ac pacis, published in 1625, that his claim to be the founder of international law is due.

The general position as regards the claims made by Venice, Genoa and Denmark has already been noted. These claims were small and unimportant when compared with the extravagant pretensions of Spain and Portugal to the monopoly of trade and navigation in the New World and the East, which involved the exclusion of all other nations from all the waters of the world except those washing the shores of Europe and North Africa. The English were by no means the only nation to suffer by these claims; French and Dutch were likewise excluded, and this interference with the Dutch traders in the East Indies was the prime reason for Grotius writing his Mare Liberum. By a curious irony of fate, not unlike that from which Milton suffered in relation to his plea for the freedom of the press, Grotius soon afterwards was arguing for the exclusion of the English from a share in the trade in the East Indies which the Dutch had been able to wrest from the Portuguese.1 The Mare Liberum was the twelfth chapter of a work called De jure praedae in defence of the Dutch trade, and the only part of it which was published during the writer's lifetime. The manuscript of this work remained unknown till 1864, and was not given to the world till 1868. Grotius had been preceded in his arguments for the freedom of navigation and commerce by two Spanish writers, Francis Alfonso de Castro2 and Ferdinand Vasquicas or Vasquez, who, like so many other Spanish jurists of the period, showed an astonishingly independent attitude towards the legal controversies of the time.

It is doubtful whether any country can show such a remarkable body of jurists as those of Spain in the sixteenth and seventeenth centuries whose views were based on the broadest outlook of humanity and without whose inspiration it is doubtful whether Grotius would have written, or, if he had written, would have achieved the success which his works attained. Both de Castro and Vasquez held that the sea was common to all and that the claims of both the Portuguese and the Spaniards to prohibit other nations from navigation in the East and West Indies were untenable. Grotius not only adopted these arguments, but also assailed the papal grants. He took the position that every nation is free to travel to, and to trade with, any other nation, a position which even to-day is not fully accepted in practice. As regards the sea and navigation he argues that the sea is incapable of occupation by any one State and is common to the use of all. He is speaking here of the outer sea or ocean, not that adjacent to the shores of a State and within sight of the shore. Further, since the

1 For an account of the origin of the Mare Liberum and its connection with the De jure praedae see Knight, W. S. M., The Life and Works of Hugo Grotius (1925), chap. v; also Fulton, chap. ix; Fenn, chap. viii. 3 Controversiae Illustres.

2 De Potestate legis penalis.

4 See Nys, E., Le droit des gens et les anciens jurisconsults espagnols.

THE "BATTLE OF THE BOOKS"

203 sea is free to all, so is fishing in it, and this ought everywhere to be exempt from tolls. Grotius repeated in more concise form these principles in his De jure belli ac pacis, with some modifications especially relating to what afterwards became known as "territorial waters", anticipating the position which Bynkershoek, another Dutchman, one hundred years later assumed in his limitation of the waters adjacent to the shores of a State to so much as was capable of being controlled from the land. The Dutch obtained what they sought from the Portuguese by a treaty signed a month after the Mare Liberum was published. But this work seems to have passed almost unnoticed on the continent for some years. A reply was prepared by Seraphim de Freitas, a Portuguese monk, in 1625, De justo imperio, and at the same time there also appeared works in defence of the claims of Venice,1 though they do not appear to have been replies to Grotius. But in England the Mare Liberum received much more attention, the King was angry, and the English ambassador at the Hague held up the author to opprobrium. The first reply from England came from the pen of William Welwood, a Scotch Professor, who published in 1613 a new edition of his treatise on the sea laws of Scotland which contained a chapter on "The community and property of the sea", and two years later he published a formal work in Latin on the same subject, De Dominio Maris. Welwood asserted the right of the inhabitants of a country to the fishery in the seas adjoining their shores, both for the maintenance of the inhabitants and also to prevent the exhaustion of the fishery. Welwood was the only antagonist to whom Grotius replied, though the reply was not published but was found in manuscript with that of the De jure praedae in 1868.

The classic reply to Grotius was made by John Selden in his Mare Clausum published in 1635. Between the publication of the Mare Liberum and Selden's reply other works dealing with the subject had been published in England, and of these reference must be made to the Hispanicae Advocationis of Albericus Gentilis, published in 1613. This was a reproduction of his arguments as representative of Spain in the English Prize Courts, in which he contended that the English seas extended on the west as far as America, and that territorial jurisdiction extended round the coast to a distance of 100 miles, an argument which was based on the doctrines of the Italian school represented by Bartolus and Baldus, but not accepted by the English courts. Sir John Boroughs, the Keeper of the Records, was also engaged at this time, by command of Charles I, in preparing a defence of the Stuart claims, using as one of his chief arguments the De Superioritate roll to which reference has already been made.3 Boroughs's work on Sovereignty of the British Seas, written in Latin and dated 1633, was not published till 1651, but it was available to Selden. 3 Vide supra, p. 196.

1 See Fenn, chap. ix.

2 Fulton, p. 351.

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;4 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.

2 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. I (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.

3 E.g. Westlake.