CHAPTER FIFTH.

INSUFFICIENCY OF PRESENT MODES OF REDRESS.

THERE are some persons, agreeing with us in the belief of existing evils, and that much remains to be done, who nevertheless profess themselves to be satisfied with the means of improvement already in operation. It will be the object of this Chapter briefly to show, that the existing methods of redress, from which they anticipate a gradual but sure and complete remedy of national evils, are not sufficient.

I,One of the means, to which we now allude, are treatises on the Law of nations. Much credit is undoubtedly due to the authors of these treatises. With a commendable regard for the rights and happiness of their fellowmen, they have displayed a great compass of thought, and the rich treasures of learning. The subject itself is one of the highest interest; and the manner of treating it has often corresponded to the dignity and interest of the subject. They have explored the grounds of obligation in man himself; they have gone upward, and have studied the intimations and counsels of his Creator; and have thence deduced principles, applicable to the government both of individuals and of great communities. We venerate the men and their efforts; we cheerfully render them the homage of sincere admiration and grat

itude; but while we readily admit, that they have done immense good, we can never be persuaded, that they have met in all respects the wants of mankind, or that the results of their labors have corresponded even to their own intentions. Nor could we rationally expect, that it would be otherwise. The subject of international law is too vast to be settled by a single individual, however great his genius and learning. It requires no ordinary degree of foresight and discretion to institute properly a mere municipal code; and there can be no doubt, that the difficulties, attending the establishment of an international one, are far greater. And if the accomplishment of a work so vast were within the compass of any one man's ability, we are still to recollect, that these writers are not left solely to the guidance of their own minds, to the original instinctive sentiment of justice; but are trammelled in their decisions by prescription, by the practice of nations, whose usages have been frequently controlled by the pressure of interest, rather than the dictates of rectitude. But whatever may be the cause, there can be no doubt as to the fact. The ex positions, which have already been given in the Second Part of this Work on contested and obscure principles of the public Code, sufficiently show, that these attempts are not commensurate with the object; and that the law of nations, as it is laid down in professed writers on that law, partially fails, at least, to satisfy the doubts, and to control the conduct of nations.

II,—Nor can we rely fully and satisfactorily for an exposition of the law of nations, and for a remedy of the evils hitherto attending the intercourse of nations, on the decisions of Admiralty Courts. Their position, considered as the expounders of a law applicable to the citizens of other nations, as well as their own, is in some respects an unfavorable one. Taking it for granted that the

judges of those Courts are in general men of great uprightness and learning, still it would be unreasonable to expect, that they would always escape every bias, incident to their peculiar situation. And even if this were the case, are their decisions always to be held conclusive?In the celebrated case of the Swedish Convoy, decided in England in June 1799, Sir William Scott makes a declaration to this effect, that though the seat of judicial authority is in England, the law itself has no locality; and that he is under obligation to decide in London, the same as he would do in Stockholm. Allowing due weight to these assertions, it is still abundantly obvious from the general spirit of this celebrated decision, which went to establish the illegality of certain doctrines in relation to neutral rights maintained by Russia, Denmark and Sweden, that he felt too as an Englishman; that he was not insensible, and could not be insensible to the perilous situation of his suffering country; and that these feelings tended to strengthen his confidence in the opinions he asserted, and to enhance his contempt for "those loose doctrines, which modern fancy, under the various denominations of philanthropy and philosophy, have thrown upon the world."* These last are his own expressions, and when we consider, that they were used as applicable to a principle, which had been recognized by some respectable writers on national law, by the treaties of a number of highly respectable nations, and by an armed neutrality, they are of themselves enough to justify us in what we have intimated of the unfavorable position of an admiralty Judge to a just arbitration on international rights.

We are desirous, however, not to be misunderstood on this subject. We presume, as a general statement, that these courts are incompetent to make the law of

*Robinson's Admiralty Reports, Case of the Maria.

themselves, but we do not deny, that they may throw light on its obscure places. There is an antecedent standard of law and rectitude, which is obligatory on them; but their intimations and reasonings on questions of abstract right, which their situation permits them occasionally to offer, may lay the foundation of future changes. No one hesitates to yield them the credit of great learning and of a prevalent disposition to do strict justice, but it is no heresy to disclaim their infallibility. We do not doubt their honor; but we cannot shut our eyes to the weakness of human nature and the force of contingent circumstances. We recognize in their decisions the voice of their own nation and their own people; but we do not so readily admit their claim to the character of spokesmen and expositors for the whole world. And no one can doubt the possibility of maritime tribunals, with all their ordinary characteristics of learning, honor and justice, being arrayed, not only in opposition to the existing claims and opinions of other nations, but equally in opposition to undoubted law and justice.

As this subject is one of some delicacy, and on which there may undoubtedly be a difference of sentiment, we think it proper to introduce here the opinion of the late William Pinkney, and to support ourselves by such a highly respected authority. "If it shall once be admitted, that an Admiralty sentence must be received as just, however it may be in fact, there is no species of depredation, to which neutrals may not be subjected. · The memoirs of France and the placarts of Holland may be revived and executed in their utmost rigor without the danger of reprisals; since, if confirmed by Admiralty sentences, their effects are not to be murmured against. Constructive blockades may be set up without limit, for admiralty sentences can legalize them. I do not mean to intimate, that such would be the conduct of this or any

other government in particular. It is enough that such may be, (although we know that such has been,) the conduct of maritime states; and I am at liberty to argue against a principle from its possible pernicious consequen

ces.

* * *

Heretofore it has been supposed, that this sort of conduct found its only warrant in physical power; but the new principle, that Admiralty sentences can justify every thing by an ex post facto purification, will, if it shall be adopted, place it upon the basis of moral right; or, in other words, it is a contrivance to make the law of nations uphold and justify the violation of its own rules. “A neutral nation has a perfect right to have the claims of its citizens in matters of prize decided according to the law of nations, let the instructions of the government be what they may but this right never has been and never will be regarded by maritime jurisdictions, whatever we may be told to the contrary. It follows, that the rights of neutrals are often sacrificed; but, being sacrificed by admiralty sentences, acting upon the instructions of the government, there can be no remedy for the neutrals, if these sentences, though notoriously founded on instructions at variance with the law of nations, are to be conclusively presumed to be in exact conformity to that law." *

III,

We may add further, that an efficient means of remedying the evils, of which we complain, is not to be found in treaties. It is well understood, that treaties have always had great weight in defining and settling the principles of international justice. Martens, in speaking of the positive law of nations, where he has occasion to refer to Puffendorf, Glafey, Vattel and others, states explicitly and expressly, that "these writers made it a study to illustrate their subject by examples and observations taken from the history of modern times; that they *Pinkney's Opinions before Commissioners acting under the treaty of 1794.