exceptions to the general truth that express stipulations are not made to ensure obedience to a law by which both contracting parties would in any case feel themselves to be bound. Of the second class of treaties there are not many which enunciate principles; but there are a very large number which have for their aim to define the objects which an undisputed principle is to be permitted to affect, or the manner in which it is to be applied. Such are those which enumerate articles contraband of war, and those which prescribe the formalities of maritime capture. The value both of the more general and the more specific kinds is great to the international lawyer; not because the conventions which belong to them can be a source of law, but because they show the flow and ebb of opinion, and its strength at a given time with reference to particular doctrines or practices. Treaties of the third class are not only useless but misleading. Unfortunately, they are also the most numerous. Sometimes they mingle with conventions intended to affirm or extend a principle in such manner as to blur their effect, or even to throw an air of uncertainty on the wishes of the contracting parties; sometimes they contradict in a long succession of separate agreements what from other evidence would appear to be the settled policy of a nation ; sometimes they form a mere jumble in which no clue to intention can be traced. Thus in 1801, Great Britain and Russia and Great Britain and Sweden signed treaties by which enemy's goods in neutral vessels were rendered liable to confiscation, while in the same year Russia and Sweden reiterated as between themselves the principle of the armed neutrality under which hostile property was protected by a friendly ship. During the present century the United States have concluded ten treaties under which neutral goods are confiscated in enemy's vessels; but their courts regard such goods as free in all cases not specially provided for by international agreement. Again in 1785 the United States agreed with Prussia that contraband of war should not be confiscable; by their treaty of 1794 with England not only were munitions of war subjected to confiscation, but the list was extended to include materials of naval construction; and in the only treaty since concluded by Prussia, in which the subject is referred to, articles contraband of war are dealt with in the usual manner. Instances of like kind might be endlessly multiplied, and it may be safely said that it is rarely that the treaty policy of any country is consistent with itself over a long period of time. In thus analysing the nature of treaties I fail to discover any ground for their claim to exceptional reverence. They differ only from other evidences of national opinion in that their true character can generally be better appreciated; they are strong, concrete facts, easily seized and easily understood. They are, therefore, of the greatest use as marking points in the movement of thought. If treaties modifying an existing practice, or creating a new one, are found to grow in number, and to be made between states placed under circumstances of sufficient diversity; if they are found to become nearly universal for a while, and then to dwindle away, leaving a practice more or less confirmed, then it is known that a battle has taken place between new and old ideas, that the former called in the aid of special contracts till their victory was established, and that when they no longer needed external assistance, they no longer cared to express themselves in the form of Legal value of different kinds of national acts. conventional law. While, therefore, treaties are usually allied with a change of law, they have no power to turn controverted into authoritative doctrines, and they have but little independent effect in hastening the moment at which the alteration is accomplished. Treaties are only permanently obeyed when they represent the continued wishes of the contracting parties. If the legal value of national acts is not to be estimated with reference to a divine or natural law, and if treaties are mere evidences of national will, not necessarily more important, and occasionally, from being the result of a temporary exigency, less important than some unilateral acts, it remains to be asked whether all indications of national opinion with reference to international law are to be considered of an equal weight, except in so far as their significance is determined by attendant circumstances, and whether, therefore, authority will attach to them in proportion to their number and to the length of time during which they have been repeated. Subject to two important qualifications, this may, I think, be said to be the case. The first qualification is that unanimous opinion of recent growth is a better foundation of law than long practice on the part of some only of the body of civilised states. But it must be remembered that as no nation is bound by the acts of other countries in matters which have not become expressly or tacitly a part of received international usage, the refusal of a single state to accept a change in the law, prevents a modification agreed upon by all other states from being compulsory, except as between themselves. This rule, as altered for their purpose, merely becomes an unusually solid foundation of usage, capable of upholding law in less time than if the number of dissentients had been greater. Thus the provisions of the Declaration of Paris cannot in strictness be said to be at present part of international law, because they have not received the adherence of the United States; but if the signataries to it continue to act upon those provisions, the United States will come under an obligation to conform its practice to them in a time which will depend upon the number and importance of the opportunities which other states may possess of manifesting their persistent opinions. The second qualification is that there are some states, the usages of which in certain matters must be taken to have preponderant weight. It is impossible to overlook the fact that the practice, first of Holland and England, and afterwards of England and France, exercised more influence on the development of maritime law than that of states weaker on the sea; and it would at the present day be absurd to declare a maritime usage to be legally fixed in a sense opposed to the continued assertion of both Great Britain and the United States. The acts of minor powers may often indicate the direction which it would be well that progress should take, but they can never declare actual law with so much authority as those done by the states to whom the moulding of law has been committed by the force of irresistible circumstance. Propositions of international law upon special law of neu trality is based. CHAPTER II. GENERAL PRINCIPLES OF THE LAW AFFECTING ence. § 3. THE rudimentary propositions of international law contemplate no other relations than those of war and peace. At a time when the relations of countries which the in amity with one another were the subject of elaborate rule, and when the violence of war was already limited by definite customs, neutrality had no existIf hostilities broke out between two states, every other was an ally or an enemy. Little by little a third attitude became recognised as possible and legitimate; and its maintenance has gradually been transformed into a duty by the jealousy of belligerents whose anxiety to deprive their enemy of advantages which the preference of the neutrals might give to him, has been helped by the equal anxiety of neutrals to continue their habits of trade and interA code of rules has grown up affecting states in their new relations, but these have had no independent development; partly they are the accidental result of the immediate collision of interests of varying strength, and partly they represent a compromise between conflicting deductions from legal principles lying deep in the body of international usage. These principles, originally the formal expression of existing facts, have in time become so established as course. |
