entirely fatal. The unanimous consent of nations, in the actual state of the world, to such a proposal, is—as any one will be convinced who reflects a moment upon their political relations, or will but cast his eye over a map of Europe-entirely out of the question; and the refusal of a single great power to acquiesce in it would alone render it abortive. This is not matter of speculation; it is what has actually occurred in one of the most important departments of international law. The House is aware that Great-Britain maintains doctrines in reference to the maritime rights of belligerents, which were formally disavowed and denounced, during the war of our Revolution, by almost all the leading powers of Europe, banded together to resist the enforcement of them in practice. On some of the points involved in the declaration of the armed neutrality, our own prize courts have followed, perhaps too implicitly, those of England; but on others-for example, the rule, as it is called, of '56-they have adhered to the law, as explained by that famous league. And yet, against the concurring opinions of all the rest of the civilized world, and in spite of the bloody wars to which the exercise of her pretended rights have led, and may yet lead, GreatBritain maintains her principles, irreconcileable as they are with the practice of nations in analogous cases on land, and indeed. with all modern ideas of civilized warfare; and even interposes her overruling influence to prevent any of the minor states of Europe from adopting, for their own convenience, provisions inconsistent with those principles, in treaties professedly confined to the parties making them. What declaration of a congress constituted as the one in question would be, can be expected to have, by the mere weight of its authority, more effect on the opinions and the conduct of mankind, than that of such a formidable coalition as the armed neutrality?

Had England not engrossed the empire of the seas for about a century past, it is scarcely possible to doubt but that the law of maritime captures would have been made to correspond more strictly with the analogies of war on land, and private property been held as sacred in the one case as in the other. It is worthy of notice that, at the congress of Utrecht, before her ascendant was established, that power was an advocate of the rights of neutrals. She is now their worst enemy; and her resistance presents an obstacle, for the present at least, quite insuperable to any reform in this particular; just as the refusal of either France, or Austria, or Russia, &c., would be fatal to the project of the memorialists. Such is the preponderance of these powers in the balance of Europe, so peculiar and so various their interests, so many changes will be necessary in most of them to bring their institutions into harmony with the levelling spirit of the age, and so to make it all safe for them to submit to any arbiter but force,

that it were chimerical to expect their co-operation in any plan to dispense with it altogether. When Henry IV. conceived his project of perpetual peace, he did not look for the countenance or consent of the then predominant house of Austria. On the contrary, his first object was to overcome the resistance which he expected from that quarter. His grand scheme of pacification was founded on as vast a one of preparatory war and revolution. That house was to be reduced; its power broken; its territories partitioned. This was evidently an indispensable prerequisite, and his was too practical a mind not to perceive it. The committee will add here, what will be found to illustrate another proposition advanced in this report, that his project assumed a still more important alteration in the interests and relations of mankind. It reconstituted Europe on an entirely new basis. He would have built up a balance of power on something like an equality of territory. He would have dealt with that continent as an ancient lawgiver-a Moses or Lycurguswould have dealt with the soil of a particular country, distributing it on agrarian principles, in order that his new constitution of society should have something solid to rest upon in the nature of things. In this respect, too, as the committee will presently endeavor to show, he evinced a practical wisdom far above such a dream as that of a revolution in the whole conduct of nations, to be effected by a mere declaration of abstract princiciples on paper or parchment.

And this leads to the second objection, which is that, even if the consent of all the great powers (supposing their present relations towards one another to remain precisely as they are) could be obtained to such an experiment, there seems to your committee to be no reason for anticipating any good result from either of the expedients recommended by the memorialists.

First with regard to a code of international law. Nothing, in the opinion of your committee, is more fallacious than the idea that mere positive legislation, when not preceded or accompanied by conquest or revolution, has ever had a very important agency in human affairs. This proposition, they are aware, may seem paradoxical at a period when so much is said about written codes and constitutions; but it is fully established by experience, even were it not, as it is, sufficiently clear a priori. The most renowned systems of legislation have been the slow work of time, modified in some degree, and improved by an enlightened, experimental wisdom, taking advantage of circumstances, rather than aspiring to control them. Even when reduced to the form of codes, they have done a little more, when they have done any good at all, than record with precision and clothe in solemn form the opinions, usages, and manners of a people, with such limited modifications of them as have been just alluded to.

The committee will not trouble the House with the elaborate development to which the importance of this great and fundamental truth would, on a proper occasion, so fully entitle it; nor by citing examples which it would be easy to multiply, to confirm and illustrate it. But there is one of these too often mentioned to be overlooked, too striking to be slighted, and yet in general so little understood as to require a statement of the precise truth in regard to it; they mean the Justinian collection, which is habitually cited as an instance of written law, properly so called, that is, of law arbitrarily prescribed by the supreme, power in the state; yet every civilian knows that the great bulk and body of the corpus juris civilis is strictly common law, the law, namely, of opinion, of interpretation, and of practice. The Pandects are, from beginning to end, nothing but a repository of the wisdom of the great jurisconsults of a better age, delivered to the public in the shape of treatises, institutes, and maxims, or in that of consultations or opinions solving questions of practical jurisprudence.

But if this be true even of the law of property and contract, (meum and tuum,) it is obviously still more applicable to public law, in both its great branches, the constitutional and the international, but especially the latter. As to constitutions, the experience of the last half century supersedes the necessity of saying a word about their total inefficacy where a people is not ripe for them; or, in other words, where they are arbitrarily made for a people. Such an instrument is a mere deception, not worth the parchment on which it is engrossed. None but the most visionary minds can now have any faith in the mysteries--once held in such reverence-of written forms. Our own government has been absurdly cited as an example of the kind. It is, as the House is aware, a remarkable instance of the very reverse. Its two prominent characteristics, its two vital principles as a Federal republic-the popular representation in one branch of the Legislature, the equality of voices in the other-are founded on facts, of which the existence is quite independent of all constitutions, and which may be considered as primordial in this country. The States were as free, even as republican, before the Revolution, as they are now; they were, at the same time, independent communities, connected, indeed, by many ties, especially by geographical position and by their common relation to the mother country, but still distinct and independent of each other. It might have been predicted with confidence that no government could be formed which should not reconcile, as far as possible, both these facts. Washington, for example, as is very apparent from his correspondence, as well as from his conduct, had, with that sound good sense, and large, comprehensive, and practical wisdom so characteristic of him, a clear perception of this truth. VOL. I.-46

362

ARBITREMENT OF NATIONAL DISPUTES.

The form of the legislative assembly, composed of two Houses, was the established one of the country-a part of its common law and hereditary liberties, and those of the whole English race but how were those Houses to be constituted? Here was

a new question, and the only new question; and yet the solution of it, in the very manner in which it was solved, was inevitable. No one can imagine that on any merely theoretical principles the State of Virginia could have been brought then, or the State of New-York could be brought now, for the first time, to consent that her immense numerical superiority should be neutralized in the equal vote of the Senate. So far, however, from being the strange anomaly which a foreigner might imagine it, it is the most natural thing in the world; so far from being an arbitrary institution, it is, so to express it, a corollary flowing out of our whole history; instead of being the creature of the constitution, it was its necessary, indispensable condition. Nor is it merely because it is recognized in that constitution, and clothed by it with a peculiar sanctity, that it maintains its place there; it rests on more solid ground-on public opinion. The spirit which produced it is still in all its pristine vigor; the fact of which it was the expression still exists; the States, one and all of them, have a deep interest in maintaining their independence as States, and would unite in resisting a change which would arm the strong against the weak, to the common ruin. The Senate is thus fully a counterpoise to the other House; because, like that House it is the sign of a living power-the representative of an actual interest: because, like it, it is founded upon a state of opinion, and of things which cannot be changed without war-to maintain which men would be willing to lay down their lives, and to sacrifice even the government itself. It is this that gives to the Senate of the United States more weight and efficiency than belong to any similar body-any House of Lords, or Chamber of Peers--in the world. But this unquestionable truth at the same time sufficiently evinces that of all chimeras it is the wildest to expect to see similar institutions established, to any practical good purpose, in countries where there are no facts that answer to them.

But if codes of municipal and constitutional law, to be effective, must mainly form themselves in the silent progress of events, we find in international law a body of jurisprudence which is, and of necessity must be, exclusively the growth of opinion. There is here no legislative power, no common arbiter, nothing but an occasional convention or established usage to give sanction to its precepts. And yet whoever, fresh from the history of mankind in more remote ages, shall open the great work of Grotius, will be struck with the immense progress of society, revealed in every page of it. This justly celebrated, and still,

in its kind, unrivalled collection of the maxims of international justice, standing, as it does, on the very threshold of what is properly called modern history, ought to be considered, perhaps, as the grandest monument which human hands have yet erected to the influence of Christianity. Before the sixteenth century, the conventional law of nations hardly deserves notice; treaties are but few and meagre: but Europe was a family of nations bound together in the unity of a common faith and the law of enlightened reason and of good will among men, proclaimed from the pulpit and at the altar, established itself, gradually and by tacit consent, in the practice of mankind. It is thus that most of the usages which give such a hideous and barbarous aspect to war, even in the most civilized periods of antiquity, have been effaced. Certainly some additional reforms might be made in international law, as, for example, in the matter of maritime captures, to which allusion has already been had. These reforms, to the honor of our country be it said, have been incessantly aimed at and perseveringly pursued, in her negotiations, from the very first into which she entered as an independent nation down to the present time. Your committee trust that no administration will ever lose sight of them; they are confident of ultimate success; they have unlimited faith in the truth, justice, and wisdom of the maxims involved in those reforms; but it is only from the gradual progress of social improvement that such a consummation is to be hoped for. It is not a code or collection of these maxims that is wanted: it is the power to enforce or the spirit to practice them, which no code can give.

With regard to the proposed international board of arbitration, the objections of the committee are still stronger. A code, digested and promulged as the memorialists desire, would do no good, but it could scarcely do any harm. Not so with a tribunal of any sort. The probability, to be sure, is, that the decrees of such a one as is here contemplated, would be merely nugatory; but, if it had any influence at all, it might, in the actual relations of the great powers, easily be perverted to the worst ends. It might be made especially to impede the progress of the very improvements it would have been instituted to promote, and, instead of disarming the mighty, become in their hands an engine of usurpation and tyranny. He is but superficially versed in the history of nations who does not know that some of the greatest revolutions in society have been brought about through the instrumentality of judicial tribunals. The committee will cite but one example: they refer to the gradual subversion of the feudal confederacy of France, by the crown exercising, as it did, a paramount influence over a nominal court of peers. The authority of law, once established and acknowledged among men, is second only to that of religion. Judges do much more