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FARTHER ILLUSTRATIONS OF THE CULTIVATION OF
PUBLIC INTERNATIONAL LAW.
It is rather singular that the English people, or that portion of the population who have been legislators, or who have practised the art or cultivated the science of law, while they made truly great and successful exertions for the establishment and improvement of their internal institutions, their public or constitutional law, and their private civil and criminal law for the administration of justice among individuals, should comparatively have paid so little attention to the Law of Nations, or what has been recently denominated International Law, embracing the external juridical relations, the reciprocal legal rights and obligations of separate independent states.
In their public or constitutional law, the English people appear to have hitherto excelled all the other nations of modern Europe ; and are justly entitled to be proud, especially in the present times, of their constitution, which, whether it be termed a limited monarchy or an aristocratic republic, exhibits a system of regulated liberty, reared on a popular basis, and firm in the steady attachment of the great body of the people ; and, though defective in many respects, as all human institutions have been, and seem destined to be, yet possessing in itself the means of correcting abuses, and of self-improvement.
Whether the English people have been equally successful in the formation of their criminal and private civil law, is perhaps a more doubtful question. Some eminently learned and able foreigners, who on other occasions have shown their impartiality and discernment, have remarked that England is “fière de ses vieilles coutumes, et dédaigneuse de toute forme étrangère ;” and with regard to English lawyers, that “ la loi n'est pour eux, qu'une profession.” But without stopping here to inquire whether there be any truth in such remarks, the great attention paid by the English people to their internal criminal law, and private civil jurisprudence, is sufficiently apparent from the voluminous statutes enacted from time to time by the legislature, and from the gradual formation of their now very extensive and complicated systems of common law and equity ; in the construction of which the English judges and lawyers adopted a different and perhaps more independent course than that pursued by the Continental nations, and rejecting, from an early period, (shall we say from the fifteenth century ?) the aid of Roman experience, as exhibited in the remains of the works of the unquestionably great lawyers of that wonderful people, resolved of themselves to evolve and deduce, from the juridical experience of the nation itself, the rules and principles of its internal jurisprudence.
To the devotion of such high talents and acute discernment, and of so much learning and industry to the formation, not merely of the constitutional law, but also of the systems of common law and equity, the omission and neglect of the English lawyers to cultivate international law, as a science, (as we shall see more fully in
FARTHER ILLUSTRATIONS OF.
the sequel,) forms a striking contrast. It does not appear that any systematic course of preparatory education was ever either provided by the state, or even required by Government, for the individuals who were to be employed to carry on the international and diplomatic agency and business of the English or British people. And to these causes, perhaps, are to be attributed, as consequences, the fact of England having had so few able negotiators, and the trite, though perhaps too true, observation, that Britain has frequently lost by the pen what she had gained by the sword; or lost, by her unskilful negotiation, advantages which she had fairly and honourably acquired in the course of her zealous exertions for the maintenance of the independence of nations, and in virtue of her military and naval skill and prowess : thus exhibiting an example of proud disinterestedness, not called for even as a moral or ethical duty, and not perhaps consistent with practical wisdom, or the general interests of mankind. *
In these circumstances we may again take a cursory view of international law generally,—noticing the mode of its cultivation, tracing its origin and development, and endeavouring to ascertain its basis and fundamental principles, contemplating it in its two great component parts
- common consuetudinary law, and conventional law, marking their characteristic and distinctive attributes. In these discussions we shall, of course, reject all legal fictions—all suppositions of social contracts, which never did, nor perhaps could, take place, and other such hypothetical theories; and we shall endeavour to proceed solely upon observation and experience, adhering to that
* What sacrifices were uselessly made by Great Britain at the general peace of 1815, such as the cession of Java to the Dutch !
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more fully in