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There is another and a very decisive reason why the Constitution, still considered in a political sense, should prevail over a statute. The Constitution is not only the deliberate will of the people, but it is the compact by which every man has agreed to be governed. It is the covenant which the majority made with the minority, and with all the people, that certain fundamental and inalienable rights shall not be subject to legislative control. That Constitution provides for its own amendment, and its safeguards may be thus destroyed; but even against that action it interposes a valuable security by providing that it can only be amended by resolutions supported by two-thirds of each House, or on the application of the legislatures of two thirds of the several states, when ratified by three-fourths of all the states. Under that substantial guarantee, every man in the United States, from the greatest to the humblest, holds his life, his liberty, and his property above legislative spoliation, and a Congress created by the Constitution has no moral or legal right to abrogate the limitations on its own power.
There is still another, and a very cogent, argument supporting the view that no statute opposed to the Constitution can be sustained; and that argument arises out of the very purpose of a written constitution, which was, and is, to restrict the power of our agents and representatives. We adopted a written constitution because we are not willing for the living to govern us except within certain limitations, and not because we believe that the dead have any right to govern the living. But to what purpose shall we write our constitutions, if, after we have written them, those whose power they are intended to limit may ignore their limitations? Our fathers were not so stupid as to think that they could secure their own freedom and the freedom of their posterity by limiting the power of our representatives, and then leaving these representatives the sole and final judges of the limitations on their power.
I do not underestimate the force of the argument against vesting in one department of the government an authority to annul what another department has done; but I consent to that as the lesser of two evils. We must leave Congress the exclusive judge of its own powers, or else confide the right of final judgment on its acts to our courts; and whatever may be the objections to judicial control, they are infinitely less than the objections to legislative omnipotence. Since we must have a final judge, that power can be more safely trusted to the court than to the Congress, for it cannot be an invidious comparison to say that, in average ability, the Supreme Court of the United States is, at least, equal to the Congress of the United States; and as the judges of that court have devoted their lives to a diligent and uninterrupted study of the Constitution and laws of their country, they must know better how to judge between them. They are far removed from those political passions and prejudices which make the preservation of a free government the most stupendous task of all the ages; they have no patronage with which to reward their followers, and no partisans to sustain them, right or wrong; they have no interest except in common with their countrymen, and no ambition except to leave behind them an honored name. Of all men in this world they have the least temptation to do wrong and the greatest incentive to do right. They are not infallible, and they make their mistakes, but they make fewer mistakes than other men; and so long as they can guard the Constitution of this republic, it will protect the lives, the liberty, and the property of the American people.
CHANGES IN INTERNATIONAL LAW.
SIMEON E. BALDWIN,
Changes in international law, as they may occur from time to time, will always be of especial interest to the United States. We were the first power to recognize in the constitution of our government the existence of such a thing as international law, and the duty of enforcing it. That instrument, it will be recollected, declares that Congress shall have power to define and punish “ offenses against the law of nations.” Under this provision, our Supreme Court has said: “A right, secured by the law of nations to a nation or its people, is one the United States as the representatives of the nation are bound to protect.” It is not necessary for Congress in passing a statute to punish an offense against that law, to declare it to be an offense against it. That it is such an offense is to be determined by reference to the law of nations itself. Congress simply gives it a further buttress.'
Whatever international law may mean to other peoples, therefore, to us it is and always has been an acknowledged body of authoritative rules entitled to enforcement by the United States.
It is an unwritten law. Just as the unwritten common law has been made by the people who allowed themselves to be governed by it, so the unwritten international law has been made by the peoples who have allowed themselves to be governed by it. It has grown from century to century. It has spread from nation to nation, until all the civilized world treats it with respect. It has been subject to the cosmic law of evolution. Had it not been, it would not be to-day a vital force. All life is change. Law, as the Supreme Court of the United States has said, speaking by one of our former members, is “to a certain extent a progressive science.” “While the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation.”
1 United States vs. Arjona, 120 U. S., 487, 488. * Holden vs. Hardy, 169 U. S., 366.
Nor can we forget. also that changes in law are not always improvements. They will reflect the existing conditions of human society, whatever these may be; and human society may have changed for the worse, or, if unchanged, men may have become satisfied that laws have been adopted which set the standard too high for practical efficiency.
The processes of physical evolution do not always result in general physical advancement. The processes of moral evolution do not always result in general moral advancement. The processes of legal evolution do not always result in better laws. All this is inevitable.
Goethe says in Faust that
“He only deserves liberty or life who must conquer them daily anew."
The world only deserves a common rule of law—a law of nations and for nations-by conquering it daily anew. It does not stay conquered. It must daily express the necessities of the day. It must change as the conditions change on which it acts.
The United States, from their first foundation, have been among the leaders in promoting changes in international law.
In 1784, the Continental Congress, under the Counsels of Jefferson, gave certain instructions to our ministers abroad, to be followed in negotiating all commercial treaties. One was to propose the abolition of privateering. Another was to propose that fishermen, farmers and artisans or manufacturers “unarmed and inhabiting unfortified towns, villages or places, who labor for the common subsistence and benefit of mankind,” should not be molested in time of war. Another was that contraband goods on the vessels of either of the signatory powers should not be confiscated, but only commandeered on paying their full value.' Most of these provisions were, the next year, incorporated in our first treaty with Prussia, part of which is still in force. It was the most advanced treaty, in the direction of human brotherhood, up to that time concluded between any powers. Similar stipulations were also embodied in a projected treaty negotiated with Portugal, but this was never ratified.
• Secret Journals of Congress, III, 452, 456, 483, 484.
This American proposition, so far as fishermen are concerned, may certainly be deemed to have resulted in an alteration to that extent in the rules of international law, by subsequent recognition of the principle by nations generally.'
President Monroe in his message to Congress in 1823, containing the announcement of the “Monroe Doctrine,” informed them also that he had instructed each of our ministers to France, Russia, and Great Britain, to propose to the power to which he was accredited the abolition of privateering by international agreement, and the establishment of a “permanent and invariable rule in all future maritime wars that no ship of war would molest any merchant ship, whether owned by a belligerent or a neutral, except for "breach of a lawful blockade.”
Nothing came of this at the time, but it was one of the circumstances which led, a generation later, to the declaration of Paris. By this, it will be recollected, in 1856, privateering was declared abolished. The United States, Spain, and Mexico, have not, as yet, formally accepted this declaration, but they have acted in practice, ever since that year, as if it were international law, and that it is, may, I think, now fairly be assumed.
In 1868 we engrafted on the law of nations the principle that every man has a right to change his nationality. This, while contrary to the earlier decisions of our courts and opinions of our public men, was an inevitable result of the facility of passing from one country to another, which is possible and indispensable to modern commerce, and indeed has created it.
In another direction, the achievements of modern discovery have likewise imposed new conditions of maritime warfare. They have varied the reasons which dictated one of the ancient rules of international law, and so required a variation of the rule. I refer particularly to the extent to which the law of blockade has been subjected to changes, in consequence of the invention of steamships. A single steamer may be sufficient to make the entry of a wide-mouthed harbor dangerous, when a single sailing vessel would be entirely incompetent to effect this.'
• The Paquete Habana, 175 U. S., 677.