Note 27 — TRANSLATOR’S INTRODUCTION
Mary Campbell Smith translation
See Maine’s Ancient Law, pp. 50-53: pp. 96-101. Grotius wrongly understood “Jus Gentium,” (“a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various Italian tribes”) to mean “Jus inter gentes.” The Roman expression for International Law was not “Jus Gentium,” but “Jus Feciale.”
“Having adopted from the Antonine jurisconsults,” says Maine, “the position that the Jus Gentium and the Jus Naturæ were identical, Grotius, with his immediate predecessors and his immediate successors, attributed to the Law of Nature an authority which would never perhaps have been claimed for it, if “Law of Nations” had not in that age been an ambiguous expression. They laid down unreservedly that Natural Law is the code of states, and thus put in operation a process which has continued almost down to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the unassisted contemplation of the conception of Nature. There is, too, one consequence of immense practical importance to mankind which, though not unknown during the early modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed. If the society of nations is governed by Natural Law, the atoms which compose it must be absolutely equal. Men under the sceptre of Nature are all equal, and accordingly commonwealths are equal if the international state be one of nature. The proposition that independent communities, however different in size and power, are all equal in the view of the Law of Nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age. It is a doctrine which probably would never have obtained a secure footing at all if International Law had not been entirely derived from the majestic claims of Nature by the Publicists who wrote after the revival of letters.” (Op. cit., p. 100.)