rule pacta sunt servanda always appeared to us to be intuitively apprehended and instinctively felt-that is, to be equivalent to one of the first truths of Buffier, or as an ultimate fact, in our nature, to fall under the common sense of Dr Reid and of Professor Dugald Stewart, as correctly and profoundly expounded by Professor Sir William Hamilton, Bart., in his recent publication, which he calls the Philosophy of Common Sense; resting, in short, upon the same or a similar basis or foundation as our belief in the existence of the external world, and in the ordinary course of nature. And without aiming at any further simplification of the basis on which conventional international law reposes, we willingly recognise the legal principle of pacta sunt servanda, in its broadest sense and to its full extent, to be liberally construed as a Contractus bona fidei, and as nearly, if not absolutely, co-ordinate with the legal principles, Neminem lædere, suum cuique tribuere.

As these observations, of course, do not aim at anything like a complete system, or theory, such as Dr Wheaton's work on international law, but are merely intended to correct some views which appear to us to be erroneous, but which seem of late years to have become more prevalent, and more extensively diffused on the Continent, we do not deem it necessary that in farther considering the juridical nature of contracts, either private or public, we should inquire into the mode or means by which they may be effectually entered into and concluded,-what are their general effects, or the rights and obligations thereby created, and how they are terminated by fulfilment or otherwise. The only two points to which, on the present occasion, it may be proper to

attend, seem to be the influence or effect which contracts may have on third parties, or persons not included in the contract, either as principals or by accession; and whether a contract be an act of such a juridical nature as to become the foundation of a general or common consuetudinary law, and as to indicate by its frequent, longcontinued, and uniform repetition, a decided conviction in the mind of the people or nation that the rule which has thus been usually observed is the legal rule, resulting from the observed existing juridical relation, and therefore ought to be enforced.

Now, with regard to the first point, it does not appear to have ever been maintained, in the private jurisprudence of states, that any person is bound by a contract, unless he has given his consent, either expressly, totidem verbis, or by acts clearly inferring such consent; or that any two persons can, by their contract, impose an obligation upon, or even bestow or establish a right or beneficial interest on, a third party, except in so far as they are concerned, and bind themselves. Any further investigation of this point, therefore, seems to be superfluous; and it only remains to inquire, whether contracts, private or public, be of such a nature, in their character of acts, as to become the foundation and proof of a sort of vague and general, or common consuetudinary law. But to avoid repetitions, and to place the matter in a stronger light, by comparison or contrast, we shall delay the discussion of this point till we have considered a little more minutely the nature of public contracts, or treaties among nations.

SECTION I

Difficulties and Uncertainties in the Conventional Law of Nations, as composed of Public Contracts or Treaties.

In the preceding observations we conceive we have done, as we are quite disposed and indeed bound in duty to do, ample and complete justice to conventional international law.

But while we have, both formerly and now, admitted the validity and operation, and great utility in many cases of conventional international law to its full legitimate extent, we must protest against any attempt to enlarge its boundaries in the manner which appears to us to be implied in or indicated by the vague and rather ambiguous language employed by Martens and Klüber. In this our apprehension-in the interpretation we have thus put upon the expressions just alluded to-we are assured by M. Ortolan we are quite mistaken; and certainly that author, in the 5th chapter of his first volume, does not venture to lay down any other doctrine than what we maintain,—namely, that treaties are binding only on those nations who consent and become parties to them, according to the sound and fair construction of their terms, for the specified or otherwise ascertained period of their endurance, and when not terminated by supervening circumstances and events. But, whether he is correct in the assurance he thus gives, and with what consistency he subsequently adheres to the general doctrine

so laid down by him, we shall inquire, after first investigating a little farther the true nature of what is called conventional law.

Conventional international law, according to M. Ortolan, is composed of the laws which nations have made for themselves. But this is not a correct view of the true nature of conventional international law. No majority of independent nations have a right, by their own acts, separate or joint, to bind, or, in other words, to legislate for, the minority; precisely because they are independent, and have no superior on earth, except the omnipotent and all-wise Creator and Preserver of the universe. What is called the conventional law of nations is just the aggregate or accumulation of the treaties or conventions, among nations, which are still in existence and obligatory, and which have not ceased to endure, and become merely matter of history. When, in civil society, individuals enter into bargains or contracts, for the sale or transference, for a valuable consideration, of immoveable estates, or moveable goods, or for the lease or temporary possession of the former, or loan of the latter, we cannot say with propriety of language, they have made so many laws; we can merely say with propriety, they have, by contract, acquired so many rights, and undertaken so many obligations, which the law, the legislative and judicial powers, cause to be observed and performed. In the same way, by treaties nations merely confirm or surrender, or transfer pre-existing rights or obligations, or convert what was formerly indifferent, optional, or discretionary, a matter of choice, into what is legally necessary and susceptible of enforcement; thereby creating a legal right in the one, and a legal obligation on the other.

When there is a pre-existing legal right or obligation, in the nature of things, arising from a pre-existing juridical relation, or which has been induced and brought about by the uni-lateral acts of nations, without any joint agreement of two or more of them, the treaty merely confirms the right or obligation, which, as it did before, continues to exist in perpetuity, independently of the treaty. But such treaties, merely confirmatory of the pre-existing right or obligation, without any ulterior object of specification, limitation, or modification, are rare; and when the subject of the treaty is previously indifferent, or matter of choice, optional or discretionary, the right created, or obligation undertaken, by the treaty or contract, cannot go beyond or exceed the terms and limits of the contract, or the parties who originally entered into it or acceded to it.

Greater Difficulties and Uncertainties in Public Treaties, or National Conventions, than in Private Contracts in the Internal Jurisprudence of States.

But besides conventional international law, not being composed of legislative acts, which nations have made for themselves, and besides their being subject to the same rules of law as private contracts among individuals living in the social state, as recognised in the internal civil and criminal jurisprudence of each people, public treaties among nations are liable to various other difficulties and uncertainties, from the want of the legislative and judicial coercive power exercised by the community; and from various points in their construction or interpretation not