as had been injured, to exact reprisals from the subjects of the state which had inflicted the injury. The theory which underlies the institution of reprisals is the theory universally held in the Middle Ages that that which is due from a community is due from each of its members. The breadth of the theory accounts for the wide use of reprisals in many different connections. We shall see that in Italy the interests of commerce led to their regulation and that that regulation is one of the roots of that department of private international law which regulates the legal consequences of foreign judgments.2 Elsewhere they continued to be used extensively all through the Middle Ages and later, till the growth of the power of the state and the interests of commerce led to their regulation, limitation, and finally to their disuse. The founders of modern international law turned against them. Gentili called the law relating to them "most hateful"; and Grotius, though he does not deny their legality or even their usefulness, cites with approval the Roman theory-wholly opposed to the mediæval theory on which reprisals rested—that “Si quid universitati debetur, singulis non debetur, nec quod debet universitas singuli debent." The law and custom of reprisals may have helped indirectly to forward the view that neutral individuals who offend the rules of international law may be punished by a belligerent state. Otherwise they have left hardly any trace in our modern law.

3

5

In

The influence of commercial interests in first limiting and then abolishing the right of reprisals shows us the source from which we may expect to find some development of the rules for the regulation of the peaceful intercourse of different nations. the relations of the great trading centres of Italy and South Western Europe many of the doctrines of our modern international law originated. Just as we find in them some of the germs of the law of Neutrality, and some regulation of Reprisals, so we find the beginnings of the conception of the Balance of Power, the institution of permanent embassies, and the consequent 2 Below 73-75, 98.

9

1 Nys, op. cit. 63.

3" Dico esse odiosissimum hoc jus literarum markæ, quod merito divinissimus noster rex abominatur: per quod geretur latrocinium verius quam bellum: contra inermes et innoxios mercatores et alios ab aciebus longe positos," Lansdowne MSS. vol. 139, cited Nys, op. cit. 77.

4 De Jure Belli et Pacis iii 2. 2, "Est igitur hoc inter jura illa quæ Justinianus ait usu exigente et humanis necessitatibus agentibus humanis constituta. Non autem ita hoc naturæ repugnat, ut non more et tacito consensu induci potuerit.' 546 Alioqui magna daretur injuriis faciendis licentia, cum bona imperantium sæpe non tam facile possint in manus venire, quam privatorum qui plures sunt," ibid. Ibid iii 2. 1; the custom was practically obsolete by the end of the seventeenth century, Nys, op. cit. 77. 8 Below 73-75.

7 Above 35.

9 Nys, op. cit. 167-168, “Cinq grands Etats-Florence, Naples, Milan, le patrimoine de saint Pierre, Venise, etablissent un systeme de balance politique."

development of the art of diplomacy.1 Many institutions which have played a large part in the making of modern international law could not arise till Western Europe had ceased to be one Holy Roman Empire, and had come to be a collection of territorial states. But the fact that Italy had anticipated this new organization sometime before the Reformation finally broke up the theoretical basis upon which the Holy Roman Empire rested, and the fact that Italy was more highly civilized than the rest of Europe, caused the Italian ideas to influence the growth of modern international law in much the same way as they influenced the growth of modern commercial and maritime law. They were a useful model when, in the sixteenth century, mediæval ideas as to international relations required to be modified to suit the needs of independent territorial states.

The Necessities of the Territorial State

3

I have already said something of the new political ideas which came with the rise of the territorial state. We have seen that this new political phenomenon was accompanied by large changes in men's religious and intellectual outlook, and by a great enlargement of the boundaries of the known world. All these changes affected the relations of the various states of Europe, and added large new chapters to the laws and customs which regulated them. Here I shall, in the first place, indicate briefly the nature of some of these problems, and, in the second place, give some concrete instances of the manner in which some of them were solved by English statesmen and lawyers. This history will show us that it was the actual facts of the political life of Europe which led the lawyers of many countries to perceive that a new branch of law had arisen, and to endeavour, by a combination of mediæval theories and modern practice, to set it forth in systematic form.

(i) The nature of the new problems.

Of these new problems I shall only indicate briefly a few of the most important.

In the Middle Ages, when embassies were few and temporary, when the position of the nascent territorial state was not fully appreciated, the positions of a foreign sovereign and an ambassador were by no means clearly defined. We find a sovereign exercising acts of jurisdiction outside his own country-e.g. Richard I. hanged thieves on his way to Palestine, and Edward I., while staying at Paris, was allowed to exercise jurisdiction over a thief caught in his hotel. On the other hand, acts of hostility were committed

4

1 Nys, op. cit. 297.

3 Vol. iv 190-217.

2 Below 63-65.
4 Walker, op. cit. 114.

against foreign sovereigns by their personal enemies, though no state of war existed-e.g. Richard I. was seized by Leopold of Austria and imprisoned on his way home from Palestine; and Henry IV. detained Prince James of Scotland in 1405.1 The ideas, firstly, that the person of the sovereign is always sacred, and, secondly, that the jurisdiction of a sovereign within his own dominions is exclusive,2 are at the root of the modern law. The foreign sovereign is immune from all interference by legal process or otherwise, but he can exercise no active functions outside his own territory. Similarly the universal prevalence of permanent embassies in the sixteenth century made it necessary to go beyond the vague phrases about the sanctity of the ambassador's person which had passed current in the Middle Ages, and to define his position in relation to the law of the country to which he was accredited. It was only gradually that the extent of his immunity from the process and jurisdiction of that country's courts was defined by the help of the ideas, firstly, that he represents the person of his sovereign, and secondly that, by a legal fiction, he, his dwelling-place, and his suite, are regarded as being outside the territory of the state to which they are accredited.3

4

These permanent embassies, which gave rise to the modern law as to the position of an ambassador, also gave rise to the diplomatic organization of modern times. The Italian cities, and especially Venice, pointed the way to the organization of a regular "corps diplomatique"; and the reports of these Venetian ambassadors are one of the most important sources of modern European history. Thus, as Nys has said, " Italy introduced the civilized world to international life."5 Gradually diplomacy became a separate art, and the profession of the diplomatist a separate, sometimes almost a hereditary, profession." Questions of precedence as between the ambassadors of different princes, and the gradations of rank between different classes of diplomatic agents, gave rise to frequent disputes, to a series of monographs

1 Walker, op. cit. 114.

2 Below 45, 49.

3 Below 45-46; "Deux fictions, celle de la représentation du monarque par l'ambassadeur et celle de l'exterritorialité du ministre public contribuent à une exagération des privilèges des ministres publics, exagération qui trouve peut-être une justification historique dans la considération que l'imperfection des autorités locales necessitait une solide protection contre les désordres populaires ou contre les caprices du despotisme," Nys, op. cit. 341.

See ibid 297-312, for an account of the Venetian organization; ibid 316-325 for an account of the beginnings of a similar organization in the principal countries of Western Europe.

5 Ibid 313.

6" On remarque que, dans certains pays monarchiques, la carrière diplomatique devient l'apanage de quelques grandes familles. Il n'y a d'exclusion pour aucun talent, mais on voit de véritables dynasties se transmettre de père en fils l'art de négocier," ibid 325.

7 Walker, op. cit. 174-176.

on ambassadors,1 and to long chapters in modern books on international law. We may remember that at Oxford the full title of the Chichele professor of international law is professor of international law and diplomacy.

The rise of this new art is a sign that these modern territorial states, in spite of their independence and their sovereignty, were yet members of one family, and needed some machinery for the regulation of their common interests. The nature of some of these common interests has changed from age to age. In earlier days, family and dynastic relationships played a great part. In our own days the discoveries of physical science, by drawing together the most distant parts of the world, have immensely increased the number of these common interests. But two of the most permanent and most important of these interests have been the maintenance of the balance of power, and the regulation of foreign trade. Both in this period began to influence international relations, and therefore to give rise to further additions to international law.

The idea of maintaining a balance of power, will necessarily emerge whenever there exist together several neighbouring and independent states. In ancient Greece and in medieval Italy wars and alliances were made to prevent the predominance of some one of these states. And, in the sixteenth century, the influence of this idea soon made itself felt throughout Western Europe. The foreign policy of Wolsey was, as we have seen, inspired by this idea,2 and the foreign policy of the early part of Elizabeth's reign was determined to a large extent by her knowledge that the maintenance of the balance of power would practically compel Spain to take England's side against France. The projected alliances and marriage treaties, the arrangements for war and negotiations for peace, either for the purpose of aggrandisement, or to prevent the aggrandisement of some other state, kept the sixteenth-century diplomatist busy, and helped to make the modern law which centres round the ambassador and his activities.

We have seen that the commercial policy of England was based upon the idea of furthering the maintenance and increase of the power of the state; and the same idea inspired the commercial policy of other European states. But these ideas necessarily led to the making of commercial treaties such as the Intercursus Magnus made by Henry VII. in 1496, and the

1 For some of these books see Nys, op. cit. 345-352, 356-361; in 1634 Sir Thomas Roe wrote a memorandum on the necessity for giving Englishmen who had served as ambassadors a better rank in the table of precedence, S.P. Dom. 1634-1635, 354, cclxxviii 44. 4 Ibid 315-319.

2 Vol. iv 33.

3 Ibid 44-45.

1

Intercursus Malus in 1506. Similarly we have treaties between England and Flanders as to currency; and from 1535 we have a series of capitulations which regulated commercial intercourse with the Turks.2

It was commercial considerations that led to those voyages of discovery which brought India and the East Indies into direct communication by sea with Western Europe, and made known both the New World across the Atlantic, and, beyond that New World, the new Pacific ocean. And these discoveries naturally raised many new problems for lawyers and diplomatists. We have already seen that the treatment by the Spaniards of the Indians aroused a keen discussion as to the justice of making war against them, which is at the root of much of our modern laws of war; 3 and that the admission that the Indians had some legal rights, paved the way for the enlargement of the sphere of international law beyond the circle of Christian states.* Besides these questions, these discoveries raised the question of the title of a state to newly discovered country by occupation. Could a state acquire such country if already occupied by infidels? Some held it could, and reliance was placed on the supposed power of the pope to dispose of all islands by virtue of Constantine's Donation. Others held that infidels could hold property, and that therefore no state could take their land unless they refused to allow the discoverers to sojourn there, to share with them those things which by the jus gentium and general custom are common to all, or to trade. In practice the different European nations took and settled upon as much of the New World as they could, and used their colonies simply to promote the commercial interests of the mother country. Papal bulls were naturally not regarded by Protestant countries; and in the seventeenth century the modern view, that the question of the title of the different countries to these possessions depended upon. deductions drawn from the Roman law of occupatio, was beginning to prevail.

5

Another question raised by the discoveries was the freedom of the sea. 8 In the Middle Ages claims had been made by

1 Nys, op. cit. 288-291.

3 Above 32-33.

5 Nys, op. cit. 369, 370; below 47.

2 Ibid 293-294.

4 Above 32.

6 This was the view of Vitoria, see Walker, op. cit. 220-224.

7 See a discussion in 1613 whether Englishmen or Dutchmen had first discovered and occupied Greenland, upon which the right to fish for whale was thought to turn, Acts of the Privy Council (1613-1614) 322-324; cf. Hall, International Law (6th ed.) 107-114; as is pointed out, ibid 144-145, the proof demanded of effective occupatio is becoming more stringent as the area of possible occupation has become more limited.

8 On the whole subject see Nys, op. cit. chap. xvi.