in endeavoring to ascertain from treaties, whether the Law of nations recognized the principle, that free ships shall make free goods, Hubner, extends his inquiry through the last century, while Schlegel carries it back to 1642; but neither of these periods appears to be satisfactory to Ward, who institutes an elaborate examination on the same subject. We do not deny that treaties often repeat and affirm the law already existing, and that they sometimes explain the obscurities and settle the doubts attending it; but we do not find in them that just and pervading and authoritative power of exposition, which the sufferings of mankind and the exigencies of this enlightened age imperatively demand.
IV, We proceed to remark further, that we do not find an adequate corrective of existing evils in cusΤΟΜ. It is well understood, that many points of International law are settled in this way, viz, by the alleged prevalent and permanent practice of nations. All authorities, that are commonly relied on in these inquiries, assert this. They agree in assuring us, that maxims and customs, consecrated by long use, become binding, and form a portion of the public code. considered as expressive of the the nations, by which they are frequently they are difficult to be correctly ascertained; or are limited in their application to a small number of States, or are met and opposed by variant and conflicting customs. And we should naturally expect this, since we find that the customs of nations, when traced back to
These customs are opinions and wishes of admitted; but not un
their origin, often have their beginning in excited passion or temporary policy. Such being the case, (and it is most certain, that these alleged perplexities are not wholly chimerical,) it is evidently difficult, in many cases, if we refer to custom for the purpose of determining the matter, to tell what ought to be regarded as law, and what should not be.
In view of these facts, therefore, we think we have grounds for the assertion, that the ordinary means of correcting the evils existing in the law of nations are essentially inadequate, and that other means should be sought for. And the question is, where shall we find them?
Writers on national law profess to treat nations as persons, and they aver, with a great degree of unanimity, that the principles of justice, applicable to individuals, are also applicable to bodies politic.If nations are treated as moral persons, it must be on the ground, that they have the character, attributes, and rights of persons; and that there is some analogy between them. But it would be very unwise and unauthorized to treat of the rights of persons without a regard to the circumstances, in which they are placed, and without taking into consideration the relations, which man, by the evident tendencies of his nature, is made to sustain to his brother man. But if persons are not entirely solitary and insulated from all others, having rights which are unreached and unmodified by the rights of their fellows, nations are, in like manner, not solitary and insulated, but are members of one great family, the head of which is the Creator of the world. This we apprehend to be the proper view, viz, that nations, like individuals, are the members of a family; it seems to follow necessarily from the acknowledged propriety of treating them as persons; and it is only by following out this view, and
requiring nations to act upon it, and assembling them together in their acknowledged capacity of friends and brothers for the purpose of amicable discussion, that we can find a remedy for the evils complained of. In other words the body, suitable for this great object, seems to be the representatives or diplomatic agents of nations, met together in an International Congress.
OBJECTIONS TO THE PROPOSED CONGRESS.
EVEN if it should be admitted, that there is abundant occasion for improvements in national intercourse, and that the existing means of such improvement are inadequate, various objections to the proposed Congress of nations will not fail to present themselves. This is an ordeal, from which no untried measure can expect to escape the judicious will propose them on grounds of prudence, and the timid from fear; and on the whole it is not desirable that it should be otherwise. A good measure will of course bear examination; and it is not desirable, that a bad one, which has been ascertained to be so by inquiry, should undergo the trial of an actual experiment.
I,One objection is, that the proposed Congress, not being invested with legislative and judicial authori ty or with the means of enforcing obedience, must ne
cessarily be advisory merely, and will of course fail of its object. An obvious remark on this objection is, that it would have applied at any former period better than the present. It is one of the honorable characteristics of the present age, that there is an increased disposition to substitute reason for violence, and the logic of good advice for that of blows and bloodshed. But further, this objection seems to imply too limited a view of the business of the Congress. Their business would be partly diplomatic; propositions for treaty arrangements could be made and discussed, under the most favorable circumstances, by the representatives of different nations; the bearings of such arrangements on other nations could be promptly ascertained, and the treaties could be concluded with less perplexity and hindrance than at present. In this respect what might be done at the Congress could not be properly considered as merely advisory, although their doings would undoubtedly be subject to the ratification of their respective governments. Not only this, they would necessarily be a great court of reference. Existing differences, in the shape of contested boundaries, conflicting constructions of international law, and the like, would from time to time be submitted by agreement for their adjustment. And their decisions. would be more or less binding according to the terms and conditions, under which the reference was made. In other respects their measures would undoubtedly be in a good measure deliberative and advisory, tending to enlighten the dark places of public law, and to point out to nations the path, which reason, benevolence, and religion precribe. But would they, therefore, be necessarily less efficacious? Were the reasonings of Grotius, Puffendorf, and Bynkershoek any thing more than advisory? Where were their fleets and armies, the neighing of horses, and the warriors clothed in blood, to enforce the