Page images
PDF
EPUB

fundamental principles; and to judge of them according to those principles.” But Moser remained throughout firm to his own assumed rule of conduct ; and did not allow himself in any of his works, to lay down as a ground, or foundation, the smallest principle of the natural law of nations. In this way, his elementary books for teaching, or text-books, consist of mere dry and meagre, though learned, lessons of experience; which are not supported by any general principle, or placed in connexion; and are entirely and exclusively practical, in the proper, but perhaps too restricted sense, of that term. In the more complete works, the Versuch, and the Beytrage, these dictates of experience, are repeated and illustrated by copious precedents, from the most recent times. And it is in consequence of these extracts from the public records, of various descriptions, that the works of Moser have become so voluminous.

Such is Moser's mode of investigation. “But by this description of it," says von Ompteda, “I by no means wish to detract from its merits, which I always considered great.” Moser himself does not maintain, that he had produced anything perfect or complete, or of the character of a regular system; and could not do so correctly. But in the science of the practical law of nations, he laboured adinirably, so as to merit the name of its founder. And he deserved the cordial thanks of all his successors, who soon learned to recognise the value of his laborious exertions, and of his good arrangement of the propositions, which belong to that science, as well as of the excellent materials, which he accumulated for their use.

[merged small][ocr errors]

“ Moser had,” says M. Schmalz, “the merit of rescuing the law of nations from the vain speculations of certain philosophers, whose pretensions he combated with warmth. And, although he so expresses himself, as if he founded the law of nations upon the treaties of states, in the sense of their contents forming its object, yet he has in fact founded the whole science upon custom and usage alone, and rightly; and he has been careful to demonstrate the existence of such customs, by a reference to facts, and events, which have actually occurred. But he has not only neglected the philosophical exposition of historical fact, the discovery of general principles, which might at once satisfy reason, and the views and practice of common life; he has also expressed his detestation of them; and confounded the judginent of theory upon general questions, with the unwarranted judgment of a private individual, upon the conduct of a cabinet or government, of which he plainly cannot sufficiently know, either the motives of action, or the circumstances in which it was placed.” · Next to Moser comes to be noticed in the order of time, among the yet small number in Germany, of the teachers of the practical law of nations, Privy counsellor and Professor Achenwall of Göttingen, not so much on account of what he actually accomplished, as on account of the zeal he evinced for the advancement of the science. This excellent man, in the last years of his life, probably roused by the example of his father-in-law, the learned Moser, resolved to cultivate the practical or European law of nations, systematically, and according to his custom, profoundly. And he actually made a beginning, by preparing outlines of such a work for the use of his students. But from giving it to the press, he was prevented by death. And there was merely published afterwards, in 1775, a fragment entitled, Juris Gentium Europæarum Practici Prime Lineæ. In this fragment many of the most important subjects of the jus pacis are wanting; and the jus belli is not touched. But such subjects as are treated, are conveyed in short propositions clearly expressed, and arranged with philosophical precision. · About the middle of the last century, also, 1747,176+, 1776, the Abbé de Mably published his work, entitled, Le Droit Public de l'Europe, fondé sur les Traités, 3 tom. 8vo. This useful work, which, as its numerous editions show, met with great approbation, contains a brief extract of all the national treaties from the peace of Westphalia, to that of Paris in 1763, with an accompanying history of that treaty; and it is to be considered as the most important and interesting work upon the state of affairs in Europe, during the period alluded to. Nevertheless, De Real justly observes, “Le titre de Droit Public de l'Europe, que l'auteur a donné a son ouvrage, est vicieux. L' Europe n' a point de droit public; mais chaque nation en a un ; et la matiére, que l'auteur a traité, se rapporte au droit des gens," or international law.

Finally, towards the end of the period we are now contemplating, there appeared, in 1783, a work by Professor Neyron of Brunswick, entitled, Principes du Droit des Gens Européen, Conventionel et Coutumier, ou Précis historique, politique, et Juridique, des Droits et Obligations, que les états de l'Europe, se sont

[merged small][ocr errors][ocr errors]

acquis et imposés, par des conventions, et des usages reçus, que s interet commun a rendu necessaires. And to judge from its title, this book might be considered as the first complete systematic work on the practical law of nations. But the misfortune is, that it does not by any means correspond to its title. In short, the author does not appear to have formed for himself, any distinct idea of the practical law of nations. The greater part of the contents belong to history, to the constitutional law of states, and to politics; and it contains an ample treatise on the art of deciphering.

With regard to the collections of the records of the law of nations, during this period, little farther progress was made. A continuation of the great collections of Dumont, Rousset, and Barbeyrac, had not yet been thought of. It was only about the close of this period, Privy Counsellor and Professor Wenck of Leipsig came to the resolution of giving a continuation of the Corpus Juris Gentium Academicum of Schmauss, and published the commencement of it under the title of Codex Juris Gentium recentissimi, afterwards extended to three volumes. And the collection by the very able Charles Jenkinson, the first earl of Liverpool, which appeared in England about the close of this period, (1785), in 3 vols. 8vo, contained only the treaties of peace, alliance, and commerce between Great Britain and other powers, from the treaty of Munster in 1641, to that of Paris in 1763.

SECTION SEVENTH.

Period from the age of von Ompteda and von

Martens, to the present times; from 1785 and 1790, to 1840.- Union of Natural and Positive International Law.

We come now to the last period of the history of international law, from the age of von Ompteda and von Martens, namely, from the latter part of the last century, to the present times. Here we feel sensibly, especially with reference to Germany, the great and parental cultivatrix of the science of international law, the want of the accurate information and impartial criticism of von Ompteda--the guide upon whom we have hitherto very much relied; and we must endeavour to supply this want by occasionally resorting to his con. tinuator, von Kampts, in his Neue Literatur des Völkerrechts, seit dem Jahre 1784, and by a particular examination of the works, which have appeared during this period.

At the commencement of the immediately preceding period, we found, that the cultivation, as a science, of the law of nations, had made great advancement. Abandoning the doctrine of Pufendorff, which identified the jus gentium, with the jus nature, the law of nations, with the moral precepts applicable to the conduct of individuals, so far distinguishing legality from ethics or morality, and viewing the actual juridical relations of nations to each other, as such, Wolff

« PreviousContinue »