Grotius and Others

...Standard text-books like those of T. J. Lawrence and V. Sukiennicki do much to perpetuate the notion...

...What reasonable explanation there can be for this it is hard to see because twentieth-century scholars have worked the field carefully and are practically unanimous in their conclusions...

...No wonder Dr...

...It was the hand of a Hollander, Hugo Grotius, who published his De Jure Belli ac Pacis in 1625...

...He goes on to say...

...Comparing Vitoria and Grotius he continues: "The general treatment and conclusions arrived at show a more progressive tone and a more modern significance than are discernible in the corresponding parts of the later writer's production...

...Under Suarez he read: "Grotius recognizes (Ep...

...In the De Jure Belli ac Pacis of Grotius, there are thirty-nine references to Thomas Aquinas, thirteen to Gentilis, six to Ayala and thirty to Fernando Vasquez...

...There are those, of course, who would like to leave to Vitoria the laurels of sacred science, claiming for Grotius the distinction of separating international law from theological leading-strings...

...Italics mine...

...Well, perhaps the deficiency is supplied by the Catholic Encyclopedia...

...Call Grotius the most illustrious member of the modern school of international law if you will, but remember that by every rule of logic and history, Francisco di Vitoria was its founder...

...He was more than a little disappointed...

...James Brown Scott, retiring President of the Institute and Secretary of the Carnegie Foundation for International Peace...

...After centuries of neglect the doctrines which Vitoria professed from his chair at Salamanca are being recognized as founding the new school of international law which, admitting the independence and equality of states, regards them as members of an international community and subordinate to its dictates...

...Scott has proposed one explanation in The Spanish Origin of International Law, published by the School of Foreign Service, Georgetown University, Washington...

...Neither of these immense treasure-houses of information even hints of predecessors on whom the Dutch jurist drew lavishly for matter and method...

...In fact, the reluctance of Grotius to give full credit for the contributions of his great contemporaries requires further elucidations...

...But you will thumb the pages of the Britannica in vain should you be interested in Francisco di Vitoria, a name second to none in the history of international law...

...Again it should be remembered that other writers are freely used...

...In summing up, it is clear that Grotius gathered the materials for his justly celebrated treatise from Vitoria, Suarez, Ayala, Covarruias and Vasquez...

...But there was not a syllable to indicate what the science of international law owes to Vitoria, although the Dominican scholar is praised for giving to theology "a purer diction and an improved literary form...

...Not only the wells but the springs seem to have run dry...

...Catholic and Protestant, Spaniard and Dutch, the Englishman Walker and the American Scott unite in proclaiming the enormous debt which international law owes to the principles established by Vitoria and Suarez...

...In spite of the denial of Basdevant we know that Grotius was familiar with De Legibus ac de Deo Legislatore, for the very simple reason that he has some four references to it in the notes of De Jure Belli ac Pacis...

...This treatise furnished Grotius and internationalists of our day and generation with an adequate philosophy of law...

...The most cursory glance at De Jure Belli ac Pacis refutes this contention...

...Now this precisely was the epoch-making contribution of Suarez...

...In other words there is, as far as the writer could discover, not a single satisfactory encyclopedic account of any one of the three great names in international law, Vitoria, Suarez or Grotius...

...the arrangement is to a considerable degree that of Gentilis...

...It is quite right, then, to conclude with Dr...

...In fact he "finds it hard to believe that there could be found in the Commentary of Grotius, written in 1604 and revised for the last time in 1608, the same distinction between the two kinds of law of nations that seven years later was to be revealed at Coimbra by the venerable Spanish Jesuit, Suarez, Tractatus de Deo Legislatore, and to become a decisive element in the development of the law of nations...

...Grotius is no less zealous than his contemporaries in citing Scripture, Aristotle, the Fathers and the Schoolmen...

...The fundamental idea of the book is the law of nature...

...James Brown Scott goes on record to the effect that Suarez treated this distinction between jus naturale and jus inter gentes "in a masterly passage and with final authority...

...Citations to his works are frequent, thirteen to De Indis, forty to De Jure Belli, two to De Potestate Civili and one to De Potestate Papae et Concilii...

...Grotius speaks of him in terms of high respect...

...It has been noted that the Encyclopaedia Britannica selects as the outstanding merit of Grotius's book a careful analysis of "the law of nature...

...This is not to reflect on the genius of Grotius for his systematic compilation of existing doctrines, but it is to see his work in proper perspective and proportion...

...Nor should it be forgotten that Saint Thomas Aquinas specialized in natural law...

...Similarly the Encyclopedia Americana states that "Hugo Grotius laid the foundations of the new science of international law," while the New International declares his work is the base of the same science...

...It is time to rewrite the encyclopedias, histories and text-books on international law in accordance with these facts which disinterested scholars like Brown Scott and Kosters have made available for all the world...

...Something of a clew to the whole truth is found in the Encyclopaedia Britannica (latest edition) where we read: "The value of his [Grotius's] work, though not the first attempt to ascertain the principles of jurisprudence, went far more fundamentally into the discussion than anyone had done before...

...Indeed, it can be said that the immense reputation which Suarez rightly enjoys among persons interested in the theory and practice of law, international as well as municipal, is due to his analysis of these three branches of jurisprudence, which had perplexed his contemporaries and his predecessors, but which do not need to perplex us of today if we only take the trouble to thumb the pages of the treatise, De Legibus ac Deo Legislatore...

...Grotius was more generous in his appreciation of Vitoria...

...Scott, "is, with trifling additions, what it was when it left the hands of Vitoria, Suarez and their countrymen between them...

...Coleman Phillipson, one of the most recent English writers, declares: "No writers deserve more of the world than a group of Spanish scholars who, endowed with logical acumen, legal spirit, remarkable impartiality and signal independence of opinion, analyze some of the fundamental questions of international law...

...for the Suarezian influence was much greater than these few references would indicate...

...The marvel is that there are only four...

...And yet M. Robert Fruin, professor of national history in the University of Leyden, remarks that Grotius praises Vitoria "but with less gratefulness than I should have expected...

...Instead of regarding Vitoria and Suarez as the mere precursors of Grotius, we must rank the "Miracle of Holland" as their follower, both in time and thought...

...The writer earnestly hoped so...

...He would have been the last to desire or effect a secularization of law such as we have seen in modern times...

...This represents what we may call current recognition in scholarly circles of a fact which seems to elude the makers of encyclopedias and text-books...

...Summing up the discussion, Dr...

...154, J. Cordesio) in him one of the great theologians and a profound philosopher and Mackintosh considers him one of the founders of international law...

...From this one might suspect that others had written on the subject before Grotius, but unless the reader knew enough to look under Suarez he would probably miss the following: "In his extensive work, Tractatus de Legibus ac Deo Legislatore, he is to some extent the precursor of Grotius and Samuel Pufendorf...

...So eminent and impartial an authority as J. Kosters, Judge of the Supreme Court of the Netherlands and former professor on the law faculty of Groningen, is not backward in acknowledging this...

...Although a Protestant in name and fame, his sympathies were Catholic and the last researches of Pastor reveal that Grotius may have died in communion with the Church...

...That system of jurisprudence which we today prefer to call international law," writes Dr...

...in 1612, Suarez expressed his views on the law of nature, municipal or civil law, the law of the state or nation and the law of nations...

...J. Kosters, in his Fondements du Droit des Gens, that when Suarez laid down his pen in 1617, "We have come to the fulness of time...

...On October 10 of last year, at the meeting of the Institute of International Law at Briarclifi Manor, jurists from all over the world heard confirmatory evidence for this view from the internationally known authority, Dr...

...a hand is stretched out to gather the ripened fruit...

...For them Grotius is "the father of international law...

...Professor W. A. Dunning of Columbia University mentions (Political Theories from Luther to Montesquieu) that Sir John Fortescue, whom all common-law lawyers admire because of his De Laudibus Legum Angliae (1470) owed much to the Angelic Doctor: "The definition and classification of law is that of the Summa Theologica, and Sir John contributes obscurity rather than light when he undertakes to elucidate the thought of the master...

...At this same meeting the guests of honor were the President of Georgetown University, the Reverend W. Coleman Nevils, S. J., who paid a glowing tribute to Francisco di Vitoria, and the Reverend Edmund Walsh, S. J., famous for his services to the Church in Russia and Mexico...

...This view is part of the Protestant tradition and is quite in harmony with recent excursions into Nordic mythology...

...It is futile to represent such a character as the father of legal positivism...

...If this is not "poisoning the wells," it is at least drying them up...