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different countries to the control of certain seas bordering upon their states. Venice claimed to impose a tax upon ships which entered the Adriatic.1 Genoa and Pisa claimed dominion over the Ligurian and Tyrrhenian seas.2 England, certainly from the beginning of the fourteenth century, had claimed jurisdiction over the four seas. Still larger claims were made by the Portuguese and Spaniards. The former claimed to have the exclusive right to the seas round South Africa and the East Indies, the latter to the seas round America. It was the Portuguese claims which gave rise to Grotius' famous work upon the Mare Liberum ;* and this in its turn called forth, as we have seen, three replies by Englishmen-Borough's work upon the Sovereignty of the British Seas," Welwod's work De Dominio Maris, and the more famous work of Selden-the Mare Clausum.

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The increase in the number and permanence of the peaceful relations between states, the growth of a permanent machinery for the discussion of their differences, and the consequent evolution of a number of legal rules as to the working of this machinery and as to the principles applicable to settle these differences, naturally tended to bring into prominence the department of International law which concerns Peace. It became clear that the importance of the law which regulated the peaceful relations of states was as great as the importance of the law which regulated their relations in time of war. But this in its turn tended to give rise to an altogether new department in International law-the department of Neutrality. In the seventeenth century it gradually became clear that, if war was raging between any two states, those states which took no part in the war had peculiar rights against, and owed peculiar duties to, the states at war with one another.

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The status of Neutrality was unknown in the Middle Ages, and was ill-defined in the sixteenth century. Even in Grotius' work it takes no large place. In fact it was not till the latter part of the seventeenth century that the leading principles of the modern law began to be ascertained. The reason for its slow growth must probably be sought in the disturbing influence of

1 Nys, op. cit. 379. A gloss on Bracton's text, printed by Maitland from the Cambridge MS. dd. vii 60, which comes from the end of the reign of Edward I. or the beginning of the reign of Edward II., runs as follows:-"Et nota de prima parte quod in Anglia minus curatur de jure naturali quam in aliqua regione de mundo quia Rex Angliæ vocatur dominus marium propter potestatem suam quam habet in aquis," Bracton and Azo (S.S.) 125; for the Fasciculus de superioritate maris of Edward III.'s reign in which this claim is made, see vol. i 544; below 47.

2 Ibid 380; Hall, International Law 140-142.

4 Nys, op. cit. 382-383.

5 Above 10.

7 Above 10-II; below 47.

6 Above 10.
8 Below 47-49.

the wars of religion. The foreign policy of the state was often not in accord with the religious views of large sections of its subjects; and this made for interferences in the domestic dissensions and the foreign wars of other states with which there was nominally peace. Englishmen in the reign of James I. were ready enough to take a hand in the Thirty Years War, and soldiers were enlisted in the Protestant interest.1 Again, states were sometimes nominally at peace, but each was ready to assist the enemies of the other. This was the position of England and Spain right down to 1588. It was not till the wars of religion were over that differences between states came to be based solely upon divergent national interests. It was not till then that the states of Peace, War, and Neutrality could clearly emerge and give rise to distinct sets of rules.

In these various ways the necessities of the territorial state had set a number of new problems to statesmen and lawyers. A few concrete instances, taken from English history, will show us that the solution of these problems was giving rise to a number of new applications of old rules, to many entirely new rules, and to some new theories and speculations.

(ii) Some concrete instances from English history of the problems set by the necessities of the territorial state.

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We have seen that the maintenance of the study of the civil law was grounded mainly upon the necessity of educating men who could advise the government in international difficulties.2 Though these difficulties occasionally came before the common lawyers when they touched on English law,3 they were generally matters which concerned the Council, and depended upon the rules which, all over Europe, the civilians were applying to their solution. The manner in which the Council used the advice of the civilians to help them in these difficulties has been so clearly described by Nys that I shall copy his words. He says: "A perusal of the volumes of the Calendar of State Papers establishes that, before the period when international law was greatly developed, the English government was convinced of the necessity of juridical study and advice upon international questions; we can see that it knew perfectly how to utilize the talents of its agents. Among the memorials which they drew up, some take the form of truly academic dissertations, as for example the reply of Valentine Dale on the subject of ancient and modern wars begun illegally and without just cause; 5 others are quite technical,

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For some illustrations see Coke, Fourth Instit. c. 26; below 49-50, 136 n. 10, 144, 146-147. 5S.P. Dom., 1581-1590, 257, clxxxi 18.

4 Nys, op. cit. 354.

such as the opinion as to those who assist pirates; others again have an intense practical bearing on the facts of the day, as the examination which the same learned civilian made, on the instructions of Burghley, of the book in which Don Antonio had maintained his rights to the throne of Portugal, which were disputed by Philip II. In his reply to Burghley Dale adds a note of the treatise of Bartolus De Dignitatibus, on the subject of the position of a prince outside his own dominions." 2

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The last-mentioned subject was a matter of very practical importance to the English government while Mary Queen of Scots was in England. As against the legality of her detention by Elizabeth she contended that a foreign sovereign was wholly immune from any territorial jurisdiction; and this is the view which has prevailed. Elizabeth, on the other hand, contended that she was within her right in detaining her in custody as this step was necessary for her own safety. And later, she defended her right to try her on the undoubtedly valid grounds that, having been deposed, she was no longer a sovereign; and that, being in England, she was subject to English law."

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The position of an ambassador and his suite gave rise to many debatable questions. According to the views of the civilians consulted in the case of the Bishop of Ross, an ambassador who attempted to raise rebellion forfeited his privileges; and Coke and others seem to have thought that the commission by an ambassador of "any crime which is contra jus gentium as treason felony adultery" entailed forfeiture of his privileges. But the opinion now established that an ambassador in such a case should be simply ordered to leave the country was advocated by Gentili and Hotman in the case of Mendoza, and was followed by the government. Similarly it would appear from

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1 British Museum Harl. MSS. 168; cf. also an opinion of Sir H. Marten given to the House of Lords as to the right to take enemy goods in English ships, Hist. MSS. Com. 4th Rep. App. Pt. I. 88. 3 Walker, op. cit. 170, 171.

2 S.P. Dom. 1581-1590, 63, cliv 63.

4 But apparently in the seventeenth century the common law courts were not quite alive to all the consequences of this immunity; Selden says, Table Talk (Ed. Reynolds) 99-100, "the king of Spain was outlawed in Westminster Hall, I being of counsel against him "; and the same uncertainty prevailed in the case of the ambassador, below 46.

5 Walker, op. cit. 171.

6"That the English which in England did acknowledge the souvraigne authority of Queene Elizabeth only, could not acknowledge two supreme, free, and absolute princes in England at once; or any other whomsoever to be equall unto her in England as long as she lived. Neither indeed did they see, how the Queene of Scottes, and her Sonne at that daie reigning, could bee holden both at one time to bee supreme and Absolute Princes, that no man was ignorant of that saying of the lawyers, A man offending in another's territory, and there found, is punished in the place of his offence, without regard of his dignity, honor, or privilege," Camden, Elizabeth s.a. 1586, cited Walker, op. cit. 172.

7 Ibid 176-179.

8 Fourth Instit. 153.

9 Walker, op. cit. 180-181; Holland, Studies in International Law 10.

Coke, and also from writers on international law, that the immunity of the ambassador from civil suits was by no means fully established.1 In 1590-1591 a Dutch envoy, who claimed to be "a public person," complained to the Council that he had been arrested at the suit of Gerrard de Malynes; and the Council referred the matter to Drs. Aubrey and Cæsar for enquiry. The privileges belonging to the Ambassador's residence were sometimes, according to our modern ideas, unduly curtailed. Thus Philip II. once denied the English ambassador the right to use the service of the Church of England in his house. Sometimes they were unduly extended-as when Sully tried and condemned to death a member of his suite who had killed an Englishman in a brawl.1 That a member of the ambassador's suite was, by English law, amenable to the local criminal jurisdiction was settled in 1654 in the case of Don Pantaleone Sa who, though the brother and a member of the suite of the Portuguese ambassador, was tried and executed for murder,"

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The number of questions which arose in this period as to the rights and privileges of ambassadors illustrates the important place which these permanent embassies were taking in the political life of the period. Their presence was in fact very necessary to adjust the minor differences which were always arising out of the constant intercourse between the various states of Europe. There are very many instances in the Council records in which the ambassador of some foreign power brought to the notice of the government some case of the ill-treatment or oppression of a subject of his own state; and conversely, there are many cases in which representations were made to the ambassador of a foreign power by whom an English subject had been oppressed. Very many of these complaints were made

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1 Coke, Fourth Instit. 153, says, "And so of contracts that be good jure gentium he must answer here"; Zouche, Juris et Judicii Fecialis Explicatio, Pt. 2 § 4, says, "De omni contractu quem tempore Legationis iniit Legatum judicium subire debere censet," and he vouches Gentili; cf. Nys, op. cit. 341; but Grotius, De Jure Belli et Pacis, Bk. i 18. 9, took the opposite view, which has prevailed; for the analogous case of the foreign sovereign see above 45 n. 4.

2 Dasent xx 310.

4 Ibid 183; Grotius said, op. cit. tionem habeat in familiam suam Illud enim juris gentium non est.

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3 Walker, op. cit. 181-182.

Bk. ii 18. 8, "Ipse autem legatus an jurisdicex concessione pendet ejus apud quem agit.

5 Pitt-Cobbet, Leading Cases on International Law (2nd ed.) 114; Grotius had said, op. cit. Bk. ii 18. 8, "Si quid comites gravius deliquerint postulari a legato poterit ut eos dedat.”

Nicolas vii 47-48 (1540); Dasent i 162, 220 (1545); ii 373 (1549-1550); iv 178 (1552), 289 (1553); vii 357 (1570); xvi 415 (1588).

Nicolas vii 18, 86, 131 (1540); 308-309, 318 (1541); Dasent i 161, 275 (1545); iv 390 (1553-1554); V 98 (1554-1555); vii 348 (1567); 392 (1570); xi 343, 347 (1579); 371 (1579-1580).

by English and foreign merchants. Sometimes they arose out of the grant of reprisals, which was still a method used to force a foreign state to give redress.1 But it is clear that the newer method of diplomatic representation, and the action taken in consequence of it, was doing much to render unnecessary this barbarous method of obtaining satisfaction.

In England, as abroad, it was the growth of foreign trade which gave to all questions connected with sovereignty of the seas an international importance. On the one hand, England resisted the claims of the Spaniard to prevent all other nations from trading in the New World, and insisted that they had no right to countries which they had not substantially occupied.2 On the other hand, she rigidly asserted her rights to the sovereignty of the four British seas. The omission of a foreign ship to strike his flag and lower his topsail was regarded as an act which justified firing on the offender-as Philip II. found when he came to marry Queen Mary.3 The Dutch were the supporters of the Mare Liberum. Their refusal at the beginning of the seventeenth century to recognize the English claims, and, in particular, their refusal to obey the royal proclamations which attempted to confine the right of fishing off the British coasts to British subjects, led to much negotiation and to threats of war.1

Similarly it was the importance of the interests of traders which led to the beginnings of a definite law of Neutrality. And, this being the case, it is only natural that that part of the law which is concerned with the relations of the neutral individual to the belligerent state was the first to attain clear definition. We have seen that in 1640 Sir H. Marten gave an opinion to the house of Lords as to the right to capture enemy goods in English ships. The liability of a neutral ship for the carriage of contraband or the analogues of contraband,' the right of the crown to the delinquent ship and goods, the immunity of a neutral ships carrying goods belonging to neutrals other than

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1 Dasent i 107, 108, 112 (1543); viii 4, 5 (1570-1571); above 38.

2 See Walker, op. cit. 161, citing Camden, Elizabeth ii 116.

3 Ibid 163-164.

4 Ibid 167-169; Welwod in his book De Dominio Maris (1615) distinguished between the distinct claims to freedom of navigation and freedom of fishing, Nys, Rev. de Droit International xvii 77.

5 Above 45 n. I.

* Dasent xv 339 (1587-1588); xvii 398-401 (1589); xviii 8, 17, 19, 27 (1589). For some discussions in 1656 with the Swedish ambassador as to what goods could be declared contraband, see Whitelocke, Memorials iv 243-246.

7 Dasent vi 352 (1558)-letters between France and Scotland; the claim to stop

the ship was not insisted on, as it was said to be Danish.

8 Ibid xxi 155 (1591).

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