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Selden appears to have finished his first draft in 1618, but this was greatly enlarged and revised and finally published in December 1635. He met the claim that the sea is common to the use of all and incapable of appropriation by evidence of numerous cases to the contrary. He agreed that Spain and Portugal could not support their claims because they had no sufficient naval forces to maintain them. He admits that innocent navigation should not be prohibited, but that it cannot always be claimed as a right. When he comes to the claims of Charles I he endeavours to prove by citation from the records that English kings had always preserved the right to forbid navigation and to levy tolls for fishing. Much of this part of the argument appears to be far-fetched and many of the examples given could have been paralleled from the records of other maritime States adjacent to the North Sea. Without entering further into the details of his arguments it may be said that it surpassed the work of Grotius in learning and was not less able in its arguments. "Apart from its extreme doctrines as to the sovereignty of England in the seas, it more correctly represented what are now the admitted principles as to the appropriation of the adjacent seas than did most of the works written on the other side, not excepting even those of Grotius. "1

A reply to Selden was prepared in Holland by Dirck Graswinckel, a kinsman of Grotius, but was not published. In 1637, however, Pontanus, another Dutchman, in the service of the King of Denmark, and therefore fettered to a great degree by the Danish claims to the navigation of the Sound and the lordship of the seas round Iceland, published a refutation of Selden in which he very severely criticised the English claims to sovereignty of the northern seas. The “battle of the books" continued throughout the remainder of the seventeenth century, an accompaniment to the din of war which raged during its greater part over the question of the freedom of the seas.

In the foregoing pages an attempt has been made not only to correlate England and English policy with the outer world, but in so doing to show that the rules governing international relations, rules which were afterwards to form part of the body of international law, were vague, indefinite and only in process of formation. So long as there was a claim for supremacy over the European nations by Emperor and Pope, and the modern State system of Europe had not come into being, there could be no realisation of the society of States which needed for its fuller development and growth a system of laws to govern the mutual relations of the members. When the society of States appeared, then appeared the law-ubi societas, ibi ius. Undoubtedly there were the beginnings of rules in various departments of State intercourse, but it was not until the sixteenth and seventeenth centuries that the idea of a State community began to force its way into prominence. The law of Nature and of nations-the jus naturale 1 Fulton, p. 376.

WRITERS ON THE LAW OF NATIONS

205

and the jus gentium-were not treated as equivalent expressions by the writers of the Renaissance; a distinction came to be drawn between the rules for which the necessity could be seen and those for which the necessity could not be seen.1

Ferdinand Vasquez Menchaea (1512-69), who has already been cited in the "battle of the books", made a great step forward when he conceived of the free nations of the earth grouped together as a society with their rights regulated by the Jus Naturale et Gentium.2 Vasquez was a writer of strong independence, the enemy of absolutism, the advocate of freedom of navigation. While predicating a jus inter principes vel populos liberos he did not conceive of both the existence of an international society and the independence and interdependence of its members so plainly as another of his countrymen, Francis Suarez (1548-1617). Suarez taught that though the human race was divided into peoples and kingdoms, each of which might in itself be a complete community, yet each was a member of the universal unity. "For these communities are never singly so self-sufficing but that they stand in need of some mutual aid society and communion. ...For that reason they are in need of some law by which they may be directed and rightly ordered in that kind of communion and society."

Two important works on the laws of war were published at the end of the sixteenth century, and a third, more important still, appeared in 1625, which dealt not only with war but with peace also. They were attempts to ascertain what principle underlay this important and prominent fact in international relations, to distinguish acts of force in war from those between private persons, and to ascertain how, if at all, the brutal desires of men could be curbed by appeals to justice and right. The first of these is from the pen of Balthazar Ayala (1548-84), Judge Advocate of the Spanish army in the Netherlands, and was published in 1581. It is a treatise entitled De jure et officiis bellicis et disciplina militari;1 the second is the De jure belli libri tres by Albericus Gentilis (1552-1608), to whom reference was made above. Gentilis was an Italian jurist who left Italy, as he had embraced the reformed doctrines, and settled in Oxford where he was made Regius Professor of the Civil Law. His work is of the greatest importance and was much used by Grotius.

It is, however, to the work of Hugo Grotius (1583-1645) that the greatest importance must be attached in the evolution of a system of international law. It is not possible to do more than briefly indicate 1 Westlake, Collected Papers, p. 26.

? Illustrium Controversiarum aliorumque non frequentum, Libri tres (1564); Walker, op. cit. 1, 245. 3 Tractatus de legibus ac Deo legislatore (1612); Walker, 1, 155.

Edited by John Westlake with a translation into English by John Pawley Bate, 1912; see also Knight, W. S. M., "Balthazar Ayala and his work", Journ. of Comp. Legislation, 3rd ser. m (1921), 220; Walker, 1, 247.

Edited in 1877 by Sir T. E. Holland; see also his Studies in International Law, pp. 1-39, and Oppenheim, L., International Law, 1, § 52, for bibliography.

some of the reasons which made the publication of his De jure belli ac pacis in 1625 an epoch in the history of the law governing the mutual relations of States.1 Writing at a time when Europe was in the throes of the Thirty Years' War, when passions were unrestrained, and wild lawlessness and barbarity were everywhere rampant, he appeared as the teacher of the rulers of men that they were members one of another and that natural law is as binding on the members of the community of States as on individual citizens of any one of them. He admits the existence of rules of the jus gentium as the practice of States, and that many of them are in violation of the rule of reason or Nature, and hence he pleaded for numerous ameliorations (temperamenta) in the rules of war. The effect of his teaching was not immediate-many of its precepts still remain unfulfilled-but its appeal to the learned classes was great, and soon statesmen and warriors like Gustavus Adolphus, who is said to have carried a copy with him on his campaigns, became students of his work. It has been well said that "the secret of his success lies in his conservative use of approved ingredients".2 He brought to the task of constructing a system of law suitable to a new era a knowledge of the philosophic principles which had received the approval of the best minds of the preceding generations. His appeal to the law of Nature, to the Roman and canon law, was an appeal to principles known and accepted. In the international controversies of the Middle Ages and the Renaissance men argued in the realms of private law and remained within its domain. Grotius carried them outside this realm into a higher sphere, that of a society composed of States. His influence can be appreciated when the leading principles of the Peace of Westphalia (1648) are compared with those which were current in the sphere of international relations before the works of Grotius and his predecessors appeared.

The extended knowledge of the world in the era of discovery and the growth of commerce raised numerous questions which called for solution. The long wars of religion caused a new international sense to arise among the members of conflicting confessions. The imperial power was vanquished, and in the Peace of Westphalia, Catholic and Protestant Powers met on terms of equality, and a real society of States emerged whose interests were the interests of all. Following this peace came the general establishment of permanent embassies whose duties were concerned with these common interests of the State society, and the rules governing the intercourse of such States were henceforth sought in the principles which Grotius had enunciated in the law of Nature or reason (as some writers prefer to call it3), and the law of nations as evidenced by their customary modes of procedure.

1 See Higgins, A. Pearce, Studies in International Law and Relations.
2 Lawrence, T. J., International Law, § 23.

E.g. Westlake.

CHAPTER VII

THE BEGINNINGS OF AN IMPERIAL POLICY, 1649-1660

ATTEMPTS to deal with British policy are usually open to the criticism that at most periods and in most departments of State activity it is difficult to prove that a policy was ever consciously formulated and acted upon. This is particularly true of some phases of imperial affairs in the mid-seventeenth century. There is a mass of ascertained facts bearing upon oceanic history, and there is also a great volume of essays and pamphlet literature by irresponsible writers, urging various courses upon successive Governments; but there is a remarkable deficiency of State papers by which it might be rigorously proved that English statesmen worked upon a great imperial policy, or did more than make opportunist moves as need arose. We look in vain among the State papers of the Interregnum for any programme from the hand of a man who had power to execute his thoughts, like that which Colbert penned to Mazarin in 1653: "We must re-establish or create all industries, even those of luxury; establish a protective system in the customs; organise the producers and traders in corporations; ease the fiscal bonds which are harmful to the people; restore to France the marine transport of her productions; develop the colonies and attach them commercially to France; suppress all the intermediaries between France and India; develop the navy to protect the mercantile marine".1 Colbert thought out these plans and others in minute detail, and then took office and put them into practice; and Colbertism is a demonstrated policy which can be treated almost with the precision appertaining to a physical science.

The English way was different.) English statesmen were not original or even logical thinkers. They did not construct a system and subordinate all means to its perfecting. Subjectively and consciously, they may have had no permanent policy for the advancement of the State, but only a number of expedients, temporary and shifting: yet, objectively and in practical effect, a policy is there. The drift of English opinion was powerful and unmistakable, and opportunists were more sensitive to it than abstract thinkers would have been. The views of an army of pamphleteers and memorialists, from the fifteenth century onward, are on record. Their cumulative effect is traceable, without any straining of the truth, in the actions of statesmen from Henry VII to the Restoration. And the Puritans of the Interregnum,

1 Weber, H., La Compagnie française des Indes, p. 100.

freed by circumstance from many shackles of the past, brought them more fully to the stage of action than the Stuart kings had been able to do. To that extent the Puritans may be credited with working out a policy for the old colonial Empire, although they often acted upon principles they might themselves have been puzzled to formulate.

The past had a great influence upon these conservative revolutionaries, who in the political sphere conceived themselves as fighting, not to overturn their world, but to rescue the ancient liberties of England endangered by a usurping tyranny. They were as well versed in their country's history as in her laws. Their minds were steeped in the glories of the Elizabethan Age when, as it seemed to them, Protestant England was free and united and her name had rung through the world. Their present task of destruction was hateful to them; they shuddered at the things their duty called them to do. Nine men in every ten of them were horrified at the execution of the King. "I have sought the Lord that He would rather slay me", said Cromwell in 1653 as he expelled the Parliament, "than put me upon the doing of this work.” It was with relief that they turned to the external task ' of building an empire of the sea in fulfilment of the Elizabethan promise. The gospel of that empire was ready framed. Hakluyt and Peckham, Gilbert and Raleigh, Malynes and Mun and many another had laid it down in phrases which they knew by heart. The doctrine was so much the fabric of all their minds that they had little need to write each other minutes upon it. Recent influences, too, bore weight with them, things they had seen in their own time. The shameful story of Amboyna and other harsh proceedings in the East had engendered in many a resolve to settle accounts with the Dutch. This was a cross-current giving rise to confusion of purpose, yet strong enough to leave its permanent trace upon policy. It conflicted with, and momentarily overcame, the mightier impulse to do battle with Antichrist in the shape of the Catholic Powers, to create a Protestant alliance in which England's part should be to wrest tropical America from the hands of Spain and to divert its wealth to the service of the godly people of the world. The Commonwealth, fighting for its life, was patriotically materialist and anti-Dutch. The Protectorate, having achieved a breathing-space, could afford to be idealistic, although it could not keep its idealism untainted by sordid motives. The economic view, therefore, will not alone illuminate the policy of the Puritans. Patriotism and religious fervour must enter into the calculations of those who would seek to appreciate their work for the Empire and to understand wherein and why they succeeded and failed.

When, a few weeks after the death of Charles I, the Rump enacted "that the People of England and of all the dominions and territories thereunto belonging are...a Commonwealth and Free State", it

1 Carlyle, T., Cromwell's Letters and Speeches, ш, 195; Firth, C. H., Cromwell, p. 323.

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