tion of mankind, &c., &c. When contracts are propounded, in which the particular stipulation or arrangement is expressly made, it is so far certain that they are not absolutely to be considered as the observance of that rule of law, since the arrangement has the form of an agreement, which, in its form, at least, contains not the presupposition or announcement of an existing rule of law or command. But, on the other hand, this is not altogether decisive, since scarcely ever is a contract concluded in which the contracting parties confine themselves to that which needs or requires a special settlement."

"This question, then, will always be possible, whether the arrangement in the contract is the subject-matter of the agreement, or whether it has its foundation in the conviction of a pre-existing juridical or legal precept or command. The last may be urged and adduced, along with concurring circumstances, for evidence; and under this requisite, contracts may be in so far used as evidence for the existence of the rule of law. In particular, the expressions used by the contracting parties may point or direct to those sources whereby they, in a certain measure, justify their arrangements."

Such appears to be the doctrine laid down by the latest and ablest Continental lawyers, with regard to the juridical or legal effect of contracts between private individuals living in civil society, as affording or not affording evidence of a rule of the internal common consuetudinary law of states, as administered to the individuals of whom they are composed. And no valid reason appears to have been assigned why the same doctrine should not be held applicable to the same indi

viduals, when viewed in their collective capacity, as constituting a people or state. The result of this application is, that where or when a line or mode of conduct does not appear to have been previously followed and spontaneously observed by nations towards each other, a convention or treaty agreeing to such a line or mode of conduct for the future, affords evidence of the non-existence of such a mode or rule of conduct as part of the common consuetudinary law; but that, as a line or mode of conduct which may have been well enough understood before, and occasionally followed, may be rendered more distinct, certain, and secure by the parties agreeing to it in express terms in a treaty, the latter may in this way afford a degree of proof that such right and correlative obligations were previously intuitively perceived or apprehended, or instinctively felt, and that the treaty merely rendered them more precise, and confirmed them. While, however, the alternative just alluded to remains doubtful, it does not appear how the frequent repetition of such treaties, or of the similar stipulations contained in them, can create any legal obligation on other nations beyond the parties so making or agreeing to such stipulations, or beyond the terms or endurance of the contract.

Such treaties may, for a time, recognise and confirm a rule of the common law, but they cannot create it beyond their own endurance, so as to be legally binding beyond the contracting parties. In cases where the common consuetudinary law merely establishes the general right and corresponding obligation, which, for their practical enforcement, require specification with regard to locality or time, or external material descrip

tion, conventions or treaties are, as already remarked, of great utility such as fixing the time for allowing foreigners to depart in the event of a rupture; fixing the time when peace is to take effect in different quarters of the globe; describing what articles are to be considered warlike stores, where the general or common law merely determines that the act of carrying warlike stores for the supply of a belligerent nation is a departure from the strict impartiality implied in neutrality, and warrants confiscation. But in such cases, where the specification rests solely on the treaty, such specification cannot be held obligatory on other nations, who have not consented to the contract.

SECTION IV.

Limits of the Conventional Law of Nations.

Having thus found that the theory proposed, though perhaps not originally suggested or steadily persevered in by Martens, cannot even be supported on the plausible ground of its being a sort of consuetudinary law founded on a series of similar stipulations, in a succession of treaties, we proceed, in the second place, to inquire whether the argument of still later international jurists, in support of that theory, be not inconsistent with previously recognised legal principle, and a deduction which does not logically follow from the premises in point of fact. And of these still later writers on international law, as

* See "Précis," tom. ii. § 344.

far as we know, there are chiefly two-Dr Wheaton, the eminent North American lawyer, and M. Théodore Ortolan, who, besides his own, narrates the opinions of eminent French lawyers.

With regard to the former, while we have long entertained profound respect for this highly distinguished American international jurist,-while we have admired his extensive erudition, his acute discrimination, his generally lucid arrangement, and his enlarged views as a lawyer and a historian,—we have not always found him free from, or superior to, those perhaps natural, and at all events usual, patriotic biases, to which we are all (frequently insensibly) so liable; and, in particular, have all along deemed his theory or doctrine respecting the conventional law of nations exceptionable, inasmuch as he appears to us to exaggerate greatly the juridical or legal operation and effect of treaties. He appears to us to consider these treaties as constituting, and proving not merely a considerable part, but, if not the whole, the chief part of international law; while we consider them, although highly useful on various occasions, as merely supplementary of the common consuetudinary law of nations, and as presupposing in most cases, and proceeding upon the recognised pre-existence of that common law. We have just seen that public treaties, or contracts between nations and their governments, are not acts of such a nature as that they of themselves, or the stipulations and provisions contained in them, although if not identical at least similar, and although frequently inserted and repeated through a series or succession of such treaties, can become or afford a basis for a sort of customary law; since such treaties are merely matters

of free will, of choice or option, and do not possess the ordinary and recognised requisites for constituting a solid or sure foundation for such a structure, beyond their actual and true contents, as liberally, but legitimately, interpreted.

But, further what do treaties between nations really prove? They certainly prove that at such a time certain. stipulations were made, and certain engagements were undertaken, by two or more nations, for a definite or indefinite time. But they afford no proof of such engagements having been fulfilled or performed. For the sake of argument, however, we shall suppose that the treaties do afford evidence of the actual fulfilment and performance of their engagements, as well as of their having been contracted. Still, nevertheless, the undertaking and performance of these engagements are merely proceedings or transactions between the contracting parties solely, and with reference only to their own concerns. They may alter or modify the pre-existing law, or preexisting usage or rule of practice, so far as regards the two nations in relation to each other; but they do not prove any alteration or modification of the previous practice, as between either of the contracting parties and other nations. This negative position, it is plain, is established by the absence or want of any proof to the contrary, either in the treaties themselves, or in other contemporary or subsequent historical state documents. And upon investigation the negative will generally be found established, by positive proof, of the continuation by the contracting parties of their previous practice, or adoption by them of a different practice, with reference to other nations. With regard to the more early com