tion of the western empire under Charlemagne once more united the greater part of the nations of Europe by the ties of common laws, religion, and ecclesiastical institutions, by the general use of the Latin language in all public transactions, and the majesty of the imperial name. From that time the Roman law was no longer considered as the particular law of the Romans living under the dominion of the Gothic sovereigns who had established themselves in the former provinces of the empire. It became henceforth the common law of those continental countries which were formerly Roman provinces, and was gradually extended to those parts of Germany beyond the Danube and the Rhine where Rome had never been able to establish her dominion." On the revival of the study of the civil law, which as we have already seen had become more and more merged in the jus gentium, it became identified with the jus gentium in the modern sense of that term as synonymous with international law. The professors of the famous school of Bologna were not only civilians, but were employed in public offices, and especially in diplomatic missions and as arbiters in the disputes between the different states of Italy. The Italian republics of the middle age sprung from the municipal constitutions of the Roman cities. which had been preserved under the dominion of the Lombards, the Franks, the Greek emperors, and the Popes.▾ In the controversy between the Lombard cities and the emperor Frederick Barbarossa, the first claiming their independence and the latter insisting on his regalian rights, the civilians were often appealed to as arbiters between the contending parties. Frederick, as the legitimate successor of Augustus and Charlemagne, laid claim to the entire despotic authority of the Roman emperors over their subjects. The confederated cities of Lombardy pleaded long possession and the acquiescence of Barbarossa's predecessors

as confirming their title to substantial independence. The diet of Roncaglia, held in 1158, determined that the regalian rights were exclusively vested in the emperor, except as to those cities which could show positive grants of exemption by imperial charters. This decision is supposed to have been influenced by the famous four doctors of Bologne, who have been accused of base servility and of betraying the liberties of Italy on this occasion. Be this as it may, the fact of their being consulted as judges and arbiters of sovereign rights shows the growing influence and authority of the civilians as the interpreters of the only science of universal jurisprudence then known.

Influence of the canon law

and the writ

casuists.

From this period the cultivation of the science of the jus gentium was considered as the peculiar office of the civilians throughout Europe, even in those countries which had ings of the only partially adopted the Roman jurisprudence as the basis of their own municipal law. The authority of the Roman jurisconsults was constantly invoked in all international questions, and was not unfrequently misapplied as if their decisions constituted laws of universal obligation.w The Roman law infused its spirit into the ecclesiastical code of the Romish church; and it may be considered as a favorable circumstance for the revival of civilization in Europe, that the interests of the priesthood, in whom all the moral power of the age was concentrated, induced them to cherish a certain respect for the rules of justice. The spiritual monarchy of the Roman pontiffs was founded upon the want of some moral authority to temper the rude disorders of society during the middle age. The influence of the Papal authority, though sometimes abused, was then felt as a blessing to mankind: it rescued Europe from total barbarism; it afforded the only asylum and shelter from feudal oppression. The compilation of the canon law under the patronage of Pope Gregory IX., contributed to diffuse a

Grotius, de J. B. ac. P. Proleg. s. 53-55.

Soto.

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 to the confines of the true science of ethics. The universities of Spain and Italy produced, in the sixteenth century, a succession Victoria and of laborers in this new field. Among these was Francis de Victoria, who flourished as a professor at the university of Salamanca about the middle of that century, 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," 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 favor. It has been 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, a title universally regarded in that age as giving a legitimate right to property in human beings. jure gentium, especially as to infidel barbarians; but only that he condemned that system of kidnapping, by which the Portuguese traders seduced the natives to the coasts

under fraudulent pretences, and forced them by violence on board their slave ships.

Saurez.

To the above names may be added that of Francisco Saurez, 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 his 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 commonly called the law of nature and the conventional rules of intercourse observed among nations. "He first saw," says Sir J. Mackintosh, "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 of the Christian nations of Europe and America.y The Relectiones Theologica of Francis de Victoria is a book which has become remarkably scarce, although it passed through at least six editions, from the first edition ologica. published at Lyons in 1557, to the latest published at Venice in 1626. It consists of thirteen relections, as the author calls them, or dissertations on different subjects treated as questions of casuistry. Two of these, the fifth entitled De Indis, and the sixth De Jure Belli, relate to subjects of international law.

"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 consciences, until they manumit these slaves, however unable they may be to pay ransom." (Soto, de Justitia et Jure, lib. iv. Quæst. ii. art. 2.)

› Mackintosh, Progress of Ethical Philosophy, sect. 3, p. 51.

Francis de Victoria, Relectiones The

The fifth Relection enumerates the various titles by which the Spanish assumption of sovereignty over the new world and its inhabitants had been vindicated. The author asserts the natural right of the Indians to dominion over their own property and to sovereignty over their own country. He denies the assertion of Bartolus and the other civilians of the school of Bologna that "the emperor is lord of the whole world," or that the pope could confer dominion over those parts inhabited by infidel barbarians, on the kings of Spain. He rests their title on what he calls the right of natural society and intercourse as authorizing the Spaniards to sojourn and trade in those parts of the world without injuring the native inhabitants. The refusal of hospitality and permission to trade he holds to be a just ground of war, which again might lead to the acquisition of sovereignty through the right of conquest confirmed by voluntary cession. He denies the right of making war upon the infidel natives for refusing to receive the gospel, but asserts that they might be constrained to allow its being preached to those who wished to hear, and prevented from persecuting the new converts. At the same time he seems conscious that this license might be abused by his countrymen, and therefore strives to limit it by tempering their zeal with mercy, and prohibiting all violence which under the pretext of religion, might minister to their avarice and other worldly passions.

The sixth Relection treats exclusively of the laws of war, and examines the four following questions. 1. Whether Christians may lawfully engage in war? 2. In whom the authority of declaring and carrying on war resides? 3. What are causes of just war? 4. What may lawfully be done against an enemy in a just war?

Upon the first question, Victoria holds that Christians may lawfully engage in defensive war, repel force by force, and recapture their property taken by the enemy. They may even engage in offensive war, which he defines to be that in which compensation is sought for injuries re