and now occupy America, we may, with sufficient propriety, say that Consuetudinary International Law, by which we mean not only the natural, but the positive, as the Germans call it, or the established, recognised, and practised law of nations, in being common to them all, resembles the internal common law of a people, at least more so than any other international law arising from treaties or conventions: and here we allude not merely to those more humane rules of the law of nations which have been introduced in modern Europe through the mild influence of Christianity, as so well explained by the late Mr. Robert Plumer Ward in his "History of the Law of Nations, anterior to Grotius," by Principal Robertson and other historians, such as the sparing of life on the surrender of arms, the non-reduction of prisoners of war into slavery, the abolition of the use of poisoned weapons, the good treatment and frequent exchange of prisoners of war, &c. We allude also to some later improvements, such as the abolition of paper blockades, at one time resorted to by Holland and England against the aggressive policy of Louis XIV., but abandoned upon neutral remonstrances; or as the unjust, but long persevered in practice of the French and Spanish governments, in confiscating neutral vessels because they carried hostile goods, and neutral goods because they were carried in hostile vessels. No dubiety, vagueness, or insufficiency arose from these changes and modifications, notwithstanding or in consequence of the antiquity of the customary rule which came to be observed.

With regard, again, to the propriety and correctness of the application to Consuetudinary International Law of the term "common," here disputed by M. Ortolan, we apprehend he mistakes the meaning of the term both in the ancient and modern languages of Europe, limiting it to what is effected through a simultaneous or contemporaneous joint agreement, or union of consent; whereas the term implies also, if not its essential, its chief and ordinary signification, as predicated of law, rules, or courses of conduct, identical or similar, separately followed or adopted by different individuals in civil society, or by nations, whether contemporaneously or in succession by different generations. The jus gentium of the

Romans, as contrasted with their peculiar jus civile, was the common law of mankind advanced to a certain degree in civilisation, although not emanating from any joint or simultaneous agreement. The rights and obligations which we formerly enumerated, chiefly constitute the jus gentium inter civitates, primarium et secundarium; and that law is called Common, from being common to, and as having been usually followed by, if not all nations, barbarous and civilised, at least by all the civilised European nations and those emanating from them, and from the same or a similar description of unilateral acts, though performed separately and independently, having been uniformly performed by these different nations in common.

Farther, for the propriety of the application of the appellation "common" to General Consuetudinary and Non-conventional Law, we may even appeal to the authority of one of the ablest French jurists of the present century, in speaking of whose work, M. Dupin says, "It is a great advantage to have the power of benefiting by the meditations of a man whom long practice has enlightened; we have this advantage in the possession of the book of M. Gerard de Rayneval; he has always been attached to foreign affairs and to French diplomacy." Thus says M. de Rayneval: "I cannot cease to repeat, treaties (their contents are of no importance) do not constitute the law of nations; they are the expression of the particular will of the contracting parties, and the law of nations is independent of that will; they are of the same nature as contracts between individuals; but in the absence of any contract, it is the common law' which decides; and between, or among nations, the common law is the law of nations, le droit de gens."

ART. IV. — THE COMPULSORY ENFRANCHISEMENT

OF COPYHOLDS.

1. Copy of the Sixth Report of the Copyhold Commissioners to Her Majesty's principal Secretary of State for the Home Department, pursuant to the Act 4 & 5 Vict. c. 35.

2. A Bill intituled "An Act to extend the Acts for the Commuta tion of Manorial Rights, for facilitating the Enfranchisement of Lands, and for the Improvement of Copyhold and Customary Tenures," presented 2d June, 1848. Amended in Committee and reprinted 17th July, 1848.

THERE is scarcely a point on which the profession has so long and so completely made up its mind as that of the Enfranchisement of Copyholds. That dislike to the dregs of the feudal system which, according to M. Guizot', exists in the mass of the people, as well in France as in England (and we may add nearly all over Europe), has to this extent at least pervaded the legal mind; and although the conveyancer may yet delight in the idea of the freehold being full, or the pleader still admire the dramatis persona of the action of ejectment, yet they join in detesting copyholds, root and branch. Not even the writing a book on the subject can inoculate its author with even a leaning in its favour; and our readers will remember that Mr. Watkins concludes his learned treatise on this subject by denouncing the whole body of law which he had so laboriously explained. "A system of jurisprudence," he exclaims", "cannot remain perfectly the same while the manners of nations change. The principles which originate in barbarism cannot meet the wants of an improved and refining age. The principles of nature are

"Feudal despotism has always been repulsive and odious. It has oppressed the destinies, but never reigned over men. Hence, I conceive, the truly pro. digious and invincible hatred with which the people of all times have regarded the feudal system, its recollection, its very name." (Guizot's History of Civilization, as translated by Hazlitt, vol. i. p. 73.)

2 Treat. on Cop, 161, 4th ed.

fixed and immutable, and laws founded on those principles will always apply: but laws founded on arbitrary impositions, or the peculiar manners or necessities of a particular age, should not be permitted to shoulder out common sense from society, or incumber the conduct of persons to whom they cannot in reason relate. The prejudices of the ignorant, and the opposition and arts of the interested, must be expected and met; but we should meet them with manly firmness while conscious of the integrity of our views. We should recollect that we cannot reason from a matter of fact to a matter of right, and that it does not follow of necessity that because absurdities and inconveniences exist, they therefore ought to be cherished."

This, it must be confessed, is pretty strong for an author who thus, regardless of further editions, gave up his own bowels to the knife of the law reformer. But the witnesses before the Real Property Commissioners, chiefly belonging to the same class of the profession as Mr. Watkins, and best acquainted with the subject, overflow with similar language, and lift up their almost united testimony against the copyhold system. We shall not think it, therefore, so necessary to dwell on its general defects and disadvantages as to mention the steps recently taken to get rid of them; and here the legislature has shown all that care and caution which is so necessary in dealing even with the most faded and putrescent rights affecting the law of property. The main principles of the scheme for gradually abolishing this tenure, were laid down by the Select Committee of the House of Commons in 1838, of which the most prominent members were Sir Robert Peel and Lord Campbell. This committee came to the following conclusions: "That it is the opinion. of this committee that encouragement and facility should be given for effecting, by a voluntary agreement of the parties interested, the enfranchisement of lands held by copyhold and customary tenure, and for the commutation of heriots. 2. That such encouragement and facilities should continue. only for a time to be limited. 3. That the attempts to effect such voluntary agreement should be made under the superintendence of the Commissioners for Tithe Commutation, VOL. IX.

U

4. That it is expedient that provision should be made by the legislature for carrying into effect, in the event of the failure of voluntary agreements, a compulsory arrangement for the enfranchisement of copyholds and commutation of heriots on such a basis as may appear, according to the circumstances of each case, most equitable, so far as regards the interests of all parties affected, such compulsory settlement to take place immediately after the expiration of the period granted for the purpose of making a voluntary agreement." The same committee subsequently made a Report, in which they entered rather more fully into the subject, and ended by recommending that facilities for enfranchisement should be given for a short term of years, and that after that period the enfranchisement should proceed on the compulsory principle; and they recommended that a bill, having this object, should be introduced in the next session. This bill was accordingly introduced by Mr. James Stewart, was supported by the Whig government of that day and the great majority of the Conservatives, and, after some delay, and certain changes and vicissitudes, became the act 4 & 5 Vict. c. 35., the provisions of which have been subsequently extended.1

By these acts, the Tithe Commissioners, according to the recommendation of the Report, are constituted "Copyhold Commissioners" for a limited period, which has been twice extended, and are entrusted with powers for carrying the act into effect. It provides two modes of remedying the evils now affecting the copyhold tenure. By the first of these, the burdensome incidents affecting it, as fines, quitrents, and heriots, may be commuted for a corn rent-charge, leaving the tenure untouched; and here, the lord consenting, three-fourths of the tenants of any manor in number and value, may bind the remaining fourth at a meeting to be called for that purpose; and, secondly, great facilities are given to enfranchisement. 1. By allowing all lords, whatever may be their interest in the manor, to enfranchise, duly protecting the rights of the remainder-man; 2. by relieving

16 & 7 Vict. c. 23. 7 & 8 Vict. c. 55.

2 The last act for extension is the 10 & 11 Vict. c. 101.