centuries; but the true era from which we must date the foundation of the great science, which is conversant with questions of right that concern the fellowship of nations, is the latter portion of the fifteenth century, one of the most remarkable epochs in the annals of legal science. This period has been appropriately termed by the Jesuit Andrês "the Golden Age of Jurisprudence;" and it is distinguished not merely by the completion, under the masterly hand of Cujacius, of the important work, which Alciatus of Milan had commenced in the preceding generation, of emancipating the Roman law from the verbal subtleties of the scholastic philosophy and the conflicting glosses of the earlier commentators, but also by the first systematic enunciation of rules, to which the intercourse of independent nations should be amenable.

No writer had hitherto treated expressly of that branch of jurisprudence, which was formally expounded in the following century under the novel head of the Law of Nations and of Nature. For the Law of Nations, in the received sense of the term, was in a great measure unknown to antiquity, and is not to be confounded with the Jus Gentium of the Roman Law. The Jus Gentium of the Romans was not a body of rules regulating the mutual intercourse of nations, but was that portion of Natural Law to which all mankind does homage, the least as feeling its beneficence, the greatest as not exempt from its control, and which has accordingly been incorporated into the domestic code of every nation. The earliest formal definition of this branch of law is to be found in the Institutes of Gaius, which were restored to light by the researches of Niebuhr within the last half century from amidst the archives of the Chapter

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Library in Verona; and that definition seems to have been approved, as it was adopted, by the compilers of the Institutes of the Emperor Justinian.

"Quod naturalis ratio inter omnes homines constituit, id apud omnes populos peræque custoditur, vocaturque Jus Gentium, quasi quo jure omnes gentes utuntur; et populus itaque Romanus partim suo proprio, partim communi omnium hominum jure utitur." Inst. 1. I. tit. II. § 1.

This formal definition harmonises in substance with the view of Cicero, who contrasts the Jus Gentium, which is common to all mankind as rational beings, with the leges populorum, or those rules of inunicipal jurisprudence which are special to each state, and which correspond to the Jus Civile of the Institutes. "Neque vero hoc solum naturâ, i. e. jure gentium, sed etiam legibus populorum, quibus in singulis civitatibus respublicæ continentur, eodem modo constitutum est, ut non liceat sui commodi causâ nocere alicui,”—(Off. 1. III. c. 5.) We must not, however, suppose that the Romans had not at any time any definite notions of international law. The Collegium Fetialium was not a mere heralds' college. It was the duty of that body to act as ambassadors as well as heralds, to advise the state in negotiations of peace or alliance, and to regulate the general intercourse of Rome with foreign nations. Niebuhr expressly styles them judges of international law; and there can be no doubt that they committed their decisions and forms of proceeding to writing, and thus constituted a written body of Fetial Law. We find Cicero accordingly justifying the formal surrender of Regulus, on the part of the Roman Senate, to the Carthaginians, on the ground that the war with the Carthaginians was a war with a rightful and lawful

enemy, with regard to whom the whole Fetial Law was in force, and there were many duties and rights in

common.

"Cum justo enim et legitimo hoste res gerebatur, adversus quem et totum jus fetiale, et multa sunt jura communia. Quod ni ita esset, nunquam claros viros senatus vinctos hostibus dedidisset."- Off. 1. III. c. 29.

The institution, however, of the Fetiales naturally fell into decay with the rapid extension of the Roman dominion. Rules of international conduct based upon reciprocity, had been lost sight of by the Roman people long before the Republic had established its supremacy throughout the Italian peninsula, and the universal empire of the Cæsars left no place, as it furnished no occasion, for the application of any such rules.

When the Roman laws, therefore, such as they subsisted at the dismemberment of the Western Empire in the fifth century, were received in the several kingdoms of the Gothic, Lombard, and Carlovingian dynasties, they did not supply them with any explicit rules for the adjudication of questions of right between independent states or nations. Theological casuistry, however, was from time to time applied to the duties of the sovereigns; analogies of positive law were frequently invoked; and the Civilians, as being conversant with the most widely diffused system, took into their hands the adjudication of questions of public law. The doctors, for instance, of the famous school of Bologna had been called upon, from a very early period, to furnish arbitrators in the ever recurring disputes of the Italian Republics, and to supply jurists to direct the diplomacy of the Lombard cities in their contests with the German

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emperors; and where the analogy of positive or local law failed to supply a rule, or the gravity of the question demanded a more authoritative sanction, religion, in the person of the spiritual chief of the Western Church, was appealed to as supreme umpire, and a General Council had not unfrequently played the part of an European congress, and, by the side of ecclesiastical matters, regulated the temporal affairs of princes.

The geographical discoveries, however, which had marked the close of the fifteenth century, were calculated to give rise to a number of novel questions, and to awaken a conflict of claims requiring more than ever some settled standard of public law, as a rule of reference, whilst the religious revolution, which followed closely in the track of those discoveries, shook the authority of the canon law, one of the main pillars of European jurisprudence, and at the same time indisposed an influential portion of the civilised world to acknowledge any longer the Holy See as the oracle of the unwritten law, which should govern their international relations.

The authority of the Roman Pontiff, as the supreme arbitrator in temporal questions between states and princes, may be said to have reached its culminating point, when the Spaniards and the Portuguese referred to his decision their dispute as to the monopoly of the discovery of the sea-passage to the Indies, and compromised their quarrel by a partition of the New World into East and West. Alexander VI., who at that time occupied the papal chair, did not hesitate to sanction by a formal Bull this monstrous settlement, under the pretext of sending the soldiers of the Cross into the lands of the heathen. An imaginary line drawn from pole to pole was henceforth to

serve as a boundary between the territorial acquisitions of the two nations, who claimed to appropriate to themselves not merely the vast continents and numerous islands of the Indian seas, but even the extensive surface of ocean which divided them from the known parts of the world, and likewise the races of people who might be found to inhabit them.

The scandal given by this extreme stretch of authority on the part of the See of Rome, coupled with the cruel and rapacious abuse of the Papal Donation by the Spaniards, provoked a champion from amongst the ranks of theological casuists to step forth in behalf of the native inhabitants of the newly discovered countries. It is to the honour of the Dominican Order, that one of their members was the first to protest against the asserted right of the Pope to grant away the lands of heathen nations to Christian princes. Franciscus à Victoria, a Dominican monk, began to teach at Valladolid in 1525, and subsequently as professor in the university of Salamanca. His doctrine may be gathered from a series of thirteen dissertations, published for the first time at Lyons in 1557, and entitled Relectiones Theologica, a book of remarkable scarcity, although it passed through four editions. The fifth of these dissertations entitled "De Indis," treated of the title of the Spaniards to the possession of the new world; and the sixth "De Jure Belli" discussed exclusively the right of war. In the former dissertation, Victoria maintained the right of the Indians to the exclusive dominion over their own country, and confronted directly the doctrine of Bartolus and the Bolognese school of jurists, that the Pope had the power of conferring on the kings of Spain the dominion over countries inhabited by pagan barbarians. This would have been too bold a thesis