Page images

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 consưetudinary 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 partyreparation 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

[ocr errors][merged small]

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,t 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.

rule pacta sunt servanda always appeared to us to be intuitively apprehended and instinctively felt—that is, to be equivalent to one of the first truths of Buffier, or as an ultimate fact, in our nature, to fall under the common sense of Dr Reid and of Professor Dugald Stewart, as correctly and profoundly expounded by Professor Sir William Hamilton, Bart., in his recent publication, which he calls the Philosophy of Common Sense; resting, in short, upon the same or a similar basis or foundation as our belief in the existence of the external world, and in the ordinary course of nature. And without aiming at any further simplification of the basis on which conventional international law reposes, we willingly recognise the legal principle of pacta sunt servanda, in its broadest sense and to its full extent, to be liberally construed as a Contractus bonce fidei, and as nearly, if not absolutely, co-ordinate with the legal principles, Neminem lædere, suum cuique tribuere.

As these observations, of course, do not aim at anything like a complete system, or theory, such as Dr Wheaton's work on international law, but are merely intended to correct some views which appear to us to be erroneous, but which seem of late years to have become more prevalent, and more extensively diffused on the Continent, we do not deem it necessary that in farther considering the juridical nature of contracts, either private or public, we should inquire into the mode or means by which they may be effectually entered into and concluded,—what are their general effects, or the rights and obligations thereby created,—and how they are terminated by fulfilment or otherwise. The only two points to which, on the present occasion, it may be proper to

[blocks in formation]

attend, seem to be the influence or effect which contracts may have on third parties, or persons not included in the contract, either as principals or by accession ; and whether a contract be an act of such a juridical nature as to become the foundation of a general or common consuetudinary law, and as to indicate by its frequent, longcontinued, and uniform repetition, a decided conviction in the mind of the people or nation that the rule which has thus been usually observed is the legal rule, resulting from the observed existing juridical relation, and therefore ought to be enforced.

Now, with regard to the first point, it does not appear to have ever been maintained in the private jurisprudence of states, that any person is bound by a contract, unless he has given his consent, either expressly, totidem verbis, or by acts clearly inferring such consent; or that any two persons can, by their contract, impose an obligation upon, or even bestow or establish a right or beneficial interest on, a third party, except in so far as they are concerned, and bind themselves. Any further investigation of this point, therefore, seems to be superfluous ; and it only remains to inquire, whether contracts, private or public, be of such a nature, in their character of acts, as to become the foundation and proof of a sort of vague and general, or common consuetudinary law. But to avoid repetitions, and to place the matter in a stronger light, by comparison or contrast, we shall delay the discussion of this point till we have considered a little more minutely the nature of public contracts, or treaties among nations.


Difficulties and Uncertainties in the Conventional Law

of Nations, as composed of Public Contracts or Treaties.


In the preceding observations we conceive we have done, as we are quite disposed and indeed bound in duty to do, ample and complete justice to conventional international law.

But while we have, both formerly and now, admitted the validity and operation, and great utility in many cases of conventional international law to its full legitimate extent, we must protest against any attempt to enlarge its boundaries in the manner which appears to us to be implied in or indicated by the vague and rather ambiguous language employed by Martens and Klüber. In this our apprehension—in the interpretation we have thus put upon the expressions just alluded to—we are assured by M. Ortolap we are quite mistaken ; and certainly that author, in the 5th chapter of his first volume, does not venture to lay down any other doctrine than what we maintain, namely, that treaties are binding only on those nations who consent and become parties to them, according to the sound and fair construction of their terms, for the specified or otherwise ascertained period of their endurance, and when not terminated by supervening circumstances and events. But, whether he is correct in the assurance he thus gives, and with what consistency he subsequently adheres to the general doctrine

« PreviousContinue »