Page images




Having thus endeavoured to form a pretty accurate notion of international law; inquired historically into its cultivation as a science, and considered at some length, the different kinds or descriptions of international law; its range or sphere; its sources, and its gradual growth or development; we proceed to inquire, what are its general, or primary component parts, and how far they are susceptible of scientific arrangement.

- As in contemplating the rules of the internal law of states, we found it convenient, agreeably to ordinary practice and language, to view them under the aspect of the thence resulting rights and obligations of individuals, which constitute jurisprudence, so in contemplating the general rules of international law, we may view them under the aspect of the thence resulting rights and obligations of nations towards each other.

In our historical sketch we have already sufficiently noticed the method and order adopted, by Albericus Gentilis, Grotius, Zouch, Wolff, and Vattel. And we shall now shortly examine the more recent arrange


ments of von Martens, of Lampredi, of Rayneval, of Schmalz, of Klüber, of the author of the Traité Complet de Diplomatie, and of Dr Wheaton, with a view to a more scientific classification of the chief component parts of international law.

With all the important services he has rendered to the science of international law, von Martens, certainly, in his Précis du Droit des Gens Moderne de l'Europe, does not excel in general logical arrangement. This will be manifest from the following very short review of the contents of his work. In his first book, he treats of the states of Europe in general; of the connexion which subsists among them; and of their political divisions, and constitutions, as in relation to each other. In his second book, he treats of the manner of acquiring positive rights among nations; and under this head, discusses the acquisition of property by occupancy, international treaties, usage, analogy, and prescription. In the third book, he treats of the reciprocal rights of states, relative to their internal constitution; and very properly confines his discussions to the international questions which arise in this department, without falling into the error of Vattel in occupying a third part of a work on the law of nations, with treatises on the internal, public, and even private law, or jurisprudence of states. The fourth book he devotes to the rights of nations, relative to foreign affairs ; and under this head, rather awkwardly, and not very appropriately, introduces the rights of nations to the maintenance of their own security and independence; their equality in point of right; their precedence and dignities; and their rights, relative to



commerce, and upon the sea. The fifth book, he confines to the rights relative to the persons and families of monarchs or princes. In the sixth book, he treats of amicable, and diplomatic negotiations. In the seventh book, he treats of embassies, and of the different kinds of diplomatic ministers and political agents. The eighth book, he devotes to the defence and prosecution of international rights, viâ facti, by physical force; and under this head, he treats of retorsion and reprisals ; of the commencement of wars; of the rights of belligerent powers regarding the manner of carrying on war; of military conventions by belligerents; of allies and auxiliaries; of neutrality; and of the re-establishment of peace. In the ninth book, he treats of the extinction of acquired rights among nations.

Lampredi, following Wolff, gives the following somewhat improved, but still defective arrangement, in the third volume of his Juris Publici universalis

Theoremata. After his Proæmium, de Origine Juris Gentium, he treats in his first three chapters, De Officiis Gentium erga seipsas, de Dominio et Imperio Gentis, and de Gentis propagatione. Then, entering upon international law, properly so called, he treats in the 4th, 5th, 6th, 7th, and 8th chapters, De Officiis Gentium erga alias, de æqualitate et libertate Gentium, de Officiis Gentium, quæ ex Dominio et Imperio ortum ducunt, de Jure Necessitatis inter Gentes, and de Præscriptionibus inter Gentes. In chapters 9th and 10th, he treats, de Pactis Publicis, et Foderibus Gentium, and de Accessoriis Foderum, de Guarantigiâ, Pignore, et Obsidibus. In chapter 11th, he expounds, Quomodo

[ocr errors]

Controversiæ Gentium componuntur. In chapters 12th and 13th, he treats De Jure Belli, and De Jure Gentium in Bello. In chapter 14th, he treats De Pactione Pacis; and in chapter 15th, De Legationum Jure.

After devoting the first book to the internal public law of states, in imitation of Vattel, M. de Rayneval, in his Institutions du Droit de la Nature, et des Gens, adopts in the second and third book the following rather improved, but obviously not very logical arrangement. In the second book, concerning the relations of nation to nation, he treats of the independence of nations ; of their territory and its limits; of communications between nation and nation; of commerce; of alliances and the obligations resulting from them; of the modes of acquisition among nations, and of prescription ; of the sea, rivers, and lakes; of guarantees, of retorsion, reprisals, embargo, and retaliation; of foreigners, and political agents; of the titles, rank, and dignity of sovereigns. In the third book, concern. ing the state of war, and of peace, he treats of the origin, causes, and declaration of war; of things permitted or prohibited, by the laws of war; of the effects of war, conquests, prisoners, hostages, inhabitants of conquered countries, sieges, blockades, capitulations, and safe conducts; of allies, associates, auxiliaries; of neutrals, of maritime war, visitation of vessels, letters of marque, prizes; of conventions between enemies, truces, suspension of arms; of the right of postliminium; of treaties of peace, arbiters, mediation; of the execution, interpretation, observance and non-execution of treaties.

In his valuable work, entitled das Europäische Völkerrecht in Acht Büchern, Berlin, 1817, M. MARTENS, LAMPREDI,


Schmalz, as he designedly avoids some of the formalities usually observed in German works on law, appears also not to have aimed at any very logical, or scientific general arrangement. In the first book, he treats of the formation of a law of nations, and particularly the European law of nations. In the second book, he treats of the European powers, of the general rules of the European law of nations ; of treaties, and of the rules observed in this department of the European states. In the third book, he treats of the rank, functions, and rights, of diplomatic agents. In book fourth, he treats of the reciprocal rights of nations, with reference to the constitution of the state, jurisdiction, and administration of the government. In book fifth, he treats of the personal relations of sovereigns, of the maritime rights of nations, of the commerce of nations, and of the independence of nations. In book sixth, he treats of hostilities among nations in general, of the commencement of war, of the mode of carrying it on in general, and of the consuetudinary law of nations, concerning particular operations in war. In book seventh, he discusses treaties with the enemy; the conclusion of peace. In book eighth, he treats of allied powers, and of neutrality.

In the preceding short review of the plans of the principal works on international law, which appeared towards the close of the last, and in the course of the present century, we find considerable improvements in the more minute arrangements of particular departments in detail. But it seems to have been reserved for Klüber, in his Droit des Gens Moderne de lEurope, Stuttgart, 1819, not only like von Ompteda,



« PreviousContinue »