He was prepared to extend the boundaries of international law beyond the circle of Christian states. Christian states indeed were more closely bound together by ties of kinship; but none the less the infidels had rights, and no human law forbade the formation of an alliance with them.1 The character of his mind.-Grotius had both a sympathetic and a constructive mind. He was capable of appreciating the strong points in the views of his predecessors; and his appreciation kept him within the circle of ideas which could be understood by his contemporaries. Most of his theories could be illustrated from older books; but he was able so to combine what he had borrowed that he gave to his borrowings a wholly new meaning.2 Thus he based his theory of the law which governed the relations of states upon so skilful a combination of natural law, divine law, and established custom, that it won a universal acceptance. As Sir F. Pollock has said, "Scholars and philosophers would for the most part accept the law of nature; divines, and especially Protestants (many of whom regarded natural law with suspicion), expected Scriptural warrant; public men would insist on being assured that the author who called for their attention was walking on the ground of practical affairs, and not merely setting up his own opinions as an universal standard." It was only a learned man with this kind of sympathetic and constructive mind who could succeed in establishing international law on a basis which "learned men would deem sound and men of the world would not think fantastic." 4 A book written on these lines is the kind of book which makes history. It was sufficiently conservative to shock no established prejudices; and, at the same time, it was sufficiently modern to express a set of ideas which had long been present to against Christians, relying on Old Testament Biblical history-" Ita maneo cum doctissimo nostri seculi theologo: qui negat cum infidelibus arma recte conjungi umquam" (p. 385); cf. Journal Soc. Comp. Leg. xii 68, 69; Nys, Le droit Romain, le droit du Gens, etc. 96. 1 Grotius, De Jure Belli et Pacis, Bk. ii 15. 8, "De foederibus frequens est questio, licite-ne ineantur cum his qui a vera religione alieni sunt; quæ res in jure naturæ dubitationem non habet. Nam id jus ita omnibus hominibus commune est, ut religionis discrimen non admittat. Sed de jure divino quæritur ex quo hanc quæstionem tractant, non theologi tantum, sed et juris consultorum non-nulli." 2 Les Fondateurs du Droit International 264-265, "Son mérite propre est d'avoir fait le synthèse des éléments fournis par ses précurseurs. On a pu dire que le De Jure est comme la dernière forme des travaux antérieurs. Ceux ci peuvent disparaître le traité de Grotius sauvé, ou n'aura presque rien perdu. Que si l'on prétend qu'il restérait bien peu à Grotius si ses prédécesseurs s'avisaient de lui réclamer ce qu'il leur doit, cela nous touche peu. . . . Grotius s'est vraiement approprié ce qu'il a tiré de ses prédécesseurs. Son oeuvre a donné a des solutions déjà présentées antérieurement une forme nouvelle en les renfermant dans un système: en les condensant, notre auteur a pu être considéré comme l'expresssion unique de la doctrine de son temps.' 4 Ibid 710. Camb. Mod. Hist. xii 709, 710. the minds of statesmen, but as yet lacked authoritative statement in scientific form. Grotius's work is conservative. It is primarily concerned with the laws of war, upon which there was a comparatively abundant literature.1 What he has to say about the relations of states in time of peace is inserted in the interstices of his treatment of the laws of war. Therefore it is found where the 5 6 men of his time would expect to find it. He deals with subjects already well nigh obsolete, such as private war; 2 and he maintains the old view, which was quite inapplicable to the international relations of his day, that ordinary resident ambassadors could be refused admission because they were unnecessary. Like his predecessors, he turns aside to discuss questions of constitutional law and political science which are remote from his proper subject. His natural law, like the natural law of the mediaval writers, is borrowed from and primarily applicable to the relations, not of states, but of individuals. But in spite of all this his work is at once modern and prophetic. It proves, in the only form which would carry conviction to the age in which it was written, the fact that there is a law which governs the relations of states. It states in approved philosophical form what is the basis of that law, and in practical form what are its contents. The very comparison between the philosophical basis and the practical rule helped to shame rulers into recognizing the need for improvement. Grotius's manner of stating the strict law of war, and the "temperaments" which he advocated, is typical of the mind of the man and of the method of his work." An accurate exposition of the established rules, coupled with practical advice for their improvement, was likely to effect far more than any number of imaginative sketches of an ideal law, and any amount of heated denunciation of the existing law. 8 We can compare Grotius with men like Accursius or Bartolus in the history of medieval Roman law, and with men like Coke in the history of the common law. They all summed up in 1 Les Fondateurs du Droit International 225-226. 2 De Jure Belli et Pacis, Bk. i 1. 2. 3 Ibid Bk. ii 18. 3, "Optimo autem jure rejici possunt quæ nunc in usu legationes assiduæ, quibus quam non sit opus docet mos antiquus cui illæ ignoratæ "; similarly Coke, Fourth Instit. 155, tells us that Henry VII. "would not in all his time suffer Lieger Ambassadors of any forain king or prince within his realm, nor he any with them, but upon occasion used ambassadors"; above 39, 40. 4 Les Fondateurs du Droit International 186-187. 5 Ibid 187-189. * Ibid 246-247, "Les règles qui s'imposent aux nations en l'absence de leur consentement sont toutes celles et seulement celles qui s'imposent à l'homme dans ses rapports avec ses semblables. . . . La science moderne l'a bien compris, puisque chaque auteur fonde sa doctrine juridique internationale sur certains droits fondamentaux des Etats: or, nous ne trouvons pas chez Grotius de théorie des droits fondamentaux des Etats." 7 De Jure Belli et Pacis, Bk. iii 1-16. 8 Vol. iv 221, 222. Below 489-493. authoritative form the results of development made by a series of predecessors, and produced works which were the startingpoint of new developments. Grotius summed up in authoritative form the works of many predecessors, and his work has been and is the starting-point of modern international law. But in one respect his work is greater than the work of any of those to whom I have compared him. His success in putting the law governing the relations of states upon a philosophical basis which satisfied his contemporaries, emancipated that law from its bondage to theology, and distinguished it from ethics. In other words, he did more than found a new method of treating old law; he founded a wholly new branch of law. Within thirty-six years after its publication (1661) a chair was created at the University of Heidelberg to expound the doctrines of the modern international law which he had created,1 Before this date the work of Zouche-the second of our famous English international lawyers-had shown clearly that international law had become a separate body of law, and an integral part of the law of civilized states. Of Zouche's life and works, and of the character of his mind, I have already spoken.2 The work which has given him enduring fame is that in which we are now interested. It is entitled Juris et Judicii Fecialis sive Juris inter Gentes, et Quæstionum de Eodem Explicatio, and it was published at Oxford in 1650. His later tract entitled Solutio Quæstionis veteris et nova, sive de Legati delinquentis judice competente dissertatio,3 which was called forth by the case of Don Pantaleone Sa, also deals with one of the problems connected with the same branch of law. Zouche's work on "Jus inter Gentes" is divided, like very many of his other books, into two parts. The first and shorter part deals with Jus inter gentes, and states the leading principles of the law applicable, first to Peace and then to War, under his usual heads of Status, Dominium, Debitum and Delictum.4 The second and longer part deals with Judicium inter gentes, and discusses particular cases under the same divisions. The division of the law under the heads of Status, Dominium, Debitum, and Delictum is not the most happy for a book on international law." But the plan of distributing the subject matter of the law into the two parts of Jus and Judicium, though not one to be commended at the present day, was more defensible in Zouche's day, when international law was young. In the first place, it clearly set before the reader the kind of cases in 1 Les Fondateurs du Droit International 267. 3 Published at Oxford in 1657. 5 Holland's ed. of Zouche i, xii. 2 Above 17-18. • Above 18. which there was a doubt, and gave some indication of how that doubt should be resolved. In the second place, it kept legal speculation in touch with actual modern facts. The same tendency to base the law on the positive practice of modern nations, which appears in Gentili's work, appears even more markedly in that of Zouche; and, as we might expect from his training in the common law, most markedly of all in the work of Selden. And Zouche could pursue this method more safely than Gentili, because Grotius had given to international law a settled position upon a philosophical basis satisfactory to the age in which he wrote. Thus both Zouche and Gentili foreshadow the school of English international lawyers which bases international law on the positive usages of nations, rather than upon a series of deductions from the a priori principles of a supposed/ law of nature. No doubt, as I have said, some such a priori basis was very necessary in the infancy of international law. It was still necessary when Zouche wrote. But it tends to become less necessary as the contents of the positive usages become more extensive and detailed. The methods and outlook of these two earliest English writers foreshadow the methods and outlook of most international lawyers in modern times. Zouche was a disciple both of Gentili and of Grotius. His books contained a critical summary of their results, and popularized their work in England and Scotland. He helped to make the new international law a part of English law; and his works have more than a merely insular fame. This was due to three very considerable merits which they possess. In the first place, in his book international law appeared for the first time in a compact and orderly form." In the second place, he so clearly defined it that no one for the future could be under any misapprehension as to its scope. In the third place, he originated the modern division of the subject into Peace and War. In his book the tradition, inherited from the mediæval books, of grouping the whole subject round the laws of War was finally abandoned. He was followed by a succession of civilians who, by the opinions which they gave to the government, helped to develop the principles which he had stated and explained. But it was not till the last century that an English writer produced a treatise "Chez Gentilis et chez Selden, chez Zouch surtout c'est . . . l'élément praticien qu'on va voir prédominer. L'école internationale anglaise fut en effet éminemment pratique," Les Fondateurs du Droit International 327-328. 2 Above 10-11. 3 Les Fondateurs du Droit International 329. 4 See Journal Soc. Comp. Leg. ix 353. 5 Ibid 322. 6 Above 51 n. 4. 7 Les Fondateurs du Droit International 276. 8 See Nys, Le droit Romain, le droit des Gens, etc. chap. vii. on international law so comprehensive and so influential as that of Zouche. We must now turn to the topic of commercial and maritime law. It is connected in some of its aspects with international law; and at the beginning of this period it was influenced by the civil law, and, to a large extent, was administered by the civil lawyers. But it was far more closely connected with the common law than international law then was or ever has been; and at the end of this period, there were clear signs that the common lawyers were succeeding in their attempts to oust the civilians from their control over it. III COMMERCIAL AND MARITIME LAW The broad outlines of our modern system of commercial and maritime law begin to emerge at this period. Though the origins of some of its rules must be sought in the collections of customs which made up the commercial and maritime law of the Germanic nations in the Middle Ages, the origins of most of its leading principles must be sought in the rules which, from a basis of Roman law, were being evolved in the great trading centres of southern Europe to meet the new needs of an expanding trade. In this section I shall endeavour to explain the way in which these principles either were received into or inspired additions to or alterations of the rules of English law. In tracing the history of the courts which, at different periods, have administered the commercial and maritime law of this country,' I have necessarily touched upon some of the leading features of these two branches of the Law Merchant. Their most striking and most permanent feature was, as we have seen,2 their international or, as I should prefer to call it, their cosmopolitan character. In the Middle Ages this feature is not peculiar to the Law Merchant. The universality of the civil and canon law, the universality of the political religious and ethical theories which their exponents assumed, and the broad similarities in the actual conditions of life which prevailed throughout Western Europe, give to many branches of medieval law this cosmopolitan character.3 If we look at the legal rules which 1 Vol. i 526-573. 2 Ibid 526-530; below 61-62. In the early Middle Ages the idea of a law personal to certain classes of people which followed them wherever they went (cf. vol. ii 3 n. 2) had no doubt some influence. Thus in the Lex Visigothorum 11. 3. 2 (cited Goldschmidt, Handbuch des Handelsrechts 105 n. 32) we read, "Ut transmarini negotiatores suis et telonariis |