which marks the close of the Thirty Years' War and the establishment of the Modern European States-system on a solid basis, recognized the equality of the Catholic and Lutheran Confessions in Germany and the independence and legal equality of the States (including the 355 sovereignties of Germany) of Western Christendom, whether Catholic or Protestant, monarchical or republican.92

BIBLIOGRAPHY

--

*

International Law of Antiquity. Alcorta, Cours, ch. 6, sec. 1; Bender, Antikes Völkerrecht (1901); Busolt, in Müller's Handbuch, IV, 1, 88 54-76; Chauveau, Introduction (1891), § 12; Cybichowski, Das antike Völkerrecht (1907); Egger, Les traités publics chez les grecs et les romains (1866); * Greenidge, Handbook of Greek Const. History, ch. 3, 2; *Ibid., Roman Public Life, ch. 7; Hermann, Griechische Antiquitäten §§ 9-14; *Holtzendorff, in 1 Handbuch (1885), §§ 40-64; Laurent, Études sur l'humanité (1879-1880), Vols. I, II, and III; Leseur, Introduction, §§ 33-38; Müller-Jochmus, Geschichte des Völkerrechts im Altertum (1848); * Phillipson, Int. Law and Customs of Ancient Greece and Rome, in 2 vols. (1911); Scala, Die Staatsverträge des Altertums (1898); 2 Schoemann, Griechische Altertümer, 1-123; I Walker, History of the Law of Nations (1899), 20-64; Wheaton, History of the Law of Nations (1845), Introduction. International Law of the Middle Ages. I Alcorta, Cours, ch. 6, sec. 2; Chauveau, Introduction, § 13; Hosack, The Rise and Growth of the Law of Nations (1882), chs. 2-7 ; * Holtzendorff, in 1 Handbuch, §§ 65–84; * Laurent, Études, Vols. IV-X, passim; Leseur, Introduction, §§ 38-54; * Nys, Les origines de droit int. (1894); Ibid., Études de droit int. (1896 and 1901), in 2 vols., passim; *1 Walker, History, 79-201; Ward, Enquiry into the Foundation and History of the Law of Nations (1795), in 2 vols. (still useful).

*

I

The historical chapters in treatises of International Law are for the most part either slight or practically worthless in the light of our present knowledge. Among the exceptions are Bonfils, Calvo, Despagnet, Martens, Nys, Oppenheim, and Wilson and Tucker (the best of the brief sketches).

Jus Gentium. - Austin (Campbell's ed.), §§ 109-110 and Vol. II, Lect. 31, §§ 791-825; *Bryce, Studies, etc., 570-586, 753-754; Carlyle, Medieval Pol. Theory (see index); * Clark, Practical Jurisprudence, ch. 14; in the Treaty of Osnabrück as allies both of the Emperor and of Sweden. These details are taken from Bernard's interesting essay on "The Congress of Westphalia," in his Lectures on Diplomacy, II, ch. 7, ad fin.

92 Of these 355 German States whose sovereignty was practically (although not theoretically) recognized by the Peace of Westphalia, "150 were secular States governed by hereditary monarchs (Electors, Dukes, Landgraves, and the like), 62 were free City-states, and 123 were ecclesiastical States governed by Archbishops and other Church dignitaries." 1 Oppenheim, p. 60.

Dunning, Political Theories, Ancient and Mediæval; Ibid., From Luther to Montesquieu, passim; Holland, Jurisprudence (10th ed. in 1906), 34-35; Holtzendorff, in 1 Handbuch, § 64; Karlowa, Röm. Rechtsgesch., § 59, pp. 451-458; *Maine, Ancient Law (Pollock's ed.), 44 ff. and Pollock's note in Appendix, 396 ff.; Ibid., Int. Law, 27-29; 1 F. de Martens, 84 ff.; 3 Mommsen, Röm. Staatsrecht, 603-606 and notes; Muirhead, Private Law of Rome, 240; *Art. on jus gentium by Professor Nettleship, in 13 Journal of Philology, No. 26; 1 Phillipson, op. cit., ch. 3; * Roby, Roman Private Law, 5-6, especially note 2 on p. 5; Salkowsky, Roman Private Law (Whitefield's trans.), 10, 30-31; 1 Savigny, System, § 23; *Sohm, Institutes, §§ 12-13; 2 Taylor, The Mediaval Mind, ch. 33; Voigt, Röm. Rechtsgesch., § 15, pp. 152162; *Ibid., Jus naturale und jus gentium der Römer (1856 in 4 vols.), passim; *Walker, History, §§ 28-29, 85 et passim; Westlake, Chapters, 18 ff.; Wheaton, History, 24 ff.; Wilson, The State, Nos. 262 ff.; Willoughby, Political Theories, 252-267.

CHAPTER IV

HISTORY OF INTERNATIONAL LAW SINCE THE PEACE OF

WESTPHALIA

54. The Main Factors in the Growth of the Science of International Law. The treaties of Münster and Osnabrück gave to Europe a sort of international constitution which remained the basis of its public law down to the French Revolution. But it would be a serious error to assume that the International Community of States as revealed to the world by the Peace of Westphalia implied the recognition of the science of International Law as understood and practiced by the Society of Nations at the present time. The science of International Law as it exists to-day is a result of slow historical growth and is the product of two main factors, viz. certain theories or principles on the one hand, and international practice or custom on the other. The relative value and influence of the contributions of each of these factors is so difficult to determine that they have never been thoroughly sifted or separated — a task left for the future historians of International Law.

55. The Importance of Jurists and Publicists. It is clear, however, that during its formative period International Law was mainly developed by great thinkers and jurists, who were forced to rely upon the weight of general ideas or theoretical considerations, rather than upon any satisfactory body of accumulated custom, if they desired to ameliorate conditions or improve international relations. The fundamental principles of the science once firmly established and recognized in international practice, there was less need for theoretical discussion. It then became the main function of the jurist and publicist to apply and interpret the law in conformity with the best and most authoritative precedents or usages.

56. Grotius the Founder of the Science of International Law. The founder of the Science of International Law was Hugo

Grotius, whose main work, entitled De jure belli ac pacis, published in 1625 during the midst of the horrors of the Thirty Years' War, marks an epoch in the history of civilization as well as of International Law. Although it was based largely upon the labors of his predecessors, to whom somewhat scant recognition is given by him, Grotius deserves his title of "Father of International Law" from the fact that his was the only work in the seventeenth century which obtained wide circulation and general recognition.2 This was because it answered the needs of the time, and was the fullest, most attractive, systematic, and scholarly exposition of the subject hitherto attempted. Grotius brought to his work great learning, enthusiasm, experience, and a passion for justice which won for him the hearts as well as the heads of his contemporaries and of posterity.

57. His Work based on the Jus Naturale.-Like his predecessors and many of his successors, Grotius started from the idea of a universal and immutable Law of Nature (jus naturale) based upon right reason and human sociality a philosophical conception derived from the Stoic philosophers of antiquity, which has dominated Ethics and Jurisprudence until recent times. He claimed for the Law of Nations the authority and sanction of this Law of Nature, a doctrine denied by no one in his day,3 thus giving it an apparently solid, binding, and rational character which few cared to dispute. Moreover, he fortified his position.

1For references and a brief sketch of the "Forerunners of Grotius," see note at the end of this chapter.

2

This is shown by the facts that at least forty-five Latin editions of his book were issued prior to 1748 and that it had been translated into the leading modern languages before the close of the seventeenth century. See Rivier, in 1 Holtzendorff's Handbuch, § 88, for list of editions. Grotius' book made such a great impression upon Gustavus Adolphus that he is said to have slept with it under his pillow during his campaigns in Germany.

Grotius was born at Delft, Holland, in 1583. As a child he was a prodigy, writing Latin verses at nine years of age. He entered the University of Leyden when twelve years old, and took his degree of Doctor of Laws at Orleans, France, at the age of fifteen. As a result of religious controversy, he was sentenced to imprisonment for life in 1619; but in 1621 he succeeded in escaping from prison and lived for ten years in Paris, where he composed and published his great work in 16231625. In 1634 he was appointed Swedish minister to France- a position which he held until the year of his death in 1645. Grotius was poet, philologist, philosopher, historian, and mathematician, as well as diplomatist, lawyer, and jurist.

For references on the jus naturale, see Bibliography at the end of this chapter.

by an attractive style and a marvelous display of erudition or citation of authorities from men of all ages and countries (including the Bible, poets, orators, philosophers, and historians, as well as jurists) which went far to enhance his authority in the eyes of his contemporaries. He also borrowed largely from the Roman jus gentium the leading principles of which had been practically identified with the jus naturale. This "written reason," as the Roman Civil Law has been called, not only commanded the highest respect from its origin, but was sanctioned by general agreement, at least on the part of the educated classes; and Grotius thus relied upon positive law (jus voluntarium) as determined by general consent, as well as upon the Law of Nature, to give effect to the principles and usages of the Law of Nations.

58. The Fundamental Principles underlying the Grotian System. Many of the principles laid down and usages sanctioned by Grotius are obsolete; others are found only in germ or are incompletely developed; many present-day laws and customs (as e.g. those making up the modern Law of Neutrality) were practically overlooked or received scant recognition from him but the essential principles underlying the Grotian System remain the fundamental principles of International Law. Such are the doctrines of the legal equality and of territorial sovereignty or independence of States.1

These fundamental principles, though not clearly stated by Grotius, underlay his system and were fully developed by his successors, more especially by Wolff, Vattel, and G. F. de Martens. They were the inevitable outcome of the acceptance of the dogma of the supreme power or sovereignty of States and princes, as defined by Bodin, Grotius, Hobbes, and other political philosophers during the sixteenth and seventeenth centuries.

4 The best recent estimates of Grotius' work are by Basdevant (in Les fondateurs du droit int., ed. by Pillet); White, in Seven Great Statesmen (1910), 54-110; and Walker, Science, etc., ch. 4.

For a very full analysis of the De jure belli ac pacis, see Walker, History, §§ 143-148. The best modern translation is by Pradier-Fodéré (1867); it is preceded by a valuable biographical and historical essay.

"su

5 Though differing widely from the latter, both in point of view and details, Grotius (lib. I, c. 3, § 7) practically follows Bodin, who defines sovereignty as preme power over citizens and subjects, unrestrained by the laws." Dunning, Political Theories from Luther to Montesq., pp. 96 and 181. Bodin's great work, De