CHAPTER VI.

HISTORY-TREATIES.

XLVII. SUCH being the influence of usage upon International Law (a), it becomes of importance to ascertain where the repositories, and what the evidence, may be of this great source of International Law.

XLVIII. (1.) In the enumeration of these, History, unless the term be too general, necessarily takes the first place. It supplies, according to Grotius, both example and authoritative judgments of which the latter owe their weight to the general acceptance which they have obtained, whilst the former are more or less valuable according as they are more or less derived from epochs and nations more or less entitled to universal respect (b).

It is scarcely necessary to guard against the error which

(a) "Quamquam enim nec sit exemplis judicandum, et aurea ea dicitur Justiniani lex, ab exemplis tamen duci probabilem conjecturam certum est, et in dubio judicandum imo est exemplis; et cum itum in consuetudinem est. Neque enim mutare decet quæ certam observantiam semper habuerunt, et firmius judicium creditur, quod plurimorum sententiis confirmatur."-Albericus Gentilis, lib. i. c. ii. De Jure Belli.

(b)" History," Hume observes," the great mistress of wisdom, furnishes examples of all kinds; and every prudential as well as moral precept may be authorised by those events which her enlarged mirror is able to present to us."-Hist. of England, vol. vii. p. 150. Grot. Proleg. s. xlvi.: "Historiæ duplicem habent usum, qui nostri sit argumenti: nam et exempla suppeditant et judicia. Exempla, quo meliorum sunt temporum ac populorum, eo plus habent auctoritatis; ideo Græca et Romana vetera cæteris prætulimus. Nec spernenda judicia, præsertim consentientia; jus enim naturæ, ut diximus, aliquo modo inde probatur; jus vero gentium non est ut aliter probetur."

The Flad Oyen, 1 C. Rob. Adm. Rep. p. 141.

Grotius, in another part of his work, denounces-that instances recorded in History, merely by virtue of being so recorded, constitute precedents of International Law (c).

History is a record of the injustice, evil passions, and folly, as well as of the justice, virtues, and wisdom of Nations.

The necessities of the epoch in which Grotius wrote left him little or no choice in selecting his examples and precedents chiefly from the antiquity of Greece and Rome. This is not the case with his successors; they have far ampler and far apter materials. But the edifice is not the weaker for the breadth and depth of the classical foundations laid by the first architect; and the principle which guided him is in this, as in most other instances, most valuable to the later and, in spite of their advantages, inferior builders.

XLIX. (2.) Secondly, the consent of Nations is evidenced by the contents of Treaties, which for this, as well as for other reasons, constitute a most important part of International Law (d).

L. Upon this point there is one observation which merits, from its importance, precedence over all others. It is this: No treaty between two or more Nations can affect the general principles of International Law prejudicially to the interest of other Nations not parties to such covenant; at the same time, the contracting parties (e) may introduce

(c) "Solet et illud quæri, an jure talionis interfici, aut male tractari legatus possit ab eo veniens, qui tale quid patraverit. Et sunt quidem ultionis talis exempla in historiis satis multa: sed nimirum historic non tantum quæ juste, sed et quæ inique, iracunde, impotenter facta sunt, memorant."-Grot. 1. ii. c. xviii. 7.

(d) "All this body of old conventions, composing the vast and voluminous collection called the Corps diplomatique, forms the code or statute law, as the methodized reasonings of the great publicists and jurists form the digest and jurisprudence of the Christian world. In these treasures are to be found the usual relations of peace and amity in civilized Europe."-Letters on a Regicide Peace, Burke, Works, vol. ix. p. 235. (e) "Usus intelligitur ex perpetua, quodam modo, paciscendi edicendique consuetudine; pactis enim principes sæpe id egerunt in casum belli, sæpe etiam edictis contra quoscunque, flagrante bello. Dixi, ex perpetua quodam modo consuetudine, quia unum forte alterumve pactum,

into a treaty expressions so generally worded as to be either explanatory of a previously contested point of law, or declaratory of the future interpretation of it, or in other ways frame the covenants of the Treaty between themselves so as to lay down an universal principle binding on them, at least, in their intercourse with the rest of the world. Nowhere will this important doctrine be found laid down with greater precision, or more irresistible argument, than in Lord Grenville's speech in the House of Peers, upon the motion for an address to the throne approving of the convention with Russia in 1801 (ƒ). Among the many attributes of a statesman possessed in rare excellence by that minister, was his intimate acquaintance with International Jurisprudence in all its branches. His opinion is, therefore, of very great authority. He argued that, by the language of that convention, a new sense, and one hitherto repudiated by Great Britain, with respect to contraband of war, would be introduced, so far at least as Great Britain was concerned, into general International Law; that inasmuch as some provisions of the Treaty with respect to what should be considered contraband of war were merely prospective, and confined to the contracting parties, England and Russia, while other provisions of the same Treaty were so couched in the preamble, the body, and certain sections which contained them, as to set forth, not the concession of a special privilege to be enjoyed by the contracting parties only, but a recognition of one universal pre-existing right, they must be taken as laying down a general rule for all future discussion with any Power whatever, and as establishing a principle of law which was to decide universally on the just interpretation of the technical term contraband of war.

quod a consuetudine recedit, jus gentium non mutat."-Bynkershoek, Quæstiones Juris Publici, 1. i. c. x.

Wheaton's El. of Int. Law, i, 60.

(f) This speech was published separately, by Cobbett and Morgan, Pall Mall, November 13, 1802.

See, too, Hansard's Parliamentary Debates, 1801,

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LI. The constant consent of various nations to adopt a particular interpretation of a particular term is, generally speaking, strong evidence that such is the true International meaning belonging to it. Bynkershoek was in the habit of placing great stress upon the language of Treaties, as evidence of the universal consent of nations, and especially on this point (g): "Excute pacta gentium, quæ diximus, excute “et alia, quæ alibi exstant, et reperies, omnia illa appellari "contrabanda, quæ, uti hostibus suggeruntur, bellis gerendis "inserviunt, sive instrumenta bellica sint, sive materia, per se bello apta ;" and, again, " Priusquam autem, quid mihi "videatur, exponam, operæ pretium erit, pactiones gentium "consuluisse;" again, "Sed his paulisper sepositis audi "pacta gentium; "-these and the like expressions abound in his most valuable dissertations. Nor in this respect is he at variance with other jurists; it is their universal opinion that not only the particular provisions, but the general spirit, of Treaties to which at different periods many nations have been parties, is of great moment and account as the evidence of their consent to the doctrine contained in them. So Lord Stowell, in his judgment in The Maria, arguing for the universal right of the belligerent to visit neutral merchant ships, says: "The right is equally clear in practice, for practice "is uniform and universal upon the subject: the many "European Treaties which refer to this right refer to it as pre-existing, and merely regulate the exercise of it" (h).

So the "réponse sans réplique," already mentioned, of Great Britain to the Prussian memorial, and that memorial itself, refer to a variety of Treaties as containing provisions illustrative and confirmatory of the doctrine maintained in the reply.

LII. When, however, it is said that the consent of nations may be gathered in some degree from the conventions of Treaties, it is not meant that every kind of Treaty can

(g) Quæstiones Juris Publici, 1. i. c. x. 113.

(h) 1 C. Rob. Adm. Rep. p. 360.

furnish even this degree of evidence. Many are concerned with matters of no general (i) interest to other than the contracting parties; many contain stipulations wrung from the necessities of one party, compelled to admit claims to which by the general law its adversary was not entitled (j). From Treaties of this description no argument of the consent of Nations can be fairly deduced. But there are certain great and cardinal Treaties in which, after long and bloody wars, a re-adjustment of International relations has taken place, and which are therefore more especially valuable, both from the magnitude and importance of their provisions, which have necessitated a recurrence to, and a re-statement of, the fundamental principles of International Law; and also from the fact, that frequently the greater number of European States, and lately some American and even Asiatic communities, have been parties thereto (k).

This subject will come again under discussion in a subsequent consideration of the general subject of Treaties (1). It may, however, be as well to mention in this place that the

(i) "By this means the proposed fraternity is hustled in the crowd of those treaties which imply no change in the public law of Europe, and which do not, upon system, affect the interior condition of nations. It is confounded with those conventions in which matters of dispute among sovereign powers are compromised, by the taking off a duty more or less, by the surrender of a frontier town or a disputed district on the one side or the other, by pactions in which the pretensions of families are settled (as by a conveyancer making family substitutions and successions), without any alterations in the laws, manners, religion, privileges, and customs of the cities or territories which are the subject of such arrangements."-Burke, Works, vol. viii. p. 234: Letters on a Regicide Peace.

(j)" Quod vero contra rationem juris receptum est, non est producendum ad consequentias."-Dig. i. iii. s. 14 (De Legibus).

"Quæ propter necessitatem recepta sunt, non debent in argumentum trahi.”—Dig. 1. xvii. 162: De Diversis Regulis Juris Antiqui.

(k) "Tous les princes et états de l'Europe se trouvent ainsi directement ou indirectement compris dans ce traité, à l'exception du Pape et du Grand Seigneur, qui seuls n'y prirent aucune part."-Koch, Hist. des Tr. c. i. 1,3, in fine.