in effect, by a single will which regulates all their movements. This agrees particularly with the boay politic or state. The sovereign is the chief or head, and the subjects the members; all their actions that have any relation to the society are directed by the will of the chief. Wherefore as soon as states are formed they acquire in some manner personal qualities, and we may consequently attribute to them in proportion whatever agrees in particular with men, such as certain actions which are suited to them, certain rights which pertain to them, certain duties which they are bound to falfil, etc.

This being granted, the establishment of states introduces a kind of society among them, similar to that which exists naturally among men, and the same reasons which induce men to maintain union among themselves ought also to persuade nations or their sovereigns to live on good terms with one another.

It is necessary therefore that there should be some law among nations to serve as a rule for mutual intercourse. Now this law can be nothing else but the natural law itself, which is then called the right or law of nations (aroit des gens ou loi des nations). Natural law, says Hobbes very properly, is divided into the natural law of man and the natural law of states, and the latter is what we call the law of nations. Thus the natural law and the law of nations are in reality one and the same thing,73and differ only by an external denomination. It should be said therefore that the law of nations, properly so called and considered as a law emanating from a superior, is nothing else than the natural law itself applied, not to men regarded simply as such, but to peoples or nations, to states or their chiefs, in the relations they have together and in the interests they have to manage among themselves.

Bat in order to say something more particular on this subject, we may observe that the natural state of nations with regard to one another is a state of social life and peace. This society is also one of equality and independence, which establishes an equality of right among them, and pledges them to have the same regard and respect for one another. Hence the general principle of the law of nations is nothing more than the general law of sociability, which obliges nations having intercourse with one another to the practice of

73 Barlamaqui followed Barbeyrac in assuming that the Roman jus naturale and jus gentium were the same.

p. 226, note 1.

Principes,

the same duties as those to which individuals are
naturally subject.74

When Professor Félice published a new edition of Barlamaqui's works twenty years later, he revised the chapter on equality, added some phrases of his own and others from Vattel, presenting a concise statement of the principle in language very much like that which was to pass from publicist to publicist during the succeeding century:

Natural equality being the basis of all the duties of sociability, we start from this very principle in order to expound them. Hence this same principle should guide us also in the exposition of the reciprocal duties and rights of nations. Indeed, as men are naturally equal, and as nations are composed only of men, and are considered as being moral persons who enjoy perfect liberty, it follows that they ought to regard one another as naturally equal. The strength or weakness of any one of them does not make any difference in this respect; just as a dwarf is as much a man as a giant, so a small republic is no less a sovereign state than the most powerful kingdom; and consequently all the rights assumed by the great kingdoms, such as France or Spain, belong also to the republics of Lacca and of San Marino, and all the duties which these republics are obliged to perform are no less obligatory on the kingdoms of France and of Spain.75

At the end of the seventeenth century the followers of Pufendorf were the predominant school on the continent of Europe. During the eighteenth century many of their doctrines were taken over by other schools and so passed into the common stock of speculation on the law of nations.

74 The above extracts are from Pt. II, chap. 6, secs. 1,4,5,7, pp. 218 ff.

75 Burlamaqui, Principes da droit de la nature et des gens etc., ed. by Félice, new edition by Dupin, Vol. IV, P. 434. See Sentimens de l'éditeur, Vol. IV, p. x.

This was the case with the principle of state equality and with a good deal of the theory that was associated with it.

76

IV

THE TENDENCY TOWARD POSITIVISM

The positivists held a different conception of the law of nations, viewing it as preeminently a law of human institution derived from custom, treaties, and the common understanding of nations. While they did not always ignore the

law of nature, they usually appealed to it in the guise of reason, or as modified by usage, or as an additional sanction for the positive law of nations.

There was relatively

little of the abstract and the a priore in their treatises. The positivist tendency was foreshadowed in the work

of Gentilis.

The first manual of the positive law of

nations was the Juris et Judicii Feciales, sive Juris Inter Gentes, etc. of Richard Zouche, professor of law at Oxford and judge of the High Court of Admiralty.77 Zouche recognized

76 Whatever may be the present opinion with reference to the teachings of the naturalists, it hardly seems wise, in view of their important contributions to the modern law of nations, to insist on relegating them to that "limbo of forgotten authors" to which Mr. Abdy consigns Pufendorf, Burlamaqui, Rutherforth, and all their kind. Abdy's Kent, P. 35.

77 Zouche lived 1590-1660. His manual was first published at Oxford in 1650. References are to parts, sections, and paragraphs, and the page references are to J. L. Brierly's translation in Vol. II of the edition published in the Classics of International Law. Consult also Ompteda, Litteratur, pp. 252-265; Phillipson, in Macdonell and Manson, Great Jurists, pp. 220-247; Scelle, in Pillet, Les fondateurs, pp. 269-330.