ments, and exercising a calm and passionless reason to discover the best rules of human conduct, is psychologically foolish.

§ 36.

The effect of the two theories in

obtaining accep

infor

improved Inter

But untenable as is the theory of a Law of Nature, whether or no it be linked with the twin theory of a State of Nature, it performed a great service to humanity when it induced the statesmen and rulers of the seventeenth century to accept the system of International Law put forth by Hugo Grotius. national Law. They had all been taught that Natural Law was specially binding in its character, and believed that men could not violate it without sinking to the level of the beasts. When they found it applied by a great thinker to the regulation of international relations, and discovered that, so applied, it forbade the practices of which they were more than half ashamed, and placed restraints upon that unchecked fury which had turned central Europe into a veritable pandemonium, they were disposed to welcome and adopt it. The times were out of joint. The old principles which had regulated the state relations of medieval Christendom were dead. The attempt to get on without any principles at all had been a costly and bloodstained failure. New principles were presented, clothed with all the authority of admitted theory. It is not to be wondered at that they were eagerly received, and became in a short time the foundations of a new international order. In so far as they are theoretical and connected with Nature and Natural Law we have already examined them and found them to be wanting. But we have yet to discuss them on their practical side, and in this aspect we shall discover that they are worthy of the highest admiration.

§ 37.

The great practical principle of Grotius was the independence of sovereign states. He gave up, even in theory, the

worn-out doctrine of a temporal and a spiritual head of Christendom. There was no common superior,

Grotius insists on

the independence whether Emperor or Pope, with a right to exact

of states and the

territorial sover

eignty of rulers.

We

obedience from the nations. Each state was absolutely independent of any external human authority, and as a corollary all were equal before the law which Nature and common consent imposed. This is the fundamental doctrine of modern International Law. speak of a family of nations, a society of independent units termed states, where our ancestors spoke of a world-empire and a world-church; and we look for the rules of our society in the express or tacit consent of the units of which it is composed, whereas they looked to the decisions of some mighty head, armed by heaven itself with either the temporal or the spiritual sword.

The second of the great practical principles which form the basis of International Law as we understand it is the doctrine of territorial sovereignty. This was not introduced into the science by Grotius. As we have already seen, it was due to feudalism, which associated political rights and duties with the possession of a portion of the earth's surface. But the Grotian system took away from it those limitations which had done much to soften its application in mediæval times. The power of a feudal lord was bounded not only by the rights of his superior, if he had one, but also by the rights of those who held their land of him. The relation between them was a legal one, based upon contract, and involving mutual rights and obligations which the inferior as well as the superior could test in a court of law. Modern International Law, on the other hand, regards sovereigns, or, in other words, supreme governments, as absolute owners of the state's territory in their relations with each other, however restricted their power may be with regard to the land of their subjects in all internal transactions. A ruler who cannot take an inch of ground from the humblest of his subjects to 2 See § 28.

1 De Jure Belli ac Pacis, II., XXII., xiii. and xiv.

round off his own domain, may cede a whole province to a brother ruler without any regard for the wishes of its inhabitants, though Grotius denied that he possessed this power unless his kingdom was patrimonial. In all transactions between states where cession of territory is involved, whether the transfer be just and necessary or selfish and uncalledfor, the documents are worded as if the lands in question belonged to the rulers in absolute proprietorship. In states where government is carried on by consent of the governed, this is no more than a legal form, since so important an act as the acquisition or cession of territory is not likely to be performed without at least the acquiescence of the people. But it is hardly possible to avoid the conclusion that the simplification of the doctrine of territorial sovereignty, by taking away from it all qualifying elements, did something to help on the development of autocratic notions of government. It is powerless for evil now, for all it means is that the proper organ of the state should speak on its behalf; but was it quite so harmless in the age of Louis XIV.? In external matters to-day the doctrine does little more than provide appropriate forms for solemn international acts, but it has an internal aspect also, on which we will for a moment proceed to dwell. In this connection it deals with jurisdiction, and asserts that the local sovereign has authority over all persons and things within his territory. How important this assertion is, and how closely it affects countless matters of everyday life, we shall see when we come to deal with the subject of a state's jurisdictional rights.2 Meanwhile we will endeavor to discover why the principle of territorial sovereignty came to receive the vast extension of which we have been speaking.

§ 38.

The solution of the problem propounded above is to be found in the resort of Grotius to Roman Law for many of the

1 De Jure Belli ac Pacis, I., III., xii.-xiii.

E

2 See §§ 113-119.

The rules laid down by Grotius with regard to do

from the Roman

Jus Gentium.

rules of his international system. It had influenced the ideas of the Middle Ages as to the relations of states; but its power was felt chiefly within the Holy Roman Empire, whose lawyers deemed that the minion, were taken unlimited authority given to the Cæsars by the Jus Civile belonged of right to every Emperor who had been crowned and anointed in the city of the seven hills. This notion ceased to regulate the intercourse of commonwealths in proportion as they succeeded in obtaining a practical freedom from imperial authority, and when the doctrine of a common superior perished out of the international code, there was no further use for rules which implied its existence. But the man who expelled them from the external politics of Christendom, introduced at the same time a mass of rules drawn from another portion of the Roman legal system. Cæsar's power was defined by the Jus Civile. Grotius laid the Jus Gentium under contribution. We cannot here enter into the disputed question of the exact meaning attached by the Roman lawyers to this famous phrase;1 and till that question is satisfactorily settled, it will be impossible to decide whether Grotius did, as Sir Henry Maine asserts,2 borrow from the Jus Gentium, under the mistaken impression that it was a body of rules framed for the regulation of international concerns, and based upon Natural Law, or whether, as other writers claim,3 he regarded it as Universal Law, based upon the precepts of reason, and was right in so doing. Certain it is that he adopted into his system rule after rule of the Jus Gentium, and declared that they were part of that Natural Law which all mankind were bound to obey. Rightly or wrongly, the Roman Law of Nations was used to build the fabric of the Grotian Law of Nature. It is

1 An examination of the views of modern scholars will be found in the Journal of Philology, Vol. XIII., No. 26, in an article on Jus Gentium by Professor Nettleship.

2 Ancient Law, Ch. IV.

8 e.g. Walker, Science of International Law, Ch. IV.

of little moment to students of International Law whether the materials were taken under a misapprehension of the meaning of a Latin phrase, or whether their appropriator was grammatically and logically justified in laying his hands upon them. The important point for us is that he took them. They became part and parcel of his system, and his system became the public law of the civilized world. Now, the Jus Gentium regarded ownership as absolute. Proprietors under it possessed their lands by as unrestricted a right as they possessed their money or their clothes. The thing itself was theirs, not a greater or less interest in it. Forms of limited ownership existed, but they were regarded as exceptional. The typical Roman proprietor was the dominus, and his rights were absolute and complete. Grotius applied to international transactions the rules which in Roman Law governed the acquisition of private property, and thus deprived the notion of territorial sovereignty of its ancient checks and limitations. At the same time and by the same means he furnished the rulers of Europe with instruments for dealing with a set of new problems which were daily becoming more urgent.

§ 39.

The discovery of America had resulted in a vigorous scramble for its territories among the maritime nations of the Old World. Spaniards, French, English, and Dutch fought, annexed, and colonized, wherever the skill of their seamen and the valor of

The Roman Law

principle of

occupatio provided rules for the acquisition of ter

ritory in the New

World.

their explorers carried their national flags. They claimed enormous tracts of country on the slightest pretexts, and settled their disputes upon the spot by surprises and massacres. The scanty international code of the Middle Ages could deal with questions of vassalage and supremacy, and settle the legal effects of the conquest or cession of territory; but it was powerless to decide what acts

1 Justinian, Institutes, II., i.; Gaius, Institutes, II., §§ 40-96; Austin, Jurisprudence, II., 817-818.