in which what was acknowledged as a law of nations existed in the middle ages, corresponds with what would have been expected from all that history has taught us of the semicivilized condition of society at that period: when knowledge was obscured in almost total darkness, and liberty, instead of being felt by nations, can barely be discovered in its germ by the antiquarian, when the best governments were despotisms mildly administered, and when law was gradually struggling into supremacy, not in the province of security against the governors but in that of justice. among the governed — it is not to such a time that we must look for the development of principles dependent on considerations of abstract equity. But the middle ages have nevertheless a considerable influence upon the law of nations as recognised by civilized governments at the present day. For much of that law, like our common law, depends on practice constantly existing; and the middle ages originated precedents on various international questions which have been followed ever since, though often much varied and modified. Such customary law will be more fully considered in a future chapter, this being merely the place for remarking how little civilized were the times that have afforded us those precedents: and we shall have to notice several instances wherein the law which we are considering has been unfavorably affected, and involved in some inconsistencies, from being influenced by usages, that had their origin in ages when justice between nations was so little appreciated or understood. On the fall of Constantinople, in 1453, there followed that remarkable æra so happy in the conjunction of admirable scholars with most liberal patrons, whose fostering care was needed by the circumstances of literature, but happiest in the newly discovered art which made the results of their labors of easy circulation and attainment. It is an æra well characterized in the usual phrase of the "revival of letters," for it is more remarkable for the resuscitation of the great minds of antiquity, than for original works produced by the authors who then existed, though some of these were eminent. This direction of mental energy was fortunate for Europe, whose men of genius, instead of having to rediscover what had before been known, found a full-grown literature awaiting their attention: but it was unfortunate for the science which we are now considering, as no works by ancient authors treat of the law of nations, which therefore remained unnoticed amidst the general bursting forth of knowledge on almost every topic of inquiry. And, besides this, Italy, the focus of the light which was spreading over Europe, was from its political condition unapt for the study of such a science; nor can we fancy tendencies, congenial to the reception of considerations of abstract equity, to be common among rulers for whom Machiavel's Prince was proposed as a guide in political action. Accordingly, while such rapid advances were made in many branches of literature, no progress can be recorded in the science of international law. Suarez, who lived from 1538 to 1617, is the first author whose works on this subject have obtained any notoriety, although not the first writer that gave some attention to such inquiries. Sir James Mackintosh, in his history of the Progress of Ethical Philosophy,' speaks of him as the writer who "first saw that international law was composed, not only of the simple principles of justice applied to the intercourse between states, but of those usages long observed in that intercourse by the European race, which have since been more exactly distinguished as the consuetudinary law acknowledged by the christian nations of Europe and America." But Suarez himself speaks of this distinction as already recognised by previous writers: "Neque ab hâc sen tentiâ dissentiunt Juristæ qui jus gentium distinguunt in primarium et secundarium, et prius dicunt in jure naturali, posterius vero esso positivum humanum." And this position he supports by references to writers by whom this distinction had been made. Previous authors had therefore existed, whose writings are now unknown; while Suarez, in the luck of fame, bears usually the reputation of being the originator of the correct method of studying international law. His work is entitled De Legibus ac Deo Legislatore, and it treats of the formation of laws and the nature of moral obligation. But notwithstanding the astonishing learning which his pages evince, Suarez is not now worth consulting, unless from curiosity; and curious his treatise certainly is, from the vast reading which it displays in its author; reading so profound that we cannot help respecting it, although its results are now useless; the questions discussed by Suarez having since been much more satisfactorily debated under the improved philosophy of later times. But this must not produce an ungrateful forgetfulness of how valuable, for his age, the labors of Suarez really were. His works were published at Venice, in twenty-three volumes folio, between 1741 and 1745, and his reputation at the present day seems influenced by the bulkiness of his productions, which prevents his being usually read, and prevents his being totally forgotten. Next to Suarez comes Albericus Gentilis, who lived during the last half of the sixteenth century. His father was an Italian physician, who embraced Protantism, and sent Albericus to England, where he became professor of civil law at Oxford, about 1582. He was patronized by the celebrated earl of Essex, to whom his treatise De Jure Belli is dedicated. In this treatise Gentilis considers the right of making war, and the conduct to be observed during Suarez, de Legibus ac Deo Legislatore, lib. II. c. xix., s. 4. war regarding prisoners, hostages, and other similar questions. He uses much illustration from history, with which his citation of precedents shows him to have been very conversant; and his work, although now completely superseded, must have been interesting to men of the age in which it was published; especially as, according to the declaration of Gentilis, his was the first treatise of the sort in existence. Besides the treatise De Jure Belli, Albericus Gentilis wrote a work, entitled Hispanica Advocationis libri duo, a posthumous publication, edited by his brother; who informs us, that this was the only essay, among several manuscripts on jurisprudence, which Albericus would allow to be published. On the occasion of James I. remaining neutral during the war between the king of Spain and the Low Countries, a great number of cases in which Spanish interests were concerned, came before the courts of this country, and Albericus Gentilis was appointed, by the Spanish ambassador, official advocate in such causes in behalf of the Spaniards; and hence the title of his work, which was, I believe, first printed in 1613. His discussions on different topics of prize-law are valuable to the student, even at the present day. The study of the Roman law sharpened the judgment for all questions where rights were involved, and although not dependent on any systematic knowledge of international law, the decisions of Gentilis usually correspond with those of more recent times. His opinions on contraband of war, on captures in a neutral territory, on prizes made after the conclusion of peace, and on the goods of enemies laden in the ships of neutrals, have obtained the sanction of our courts of admiralty in almost every particular. And this is saying a great deal for Albericus Gentilis, for it is no slight merit for the first writer on a new subject to have judgment and penetration sufficient to carry him at once to correct conclusions. Any of my readers who may have traced the history of any science, or of any discovery, must have remarked how difficult it is to allow to any person the full merit of originality. Vague germs of the ideas which we find perfected and adapted to action, are discernible in the writings of preceding authors, and these again have still further predecessors in the same train, so that the earliest notions discoverable strike us as probably not original in themselves, but only as the earliest that occur to our research. It is so with the celebrated treatise of Grotius. But such undefined surmises after truth hardly impair the originality of a great writer and although we may be able to trace the influence of remote associations, yet enough of the creative power of genius still remains for our admiration; and the assistance which such vague suggestions can afford is so slight, that though they affect the fact, they leave untouched the merit, of originality. Such merit belongs, I think, to Grotius, who, if I may be allowed the illustration, gained no more from the writings of preceding authors, than our own greatest dramatist did from the old tales which formed the basis of his plots. The works of Gentilis, by which Grotius allowed that he profited, may have afforded him a few examples, but could never have suggested his system, and are remote from the scope of his purpose. Other writers are mentioned by Grotius as having written on the rights of war, as Victoria, Henry of Gorcum, Matthæus, Johannes Lupus, Franciscus Arias, Johannes de Lignano, Martinus Laudensis, and Balthazar Ayala. Cf whom Grotius reports, that "hi omnes de uberrimo argumento paucissima dixerunt," observing no system, and blending divine, civil, and canon law, in indiscriminate confusion. To Grotius then is due, I think, the merit which is usually accorded to him, of having been the originator of that which, unaided, he permanently established as a science in Europe. He had the happiness of being exactly adapted to the times in which he lived, for had he lived much earlier |