ship to third parties not intended or required, or, in such altered circumstances, no longer adapted for the attainment of the legitimate object which all parties had in view. And in such cases of common consuetudinary international law, conventional treaties among nations to a certain extent and in some manner serve the purpose of legislative enactments in the internal common private law of states, and are useful in affording an opportunity to nations of modifying the customary rules which previously prevailed in practice, and establishing rules in the reciprocal intercourse of the contracting parties. But the analogy, in this respect, between treaties in international common consuetudinary law, and legislative enactments in the internal common private law of states, obviously extends no further. Legislative enactment is manifestly the exercise of the supreme power of the state concentrated in the government, and binding upon all the members of the community, who, though fellowcitizens in relation to each other, are the subjects of the state or government. But there is no such supreme legislative power among or over separate nations, who are confessedly independent of each other, and have no superior on earth.

Further still, when a rule of conduct in their reciprocal intercourse has been adopted by treaty by all civilised nations, (by which is generally understood the European nations, and those who have emanated from them,) that rule may not only become, by this express almost universal consent, a part of positive or established international law among these nations, as long as the treaty endures or is renewed, but may, by long-continued reciprocal observance after the treaty has ceased to be

binding, become a part of general common consuetudinary international law. For such a purpose, however, or to have such an effect, the consent given by treaty or convention must have been universal-so far, at least, as regards the nations to whom the rule is sought to be applied; and at all events must have been given, and the rule continued to be observed, by the nations against whom it is urged, after the lapse of the period of duration of the treaty, or its cessation from other legitimate

causes.

For a particular treaty or convention between two, or among several nations, however numerously acceded to by other nations, can never bind those nations who are not parties to it. Learned and industrious men, like M. de Martens, may collect from the great numbers of treaties which have been concluded among civilised nations the usual subjects of stipulation, and may, by arranging and classifying the rules so stipulated, produce a systematic work, binding and obligatory upon the contracting parties, so far as the treaties out of which it is compiled or composed are still in existence and force; and such a compilation may, no doubt, be otherwise useful historically. But it is vain to maintain that in this way any code of international law can, consistently with sound legal principle, or accurate logical deduction, be reared up or created, such as to be binding upon the nations who were not parties to the treaties, or even upon the contracting parties, after those treaties have expired from lapse of time, or ceased, from other legitimate causes, to be legally obligatory.

We have thus traced the origin of international law to three distinct sources, all existing in fact, and ascertained

by observation and experience; and as the result, we find two distinct branches, or component parts, or divisions of that law first, Common consuetudinary law, including its scientific development by jurists and judicial determinations; secondly, Conventional law, composed of rules established by treaties still in force, and legally obligatory.

Besides these sources and this bi-partite division, we do not see any valid grounds for admitting as branches or component parts of international law, either the "analogy " of M. de Martens and M. Klüber, or the "reason" of M. Ortolan and of M. Th. Ortolan, the latest French writers on this subject.

If by "analogy" be meant reasoning or logical deduction from premises by analogy, it is a faculty of the mind applicable to all the sciences as well as that of international law, and obviously cannot, as such, with any propriety be viewed as a branch of that law, or, indeed, of any particular science. If by analogy it be understood that not merely identical or similar cases, but likewise analogous cases, are to be held sufficient to support an argument or general rule inferred or deduced from them, there will be great risk of these inferences or deductions from analogous cases proving erroneous; and, although analogical reasoning is certainly admissible, if cautiously conducted, in the science of international law, as well as in all the other sciences, it cannot properly be said to constitute a component part of that law, either co-ordinate or subordinate.

As little can we concur with M. Th. Ortolan, and the eminent French lawyers whom he states he consulted, in placing "reason as the first branch or source of inter

national law along and co-ordinate with common consuetudinary law and conventional law. Indeed, he seems to have fallen into the error of preceding writers, pointed out by Mr Bentham; for there does appear to be an awkwardness or inaccuracy, if not inconsistency, in the arrangement which M. Th. Ortolan merely adopts after several anterior writers, inasmuch as it places "reason as the first source or branch of international law, and at the same time holds that "reason" is only to be consulted in the last place, after conventional and after common consuetudinary law. There can be no doubt that in practice the conventional law of nations ought to be first consulted, because a treaty is a special contract by the state or government, very frequently conferring a right or imposing an obligation which did not previously exist, and usually a deviation, by the express consent of contracting parties, from the pre-established practice. And the error seems to consist in introducing "reason" as the first constitutive authority in positive or established international law. The truth, indeed, seems to be, that reason may be exercised as a faculty, or appealed to as an authority, both in interpreting the import of treaties —that is, the conventional law-and in discerning and ascertaining the common consuetudinary law of nations, as founded on their juridical relations, and on their longestablished and uniform practice, but cannot be correctly introduced either as a branch or as a source of international law, any more than of any other science. In modern languages, reason appears to have chiefly two meanings either what is reasonable, what reason enjoins or dictates, (ratio juris, rationis dictamina,) or the faculty by which the mind intuitively perceives or appre

hends first truths; or l'Art de Raisonner, so beautifully illustrated by the Abbé de Condillac, in his Cours d'Etude, in its application to physical astronomy-viz. the faculty of logically deducing the consequences which flow from first truths, intuitively perceived or apprehended, or otherwise pre-established. But if the term reason be used to denote a faculty of the mind, it obviously, in that sense, cannot be employed, either logically or grammatically, to convey the idea of a branch or department of law for the compulsory regulation of human conduct. And if it be used to denote what is reasonable-what reason dictates among nations. -reason is, no doubt, in that sense, sufficiently comprehensive to embrace law; but it is manifestly too comprehensive and indefinite to include merely and solely, and to define or describe distinctly, law susceptible of coercion, much less to form a subordinate member in an arrangement of the branches or constitutive parts of a particular department of such law.

Having now traced the sources and distinguished the two great branches or component parts of international law, we shall proceed to mark the nature, limits, and effects of these two branches-common consuetudinary and conventional.