¹ See Barthélemy, in Les fondateura du droit international, pp. 1-36; Nys, “Introduction” to De Indis et de Jure Belli Relectiones (Classics of International Law), pp. 55-100; Scott, The Spanish Origin of International Law, pp. 13-70; Walker, History of the Law of Nations, pp. 214-230.

² See Walker, History of the Law of Nations, pp. 245-246.

³ See Knight,, “Balthazar Ayala and His Work,” Journal of Comparative Legislation and International Law, 3d series, Vol. III, pp. 220–227; Westlake Google Scholar, “Introduction” to De Jure et Officiia Bellicis et Diaciplina Militari (Classics of International Law), Vol. I, pp. i-xxvii.

⁴ See Dunning, History of Political Theories from Luther to Montesquieu, pp. 135-149; Rolland, in Les fondateura du droit international, pp. 95-124.

⁴ See Abbott, “Alberico Gentili and His Advocatio Hispanica,” this JOURNAL, Vol. X (1916), pp. 737-748; Abbott, “Introduction” to Hiapanicae Advocationis (Classics of International Law), Vol. I, pp. lla-44a; Balch, “Albericus Gentilis,” this JOURNAL, Vol. V (1911), pp. 665-679; Holland, Studies in International Law, pp. 1-39; Nézard, in Let fondateura du droit international, pp. 37-93; Nys, “Introduction” to De Legationibua(Classics of International Law), Vol. II, pp. lla-37a; Phillipson, in Macdonell and Manson, Great Jurists of the World, pp. 109-143; Walker, History of the Law of Nations, pp. 249-276.

⁴ De Jure Belli ac Pacis, Prolegomena, §1. See also Prolegomena, §30.

⁷ De Jure Belli ac Pacis, Prolegomena, §28.

⁸ Pound, , “Philosophical Theory and International Law,” in Bibliotheca Visseriana, Vol. I, pp. 71, 88.Google Scholar

⁹ See Basdevant, , in Les fondateura du droit international , pp. 125–267;Google Scholar Knight, Life and Works of Hugo Grotius; Lysen, Hugo Grotius; Pound, “Grotius in the Science of Law,” this JOURNAL, Vol. XIX (1925), pp. 685-688; Rattigan, in Great Jurists of the World, pp. 169-184; Reeves, “The First Edition of Grotius' De Jure Belli ac Pacis, 1625,” this JOURNAL, Vol. XIX (1925), pp. 12-22; Reeves, “Grotius, De Jure Belli ac Pacis: A Bibliographical Account,” this JOURNAL, Vol. XIX (1925), pp. 251-262; Scott, “Introduction” to De Jure Belli ac Pacis (Classics of International Law), Vol. II, pp. ix-xliii; Vreeland, Hugo Grotius; Walker, History of the Law of Nations, pp. 278-329; White, Seven Great Statesmen, pp. 55-110.

₁₀ Among the more noteworthy were Victoria, Vasquez, Ayala, Suarez, and Gentilis, mentioned supra, pp. 239-240.

₁₁ References are to the reproduction of the edition of 1646, and to the translation by Kelsey and others, published in the Classics of International Law.

¹² I, 1, ix, 1.

¹³ I, 1, ix, 2.

¹⁴ I, 1, x, 1.

¹⁵ I, 1, x.

¹⁶ I, 1, xii.

¹⁷ “Speaking broadly, the Law of Nature represented to the Romans that which is conformable to Reason, to the best side of Human Nature, to an elevated morality, to practical good sense, to general convenience. It is Simple and Rational, as opposed to that which is Artificial and Arbitrary. It is Universal, as opposed to that which is Local or National. It is superior to all other law because it belongs to mankind as mankind, and is the expression of the purpose of the Deity or of the highest reason of man. It is therefore Natural, not so much in the sense of belonging to men in their primitive and uncultured condition, but rather as corresponding to and regulating their fullest and most perfect social development in communities, where they have ripened through the teachings of Reason.” Bryce, Studies in History and Jurisprudence, pp. 556, 589.

¹⁸ I, 1, xiii.

¹⁹ I, 1, xv.

²⁰ I, 1, xiv.

²¹ Prolegomena, §1.

²² Prolegomena, §17.

²³ I, 1, xiv.

²⁴ See Avril, in Les fondateura du droit international, pp. 331-383; Franck, Réformateurs et publicities de l'Europe, 17^mt sibcle, pp. 333-343; Phillipson, in Great Jurists of the World, pp. 305-344; Schucking, “Introduction” to De Officio Hominis et Civis Juxta Legem Natura- lem (Classics of International Law), Vol. II, pp. 9a-27a.

₂₅ References are to the edition of 1704, printed at Amsterdam, and to Kennet's English translation, 3d ed., printed at London in 1717.

₂₆ Thomas Hobbes (1588-1679) published his Elementa Philosophica de Cive in 1642, and again, for wider circulation, in 1647. His Leviathan was first published in 1651. See Montmorency, in Great Jurists of the World, pp. 195-219.Referring to the naturalist writers who identified the law of nations and the law of nature, Rachel remarked: “Let Thomas Hobbes have precedence among them, for he seems to have drawn others into his way of thinking.” De Jure Gentium, §xc (1676). Avril has said of Pufendorf: “Son mattre de philosophie avec lequel il ne reste pas toujours en parfaite communion, ce fut Hobbes. Son mattre pour la jurisprudence ne fut autre que Grotius.” Les fondateurs du droit international, p. 378. Schücking says: “While Hobbes indeed permits the law of nations to be completely absorbed by the natural law, he opens up a line of development of which the standard-bearer is Pufendorf.” “Introduction,” p. 12a.

²⁷ I, 6, i-iv.

²⁸ I, 6, xiv.

²⁹ I, 6, xviii.

³⁰ II, 3,iv.

³¹ I, 6, xiii and xviii; and II, 3, where the definition is developed in detail.

₃₂ See II, 2, i, iv, and xi; and passim. “This Theory, though often started, and beautifully amplified by the antient Poets, seems first to have been thought of as the foundation of a System of Law, by Hobbs, in his famous book called the Leviathan, in which there is so much to admire, and so much to condemn. It was adopted, and considerably enlarged by Puffendorf, and instantly approved of by writers without number.” Ward, Law of Nations, Vol. I, p. 5 (1795).

₃₃ See II, 2, iv and xi; V, 13; VIII, 4, xv-xxii; and passim.

³⁴ II, 3, xxiii.

₃₅ Barbeyrac wrote no treatise. His system may be constructed from the prefaces and notes to his translations of Grotius and Pufendorf.

₃₆ Schücking remarks that this translation contributed much to the propagation of the work of Pufendorf. “Introduction,” p. 14a. References are to the edition printed at London in 1740.

₃₇ “This translation ran through several editions and, at least outside of Germany, was the most popular text of Grotius during the eighteenth century.” Reeves, “Grotius, De Jure Belli ac Pacis: A Bibliographical Account,” this JOURNAL, Vol. XIX (1925), pp. 251, 257. References are to the edition printed at Basle in 1746.

³⁸ Barbeyrac's large notes to Pufendorf were included in Kennet's English translation of Pufendorf, 3d ed., printed at London in 1717, and his large notes to Grotius were included in the English translation of Grotius printed at London in 1738. Some of Barbeyrac's annotations were also included in Whewell's abridged translation of Grotius published at Cambridge in 1853.

³⁹ Barbeyrac's Pufendorf, préf., §31.

⁴⁰ Barbeyrac's Grotius, I, 1, ix, note 3.

⁴¹ Ibid., I, 1, x, note 3.

⁴² Ibid., I, 1, xiv, note 3.

⁴³ Barbeyrac's Pufendorf, III, 2, ix, note 1; VIII, 4, i, note 1; Barbeyrac's Grotius, I, 1, xiv, note 3: III, 2, i, note 1.

⁴⁴ Barbeyrac's Pufendorf, II, 3, xxiii, note 2.

⁴⁵ See Calvo, Dictiornnaire, Vol. I, p. 116; Holtzendorff, Handbuch des Völkerrechts, Vol. I, pp. 433-435.

⁴⁶ This work, as well as Burlamaqui's Principes du Droit Politique, published in 1751, was promptly translated into English, passed through numerous editions, and was widely used as a textbook in its time. References are to the Principes du Droit Naturel, first edition.

⁴⁷ I, 8, iii.

⁴⁸ II, 6, i.

⁴⁹ II, 6, iv-v.

⁵⁰ II, 6, v-vi.

⁵¹ De Cive, XIV, 4.

⁵² II, 6, v.

⁵³ Of those whose attempted distinctions hardly served to separate them from the naturalists, Thomas Rutherforth (1712-1771) is perhaps worthy of mention. His Institutes of Natural Law, published in 1754-1756, purported to be the substance of a course of lectures delivered at Cambridge University on the De Jure Belli ac Pacis of Grotius. However, like Pufendorf, Barbeyrac, and Burlamaqui, Rutherforth denied the existence of such a positive law of nations as that of which Grotius had conceived. He justified the classification of the law of nations as positive only upon the ground that an element of consent giving it a positive character could be found in the universal agreement of nations to recognize the state personality of each. (II, 9, i.) He recognized neither usage nor treaties as a source of positive law. The law of nations was positive only in the manner of applying it; it was entirely natural in its subject matter. “It is the law of nature,” said Rutherforth, “applied by positive consent, to the artificial persons of civil societies; and, consequently, the dictates of it are only the dictates of right reason, and may be collected by arguing from the nature of things, and from the condition and circumstances of mankind, when they are considered as formed into such societies.” (II, 9, v.)

⁵⁴ The Codex Diplomaticus was a collection of treaties and state papers preceded by a preface in which Leibnitz indicated briefly certain of his views on the law of nations. See also his Mantissa Codicis Juris Diplomatici, published in 1700. And see Macdonell, in Great Jurists of the World, pp. 283-304.

⁵⁵ See Olive, in Les fondateurs du droit international, pp. 447-479; Westlake, Collected Papers, pp. 70-76; Wheaton, History of the Law of Nations, pp. 176-182.

⁵⁸ References are to the edition of the Jus Gentium, printed at Frankfort and Leipsic in 1764.

⁵⁷ Prolegomena, §§1-8.

⁵⁸ “Prolegomena, §§9-22.

⁵⁹ Prolegomena, §23.

⁶⁰ Prolegomena, §24.

⁶¹ See Fenwick, “The Authority of Vattel,” American Political Science Review, Vol. VII, pp. 396-410, Vol. VIII, pp. 375-392; de Lapradelle, “Introduction” to Le droit des gens(Classics of International Law), Vol. III, pp. i-lv; Mallarmé, in Les fondateurs du droit international, pp. 481-601; de Montmorency, “Emerich de Vattel,” Journal of the Society of Comparative Legislation, N. S., Vol. X, pp. 17-39; Phillipson, in Great Jurists of the World, pp. 477-504; Staub, Die völkerrecktlichen Lehren Vattels.

⁶² References are to the reproduction of the edition of 1758, and to the translation by Fenwick, published in the Classics of International Law. .?,

⁶³ de Lapradelle, “Introduction,” p. viii.

⁶⁴ Preface, pp. 4a, 5a, 6a (Fenwick's transl.). Note that Vattel used Barbeyrac's translations of Grotius and Pufendorf.

⁶⁵ Introd., §4.

⁶⁶ Introd., §§5-7.

⁶⁷ Introd., §§8-9.

⁶⁸ Introd., §27.

⁶⁹ Introd., §§10-21.

⁷⁰ Introd., §24.

⁷¹ Introd., §25.

⁷² supra, p. 243.

⁷³ See Fenwick, “The Authority of Vattel,” American Political Science Review, Vol. VII, pp. 395, 406; de Lapradelle, “Introduction,” pp. xxxiv-xxxviii. See also Reeves, “The Influence of the Law of Nature upon International Law in the United States,” this JOURNAL, Vol. Ill (1909), p. 547.

₇₄ supra, p. 240.

⁷⁵ supra, p. 243.

₇₆ See Holland, “Introduction” to Iuris et Iudicii Fecialis, sive, Iuris Inter Gerties, et Quaestionum de Eodem Explicatio (Classics of International Law), Vol. I, pp. i-xvi; Phillip- son, in Great Jurists of the World, pp. 220-247; Scelle, in Les fondateurs du droit international, pp. 269-330.

₇₇ References are to the reproduction of the edition of 1650, and to the translation by Brierly, published in the Classics of International Law.

⁷⁸ I, 1, i.

⁷⁹ I,1.

⁸⁰ To the Reader, p. vii.

⁸¹ See von Bar, “Introduction” to De Jure Naturae et Gentium (Classics of International Law), Vol. II, pp. 7a-16a; Ruhland, “Samuel Rachel, der Bahnbrecher des völkerrechtlichen Positivismus,” Zeitsehrift für Internationales Recht, Vol. XXXIV, pp. 1-112.

⁸² References are to the reproduction of the edition of 1676, and to the translation by Bate, published in the Classics of International Law.

⁸³ supra, p. 243.

⁸⁴ Sec. xvi.

⁸⁵ Secs, xc et seq.

⁸⁶ Sec. cii.

⁸⁷ Sec. ii.

⁸⁸ Sec. xvii.

⁸⁹ Secs. iv-v.

⁹⁰ Sec. xxiii.

⁹¹ Sec. lvi.

⁹² Sec. xxiv.

⁹³ Secs, xxx-xxxi.

⁹⁴ See de Louter, “Introduction” to Quaestionum Juris Publici (Classics of International Law), Vol. II, pp. ix-xlvi; Nys, “Corneille van Bynkershoek,” Revue de Droit International, 3d sér, Vol. III, pp. 67-81; Phillipson, “Cornelius van Bynkershoek,” Journal of the Society of Comparative Legislation, N. S., Vol. IX, pp. 27-49; Phillipson, in Great Jurists of the World, pp. 390—416; du Ponceau, “Account of the Author,” in Bynkershoek, Treatise on the Law of War, pp. jdii-xxi; Scott, “Introduction” to De Dominio Maris (Classics of International Law), pp. 13-22.

⁹⁵ Bynkershoek's De Dominio Maris was first published in 1702, De Foro Legatorum in 1721, and Quaestionum Juris Publici in 1737.

⁹⁶ See Verdross, , “ J. J. Moser's Programm einer Volkerrechtswissenschaft der Erfahrung,” Zeitschrift füröfjentliches Reckt, Vol. III, pp. 96–102 Google Scholar.

⁹⁷ Vorläuffige Abhandlung, §1.

₉₈ This point has been made effectively by Picciotto, The Relation of International Law to the Law of England and of the United States, pp. 75-77.

₉₉ See Calvin's Case, 7 Coke 1, 13a; Dr. Bonham's Case, 8 Coke, 107, 118; Heathfield v.Chilton, 4 Burr. 2015, 2016.

₁₀₀ Commentaries on the Laws of England, Vol. I, p. 247.

¹⁰¹ See Case of Mattueof, 10 Mod. 4; Blackstone, Commentaries, Vol. I, p. 247; Martens, Causes célères, 2d ed., Vol. I, pp. 73-96.

₁₀₂ 7 Anne c. 12; Dickinson, Cases on the Law of Nations, p. 562.

¹⁰³ See Cross v. Talbot (1723), 8 Mod. 288; Wigmore v. Alvarez (1730), Fitz. 200; Barbuit's Case (1737), Cas. t. Talb. 281; Seacomb u. Bowlney (1743), 1 Wils. 20; Malachi Carolino's Case (1744), 1 Wils. 78; Poitier v. Croza (1749), 1 Wm. Bl. 48; Masters v. Manby (1757), 1 Burr. 401; Triquet v. Bath (1764), 3 Burr. 1478; Lockwood v. Coysgame (1765), 3 Burr. 1676; Fontainier v. Heyl (1765), 3 Burr. 1731; Heathfield v. Chilton (1767), 4 Burr. 2015; Darling v. Atkins (1769), 3 Wils. 33.

₁₀₄ Cas. t. Talb. 281.

₁₀₅ Cas. t. Talb. 281, 283 note.

₁₀₆ “Now what is remarkable in this case is that although Talbot declined to discharge the agent of commerce, who had been attached for non-payment of what had been found due from him in a chancery suit, the British Government paid the amount and so obtained his discharge. Such a compliance may be attributed in part to a desire to maintain good relations with the King of Prussia, but that the case was not then thought to be clear on the law of nations, although now it would be so, results as well from the Prussian demand as at least in some degree also from the British compliance.” Westlake, Collected Papers, p. 504.

₁₀₇ See Triquet v. Bath, 3 Burr. 1478, 1481.

₁₀₈ Masters v. Manby, 1 Burr. 401; Triquet v. Bath, 3 Burr. 1478; Lockwood v. Coysgarae, 3 Burr. 1676; Fontainier v. Heyl, 3 Burr. 1731; Heathfield v. Chilton, 4 Burr. 2015.

₁₀₉ 3 Burr. 1676, 1678.

₁₁₀ 4 Burr. 2015, 2016.

₁₁₁ Engelke v. Musmann [1928] 1 K. B. 90; [1928] A. C. 433.

₁₁₂ Cf. Heathfield v. Chilton, 4 Burr. 2015, 2016.

₁₁₃ [1928] A. C. 433, 449.

₁₁₄ [1928] A. C. 433, 440.

¹¹⁵ [1928] A. C. 433, 468. “The privilege itself depends upon maintaining the obligations of international law and the comity of nations.” [1928] A. C. 433, 446.

₁₁₆ [1928] A. C. 433, 454.

₁₁₇ 6 Maule and Selwyn 92; Dickinson, Cases on the Law of Nations, p. 57.

₁₁₈ [1921] 1 Ch. 107.

₁₁₉ During the course of the argument, counsel for the Crown produced various instances of Exchequer Special Commissions issued from 1693 to 1812 under which inquisitions were found forfeiting to the Crown private enemy property, including choses in action. [1921] 1 Ch. 107, 118.

¹²⁰ [1921] 1 Ch. 107, 126.

₁₂₁ [1921] 1 Ch. 107, 138.

¹²² [1921] 1 Ch. 107, 137.

¹²³ 3 Ves. Jr. 424; Dickinson, Cases on the Law of Nations, p. 919.

¹²⁴ [1905] 2 K. B. 391; Dickinson, Cases on the Law of Nations, pp. 62, 943.

¹²⁵ 3 Ves. Jr. 424, 434.

¹²⁶ [1905] 2 K. B. 391, 402.

¹²⁷ [1905] 2 K. B. 391, 406.

¹²⁸ 7 Cr. 116 (1812); Dickinson, Cases on the Law of Nations, p. 594.

¹²⁹ 2 Mason, 409 (1822); Dickinson, Cases on the Law of Nations, p. 13.

¹³⁰ 10 Wh. 66 (1825); Dickinson, Cases on the Law of Nations, p. 20. See also Le Louis,2 Dods. 210.

¹³¹ 2 Ex. Div. 63 (1876); Dickinson, Cases on the Law of Nations, p. 462.

¹³² While influences of this kind cannot be measured statistically, the following tabulation is at least a suggestion of the use made of classical treatises, and of the relative influence of the different publicists, in cases before the Supreme Court of the United States at the end of the 18th and the beginning of the 19th century. The figures are compiled from the first seventeen volumes of the court's reports, covering the years from 1789 to 1820. Eighty two cases were found in these volumes involving more or less important questions of international law. The figures in parentheses indicate the number of instances in which the publicist named was cited, quoted, or paraphrased. Cited in argument: Grotius (16), Pufendorf (9), Bynkershoek (25), Burlamaqui (9), Rutherforth (18), Vattel (92). Cited in opinion: Grotius (11), Pufendorf (4), Bynkershoek (16), Burlamaqui (4), Rutherforth (5), Vattel (38). Quoted or paraphrased in opinion: Grotius (2), Bynkershoek (8), Burlamaqui (2), Rutherforth (2), Vattel (22).

¹³³ “ The true view would seem to be that so far from International Law being in any sense whatever a part of the Common Law of England it is merely a source of law, and that this fundamental confusion between cause and effect has vitiated the whole controversy.” Picciotto, The Relation of International Law to the Law of England and of the United States, p. 105.

¹³⁴ “The English courts must enforce rights given by international law as well as those given by the law of the land in its narrower sense, so far as they fall within their jurisdiction in respect of parties or places, subject to the rules that the king cannot divest or modify private rights by treaty (with the possible exception of treaties of peace or treaties equivalent to those of peace), and that the courts cannot question acts of state (or, in the present state of the authorities, draw consequences from them against the Crown).

“The international law meant is that which at the time exists between states, without prejudice to the right and duty of the courts to assist in developing its acknowledged principles in the same manner in which they assist in developing the principles of the common law.” Westlake, Collected Papers, 498, 518.