excellence of the middle ages was the Consolat del Mar of Barcelona. In the thirteenth century, the Catalogue had shown considerable commercial development in almost all the ports of the Mediterranean. At this time, Montpellier in the French Mediterranean was under the scepter of the House of Aragon. It was a great commercial city but exceeded in importance by Barcelona. During the long reign of Jayme, the first king of Aragon, Barcelona had received important privileges; she had obtained on behalf of her citizens the management of the municipal interests. Maritime differences were necessarily destined to invite the attention of competent men, or probi homines, as was said, who gave judgment. These judgments were preserved by means of oral records. Finally they were committed to writing, and when printing had been introduced in Spain, one of the first works struck off was the Consolat del Mar.

Amongst the ancient collections of decisions and regulations, the tabula amalfitana, which originated in the maritime court of Amalfi, plays a prominent part, as does the ordinamenta et consuetudo maris, a compilation of the decisions of the consuls and of the body corporate of the seamen of Tranci, which, it is said, dates back to the year 1063. There is also the capitulare nauticum, a revision made at Venice of a still older compilation; and the constitutum usus, and the breve curia maris of Pisa. As a matter of fact their origin was always in custom. If public authority intervened it was simply for the purpose of showing that judicial decisions or customs were such or such. Two compilations were finally recognized as authoritative: the Consolat del Mar of Barcelona, which contained the jurisprudence of the probi homines sitting in the maritime court of Barcelona, and the so-called Ley Oleyroun, or the rules of the island of Oleron. The Consolat was recognized over the greater part of the Mediterranean. The Rules of Oleran were observed to a certain extent on the Mediterranean but their effect was above all felt on the Atlantic, and over the northern seas, where three distinct juridical bodies of law came into being: the law of Oleron, as such, the Flemish maritime law, and the Law of Wisby. The Consolat del Mar had above all for its purpose the settlement of private disputes arising in con

nection with commerce and navigation. It deals chiefly with rules applicable in time of war, to vessels and cargoes of enemy subjects, and to vessels and cargoes of "friendly subjects," as it says neutral subjects, as we would say to-day. The provisions applicable to these special conditions were for many years accepted as rules of naval warfare. Some maritime Powers denied their force, while others steadily recognized them; and thus simple rules originating in the sentences of the probi homines of a southern city constituted for centuries the law of nations who were struggling for mastery of the

sea.

It would be easy to furnish an abundance of proof and an abundance of cases, but let us limit ourselves to a statement of the propositions which no student of the history of law will deny: custom is invariably at the bottom of maritime institutions and rules. This is true both as regards private law and the maritime law of nations, both in time of peace and in time of war.

[TO BE CONTINUED.]

ERNEST NYS.

HISTORY OF INTERNATIONAL LAW SINCE THE PEACE OF WESTPHALIA

The main factors in the growth of the science of international law The treaties of Münster and Osnabrück gave to Europe a sort of international constitution which remained the basis of its public law down to the French Revolution. But it would be a serious error to assume that the international community of states as revealed to the world by the Peace of Westphalia implied the recognition of the science of international law as understood and practiced by the society of nations at the present time. The science of international law as it exists today is a result of slow historical growth and is the product of two main factors, viz., certain theories or principles on the one hand, and international practice or custom on the other. The relative value and influence of the contributions of each of these factors is so difficult to determine that they have never been thoroughly sifted or separated a task left for the future historians of international law.

The importance of jurists and publicists

It is clear, however, that during its formative period, international law was mainly developed by great thinkers and jurists who were forced to rely upon the weight of general ideas or theoretical considerations rather than upon any satisfactory body of accumulated custom if they desired to ameliorate conditions or improve international relations. The fundamental principles of the science once firmly established and recognized in international practice, there was less need for theoretical discussion. It now became the main funetion of the jurist and publicist to apply and interpret the law in conformity with the best and most authoritative precedents or usages.

Grotius as the founder of the science of international law The founder of the science of international law was Hugo Grotius, whose main work, entitled De jure belli ac pacis, published in 1625

during the midst of the horrors of the Thirty Years' War, marks an epoch in the history of civilization as well as of international law. Although it was based largely upon the labors of his predecessors1 to whom somewhat scant recognition is given by him, Grotius deserves his title of "Father of International Law" from the fact that his was the only work which obtained wide circulation and general recognition 2 in the seventeenth century. This was because it answered the needs of the time, and was the fullest, most attractive, systematic and scholarly exposition of the subject hitherto attempted. Grotius brought to his work great learning, enthusiasm, experience, and a passion for justice which won for him the hearts as well as the heads of his contemporaries and of posterity.

This work based on the jus naturale

a

Like his predecessors and many of his successors, Grotius started from the idea of a universal and immutable law of nature (jus naturale) based upon right reason and human sociability philosophical conception derived from the Stoic philosophers of antiquity which has dominated ethics and jurisprudence until recent times. He claimed for the law of nations the authority and sanction

1 For references and a brief sketch of the "Forerunners of Grotius," see note at the end of this article.

2 This is shown by the facts that at least forty-five Latin editions of his book were issued prior to 1748 and that it had been translated into the leading modern languages before the close of the seventeenth century. See Rivier in 1 Holtzendorff, Handbuch, § 88, for list of editions. It made such a great impression upon Gustavus Adolphus that he is said to have slept with the work under his pillow during his campaigns in Germany.

Grotius was born at Delft, Holland, in 1583. As a child he was a prodigy, writing Latin verses at nine years of age. He entered the University of Leyden when twelve years old and took his degree of Doctor of Laws at Orleans, France, at the age of fifteen. As a result of religious controversy, he was sentenced to imprisonment for life in 1619; but in 1621 he succeeded in escaping from prison, and lived for ten years in Paris where he composed and published his great work in 1623-25. In 1634 he was appointed Swedish minister to France. - a position which he held until the year of his death in 1645. Grotius was poet, philologist, philosopher, historian and mathematician, as well as diplomatist, lawyer and jurist.

of this law of nature a doctrine denied by no one in his day," thus giving it an apparently solid, binding and rational character which few cared to dispute. Moreover, he fortified his position by an attractive style and a marvellous display of erudition or citation of authorities from men of all ages and countries (including the Bible, poets, orators, philosophers and historians, as well as jurists) which went far to enhance his authority in the eyes of his contemporaries. He also borrowed largely from the Roman jus gentium, the leading principles of which had been practically identified with those of the jus naturale. This "written reason," as the Roman Civil Law has been called, not only commanded the highest respect from its origin, but was sanctioned by general agreement, at least on the part of the educated classes; and Grotius thus relied upon positive law (jus voluntarium) as determined by general consent as well as upon the law of nature to give effect to the principles and usages of the law of nations.

The fundamental principles underlying the Grotian system

Many of the principles laid down and usages sanctioned by Grotius are obsolete; others are found only in germ or are incompletely developed; many present-day laws and customs (as e. g., those making up the modern law of neutrality) were practically overlooked or received scant recognition from him; but the essential principles underlying the Grotian system remain the fundamental principles of international law. Such are the doctrines of the legal equality and territorial sovereignty or independence of states.*

These fundamental principles, though not clearly stated by Grotius, underlay his system and were fully developed by his suc

3 For references on the jus naturale, see note at the end of this article.

4 The best recent estimates of Grotius' work are by Basdevant in Les fondateurs de droit int., ed. by Pillet; Andrew White in Seven Statesmen (1910), 54-110; and Walker, Science, etc., ch. 4.

For a very full analysis of the jure belli ac pacis, see Walker, History, $$ 143-148. The best modern translation is by Pradier-Fodéré (1867). It is preceded by a valuable biographical and historical essay.