the consequences of dishonesty towards tradesmen, the independence of the local authorities allowed to the houses of ambassadors, made their mansions occasionally places of refuge for criminals, who were thus effectually screened from the officers of justice; and, in the case of the franchises at Rome, the ambassador of France made a considerable space round his mansion into a sort of sanctuary, (if that name may be allowed to a den for thieves), where the municipal authorities had no power of pursuing criminals. Thus an immunity, useful in itself, came, by a perverted exercise, to be a public nuisance. This was carried with a high hand formerly, but the obvious absurdity of such a custom has caused a different application of the principle of the "ex-territoriality" of ambassadors: all immunities required by their position are still allowed to ambassadors; but the smallest state in Europe would now refuse to admit the abuses of this privilege which Louis XIV. forced upon the submission of the Pope. Thus has the advance of civilization improved the construction of the customary law: other instances will be remarked as we proceed; this being merely the place for meeting the objection of making a later age subservient to the habits of a previous age. (Where error has been detected as society has advanced, the customary law has been gently modified; it has been modified by the same power to which it owed its existence, and by which alone it can be modified-the expressed or tacit consent of nations; and by this it may still further be altered, when improvements shall be suggested by the greater progress of human society.

law of nations.

Still there are, no doubt, anomalies in the positive law Anomalies in of nations, an imperfection which that law shares in the positive common with all unwritten law; where a slight divergence in the original construction leads to great difference in subsequent results. One of the most remarkable instances of this, in the positive law of nations, will be

The customary law a good system as a whole.

found in the wholly different usages existing in maritime warfare, and in wars carried on by land. In maritime warfare, private property becomes the property of the captor; in wars by land, the property of private persons is usually respected. In wars by land, subjects of neutral governments may accept commissions from belligerents, and be treated like other enemies;-in maritime warfare, a neutral who accepts a commission from a belligerent, is, by many nations, regarded as a pirate. The granting letters of reprisal may also be remarked, wherein sovereigns, whose subjects have unredressed grievances from the subjects of a state with which they are in amity, grant commissions to take forcible possession of cargoes and ships of the offending nation found at sea, and thus to indemnify themselves; while such commissions to seize property on land are never granted. These, and similar differences, partly result from the different nature of hostilities by sea and by land, and partly are the result of settled usages, of which the first establishment is sometimes lost in obscurity, and which may possibly have had their origin in accidental or arbitrary circumstances; but which, by the habitual concurrent practice of states, have now become an acknowledged part of the European law of nations. Divergencies of law are imperfections inseparable from human jurisprudence: not only does one national code differ from another, but there is no national code that is free from anomalies: the law of nations cannot claim an exemption from such inconsistencies; but it has, perhaps, fewer objections of this description than the judicial system of any single nation.

Indeed the customary law of nations, though chargeable with some anomalies, is, as a whole, an admirable system for regulating the intercourse of states. Although the practice of the darker ages has bequeathed to us some objectionable usages, yet, upon considering what the times were when these usages originated, it will appear wonder

ful that there is not more of barbarism in these legal relics. Some of the written instruments of the middle ages, relating to the intercourse of states, have stood the test of being still acknowledged as most consistent with the principles of justice, after modern attempts at innovation; and some usages which we owe to that period, show traces of that Roman code which appears never to have been wholly lost, and of the spirit of that religion which priestcraft never wholly obscured. But the customary law of nations is not wholly, or even principally, dependent on the usages of the darker ages. The great body of its regulations are of more recent institution, and have sprung up while law, and civilization, and religion, have all been advancing together. It has partaken of the influence of their refinement, and has been created as the wants of states have given occasion to its establishment. Arising, as it has done, to satisfy those wants, the customary law has a better origin than regulations derived from abstract principles. It is partly concluded by the practices of a barbarous period, but it was principally affected by the nearer intercourse of states which dates from the wars of the Reformation, a period so remarkable for the action of great minds in great circumstances, and when the usages of nations were controlled by jurists and statesmen whom the world has rarely seen equalled. The advance of civilization has enabled us, in some things, to modify their decisions; but the science which we are considering is under the greatest obligation to their penetration and judgment. It is chiefly owing to their influence that the customary law of nations, like our own common law, though liable to the objection of some anomalies, is yet, when regarded as a whole, an admirable judicial system.

Conventional part of the positive law of nations.

CHAPTER III.

OF THE CONVENTIONAL LAW OF NATIONS.

THE positive law of nations, as has been already mentioned, is dependent on custom and on convention. Treaties, being merely contracts between states, obviously cannot oblige, by their provisions, states which are not parties to such contracts. Nor can any number of treaties, stipulating a particular course of action, although existing for any length of time, oblige, as treaties, any but the contracting parties. But treaties continually engaging the same course of action, or rather articles of the same import continually inserted in treaties, are with reason cited as evidence of the customary law of nations. When, for instance, we find that, excepting only one or two instances, in all treaties, among all European nations, where the right of searching merchantmen is mentioned, it is provided that the commissioned cruiser is to send a boat for this purpose with not more than three or four men besides the rowers, herself remaining at the distance of cannon range,—it is allowable to cite these treaties as indicating the general consent and constant usage of nations with regard to this practice. But it can never be admitted, that any balance should be struck between the number of treaties on one side of any practice and on the other, as has been attempted by some writers. Where a variety of treaties exist, stipulating contradictory provisions, all that can be proved from them is, not that a certain course is customary from

the balance of the number of treaties on one side, but that such contradiction shows that there is no settled usage, or that if there were a settled usage it has been the subject of frequent exception. From incidental circumstances, it is often manifest whether treaties are merely declaratory of an established usage, or whether they are stipulating for unusual privileges. As far as number goes, perhaps, there have not been so many treaties on any single subject, in recent times, as on that of extradition, or delivering up criminals who have fled from the country under whose jurisdiction the crime was committed, to another state, whose tribunals will take no cognizance of the offence. But these treaties, so far from proving any usage of extradition, prove quite the reverse; making it clear, from their constant recurrence, that the purposes of municipal justice require a practice which cannot be claimed unless under express stipulation. The same thing is evident from the vast number of treaties which regard the droit d'aubaine, and which, in stipulating for an exemption from this obnoxious practice, show, numerous as they are, that they are merely a long series of exceptions to a usage which was always in force when not the subject of special contract. Observations will be found in another place on the construction of treaties, and also on their duration, and other circumstances affecting them: treaties are only mentioned in the present instance as the conventional part of the positive law of nations, and are noticed from their effect upon the law of nations as an entire system.