its promoters in a series of able articles in the Algemeen Handelsblaad, against the charge of want of loyalty to the memory of their great countryman Grotius. The net result of the controversy seems to have been a fine statue of Grotius, which was unveiled in 1886, with much international oratory, at Delft. The English Committee, formed in November, 1875, by the Oxford Law Professors and the surviving Oxford members of the College of Advocates, under the presidency of Sir R. Phillimore and the honorary presidency of Prince Leopold, if less ambitious than its Italian prototype, may at least be congratulated on having attained its object without undue delay. It resolved to suitably mark the long-forgotten grave of Alberico, and to republish his greatest work. On June 7, 1877, accordingly, a handsome monument, adorned with the armorial bearings of the Gentili family, of Sanginesio and of the Universities of Perugia and Oxford, was unveiled in St. Helen's Church, in the presence of Prince Leopold, the Italian Ambassador, Sir Robert Phillimore, and many others. It reproduces the epitaph preserved by Konigius (supra App. VII), with the following additional lines : EPITAPHIUM HOC OLIM CONSCRIPTUM, SED NUNQUAM ADHVC IN LVCEM EDITUM, ET EDACI VETUSTATE PENE ABOLITUM, VIRI INSIGNISSIMI HIC VICINIAE TUMULATI IN MEMORIAM QUIDAM EX AMATORIBUS IURISPRUDENTIAE ET LIBERALIUM ARTIUM PONI CURAVERUNT, ANNO SALUTIS MDCCCLXXVII. Later in the same year, the De Iure Belli, edited by the present writer, was published by the Clarendon Press. The literature of the subject since 1874 comprises the following books or articles: 1875. Valdarnini, A., Prof. nel R. Liceo di Macerata. Alberico Gentili fondatore del diritto internazionale. Carnesecchi e figli, Firenze. Foglietti, Dott. Raffaele. Cenni sulla vita e le opere di Vanni e Santi, Relazione delle feste fatte in San Ginesio ad RECENT LITERATURE 39 1875. Pierantoni, A., Prof. nell'Università di Napoli. Articles in the Giornale di filosofia e lettere, ecc., ottobre, dicembre, 1875 (t. II, pp. 221, 387). 1876. Fiorini, Dott. Antonio. Di A. Gentili e del suo diritto di guerra. Discorso. Vanni, Livorno. De Giorgi, Alessandro, prof. nella R. Università di Parma. Speranza, Avv. Giuseppe. Alberico Gentili, Studi. Pallotta, Comba, Prof. Emilio, in the Rivista Cristiana, Firenze, 1876, 1877. Fiorini. Del diritto di guerra di Alberico Gentili. Traduzione e discorso. Vigo, Livorno. Alberici Gentilis De Iure Belli, libri tres, edidit T. E. Holland. 1878. Sir Travers Twiss, Albericus Gentilis on the Right of War, in the Law Magazine and Review, February (p. 137). Saffi, Conte Aurelio, Di Alberico Gentili e del diritto delle genti. Letture. Zanichelli, Bologna. 1879. Holland, T. E., the article Gentilis, Albericus, in the Encyclopædia Britannica. 1884. Holland, T. E., Alberico Gentili, Discorso inaugurale. Tradotto da Aurelio Saffi. Loescher, Roma. 1885. Marson, L., A. Gentili, discorso tenuto il dì 7 Giugno, 1885, per l'inaugurazione d' una lapide nel R. Istituto Tecnico A. Gentili in Macerata. 1889. Holland, T. E., the articles Gentili, Alberico, and Gentili, Robert, in the Dictionary of National Biography, Vol. XXI. 1896. Thamm, M., Albericus Gentilis und seine Bedeutung für das Völkerrecht. Inaugural - Dissertation, Strassburg. Cf. Revue de Droit International, 1875, p. 321; 1876, pp. 141, 690; 1877, p. 293; 1878, p. 682; 1883, p. 160; 1886, p. 502. II THE EARLY LITERATURE OF THE LAW OF WAR1 It cannot be too clearly understood that International Law, as a system of rules attempting to govern the totality of the relations of States, is a conception of modern date, towards which even Grotius was only feeling his way. The science has come down to us by no unbroken course from one remote fountain-head, but is the result of the recent convergence of many independent rivulets of thought. Of these, perhaps the most important, as well as the first to spring into existence, was that which occupied itself with the law of war. Just as forms of litigious procedure are a more prominent topic in early legal literature than the substantive law itself, so were the rules which are applicable to the conflicts of States discussed before those which should govern their peaceful intercourse. I ventured some years ago to claim for an Oxford Professor the merit of having originated International Law, as it is now understood, and especially the law of war 2. The treatise of Gentili, de Iure Belli, has since been still THE PRAE-LITERARY PERIOD 41 more closely connected with the University by the discovery of a parcel of his letters. From one of these, kindly presented to me by the owner, it appears that in 1588 Gentili chose this subject of the law of war for the address which it was customary for the Regius Professor of Civil Law to deliver at the annual "Act1." There can be no doubt that the address formed the substance of that first sketch of his great work which Gentili published in the autumn of the same year. It must of course be admitted that the idea of a law of nations in general, and of a law of war in particular, had been growing gradually, as all ideas grow; but Gentili marked an epoch in the history of those ideas, and launched the study on a new course of progress. I propose to-day to examine the growth of the idea of a law of war before his time; and to trace it, so far as I have been able, to its various sources, a task which has hardly as yet been attempted 2. Two stages of this growth may be distinguished, which may be called the prae-literary and the literary respectively. The former was a time of preparation and of the accumulation of materials. During the latter, special treatises were written upon the law of war. I. The prae-literary period is that of the Fathers, of the Doctors of the Church, of the Decretum and Decretals, and of the glossators and commentators upon those earlier portions of the canon law. Most of the discussions of this period were of an exclusively theological character, but we may also detect in them some slight survivals of classical influence. v. supra, pp. 12, 29. 2 But see now the following valuable works by Professor Nys, of Brussels. Le Droit de la guerre et les précurseurs de Grotius, 1882; L'arbre des batailles d'Honoré Bonet, 1883; Notes pour servir à l'histoire littéraire et dogmatique du Droit International en Angleterre, 1888; Les origines du Droit International, 1894. It was not surprising that a controversy should arise in the Christian Church upon the lawfulness of war. Texts may be quoted from the New Testament which seem to prohibit any opposition of force to force, and the categorical commandment 'thou shalt not kill' needed exegesis if it was to be read subject to a number of implied exceptions. There were accordingly not wanting Christian writers who adhered to the literal meaning of these texts. Thus Tertullian thinks it unlawful for a Christian to be a soldier 1, and St. Cyprian says: "Homicidium, quum admittunt singuli, crimen est. virtus vocatur quum publice "geritur. impunitatem sceleribus acquirit non innocentiae "ratio sed saevitiae magnitudo 2;' and again "coepit esse "licitum quod publicum est 3." On the other hand, St. Augustine was the champion of such a reasonable construction of the Bible as would allow the lawfulness of war, and his views seem to have been generally accepted. The non-theological, or classical, discussions on the subject are preserved in the Etymologiae of Isidorus, who became Bishop of Seville in 600. One of his chapters, entitled "de bellis 5," which distinguishes between the terms "bellum," "pugna," "tumultus," and between "civilia " and "plusquam civilia bella," "just" and "unjust" wars, is mainly founded on Cicero. Another, entitled “quid sit "ius militare," strikes the key-note of much that was subsequently written upon the subject, by propounding the following definition: "Ius militare est belli inferendi "solennitas; foederis faciendi nexus; signo dato con"gressio in hostem vel commissio, item signo dato receptio; "item flagitii militaris disciplina, si locus deseratur; item "stipendiorum modus; dignitatum gradus; praemiorum 1 Adv. Iudaeos de Idol. c. 19; de Cor. milit. c. II. 2 2 Ep. 2. 3 Ib.; cf. Sen. Ep. 87, 95. * Contra Faustum, xxii. c. 75; Quaestiones in Iosue, viii. 3. 5 Lib. xviii. c. I. |