Gambar halaman
PDF
ePub

PREFATORY OUTLINE

OY

THE PLAN OF THE AMERICAN DIPLOMATIC CODE.

The inconvenience of having our National Treaties and Conventions scattered tiirough a number of volumes and pamphlets, must be felt by all those, who, from official duty, inclination, or interest, are led to consult the stipulations of our Diplomatic Code. It has, therefore, occurred to the compiler, that a complete collection, methodically arranged, and accurately printed, would be extremely useful and convenient, in examining or adjusting Treaty Engagements, or in comparing the provisions of one Convention with another; which heretofore could only be investigated by reference to various sources, not always accessible to public men, on the pressure of the moment. In thus endeavouring to abridge the labour of research, the compiler believes he may have performed an acceptable service in the production of his Book of Treaties—a labour which our elevated rank in the family of Nations, and our extensive political and commercial intercourse, with various parts of the globe, evidently demands. In Great Britain, in France, and in most of the other

governments of Europe, great care has been taken to gather and to preserve, in a distinct and convenient form, collections of treaties, comprehending vast and valuable bodies of International Law,

[ocr errors]

of paramount utility to the Negotiator and the Statesman, and both curious and interesting to the learned.*

If we may judge from the bulk of the materials, composing these volumes, we have already reached that period of our national existence when a similar labour ought to be performed, not only for ourselves, but for the benefit of other independent

political societies, and of posterity.

In relation to the plan of this collection it was thought proper to arrange and print the Treaties of the United States, at large, under three distinct heads

First—The Treaties concluded between the United States, and the Nations of Europe, from 1778 to 1834 :

Second—The Treaties, Conventions, and Agreements, concluded with the Barbary Powers; and with the Ottoman Porte:

And Third, the Treaties concluded with Mexico, and the New Nations of South America.

In this classification, chronological order, with each power, has been preserved: for instance, commencing with France, (the first nation with whom we had diplomatic intercourse) all our treaties with that nation, from '78 to the present time, have been inserted in the order of their dates; and those with other governments follow.

In general, where treaties have been negotiated, in two languages, both are presented in opposite pages; not only for the satisfaction of those, who may find it necessary to consult a copy of the original, but also for the satisfaction of foreign ministers, who may prefer perusing these public instruments in that dress. It is important for another reason, to preserve both languages, in order that the reader may arrive at the literal meaning of doubtful stipulations, where difference

* See Note at the end of the introductory articles.

of opinion may arise “upon the construction* of the text of an article as it stands” Hence the judgment is left free, unbiassed, and independent of the trammels of translation. The plan, thus chalked out, has been pursued as far as the materials of the collection would admit.

Immediately accompanying the Treaties and Conventions such official documents are inserted in the body of the work, as have an intimate connexion with the subject : for example, the correspondence of the Emperor of Russia, on the St. Peters

*“ Treaties, conventions, agreements, are all public engagements, in regard to which there is but one, and the same right, and the same rules.

“ The promises, the conventions, all the private contracts of the sovereign, are naturally subject to the same rules as those of private persons. If there arises any difficulty on this account, it is equally conformable to prudence, to the delicacy of sen. timent that ought to be particularly conspicuous in a sovereign, and to the love of justice, to cause them to be decided by the tribunals of the state: this is the practice of all the states that are civilized and governed by laws.

“ In concessions, conventions, and treaties, in all contracts, as well as in the laws, it is impossible to foresee and point out all the particular cases that may arise : we appoint, we ordain, we agree upon certain things, and express them in a general view; and though the expressions of a treaty should be perfectly clear, plain, and determinate, the true interpretation would still consist, in making, in all the particular cases that present themselves, a just application of what has been decreed in a general manner. But this is not all, conjunctures vary and produce new kinds of cases, that cannot be brought within the terms of the treaty, or the law; but by inductions drawn from the general views of the contracting powers, or of the legislature. Contradictions, and inconsistences, either real or apparent, present themselves with respect to different articles; and the question is, to reconcile them, and to shew the part that ought to be taken.—Vattel.

Vide The case of his imperial Majesty's Award, under tho first article of the Treaty of Ghent.-Vol. I, p. 298.

See, also, the case of United States, v. Percheman.—7 Peters' R. 51, on the construction of the Treaty with Spain, in 1819—and

The Award of the King of the Netherlands, as Arbitrator under the Fifth Article of the Treaty of Ghent, on the subject of the N. E. Boundary.–Vol. I, p. 320.

burg Convention of the soth June, 1822—the decisions under the

12th July, fourth and sixth articles of the Treaty of Ghent, respecting the Boundary—the grants annulled by the Spanish Treaty of February 22, 1819. These official papers, among others, follow the respective Conventions to which they refer; so that they may be, at once, consulted, without turning to the pages in another part of the work.

In the collection of South American Treaties, concluded with the United States, will be found, the Conventional Law upon which we have founded our political intercourse with these new and rising nations.* The basis, upon which they were negotiated

The letter, promulgated by the Pope, granting to the Spanish crown, so large a portion of the American hemisphere, is worthy of notice-the compiler alludes to the Bull of Alexander VI., by which he gives to Ferdinand and Isabella, king and queen of Castile and Arragon, the New World discovered by Christopher Columbus :

“ Motu proprio, says the Pope, non ad vestram, vel alterius pro vobis super hoc “ nobis oblatæ petitionis instantiam, sed de nostra meraliberalitate, et ex certa scientia,

ac de apostolicæ potestatis plenitudine, omnes insulas et terras firmas, inventas, et “ inveniendas, detectas et detegendas versus occidentem et meridiem,” (drawing a line from one pole to the other, at an hundred leagues to the west of the Azores)“ auctori“ tate omnipotentis dei nobis in beato Petro concessa, ac vicariatus Jesu Christi, qua “ fungimur in terris, cum omnibus illarum dominiis, civitatibus, &c. vobis hæredibus.

que successoribus vestris Castellæ et Legionis regibus in perpetuum tenore præsen“ tim donamus, concedimus, assignamus, vosque et hæredes ac successores præfatos « illorum Dominos cum plena, libera et omnimoda potestate, auctoritate et jurisdictione “ facimus, constituimus et deputamus.” The Pope excepts only what might be in the possession of some other Christian prince, before the year 1493. As if he had the greatest right to give what belonged to nobody, and especially what was possessed by the American nations, he adds:-Ac quibuscunque personis cujuscunque dignitatis, " etiam imperialis et regalis, status, gradus, ordinis, vel conditionis sub excommuni“ cationis fatæ sententiæ pæna, quam eo ipso, si contra fecerint, incurrant, districtius “ inhibemus ne ad Insulas, et Terras Firmas inventas et inveniendas, detectas, et de“ tegendas, versus occidentem et meridiem-pro mercibus habendis, vel quavis ali a “ de causa accedere præsumant absque vestra, ac hæredum et successorum vestrorum

prædictorum licentia speciali, &c. Datum Romæ apud S. Petrum anno 1493, nonas “ Maji, Pontific nostri anno 1o.”—Leibnitii Codex Juris Gent, Diplomat., 203.

« SebelumnyaLanjutkan »