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that part of the Annual Register for 1802, which contains the debate alluded to, and he does not find, that lord Grenville there ascribes to treaties, any greater effect, than what has been already admitted. The following seem to be the only passages of the debate, which bear upon the point. « One of the first articles,” observed lord Grenville, namely, of the convention with Russia, “would, from its wording, secure the free conveyance of the colonial produce of the enemy, on the ground of its being the acquired property of neutrals. Although this appeared to be only conceded to Russia, yet Sweden and Denmark would derive the same power, if that was made the basis of a general treaty; and in their hands, the privilege would be essentially injurious to this country." In reply, the Lord Chancellor stated, “ This was a treaty concluded with Russia separately; and it was not to be supposed, that all other neutral nations were to come under this arrangement. Sweden, Denmark, Holland, and America, were no parties to it; and could not insist on any of the stipulations of it.”
From the preceding considerations, we are led to conclude, that in endeavouring to ascertain how any particular point has been determined by the law of nations, we should proceed in the following order. In the first place, we should, especially if it be a peculiar, or unusual point, inquire, whether it has been embraced by any particular treaty between the nations, and whether that treaty be still in force. And so far, we agree with von Klüber, that, as in the international private law of a state, we look first into the statutes or
legislative enactments, so in international law, we should ascertain the import and application of the treaties, or express conventions, which may have been concluded between the nations, before examining the common law on the subject, as founded on equitable principle and established usage ; because the latter, however well founded otherwise, may have been departed from, or superseded by, the former. In the second place, we should, on the point in question, consult the general juridical relations of nations, arising from their nature and situation as such, especially as simply and directly adopted, or as varied, or modified by long established practice in the intercourse of states. And in this latter inquiry, and as a record of the rules of international law, which have been recognised in the practice of nations, whether flowing directly from their nature and situation as such, or without being so prescribed by nature, have been adopted and sanctioned by custom from views of general convenience and expediency, we are chiefly to consult the judicial determinations of international courts, and the writings of eminent jurists of all nations, who have illustrated the subject. Indeed, as in the internal private law of a state or jurisprudence, the common law is in general, superior to the statute law in extent of legal view, so in international law, perhaps, the best part in detail is to be found in the judicial determinations of the international courts established by independent nations, and in the ordinances founded thereon, and writings of lawyers, illustrative thereof. For, although such judicial determinations and ordinances may occasionally have been infringements of the true and genuine law of nations, the judgments of such courts have in later times been guided by generally recognised principles of impartiality and equity, and freedom from national bias, and are likely to be so, still more in future. Indeed, it may be doubted whether the decisions of those international courts should not be viewed as a distinct source of international law. They are more authoritative, than the treatises of private individuals, who are frequently subject to the influence of biases, not merely national, but personal, from individual interest.
The decisions, too, of such courts, especially where the judgments of the inferior are liable to be corrected by those of higher tribunals of appeal, if they do not form a distinct source of international law, are a most satisfactory mode by which the usages of nations are recorded, established or rejected ; and if impartial, in a manner constitute a part of international law; while mere conventional treaties, usually made in particular circumstances, for particular purposes, are frequently deviations from that general law. At all events, the judgments of these tribunals, distinctly ascertain the practice of each independent state in the administration of international law; and as well as ordinances, orders in council, and other such government regulations, establish that law, upon the principle of reciprocity, if not in favour of, at least against the states, by whose tribunals they are pronounced.
IIISTORICAL REVIEW OF THE PRINCIPAL MORE RECENT CLASSIFICATIONS OF THE COMPONENT PARTS
OF INTERNATIONAL LAW.