89

of state equality, found nothing in any of these passages

to warrant a reference to the much less ambiguous statements

in Pufendorf.

It is incredible that Grotius, who was

familiar with the theories of every leading exponent of

natural equality among men, and who ransacked all history for authorities in minutiae, could have considered the principle of state equality as of fundamental consequence and have left it with such uncertain support.

There are much less ambiguous passages in the work of Grotius which seem to contradict the idea of state equality A noteworthy example is found in the second book, where he divided treaties into those establishing that which is conformable to natural law, and those adding something to natural law. The latter were either equal or unequal:

From the explanation of what are equal conventions, it is easily understood what are unequal. Unusual Treaties are either proposed by the superior party, or by the inferior. By the superior, as if he promises assistance without any reciprocal stipulation: by the inferior, when there is an inferiority of claim, are what we have spoken of as Conventions of Command. And these are either without infringement of the sovereignty of the inferior, or such as infringe it.90

The treaty between the Romans and the Carthaginians, where it was provided that Carthage should not make war without the consent of Rome, was cited as an example of an unequal treaty impairing sovereignty. In unequal treaties without

89 Infra. p. 109.

90 TT 15,7 (Whewell's transl.).

impairment of sovereignty the burden imposed on the inferior state might be transitory or permanent. Then followed a long list of examples of permanent burdens, several of which it would be quite impossible to reconcile with later notions of sovereignty. Passages like this one at least suggest that Grotius would have included in the jus gentium a great many conventional and customary limitations upon the equality of states. More will be said of inequality among states in

the system of Grotius in connection with his conception of

sovereignty.

Elsewhere in his treatise Grotius used aequalitas or its equivalent in a great variety of meanings, but without any significance for the law of nations. He was thinking

of a kind of moral equality when he spoke of equality between belligerents with respect to the justice of a war. He was not thinking of the law of nations at all, but of municipal law in its ethical aspects, in what he said about equality 91 of ownership and equality in contracts.

VIII

SOVEREIGNTY IN THE SYSTEM OF GROTIUS

The principle of state equality was not the result of Grotius' use of the law of nature, the state of nature, natural equality, or the analogy. Fas it the consequence of

91 IT,10,2; TTI,1,2,2; II,12,8-13.