Page images

municatione, interdum ad melius esse, majoremque utilitatem, interdum vero, et ob moralem necessitatem. Hac ergo ratione, indigent, aliquo jure, quo dirigantur, et recte ordinentur in hoc genere communicationis et societatis. Et quamvis, magna ex parte, hoc fiat per rationem naturalem, non tamen sufficienter et immediatè quoad omnia ; ideoque specialia jura potuerunt usu earum gentium introduci.'” It thus appears clear, says Von Ompteda, that Suarez had taken the right road; and the only misfortune is, that he did not prosecute the matter farther.

But of all the writers on the law of nations, during the sixteenth century, Albericus Gentilis approached nearest to the correct view of the subject. He was by birth an Italian, but left his native country on account of his religious opinions ; went to England in the reign of Queen Elizabeth; lived there for many years, and was professor of law in the university of Oxford. He was one of the most acute jurists of his age, and of more extended views than his predecessors, or contemporaries. He is, indeed, the first jurist who rendered any essential service to international law, as a science. Although the authors before noticed, and several others of less merit, partly theologians, partly jurists, whom Grotius mentions, had already written on the same subject, they did so only incidentally, and in passages scattered through their works. Gentilis was the first who treated these matters, as objects, or branches of international law.

He wrote several able treatises, De Jure Maris, De Legationibus, and Hispanice Advocationis libri duo, published after his death. But his magnum opus



en non



was, his De Jure Belli libri tres, dedicated to the earl of Essex, in the reign of Queen Elizabeth, and reprinted at Hanover in 1598. In this treatise he seems to have formed a pretty correct notion of the jus gentium positivum, and expounds it, as what has arisen ex compacto gentium ; adding, “ Ista, tamen non sic sunt capienda, quasi convenerint unquam gentes omnes, et jus illud constituerint. Sed quod successim placere omnibus visum est, id totius orbis decretum et consilium fuisse, existimatur ;” thus apparently, however, directing his views more to the jus nature commune, introduced internally among the greater part of nations, through customs and usages observed for ages, than to the proper law of nations, in the more modern sense of that term.

In the first book of his work, De Jure Belli, Gentilis defines war, and treats of national belligerents, as distinct from robbers and pirates; and of the causes of war, as necessary in self-defence, or as otherwise just, and expedient. In the second book, he speaks of the declaration of war, of the mode of carrying it on, of treaties during war, truces, &c., of the treatment of prisoners, and conquered population generally, of devastation, of the interment of the dead. In the third book, he treats of the termination of war, and the restoration of peace, of the rights of the victor over the conquered country, and of changes in its political, civil, and religious institutions ; of treaties, leagues, and alliances; of armies, fleets, fortresses, &c.; of the obligations of the successors of the parties, who have concluded treaties.

In this work, it thus appears, Albericus Gentilis embraces most of the subject of international law; his arrangement is pretty good. He does not, like most subsequent writers on the law of nations, introduce extraneous matter, such as the private internal law of states, or jurisprudence, or the public or constitutional internal law of states. And he discusses the different subjects before enumerated, with abundance of learning, and great acuteness. But his habits of thought were, of course, affected by the manners and taste of the age in which he lived. He was too desirous of supporting the doctrines of international law by those of the civil law of the Romans, and appealed to authorities of the middle ages, not now considered of the highest grade. He has also been accused of inconsistency. Certainly in his reasoning, he had more the habits of the advocate, than of the judge. And the merits of his work have been obscured by the superior and more splendid work of Grotius, which appeared early in the following century.

After such approximations by Suarez and Gentilis to what is considered the true and correct view of the law of nations in modern times, it is perhaps going too far, with all his high deserts, to eulogize Grotius, as the discoverer, or creator, as he has been called, of this science. But he is unquestionably the first most eminent expounder of international law. His work formed a great era in its history. And we shall follow the example of Von Ompteda, in dividing our sketch of the subsequent history of international law in Europe, into the following periods, each distinguished by material differences and changes in the mode in which that law was cultivated :—From the age of Grotius, 1625, to that of Pufendorff, 1673; from the


age of Pufendorff, 1673, to that of Wolff and Moser, 1740; from the age of Wolff and Moser, to that of Von Ompteda and Von Martens, 1785–1790 ; from the age of Von Ompteda and Martens to the present time; during which the works of Schmalz, Klüber, and Schmelzing have made their appearance.

Section Fourth.

Of International Law during the Period from the

age of Grotius to that of Pufendorff, 1625-1673.

The life of Grotius was so connected with the political events of his times, that, independently of his merits as an author, the particulars of it are more generally known than those of the lives of most lawyers. His great work, De Jure Belli et Pacis, was translated into French in 1724, by Barbeyrac, with valuable notes by that able translator ; was with those notes translated into English, in 1738; was commented on by Dr Rutherfurth, in 1754, in his learned Institutes of Natural Law, and was again translated into English, a few years ago, by the Rev. A. C. Campbell. Besides the narratives, too, of the general historians of modern Europe, Mr Hallam has very lately, in his view of the literature of the middle ages, devoted a considerable portion of one of his volumes to the great work of Grotius, so as to render it accessible, if not, in some measure, familiar, even to mere general readers.

In these circumstances, it seems unnecessary, to

repeat here, what has recently been better told elsewhere. And we shall, therefore, content ourselves with reciting here, the account of the work of Grotius, by his eulogists, Barbeyrac and Ward, as condensed by the latter, the digested view of the contents of the work by baron Von Ompteda, and the criticism of it by the Abbè de Condillac.

“ The method,” says Mr Ward, * “ which Grotius pursued, in order to produce a work, which although coming from a private man, should have the weight of a code of laws, with princes, he has himself expounded to us, with great clearness in the preface. He found it necessary to get at some certain fixed principles, which should be acknowledged to be such, by all who read them. In order to do this, he was obliged to survey all the codes of morality and of general law, which had ever been known; he penetrated into all the sciences between which and his own, he could discover any analogy; and he examined the opinions of all great men of whatsoever class, from which he could extract anything like a community of sentiment. This, being properly arranged under its different heads, together with the vast additions of his own learning, and the support of all that could be drawn from history, by way of precedent, he ventured, with very noble ambition, to imagine, might be received by the world, as the rule for their duty in the most critical predicaments. The event answered all his expectations.

“The work of Grotius, therefore, has for its support, all that the philosophers, the poets, the orators, and

* Vol. II. pp. 618—620. Inquiry, Law of Nations in Europe.

« PreviousContinue »