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79 nations, separate from the universal law of nature. Indeed, during this period, it gradually became the custom in Germany, for the teachers of natural law, to divide it into the natural law of individual men, and into the social law of nature; and this last again was divided into the jus nature sociale privatum, into the jus publicum naturale, or general constitutional law of states, and into the natural law, which exists between or among whole nations, in relation to each other, or jus naturale gentium. And there thus came to be introduced into the text-books, or elementary works on the law of nature, a particular section, which, especially in the latest works of this kind, contains a pretty full and good exposition of international law. Among the writers of this description, may be mentioned Burlamaqui, Martini, Feder, Höpfner; and although not noticed by Von Ompteda, Pestel, in his Fundamenta Jurisprudentiæ Naturalis, 1775, and Lumpredi, the third volume of whose Juris Publici universalis
Theoremata, contains, though not without its defects, a very distinct and neat treatise on the natural law of nations.
Positive Law of Nations.
We proceed now to investigate the cultivation of the science of the positive law of nations, frequently called the practical law of nations; though rather incorrectly, because the principles of the natural law of nations,
are as frequently applicable in actual practice, as the rules of international law founded on the acts of menon the consent of nations, as evinced by custom and usage, or expressed in particular treaties.
Leibnitz, we have seen, was the first who collected the various treaties, concluded by states with each other, in order to promote the cultivation of the science of international law,—a useful task, which, we have likewise seen, was afterwards prosecuted and executed with great success, by different Germans and Dutchmen. The materials now collected were abundant; all that was wanting, was to give them a scientific form. This was attempted by the Germans only. Other nations had rather cultivated the law of nature, under the name of the law of nations, or jus gentium.
Among the Germans, the first person who directed his attention to this hitherto almost wholly neglected departinent of the science of the law of nations, and almost for the time the only writer of this description, is the, in Germany, celebrated international jurist, J. J. Moser. In 1732, this individual arrived at the conclusion, that the manifold legal relations, which exist among the European states, and their sovereigns, and are founded partly on express treaty, partly on custom and usage, well deserved to be treated separately, in the form of a proper science. And having commenced the composition of a work devoted to this object; he, in 1732, published the first part of a treatise, entitled, “ Anfangsgründe des Wissenschaft von der gegenwärtigen Staatsverfassung von Europa.” In 1736, he published, along with his miscellaneous works, the projet of an introduction to the most recent European
law of nations, in peace and war. But this essay was little more, than a list of the rubrics, which such a work ought to contain. And it was not till 1750, or 1752, that he published his Grundsälze des jetz üblichen Europäische Völkerrechts in Friedenzeiten, und, in Krieg zeiten.
The author himself admitted that these Grund. sätzen were deficient in completeness and profundity, and were both written in haste. And it is therefore to be regretted, he did not afterwards think of enlarging, improving, and polishing them. On the contrary, he wrote in 1778, at the desire of the duke of Wirtemberg, for the use of the military academy at Stutgard, a much shorter manual, or text-book, entitled Erste Gründlehren des jetzen Europäischen Volkerrechts, in Friedens undKriegzeiten; which may be considered as an abridgment of the Grundsätzen.
In the mean time, Moser found the taste so much increased for the cultivation of the positive or practical law of nations, that he conceived the design of composing a greater work upon it, in the form of a system; which, however, that it might not be too bulky, should embrace European affairs, only from the death of the emperor Charles VI. And for the accomplishment of this object, he solicited the support of the European sovereigns. As a precursor of this great work, he began in the year 1777, to bring out, by degrees, essays on the latest European law of nations, in time of peace and war, chiefly from the state proceedings of the European powers, and other events, which had occurred from the year 1740. This work appeared in
1780; and contains a rich store of materials for the study of the practical law of nations.
During the time he was engaged in composing this essay, Moser gave up entirely the intention of bringing forward his still greater work before alluded to, chiefly on account of the very slender support he received from the European cabinets. But on the other hand, he resolved to publish, in a separate work, what had come under his observation, in the composition of his essays. And then appeared, Beytrage zu dem neuesten Europäischen Völkerrecht in Friedenzeiten, and, In Kriegzeiten, the former in four parts, 1778; the latter in three parts, 1779–1781.
From the preceding narrative, it is plain, the works of Moser, upon the practical or European law of nations, divide themselves into two classes; and are partly outlines, elementary treatises, for teaching, partly more extended, and complete works.
To the first class, belong the Anfangsgründe, the Grundsätze, and the Ersten Grundlehren; to the second class, the Versuch, or Essay, and the Beytrage, or Contributions. In all these works, there prevails almost the same order and division, from which may be seen, what notion he had formed of the range or sphere of the science of the European law of nations. Thus he almost uniformly divides all his works, into the following heads. He begins with a preliminary treatise on the rules, according to which sovereigns ought and are bound, to regulate their conduct, and on the value of precedents in the law of nations. He then treats of Europe, so far as it forms a particular class, assemblage, or society of nations ; of the persons and families of
sovereign princes; of rank and ceremonial among nations; of embassies; of sovereignty and dominion over territories and seas; of sovereigns, official function. aries, and subjects. And then, after discussing various institutions, and affairs, religious, political, judicial, military, financial, commercial and monetary, which relate to the internal, private, public or constitutional law of states, and do not properly belong to international law, he proceeds to the exposition of what is correctly termed international law, namely of treaties and leagues; of pretensions, complaints, disputes, and mediation; of vindication of claims by force, retention, arrest, reprisals, embargo; of war; of allies, auxiliaries, and subsidies; of neutrality; of truces and suspension of arms; of treaties of peace.
The mode of treating the preceding subjects, throughout the whole of the works of Moser before mentioned, is, as we have already remarked, almost one and the same. And as he expressly declares in his prefaces to these works, Moser makes it an invariable rule, to expound merely the proceedings and occurrences incident to, or which concern the practical law of nations, and throughout he pronounces no individual opinion or judgment upon them, (which he calls, reasoning and philosophizing), as he believes, that private judgment upon them is wholly useless, and frequently unbecoming from this opinion, von Ompteda, in 1785, very properly dissented. “I hold,” says he, “that in the law of nations, as in every other science, it is quite legitimate for the learned to treat the subject scientifically, which is far remote from legislative usurpation; to refer the passing events to