perfect in all these respects, there is one broad principle which applies to all treaties; and there can be little necessity to comment upon it, for it is contained in this almost self-evident maxim, that every nation is, at every period, bound to obey the conventional law as at that period it exists (1). Thus Lord Kenyon, in giving judgment in the case of Bird and Appleton (2), lays it down as an established proposition, that the judgments of the courts of admiralty are to proceed on the known jus gentium, or on the treaties between particular states; that such treaties do not alter the jus gentium with respect to the rest of the world; but, as between those particular states, they are considered as engrafted on the jus gentium. The conventional law must always be sought in the respective treaties out of which the immediate right or duty in question may arise. The inherent rights of nations, that is to say, the rights which they enjoy by the natural and voluntary law, cease, like those of individuals, only by their own consent or their own delinquency. By their own consent, expressed or implied, as by treaties, or by long acquiescence in customs; in which cases however the right revives on the lawful termination of the treaty, or on giving notice of an intention to be bound no longer by the custom. By their own delinquency, as by the commission of some injury to other states, which calls for atonement of a penal nature. In all these cases the cessation of a nation's rights takes place without injustice to the nation; in all other instances it becomes an indefensible outrage. Several rules of construction of treaties have been elaborately laid down (3); and in a learned opinion upon this subject, it has been well observed, that treaties being in their nature compacts superseding the common usage, which is, strictly speaking, the law of nations, by particular stipulations, are to be argued upon the footing of all obligations which arise from contract, expressed or tacit, whether quasi ex contractu, or necessarily implied by general words of comprehension; and the principles of the civil law de obligationibus, which is the law admitted by all nations in Europe, by most in their domestic and by all in national questions, must be allowed to arbitrate in deciding the validity, existence, and meaning of a public treaty, by the same rules and reasonings as when applied to any other contract of private life. (1) Marten's L. of Nat. 47. (2) 8 Term Rep. 567. (3) Vattel, L. Nat. 244-274. Words or characters are merely used to convey, by marks or sounds, the ideas of consent, and to preserve the memory of compacts: now the end thus being principally to be considered, and the means being regarded only as declarative of the end, if by any other means than by strict words a contract is implied, it is undoubtedly valid whenever there appears, from any acts or reasonable interpretations of signs, an acknowledged consent, and equitable foundations of contracting, these circumstances making the very substance of a contract (1). Therefore the rules of customary contracts between private individuals may in general be called in aid (2). However, in debating any question upon treaties arising between nation and nation, in the age we live in, it is necessary to keep in view the general state and con-` dition of the contracting powers, from whence the arguments of public law can only be drawn with any just decision (3). It has also been considered that a general commercial treaty, not limited by its terms to a particular time, is only suspended by a war, and that upon the return of peace it will tacitly revive by implication, unless there be an express declaration to the contrary (4). In the great case of Marryatt v. Wilson, upon the construction of the treaty between Great Britain and the United States, in error in the Exchequer Chamber, Eyre, Ch. J., after observing that a treaty should be construed liberally and consistent with the good faith which always distinguishes a great nation, said, that courts of law, although not the expounders of a treaty, yet when it is brought under their consideration incidentally, they must say how the treaty is to be understood between the parties to the action, and in doing which they have but one rule by which to govern themselves. We are to construe this treaty as we would construe any other instrument, publie or private; we are to collect from the nature of the subject, from the words and the context, the true intent and meaning of the contracting parties, whether they are A. and B., or happen to be two independent states. (5) With respect to the right of a nation to annul a treaty to which it was a party, it has been observed, that treaties of alliance, being nothing more than stipulations of mutual advantages between two communities in favor of each other, ought to be considered in the nature of a bargain; the conditions of which are always supposed to be equal, at least in the opinion of those who make it; he therefore who breaks his part of the contract destroys the equality or justice of it, and forfeits all pretence to those benefits which the other party hath stipulated in his favor (1). A treaty may be broken or determined by levying war, or by ambassador or herald (2); and in former times it was even considered that a general prohibition against the importation, from a state in amity, of any of her goods, amounted to a breach of a treaty. (3) In Great Britain, the sole power of making treaties, as well as of declaring war, is vested absolutely in the crown (4); though, as observed by Lord Hale, it always succeeds best when done by parliamentary advice (5); and by such treaty the private property or right of a subject may be bound: As if A. bound to B., a subject of England, during a war between this kingdom and Denmark, pays the debt to the king of Denmark by order of the state there; and by the article of peace, all monies paid by the subject of the one prince shall be quit by monies paid by the subject of the other, and the parties that paid to either of the king's orders, shall be discharged against the creditor; if B. sues for such debt, A. shall have relief in equity (6). But his majesty cannot by any treaty make his subjects liable to other punishments than what the laws of this kingdom do (7). All leagues, it is said, ought to be upon record, enrolled in chancery, whereby every one may know who are in amity or enmity with the king or not (8). The violation of a treaty agreeing to punish with extreme rigour such as, by colour of commissions (1) See Discourse on Conduct of Great Britain to Neutral Nations, in Hawkesbury Treaties, vol. 1. xxxi. (2) 4 Inst. 152. Com. Dig. Prerogative, B. 3. (3) 2 Rol. Ab. Prerogative of the King, M. 1. 5. Com. Dig. Prerogative, B. 3. (4) 7 Coke's Rep. 25 b. Com. Dig. Prerogative, B. 3, 4. 2 Chalmer, Collect. Op. 249. (5) Hal. Hist. P. C. 159. Bac. Ab. Prerogative, D. 4. (6) 1 Ch. Ca. 123. 173. Com. Dig. Prerogative, B. 3. (7) 2 Chalmer's Coll, Op. 337.. (8)4 Inst. 152. 9 Co. 31 a. Com. Dig. Prerogative, B. 3. from enemies to the allies, shall take arms against the king's peace and treaties proclaimed, and spoil the king's allies, has been considered not to be a levying of war against the king, and punishable by death, but that it is a crime against his majesty's treaties of peace, and the strict proclamation he hath pleased to set forth to enjoin the due observance of them; and it is also an offence against the law of nations; and by the civil law it is crimen læsæ majestatis; but by the law of England it is no more than a confederacy against his majesty's crown and dignity, and punishable by the statute for the trial of piracy (1). However, all offences contrary to amity or league are considered as a contempt of the king, an injury to the whole kingdom, and punishable as a high misdemeanor. (2) (1) 2 Chalmer's Col. Op. 329, 330. See Com. Dig. Prerogative, B. 3. (2) 2 Rol. Ab. Prerogative, M. p. 174. 1. 45. Com. Dig. Ambassador. Of the origin of the office of consuls. CHAP. III. Of Consuls. HAVING taken this general view of the law of nations affecting commerce, we will now proceed to inquire how the commerce of any country may be legally affected by the acts of a foreign state, whether during peace or war; and especially by the appointment of consuls. There are no acts by which the commerce of a country is more materially affected than by the public facilities which may be granted, or public obstacles which may be opposed, to the daily and practical course of business in foreign parts. And in order therefore, as far as possible, to advance such facilities and remove such obstacles, almost every nation has, in modern times, usually taken care to procure from the foreign states the permission of maintaining within the territories of each government a commissioner or agent for commercial affairs, termed a consul. The origin of the appointment of consuls has been ascribed to the necessity for extraordinary protection in some branches of commerce formerly carried on with barbarous and uncivilized nations; and it was not usual for the more civilized states to employ such commercial agents until about the end of the fifteenth or beginning of the sixteenth century (1). It appears to have been about the twelfth century that this office was first instituted; but the consuls of that time were not, as at present, commercial officers of one country residing in another, but were merely mercantile judges established at home. Muratori tells us, in his Italian antiquities of the middle age (2), that they were appointed in some of the most opulent states of that time, such as Pisa, Lucca, Genoa, and Venice; and it was in imitation of this domestic practice, that several powers of Europe afterwards began to stipulate, in their treaties with the pagan governments, for the liberty of maintaining consuls in the ports subject to those governments, in order to watch over the interests of their subjects trading there, and to judge and determine on differences arising amongst (1) 3 Smith's W. of Nat. 252. Evi, vol. 2. diss. 30. p. 881. 37. 89. |