For

regarded as forming a voluntary or positive Law 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 32" Mr. Madison's observations in the above passage are valuable, as they show that treaties may be operative in very different ways. 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.

Martens

§ 99. Mr. Reddie, in his Inquiries in International Views of Law 33, has suggested, that German writers generally, and others and particularly Martens and Klüber, have, in framing contrasted. 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 34 is considered by him to imply, that besides the obligation which

32 Madison's Examination of national Law, pp. 157, the British Doctrine, London,

1806, p. 39.

34

and 339.

Martens, Précis du Droit des Gens, Introduction, § 7. Klü

33 Reddie, Inquiries in Inter- ber, Droit des Gens, § 2.

Treaties impose upon the immediate parties to the 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 Schmalz 35, and by 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 pre-eminently 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 36" 36 Traité Complet de Diplomatie, T. I. p. 41.

35 Schmalz, Europäisches Völkerrecht, B. I. § 10. and § 28.

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.

view of the

Conven

Law.

§ 100. M. Ortolan in his work on the Diplomacy of Ortolan's the Sea 37, has combated Mr. Reddie's criticisms, and effects of has vindicated the doctrine of Martens and Klüber, conven from what he considers to be a misapprehension of its General 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

37

Règles Internationales et Diplomatie de la Mer, Tom. II. Appendice, p. 442.

Wheaton's

later views.

by a change of principles they have worked a change in the Law of Nations."

§ 101. Wheaton, in a similar manner, in the earlier earlier and editions of his Elements of International Law, seems to have been inclined to assign to treaties too important a part in the formation of General International Law. "The effect of Treaties and Conventions between Nations," he observes, "is not necessarily restricted, as Rutherforth has supposed, to those States which are direct parties to these compacts. They cannot, indeed, modify the original and preexisting International Law, to the disadvantage of those States which are not direct parties to the particular treaty in question. But if such a treaty (1) relaxes the rigour of the primitive Law of Nations in their favour, or (2) is merely declaratory of the preexisting Law, or (3) furnishes a more definite rule in cases where the practice of States has given rise to conflicting pretensions, the Conventional Law thus introduced is not only obligatory as between the contracting parties, but constitutes a rule to be observed by them to all the rest of the world 38. In support of this view, Wheaton refers to his History of the Law of Nations, and the remarks therein contained upon the Maritime Convention concluded in 1801 between Russia and Great Britain, which put the seal to the tween Rus- dissolution of the Second Armed Neutrality of the Great Bri- Baltic Powers 39

Conven.

tion of 1801 be

sia and

tain.

A difficulty at once suggests itself in the way of the first and third of Wheaton's positions, namely, that as International obligations are under the Common Law of Nations reciprocal, if a State under

38 Elements of International Law, third edition, Philadelphia, 1846, part I. c. 1. §. XVI. § 7.

So History of the Law of Nations, p. 14. § 9. pp. 408

420.

treaty-engagements with one Power, which come under either of those heads, is bound by the Common Law of Nations to observe the rule which accords with those treaty-engagements, not merely in its intercourse with that Power, but in its intercourse with all other Powers, those other Powers will be bound to reciprocate the rule, and they will thus be indirectly involved in engagements to which they are not consenting parties. This anomaly will be still more striking in the case, where the treaty-engagements are on a subject, "where the practice of different States has given rise to conflicting pretensions," and the States which are not parties to the treaties should be those which pursue a different practice from that, which the treaty has introduced between the contracting parties.

tion as to

band of

War.

§ 102. In regard to Wheaton's second position, the IllustraLaw of Contraband of War may be referred to by Contraway of illustrating his mode of applying the prin- wa ciple. By the third section of the third Article of the Convention of 1801, Great Britain and Russia agreed to the same definition of Contraband of War which had been agreed upon between the two Powers in the temporary Convention of 1797. Wheaton 40 observes that this section does not contain "the concession of any special privilege to be thenceforth enjoyed by the contracting parties only, but the recognition of an universal and preexisting right, which, as such, could not justly be refused to any other Independent State," and that "it must be taken as laying down a general rule for all further discussions with any power upon the subject of Military and Naval Stores, and as establishing a principle of law which was to decide universally on a just interpre40 History of the Law of Nations, p. 415, 416.