Popular Science Monthly/Volume 19/May 1881/Influence of the Post and Telegraph on International Relations
By C. M. DUNBAR.
IT is a beautiful theory that man was made for society; but it is an eminently better one that society was made for man. Man was necessarily in existence before society. He contains within himself all the virtues that are an ornament to society, all the elements that strengthen government. And government, and even society itself, however consequential they may appear to the view of the haughty and superficial observer, are, notwithstanding, only means to an end. That end is the betterment of the material, moral, and intellectual conditions of the individuals composing that society and state; to confer upon them, as far as possible, the greatest amount of happiness. For this society was formed, and for this it is maintained. To protect the individual in his pursuit of happiness, governments were instituted, and when they no longer subserve that chief end they become obsolete.
The primitive and fundamental type of governmental organization and authority is the family. Therein the natural affections cement the compact between the different members of the household. Nature also compels the observance of the different duties due from each member. The duties are mutual. The natural obligation of the head of the family is to provide for the maintenance of those whom he has been instrumental in bringing into the world. And they, on their part, are bound to yield to him the respect naturally due him, and obedience in all matters in which his years of experience render him more fit to judge. This might be said to be the condition. of a family in a state of nature. Such is the primitive form of government—one established by nature itself. Individuals unite into families, families into clans, clans into villages, villages into provinces, and these into states. All formations subsequent to that of the family are artificial; but the duties of the members of these corporations to each other and to their rulers or public servants, and the latter to the individual members, are analogous to those of members of a family. It is not the writer's intention to enter here into an extensive view or review of the theory of the social compact, or into a discussion of its fallacy or plausibility; suffice it to say that it illustrates the principle that the people are the source of governmental authority—a principle that, at least, is recognized by all well-informed Americans.
The different forms of political institutions in existence are due to the different phases of nature with which different peoples have been surrounded. Even the various forms of religious worship, in most cases, owe their origin to some cause produced by nature, whether of climate, soil, or atmosphere peculiar to the locality of the people professing and practicing those forms of religion. Consequently, the diversity of customs and habits of different peoples should give rise to rights and duties differing in nature and degree between the diverse political divisions. Now, what is the duty of a people in such cases in their relations with each other? It is the duty of a good father to love and protect the members of his family before other persons; his care and solicitude should begin with his own. Yet he owes a duty to his kind—that is, to help others when required, if he can do so without injury to himself or those depending on him. We may say that men in a state of nature would be compelled by force of circumstances to the observance of these rules. How is it with regard to states? Their first duty is to look to the welfare of their own citizens; yet they should remember that individuals of whatever nationality have natural and inherent rights that should be everywhere recognized, since the exercise of these rights is necessary to existence. It is true that an individual, passing from one state into another, can not carry with him rights not possessed by the citizens of the state he enters, especially if their exercise would interfere with the political or civil rights of the natives. Thus it is that rights will always vary from one people to another. Sometimes the laws and rights vary in the state itself; there frequently arises a diversity of laws and customs between the different provinces of the same country: as in ancient France, which was formed out of a number of feudal sovereignties, each having its particular law, and giving rise to frequent conflicts between different customs. A like cause produced a like effect in the German Empire: the law varied from one city to another, and even from one street to another in the same city. Another difficulty arises; How are we to determine between these conflicting laws? The law of nations is the same, theoretically at least, for all humanity. Private international law, which is a branch of the law of nations, has also a tendency to unity—not that it has for an ideal the uniformity of the law of all portions of the human race; such would be too dreamy an idea. But the rules which serve to solve these conflicts can and should be the same the world over, notwithstanding the diversity of legislation. It is this unity that private international law has sought, and now seeks to establish. How can it be realized? It can not be formed, like the civil law of each people, by legislation, or command of a superior authority, since independent sovereign nations recognize no authority superior to themselves. Each legislature can not make laws that will be operative beyond the limits of the territory over which it has legislative power. Here, again, we see the analogy between private international law and the law of nations. Nations, like individuals, have their personality; between individuals, the juridical disputes arise either upon a contract, or on account of a wrong committed; it is the same with nations: they can not be bound but by their own consent; hence the treaties which form the basis of the positive law of nations. It is also by concurrence of wills that nations obligate themselves to observe certain rules looking to the conflicts likely to arise in the application of the particular laws of the different states. Agreements are not necessarily expressed; a tacit consent suffices to form an agreement. It is the same in international conventions: the greater part of those which form the basis of the law of nations are tacit agreements; the law of nations is principally a customary law, which is founded on the tacit consent of the peoples. That which is true of the law of nations is also true of the private international law: certain rules common to all nations can not be formed but by a concurrence of consent, express or implied. On this particular point the treaties are very few; and these, are particular agreements between the two states, having no relation but to the interests of the contracting parties. There remain only the customs which are established by implied general consent. This is almost the sole source of the private international law. There is, however, a vast difference between the international customs and the customs which form one of the sources of the civil law of each state. The latter have the force of law, until abrogated by some particular statutory enactment; they are the implied expression of the sovereign will of the nation they might be called tacit laws. Not so with the international customary right. Since it is a question of sovereignties, they can not, correctly speaking, be called laws; hence the nations could not be bound to recognize a legislative authority higher than their own. The international customs do not hold the place of laws—they hold the place of agreements; they are implied treaties. How are these implied treaties formed? This is a capital question, and as difficult as it is important. Ordinarily international customs are considered as being of the same nature as national customs. This is not the case: the former are tacit treaties, while the latter are tacit laws, and there is a great difference between treaties and laws; the treaties are formed by a concourse of wills, and the laws are promulgated by way of commandment; the treaties differ in their essence from laws; the conditions, therefore, under which tacit treaties can be formed should also differ from the conditions under which implied laws are formed. The intimate lien which exists between the private international law and the law of nations brings up a redoubtable problem. Is there a law of nations? Those who deny it have strong reasons for doubting. Can there be a law without a legislature; without a tribunal to apply the law, and without any authority to execute the sentence of the court? And, in this matter of the law of nations, where are the legislative, executive, and judicial powers? It may be said that right is necessarily anterior to the law, that it results from the nature of man and civil societies: if the relations between individuals are necessarily regulated by right, it must or should be the same with international relations. It is ever the case that the law of nations has not the certainty or authority of the civil or public law, which is almost everywhere codified, while the law of nations can not be, inasmuch as humanity is not organized. The arguments which may be advanced against the existence of the law of nations are, in a measure, applicable to the private international law. If the latter is a branch of the former, it may be said that what is true of the one is true of the other. There is only this difference, that the law of nations regulates public interests, while the private international law is virtually identical with the civil law of each state; and only occupies itself with private interests. This difference is considerable, and leads to important consequences. The existence of a law, properly so called, regulating the relations of nations with each other is, at best, problematical; as yet it is force alone which decides their disputes. This is not the case with the private international laws of different nations. It is they, not the nations, which are on trial; it is individuals, and the courts, and not the sword, which must decide their differences.
In order that we have a private international law, man must enjoy everywhere the same rights whatever be his nationality—that is, he must enjoy everywhere equally the same civil or private rights. Now, what are civil or private rights? Certain faculties, the exercise of which is necessary to man for his physical, intellectual, and moral existence. Can a man exercise these everywhere, or are they limited to the state in which he was born? Man is not an incorporeal hereditament, attached to the soil on which he was born, but is a citizen of the world; he establishes himself where circumstances, or his faculties, call him; even without quitting his natal soil he can enter into relation with the entire world. Why should his natural rights stop at the frontiers of his country? Is it because humanity is divided into different nations, each having its separate organization and particular laws? It is true that the division of the human race into distinct nations has this for an effect, that each man has a distinct country, in the bosom of which he exercises the political rights that pertain to the citizen, but he can not enjoy these rights outside of his own country; the quality of citizen gives exclusive rights and imposes exclusive duties.
But the political separation of states has nothing in common with the enjoyment of private rights: if it is impossible for me to be an elector or juror in any one state or country, that is no reason why I should not become proprietor wherever it pleased me to purchase. The exclusion from the enjoyment of political rights should not also necessarily exclude the enjoyment of private rights. A person should enjoy everywhere the same civil rights, since they are an accessory of life. The diversity of states and their constitutions should be no obstacle, for these rights are not due to the foreigner as a citizen; they are due to him as a man, and he is a man everywhere. The first condition necessary, in order that man may perfect himself, is that he enjoy all the natural and legal faculties without which he could not live. The rights of man, therefore, are independent of the diversity of states; they appertain to him simply as a man—that is to say, they belong to him everywhere.
The equality of the foreigner and the citizen is the basis of the private international law: if the foreigner did not enjoy any civil rights, it would not be a question by what law his rights were to be determined; in that case not only would the international law have no reason of being, but it would be impossible. This is why the private international law is of such recent date. In fact, scarcely any two of the writers upon it agree as to its nature and scope. Some authors, convinced of the inanity of theory, have believed that the law should rest upon facts; in presence of the extreme diversity of national legislation, they have appealed to the comity that peoples should observe in their relations with each other; each in its legislation having an interest in looking to the welfare of the foreigner, inasmuch as its own citizens are taken into account by the foreign laws. This is nothing less than the doctrine of interest—a doctrine false in philosophy and false in law; interest is not a principle, it is a fact, and a variable fact according to the circumstances and the passions. The right, on the contrary, should rule the facts; it is a contradiction of terms to pretend that interest, always hostile, will put an end to the eternal conflicts which it begets. On the contrary, it will be seen that the facts are the great obstacle which this science has to contend with. How will a union be established in the midst of this infinite diversity? It is the contrariety and diversity of laws that demand application of the judge: is it the national law which the judge should apply, or that of the parties to the suit? And what will be done in case the parties belong to different nationalities? Shall we take into account the law of the place where the subject of the dispute is situated? Shall we distinguish whether they are chattels or immovables? If it is a question arising upon contract, shall we have recourse to the law of the place where the contract is made, or where it is to be executed? Shall we give a preference to the law of the debtor or to that of the creditor? If there is involved the validity of instruments in writing, shall we follow the law of the place where the writings were made? By what principle shall a judge decide in this sea of doubts? These are the principles sought by the private international law.
Private international law, considered as a positive law, reposes on the agreements expressed or implied, which are entered into between sovereign nations. Treaties alone can put an end to the war of conflicting interests and diverse laws. There is but one means of conciliating nations who recognize no superior authority, and that is by way of concurrence of consent. Italy, under the inspiration of Mancini, has inscribed in her code the principles of nationality and the consequences that flow therefrom. Mancini says there must be treaties in order that the interest of foreigners be maintained and full justice done them on an equal footing with the citizens. If he has not completely succeeded in his mission, it is because the times are not ripe for the realization of his ideas. This is not a new dream of perpetual peace, for the true ideal is not peace, but the reign of right; and certainly there is nothing Utopian in the hope that peoples will understand the regulation of interests purely private, and having little or no connection with these greater interests for which, it is to be feared, the resort to arms will always be a painful necessity. If this attempt of Mancini has been premature, it has not on that account been useless. It has opened the only way to a solution of the difficulties which every day increase as international relations multiply.
In our days, through the progress of the physical sciences, and their coöperation With modern diplomacy, international relations have undergone a veritable transformation. Communications between the most distant countries are now more sure-and easy than they were in the last century between two provinces of the same state. A letter from any part of the United States to Rome now costs less than a letter from one town to another, ten miles distant, did sixty years ago. The merchants of New York, Cincinnati, and Chicago, and even San Francisco, negotiate as easily with the merchants of Paris, London, or Liverpool as with those of Buffalo, Philadelphia, or New Orleans. We employ each day, for the satisfaction of our wants, the products of the most distant countries with as much facility as those of our own soil. Undoubtedly science has done a vast amount in this prodigious development of international intercourse; it is science which has furnished us steam and electricity, for diminishing distances, and bringing peoples into closer relations. Science, it is true, can not do everything; it should be seconded by the law to produce all the advantages of which it is capable. The means of communication furnished by it—the railroads, the steamboats, and the telegraph-lines—would have but a limited sphere of action, if the States were isolated one from another. The legal barriers that formerly existed between peoples should be removed at the same time as the natural barriers, and this is really taking place, for, as science progresses and material interests become more developed, the ancient restrictive rules on immigration arc successively modified, as also are the regulations on the legal condition of foreigners, on the necessity of passports, etc. But this alone will not suffice: sometimes it is necessary that governments mutually aid each other in the attainment of a result beneficial to all; such, for example, as the extradition of fugitives from justice. The tendency is to create or regulate the relations between civilized countries in such a way that, while the sovereignty and independence of each is guaranteed, the general interests, having a cosmopolitan character, will be found as satisfactory as if they were those of a single state. In later years the development and application of this general idea, through the progress made by the physical sciences, have far exceeded the hopes of the most sanguine. Take, for example, the post and the telegraph. A few years ago the wildest visionary would never have dreamed of the cordiality which to-day exists between the different peoples in their international relations. The postal and telegraphic services have contributed largely to this result. The same treaty unites Turkey and Russia, France and Germany, Montenegro and the United States.
Down to 1830 the postal system was not very well developed even between different parts of the same country; and of course was much less efficient between different countries, where greater obstacles to its progress would naturally be encountered. It was only after this period and in consequence of the new relations to which a long peace had given rise, aided by the development of means of communication by land and sea, that the different countries felt the necessity of regulating their international postal communications. Without studying those treaties as such, let us take a view of their object and utility.
Two countries who wish to regulate their international postal exchanges in a secure way must come to an understanding on the means of transportation they will use, whether it is by railroad, stage, steamers, or sailing-vessels, and what contribution to the expense of carriage will be made by the respective parties to the contract. The questions to be considered are: What will be the expense of mails thus transported? Will the postage be paid by the sender or receiver? In what proportion will the expenses be borne by the offices coöperating in this transportation? It is on these points also that naturally arise the chief difficulties, in consequence of the conflicting interests of the contracting parties, each viewing the matter from his particular standpoint, and each seeking to obtain the greatest benefits from the regulations adopted.
In general, two postal administrations do not content themselves with exchanging mails directly between the two countries; each of them, generally, has existing arrangements with other states which they use as an intermediary. For instance, France, on account of its geographical situation, plays this rôle for a number of countries; it serves as an intermediary for communications between the countries of Spain, Italy, Switzerland, Germany, Belgium, and Great Britain. A letter may have to traverse many countries to arrive at its destination: thus, a letter addressed from Lisbon to the Hague passes through Spain, France, and Belgium; it has three intermediate countries to traverse. Therefore, regulations must be made between the services of direct exchange and those of transit. By transit we mean the countries traversed; thus, the French transit is necessary to communicate between the United States and Italy, under present regulations. Another matter to be considered is the distinction between the maritime and terrestrial transits; the former is ordinarily more expensive than the latter, in consequence of the subsidies granted by many countries to steamers on their navigable rivers, and in some countries the railroads transport mail-bags gratuitously. The treaties have therefore to regulate the transit, the manner in which it is to be effected, and the remuneration. It must also regulate a great many other matters: for instance, what will be carried by the mails? Formerly, at great distances, letters only were exchanged; now journals and pamphlets of every kind are carried, packages of merchandise, and even money and valuables.
The system of isolated postal treaties between different countries has had its day, and what progress was possible under it has already been attained. Certain countries, which until recently remained outside of the international movement, have now entered into it with ardor. Thus in the year 1872 Russia, besides her postal treaty with France, signed postal agreements with Germany, Belgium, Italy, Holland, Denmark, Sweden, Norway, and Switzerland. By an examination of the numerous arrangements which at this period were formed for postal relations, it is easy to ascertain a uniform tendency toward the development of international exchanges by lowering the rates of postage and. by the simplification of operations. In 1862 the postal administration* of the United States called the attention of foreign postal departments to this matter, and indicated the number of obstacles to foreign correspondence resulting from the difference in the principles as well as in the detail of postal arrangements—obstacles that could not be remedied but by an international concert of action. Consequently, it invited the members of the postal departments of the different nations to an international conference. This conference took place at Paris in May, 1863, and was composed of delegates from fifteen countries; its object, as declared by its president, was "not to discuss or to regulate certain practical facts which pertain to a sphere of negotiation beyond our powers, but to argue, or at least to consider and proclaim, certain general principles, certain speculative doctrines, which hereafter we may be forced to adopt in the interest of the public and of the Treasuries of our respective Governments." The different problems of the postal exchanges were discussed with considerable acumen, and the result of the deliberations was the enunciation of the general principles, which were "of a nature to facilitate the relations of people with each other by way of the post, and to serve as a basis to international conventions looking to a regulation of these relations." This conference of 1863, although bringing about no immediate result, had nevertheless a considerable influence: it showed the possibility of an understanding and the advantages of discussion. Some of the ideas recommended soon afterward passed into practice. With the progress of time their practicability became more apparent; and a new conference was called, not only to exchange ideas, but to lay the foundation for an actual treaty. Since 1865 there has been a Telegraphic Union. Why not also have a Postal Union? As a consequence of these negotiations, which were interrupted by the Franco-Prussian War, and subsequently resumed, Switzerland convoked at Berne the delegates of the European Governments and of the United States on the 1st of September, 1873. Different powers, principal among which were France and Russia, having manifested an intention to abstain from the conference, it was adjourned. It reconvened September 15, 1874; and included delegates from all the European powders, from Egypt, and the United States. Notwithstanding the numerous difficulties met with, among which may be mentioned the differences resulting from the wide separation of some of the countries, the enormous inequality of their territories, a great diversity of views on economic and financial points, and, finally, the power, always strong, of existing arrangements, a Postal Union was finally formed, after fifteen sessions of the convention.
The delegates were many of them general directors of the postal departments of their respective countries. Those of Germany played a preponderating rôle in the Congress, because it was from them came the initiative of the reunion, and the discussion bore largely on their project; the Belgian delegates also took an active part. The delegates of France and Great Britain were, on the contrary, not very active in the formation of the Union. France, for divers reasons, could not view the project with favor; she was principally kept back by fear of the consequences to her finances that would follow the signing of the treaty, so terrible was the strain on her exchequer of the trying events of 1870-'71. Her delegates took no part in the discussions, nor in the voting on the different provisions of the treaty; but the pressure of public opinion compelled her to sign the treaty which was concluded between the powers on the 9th of October, 1874.
Besides the treaty, the delegates also signed a detailed regulation for the execution of the treaty. There is this difference between the two acts: the first can not be modified or amended but by the action of representatives fortified with the full powers of their Governments; while the other can be agreed upon between the administrators of the various postal departments. The first is a diplomatic act, the second an administrative arrangement. The same course was followed at St. Petersburg, in 1875, in establishing the Telegraphic Union.
The Union is not limited to the countries signing the Berne treaty. That treaty provided for the accession of new members; and since 1874 other nations than the original contracting parties have joined it, and in the near future we may see a universal postal association, embracing the entire world.
Turkey, on account of its peculiar international situation, is distinguished in this treaty from the other contracting parties, inasmuch as its foreign correspondence is made through foreign offices. Thus at Constantinople there are bureaus established by France, Austria, Russia, England, and Germany, who occupy themselves with the international postal service, in which Turkey takes no part. At Berne the Ottoman delegate protested against this state of things, declaring that his Government wished to enter definitely into its rights, and that, besides, it was ready to do all that was necessary to carry out the requirements of the international postal service. The response to this was a demurrer, on the ground that the protest was a matter of which the conference could not take cognizance, and one that should be regulated between Turkey and the different states interested.
The general principle of the treaty is thus stated in its opening article: "The countries between which the present treaty is concluded will form, under the designation of General Postal Union, one single postal territory for the reciprocal exchange of correspondences between their postal departments."