1 Grotius's influence was soon enormous and reached over the whole of Europe. His book went through more than forty-five editions, and many translations have been published. § 54. But the modern Law of Nations has an- Zouche. other, though minor, founder besides Grotius, and this is an Englishman, Richard Zouche (1590-1660), Professor of Civil Law at Oxford and a Judge of the Admiralty Court. A prolific writer, the book through which he acquired the title of "Second founder of the Law of Nations," appeared in 1650 and bears the title: "Juris et judicii fecialis, sive juris inter gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et bellum inter diversos principes aut populos spectant, ex praecipuis historico jure peritis exhibentur." This little book has rightly been called the first manual of the positive Law of Nations. The standpoint of Zouche is totally different from that of Grotius in so far as, according to him, the customary Law of Nations is the most important part of that law, although, as a child of his time, he does not at all deny the existence of a natural Law of Nations. It must be specially mentioned that Zouche is the first who used the term jus inter gentes for that new branch of law. Grotius knew very well and says that the Law of Nations is a law between the States, but he called it jus gentium, and it is due to his influence that until Bentham nobody called the Law of Nations International Law. The distinction between the natural Law of Nations, chiefly treated by Grotius, and the customary or voluntary Law of Nations, chiefly treated by Zouche,2 1 See Rivier in Holtzendorff, I. p. 412. The last English translation is that by William Whewell of 1854. VOL. I. 2 It should be mentioned that already before Zouche, another Englishman, John Selden, in his De jure naturali et gentium G The Natu ralists. gave rise in the seventeenth and eighteenth centuries to three different schools of writers on the Law of Nations-namely, the "Naturalists," the "Positivists," and the "Grotians." § 55. "Naturalists," or "Deniers of the Law of Nations," is the appellation of those writers who deny that there is any positive Law of Nations whatever as the outcome of custom or treaties, and who maintain that all Law of Nations is only a part of the Law of Nature. The leader of the Naturalists is Samuel Pufendorf (1632-1694), who occupied the first chair which was founded for the Law of Nature and Nations at a University-namely, that at Heidelberg. Among the many books written by Pufendorf, three are of importance for the science of International Law: (1) "Elementa jurisprudentiae universalis," 1666; (2) "De jure naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem naturalem," 1673. Starting from the assertion of Hobbes, "De Cive," XIV. 4, that Natural Law is to be divided into Natural Law of individuals and of States, and that the latter is the Law of Nations, Pufendorf adds that outside this Natural Law of Nations no voluntary or positive Law of Nations exists which has the force of real law (quod quidem legis proprie dictae vim habeat, quae gentes tamquam a superiore profecta stringat). The most celebrated follower of Pufendorf is the German philosopher Christian Thomasius (1655-1728), who published in 1688 his "Institutiones juris secundum disciplinam ebraeorum concerning questions of maritime law and in especial prize law, were of the greatest importance for the development of maritime international law. 1 De jure naturae et gentium, II. c. 3, $ 22. prudentiae divinae," and in 1705 his "Fundamenta juris naturae et gentium." Of English Naturalists may be mentioned Francis Hutcheson ("System of Moral Philosophy," 1755) and Thomas Rutherford ("Institutes of Natural Law; being the Substance of a Course of Lectures on Grotius read in St. John's College, Cambridge," 1754). Jean Barbeyrac (1674-1744), the learned French translator and commentator of the works of Grotius, Pufendorf, and others, and, further, Jean Jacques Burlamaqui (1694-1748), a native of Geneva, who wrote the "Principes du droit de la nature et des gens," ought likewise to be mentioned. § 56. The "Positivists are the antipodes of the The PosiNaturalists. They include all those writers who, in contradistinction to Hobbes and Pufendorf, not only defend the existence of a positive Law of Nations as the outcome of custom or international treaties, but consider it more important than the natural Law of Nations, the very existence of which some of the Positivists deny, thus going beyond Zouche. The positive writers had not much influence in the seventeenth century, during which the Naturalists and the Grotians carried the day, but their time came in the eighteenth century. tivists. Of seventeenth-century writers, the Germans Rachel and Textor must be mentioned. Rachel published in 1676 his two dissertations, "De jure naturae et gentium," in which he defines the Law of Nations as the law to which a plurality of free States are subjected, and which comes into existence through tacit or express consent of these States (Jus plurium liberalium gentium pacto sive placito expressim aut tacite initum, quo utilitatis gratia sibi in vicem obligantur). Textor published in 1680 his "Synopsis juris gentium." In the eighteenth century the leading Positivists, Bynkershoek, Moser, and Martens, gained an enormous influence. Cornelius van Bynkershoek (1673-1743), a celebrated Dutch jurist, never wrote a treatise on the Law of Nations, but gained fame through three books dealing with different parts of this Law. He published in 1702 "De dominio maris," in 1721 "De foro legatorum," in 1737 "Quaestionum juris publici libri II." According to Bynkershoek the basis of the Law of Nations is the common consent of the nations which finds its expression either in international custom or in international treaties. Johann Jakob Moser (1701-1785), a German Professor of Law, published many books concerning the Law of Nations, of which three must be mentioned: (1) "Grundsätze des jetzt üblichen Völkerrechts in Friedenszeiten," 1750; (2) "Grundsätze des jetzt üblichen Völkerrechts in Kriegszeiten," 1752; (3) "Versuch des neuesten europäischen Völkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books are magazines of an enormous number of facts which are of the greatest value for the positive Law of Nations. Moser never fights against the Naturalists, but he is totally indifferent towards the natural Law of Nations, since to him the Law of Nations is positive law only and based on international custom and treaties. Georg Friedrich von Martens (1756-1821), Professor of Law in the University of Göttingen, also published many books concerning the Law of Nations. The most important is his "Précis du droit des gens moderne de l'Europe," published in 1789, of which William Cobbett published in 1795 at Philadelphia an English translation, and of which as late as 1864 appeared a new edition at Paris with notes by Charles Vergé. Martens began the celebrated collection of treaties which goes under the title "Martens, Recueil des Traités," and is continued to our days. The influence of Martens was great, and even at the present time is considerable. He is not an exclusive Positivist, since he does not deny the existence of natural Law of Nations, and since he sometimes refers to the latter in case he finds a gap in the positive Law of Nations. But his interest is in the positive Law of Nations, which he builds up historically on international custom and treaties. § 57. The "Grotians" stand midway between the The Naturalists and the Positivists. They keep up the Grotians. distinction of Grotius between the natural and the voluntary Law of Nations, but, in contradistinction to Grotius, they consider the positive or voluntary of equal importance to the natural, and they devote, therefore, their interest to both alike. Grotius's influence was so enormous that the majority of the authors of the seventeenth and eighteenth centuries were Grotians, but only two of them have acquired a European reputation-namely, Wolff and Vattel. Christian Wolff (1679-1754), a German philosopher who was first Professor of Mathematics and Philosophy in the Universities of Halle and Marburg and afterwards returned to Halle as Professor of the Law of Nature and Nations, was seventy years of age when, in 1749, he published his "Jus gentium methodo scientifica pertractatum." In 1750 followed his "Institutiones juris naturae et gentium." Wolff's conception of the Law of Nations is influenced Georg Friedrich von Martens is not to be confounded with his nephew Charles de Martens, the author of the Causes célèbres de |