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by the experience in the colonies, and the Constitution will last as long as it answers the needs of its framers, and no longer. To understand, however, the Constitution, English customs and usages must be studied, and to predict the lines of development we must interpret the language of the Constitution in the light of its origin, as well as in the concrete case under investigation. It is the same with law. Law is not imposed as a system upon the people. Isolated usage develops into habit; the habit becomes crystallized into custom; and to custom there is given, consciously and unconsciously, the force of law.
The common law of England is not due to the wisdom of any one person or of any one age. It grew to meet a need; it changed with that need, and disappeared when it could no longer subserve a useful purpose. It is a growth, an organism, not a crystallization.
When, however, the process of development did not keep abreast of the age, or when new and unsuspected needs required special treatment, statutes made their appearance to supply the lack or to correct the evil. The statute would be special if a special point were involved. The statute would be general in its terms if the evil to be corrected were general, or the need of the statute was of a general, widespread nature. The more rapid the development of the country, the greater and more diversified become the needs of an enterprising and progressive community, and consequently the more frequent would be and must be the resort to statutory enactments, in order to safeguard the rights and interests created as the result of changed conditions. Hence, it follows that a system of law in its early stages springs directly out of the needs of the people. If the needs be simple, the law, of which custom is the very life, is simple. It is said to be unwritten in the sense that no custom is at once the law and the evidence, although in process of time the customs are naturally reduced to writing by people learned in customary law, and it is given precision by decrees of courts of justice. Complex situations give rise to a complex system of law, and the natural development of custom not being sufficient, the legislature steps in by statute to accelerate the development and to give to the system of law the precision, the solidity, and the refinement necessary for a complicated and progressive civilization. In this development, then, we have the local usage, the custom, and the statute.
If we turn from the common law to international law, we find
that the course of development of the common law of nations has been singularly like that of the common law of England.
We first have the usages of enlightened nations. These usages spread, gain weight and influence by repeated application. We next find that the usages have taken on the form of custom, and nations from isolated or frequent usage regard the custom as binding upon them. That which is claimed as a right on the one side becomes a duty on the other, for right and duty are correlative. The demand in itself is a consent to the rule of law. The yielding to the demand is an acknowledgment of the rightfulness of the custom.
We thence have customary rules and regulations binding nations in their mutual intercourse, because the nations, either by enforcing the custom or yielding to the custom sought to be enforced, have given to the custom the weight of law. But just as the common law of England grew slowly, indeed imperceptibly, so have the usages of nations developed slowly and imperceptibly. When nations had little intercourse with one another, the need for a system of law regulating such relations was of little moment. As nations have grown, as they have come into closer contact, as no nation lives and can live in the modern world in a state of isolation, it necessarily follows that the usages and customs of nations must be developed in order adequately to meet changed conditions. The independence of the state is the very postulate of international law; but the solidarity of interest has made itself felt to such a degree that nations have yielded and must in the future yield something of their absolute liberty and independence, just as a citizen yields his absolute freedom for the benefit of society, of which he is a part.
We see, then, from this brief and imperfect sketch of the origin and nature of the common law of one particular jurisdiction, an analogy between the common law of nations, namely, the usage and customs of many nations. We find, or at least we can assume, that when only one nation existed, there could be no international law; two nations existing would have comparatively little intercourse and the rules and regulations governing their intercourse would, therefore, be simple. As the two gave place to the many, and as intercourse became very frequent, the need of a more elaborate code would become evident. Usage and custom would grow to meet the need, and in the course of time, insensibly and imperceptibly, usage and custom would take the dimensions of a code. But while that is
entirely true generally, it is true with much greater force in the present and, indeed, in the immediate past; for the discovery of the new world, North and South America, and the contest for the possession of this world; the establishment of colonies with the various colonial systems, and the conflicts of interest that necessarily arose, would require a system of law adequate to settle them; and when nations became more closely connected, more intimately and frequently involved, it followed that the simplicity of the earlier usages and customs would either give place to a more complicated code or would themselves be developed in order to meet the growing needs.
Now, how could this be done? In this way. As nations became more closely united or related, previous usage or custom was found to be inadequate; but the spirit pervading the usage or custom was discovered and developed, precisely as the spirit in the common law was developed in order to meet a changed condition of affairs. Just as in appropriate cases the municipal legislature stepped in and corrected an abuse or covered a field by statute, conferences were held between rulers, treaties were negotiated to regulate a specific concrete controversy, and finally congresses, usually not at the beginning but at the end of the controversy, composed of many states, because the interests of many were concerned, were convened in order that that might remain settled in peace which had been established in war. The conference or congress is, it would seem, not far removed from an international legislature, whose acts are submitted ad referendum to the participating nations.
We therefore find that treaties mark the first general step in the development of the law of nations as between nations in recent years, for it is only in the modern world that treaties have gone far to correct inequality and to establish a system of international relations. The special or individual treaties will be comparatively simple in the principles of law announced or defined - although complicated in other respects. When the many were involved, a congress or conference came naturally into being, with the result that in this conference the questions causing the conflict would be considered and regulated, in the hope to prevent a recurrence of the conflict. The conferences and congresses were at the conclusion of a dispute. The appeal was indeed to reason, but it was unfortunately belated. Interesting examples of the post-mortem appeal to reason are furnished by the Treaty of Westphalia (1648), the Congress of Vienna (1814
1815), the Congress of Paris (1856), the Congress of Berlin (1878). The Treaty of Westphalia was negotiated by representatives of the states engaged in the Thirty Years' War and the state of affairs established was hoped to be durable.
Passing over the conference and treaties concluding the wars of Louis XIV – of which the various treaties of Utrecht of 17131714 were the most important and far reaching in detail as well as in principle — we come to the Congress of Vienna, which attempted, by a rigid and thorough application of the principle of legitimacy, to reconstruct Europe upon permanent lines after the crash of the French Revolution and the downfall of Napoleon. The great powers agreed among themselves and legislated for the rest of Europe. The work, therefore, was largely political, but as all were concerned all were present or bound by the determinations of the congress. It was preëminently a war conference, but it established peace - a peace which lasted for many years. At the same time its deliberations took the form of a general statute concerning river navigation, the rank of ambassadors, and the slave trade. Criticise the Congress of Vienna as we may, its work was not only of fundamental importance, but pointed the way to a better and brighter day.
Although it can not be denied that the Congress of Paris in 1856 was a war conference, its work was not wholly taken up with the issues of war. The Declaration of Paris, for example, was much more general and touched interests which, while involved in the conflict, were of wider importance than the immediate interests that led to the war or were safeguarded by the conclusion of peace. It is also true that the Congress of Berlin, in 1878, was a war congress, but it dealt particularly and largely with the Balkan Peninsula and set up a state of affairs which, while changed in part, is nevertheless the basis of order in Eastern Europe.
But alongside of these larger gatherings there were smaller meetings that have profoundly influenced the future. For example, an enthusiast in Switzerland interested countries in the treatment of sick and wounded, and produced the first Geneva Convention of 1864 -- the Red Cross Convention, as we call it -- to ameliorate the condition of the sick and wounded upon the field of battle. The convention did not come at the very end of a war; it was assembled by reason of the horrors of the war of 1859, between France and Italy against Austria. In 1868, the additional articles of the Convention
of Geneva were drawn up in conference, and there was no immediate war that had caused the conference to assemble. The purport of these articles was to apply to naval warfare the principles of the Geneva Convention of 1864.
In 1868, the Czar of Russia, Alexander II, called a conference in order to consider whether or not the means of warfare might not be humanized; whether the use of certain instruments in warfare, or instruments of a certain kind, should be prohibited; whether bullets of a certain weight, of a certain explosive quality, should not be prohibited, and there was drawn up the Declaration of St. Petersburg. It is true that the declaration contemplated but was not preceded by a war.
The conference that met in Brussels in 1874 upon the invitation of the Czar, and which drew up a project of an International Declaration Concerning the Laws and Customs of War was not immediately preceded by a war, and although the project was not adopted by the powers represented, it was nevertheless the basis of the “Convention dealing with the laws and customs of war” framed by the First Hague Peace Conference. The Brussels Conference undertook the codification of the laws of war and in so far it can not be considered a peace conference - but it furnished the precious precedent of an international statute.
The various congresses and conferences referred to were summoned by the rulers and nations of Europe, and both in their calling and in their results indicated an advance in public opinion. Public opinion, however, was not content to intrust itself wholly to nations and their rulers, but sought expression in individual and coöperative lines.
In 1873, the Institute of International Law was established at Brussels, composed of distinguished jurists and authorities on international law. Their purpose was not merely to study the problems of international law, but to advance the science by an appeal to reason. They considered the field of international law from the standpoint of theory and sought by example and precept to aid the codification of a rational system of international law. International law had thus a society whose proceedings should appear annually. It already had a journal, for in 1869 three enthusiasts, Rolin-Jaequemyns, Asser, and Westlake, established the Revue de Droit International et de Législation Comparée. The Institute met annually