that long and uninterrupted custom in favor of a rule makes it a part of the Common Law of nations, there is room for great divergence of opinion as to how long the custom must last in order to override previous custom to the contrary. The Declaration of Paris has received the formal adhesion of nearly all civilized powers; and therefore practice based upon it must be held to become law sooner than if it had to win its way without a great international agreement behind it. But whether the time that has elapsed since 1856 is long enough to give the consecration of usage to the rules adopted in the Declaration is a question on which no approach to unanimity can be expected. The best hope for the future is that it may cease to be a question at all, owing to the adoption of the Declaration by those powers which have hitherto declined to sign it, or the universal acceptance of some further modification of belligerent rights at sea. If treaties which really legislate are few, treaties which really declare the law are fewer. The conventions which embodied the principles of the Armed Neutralities of 1780 and 1800 purported to be declaratory; but in reality the major part of the rules stipulated for in them were well known to be inconsistent with established practice, and were introduced for the purpose of curtailing the belligerent rights of Great Britain. The "Three Rules" of the Treaty of Washington of 1871 were agreed upon between the contracting powers "as rules to be taken as applicable to the case" of the Alabama and her sister cruisers, and the arbitrators appointed under the treaty were instructed to be guided in their decision by them and the "principles of International Law not inconsistent therewith."2 The United States held that these rules were in force when the acts and omissions complained of took place, while the British Government placed on record a statement that it was unable to agree with this view, though for the sake of an amicable settlement it H 1 C. de Martens, Recueil, I., 193-194; II., 215–219. 2 Treaties of the United States, p 481. consented to be judged by the rules as if they had been part of International Law when the alleged offences were committed. Here then we have a case where one party to a treaty regarded an article in it as declaratory, while the other party held that it enunciated new rules. It is sometimes said that the Black Sea Conference of 1871 was declaring International Law when it enunciated the principle that no power can free itself from treaty engagements except with the consent of the other contracting powers.1 Declaratory this proposition undoubtedly is; but it is not declaratory of International Law. Whether we argue from general principles or derive our rule from the practice of states, it is certain that there is no place in the law of nations for the doctrine of the perpetuity of treaty obligations unless all the powers which created them agree to let them drop. The subject is difficult in any case; but its difficulties are enhanced when high-sounding principles with a strong ring of "natural equity" about them are imported into the discussion without due consideration of their far-reaching consequences. Should a treaty really declaratory, and declaratory of true law, be found to exist, it would undoubtedly bea source of International Law; for it would set forth for the first time in a clear and unmistakable manner a rule of universal application. The next class of treaties we have to consider are those which stipulate avowedly for a new rule or rules as between the contracting parties. They are signed by two or three states only, and are meant to establish in their mutual intercourse some principle of action not in general use. Thus they are evidence of what International Law is not, rather than of what it is; for if the rules they lay down had been embodied in it, there would have been no need of special stipulations in order to obtain the benefit of them. The Treaty of 1785 between the United States and Prussia, contains an agreement of the kind under consideration. By the 1 British State Papers, Protocols of London Conference, 1871, p. 7. thirteenth article the contracting powers declared that in case one was at war while the other was at peace, the belligerent would not confiscate contraband goods carried by a vessel of the neutral, but would be content to detain them instead.1 The Common Law of nations gives the right of confiscation, as the negotiators on both sides well knew. And because they knew it, they entered into stipulations to override the ordinary rule and substitute for it one which they preferred. It is clear that treaties of this kind are not sources of International Law. Only in one case can they become so, and that is when the new rule first introduced by one of them works so well in practice that other states adopt it. If they take it up one by one till all observe it, the first treaty in which it appears is its Source, though a long interval of time may separate its original appearance from its final triumph. An instance of this is to be found in the history of the famous rule, Free ships, free goods. The first treaty between Christian powers which contains it was negotiated between Spain and the Netherlands in 1650;2 and is therefore its source, though the rule has been obliged to wait till our own day before it has received such general acceptance as to make it part and parcel of the public law of the civilized world. The last and most numerous class of treaties are those which contain no rules of international conduct, but simply settle the matters in dispute between the parties to them. The great majority of diplomatic instruments belong to this class, for as a rule when states come to negotiate they are far more intent upon getting rid of present difficulties than laying down rules and doctrines for the future. Compromise is the order of the day, and what is expedient at the moment is adopted without much thought of its relation to general principles. It is obvious that treaties negotiated in this spirit do not affect International Law at all, and are not intended to do so. 1 Treaties of the United States, p. 903. 2 Dumont, Corps Diplomatique, Vol. VI., Pt. I., p. 571. When we speak of treaties we must be understood to mean separate articles as well as entire documents. Most international instruments contain stipulations on more matters than one, and important treaties generally deal with a great variety of subjects. One of them may, therefore, afford examples of several of the classes given above. In going through them we have seen that both the extreme views of the British School and the extreme views of the Continental School fail to set forth certain aspects of the truth. Some treaties, but very few, are from the beginning Sources of Law. Some treaties, but very few, become after a greater or Less time Sources of Law. But the vast majority of treaties are valueless as evidence of what the law is, though they may be of the highest importance as creating new political arrangements or removing old subjects of contention. § 64. We now pass on to deal with The decisions of Prize Courts, International Conferences, and Arbitral Tribunals Courts, Interna and Arbitral Tri bunals. considered as sources of International Law. Prize Courts are tribunals set up by belligerent states for the purpose of Decisions of Prize deciding upon the validity of the captures made tional Conferences, by their cruisers. They are supposed to administer International Law, and they do so unless the properly constituted authorities of their own states order them to carry into effect instead rules inconsistent therewith. Such interferences are fortunately rare; and accordingly it happens that the decisions of Prize Courts are respected in proportion to the reputation for learning, ability, and impartiality enjoyed by their judges. Those who preside over these courts have to remember that International Law has no locality, and must strive to divest themselves of all prepossessions in favor of their own country. As one of 1 the most distinguished of them said, when trying a case in which the claims of Great Britain as a belligerent came into sharp conflict with the claims of Sweden as a neutral, “It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character." This high standard has not always been reached; but some of the great ornaments of the bench have attained to it, and by their legal acumen, joined with their undoubted impartiality, have enriched the literature of International Law with a series of profound judgments which are quoted with respect wherever competent scholars discuss the rights and duties of civilized states. The names of Story the American, Stowell the Englishman, and Portalis the Frenchman, will live as long as the law of nations endures. Most of the cases which come before Prize Courts require nothing more for their solution than the application of well-known and universally accepted rules; but occasionally a new point arises, and then the decision of a great judge may become a source of International Law. At the moment he does no more than determine the case before him; but the justice and reasonableness of the rules he lays down may lead to their acceptance by other courts and in other countries, and thus in time they become incorporated into International Law. When a highly trained intellect, after hearing and reading carefully sifted evidence and listening to the arguments of able counsel, applies recognized principles to new circumstances, the result is not unlikely to be a rule of practice which stands the test of time and proves to be of universal application. It was thus that the doctrine of continuous voyages was introduced into 1 Lord Stowell's Judgment in the case of the Maria; see Robinson, Admiralty Reports, I., 340. |