Farther, conventional treaties among nations are particularly useful, in ascertaining and in improving the state of International Law. In that law, various cases occur in detail, in which a certain indefinite time is involved as a condition or limit, or in which a more precise description of goods, or effects, as articles of commerce, is required. And in such cases treaties, for instance, by fixing the period, allowed upon a rupture, for the departure of foreigners, or by specially describing what goods are to be deemed contraband of war, perform in some measure the functions of statutes or legislative enactments, in the common private law of a state, when the statute fixes the period of prescription, and determines other such matter naturally indefinite.

In international common law, likewise, as in the internal private common law of states, the common customary rules adopted in practice may, in the progress of civilisation, become cumbrous, or productive of hardship to third parties, not intended or required, or, in such altered circumstances, no longer adapted for the attainment of the legitimate object which all parties had in view. And in such cases of common consuetudinary international law, conventional treaties among nations, to a certain extent and in some manner, serve the purpose of legislative enactments in the internal common private law of states; and are useful in affording an opportunity to nations of modifying the customary rules which previously prevailed in practice, and establishing rules in the reciprocal intercourse of the contracting parties. But the analogy, in this respect, between treaties in international common consuetudinary law, and legislative enactments, in the internal common private law of states, obviously extends no farther. Legislative enactment is manifestly the exercise of the supreme power of the state concentrated in the government, and binding upon all the members of the community, who, though fellow citizens in relation to each other, are the subjects of the state or government. But there is no such supreme legislative power among, or over separate nations, who are confessedly independent of each other, and have no superior on earth.

Farther still, when a rule of conduct in their reciprocal inter

course has been adopted by treaty by all civilised nations, (by which is generally understood the European nations and those who have emanated from them,) that rule may not only become, by this express almost universal consent, a part of positive or established international law among these nations, as long as the treaty endures or is renewed, but may, by long continued reciprocal observance after the treaty has ceased to be binding, become a part of general common consuetudinary international law. For such a purpose, however, or to have such an effect, the consent given by treaty or convention must have been universal, so far at least as regards the nations to whom the rule is sought to be applied, and at all events must have been given, and the rule continued to be observed by the nations against whom it is urged, after the lapse of the period of duration of the treaty, or its cessation from other legitimate

causes.

For a particular treaty or convention between two, or among several nations, however numerously acceded to by other nations, can never bind those nations who are not parties to it. Learned and industrious men, like M. de Martens, may collect from the great numbers of treaties which have been concluded among civilised nations, the usual subjects of stipulation, and may, by arranging and classifying the rules so stipulated, produce a systematic work, binding and obligatory, upon the contracting parties, so far as the treaties out of which it is compiled or composed, are still in existence and force; and such a compilation may, no doubt, be otherwise useful historically. But, it is vain to maintain that in this way any code of International Law can, consistently with sound legal principle, or accurate logical deduction, be reared up or created, such as to be binding upon the nations who were not parties to the treaties, or even upon the contracting parties, after those treaties have expired from lapse of time, or ceased, from other legitimate causes, to be legally obligatory.

We have thus traced the origin of International Law to three distinct sources, all existing in fact, and ascertained by observation and experience; and as the result, we find two distinct branches, or component parts, or divisions of that

law: first, Common consuetudinary law, including its scientific development by jurists and judicial determinations; secondly, Conventional law, composed of rules established by treaties still in force and legally obligatory.

Beside these sources and this bipartite division, we do not see any valid grounds for admitting as branches or component parts of International Law, either the "analogy" of M. de Martens and M. Klüber, or the "reason" of M. Ortolan and of M. Th. Ortolan, the latest French writers on this subject.

If, by "analogy," be meant reasoning or logical deduction from premises by analogy, it is a faculty of the mind applicable to all the sciences as well as that of International Law; and obviously cannot, as such, with any propriety be viewed as a branch of that law, or, indeed, of any particular science. If by analogy it be understood that, not merely identical or similar cases, but likewise analogous cases, are to be held sufficient to support an argument or general rule inferred or deduced from them, there will be great risk of these inferences or deductions from analogous cases proving erroneous; and, although analogical reasoning is certainly admissible, if cautiously conducted, in the science of International Law, as well as in all the other sciences, it cannot properly be said to constitute a component part of that law, either co- ordinate or subordinate.

As little can we concur with M. Th. Ortolan, and the eminent French lawyers whom he states he consulted, in placing "reason" as the first branch or source of International Law, along, and co-ordinate with Common consuetudinary law and Conventional law. Indeed, he seems to have fallen into the error of preceding writers, pointed out by Mr. Bentham. For there does appear to be an awkwardness, or inaccuracy, if not inconsistency, in the arrangement which M. Th. Ortolan merely adopts after several anterior writers; inasmuch as it places "reason" as the first source or branch of International Law, and at the same time holds that "reason" is only to be consulted in the last place, after Conventional, and after Common consuetudinary law. There can be no doubt that in practice, the Conventional law of nations ought to be first consulted; because a treaty is a special contract by the state or government, very frequently conferring a right or imposing

an obligation which did not previously exist, and usually a deviation, by the express consent of contracting parties, from the pre-established practice. And the error seems to consist in introducing "reason" as the first constitutive authority in positive or established International Law. The truth, indeed, seems to be, that reason may be exercised as a faculty, or appealed to as an authority, both in interpreting the import of treaties, that is, the Conventional law, and in discerning and ascertaining the Common Consuetudinary law of nations, as founded on their juridical relations, and on their long established and uniform practice; but cannot be correctly introduced, either as a branch or as a source of International Law, any more than of any other science. In modern languages, reason appears to have chiefly two meanings; either what is reasonable, what reason enjoins or dictates (ratio juris, rationis dictamina), or the faculty, by which the mind intuitively perceives or apprehends first truths; or "l'Art de Raisonner," so beautifully illustrated by the Abbé de Condillac, in his "Cours d'Etude," in its application to physical astronomy, viz. the faculty of logically deducing the consequences which flow from first truths, intuitively perceived or apprehended, or otherwise pre-established. But if the term reason be used to denote a faculty of the mind, it obviously, in that sense, cannot be employed, either logically or grammatically, to convey the idea of a branch or department of law for the compulsory regulation of human conduct. And if it be used to denote what is reasonable, what reason dictates, among nations, reason is, no doubt, in that sense sufficiently comprehensive to embrace law; but it is manifestly too comprehensive and indefinite to include merely and solely, and to define or describe distinctly, law susceptible of coercion, much less to form a subordinate member in an arrangement of the branches or constitutive parts of a particular department of

such law.

Having now traced the sources and distinguished the two great branches or component parts of International Law, we shall proceed in our future numbers to mark the nature, limits, and effects of these two branches, Common consuetudinary, and Conventional.

ART. III.

BROOM'S LEGAL MAXIMS.

A Selection of Legal Maxims, classified and illustrated. By HERBERT BROOм, Esq., Barrister. 2d edition. Maxwell, 1848.

THE design of this work is a good one, and it has been well executed. There are few who will not be instructed and interested in its perusal. Out of an alphabetical list of lawmaxims, collected from various sources, and about five hundred in number, one hundred are taken by the author as illustrative of certain important branches of the law, and are thus divided into ten chapters, as follows:- Chap. I. s. 1., Rules founded on Public Policy; s. 2., Rules of Legislative Policy. Chap. II., Maxims relating to the Crown. Chap. III. s. 1., The Judicial Officer; s. 2., The Mode of administering Justice. Chap. IV., Rules of Logic. Chap. V., Fundamental Legal Principles. Chap. VI. s. 1., The Mode of acquiring Property; s. 2., Property—its Rights and Liabilities; s. 3., The Transfer of Property. Chap. VII., Rules relating to Marriage and Descent. Chap. VIII., The Interpretation of Deeds and Written Instruments. Chap. IX., The Law of Contracts. Chap. X., Maxims applicable to the Law of Evidence.

The work is, therefore, obviously incomplete in two respects all the maxims are not illustrated, nor is any one maxim attempted to be exhausted by giving its full bearing on every branch of the law. But so far as the author's design goes, we think that in general the maxims that he takes up are well selected, and the instances which he selects of their bearing on the particular branches of the law of which he treats, are brought out in a clear and striking manner. Mr. Broom's intention, we apprehend to be, to furnish the reader, and more especially the student, with a stock of principles which, being well acquainted with, he may proceed on his way with some confidence. Many modern treatises rather encumber the beginner than assist him. Like David in