cessors, more especially by Wolff, Vattel, and G. F. de Martens. They were the inevitable outcome of the acceptance of the dogma of the supreme power or sovereignty of states and princes as defined by Bodin, Grotius, Hobbes, and other political philosophers during the sixteenth and seventeenth centuries.5

It only remained to apply this dogma to the international relations of the community of states recognized by the Peace of Westphalia. It was soon seen that if states and princes are sovereign and independent, they must also be regarded as equal before the law; and that it was necessary to formulate a doctrine of the fundamental rights and duties of states.

The successors of Grotius

The successors of Grotius, who wrote during the seventeenth and eighteenth centuries, may be divided into three schools the "philosophical" or pure law of nature school, the "positivists" or historical school, and the "eclectics " " or Grotians."

The pure law of nature school

The pure law of nature school, headed by Pufendorf (1632-94), denied the existence of any positive international law based on custom and treaties, and maintained that the law of nations is wholly a part of the law of nature. Pufendorf occupied the first chair which was

5 Though differing widely from the latter, both in point of view and details, Grotius (lib. I, ch. 3, § 7) practically follows Bodin, who defines sovereignty as "supreme power over citizens and subjects, unrestrained by the laws." Dunning, Political Theories from Luther to Montesquieu, pp. 96 and 181. Bodin's great work De Republica was first published in 1576. Grotius has been severely criticised for his defense of the patrimonial state and his repudiation of the doctrine of popular sovereignty; but these views doubtless served to recommend his opinions to the absolute monarchs of his day.

• De jure naturæ et gentium, II, ch. 3, § 22. On this point Pufendorf followed Hobbes (De Cive, XIV, 4), who divided natural law into a "Natural Law of Men and a Natural Law of States," and maintained that the two were composed of identical precepts. In other words, states live in a state of nature in respect to each other. But Hobbes and Pufendorf differed widely in their views as to the sociable nature of man. Pufendorf, however, adopted Hobbes' imperative view of the nature of law.

founded for the study of the law of nature and nations at a university (at Heidelberg, Germany, in 1661), but his magnum opus on De jure naturæ et gentium was not published before 1672 when he held the position of professor of jurisprudence at the University of Lund, in Sweden. His great service was his insistence upon the supreme importance of natural law at a time when customary law based on good usages was insufficiently developed."

Pufendorf's most famous disciple was Thomasius 8 (1655-1728), a German philosopher who published his Fundamenta juris naturæ et gentium in 1705. Thomasius distinguished between perfect and imperfect duties a distinction afterwards elaborated by Wolff." Other important "naturalists" of the seventeenth and eighteenth centuries were: Barbeyrac (1674–1744), the famous French translator and commentator of the works of Grotius, Pufendorf and others; the Genevan Burlamaqui (1694-1748), whose Principes du droit naturel et politique was published in 1747; Thomas Rutherford who published his Institutes of Natural Law in 1754; and the French diplomatist De Rayneval (1736-1812), author of the Institutions de droit de la nature et de gens.10

The positive or historical school

The positive or historical school of international jurists, while not denying the existence and validity of the law of nature, emphasized the importance of custom and treaties as sources of international law. This school may be said to have originated in England where it has also attained its fullest development. One of Grotius' predecessors,

7 The only parts of his work which deal with international law proper are the last five chapters of the eighth book.

8 On Thomasius, see especially Andrew White in Seven Great Statesmen (1910), 113-61.

9 Westlake, Chapters, p. 72.

10 A belated pure 66 naturalist" "has even appeared during the latter half of

the nineteenth century - the Scotch professor Lorimer. He still defines the law of nations as the "law of nature realized in the relations of separate nations" or "political communities." See his Institutes of the Law of Nations (1883), I, pp. 1 and 19.

the Italian Gentilis, who was appointed professor of civil law at Oxford in 1588, and whose chief work De jure belli was published in 1598, may in a sense be said to have been the founder of this school. At least he enriched his work with examples drawn from contemporary opinion and events a practice which Grotius condemned and he preferred historical investigation to abstract reasoning and systematic exposition.

Other representatives of this school in England during the seventeenth century were: the learned Selden 11 who, in a work entitled. Mare Clausum (published in 1635), attacked Grotius' views on the freedom of the sea as expressed in the latter's Mare Liberum (published in 1609); Zouch (1590-1660), professor of civil law at Oxford and judge of the Admiralty Court, who published the first manuel of international law in 1650; 12 and Sir Leoline Jenkins, Zouch's successor as admiralty judge, whose opinions on questions of prize law are of great importance in the history of international maritime law.13

The three leading positivists of the eighteenth century were the famous Dutch jurist Bynkershoek and the German professors John Jacob Moser and G. F. von Martens.

Bynkershoek never wrote a treatise on international law, but he still ranks as one of its leading authorities.14 Although he recognizes reason as an important source of the law of nations, he relies mainly

11 In 1640 Selden also recognized the importance of a positive law of nations in a work on Law of Nature and Nations among the Hebrews.

12 The influence of Zouch in England was very great. He was also the first publicist to use the term jus inter gentes in the title of his work; but he was not the inventor of this phrase, as generally stated. Victoria (see note at the end of this article) had employed it in the first half of the sixteenth century, and Grotius had made use of the phrase jus inter civitates, although the latter generally employed the ambiguous term jus gentium.

13 It should not be forgotten that Germany also produced several representatives of the positive or historical school during the seventeenth century. Of these the most important was Rachel, who published two dissertations on De jure naturæ et gentium in 1676.

14 The fame of Bynkershoek rests upon three books: De dominio maris (1702): De faro legatorum (1721); Questiones juris publici (1737). Wheaton (History, p. 193) says that Bynkershoek was the first writer who has entered into a

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upon custom, as expressed in treaties and international practice (including unilateral acts) for actual guidance.

John Jacob Moser (1701-1785) was the author of innumerable works bearing mainly on international law,15 which are perfect storehouses of historical facts and precedents. Moser was a thoroughgoing positivist, and his attitude toward the law of nature is one either of indifference or of contempt.

G. F. von Martens (1756-1821) also published numerous works dealing with positive international law, the most important of which was entitled Précis du droit des gens moderne de l'Europe, published in 1788. This work, which appeared in successive editions and has been translated into many languages,16 has exercised a great influence upon international practice and the subsequent development of international law. Von Martens does not wholly repudiate the law of nature, based on reason and utility, but he admits it only in default of positive rules founded on usage and treaties. As the first systematic manuel on positive international law more or less adapted to modern needs, it became a model and still enjoys considerable reputation. G. F. von Martens is especially clear in his exposition of the fundamental rights and duties of states.17

critical and systematic exposition of the Law of Nations on the subject of mari time commerce between neutral and belligerent nations."

15 Nys (1 Droit Int., p. 257) states that in 1765 Moser had already composed 200 works and studies. His principal work, entitled Versuch des Neusten Europäischen Völkerrechts in Friedens und Kreigszeiten in ten volumes, was completed in 1780. It is said by Wheaton (History, p. 323) to contain a rich mine of materials. For a list of his principal works on international law, see Wheaton, pp. 324-25; and Rivier in 1 Holtzendorff's Handbuch, § 102.

16 An English translation by Cobbett was published at Philadelphia in 1795. The best and most recent edition, with notes by Pinheiro-Ferreira and Vergé, appeared at Faris in 1864. Von Martens also began the celebrated collection of treaties which bears his name and which has been continued up to our own time. G. F. von Martens must not be confused with his nephew Charles de Martens, the author of the Causes célèbres de droit des gens (1827) and the Guide diplomatique (1832) or with the famous Russian jurist and publicist F. de Martens of our own day.

17 See his Frécis, liv. IV.

A third school of international jurists the "eclectics" or "Grotians" occupy a middle ground between the "naturalists" and "positivists." The members of this school followed in the footsteps of Grotius in preserving the distinction between the law of nature and the positive or voluntary law of nations, based on custom or consent; but, unlike their master, they have treated both as about equally important.

The greatest representatives of this school in the eighteenth century were the German philosopher Wolff (1679-1754) and his Swiss disciple Vattel (1714-67).

Wolff's greatest work in this field was a treatise on the jus naturæ (1740-48) in eight volumes. To this was added a volume on the jus gentium in 1749 and an abridgment of the whole entitled Institutions juris naturæ et gentium in 1750. Wolff's highly abstract and mathematical treatment of these subjects rendered his works practically unintelligible to those who might otherwise have profited by them.

The task of introducing Wolff's ideas to men of letters, statesmen and diplomatists was undertaken by Vattel, the famous Swiss publicist, whose influence on the conduct of international relations is perhaps second only to that of Grotius. Vattel tells us in the preface of his Law of Nations 18 that he had at first intended only to "clothe" certain portions of Wolff's system "in a more agreeable dress," but he soon found it necessary to compose a very different work. He, therefore, contented himself with "selecting from the work of M. Wolfius the best parts, especially the definitions and general principles." His book, though by no means an original contribution to the subject, is, indeed, far from being the mere abridgment or paraphrase of Wolff's treatise on the jus gentium that it is often represented. He accepts Wolff's doctrine of perfect and imperfect

18 This famous work, which was published in 1758, bears the additional title: Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns. It has had many editions and translations. The most complete and recent edition, with notes variorum, is that edited by Pradier-Fodéré in 1863.