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Studies in International Law

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Studies in International Law §axuH Uttiwwitg pitatg BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF ^ X891 hivj^^o ^//^//t;^ Cornell University Library JX2531.S91S98 Studies in internationai law, 3 1924 007 461 654 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007461654 STUDIES IN INTERNATIONAL LAW HOLLAND Benbert HENRY FROWDE, M.A. PUBLISHER TO THE UNIVERSITY OF OXFORD AND STEVENS A.ND SONS, LIMITED STUDIES IN INTERNATIONAL LAW THOMAS ERSKINE HOLLAND, D.C.L. OF Lincoln's inn, barrister-at-law ; chichele professor of international LAW and diplomacy, AND FELLOW OF ALL SOULS COLLEGE, OXFORD HON. LL.D. OF THE UNIVERSITIES OF BOLOGNA, GLASGOW, AND DUBLIN HON. PROFESSOR IN THE UNIVERSITY OF PERUGIA ; HON. MEMBER OF THE UNIVERSITY OF ST. PETERSBURG, OF THE JURIDICAL SOCIETY OF BERLIN, AND OF THE ACADEMY OF LEGISLATION OF TOULOUSE ; MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW O;tfor> AT THE CLARENDON PRESS LONDON AND NEW YORK: HENRY FROWDE ALSO SOLD BY STEVENS & SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON 1898 1?- T A. \'^'\j^o PRINTED AT THE CLARENDON PRESS BY HORACE HART, M.A. PRINTER TO THE UNIVERSITY PREFACE This volume has no pretensions to be anything more than is indicated by its title-page. It is a collection of such By-studies of special points as are incidental to the continuous exploration and exposition of any great depart- ment of knowledge. It is hoped that the papers here put together may be found to contain matter of permanent interest— diplomatic, personal, or bearing upon the history of opinion —which could not readily be found elsewhere. Most of them were originally delivered as lectures, and many have appeared, as will be seen, in various reviews, to the editors of which the author is indebted for permission to republish them. The "Studies" are now printed substantially as they were first written ; but they have been brought up to date, whenever this seemed desirable, by the addition of brief notes. They have also been roughly grouped, according to subject, under the several heads of " The Law of War," " Illustrations of the System of International Law," "The " Eastern Question," and " Biographical Sketches." T. E. H. Oxford, Nov. 2, 1898. CONTENTS PART I THE LAW OF WAR PACE I. Alberico Gentili I Appendix— 1. The Gentili family 24 2. Date of birth 27 3. Letters to the Earl of Leicester 28 4. A letter to Sir John Benett 29 5. His will 30 6. Date of death and place of burial 31 7. Epitaph 32 8. List of writings 33 9. Revived interest in Gentili 37 II. The Early Literature of the Law of War ... 40 III. The Brussels Conference of 1874, and other Diplomatic Attempts to mitigate the Rigour of Warfare . 59 IV. The Progress toward a Written Law of War . 79 V. The Bombardment of Open Coast Towns .... 96 VI. International Law in THE War BETWEEN Japan AND China 112 vn. Pacific Blockade 130 — CONTENTS PART II ILLUSTRATIONS OF THE SYSTEM OF INTERNATIONAL LAW PAGE VIII. Recent Diplomatic Discussions, as Illustrations of the System of International Law .... 151 IX. The Literature of International Law in 1884 . 168 X. International Law and Acts of Parliament . 176 PART III THE EASTERN QUESTION XI. The Treaty Relations of Russia and Turkey, 1774-1853 201 Tables of Treaties 223 XII. The' Execution of the Treaty of Berlin .... 226 XIII. Bulgaria, Greece, and the Treaty of Berlin . 251 XIV. International The Position of the Suez Canal . 270 Additional Note 287 PART IV BIOGRAPHICAL SKETCHES XV. Notices necrologiques sur quelques Membres Anglais DE l'Institut de Droit International : Mountague Bernard 294 Robert Phillimore 300 William Edward Hall 302 Travers Twiss 305 INDEX 309 ALBERICO GENTILH A PECULIAR interest attaches to the study of International Law at Oxford, from the fact that the history of the science has so many points of contact with the annals of the University. The very name by which it is commonly known is due to a suggestion of one of our Regius Professors ^ ; some of its most important doctrines have been elaborated by a succession of Oxford-bred civilians ; the most eminent judge who ever presided in a prize court was a typical Oxford man^; and I need hardly remind you of the services rendered both to his University and to his country at large by that accomplished master of the Law of Nations *, whose place here it is my difficult, though honourable, task to attempt to fill. I propose, however, to-day to speak of an earlier luminary than any of these ; of one, indeed, who has some claim to ' An Inaugural Lecture delivered at All Souls College, November 7, 1874, London, Macmillan & Co., 1874 : translated into Italian, with additions by the author, by Count Aurelio Saffi, Roma, Loescher & Co., 1884. 2 Richard Zouche. ' Lord Stowell. * Mountague Bernard. B 2 ALBERICO GENTILI dispute with Grotius himself the title of " the father of " International Law." It is just conceivable that a Grotius might have sprung into being had Victoria, and Soto, and Gentilis never lived ; but the actual Grotius entered into the labours of these men. Nor is his greatness lessened, though it is partly accounted for, by this admission ; any more than the fame of Shakespeare is dimmed by our knowledge of the existence of Peele, and Greene, and Marlowe. Grotius confesses his debt to Gentilis, though in words which hardly suggest its full extent. " Albericus Gentilis," he says, " cuius dihgentia sicut alios adiuvari posse scio, et " me adiutum profiteor ^." In point of fact, the general scheme of the immortal work of Grotius is taken from that of his predecessor, and both works rest upon the same conception of natural Law. The finished picture has, however, consigned the sketch to oblivion, and the merits of the earlier jurist by no means receive the recognition which they deserve. In order to a just estimate of the value of the labours of Gentilis, it is necessary to be acquainted with his place in history. The accessible information upon this subject is, however, at once so meagre and so inaccurate, that I have thought it worth while to offer to the University of which he was once a principal ornament, but in which his memory has now wellnigh perished, some account, from authentic sources, of his not uneventful life. The biographical dictionaries have generally been con- tent to reproduce such statements with reference to Albericus as are contained in an academical oration delivered in honour of his brother Scipio ^. But much may also be gleaned from allusions scattered up and down in the innumerable books which were written by the two ' De I. B. et P., Prolegomena, § 38. ^ Piccarti Laudatio funebris, Norimbergiae, 1617, shortly cited in the notes to this lecture as Laudatio. HIS FAMILY 3 brothers, and much from contemporary literature. From the last-mentioned source more may doubtless be derived than I have had leisure to discover. The name GentiH was borne by two noble Italian families, distinguished respectively as the " Red " and the "White" families \ To the former of these belonged Matteo Gentili, a physician settled at Castello di San Ginesio, a small but ancient town in the march of Ancona ^. He was a grave and stern man *, devoted to science, but not sufficiently in advance of his age to be prevented from discussing the question whether or no diseases are the work of demons *. His wife, Lucrezia °, bore him seven children, of whom the eldest, Alberico, and the youngest but one, Scipio, are known to fame. Alberico was born January 14, 1552", and was in due course sent over the Apennines to the neighbouring University of Perugia'. It so happens that the aspect which the city must have presented during his student days is made known to us by a bird's-eye panorama of it, taken just at that time. " Old College," " New College," and the then recently founded "Collegium Bartolinum," are represented in this curious print*. The University ^ On the Gentili family see Appendix I. ^ Memorie istoriche delta terra di San Ginesio, datt' Abate T. Benigni, in Colucci, Delle Antichita Picene, Fermo, 1786-94, torn, xix, cf. ii, V, vii, xxiii ; G. B. Rampoldi, Corographia dell' Italia, 1834, s. v. Albericus makes some exaggerated claims on behalf of his birth- place in his De Armis Romanis, lib. ii. c. 5 ; cf. Colucci, Antichita Ascoline, Fermo, 1792. ^ " ludicio maturo coctoque homo, gravitate severa, et prisci illius aevi sine cerussa et similagine huius saeculi." Laudatio. * Scip. Gentilis, Apol. Apul. p. 260. ° By birth Petrelli. See Appendix I. * See Appendix II. ' He began law study fourteen years before 1583. Gudii, Epistolae, P- 135- « See Braun et Hohenbergius, Civitates Orbis Terrarum, 1576. B 3 ; 4 ALBERICO GENTILI had then been established nearly three centuries \- and had been fortunate in a succession of eminent teachers. Bartolus, the greatest name of the " Scholastic," or second, school of Jurists, had been professor there ; and was succeeded by a pupil of whom it was said : Qui Baldum iuris negat accendisse Jucernam Ille potest medio sole negare diem". Gentilis boasts that the honour of the Law Faculty of Perugia had been well maintained since the days of these great men, and he gives the names of his own teachers of whom Rinaldo Rodolfini was the most famous ^- Thanks to the industry of local archaeologists *, we have the fullest information as to the history of the University, its statutes, and the succession of its professors.
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