contemplated without emotion. Its martial glory has long since departed, but the "Eternal City" still continues to rule the greatest part of the civilized and Christian world, through the powerful influence of her civil codes. The acute research and unrivalled sagacity of an illustrious German civilian of the present day, have laboriously collected and happily combined the multiplied proofs, scattered in many a worm-eaten volume, that the Roman law, so far from having been buried in the ruins of the Roman empire, survived throughout the middle age, and continued to form an integral portion of European legislation long before the period of the pretended discovery of the Pandects of Justinian at Amalfi, in the beginning of the twelfth century. The vanquished Roman provincials were neither extirpated nor deprived of their personal freedom, nor was their entire property confiscated, by the Gothic invaders, as we are commonly taught to believe. The conquered people were not only permitted to retain a large portion of their lands, and the personal laws by which they had been previously governed; but the municipal constitutions of the Roman cities were preserved, so that the study and practice of the Roman law could never have been entirely abandoned, even during what has been called the midnight darkness of the middle age. Accordingly, we find that in every civilized country of Europe, the Scandinavian nations and England excepted, the Roman civil law either formed the original basis of the municipal jurisprudence, or constitutes a suppletory code of "written reason," appealed to where the local legislation is silent, or imperfect, or requires the aid of interpretation to explain its ambiguities.

The foundation of the modern science of international law may be traced to a period nearly coincident to that memorable epoch in the history of mankind-the revival of letters, the discovery of the new world, and the reformation of religion. The Roman law infused its spirit into the ecclesiastical

ny,

6 Geschichte des Romischen Rechts in Mittelallter, von Dr. C. von Savig4 tom. Heidelberg, 1814-1826.

code of the Romish Church; and it may be considered a favourable circumstance for the revival of civilization in Europe, that the interests of the priesthood, in whom all the moral power and knowledge of the age were concentrated, induced them to cherish a certain respect for the immutable rules of justice. The spiritual monarchy of the Roman pontiffs was founded upon the want of some moral power to temper the rude disorders of society during the middle age. The influence of the papal authority was then felt as a blessing to mankind: it rescued Europe from total barbarism; it afforded the only shelter from feudal oppression. The compilation of the canon law, under the patronage of Pope Gregory the IX., contributed to diffuse a knowledge of the rules of justice among the Catholic clergy; whilst the art of casuistry, invented by them to aid in performing the duties of auricular confession, opened a wide field for speculation, and brought them in view of the true science of ethics. The universities of Italy and Spain produced, in the sixteenth century, a succession of labourers in this new field. Among these were Francis de Victoria, who flourished as a professor at Salamanca about 1546, and Dominic Soto, who was the pupil and successor of Victoria at the same seat of learning, (which Johnson said he loved for its noble decision upon the Spanish conquests in America,) and published, in 1560, an elaborate treatise "Of Justice and Law," the subject-matter of his lecture delivered there, which he dedicated to the unfortunately celebrated Don Carlos. Both Victoria and Soto condemned, with honest boldness and independence, the cruel wars of avarice carried on by their countrymen in the new world, under the pretext of propagating what was called Christianity in that age. Soto was the arbiter appointed by the emperor Charles V. to decide between Sepulveda, the advocate of the Spanish-American colonists, and Las Casas, the champion of the unhappy natives, as to the lawfulness of enslaving the latter. The edict of reform of 1543 was founded upon his decision in their favour. It is said that Soto did not stop here, but condemned in the most unmeasured terms the African slave-trade, then beginning to be

carried on by the Portuguese. But I do not understand that Soto reprobated slavery in general, or even the slave-trade itself, so long as it was confined to that unfortunate portion of the inhabitants of Africa who had been doomed to servitude from time immemorial, or had been enslaved by conquest in war, in that age universally regarded as giving a legitimate title to property in human beings jure gentium; but only that he condemned that system of kidnapping, by which the Portuguese traders seduced the natives to the coast, under frau-. dulent pretences, and forced them by violence on board their slave-ships."

Long before the appearance of the labourers in the new field of natural jurisprudence, the genius of commerce, ever

7 "If the report," says Soto, "which has lately prevailed, be true, that Portuguese traders entice the wretched natives of Africa to the coast by amusements and presents, and every species of seduction and fraud, and compel them to embark in their ships as slaves,—neither those who have taken them, nor those who buy them from the takers, nor those who possess, can have safe conscience, until they manumit these slaves, however unable they may be to pay ransom."-Soto, de Justitia et Jure, lib. iv. quæst. ii.

art. 2.

To the above names may be added that of Francisco Suarez, another casuist, who flourished in the same century, and of whom Grotius says that he had hardly an equal, in point of acuteness, among philosophers and theologians. Some parts of his theory of private morals are justly reprobated by Pascal in the Lettres Provinciales; but this Spanish Jesuit has the merit of having clearly conceived and expressed, even at that early day, in his treatise De Legibus ac Deo Legislatore, the distinction between what is called the law of nature and the conventional rules of intercourse observed among nations. "He first saw that international law was composed, not only of the simple principles of justice applied to the intercourse between states, but of those usages long observed in that intercourse by the European race, which have since been more exactly distinguished as the consuetudinary law acknowledged by the Christian nations of Europe and America." (Mackintosh, Progress of Ethical Philosophy, sect. 3, p. 51.) A number of practical treatises on the laws of war were also written about this period by Spanish and Italian authors, several of whom are cited by Grotius; and it is remarked by Sir J. Mackintosh, that Spain, under Charles V. and Philip II., having become the first military and political power in Europe, maintaining large armies and carrying on long wars, was likely to be the first that felt the want of that more practical part of the law of nations which reduces war to some regularity.

favourable to the improvement and happiness of mankind, had reduced to a written text the long-established customs and usages of the maritime nations bordering on the shores of the Mediterranean Sea. Spain and Italy mutually contest with each other the honour of compiling the Consolato del Mare. This code embraces a great mass of civil commercial regulations, with a few chapters on the subject of maritime captures in war, which show that the leading principles of prize-law, as since practised by the maritime states of Europe, had been settled and generally adopted at this early period. The first printed edition of this curious monument of commercial legislation is nearly coeval with the art of printing itself, and was published in the Catalonian dialect, at Barcelona, in 1494. There is no question that it was collected long previous to that period; but at what particular epoch, and by which of the numerous commercial republics with which the Mediterranean coasts were studded during the middle age, is matter of great uncertainty. The question of its origin has exercised the learning and ingenuity of various critics, whose zeal in exploring this dark recess of legal antiquities has been stimulated by national vanity and rivalship. Many of the provisions of this antique code have been incorporated into the more modern ordinances of the different European states, and especially into that beautiful model of legislation, the marine ordinance of Louis XIV. Its decisions are in general dictated by a spirit of justice and equity which recommends them to adoption, even at the present day; and they unquestionably attest the general sense of Christian Europe at the period when they were collected, respecting the commercial relations of its different states.&

8 A beautiful edition of the Consolato was published at Madrid, in 1791, by Don Antonio Capmany, in the Catalonian, with a Spanish translation. The commentary of Valin upon the marine ordinance of Louis XIV., of 1681, contains a most valuable body of maritime law, from which the English writers and judges, especially Lord Mansfield, have borrowed very freely. Valin also published a separate Traité des Prises, in 1763, which contains a collection of the French prize ordinances down to that period.

Albericus Gentilis was the forerunner of Grotius in the science whose history we are reviewing. He was born in the March of Ancona, about the middle of the sixteenth century, of an ancient and illustrious family. His father, being one of the few Italians who openly embraced the doctrines of the Reformation, was compelled to fly with his family into Germany, whence he sent his son Alberico to England, where he found, not only freedom of conscience, but patronage and favour, and was elected to fill the chair of jurisprudence at Oxford. He did not confine his attention to the Roman law, the only system then thought worthy of being taught in a scientific manner, (the municipal code being abandoned to the barbarous discipline of the inns of court, of which Sir Henry Spelman has left us so feeling an account;) but investigated the principles of natural jurisprudence, and of the consuetudinary law then governing the intercourse of Christian nations. His attention was especially directed to this last, by the circumstance of his being retained as the advocate of Spanish claimants in the English courts of prize. The fruits of his professional labours were given to the world in the earliest reports of judicial decisions on maritime law published in Europe. His more scholastic and academical studies produced the first regular treatise upon the law of war, considered as a branch of international law, which appeared in modern times. This work served as a light to guide the path of the illustrious Grotius, when he entered upon and pursued the same track of investigation in the following century.9

Gentilis also wrote a treatise on embassies, which he dedicated to his friend and patron, the gallant and accomplished

9 The title of Alberico Gentili, to be considered as the father of the modern science of natural and international law, is asserted by his countryman Lampredi. "He first explained the rules of war and peace, which probably suggested to Grotius the idea of writing his own work-worthy to be remembered, among other things, for having contributed to augment the glory of his native Italy, where he drew his knowledge of the Roman law, and proved her to be the earliest teacher of natural jurisprudence, as she had been the restorer and patroness of all liberal arts and learning."