consequently the law resulting from "several (plusieurs) isolated treaties, is not a universal law, but a particular law," he goes on to observe, "these authors have considered, successively and separately, the conventions concluded at different epochs, by each of the civilised powers with the others; they have ascertained, that in these public instruments, having for their end to regulate interests particular and in detail, but also to fix the grand principles of general interest, some of those principles were always, or most frequently, recognised by common consent; that if, in times of war or misunderstanding, an abandonment of those principles had sometimes taken place, nations, instructed by experience of the disastrous consequences of that abandonment, had of new proclaimed the same principles in their treaties of peace, and had stipulated the constant observance of them in future. From that time (on a été fondé) people became entitled, or warranted, to deduce from that almost general conformity of decisions a theory of what is practised, or ought to be practised, among civilised nations in virtue of written stipulations; and that is what has been called the law of nations, conventional, or of treaties."

Now we are not quite convinced that this very ingenious and plausible narrative is historically quite correct, so far as regards civilised nations entering into treaties for the purpose of fixing in perpetuity the grand principles of general interest, or that they had the legal power to do so, unless they all concurred; or that they could legally bind other nations, not parties to the contracts founded on, to observe those principles, especially after the treaties themselves had terminated, and ceased to be legally available even against the contracting

parties. And to concede to learned jurists, however high their talents, the power of thus deducing the grand principles of the general interests of nations from the stipulations and engagements in particular treaties, would be, we suspect, to confer upon them a greater authority than any of them, from Grotius to Vattel, ever supposed they possessed.

Further, by what operation or process this, confessedly at first a mere particular conventional law constitued by separate successive treaties, has become or been converted into a general conventional law of nations, through a combination or comparison of the similar stipulations and engagements in these treaties, is not distinctly explained. But that the author, while he deliberately admits that the conventional law of nations founded on similar stipulations in successive treaties is particular, and binding only on the contracting parties, rather inconsistently maintains that such conventional law may by some operation be actually converted into a general conventional law of nations, binding upon all states, whether parties to these treaties or not, is manifest from the immediately succeeding paragraph, in which he assumes the existence of a general conventional law of nations, and talks of "the conventions, of which the stipulations depart from that general conventional law," and "which form, among the parties solely, a particular conventional law." And the mode in which this conversion of particular and limited obligation into general and unlimited is alleged or pretended to be effected, may be inferred from the quotation, which the author makes in terms of approbation, in that paragraph from the earlier anonymous work entitled La Liberté de Navigation et de Commerce, published in

1780, and ascribed by Kamptz to Professor Cobald Totze, of Bützou.* "But" (says Professor Totze, as thus quoted) "there are treaties in which very different principles are adopted in the same affair. If, then, these principles are completely opposite to each other, the law of nations becomes dubious and uncertain. Nevertheless, as in the common occurrences of life and of affairs, we consider what is done most frequently and usually as the rule, and what happens only rarely and against the ordinary practice as the exception, a principle which is established on the greatest number of treaties ought to be regarded as the rule; and that which is found in the smallest number of conventions as the exception. It is, then, according to the principle contained in the greatest number of treaties that the dispute ought to be decided; and especially if the greatest number of these treaties are of a more recent date, and the smallset number of the most ancient. For from this circumstance it may also be inferred, that nations have gradually abandoned an old principle in order to adopt a new one; and that by that change of principles they have likewise changed the law of nations."

Now this quotation gives a tolerably distinct explanation of the mode in which the particular conventional

"Re

For a short account of this author and his work, see searches, Historical and Critical, in Maritime International Law," 1844, 1845, vol. i. pp. 326-342. He was a partisan polemical writer, equally bold as ingenious, sweeping away, as rubbish or as oppressive, the works of all previous international jurists and usages, founding international law solely upon treaties, particularly those of the seventeenth century, as constituting what he called "Le Nouveau Droit des Gens Européens."

law of nations-as to the existence of which there is, and can be, no dispute-is pretended to be converted into a sort of general conventional law of nations, namely, by selecting, from a number of contemporaneous or successive individual treaties, those stipulations and engagements which are similar and the most numerous, and, by combining them into a whole, or so many wholes, so as to be binding not only upon the majority, who may have pro tempore consented to such clauses, but upon all civilised nations. The early explanation, however, thus given by Professor Cobald Totze, was perhaps too lucid an exposition of the process of conversion; and a little more mystery appears to have been deemed advisable by the later jurists who supported the doctrine, till this originalexposition has been again recently resorted to.

For, beside the faint analogy that exists between the two different cases, which Professor Totze holds to be nearly identical, and besides the loose and illogical nature of the reasoning, these particular or individual treaties, so much founded on, it is plain, can only prove and produce a limited and temporary change of the common law of nations namely, to the extent of the reciprocal conduct of the contracting parties towards each other, in the matters fixed by the treaty, so long as the treaty lasts; they produce no valid change in perpetuity, or even permanently, with certainty; they do not prove or produce any change even in the conduct of the contracting parties towards other nations; while, in the greatest number of such cases, there exists positive proof of their previous practice being continued in relation to other nations, by documentary evidence as valid and authentic as the treaties themselves.

But further, and what is of more consequence, the principle here suggested by Professor Totze, and still sanctioned by M. Ortolan, is obviously a departure from, or rather a subversion of, the essential and fundamental rule of the law of nations-their universally admitted and immemorially recognised independence of each other. It manifestly presupposes and proceeds upon a legislative, or judicial, or executive and administrative control in the majority of civilised nations, over the minority-a power in the majority to create legal obligations binding on the minority without their consent, in direct opposition to the maxim, that nations have no superior upon earth, except the Supreme Being, and, in point of right, are subject to no control, except through the physical laws, material and moral or mental, juridical or legal and ethical, which the Omnipotent and all-wise Creator and Preserver of the universe has established.

SECTION V.

So much for the two grand constituent parts of international law-common consuetudinary and conventional -and for their respective natures, extent, and limits.

From our cursory observations on this subject, it is plain our view of international coercive law differs considerably from the views of various jurists; and it may not be improper to conclude our remarks by here briefly noticing these differences.

International law, it is manifest, may be contemplated, either as existing independently of the power or acts of men, whether as individuals or as congregated into