brought into that port, in order to determine the preliminary question whether there was such probable cause of capture as to warrant further judicial proceedings, in which case the cause was immediately evoked to the competent tribunal sitting in the belligerent country. The only two cases, according to Lampredi, in which the neutral sovereign can interfere through his tribunals to take incidental cognizance of the validity of belligerent captures brought within his territorial jurisdiction are:

1. Where the capture has been made within the neutral territory itself, or by an armament fitted out in the ports of the neutral state in violation of its laws and treaties.

2. Where the captured party complains to the neutral sovereign that his property has been piratically seized by captors, under colour of a belligerent commission, to which they are not lawfully entitled. In this case the neutral tribunal may so far interfere as to inquire into the validity of the commission under which the capture was made.▾

One of the distinguished German public jurists of the period now in question was John Jacob Moser, born in 1701, at Stuttgard, at which place he died in 1785. He devoted his long and laborious life to the cultivation of the kindred sciences of the public law of Germany, and of Europe. After having taught as a professor in several German universities, he founded, in 1749, at Hanau, an academy for the instruction of noble youth intended for public life. He was subsequently invited to return to his native country, where he filled the post of consulting counsel to the states of Wurtemburg. The states were, at that time, engaged in a controversy with the sovereign respecting their privileges, and presented to the duke a very strong remonstrance, which his ministers considered as seditious, and of which they accused Moser of being the author. He was in consequence, arbitrarily arrested in 1759, and im

Lampredi, pt. i. § 14.

prisoned in the fortress of Hohentwiel, where he was detained for five years. During the greater part of this time he was deprived of the use of pen, ink, and paper, and even of books, except the evangelists and the psalms. The states appealed to the aulic council of the empire, in order to obtain his liberation, and he was at last discharged, his persecutor acknowledging his innocence, and conferring a pension of fifteen hundred florins. From this time Moser devoted himself exclusively to his literary occupations, and produced innumerable works upon his favourite sciences and other miscellaneous subjects. His principal work, entitled an "Essay on the most modern Law of European Nations in Peace and in War," contains a rich mine of materials for illustrating the questions of most frequent recurrence in positive or practical international law. He had previously published a number of elementary works on the science, the whole forming an immense collection, which has been freely used by more recent and less industrious public jurists. His principal aim, in the first mentioned. work, was to teach the law of nations by modern examples, drawn from their mutual intercourse, of what had been most generally approved in their varying practice. In selecting these examples, he begins with the epoch of the Emperor Charles VI, 1740, deeming all reference to antecedent cases superfluous, as having been already sufficiently illustrated by preceding writers. He disclaims, in a somewhat original, quaint, and antiquated style, all pretension to write a treatise upon the natural, or what he calls the philosophical law of nations, grounded upon the speculations of private men, as to what ought to constitute the rule of justice between nations, independent of positive compact or usage. "I write," says he, "no scholastic international law, grounded upon the application of natural jurisprudence, as understood by its teachers, to regulate the conduct of nations, considered as moral persons; I write no philosophical international law, constructed according to certain fanciful notions of the history and nature

of man; and lastly, I write no political international law, in which dreamers like the Abbé de Saint Pierre, fashion the political system of Europe according to their fancies, administering their infallible nostrums to its sovereign rulers but I write an essay on that mere positive international law, by which the sovereign, or demi-sovereign states of Europe, are wont to be guided in their mutual intercourse in war and in peace."

"W

This is certainly a somewhat narrow view of the scope and object of the law of nations, reducing it merely to the positive rules to be collected from the practice of nations, laying entirely out of view those general principles of justice which have commonly been referred to, as constituting its basis, under the name of natural law. In order to justify this view of the science, Moser inquires what is this so much talked of law of nature? Are we to seek for its principles in Grotius, or in Hobbes ? And when we have discovered its true principles, how far will they go in determining those practical questions which occur in the intercourse of states? He holds that mere abstract principles of justice are very little regarded by rulers and statesmen, and considers treaties and usage as the two main foundations of that code which is really respected by nations in their mutual relations. Treaties constitute the law, not only between the states who are parties to them, but a succession of treaties will go far to establish a rule for the guidance of all nations. Usage is to be collected from precedents, or examples of what has most frequently been approved in the varying practice of nations. The rule must be inferred from the examples, and not applied a priori to test the validity of a particular precedent.*

× The following is a list of Moser's works on international law in chronological order.

Anfangsgründe der Wissenchaft von der gegenwärtigen Staatsverfassung

d. 1821.

George Frederick von Martens published in 1785, a syl- § 20. Martens labus of his lectures at the university of Göttingen on the practical or positive European law of nations. This work the author subsequently enlarged into a summary of the modern European law of nations, which first appeared in 1788, and has since passed through several editions, revised and corrected by the author, until it has become a justly esteemed manual of the science.z

In these elementary works, the learned author adopts the fundamental idea of Vattel, that the positive law of nations is a modified application of the law of nature to regulate the mutual intercourse of the independant societies of men called states. The mere law of nature is obviously insuf

von Europa, und dem unter denen europäischen Potenzien üblichen Völker oder allgemeinen Staatsrechte, i. ter Theil, Tübing. 1732, 8vo.

Of this work, only the first part appeared, and the author published in 1736 in the second part of his vermischten Schriften his

Entwurf einer Einleitung zu dem allerneuesten europäischen Völkerrechte in Friedens-und Kriegszeiten, etc.

He afterwards published for the use of his pupils in the Staats und Canzleyacademie founded by him at Hanau :

Grundsätze des jetzt üblichen europäischen Völkerrechts in Friedenszeiten, Hanau, 1750, 8vo.

And,

Grundsätze des jetzt üblichen europäischen Völkerrechts in Kriegszeiten, Tübingen, 1752, 8vo.

In 1778 he published at the request of the Duke of Wurtemburg a manual of the science under the title of

Erste Grundlehren des jeztigen europäischen Völkerrechts in Friedensund Kriegszeiten, Nürnb. 1778, 8vo.

In 1777 he commenced the publication of a larger work, which was completed in 1780, under the title of

Versuch des neuesten europäischen Völkerrechts in Friedens-und Kriegszeiten, etc. 1777-1780. 10 Theil. 8vo, or Beyträge in Friedenszeiten, 5 Th. 1778, in Kriegszeiten, 3 Th. 1779.

▾ Primæ liniæ Juris Gentium Europæarum practici in usum auditorum adumbratæ. Gottinge, 1785, 8vo.

Précis du Droit des Gens Moderne de l'Europe fondé sur les Traités et l' Usage, á Gottingue, 1788, en Allemand, 1796: 2de édit. en Français, 1801, 3eme édit. 1821, 8vo.

ficient to regulate that intercourse between any two nations. Various circumstances may require it to be modified either by mitigating the rigor of the primitive law, supplying its silence, or determining doubtful points. The result of the modifications thus made by mutual consent constitutes the positive, arbitrary, and special law of nations between these two nations; which may be either conventional or customary, according as it rests upon compact, either express or implied, or upon mere usage. In this sense, there are as many special international laws in Europe, as there are special relations between every particular nation and any other. We may imagine that a still greater number of states, or even all those of Europe, might define their reciprocal rights by express compact, and guaranty the rights thus defined by a federal union. There would then be a fixed code of the positive law of nations, acknowledged by all, and obligatory upon all nations. But no such general compact has yet resulted from any of the various European Congresses assembled at different periods, or from the projects of perpetual peace suggested by speculative writers. No such code of positive international law therefore exists or probably ever will exist.

On the other hand, the treaties and usages existing between particular nations cannot be considered as obligatory upon others, except so far as they are adopted as a general rule to govern the conduct of those who accede to them. Still a general theory of the positive European law of nations may be construed by considering :

1. That the special treaties concluded between particular states resemble each other so much in their essence, that we may deduce from them the principles generally acknowledged by those nations, which have been in the habit of concluding treaties on similar matters.

2. In the same manner we may deduce the general principles acknowledged by all, or at least the greater part of nations, from the special usages which have been established between two particular nations.