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dita sunt, translata ad civitates, et gentes integras, pro legum et juris gentium elementis, sumi possunt."* Hobbes thus gives a pretty correct idea of the natural law of nations; but makes no allusion to any other sources, or component parts, of international law; and directs his objections and attacks solely against the doctrines of the general and common law of nature.
In a brief review of the authors, who have written on international law, Selden, another contemporary of Grotius, deserves a place, not only on account of his Mare Clausum, composed in opposition to the treatise of Grotius de Mari Libero, but also on account of his work published in 1650, De Jure naturali et gentium, juxta Disciplinam Ebræorum. Although he proposed to confine himself solely to the principles of natural law, which were prevalent among the Hebrews, he goes into the whole science, and touches upon the law of nations, or jus gentium ; but in a very inappropriate sense of that term, namely, in a great measure, the sense which was usual among the Greeks and Romans, and early Christian writers. “Gentium jus,” says he in his preface, “ interdum, pro jure, item, naturali, sumitur; quoties. nimirum, primævi, seu primarii, nomine, indigitatum * * * Et jus naturale, ita significat hic, quod jus mundi, seu universale ; gentium, jus id, quod gentibus aliquot peculiare.” So far Selden cannot be reckoned among the teachers of the law of nations, properly so called. Yet the following passage of his Mare Clausum, shows he had a distinct understanding of the true positive law of nations. “ Inter
veniens, autem, jus gentium, dicimus, quod, non ex communi pluribus imperio, sed interveniente, sive pacto, sive morum usu, natum est; et jus gentium secundarium, fere solet indigitari.”
There still remains a third contemporary of Grotius, Dr Richard Zouch, professor of law at Oxford, and afterwards judge of the high court of Admiralty of England; who does not appear to have had that justice done, in his own country, to his reputation, as a cultivator of international law, to which his merits entitle him, as certainly placing him, at that time, next in rank to Grotius. Among other learned treatises, he published in 1650, a work entitled Juris et Judicii Fecialis, sive Juris inter Gentes, et Quaestionum de eodem, Explicatio; which may be viewed as the first elementary treatise on international law, natural and positive combined.
In his preface, Zouch announces, that, while he has hitherto treated, in different writings, of rights generally, as well as particularly, and of the rights, which exist between private individuals in relation to each other, as well as between private individuals and princes or sovereigns, he now likewise intends to investigate these rights, which are involved in the relations of princes or sovereigns, and of nations between or among each other; “ explicationem eorum, quæ ad communionem, quæ inter diversos principes aut populos intercedit, conducunt.” And, in illustration of this general definition of the law of nations, he divides it into natural, into that which is founded upon the tacit consent of nations, and into that which is founded upon the express consent of nations, as declared in their
treaties and confederacies. His words are remarkable. “ Cum multi diversis temporibus, idem affirmant, id ad causam universalem referri debeat, quæ alia esse non potest, quam recta conclusio ex naturæ principiis proveniens, aut communis aliquis consensus, e quibus, illa jus naturæ indicat, hic jus gentium. Deinde, præter mores communes, pro jure etiam inter gentes habendum est, in quod gentes singulae cum singulis inter se consentiunt; utpote per pacta, conventiones, et fædera ; cum communis reipublicæ sponsio legem constituat; et populi universi, non minus quam singuli, suo consensu obligentur." It may therefore be said, that Zouch is the first who sketched an outline of the law of nations, in its whole extent theoretical, as well as practical. And that he not only knew the law of nations in its full extent and range, but also treated it, in detail, appears from the following short extract from the contents of his work. “Part i. De Jure inter gentes, sect. 1-5, De Jure Pacis &c.; sect. 6-10, De Jure Belli, &c. Part ii. sect. 1-5, De Judicio inter gentes, et de Quæstionibus Pacis, viz., de quæstionibus Statûs, Dominii, Debiti, Delicti, inter eos quibuscum Pax est ; sect. 6-10, De Quæstionibus Belli, viz., de quæstionibus Statûs, Dominii, Debiti, et Delicti, inter eos quibuscum Bellum est.”
The arrangement observed in this book is perhaps far from the best, and it cannot be denied, that much su perfluous matter is introduced, which belongs partly to general state, or constitutional law, partly to the particular constitutional law of Germany, partly to other sciences. And as little can it be denied, that much is treated according to the peculiar taste of those
times, and occasionally not very profoundly. But, on the other hand, it appears, even from the contents before recited, that almost nothing belonging to the law of nations is omitted. And this amplitude distinguishes advantageously this otherwise small book, when compared with many of the previous and subsequent voluminous works. As the first of its kind, it is valuable ; and even now, is in some measure practically useful. It is composed more in an historical style of narration, than in a didactic style ; yet sufficiently illustrates the propositions which were to be maintained. And it is superior to the preceding, and to most of the subsequent manuals, or text-books of the law of nations, inasmuch as examples are subjoined, drawn not merely from ancient, but also from times immediately preceding its composition.
Zouch also with great acuteness, and foresight, makes use of the expression, jus inter gentes, instead of, and in preference to the jus gentium. And, while by the former he understands and distinguishes the law of nations, as peculiarly treated by him, he relinquishes the denomination, jus gentium, to that general and common law of nations, which was designated and understood by it, when used incidentally in ancient and even in early modern times. In later times, Chancellor D’Aguesseau first, and then that acute jurist Mr Bentham, took credit to themselves for pointing out this distinction, and more appropriate appellation; neither of them apparently aware, that they had been anticipated in this discovery by Dr Zouch, in the course of the preceding century.
During the period between Grotius and Pufendorff,
Germany does not appear to have produced any writer, who contributed much to the advancement of the law of nations, beyond expounding Grotius. And the talented Dutch jurist, Benedict Spinosa, 1632-1677, in his Tractatus Theologico-Politicus, rather endeavoured, as otherwise, to undermine the law of nations, as well as the law of nature.
Period from the age of Pufendorff to the age of Wolff
and Moser, 1673-1740.
The particulars of the life of Pufendorff, (1632-1694,) are almost as generally known, as those of Grotius, and from a similar cause; and need not be here repeated.
The method adopted by Grotius in his work De Jure Belli et Pacis, was obviously defective; and Pufendorff appears to have considered himself called upon, and to have undertaken, to remedy this defect, and improve the arrangement. But, although Pufendorff was not only a very learned man, and had also a methodical understanding, he had not the extended views, nor the grasp of intellect, which characterized Grotius. And whatever he may have done, in promoting the study of ethics, or even general private law, or jurisprudence, he certainly did not do much, towards the advancement of the law of nations, properly so called, either natural, or positive and practical.
Grotius, the great expounder of the law of nations, and who also expounded, incidentally, the doctrines of