reference to the obligation undertaken, become doubtful and insecure through the breaking out of a war; so that they require for their farther validity a confirmation and ratification, by a new, plain, and clear declaration of will."

Pinheiro Ferreira.-Further, in his Précis du Droit des Gens Moderne de l'Europe, section 58, Martens had thus stated the law :-" In all cases of a war breaking out between the contracting parties, treaties, although made for ever, fall of themselves, with the exception of the articles contemplating the case of the rupture." And in his notes on the work of Martens, vol. i. p. 390, M. Pinheiro Ferreira, late Minister for Foreign Affairs in Portugal, agreeing with Professor Heffter, confirms this doctrine, limiting the necessity for a clear, express, and special renewal to the obligations of which the performance at the time of the rupture were only to take place in future; and referring for the reasons of this to his own Cours de Droit Public, section 45, which reasons, he observes, M. Martens has not given.

We have thus noticed a number of the difficulties and uncertainties to which the conventional law of nations, as composed of public treaties, is liable, in addition to what are found to exist in private contracts between individuals, in the internal jurisprudence of states. We have also endeavoured to ascertain how these questions are to be decided according to the most recent authorities. But until most of these questions can be answered satisfactorily, to the conviction of the educated or intelligent portion of mankind generally, and until it be ascertained, by rigid and impartial investigation, which of the treaties concluded among the different European independent states, in the course of the present and two preceding

centuries, are now in force and obligatory on independent states-not mere matters of history-the conventional law of nations, although highly useful in various departments, as supplementary, will, if adopted as now proposed, be found but a lame substitute, as a whole, for the common consuetudinary law of nations.

SECTION II.

Errors in over-estimating the legal Effects of public Treaties.

In the preceding observations we have seen that the particular conventional law of nations, composed of treaties, is, as a whole, defective as a legislative code, and very insufficient and uncertain in extent and duration; and that, although useful as a supplement in various cases, it affords but an unstable foundation, if substituted as a basis, for general or common consuetudinary international law, which rests on the juridical or legal relations established by the omnipotent and all-wise Creator in the physical, corporeal, and mental constitution of mankind— in the physical material situation and circumstances in which He has placed the human race on the surface of this earth, in the course of the physical material and physical mental—excluding moral events, to which he has subjected them in this world-and in the consequences of the delegated powers of action, which he has bestowed upon societies of men, or communities, or states, as well as upon individuals. But farther, the operation and effects of the conventional law of nations have been greatly

over-estimated and exaggerated by various jurists, and many very learned and able writers have fallen into what appear, upon more thorough investigation, to be errors, in the effects they ascribe to public treaties. One description of errors consists in holding particular conventions or treaties to be almost the sole evidence of, and to form almost exclusively the whole of, international law; and, if not to constitute it originally, at least to alter and modify and recast it from time to time. Another description of error consists in holding a series or succession of treaties among two or more nations, containing certain stipulations, as recognising certain principles or rules, and establishing them in future, to the effect of being legally obligatory on nations who have never made or agreed to such stipulations, or who have done so only for a time, or with regard to particular nations, from particular considerations.

The first of these errors consists not merely in holding treaties to afford evidence of the actual performance of obligations, whereas they merely afford evidence of engagements to perform obligations, which occasionally have not been fulfilled, but also and chiefly in holding treaties to afford almost the only and sole evidence of international law, to the exclusion and neglect of almost all other historical records; whereas the true and real evidence of general international law, usage, and practice, is to be found in the records of the national institutions, government, administration, and practice of each independent state; while treaties, though sometimes confirmatory of preexisting rules of the common law, are usually merely exceptions from the previous general rule. We formerly pointed out in detail the records and evidence of the

general and common consuetudinary law of nations; on the other hand, the records and evidence of particular conventional international law, of course, exist in the various collections of treaties among modern civilised nations; and to the Germans, chiefly, we are indebted for the construction, or creation in a manner, of the diplomatic code. The idea appears to have originated with Leibnitz, in his Codex Diplomaticus. Various large similar collections were made in Holland by Dumont, Rousset, and others, and in England by Rymer, Jenkinson, Chalmers, and others. But the collection of treaties and other state papers connected with international law, and the arrangement of the contents of those documents into a system, continued to be prosecuted with the greatest zeal and success in Germany. This appears from the "Vernunft und Völkerrecht" of Glafey, the "Beytrage zu dem neueste Europäischen Völkerrecht" of Moser, the "Codex Juris Gentium" of Schmauss, and the "Codex Juris Gentium" of Wenck, the "Literatur des Völkerrecht" of Von Ompteda and Kamptz, and the "Recueil des Traités” of Von Martens, of which last the supplement far exceeds the original in number of volumes, and has been brought down to the present times. And with regard to the systematic works, or what the later German jurists have called the Droit des Gens moderne de l'Europe, we may mention the treatises of Günther, Martens, Schmalz, Klüber, Schmelzing, and Heffter.

But, however much we may be indebted to the recent German, and also Italian jurists, such as Professor Lampredi of Pisa, for their systematic treatises on international law, we cannot admit the soundness and accuracy of the views entertained by some of them, with regard to the

limits and extent of the legal operation and effect of the conventional treaties of nations. In the few preceding observations, we have stated what appears to be the true extent of the legal operation of such treaties; and it is both extensive and great. But we cannot admit that such treaties between two, or among several nations, constitute a general common positive or established international law, or have legal validity, beyond the terms and duration of these treaties, or beyond the nations who are parties to them. The earlier international jurists, such as Grotius, Loccenius, and Bynkershoek, appear to have marked distinctly the difference in point of nature and effect between what they called the natural or common consuetudinary law of nations, and conventional law founded on treaties. But several of the later jurists appear to have mixed or confounded the two, so as not to form separate parts of a whole, which would have been quite correct, but so as to identify, or rather amalgamate, the two, and so as in a manner to substitute the latter for the former, or at least to recognise the latter very much to the exclusion of the former. The expressions of Voet are ambiguous, but rather imply that he understood the treaties between Holland and France, and some other states, to constitute the general and common, as well as the particular international law of Europe. From the recent work of M. T. Ortolan, formerly alluded to, entitled Régles Internationales, this is obviously the aim and object of the eminent French lawyers whom he says he consulted. Nay, perhaps, even our English great jurists are not altogether exempt from this animadversion. Sir Dudley Ryder, and Mr Murray, afterwards Lord Mansfield, in their answer to the celebrated memorial of

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