Lapas attēli
PDF
ePub

her one of international policy; and Poland abandoned was crushed. So, also, in 1870, the neutral powers endeavored in vain to use their good offices in the Franco-German difference. Prussia declared she would not suffer any one to interfere in her duel with France; and France isolated was dismembered. But for secondary questions which do not touch the existence of nations (we have seen a proof in the questions of the Alabama, which at other times would inevitably have brought on a war between England and America, but was settled by means of international arbitration) arbitration can usefully be had recourse to. The practice, even in a limited degree, of a principle of justice has the happy effect of accustoming men to submit their passions to a moral rule. Everything which in international differences tends to substitute public debates for secret intrigues, and the decrees of reason for those of brutal force, ought to be encouraged by humanity.

If individuals more and more rarely take the law into their own hands, we must hope that, with the progress of civilization, free nations will less and less have recourse to the cannon as their chief argument. In the same way that wars have ceased between the towns of the same province, and between the provinces of the same nation, they will cease some day between the nations of the same continent, and between the continents of the same universe.

law of nations," composed of eminent persons of various countries, in proportions roughly corresponding to the populations of several countries. The functions of such an institute he defines as follows:

"Le but assigne a l'Academie serait de servir d'organe a l'opinion scientifique impartiale du monde civilise en matiere de droit des gens, soit en formulant, lorsque l'occasion s'en presente, des regles generales du droit des gens, soit en emettant un avis impartial sur des questions particulieres." (P. 43.)

This project has the concurrence of Dr. Bluntschli and other eminent persons. Several distinguished jurists have expressed approval also of the proposal of Mr. Miles. It seems to be agreed that the proposed conference could have no official character. Nor would it be, in any sense, representative. It would be simply a voluntary assemblage, composed either of all who might choose to attend it, or of certain persons selfchosen, with others invited by them. The proposed “institute" would have exactly the same character. It would not be made representative, by allotting to each country a certain number of places, since the persons who might be invited or chosen by the body itself to fill those places would be in no way authorized to represent the countries to which they respectively belonged.

But we must not lose from sight that the just condition of an An association of this kind, were it to take upon itself to international code is the existence of independent nations, and pronounce judgments on particular questions which have arisen that consequently it is necessary that where they have been sub- between one State and another, would expose itself to be jugated they should be freed, and where they have been blotted treated as an assemblage of impertinent meddlers. Sovereign out of the map they should be replaced. An international jury, States are not disposed to submit themselves, in matters which really worthy of the name, can rightly discharge its duties concern national interests, to the dictation of private persons; only when the majority of its members is composed from nations and they would not be more inclined to do so if the private perfounded upon the only principles of justice, and who, raising sons were to assume to speak in a collective character, and their hands to Heaven, can swear that they have not in their arrogate to themselves authority as the "organ of the imparpossession that which belongs to their neighbor. Otherwise, tial scientific opinion of the civilized world." In truth, judgwhat would happen? Every congress composed for the greater ments so given would not really be entitled to any such authorpart of States interested in perpetuating injustice by which ity. They would be pronounced always without that sense of they profited, would be inclined, from its very nature, to con- definite responsibility which is created by a competent and stitute itself a coalition against the liberties of the human regular authorization, and almost always upon imperfect knowlrace; as the congress of Vienna did against France and the edge, since, in international disputes, it rarely-very rarely— world in 1815, and the congress of Laybach and of Verona happens that all the facts are completely known to the public. against Naples and Spain, in 1821 and 1823.

As to a declaration of fundamental principles of International Law, I do not see that it is necessary or expedient. The fundamental principles of International Law are known. They rest on the general consent of nations. To declare new principles not already known, and not consecrated by general consent, would not be within the competence of any voluntary assemblage of private individuals, however eminent.

It would evidently be an advantage for the future, to have a league of publicists and orators, of deputies and journalists of the two worlds, who agreed upon the principle that the free suffrage of the nation was the only legitimate basis of territorial annexation, just as the national will is the only legitimate basis of national institutions, shall incessantly condemn the spirit of conquest, and preach, in every circumstance, the pracThe proposal for a "codfication" of international law retice of the same duties between nations as between individuals; quires somewhat more examination. M. Rolin Jacquemyns, shall help, by the pressure of public opinion, to cause every without absolutely rejecting, sees great difficulties in it; and just cause to prevail; and if a conflict cannot have been so do I. avoided, shall at least put in a clear light on which side the right is.

This may be a powerful means for hastening the coming of that day, which will cast its light on the constitution of the United States, of Europe, and the brotherhood of all the people XII.

of the earth.

RIGHT HON. MONTAGUE BERNARD.

The law of nations consists of a few simple principles which concern the general international relations of States, and of a number (not very considerable) of particular rules of action in of nations. What cannot be shown to be so settled is not international affairs. These are settled by the general consent international law. There are, however, many questions on which difference of opinion exists among individual jurists, or many jurists of different nations. It is debated sometimes (One of H. M.'s Negotiators of the Treaty of Washington, 1871.) whether an alleged rule or principle has, or has not, obtained I have had the honer to receive from Mr. James B. Miles, of general assent; sometimes, whether a rule or principle, which Boston, U. S., a paper asking my opinion on the question has not been so recognized in the past, ought not to be recogwhether it would be desirable to convene a "Senate or Insti- nized in the future. The former of these is a question of fact, tute" of publicists and jurists of different nations, with a view or of reasoning from admitted facts; the latter is purely a to the elaboration of an International Code, to which, when question of expediency, dependent on the common interests framed, they would give the positive authority of law." Such a code, it is suggested, would probably be accepted by the governments of all civilized countries, as having been prepared by the best living authorities.

I have also been honored by M. Rolin Jacquemyns, of Ghent, with some inquiries on a similiar subject. Mr. Rolin Jacquemyns proposes a conference of jurists and others, convened by special invitation, with a view to two objects :1. To draw a solemn declaration of certain "fundamental principles of International Law."

2. To organize a permanent "academy, or institute, of the

of all nations, and also on the particular interests of each nation, for each nation is entitled to refuse to accept any new rule which it holds to be prejudicial to its own essential interests, as the United States have refused to pledge themselves to abandon the right of employing privateers.

[ocr errors][merged small]

Further, since the body itself would not be representative, its recommendations could carry (apart from their intrinsic reasonableness) no other weight than such as they might derive from the names and reputation of the persons who might join in them. And, with respect to this, it may be observed that eminence as a jurist is not enough to constitute a man a competent judge of the interests which may be affected by the adoption of a new rule of international law. It does not even secure his being impartial-as those who are familiar with the literature of this subject must be very well aware.

tect. I dismiss, therefore, altogether, that idea.

Applying ourselves, therefore, to the consideration of that which is at present feasible, I think the idea of codifying that body of opinion and practice which goes by the name of International Law is not capable of being realized. It would extend these remarks too far to set forth all the reasons which lead me to that conclusion. I will state one objection which appears to me conclusive. I see no means of getting together any corporate authority which would have the right or the power to undertake such a task. Governments are either too timid or too prudent to embark in a discussion of which they cannot see the It is again to be observed that, even should a project or sug-end, or the results upon interests which it is their duty to progested code of international law be recommended unanimously by the members of the proposed association, or by any consid- The suggestion that, without official authority, the publicists erable number of them, the adoption of such a project en bloc by of civilized States should constitute themselves into congress, the governments of the civilized world would be highly improb- either temporary or permanent, for the purpose of ascertaining able. The effect of such adoption, by a declaration or other and defining the principles of the Law of Nations is, at first international act, would be to convert the whole mass of rules sight, plausible and attractive. But here again we are met by and definitions contained in the proposed Code into matter of practical difficulties in the execution of such a scheme. Who express treaty obligation, so that no government could recede is to convene such a body, and how are its members to be sefrom any of them (though afterward found defective or erron-lected? If it is to be open to all, indiscriminately, it would be eous in substance or expression) without a breach of faith. I unworkable from its magnitude, and nothing but confusion could doubt whether any government in the world would be willing be the result. But, if it is to be limited, who is to decide on the to run this risk. And I should not be without apprehension principle of selection? lest such a proceeding might raise, in the future, more questions and disputes than it would prevent.

These considerations seem to lead to the following conclu

sions:

The proper business of the proposed association would be the the free discussion of practical questions of importance.

It should not assume or claim moral authority as an organ of impartial opinion, at least until time and experience had shown that it really possessed that character. It should scrupulously refrain from arrogating to itself authority to pronounce judgment on international controversies. It should not, as I think, attempt to frame and enunciate on matters of international conclusions arrived at by majority of votes as the collective judgments of an organized body.

To begin by attempting what has been called a "Codification of International Law," would not, I think, be wise. The prospect of useful results would be greater if the association were to be content, in the first instance, at least, with more modest aims. For my part, indeed, I do not anticipate advantage from efforts to reduce all the maxims of conduct recognized among States to the form of short propositions, expressed with the cision of municipal law. Laws, in the strict sense of the term, they cannot be, until all the States of Europe and America are content to resign a large part of their independence into the hands of a central power.

pre

It is, however, a perfectly legitimate question, whether any thing (and how much) might usefully be attempted in this direction; and such a question might, I dare say, be discussed with advantage. (Signed)

The world would be jointly parties of a self-constituted body, which should assume to pronounce on matters which involved the highest interests of States. This authority would certainly be questioned, probably ridiculed, inevitably disregarded by those who were disposed to depart from its conclusions.

Can, then, nothing be done? I am very unwilling to accept so hopeless a conclusion. International Law being what it is, viz., the public opinion of nations with reference to the rules which ought to govern their conduct each toward the other, is necessarily of a complex and a somewhat fluctuating character.

It is, and always must be, in a state of growth; and, like all things that grow, it must in many of its parts he incomplete,

and therefore uncertain.

Parts of it are accepted and established; other parts are changing and passing away; others, again, are inchoate and growing.

To ascertain by careful investigation what portions of that body of law and practice belong to either head would, I think, be a possible work; and, if so, then undoubtedly one of great value.

The misfortune is that publicists are not as yet, by any means, agreed on the principles of such a classification. To come to some understanding upon such points would be a great step in advance. According to my estimate, at least, of the present state of European opinion, an attempt to attain a harmony or concord in a commentary of this sort would not be at present practicable. But, happily, in England and the United States, there exists a broad basis for common thought and common action. The English and American mind on such subjects has been formed in a common mould. They are hardly less allied in modes of thought than they are in race and in blood. They derive from a common intellectual ancestry of juridical descent. The points of difference of opinion between the Anglo-Saxon international jurists on either side of the Atlantic are singularly few. It, therefore, seems to me a (Memorandum on MR. MILES' proposal for a conference of jurists of various thing not impracticable, that the students of International Law nations, with a view to the better settlement of the principles and prac-in England and America should arrive at some common under

28th March, 1873.

XIII.

MONTAGUE BErnard.

MEMORANDUM FROM VERNON HARCOURT.

tice of International Law.)

I have carefully considered the important proposals which

Mr. Miles has done me the honor to submit to me.

I cordially concur in the great and beneficent object to which those proposals are directed, viz.: The promotion of a greater concord of opinion among States with regard to their relative rights and duties, which may tend to obviate, in the future, a recourse to the brutal arbitration of the sword.

This is a matter, however, which must be regarded not only from a moral and judicial aspect, but also in its political relations. We must not assume mankind to be wiser or better than they are, and practical action must be limited by counterclaims of practical possibilities. We do not live in the republic of Plato, and we must conform our conduct to the existing condition of things, if we desire to effect something as statesmen, and not to be disregarded as Utopians.

standing. If these two countries, bound together by the com

mon interests that belong to great maritime and commercial view of their matters, a great advance would have been States, could present to Europe a combined and harmonious made.

Would it not be possible, that a certain number of English and American jurists who might be willing to co-operate in dition of International Law on the principal heads, especially such a work might meet together and examine the actual conthose which relate to a state of war? They might agree to report what appeared to be settled and what to be uncertain. They would start from the basis of what exists, rather than indulge in loose speculations as to what ought to be-a course, however, which must not preclude the indications of desirable amendments. When they found agreement impracticable, they

(Continued on page 70.)

[ocr errors]

THE ADVOCATE OF PEACE.

BOSTON, SEPTEMBER, 1873.

THE PROPOSED MEETING AT BRUSSELS. We cheerfully yield our editorial column in this paper to our distinguished and beloved friend, Prof. Frederic Passy of Paris. We could not wish to present to our readers a more eloquent and earnest appeal for their sympathy and co-operation in the great movement in which we are now engaged, than this communication, from one of the ablest and most earnest champions of the peace cause in Europe. We, also, give below the letter to Mr. Visschers to which he refers, and Mr. Visschers' noble reply, and also the "Invitation" which has been sent to eminent Publicists, to convene at Brussels on the 28th of October, next.

Mr. Passy's letter is as follows:

TO REV. DR. MILES.

Paris, June 13th, 1873. DEAR FRIEND: I had just written you and was about to send you my letter, when I received from Mr. Visschers information of that which you and Mr. Burritt wrote to him in regard to the meeting of the Senate of Jurists, whose formation you desire at Brussels, in the course of the summer. The excellent Mr. Visschers informed me at the same time, of the steps which he had taken, of their good result, and of the alacrity with which Mr. Laveleye had placed himself at his disposal in all things which would aid the enterprise. Mr. Laveleye has just published an important book upon the question.

Having held a meeting of our Peace Society for consultation, I have read the letter of Mr. Visschers and your communication. They listened to the reading with great interest. We were glad to see the promptness with which you have acted upon the principles dwelt upon in your address to us some months ago; and I have been asked to transmit immediately to you as well as to Mr. Visschers the thanks of all, and the assurance of our cordial sympathy. We do not feel that the meetting at Brussels of this august assembly which is to be convoked, will succeed in putting an end to all conflicts between nations, but it seems to us impossible not to acknowledge, in view of all the facts, a movement so marked and so earnest that the blindest can no longer refuse to take notice of it.

Our fellow countryman, Mr. Chas. Lucas, is engaged in presenting before the academy of Moral and Political Sciences his communication in favor of arbitration and the codification of international law. Mr. Laveleye, whose articles in the "Revue des Deux Mondes" (Review of both worlds), have given him great influence as a publicist, has written a special work upon the causes of war in Europe, the conclusions of which agree entirely with our own.

The meetings which you have suggested, adding to all these indications the evidence of the sympathies of America, will be of great effect. It will be something more, it will be the beginning of realization, and in this regard we feel that we owe a special gratitude to your countrymen, the great jurists Woolsey and others for the example which they give to the world in taking the initiative in these gatherings. No doubt the men honored by their invitation, will appreciate such a distinction, and the sight of this voluntary Congress of learned men gathered solely in the interests of humanity and without any other authority than that of science and public opinion, will be a great and new spectacle.

essary to recognize them in legislation and politics. Honor to you then, dear friend; honor to your country, which is to show once more that liberty, far from being a cause of decay, as many wish to believe, is the real agent of progress, moral as well as material.

Farewell dear friend, but not for long, let us hope. (Signed)

Hon. Auguste Visschers, Brussels:

PASSY.

8

DEAR SIR. You are fully advised of the wish and effort of the friends of peace in Europe and America to convene senate of jurists, well-known to the world for their learning and experience, for the purpose of elaborating an international code, as a permanent provision and basis for the adjustment of difficulties between nations at the bar of reason, justice, and equity, instead of the arbitrament of war. No one can remember with more satisfaction than yourself that the elaboration of such a code, and the creation of a high court of nations to apply it to the solution of serious questions arising between them, was one of the three measures advocated and adopted at the first Peace Congress ever held on the Continent of Europe, in 1848, and over which you had the illustrations and eternal honor to preside with a dignity, ability, and preception of its importance which all its surviving members will ever remember with great interest. At that congress, and at all that have followed it, you were aware that an international code and a high court of nations were regarded as the culminating and decisive measures for organizing permanent and universal peace. This great proposition, then and there developed under your presidency, you must rejoice equally with us to see has so impressed itself upon the best-thinking minds of Europe and America that the most eminent men in Christendom are willing and ready to cooperate in realizing this great consummation of reason, justice, and humanity. The place of meeting for such a senate of jurists is the first question to be decided. We had hoped that the honor of the locale would be accorded to the United States, where the initiation or partial inception of an international code was provided in the Washington Treaty and the Court of Arbitration it created. But, on personal consultation with eminent jurists and statesmen in Europe, we have found that it would be more onerous and difficult for them to meet at New York or Boston than it would be for our three or four members of the senate to meet them at some European capital. Several of them in advance have suggested Belgium as the most fitting country for the meeting. And we fully concur in this opinion. As the measure which the senate is to elaborate was first proposed and pressed upon the Governments and people formally at the Peace Congress at Brussels, and as it is to some degree the offspring of that congress, it seems to us most fitting that this great consummation should be perfected in your beautiful city. We believe that no one could better perceive and enjoy such a happy coincidence than yourself, who sustain such a paternal relation to the measure as President of the congress that first commended it to the consideration of the world. All the surviving members of that congress, especially, would be profoundly gratified if you would obtain the same generous and hearty welcome to this proposed senate meeting to consummate the great work inaugurated under your presidency in 1848.

The senate of jurists which it is proposed to convene will probably not number more than thirty of the most eminent publicists and writers on international law in Christendom, perhaps three from each of the principal nations. Thus a hall of quite moderate dimensions would suffice for their sessions. In order to save time, which would otherwise be lost in correspondence, we propose that three or four of our most eminent publicists, such as President Woolsey, David Dudley Field, and Beach Lawrence, should sign and send a letter of invitation to thirty or forty of the most eminent publicists in Europe, asking them to meet the American delegation at Brussels, if your city should be willing to receive them. Both of us and a few other friends of the cause would propose to be at Brussels a few weeks before the assembling of the senate to assist in the preparations.

Now will you kindly confer with the proper authorities or When before this international areopagus principles shall parties in Brussels, and communicate to us, as soon as convenhave been laid down as the expression of the conscience and ient, your answer to this proposition? For we wish to fix the wisdom of the world, I do not think it will be possible to treat locale of the meeting before inviting the attendance of the pubthese principles lightly, and little by little it will become nec-licists who, we hope, will constitute the senate.

[blocks in formation]

BRUSSELS, June 6, 1873. DEAR AND HONORED SIRS: I have received your important communication of the past month. I feel deeply, and all the world will appreciate, the honor which the International Code Committee has done to Belgium in choosing its capital as the seat for the projected reunion of eminent publicists and statesmen for the preparation of a code of international law.

Without losing time, I put myself in communication with our Burgomaster, who at once put at your disposal the halls of .our ancient and venerable Hotel de Ville. I also visited our

principal Ministers of State, and in particular our Minister of Justice, who has charged me to express to you his entire sympathy with the work you have in view, and which is a movement that will elicit the admiration of posterity.

I have also written to M. Lavelye and Rolin Jacquemyns. 1 have seen here several of our friends. In conformity with your wishes a Committee of Preparation will be formed, which will meet at my house. I will follow all your instructions, and take into consideratiou all the points indicated in your letter of the twentieth of May. My services are at your disposal; nevertheless I have no longer the vigor of the President of the Congress of 1848. I feel very much honored by your communication, and the mandate you have confided to me, and I present my respects to all the members of your honorable body. I send a special remembrance to Elihu Burritt, and beg the two honorable Secretaries to accept the expression of my affectionate and sincerely devoted sentiments. AUGUSTE VISSCHERS.

To James B. Miles and Elihu Burritt, Secretaries of the American International Code Committee.

SIR: At a meeting held in New York, on the 15th of May, the undersigned were appointed a Committee to invite Publicists from different Nations, to meet at a time and place tó be agreed upon, for consultation upon the best method of preparing an international code, and the most promising means of procuring its adoption. The resolutions passed were as follows:

[blocks in formation]

OUR CHIEF WANT NOW.

The secular and religious press has of late done ample justice to the Peace cause, for which they have our thanks. The Watchman and Reflector, besides other excellent articles in regard to our work, has an editorial (July 17) particularly noteworthy. We commend it to our readers and quote a sentence or two. "The efforts of the Peace Societies for the last half century illustrate the words of Christ: The kingdom of God cometh not with observation.' It will have little notice from wordly eyes during the long preparation epoch; until suddenly the kingdom is set up. We do not say that the reign of peace is here just yet, but we do say that the time for sneering Samaritans to ask,What do these feeble Jews?' has gone by. The Peace movement now stands out grand movement of the age."

as the

Resolved, That we have heard with great satisfaction the Rev. Dr. Miles' account of his Mission to Europe in behalf of inter- With such encouragement as the recent facts warrant, and national justice, and that we express our cordial conviction of as is now conceded by the press generally, we need only inthe wisdom of the principles and the reasonableness of the form our friends that our great and imperative want is the plans which he has communicated to us. Resolved, That the movements of affairs, the studies of means of the vigorous prosecution of our work generally, thoughtful men, and the tendencies of public opinion call for a particularly the promotion of the International Peace Congress new and earnest consideration of the usages and laws of nations especially in regard to war, and for a new international code especially in respect to arbitration.

Resolved, That in the opinion of this meeting the establishment of an international code, containing among its provisions the recognition of arbitration as the means of settling international disputes, is an object of the highest interest and impor

tance.

Resolved, That with a view to the formation of such a code, it isexpedient that a meeting should be called for consultation upon the best method of preparing it, and the most promising means of procuring its adoption.

Resolved, That such a meeting be held at a time and place to be hereafter agreed upon, to which publicists from different nations shall be invited, and that a committee of five be ap: pointed to act for this country in the issuing of invitations, and in making arrangements for the meeting, which committee shall have power to add to their number.

Resolved, That David Dudley Field, LL. D., Theodore Dwight Woolsey, D.D., LL.D., Emory Washburn, LL.D., William Beach Lawrence, LL.D., and the Rev. James B. Miles, D.D., be such committee.

In pursuance of these resolutions, we have the honor to invite

and

to meet in Europe this autumn. The entire work lags for want of money, and only for want of money, now. The field is all ripe for the reapers, and we have not the means to avail ourselves as we ought of the crop. A few individuals have nobly responded to our earnest call, as the receipts published in the late numbers of the ADVOCATE testify, but as yet our means are entirely inadequate. Since the last number of the ADVOCATE appeared, one old friend has sent his check for $300, and others for smaller sums, and we most earnestly request all our friends to send at once what they can afford as a special offering of gratitude for the wonderful openings of the present. Please do not wait for any other invitation than this. The Secretaries are doing what they can personally, but it will be a great saving of time and expense if those who wish well to the cause will respond to this call. We are thankful for any sum that any one can afford, and beg to say to those of large means that we cannot conceive of a cause more deserving and needing larger donations at the present time.

Donations may be sent to the Treasurer, or either of the Secretaries, at the office of the American Peace Society, No 1 Somerset street, Boston.

D. C. HAYNES, Financial Secretary.

70

(Continued from page 67.)

recommendation of delegates, as men of character and learning, would endeavor, in the candid and amicable spirit of scientific is the very utmost letter of credit which they should bear from in the slightest degree bound or represented by the votes of its inquiry, to work and measure the extent of disagreement. Such their State, and it should be clearly understood that no State is a society might, without any pretension to authority, and with The place is simply a question of convenience, I should myout attempting either to codify or to legislate, prepare a useful delegates. commentary on the principal heads of International Law whose parts of the continent and lying on the ordinary route between value would resemble that which belongs to a text-book pre-self be much in favor of London as easily accessible from most pared in a considerate and impartial spirit. America and Europe.

It would have the advantage of bringing to its conclusions the concurrence of many minds, and the conformity of opinion of the publicists of two nations who have always been largely occupied with the subject. I need not say that such a work should be undertaken in no controversial spirit, and there should be no attempt to coerce the opinion of the minority by a majority. When difference of opinion existed, that difference should be fairly admitted and exhibited.

If England and America could present to Europe a view of this subject, on the whole harmonious, I think the first step in the desired direction would be virtually established.

XIV.

PROF. CLARK OF CAMBRIDGE, ENGLAND, TO DR. MILES. 23 ROSE CRESCENT, March 29, 1873.

MY DEAR SIR:-You have paid me the compliment of asking me for my answer to certain questions, upon the proposed convention of a senate of jurists, with the object of forming an "International Code."

If I may be allowed to answer generally, I think I can convey my opinion more correctly than if I merely gave separate replies to your first two questions. I have thought that an association of eminent international jurists might be of great use for the purpose of determining what is really the consensus of nations upon the debated points In settling this in the system called "International Law." question they would merely be giving their decision upon a matter of fact, but would speak with an authority likely to be respected from their study of the subject, and from their professional reputation, which any incorrectness would jeopardize.

Whether the previous practice of nations required modification-whether a change of public opinion required positive recognition, or even a new view inculcation is a matter of opinion, which would, I think, most advantageously come within the consideration of your senate, but should be kept most distinctly Most, if separate from the matter of fact mentioned above. not all, the attempts at a Code which I have hitherto seen are vitiated, from first to last, by the confusion between what actually is the practice and feeling of nations, with what ought, in the opinion of the author, to be International Law; and I am not at all sure that even the use of the term "Code" might not convey a prejudice to the minds of many practical men arising from the common fault just mentioned, unless accompanied by a clear statement of the functions of your senate, and of the intention to keep matter of fact and matter of opinion apart. The evolution of a number of detailed rules from a few abstract principles would merely, in my opinion, add to the discredit with which any system of International Law is looked upon by a large number of thinking people.

Subject to the above remarks, I consider the convention of I think it such a senate as you propose highly desirable. should be held with the view of forming a permanent body, to meet periodically in the place most conveniently situated for the majority of members.

Such meetings would, I think, be of use for the recognition of any general change in public feeling, statements of which would be deliberately scrutinized, and cautiously accepted by known authorities with a reputation at stake.

At present, public feeling on International Law, as on other matters, is often only declared and guided by journalists, who, allowing them the best possible intentions, only write for a temporary object, and without the full knowledge possessed by men who bring special study to bear upon the subject.

From what I have said on the first question, it will be clear that my opinion is decidedly in favor of the professional rather than the official character of such a senate as you propose. A

I would gladly serve on such a senate, only remarking that my attendance at the first meeting is a little problematical, it the place be at any great distance in Europe, and impossible, Believe me to remain, dear sir, very faithfully yours, E. C. CLARK, I regret to say, if it be in America. Regius Professor of Civil Law, Cambridge

XV.

MR. WESTLAKE TO DR. MILES.

2 NEW SQUARE, LINCOLN'S INN,
LONDON, W. C., April 7, 1873.

}

MY DEAR SIR-I will now, as I promised, give a formal I believe that answer to your note, on an International Code. the attempt to make a complete code would fail, through the a collection of laws, national or international, calling itself a extent of disagreement which it would reveal. For instance, code, but omitting the laws of contract, would be a jest. Now, the law of contract, must provide, among other things, for the binding force of contracts as the general rule, for the definition of the cases which are exceptions to that rule, and for the mode in which relief is to be applied in those cases, course for it, to some, and if so, to what, authority, or may that is, whether the party who claims the relief must have reapply the relief to his own case by simply declaring that he is not bound by a particular contract into which he has entered. But, if you will reflect on the recent denunciation by Russia of the ences of opinion which were then shown to exist, not only Black sea clauses of the treaty of Paris, for the wide differamong governments, but even among eminent and thoughtful to the right of Russia, if they were not binding, to denounce men, both as to the binding character of those clauses, and as them at the time and in the manner chosen by her, I am satisor fifty jurists and publicists, whom you contemplate, arrive fied that you will agree with me that neither could the thirty at some tolerable unanimity on the international law of contract (supposing, of course, that they did not evade the difficulties by confining themselves to trivial generalities, utterly without practical use), nor would their work have much chance of being adopted by governments, if they could.

The example which I have chosen is the more suited to our present purpose, in that the adoption of an international code by governments would itself be a case of contract on the largest scale, and any uncertainty which the Code might leave about the international law of contract would, therefore, be an uncertainty as to the very basis of its own authority. If a national code, which omitted the law of contract, would be a jest, an international code which did so would be doubly a jest.

But you have so warmly welcomed M. Rolin Jacquemyns' down certain fundamental principles of international law, and project of a conference of jurists, for the purpose of laying establishing a permanent body or academy for its study, that it the proposal contained in your own note, but should also say is due to you that I should not merely express my opinion of what efforts, other than drafting a code, I think that the leading international lawyers may usefully make in combination you and M. Rolin Jacquemyns, as to think that such efforts for the improvement of that science. I so far agree, both with may and ought to be made; and, in order to explain my views a copy of my reply to M. Rolin Jacquemyns' memorandum, on the subject in the fullest manner possible, I enclose herewith which I have addressed to him under yesterday's date. Believe me, my dear sir.

The Rev. JAMES B. MILES,

Yours very truly,

Boston, Mass., V. S. A.

J. WESTLAKE,

« iepriekšējāTurpināt »