CHAPTER V. SECOND COMPONENT PART OR BRANCH OF INTERNATIONAL LAW, USUALLY CALLED THE CONVENTIONAL LAW OF NATIONS. CHAPTER V. SECOND COMPONENT PART OR BRANCH OF INTERNATIONAL LAW, USUALLY CALLED THE CONVENTIONAL LAW OF NATIONS. HAVING endeavoured to illustrate the basis, nature, distinctive character, and development of the first great component part or branch of the law of nations-namely, general, common, consuetudinary, international law, and noticed its evidence or records, we now proceed to the other great constituent part or branch of the law of nations—namely, particular conventional international law, established by public treaties between two or more states. And it seems to have been contended, that the doctrine we propounded in our first article, in tracing the third source of international law, is exceptionable, inasmuch as, if it does not deny the existence, it does not correctly estimate the value, narrows the limits, and does not recognise all the effects of conventional law. A simple perusal of what is stated, in tracing the third source of international law, is sufficient to show that, instead of denying the existence, we recognise the validity and great utility, occasionally, of the conventional law of nations. But the other objections it may be proper to examine and discuss more minutely and profoundly. And in doing so, it may be proper to consider the juridical nature of contracts between individuals, as recognised and enforced in the internal law of states, or private civil law, as well as between independent states, usually denominated public treaties; noticing, particularly, the limits in point of duration, and the legal effects, or consequences, of such private contracts and public treaties. In this way, we may probably find, we shall be able to show that we have done ample justice to conventional international law, and that various modern jurists have gone too far in holding it to have, or involve, a legislative force beyond the consent of parties, and to afford evidence or proof of a sort of general consuetudinary international law, which it does not by any means prove, but in reality usually disproves, by showing it is itself an exception from the general rule previously followed in practice. To begin with private contracts in the internal jurisprudence of states, it is not, perhaps, altogether clear whether the rule pacta sunt servanda, which is the foundation of all such contracts among individuals in civil life, as well as of all international treaties, although apparently long recognised as such, be really a first truth, and not resolvable into a more simple element. Some jurists hold, that contracts are legally binding, because each contracting party, by his promise or engagement, excites reasonable expectations of performance, and authorises the other party to make arrangements accordingly; therefore is not entitled to disappoint these expectations, and thereby occasion loss or damage to the other party— reparation or indemnification coming in the place of performance or fulfilment, when that has become impracticable. Other jurists hold that contracts are binding, because each involves the transference of a juridical power, or right, over external substances, moveable or immoveable, or over the actions of other persons, and invests the opposite contracting party with the power of exercising that right, or at least deprives the promiser or undertaker of any farther disposal of the powers so transferred or alienated. Other still later jurists, such as the German authors Krug and Hegel, hold "that as soon as the contract is completed—namely, the promise or engagement has been accepted-the twofold or double wills of the promiser or undertaker, and of the acceptor, grow or become one will, to which the parties, having power to do so, have subjected themselves as the rule of their future actions; which rule reason must recognise as valid, as long as the contract is unfulfilled-that is, until what has been promised be performed or executed.”* The philosopher Kant, while he does not approve of the deductions of the jurists prior to his time, rests the legal validity of contracts upon a postulate of practical reason; which, as Warnkoenig observes, † translated into common or ordinary language, means nothing else than that the interest of right or justice, and of the social life of men, requires absolutely, or indispensably, that contracts be declared legally obligatory. These views of different jurists certainly explain, some in a more, others in a less satisfactory mode, the grounds or reasons why contracts should be held legally binding, and physically enforced. But, as stated formerly, this inquiry seems scarcely necessary; for the * See Warnkoenig, "Rechts-philosophie," 1839, p. 374-379, $176. + Warnkoenig, p. 379. See also Austin's "Province of Jurisprudence determined," p. 365. |