notion of universal sovereignty, 16 and represented Christen dom as a society of separate states with rights and obliga 17 tions inter se. Their conception of the separate state was that of a perfect political community acknowledging no temporal superior; their law between nations was in part natural and in part positive as founded on usage.. No one of these writers ever completely identified the law of nature and the law of nations. They all believed in a state of nature antecedent, to the state of corruption; but they did not develop the thesis that the relation between separate states was natural and analogous to the relation between men in a state of nature. Now it was precisely the identification and analogy suggested above that made the principle of state equality a necessary conclusion for century.18 The Catholic certain publicists of the following century. writers of the sixteenth century were under no such necessity and drew no such conclusion. The theory of the natural equality of men was common learning, but it still awaited the innovator bold enough to translate it into the law of nations. 16 Victoria, Fel. V, sec. 2, pp. 131, 135; Vasquez, 1,20-22; Ayala, 1,2, p. 20. 17 Victoria, Rel. V, sec. 2, p. 133; Rel. VI, pp. 169, 172; Ayala, 1,2, pp. 9, 15, 22; Suarez, II, 19,9. 18 See infra, pp. 97 ff. The leading principles announced by the Protestant writers who preceded Grotius appear to have accorded in all essential points with those of their Catholic contemporaries. They, too, conceived of a new international order composed of separate states. They, too, applied to that order a law between nations derived partly from natural reason and partly from custom. Of all those who wrote before Grotius, Albericus Gentilis was probably the most distinctly modern in his tendencies.20 Gentilis was thoroughly familiar with all those conceptions which have already been considered in other writers, but he made few a priori deductions from them. สาร His jus gentium was a law between states that acknowledged no superior.21 Even infidel and barbarian communities might 22 be included in this international society. He found the he was always ready to appeal to natural reason to explain the origin of this law, or to provide an additional sanction for a particular rule, the emphasis was constantly upon the 19 19 See Kaltenborn, Vorläufer des Hugo Grotius, pp. 190246; and works cited supra, p. 45, note 6. 20 Gentilis lived 1552-1608. His De legationibus WAS published in 1585, De jure belli in 1588-1589, and Hispanicae advocationis in 1613. Feferences are to the lianover edition of De legationibus of 1594, and to Holland's edition of De Jure balll. The following secondary works have been consulted: Holland, Studies, pp. 1-39; Nézard, in Pillet, Les fondateurs, pp. 37-93; Phillipson, in lacdonell and Manson, Great Jurists, pr. 109-143; Aalker, History, pp. 249-276. 21 De jare belli, I,3; 1,16; III,15. 22 De legationibus, IT,11; De jure belli, 1,25; III,19. De jure belli, I,1; III,9. 23 Ге positive aspects of his subject. Gentilis avoided dogmatic methods, undiscriminating adoration of the law of nature, and fallacious presumptions of an analogy between rules suited to natural persons and rules suited to separate states. In many respects he anticipated the positivist tendencies of Zouche, Rachel, and Bynkershoek. So far from deducing the principle of state equality from abstract premises, he left evidence that he was aware of the practical significance of 24 another principle. TTI THE SOURCES OF THE GROTIAN SYSTEM The learning of his predecessors, the common traditions of the Middle Ages, and the wisdom of antiquity, all blended into a single system under the hand of Hugo Grotius. If there was little that was original in either the matter or 25 the arrangement of his De Jure Belli ac Pacis, certainly 24 See, for example, De legationibas, 1,4; De jare belli, 1,3; IIT,10. 25 Grotius lived 1583-1645. The De jure belli ac pacis was published in 1625. The following editions have been consulted: the text of 1646 reproduced in the Classics of International Law, the text and abridged translation in Thewell's edition, the French translation of Barbeyrac, the French translation of Pradier-Focéré, and an English translation of 1738. Mare liberam was published in 1609. References are to R.V.. Magoffin's transl., ed. by J.B. Scott. Among secondary authorities, see Basdevant, in Fillet, Les fondateurs, pp. 125-267; Burigny, Vie de Grotius; Patler, Life of Grotius; Caumont, ftude sur la vie et les travaux de Grotius; Dunning, Political Theories, Lather to Montesquieu, chap. 5; Franck, Feformateurs, pp. 253-332;(Cont. on p. 50) |