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cases. In the fifteenth and sixteenth centuries, the progress of international relations, and, we may add, the frequency of wars, though it did not at once create a common standard, showed how much it was required. War itself, it was perceived, even for the advantage of the belligerents, had its rules; an enemy had his rights; the study of ancient history furnished precedents of magnanimity and justice, which put the more recent examples of Christendom to shame; the spirit of the Gospel could not be wholly suppressed, at least in theory; the strictness of casuistry was applied to the duties of sovereigns; and perhaps the scandal given by the writings of Machiavel was not without its influence in dictating a nobler tone to the morality of international law.

Francis a

87. Before we come to works strictly belonging to this kind of jurisprudence, one may be mentioned which connects it with theological casuistry. The Victoria. Relectiones Theologica of Francis a Victoria, a professor in Salamanca, and one on whom Nicolas Antonio and many other Spanish writers bestow the highest eulogy, as the restorer of theological studies in their country, is a book of remarkable scarcity, though it has been published at least in four editions. Grotius has been supposed to have made use of it in his own great work; but some of those who since his time have mentioned Victoria's writings on this subject lament that they are not to be met with. Dupin, however, has given a short account of the Relectiones; and there are at least two copies in England—one in the Bodleian Library, and another in that of Dr. Williams in Redcross Street. The edition I have used is of Venice, 1626, being probably the latest; it was published first at Lyons in 1557, at Salamanca in 1565, and again at Lyons in 1587, but had become scarce before its republication at Venice." It consists of thirteen relections, as Victoria calls them, or dissertations on different subjects, related in some measure to theology, at

"This is said on the authority of the Venetian edition. But Nicolas Antonio mentions an edition at Ingoldstadt in 1580, and another at Antwerp in 1604. He is silent about those of 1587 and 1626. He also says that the Relectiones are twelve in number. Perhaps he had

never seen the book, but he does not advert to its scarcity. Morhof, who calls it Prælectiones, names the two editions of Lyons, and those of Ingoldstadt and Antwerp. Brunet, Watts, and the Biographie Universelle do not mention Victoria at all.

least by the mode in which he treats them. The fifth, entitled De Indis, and the sixth, De Jure Belli, are the most important.

His opi

nions on

88. The third is entitled, De Potestate Civili. In this he derives government and monarchy from divine public law. institution, and holds that, as the majority of a state may choose a king whom the minority are bound to obey, so the majority of Christians may bind the minority by the choice of an universal monarch. In the chapter concerning the Indians, he strongly asserts the natural right of those nations to dominion over their own property and to sovereignty, denying the argument to the contrary founded on their infidelity or vices. He treats this question methodically, in a scholastic manner, giving the reasonings on both sides. He denies that the emperor, or the pope, is lord of the whole world, or that the pope has any power over the barbarian Indians or other infidels. The right of sovereignty in the king of Spain over these people he rests on such grounds as he can find; namely, the refusal of permission to trade, which he holds to be a just cause of war, and the cessions made to him by allies among the native powers. In the sixth relection on the right of war, he goes over most of the leading questions, discussed afterwards by Albericus Gentilis and Grotius. His dissertation is exceedingly condensed, comprising sixty sections in twenty-eight pages; wherein he treats of the general right of war, the difference between public war and reprisal, the just and unjust causes of war, its proper ends, the right of subjects to examine its grounds, and many more of a similar kind. He determines that a war cannot be just on both sides, except through ignorance; and also that subjects ought not to serve their prince in a war which they reckon unjust. Grotius has adopted both these tenets. The whole relection, as well as that on the Indians, displays an intrepid spirit of justice and humanity, which seems to have been rather a general characteristic of the Spanish theologians. Dominic Soto, always inflexibly on the side of right, had already sustained by his authority the noble enthusiasm of Las Casas.

89. But the first book, so far as I am aware, that systematically reduced the practice of nations in the conduct

the rights

of war to legitimate rules, is a treatise by Balthazar Ayala, judge-advocate (as we use the word) to the Spanish Ayala on army in the Netherlands, under the prince of of war. Parma, to whom it is dedicated. The dedication bears date 1581, and the first edition is said to have appeared the next year. I have only seen that of 1597, and I apprehend every edition to be very scarce. For this reason, and because it is the opening of a great subject, I shall give the titles of his chapters in a note. It will appear, that the second book of Ayala relates more to

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c. 1. De Officiis Bellicis.

2. De Imperatore vel Duce Exer
citus.

3. Unum non Plures Exercitui
Præfici debere.

4. Utrum Lenitate et Benevolentia,
an Severitate et Sævitia, plus
proficiet Imperator.

5. Temporum Rationem præcipue
in Bello Habendam.

6. Contentiosas et Lentas de Rebus
Bellicis Deliberationes admo-
dum Noxias esse.

7. Dum Res sunt Integræ ne mini-
mum quidem Regi vel Rei-
publica de Majestate sua Con-
cedendum esse; et errare eos
qui Arrogantiam Hostium Mo-
destia et Patientia vinci posse
existimant.

8. An præstet Bellum Domi exci-
pere, an vero in Hostilem
Agrum inferre.

9. An præstet Initio Prælii Magno
Clamore et Concitato Cursu
in Hostes pergere, an vero
Loco manere.

Lib. ii.

c. 10. Non esse Consilii invicem Infensos Civilibus Dissensionibus Hostes Sola Discordia Fretum invadere.

11. Necessitatem Pugnandi Magno Studio Imponendam esse Militibus et Hostibus Remittendam.

12. In Victoria potissimum de Pace Cogitandum.

13. Devictis Hostibus qua potissi-
mum Ratione Perpetua Pace
Quieti obtineri possint [sic].

Lib. iii.
c. I. De Disciplina Militari.

2. De Officio Legati et Aliorum
qui Militibus præsunt.

3. De Metatoribus sive Mensori

bus.

4. De Militibus, et qui Militare
possunt.

5. De Sacramento Militari.
6. De Missione.

7. De Privilegiis Militum.
8. De Judiciis Militaribus.

9. De Pœnis Militum.

10. De Contumacibus et Ducum Dicto non Parentibus.

11. De Emansoribus.

12. De Desertoribus.

13. De Transfugis et Proditoribus. 14. De Seditiosis.

15. De lis qui in Acie Loco cedunt aut Victi Se dedunt.

16. De lis qui Arma alienant vel
amittunt.

17. De lis qui Excubias deserunt
vel minus recte agunt.
18. De Eo qui Arcem vel Oppidum
cujus Præsidio impositus est,
amittit vel Hostibus dedit.
19. De Furtis et Aliis Delictis Mili-
taribus.

20. De Præmiis Militum.

politics and to strategy than to international jurisprudence; and that in the third he treats entirely of what we call martial law. But in the first he aspires to lay down great principles of public ethics; and Grotius, who refers to Ayala with commendation, is surely mistaken in saying that he has not touched the grounds of justice and injustice in war. His second chapter is on this subject, in thirtyfour pages; and though he neither sifts the matter so exactly, nor limits the right of hostility so much as Grotius, he deserves the praise of laying down the general principle without subtilty or chicanery. Ayala positively denies, with Victoria, the right of levying war against infidels, even by authority of the pope, on the mere ground of their religion; for their infidelity does not deprive them of their right of dominion; nor was that sovereignty over the earth given originally to the faithful alone, but to every reasonable creature. And this, he says, has been shown by Covarruvias to be the sentiment of the majority of doctors. Ayala deals abundantly in examples from ancient history, and in authorities from the jurists. 90. We find next in order of chronology a treatise by Albericus Gentilis, De Legationibus, published in Embassies. 1583. Gentilis was an Italian Protestant, who, through the Earl of Leicester, obtained the chair of civil law at Oxford in 1582. His writings on Roman jurisprudence are numerous, but not very highly esteemed. This work, on the Law of Embassy, is dedicated to Sir Philip Sidney, the patron of so many distinguished strangers. The first book contains an explanation of the different kinds of embassies, and of the ceremonies anciently connected with them. His aim, as he professes, is to elevate the importance and sanctity of ambassadors, by showing the practice of former times. In the second book he enters more on their peculiar rights. The envoys of rebels and pirates are not protected. But difference of religion does not take away the right of sending ambassa

Albericus

Gentilis on

P Causas unde bellum justum aut injustum dicitur Ayala non tetigit. De Jure B. et P. Prolegom., § 38.

9 Bellum adversus infideles ex eo solum quod infideles sunt, ne quidem auctoritate imperatoris vel summi pontificis indici potest; infidelitas enim non

privat infideles dominio quod habent jure gentium; nam non fidelibus tantum rerum dominia, sed omni rationabili creaturæ data sunt. .. Et hæc sententia plerisque probatur, ut ostendit Covarruvias.

dors. He thinks that civil suits against public ministers may be brought before the ordinary tribunals. On the delicate problem as to the criminal jurisdiction of these tribunals over ambassadors conspiring against the life of the sovereign, Gentilis holds, that they can only be sent out of the country, as the Spanish ambassador was by Elizabeth. The civil law, he maintains, is no conclusive authority in the case of ambassadors, who depend on that of nations, which in many respects is different from the other. The second book is the most interesting, for the third chiefly relates to the qualifications required in a good ambassador. His instances are more frequently taken from ancient than modern history.

on the Rights

of War.

91. A more remarkable work by Albericus Gentilis is his treatise, De Jure Belli, first published at His treatise Lyons, 1589. Grotius acknowledges his obligations to Gentilis, as well as to Ayala, but in a greater degree to the former. And that this comparatively obscure writer was of some use to the eminent founder, as he has been deemed, of international jurisprudence, were it only for mapping his subject, will be evident from the titles of his chapters, which run almost parallel to those of the first and third books of Grotius.

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They embrace, as the reader will

8. De Caussis Divinis Belli Fa

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