it may therefore fearlessly be maintained that an immeasurable progress is guaranteed to International Law, since there are eternal moral and economic factors working in its favour. Fore runners of Grotius. III THE SCIENCE OF THE LAW OF NATIONS Phillimore, I., Preface to the first edition-Lawrence, $$ 31-36— Manning, pp. 21-65-Halleck, I. pp. 12, 15, 18, 22, 25, 29, 34, 42— Walker, History, I. pp. 203-337, and "The Science of International Law" (1893), passim-Taylor, §§ 37-48-Wheaton, §§ 4-13-Rivier in Holtzendorff, I. pp. 337-475-Nys, I. pp. 213-328-Martens, I. $$ 34-38-Fiore, I. Nos. 53-88, 164-185, 240-272-Calvo, I. pp. 2734, 44-46, 51-55, 61-63, 70-73, 101-137-Bonfils, Nos. 147-153— Despagnet, Nos. 28-35-Kaltenborn, "Die Vorläufer des Hugo Grotius" (1848)-Holland, Studies, pp. 1-58, 168-175-Westlake, Chapters, pp. 23-77-Ward, "Enquiry into the Foundation and History of the Law of Nations," 2 vols. (1795)—Nys, "Le droit de la guerre et les précurseurs de Grotius" (1882), "Notes pour servir à l'histoire... du droit international en Angleterre " (1888), "Les origines du droit international" (1894)—Wheaton, "Histoire des progrès du droit des gens en Europe " (1841)-See also the bibliographies enumerated below in § 61. 52. The science of the modern Law of Nations commences from Grotius's work, "De Jure Belli ac Pacis libri III.," because in it a fairly complete system of International Law was for the first time built up as an independent branch of the science of law. But there are many writers before Grotius who wrote on special parts of the Law of Nations. They are therefore commonly called "Forerunners of Grotius." The most important of these forerunners are the following: (1) Legnano, Professor of Law in the University of Bologna, who wrote in 1360 his book "De bello, de represaliis, et de duello," which was, however, not printed before 1477; (2) Belli, an Italian jurist and statesman, who published in 1563 his book, "De re militari et de § 53. Although Grotius owes much to Gentilis, he Grotius. is nevertheless the greater of the two and bears by right the title of "Father of the Law of Nations." Hugo Grotius was born at Delft in Holland in 1583. 1 See details in Holland, Studies, PP. 51-52. *Re-edited in 1877 by Professor Holland. On Gentilis, see Holland, Studies, pp. 1-391; Westlake He was from his earliest childhood known as a "wondrous child" on account of his marvellous intellectual gifts and talents. He began to study law at Leyden when only eleven years old, and at the age of fifteen he took the degree of Doctor of Laws at Orleans in France. He acquired a reputation, not only as a jurist, but also as a Latin poet and a philologist. He first practised as a lawyer, but afterwards took to politics and became involved in political and religious quarrels which led to his arrest in 1618 and condemnation to prison for life. In 1621, however, he succeeded in escaping from prison and went to live for ten years in France. In 1634 he entered into the service of Sweden and became Swedish Minister in Paris. He died in 1635 at Rostock in Germany on his way home from Sweden, whither he had gone to tender his resignation. Even before he had the intention of writing a book on the Law of Nations Grotius took an interest in matters international. For in 1609, when only twentyfour years old, he published-anonymously at firsta book under the title "Mare liberum,'1 in which he contended that the open sea could not be the property of any State, whereas the contrary opinion was generally prevalent. But it was not before fourteen years later that Grotius began, during his exile in France, to write his "De Jure Belli ac Pacis libri III., which was published, after a further two years, in 1625, and of which it has rightly been maintained that no other book, with the single exception of the Bible, has ever exercised a similar influence upon human minds and matters. The whole development 1 See details with regard to the controversy concerning the free dom of the open sea below, §§ 248250. of the modern Law of Nations itself as well as that of the science of the Law of Nations takes root from this for ever famous book. Grotius's intention was originally to write a treatise on the Law of War, since the cruelties and lawlessness of warfare of his time incited him to the work. But thorough investigation into the matter led him further, and thus he produced a system of the Law of Nature and Nations. In the introduction he speaks of many of the authors before him, and he especially quotes Ayala and Gentilis. Yet, although he recognises their influence upon his work, he is nevertheless aware that his system is fundamentally different from those of his forerunners. There was in truth nothing original in Grotius's start from the Law of Nature for the purpose of deducing therefrom rules of a Law of Nations. Other writers before his time, and in especial Gentilis, had founded their works upon it. But nobody before him had done it in such a masterly way and with such a felicitous hand. And it is on this account that Grotius bears not only, as already mentioned, the title of "Father of the Law of Nations," but also that of "Father of the Law of Nature." Grotius, as a child of his time, could not help starting from the Law of Nature, since his intention. was to find such rules of a Law of Nations as were eternal, unchangeable, and independent of the special consent of the single States. Long before Grotius, the opinion was generally prevalent that above the positive law, which had grown up by custom or by legislation of a State, there was in existence another law which had its roots in human reason and which could therefore be discovered without any knowledge of positive law. This law of reason was called Law of Nature or Natural Law. But the system of the Law of Nature which Grotius built up and from which he started when he commenced to build up the Law of Nations, became the most important and gained the greatest influence, so that Grotius appeared to posterity as the Father of the Law of Nature as well as that of the Law of Nations. Whatever we may nowadays think of this Law of Nature, the fact remains unshaken that for more than two hundred years after Grotius jurists, philosophers, and theologians firmly believed in it. And there is no doubt that, but for the systems of the Law of Nature and the doctrines of its prophets, the modern Constitutional Law and the modern Law of Nations would not be what they actually are. The Law of Nature supplied the crutches with whose help history has taught mankind to walk out of the institutions of the Middle Ages into those of modern times. The modern Law of Nations in especial owes its very existence to the theory of the Law of Nature. Grotius did not deny that there existed in his time already a good many customary rules for the international conduct of the States, but he expressly kept them apart from those rules which he considered the outcome of the Law of Nature. He distinguishes, therefore, between the natural Law of Nations on the one hand, and, on the other hand, the customary Law of Nations, which he calls the voluntary Law of Nations. The bulk of Grotius's interest is concentrated upon the natural Law of Nations, since he considered the voluntary of minor importance. But nevertheless he does not quite neglect the voluntary Law of Nations. Although he mainly and chiefly lays down the rules of the natural Law of Nations, he always mentions also voluntary rules concerning the different matters. |