The Diplomatic Sci ence. blockaded port so far as concerns the interests and duties of neutrals 25." But in a matter of form which involved only a secondary question of International Right, the same eminent Jurist upheld the transfer of a ship which had been captured by an Algerine Cruiser, and subsequently sold bonâ fide to a Christian Merchant, although it was not established that the ship had been formally condemned by the sentence of a Prize tribunal. The Court presumed from the fact that the sale was authorized by the State, and as no remonstrance had been made against it by the owner of the vessel, that there had been adequate grounds for the confiscation of the vessel according to their notion for some breach of Treaty-Regulations, "as it is by the Law of Treaty only that these Nations hold themselves to be bound, conceiving (as some other people have foolishly imagined) that there is no other Law of Nations, but that which is derived from Positive Compact and Convention 26. § 89. The Conventional Law of Nations is sometimes spoken of as the Diplomatic branch of the Law of Nations, and Diplomacy, in accordance with this view, is the Science which is conversant with Negotiations and Treaties. This distinction has not been hitherto noted, and Diplomacy has been in general regarded merely as an Art. It must be admitted that the practice of Sovereigns in the selection of Diplomatic Envoys has given some colour to the prejudices of mankind against the very name of Diplomacy; and an able Diplomatist has come to be a proverbial designation for a skilful negotiator, who can bring about an arrangement quocunque modo in favour of the party whose interests he represents. 25 The Hurtige Hane, 3 Robinson's Reports, p. 325. But Diplomacy as a Science has higher ends in view, and the true art of the Diplomatist is shewn in easing the friction of International intercourse, and in smoothing the difficulties which may occasionally embarrass that intercourse, either by a candid interpretation of existing Treaty-engagements, or by negociating the adjustment of a fluctuating practice upon a sound basis of Conventional Law. For this purpose however, the Diplomatist requires not merely a technical knowledge of the general rules which govern the intercourse of Nations, but a perfect acquaintance with the principles involved in those rules, and which must be respected in the application of them; and it is indispensable for his success in administering the Law of Nations, that he should have mastered the elements of its Philosophy. of Nations. § 90. "Treaties," it has been well observed by an ConvenAmerican Statesman, "may be considered under tional Law several relations to the Law of Nations according to the several questions to be decided by them. They may be considered as simply repeating or affirming the General Law": they may be considered as making exceptions to the General Law, which are to be a particular Law to the parties themselves : they may be considered as explanatory of the Law of Nations on points where its meaning is otherwise obscure or unsettled, in which case they are first a Law between the parties themselves, and next a sanction to the General Law, according to the reasonableness of the explanation, and the number and character of the parties to it: lastly, treaties may be regarded as forming a voluntary or positive Law of 27 The preambles or recitals of the party who makes them. of Treaties furnish sometimes Edinburgh Review, LXXVII. p. valuable evidence in this respect, when they are against the interest PART I. 312. K Views of Nations. Whether the stipulations of a treaty are to be considered as an affirmance, or an exception, or an explanation, may sometimes appear upon the face of the treaty; sometimes being naked stipulations, their character must be determined by resorting to other evidences of the Law of Nations. In other words, the question concerning the Treaty must be decided by the Law, not the question concerning the Law by the Treaty 28." Mr. Madison's observations in the above passage are valuable, as they show that treaties may be operative in very different ways. For instance, the effect of a treaty, if it is of a restrictive character, must be limited to the parties between whom the compact is made; if on the other hand it should be of a beneficial character, and should relax the rigour of the customary Law in their mutual favour, its operation may extend to other Nations. But this indirect result will depend not upon the force of the Convention as a Contract, for that only binds the parties to it, but on certain considerations of Right (Jus) dehors the treaty; and which may involve the nicest questions of International Jurisprudence. § 91. Mr. Reddie, in his Inquiries in International and others Law, has suggested, that German writers generally, contrasted and particularly Martens and Klüber, have, in framing or constructing the science which they have denominated Droit des Gens Moderne de l'Europe, ascribed too much to express Conventions or Treaties, as sources of this Law. Their language is considered by him to imply, that besides the obligation which Treaties impose upon the immediate parties to the 28 Madison's Examination of national Law, pp. 157, and 339. the British Doctrine, London, 1806, p. 39. 30 30 Martens, Précis du Droit des Gens, Introduction, 7. Klü 29 Reddie, Inquiries in Inter- ber, Droit des Gens, § 2. contract, some more General Law may be gathered from them, resulting from a concurrent mode of contracting, which will be binding upon Nations which are not parties to the treaties. "It is obvious, however, that no Common or General Law of Nations can be derived from the particular Treaties or Conventions of Nations, however similar they may be. Those treaties can be used for the construction of the Science, only in order to ascertain what has been propounded or recognised in them as their basis, and that basis is nothing else than Custom or Usage." Such is the reply which is given by an opposite school of writers represented by the Prussian Privy Councillor Schmalz31, and the anonymous author of the Traité Complet de Diplomatie. The former writer observes that Leibnitz, whose Codex Diplomaticus may be regarded as the foundation of the Diplomatic Science," commenced his collection of treaties not with the idea that the contents of these treaties would supply a body of International Law, but because there would be found in them preeminently what principles the European Powers have recognised as right and just, or what they have pronounced or held to be so recognised, and to be unquestionable." The author of the Traité Complet de Diplomatie in a similar manner says, "Cependant il est évident, qu'on ne sauroit former un droit positif de l'ensemble des Conventions particulières des peuples, quelque semblables qu'elles fussent. Ces pactes ne peuvent servir de matériaux pour édifier la science, s'ils ne montrent ce que l'on y a reconnu pour base; et cette base n'est autre chose, que la coutume 32" 31 Schmalz, Europaïsches Völkerrecht. B. I. § 10. and § 28. 32 Traité Complet de Diplomatie. T. I. p. 41. Ortolan's view of the Conven tions on General Law. The difference is important between these two schools of Jurists. The former regard the principles as commending themselves to our acceptance by reason of their recognition in the treaties; the latter consider the treaties to demand our respect, so far as they furnish evidence of a very general and long prevailing usage. § 92. M. Ortolan in his work on the Diplomacy of effects of the Sea 33, has combated Mr. Reddie's criticisms, and has vindicated the doctrine of Martens and Klüber, from what he considers to be a misapprehension of its true import. M. Ortolan holds that those eminent publicists did not pretend that the stipulations of a particular treaty could be a rule binding upon any but the parties to it, but that a series of treaties concluded at different epochs between different civilised Nations, exhibited an uniformity of principle in their stipulations, from which a theory of what is generally practised amongst Nations may be formed by abstraction, and this theory constitutes the Conventional Law of Nations. M. Ortolan then proceeds to cite a passage from one of the authors criticised by Mr. Reddie, in which it is contended that "the principle which is established in the greatest number of treaties ought to be regarded as the rule, and that which is found in the least number as the exception. That the question in dispute ought to be decided according to the principle contained in the greatest number of treaties, particularly if the greatest number are at the same time the most recent. For it may be inferred from this circumstance, that Nations have gradually abandoned an old principle for a new principle, and that 33 Règles Internationales et Diplomatie de la Mer, Tom. II. Appendice, p. 442. |