Page images


1739, by Barbeyrac and Rousset, with a supplement of 5 folio vols. This work of Dumont was far more complete, than any of the preceding, and still holds the first rank among all collections of this description.

In 1730, Schmauss published under the title of Corpus Juris Gentium Academicum, a collection of international treaties, during the two preceding centuries; a much shorter work than the last, but for ordinary use, the more convenient; and thereby rendered no common service to the study of positive international law.

There is still a work, very useful in the practical law of nations, serving as a convenient survey or review of all its records, which does honour to the period of the progress of the law of nations, we are now contemplating; namely, Georgisch Regesta ChronologicoDiplomatica. In the first three parts of this incredibly laborious work, are specified all public documents of all kinds, which have appeared, from the year of the Christian era, 314, to the year 1730, in chronological order, with an account of the authors, by which any one of them may be found. In the fourth part, these documents and records are arranged in alphabetical order, according to the persons and subjects, to whom, or to which, they relate. Nothing, observed Von Ompteda, in 1785, was more to be wished, for the study of the practical law of nations, than that the important records in this department, which in the collection of Georgisch, are almost buried and lost among the prodigious crowd of others, which belong to the constitutional law of states, to the canon law, and to the private law of sovereigns, should be selected,



[merged small][ocr errors]

and that there should thence be formed a specification or catalogue, such as to be continued to the present times. Such a work, we shall see, appears to have been subsequently realized by Von Martens.

Section Sixth.

Period from the age of Wolff and Moser, to the age

of Von Ompteda and Von Martens, from 1740, to 1785-1790.

We come now to a later and more important period in the history of the science of the law of nations. During this period, the science came to be cultivated in two different ways. Some jurists made choice of the mere natural law of nations, as in the preceding period, for the object of their study; and we shall see, that this science was cultivated by them in a manner, superior to what was formerly practised. On the other hand, other jurists began to contemplate the law of nations in another point of view, almost entirely new, namely, in a practical point of view, hitherto almost entirely neglected, and to write upon it, under the denomination of the European or practical law of nations. We shall separate from each other, and consider apart, these two classes of authors; of the former of whom the philosopher Wolff, and of the latter of whom, the learned jurist Moser, were the leaders.

SUB-Section 1.

Natural Law of Nations.



Among the writers of last century on the natural law of nations, Christian Baron Von Wolff is pre-eminent. The uncommon services, which this German philosopher rendered to all the departments of philosophy, are notorious. And so important'a science, as the natural law of nations, did not escape his attention. In 1740–1748, he composed and published a system of the law of nature, in eight large volumes; in the last of which, he also embraced the general constitutional law of states. After he had completed this work, he devoted his attention likewise to the law of nations. And in 1749, in the 70th year of his age, he composed the systematic work, entitled, Jus Gentium, Methodo Scientificâ pertractatum, in quo Jus Gentium Naturale ab eo, quod Voluntarii, Pactitii, et Consuetudinarii, est, accuratè distinguitur. This is a complete separate and independent work; although, of course, if one chooses, it may be viewed, as the ninth part of the great system of the law of nature just mentioned.

The title itself shows, that Wolff distinguished the law of nations into the “jus gentium naturale, voluntarium, pactitium et consuetudinarium.” And as he indisputably marks these distinctions with greater accuracy than his predecessors, it may be worth while, with reference to this division of the law of nations into

[merged small][ocr errors]

four different kinds, to inquire, what Wolff understood by the jus gentium voluntarium, in so far as he contradistinguishes it from the jus pactitium et consuetudinarium. On that point, he at the outset expresses himself thus :-“ Quemadmodum ea est hominum conditio, ut in civitate rigori juris naturæ per omnia ex asse satisfieri non possit, ac propterea legibus positivis opus sit, quæ neque in totum a naturali jure recedunt, nec per omnia ei serviunt, ita similiter gentium ea est conditio, ut rigori juris gentium naturalis per omnia ex asse satisfieri nequeat ; atque ideo jus istud in se immutabile tantisper immutandum sit, ut neque in totum, a naturali recedat, nec per omnia ei serviat. Quoniam, vero, hanc ipsam immutationem, ipsa gentium communis salus exigit, ideo, quod inde prodit jus, non minus gentes inter se admittere tenentur, quam ad juris naturalis observantiam naturaliter obligantur; et non minus illud, quam hoc, salvâ juris consonantiâ, pro jure omnium gentium communi, habendum. Hoc ipsum autem jus cum Grotio, quamvis significatu non prorsus eodem, sed paulo strictiori, jus gentium volun. tarium appellare libuit.” Amid all this circumstantial illustration, there still remains a doubt, what more proximate determination of the law of nations, Wolff understood by the jus gentium voluntarium. This, however, becomes more clear, when he further explains, that the jus voluntarium has for its foundation, the presumed consent; the jus pactitium, the express consent; and the jus consuetudinarium, the tacit consent of nations. And his view of the subject is thus succinctly stated in the compendium of his large work, which, after its completion, he published under the title of Institutiones Juris Naturæ et Gentium, Part IV. Cap. I. $ 1090. “ Cum gentes, conjunctis viribus, se statumque suum perficere obligantur, ipsa natura societatem quandam inter gentes instituit, in quam, ob obligationis naturalis indispensabilem necessitatem, consentire tenentur, ut quasi pacto contracta, videatur. Atque hæc societas communis, salutis causâ, inter gentes instituta, civitas maxima vocatur; cujus membra, seu veluti cives, sunt singulæ gentes. Atque hinc nascitur jus quoddam universis competens in singulas, quod imperium universale, sive gentium, appellari potest; nimirum determinandi actiones singularum salutis communis obtinendæ causâ, et cogendi singulas, ut obligationi suæ satisfaciant. Cumque omnis societas suas habere debeat leges, quibus determinantur ea, quæ salutis communis causà semper eodem modo, fieri debent; civitas quoque maxima, leges habere debet. Quemadmodum, vero, lex naturæ præstat consensum in civitatem maximam ; ita eadem quoque eundem supplet, in condendis legibus. Sicuti, enim, in qualibet civitate, leges civiles ex naturalibus condendæ, et ipsa lex naturæ præscribit modum, quo id fieri debet; ita, quoque, ex legibus naturalibus, fieri debent leges civiles in civitate maximâ, eodem modo, quo in civitate qualibet particulari, juxta theoriam, lege naturali præscriptam. Atque hoc jus, quod ex notione civitatis maxima derivatur, cum Grotio, dicimus jus gentium voluntarium.”

The Wolffian jus gentium voluntarium; thus, appears, to be nothing else, than that, to which Von Ompteda afterwards gave the name of the modified natural law of nations. And it is to be regretted,

« PreviousContinue »