imperfectly as the law develops.

It is a curious circum

stance that in the law of nations what would seem to be the natural course of development has been turned about. Through the powerful influence of certain theories, to be considered presently, an absolute equality of capacity for rights among international persons was established as a fundamental postulate when the science was still in a primitive stage. The subsequent history of international relations shows a continuous struggle to impose limitations upon that equality.

The primary cause for this inversion of

what seems to be a normal course of development is found in the extraordinary influence of text-writers upon the law of nations in its formative period.

There is a remarkable confusion of thought and of statement with reference to these two principles.

Writers and

statesmen refer frequently to equality before the law, equal protection of the law, and equality of rights as though they

3

meant the same thing. It is rare that the distinction is

drawn clearly and with logical precision.

Notwithstanding

this unfortunate confusion it is evident enough that when publicists refer to the equality of states they usually mean an equality of capacity for rights. Unless otherwise indicated, equality is to be understood in this significance throughout the following pages.

II

SOURCES: THE LAW OF NATURE IN ANTIQUITY

The principle that states have an equal capacity for rights in the law of nations is a creation of the publicists.4

It had its inception in four important sources or formulat

ing agencies used by writers of the sixteenth and seventeenth centuries: (a) the law of nature, (b) the idea of natural equality, (c) the conception of the state of nature, and (d) the analogy between natural persons and separate states in the international society. Of these sources, the first three had a very ancient history. The last was one of the major premises upon which the law of nations was founded in the sixteenth and seventeenth centuries.

The law of nature was a very important part of the

4 It is frequently said that equality was established by the Peace of Westphalia. On this see infra, pp. 273, 302.

5 On the law of nature, see Brini, Jas Naturale; Bryce, Studies, pp. 556-606; Carlyle, Med. Pol. Theory, Vol. I, pp. 4-6, 19-20, 36-44, 71-76, 82-83, 102-110, and passin, Vol. II, pp. 28-33, 102-113, and passim, Vol. III, passim; Dunning, Political Theories, Ancient, and Mediaeval, and Folitical Theories, Lather to Montesquieu, passim: Hély, Etade, pp. 207 ff.; Holland, Jurisprudence, pp. 31-40; Korkanov, General Theory of Law, pp. 116-138; Maine, Ancient, Law, chaps. 3 and 4, and Pollock's Notes E, G, and H; Kalrhead, Law of Rome pp. 280-283; Phillipson, Int. Law and Custor, Vol. I chap.3, and possim; Pollock, in 15.6.1 (1900) F.S., Vol. II, pp. 418-433, and (1901) F.S., Vol. III, pp. 204-213; Reeves, in A.J.T.L. (1909), Vol. III, pp. 547-561; Ritchie, Natural Rights, pp. 20-47; Salmond, in L.Q.R. (1895), Vol. XI, pp. 121-143; Vaunois, De la notion du droit naturel chez les Romains; Voigt, Das jus naturale; Walker, History, passim.

49