contraband,1 were matters which were frequently before the Council. A letter of the Council, in 1589,2 to the commissioners for dealing with ships taken on the coast of Portugal, shows that some principles as to the law of contraband were beginning to emerge. The goods in these ships, say the Council, “we conceive to be of three kindes; the first being of the nature of munition and vyctuell are by her Majestie's order to be arrested in respect bothe of the unlawfullnes of the acte to relieve her Majestie's enemies with suche warlyke furnitures, as also for the admonition and prohibition made to the inhabitauntes of the said Townes aforehand not to convey into the contreys and dominions of the Spanish Kinge . . anie comodytes of those kindes whereby her enemies might be armed and strengthened to invade her Realmes and Dominiones . . . The second being meere merchaundizes, and of suche nature as may nether feede nor arme her said enemies, her Majestie is pleased to forbeare to staye them, and to leave them to the use of the proprietaries . . The thirde and last kinde is suche as althoughe yt be meere merchandize, yet in case the proprieties thereof shalbe found to appertaine to any Spagniard or Portuegall, her pleasure is that yt be held as lawfull prize, to be taken and employed to the use of her Majestie, and of such as have adventured in the late voyage."

3

But the part of the law of Neutrality which is concerned with the rights and duties of the neutral state to the belligerent state was still very obscure. It is true that the condition of Neutrality was recognized in fact. In 1587 some French ships had been arrested at one of the ports of the Channel Isles. The local authorities claimed that the Isles had always been regarded as neutral ground. The government were inclined to consent to the policy "of continuynge the said Isles in a kind of neutrallitie to serve for a place of common vent for both the said Realmes"; and the ships were ordered to be released if the French consented to follow a similar course.1 It is true also that an effort was sometimes made to give effect to neutral rights and duties. In 1604 James I. forbade all belligerent violence in the

1 Dasent i 230, 259 (1545); xvi 415 (1588); xvii 398-401 (1589); xviii 19 (1589). 2 Ibid xviii 29-30.

3 Free ships did not make free goods; and in 1656 the government expressly declined to admit this principle, Whitelocke Memorials iv 243.

* Dasent xv 128-9 (1587)—the usage was found to be that, "All merchantes strangers had from time to time been receaved within the Isles of Jersey and Garnesy in safetie, free from arrestes both of their lives, shippes and goodes; and touchinge the expediencie, for that the publick benefit that both the Crownes of England and Fraunce did receave in time of hostillitie or unkindness by continuying the said Isles in a kind of Neutrallitie to serve for a place of common vent for both the said Realmes was sufficientlie knowne, it seemed great reason that (such consideracions continuinge still) their priviledges grounded uppon the same should likewise be still mainteined and continued.”

4

British seas;1 in 1572, 1573, and 1577 Elizabeth prohibited the levy of troops for service in countries with which England was at peace; and in 1605 the court of King's Bench and the civilians differed on the question whether property taken by a Dutchman from a Spaniard and brought to England could be claimed by the Spaniard. But practice was not in accord with theory. In 1605 the Dutch and Spanish fleets fought in Dover harbour; and though, "Englishmen cried shame when Charles I. lent men-of-war to his French brother-in-law for the subjection of the Huguenots, they thought it no harm that regiment after regiment of their fellow-countrymen was enlisted by the royal authority, or at least by the royal permission, for the service of the Dutch against the Spaniards, with whom England was nominally at peace; that Elizabeth received Havre as the price of assistance granted to the revolted French Protestants; or that 6000 Scots under the marquis of Hamilton fought for German Protestantism against the Emperor.' Probably it is the unsatisfactory state of international practice that accounts for the fact that we find a good deal more information about Neutrality in the actual diplomatic intercourse of the period than in the books.

8

The growth of the idea of the sovereignty of the territorial state over all persons within its borders gradually settled the question of the liability of a foreigner for breaches of the local criminal law. He was liable because he owed a temporary allegiance to the government of the country in which he was resident. On the other hand, it was generally held in England and other European countries that he could not be made liable to the local criminal law for offences committed abroad. was there, apart from special treaty, any obligation to extradite him. Certain earlier treaties provided that the contracting parties should not give shelter to the enemies of the other; but as Nys has said, they contemplated expulsion as a police measure, and not the beginning of a criminal proceeding. It is very rarely

1 Walker, op. cit. 201; above 43.

2 Dasent viii 77, 115; ix 382-383; above 44.

3

10

9

Nor

Coke, Fourth Instit. 154; Nys, Les Manuscrits de Sir Julius Cæsar, Rev. de Droit International xix, 463-465.

4 Walker, op. cit. 201-202.

5 Ibid 196.

"It was recognized in Elizabeth's reign, above 45 n. 6; and in Calvin's Case (1609) 7 Co. Rep. 6b; it was decided in 1662, Kelyng, at p. 38. But in 1545 a Spanish soldier who had committed murder in England was handed over to his captain for punishment, Dasent i 170.

7 See the preamble to 35 Henry VIII. c. 2, reciting that it is doubtful whether treason committed abroad can be punished in England.

8 Nys, op. cit. 274.

9 Ibid 274-275.

10 Il s'agit de l'exercise d'un droit de police, non d'un commencement d'action judiciaire," ibid 274.

VOL. V.--4

that these treaties had reference to any other than political crimes.1 But there are instances of applications for extradition made by foreign sovereigns which were acceded to." The idea was growing up that such criminals should not go unpunished; and Grotius maintained that a state should either give up the criminal or punish him. This view was acted on by the States-General of the Netherlands when they issued an order for the arrest of the regicides who had taken refuge on their territory. According to English law, a natural born subject could not get rid of the tie of allegiance. Therefore if such a subject had broken the law of England and was brought within the jurisdiction of the English courts, he could be tried and punished. This was settled in the case of Dr. Story who was kidnapped in the Netherlands, brought to England, and tried and executed for treason. His case is another illustration of the manner in which religious fanaticism produced irregularities in international practice. It is clear that his capture was a gross violation of the rights of the King of Spain.

5

6

These instances of international discussions and controversies show that, in England as elsewhere, a new branch of law had arisen. It was obviously necessary that it should receive some systematic treatment; and many jurists in different countries came forward to supply this need. In the books of the English writers on this subject we can find some of the earliest statements of modern international law. With some of these books I must now deal.

The Earliest English Writers on International Law

The characteristic feature of modern international law is that it is the law which regulates the relations between nations. It is jus inter gentes. It is exactly this characteristic feature which emerged clearly in the sixteenth century. The earliest writer

1 Nys can only cite one, concluded between Charles V. and the count of Savoy, ibid 275.

2 Nicolas vii 147 (1541); Dasent iii 407 (1551); Acts of the Privy Council (16131614), 421-examinations ordered in connection with a fugitive criminal from France; see S.P. Dom. 1640-1641, 378, cccclxxv 105 for some notes as to the precedents on this matter.

De Jure Belli et Pacis, Bk. ii 21. 4, "Cum vero non soleant civitates permittere ut civitas altera armata inter fines suos pœnæ expetendæ nomine veniat, neque id expediat, sequitur civitas apud quam degit qui culpæ est compertus, alterum facere debeat, aut ut ipsa interpellata pro merito puniat nocentem, aut ut eum permittat arbitrio interpellantis. Hoc enim illud est dedere, quod in historiis sæpissime occurrit."

4 Nys, op. cit. 276-277.

5 Calvin's Case (1607), 7 Co. Rep. 25a; contrary to the opinion of Zouche, Juris et Judicii Fecialis, Pt. II. § 2. 12; he also held the generally received view that a man could not at the same time be the citizen of two states, ibid Pt. II. § 2. 13.

6 Walker, op. cit. 159 n. I.

2

to emphasize it was Francis de Vitoria-"Quod naturalis ratio. inter omnes gentes constituit vocatur jus gentium." But the idea was too obvious to be missed; and it appears in other writers. Hooker brought it out with great clearness; and, though it was not emphasized, it was recognized by Grotius,3 and was adopted and elaborated by Zouche.* From him it has passed to all successive writers who treat of or touch upon the subject.5

The recognition in the sixteenth century of this distinguishing characteristic of international law is typical of its growth. Among many nations the birth of this new body of law had gained recognition; and many lawyers before Grotius had begun to treat systematically of various parts of it. The English nation was not behind hand in this work. We have seen that the English civilians were always called upon to advise the government upon international questions; and that some of them had begun to write treatises upon several topics connected with it. Two of them-Alberico Gentili and Richard Zouche-have written books which have helped to make the modern law; and therefore of them and of their works I must say something.

7

We should naturally expect that the principles of this new body of law would take their modern shape in the writings of men who belonged to the reformed religion. It was easier for them to see eye to eye with the new political and intellectual conditions which had given them birth. And this is the case. For, although the writings of famous theologians and lawyers of the Spanish nation contributed to the formation of the modern law of war, it is in the writings of men who came from England and Holland that modern international law as a whole first took shape. A cardinal of the Roman Church complained that Grotius's book gave too little space to the prerogatives of the pope, and his book was placed upon the Index.

Nys, op. cit. 8; Les Fondateurs du Droit International, by various writers, 7, 329.

2" Besides that law which simply concerneth men as men, and that which belongeth unto them as they are men linked with others in some form of politic society, there is a third kind of law which toucheth all such several bodies politic, so far forth as one of them hath public commerce with another," Eccl. Pol. i io § 12, cited Pollock, Camb. Mod. Hist. xii 709; and cf. vol. iv 214.

3 Above 27 n. I.

4 Juris et Judicii Fecialis sive Juris inter Gentes et Quæstionum de eodem explicatio, Pt. I. § 1, "Quod inter principes vel populos diversarum gentium communiter intercedit, cum ex hoc jure, uti refert etiam juris consultus (Gaius), gentes discretæ sunt, regna condita, commercia instituta, et denique bella introducta. Quod est posterioris generis, jus inter gentes, placet appellare, quod apud Romanos, speciali nomine Jus Feciale." It was Bentham who coined the modern term "International Law." 5 See e.g. the definition of Hobbes, Leviathan (1st ed.) 185. 7 Above 9-11.

6 Above 44-45.

8 Les Fondateurs du Droit International 144.

Alberico Gentili wrote before, and Richard Zouche wrote after Grotius. A comparison of their works will illustrate both the debt of international law to the school of English civilians, and the position of the man who by general consent has been rightly regarded as the founder of the modern law.

2

Alberico Gentili 1 was educated at the University of Perugia. It was a famous legal university, and could boast of having had Bartolus and Baldus among its pupils. It was natural therefore that Gentili should be an upholder of the Bartolists as against the school of the Renaissance jurists. He took the degree of Doctor in 1572; and till 1579 followed the profession of the law. In 1579 he and his father, having become Protestants, left Italy and found a refuge at Camiola in Austria. But Gentili did not stay there long. In 1580 he came to England. He was brought to the notice of Leicester, the chancellor of Oxford University, and, through his influence, was incorporated doctor of civil law in that university. He taught for several colleges, the earliest of which was St. John's,3 and produced many books. That he had gained considerable reputation is clear from the fact that in 1584 he and John Hotman were consulted by the government as to the proper course to pursue in the case of Mendoza, the Spanish ambassador, who had been implicated in the plots against Elizabeth. One of the results of the attention which he gave to this subject was the production of his book De Legationibus.* In 1586 he left England for Wittenberg; but in 1587 he was recalled to Oxford, and made Regius Professor of civil law. It was while he held this office that he published his most famous book-the De Jure Belli. In 1605 he was employed as advocate to the Spanish embassy. At that time England was a neutral in the war which was still going on between Spain and the Netherlands. The results of his experience in that office were the Advocationis Hispanicæ duo libri which were published after his death. They are "a very important and interesting collection of notes of cases involving the rights of belligerents and neutrals." Gentili died in London, June 19, 1608.

His work was appreciated by his contemporaries. Fulbecke described him as a man "who by his great industrie hathe quickened the deade bodie of the Civil law written by the aun

1 This account of Gentili is taken from Holland, Studies in International Law 139; cf. Les Fondateurs du Droit International 39-45; Phillipson, Journal Soc. Comp. Leg. xii 52-80.

2 Vol. iv 239.

3 Holland, op. cit. 10 n. 1.

* For a summary of this work see Les Fondateurs du Droit International 69-74; Nys, op. cit. 350-352.

5 Edited by Professor Holland in 1877, and published by the Clarendon Press; my references are to the pages of this edition.

6 Holland, op. cit. 13.