War and Peace : Alberico Gentili and the Early Modern Law of Nations [1 ed.] 9789004426030, 9789004345249

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War and Peace

Legal History Library volume 37

Studies in the History of International Law Series Editor Randall Lesaffer KU Leuven and Tilburg University Editorial Board Tony Carty (Tsinghua University) Peter Haggenmacher (Institut de Hautes Études Internationales Genève) Martine Julia van Ittersum (University of Dundee) Emmanuelle Tourme Jouannet (Sciences Po Law School) Lauri Mälksoo (University of Tartu) Anne Peters (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) James Q. Whitman (Yale University) Masaharu Yanagihara (Open University of Japan)

volume 14

The titles published in this series are listed at brill.com/shil

Portrait of Alberico Gentili (1552–1608), painted by Domenico Bruschi (1810–1910) in 1896, Aula consiliare, Provincia di Macerata. Courtesy of the International Centre of Gentilian Studies.

War and Peace Alberico Gentili and the Early Modern Law of Nations

By

Valentina Vadi

leiden | boston

Cover illustration: Painting of the Spanish Armada in the Strait of Dover, 1588, Dutch School. The painting shows King Philip II of Spain’s attempt to invade England in 1588. Made up of 150 ships, the Spanish fleet was the largest navy in Europe and Philip II considered it invincible. © National Maritime Museum, Greenwich, London. Library of Congress Cataloging-in-Publication Data Names: Vadi, Valentina, author. Title: War and peace : Alberico Gentili and the early modern law of nations / by Valentina Vadi. Description: Leiden ; Boston : Brill Nijhoff, 2020. | Series: Studies in the history of international law ; vol.14 | Includes bibliographical references and index. Identifiers: LCCN 2019059237 (print) | LCCN 2019059238 (ebook) | ISBN 9789004345249 (hardback) | ISBN 9789004426030 (ebook) Subjects: LCSH: Gentili, Alberico, 1552-1608. | International law--History--16th century. Classification: LCC KZ2087 .V33 2020 (print) | LCC KZ2087 (ebook) | DDC 341--dc23 LC record available at https://lccn.loc.gov/2019059237 LC ebook record available at https://lccn.loc.gov/2019059238

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 1874-1793 ISBN 978-90-04-34524-9 (hardback) ISBN 978-90-04-42603-0 (e-book) Copyright 2020 by Valentina Vadi. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. For parts of this publication that are designated Open Access, additional rights are granted in the accompanying CC license. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

To my family

∵

Contents Foreword  XIII David Sugarman Foreword  XIV Ana Filipa Vrdoljak Preface  XVI Acknowledgments  XVIII List of Illustrations  XXI Abbreviations  XXII Note on Terminology and Translations  XXIV 1 The Varied Fortunes of Alberico Gentili  1 1.1 Introduction  1 1.2 Methodological Framework  5 1.3 Chapter Plan  16 1.4 The Fame and Fortunes of Alberico Gentili  20 1.5 The State of the Art  29 1.6 Key Challenges  34 1.7 Conclusions  38 2 The Adventurous Life of Alberico Gentili  41 2.1 Introduction  41 2.2 The Early Years in San Ginesio  47 2.3 Studying Law at the University of Perugia  50 2.4 The Italian Reformation  54 2.5 Gentili’s Religious Belief  59 2.6 Fleeing to London  68 2.7 The Oxonian Years  75 2.8 Family Life  83 2.9 Advocate at the Admiralty Court  85 2.10 Conclusions  88 3 Gentili, International Law, and the Humanities  91 3.1 Introduction  91 3.2 The Sixteenth-Century Revolution in the Methodology of Law  96 3.3 From Mos Gallicus and Mos Italicus towards the Usus Modernus  104 3.4 Gentili’s Sources  108 3.5 Gentili’s Method  115 3.6 Gentili and the Humanities  123 3.7 The Gentilian Sonnets  132

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3.8 Debating Theatre in Elizabethan England  135 3.9 Dialectical Antinomies  142 3.10 Conclusions  148 4 Gentili and the Law of Nations  151 4.1 Introduction  151 4.2 The Founder(s) of International Law  155 4.3 The Notion of International Community  157 4.4 The Notion of Ius Gentium  159 4.5 Diplomatic Law  167 4.6 The Settlement of International Disputes  179 4.7 The Secularization of Legal Theory  181 4.8 Final Remarks  188 5 Gentili and the Law of War  192 5.1 Introduction  192 5.2 De Iure Belli  199 5.2.1 Defining War  203 5.2.2 The Causes of War  212 5.2.3 Neutrality  228 5.2.4 The Ius in Bello  233 5.2.5 The Ius Post Bellum  239 5.3 Freedom of Religion  247 5.4 Preventive War  254 5.5 The Balance of Power  263 5.6 Critical Assessment  266 5.7 Conclusions  270 6 Gentili and the Law of the Sea  273 6.1 Introduction  273 6.2 The Sea: Between Freedom and Sovereignty  278 6.2.1 The Freedom of the High Seas  279 6.2.2 The Territorial Sea  283 6.2.3 Impact  288 6.3 The Freedom of Communication, Movement, and Commerce  291 6.3.1 The Freedom of Communication  292 6.3.2 The Freedom of Movement  294 6.3.3 The Freedom of Commerce  295 6.4 Piracy and Privateering  302 6.5 Advocacy at the High Court of Admiralty  315 6.6 Critical Assessment  322 6.7 Conclusions  326

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7 Gentili and the Injustice of Empire  329 7.1 Introduction  329 7.2 Cultural Diversity and the Law of Nations  341 7.2.1 The Challenge of Cultural Diversity  344 7.2.2 Slavery and Freedom  350 7.2.3 Gross Violations of Natural Law  355 7.2.4 Critical Assessment  360 7.3 The (Il)legitimacy of European Expansion  362 7.3.1 Discovery  364 7.3.2 Occupation  366 7.3.3 Ius Praedicandi  369 7.3.4 Freedom of Movement  371 7.3.5 Just War  372 7.3.6 Converging Divergences  375 7.4 The Roman Model: Empire or Commonwealth?  376 7.4.1 The Wars of the Romans  379 7.4.2 Diverging Interpretations  382 7.4.3 International Law and Empire  386 7.5 The Regales Disputationes  389 7.5.1 The Emergence of Absolutism and the Royal Disputations  392 7.5.2 Conceptualizing Sovereignty  398 7.5.3 The Royal Prerogative  402 7.5.4 Taming the Leviathan?  409 7.5.5 Critical Assessment  413 7.5.6 Epilogue: Gentili and Hobbes  423 7.6 Critical Assessment  431 7.7 Conclusions  443 8 Alberico Gentili and Hugo Grotius  450 8.1 Introduction  450 8.2 Comparing Gentili and Grotius’ Respective Works  452 8.3 Diverging Writing Styles  456 8.4 On Method  460 8.5 Converging Arguments?  472 8.6 Critical Assessment  487 8.7 Conclusions  493 Conclusions  496 Bibliography  505 Index  558

Foreword Periodically a work of history is published that transforms our appreciation of a field, an individual, a body of ideas, an institution or a period in ways that are likely to be the benchmark for, and guide to, research and scholarship for many years to come. War and Peace—Alberico Gentili and the Early Modern Law of Nations is such a work. It critically assesses the existing scholarship and, on the basis of further research and both profound theoretical and pragmatic reflection, reconstructs the interpretative framework within which the historical record is viewed. Professor Vadi’s richly detailed and astonishingly informative monograph seeks to reinterpret the history and theory of international law by focusing on the contribution to international law of Alberico Gentili (1552–1608), the sixteenth-century Italian émigré, legal scholar, Regius Professor of Civil Law at the University of Oxford, and practicing lawyer. It is more than an outstanding study of the life, ideas, and times of a canonical figure, providing us with a clearer understanding of the classic texts, and a powerful case for continuing importance and relevance of Gentili’s work. It is also an intellectual provocation to anyone interested in the history and current state of international law. This ground-breaking volume is essential reading for anyone seeking to plumb and make sense of the antecedents of international law. With international law experiencing a period of turbulence and challenge, there could be no better time to be reminded of how earlier crises shaped today’s legal, political, and cultural landscapes. The impact of Professor Vadi’s writing is heightened by the clarity of exposition, the lively and engaging nature of the narrative, the judicious use of jargon, and its care in assessing the attitudes and actions of past historical ­actors—all delivered with a nice sense of the paradoxical. While there is much research and insight (including the use of literary, legal, and historical sources, some of which are recent and important archival discoveries), Professor Vadi also invites readers to regard her scholarship as tentative and to make up their own minds. Her goal is to conduct a conversation. It is my belief that the appearance of this volume will enable that conversation to be held more fully than hitherto. David Sugarman, F.R. Hist. S. Professor Emeritus of Law, Lancaster University Law School, UK; Senior Associate Research Fellow, Institute of Advanced Legal Studies, School of Advanced Studies, University of London

Foreword It is a honour to offer these opening words for this book prepared by Professor Valentina Vadi over many years. The realisation of this work has been a labour of love. The resulting book is an important contribution to our understanding of the formation of modern international law in its earliest years, the role of Alberico Gentili in this endeavour, and the influence of his milieu and its many vicissitudes upon him and his work. This generous, humane, and elegantly written book brings this man, his work, and world to life for us across five centuries in infinite dimensions and vivid colour with the critical eye of a scholar. What relevance then does an Italian émigré lawyer working in England ­during the first Elizabeth age hold for us today during the maturity of the second Elizabethan age? In this moment, a principal reason sounds out clearly amongst the din of our times. The story narrated in this treatise contributes to the more general narrative on the contribution of refugee scholars to the making of international law. Fleeing religious persecution in his own country, Gentili sought and received refuge in England. No doubt reflective of his own learning, skills, adaptability, and resilience, he entered the highest echelons of English legal society holding the Regius Chair in Civil Law at Oxford and practicing at the Inns of Court. At a time when England was facing significant threats from abroad and political and religious instability within, it nevertheless opened its doors to people from other countries. It has happened so often and in so many different places in the world and throughout history that it cannot be a coincidence that places that have welcomed strangers – especially émigrés fleeing persecution – have flourished. Why is this? Perhaps the nature of the person who is the subject of this monograph offers us one explanation. Gentili embodied a sameness and difference as a legal scholar that informed and enriched his contribution to the academy in his adopted country. His proficiency in Latin, a common language of learning and the ruling class, and his attendant knowledge of Roman law, which informed the legal systems of many European countries, meant that his skills were eminently transferable. Yet, Gentili brought with him to England a diversity of training, experience, and outlook that made him distinguishable and enabled him to enrich its (and our own) understanding of the teaching and practice of international law. This sameness and difference were fundamental drivers of his contributions to the development of modern international law at a significant moment in human history.

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The successful realisation of this book is due to its author’s painstaking i­ nvestigation of international legal history and theory. It is also due to her linguistic skills together with her education and learning of law in many countries beyond her own that is today enriching our understanding of the everevolving field of international law. Ana Filipa Vrdoljak, PhD Professor of Law and UNESCO Chair in International Law and Cultural Heritage at the Faculty of Law, the University of Technology, Sydney, Australia.

Preface This book aims to add to the growing literature on the history of international law, by focusing on Alberico Gentili (1552–1608) and his contribution to the early modern law of nations. As a religious refugee, Alberico Gentili was a quintessential outsider in early modern European society and yet, through his position as a Regius Professor at the University of Oxford, he was introduced to the heart of Elizabethan society. His life represents a history of success in the face of tremendous challenges. He lived in extraordinarily difficult times of religious wars and political persecution, where political absolutism and religious intolerance were widespread. His approach to religious tolerance and cultural diversity, his idealism and political pragmatism constitute the principal reasons for the continued interest in his work. Gentili contributed to the development of international law as an autonomous discipline, elaborating key legal concepts such as freedom of religion, the freedom of commerce, and the freedom of the seas, while also sanctioning humanitarian intervention, and condemning the atrocities of war. Gentili’s work is important for historical record, but also for better analysing and critically assessing the origins of international law, its current developments, as well as for elaborating its future trajectories. Gentili discussed issues that were topical in his time and remain so today, including the clash of civilizations, the conduct of war, and the use of natural resources. Knowledge of his work can contribute to ongoing debates on the maintenance of international peace, international justice, and the promotion of peaceful and prosperous relations among nations. Fundamental tenets of the Gentilian system include the concept of the balance of powers, international solidarity, the protection of cultural diversity and religious freedom, and the protection of civilians during armed conflict. Yet, Gentili’s life and work present certain paradoxes. His life was eventful: he was a religious refugee and yet he had connections with the highest echelons of Elizabethan society. Although he was a prolific author who was held in high esteem during his lifetime, he is not as well-known to international legal scholars as one might expect. His work has also inspired varied assessments: he is either seen as one of the founders of international law, a great intellectual, and a humanizer of the law of nations or as a conservative, a Machiavellian, and a supporter of military intervention in cases where the outcome of such intervention is ambiguous at best and noxious at worst. His style presents other paradoxes. If some of his passages are complex and obscure, other pieces are simple and clear. How can his contribution to the history and theory of international law be evaluated? To date there has been no comprehensive and

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­ pdated study addressing these enigmas, covering how international law deu veloped into an autonomous discipline and Gentili’s seminal contribution in this respect. This book aims to fill this gap in the current literature. This is not a biographical work; rather, it is a treatise on the history and theory of international law that aims to deepen our understanding of Gentili’s contribution to the emergence of the early modern law of nations by analysing key themes of his work. On the one hand, I have tried to contextualize Gentili’s life and work in its own political, cultural, and historical context, in order to properly understand it. This has required extensive archival investigation and bibliographical research in a range of libraries throughout Europe and the United States, and an attempt at full immersion in the sixteenth-century political, cultural, and historical scene. On the other hand, as a specialist in public international law, I have tried to highlight the original intellectual contribution that Gentili made to the field of the early modern law of nations. While more studies will be needed to appreciate Gentili’s contribution to other fields of studies, such as private, public, and civil law, this book aims to explore Gentili’s contribution to the law of nations and focuses on the specific contributions Gentili made to specific areas of ­international law, such as the law of the sea, the law of war, and diplomatic law, rather than examining each of the Gentilian works separately. I chose this ­approach, because in my view, Alberico Gentili offered an original, thought-­ provoking, sustained, and relatively consistent theory of the emerging law of nations. Although he relied on authorities, precedents, and examples, his solutions to contemporary political problems were decidedly his own. My focus has been on identifying, restoring, and transmitting his international legal thought, and understanding it in the light of his political, historical, and cultural context. This book demonstrates that his theory influenced Elizabethan politics, and thus indirectly shaped the emerging law of nations. At the same time, state practice also sensibly diverged from his theory. This study shows that he was neither as conservative as his critics argue, nor as liberal as his admirers claim; rather, he stands out as a pivotal scholar who responded to the challenges of the early modern period, had a role in the evolution of international law, and contributed to the rise of the discipline as an ­independent field of study. I have also tried to show how his theory can have (and has had) contemporary relevance. Such observations, however, are ­intended to be point of departure for further investigation and Gentili’s relevance for contemporary international law may well constitute the subject of a separate treatise. May the reader forgive any imperfections the book may contain and enjoy reading it! V.V.

Acknowledgments Writing this book would not have been possible without the input of many friends and colleagues. I thank Antonietta Di Blase, Francesco Francioni, Alisdair Gillespie, Vaughan Lowe, Petros Mavroidis, Amanda Perry Kessaris, Daniel Sarooshi, Hildegard Schneider, David Sugarman, and Ana Filipa Vrdoljak, for many inspiring conversations on international law and for their mentoring and support. I thank Tomer Broude, Guy Fiti Sinclair, Caroline Foster, Cerian Griffiths, Peter Haggenmacher, Randall Lesaffer, Lucas Lixinski, Peter Macalister-Smith, Makane Moïse Mbengue, Julian Davis Mortenson, Janne Nijman, Laura Venturini, Michael Weibel, and the two anonymous reviewers for generous comments and helpful suggestions on earlier drafts. The usual disclaimer applies. Gianfranco Borrelli, Antonietta Di Blase, Machteld Nijsten, and Tullio Scovazzi kindly provided me with copies of hard-to-locate publications and documents. I wrote part of this book while I was a Grotius Senior Research Scholar at the University of Michigan Law School. The scholarship gave me the time to refine and develop the arguments presented in the book. Therefore, I would like to thank that institution, their staff, and my temporary colleagues in Ann Arbor, for providing an ideal environment for writing, their warm welcome, and terrific support in my research. In particular, I would like to thank Isabella Krauter, Julian Davis Mortenson, Diane Nafranowicz, Francis Tom Temprosa, and Stephanie Wiederhold for stimulating conversations. The financial support provided by the Society of Legal Scholars’ Research Activities Fund is gratefully acknowledged. I reserve special gratitude for Luigi Lacchè, Professor of Legal History at the University of Macerata and the Director of the International Centre for Gentilian Studies, and Pepe Ragoni, Former Director of the same, for their warm welcome at the University of Macerata and at the Centre respectively. Both of them showed a dedicated interest in my work and provided many valuable ideas and insights. I particularly thank Pepe Ragoni for her encouragement and support, for receiving me despite the recent earthquakes, and for generously providing me with useful, interesting, and hard-to-find materials. The book was completed at Lancaster Law School. I thank the Law School of Lancaster University for supporting my research stays and visits across Europe and beyond as well as for providing a welcoming environment for conducting my research. I thank Agata Fijalkowski, Sophia Kopela, David Sugarman, James Summers, and Steven Wheatley at Lancaster University who, despite their own heavy commitments, have given me invaluable advice and encouragement since the inception of this project.

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While carrying out this study, I received kind and timely assistance from a number of librarians in Italy, the United Kingdom, France, and the United States. My thanks therefore to the staff of the Biblioteca Nazionale Centrale (BNC), the Biblioteca di Scienze Sociali, and the Library of the European University Institute, all in Florence, as well as the Biblioteca Mozzi Borgetti in Macerata, Italy. The BNC, which holds the first editions of several of Gentili’s volumes, kindly allowed me to have access to the same. Special thanks also go to the staff of the Berenson Library of the Harvard University Center for Italian Renaissance Studies and the Library of the Istituto Nazionale di Studi sul Rinascimento, both in Florence. I also thank the librarians of the Bodleian Libraries in Oxford, the Cambridge University Library, the Library of the Institute of Advanced Legal Studies, and the National Archives in London as well as the Lancaster University Library. At the Bodleian Libraries, I had access to Gentili’s original manuscripts, a rich source of information about Gentili’s way of writing and thinking. I also thank the librarians of the Bibliothèque Interuniversitaire de la Sorbonne and the Bibliothèque Nationale de France, both in Paris, and, particularly, the librarians of the University of Michigan Law Library in Ann Arbor, Michigan. Parts of this book were presented at the Society of Legal Scholars’ Annual Conferences in 2016 and 2018, held at St Catherine’s College, University of Oxford, and at Queen Mary University of London respectively, as well as at the European Society of International Law’s Annual Conferences in 2017 and 2019, held respectively at the University of Federico II in Naples and at the University of Athens, Greece. Parts of this book were also presented at the roundtable of the American Society of International Law Interest Group on International Legal Theory on ‘New Perspectives in International Legal Theory’ that took place at the 2019 American Society of International Law Annual Meeting in Washington DC and at the 10th Anniversary Annual Conference of the Japan Chapter of the Asian Society of International Law, held at Meiji Gakuin University in Tokyo on 14 July 2019. Parts of this book were also presented at King’s College, University of London, and at the Universities of Newcastle, Leuven, Michigan, Sant’Anna School of Advanced Studies, and Trieste. I am grateful to Rosemary Auchmuty, Freya Baetens, David Harlan Cohen, Evan Criddle, Ioanna Gomula, Federico Ortino, Amanda Perry-Kessaris, Gwen Seabourne, Thomas Skouteris, Gerry Simpson, Ekaterina Yahyaoui Krivenko, and the participants of the conferences for their valuable input. The usual disclaimer applies. I am grateful to Randall Lesaffer, Director of the book series on the History of International Law at Brill, for welcoming my book in the series. I am deeply indebted to him for his valuable comments, mentorship, and guidance. I also

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thank Ester Lels, Jennifer Obdam, Chris Retz, and Wendel Scholma of Brill for accompanying this book from proposal to its publication, and Helen Aitchison for her helpful comments and suggestions on the manuscript. On a personal note, I am indebted to Lidia Sciaudone for her excellent scholarship. Thanks to her outstanding, exacting, and inspiring teaching of Latin more than two decades ago, I could read Gentili’s works in Latin. I am grateful to my husband, Gianluca, without whose loving support this work would not have been completed. I thank my daughter, Ester Susanna, for being like ‘the foam on the sea, which whitens the waves’, the clouds ‘which form and disperse in the clear sky; and … other light and wandering things’.1 I also thank my parents, Lidiana and Carlo, for being wonderful parents and extraordinary nonni. Finally, I dedicate this book to my family, for encouraging me in every possible way. V.V. 1 Umberto Saba, ‘Ritratto della mia Bambina’ [1920], Canzoniere, in Umberto Saba, Tutte le Poesie, A. Stara (ed) (Milano: Mondadori 1978) (‘Di tante parvenze che s’ammirano al mondo, io ben so a quali posso la mia bambina assomigliare. Certo alla schiuma, alla marina schiuma che sull’onde biancheggia … anche alle nubi, insensibili nubi che si fanno e disfanno in chiaro cielo; e ad altre cose leggere e vaganti’.)

Illustrations Frontispiece Portrait of Alberico Gentili, painted by Domenico Bruschi in 1896, Aula consiliare, Provincia di Macerata  Iv 1 Statue of Alberico Gentili, 1908, by Giuseppe Guastalla, San Ginesio  25 2  The Phoenix Portrait, circa 1575, Queen Elizabeth I, associated with Nicholas Hilliard, oil on panel, National Portrait Gallery  70 3  The Armada Portrait, circa 1588, Queen Elizabeth I, by an unknown English artist, on display at the Queen’s House, Greenwich  338

Abbreviations ACDF AD AJIL ASV BYIL BNC CISG CUP DBI EJIL EUM IB IBP ICJ ICLQ ILJ ILM ILR JIL LJ LR MS MSS NA NILQ NYU ODNB OJLS OUP SO SUNY UNCLOS UNTS UP VOC

Archivio della Congregazione per la Dottrina della Fede, Vatican City Anno Domini American Journal of International Law Archivum Secretum Vaticanum (Vatican Secret Archive), Vatican City British Yearbook of International Law Biblioteca Nazionale Centrale, Firenze Centro Internazionale Studi Gentiliani, San Ginesio Cambridge University Press Dizionario Biografico degli Italiani European Journal of International Law Edizioni Università di Macerata De Iure Belli De Iure Belli ac Pacis International Court of Justice International and Comparative Law Quarterly International Law Journal International Legal Materials International Law Review Journal of International Law Law Journal Law Review Manuscript Manuscripts National Archives Northern Ireland Legal Quarterly New York University Oxford Dictionary of National Biography Oxford Journal of Legal Studies Oxford University Press Sanctum Officium State University of New York United Nations Convention on the Law of the Sea United Nations Treaty Series University Press Vereenigde Oost-Indische Compagnie (United [Dutch] East India Company)

Abbreviations VVAA YIL WWI WWII

Various authors Yearbook of International Law World War I World War II

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Note on Terminology and Translations In the early modern period, personal names were not standardized. As noted by an eminent historian, ‘the spelling [of names] varies depending on the language of the document in which they appear. They often were spelled differently even in documents written in a single language, and sometimes in the same document’.1 For the sake of clarity and consistency, I chose to adopt the most common version of the names in the contemporary literature. In this manner, I chose to render Alberico Gentili using the Italian and English spelling of his name, rather than the Latin spelling (Albericus Gentilis) that he used in his treatises. For analogous reasons, I opted for the English spelling of Hugo Grotius, instead of the Dutch spelling of the same, given the prevalence of the former in the current literature. As noted by Professor Francesca Trivellato, ‘the mutability of names’ was a ‘tangible sig[n] of the multicultural dimension of the quotidian existence of these men and women’.2 The term ‘international law’ is of modern coinage. In the early modern period, the term ‘law of nations’ (ius gentium) commonly indicated the law governing relations among nations. Therefore, ‘avoiding anachronistic terms such as international … to describe [law] that existed before … modern nations … would clearly be ideal. However, due to overwhelming use in the … literature of such terms’, I will use the terms interchangeably.3 In particular, I will consider the terms ‘law of nations’ and ‘international law’ as synonyms and indicating ‘the law regulating relations between political entities’.4 This also seems appropriate because early modern scholars, including Alberico Gentili, started to use the concept of law among nations (ius inter gentes). While from a historical perspective, a number of theoretical and practical distinctions remain between the early modern law of nations and current international law,5 from a legal perspective, the law of nations is an early articulation of international 1 2 3 4

Francesca Trivellato, The Familiarity of Strangers (New Haven: Yale University Press 2009) x. Id. xi. Jordan Branch, The Cartographic State (Cambridge: CUP 2014) 18. Randall Lesaffer, ‘International Law and Its History: The Story of an Unrequited Love’, in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi (eds.) Time, History, and International Law (Leiden: Martinus Nijhoff 2007) 27–41 (highlighting that ‘international law is of all times and places and deserves to be the subject of historical enquiry, regardless of its relations to the modern law of nations and to current international law’.) 5 From a purely historical point of view, there are many differences between the ‘law of nations’ and ‘international law’. See Benjamin Straumann, Roman Law in the State of Nature (Cambridge: CUP 2015).

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law and we would not have the latter without the former. The idea of natural law, that partially overlapped with the early modern law of nations, has not entirely disappeared from contemporary international law; rather, it remains part of historiographical and theoretical inquiries into international law.6 I have tried to use plain English to make the Gentilian thought accessible; I have explained key concepts in English and inserted their correspondent Latin terms into parenthesis; in this manner, both the connoisseurs and scholars who are not proficient in Latin can enjoy reading the book with ease, appreciate the beauty of the Latin language, and develop their own thinking on this scholar and his work. I have tried to write a book that can ideally be read not only by experts in international legal history and theory, but also legal historians, international law scholars and practitioners, political scientists as well as interested readers. Gentili’s Latin was not pure classical Latin but a medieval version, full of Italian influences. For those Gentilian texts which have been translated from Latin into English, I principally relied on the Carnegie translations, but also consulted the original version in Latin, and slightly amended the English translation where appropriate. For those Gentilian works which have never been translated and the Gentilian manuscripts cited in the text, the translation is mine. I also translated a couple of Gentilian sonnets from Italian into English that have never appeared in this language before. More generally, I ­opted to use the Latin term ‘ius’ to indicate law, but also, occasionally ‘right’, instead of the anglicised ‘jus’ due to its prevalence in the sources. Although the word ‘privateer’ did not come into use until the seventeenth century, and was thus unknown to Elizabethans who rather used the words ‘pirates’ and ‘corsairs’ interchangeably, I retrospectively use the term ‘privateer’ to indicate forms of maritime plunder carried out by private parties authorized by states through letters of marque—in conformity with some reputed historiographical practice.7 I also use the term ‘intervention’ when discussing specific aspects of the Gentilian theory of war, even though the concept properly developed after the Congress of Vienna and Gentili generally used the notion of war instead. I prefer to use the concept of intervention in order to facilitate understanding.8 Finally, while early modern legal theorists did not use the term ‘system’, rather preferring alternative terms such as method (methodus), 6 Geoff Gordon, ‘Natural Law in International Legal Theory: Linear and Dialectical Presentations’ in Anne Orford and Florian Hoffmann (eds) The Oxford Handbook of the Theory of International Law (Oxford: OUP 2016) 279–305, 279. 7 Kenneth R. Andrews, Elizabethan Privateering (Cambridge: CUP 1964) 5. 8 For a similar approach, see Peter Haggenmacher, ‘Osservazioni sul Concetto di Diritto Internazionale di Gentili’, in VVAA, Alberico Gentili nel Quarto Centenario del De Jure Belli (Milano: Giuffrè 2000) 133.

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Note on Terminology and Translations

art (ars), and order (ordo),9 I use the concept of ‘system’ for indicating ‘a complex whole’. With regard to dates, when Pope Gregory XIII introduced the Gregorian calendar that we use today, Catholic countries moved their dates forward by ten days in October 1582. However, England and Wales did not adopt the New Style until 1751.10 Moreover, New Year’s Day was on March 25 in these countries.11 This meant that all dates between January 1 and March 24 belonged to the previous year, even though we would ascribe them to the following year under the New Style. I opted to not alter the dates as indicated in the original sources. Place names can be different from time to time. In referring to towns, cities, and regions, I retain the names that were most commonly used in Europe at the time and the sources I consulted. The United Provinces of the Netherlands, also sometimes referred to as the United Provinces, was a union of seven states (Zeeland, Holland, Friesland, Groningen, Utrecht, Gelderland, Overijssel, and Drenthe), which declared their independence from Spain in 1581. Until the peace treaty signed with Spain in 1648, it did not achieve uncontested recognition as an independent state. The term ‘Barbary Coast’ indicated the Berber coastal regions and cities of North Africa. The ‘East Indies’ (India Orientalis) corresponded to maritime Southeast Asia. The ‘West Indies’ (India Occidentalis) indicated the territories in the Americas. 9

Luigi Nuzzo, ‘Alberico Gentili Internazionalista tra Storia e Storiografia’, in Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli (Milano: Giuffrè 2009) 65–89, 89. 10 Giovanni Minnucci, Silete Theologi in Munere Alieno—Alberico Gentili tra Diritto, Teologia e Religione (Bologna: Monduzzi 2016) 34. 11 Id.

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The Varied Fortunes of Alberico Gentili Habent sua fata libelli.1

∵ 1.1 Introduction What are the origins of international law? Who shaped this field of study? When did international law emerge in its current form? In addressing these questions, the history of international law has come to the fore,2 attracting the growing attention of international law scholars, legal historians, and other interested readers. The history of international law has now become a booming field of study, gaining considerable momentum in the past decade.3 This book 1 Terentianus Maurus, De Litteris, Syllabis, Pedibus et Metris [iii AC] Chapter ii, Verse 1286, Laurentii Santenii and David Jacobus Van Lennep (eds.) (London: Bohn 1825) 57 (stating that ‘Pro captu lectoris habent sua fata libelli’. Literally the sentence means ‘The fate of books depends upon the understanding of their readers’, but the text if often translated more freely ‘Books have their own destinies’.). 2 On the history of international law, see e.g. Steven Jensen, The Making of International Hu­ man Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (Cambridge: cup 2016); Stephen Neff, Justice among Nations: A History of International Law (Cambridge, MA: Harvard University Press 2014); P.M. Dupuy and Vincent Chetail (eds.) The Roots of Inter­ national Law (Leiden: Brill 2014); Carlo Focarelli, Introduzione Storica al Diritto Internazionale (Milan: Giuffrè 2012); Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press 2010); Matt Craven, ‘Introduction: International Law and Its Histories’ in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi (eds.), Time, History and International Law (Leiden: Nijhoff 2007) 1–25; Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge: cup 2003); Ingo Hueck, ‘The Discipline of History of International Law—New Trends and Methods on the History of International Law’ (2001) 3 Journal of the History of International Law 194–217. Earlier studies include Arthur Nussbaum, A Concise History of the Law Nations (New York: Macmillan 1954) and Wilhelm Grewe, The Epochs of International Law [Epochen Der Völkerrechtsgeschichte, 1944] (Michael Byers trans) (Berlin/New York: De Gruyter 2000). 3 On the renaissance of interest in the history of international law, see Martti Koskenniemi, ‘Histories of International Law: Significance and Problems for a Critical View’ (2013) 27 Tem­ ple International and Comparative LJ 215–240, 215–216; Randall H. Lesaffer, ‘International Law and its History: The Story of an Unrequited Love’, in Craven, Fitzmaurice, and Vogiatzi (eds.), © VALENTINA VADI, ���� | doi:10.1163/9789004426030_002 This is an open access chapter distributed under the terms of the CC BY-NC-ND 4.0 license.

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contributes to the current debates on the history and theory of international law, focusing on the work of the sixteenth-century Italian émigré, legal scholar, and practicing lawyer, Alberico Gentili (1552–1608). A Protestant who lived in exile and Regius Professor of Civil Law at the University of Oxford, Gentili contributed substantially to the development of the law of nations. As European powers expanded overseas, Gentili and other early modern scholars addressed questions about the law applicable among empires, the concept of just war, and jurisdiction, among others.4 Gentili sketched out fundamental concepts such as those of the freedom of religion, freedom of the seas, and the freedom of commerce, while separating the law of nations from both theology and municipal law. Not only is his work historically relevant, but it is crucial to understand contemporary issues and ongoing debates about the maintenance of international peace and security, the conduct of war, and coping with the so-called ‘clash of civilizations’—that is, the theory that people’s cultural and religious identities will be the primary source of conflict in the post-Cold War world.5 Despite the remarkable success Alberico Gentili experienced during his lifetime, his works have been neglected for centuries.6 Only recently have Gentili’s life and works attracted the attention of scholars and practitioners.7 Why was Alberico Gentili forgotten for so long? Three main factors contributed to the general neglect of his work. First, he clashed with an influential religious and political power of the time: the Roman Catholic Church. As a result, he was

4

5 6

7

Time, History and International Law 27–41; Philip Allott, ‘International Law and the Idea of History’ (1999) 1 Journal of the History of International Law 1–21. On the colonial dimension of early modern international law, see, e.g., Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: cup 2001) 98–178 (chronicling international law’s origins in colonialism); Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: cup 2005) 13–28. Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon & Schuster 1996). Seminal studies on Gentili’s work include Thomas E. Holland, ‘An Inaugural Lecture on Albericus Gentilis’, in Thomas E. Holland, Studies of International Law (Oxford: Clarendon Press 1898) 1–39; Giuseppe Speranza, Alberico Gentili—Studi (Roma: Fratelli Pallotta 1876); Gesina H.J. Van Der Molen, Alberico Gentili and the Development of International Law—His Life, Work, and Times (Leyden: A.W. Sijthoff 1937); Gesina H.J. Van der Molen, Alberico Gentili and the Development of International Law: His Life, Work, and Times (2d ed., Leyden: A.W. Sijthoff 1968). For a pathbreaking study, see Diego Panizza, Alberico Gentili, Giurista Ideologo nell’Inghilterra Elisabettiana (Padova: La Garangola 1981). Since the establishment of the Centro Internazionale Studi Gentiliani (cisg) in San Ginesio, Italy, a number of edited volumes—the Atti delle Giornate Gentiliane—have been published under the aegis of the Center.

The Varied Fortunes of Alberico Gentili

3

condemned as a heretic and all of his works were put on the Index of forbidden books (Index librorum prohibitorum).8 Second, his way of writing could be challenging and obscure, even for his contemporaries.9 His prose was inspired and inspiring, but also impetuous and ambiguous. He presented his ideas through metaphors, historical and literary examples, often offering ambivalent, contrasting, and contradictory arguments. Not surprisingly, controversies persist over the meaning of his works,10 and he was accused of having a spirit of contradiction (studium contradicendi), often contradicting other scholars and, sometimes, himself.11 For instance, while critics have considered Gentili to be a ruthless Machiavellian—justifying absolutism and despotism at the expense of more democratic political systems—other scholars have emphasized his strenuous defence of freedom of thought and religion against theocracies and tyrannies alike. His anti-hegemonic stance inevitably made his work unpopular in the age of imperial expansion. Third, Gentili’s fame was overshadowed by that of Hugo Grotius (1583–1645), a Dutch scholar, who is often regarded as one of the founders of international law.12 Nowadays, three key reasons justify a renaissance of interest in Gentili’s work. First, focusing on the historical figure of Alberico Gentili and his work is both timely and important. Not only is his work of importance for historical record, but his contribution to the development of international law remains important in order to address ongoing debates on a number of international law matters including the maintenance of peace and security, the promotion of peaceful and prosperous relations among nations, as well as international justice. Several concepts that he used are not only of historical significance, but also of current relevance. For instance, his conceptualization of the law of nations as a distinct field of study separate from theology and domestic law, his vision of the international community as a cosmopolis, as the city of all, and 8

J.M. de Bujanda (ed.), Index Librorum Prohibitorum, 1600–1966 (Geneva: Librairie Droz 2002) 377 (including the following entry: ‘Gentili Alberico (1552–1608). Opera Omnia, Decr. 14 [December] 1602’). 9 See e.g. Andreas Wagner, ‘Lessons of Imperialism and of the Law of Nations: Alberico Gentili’s Early Modern Appeal to Roman Law’ (2012) 23 ejil 873–886, 875 (stressing that ‘as a matter of elaborate style, Gentili used irony and sarcasm, rhetorical questions, and all sorts of other devices amply’.). 10 Iosephii Aurelii De Ianuario, Respublica Iurisconsultorum (Lipsiae: apud Iacobum Schusterum 1733) 241 and 246 (calling Gentili a ‘master of absurdities and platitudes’ (O egregi­ us rerum absurdarum magister! O peritissimus artifex ineptiarum!)). 11 Guido Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’ (1938) 12 ­Annali della Facoltà Giuridica dell’Università di Camerino 215–248, 233. 12 On the key similarities and differences between the Gentilian and Grotian theories of the law of nations, see Chapter 8 below.

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his theory of freedom of religion and approach to cultural diversity as well as his political pragmatism constitute the principal reasons for the continuing interest in his work. Many of the problems found in early modern Europe resonate with pressing concerns of current world politics, including the rise of transnational religious movements, the so called ‘clash of civilizations’, the struggle for power and hegemony, humanitarian intervention, and the fate of refugees thus making Gentili’s legacy timelier than ever.13 Second, Gentili’s life represents a history of success in the face of tremendous challenges. Gentili lived in the so-called Iron century, a period of religious wars, clash of cultures, political absolutism, and religious intolerance. Persecuted by the Catholic Church because of his Protestant beliefs, Gentili fled his home country, travelled across continental Europe, then devastated by wars of religion, and reached England, which was also on the verge of a war against Spain and a civil war. Belonging to an influential network, he eventually became Regius Professor at the University of Oxford. Arguably, his eventful life made him a cosmopolitan scholar, sharpened his thought, and shaped his way of thinking. As competing religious, political, and cultural currents clashed in Gentili’s lifetime, a certain, perhaps deliberate, ambiguity makes his writings complex, controversial, and particularly intriguing. Third, as a Renaissance man, Gentili contributed to some of the major political, religious, and cultural debates of his time. Not only was he skilled in the humanities but contemporary Renaissance culture deeply shaped his legal thought. The influence of the humanities (humanae litterae) on his legal thought, and the influence of his legal thought on his literary theories has made his works appealing to various readers, including classicists, historians, and international law scholars. Against this background, this book aims to develop a solid understanding of, and position on, Alberico Gentili’s contribution to international law. Because Gentili’s work has been characterized by some ambiguities, this book adopts a rigorous international legal historiographic methodology to investigate the man and his work, as well as to understand his enduring legacy. In particular, the book uses a composite method of textual and contextual analysis.14 In short, not only does it carefully examine the text of the Gentilian works, but it also contextualizes such works in the political, cultural, and legal environment in which he lived, in order to map and critically assess the 13 14

Daniel H. Nexon, The Struggle for Power in Early Modern Europe (Princeton, NJ: Princeton University Press 2009) 13. Valentina Vadi, ‘At the Dawn of International Law: Alberico Gentili’ (2014) 40 North Caro­ lina jil and Commercial Regulation 131–164.

The Varied Fortunes of Alberico Gentili

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seminal contribution he made to the theory of the law of nations of his times and to illuminate the current relevance of his thought. Gentili’s thought is notoriously complex as he lived in complicated times. By unveiling the dialectical oscillations of the Gentilian theory between opposing poles, this work aims to provide the reader with the critical tools necessary to appreciate the complexity of the Gentilian opus against the vicissitudes of the sixteenth century. 1.2

Methodological Framework

The history of international law is a ‘hybrid discipline’ which bridges law (no­ mos) and time (chronos) and remains ‘a potential source of tension’ between international lawyers and legal historians.15 While ‘the field presupposes an interdisciplinary approach’,16 there are ‘differences of emphasis between what lawyers and legal historians want to know and how they portray the past’.17 Debates about the appropriate historiographic methodology for writing the history of international law have arisen, largely due to the underlying clash of cultures between international lawyers and legal historians.18 Historians and international lawyers are concerned with the past and present respectively. While legal historians seek to ‘understand the past on its own terms with all its complexities’,19 international lawyers examine history in order ‘to better understand current issues and trends’.20 Historians contextualize events, concepts, and individuals; consider the past a bygone period; and believe that the present should not affect reading of the past. Rather, they examine the past according to its own categories. In contrast, international lawyers aim to understand the present and to resolve current problems by looking to history. They are used to investigating the genealogy of given concepts across time and space.21 Most international lawyers focus on the history 15 16 17 18 19 20 21

Anthony Musson and Chantal Stebbings ‘Introduction’, in Anthony Musson and Chantal Stebbings (eds) Making Legal History: Approaches and Methodologies (Cambridge: cup 2012) 1–6, 4. Lesaffer, ‘International Law and Its History’, 41. Musson and Chantal Stebbings ‘Introduction’, 4. See generally Valentina Vadi, ‘International Law and its Histories: Methodological Risks and Opportunities’ (2017) 58 Harvard ilj 311–352. Craven, ‘Introduction: International Law and Its Histories’, 16. Lesaffer, ‘International Law and Its History’, 33. Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’, in Mark Toufayan, Emmanuelle Tourme Jouannet, and Helene Ruiz

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of international law for utilitarian reasons, ‘think[ing] of the past only in terms of what it may tell us about the present’.22 Indeed international law is rooted in history ‘to a far larger degree than other realms of law’:23 lawyers mine historical data to win cases; ‘arbitrators and judges … consider historical evidence’ to adjudicate cases; and international law scholars refer to historical sources to map the development of customary international law and explain doctrines.24 This functional approach views the past as relevant to ‘sustain and corroborate existing theories’.25 In a form of ‘genealogical enquiry’, international lawyers ‘ten[d] to read back from present to past’.26 In short, the vocation of law itself seems to resist time. However, legal historians have criticized international lawyers’ use of history, claiming that it ‘leads to anachronistic interpretations of historical phenomena, clouds historical realities that bear no fruit in our own times, and gives no information about the historical context of the phenomenon one claims to recognize’.27 Rather, legal historians argue, history should be described ‘in terms of what it was’ and ‘for what it meant to the people living it’.28 They claim that ‘international law deserves to be the subject of historical enquiry, regardless of its relations to … current international law’.29 International legal historians—i.e., those scholars studying the history of international law—‘should approach the past with proper respect’;30 demonstrate ‘genuine concern for facts, sources, and context’; and view ‘events, ideas, and controversies in a larger context’.31 According to the Cambridge School’s approach to the history of ideas, ‘the social and cultural context’ in which legal ideas were fashioned and evolved ‘is critically important for understanding what those ideas actually meant to those using them’.32 In turn, international lawyers criticize legal historians for narrowing their focus and working against the logic of law

Fabri (eds.) International Law and New Approaches to the Third World: Between Repetition and Renewal (Paris: Societé de Legislation Comparée 2013) 107. 22 Craven, ‘Introduction: International Law and Its Histories’, 16. 23 David J. Bederman, ‘Foreign Office International Legal History’, in Craven, Fitzmaurice, and Vogiatzi (eds.) Time, History, and International Law 43–63. 24 Id. 43–44. 25 Lesaffer, ‘International Law and Its History’, 35. 26 Craven, ‘Introduction: International Law and Its Histories’, 16. 27 Lesaffer, ‘International Law and Its History’, 34. 28 Id. 29 Id. 32. 30 Id. 37. 31 Bederman, ‘Foreign Office International Legal History’, 46 (internal references omitted). 32 Craven, ‘Introduction: International Law and Its Histories’, 17.

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itself. In fact, legal meaning moves across time and space; a historical interpretation of the law is just one of the many approaches available to international lawyers who often combine textual, systematic, and evolutionary types of interpretation in a holistic fashion. Can the international lawyers and legal historians’ differing approaches and methods be reconciled? While full cooperation between historians and lawyers has yet to be achieved,33 there are opportunities for mutual learning and engagement.34 For instance, Lesaffer proposes a two-step methodology: first, one should analyse history ‘in its own right and on its own terms’, taking into account the text of written sources, the spirit of the time, and the social, political, and cultural contexts.35 Second, the historical dataset can be used for further discussion. This book is a treatise on the history and theory of international law, and relies on a sound methodology. On the one hand, it heavily focuses on the text of Gentili’s works, seeking to reveal his own perspective in his own words and to locate his texts within their original terms of reference. On the other hand, because the book focuses on the part of the Gentilian opus that deals with matters related to the law of nations, international legal thinking frames the problems that the book raises, shapes its narrative, structures its arguments, and provides its conceptual foundations. This approach has also been adopted by other international law scholars writing histories of international law.36 More specifically, this book investigates the contribution Gentili made to international law in general and its various subfields in particular. Scholars may argue that the language used in the early modern period does not necessarily correspond to the terms we use nowadays. This is certainly true in Gentili’s case as he wrote in Latin. Nonetheless, translation is not only possible, but also necessary in order to examine and critically assess Gentili’s theory of the law of nations. In this regard, as with any translation, one must proceed with caution. However, this does not mean that scholars should not attempt to understand, communicate with, and make accessible these texts to a wide audience who may not be proficient in Latin. The use of some anachronism is both inevitable

33 34 35

Hueck, ‘The Discipline of the History of International Law’, 210. Vadi, ‘International Law and Its Histories’. Lesaffer, ‘International Law and Its History’, 38; Hueck, ‘The Discipline of the History of International Law’, 198 and 209. 36 See, ex multis, Carlo Focarelli, Introduzione Storica al Diritto Internazionale (Milan: Giuffrè 2012); Anne Orford, International Authority and the Responsibility to Protect (Cambridge: cup 2011).

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and necessary to make the text comprehensible to the reader and to enable a dialogue between Gentili on the one hand and the author and reader of this book on the other.37 Not only is it legitimate to ask legal questions when examining a treatise on the law of nations, but ‘it is historically appropriate to do so’.38 Gentili himself was a lawyer who examined matters of the law of nations using historical sources in an anachronistic manner. In examining historical examples, Gentili transmitted legal meaning across time while also considering the contemporary relevance. He used history instrumentally, scrutinizing and mining the past in order to address current legal issues.39 As Orford aptly stated, law has a kind of double temporality: on the one hand, legal systems address an immediate and pragmatic material context; however, they also have a more open-­ ended and ambitious timescale, as legal meaning travels across time.40 Gentili developed concepts and theories that remain under discussion today. For example, he discussed the concept of ‘honest war waged for the sake of others’ that broadly corresponds to the modern concept of humanitarian intervention. While Gentili did not use the term ‘humanitarian intervention’, for the sake of accuracy, clarity, and coherence, this book adopts both the original terminology that Gentili used and the current terminology.41 The added value of this book lies in investigating the works of a legal scholar through an international legal historical lens. While literary scholars, historians, and political theorists (among other perspectives) have produced excellent analyses of various aspects of Gentili’s life and thought, there is clear merit to examining the work of a legal scholar using legal terms, concepts, and questions. Different disciplinary approaches address different questions in examining the same texts. This is not to say that legal treatises should be approached by international lawyers only. Rather, international lawyers, legal historians, 37

38 39 40 41

For a similar approach, see Peter Haggenmacher, Grotius et la Doctrine de la Guerre Juste (Paris: Presses Universitaires de France 1983) ix (‘l’historien ne parviendra jamais à s’identifier entièrement avec l’objet de son étude et … même s’il le pouvait, il n’en serait pas moins obligé de lui appliquer une terminologie en partie anachronistique afin de le render saisissable pour son lecteur’.). See Christopher N. Warren, ‘Henry V, Anachronism, and the History of International Law’, in Lorna Hutson (ed) The Oxford Handbook of English Law and Literature, 1500–1700 (­Oxford: oup 2017) 710–726, 725. Id. 725 (noting that ‘Gentili deployed genres that charged the past with juridical salience, preserving an association between international history and juridical thinking’). Anne Orford, ‘On International Legal Method’ (2013) 1 London Review of International Law 166, 176. For a similar approach, see ex multis, Evan J. Criddle, ‘Three Grotian Theories of Humanitarian Intervention’ (2015) 16 Theoretical Inquiries in Law 473–505.

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and others can valuably contribute to the development of the history and theory of international law either working together or focusing on distinct albeit complementary sets of questions. While scholars have often noted that Gentili did not build a genuinely systematic theory of the law of nations, it is still possible to examine his theory in a systematic, analytical, and comprehensive manner. For example, Gentili’s various theoretical contributions to the history and theory of the law of the sea appear in a number of separate works. Contemporary scholars may compartmentalize Gentili’s thought on the basis of the individual publications, but it is arguably more compelling to examine each of these works and to look for convergences or divergences on specific points of law so as to find common patterns and concepts that demonstrate Gentili’s contribution to the early modern law of the sea. Recent studies have similarly examined Grotius’ contribution to the law of the sea by discussing his works in a holistic fashion. Therefore, as this method is justified both in theory and in practice, the same approach can be used to investigate Gentili’s contribution to the field. Moreover, the very claim that Gentili was not a system builder should be subject to several important qualifications. If ‘system’ denotes the consistent and comprehensive presentation of arguments, as Lesaffer argued, Gentili’s treatises ‘are among the first attempts’ to treat the law of war and peace in a ‘systematic’ way and ‘marked the emancipation of the ius gentium … as an autonomous discipline’.42 It is true that the systematic approach to producing and structuring treatises, notably in the law of nations, was largely a seventeenth-century development. However, sixteenth century scholars already had acknowledged the necessity of bringing a non-contingent order to the various fields of study,43 and viewed their respective fields of study (arts) as ‘systems of precepts exercised together toward some end useful in life’.44 42

Randall Lesaffer, ‘Roman Law and the Intellectual History of International Law’, in Anne Orford and Florian Hoffmann (eds) The Oxford Handbook of the Theory of International Law (Oxford: oup 2016) 54. 43 See, ex multis, Jacopi Acontii, De Methodo, Hoc est de Recta Investigandarum Tra­ dendarumque Artium ac Scientiarum Ratione (Basilea: Pietro Perna 1558)(stressing the need for a simple, analytical, and inductive method that could be applied in all fields of study, overcoming useless theoretical disquisitions, and enabling readers to rapidly put theory into practice.); Ioannis Bodini, Methodus ad Facilem Historiarum Cognitionem (Parisiis: Apud Martiunum Iuvenem 1566); Jean Bodin, Method for the Easy Comprehension of History, Beatrice Reynolds (transl) (New York: Norton 1969) (contributing to the ars his­ torica of the period by emphasizing the importance of political theory in interpreting historical sources and highlighting the importance of history for lawyers). 44 Neal W. Gilbert, Renaissance Concepts and Methods (New York/London: Columbia University Press 1960) 69.

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Aware of the u ­ nsystematic nature of their field, Renaissance lawyers attempted to organize it.45 Did Gentili articulate his theory of the international order as a comprehensive system? On this matter, it is clear that Gentili’s masterpiece, the De Iure Belli, is a proper ‘treatise’,46 with its own structure47 that distinguished the law of nations as an independent science. The final version of the De Iure Belli included a substantial chapter that conceptualized the law of war (ius gentium bellicum) as a subfield of the law of nations (ius gentium). Gentili’s three-fold division of the law of war in ius ad bellum, ius in bello, and ius post bellum was subsequently adopted by Grotius and other scholars, and remains conceptually valid today. If Gentili did not have the same systematic approach in other works, such as the Advocatio Hispanica, this does not mean that contemporary scholars should necessarily adopt a casuistic or fragmented approach to his works. Moreover, the collection of Gentilian works that discuss matters related to the law of nations present some comprehensive features. In short, Gentili constructed a coherent system of the law of war that he conceptualized as a subfield of the law of nations.48 Although his contributions to other subfields of the law of nations were not as systematic as his contribution to the law of war, given the exhaustiveness of his De Iure Belli, which includes elements of the law of the sea, neutrality law, and the law of peace, it is certainly possible to examine Gentili’s contribution to the history and theory of international law in a comprehensive fashion. This book does not intend to offer a mere summary of the Gentilian opus, or of existing literature on the subject. Rather, it aims to analyse and critically assess the text and context of Gentili’s works and to identify his original contribution to the early modern law of nations to the benefit of current international law scholars, international legal historians, and other interested readers.

45

46 47 48

Id. 93–98; Diego Quaglioni, ‘La Disciplina delle Armi tra Teologia e Diritto. I Trattatisti dello Ius Militare’, in Claudio Donati and Bernhard R. Kroener (eds) Militari e Società Civile nell’Europa dell’Età Moderna (secoli xvi–xviii) (Bologna: Il Mulino 2007) 447–462, 451– 452 (noting that early attempts to consolidate and systematize the law of war include Pierino Belli (1502–1575)’s De Re Militari et Bello and Balthazar Ayala (1548–1584)’s De Iure et Officiis Bellicis et Disciplina Militari Libri iii). Peter Haggenmacher, ‘Avant-Propos’, in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law (Oxford: oup 2017) ix–xii, xi. Peter Haggenmacher, Grotius et la Doctrine de la Guerre Juste (Paris: Presses Universitaires de France 1983) 174. For a similar argument, see Andreas Wagner, ‘Alberico Gentili—Sovereignty, Natural Law, and the System of Roman Civil Law’, in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 92–114, 103.

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The book does not attempt to force coherence upon Gentili’s thought, or upon diverging interpretations of his work, but instead to investigate the deep structures of his thinking. When aporias are found, the book adopts a dialogic approach, proposing different hypotheses while not necessarily seeking definitive coherence on the matter. Discordant forces coexist in Gentili’s work. His legal writing is complex and richly articulated, full of general rules, but also derogations and exceptions. Nonetheless, this does not render Gentili’s work incoherent or a mere patchwork of sporadic ideas. Rather, the investigation in this book reveals that Gentilian thought had consistent patterns and arguments across different fields. Perceived aporias, paradoxes, and inconsistencies constitute alternating interwoven themes that interact with one another. The book suggests possible explanations for these changing and contrasting forces without presuming overall consistency. For example, the book highlights how Gentili relied extensively on Jewish, Christian, and Islamic sources and traditions despite contributing to the gradual secularization of international law.49 A possible explanation for this contradiction is that religion permeated almost every facet of private and public life in the sixteenth century. While Gentili argued for the separation of the law of nations from theology and condemned wars of religion, he nonetheless held religious beliefs and, like most of his contemporaries, did not find it inappropriate or incongruent to refer to religious sources.50 In fact, a total absence of religious references might have led to accusations of atheism, which was a dangerous position to be in and would entail significant consequences. It is also possible that a complete secularization was not feasible due to historically contingent reasons. These explanations are mere dialogic hypotheses in which various potential solutions are proposed and coexist.51 As a matter of interpretation, international legal scholars are expressly asked to consider text and context when interpreting legal provisions. When 49 50

51

See e.g. Gentili, De Iure Belli, Book i, Chapter 8, pp. 36–37. See e.g. Honoré Bonet, L’Arbre des Batailles [1431] Ernst Nys (ed) (Bruxelles: Muquardt 1883) 6 (referring to Biblical examples of wars); Christine de Pizan, The Book of Feats of Arms and of Chivalry [1490], William Caxton (transl.) A. Byles (ed) (London: oup 1932) 9 (referring to biblical examples of just war); Pierino Belli, A Treatise on Military Matters and Warfare [De Re Militari et Bello Tractatus, 1558], Herbert C. Nutting (transl.) (Oxford: Clarendon Press 1936) p. 3 (considering war as ‘an ancient business among men’ and referring to a range of Biblical sources); Luis de Molina, Tratado Da Justiça e Do Direito—­ Debates sobre a Justiça, o Poder, a Escravatura e a Guerra [1593–1609](Lisbon: Fundaçao Calouste Gulbenkian 2012) Treatise ii, On the Law of War, p. 406 (also using Biblical sources). On the use of a dialogic method to discuss inconsistencies, see e.g. Christopher McCrudden, Litigating Religions—An Essay on Human Rights, Courts, and Beliefs (Oxford: oup 2018) 135.

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the legal provision they are interpreting presents a gap (lacuna legis) because it fails to address given factual circumstances, they are asked to apply systematic interpretation to determine whether a given international legal instrument (analogia legis) or the international legal system as a whole (analogia iuris) provides related rules to address the given gap. This way of reasoning not only characterizes contemporary international law, but was also particularly common in Gentili’s time. Therefore, the attempt to address gaps in legal reasoning by referring to the whole Gentilian opus according to a systematic approach should be considered a legitimate tool of legal interpretation that Gentili himself used extensively. When this book identifies an aporia, it proposes possible interpretations, while expressly stating that these interpretations are hypotheses, and acknowledging alternative plausible readings proposed by other scholars. The book emphasizes that there are many interpretations of Gentili’s thinking which are not only possible but, in most cases, also plausible, and that the possible imperfections of the Gentilian thought enrich the quality of the tapestry and of the discussion. This form of international legal history does not aim to ‘create unity from heterogeneous material, nor to construct a single discourse about the past, but rather to enrich the orchestral score of multiple discourses’.52 While this book attempts to provide an orderly discussion of relevant themes, it does not seek to unite all historical data in perfect concord. Nevertheless, it finds that the discordant debate about Gentili remains unsatisfactory. Therefore, it weaves together threads of Gentili’s thought with primary and secondary sources in order to widen the boundaries of current knowledge on Gentili’s contribution to the history and theory of international law, and start a debate at the global level. This book argues that a certain level of discord is not only unavoidable, but also necessary. The sounds that musicians draw from their instruments in tuning them are similarly clumsy and dissonant; nonetheless, the tuning process is necessary for the harmonious performance of the compositions that follow.53 And just as musicians will interpret musical scores differently to create unique forms of music, so too can international legal historians interpret and approach the Gentilian texts in their own way. Full appreciation of Gentili’s jurisprudence requires an examination of the historical, political, and intellectual context. Gentili lived in extraordinary 52 53

Sabina Loriga, ‘The Plurality of the Past’ in Hans Renders, Binne de Haan, and Jonne Harmsma (eds) The Biographical Turn: Lives in History (London: Routledge 2016) 31–41, 38. Francis Bacon, Of the Proficience and Advancement of Learning Divine and Human[1605] in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: Murphy 1876) 135–254, 239.

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times, and the historical and political context shaped the questions of international law that he addressed. He also relied on past works of scholarship in formulating new arguments. Therefore, in order to provide a sound international legal historical analysis of the Gentilian opus, this book relies on a number of non-legal sources, including historical, philosophical, and literary sources. The critical use of interdisciplinary sources to address international legal historical questions is particularly appropriate given that Gentili made extensive use of historical, philosophical, and literary sources in addition to legal sources. Therefore, this book examines the interplay between Gentili’s jurisprudence and that of his contemporaries in order to determine his originality and his unique contribution to the history and theory of international law. In this regard, this book is influenced in part by the Cambridge School of intellectual history associated with Quentin Skinner. In particular, the book attempts to interpret Gentili’s texts in their historical ‘context’ and intellectual universe.54 Not only does this book map the medieval/scholastic influences on Gentilian thought, but it also illuminates the understudied interplay between Gentili and his contemporary humanists. While political theorists have investigated the intellectual connection between Gentili and Machiavelli (1469– 1527), other associations remain relatively unexplored. For instance, the connections between Gentili and other Elizabethan and Jacobean lawyers, philosophers, and intellectuals—including Sir Francis Bacon (1561–1626), Thomas Hobbes (1588–1679), and Richard Hakluyt (1553–1616)—have either been wholly neglected or significantly understudied in the existing literature. The connection between Gentili and Grotius alone certainly deserves an indepth study. Although this book contextualizes Gentili’s thought, its purpose is not to provide a definitive history of the events and theories examined; rather, the central focus remains on Gentili’s opus and its contribution to the history and theory of international law. According to Orford, ‘[q]uestions of method involve key decisions about what and how we read, the nature of the materials with which we engage, how we conduct our research, and how we understand the relation between critical thinking and its object’.55 In addressing such questions, this book adopts both synchronic and diachronic language to reconstruct Gentili’s work. On the one hand, the book focuses first and foremost on Gentili’s texts in order to ‘find him and his thought’.56 Gentili’s works have raised contradictory interpretations and assessments; therefore, any sound investigation should start from a textual 54 55 56

For a similar approach, see Haggenmacher, Grotius et la Doctrine de la Guerre Juste, x. Orford, ‘On International Legal Method’, 167. For a similar approach, see Haggemacher, Grotius et la Doctrine de la Guerre Juste, 8.

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analysis. On the other hand, this book also examines the secondary literature, relying on a polyphony of voices and interdisciplinary literature in addition to legal sources. As the literary theorist Roland Barthes argued, the meaning of a text does not merely depend on the author’s intention, but also on its readers, which creates an array of possibilities.57 International legal history is by no means a uniform discipline.58 It has no ‘one-size-fits-all’ methodology, nor does it state that one particular technique is superior to another.59 Rather, international legal historians have legitimately adopted various methods and a ‘highly advisable dose of legal pluralism’.60 Some have primarily used the tools of historical investigation while others have adopted more legal approaches. Certainly, the work of Alberico Gentili may be studied from a number of different perspectives. Against this background, as previously noted, this book follows a double track. On the one hand, in addressing the Gentilian contribution to international law, the book adopts an international law frame of analysis, analysing the relevant materials according to the traditional elements of international law. This approach is not meant to imply that the focus on international law is preferable to other perspectives. Instead, examining Gentili’s work with an insider view of international law allows a reflection on the historical roots of international law and Gentili’s distinct contribution to the same. On the other hand, the book contextualizes Gentili’s work to understand why he adopted a particular position, and where he stood in relation to his predecessors and contemporaries. It also evaluates the influence he had in his own time. By adopting this dual focus, the book acknowledges the methodological differences between legal history and international law and aims to promote a fertile dialogue between the two.61 Furthermore, while it acknowledges that certain legal issues may remain relevant today, it does not aim to address or critically assess current legal issues.

57 58 59 60 61

Roland Barthes, ‘La Mort de l’Auteur’, in Roland Barthes, Le Bruissement de la Langue. Es­ sais Critiques iv (Paris: Seuil 1984) 63–69. David Ibbetson, ‘Historical Research in Law’, in Mark Tushnet and Peter Cane (eds.) The Oxford Handbook of Legal Studies (Oxford: oup 2005) (for an analogous argument on legal history). Vadi, ‘International Law and Its Histories’, 351. Duncan Bell, ‘Language, Legitimacy, and the Project of Critique’ (2002) 27 Alternatives: Global, Local, Political 327–350, 332. On the importance of interdisciplinary approaches to international legal history, see Martin Clark, ‘Ambivalence, Anxieties/Adaptations, Advances: Conceptual History and International Law’ (2018) 31 Leiden jil 747–771, 769.

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The book relies on both primary and secondary sources for its analysis. The primary sources include texts produced in the early modern period that reflect the concerns and perspectives of Gentili and his contemporaries. Among these sources are the Gentilian manuscripts conserved at the Bodleian Library in Oxford and the Latin printed edition of his works conserved, inter alia, at the Bodleian Library, the Biblioteca Nazionale Centrale in Florence, and the Cambridge University Library. Speeches, legal treatises, literature, and art were also examined in order to investigate the historical context. Secondary sources, that is, materials produced after the period under study, include a range of legal, historical, and literary sources in different languages. The use of sources of different epochs, disciplinary fields, and languages can reveal how philosophers, lawyers, and political scientists have debated a specific aspect of Gentili’s work, and whether their approaches converge or diverge on specific issues of the law of nations. The use of sources written by scholars belonging to different fields, countries, and cultures is a step toward contributing to a genuinely global history of international law based on the recognition of the plurality of civilizations and cultures that compose the international community.62 The sources used have been scrutinized carefully. The aim has been to analyse these at times contradictory pieces of evidence in order to understand the past. With regard to objectivity, as is known, pure objectivity does not exist.63 As the philosopher Hans-Georg Gadamer argued, we often read reality through unconscious imaginaries.64 An author’s spirit, education, and disciplinary training inevitably influences his or her choices. This book was written by an international law scholar interested in the history and theory of international law; thus it adopts an international legal history perspective, combining historical contextualism with international law aims and objectives, focusing on issues that generally pertain to this field of study. It aims to provide the reader with the benefits of a dual perspective, by discussing both the theory and practice of international law to criticize its limitations and instrumentalizations but also highlight its merits and counter-imperial potential.65 This study is 62

63 64 65

Onuma Yasuaki, International Law in Transcivilizational World (Cambridge: cup 2017); B.S. Chimni, ‘The Past, Present, and Future of International Law: A Critical Third World Approach’ (2007) 8 Melbourne Journal of International Law 515 (stressing that ‘international lawyers must work towards … making the human world somewhat more hospitable to humanity’). George Duby, Il Sogno della Storia (Milano: Garzanti 1986) 41. Hans-Georg Gadamer, Truth and Method, Joel Weinscheimer and Donald G. Marshall (transl) (New York: Bloomsbury 2004). See generally Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (Cambridge: cup 2011).

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­ articularly timely as there is currently a general disenchantment with interp national law, making it increasingly appropriate to investigate its historical and theoretical developments.66 The history of international law ‘should be oriented towards illuminating the roles law and lawyers played in the effort to build … [the] global community’, ‘focusing on the ways legal rules, institutions, and practices have been used in the past to support, channel, and oppose power’ and ‘examining the choices that past lawyers have made’.67 Given the growing interest in the history of international law, this book contributes to the development of the field by offering an analytical assessment of Gentili’s contribution to the early modern law of nations. The envisaged readers of this book are specialists in the field of international law and legal historians, as well as other interested readers. The book is relevant to international lawyers because it adopts an analytical framework based on international law concepts. It also helps to illuminate Gentili’s current relevance for a number of international legal issues. The book will have special significance for those working in the areas of the law of war, the law of the sea, and global governance. The book is also relevant to legal historians, as it focuses on the Gentilian work in light of Gentili’s historical, political, and social context. Those studying or teaching international law, legal history, and international dispute settlement, as well as diplomatic law, the law of war, and the law of the sea at graduate level would also find it particularly useful. Furthermore, as studies in the history of international law are multiplying, it is likely that this interest will intensify. In order to speak specifically to the targeted audience, this book maintains a technical language, but avoids assumptions to achieve clarity and cohesion. 1.3

Chapter Plan

In the light of the methodological framework detailed above, the book proceeds as follows. Chapter 1 briefly discusses the methodology adopted in the book, the oscillations in the historical assessment of the Gentilian work, the state of the art, and the intended contribution of this book. Chapter 2 describes the eventful life of Alberico Gentili, investigates the intellectual context in which Gentili lived and worked, and sets the scene for the subsequent legal 66 67

James Crawford, ‘The Current Political Discourse Concerning International Law’ (2018) 81 Modern Law Review 1–22, 22. Martti Koskenniemi, ‘Less is More: Legal Imagination in Context’ (2018) 31 Leiden jil 469– 472, 469.

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inquiry. Gentili’s life deserves scrutiny and attention as his thought becomes intelligible only when it is set forth in its proper historical, political, and cultural context.68 An understanding of the major events in Gentili’s life is necessary to understand the way he addressed the key international law issues of his time. The chapter contributes to the existing literature in a two-fold manner. On the one hand, the chapter relies on important declassified sources that provide new insights on Gentili’s life. Second, by mapping Gentili’s intellectual network, new previously unknown aspects of his personality, life, and work have emerged. By considering a mosaic of historical, literary, and legal sources, this chapter offers an updated, timely, and multifaceted portrait of Gentili’s life and sheds some light on this enigmatic scholar. Chapter 3 explores the influence that the study of the humanities had on the Gentilian theory of the law of nations. The chapter examines how Gentili principally adopted a strictly juridical method (Italian style) when addressing matters of civil law; but he soon adopted a more interdisciplinary method (French style) when he was consulted on matters of the law of nations. The discovery of new lands, the Reformation, and the emergence of the modern state dramatically changed global politics and required careful reflection when ascertaining the applicable law. Roman law, a classic reservoir of legal topics and source of analogies, was no longer sufficient to address these major challenges. Literature, history, and philosophy thus provided Gentili with the crucial tools to detect norms of customary law, general principles of law, and state practice. Far from constituting mere rhetorical devices, historical and literary examples became the building blocks of the Gentilian theory of the law of nations. The chapter also investigates how Gentili’s legal expertise fashioned his theory of poetry and theatre and considers some poems that he composed. Finally, the chapter concludes by offering some hermeneutical interpretive keys to understand Gentili’s work and to decipher some of the contradictions, inconsistencies, and even paradoxes in his writings. Chapter 4 illuminates Gentili’s contribution to the development of general international law. What role, if any, did Gentili’s work play in the evolution of the early modern law of nations? What role, if any, does his thought play in the context of current international law? The chapter addresses these questions by focusing on the Gentilian notions of the international community, natural law, and the law of nations. It then discusses the Gentilian reflection on the early modern diplomatic law, international dispute settlement mechanisms, and his contribution to the secularization of international law. 68

Quentin Skinner, ‘Meaning and Understanding in the History of Ideas’ (1969) 8 History and Theory 3–53.

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The following chapters illuminate Gentili’s specific contributions to various distinct branches of international law. The way in which the book is ­organized— the fact that specific chapters of the book are dedicated to the analysis of the interplay between Gentili’s thought and each of these areas of international law—facilitates the reader’s ability to identify the thematic area of interest. In particular, Chapter 5 explores Gentili’s contribution to the law of war. Gentili contributed greatly to the consolidation of the law of war, which he meaningfully articulated in the three distinct and yet connected parts of the ius ad bel­ lum (the conditions under which states may resort to war), the ius in bello (the law of war), and the ius post bellum (the part of international law that applies after the end of a conflict). He highlighted the importance of moderation in the conduct of war. His support for preventive war was linked to the perilous nature of his times. His words against forms of hegemony and his praise of the balance of power are as timely as ever. Chapter 6 discusses the Gentilian contribution to the law of the sea. Gentili influenced the development of the law of the sea in a two-fold manner. On the one hand, he contributed to the conceptualization of the freedom of the sea and the freedom of commerce, communication, and movement. On the other hand, he conceptualized the notion of the territorial sea and envisioned a number of exceptions and derogations to the above-mentioned freedoms, in order to balance the interests of the coastal state and those of the international community. He also condemned piracy and, ahead of his time, privateering as crimes against humanity. Because Gentili served as the Advocate of Spain before the High Court of Admiralty in London, his contribution to the development of the early modern law of the sea combines both theoretical and practical aspects. Chapter 7 focuses on Gentili and the injustice of empire. Because of the geographical discoveries, increased exploration, and intensified commerce, the problem arose of how to create order among different civilizations.69 After examining how Gentili dealt with the challenge of cultural diversity, the chapter illuminates his discussion of the injustice of empire by focusing on De Ar­ mis Romanis. Divided into two books, the work remains an unresolved jigsaw. The first book constitutes a fierce accusation of the injustice of the Roman Empire. The second book includes a wordy defence of the justice of the same. Because Gentili did not explicitly clarify his stance, the true meaning of this work has remained controversial: did Gentili endorse an imperialist stance or

69 Anghie, Imperialism, Sovereignty, and the Making of International Law, 14.

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support an anti-hegemonic position? In addressing this question, the chapter juxtaposes the De Armis Romanis with other Gentilian works, the De Iure Belli and the Regales Disputationes. Chapter 8 confronts Gentili and Grotius’ respective works, examining their diverging writing styles and converging arguments systematically on a range of themes. While Grotius read Gentili’s work, ‘built many of his theories on Gentili’s De Iure Belli and borrowed heavily from Gentili’s examples’, he was ‘rather remiss in acknowledging Gentili’s influence on his own work’.70 The comparison is challenging as Gentili’s work inductively addressed a range of questions, unified by topic, whereas Grotius adopted a deductive method postulating a number of principles.71 Both Gentili and Grotius addressed the major political questions of the day; however, while Gentili discussed the law through schemes based on current practice,72 Grotius derived his examples from antiquity. Furthermore, Gentili’s use of arguments, counterarguments, and digressions makes identifying his own views difficult. Gentili ‘often hesitate[d] in drawing precise conclusions’ and ‘it is sometimes difficult not to lose the thread of his argument’.73 By contrast, Grotius’ argumentative style was structured, linear, and clear. Grotius’ arguments are undoubtedly easier to follow. Yet, if Gentili seemed to ‘struggl[e] with his subject matter … it must not be forgotten that he had first to gather the raw material himself to work it up’.74 In turn, this entails that any juxtaposition of the works of Gentili and Grotius needs to: (1) take into account the diverging styles of the authors; (2) detect the lines of their respective arguments; and (3) evaluate the findings in light of their historical and legal context. The chapter shows that while the Gentilian and Grotian works converge in some respect, they also diverge to a significant extent. The conclusions will then sum up the key findings of the study. The book argues that not only did the duality and ambiguity of some of Gentili’s writings express his powerful intellectual skills, but they also reflected the fundamental indeterminacy of the early modern law of nations. As a lawyer first and foremost, Gentili attempted to map and illuminate the existing law. This law was intrinsically vague and could be interpreted in different ways. Gentili probably had his own views on the most pressing issues of the time. The duality and 70

Artemis Gause, ‘Gentili, Alberico (1552–1608)’, odnb (Oxford: oup 2004) 5, 7 (pinpointing that Grotius borrowed Gentili’s examples ‘without checking the original sources (thus duplicating several of Gentili’s own misquotations)’). 71 Merio Scattola, ‘Alberico Gentili (1552–1608)’, in Bardo Fassbender and Anne Peters (eds.) The Oxford Handbook of the History of International Law (Oxford: oup 2012) 1092, 1094. 72 Id. 73 Van der Molen, Alberico Gentili and the Development of International Law, 243. 74 Id. 245.

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ambiguity of some of his writing allowed him to voice alternative viewpoints not necessarily in conformity with the political and religious orthodoxy of his time. Political instability and uncertainty characterized the sixteenth century and contradiction and deliberate paradox allowed Gentili to express his opinions and freed him from the control of political and religious powers.75 While some ambiguities, inconsistencies, and even paradoxes in Gentili’s thought are probably due to political pragmatism, they make his thought even more interesting today, as the interpreter is presented with a thought-provoking jigsaw. 1.4

The Fame and Fortunes of Alberico Gentili

This section provides a brief overview of the varied fortunes of Alberico Gentili’s works over the past centuries. Studying the reception of Gentili’s texts seems particularly fruitful in order to map the actual impact he had on different scholars and epochs and to evaluate the journey of his ideas over time.76 The Gentilian theory of the law of nations has been interpreted in many different ways. Although both historians and international lawyers have investigated his ouput with increasing determination, intensity, and depth, no single truth has emerged; rather, multiple accounts attest to the complexity, versatility, and multidimensionality of the Gentilian opus.77 This section distinguishes three principal phases in the fortunes of the Gentilian work. The first phase, which lasted for almost three centuries, was marked by significant neglect. The second phase, from the second half of the nineteenth century until the end of World War ii, was characterized by the rediscovery of the Gentilian thought. Finally, the third phase, which has developed

75

76 77

On this point, see Leo Strauss, Persecution and the Art of Writing (Glencoe: Illinois 1952) 24–25, 30, and 32 (noting that during any time of persecution it can be necessary to hide one’s unorthodox views ‘between the lines’ of one’s publications and that if ‘an able writer’ in such a situation appears to contradict herself in her works, then ‘we may reasonably suspect’ that the contradiction is only apparent and that ‘intelligent’ readers will understand the inner coherence of the works.) But see Skinner, ‘Meaning and Understanding in the History of Ideas’, 22 (criticising the Straussian view, noting that ‘looking for inner coherence of a given writer’s doctrines can yield anything except a mythology of coherence’, albeit admitting, at 34, that in the past ‘religious heterodoxy was a very dangerous commitment’.). See e.g. Claire Vergerio, ‘Context, Reception, and the Study of Great Thinkers in International Relations’ (2019) 11 International Theory 110–137, 114. Diego Panizza, ‘La Fortuna di Alberico Gentili. Immagini e Interpretazioni’, in vvaa, Al­ berico Gentili nel Quarto Centenario del De Iure Belli (Milano: Giuffrè 2000) 263–300, 265.

The Varied Fortunes of Alberico Gentili

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since the end of wwii, has been characterized by an increasingly intensified, rich, and determined study of the Gentilian work. As mentioned, the first phase of the Gentilian reception was marked by significant neglect. Despite his success during his lifetime, Gentili was forgotten for almost three centuries.78 On the one hand, some appreciated the fact that he had revived the study of Roman law in England and influenced subsequent civil lawyers.79 On the other hand, others criticized his defence of absolutist theories in his Regales Disputationes.80 After James i (1604–1625) came to the throne, ‘political realism … encourage[d] Gentili to adopt a more absolutist conception of power’.81 While an anonymous English pamphlet questioned the absolutist theories of the Regales Disputationes,82 an Italian critic defined the work as ‘the filthiest apology of royal absolutism’ (‘la più schifosa apologia dell’assolutismo dei Re’).83 To make matters worse, Johannes Althusius (1563– 1638) a German jurist and political philosopher, explicitly contested Gentili’s denial of a right of resistance in the Regales Disputationes, relying on Gentili’s own arguments as expressed in the De Iure Belli.84 Only indirectly did the Re­ gales Disputationes influence debates on sovereignty.85 In parallel, the fame of Gentili’s masterpiece, the 1598 De Iure Belli, was eclipsed by the publication of Hugo Grotius’ De Iure Belli ac Pacis in 1625.86 Gentili’s work had a profound influence on Grotius and a comparison of the two treatises reveals the latter’s indebtedness to Gentili for methodology, 78 79

Id. 266. Diego Panizza, ‘Appunti sulla Storia della Fortuna di Alberico Gentili’ (1972) 5 Il Pensiero Politico 373–386, 373. 80 Id. 81 Vincenzo Lavenia, ‘Mendacium Officiosum: Alberico Gentili’s Ways of Lying’, in Tamar Herzig and Miriam Eliav-Feldon (eds.) Dissimulation and Deceit in Early Modern Europe (London: Palgrave 2015) 27–44, 28. 82 Anonymous, Englands Monarch or a Conviction and Refutation by the Common Law, of those false Principles and insinuating Flatteries of Albericus, delivered by way of Disputa­ tion, and after published, and dedicated to our dread Sovereign King James, in which he la­ boureth to prove the Civil Law, our Prince to be an absolute Monarch; and to have a free and arbitrary Power over the Lives and Estates of his People (London: Thomas Paine 1644). 83 Panizza, ‘Appunti sulla Storia della Fortuna di Alberico Gentili’, 380 (reporting the criticism). 84 Johannes Althusius, Politica Methodice Digesta atque Exemplis Sacris et Profanis Illustrata; cui in Fine Adjuncta est Oratio Panegyrica De Necessitate, Utilitate et Antiquitate Scholarum (Herbornae Nassoviorum: Ex officina Christophori Corvini 1614) 323. 85 See Chapter 7 below. 86 Hugonis Grotii, De Iure Belli ac Pacis Libri Tres (Parisiis: apud Nicolaum Buon 1625); Hugo Grotius, De Iure Belli ac Pacis Libri Tres, J.B. Scott (introduction), F.W. Kelsey (trans.) (Oxford: oup 1925).

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structure, and argumentative patterns.87 Yet, the respective success of the two treatises was uneven.88 Grotius’ systematic approach to the topic, his classic Latin style, and rationalist framework better met the needs of the age. More substantively, Gentili’s De Iure Belli presented a marked defensive character— when Gentili published it, England was at war with Spain, and the latter seemingly had an invincible army. Gentili’s theory of preventive defence had a marked defensive character and his idea of the balance of power had anti-­ hegemonic purposes: only by preventing states from achieving hegemony could the international community preserve peace. Instead, Grotius’ work served marked expansionist agenda; the De Iure Praedae was commissioned by the East India Company to foster Dutch trade in the Indies. Therefore, the Grotian theory sensibly diverged from the Gentilian proposition in several respects. The Grotian work became popular because it could serve imperialist agendas (not only of the Dutch East India Company), while the Gentilian opus presented both expansionist and defensive/anti-hegemonic motives that were difficult to reconcile. For instance, Gentili conceptualized the territorial sea and coastal state’s jurisdiction over the same as a counterbalance to the freedom of the sea; he conceptualized a range of significant exceptions to freedom of commerce, cautioning that states could legitimately restrict commerce for reasons of state security, public health, and public morals. It is true that the Gentilian theory of international law discussed elements that could allow states to wage war, yet it also presented counterbalancing forces. Whereas no legal system can completely prevent abuses of law, the Gentilian theory is far more complex than it is usually depicted. In the sixteenth and seventeenth centuries, the predominance of legal humanism, a current which Gentili had critically assessed in his De Iuris Interpre­ tibus, brought him a number of criticisms. He was considered as a mere defender of the Italian way of teaching law (mos italicus iura docendi), a method which had been surpassed by legal humanism, the French way of teaching law (mos gallicus). However, such criticisms were largely unfounded. The De Iuris Interpretibus was the first work Gentili authored after his arrival in Oxford, when he was still influenced by his formative years at the University of Perugia. His later scholarship included elements of legal humanism. Moreover, the same De Iuris Interpretibus was more moderate than it might appear at first glance, advocating the integration of the two methods, and rejecting only the most extreme elements of the French approach.89 87 88 89

See Chapter 8 below. Van der Molen, Alberico Gentili and the Development of International Law, 61. See Chapter 3 below.

The Varied Fortunes of Alberico Gentili

23

In the eighteenth century, there was some interest in Gentili’s life and work due to the flourishing of local history studies. Some relevant biographical information was collected, and there was an attempt to reprint his entire oeuvre.90 However, due to the untimely death of the publisher, only the De Iure Belli, the De Armis Romanis, and the De Verborum Significatione were republished.91 Only in the nineteenth century was interest in Gentili revived—Sir Thomas Erskine Holland (1835–1926), Chichele Professor of Public International Law and Diplomacy at the University of Oxford, devoted his 1874 inaugural lecture to him.92 Not only did Holland emphasize Gentili’s contribution to the emergence of the law of nations, and consider him as one of the founders of international law, but he also argued that Gentili’s De Iure Belli was superior to Grotius’ De Iure Belli ac Pacis.93 In 1877, a commemorative plaque dedicated to Gentili was placed in the church of St. Helen’s in Bishopsgate, London, where he is buried.94 Also in 1877, Gentili’s De Iure Belli was republished.95 In the Netherlands, some distinguished Dutch scholars’ supported the rediscovery of Gentili’s work; yet, admirers of Grotius expressed some anxiety with regard to such appreciation.96 As a result of this controversy, a monument to Grotius was erected in Delft in 1886.97

90 91 92 93 94

95 96 97

Telesforo Benigni, ‘Memorie Istorico-critiche intorno alla Vita e agli Scritti di Matteo Gentili da San Ginesio e di Alberico e Scipione suoi Figliuoli’, in Giuseppe Colucci, Antichità Picene (Fermo: 1790). Alberici Gentilis, Opera Iuridica Selectiora, volumes i and ii (Neapoli: Gravier 1780). Holland, ‘An Inaugural Lecture on Albericus Gentilis’, 1–39. See Chapter 8 below. Dante Cecchi, ‘Prolusione’, in vvaa, Alberico Gentili—Giurista ed Intellettuale Globale (Milano: Giuffrè 1988) 21 (noting that the commemorative plaque dedicated to Gentili includes the emblem of the University of Perugia, where Gentili completed his studies, as well as that of the University of Oxford, where he was a Regius Professor of Civil Law for two decades. The plaque also includes Gentili’s family coat of arms and the town emblem of San Ginesio. The inscription—which reproduces the epigraph of the original tombstone—briefly narrates Gentili’s birth to a noble family in the Marches, his degree from the University of Perugia, his work as praetor in Ascoli, his professorship at the University of Oxford, and his practice before the Admiralty Court in London. It also indicates that Gentili is buried there together with his father, Matteo, and one of his daughters (filiola dulcissima)). Alberici Gentilis, De Iure Belli Libri Tres, Thomas E. Holland (ed.) (Oxonii: Typographo Clarendoniano 1877). Coleman Phillipson, ‘The Great Jurists of the World—Albericus Gentilis’ (1911) 12 Journal of the Society of Comparative Legislation 52–80, 54. Giorgio del Vecchio, ‘The Posthumous Fate of Alberico Gentili’ (1956) 50 ajil 665–666; Luigi Lacchè, ‘Monuments of International Law: Albericus Gentilis and Hugo Grotius in Constructing a Discipline (1875–1886)’, in Luigi Nuzzo and Miloš Vec (eds.) Constructing

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In parallel, Italian scholars also rediscovered Gentili. The Italian rediscovery of Gentili has had three phases which have roughly corresponded to distinct political, cultural, and historical periods of domestic history: (1) the phase of the unification of the country (Risorgimento); (2) the first half of the twentieth century; and (3) the aftermath of wwii.98 The first phase started almost immediately after the publication and circulation of Holland’s lecture and was characterized by two distinct albeit interrelated leitmotivs: nationalism and anticlericalism. The Gentilian work was read instrumentally for contingent political purposes. During the Risorgimento—the political, cultural, and literary movement which led to the unification of the country and its independence from foreign rule—Italian authorities celebrated Gentili as a national hero. They requested the repatriation of Gentili’s remains to bury them in Florence’s Church of Santa Croce, where other great personalities lie.99 Constituting a sort of pantheon, the temple remains the sacred place of national unity, self-­ determination, and political independence.100 ‘[T]he rediscovery of Gentili’ was part of ‘the process of monumentalization (on both a physical and metaphorical level)’ of great personalities that contributed to the process of unification of the country in both cultural and geopolitical terms.101 However, the request was unsuccessful. St. Helen’s vicar claimed that the grave could not be located with precision.102 Nonetheless, in 1908, the Italian authorities succeeded in erecting a monument to Gentili in San Ginesio, his native town, three hundred years after his death.103 The movement had an anticlerical aspect too. The opposition to the clergy for its real or alleged influence in political and social affairs was due to contingent historical reasons: While the Italian Government intended to make Rome the capital of the new state, the Pope wanted to retain his temporal power as the ruler of the city.104 The political controversy between the Italian state and International Law—The Birth of a Discipline (Frankfurt am Main: Klostermann 2012) 147– 208, 147. 98 Panizza, ‘Appunti sulla Storia della Fortuna di Alberico Gentili’, 378 (also distinguishing three phases, albeit with slightly different periods). 99 Van der Molen, Alberico Gentili and the Development of International Law, 61. 100 Federico Chabod, ‘The Idea of Nation’, in Stuart Woolf (ed.) Nationalism in Europe (London: Routledge 2002) 124–137, 130. 101 Lacchè, ‘Monuments of International Law’, 186. 102 Del Vecchio, ‘The Posthumous Fate of Alberico Gentili’, 664–666. 103 Nussbaum, A Concise History of the Law of Nations, 100–101. 104 Diego Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale di un Giurista Italiano nell’Inghilterra Elisabettiana’, in Alberico Gentili—Giurista e Intellettuale Globale—Atti del Convegno Prima Giornata Gentiliana (Milano: Giuffrè 1988) 33–58, 33.

The Varied Fortunes of Alberico Gentili

Illustration 1 Statue of Alberico Gentili, 1908, by Giuseppe Guastalla (1867–1952), San Ginesio © Valentina Vadi

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the Papal States as to the destiny of Rome did not end with the conquest of the city in 1871, but lasted until the Lateran Pacts of 1929 which eventually settled the matter.105 The instrumental reading of Gentili as a hero of religious freedom favoured the ideals of the Risorgimento and determined a resurgence of interest for Gentili’s work.106 These nationalist or instrumental reading of Gentili’s work, however, also boosted the Catholic backlash against Gentili’s works. As mentioned, Gentili’s works remained on the Index of forbidden books for centuries.107 In addition, in the late nineteenth century Catholic critics described Gentili as ‘a mediocre jurist’ and ‘devoid of originality’.108 He was also accused of being a renegade.109 Other critics suggested that he seemed to be happy to contradict himself depending on the context, to deliberately confuse clear matters, and argue with other scholars.110 The Catholic opposition to Gentili gradually ended in the twentieth century, with the opening of the various Christian churches to increasing dialogue among religions. The second phase of the Gentilian studies in Italy started on the occasion of the third centenary of his death and finished at the end of the Second World War.111 This phase was characterised by the gradual fading of the anticlerical polemics and the escalation of the nationalist movement.112 During this time, some commentators considered Gentili as a ‘philosopher of peace’ and a precursor of the ideals of the Society of Nations.113 They highlighted the Gentilian concept of the balance of power as a tool to counter imperialist discourses,114 relied on the De Iure Belli to denounce the illegitimacy of certain methods of

105 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 33. 106 Antonio Fiorini, Del Diritto di Guerra di Alberigo Gentile (Livorno: F. Vigo 1877). 107 Martti Koskenniemi, ‘International Law and Raison d’état: Rethinking the Prehistory of International Law’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 297–298. 108 Lacchè, ‘Monuments of International Law’, 194. 109 Panizza, ‘Appunti sulla Storia della Fortuna di Alberico Gentili’, 380 (reporting these criticisms). 110 Alessandro de Giorgio, Della Vita e delle Opere di Alberico Gentili (Parma: Michele Adorni 1876) 26 and 29 (criticizing Gentili’s work on several grounds, in particular with regard to his originality and deliberate opacity). 111 Panizza, ‘Appunti sulla Storia della Fortuna di Alberico Gentili’, 382. 112 Id. 113 See e.g. Alceo Speranza, ‘Da Alberico Gentili a Woodrow Wilson’ (1917) 6 Nuova Antologia 192. 114 Alfredo Taglialatela, La Preghiera di Alberico Gentili—I Sermoni della Guerra (Roma: La Speranza 1915) 15.

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warfare used during wwi,115 advocated the establishment of a world court and the use of international arbitration to settle international disputes, mechanisms which Gentili had prefigured in his work.116 During the Fascist era (1922-1943), the nationalist motive intensified. Fascist scholars deliberatedly deformed Gentili’s works to serve the regime’s aggressive foreign policy and used his works instrumentally to provide a legal basis to its ideological and colonial claims.117 They interpreted Gentili as the assertor of imperialist policies, allegedly inspired by the imperial tradition of ancient Rome.118 These ideological interpretations of Gentili’s thought were part of political propaganda. Did they have any scientific value or, rather, did they turn the Gentilian thought upside down? While Gentili had predicated religious tolerance among different religions in general and respect for the Jewish communities in particular, the regime adopted inter alia the infamous racial laws. While Gentili condemned imperialist expansion and praised the balance of power in international relations, the regime pursued shameful colonial ambitions.119 While Gentili considered freedom of commerce as a key tool to foster peaceful and prosperous relations among nations, the regime adopted autarchy, which affected the most vulnerable sectors of society. Since the end of wwii, the third and ongoing phase of the Gentilian studies has assumed a more scientific, objective, and cosmopolitan outlook. Research on Gentili has ‘intensified and diversified’.120 More exacting historiographical methods have been adopted to examine Gentili’s works in the light of his historical context.121 Since abandoning the deforming, instrumental, and political lenses through which his works were assessed during the nineteenth century and early twentieth century, which anachronistically projected their problems, theories, and ideologies into the distant past, scholars have started appraising the Gentilian work in a more comprehensive fashion.122 115 See e.g. Alceo Speranza, ‘Ricordando Alberico Gentili nelle Stragi della Guerra Odierna’ (1915) 1049 Nuova Antologia 393–398. 116 Taglialatela, La Preghiera di Alberico Gentili, 16. 117 Norberto Mancini, Un Genio della Stirpe. Alberico Gentili da San Ginesio (Civitanova Marche: Tipografia Ciarrocchi 1937) 101 (contending that Gentili would have approved the colonization project). 118 Panizza, ‘La Fortuna di Alberico Gentili’, 273. 119 See e.g. Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiog­ raphy, Resistance (Cambridge: cup 2018). 120 Alain Wijffels, ‘Antiqui et Recentiores: Alberico Gentili—Beyond Mos Italicus and Legal Humanism’, in Paul du Plessis and John Cairns (eds) Reassessing Legal Humanism and its Claims: Petere Fontes? (Edingburgh: Edinburgh University Press 2016) 12–40, 19. 121 Panizza, ‘La Fortuna di Alberico Gentili’, 277. 122 Id.

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The Gentilian oeuvre cannot be easily classified within contemporary disciplines, as it dealt with a variety of different topics, such as birth, marriage, divorce, commerce and war, among others,123 and relied on a range of interdisciplinary sources including law, literature, history, and philosophy.124 It has attracted the interest of international lawyers, legal historians, and political theorists.125 While international lawyers and legal historians consider Gentili first and foremost as a lawyer, political scientists view him primarily as a political theorist.126 Yet, Gentili remains a complex, enigmatic, and elusive figure: long considered the champion of the Italian style, he mastered the most sophisticated humanist culture; long considered the ideologue of absolutism, he adopted anti-hegemonic stances in his masterpiece, De Iure Belli. Long considered as a mere precursor of other scholars, he has now gained a prominent place among early modern theorists of international law. Since the 1980s, the Centro Internazionale Studi Gentiliani (cisg) has organized biannual conferences and published a distinguished series of monographs and edited collections, in English and Italian, focusing on various aspects of Gentili’s life and work. The interdisciplinary work of the cisg has illuminated parts of, and catalysed new scholarly attention on, the life and work of this scholar at both national and international levels. Intellectual historians, literary scholars, and international lawyers have all approached Gentili’s works with their own set of concerns, methods, and problems drawn from their disciplines. Whereas international law scholars have investigated Gentili’s contribution to the law of nations,127 legal historians and literary scholars have uncovered unpublished materials, unearthed formerly secreted archival sources, and examined Gentili’s life and work in context.128 While international lawyers have focused on the Gentilian works that are relevant to the early modern law of nations, legal historians have tried to contextualize his works historically and literary scholars have examined his literary production respectively­. From 123 Gentilian works on private law matters include: Alberico Gentili, Conditionum Liber Sin­ gularis (Londini 1587); and Alberico Gentili, De Legatis in Testamento (Amstelodami 1661). 124 Luigi Lacchè, ‘Introduzione’ in Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli—Alberico Gentili e gli Orizzonti della Modernità (Milano: Giuffrè 2009) 1–13, 6. 125 Wijffels, ‘Antiqui et Recentiores’, 20. 126 Id. 23. 127 See e.g. Giorgio Badiali, Il Diritto di Pace di Alberico Gentili (Fagnano Alto: Il Sirente 2010). 128 Giovanni Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus. L’Inedito Commen­ tario Ad Legem Juliam de Adulteriis (Bologna: Monduzzi 2002); Giovanni Minnucci, Al­ berico Gentili Iuris Interpres della Prima Età Moderna (Bologna: Monduzzi 2011); Giovanni Minnucci, Silete Theologi in Munere Alieno. Alberico Gentili tra Diritto, Teologia e Religione (Milano: Monduzzi 2016).

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these recent studies, Gentili has emerged as a civil lawyer, a political thinker, a religious refugee, and a global intellectual, as well as a significant contributor to the development of international law. 1.5

The State of the Art

While sound progress has been made in the knowledge of Gentili’s works, most of the existing studies have focused on individual single works or specific aspects of his scholarly production.129 Moreover, many studies written before wwii rely on obsolete methodologies that are simply inadequate to address the current needs of international legal history.130 It is now time to investigate Gentili’s life and work in context, interpreting his legal thought in relation to the political, religious, and cultural context of his time.131 This approach will allow a fuller understanding of Gentili’s personality and thought, and illuminate his theoretical contribution to the law of nations.132 The examination of Gentili’s works against the political, religious, and cultural background in which he lived and worked enables a richer understanding of his entire output. Since the only Gentilian works to have been conserved to date are those which he published and/or wrote in England, his work should be understood in context, investigating it in connection with the Elizabethan and early Jacobean eras. Under Elizabeth i (1558–1603) and James i (1604– 1625), England became a cultural hub and a maritime power starting to play an increasingly important role in global politics.133 The book focuses on the distinct contribution of Alberico Gentili to the development of the law of nations and aims to fill a significant gap in the current literature: to date there is no comprehensive and updated study covering the life and work of Alberico Gentili from an international law perspective. This book brings a new ground of inquiry to the fore, contributing to the academic debate. At the same time, it presents some lines of continuity with the available literature on the history of international law. Several biographies on Alberico Gentili were published at the end of the nineteenth century and during the early twentieth century.134 Published in 129 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 34. 130 Id. 131 Panizza, ‘Appunti sulla Storia della Fortuna di Alberico Gentili’, 386. 132 Id. 133 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 35. 134 See e.g. De Giorgio, Della Vita e delle Opere di Alberico Gentili; L. Colini Baldeschi, Alberico Gentili (Roma 1908); A. Pierantoni, Alberico Gentili, la sua Vita, il suo Tempo, le sue Opere

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1876, Giuseppe Speranza’s monograph on Alberico Gentili is a well-written account of his life and work and remains a good starting point for any research on Gentili.135 Yet, it does not specifically focus on his contribution to international law. Other works focused on Gentili’s contribution to the development of international law, but did not have access to previously secreted sources conserved in the Vatican Archives and often lacked methodological rigour.136 Gesina van der Molen (1892–1978),137 a Professor of International Law and former member of the Permanent Court of Arbitration, wrote one of the best available monographs on Alberico Gentili and his contribution to international law.138 Published in 1937, der Molen’s book provides a detailed account of Gentili’s life, and for decades it has constituted ‘perhaps the best biography ever written on an author in the field of international law’.139 Her lucid writing coupled with an in-depth knowledge of international law has made her monograph among the best starting points for approaching Gentili’s contribution to international law for decades. However, despite the evident merits of Van der Molen’s monograph, one cannot help but notice that certain elements of the puzzle are overemphasized while others remain under-researched. For example, an important part of Van der Molen’s work discusses theological matters, however this might not be what Gentili considered his true legacy. In fact, while Gentili wrote a theological pamphlet after his flight to England, he asked his brother Scipione to destroy the unpublished booklet after his death, a request that Scipione did not honour. Indeed, given Gentili’s (unfulfilled) request to have the pamphlet destroyed and the context in which it was written, it seems fair to infer that Gentili did not consider it to be one of his best works, let alone his true legacy. (Napoli 1875); L. Rava, Alberico Gentili (Roma: Tipografia Operaia Romana Cooperativa 1908). 135 Giuseppe Speranza, Alberico Gentili—Studi (Roma: Fratelli Pallotta 1876). 136 See Ennio Agabiti, Alberico Gentili—Fondatore della Scienza del Diritto Internazionale (Fermo: 1908); Amor Bavaj, Alberico Gentili—Fondatore della Scienza del Diritto Internazi­ onale (Macerata: Affede 1935); A. Valdarnini, Alberico Gentili—Fondatore del Diritto Inter­ nazionale (Macerata 1908). 137 Certainly, Gesina van der Molen was a formidable woman and an excellent jurist in her own right. She ‘played a leading part in the Resistance’ during World War ii and had a successful legal career afterwards. In 1998, she was recognized as Righteous Among Nations because she saved a number of Jewish children from deportation and death during WWII. See Bela Ruth Samuel-Tenenholtz, ‘Define Saving—Gesina van der Molen and Anneke Beekman: History and Identity after wwii’ (2009) 14 Shaanan 23–40, 23. 138 Gesina H.J. Van Der Molen, Alberico Gentili and the Development of International Law— His Life Work and Times (Leyden: A.W. Sijthoff 1937). 139 Nussbaum, A Concise History of the Law of Nations, 101.

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On the other hand, the historical context in which Gentili lived and worked deserves further investigation. Gentili had a powerful and influential network, and politics played an important, if not decisive, role in his life and work. Politics also determined his flight from his home town, where religious diversity was often equated with political dissent. Van der Molen did not have access to relevant documents in the Vatican Archives, which were classified at the time. However, these documents unveil important aspects of the character and figure of Alberico Gentili and help to explain why he fled. Gentili’s research method does not play a prominent role in Van der Molen’s book; yet, his methodology and peculiar use of historical, philosophical, and literary analogies in his work deserve explanation. This book suggests that far from constituting a mere display of erudition, the historical, philosophical, and literary analogies, which Gentili used abundantly in his works, helped him to shape his legal discourse and contributed to the development of the early modern law of nations. Gentili’s contribution to the law of the sea—namely, his balanced approach to the freedom of the seas, which he qualified to a significant extent, and his novel conceptualization of the territorial sea—deserve further scrutiny and attention. Finally, while Van der Molen repeatedly mentioned Gentili’s influence on Grotius, she did not examine the various similarities and differences between the two scholars that certainly deserve further scrutiny. More fundamentally, while Van der Molen’s monograph remains an excellent analysis and presents a useful starting point for any study on Alberico Gentili’s life and work, it is a product of the age in which it was written, and the literature on Gentili and the early modern period has developed quite dramatically since the end of wwii. Critical legal studies, postcolonial critiques, and Third World Approaches to International Law (twail) have dramatically changed the way we read the history of international law.140 Moreover, recent methodological debates on international legal history and theory have demonstrated that a pure legal approach to the history and theory of international law may not do justice to the legal theory of the past. This book aims to move the debate on Gentili forward, contextualizing the  work of this scholar in the historical period in which he lived, approaching his output with several contextual points of reference including political theorists and philosophers, theologians, geographers, and legal scholars. Gentili is situated both within the tradition of political thought stretching back to 140 See B.S. Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Community Law Review 3–27 (stressing the importance of highlighting the inner tensions and contradictions of international law, both in its history and its present institutions and practices).

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Thucydides (c.460–c.400 bc) and Tacitus (56–120) as well as within a rich conversation with sixteenth- and seventeenth-century political theorists such as Niccolò Machiavelli (1469–1527), Giovanni Botero (1540–1617), Justus Lipsius (1547–1606), Jean Bodin (1529—1596), Francis Bacon (1561–1626), Thomas Hobbes (1588–1679), and Giordano Bruno (1548–1600); theologians such as Francisco de Vitoria (1483–1546), Francisco Suarez (1548–1617), and Bartolomé de las Casas (1484–1566); geographers such as Richard Hakluyt (1553–1616); and legal scholars such as Pierino Belli (1502–1575) and Hugo Grotius. The book thus situates Gentili against a wide selection of sources, in order to better identify his original contribution to the early modern law of nations. This book aims to approach Gentili both thematically and on his own terms. Thematically, this study explores the themes of humanity, war, and peace, which were central concerns of Gentili’s legal theory. The book also examines the intellectual contributions that Gentili made to various subfields of the early modern law of nations, including the law of war, humanitarian law, and the law of the sea. While Gentili formed his legal theories in conversation with the writings and speeches of his monarchs Elizabeth i (1533–1603) and James i (1566–1625), he also shaped them in dialogue not only with ancient historians, philosophers, and poets, but also with sixteenth- and seventeenth-century intellectuals, including dissidents, radicals, and heretics, like Giordano Bruno, who was burned at the stake.141 By looking at both the intellectual and the political contexts, Gentili’s thought can be understood on its own terms. This contextual approach also helps us to interpret some controversial aspects of Gentili’s legal theory and to clarify the meaning of his work. The book’s original claim is that Gentili elaborated a sophisticated theory of the early modern law of nations and that such theory can be read in a dialectical way. On the one hand, some scholars have stressed that some lines of the Gentilian works can support narratives of empire. On the other hand, the book highlights that a different reading is also possible, namely, that far from supporting imperial expansion, or considering war as a necessary state of nature, Gentili’s theory emphasized the need to prevent and to fight hegemonies, to protect vulnerable sectors of societies, and to maintain peaceful relations among nations. He acknowledged the sovereignty and property rights of Indigenous peoples, explicitly rejecting the terra nullius argument and implicitly acknowledging their right to self-defence against imperialist expansion. Therefore, not only does this book examine the various debates over how to interpret

141 On the radical character of Giordano Bruno’s philosophy, see e.g. Eugenio Garin, L’Umanesimo Italiano (Bari: Laterza 1993) 228–251.

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Gentili’s work, thoroughly laying out the arguments on each side, but it also provides an in-depth analytical investigation of his work, to enable the reader to reach sound conclusions about the legacy of this scholar and his historical and contemporary relevance. The late Diego Panizza, former Professor in History of Political Thought at the University of Padua and Former Director of the Scientific Committee of the cisg in San Ginesio, focused on the political/ideological dimension of the Gentilian system and his contribution to global political thought.142 Panizza’s work inspired a methodological revolution in the Gentilian studies, by appraising Gentili’s work in the light of his historical, religious, and cultural context. His insights remain fundamental for understanding Gentili’s life and work. Panizza highlighted that Gentili was a fine political theorist and an architect of new political, legal, and institutional frameworks in the early modern period. Yet, he did not focus on Gentili’s distinct contribution to the law of nations. Instead, he focused on Gentili’s contribution to political theory. Legal historians have provided important insights on the Gentilian method and thought. Giovanni Minnucci, Professor of History of Medieval and Modern Law at the University of Siena, has contributed to the re-discovery, critical assessment, and publication of long forgotten Gentilian works.143 His attentive analysis has focused on Gentili’s method and contribution to the secularization of legal theory. In parallel, Alain Wijffels, Professor of Roman Law and Legal History at the University of Leuven, has led pioneering work on Gentili’s contribution to the early modern law of the sea, his methodology, and reflection on sovereignty.144 While these eminent scholars have focused on a series of important topics, adopting a fine-grained, clear, and compelling analysis, they do not specifically or comprehensively address the Gentilian contribution to the law of nations as a whole. The enigmatic work of Alberico Gentili has also attracted the attention of eminent international lawyers. Benedict Kingsbury, the Murry and Ida Becker Professor of Law at New York University, has explored Gentili’s approach to the challenge of cultural diversity. Kingsbury’s masterfully crafted analysis is historically informed and forward looking at the same time. Setting up an interdisciplinary team, Kingsbury has also edited a significant collection and the

142 Diego Panizza, Alberico Gentili, Giurista Ideologo nell’Inghilterra Elisabettiana (Padova: La Garangola 1981). 143 See e.g. Giovanni Minnucci, Silete Theologi in Munere Alieno. Alberico Gentili tra Diritto, Teologia e Religione (Milano: Monduzzi 2016). 144 See e.g. Alain Wijffels (ed) Alberico Gentili Consiliatore (Milano: Giuffrè 1999).

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translation of Gentili’s De Armis Romanis.145 This is a particularly valuable initiative that complements recent translations and editions of some Gentilian works.146 Despite significant progress, reflection on Gentili’s thought remains fragmented, focusing on individual works of Gentili rather than building a comprehensive reflection on his overall contribution to international law. To date no recent study has covered Gentili’s life and influence on international law in a comprehensive fashion. Similarly, no publication offers an analytical framework to assess his legacy. Therefore, this book aims to fill a significant gap in the history and theory of international law. It builds upon and contributes to the state of the art, adopting methods typical of international legal history,147 and the focus is mainly on aspects relating to Gentili’s contribution to international legal history and theory. After providing a short chapter detailing Gentili’s life, the book provides the reader with a complete analytical framework of his major theoretical contributions to international law. Such a theoretical framework may be of help to both practitioners and scholars who are interested in the past, present, and future of international law. 1.6

Key Challenges

What are the key challenges in the study of the life and works of Alberico Gentili? This section briefly discusses three critical issues, which have jeopardised access to, and understanding of, the Gentilian work. Retrieving Gentili’s life and work is not an easy task. First, despite the abundance of manuscripts and publications, until recently most archival sources have remained understudied. Second, the same manuscripts and publications have often been ignored due to the fact that Gentili wrote in Latin. While Latin was the lingua franca of his time and made his works accessible to an international audience, the use of 145 Alberico Gentili, The Wars of the Romans: A Critical Edition and Translation of De Armis Romanis, Benedict Kingsbury and Benjamin Straumann (eds.) David Lupher (trans) (­Oxford: oup 2011); Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foun­ dations of the Law of Nations (Oxford: oup 2010); V. Vadi, ‘Alberico Gentili on Roman Imperialism: Dialectic Antinomies’ (2014) 16 Journal of the History of International Law 157–177. 146 For recent translations, see e.g. Alberico Gentili, Les Trois Livres sur le Droit de la Guerre Dominique Gaurier (ed. and trans.) (Limoges: Presses Universitaires de Limoges 2012); Alberico Gentili, Il Diritto di Guerra (De Iure Belli Libri iii [1598]), Diego Quaglioni (intr) Giuliano Marchetto and Christian Zendri (eds.) Pietro Nencini (trans) (Milano: Giuffrè 2008). 147 Lesaffer, ‘International Law and its History’, 27–41.

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Latin has declined, particularly in recent decades. Most Gentilian publications have not been translated from Latin into modern languages, and thus remain inaccessible to the public. Third, Gentili had a peculiar dialectical style of writing that makes any translation difficult. Moreover, in the Gentilian works, good points often remain buried under layers of long-forgotten historical, literary, and philosophical arguments. Finally, because of the ambiguity of some of the Gentilian works, their interpretation has given rise to diverging opinions. This section considers each of these critical issues in detail. Archival work has just started on the considerable mass of Gentili’s manuscripts available at the Bodleian Library in Oxford.148 The Gentili Papers, in the D’Orville collection,149 contain several drafts of published and unpublished works, notes, and letters.150 Regrettably, the diary Gentili used to keep, ‘in which he entered, not only the conversations in which he took a part, but also those which he happened to overhear’, does not belong to the collection.151 The Papers are ‘notoriously bound in great disorder and Gentili’s own reworking of many pages of drafts and scrap notes do not make any systematic use of these notes any easier’.152 Access to the Gentilian manuscripts provided some interesting materials for this book that unveiled additional elements of Gentili’s life and work. There are notes and letters in other smaller collections. For instance, the Library of the Corpus Christi College, Oxford, preserves the correspondence between Gentili and John Reynolds on the propriety of stage plays.153 Other manuscripts, including legal opinions and briefs that Gentili wrote during his advocacy before the Court of Admiralty in London, are conserved among the Sir Julius Caesar’s Manuscripts at the British Library in London and the State Papers at the National Archives.

148 Van der Molen, Alberico Gentili and the Development of International Law, 58–59. 149 Thomas E. Holland, Studies in International Law (Oxford: Clarendon Press 1898) 15 (reporting that volumes of notebooks, written partly by Scipione and partly by Alberico Gentili, came into the possession of the book-collector and classical scholar Jacques Philippe D’Orville (1696–1751). The Bodleian Library acquired the collection in 1804 (mss. D’Orville 605–618)). The Bodleian Library also conserves the Papers of Sir Thomas Erskine Holland (1835–1926) relating to Alberico Gentili (mss. Eng. misc. c. 125–6; Ital. c. 20) that Holland bequeathed to the Library in 1926. 150 Holland, Studies in International Law, 15. 151 Id. 152 Alain Wijffels, Book review, G. Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus. L’inedito Commentario Ad Legem Juliam de Adulteriis (Bologna: Monduzzi Editore 2002) (2008) 76 Tijdschrift voor Rechtsgeschiedenis/Revue d’Histoire du Droit 420–421, 421. 153 Corpus Christi College, Oxford, mss 303 and 352.

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The printed volumes are often difficult to find, as they were put on the Index in 1602,154 and readers and traders of ‘heretical books’ could face fines and excommunication.155 The Biblioteca Nazionale Centrale in Florence holds several first editions of Gentili’s printed volumes. This seems rather surprising, as all of Gentili’s works were on the Index. The presence of several Gentilian first editions in the library nonetheless suggests the existence of some form of dissent even in those countries where the Reformation did not develop. Several first editions have been digitized and are available online. A systematic translation of all the Gentilian works from Latin into English would constitute the first step toward a better understanding, consideration, and diffusion of his work. In recent years, some translations of Gentilian works have been undertaken, yet a comprehensive project to translate all of Gentili’s work has yet to be undertaken. There is some benefit in addressing the opera omnia of a given author at the same time because one can make use of a coherent methodology, consistent linguistic choices, and improved readability. Some Gentilian works have never been published, and thus remain in manuscript format, which make them almost inaccessible to the general public. Gentili’s cursive handwriting is fluid and elegant but difficult to decipher due to the abbreviations, implicit references, and legal technicisms.156 Even those works which have been published but have never been translated from Latin into a modern language remain in a sort of limbo: Gentili’s Latin included medieval structures, neologisms, and abbreviations and can be difficult to translate. So far, Alberico Gentili’s work has been more cited than read, and when read, often read only in part and/or interpreted in a variety of ways.157 While diverging interpretations are a fact of life, a complete translation of the Gentilian works would not only make them accessible to a broader public and enable access to the intellectual universe of the author,158 giving such texts a new

154 Rosa Maria Borraccini, ‘Libri e Censura’, in vvaa, Alberico Gentili—le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura—Atti dei Convegni nel Quarto Centenario della Morte, vol. iii (Milano: Giuffrè 2012) 171–204, 191 (noting that Alberico Gentili’s op­ era omnia were put on the Index on 14 December 1602. Only one work by his brother Scipione, the De Iurisdictione, was on the Index.). 155 Id. 175. 156 Diego Quaglioni, ‘L’Edizione del Commento alla L Iulia de Adulteriis di Alberico Gentili’, in vvaa, Alberico Gentili—L’Ordine Internazionale in un Mondo a più Civiltà (Milano: Giuffrè 2004) 257. 157 Diego Quaglioni, ‘Appunti per una Edizione Italiana del De Iure Belli di Alberico Gentili’, in vvaa, Alberico Gentili—L’Ordine Internazionale in un Mondo a Più Civiltà (Milano: Giuffrè 2004) 243. 158 Quaglioni, ‘L’Edizione del Commento alla L Iulia de Adulteriis di Alberico Gentili’, 254.

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life,159 but it would also allow a more incisive, comprehensive, and powerful critical assessment of the merits and pitfalls of the Gentilian oeuvre. While not all of these works have an international law focus, and rather concentrate on matters of public and private law, they can enrich our understanding of the Gentilian legal theory. Therefore, a systematic translation of all the Gentilian works would likely contribute to the history and theory of international law. While ‘it is impossible to translate perfectly’,160 translating Gentili is particularly challenging. On the one hand, classicists may lack the legal expertise to translate crucial legal concepts. For instance, the English translation of the De Iure Belli, published under the auspices of the Carnegie Endowment for International Peace in 1933, was undertaken by a classical scholar.161 The translation appears to be liberal in many respects. On the other hand, lawyers may lack the linguistic skills to translate these texts. Given the complexity of Gentili’s way of writing, one also wonders whether a literal translation can be meaningful, or whether a more liberal approach, faithful to the spirit of the text, is preferable. A recent Italian translation of the De Iure Belli, translated by a lawyer, and edited by professors of legal history has favoured readability while maintaining the legal thrust of the text.162 The French translation, published in 2012 by a law historian, is perhaps the most literally accurate and precise.163 For the purposes of this book, I have used the English translations of the Gentilian works, where available,164 and the original texts in Latin. The Italian and French translations of the De Iure Belli were also useful to address ambiguous passages. Archival research was undertaken at the Bodleian Library in Oxford, where I personally consulted the Manuscripts authored by Alberico Gentili. I then undertook bibliographical research stays across Europe and the United States, to gather a variety of legal and interdisciplinary sources in different languages. While the book has an international law focus and is written by 159 Pietro Nencini, l’Esperienza di una Traduzione’, in Alberico Gentili—L’Ereditá di un Clas­ sico della Teoria Internazionale Moderna (Milan: Giuffrè 2008) 61–71, 69. 160 Annelise Riles, ‘Models and Documents: Artefacts of International Legal Knowledge’ (1999) 48 iclq 805–825, 818–820. 161 Alberico Gentili, De Iure Belli Libri Tres, John C. Rolfe (transl.) (Oxford: Clarendon Press 1933). 162 Alberico Gentili, Il Diritto di Guerra, Diego Quaglioni (intr.) Giuliano Marchetto and Christian Zendri (eds) Pietro Nencini (transl) (Milan: Giuffrè 2008). 163 Alberico Gentili, Le Trois Livres sur le Droit de la Guerre, Dominique Gaurier (ed. and transl.) (Limoges: Presses Universitaires de Limoges 2011). 164 Alberico Gentili, De Legationibus Libri Tres, Gordon J. Laing (transl.) (Oxford: oup 1924); Alberico Gentili, De Iure Belli Libri Tres [1612] John C. Rolfe (transl.) (Oxford: Clarendon Press 1933); Alberico Gentili, Hispanicae Advocationis Libri Duo, Frank Frost Abbott (transl.) (New York: oup 1921).

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a Professor of International Law, it relies on a variety of legal, historical, and literary sources, in the attempt to do justice to the complexity of Gentili’s output. Finally, the dialectical style Gentili used in his works makes detecting his line of argument particularly difficult. Gentili often seems to contradict himself, enumerating arguments and counterarguments in an apparently indefinite way. This does not mean he did not have a definitive opinion on given matters. Rather, this way of examining legal issues was a particular feature of the Italian style of studying law and particularly suited his analytical mind. As a lawyer, he was accustomed to anticipating the counterarguments that his opponent would likely offer to his own arguments. Therefore, this fundamental deliberate ambiguity is not due to a sort of post-modern anxiety, but to the particular style Gentili adopted when addressing given legal issues. Because of this intrinsic ambiguity of the Gentilian works, the Gentilian thought has given rise to diverging assessments. Far from attempting to propose a definitive interpretation of Gentili’s works, the book highlights the complexity of his thought, the legitimacy of the different interpretations of the same, and the fact that, like a mirror, the Gentilian opus has a translucent and reflective quality: it often seems to mirror the ideas of the reader. The book shows that the Gentilian thought is neither as liberal as his supporters claim nor as conservative as his detractors contend; rather, Gentili would often take opposing interests into account and attempt to strike a balance between them. The book therefore tries to provide a balanced analytical assessment of the Gentilian contribution to the law of nations, offers the reader the analytical tools to engage with the Gentilian work, and invites the reader to directly read the Gentilian works to form his or her own assessment and solution to the jigsaw. In particular, it offers an analytical framework and assessment of the Gentilian works, focusing on his contribution to international law. If the book succeeds in raising some curiosity about the work of this scholar, fostering a sustained academic debate, and ideally encouraging other scholars from across the globe to read and engage with Gentili’s work, then its aims will be achieved. 1.7 Conclusions Despite significant progress in the recent decades, reflection on Gentili’s thought remains fragmented. Several Gentilian works remain unpublished, and even among the published works, only a few have been translated from

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Latin into modern languages. Most scholars have focused on individual works only; a few have focused on his contribution to political theory. Van der Molen’s­ monograph remains an excellent work but does not sufficiently cover key ­aspects of the law of the sea, methodology, and the genetic linkage between the law of nations and the humanities in the early modern period. To date no recent study covers Gentili’s life and contribution to international law in a comprehensive fashion. Similarly, no publication offers an analytical framework to assess his legacy. This book aims to move the debate on Gentili forward, contextualizing the work of this scholar in the historical period in which he lived. Gentili is situated both within the tradition of political thought stretching back to Thucydides and Tacitus as well as within a rich conversation with sixteenth- and seventeenth-century political theorists, theologians, geographers, and legal scholars. The book thus places Gentili in conversation with a number of sources, in order to identify his original contribution to the early modern law of nations. This book aims to approach Gentili both thematically and on his own terms. Thematically, this study explores the themes of humanity, war, and peace across the whole Gentilian work; it also examines the intellectual contributions Gentili made to various subfields of the early modern law of nations, including the law of war, humanitarian law, and the law of the sea. While Gentili formed his legal theories on the early modern law of nations in conversation with the writings and speeches of his monarchs, Elizabeth i and James i, and leading statemen, he also shaped them in dialogue not only with ancient historians, philosophers, and poets but also with sixteenth- and seventeenth-­ century intellectuals, including dissidents, radicals, and heretics. Attention to both the intellectual and the political contexts allows Gentili’s thought to be assessed on its own terms. This contextual approach also helps us to illuminate some controversial aspects of Gentili’s legal theory. The book’s original claim is that Gentili elaborated a sophisticated theory of the early modern law of nations and that such theory can be read in a dialectical way. On the one hand, some scholars have stressed that some lines of the Gentilian works can support narratives of empire. On the other hand, a different reading is also possible: for some, Gentili’s theory emphasized the need to prevent and to fight hegemonies, to protect vulnerable sectors of societies, and to maintain peaceful relations among nations. Certainly, Gentili acknowledged the sovereignty and property rights of Indigenous peoples, explicitly rejecting the terra nullius argument and implicitly acknowledging their right to self-­ defence against imperialist expansion. Therefore, not only does the book examine the various debates on how to interpret Gentili’s work, thoroughly

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l­ aying out the arguments on each side, but it also provides an in-depth analytical investigation of Gentili’s work, to enable the reader to reach sound conclusions about the legacy of this scholar, his historical clout, and contemporary relevance. Therefore, this book aims to fill a significant gap in the history and theory of international law. The book builds upon and contributes to the state of the art, adopting methods typical of international legal history, and mainly focusing on aspects relating to Gentili’s contribution to international legal history and theory. It aims to provide the reader with a complete analytical framework of the Gentilian theoretical contributions to international law. Such a theoretical framework may be of help to both practitioners and scholars who are interested in the past, present, and future of international law.

Chapter 2

The Adventurous Life of Alberico Gentili All the world’s a stage, And all the men and women merely players; They have their exits and their entrances, And one man in his time plays many parts.1 Life is short; the life of man is a bubble— and, when compared with the age of the earth, almost nothing.2

∵ 2.1 Introduction Who was Alberico Gentili? What did he contribute to the early modern law of nations? Why does his work still matter today? What is his legacy for the future of international law? To address these questions, and to examine and critically assess Gentili’s contribution to international law, one must keep in mind his persona, i.e., his family background, education, and life experiences, as well as the historical, political, and cultural context in which he lived. The life of Alberico Gentili is a compelling story of success with all of the themes of a great narrative: faith, ambition, adventure, and a voyage into unknown lands, as well as conflicts, contradiction, and paradox. Born into a noble family in the Italian town of San Ginesio, in central Italy, he studied law and received a doctorate from the University of Perugia.3 Because of his Reformed

1 William Shakespeare, As You Like it [first performed in 1603, first published in 1623] (London: Broadview Press 2012) Act ii, Scene vii; cfr. Erasmus of Rotterdam, The Praise of Folly [1509] John Wilson (transl.)(Oxford: Clarendon Press 1913) 53. 2 Alberici Gentilis, De Armis Romanis (Hanau: apud Guilielmum Antonium 1599) Book i, Chapter 4 (vita brevis: vita hominis bulla: et ad mundi aevitatem collate, ferme nulla); Alberico Gentili, The Wars of the Romans, Benedict Kingsbury and Benjamin Straumann (eds) David Lupher (trans) (Oxford: oup 2011) 36–37. 3 Artemis Gause, ‘Alberico Gentili’, odnb (Oxford: oup 2004).

© VALENTINA VADI, ���� | doi:10.1163/9789004426030_003

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beliefs and in order to escape the Inquisition, he went to England,4 ­transitioning from a world of peril and fear to one of adventure and fame. After several months in London, which were ‘full of difficulties’,5 and under the patronage of Robert Dudley, Earl of Leicester, he began a career at the University of Oxford in 1581.6 In 1587, he was appointed as the Regius Professor of Civil Law, a chair that had been established by Henry viii (1509–1548) at All Souls College.7 In 1584, the government consulted him about the correct course to pursue with regard to the Spanish Ambassador, who had plotted against Queen Elizabeth i. Gentili recommended that the ambassador be expelled rather than criminally punished and subsequently expanded that argument into De Legationibus Libri Tres (On Embassies).8 In 1588 he published De Iure Belli Commentatio Prima (First Commentary on the Law of War).9 He later published the second and third part of the volume,10 and expanded and republished the three parts in 1598 as De Iure Belli Libri Tres (Three Books on the Law of War).11 He also wrote De Armis Romanis (The Wars of the Romans) in the 1590s. Because of the fame he acquired with these works, Gentili became increasingly engaged in legal practice in London. In 1600, he was admitted to the Gray’s Inn, and in 1605, he was appointed as counsel to the King of Spain before the High Court of Admiralty in London. He died on 19 June 1608 and was buried in the churchyard of Saint Helen in Bishopsgate, London. His work on legal cases for the Spanish King was published posthumously in 1613 as Hispanicae Advocationis Libri Duo (Pleas of a Spanish Advocate).12 Gentili published works on various topics, and not only did he contribute to the development of the law of nations of his time, but his writings on the same remain topical today. He separated the law of nations from theology and 4 5 6 7 8 9 10 11 12

Id. (noting that ‘the Inquisition issued life sentences to the “heretics” in absentia and confiscated their property … Alberico’s name[] w[as] struck from the town register and … from the legal code he had revised’.). Gesina H.J. Van der Molen, Alberico Gentili and the Development of International Law—His Life, Work, and Times, 2nd revised edition (Leyden: A.W. Sijthoff 1968) 44. Id. 46. Gause, ‘Alberico Gentili’. See Alberico Gentili, De Legationibus Libri Tres, Gordon J. Laing (trans.) (Oxford: oup 1924). Alberici Gentilis De Iure Belli Commentatio Prima (London: Johannes Wolfius 1588). Alberici Gentilis, De Iure Belli Commentatio Secunda (London: Johannes Wolfius 1588); Alberici Gentilis, De Iure Belli Commentatio Tertia (London: Johannes Wolfius 1589). Alberici Gentilis, De Iure Belli Commentationes Tres (London: Johannes Wolfius 1589); Alberici Gentilis, De Iure Belli Libri Tres (Hanau: Guilielmus Antonius 1598); Alberico Gentili, De Iure Belli Libri Tres [1612] John C. Rolfe (transl.) (Oxford: Clarendon Press 1933). See Alberici Gentilis, Hispanicae Advocationis Libri Duo (Hanau: apud haeredes Guilielmi Antoni 1613); Alberico Gentili, Hispanicae Advocationis Libri Duo, Frank Frost Abbott (transl.) (New York: oup 1921).

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d­ omestic law; he contributed to the humanization of the law of war and the conceptualization of religious freedom. His legal thought was subtle, precise, and rigorous. While earlier authors had addressed various international questions by relying almost exclusively on theological arguments, Gentili examined ­international relations from a different standpoint, namely, that of the law of nations. Gentili’s approach to religious tolerance and cultural diversity as well as his political pragmatism and cutting-edge legal analysis explain the continuing interest in his work. This chapter illuminates Gentili’s life, contextualizing it in its political, historical, and cultural background. Gentili lived and worked in an era of transition, and his work ‘reflect[s] his personal development against the backdrop of broader changes which took place in his lifetime’.13 Therefore, to understand his contribution to the law of nations, it is necessary to illuminate his political, historical, and cultural context.14 While Gentili’s life can be examined in different ways, this chapter tries to avoid portraying his life in a linear fashion, developed around a series of significant events.15 Rather, particular attention is given to the elements of discontinuity in the course of his life, i.e. those crucial times in which he had to make difficult choices. This chapter discusses some biographical elements in order to shed further light on Gentili’s contribution to international law. Such biographical elements certainly constitute a sort of microhistory that historians may find useful to further investigate historical events such as the Reformation, the Counter-­ Reformation, the wars of religion, and the migrations that followed. Such biographical elements are also essential for understanding the Gentilian oeuvre in the context of the historical events of the time.16 This contextualization foregrounds some of the tenets of the Gentilian theory of the law of nations: on the one hand, Gentili’s life experience helps explain why he theorized freedom of religion and adopted an anti-­hegemonic position against ‘tyrants’ who wished to impose a given religion on their subjects. On the other hand, the imprisonment of Gentili’s father, the exile of both father and son, and their separation from the rest of their family, help explain why the Gentilian oeuvre is characterized by a sense of urgency and fear. Gentili tried to make sense of some rather extraordinary events which shaped his life and his epoch; his works 13 14 15 16

Alain Wijffels, ‘From Perugia to Oxford: Past and Present of Political Paradigms’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 59–78, 58. Id. 78. See generally Carlo Ginzburg, Miti, emblemi, spie (Torino: Einaudi 1986) (cautioning against the temptation to analyse a life as a destiny). See generally Valentina Vadi, ‘Perspective and Scale in the Architecture of International Legal History’ (2019) 30 ejil 53–71.

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a­ ttempt to provide a legal map of an uneven and unmapped terrain. Gentili was both realist and idealist. While he acknowledged the brutality of his time, he also contributed some key legal concepts to the theory of international law including freedom of religion, cultural diversity, and the idea of balance. The chapter uses different, albeit related, dimensional scales moving from macro- to micro-levels of analysis. At the macro-level, Gentili’s life and works can only be understood against the background of the historical, political, and religious turmoil which characterized the second half of the sixteenth century.17 On the one hand, several breakthroughs occurred during this century. The geographical discoveries opened the way to global navigation and maritime trade. As a cultural movement, the Renaissance brought a change in the understanding of humanity’s place in the universe, renewed confidence in human endeavour, and emphasized the centrality of humankind in the order of things. As a religious movement, the Reformation began a debate that ­captured the hearts and imaginations of the European peoples. It also changed the ­political landscape, contributing to the emergence of sovereign states. On the other hand, political, religious, and social conflicts beleaguered Europe. Wars of ­religion—in the form of either civil wars or international conflicts— devastated countries and deeply affected civilians. By the end of the sixteenth century, the general consolidation of nation states ended this state of uncertainty as states emerged as guarantors of peace and order.18 Because Gentili’s life was shaped by the major political, historical, and social events of his time, the chapter also briefly considers the main features of the sixteenth century. At the micro level, the chapter inserts Gentili into a transnational system of relations that change according to chronological and geographical variables. Such interpersonal linkages can offer useful units of analysis for rendering Gentili’s complex identity. Gentili belonged to different networks. He belonged to the network of civilians adhering to the Italian way of teaching law (mos italicus), even though he later endorsed elements of the French school (mos gallicus). This also enabled him to enter into the select network of admiralty lawyers and royal advisors on matters of foreign policy. Gentili also belonged to the so-called ‘heretical networks’ across Europe and beyond.19 Intellectuals, like Gentili, who adhered to the Reformation, were 17 18 19

Diego Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale di un Giurista Italiano nell’Inghilterra Elisabettiana’, in Alberico Gentili—Giurista e Intellettuale Globale—Atti del Convegno Prima Giornata Gentiliana (Milano: Giuffrè 1988) 33–58, 35. Id. 36. Ole Peter Grell, Brethren in Christ. A Calvinist Network in Reformation Europe (Cambridge: cup 2011) (following the fortunes of the Calandrini family who were influential Italian Reformed bankers and merchants and who were forced to flee from the Tuscan city of

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­ ersecuted for their religious faith. That persecution, which could take the p form of imprisonment, torture, and even capital punishment, intensified migration processes across Europe.20 In a rather nomadic fashion, intellectuals often moved from country to country, from one university to another, in the search of a safe haven. Gentili belonged to a wave of European intellectuals who escaped religious persecution, and eventually formed, and participated in, powerful networks.21 Gentili also fit into the political, cultural, and intellectual elite of Elizabethan England. Because of his links to the highest echelons of Elizabethan society, Gentili became an Oxonian academic, thus participating in the main political, cultural, and legal debates of the time and developing a network of friends and colleagues, which included well-read geographers, poets, playwrights, scientists, philosophers, and even key courtiers, statesmen, ambassadors, ministers, and sovereigns. Although he was of an ‘impetuous nature’, and ‘rather irritable’ towards his opponents, he ‘had many friends, to whom he was very loyal’.22 Gentili’s mobility across different cultures formed his identity as a scholar. He spent almost half of his life in his native country and the rest of it overseas. Gentili was a cosmopolitan academic; trained at the University of Perugia, he eventually became Regius Professor at the University of Oxford.23 His wife, Hester de Peigne (d. 1648), was a religious refugee from France. Throughout his Lucca during the 1560s). Alberico Gentili had connections with the Calandrini family. Filippo Calandrini, who had originally settled in France and fled to London after the St. Bartholomew’s Day Massacre, witnessed Alberico’s will. Alberico’s brother, Scipione, would later marry Maddalena Calandrini, the daughter of the wealthy merchant Cesare Calandrini. Thomas E. Holland, Discorso Inaugurale letto nel Collegio dei Fedeli Defunti in Oxford il 7 Novembre 1874, Aurelio Saffi (trans) (Roma: Ermanno Loescher 1884) 45. Scipio­ ne and Maddalena’s daughter, Ester Gentili (1612–1671), married Giovan Luigi Calandrini (1585–1656) on 22 May 1642. They lived in Geneva and had four children: Maddalena, Giovanni, Ester, Susanna. Francesca Luzzati Laganà, ‘Giovanni Calandrini’, dbi 16 (1973). 20 J.F. Boscher ‘Huguenot Merchants and the Protestant International in the Seventeenth Century’ (1995) 52 William & Mary Quarterly 77–102, 77. 21 Suzanne Lachenicht, ‘Huguenot Immigrants and the Formation of National Identities’ (2007) 50 Historical Journal 309–331, 310–311, and 313 (explaining that ‘what many … Protestants brought into their country of refuge were strong social ties which often extended to family members and co-religionists … who had settled thoroughout the Western world’.). 22 Van der Molen, Alberico Gentili and the Development of International Law, 266–267 (noting that ‘great was his gratitude towards all who had kindly met him as an exile and assisted him’.). 23 See, e.g., Daniel R. Coquillette, ‘Legal Ideology and Incorporation i: The English Civilian Writers, 1523–1607’ (1981) 1 Boston University LR 61 (suggesting that Gentili’s international connections helped him develop his thought on the law of nations).

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life, he stayed in contact with his younger brother, Scipione (1563–1616), who was a Professor at the Academy of Altdorf near Nuremberg, in what is today southeast Germany. Not only did Gentili’s research have an international character, but he often published overseas.24 He always wrote in Latin, the lingua franca of the time.25 And his cosmopolitan lifestyle and experiences enabled him to develop a unique approach to the law of nations. This introductory chapter provides a ‘thick description’ of Gentili’s life, by exploring the social, cultural, and political context in which he lived.26 This approach also enables us to approach Gentili’s work with new eyes, possibly dispelling some of the ambiguities in his writings.27 To map Gentili’s life, the chapter relies on the combined use of literary, historical, and legal sources, as well as the reading of the Gentilian Manuscripts at the Bodleian Library in Oxford. The chapter also takes into account recent archival discoveries. In fact, the 1998 opening of the Holy Office’s central archive (Archivio della Congregazione per la Dottrina della Fede or acdf) in the Vatican has generated new research on the Roman Inquisition and unveiled important information on the diffusion of the Reformation in the Marches and on Gentili’s heresy trials.28 24 Id. 25 Van Der Molen, Alberico Gentili and the Development of International Law, 46 (‘Latin was the language of the educated people, and consequently [Gentili] could talk with his equals, wherever he came, without any difficulty, and was also certain that he would be understood by the students at the University’.) 26 Clifford Geertz, ‘Thick Description: Toward an Interpretive Theory of Culture’, in The Interpretation of Cultures: Selected Essays (New York: Basic Books 1973) 3–30 (defining a thick description of a human behavior as one that explains not just the behavior, but its context as well, to an outsider). 27 On the linkage between history and theory in law, see Maksymilian Del Mar and Michael Lobban (eds) Law in Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart Publishing 2016). 28 Regrettably, the original manuscript proceedings transcribed during the Gentili trials have never been found. Such proceedings would help define more precisely the religious inclination of Gentili’s family. Originally kept in the Vatican Secret Archives, i.e. the private archive of the Pope (Archivum Secretum Apostolicum Vaticanum, asv), accessible to scholars since 1881, the transcripts of the Gentili trials have never been found. They may have been lost when, in 1810, the Napoleonic Army confiscated them and brought them to Paris. See John A. Tedeschi, The Prosecution of Heresy—Collected Studies on the Inquisition in Early Modern Italy (New York: suny 1991) 25. In Paris, there was an attempt to reorganize the archives according to more systematic criteria. However, in the aftermath of Napoleon’s exile, the archives returned to Rome. Therefore, the archives ‘lost the integrity of the old piecemeal system of organization, without acquiring a completely new organizational structure’. See Phillip Cuccia, ‘Controlling the Archives: The Requisition, Removal, and Return of the Vatican Archives during the Age of Napoleon’ (2013) 17 Napoleonica 66–74. Moreover, during the journey, ‘useless’ documents were burned or sold by weight

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The chapter proceeds as follows. First, it narrates Gentili’s family background and his early years in San Ginesio. Second, it illustrates Gentili’s studies at the University of Perugia. Third, after briefly illuminating the main features of the Italian Reformation, it discusses Gentili’s religious beliefs. Fourth, after touching upon his several moves across Europe, the chapter narrates his years in Oxford and London, examining his experience as the Regius Professor of Civil Law at the University of Oxford and as the Advocate of Spain at the Admiralty Court in London. Finally, some preliminary conclusions are drawn. 2.2

The Early Years in San Ginesio

Alberico Gentili was born on 14 January 1552 into a noble family in the Italian town of San Ginesio, in the Marches.29 Positioned in the central part of Italy, on top of a hill facing the Adriatic Sea, San Ginesio was a ‘small but lively’ Renaissance city (civitas), surrounded by a beautiful landscape of fields and vineyards.30 Under the direct rule of the Pope, the flourishing commune had a population of 25,000 and a thriving wool trade.31 Like other towns in Italy, San Ginesio was characterized by internal conflicts that inevitably affected Gentili’s childhood and early youth.32 In the sixteenth century, while the Renaissance spread from Italy out to other European countries, Italy itself endured a ‘political eclipse’.33 As internal wars raged throughout the peninsula, European monarchies overtook the Italian princes in terms of political and military power.34 The Papal States were not immune from this broader political transformation; Rome itself had been invaded by military

29 30 31 32 33 34

to cut the costs of the return. One third of the archival documents that went to Paris never returned to the Vatican. Tedeschi, The Prosecution of Heresy, 26. It remains unclear whether the transcription of the Gentili’s trials was destroyed or remains in the asv. Van der Molen, Alberico Gentili and the Development of International Law, 36 (‘Not only were the Gentili family distinguished citizens of San Ginesio, they were also of considerable substance’.). Diego Panizza, ‘Presentazione del Centenario e del Convegno Inaugurale’, vvaa, Alberico Gentili—Le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura—Atti dei Convegni nel Quarto Centenario della Morte, vol. iii (Milano: Giuffrè 2012) 54. Amedeo Giannini, ‘Alberico Gentili’ (1957) 34 Rivista Internazionale di Filosofia del Diritto 366. Angela De Benedictis, ‘Gentili, Alberico’, dbi 53 (Roma: Istituto dell’Enciclopedia Italiana 1960-current). Richard Mackenney, Sixteenth Century Europe—Expansion and Conflict (New York: Palgrave 1993) 5. Id. 6.

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troops in 1527 and rivalries between local oligarchs were relatively common in the Marches. As a result of such rivalries, in April 1560, at Easter, two noblemen were assassinated before the altar in the cathedral (Pieve Collegiata) of San Ginesio, during a religious function.35 One of them was a relative of Alberico Gentili.36 A first temporary reconciliation between the two political factions took place in 1570, with the help and mediation of Gentili’s paternal uncle Pancrazio, a physician.37 The final settlement of the dispute took place only after Alberico Gentili himself—as a lawyer of the town—proposed at the general council meeting of San Ginesio on 25 January 1578 to replace the use of force with arbitration.38 Like other towns in Italy, San Ginesio was also threatened by Ottoman incursions. In the 1560s and 1570s the major powers of the Italian peninsula joined forces against the Ottoman expansionist agenda in the Mediterranean Sea.39 The papacy contributed a dozen ships and a few thousand men40 including several people from San Ginesio (and a relative of Gentili, Bartolo Gentili) who distinguished themselves during the Battle of Lepanto in October 1571.41 The decisive victory was celebrated throughout Europe as one of the century’s great military feats.42 Alberico Gentili’s parents, Matteo Gentili (1517–1602) and Lucrezia Petrelli (d. 1591) belonged to noble, influential, and wealthy Sanginesian families which included doctors, soldiers, and lawyers.43 Matteo was a well-respected physician. He held a degree in medicine and philosophy from the University of Pisa.44 At the same university, Matteo attended the course on philosophy read by

35 36 37 38 39 40 41 42 43

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De Benedictis, ‘Gentili, Alberico’. Febo Allevi, ‘Alberico Gentili nel suo Paesaggio Ginesino’, in vvaa, Alberico Gentili—­ Giurista e Intellettuale Globale (Milano: Giuffrè 1988) 59–123, 101. Giuseppe Colucci, Delle Antichità Picene, vol. xxiii (Fermo 1795) 236. Allevi, ‘Alberico Gentili nel suo Paesaggio Ginesino’, 109. Thomas J. Dandelet, ‘Politics and the State System after the Habsburg–Valois Wars’, in John A. Marino (ed.) Early Modern Italy (Oxford: oup 2002) 11–29, 15. Id. 17. Allevi, ‘Alberico Gentili nel suo Paesaggio Ginesino’, 114. Dandelet, ‘Politics and the State System after the Habsburg–Valois Wars’, 18. Luigi Lacchè, ‘Giuristi e Cultura Giuridica nella Marca ai tempi di Alberico Gentili’, in vvaa, Alberico Gentili—le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura—Atti dei Convegni nel Quarto Centenario della Morte, vol. iii (Milano: Giuffrè 2012) 250. Luigi Firpo, ‘La Chiesa Italiana di Londra nel Cinquecento’, in Delio Cantimori (ed.) Ginevra e l’Italia (Firenze: Sansoni 1959) 309–412.

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Simon Portius (1496–1554),45 a follower of Pietro Pomponazzi (1462–1525),46 becoming familiar with Aristotelian thought.47 During his studies, he also had contacts with the Reformer Pietro Vermigli (1499–1562).48 Alberico was the eldest of Matteo and Lucretia’s seven children, including Manilio, Antonio, Nevida, Vincenzo, Scipione, e Quinto.49 Their home, a town house of moderate dimensions, was close to the main square—the then Piazza Maggiore—dominated by the beautiful church (Pieve Collegiata), a rare example of flamboyant gothic architecture.50 The Gentili family remained based in San Ginesio, although Matteo also practised medicine in nearby towns, including Tolentino (from 1559 to 1562), Borgo San Sepolcro (until 1571), and Ascoli (until 1573).51 Both parents were involved in educating their children at home, with a course of instruction that included Latin and ancient Greek.52 During the long winters, after dinner, Matteo used to sit before the fireplace and teach Latin to Alberico and Scipione, his most promising children.53 At the time Latin ‘was a spoken language as well as a written one’.54 Not only was it the official language of the clergy, but it was also used in the law and public administration, and therefore familiar to many of the laity. It was common at the time, for educated 45

Eva Del Soldato, Simone Porzio. Un Aristotelico tra Natura e Grazia (Roma: Edizioni di Storia e Letteratura 2010) 149 (highlighting that the Neapolitan physician and Professor at the University of Pisa invited ‘to a renewed inner religiousness’, exalted grace and faith for salvation.). 46 Eugenio Garin, Storia della Filosofia Italiana, vol. ii (Turin: Einaudi 1966) 505–540, 565– 572 (noting that Pomponazzi denied the existence of miracles, the immortality of the soul, and free will.). 47 Dante Cecchi, ‘Prolusione’, in vvaa, Alberico Gentili—Giurista ed Intellettuale Globale (Milano: Giuffrè 1988) 17–29, 26. 48 Mark Taplin, ‘Vermigli, Pietro Martire’, odnb (Oxford: oup 2004–2016) (noting that Pietro Vermigli, a Florentine evangelical reformer, held a doctorate in theology from the University of Padua and lectured at various universities including Pisa. After embracing the key Protestant tenets of justification by faith alone and predestination, he held chairs in Strasbourg and Zurich. He was also appointed Regius Professor of Divinity at the University of Oxford.). 49 Holland, Discorso Inaugurale, 10. 50 Allevi, ‘Alberico Gentili nel suo Paesaggio Ginesino’, 75. 51 Alessandro Pastore, ‘Gentili, Matteo’, dbi 53 (Roma: Istituto dell’Enciclopedia Italiana 1960-current); Ennio Agabiti, Alberico Gentili—Fondatore della Scienza del Diritto Internazionale (Fermo: 1908) 30. 52 Van der Molen, Alberico Gentili and the Development of International Law, 37. 53 Allevi, ‘Alberico Gentili nel suo Paesaggio Ginesino’, 87. 54 Peter Burke, The Historical Anthropology of Early Modern Italy (Cambridge: cup 1987) 84.

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people, to ‘interlard their Italian, or even their dialect … with Latin phrases’.55 Gentili studied the humanities (studia humanitatis), including rhetoric, poetry, history, and moral philosophy. Alberico Gentili’s ‘love and devotion’ for his family was notable. ‘His touching veneration for his father must have sprung partly from the close congeniality of spirit which united them’.56 ‘He also remember[ed] his mother … with great respect’.57 He was close to his brother Scipione, to whom he entrusted the posthumous publication of his last work, the Hispanica Advocatio. In the Six Dialogues on the Interpreters of Law, which he wrote to teach his brother Quinto, ‘a warm heartfelt sound of personal love is heard among the dry subjects for tuition’.58 2.3

Studying Law at the University of Perugia

Coming from a noble family and being a talented student, Gentili was to pursue his studies at university level.59 In 1569, he entered the Faculty of Law at the University of Perugia, in the neighbouring region of Umbria.60 When Gentili reached the University of Perugia, it had run for almost three centuries and had hosted leading civilians such as Cino da Pistoia (1270–1336/37), Bartolus (1314–1357), and Baldus (1327–1400).61 Not only had the University of Perugia produced its own school of jurisprudence, but it was then one of the most famous in Italy and attracted students from all over Europe.62 The University of Perugia was thus a fortress of the Italian style of studying law (mos italicus iura docendi).63 Proponents of the mos italicus considered Roman law as living law, interpreting and adapting it to current circumstances. At the heart of the mos italicus was the study of the ius commune, an amalgam of Roman, canon, and feudal law supplemented by layers of medieval interpretations which had coalesced for almost a millennium. Followers of the Italian 55 Id. 85. 56 Van der Molen, Alberico Gentili and the Development of International Law, 266. 57 Id. 58 Id. 59 Brendan Dooley, ‘The Public Sphere and the Organization of Knowledge’, in John A. Marino (ed.) Early Modern Italy (Oxford: oup 2002) 209–228, 216 (noting that only youth belonging to the elites had access to university education). 60 Lacchè, ‘Giuristi e Cultura Giuridica nella Marca ai tempi di Alberico Gentili’, 251. 61 Holland, Discorso Inaugurale, 10 (noting that Cino da Pistoia, Bartolus, and Baldus all lectured and held chairs in Perugia in the late Middle Ages). 62 Van der Molen, Alberico Gentili and the Development of International Law, 274. 63 Wijffels, ‘From Perugia to Oxford’, 61.

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style mainly studied the sixth century Corpus Iuris Civilis of Justinian. In addition to this set of materials, they also studied the medieval notes, explanations (glossae), and commentaries of the same texts, and attempted to put Roman law into practice, applying it to current circumstances. For them, Roman law expressed common sense in a written way (ratio scripta) and could be adapted to be applied to their society. By the second decade of the sixteenth century, however, another method of studying law had emerged, the French style of teaching law (mos gallicus iura docendi) mainly adopted by legal humanists in French law schools. Proponents of the French style criticized the Italian style for being outmoded. They considered law as a historical product and criticized the medieval interpolations of ­Roman law.64 Rather, they devoted themselves to scrutinizing the classical Roman law from a philological, historical, and philosophical perspective.65 Yet, the newer style met with scarce if any approval in Perugia, where students still preferred the Italian style, favouring the usual focus on legal matters and protesting against long historical explanations. While Gentili mastered the Italian style, and has long been considered as one of its principal supporters, he also borrowed elements from the French style.66 Law was the language of power in early modern Europe.67 Lawyers influenced both cultural and political settings,68 carrying a measure of social, cultural, and political weight.69 Well-versed in the humanities, not only were ­lawyers great intellectuals, but they also influenced politics.70 As most law was not codified, it had to be found and interpreted by lawyers. The necessity of lawyerly interpretation conferred high political standing to lawyers. Because of their knowledge of the law and rhetorical skills, lawyers were the ‘best 64 65 66 67 68

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Donald R. Kelley, ‘The Rise of Legal History in the Renaissance’ (1970) 9 History and Theory 174–194. Paola Anna Pillitu, ‘Metodo Scientifico e Libertà di Religione in Alberico Gentili’, in Diego Panizza (ed.) Alberico Gentili—Politica e Religione nell’età delle Guerre di Religione (­Milano: Giuffrè 2002) 45. See Chapter 3 below. Lacchè, ‘Giuristi e Cultura Giuridica nella Marca ai Tempi di Alberico Gentili’, 247; Diego Quaglioni, Machiavelli e la Lingua della Giurisprudenza (Bologna: Il Mulino 2011) 59. Silvia Ferretto, ‘La Scienza della Politica tra Filosofia e Riflessione Religiosa nella Formazione di Alberico Gentili’, in vvaa, Alberico Gentili—Le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura—Atti dei Convegni nel Quarto Centenario della Morte, vol. iii (Milano: Giuffrè 2012) 263–277, 265. Lauro Martines, Lawyers and Statecraft in Renaissance Florence (Princeton NJ: Princeton University Press 1968). Eugenio Garin, ‘L’Uomo del Rinascimento’, in Eugenio Garin (ed.) L’Uomo del Rinascimento (Roma/Bari: Laterza 1988) 3.

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equipped to engage in public debate’.71 Lawyers served in the law-making processes of legislative councils; had consultative functions providing legal opinions (consilia), and often adjudicated disputes. Participating in the exercise of legislative, executive, and judicial powers, lawyers exercised distinct political functions. When Alberico Gentili studied law, likely from 1569 to 1572,72 legal studies were not divided into specific disciplines (such as international law, commercial law, etc); rather, lecturers focused on the various legal texts composing the Corpus Iuris Civilis.73 Civil lawyers did not specialize in a specific legal area; rather, they addressed a broad range of issues, ranging from private law to criminal law, from contract law to the law of nations.74 University education centred upon the lecture (lectio) and the disputation (disputatio). The lectures explained and commented upon given legal texts. In most cases, the students simply listened and took notes. At the end of each lecture, they received reading lists to prepare themselves for the next lecture.75 For Gentili, this was a most useful methodology (utilissima studendi ratio).76 Disputations, on the other hand, were public disputes in which the students played a more active role, applying what they had learnt. Usually disputations took place once a week. The presiding scholar posed the question to examine. The students had to address the question, some arguing for the affirmative side, others against. The chair then provided the definitive answer after synthesizing the various arguments. The use of the dialectical format that included the presentation and overt refutation of opposing arguments allowed students not only to develop rhetorical skills but also some analytical thinking. Latin was ‘the medium of instruction’.77 However, it was not the classical Latin of Cicero; rather it was ‘a mixture of Latin and the vernacular’.78 71

Lauro Martines, The Social World of the Florentine Humanists (Princeton NJ: Princeton University Press 1963) 249–250. 72 Ferdinando Treggiari, ‘Alberico Gentili Alumnus’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 9–28, 13. 73 Alain Wijffels, ‘Alberico Gentili, Padre e Giurista’, in Alain Wijffels (ed) Alberico Gentili Consiliatore (Milano: Giuffrè 1999) 131–155, 134. 74 Id. 134–135. 75 Giorgio Badiali, ‘Le Guerre di Religione nel Pensiero di Alberico Gentili’, in Diego Panizza (ed.) Alberico Gentili—Politica e Religione nell’età delle Guerre di Religione (Milano: Giuffrè 2002) 28. 76 Alberico Gentili, Lodi delle Accademie di Perugia e di Oxford, G. Ermini (ed) (Perugia: Libreria Universitaria 1968). 77 Burke, The Historical Anthropology of Early Modern Italy, 85. 78 Id. 87.

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Gentili received his doctoral degree in civil law (in iure caesareo) on 23 September 1572.79 He passed his exam in the Cathedral of San Lorenzo, in Perugia. The examining board was composed of doctors in law and the Bishop, as was customary at the time.80 The exam consisted in receiving two legal issues (puncta) and discussing such issues in public after preparing for twenty-four hours.81 The members of the examining board gave their grades—A for ­approval (approbatio), R for reprobatio—in secret.82 The Board approved ­Gentili’s defence unanimously.83 After professing his faith, with his hand on the Bible as was customary, he was proclaimed a doctor in civil law, thus obtaining the license to lecture, interpret, and write legal opinions.84 In a later speech, in which Gentili praised both the University of Perugia and the University of Oxford,85 he wrote that the exams in Perugia were so difficult that some candidates moved to other universities where they had a higher chance of passing.86 In late 1572, Gentili became a judge (praetor) with civil as well as criminal jurisdiction in Ascoli, where his father practiced medicine.87 The local statutes required that judges should not be local in order to preserve judicial independence and impartiality.88 Between 1574 and 1578, Gentili took up advocacy work in San Ginesio, where he revised the fifth book of the municipal statute.89 Municipal statutes used to be periodically rewritten to strengthen the local autonomy from the central government and prevent conflicts between the town and the central power as well as local conflicts.90 These revisions could entail the deletion of obsolete norms and the adoption of new norms r­ eflecting

79

Oscar Scalvanti, ‘L’esame di Laurea di Alberico Gentile nell’Ateneo di Perugia (Anno 1572)’, viii Annali dell’Università di Perugia (1898) 37–64. 80 Treggiari, ‘Alberico Gentili Alumnus’, 16. 81 Id. 82 Id. 19. 83 Id. 20 (noting that Gentili discussed issues related to restitution and tax law). 84 Id. 19–23. 85 Alberici Gentilis, Laudes Academiae Perusinae et Oxoniensis (Hanau: apud Guilielmum Antonium 1605). 86 Thomas E. Holland, Studies in International Law (Oxford: Clarendon Press 1898) 4. 87 Id. 5. 88 Lacchè, ‘Giuristi e Cultura Giuridica nella Marca ai tempi di Alberico Gentili’, 252. 89 Mario Ascheri, ‘Lo Statuto del Comune di San Ginesio: il Libro della Città’, in vvaa, Alberico Gentili—le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura (Milano: Giuffrè 2012) 59–74, 66. 90 Irene Fosi, ‘Istituzioni Cittadine, Feudalitá, Papato e Giustizia’, in vvaa, Alberico Gentili— le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura (Milano: Giuffrè 2012) 219–230, 227.

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emerging customs and traditions.91 In any case, they were subject to the approval of the municipal council and the central government in Rome.92 Not only did the statute govern the institutional organization of the town, but it also included civil and criminal procedural law.93 Gentili completed the revisions, and presented the statute book to the local authorities for approval on 22 September 1577.94 While Gentili’s work was praised and he was invited to hold the post for a second time, he declined—preferring to dedicate his time to research. Reportedly, Gentili wrote on various legal topics during the early years of his professional career. However, these early works were lost due to the Inquisition’s action against the ‘heretics’ in the Marches. As soon as Gentili was condemned as a heretic, the circulation of his works was forbidden and his books were destroyed. Even his name was deleted from the Statute of San Ginesio, as if he never contributed to its revision (damnatio memoriae).95 The next section will explore the diffusion of the Reformation in the Marches, the subsequent repression by the Counter-Reformation forces, and how the religious conflict affected the Gentili family. 2.4

The Italian Reformation

The conflict between the Reformation, the religious and political movement initiated by Martin Luther (1483–1546) and continued by other Reformers, and the Counter-Reformation, the Catholic response to the Reform, divided early modern Europe. The Reformation emphasized the importance of personal faith for salvation, removed the Church as the vehicle of the sacred, and rapidly spread from Germany to the rest of Europe in response to some perceived failures of the Roman Catholic Church. Widespread and diverse, not only did the Reformation reach the intellectual elites, but also merchants, artisans, and farmers across Europe. While the Reformation succeeded in Northern Europe, in Italy it met a more uncertain fate, due to the firm repression by both political and religious local

91 92 93 94 95

Cecchi, ‘Prolusione’, 24. Lacchè, ‘Giuristi e Cultura Giuridica nella Marca ai Tempi di Alberico Gentili’, 249. Ascheri, ‘Lo Statuto del Comune di San Ginesio’, 62–63. Pepe Ragoni, ‘Presentazione’, in Andrea Maiarelli and Sonia Merli (eds.) Statutorum Volumen della Comunità di San Ginesio—La Presenza di Alberico Gentili dalla Redazione Manoscritta alla Stampa (San Ginesio 2008) xi–xiv, xiii. Ascheri, ‘Lo Statuto del Comune di San Ginesio’, 66.

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authorities.96 By the end of the sixteenth century, it had been almost completely repressed.97 On the one hand, the rulers of the various Italian states could not formally support the Reform without jeopardizing their political power. On the other hand, the Papal States occupied a large and central territory of the Italian peninsula, combined both temporal and spiritual rule, and repressed any form of political and religious dissent.98 The repression spurred the flight northwards of numerous religious refugees who crossed the Alps to escape persecution.99 Since the medieval period, the Marches had been a part of the Papal States governed by the Papacy not only spiritually, but also in a temporal sense. During the Renaissance, the Papacy tightened its political, economic, and social control over the area. There was no limitation to Papal authority. While in other lands, the religious power of the Pope was somehow ‘mediated’ by the temporal power of local rulers, there was not such mediation in the Papal States. When the Reformation spread in the Marches, San Ginesio faced a particularly harsh repression, as it was one of the communities under the direct control of the central government. Religious minorities became the target of growing restrictions. While in earlier epochs, the Papal States had tolerated religious minorities for economic reasons and in the belief that conversion would follow,100 a more dogmatic

96

For pioneering works, see Delio Cantimori, Gli Eretici Italiani del Cinquecento (Firenze: Sansoni 1939) (highlighting that for almost three centuries, historians considered the Italian Reformation to be a phenomenon that remained peripheral to the religious renewal process in Northern Europe, but stressing that the Italian Reformation was an important movement in its own right); Frederich C. Church, The Italian Reformers (New York: Columbia University Press 1932). For more recent studies, see Salvatore Caponnetto, La Riforma Protestante nell’Italia del Cinquecento (Turin: Claudiana 1992); Massimo Firpo, Riforma Protestante ed Eresie nell’Italia del Cinquecento (Rome and Bari: Laterza 1993); Silvana Seidel Menchi, ‘Italy’, in Robert Scribner, Roy Porter, and Mikuláš Teich (eds.) The Reformation in National Context (Cambridge: cup 1994) 181–201; Ronald K. Delph, Michelle Fontaine, and John Martin, Culture and Religion in Early Modern Italy: Contexts and Contestations (Kirksville, MO: Truman State University Press 2006) (stressing that the Italian Reformation should be understood in its own political context). 97 John Tedeschi, ‘I Contributi Culturali dei Riformatori Protestanti Italiani nel Tardo Rina­ scimento’ (1987) 64 Italica 19–61, 19–20, and 22 (noting the exception of the Waldensians in Piedmont). 98 Fosi, ‘Istituzioni Cittadine, Feudalitá, Papato e Giustizia’, 222. 99 Holland, Studies in International Law, 6. 100 See generally Renata Segre, ‘La Controriforma: Espulsioni, Conversioni, Isolamento’, in Corrado Vivanti (ed.) Gli Ebrei d’Italia (Torino: Einaudi 1996) 707–778.

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approach was now adopted.101 For instance, under the Papal bull Hebraeorum gens sola quondam a Deo dilecta of 26 February 1569, Pope Pius v (1504–1572) required the expulsion of the Jewish communities from the Papal States except those living in Ancona and Rome. The San Ginesian Jewish community was exiled in 1569. Even in Rome and Ancona, where the Jewish communities of the Papal States could lawfully reside, there was no freedom of religion; rather, forced proselytism was repeatedly attempted. Moreover, allegedly false conversions were prosecuted and ‘heretics’ condemned to be burned at the stake.102 Protestants living in the Marches fared no better. In 1542 Pope Paul iii (1468–1549) revived the Roman Inquisition (the Congregation of the Holy Office of the Inquisition) to prevent the diffusion of Protestantism in the Italian peninsula.103 Mainly made up by theologians, the Tribunal aimed at defending the unity of the faith and barring allegedly false doctrines. Operating behind closed doors,104 the Tribunal generally followed detailed rules, which, however, were not binding.105 While a defence lawyer was an integral part of the procedure, the names of prosecution witnesses were concealed.106 Already in 1556, rumours reached the Inquisition that San Ginesio was a harbour for Protestants (asylum lutheranorum).107 Because some episodes of iconoclasm took place in the countryside, and acts of iconoclasm were not infrequent in Reformation areas, a suspicion arose that some locals might be Reformists. Moreover, Protestant books which were requisitioned in Como were directed to San Ginesio.108 From Loreto, a fort of Papal authority in the Marches, Jesuit brothers travelled to San Ginesio, reportedly converted the Lutherans, and absolved them in private (in foro conscientiae) rather than bringing them before the Inquisition.109 101 John Jeffries Martin, ‘Religion, Renewal, and Reform in the Sixteenth Century’, in John A. Marino (ed.), Early Modern Italy (Oxford: oup 2002) 30–47. 102 Attilio Milano, Storia degli Ebrei in Italia (Torino: Einaudi 1992) 247–253. 103 John Tedeschi, The Prosecution of Heresy—Collected Studies on the Inquisition in Early Modern Italy (New York: suny 1991) 93 and 127. 104 John A. Tedeschi, Il Giudice e l’Eretico—Studi sull’Inquisizione Romana (Milano: Vita e Pensiero 1997) 72 and 98. 105 Thomas F. Mayer, The Roman Inquisition: A Papal Bureaucracy and Its Laws in the Age of Galileo (Philadelphia, Pennsylvania: University of Pennsylvania Press 2013) 208. 106 Tedeschi, The Prosecution of Heresy, 8–9. 107 Vincenzo Lavenia, ‘Giudici, Eretici, Infedeli. Per una Storia dell’Inquisizione nella Marca nella Prima Età Moderna’ (2011) 6 Giornale di Storia 2. 108 Vincenzo Lavenia, ‘L’Inquisizione Romana nella Marca (secoli xvi–xvii) Prime Ricerche’, in vvaa, Alberico Gentili—Le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura (Milano: Giuffrè 2012) 121–168, 125. 109 Id. 123 (highlighting that the Jesuits could absolve heretics in foro conscientiae thus promoting an extrajudicial reconciliation between them and the Church).

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However, this relatively mild intervention did not shield San Ginesio from later harsh repressions. In fact, in 1567, after a delation, Pancrazio and Matteo Gentili, the uncle and father of Alberico respectively, were arrested.110 Both Pancrazio and Matteo belonged to the St. Barnabas brotherhood. While the Barnabites were and remain Catholic, they encouraged a personal approach to religion, rather than just through the parish priest.111 Like other confraternities—voluntary associations of lay people approved by the Church hierarchy—the St. Barnabas brotherhood hosted lively theological debates.112 The clergy was suspicious of confraternities because of their secrecy and, more fundamentally, because they allowed laypersons to discuss the Bible.113 When the St. Barnabas confraternity did not admit some laymen as members, the latter denounced the brotherhood for Protestant preaching and proselytism. Pancrazio and Matteo remained in prison in Rome for almost three years from 1567 to 1570 and were subjected to lengthy interrogations.114 The municipal council of San Ginesio interceded for them but to no avail. After the trials, nine people from San Ginesio were burned at the stake in Rome.115 The Gentili brothers, however, escaped this destiny. After formally renouncing their Protestant faith and reconciling with the Church, they were released in 1570.116 Both continued to work as physicians.117 Matteo exercised his profession in Ascoli from 1571 to 1574, when he returned to San Ginesio.118 110 111 112 113 114

Lavenia, ‘Giudici, Eretici, Infedeli’, 2. Christopher F. Black, Early Modern Italy—A Social History (London: Routledge 2001) 186. Id. 186. Id. 160. Lavenia, ‘Giudici, Eretici, Infedeli’, 6–7 referring to acdf, SO, Decreta 1567–1568, cc. 56v– 57r (reporting that the Gentili brothers where held in prison in the palace of the Holy Office); Id. c.73r (reporting the order given on 26 June 1568 to torture Pancrazio and Matteo); Id. cc 76r, 88r, 96r–v (reporting that both brothers were given a defence lawyer on 22 September 1568); acdf, SO, Decreta 1567–1571 cc. 107v, 119r–v (reporting that the defence lawyer called the defence witnesses on 22 January 1569); Id. cc. 126v, 132r, 138v (reporting that the Congregation read the defence memorials on 25 May 1569 and new tortures followed); Id. c. 127r (reporting that the discussion of the defence memorials was postponed on 12 October 1569.). 115 Id. 4 referring to acdf, SO, Decreta 1567–1568, c. 63v (reporting the auto-da-fé of nine people from San Ginesio). 116 Id. 7 referring to acdf, SO, Decreta 1567–1571, c.129v (reporting that the Congregation decided the case on 26 October 1569 and required abiura de vehementi, i.e., abjuration made by a Catholic strongly suspected of heresy); Id at c.136v (reporting that both brothers were still in prison on 13 January 1570). 117 Id. referring to acdf, SO, Decreta 1567–1571, c.138r. 118 Id.

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Upon his return, however, not only did Matteo maintain his Protestant faith but he also discussed and defended the new ideas in the brotherhood of St. Barnaba.119 It soon became evident that Matteo would have to leave San Ginesio and the Papal States to avoid a new trial and probable condemnation. Had the Tribunal found him guilty again (relapsus), he could have been condemned to be burned at the stake.120 Thus, Matteo and Lucrezia agreed that both Matteo and Alberico would leave San Ginesio, while Lucrezia and the rest of the family would remain there.121 ‘Although Matteo was devoted to the whole of his family … he was particularly concerned for the welfare of Alberico and Scipione’ as he considered them as particularly gifted.122 Going against his wife’s wishes, he also took Scipione.123 The Inquisition reacted immediately. Manilio, Alberico’s elder brother, faced trial in Ancona and Rome on charges of heresy.124 Lucrezia, Gentili’s mother, and Quinto, one of Alberico’s younger brothers, faced trial in Fermo.125 In the summer 1579, Alberico was arrested in Padua, and the Inquisition demanded his extradition to the Papal States.126 However, in the autumn, probably to the intercession of his uncle, Niccolò Petrelli, who was castellan of Trieste, Alberico fled. This probably delayed the release of Manilio, who ­remained in prison for months and was then obliged to remain in Rome after his release.127 Only on 23 December 1580 could Manilio return home to San ­Ginesio.128 Other members of the Gentili’s family faced trial.129 The Inquisition condemned Matteo, Alberico, and Scipione as contumacious, excommunicated them, and confiscated their belongings.130 A condemnation of their memory (damnatio memoriae) was imposed on San Ginesio; the municipality had to delete their names from the local registers.131 By the end of the century,  the  ­Inquisition had almost entirely repressed the Reformation on the

119 Id. 8. 120 Tedeschi, The Prosecution of Heresy, 50. 121 Holland, Discorso Inaugurale, 13. 122 Anne Pallant, ‘Scipione Gentili: A Sixteenth Century Jurist’ (1984) 14 Kingston LR 99. 123 Holland, Discorso Inaugurale, 14. 124 Lavenia, ‘Giudici, Eretici, Infedeli’, 9. 125 Id. 9 (referring to acdf, S.O., Decreta 1578–1579, c 60r). 126 Id. (referring to acdf, S.O., Decreta 1578–1579, cc. 270v–271r). 127 Id. 10 (referring to acdf, S.O., Decreta 1578–1579, c. 333v). 128 Id. (referring to acdf, S.O., Decreta 1580, c. 146v). 129 Id. (referring to acdf, S.O., Decreta 1580–1581, cc 45v–46v). 130 Id. (referring to acdf, S.O., Decreta 1580, c 47v). 131 Van der Molen, Alberico Gentili and the Development of International Law, 42.

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peninsula:132 ‘almost all Italians attracted to northern religious ideas had died’, concealed their true beliefs, or ‘sought refuge beyond the Alps’.133 2.5

Gentili’s Religious Belief

Alberico Gentili’s profound religious beliefs led him to leave his family, home, and country to become an exile. As faith played a central role in the life and works of Alberico Gentili, this section briefly explores his deeply held beliefs. While his religious beliefs would not give rise to disapproval nowadays, they clashed with the religious power of the time, and determined his exile. In a note, written on 14 January 1582, Gentili’s thirtieth birthday, and conserved at the Bodleian Library, he asked himself what led him to leave his native country, his studies, his relatives, and friends. His answer was that nothing could compare to God’s Kingdom.134 Because Gentili’s religious views influenced his writings, a brief discussion of those views is in order. Gentili embraced all the fundamental tenets of the Reformation. For him, faith was central to a good life.135 While the Catholic doctrine insisted on the importance of good works,136 Gentili believed that faith alone saves the individual (fides sola iustificat)137 and that salvation is a gift of God.138 At the same 132 Paula Finden, ‘Science and Society’, in John A. Marino (ed.) Early Modern Italy (Oxford: oup 2002) 166–187, 174–5 (noting that the Inquisition executed the philosopher Giordano Bruno in Rome on 17 February 1600); Dandelet, ‘Politics and the State System’, 28 (mentioning that the philosopher Tommaso Campanella (1568–1639) remained in prison for more than thirty years.); Finden, ‘Science and Society’, 175 (noting, however, that ‘Campanella presented himself as a madman in order to escape the death sentence that a twice convicted heretic of his stature would have received’.) On Galileo’s condemnation on 22 June 1633 for holding ‘heretical’ beliefs and his public abjuration of his beliefs, see Maurice Finocchiaro (ed.) The Galileo Affair: A Documentary History (Berkeley, CA: University of California Press 1989) and Pietro Redondi, Galileo Heretic (Princeton NJ: Princeton University Press 1987). 133 Anne Jacobson Schutte, ‘Religion, Spirituality, and the Post-Tridentine Church’, in John A. Marino (ed.) Early Modern Italy (Oxford: oup 2002) 125–142, 127. 134 See Holland, Studies of International Law, 28. 135 Stefano Colavecchia, ‘Alberico Gentili: in Margine ad Alcuni Studi Recenti e Nuove Proposte di Ricerca’ (2014) xcviii Nuova Rivista Storica 387. See also Stefano Colavecchia, Alberico Gentili e l’Europa (Macerata: eum 2018). 136 Van der Molen, Alberico Gentili and the Development of International Law, 248. 137 MS D’Orville 607, p. 54 (also adding ‘ex fide in fide, non ex fide in opera’). Maria Rosa Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, in Marta Ferronato and Lucia Bianchin (eds.) Silete Theologi in Munere Alieno—Alberico Gentili e la Seconda Scolastica (Padova: cedam 2008) 83–111, 96. 138 Van der Molen, Alberico Gentili and the Development of International Law, 249.

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time, he acknowledged that genuine faith always produces good works, and that good works are the evidence of salvation.139 While the Catholic doctrine upheld the devotion for the saints, Gentili rejected it.140 While the Catholic doctrine reaffirmed the use of icons as instruments of teaching divine matters, Gentili emphasized that ‘the Christian religion rests on the Scriptures’141 and considered icons unnecessary.142 While the Council of Trent143 ‘upheld the seven sacraments (baptism, confirmation, the Eucharist, penance, marriage, ordination, and extreme unction)’, according to Gentili, only baptism and the Holy Communion were sacraments.144 While the Council of Trent reaffirmed the doctrine of the transubstantiation—the doctrine by which the consecrated bread and wine of the Mass, become the body and blood of Jesus—, Gentili considered the Mass as a symbol of the presence of the divine.145 Religious elements permeate all of Gentili’s writings.146 While contemporary international lawyers rarely, if ever, refer to religious sources, d­ eliberately maintaining the divide between religious beliefs and international law, early modern scholars commonly referred to religious texts. Gentili expressly referred to biblical episodes in his writings not to display theological knowledge, but to map the coalescing law of nations. He also concluded each book of his masterpiece, the De Iure Belli, with prayers for peace. While a ­general prayer for peace ends the first book of his treatise,147 more specific prayers appear at the

139 Filippo Mignini, ‘Temi Teologico-Politici nell’Incontro tra Alberico Gentili e Giordano Bruno’, in Fabrizio Meroi (ed.) La Mente di Giordano Bruno (Florence: Olschki 2004) 121. 140 Van der Molen, Alberico Gentili and the Development of International Law, 249. 141 Id. 248. 142 MS D’Orville 607, p. 10. 143 Prompted by the Reformation and held between 1545 and 1563, the Council of Trent (Concilium Tridentinum) clarified the Church’s doctrine and embodied the CounterReformation. 144 Van der Molen, Alberico Gentili and the Development of International Law, 249. 145 Id. 146 Gentili added short prayers or formulas even at the margins of some of his manuscripts, conserved at the Bodleian Library in Oxford. See e.g. MS D’Orville 605, p. 311 (starting with the words: Iesu bene iuvante (With Jesus’ help)); MS D’Orville 614 (several works conclude with the formula D[eo] O[ptimo] M[aximo] gratias (Thanks be to God)). 147 Alberico Gentili, De Iure Belli Libri Tres, vol ii., John C. Rolfe (ed.) (Oxford: Clarendon Press 1933) Book i, Chapter xxv (‘Do away with all war. Grant, O Lord, peace in our days, give us peace’.). See also Alberici Gentili, De Iure Belli Libri Tres, Thomas E. Holland (ed.) (Oxonii: 1872) 122 (Tolle bellum omne. Da, Domine, pacem in diebus nostris, da pacem).

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end of the second and third books respectively, advocating the adoption of more humane methods of warfare148 and compliance with peace treaties.149 In Gentili’s only treatise of a decidedly religious character, De Papatu Romano, he emphasized the need for a renewed inner spirituality and envisioned a religion without a multitude of dogmas and structured clergy.150 Relying on theological and canon law sources,151 Gentili opposed the temporal power of the papacy in particular and any form of dogmatic and authoritarian theocracy more generally.152 He condemned religious persecution.153 If the vehement tones of the De Papatu exemplify the ‘powerful spiritual struggles of those days’,154 they also indicate that Gentili probably wrote the manuscript immediately after his arrival in England, when the exile that had apparently ‘cut off his brilliant career’ still distressed him.155 Thus he likely wrote it between 1580 and 1585, but kept revising it until 1591, constantly expanding the range of his sources from purely theological sources to legal ones.156

148 Gentili, De Iure Belli Libri Tres, Book ii, Chapter xxiv (‘in Thy goodness keep far aloof barbarity, savagery, and implacable hostility! May the ox and the lion eat hay, and may the ox not learn cruelty, but the lion mercy!’) See also Gentili, De Iure Belli Libri Tres, Holland (ed.) 276 (Tu summe Deus, barbariem, feritatem, inexaturabilem hostilitatem procul amove bonus…). 149 Gentili, De Iure Belli Libri Tres, Holland (ed.) Book iii, Chapter xxiv, p. 417 (Deus autem … faciat principes imponere bellis omnem finem et iura pacis ac foederum colere sanctae…) (‘Now may the Great and Good God lead princes to put an end once for all to war and … keep the terms of peace and of treaties’). 150 Alberici Gentilis, De Papatu Romano Antichristo Assertiones ex Verbo Dei et SS. Patribus, Oxford, Bodleian Library, MS. D’Orville 607, 1–95; Alberici Gentilis, De Papatu Romano Antichristo, Giovanni Minnucci (ed) (Bologna: Monduzzi 2018). 151 Diego Quaglioni, ‘Alberico Gentili: il Papato Romano e il Potere Totale’ in Diego Quaglioni (ed.) Machiavelli e la Lingua della Giurisprudenza (Bologna: Il Mulino 2011) 199–210, 206. 152 Diego Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento—Bruno, Sidney e i Dissidenti Religiosi Italiani (Roma: Edizioni di Storia e Letteratura 2010) 50–51. 153 Lucia Felici, ‘L’Anticristo in Inghilterra nell’età di Alberico Gentili’, in Vincenzo Lavenia (ed) Alberico Gentili—Diritto Internazionale e Riforma (Milano: Giuffrè 2017) 61–92, 91. 154 Van der Molen, Alberico Gentili and the Development of International Law, 251. 155 Id. 246–247 (noting that Gentili ‘mention[ed] Gregory xiii twice as the ruling pope, consequently he [could not] have written this pamphlet later than 1585’.); Id. (pointing out that Gentili added ‘Italus’ to his name in the cover of the manuscript and suggesting that he wrote the De Papatu immediately after his arrival in England. In fact, according to Van der Molen, Gentili ‘soon relinquished this habit and certainly did not use this addition to his name, when after 1587 he could make use of the epitheton ornans: Regius Professor’.). 156 Felici, ‘L’Anticristo in Inghilterra nell’età di Alberico Gentili’, 85.

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Gentili did not publish the De Papatu for contingent political reasons.157 The content of the pamphlet was eclectic, and could not be easily reconciled with either Catholicism, Anglicanism or Puritanism.158 In fact, not only was the content of the De Papatu not easily reconcilable with Catholicism, but its opposition to any form of hierarchical institutionalization seemed incompatible with Anglicanism too, the faith which was consolidating in Elizabethan England.159 Some clerical apparata characterized not only Catholicism but also Anglicanism, albeit to a lesser extent.160 Moreover, Gentili’s thought did not conform to Puritanism, as he wished for a neat separation between the political and the religious spheres, which the Puritans, however, deemed deeply linked.161 Publishing De Papatu could have damaged his reputation within the Elizabethan court.162 Nonetheless, ‘[t]he fact that in some minor points he cherished a different opinion’ does not mean he did not adhere sincerely to the Reformation.163 Gentili likely adhered to Calvinism at first, endorsing Anglicanism after his arrival in England.164 Like Calvin, he strongly opposed the idea of clerical apparata, complicated rites, and hierarchy, and did not believe in the transubstantiation.165 In the De Abusu Mendaci, Gentili provided the reader with a confessio fidei (profession of faith) with a ‘strong Calvinist inflection’.166 He repeatedly quoted authors of Calvinist ideals and Calvin himself.167 Therefore, while the De Papatu remained a work in progress until 1591,168 it is unsurprising that Gentili abandoned the idea of publishing it, as he adhered to Anglicanism.169 Although Gentili revised the De Papatu several times,170 he deemed it too imperfect to publish and asked his brother to destroy it. 157 Colavecchia, ‘Alberico Gentili: in Margine ad Alcuni Studi Recenti e Nuove Proposte di Ricerca’, 387. 158 Id. 159 Id. 160 Id. 161 Id. 162 Giovanni Minnucci, Silete Theologi in Munere Alieno (Bologna: Monduzzi 2016) 109 and 111–112. 163 Van der Molen, Alberico Gentili and the Development of International Law, 265. 164 Id. 165 Giuseppe Speranza, Alberico Gentili, Studi (Roma: Tipografia Fratelli Pallotta 1876) 79. 166 Ian Maclean, Learning and the Marketplace—Essays in the History of the Early Modern Book (Brill: Leiden/Boston 2009) 321. 167 Van der Molen, Alberico Gentili and the Development of International Law, 250 and 252. 168 Giovanni Minnucci and Diego Quaglioni, ‘Il De Papatu Romano Antichristo di Alberico Gentili’ (1580/1585–1591): Primi Appunti per l’Edizione Critica’ (2014) Il Pensiero Politico 145–155. 169 Maclean, Learning and the Marketplace, 321. 170 Quaglioni, ‘Alberico Gentili: il Papato Romano e il Potere Totale’, 201.

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The choice not to publish his pamphlet was a prudent one. There was no perfect uniformity of thought among the various currents of the Reformation and dealing with theological issues could be problematic.171 Despite welcoming religious refugees, Elizabethan England did not sympathise with any radical ideas. After publishing religious pamphlets, not only did other Italian refugees fail to integrate into the English society and academia, but they also had to leave the country. For instance, the Florentine philosopher and humanist Francesco Pucci (1543–1597) reached Oxford in 1572, enrolled in an M.A. and applied for a post as lecturer in theology. However, he was expelled from the university in 1575 because he had an argument on theological matters with John Rainolds (1549–1607), an influential Puritan theologian.172 The Italian philosopher, mathematician, poet, and cosmological theorist Giordano Bruno (1548–1600) also lectured at Oxford. Yet, because of his controversial cosmological views, he soon had the leave the country.173 As is known, Bruno attempted to build a philosophy that included the Copernican views.174 Unavoidably ‘[t]his led him into violent conflict with theological … authorities—a conflict which was eventually to cost him his life at the stake’.175 Most academics still ‘clung to the view of the universe laid down by Aristotle and regarded the new scientific astronomy as dangerous folly’.176 They mocked Bruno for supporting ‘the opinion of Copernicus that the earth did go round, and the heavens did stand still; whereas [for them] it was his own head which rather did run round, and his brains did not stand still’.177 Bruno’s attempt to resolve the differences between Protestants and Catholics was not welcome either.178 Gentili himself, who knew Bruno and supported his academic endeavours, confessed some discomfort at Bruno’s innovative theories.179 In a letter to one of his friends, the humanist Jean Hotman (1552–1636), Gentili wrote: ‘I heard 171 Minnucci, Silete Theologi in Munere Alieno, 121. 172 Giorgio Caravale, Il Profeta Disarmato. L’Eresia di Francesco Pucci nell’Europa del Cinquecento (Bologna: Il Mulino 2010); Luigi Firpo, Scritti sulla Riforma in Italia (Naples: Prismi 1996) 53–65; Antonio Rotondò, Studi di Storia Ereticale del Cinquecento (Firenze: Olshki 2008) 577–616. 173 Andrew D. Weiner, ‘Expelling the Beast: Bruno’s Adventures in England’ (1980) 78 Modern Philology 1–13, 1. 174 Frances A. Yates, John Florio—The Life of an Italian in Shakespeare’s England (Cambridge: cup 1934) 91. 175 Id. 176 Id. 177 Weiner, ‘Expelling the Beast’, 2. See also Frances A. Yates, Giordano Bruno and the Hermetic Tradition (Chicago: University of Chicago Press 1964) 209–211. 178 Weiner, ‘Expelling the Beast’, 2. 179 Id.

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from the greatest of men [Bruno] strange, absurd, and false assertions, that the sky is made of stone, the sun is only two feet wide, that the moon contains many cities and mountains, and that the earth moves’.180 Far from being an accurate depiction of his fellow’s theories, Gentili’s letter ‘suggests some confusion … on his part as to what [Bruno] had really … said in [his] lectures’.181 Nonetheless, the letter reflected the general unease with ‘the heliocentric theories that were upsetting the traditional Aristotelian cosmology’.182 Probably aware of Gentili’s ambivalence and ‘[g]enerously endowed with southern warmth and vitality’,183 Bruno included his friend and mentor, Gentili, as one of the most important characters of On the Infinite Universe and Worlds (De l’Infinito Universo et Mondi), a dialogue explaining his cosmological theory.184 In the dialogue, Albertino, the alias of Alberico Gentili, oscillated between skepticism and persuasion with respect to Bruno’s cosmology.185 At the beginning of the dialogue, Albertino used expressions similar to those used by Gentili in his letter to Hotman contesting the existence of several worlds.186 By the end of the dialogue, however, Albertino exhorted Philoteus, Bruno’s alter ego in the dialogue, to ‘continue to make known to others what the sky is really composed of, as well as the planets and the stars; how the infinite worlds are all distinguished one from the other; how it is not only possible but necessary that there should be an infinite space’.187 Whatever opinion Gentili had of Bruno’s cosmological beliefs, he nonetheless supported his academic pursuits, writing references for him for a lectureship at Wittenberg, where Bruno remained for two years.188 Unlike Bruno, Pucci, and other ‘turbulent and restless souls’, whose religious beliefs could not easily reconcile with the ruling faiths, Gentili soon opted to 180 See Dorothea Waley Singer, Giordano Bruno: His Life and Thought (New York: Schuman 1950) 43 (referring to Alberico Gentili’s letter to Jean Hotman, 8 November 1583.). 181 Hilary Gatti, ‘Between Magic and Magnetism: Bruno’s Cosmology at Oxford’ in Hilary Gatti, Essays on Giordano Bruno (Princeton and Oxford: Princeton University Press 2011) 17–39, 23 (noting, at 24, that Gentili seemed ‘unable to distinguish the arguments that Bruno criticized from those he was proposing’.). 182 Id. 22; Mordechai Feingold, The Mathematicians’ Apprenticeship—Science, Universities, and Society in England 1560–1640 (Cambridge: cup 1984) 15 (noting that objections to the heliocentric theory were made on both scientific and religious grounds.). 183 Yates, John Florio, 87. 184 Giordano Bruno, De l’Infinito Universo et Mondi (Venice: 1584) dialogue v. 185 Gatti, ‘Between Magic and Magnetism’, 24. 186 Filippo Mignini, ‘Alberico Gentili e Giordano Bruno’, in vvaa, Alberico Gentili nel Quarto Centenario del De Iure Belli (Milano: Giuffrè 2000) 301–340, 310. 187 Gatti, ‘Between Magic and Magnetism’ 24; Yates, John Florio, 103. 188 Mignini, ‘Alberico Gentili e Giordano Bruno’, 312 (noting that when the Inquisition interrogated Bruno, he recalled Gentili’s support.).

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adhere to the Church of England.189 He quickly dissociated himself ‘from the ambit of the widely distrusted … Italian radical diaspora’.190 He understood that an extreme doctrinal fragmentation would have weakened the Reform.191 Instead, he fully supported the Reformation in general and the Church of England in particular.192 He endorsed Anglicanism, which expressed a doctrinal middle ground and a moderate form of Protestantism.193 In some minor works, Gentili expressly conformed to the positions held by the Anglican Church on some of the pressing theological questions of the time.194 For instance, in his 1600 Ad Primum Maccabaeorum Disputatio,195 Gentili addressed the question as to whether the First Book of Maccabees, a book written in the latter part of the 2nd century bc, should be included in the Bible or in the apocrypha—the collection of ancient books found, in some editions of the Bible, in a separate section between the Old and New Testaments, or in other editions, excluded from the same. The question was answered differently by various faiths. The book is held as canonical scripture by the Catholic, Orthodox, and Oriental Orthodox churches, but not by Anglican and Protestant denominations which consider it to be an apocryphal book but also an instrument of moral learning.196 Analogously, the book is of historical interest, but has no official religious status in Hebraism. The 1611 English-language King James Version of the Bible followed the Luther Bible in using an inter-testamental section. In his De Nuptiis,197 Gentili also adhered to the position of the Anglican Church on the issue of divorce.198 Although Gentili ‘had risked his life for his religious beliefs, … the protections he enjoyed were not enough to put him beyond the reach of Puritan allegations’.199 For instance, John Rainolds, the eminent theologian who played a significant role in the expulsion of Pucci from Oxford, also opposed Gentili’s 189 Mignini, ‘Temi Teologico-Politici nell’Incontro tra Alberico Gentili e Giordano Bruno’, 122. 190 Vincenzo Lavenia, ‘Mendacium Officiosum: Alberico Gentili’s Ways of Lying’, in Tamar Herzig and Miriam Eliav-Feldon (eds.) Dissimulation and Deceit in Early Modern Europe (London: Palgrave Macmillan 2015) 27–44, 28. 191 Id. 192 Id. 193 Felici, ‘L’Anticristo in Inghilterra nell’età di Alberico Gentili’, 90. 194 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 56. 195 Alberici Gentilis, Ad Primum Maccabaeorum Disputatio [1600] (Hanoviae: apud Guilielmum Antonium 1604). 196 Pepe Ragoni, Alberico Gentili Vita e Opere (San Ginesio 2000) 41. 197 Alberici Gentilis, Disputationum de Nuptiis Libri vii (Hanoviae: Apud Guilielmum Antonium 1601). 198 See Alberici Gentilis, Ad Titulum Codicis ad Legem Juliam de Adulteriis, in Giovanni Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus (Bologna: Monduzzi 2002) 173–206; MS D’Orville 610, 59–69. 199 Lavenia, ‘Mendacium Officiosum: Alberico Gentili’s Ways of Lying’, 28.

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appointment as Regius Professor of Civil Law on both legal and religious grounds. On the one hand, Rainolds opposed the teaching of Roman law, because it was profane law, influenced by pagan influences and therefore unfit to provide ethical guidance.200 Moreover, for Rainolds, Roman law was not ­applicable in England because it was foreign law.201 In fact, the civil law ‘was, at least in theory, the law of the land throughout continental Europe’.202 On the other hand, Rainolds also opposed Gentili on personal grounds, accusing him of being Italian, Machiavellian, and atheist (Italicus, Macchiavellicus, atheus).203 He doubted Gentili’s sincere beliefs, criticising him for not attending religious ceremonies.204 In response to Rainolds’ criticisms, Gentili accused Rainolds of inhumanity (inhumanitas)205 and noted that Rainolds’ views contrasted with the cosmopolitism which characterised the European universities of the time, and the general attitude of the Elizabethan elites.206 Gentili defended his expertise in civil law, which provided him with a comparative advantage in the knowledge of the law of nations. In fact, civil law provided a legal toolkit beyond its original normative function.207 Finally, he concluded that his religious education was sufficient for his personal and professional needs.208 This shows that, like other religious refugees, Gentili ‘had a hard time’: he was considered a heretic by the Catholics and was viewed with no less suspicion by some locals.209 Despite Rainolds’ opposition, Gentili was appointed as Regius Professor of Civil Law by the Queen. Established in 1540 by King Henry viii at All Souls College,210 the chair in civil law had key political relevance at the time. While Gentili considered the civil law to be a supreme expression of justice, the Elizabethan elites pragmatically considered it the language of power in 200 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 52. 201 Id. 202 Brian C. Lockey, Law and Empire in English Renaissance Literature (Cambridge: cup 2006) 10. 203 MS D’Orville 612, p. 40a verso (Gentili reports accusations of being ‘Italicus, Macchiavelicus, atheus’). 204 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 51–52. 205 Giovanni Minnucci, ‘Un Discorso Inedito di Alberico Gentili in Difesa della Giurisprudenza’ (2015) xliv Quaderni Fiorentini 211–251, 219. 206 MS. 612 D’Orville, ff. 38v–40v. 207 Donald R. Kelley, ‘Civil Science in the Renaissance: Jurisprudence Italian Style’ (1979) 22 Historical Journal 777–794, 794. 208 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 52. 209 Lavenia, ‘Mendacium Officiosum’, 27. 210 Ernest Nys, ‘Introduction’, in Alberico Gentili, De Legationibus Libri Tres, Gordon Laing (trans) (New York: oup 1924) 11–37, 26.

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international­relations. The government employed civilians ‘for the purpose of negotiating treaties’ and advising on matters of foreign policy.211 Civil law was considered to be akin to the law of nations (ius gentium).212 The clash between the state and the Roman Catholic Church further intensified the need of such expertise.213 Therefore, the Tudors needed in-house expertise of such law, in order to receive reliable and expert advice on the political issues of the time and to strengthen their position at the international level.214 There was no plan to supplant the common law with civil law.215 Whereas the common law governed most domestic matters, the civil law provided a good source of analogies for the law of nations because it was shared by a number of countries.216 In conclusion, identifying Gentili religious belief is not only important for mapping a more complete history of the Italian Reformation, it is also important for the history of international law as Gentili’s religious views influenced his treatises on the law of nations. Having personally experienced religious persecution, Gentili condemned religious violence, contributed to the gradual, albeit incomplete, secularization of the law of nations, and defended freedom of religion. Following the French jurist and Renaissance political philosopher Jean Bodin (1530–1596), he admitted the private profession of different faiths, and condemned the public prosecution of ‘heretics’, as well as religious wars.217 211 Arnold D. McNair, ‘The Debt of International Law in Britain to the Civil Law and the Civilians’ (1953) 39 Transactions of the Grotius Society 183–210, 186. 212 Alberto Alberti, Scuole Italiane e Giuristi Italiani nello Sviluppo Storico del Diritto Inglese (Bologna: Zanichelli 1937) 212; McNair, ‘The Debt of International Law in Britain to the Civil Law and the Civilians’, 199 (reporting a speech of King James i of England to Parliament where he stated that the civil law was ‘in a manner lex gentium and maintained intercourse with all foreign nations’.). 213 McNair, ‘The Debt of International Law in Britain to the Civil Law and the Civilians’, 194. 214 Lockey, Law and Empire in English Renaissance Literature, 10. 215 Frederic W. Maitland, English Law and the Renaissance (Cambridge: cup 1901); B.P. Levack, The Civil Lawyers in England 1603–1641. A Political Study (Oxford: oup 1973). 216 Gentili, Hispanica Advocatio, Book i, Chapter xxi, p. 102 (arguing that the English common law ‘[was] not suited to cases involving foreigners’). 217 Jean Bodin, Les Six Livres de la Republique (Paris: chez Iacques du Puis 1583); Io. Bodini, De Republica Libri Sex (Lugduni : apud Jacobum de Puys 1586), Book iv, Chapter vii. On the influence of Bodin on the development of international law, see André Gardot, Jean Bodin. Sa Place parmi les Fondateurs du Droit International, in Collected Courses of the Hague Academy of International Law 50 (Leiden/Boston: Brill Nijhoff 1934); Merio Scattola, ‘Jean Bodin on International Law’ in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 78–91.

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Fleeing to London Are you then travelling to the temple of Eliza? … Some call her Pandora: some Gloriana: … some Astraea … Yet, all those names make but one celestial body … I am of her own country, and we adore her by the name of Eliza.218

Because of his Reformed beliefs, and in order to escape the Inquisition, Gentili fled to England, and in doing so he left a life of peril and fear for a life of adventure and fame. This section briefly narrates the vicissitudes of the journey, the first difficult months in London, and the move to Oxford. It contextualises Gentili’s story in the wider perspective of the Italian religious refugees in London, the spread of the Italian Renaissance in the higher echelons of the English society, and the Elizabethan period more generally. Gentili’s journey to England took several months. After fleeing Padua in the autumn of 1579, Alberico, his father, and brother reunited in Laibach (Ljubljana), the capital of the Duchy of Carniola, then under the Habsburgs’ rule, where Matteo became the chief physician of the duchy.219 Both Alberico and Scipione soon left Laibach for places more suitable to their studies and careers.220 While Alberico reached England, Scipione stayed in continental Europe. Despite the distance, the brothers remained in contact with each other throughout their lives. Scipione pursued philosophical and literary studies at the University of Tübingen, studied law and philosophy at the University of Wittenberg, and law and philology at the University of Leiden.221 He also studied law at (but was expelled from) the University of Heidelberg, and obtained a doctorate in 1589 from the University of Basel.222 In 1590, he became a lecturer and soon after a Professor of civil law at the Academe of Altdorf, a small town outside Nuremberg, where he collaborated with the famous jurist Hugues Doneau (Hugo

218 Thomas Dekker, Old Fortunatus [1600] (Menston: Scholar Press 1971). 219 Holland, Discorso Inaugurale, 14. 220 De Benedictis, ‘Gentili, Alberico’. 221 Angela De Benedictis, ‘Gentili, Scipione’, dbi 53 (Roma: Istituto dell’Enciclopedia Italiana 1960-current). 222 Id. (reporting that the expulsion was due to a quarrel with Julius Pacius (1550–1635) a Professor of Law at the University of Heidelberg.); Pallant, ‘Scipione Gentili’, 102 (reporting that Pacius and Scipione Gentili had diverging teaching styles: while ‘Pacius was more traditional in his approach’, Scipione preferred ‘concentrating on the original statute with clear, concise explanation’.).

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­Donellus, 1527–1591), one of his former professors.223 A lawyer, a translator, and a poet,224 Scipione was considered to be among the leading jurists of his time and his fame probably even surpassed that of his brother.225 He mainly focused on public law, which he considered to be the prime discipline among the humanities (omnium humanarum disciplinarum princeps).226 His reputation was so high that Pope Clement viii (1536–1605) offered him a chair in Rome.227 Despite the prestige of the offer, Scipione declined, as he could not be persuaded to abjure and suspected that the Inquisition would have taken action against him.228 Instead, he remained in Altdorf, where his students enjoyed his teaching and he could focus on his writing.229 Meanwhile, Alberico Gentili reached London. In the sixteenth century, London was a city of poverty and riches, disease and commerce, risk and power. As a place of promise, in which a ‘career was open to all men of talent’,230 it became a magnet for merchants, intellectuals, and adventurers from Continental Europe. Under the long, moderate, and stable reign of Queen Elizabeth i from 1558 to 1603, England was evolving from a feudal community, with virtually all its wealth in land, to a commercial society in which surplus money could be stored and used for profit. The geographical discoveries also determined the expansion of maritime trade. 223 Pallant, ‘Scipione Gentili’, 103. 224 Holland, Discorso Inaugurale, 15. 225 Pallant, ‘Scipione Gentili’, 97. 226 Lucia Bianchin, ‘Il Diritto Pubblico nel Rinnovamento della Tradizione Dottrinale. Il De Iurisdictione di Scipione Gentili’, in Gerhard Dilcher and Diego Quaglioni (eds) Gli Inizi del Diritto Pubblico. Vol. iii Verso la Costruzione del Diritto Pubblico tra Medioevo e Modernità (Bologna: Il Mulino 2011) 425–447, 434. 227 Vincenzo Lavenia, ‘Alberico Gentili: i Processi, le Fedi, la Guerra’, in Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli (Milan: Giuffrè 2009) 165–196, 178. 228 Scipione’s suspicions were not unfounded. See Findlen, ‘Science and Society’, 173 (reporting that Pope Clement viii also invited Francesco Patrizi (1529–1597), a philosopher, to teach at the University of Rome. However, ‘Papal patronage did not protect Patrizi from a brush with the Roman Inquisition’ and Patrizi’s book was prohibited until corrected (donec corrigitur).) It was not uncommon that professors would be expelled from universities on religious grounds. See Paul F. Grendler, ‘The Universities of the Renaissance and Reformation’ (2004) 57 Renaissance Quarterly 1–42, 21 (noting that ‘When a university turned Protestant, Catholic Professors who refused to accept the new faith were dismissed’ and vice versa). 229 Holland, Discorso Inaugurale, 45 (also reporting that Scipione married Maddalena Calandrini, the daughter of an Italian religious refugee and wealthy merchant active in the cloth trade in 1612. Scipione and Maddalena had two children, Egidio Alberico, who later studied in England, and Esther Maddalena who later settled in Geneva). 230 Lamar M. Hill, Bench and Bureaucracy: The Public Career of Sir Julius Caesar, 1580–1636 (Cambridge: James Clarke & Co. 1988) 1.

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The Phoenix Portrait, circa 1575, Queen Elizabeth i (1533–1603), associated with Nicholas Hilliard (1547–1619), oil on panel, National Portrait Gallery © National Portrait Gallery, London

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Moreover, as religious wars spread throughout Europe, the stable Reformed government particularly appealed to religious refugees seeking asylum from religious persecution and civil war.231 In early modern Europe, the wars of religion made religious refugees ‘a mass phenomenon’.232 Refugees ‘occupied an ambiguous political space’.233 They were ‘strangers’: moving between different cultures, but never completely belonging to any of them.234 While their home countries persecuted them, their host countries sometimes doubted the sincerity of their beliefs.235 The city called them ‘strangers’ and yet provided them a safe haven and the possibility to establish their own churches—the so-called ‘strangers’ churches, such as the French Wallon Church on Threadneedle Street, and the Italian Reformed Church in Mercers’ Hall.236 Because the Italian community was relatively exiguous, the Italian Reformed Church ‘existed on and off’.237 Its membership was mobile and fluid. On the one hand, some Italian families preferred to join the French Wallon community, even though they almost certainly maintained contacts with their ‘fellow countrymen’ who gathered at the Italian Reformed Church.238 On the other hand, the Italian Reformed Church also 231 Randall Lesaffer, ‘The Classical Law of Nations (1500–1800)’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 408–440, 412 (noting that ‘in some of the major countries of Europe … Catholics and Protestants became locked in a fierce battle for political control’.); Frances A. Yates, Astraea. The Imperial Theme in the Sixteenth Century (London/Boston: Routledge 1975) 84 (noting that Giordano Bruno praised Queen Elizabeth i ‘for having kept the peace in her realms when the rest of Europe was at war’.). 232 Diego Pirillo, ‘Espionage and Theology in the Anglo-Venetian Renaissance’ (2017) 25 Mediterranean Studies 53–75, 54. 233 Michael Wyatt, The Italian Encounter with Tudor England: A Cultural Politics of Translation (Cambridge: cup 2005) 166. 234 Id. 4. 235 Id. 154. 236 On the Italian Reformed Church, see Luigi Firpo, Scritti sulla Riforma in Italia (Napoli: Prismi 1996) 117–194. 237 The Italian refugees constituted a small minority vis-à-vis other communities in England, due to the distance and perceived remoteness of the country. Most Italian refugees chose closer destinations including Switzerland, Germany, and Poland. See Tedeschi, ‘I Contributi Culturali dei Riformatori Protestanti Italiani nel Tardo Rinascimento’, 57 (reporting that in 1568, there were only 83 Italians in London out of more than four thousand foreigners) and Grell, Brethren in Christ, 67 (reporting that the Italian Reformed Church, founded by the reformer Bernardino Ochino (1487–1564) in 1547 comprised about a few dozen members.). 238 Stefano Villani, ‘The Italian Protestant Church of London in the Seventeenth Century’, in Barbara Schaff (ed.), Exiles, Emigrés, and Intermediaries Anglo-Italian Cultural Transactions (Amsterdam/New York: Rodopi 2010) 217–236, 229.

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welcomed Dutch and English nationals, who attended its functions largely for cultural reasons.239 Gentili joined the Italian Church after his arrival in London, but he left it soon afterwards. Nonetheless, refugees increasingly played important cultural, political, and economic functions. First, intellectuals were welcome in England because of their cultural capital.240 Not only ‘most of the Italian Protestant refugees belonged to the intellectual elite of sixteenth-century Italy’, but Italy was one of the cultural centres of Europe at the time.241 Their cultural capital enabled Italian intellectuals, humanists, theologians, lawyers, and artists to enter the most prominent political, cultural, and academic circles.242 The Italian refugees became cultural brokers, disseminating humanism.243 During the Elizabethan period, Italian civilization became a prime point of reference for intellectuals.244 Queen Elizabeth and her circle were fond of Italian civilization, and spoke Italian fluently.245 The refugees thus ‘contributed to the intellectual 239 Anne Overell, Italian Reform and English Reformations, c.1535–c.1585 (Aldershot: Ashgate 2008) 180 (reporting that foreigners attended the religious functions to learn Italian, a fashionable language at the time); Roger Ascham, The Scholemaster (London: Constable 1570) book i (alleging that people attended the Italian Reformed Church ‘to hear the Italian tongue naturally spoken, not to hear God’s doctrine truly preached’.). 240 Lewis Einstein, The Italian Renaissance in England (New York: Columbia University Press 1902) 15. 241 Pirillo, ‘Espionage and Theology in the Anglo-Venetian Renaissance’, 55. 242 Diego Panizza, ‘Presentazione del Convegno e Note Conclusive sul Centenario’, in vvaa, Alberico Gentili—Le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura—Atti dei Convegni nel Quarto Centenario della Morte, vol. iii (Milano: Giuffrè 2012) 399; Wyatt, The Italian Encounter with Tudor England, 154. 243 Tedeschi, ‘I Contributi Culturali dei Riformatori Protestanti Italiani nel Tardo Rinascimento’, 20; Cantimori, Gli Eretici Italiani del Cinquecento (hypothesizing that the Italian Reformation contributed to spreading the Italian Renaissance culture through the intellectual activity of the Italian refugees.). 244 Wyatt, The Italian Encounter with Tudor England, 157. 245 Ascham, The Scholemaster (reporting the Queen’s proficiency in Latin, Italian, French, and Spanish); Yates, John Florio, 42 and 28 (noting that Leicester ‘spoke the (Italian) language well, and liked to employ Italians’.); John Florio, His First Fruites: which yeelde familiar Speech, merie Proverbes, wittie Sentences and golden Sayings (London: Thomas Dawson 1578) dialogue 15 (indirectly reporting that the Queen had Italian musicians, loved their company, and liked speaking Italian: ‘La regina tien musici? Signor sì, assai, ma sono quasi tutti italiani. Ama gli italiani? Signor sì benissimo. Si diletta di parlar con loro? Signor sì, e parla elegantissimamente’.) On John Florio (1553–1625), son of Waldensian religious refugees, teacher of Italian language, and protegé of Leicester, see Tedeschi, ‘I Contributi Culturali dei Riformatori Protestanti Italiani nel Tardo Rinascimento’, 24 (referring to John Florio’s Jewish/Waldensian family); Yates, John Florio, 8–9 (noting that ‘by inculcating a taste for Italian language and culture in pupils whose exalted rank made them the leaders of the nation, [John Florio] did much to plant in England those Italian influences which

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ferment of the time’ not only ‘through their own original writings’,246 but also through the dissemination of Italian works in England, and their translation into Latin and English.247 Second, at the political level, refugees were welcome because of their varied expertise and Protestantism.248 Civil lawyers in particular could provide excellent legal services to the ruling class, contribute to the development of specific sectors of law, and advise on matters of foreign policy. In parallel, the English government also welcomed immigration to reinforce Anglicanism domestically and Protestantism across Europe. In fact, the intellectual elite favoured the diffusion of the Reformation not only domestically but also internationally in Germany, Poland, and the Low Countries to counter the expansionist policies of Catholic Spain. While religious solidarity contributed to ensure that the religious refugees could find some relief in difficult times—some historical evidence shows that Queen Elizabeth i viewed the protection of religious refugees as her religious duty249—it also supported the Protestant cause domestically and overseas. Finally, from an economic perspective, although ‘their becoming refugees involved a loss of social status and importance’, most émigrés belonged to the ‘social, military, or intellectual elites’ and had connections with trading

helped to mould the English Renaissance’.) See also Hermann Haller, ‘Introduction’, in John Florio, A Worlde of Words, Hermann Haller (ed.) (Toronto: University of Toronto Press 2013) ix–xl, ix, and xiii (noting that John Florio was ‘a cultural mediator who transmit[ed] a wealth of linguistic and cultural information to his … readers’ and that his First Fruits ‘aim[ed] to teach practical phrases …, thus immersing students in actual conversational situations. At the same time, the book provid[ed] a commentary on contemporary English life and customs’.). 246 John Tedeschi, ‘Italian Reformers and the Diffusion of Renaissance Culture’ (1974) 2 Sixteenth Century Journal 79–94, 90. 247 Scott, Elizabethan Translations from the Italian (estimating that almost 400 different books were translated from Italian into English); Tedeschi, ‘I Contributi Culturali dei ­Riformatori Protestanti Italiani nel Tardo Rinascimento’, 35 (noting that Scipione Gentili translated parts of Torquato Tasso’ Gerusalemme Liberata into Latin and published them in London). See Scipii Gentilis, Solymeidos Libri Duo Priores de Torquati Tassi Italicis Expressi (Londini: apud Iohannem Wolfium 1584); Scipii Gentilis, Plutonis Concilium ex initio Quarti Libri Solymeidos (Londoni: apud Iohannem Wolfium 1584). See Torquato Tasso, Le Lettere, Cesare Guasti (ed.) vol. iii (Firenze: Le Monnier 1853) 785 (appreciating Scipione’s translation in a letter to Alberto Parma of 29 March 1587). 248 Wyatt, The Italian Encounter with Tudor England, 154. 249 Nate Probasco, ‘Queen Elizabeth’s Reaction to the St. Bartholomew’s Day Massacre’, in Charles Beem (ed.) The Foreign Relations of Elizabeth i (Basingstoke: Palgrave Macmillan 2011) 77–100, 85.

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­networks.250 For instance, French Huguenots were ‘ideal immigrants’.251 The immigration of the Huguenots contributed to the development of the textile, watch, and clock-making industries, to the creation of the banking and insurance sectors as well as to the sciences and the arts. Among the Italian refugees, merchants, bankers, engineers, philosophers, lawyers, and intellectuals certainly contributed to the economic growth of the host country. These early modern migration flows promoted technological innovation through the introduction of new products and know-how. At the same time, through their mercantile networks, the refugees were able to gather and circulate information on international affairs, thus often playing key diplomatic functions.252 Probably attracted by the moderation and the relative stability of the Anglican reformation, Gentili reached London on 1 August 1580.253 After a few first months that were ‘full of difficulties’,254 Gentili joined the small network of Italian Protestants that had formed in the capital.255 His father provided him with letters of reference for Giovan Battista Castiglione (1516–1598), the Italian tutor (maestro di lingua italiana) of Elizabeth i and a groom of the Privy Chamber.256 Castiglione acted as a mediator between Gentili and other refugees on the one hand, and the political and intellectual elite of Elizabethan England on the other. Through Castiglione, Gentili was introduced to Giacomo Castelvetro (1546–1616), another Italian exile and patron of letters,257 who would later fund 250 251 252 253

Lachenicht, ‘Huguenot Immigrants and the Formation of National Identities’, 311. Id. 310–311 and 313. Pirillo, ‘Espionage and Theology’, 56. Diego Panizza, Alberico Gentili Giurista Ideologo nell’Inghilterra Elisabettiana (Padova: la Garangola 1981) 18 (reporting that on 8 May 1580 Alberico was in Heidelberg; on 21 May 1580 he was in Neustadt; on 4 June 1580 he was in Cologne; on 19 June 1580 he was in Antwerp; and on 1 August 1580 he was in London). 254 Van der Molen, Alberico Gentili and the Development of International Law, 44. 255 Wyatt, The Italian Encounter with Tudor England, 154. 256 Dominique Gaurier, ‘Introduction’, in Alberico Gentili, Les Trois Livres sur le Droit de la Guerre, Dominique Gaurier (ed. and trans.) (Limoges: Presses Universitaires de Limoges 2012) 15–32, 16. On Castiglione, see Massimo Firpo, ‘Giovan Battista Castiglione’ (1979) dbi 22 (reporting that when Princess Elizabeth had been imprisoned in the Tower of London in 1554, Castiglione had been imprisoned too, and was later rewarded for his loyalty.). 257 Ian Maclean, ‘Alberico Gentili, i suoi Editori e le Peculiaritá del Commercio di Libri tra Inghilterra e Germania 1580–1614’, in vvaa, Alberico Gentili—Atti dei Convegni nel Quarto Centenario della Morte (Milano: Giuffrè 2010) 121–173, 121 (noting that Giacomo Castelvetro would later fund the publication of Gentili’s De Iure Belli); Eleanor Rosenberg, ‘Giacomo Castelvetro Italian Publisher in Elizabethan London and His Patrons’ (1943) 2 The Huntingdon Library Quarterly 119–148; Tedeschi, ‘I Contributi Culturali dei Riformatori Protestanti Italiani nel Tardo Rinascimento’, 38 (noting that Castelvetro provided texts, financial support, and editorial assistance to the publisher John Wolfe who published many important Italian books).

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the publication of Gentili’s masterpiece—the De Iure Belli—and introduce him to various publishers. Gentili was also introduced to Tobie Matthew (1546–1628)—Vice Chancellor at the University of Oxford, later bishop of Durham and Archbishop of York—and Robert Dudley (1532–1588), Earl of Leicester, who since 1564 had been Chancellor of the University of Oxford.258 Tobie Matthew encouraged him to pursue some humanist readings and supported his academic endeavours. The great favourite of Queen Elizabeth, Leicester was a patron of letters259 who sympathized with the exiled communities in London260 and became Gentili’s mentor, facilitating his admission to Oxford University and his promotion to the Chair of civil law.261 In Elizabethan England, ‘patronage and public service were inextricably mixed together’.262 The recommendations of Leicester certainly carried weight with the Queen,263 as Leicester belonged to a powerful, cultural, and political circle, closely linked by family ties, intellectual interests, and religious sympathies.264 To the same circle also belonged the secretary of state, Sir Francis Walsingham (1532–1590),265 who would also become one of Gentili’s patrons, and the diplomat and poet Sir Philip Sidney (1554–1586).266 The group often met at Leicester’s house in London.267 2.7

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Gentili’s journey through different geo-political spaces because of his religious belief—first from the Marches to Northern Italy, later to the Habsburg Empire 258 Firpo, ‘Giovan Battista Castiglione’. 259 See generally Eleanor Rosenberg, Leicester, Patron of Letters (New York: Columbia University Press 1955). 260 Maclean, Learning and the Marketplace, 295. 261 Wyatt, The Italian Encounter with Tudor England, 166 (noting that Leicester was ‘the most prominent advocate of things Italian in the Elizabethan period’.). 262 Wallace T. MacCaffrey, ‘Place and Patronage in Elizabethan Politics’, in S. Bindoff, J. Hurstfield, and C.H. Williams (eds.) Elizabethan Government and Society (London: University of London 1961) 95–126, 104. 263 Id. 109. 264 Maclean, Learning and the Marketplace, 320. 265 Simon Adams, Alan Bryson, and Mitchell Leimon, ‘Walsingham, Sir Francis (c.1532–1590)’, odnb (Oxford: oup 2004) (During his term of office, Walsingham supported the use of England’s maritime power to open new trade routes and explore the Americas. He advocated direct intervention in the Netherlands in support of the Protestant revolt against Spain. He also protected a number of Protestant refugees.). 266 John Buxton, Sir Philip Sidney and the English Renaissance (New York: Macmillan 1966). 267 Yates, John Florio, 42.

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and to England—triggered processes of adjustment and adaptation. His mobility made the use of networks essential for retrieving useful practical information, connecting with powerful mentors, and making the best use of his legal skills. Gentili’s focus gradually shifted from purely domestic matters to key issues of foreign policy thus contributing to the evolution of the early modern law of nations. The strategic interaction between Gentili and his network enabled him to emerge as a leading scholar and practitioner and to play a central role in the pressing political debates of the time. Gentili was called to advise the government on questions of international law and diplomacy. His standing was such that he would later represent the Government of Spain before the High Court of Admiralty. Therefore, much of his work was based on practical experience, and addressed the most relevant questions of the day. The gravitational force of Gentili’s social network and political connections facilitated appointments to public offices. In December 1580, Leicester recommended Gentili to the academic authorities of the University of Oxford,268 describing Gentili ‘as a man obliged to leave the country of his birth for religious reasons, desirous of being incorporated in the University and of devoting some time to teaching and the exercise of his profession in general’.269 By mid January 1581, the University of Oxford had admitted Alberico Gentili, recognizing the doctorate he had obtained from the University of Perugia.270 The University of Oxford was the oldest university in England. Gentili described Oxford as an enchanting place (situs amoenitate felicissima), a flourishing university (academia florentissima),271 with magnificent colleges (magnificentissimis studiosorum collegiis) and a university renowned worldwide (augustissima in toto orbe).272 He began lecturing in Roman law at St. John’s College, where he took up residence, with various other colleges contributing 268 Robert Leicester, letter of 24 November 1580 addressed to the Vice-Chancellor, the doctors, proctors, and Heads of Houses (senior members of each college) of the University of Oxford, reprinted in Thomas E. Holland, ‘Praefatio’, in Alberico Gentili, De Iure Belli Libri Tres, Thomas E. Holland (ed.) (Oxford: Clarendon Press 1877) viii. Leicester introduced Gentili as (‘an Italian borne [who] is, as I am informed, by profession a Doctor of the Civill lawes, and beinge forced, as I am allso informed, to leve his cuntry for religion, is desierose to be incorporat in your Universitye and to bestowe sum time in readinge and other exercise of his profession there. Because he is a stranger and learned and an exile for religion, I have thought good to commend him and thease his honest requests unto you, hartely praying you for this incorporating there, that you will shewe him the favore that according your Statutes and orders you maye and do use in like cases’ [sic]). 269 Nys, ‘Introduction’, 18. 270 Holland, ‘Praefatio’, ix. 271 MS D’Orville 612, p. 40a verso. 272 Holland, Discorso Inaugurale, 21.

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to his salary.273 Following the Italian way of teaching law (mos italicus),274 he did not adopt ‘innovative methods’, and used ‘humanist historical techniques’ ‘only to some extent’.275 Rather, his focus was ‘on doctrinal interpretations’, assessing ‘the opinions of individual authors … on their own merit’.276 In 1582 , Gentili published his first work since his arrival in England, De Iuris Interpretibus Dialogi Sex (Six dialogues on the interpreters of law), which he dedicated to Leicester.277 The dialogues focused on the method of teaching and interpreting law, defended the Italian style of teaching law (mos italicus) against its most vocal critics, and critically assessed the French style (mos gallicus). Gentili cautioned legal scholars against the excessive use of centrifugal  tools—such as the use of interdisciplinary approaches and historical analysis­—in jurisprudence, as this could divert legal interpreters from their function, that is, the interpretation and application of the law.278 However, while Gentili maintained a predominantly Italian style in this early Oxonian period, he gradually adopted more and more elements of the French style.279 As a matter of fact, Roman law was not perceived as positive law (ius positum) in England; rather, it was perceived as having persuasive force. Therefore, the historical approach typical of the French style seemed more apposite to the English context. Moreover, since his arrival in England, Gentili had networked with the local scholarly circles which were open to the historical intuitions of the French style.280 Finally, because Gentili increasingly dealt with emerging issues of the law of nations which could not be merely 273 Mordechai Feingold, ‘Giordano Bruno in England, Revisited’ (2004) 67 Huntington Library Quarterly 329–346, 332. 274 Gaurier, ‘Introduction’, 17. 275 Alain Wijffels, ‘Alberico Gentili’s Oxford Lectures on Contracts’, in Jean-Pierre Coriat, Roberto Fiori, Jan Hallebeek, Ernest Metzger, and Martin Schermaier (eds) Inter Cives Necnon Peregrinos (Goettingen: V&R Unipress 2014) 785–802, 796. 276 Id. 277 Alberico Gentili, De Iuris Interpretibus Dialogi Sex (Londini: Wolfius 1582). 278 Alberti, Scuole Italiane e Giuristi Italiani nello Sviluppo Storico del Diritto Inglese, 208. 279 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 41. 280 In Oxford, Gentili connected with an interdisciplinary circle of reputed scholars and became a member of ‘the Republic of Letters’ (Respublica literaria)—the larger imagined community which united all scholars and stretched across national boundaries. Guillaume H.M. Posthumus Meyjes, Jean Hotman’s English Connection (Amsterdam/New York/ Oxford/Tokyo: Koninklijke Nederlandse Akademie Van Wetenschappen 1990) 14 (noting that the Oxonian circle included the jurists Jean Hotman and Alberico Gentili, two ­erudite Savile brothers, the geographer-cosmographer Richard Hackluyt, the historian-­ antiquarian William Camden, the courtier-poet Sir Philip Sidney, the mathematician Tho­ mas Harriot, the theologian Laurence Humphrey, and the Hungarian poet Stephanus Par­ menius.); Peter Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili. Considerazioni

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addressed on the basis of Roman law, his scholarship gradually evolved to endorse some of the humanist stances.281 In 1584, the government consulted him as to the right course of action to take regarding the Spanish Ambassador, who had plotted against the Queen.282 Don Bernardino de Mendoza (1540–1604), Ambassador of the King of Spain to the Queen of England, had taken part in a conspiracy to assassinate the Queen. Gentili recommended that the ambassador be expelled rather than criminally punished.283 Despite the Privy Council’s recommendation to punish the ambassador, the government followed Gentili’s advice, and expelled Mendoza from the country. Gentili expanded that analysis into De Legationibus Libri Tres (On Embassies), which was published the following year.284 In 1585, the deteriorating health of Griffith Lloyd, then Regius Professor of Civil Law, elicited a discussion regarding his successor.285 Gentili, who was already performing some of Lloyd’s functions, vigorously canvassed his application, and even dedicated one of his works to Lloyd.286 However, the Oxonian academics opposed his candidacy.287 Not only did his opponents suspect Gentili of insincere adhesion to the Reform,288 but they also accused him of Italian thoughtlessness (Italica levitas).289 ‘In a country where inflated speech and self-assertion are bad form’,290 Gentili’s opponents turned against him for the rhetorical flourishes that he had used in the dedication of his Legalium Comitiorum Oxoniensium Actio (1585) to Lloyd.291 Yet, dedications commonly included rhetorical flourishes and themes: the fame and generosity of the patron, the humbleness of the author, and the modest nature of her gift, mainly in the hope of receiving some sort of f­ uture

Sparse di un Groziano’ in vvaa, Il Diritto della Guerra e della Pace di Alberico Gentili (Milano: Giuffrè 1995) 32. 281 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 41. 282 Van der Molen, Alberico Gentili and the Development of International Law, 46. 283 Id. 284 Alberico Gentili, De Legationibus Libri Tres (London: Wolfius 1585); Gordon J. Laing (transl.) (New York: oup 1924). 285 Feingold, ‘Giordano Bruno in England, Revisited’, 333. 286 Alberici Gentilis, Legalium Comitiorum Oxoniensium Actio (Londini: Wolfius 1585) (detailing the efforts of Francis Bevans—one of Gentili’s supervisees—towards the doctorate and including Gentili’s opening oration). 287 Feingold, ‘Giordano Bruno in England, Revisited’, 333–334. 288 Id. 334. 289 Panizza, Alberico Gentili Giurista Ideologo nell’Inghilterra Elisabettiana, 55. 290 Feingold, ‘Giordano Bruno in England, Revisited’, 336. 291 Id. 334.

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benefit.292 More substantively, Gentili’s collection of manuscripts, notes, and correspondence confirms his ‘strong personal faith’.293 Archival evidence shows that the Inquisition prosecuted several members of his family. In the Church’s view, Gentili was the son of a ‘heretic’, lived among ‘heretics’, and spread ‘heresy’ in his own books.294 Therefore, his works were put on the Index  of forbidden books (Index Librorum Prohibitorum). Gentili’s choice of publishers and patrons confirms he adhered to Protestantism. His books were published by publishers with ‘Protestant sympathies’.295 For instance, Gentili published his De Legationibus with Thomas Vautrollier (died 1587), a highly ­reputed printer and a Huguenot refugee.296 He published later works with Protestant publishers such as John Wolfe of London,297 Joseph Barnes of Oxford, the Wechels of Frankfurt, and Wilhem Antonius of Hanau.298 Finally, Gentili’s patrons were Protestants.299 In the autumn of 1586, Walsingham appointed Gentili as secretary to Sir Horatio Pallavicino’s embassy to the Elector of Saxony.300 The diplomatic mission of Pallavicino (1540–1600), a rich merchant from Genoa, consisted in reaching Wittenberg and persuading local aristocrats to raise German troops, invade France, and provide support to the Protestant Henri Navarre (1553– 1610), the future King Henry IV of France (from 1589 to 1610).301 Queen ­Elizabeth would have economically supported the initiative only if the German princes also funded the operations. While the embassy was not successful, Gentili published two works and dedicated them to the Duke of ­Brunswick–Lüneburg 292 Ian Maclean, Learning and the Marketplace—Essays in the History of the Early Modern Book (Leiden/Boston: Brill 2009) 293. 293 Id. 320. 294 Lavenia, ‘Alberico Gentili: i Processi, le Fedi, la Guerra’, 173 (quoting the decree dated 14 December 1602 (‘Magister Sacri Palati protulit librum Alberici Gentilis De Iure Belli … et cum sit filius haeretici, et inter haereticos vivat, et haereses in suis libris disseminet, decretum quod eiusdem libri prohibeantur’.)). 295 Maclean, Learning and the Marketplace, 320. 296 Holland, Discorso Inaugurale, 35; Maclean, ‘Alberico Gentili, i suoi Editori e le Peculiaritá del Commercio di Libri tra Inghilterra e Germania 1580–1614’, 125 (noting that Vautrollier also published Calvin and Luther). 297 See generally Clifford Chalmers Huffman, Elizabethan Impressions: John Wolfe and His Press (New York: Ams Press 1988). 298 Rosa Maria Borraccini, ‘Libri e Censura’, in vvaa, Alberico Gentili—Le Marche al Tempo di Alberico Gentili: Religione, Politica e Cultura (Milano: Giuffrè 2012) 191. 299 Maclean, Learning and the Marketplace, 320 (noting that Leicester supported the Oxford Puritans, and Sidney was known for his Protestantism.). 300 Feingold, ‘Giordano Bruno in England, Revisited’, 334. 301 See generally Lawrence Stone, An Elizabethan: Sir Horatio Pallavicino (Oxford: Clarendon Press 1956).

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during the diplomatic mission he undertook, probably to increase opportunities for an academic career there.302 In fact, the opposition of the Puritans in Oxford, led by the theologian John Rainolds, was initially successful. Following Lloyd’s death in late 1586, reportedly Gentili’s application did not succeed and another applicant was appointed to the Chair of Civil Law.303 In the meantime, however, the appointee did not accept the chair and Walsingham and Leicester promptly recommended Gentili to the Queen.304 Queen Elizabeth i appointed Gentili as the Regius Professor of Civil Law at the University of Oxford on 8 June 1587.305 Gentili returned to England and accepted the chair, holding it until his death in 1608. For the next two decades, until his death, Gentili addressed some of the major legal issues of the time and published about thirty works on a number of different topics, covering different fields ranging from domestic public and private law to the law of nations.306 Minor works also touched upon religious and literary topics. From the theoretical and relatively dry investigations of his earlier works, Gentili moved to address practical and vital concerns of the law of nations. When the Low Countries, then under the Spanish rule, revolted against Spain and declared their independence, Queen Elizabeth i supported the revolt. The Spanish Kingdom was then the major power in Europe, and King Philip ii (1555–1598) sought to build a universal Catholic empire.307 This led seven Dutch Protestant Provinces to declare their de facto independence from Spain in 1581. Nonetheless, the Dutch Revolt (1568–1648) lasted for decades, and for decades there was a risk that the new Republic could return under Spanish control which could have affected trade, religion, and the independence of England.308 In 1585, Elizabeth i signed the Treaty of Nonsuch with the Dutch rebels, dispatching a small army in their support. That assistance was 302 Alberico Gentili, De Diversis Temporum Appellationibus (Wittembergae: ex officina Cratoniana 1586) (dedicated to the Duke Ernst ii (1564–1611) and Duke August (1579–1666) of Brunswick–Lüneburg) (discussing the meaning of time and relying on literary, philosophical, and legal sources); De Nascendi Tempore Disputatio (Wittembergae: ex officina Cratoniana 1586) (dedicated to Iohannes Hartman von Erffa, a member of the court accompanying the dukes.) 303 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 43. 304 Feingold, ‘Giordano Bruno in England, Revisited’, 334. 305 Gaurier, ‘Introduction’, 18. 306 See e.g. Alberici Gentilis, Lectionum et Epistolarum quae ad Ius Civile Pertinent, Libri i–iv (Londini 1583–4). 307 Randall H. Lesaffer, ‘The Grotian Tradition Revisited: Change and Continuity in the History of International Law’ (2003) 73 British yil 103–139, 114. 308 The war ended when the parties signed the Peace of Münster. Treaty of Peace between Spain and the Netherlands (1948) (Peace of Münster), 1 cts 1.

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aimed to help the Dutch cause against the ‘tyranny’ of Spain and to prevent an invasion of England.309 Led by Robert Dudley, 1st Earl of Leicester and including between 7,000 and 8,000 soldiers, the convoy was the catalyst for the ­Anglo-Spanish War (1585–1604). In 1588 the Spanish Armada attempted to invade England but was defeated in the Battle of Gravelines. In the same year, at a rather crucial time in British history, Gentili published the De Iure Belli Commentatio Prima (First Commentary on the law of war) addressing some of the critical legal issues at the core of the Anglo-Spanish war that had not yet received appropriate legal treatment.310 The following year, he published his second and third commentaries.311 With these works, Gentili aimed at legitimizing English foreign policy on two grounds: on the one hand, for Gentili, England’s support of the Dutch rebellion was a form of legitimate war against tyranny, based on universal solidarity among individuals, and the common responsibility of sovereigns to help unjustly oppressed peoples.312 On the other hand, for Gentili, preventive war against Spain constituted a form of self-defence as Spain aspired to become a universal empire.313 If war were not waged now, Gentili argued, Spain would become too powerful, and conquer Europe and the entire world.314 Gentili also contested the legitimacy of the Spanish empire in the Americas.315 For Gentili, that empire was founded on a mere desire for power and greed, and thus it was against the law of nature requiring freedom of communication, freedom of the seas, and freedom of commerce. Gentili also denied that religious and cultural difference could justify expansionism.316 In most cases, he noted, religion was a mere pretext rather than the real cause of conflict.317 Gentili dedicated the De Iure Belli Commentationes to the new favourite of the Queen, and political successor of Leicester, Robert Devereux, the Earl of 309 Conyers Read, ‘William Cecil and Elizabethan Public Relations’, in S.T. Bindoff, J. Hurstfield, and CH Williams (eds.) Elizabethan Government and Society (London: University of London 1961) 21–55, 40–41. 310 Nussbaum, A Concise History of the Law of Nations, 94. 311 Holland, Discorso Inaugurale, 24. 312 Gentili, De Iure Belli, Book i, Chapter 16, pp. 74–78; Cfr. Balthazaris Ayalae, De Iure et Officiis Bellicis, ac Disciplina Militaris Libri iii (Duaci: Ex officina Ioannis Bogardi 1582) p. 3v. (considering the Dutch rebels as brigands (latrones) and their rebellion as a perturbation of the divine and human order (divinarum humanarumque rerum perturbatio).). 313 Marc Cogen, Democracies and the Shock of War—The Law as a Battlefield (London: Routledge 2012) Chapter 1. 314 See also Gentili, De Iure Belli, Book i, Chapter 14, p. 65. 315 Id. Book i, Chapter 9, p. 39. 316 Id. 317 Id. p. 40.

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Essex (1565–1601).318 The stepson of Leicester—who had married Essex’s mother in 1578—Essex was a ‘nobleman of unparalleled … renown’.319 A soldier, a statesman, and a powerful patron of arts, he ‘divided and polarized opinion’.320 ‘Young, handsome, and articulate’, he enjoyed the favour of the Queen, ‘alternately enchant[ing] and infuriat[ing] her’.321 After Leicester’s death in 1588, Essex expanded the intellectual network of his late stepfather and had a rather successful career as a courtier, while cultivating military ambitions.322 Defined as an individual with ‘the most admirable qualities that can adorn a man … and the most startling weaknesses’, he held ‘undoubted importance for his contemporaries’.323 A ‘highly cultivated aristocrat’, he emerged as a complex political figure.324 Gentili’s commentaries provided the legal backbone to the political ideals of Essex, who considered it necessary to wage war against Spain to halt its maritime hegemony.325 Although the three Commentationes De Iure Belli reflected the international context of the time, they were not a pamphlet of political propaganda. Rather, they offered an analytical framework of the law of war, which was missing in 318 See Paul E.J. Hammer, The Polarization of Elizabethan Politics: The Political Career of Robert Devereux, 2nd Earl of Essex (Cambridge: cup 1999) (examining Essex’s role in the polarization of Elizabethan politics); Alexandra Gajda, The Earl of Essex and Late Elizabethan Political Culture (Oxford: oup 2012) (exploring the ideological contexts of Essex’s career and fall from grace). 319 Gajda, The Earl of Essex and Late Elizabethan Political Culture, i. 320 Id. 321 Hammer, The Polarization of Elizabethan Politics, 4. 322 Gajda, The Earl of Essex and Late Elizabethan Political Culture, 5 (noting, at 6, that Essex ‘professed faith in the utility of learning for understanding the contemporary world’, at 11, that ‘the writings and friendship of Alberico Gentili … were important to Essex, who was godfather to his son’, and, at 76, that ‘Essex had actually read Gentili’s works’.); Yates,  John Florio, 124 (‘[the death of] Leicester was a great loss to men of letters and for a while they hesitated where to turn for a patron until it became apparent that Essex … would fill that breach’.); Paul E.J. Hammer, ‘The Uses of Scholarship: The Secretariat of Robert Devereux, Second Earl of Essex, c. 1585–1601’ (1994) English Historical Review 26–51, 42–43 (noting that ‘Essex himself was one of the best educated noblemen of the sixteenth century’ and had a ‘belief that scholarly learning had direct practical value’.). 323 Hammer, The Polarization of Elizabethan Politics, 4–5. 324 Id. 7. 325 Alexandra Gajda, ‘Debating War and Peace in Late Elizabethan England’ (2009) 52 The Historical Journal 851–878, 868 (noting that ‘[t]he treatise was prefaced by a fulsome dedication to Essex, … while the Earl’s own Apologie [a short pamphlet advocating war against Spain, also published in 1598] concluded with a quotation from De Iure Belli’ and convincingly arguing that ‘Gentili’s work added substantial intellectual ballast to Essex’s argument that the power of Spain [should] be definitively checked before peace could be restored’.).

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the academic literature of the time.326 Gentili deeply revised and republished the Commentationes as a single treatise, the De Iure Belli Libri Tres, a decade later.327 Rightly considered Gentili’s masterpiece, the treatise addressed the principal political issues of the time and contributed to the emergence of the law of nations. A year later, in 1599, Gentili published the De Armis Romanis et Iniustitia Bellica Romanorum Libri ii (The Wars of the Romans) also dedicated to Essex.328 His treatises gave him a high reputation and he was frequently consulted on a variety of legal issues. In 1590, Gentili delegated his lectures to an assistant, and devoted an increasing amount of time to his legal practice in London, where he was admitted to Gray’s Inn. 2.8

Family Life

Having overcome the heartache of an unrequited love,329 Gentili married Hester de Peigne, a French religious refugee, in 1589.330 As Huguenots generally valued education, and belonged to the upper and middle classes, it is likely that Hester de Peigne was well educated and well-bred.331 Hester’s sister, Jael (1560–1632), married Sir Henry Killigrew (1528–1603)—an English diplomat, ambassador, and several times Member of Parliament.332 Under the patronage of Leicester,333 Killigrew was a competent civil servant and a fervent Puritan.334 Jael was a linguist and led a literary circle, whose members she regularly 326 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 48. 327 Alberico Gentili, De Iure Belli Libri Tres (Hanau: apud haeredes Guilielmi Antonii 1612) John C. Rolfe (trans.) (Oxford: Clarendon Press 1933). 328 Alberici Gentilis, De Armis Romanis and Iniustitia Bellica Romanorum Libri ii (Hanoviae: Apud Guilielmum Antonium 1599). 329 William Gager, ‘Ad Amasiam Alberici Gentilis’, in William Gager, The Complete Works, vol. iii, Dana F. Sutton (ed) (New York: Garland Publishing 1994) 240–241 (reporting that a ‘girl, fair as … snow’, and beautiful as a ‘lily’ made Gentili ‘burn and freeze’ for her and let ‘his books’ be ‘covered with dust’). 330 Gause, ‘Gentili, Alberico’. 331 Greig Parker, ‘Complexity and Diversity: Domestic Material Culture and French Immigrant Identity in Early Modern London’ (2013) 47 Post-Medieval Archaeology 66–82, 67. 332 Luke MacMahon, ‘Killigrew, Sir Henry (1525–1603)’, odnb (Oxford: oup 2004–2016) (­reporting that Henry Killigrew and Jael de Peigne married in the church of St Peter Le Poer, London, on 7 November 1590). 333 Simon Adams, Leicester and the Court: Essays in Elizabethan Politics (Manchester: Manchester University Press 2002). 334 Amos C. Miller, Sir Henry Killigrew, Elizabethan Soldier and Diplomat (Leicester: Leicester University Press 1963) 242 (highlighting that Killigrew became one of Elizabeth’s most trusted diplomats).

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invited to her family home in Lothbury, London.335 While the Killigrew family has been the subject of some historical investigation, little is known about the Gentili family. However, Gentili interspersed some family details in the manuscripts conserved at the Bodleian Library. For instance, on 11 September 1590 he noted the birth of his first son, Robert.336 In the same place, he wrote down the date of birth of all of his children: Robert, Anna who died in infancy, a second Anna (all baptised at the French Church in Threadneedle Street, the largest Huguenot Church in London), Hester and Matthew (baptised at Anglican Church of St. Helen’s in Bishopsgate).337 Only for Anna and Robert Gentili has some scant biographical information survived. While Anna was married to Sir John Colt, a member of the aristocracy, Robert Gentili epitomized the classical topos of the prodigal son.338 In his will, drafted on 14 June 1608, Alberico Gentili briefly mentioned that he had shown his first son Robert—named after his godfather, the Earl of ­Essex—‘too much affection and indulgence’, which he regretted.339 The tone was that ‘of great resignation’.340 Robert Gentili (1590 – 1655 or later) was a child prodigy. Having always spoken in Italian with his father, and in French with his mother, he had mastered both languages, in addition to English, by the age of seven.341 He was also taught Greek and Latin by his father.342 He was admitted to Christ Church College, Jesus College, and St. John’s College, Oxford, before becoming a fellow at All Souls, Oxford, where he eventually studied for his Bachelor of Civil Law.343 Both Hester and Alberico Gentili invested a lot of time and effort in Robert’s education. While the significant appointments that Robert held might suggest that he would repay their efforts, in truth, Robert’s achievements owed much to his father’s determination.344 Alberico’s influential network backed the fellowship at All Souls; and Alberico let Robert dedicate some of his own works in Robert’s name to influential patrons to secure their favour.345

335 For instance, during the reign of James i, the Genevan scholar Isaac Casaubon (1559–1614) a classical scholar and philologist, was one of Jaél’s guests. 336 Ms D’Orville 608, p. 21. 337 Ms D’Orville 612, p. 195 verso. 338 Wijffels, ‘Alberico Gentili Padre e Giurista’, 139. 339 Van der Molen, Alberico Gentili and the Development of International Law, 267. 340 Id. 341 Thomas E. Holland, ‘Gentili, Robert, (1590–1654?)’, Dictionary of National Biography, 1885– 1900, 128. 342 John Considine, ‘Gentilis Robert (1590–1655)’ odnb (Oxford: oup 2004–14). 343 Holland, Discorso Inaugurale, 27. 344 Gause, ‘Gentili, Alberico’. 345 Id.

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Despite their best efforts, Robert disappointed his parents’ expectations.346 After leaving All Souls, he disappeared abroad for twenty-five years.347 His mother left him a small annuity, on condition that he should ‘change no religion and come not to this country’.348 However, he returned to England in 1637, although he was by then much changed.349 After marrying a certain Mary Simpson on 4 January 1638, at St. Martin-in-the-Fields, London, he translated several works, including The History of the Inquisition, by Paolo Sarpi, which was published in London in 1639.350 Alberico Gentili forgave his son but effectively left his fortune to his wife ‘for she will well know how to dispose both of hers and mine, which I do leave her for the benefit of those my three little ones. The first has had too much’.351 He assigned his brother Scipione the task of burning all of his unpublished books ‘because they [we]re too much imperfect’, except for the Hispanicae Advocationis Libri Duo,352 trusting that his brother could edit it without too much effort. However, Scipione did not destroy his brother’s manuscripts. Instead, he saved Alberico’s works for posterity and published the Hispanica Advocatio. 2.9

Advocate at the Admiralty Court

On 8 February 1601, Robert Devereux, the Earl of Essex, one of Gentili’s mentors and a favourite of the Queen, entered the City of London along with a few hundred men in an attempted coup d’état. The government quickly contained the revolt,353 but because of Gentili’s remarkable rise in academic and political circles, and his personal connections with Essex, some of his opponents tried to suggest he was in some way involved in the Essex rebellion. However, it soon became clear that Gentili had nothing to do with the coup. The coming of James i (1566–1625) to the throne of England in 1603 meant a sudden change for the better in Gentili’s fortune. Because ‘James regarded Essex as one who had died for his cause’, he favoured Essex’s friends.354 346 Holland, ‘Gentili, Robert’, 128. 347 Id. 348 Id. 349 Id. 350 Holland, Discorso Inaugurale, 44. 351 Gause, ‘Gentili, Alberico’. 352 Id. 353 Gajda, The Earl of Essex and Late Elizabethan Political Culture, 3 (exploring Essex’s disastrous uprising in 1601, his fall from the heights of fame and favour, and the end of his life as a traitor on the scaffold). 354 Yates, John Florio, 246.

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Gentili’s academic output and family continued to grow: 1601 was marked by the publication of his treatise on marriage, the Disputationum de Nuptiis Libri vii,355 the birth of his daughter Hester, and the death of his father Matteo. The birth of his youngest child, named Matteo, in 1603, coincided with the publication of Lectionis Virgilianae Variae Liber not, in fact, a legal treatise but a method for teaching Virgil which Gentili had written for the sake of his son Robert.356 In 1604 Gentili published Ad Primum Maccabaeorum Disputatio357 and the De Linguarum Mixtura Disputatio Parergica.358 In 1605 he published three other works: his praise of the universities of Perugia and Oxford (Laudes Academiae Perusinae et Oxoniensis),359 two collection of disputations entitled Regales Disputationes Tres (Three Regal Disputations)360 and Disputationes Tres on matters of public law and private law respectively,361 and the De Latinitate Veterum Bibliorum Versionis Male Accusata Disputatio.362 The anonymous Mundus Alter et Idem (The World Different and the Same), a satire that was published in 1605, illustrating an imaginary and exotic world that appears very different, yet remains almost the same as Europe, was attributed to Gentili, although the English bishop, satirist, and moralist Joseph Hall (1574–1656) is the more likely author.363 A satirical work, it depicts a voyage in the ship Fantasia, in the southern seas, visiting the lands of Crapulia (the Land of Inebriate Excess), Viraginia (the Land of the Viragoes), Moronia (Foolsland) and Lavernia (the Land of Thieves), populated by eccentric inhabitants. While the Mundus Alter et Idem expressed an important moment in English ­literary 355 Alberici Gentilis, Disputationum de Nuptiis Libri vii (Hanoviae: apud Guilielmum Antonium 1601). 356 Alberici Gentilis, Lectionis Virgilianae Variae Liber ad Robertum Filium (Hanoviae: apud Guilielmum Antonium 1603). 357 Alberici Gentilis, Ad Primum Maccabaeorum Disputatio (Hanoviae: apud Guilielmum Antonium 1604). 358 Alberici Gentilis, De Linguarum Mixtura Disputatio Parergica (Hanoviae: apud Guilielmum Antonium 1604). 359 Alberici Gentilis, Laudes Academiae Perusinae et Oxoniensis (Hanau: apud Guilielmum Antonium 1605). 360 Alberici Gentilis, Regales Disputationes Libri Tres: I de Potestate Regis Absoluta; II de Unione Regnorum Britanniae; III de Vi Civium in Regem Semper Iniusta (London: apud Thomam Vautrollerium 1605). 361 Alberici Gentilis, Disputationes Tres: I. De Libris Iuris Canonici, II. De Libris Iuris Civilis III. […] (Hanoviae: apud Guilielmum Antonium 1605). 362 Alberici Gentilis, De Latinitate Veterum Bibliorum Versionis Male Accusata Disputatio (Hanoviae: apud Guilielmum Antonium 1606). 363 Mercurius Britannicus, Mundus Alter et Idem sive Terra Australis ante hac Semper Incognita Longis Itineribus Peregrini Accademici Nuper Illustrata (Hanau: apud Guilielmum Antonium 1607).

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history, its anonymity shows precisely how dangerous this work was felt to be at the time–namely for its apparent parody and criticism of English society and the Crown. Although some scholars attributed it to Gentili because his name appears in the cover as its author, ‘[t]his was a mistake, but the interpolation of Gentili’s name’ into this work ‘does suggest that he was associated in some way with the satire’.364 Mundus Alter et Idem was printed by one of Gentili’s publishers, and it was dedicated to the members of Gray’s Inn, to which Gentili also belonged. More plausibly, it is possible that Gentili put the author in touch with the prospective publisher.365 It seems unlikely that Gentili could author such a pamphlet. First, he had no reason to attack the very institutions that had welcomed him as a religious refugee.366 Second, the style of the Mundus Alter et Idem was visionary and full of literary invention, while Gentili considered himself a lawyer, and even his contributions to literature mostly remain in the form of commentaries rather than literary works. Third, the work attacked Justus Lipsius (1547–1606), whose work Gentili often praised. Finally, the range of East Anglian references that are scattered throughout the Mundus suggests that it could only have been the work of Joseph Hall. In conclusion, it seems unlikely that the satire can be ascribed to Gentili. In 1605, with the King’s permission, the Ambassador of Spain, Don Pedro de Zúñiga, appointed Gentili as counsel to the King of Spain before the High Court of Admiralty in London. After the death of Queen Elizabeth i in 1603, her successor, King James i, quickly sought an end to the Anglo-Spanish conflict. Under the Treaty of London, signed on 28 August 1604,367 Spain forsook its hope of restoring Roman Catholicism in England and finally recognised the Reformed monarchy in England. In return, England ended its financial and military support for the independence of the Low Countries368 and promised

364 Yates, John Florio, 290. 365 Giampaolo Zucchini, ‘Introduzione’, in Joseph Hall, Un Mondo Diverso ed Identico [1605], Giampaolo Zucchini (ed.) (Naples: Guida Editori 1985) 5–58, 21. 366 See e.g. Alberico Gentili, Letter to John Rainolds, Undated, in Leon Markovicz (ed.) Latin Correspondence by Alberico Gentili and John Rainolds (Salzburg: Universität Salzburg 1977) 37–51, 39 (‘I hold [the Chair of civil law] with the favor of good people out of the highest and most humane generosity of my ruler, and in it I teach in such a way that the Queen does not regret her kindness and the rest of the Court does not regret its judgment’.). 367 A Treaty of Perpetual Peace and Alliance between Philip iii King of Spain, and the Archduke and Archduchess Albert and Isabella on the one side, and James i, King of England on the other side, Made in the Year 1604 (Treaty of London), in A General Collection of Treaties, vol. ii, ii ed. (London: Longman and others 1732) 131–145. 368 Treaty of London, Article 8.

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not to disrupt the Spanish transatlantic trade.369 The parties restored freedom of commerce and navigation.370 Although England maintained its neutrality in the ongoing war between the Dutch Provinces and Spain, the Dutch and the Spaniards suffered many losses in the Channel. Consequently, a number of maritime disputes were brought to the Admiralty Court in London, in which Spaniards had an interest.371 Gentili therefore entered the legal profession at a critical juncture, and his legal practice focused on important emerging issues of the law of the sea.372 It is somewhat strange that having escaped one Catholic country Gentili should devote himself to defending the interests of another. Although his critics accused him of opportunism, Gentili justified his decision to accept the post by arguing that he was serving international justice.373 In the last years of his life he hoped to publish a collection of opinions he had written during his practice at the Court of Admiralty. Gentili’s declining health did not permit this; however, in his will he asked his brother Scipione to edit and publish the manuscript.374 Gentili died in London on 19 June 1608 and was buried two days later in the churchyard of St. Helen’s in Bishopsgate, London near his father.375 The Hispanicae Advocationis Libri Duo were published posthumously in 1613.376 2.10 Conclusions Gentili’s life is a compelling story of success that includes all of the themes of a great narrative: faith, ambition, adventure, and a voyage into unknown lands, as well as conflict, contradiction, and paradox. Italian by birth, European by life and work experiences, and cosmopolitan by spirit, Gentili greatly contributed to the making of the early modern law of nations. As a go-between for Catholic and Protestant Europe, he participated in early modern international relations as a religious refugee and diplomatic secretary. He contributed to the 369 Treaty of London, Article 6. 370 Treaty of London, Articles 9–10. 371 Holland, Studies in International Law, 12. 372 Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale’, 56–57. 373 Gause, ‘Alberico Gentili’. 374 Will of Alberici Gentilis, 14 June 1608, NA, prob 11/128/695. 375 Christopher Howse, ‘In the Shadow of the Gherkin’, The Telegraph, 24 August 2012 (depicting the old gothic church as a medieval rock now surrounded by a sea of modern buildings and skyscrapers). 376 Alberici Gentilis, Hispanicae Advocationis Libri Duo [1613] Frank Frost Abbott (trans.) (New York: oup 1921).

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development of the early modern law of nations as a scholar, legal advisor, and practising lawyer. He was an outsider who became an insider at the top of his chosen profession. Yet, for centuries, Alberico Gentili has remained something of an enigma. Although some details of his life are known, many of the motives and dynamics that shaped his life choices remain a mystery. And yet, by mapping his life, a vivid picture emerges. Gentili’s cultural capital, the Reformation, the ensuing political crises, and the intellectual vitality of the period in which he lived led him to build an original and distinctive ‘architectural science of justice’ (civilis scientia est architectonica).377 A Renaissance man, Gentili adhered to the Reformation for spiritual needs. He witnessed the decline of the Holy Roman Empire and the Papacy, the emergence of a community of independent polities and the birth of the early modern law of nations. While England opposed the hegemonic and Counter-Reformist ambitions of Spain and struggled to prevent a Spanish invasion, its own expanding maritime commerce also raised key legal questions. Therefore, to understand Gentili’s substantial and multidimensional contribution to the history and theory of international law, it is necessary to illuminate his political, historical, and cultural context. This contextualization foregrounds some of the tenets of the Gentilian theory of the law of nations. Gentili tried to make sense of some rather extraordinary events which characterized his life and his epoch; his works attempt to provide a legal map of an uneven and unmapped terrain. The geographical discoveries that opened the way to global navigation and maritime trade led Gentili to investigate the key issue of how to govern international relations among different civilizations. As the Renaissance brought a change in the understanding of humanity’s place in the universe, it influenced Gentili’s approach to the law of war, promoting a humanization of the same. As the Reformation began a debate that captured the hearts and imaginations of the European peoples, Gentili reflected on freedom of religion, conceptualizing religion as a special relationship between the individual and the divine rather than a matter of public policy. As wars of religion devastated countries and deeply affected civilians, Gentili excluded that religion could be a just cause for waging war. The imprisonment of Gentili’s father, the exile of both father and son, and their separation from the rest of their family help explain why the Gentilian oeuvre is characterized by a sense of urgency and fear. Gentili’s life experience helps explain why he adopted an anti-hegemonic position against ‘tyrants’ who wished to impose a given religion on their subjects. As the 377 Panizza, ‘Presentazione del Convegno e Note Conclusive sul Centenario’, 398–399.

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Reformation also changed the political landscape, contributing to the emergence of sovereign states, Gentili reflected on sovereignty, sovereign equality, and the interplay between domestic law and the law of nations. The chapter shows that Gentili belonged to different networks. He belonged to the network of civilians adhering to the Italian way of teaching law (mos italicus), even though he later endorsed elements of the French school (mos gallicus). Gentili also belonged to the wave of European intellectuals who adhered to the Reformation and were persecuted for their religious faith. That persecution, which could take the form of imprisonment, torture, and even capital punishment, intensified migration processes across Europe. In a rather nomadic fashion, he moved from country to country in the search of a safe haven. Gentili also fit into the political, cultural, and intellectual elite of Elizabethan England. Because of his links to the highest echelons of Elizabethan society, he became an Oxonian academic, thus participating in the main political, cultural, and legal debates of the time and developing a network of friends and colleagues, which included well-read geographers, poets, playwrights, scientists, philosophers and even key courtiers, statesmen, ambassadors, ministers, and sovereigns. He also belonged to a selected network of admiralty lawyers. Alberico Gentili’s life was shaped by his relationships with individuals, networks, and institutions. Belonging to different types of networks generated different types of loyalty and resistance. Gentili’s mobility across different lands and cultures formed his identity as a scholar and shaped his sophisticated approach to cultural diversity. He spent almost half of his life in his native country and the rest of it overseas. He was a cosmopolitan academic, having trained at the University of Perugia, and eventually becoming Regius Professor at the University of Oxford. He travelled across Germany, Slovenia, and the Low Countries. His wife, Hester de Peigne, was a religious refugee from France. Throughout his life, he stayed in contact with his younger brother, Scipione, who was a Professor at the Academy of Altdorf near Nuremberg, in what is today southeast Germany. Not only did Gentili’s research have an international character but he often published overseas, and he always wrote in Latin, the lingua franca of the time. His cosmopolitan experiences are what allowed him to develop such a unique approach to the law of nations.

Chapter 3

Gentili, International Law, and the Humanities Homo sum, humani a me nihil alienum puto.1

…

There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.2

∵ 3.1 Introduction In the early modern period, historical encounters between distant civilizations, the Reformation, and the emergence of sovereign states expanded the frontiers of knowledge and altered global politics, ultimately establishing the  foundations of the current system of international law.3 The evolution of the law of nations required a sustained engagement by lawyers. The classical sources of law provided few, if any, answers to these major challenges. While civil law provided a sophisticated legal system within most European states, it addressed international matters only to a limited extent. Moreover, the expansion of the international community posed the challenge of how to deal with cultural diversity.4 In order to address these paradigm changes, lawyers needed interdisciplinarity in the study of international law because there was little international law in the first place. There were a few bilateral treaties, and these mainly 1 P. Terentius Afer (Terence), Heauton Timorumenos: The Self-Tormenter, Henry Thomas Riley (ed.) The Comedies of Terence (New York: Harper and Brothers 1896) i, 77 (‘I am a human: I regard nothing human as foreign to me’.). 2 William Shakespeare, Hamlet [first performed 1609] G.R. Hibbard (ed.) (Oxford: oup 1987) Act 1, scene 5, 167–168. 3 Sundhya Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’ (2013) 1 London Review of International Law 63–98, 75. 4 Ursula Vollerthun, The Idea of International Society: Erasmus, Vitoria, Gentili, and Grotius, James Richardson (ed) (Cambridge: cup 2017).

© VALENTINA VADI, ���� | doi:10.1163/9789004426030_004

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c­ oncerned very sectoral aspects. Customs and general principles were difficult to detect, and state practice varied widely. Moreover, it was questionable whether the norms traditionally applied in given domestic systems could be applied among other communities. The role of early modern lawyers was not simply to describe what the law was; rather, they had to ‘invent’, identify, and explain such law, eventually prescribing what the law should be. In order to elaborate their theory of the law of nations, early modern scholars abandoned the terrain of technical legal analysis, challenged disciplinary boundaries— which, in any case, were more blurred than they are nowadays—and looked to the humanities. Humanism served early modern scholars as a tool to establish and stabilize concepts of the law of nations and as a bridge between medieval and modern models of thought. Humanistic expertise became key for lawyers aspiring to make sense of current realities, devise legal solutions to common challenges, and ideally create a world in which justice prevails over injustice, equity prevails over iniquity, and liberty prevails over tyranny. The humanities i.e., literature, history, and philosophy provided early modern scholars with ‘an arsenal of concepts’ with which they could address the challenges of the present.5 International law and the humanities have ‘a series of affinities’: they both produce different types of text; they both require textual interpretation; and they both use narrative analysis.6 Literary works can contain or allude to important international law issues, represent the world of justice and law, and have an educative function: for instance, by depicting the brutality of war, they can warn against and ideally prevent the perpetration of war crimes.7 They ‘can provide unique insights in morals and ethics’, express the ineffable, and help develop a ‘genuine feel for the human condition’.8 The humanities can thus contribute to international law by ‘expanding cultural perspectives and breaking down barriers between nations and peoples’.9 They can ‘reveal and encourage interconnectedness’, make p ­ eople aware of cultural diversity and common humanity.10 By promoting ­‘humanistic values’, they

5

Francesca Iurlaro, ‘Il Testo Poetico della Giustizia. Alberico e Scipione Gentili Leggono la Repubblica di Platone’ (2017) 2 Fons 177–196, 179. 6 Ekaterina Yahyaoui Krivenko, ‘International Law, Literature, and ­Interdisciplinarity’ (2015) 9 Law and Humanities 103–122, 103. 7 Susan Tiefenbrun, Decoding International Law: Semiotics and the Humanities (Oxford: oup 2010) 4 and 7. 8 Daniel J. Kornstein, ‘International Law and the Humanities: Does Love of Literature Promote International Law?’ (2006) ilsa Journal of International and Comparative Law 491– 498, 492, and 494. 9 Id. 492. 10 Id.

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‘transcen[d] national boundaries’ and, ‘if only indirectly, [can] humanize international law’.11 However, international law and the humanities also ‘differ significantly’ as they have diverse aims, purposes, and style.12 In the early modern period the issue as to whether poetry and theatre offered any meaningful moral guidance was hotly debated. Relying on Plato, critics contested the place of poetry in international law.13 Literary texts could be ambiguous at best and counterproductive at worst. Critics argued that poetry could not play any normative role because it depicted a wide range of human behaviour, not all desirable. How, then, could poetry play an educative function if it also portrayed inhuman behaviour?14 Moreover, critics contended that by imitating truth, poetry could be misleading and could not be considered a proper source of knowledge.15 Finally, poetic quotes to prove given legal arguments were perceived as either vulnerable or highly enabling points in the methodology of early modern scholars.16 While quoting poetry might ‘cover-up ethical qualms’, it might also enable the insertion of ethical doubt in the absolute certainties of law.17 Literary sources were not sources of absolute knowledge but sources of culture that Gentili interpreted in response to contemporary legal needs.18 For Gentili, the ideal conversation with the major writers of the past was not a matter of erudition, but a way to discover the common humanity of different peoples, fundamental to develop the legal framework to govern the city of all.19 By overcoming barriers of time and space, such an ideal dialogue among intellectuals belonging to different cultures offered a medium for discussing human existence, enlarging the soul, and respecting others’ cultural diversity.20 11 12 13

Kornstein, ‘International Law and the Humanities’ 491. Yahyaoui Krivenko, ‘International Law, Literature, and Interdisciplinarity’, 104. Alberico Gentili, De Iure Belli [1612] John C. Rolfe (transl) (Oxford: Clarendon Press 1933), Book ii, Chapter 24, pp. 180–181 (reporting Plato’s criticism of Homer for representing Achilles’ cruelty against his enemy, Hector). 14 Iurlaro, ‘Il Testo Poetico della Giustizia’, 184. 15 Id. 16 Stephanie Jones, ‘The Poetic Ocean in Mare Liberum’, in Oren Ben-Dor (ed) Law and Art: Justice, Ethics, and Aesthetics (New York: Routledge 2011) 188–203, 190. 17 Id. 18 Cfr. Niccolò Machiavelli, Lettera a Francesco Vettori, Firenze, 10 Decembre 1513, bnc, Florence, Palat. E.B.15.10 (str.1414), cc. 150v–151v (‘Venuta la sera, ritorno a casa ed entro nel mio scrittoio … entro nelle anti[ch]e corti de[g]li anti[ch]i [u]omini, dove, da loro ricevuto amo­ revolmente … non mi vergogno [a] parlare con loro e domandar [loro] della ragione delle loro azioni; e quelli per loro [u]manità mi rispondono’). 19 Cfr. Eugenio Garin, L’Umanesimo Italiano—Filosofia e Vita Civile nel Rinascimento [Der italienische Humanismus 1947] (Bari: Laterza 1993) 49. 20 Cfr. Id. 91; Pier Paolo Vergerio, De Ingenuis Moribus et Liberalibus Studiis [1402–03] (On the Manners of a Gentleman and Liberal Studies) (Venezia: Adam von Ammergau 1470) (the

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Gentili’s keen interest in the humanities shaped his international legal theory. Not only did humanist studies provide him with rhetorical arguments, topoi, and examples, but they also became the cornerstones of his international legal theory. While Gentili’s fascination with classical studies is also evident in his other legal works,21 it acquired a central place in his international legal theory. Far from constituting a mere display of erudition, literary narratives brought powerful lessons of human experience to Gentili’s legal theory of the law of nations. On the one hand, literary themes became a source of rhetorical power. They added a measure of pathos and ethos to his legal writing, presenting a nuanced understanding of the complexity of human beings and of the human condition. On the other hand, they substantively and thematically advanced his reasoning, offering some non-binding but persuasive precedential value and evidence for unwritten rules. For instance, Gentili’s theory of law on the treatment of corpses was guided by Sophocles’ Antigone,22 the story of a young woman who defied municipal law to give burial to the dead. Referring to Sophocles, Gentili argued that the burial of the dead was ‘a divine law, a law of nature, customary and eternal’.23 Euripides’ Suppliants influenced Gentili’s theory of moderation in war.24 Euripides’ tragedy narrated how the Athenian hero Theseus forced the Theban army to retreat into their city, and restrained his men at the gates, telling them that they had come to rescue the bodies of the deceased, not to sack the city.25 When discussing the destruction and the pillage of cities, Gentili argued that moderation ought to be observed and that suppliants ought to be spared—­referring to Euripides’ Suppliants and other tragedies.26 Literary threads were thus woven into the fabric of international law. Yet, literature alone could not determine justice. For Gentili, historical examples as narrated by literary sources could testify the existence of customary norms, provided that they could withstand philosophical/legal scrutiny. Therefore, while literary examples helped Gentili to forge and sharpen his most influential of Italian Renaissance educational treatises, De Ingenuis Moribus highlighted the importance of the humanities in shaping human personality). 21 Christopher N. Warren, ‘Gentili, the Poets, and the Laws of War’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 146. 22 Sophocles, Antigone [442 bc] in Sophocles, The Tragedies, Richard C. Jebb (transl) (Cambridge: cup 1917). 23 Gentili, De Iure Belli, Book ii, Chapter 24, p. 278. 24 Euripides, The Suppliants [423bc] Rosanna Warren and Stephen Scully (transl) (Oxford: oup 1995). 25 Gentili, De Iure Belli, Book iii, Chapter 7, p. 315. 26 Id. Book ii, Chapter 20, p. 250.

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a­ rguments, he was critical in his selection and use of such works as a means of developing the law of nations. While literature became evidence of natural law if it portrayed reasonable or admirable practice, Gentili rejected its evidentiary value if it depicted unreasonable or harmful practices. Some literary examples related to events taking place centuries, if not millennia, before and narrated war, conquest, and even empire from the perspective of the conquerors. For instance, Homer’s depiction of Achilles’ fury usually makes the reader sympathize with his opponent, Hector.27 Gentili himself, after some hesitation, concluded that the literary example of Achilles’ wrath was not conclusive, and posited that both natural law and the law of nations required respect for the dead. This is not to say that Gentili’s early modern sensibility necessarily corresponds to our contemporary one. Literary precedents did not always have a humanizing effect on the law of nations. Therefore, in some cases, literary examples can exacerbate certain interpretive difficulties in the Gentilian legal theory. Did literary sources constitute an indirect way of building natural law on the existing customs of a given civilization? Was literature used as a tool to foster hegemony or to ‘ope[n] up a space for expression’?28 This chapter aims to address these questions, mapping the complex interplay between international law and the humanities in the Gentilian system, with particular reference to his international legal theory. Examining how Gentili used literary sources to build up his theory of the law of nations can help clarify some ambiguities of his system and thus aptly contributes to this study on the Gentilian theory of the law of nations. The chapter proceeds as follows. Section 1 discusses the sixteenth century revolution in the methodology of law. Section 2 addresses the issue of interpretation in the early modern period and the culture clash between the legalistic Italian style and the interdisciplinary French style of studying law. Section 3 ­explores Gentili’s use of the sources of law. Section 4 illuminates Gentili’s method, which oscillated between the Italian style and the French style. This section highlights that Gentili gradually developed an increasing appreciation for the French style due to his focus on the law of nations, exposure to humanism, and his belonging to a humanist network. However, elements of the Italian style remained and Gentili successfully mixed aspects of both styles, reflecting the modern practice. Section 5 focuses on Gentili and the humanities, scrutinizing how literature, history, and philosophy influenced his thought. Section 6 briefly investigates some Gentilian sonnets. These texts were unusual for G ­ entili: written in Italian, they had never been translated into English 27 Omero, Iliade [750 bc], Vincenzo Monti (transl) (Firenze: Salani 1938). 28 Yahyaoui Krivenko, ‘International Law, Literature, and Interdisciplinarity’, 120.

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b­ efore, and were p ­ ublished in different places. They did not have the same impact as other Gentilian legal writings and have little, if any, literary value. Yet, there is some merit in considering them here because they can help explain some of the political constraints Gentili faced in his time as well as shed light on his network. Section 7 discusses elements of the Gentilian literary theory and the way it contributed to contemporary debates on poetry and theatre. Section 8 analyses how Gentili used different types of writings in international law—­ treatises, disputations, dialogues, and commentaries—to introduce some ­elements of heterodoxy in his writings. The chapter concludes that both conservative and liberal readings of Gentili are simultaneously possible. 3.2

The Sixteenth-Century Revolution in the Methodology of Law

In the sixteenth century, the existing legal pluralism required huge interpretive efforts by lawyers. This state of affairs pervaded all legal fields, from domestic law to the law of nations, from diplomatic law to the law of war. Roman law was perceived as authoritative but fragmentary and the various medieval commentaries presented more ambiguities than answers. Therefore, legal interpretation played an important function. Interpreting the law required an active if not creative engagement with the existing sources. Not only did the interpreters have to identify such sources, but they also needed to verify their applicability to the current circumstances. While legal interpretation formally had a mere declarative nature—lawyers having no other role than stating what the law was—, it substantively played a constitutive role.29 Therefore, legal interpretation was a topical issue, and treatises on the best way of learning, teaching, and practising law burgeoned.30 A ‘war of legal methods’ raged in the sixteenth century. Supporters of the Italian style (mos italicus) considered Roman law as living law. Supporters of the French School (mos gallicus)—the so-called humanists—on the other hand, supported a revolution in the methodology of law, considering Roman law as a historical phenomenon, stressing the relevance of historical and etymological interpretation (interpretatio historica et interpretatio etymologica), 29

30

Giuliano Marchetto, ‘Alberico Gentili e la Tradizione: la Letteratura Consulente come Fonte dello Ius Belli’, in Alberico Gentili—L’eredità di un Classico della Teoria Internazionale Moderna—Atti dei Convegni nel Quarto Centenario della Morte, vol. ii (Milano: Giuffrè 2008) 89 and 92. Donald R. Kelley, ‘Jurisconsultus Perfectus: The Lawyer as Renaissance Man’ (1988) 51   Journal of the Warburg and Courtald Institutes 91.

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and often addressing non-legal issues in an erudite fashion.31 They also criticized the medieval scholars for their lack of elegance, obscure style, and barbaric (use of) Latin. Legal humanism pursued the humanistic ideals of creating a model of public governance based on classical ancient values and techniques. In order to maintain their position at the heart of the political decision-making process, lawyers therefore had to acquire the literary, historical, and political expertise associated with the new learning in addition to mastering traditional scholarship.32 Legal humanists complemented existing legal sources by referring to universal history. In the sixteenth century, works representing the mos italicus still predominated in the university libraries, even though the mos gallicus would soon prevail and lead to the modern style.33 Gentili contributed three works to this emerging debate: the 1582 De Iuris Interpretibus Dialogi Sex (Six dialogues on the interpreters of law),34 the In Titulum Digestorum de Verborum Significatione Commentarium (Commentary on the title of the Justinian’s Digest concerning the meaning of words),35 which he wrote in 1581, but was published posthumously, and the 1604 De Linguarum Mixtura Disputatio Parergica (Disputation on the use of inserting foreign terms in legal writings).36 While the first two works followed the Renaissance genre prescribing the education of the perfect jurist—the Mirror of Lawyers (Speculum jurisconsultorum in Latin or Juristenspiegel in German),37 the third adopted the form of a disputation and a dialectical style. This section briefly examines the main contributions of these works to the broader debate as to the appropriate legal method(s).

31

32 33 34 35

36 37

Julian H. Franklin, Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History (New York: Columbia University Press 1963); Guido Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili (Bologna: Zanichelli 1937) 49. See generally Alain Wijffels, ‘Antiqui et Recentiores: Alberico Gentili—Beyond Mos Italicus and Legal Humanism’, in Paul J. du Plessis and John W. Cairns (eds.) Reassessing Legal Humanism and its Claims: Petere Fontes? (Edinburgh: Edinburgh University Press 2016). Alain Wijffels, Alberico Gentili and Thomas Crompton (Leiden: Ius Deco 1992) 4. Alberici Gentilis, De Iuris Interpretibus Dialogi Sex (London: apud Johannem Wolfium 1582). Alberico Gentili, Ad Titulum Digestorum de Verborum Significatione Commentarium (Hanau: typis Wechelianis, apud haeredes Iohannis Aubrii 1614). The manuscript of the same work is conserved at the Bodleian Library, MS. D’Orville 609, and is dated 29 September 1581. Alberico Gentili, De Linguarum Mixtura Disputatio Parergica (Hanoviae 1604). Kelley, ‘Jurisconsultus Perfectus’, 91.

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The first short treatise that Gentili published after his dramatic exile, De Iuris Interpretibus sought to determine the appropriate legal method(s) for interpreting law (ars interpretandi).38 The work is composed of six dialogues that Gentili imagined taking place between himself and his younger brother Quinto. In the dialogues, he gave his brother a number of instructions, including that of a constant commitment to the study of law.39 He explained that Roman and medieval lawyers, such as Accursio (1184–1263) and Bartolus (1313–1357), were outstanding because they studied law night and day (quia toti erant in iure dies ac noctes).40 He highlighted the exacting character of law and warned young scholars against an excessive erudition, pedanticism, and ­methodological eccentricities.41 Gentili considered law as a rational order and a distinct and autonomous art and science, albeit in constant interaction with other fields.42 He criticized modern scholars for extending their research to cover all arts and sciences rather than focusing on law.43 For Gentili, each field of study has its own aims and objectives.44 He remained sceptical that universal knowledge could be achieved, claiming that ‘we can’t all do everything’ (non omnia possumus omnes).45 Rather, he suggested that lawyers should focus on law, rather than venturing into other fields.46 For Gentili, the application of non-legal concepts was superfluous or even dangerous. On factual issues, Gentili suggested resorting to experts and specialists.47 On legal issues, Gentili argued that lawyers should interpret and apply the law. Legal arguments were infinite, he maintained, and an entire lifetime would not suffice to master them all.48 Therefore, he invited the humanists to demonstrate their expertise not only in history (in historiis) but also in law (in iure).49 For Gentili, the quality of the humanists’ legal analysis was often inferior to that of the medieval scholars, as the former 38 Gentilis, De Iuris Interpretibus Dialogi Sex, 39. 39 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 16. 40 Id. 41 Kelley, ‘Jurisconsultus Perfectus’, 91. 42 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 53; Gentili, De Iuris Interpretibus, i, c.5r. 43 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 16. 44 Id. 53. 45 Kelley, ‘Jurisconsultus Perfectus’, 92. 46 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 56. 47 Id. 57. 48 Id. 63; Gentili, De Iuris Interpretibus, I c.14 v. (‘infinitum est iuris argumentum’.). 49 Id. 156.

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t­ ended to be ‘scholars rather than jurists’ (sapientes potius quam jurisconsulti).50 Yet, he advised his brother to profit from both types of scholarship.51 Whereas humanists such as Lorenzo Valla (1407–1457) and Politian (1454– 1494) criticized the mos italicus for its lack of elegance, Gentili did not consider these criticisms to be of great consequence.52 Gentili argued that a barbaric writing style did not impede medieval scholars from sophisticated legal reasoning.53 Moreover, he argued that had these scholars adopted a more polished style, they would not have written all the treatises that they did.54 Gentili also stressed that the use of medieval terms, such as the term ‘reprisal’, rather than classical Latin terms, was justified by emerging circumstances which required new concepts and legal principles.55 While he had some knowledge of ancient Greek, he denied that such knowledge was essential for being a good lawyer.56 Gentili emphasized the importance of both theory and practice in legal interpretation.57 He privileged the analogical use of Roman law for addressing current legal issues over the historical study of such law. While the humanists’ focus was on the history of law, neglecting its practical applications, Gentili did not deny the merit of historical inquiry, yet he cautioned against its excesses, that is, doing research into (legally) irrelevant matters. He considered that Roman law could be adapted to current needs through evolutive/analogical interpretation.58 Rarely has a treatise had such an unfortunate fate as the De Iuris Interpretibus.59 Not only did Gentili’s contemporaries ignore the work, but later scholars have equally overlooked its merits. At first glance, Gentili’s treatise appeared to be a mere defence of the old method, the Italian style (mos italicus), thus consequently incompatible with the new cultural trends.60 His criticisms of the excesses of the French style could easily be (and in fact were) misunderstood as an outright rejection of such style.

50 51 52 53 54 55 56 57 58 59 60

Id. 158. Id. 16; Gentili, De Iuris Interpretibus, i, c.2.r (pintpointing that ‘et veteres et novi interpretes, frater, possunt tibi adiumento esse: utrosque sequi potes’.). Id. 28. Id. 65. Id. 67. Id. 67–68. Id. 97. Id. 43–44. Id. 34. Id. 5. Id. 6; Domenico Maffei, Gli Inizi dell’Umanesimo Giuridico (Milano: Giuffrè 1956) 58–59.

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However, far from being a mere apology of the Italian style, the work presents a multi-layered critical assessment of the debate and Gentili’s stance was more nuanced than his contemporaries perceived. Certainly, he was devoted to the mos italicus. Indeed, his alma mater, the University of Perugia, was a stronghold of the same.61 At the same time, he acknowledged the importance of the French school, valuing the works of a number of humanists, including Alciato (1492–1550), Zasius (1461–1536), and Doneau (or Donellus, 1527–1591).62 Humanism raised the standards of legal education, requiring some interdisciplinarity.63 During the Renaissance, an idea of the perfect jurist (idea iurisconsulti perfecti) emerged requiring lawyers to be ‘endowed with both humanist culture and technical expertise’, ‘possess[ing] … learning as well as intellect, and a grasp of law as well as the other arts and sciences’.64 By the time Gentili wrote De Iuris Interpretibus, Gentili had acquainted himself with the works of the proponents of the mos gallicus, even though, admittedly, his academic commitments precluded complete familiarity.65 Gentili himself endorsed key features of legal humanism in his later works and proposed an original combination of both methods.66 Far from constituting a mere invitation to return to the Italian style, Gentili cautioned against the excesses of the French style.67 He criticized the most erudite philological part of the mos gallicus, as endorsed by Guillaume Budé (or Budaeus, 1467–1540), Jacques Cujas (or Cujacius, 1522–1590), and François Hotman (1524–1590).68 For instance, he considered Budé as a pure erudite, whose work was of limited—if any—interest for legal interpretation.69 In fact, Budé ‘never obtained a formal law degree’ and ‘studied the Digest not as a jurist but as a philologist’.70 In one treatise, Budé presented ‘law as an arrogant and hegemonic discipline’ and considered lawyers as unconcerned ‘with making the law a subject of knowledge’, rather ‘turn[ing] it into a tool of power to 61 Gentili, De Iuris Interpretibus, fifth dialogue (reporting that at the University of Perugia the students protested against a scholar digressing on history and ceased their protest only when he mentioned the name of Bartolus). 62 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 23. 63 Kelley, ‘Jurisconsultus Perfectus’, 92. 64 Id. 65 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 15. 66 Id. 25. 67 Id. 26. 68 Id. 23. 69 Id. 88. 70 Bruno Méniel, ‘Law and Literature in the Humanist Period: Encyclopaedic versus Specialist Thought’ (2011) 5 Law and Humanities 103–111, 104.

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c­ ontrol the lives of common people’.71 While there may be some truth in the prescriptive nature of law, as a lawyer, Gentili inevitably defended his discipline as a genuine science (vera philosophia) against the attacks of the humanist philologists. For Gentili, Cujas failed to advance any new doctrines of importance as he merely imitated the very arguments he intended to criticize.72 Gentili also criticized François Hotman (1524–1590) for separating jurisprudence from practice and for pretending to hold a universal knowledge.73 Gentili generally adopted a moderate tone, with a few exceptions: namely, when he was offended by the denigration of some of the great medieval jurists.74 As is known, the humanist proponents of the French style attacked the followers of the Italian style for failing to acknowledge that Roman law was a historical phenomenon to be interpreted according to its own historical context. In a rather colourful Renaissance style, the humanists called their opponents names, depicting them as ‘barbarians’, ‘inepts’, discussants of irrelevant issues (rixantes de lana caprina), jugglers (praestigiatores), better suited for manual labour rather than intellectual activity (ad aratrum nati), foolish (non bene de mente constituti), delirious (deliri), unable to understand what they were talking about (non intelligentes quid loquantur), gibberers (blaterones), and speaking an exotic language (exoticae linguae homines).75 The French school made similar descriptions even of the best scholars of the medieval tradition, considering them as belonging to the barbaric Middle Ages.76 Gentili defended the Italian style against such abuses. He warned that the pretention to hold a universal knowledge of human matters might prove to be illusory. Gentili claimed that some humanists pretended to be at the same time theologians, metaphysicians, astrologists, musicians, orators, poets, and dialecticians as well as sailors.77 He also noted that they liked to pretend to be farmers, hunters, smiths, and engineers.78 Gentili could not hide his irritation with these bold claims of accomplishment.79 According to Gentili, excessive erudition prevented the encyclopaedists (enciclopedei) from teaching law in 71 72 73 74 75 76 77 78 79

Id. 106. Keith R. Simmonds, ‘The Gentili Manuscripts’ (1959) 76 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 534–552, 548. David Baird Smith, ‘Jean de Villiers Hotman’ (1917) 14 Scottish Historical Review 158. Astuti, Mos Italicus e Mos Gallicus nei dialoghi De Iuris Interpretibus di Alberico Gentili, 19 and 21. Id. 16. Id. 17. Baird Smith, ‘Jean de Villiers Hotman’, 158 (quoting Gentili: ‘Sunt isti etiam theologi, metaphysici, astrologi, musici, rhetores, poetae, dialectici et nautae etiam’.). Id. (quoting Gentili: ‘Postquam placet et agricolae, venatores, et fabri et quarumcunque mechanicarum periti’.). Id. (quoting Gentili: ‘Dii boni, qualia monstra!’).

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the proper sense of the term.80 For Gentili, if lawyers were members of the republic of letters (respublica litterarum), the network of the scholarly and scientific community of the sixteenth century, they should first and foremost consider themselves members of a group defined by their knowledge of law, that is, a republic of legal scholars (respublica jurisconsultorum).81 They had their own questions to address; and while in addressing legal issues they could rely on other disciplines, they should maintain a legal focus. The second work Gentili dedicated to methodological issue, the De Verborum Significatione, is a commentary on the last part of the Justinian’s Digest on the meaning of words.82 Published posthumously in 1614, it focuses on interpretation (interpretatio).83 Although the rather unfortunate title of the commentary little says about its content to the modern reader, it would have been immediately understandable to Gentili’s contemporaries. Other Renaissance scholars wrote commentaries on the same part of the Digest, using it as a textbook for introducing students to legal studies.84 Such part of the Digest contains 246 opinions of jurists on the meaning of key legal terms.85 While Justinian (482–565) prohibited the interpretation of law, requiring lawyers simply to follow the law, medieval emperors authorized lawyers to interpret the law to adapt it to evolving circumstances.86 Therefore, the topic of legal interpretation increasingly attracted more and more commentaries.87 Like Alciato, Gentili considered that the law was not self-evident and required interpretation.88 For him, it was the interpreter who could determine the meaning of the law and make it visible and define the words of the art (verba artis nostrae).89 The commentary then turned on two main questions: 80 Id. 81 Donald R. Kelley, ‘Vera Philosophia: The Philosophical Significance of Renaissance Jurisprudence’ (1976) 14 Journal of the History and Philosophy 269. 82 [Iustiniani] Digestorum, seu Pandectarum Libri Quinquaginta [530–533] (Lugduni: apud Gulielmu[m] Rouillium 1581). 83 Alberici Gentilis, Commentarius in Titulum Digestorum de Verborum Significatione Commentarium (Hanau: typis Wechelianis, apud haeredes Iohannis Aubrii 1614), dedicated by Gentili’s younger son, Matthew, to the Prince of Wales. 84 Andreae Alciati, De Verborum Significatione (Lugduni Batavorum: Sebastianus Gryphius 1537); Valla’s commentaries on De Verborum Significatione appear in his Elegantiae Latinae Linguae (Venet.: per Jenson 1472). 85 Ian Maclean, Interpretation and Meaning in the Renaissance—The Case of Law (Cambridge: cup 1992) 59–60. 86 Kelley, ‘Jurisconsultus Perfectus’, 94. 87 Donald R. Kelley, ‘Civil Science in the Renaissance: Jurisprudence Italian Style’ (1979) 22 Historical Journal 777–794, 785. 88 Maclean, Interpretation and Meaning in the Renaissance, 28. 89 Id. 61 and 28.

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What does the law mean? What did the legislator mean when enacting the law? These questions recall the debate between objective and subjective meaning.90 Like other Renaissance jurists, Gentili prioritized intention (mens legislatoris) over literal meaning; rather than demanding a strict construction of law, Gentili inclined toward an extensive/teleological interpretation, revealing the spirit of the law (interpretatio extensiva).91 He argued that the underlying meaning or reason of law (mens or ratio legis) comes first, for reason is ‘the soul and life of a particular law’;92 and that any meaning must be just and fair as the art of law is the art of justice. Among the various interpretive tools that Gentili adopted was analogy, perhaps the most commonly encountered form of argument in Renaissance legal scholarship.93 As is known, analogical reasoning relies on significant similarities between different circumstances. If one of the two is regulated and the other is not, the identification of the same ratio legis will allow the application of the law to the case not specifically governed by the statute in question (the casus omissus).94 Analogical interpretation requires the collation of similar cases to settle a given case (collatio locorum).95 Yet, analogical reasoning is fraught with difficulties (omnis similitudo claudicat).96 Gentili did not only rely on analogia legis (the kind or analogic reasoning that focuses on a given statute) but also on analogia iuris, drawing analogies from various fields of law, from canon law to maritime law, from civil law to the law of nations. Finally, in De Linguarum Mixtura Disputatio Parergica,97 Gentili discussed the use of foreign words in given legal texts. While he approved of this where it provided clarity to a given sentence, or if only a foreign term could indicate a specific object or idea, he was critical of the use of foreign words for mere ­erudition—an particularly if it actually obscured the meaning of legal texts.98 He preferred plain writing to ornate and erudite language.

90 Id. 149 and 146. 91 Kelley, ‘Jurisconsultus Perfectus’, 94. 92 Gentili, In Titulum Digestorum de Verborum Significatione, 20; Alciati, De Verborum Significatione, 20. 93 Maclean, Interpretation and Meaning in the Renaissance, 79. 94 Id. 80. 95 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 79. 96 Maclean, Interpretation and Meaning in the Renaissance, 80. 97 Alberico Gentili, De Linguarum Mixtura Disputatio Parergica (Hanoviae 1604). 98 Pepe Ragoni, Alberico Gentili Vita e Opere (San Ginesio 2000) 41.

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In conclusion, in the early modern period, legal interpretation was a creative process.99 Gentili did not merely adopt an Italian style; rather, he also made good use of some aspects of the French style. If he always professed his esteem for the great medieval jurists, he certainly moved beyond the limited boundaries of the mos italicus to endorse some elements of the mos gallicus. In his often misinterpreted De Iuris Interpretibus, he criticized the extremism of some proponents of the mos gallicus, but as Wijffels aptly argued ‘any assessment of Gentili’s work according to a Manichean scheme of mos italicus v. mos gallicus categories is bound to miss the point’.100 3.3 From Mos Gallicus and Mos Italicus towards the Usus Modernus In the late sixteenth and early seventeenth centuries, the European legal order was changing, transitioning from the unity of the ius commune to the fragmentation of the iura propria (domestic laws). The ius commune was ‘an academic construct, conceived in universities and developed in the writings of academic jurists’ that combined Roman law, canon law, and commentaries on both. It constituted a common legal order in Western Europe.101 Yet, the rise of the nation states as distinct political entities, and the diffusion of the Reformation in Northern Europe determined the rise of national legal systems as autonomous and primary sources of law. Moreover, in Reformed countries, canon law gradually lost its relevance due to its perceived association with theology.102 National languages gradually replaced the use of Latin in universities and the codification movement later crystallised the demise of the ius commune and the emergence legal pluralism.103 The classic method of studying law—as elaborated by Italian universities and thus called mos italicus iuris docendi (or Italian style of teaching law)— took the ius commune as a source of concepts to resolve the legal issues of the 99

Peter Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili. Considerazioni Sparse di un Groziano’, in vvaa, Il Diritto della Guerra e della Pace di Alberico Gentili—Atti del Convegno Quarta Giornata Gentiliana (Milano: Giuffrè 1995) 9–54, 42. 100 Wijffels, Alberico Gentili and Thomas Crompton, 6. 101 Peter Stein, ‘The Ius Commune and Its Demise’ (2004) 25 Journal of Legal History 161 (noting that the ius commune had two main sources: the Corpus Iuris Civilis, a collection of laws and commentaries adopted under the Eastern Roman Emperor Justinian, and the Corpus Iuris Canonici or canon law.). 102 Alain Wijffels, ‘Early Modern Scholarship on International Law’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham, UK: Edward Elgar 2011) 23–60, 25, and 33. 103 Stein, ‘The Ius Commune and Its Demise’, 164.

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time.104 Adopting an evolutive interpretation of Roman law, the followers of the Italian style adapted it to current needs, contributed to the development of ‘a common European legal culture’,105 and ‘united in the same intellectual practice divergent, even contrary approaches’.106 The mos gallicus iura docendi (the French style of law teaching)—­established in France by legal humanists—fostered the shift from the ius commune to the iura propria.107 The humanists argued that methodology mattered and adopted a historical approach to the ius commune. Because Roman law was a historical object, i.e., the output of a particular time and place, namely the Roman Empire, they argued that it should be considered against its historical context and should be stripped of its medieval features. Therefore, legal humanists criticized the medieval adaptations of Roman law.108 For them, far from being a type of eternal binding law, the ius commune merely had persuasive value. Legal humanists thus expanded the sources of legal scholarship beyond legal sources to include literary works, philosophical treatises, and historical analogies drawn from the ancient world.109 Until recently, international legal historians considered Gentili as a staunch defender of the Italian style.110 This early assessment relied on the extensive use of ius commune concepts in Gentili’s work and his criticism of the most extreme aspects of the French style in the De Iuris Interpretibus Dialogi Sex (Six Dialogues on the Interpreters of Law).111 Gentili argued that lawyers should focus on the study of law rather than other disciplines.112 Particularly in his early production, Gentili relied on the style he was familiar with. Holding a doctorate from the University of Perugia, he mastered the Italian style of teaching 104 Raul C. Van Caenegem, European Law in the Past and the Future—Unity and Diversity over Two Millennia (Cambridge: cup 2002) 1. 105 Constantin Fasolt, Past Sense—Studies in Medieval and Early Modern European History (Leiden/Boston: Brill 2014) 456. 106 Maclean, Interpretation and Meaning in the Renaissance, 17. 107 See generally Donald R. Kelley, Foundations of Modern Historical Scholarship—Language, Law and History in the French Renaissance (New York: Columbia University Press 1970). 108 Wijffels, ‘Early Modern Scholarship on International Law’, 36. 109 Giovanni Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus—L’Inedito Commentario Ad Legem Juliam de Adulteriis (Bologna: Monduzzi 2002) 166. 110 Stein, ‘The Ius Commune and Its Demise’, 163; Adriano Cavanna, Storia del Diritto Moderno in Europa (Milano: Giuffrè 1982) 182 (arguing that Gentili defended a lost cause); Donald R. Kelley, ‘The Rise of Legal History in the Reinassance’ (1970) 9 History and Theory 174– 194, 179 (describing Gentili as a defender of the mos italicus). 111 Alberici Gentilis, De Iuris Interpretibus Dialogi Sex (London: apud Johannem Wolfium 1582) Guido Astuti (ed) (Torino: Istituto Giuridico della Regia Università di Torino 1937) 61. 112 Id. 61, 143, and 173.

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law. It is also possible that De Iuris Interpretibus was an attempt to win the sympathies of Griffith Lloyd, then Regius Professor of Civil Law in Oxford, who seemingly preferred the Italian style to the French one.113 However, Gentili’s method evolved through time, and from a mere interpreter of civil law (interpres iuris civilis), he soon became an interpreter of law (interpres iuris).114 While he endorsed the key strengths of the Italian style, including a focus on legal issues, he also adopted some elements of the French style, such as a gradual opening to literary, philosophical, and historical sources.115 Gentili’s arrival in England, his professorship at Oxford, and his humanist network exposed him to a different appreciation of the new intellectual currents. It is likely that his style gradually evolved in response to a number of veiled criticisms that he received after the publication of the De Iuris Interpretibus. For instance, Jean Hotman (1552–1636), the son of the great humanist François Hotman and one of Gentili’s friends, criticized Gentili’s Dialogues contending, inter alia, that they expressed ‘absurd views’, ‘inferior argumentation’, and ‘arrogant presentation’.116 Reportedly, other scholars at Oxford were ‘greatly puzzled at such a reputedly good teacher writing so badly’ in ‘barbaric Latin’.117 Jean Hotman wondered: was Gentili throwing ‘mud at the “scholars of the century” in order to look himself the more brilliant?’118 Was he like the fox that tried to eat grapes from a vine but could not reach them and therefore pretended to despise them?119 Given that Gentili criticized François Hotman, Jean’s father, for pretending to have universal knowledge, thus arguably ‘hit[ting Jean] in his familial and national pride’, Jean Hotman’s criticism of Alberico Gentili’s work should be taken with a pinch of salt.120 Although Jean Hotman did not publish his criticisms, Gentili heard rumours of his complaints, and repeatedly tried to engage him in an open discussion, but to no avail.121 Yet, it is possible that Gentili weighed such criticisms and adapted his method accordingly. 113 Thomas E. Holland, Discorso Inaugurale letto nel Collegio dei Fedeli Defunti in Oxford il 7 Novembre 1874, Aurelio Saffi (trans) (Roma: Ermanno Loescher 1884) 31. 114 See generally Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus. 115 Marchetto, ‘Alberico Gentili e la Tradizione’, 76. 116 G.H.M. Posthumus Meyjes, Jean Hotman’s English Connection (Amsterdam: Koninklijke Nederlandse Akademie Van Wetenschappen 1990) 178. 117 Id. 179 (reporting the letter that the erudite Savile addressed to Jean Hotman (Oxford, 17 February 1583) wondering how a man who lectured so well could write so badly.) 118 Id. 178. 119 Giovanni Minnucci, Silete Theologi in Munere Alieno (Bologna: Monduzzi 2016) 50 (reporting Jean Hotman’s criticism). 120 Posthumus Meyjes, Jean Hotman’s English Connection, 179. 121 Giovanni Aquilecchia, ‘Giordano Bruno in Inghilterra (1583–1585)’ (1995) Bruniana & Campanelliana 21–42, 32 (reproducing Alberico Gentili’s letter to Jean Hotman (Oxford,

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In later works not only did Gentili use humanist techniques himself, but he also praised the writings of humanists like Alciato, Cujas, and others. Even in the De Iuris Interpretibus, Gentili seemed to have adopted the very style he had been critical of, and in any case, as mentioned, his criticism related to the extreme aspects of the French style.122 Moreover, he gradually mixed features of both mos italicus and mos gallicus in his work.123 For instance, in the Commentatio ad Legem iii Codicis de Professoribus et Medicis (Commentary on the Third Law of the [ Justinian] Code on Professors and Doctors) published in 1593, Gentili relied on the classics but also on contemporary political writers including Jean Bodin and humanist jurists Alciato and Cujas.124 Analogously, in his commentary on the law governing adultery—a theme that Elizabethan England considered a minefield—Gentili extensively relied on the humanist legal literature, referring to Alciato, Cujas, and Bodin.125 Finally, Gentili’s masterpiece, the De Iure Belli, constituted ‘a kind of summa of the whole literature of Renaissance humanism’.126 Gentili built De Iure Belli on the rich legal heritage of both the Italian style and legal humanism.127 The cultural, legal, and political complexity of Gentili’s works resists any strict categorization.128 His sustained interest in humanism brought some elements of the reason of state (ragion di stato) into Gentili’s legal thought, placing him in the humanist tradition of international political and legal thought as opposed to the scholastic tradition of scholars who relied on legal sources only.129 In his mature works, which are perhaps most representative of his  thought, not only did he refer to the humanists’ works and cite them ­approvingly, but he also included many historical, philosophical, and literary examples.

8 November 1582): ‘Tu vero siles Hotomanne? Quid ais de libello meo? Sat scio non probari opiniones, qui coram refutare solebas’.). 122 Maclean, Interpretation and Meaning in the Renaissance, 17. 123 Id. 17–20. 124 J.W. Binns, ‘Alberico Gentili in Defense of Poetry and Acting’ (1972) 19 Studies in the Renaissance 227. 125 Alberici Gentili, Ad tit. C. ad Legem Juliam de Adulteriis Commentarius, Bodleian Library, MS 610 D’Orville ff. 59r–69v; Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus, 17–18. 126 Christopher N. Warren, Literature & the Law of Nations 1580–1680 (Oxford: oup 2015) 40. 127 Luigi Lacchè, ‘Presentazione’, in vvaa, Alberico Gentili—L’Ereditá di un Classico della Teoria Internazionale Moderna—Atti dei Convegni nel Quarto Centenario della Morte, vol. ii (Milano: Giuffrè 2008) 44. 128 Id. 129 Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: oup 1999) 9 ff, 51.

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In conclusion, Gentili bridged the gap between tradition and innovation. He identified a middle ground between the doctrinal heritage of the Italian style and the methodological renewal of the French style.130 Therefore, his work did not belong to the mos italicus or the mos gallicus; rather, it powerfully used and transcended both traditions.131 In this way, Gentili reflected the rise of the modern style (usus modernus), which became the mainstream school of thought in the seventeenth century, mixing features of the Italian and French styles, and systematizing the law based on its subject matter.132 His approach contributed to the development of the law of nations as a separate branch of law and as ‘a legal discipline in its own right’.133 3.4

Gentili’s Sources

Before examining Gentili’s method in more detail, this section briefly examines his use of sources. Most international law scholars today may feel uncomfortable with Gentili’s writings, as they are accustomed to a semi-closed number of sources with an established hierarchical order. Under the so-called theory of sources, international lawyers identify and validate a rule on the basis of its formal genesis.134 They are required to apply international conventions, international customs, and general principles of law, as well as judicial decisions and juristic writings as means for the determination of rules of law.135 The postwar architects of the theory of sources designed it as a platform to limit power politics and adopt a rule-based perspective.136 When Gentili approached the law of nations, such field ‘hardly existed as a separate legal discipline’ and the very notion of sources of international law emerged only later in the nineteenth century.137 130 Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus, 166–167. 131 Id. 9. 132 Alain Wijffels, ‘Early Modern Literature on International Law and the Usus Modernus’(1995) 16 Grotiana 35–54, 36–39. 133 Id. 42. 134 Jean D’Aspremont, ‘Towards a New Theory of Sources in International Law’, in Anne Orford, Florian Hoffmann, and Martin Clark (eds) The Oxford Handbook of the Theory of International Law (Oxford: oup 2016) 545–563, 547. 135 Statute of the International Court of Justice, Article 38. Charter of the United Nations and Statute of the International Court of Justice, 26 June 1945, TS No. 993, at 25. 136 D’Aspremont, ‘Towards a New Theory of Sources in International Law’, 546. 137 Peter Haggenmacher, ‘Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium Revisited by Theologians’, in Jean D’Aspremont and Samantha Besson (eds) The Oxford Handbook of the Sources of International Law (Oxford: oup 2017) 45–63, 45.

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While Gentili identified the law of nations as a coherent and separate corpus of legal principles and rules, generally scholars ascribe the first systematic exposition of the law of nations to one of Gentili’s students and successors to the Regius Chair of Civil Law in Oxford, Richard Zouche (1590–1661).138 Zouche’s achievement was to encompass all the various subfields of international law within a single manual.139 Even though Gentili authored several works dealing with different subfields of the law of nations, it can be argued that he conceived the field holistically. Gentili acknowledged that the law of nations was ‘buried in obscurity’ and that ‘even its very existence [was] called in question by some’.140 However, he clearly stated that ‘questions of war ought to be settled in accordance with the law of nations’ (quaestiones bellicas iure definire gentium oportere).141 As Schröder has aptly demonstrated, Gentili broke new ground by adopting a juridical approach to issues of the law of nations thus distancing his work from that of theologians.142 He also clearly distinguished the law of nations from distinct fields such as military law.143 More fundamentally, his masterpiece, De iure belli, did not merely include what nowadays broadly corresponds to the law of war, but also other subfields of the law of nations, such as neutrality law, treaty law, trade law, humanitarian law, and the law of the sea.144 If Gentili focused on the law of war, he conceptualized it as a subfield of the law of nations. Gentili called this field ius gentium bellicum, thus considering it as a part of the general ius gentium.145 Gentili was certainly aware that the law of nations constituted a new legal discipline with its own inner logic and aimed to investigate ‘what that law was’.146 While he acknowledged that there were ‘different and conflicting views’ about many legal issues, he stated that it was hard but not impossible to detect rules of international law.147 Moreover, he noted that ‘because many act

138 Gentili, De Iure Belli, Book i, Chapter 1. 139 Richard Zouche, Iuris Et Iudicii Fecialis, Sive, Iuris Inter Gentes, Et Quaestionum De Eodem Explicatio, Thomas E. Holland (ed) (Washington D.C: Carnegie Institution 1911). 140 Gentili, De Iure Belli, Book i, Chapter 1, p. 5. 141 Id. 142 See generally Peter Schröder, ‘Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: oup 2010) 164. 143 Gentili, De Iure Belli, Book i, Chapter 1, p. 4. 144 Id. p. 9 (noting that ‘[international] commerce is regulated by the law of nations’.). 145 See generally Gentili, De Iure Belli, Book i, Chapter 1. 146 Id. p. 5. 147 Id. p. 6.

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contrary to justice, justice is not therefore non-existent; and a law which many transgress is none the less a law’ (quod contra ius fiat a multis, non propterea ius non est: et non minus est lex, quam multi transgrediuntur).148 Analogously, ‘the theory of sources was not totally absent’ before the nineteenth century.149 The Roman orator, philosopher, and statesman Cicero (106 BC–43 BC) had already used the metaphor of sources of law (fontes iuris) in trying to identify ‘the ultimate foundation of law and justice’.150 In the early modern period, some scholars started using the concept of sources of law (fontes iuris).151 Gentili did not expressly use the words ‘fontes iuris’. Nonetheless, he aimed to investigate the law of nations and detailed how he would prove its rules.152 His closest reference to the idea of source is in his statement that ‘truth exists, even though it be hidden in a well, and when it is diligently and faithfully sought, it can be brought forth and as a rule is brought forth’.153 In the same way, international law exists and one must diligently and faithfully (diligenter and fideliter) seek to ascertain its rules and pursue justice. Gentili discussed what we would now call the sources of his system in Chapter 1 of Book i of the De Iure Belli. In particular, he identified both written and unwritten sources. Because there was little positive law in the form of treaty law, treaties were referred to where available. Unwritten law—in the form of natural law, customary law, and general principles—played a prominent role in Gentili’s works. Finally, Gentili also discussed the value of legal opinions and precedents for detecting the law of nations. Gentili did not always clearly distinguish between the law of nations and natural law. For instance, in Chapter 1 of Book i of the De Iure Belli, relying on Cicero and the Digest, Gentili identified the law of nations with natural law.154 In a subsequent chapter of the same book, however, he provided a more sophisticated analysis of the relationship between natural law and the law of nations, defining the law of nations as an agreement and bond of union among nations, and the law of nature as a bond of union among human beings.155 148 Gentili, De Iure Belli, Book I, Chapter 1, p. 7. 149 D’Aspremont, ‘Towards a New Theory of Sources in International Law’, 547. 150 Haggenmacher, ‘Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium Revisited by Theologians’, 47. 151 Franciscus Connanus, Commentarii Iuris Civilis (Paris: Iacobus Kerver 1553) Book i, Chapter 6. 152 Gentili, De Iure Belli, Book i, Chapter 1, pp. 5 and 8. 153 Id. p. 8. 154 Id. pp. 5 and 8 (defining the law of nations as ‘that which is in use among all the nations ..., which native reason has established among all human beings, and which is equally observed by all humankind. Such as law is natural law’.). 155 Id., Book i, Chapter 25, p. 124.

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After affirming that ‘natural things are known naturally to all’,156 Gentili explained that the whole content of natural law could be summarized by the following principles: ‘to live honourably; not to wrong another; to give everyone his or her due; to protect one’s children; to defend oneself against injury; [and] to recognize kinship with all human beings’.157 For Gentili, ‘it is most just, if we do to another that which we should wish to be done to us in turn; and if we treat strangers as we should treat our friends’.158 He hinted at the existence of human rights, such as the right to a family, the right to education, and freedom of religion.159 He also hinted at the fact that such rights were ‘not written, but inborn’ and ‘acquired at birth’.160 In case of conflict between the law of nature and the law of nations, Gentili recommended following the law of nature, as it had a higher value. Nonetheless, as noted by Gaurier, at times references to the law of nature appear ‘more as an appeal to reasonableness’ than to a binding source of law.161 Gentili also acknowledged the voluntary/consensual nature of some sources of international law such as treaties, customary law (consuetudo), and general principles of law.162 Whereas treaties were based on express consent, customary law and general principles of law were based on implicit consent. Gentili extensively discussed treaties in the third book of De Iure Belli, given their increasing importance as a source of the law of nations in the sixteenth century.163 In this period, treaties gradually became longer, more detailed, and more elaborate, as nations mainly turned to treaties for the creation of new rules.164 For Gentili, treaties were important sources of the law of nations and were binding on states, thus delimiting their sovereignty. This was not self-­ evident at the time. For instance, the jurist and political philosopher Bodin 156 Gentili, De Iure Belli, Book I, Chapter 25, p. 125. 157 Id. Book i, Chapter iii, p. 18. 158 Id. Book ii, Chapter xvii, p. 224 (adding ‘whenever your feelings toward another are such as you would desire another to have with regard to you, you are keeping the path of justice’.). 159 Id. Book i, Chapter xxv, p. 124. 160 Id. Book i, Chapter 1, p. 10. 161 Dominique Gaurier, ‘An Overview of the Sources in the Classical Works of International Law’, in Jean d’Aspremont and Samantha Besson (eds) The Oxford Handbook of the Sources of International Law (Oxford: oup 2017) 85–98, 94. 162 Gentili, De Iure Belli, Book i, Chapter 1, p. 9; Book ii, Chapter ix, p. 174. 163 Id. Book iii, Chapters xiv, xv, xix, xxii, xxiii and xxiv. 164 Randall Lesaffer, ‘The Nature of Europe’s Classical Law of Nations’, in Jean D’Aspremont and Samantha Besson (eds) Oxford Handbook of the Sources of International Law (Oxford: oup 2017) 99–116, 114; Randall H. Lesaffer, ‘The Grotian Tradition Revisited: Change and Continuity in the History of International Law’ (2003) 73 British yil 119; Gentili, De Iure Belli, Book ii, Chapters xii and xiii (also examining truces and other agreements.)

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(1530–1596) did not consider the law of nations as a limit to sovereign power and argued that it had the same status as domestic law.165 Instead, Gentili argued that states should conform to the law of nations (pacta sunt servanda).166 He ‘devoted substantial attention to rules of treaty interpretation’ as treaties were primary tools for the development of international obligations.167 He highlighted that treaties should be interpreted and implemented in good faith.168 For Gentili, treaties include ‘not only what is expressed in their actual language’, but also the intent of the parties, equity, and reasonableness.169 While Gentili upheld the principle that treaties are binding upon the parties to the same and must be performed by them in good faith, he also conceded that a treaty could become inapplicable because of a fundamental change of circumstances (rebus sic stantibus).170 Customs were an important source of the law of nations in Gentili’s time and he claimed that in case of uncertainty, customs provided ‘the best rule of conduct’.171 While Gentili did not explicitly mention the elements necessary to establish a legally binding custom, namely, commonality of usage (usus) and the belief that a custom is mandatory (opinio juris ac necessitatis), he identified common state practice as an important element for the coalescence of a binding custom.172 State practice, that is, the application of given rules by governments and diplomats, as Gentili put it, could give rise to ‘a plausible conjecture’ about the existence of a given customary rule of international law, especially if such practice was uniform among all nations. However, Gentili warned that ‘one ought not to judge from examples’ (nec sit exemplis iudicandum).173 In fact, if people merely employed a given practice but were ashamed of it, such practice could not be regarded as lawful.174 In other words, usus was the material condition (corpus) for a custom to emerge, but the formation of customary law also required universal approval (animus). Gentili clarified that he did not formulate rules from mere state practice; rather, he argued that any practice 165 Jean Bodin, Les Six Livres de la Republique (Paris: chez Iacques du Puis 1583) i, 8. 166 Diego Pirillo, ‘Schiavitù e Diritto delle Genti nel De Iure Belli di Alberico Gentili’, in Nicola Panichi (ed) Figure di ‘Servitù’ e ‘Dominio’ nella Cultura Filosofica Europea tra Cinquecento e Seicento (Firenze: Le Lettere 2010) 137–153, 149. 167 David J. Bederman, ‘Grotius and His Followers on Treaty Construction’ (2001) 3 Journal of the History of International Law 24. 168 Gentili, De Iure Belli, Book ii, Chapter 13, p. 191. 169 Id. 170 Id. Book iii, Chapter 16, p. 379. 171 Id. Book ii, Chapter 17, p. 224. 172 Id. Book ii, Chapter 9, p. 174 (‘we properly call that lawful which is praised by all …. We may … make use of that which meets the open approval of all’.). 173 Id. Book i, Chapter 1, p. 11 and Book ii, Chapter 8, p. 166. 174 Id. Book i, Chapter 1, p. 11.

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required critical assessment and concluded that ‘a sound reason is better than mere examples’.175 Gentili referred to state practice, drawing it from philosophical, legal, theological, poetic, and historical texts from the histories of Rome, Greece, and other countries.176 In evaluating such ‘precedents’, he stated that ‘we should follow the examples of good people’.177 Gentili acknowledged that customs are binding upon all members of the international community even if a given community objected to them, thus not acknowledging the persistent objector rule.178 With regard to general principles of law, Gentili believed that ‘there are certain principles that are so fundamental that they are shared everywhere’ and that such general principles also constitute sources of international law.179 For Gentili, such principles have an implicit consensual character and are based on the agreement of all nations (communis consensus gentium).180 However, this did not mean that all nations should ‘[come] together at a given time’ to establish the law of nations or that absolutely every nation should be considered in order to detect consent.181 Rather, Gentili accepted such principles as general, if they were endorsed by a significant number of nations.182 Finally, Gentili also acknowledged the importance of the opinions of authorities (iuris interpretes) and precedents (exempla).183 With regard to legal opinions, Gentili noted that legal scholars ‘have often adopted different and conflicting views’.184 While scholarly debates could sometimes obscure rather than clarify the law, Gentili nonetheless discussed commentators’ views, ultimately acknowledging that some scholars truly contributed to illuminating the field.185

175 Gentili, De Iure Belli, Book ii, Chapter 8, p. 166 (adding that ‘a precedent is never established by bad men’.) and Book ii, Chapter 18, p. 233. 176 Id. Book ii, Chapter 20, p. 248 (‘there is an abundance of precedents on which to base the law which we are investigating; for as you see, we have them from philosophers, lawgivers, theologians, poets, and historians; from the histories of Rome, Greece, and foreign countries’.). 177 Id. Book ii, Chapter 17, p. 224. 178 Id. Book i, Chapter 1, p. 9. 179 Dana Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ (2006–7) 8 San Diego ilj 291–343, 331. 180 Gentili, De Iure Belli, Book ii, Chapter 1, p. 8. 181 Id. 182 Id. 183 Id. pp. 10–11. 184 Id. p. 5. 185 Id. pp. 6 and 8.

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With regard to precedents, as mentioned, Gentili argued that they required critical assessment. Gentili carefully balanced his legal arguments and historical examples (exempla historica) to detect customs or general principles of international law.186 Rather than basing his reasoning on precedents, he followed ‘the golden rule of Justinian’ according to which one should judge by the laws, not precedents (non exemplis sed legibus iudicandum est).187 For Gentili, ‘[h]onourable conduct consists not in inquiring what others have done, but what it was right to do. For a sound reason is better than mere examples’.188 Therefore, in addition to examining precedents, Gentili quoted a great number of scholars and used extremely diverse informative sources, including historical, philosophical, theological, and literary sources.189 In an eclectic manner, he relied on classical philosophers, such as Aristotle and Cicero, as well as theologians, such as Thomas Aquinas. After briefly introducing a given international law topic, Gentili provided ‘historical evidence’ in the form of historical examples. He drew such examples not only from antiquity but also from the practice of the time. Gentili ‘never forg[ot] he [was] dealing with modern questions’; when he referred to ancient and current authorities, it was not to display erudition but rather to seek the most appropriate legal solution.190 Not only did this confer ‘a special charm to his writings’,191 but it also conferred ‘vigour, freshness, and common sense’ to the legal solutions he devised.192 In those cases in which no clear-cut solution to a given legal issue existed because of contradictory precedents and legal opinions, Gentili sought to devise the most appropriate legal solutions.193 For Gentili, the choice among different interpretations was a matter of judgment and common sense.194 In conclusion, for most of the early modern period, scholars did not have a doctrine of sources. Gentili discussed his sources in Chapter 1 of the first 186 See generally Gentili, De Iure Belli, Book i, Chapter i. 187 Kinch Hoekstra, ‘A Source of War. Gentili, Thucydides, and the Justification of Pre-­ emption’, in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 116. 188 Gentili, De Iure Belli, Book 2, Chapter 18, p. 233. 189 Coleman Phillipson, ‘The Great Jurists of the World—Albericus Gentilis’ (1911) 12 Journal of the Society of Comparative Legislation 52–80, 58. 190 Id. 59. 191 Gesina H.J. Van der Molen, Alberico Gentili and the Development of International Law—His Life, Work, and Times, 2nd revised edition (Leyden: A.W. Sijthoff 1968) 243. 192 Phillipson, ‘The Great Jurists of the World’, 59. 193 Giorgio Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes: il Ruolo di Alberico Gentili agli Albori del Diritto Internazionale Moderno’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 88. 194 Id. 86.

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book of his De Iure Belli and they included treaties, customs, general principles of law, doctrinal sources, and persuasive precedents. Although his general discussion of the sources remained brief, it offered useful insights; he then provided in-depth t­ reatment of specific sources in other parts of the De Iure Belli. Given the times in which Gentili wrote, it is difficult to see how he could have drawn on sources other than those available in Europe.195 Asian legal theories had existed for ­almost two millennia before Gentili’s exposition of the law of nations, but were translated into European languages only at the end of the eighteenth century.196 Nonetheless, Gentili’s informative sources were varied and while he did not have access to the legal sources of other continents, he tried to detect state practice from the study of literary and historical sources describing these different civilizations. He gradually broadened the range of his informative sources to include both legal and non-legal references.197 Expanding the range of sources that gave him information did not merely reflect a general tendency among legal scholars of the time. It was part of Gentili’s ambition to widen the scope, authority, and influence of legal studies.198 He wanted to ensure that the domain of legal studies ‘would not be sidelined by theologians and political theorists’.199 Therefore, he mastered a variety of different informative sources ranging from literature, philosophy, and history to political theory. Like his contemporaries, Gentili did not identify a hierarchy among his informative sources. The next section will focus on Gentili’s method and use of informative sources. 3.5

Gentili’s Method

Gentili’s method was ‘essentially topical and dialectical, having its roots in the medieval style of disputations’.200 He did not discuss abstract theories but 195 On the Eurocentrism of the doctrine of sources of international law, see Rose Parfitt, ‘The Spectre of Sources’ (2014) 25 European Journal of International Law 297–306, 300, and B.S. Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) 8 Melbourne Journal of International Law 499–515. 196 Charles Henry Alexandrowicz, The Law of Nations in Global History, David Armitage and Jennifer Pitts (eds) (Oxford: oup 2017). 197 See Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus, 9. 198 Alain Wijffels ‘Book Review, G. Minnucci, Alberico Gentili tra Mos Italicus e Mos Gallicus. L’Inedito Commentario Ad Legem Juliam de Adulteriis (Bologna: Monduzzi 2002)’ (2008) 76 Tijdschrift voor Rechtsgeschiedenis/Revue d’Histoire du Droit 421. 199 Id. 200 Diego Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli. The Great Debate between “Theological” and “Humanist” Perspectives from Vitoria to Grotius’, (2005) ­Institute for International Law & Justice Working Paper 2005/15, 6.

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specific issues of the law of nations by referring to current practice, historical ­examples (exempla), and learned opinions (auctoritates). For Gentili, a method based on ‘geometrical reason’ (ratio geometrica) was ‘not really suited to the realm of law and justice’.201 He expressly warned his readers that he would not give them ‘demonstrations’ or ‘exact explanations’ such as they might get from a mathematician, but persuasive arguments built through theory and practice.202 Gentili created a coherent international legal theory out of three different intellectual traditions: (1) the civilian/Roman legal tradition; (2) the ‘scholastic’ or ‘theological’ tradition; and (3) the humanist tradition.203 The first major component of the Gentilian theory of the law of nations is the civilian tradition. At first sight, it is somewhat surprising that a Professor of civil law wrote treatises on the law of nations.204 Although civil law was common to a number of countries, it was not properly ‘international’ in the modern sense of the word; rather, it had an internal character.205 The Justinian’s Digest did not deal with the law of war; rather, it mostly governed private law matters. Gentili distinguished the international legal order (lex extra rempublicam) from the domestic one (lex reipublicae) and the law of nations from civil law. While for Gentili the law of nations was the law which nations had in common and belonged to the international community, civil law did not go beyond the boundaries of the state and addressed ‘the disputes of private individuals alone’.206 For Gentili, ‘both the nature and the method of investigation of the two subjects [we]re different’.207 While civil law constituted ‘an agreement and a bond of union among citizens’, the law of nations constituted a bond of union among nations, and the law of nature constituted a bond of union among human beings.208 Gentili also saw the law of nations as a distinct legal field that could reflect and at times coincide with the unwritten natural law (ius naturae).209 Nonetheless, Gentili built an intellectual bridge between civil law and the law of nations.210 As is known, he sometimes equated the law of nations to 201 Id. 7. 202 Gentili, De Iure Belli, Book i, Chapter 1, p. 11. 203 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 8. 204 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 41. 205 Gentili, De Iure Belli, Book i, Chapter 1, pp. 3–4. 206 Id. See also Book 1, Chapter 3, p. 17. 207 Gentili, De Iure Belli, Book ii, Chapter 19, p. 243. 208 Id. Book i, Chapter 25, p. 124. 209 Id. Book i, Chapter 1, p. 8 (‘ius … gentium [est] quod naturalis ratio inter omnes homines constituit…’) and p. 5 (‘the law of nations is the law of nature’.). 210 Benjamin Straumann, ‘The Corpus Iuris as a Source of Law Between Sovereigns in Alberico Gentili’s Thought’ in Benedict Kingsbury and Benjamin Straumann (eds) The

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­ atural law, that is, a law that he perceived to be common to all, and that natun ral reason had established among human beings.211 Because natural law was relatively self-evident, it did not require much explanation; indeed, any attempt to define it would probably fail to accurately capture and convey its complexities.212 Yet, because the law of nations remained ‘hidden in nature’s inmost heart’, and ‘buried in obscurity’, in order to identify it in practice, Gentili maintained the existence of similarities between civil law and natural/international law and the appropriateness of transplanting some legal concepts from the former to the latter.213 In fact, for Gentili, civil law undoubtedly reflected natural reason.214 There were three main perceived benefits of such legal transplants. First, civil law was a written, well-developed, and sophisticated body of law. It included a range of Roman law sources, as interpreted and commented upon by medieval and early modern legal theorists. While ‘the authoritative texts of canon and Roman law contained few passages that directly dealt with international relations’, medieval civilians and canonists wrote widely about matters of war and peace, diplomacy, and international trade.215 Second, Roman law had some cosmopolitan features as it grew out of the experiences and inputs of different peoples, was common to many, and evolved through the interactions among different nations.216 The same civil law was common to a number of countries (ius commune). Therefore, Gentili saw civil law as an investigative tool for identifying the content of natural law and the law of nations.217 Third, and more fundamentally, the concept of natural law as clarified through Roman law notions provided Gentili with the possibility to ‘confront the Iberian

­ oman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (OxR ford: oup 2010) 101–123. 211 Gentili, De Iure Belli, Book i, Chapter 1, p. 8 (defining the law of nations as the law ‘which is in use among all the nations’ which ‘reason has established among all human beings, and which is equally observed by all humankind. Such a law is natural law’.). 212 Id. p. 10. 213 Id. p. 11. 214 Id. See also Book i, Chapter 3, p. 17 (‘it is true that the civil law does not correspond to the law of nature and of nations in all respects; but yet it is not wholly unlike the law of nature and that of nations’.). 215 Randall Lesaffer, ‘The Nature of Europe’s Classical Law of Nations’, in Jean D’Aspremont and Samantha Besson (eds) Oxford Handbook of the Sources of International Law (Oxford: oup 2017) 99–116, 104; Randall Lesaffer, ‘Roman Law and the Intellectual History of International Law’, in Anne Orford and Florian Hoffmann (eds) The Oxford Handbook of the Theory of International Law (Oxford: oup 2016) 38–58, 47. 216 Gentili, De Iure Belli, Book i, Chapter 1, p. 9. 217 Virgilio Ilari, ‘Ius Civile e Ius Extra Rempublicam nel De Iure Belli di Alberico Gentili’, in Studi in Onore di Arnaldo Biscardi, vol iii (Milano: Cisalpino 1982) 552.

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legal claims at their roots’.218 For instance, relying on Roman law, he distinguished war from private violence, and recognized the principle of equality of the belligerents.219 The transposition of concepts from Roman law to the law of nations was not automatic; rather, when dealing with a specific issue, Gentili investigated the various legal solutions offered by the different domestic law sources (civil law, feudal law, canon law, and their commentaries) and international ones (customs, non-binding but persuasive precedents, as found in consilia, and general principles of law) at his disposal, to find what he considered to be the perfect expression of natural law, eventually adapting it to the international context.220 For instance, he noted that civil law ‘did not give equal rights to … daughters’, and he regarded this defect as ‘especially contrary to natural justice’.221 Gentili probably took the idea that the natures of men and women are akin from Plato who supported the idea that they should receive the same kind of education and should be entrusted with similar responsibilities.222 Other scholars had argued that natural law included the rights of women as well as the rights of men.223 With regard to treaty interpretation, Gentili suggested that natural justice required the law of nations to overcome the legal subtleties of civil law.224 In the Gentilian theory of the law of nations, Roman law did not have an absolute authority; rather, Gentili took inspiration from Roman law if it provided rules that not only worked well in the original system, but were also deemed to be suitable to the law of nations. That said, the civilian heritage deeply influenced the Gentilian theory of the law of nations. Gentili often referred to Roman sources as a fine expression of written reason (ratio scripta), ‘the supreme model of legal rationality’, and ‘a repository of political wisdom’.225 He extensively used analogic reasoning to fill the gaps in the law of nations, drawing analogies between civil law and the law 218 Straumann, ‘The Corpus Iuris as a Source of Law Between Sovereigns in Alberico Gentili’s Thought’, 115 (arguing that the formally declared law of ‘nature’ ‘substantively … gave legal weight to certain rules and principles contained in the Corpus Iuris’.). 219 Gentili, De Iure Belli, Book i, Chapter 14, p. 22 (on piracy). 220 Giuliano Marchetto, ‘Una Guerra Giusta per una Giusta Pace. Il Diritto dei Trattati nel De Iure Belli Libri iii (1598) di Alberico Gentili’ (2010) 10 Laboratoire Italien 1–17, 4. 221 Gentili, De Iure Belli, Book i, Chapter 3, p. 18. 222 Plato, The Republic, Desmond Lee (transl) 2nd ed. (London: Penguin 1987) 163–166. 223 Paul Gordon Lauren, ‘The Foundations of Justice and Human Rights in Early Legal Texts and Thought’, in Dinah Shelton (ed) The Oxford Handbook of International Human Rights Law (Oxford: oup 2013) 163–192, 179; Christine de Pizan, The Book of the City of Ladies [1405], Rosayn Brown-Grant (transl.) (London: Penguin 2000). 224 Gentili, De Iure Belli, Book ii, Chapter 4, p. 145; Book ii, Chapter 15, p. 204. 225 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 9.

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of nations, borrowing rules from the former and applying them to the latter.226 For instance, when considering how to treat the enemies who surrendered, and envisaging a favourable treatment, he wondered whether the same favourable treatment should be extended to those who had opposed the surrender.227 Gentili relied on Roman law and an advisory opinion (consilium) of the legal humanist Andrea Alciato (1492–1550) providing that a shareholder could undertake obligations on behalf of the other shareholders, to argue that the same favourable treatment should be granted not only to those who surrendered but to all the other soldiers as well. By using a free analogy derived from a different legal field, Gentili stressed the need to show mercy in the aftermath of war. The second major component of the Gentilian system is the scholastic or theological tradition.228 At first sight, this reliance on the theological tradition may seems paradoxical. The ‘theoretical antagonism’ between Gentili and the theologians of Salamanca ‘concerned questions of central political importance’.229 Gentili generally upheld the separation between theology and the law of nations and used civil law and humanist concepts to build up an international legal theory that was an alternative to scholastic doctrine.230 Yet, the scholastic/theological tradition greatly influenced the development of his theory.231 The Spanish theologians of the sixteenth century, mainly represented by the School of Salamanca,232 revised the doctrine of the ‘just war’ adapting it to the changed political setting especially in connection with the geographical discoveries, the Spanish expansion, and the challenge of cultural diversity.233 In order to discuss the law of war, Gentili relied on his ‘coeval map of knowledge’ and used some of the scholastic language to develop his own thought.234 For instance, Gentili considered the law of nations as a gift of God, a particle of light in the deep darkness of human life.235 He used biblical sources, theological opinions, and even canon law to define concepts of the law of

226 227 228 229 230

Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli, 10. Marchetto, ‘Alberico Gentili e la Tradizione’, 80–81. Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 10. Id. 14. Pärtel Piirimäe, ‘Alberico Gentili’s Doctrine of Defensive War and its Impact on Seventeenth-Century Normative Views’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 187–209. 231 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 11. 232 Id. 13. 233 Id. 14. 234 Id. 4. 235 Gentili, De Iure Belli, Book i, Chapter 1, pp. 7–8 (ius gentium est particula divini iuris).

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war and neutrality law.236 At the same time, he excluded the argument that war could be waged on religious grounds.237 The third major component of the Gentilian system is the humanist tradition of thinking about politics and war.238 Renaissance humanism, the philosophical, intellectual, and literary current that prevailed in sixteenth-century Europe, had a deep impact on Gentili’s vision of the international order. Renaissance humanists shifted the emphasis of scientific enquiry from theology to the humanities. Instead of focusing on divine matters, they put humanity at the core of their investigations, considering human beings as the ultimate divine creation but also as the makers of their own destiny.239 As a Renaissance humanist, Gentili envisioned a new international legal order based on principles of justice, religious freedom, and respect for human dignity. He even hinted at the possibility that certain rights are inborn and acquired by human beings at birth.240 Renaissance humanism led Gentili to rely on both historical and philosophical sources in his De Iure Belli. For Gentili, history could be a useful tool to identify customs, general principles of law, and the law of nations. Therefore, he relied on history as a ‘storehouse of examples of human conduct’, believing in the usefulness of history for the present.241 He selectively cited a number of individual figures and events, from Alexander the Great (356 bc–323 bc) to the Turco-Mongol Tamerlane (1336–1405), from the Arab Saladin (1137–1193) to the Albanian Skanderbeg (1405–1468) and the Florentine Catherine de’ Medici (1519–1589). He used historical figures and episodes in an eclectic and instrumental manner to explain given legal issues of the emerging law of nations. He certainly did not aim to narrate historical events, but to use history in the service of law. He generally assumed his readers would be familiar with the historical events he was referring to, and this probably was the case.

236 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 10. 237 Gentili, De Iure Belli, Book i, Chapter 9, pp. 38–41. 238 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 12. 239 Donald R. Kelley, Renaissance Humanism (Boston: Twayne Publishers 1991) 44 (referring to Giovanni Pico della Mirandola’s Oration on the Dignity of Man (De Hominis Dignitate), and his belief in the capacity of human beings to shape their own destiny). 240 Gentili, De Iure Belli, Book i, Chapter 1, p. 10 (‘such laws are not written, but inborn … we have not received them through instruction, but have acquired them at birth’.). 241 Kaius Tuori, ‘The Reception of Ancient Legal Thought in Early Modern International Law’, in Bardo Fassbender and Anne Peters (eds.) The Oxford Handbook of the History of International Law (Oxford: oup 2012) 1012–1033, 1021; Paulina Kewes, ‘History and Its Uses: Introduction’ (2005) 68 Huntington Library Quarterly 1–31, 1–2.

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Gentili expressly criticized some of his contemporaries, such as Bodin, for adopting a purely historiographical method.242 For Gentili, such ‘a bare recital of history’ (nuda historiarum recitatio) failed to identify general principles of law and customary law.243 In fact, ‘because of the diversity and the contradictory nature of examples’, lawyers ‘could not easily derive from [such works] any system of law’.244 Rather, he argued that law, history, and philosophy should be combined: while history provided lawyers with past and present state practice, philosophy provided theoretical tools to assess such concrete examples critically. Gentili contended that lawyers should rely on both theory and practice, philosophy and history, reason and custom. While history could offer a range of examples and precedents that enabled judgments based on practice, philosophy could offer the necessary criteria for evaluating such precedents, confer meaning to experience, and develop legal arguments.245 In conclusion, a philosophical reading helped clarify historical examples, while historical examples helped illuminate abstract legal theory.246 Lawyers should weigh examples and events to determine their just value;247 for Gentili ‘honourable conduct consists, not in enquiring what others have done, but what it was right to do. For a sound reason is better than examples’.248 Gentili derived his particular philosophical-historical method for ascertaining the law of nations from the Florentine humanist, Niccolò Machiavelli (1469–1527). In his De Legationibus, Gentili praised Machiavelli for critically assessing history in light of philosophy.249 Although Gentili did not cite Machiavelli in his De Iure Belli, he nonetheless relied on Machiavelli’s cyclical view of history and his theory of the uniformity of human nature through time according to which history repeats itself because human beings have always had the same passions.250 Analogously, for Gentili, as for other humanists such as Michel de Montaigne (1533–1592) and William Shakespeare (1564–1616),

242 Gentili, De Iure Belli, Book i, Chapter 1, p. 4. Cfr. Jean Bodin, Methodus ad Facilem Cognitionem Historiarum [1566] Sara Miglietti (trans. and ed.) (Pisa: Normale 2013) (searching for the universal law through a historical perspective). 243 Gentili, De Iure Belli, Book i, Chapter 1, p. 4. 244 Id. 245 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 122–124. 246 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 43. 247 Gentili, De Iure Belli, Book i, Chapter 1, p. 4; Book ii, Chapter 8, p. 166. 248 Id. Book ii, Chapter 18, p. 233. 249 Diego Pirillo, ‘Schiavitù e Diritto delle Genti nel De Iure Belli di Alberico Gentili’, in Nicola Panichi (ed) Figure di ‘Servitù’ e ‘Dominio’ nella Cultura Filosofica Europea tra Cinquecento e Seicento (Firenze: Le Lettere 2010) 137–153, 147. 250 Id.

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­ istory was a stage on which civilizations have played for centuries.251 The idea h that the world is a stage was hardly unique to Gentili and his contemporaries.252 However, history played a central role in Gentili’s work, raising important questions about the limits of personal autonomy, and whether history could help human beings to make sense of their lives. For Gentili, the cyclical nature of history and the uniformity of human nature meant that both history and philosophy were useful tools to detect customary law, general principles of law, and the law of nations more generally.253 Humanism also influenced other aspects of the Gentilian work. In response to the dogmatic-theoretical approach of the medieval scholastics, the humanists mainly used a ‘descriptive-pragmatic’ language. For instance, they often adopted ‘the literary genre of advice-books for princes of the early Renaissance’.254 Gentili followed this literary genre in the third book of his De Legationibus. All his works are characterized by a pragmatic approach. More fundamentally, humanist values infused Gentili’s masterpiece and helped him address a range of topical questions. Gentili translated elements of humanist political theory into legal terms.255 For instance, he transplanted the concepts of the reason of state (ragion di stato) and the balance of power from humanist political theory into international legal theory. In conclusion, Gentili considered himself a lawyer first and foremost. His analysis remained mostly legal, while he wove together the threads of civil law, theology, and humanism into one tapestry of informative sources. After having examined the legal and informative sources underpinning the Gentilian work, 251 Gentili, De Iure Belli, Book I, Chapter 22, p. 107 (‘it is a noble drama which is thus played by sovereigns, republics, and emperors, for which the whole world has served as the stage through all the ages, as the distinguished French writer Montaigne says’.) (‘Hic nobilis est lusus, quem reges sic ludunt, respublicae et imperatores. Et cui sic est theatrum orbis terrarium omnis per secula omnia’.); Michel de Montaigne, Essais, John Florio (trans.) (London: Valentine Simmes 1603) iii, 10 (‘All the world practices stage-playing. We must play our parts duly, but as the part of a borrowed personage’.); William Shakespeare, As You Like it [written in 1599 and first performed in 1603] in William Shakespeare, Comedies, Histories & Tragedies (London: Isaac Iaggard 1623) Act ii, scene vii (‘All the World’s a stage, and all the men and women merely players’.). 252 Tanya Pollard, ‘Introduction’, in Tanya Pollard (ed) Shakespeare’s Theater (Oxford: Blackwell 2004) xix (noting that ‘the idea that the world is like a stage has been expressed at least since the classical period, in the writings of Pythagoras, Plato, and Petronius; it recurs as well in medieval writers’.). 253 Alberico Gentili, De Legationibus Libri Tres (London: Wolfius 1585); Gordon J. Laing (transl.)(New York: OUP 1924), Book iii, Chapter 8. See also Eugenio Garin, L’Umanesimo Italiano (Bari: Laterza 1993) 233 (referring to Giordano Bruno’s belief that ‘Quid est quod est? Ipsum quod fuit. Quid est quod fuit? Ipsum quod est. Nihil sub sole novum’.). 254 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 12. 255 Piirimäe, ‘Alberico Gentili’s Doctrine of Defensive War’, 194.

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the next section will focus on the role of the humanities in the Gentilian legal thought. 3.6

Gentili and the Humanities

The humanities played an important role in the making of Renaissance scholars. The study of the humanities and their use in legal scholarship was ‘just one of the necessary requirements of the perfect jurist’ in the sixteenth ­century.256 In the humanist imagination, history, literature, philosophy, and the law of nations ‘shared concerns’, methods, and techniques, were perceived as complementary, and ‘cross-fertilized’.257 Not only were Renaissance legal scholars great intellectuals, but they also deployed passages of history, philosophy, and literature as constitutive elements of their legal writings, using them as a t­ reasure house of meaningful examples and often adopting a literary reasoning.258 As a Renaissance man, Gentili systematically relied on a variety of sources including history, philosophy, and literature. Renaissance culture provided him with the cornerstones for building his architectural science of justice (scientia architectonica iusti). Gentili approached the law of nations as a new ­distinct science (vera philosophia), separate from domestic law and theology;  at the same time, his work reflected the larger culture of his time.259 In his De Iure Belli, he explained that ‘jurists are not restricted to the books of Justinian, any more than physicians are limited to those of Galen or philosophers to the writings of Aristotle’.260 Like other legal scholars of his time, the core structure of his ‘thought and argument’ was ‘more literary than scientific’.261 Gentili mastered not only political theory, history, and philosophy, but also literature, poetry, and theatre. The influence of these additional skills on his legal writings makes his scholarship appealing to a broad audience. His literary examples make the potentially arid legal subject matter come

256 Anne Pallant, ‘Scipione Gentili: A Sixteenth Century Jurist’, Kingston LR 14 (1984) 113. 257 Warren, Literature & the Law of Nations, 24 and 42. 258 Warren, ‘Gentili, the Poets, and the Laws of War’, 146; Peter Haggenmacher, Grotius et la Doctrine de la Guerre Juste (Paris: Presses Universitaires de France 1983) 3. 259 Diego Panizza, ‘Alberico Gentili e la Scuola di Salamanca. Un Contrasto di Paradigma’, in Marta Ferronato and Lucia Bianchin (eds.) Silete Theologi in Munere Alieno—Alberico Gentili e la Seconda Scolastica (Milano: cedam 2011) 163–184, 167. 260 Gentili, De Iure Belli, Book i, Chapter 3, p. 17. 261 Philip Allott, ‘Language, Method and the Nature of International Law’ (1971) 45 byil 79–135.

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to life. No longer an ­abstract discussion of legal rights and duties, his work was shaped by literary examples narrating human vicissitudes, traumas, and hopes. Literary examples illuminated the ethical dilemmas at the basis of given legal norms. They humanized his legal writing by evoking a courageous, shattered, and resilient humanity. They showed how human beings have always faced difficult ethical choices, sometimes erring, sometimes getting it right. Gentili’s literary sources included epic poems,262 tragedies, and comedies,263 as well as philosophical treatises,264 historical works,265 and the works of orators.266 If one examines these references from a purely quantitative perspective, one can immediately notice that the proportion of literary references visà-vis more juridical references is almost the same in Gentili’s De Iure Belli and De Legationibus—works he composed during his Oxonian period.267 Only in

262 In De Iure Belli, Gentili referred to the epic poems of Virgil (27), Homer (5), Tasso (4), and Ariosto (2). He also referred to the works of other poets including Ovid (15); Horace (14); Apuleius (5); Lucretius (5); Hesiodus (4); Pindar (2); Juvenal (2); and Catullus (1). The numbers indicate the number of quotations Gentili made to the relevant works. The references appear in decreasing order rather than in alphabetical or chronological order in order to emphasize the influence that some literary works had on Gentili. The scrutiny is based on the Index Auctorum Citatorum, in Alberici Gentilis, De Iure Belli Libri Tres, Thomas E. Holland (ed.) (Oxonii: E. Typographeo Clarendoniano 1877). 263 In De Iure Belli, Gentili referred to the tragedies of Euripides (11); Sophocles (4); and Aeschilus (1) as well as the comedies of Terentius (3) and Plautus (3). 264 In De Iure Belli, Gentili referred to several philosophers including Seneca (60); Aristotle (57); Plato (38); Philo of Alexandria (37) and Montaigne (3). 265 In De Iure Belli, Gentili referred to works of ancient historians including Plutarch (94); Livius (94); Tacitus (43); Flavius Josephus (39) Polybius (31); Procopius (30); Herodotus (28); Thucydides (26); Dionysius of Halicarnassus (27); Pausanias (23); Diodorus Siculus (22); Strabo (22); Xenophon (18); Suetonius (12); and Sallustius (10). Gentili also referred to modern historians including Francesco Guicciardini (51); Paulus Jovius (45); and Polydore Vergil (11). 266 In De Iure Belli, Gentili referred to the works of orators including Cicero (172); Demosthenes (16); Isocrates (18); Lactantius (7); and Quintilian (4). 267 In De Legationibus, Gentili referred to historians (including Livy (114); Appian (40); Polybius (39); Dionysius of Halicarnassus (24); Guicciardini (20); Tacitus (19); Plutarch (18); Valerius Maximus (11); Ammianus Marcellinus (10); Thucydides (9) Diogenes Laertius (9); Suetonius (7); Flavius Josephus (5); Diodorus Siculus (5); Paulus Jovius (3); Paulus Orosius (2); Papinian (2); Sallustius (1)); philosophers (including Plato (69); Aristotle (37); and Seneca (2)); orators (including Cicero (82); Demosthenes (14); Quintilian (2); Isocrates (1)); and poets (including Homer (10); Virgil (10); Tasso (10); Lucretius (5); Plautus (4); Horace (2); Catullus (1); Juvenal (1)). The scrutiny is based on the Index of Authors cited by Gentili by Herbert F. Wright, in Alberico Gentili, De Legationibus Libri Tres, Gordon J. Laing (trans.), Ernst Nys (introduction) (New York: oup 1924).

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the Advocatio Hispanica did the share of literary works decrease.268 Because this work had a more practical nature, Gentili mainly referred to legal sources. Instead, as mentioned, in De Iure Belli and De Legationibus, historians, orators, and philosophers predominate among Gentili’s literary sources, albeit in varying proportions. While the variations were probably due to the different topics examined in these works, the patterns enable us to draw some insights about Gentili’s craft. By examining the different threads of the complex tapestry of his informative sources, it is possible to enrich our understanding of Gentili and his work. As a Renaissance jurist, Gentili mastered a fine heritage of history, philosophy, and literature. This section now examines the role of each of these three ingredients in the special alchemy of Gentili’s works. First, Gentili perceived history as a reliable source for identifying state practice, customs, and general principles of the law of nations. Referring to historical facts was a way to confer a measure of ‘universal validity’ to an argument, and Gentili used historical examples as supporting grounds for a given legal thesis.269 Moreover, for Gentili, who had a cyclical vision of history, the world stays ever the same,270 history is a play, and civilizations are merely players.271 While the French humanist François Baudouin (1520–1573) conceived law and history as one, arguing that law could not be properly understood without understanding history, and history could not be properly understood without understanding law,272 Gentili considered law and history as different branches of knowledge. He cautioned that lawyers should focus on law rather than indulge in historical narrations. At the same time, Gentili’s abundant references to historians’ works show that Gentili grounded his approach in state practice rather than in abstract theories. Gentili relied not only on ancient history but also medieval and contemporary history. While Gentili often referred to Biblical, Greek, and Roman history, 268 In the Advocatio Hispanica, the number of literary references is unusually low for Gentili’s usual standards. Gentili referred to Cicero (8), Livius (4), Plutarch (4), Aristotle (3), Xenophon (3), Horace (2), Tacitus (2), Apuleius (1), Catullus (1), Guicciardini (1), Isocrates (1), Juvenal (1), Plautus (1), Pliny (1), Sallustius (1), and Virgil (1). Alberici Gentilis, Hispanicae Advocationis Libri Duo [1613] Frank Frost Abbott (trans.) (New York: OUP 1921). 269 Alain Wijffels, ‘Early Modern Scholarship on International Law’, in Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (Cheltenham: Edward Elgar) 37. 270 Gentili, De Legationibus, Book iii, Chapter 8. 271 Gentilis, De Iure Belli, Book i, Chapter 22 (‘hic nobilis est lusus, quem reges sic ludunt, respublicae et imperatores. Et cui sic est theatrum orbis terrarum omnis per secula omnia’.). 272 Isaiah Berlin, ‘The Origins of the Conflict: Political Lawyers, Classical Scholars, Narrative Historians’, Gauss Seminar Paper, Princeton (1973) 21.

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he also mentioned contemporary historians; and although Italian historians featured prominently in his work, he also referred to English and Scottish historians, perhaps to make his work more relevant in Elizabethan England.273 Among the ancient historians, Thucydides (c. 460–c. 400 bc) played a key role in the Gentilian thought.274 Early modern scholars mined Thucydides’ History of the Peloponnesian War, which Lorenzo Valla (1407–1457) translated from ancient Greek into Latin in 1452, for ethical, political, and legal sayings.275 Thucydides inevitably influenced Gentili on key matters such as the distinction between war and brigandage, preventive attack, and military intervention for defending other nations against their sovereigns.276 At the same time, by narrating the dramatic consequences of aggressive warfare to the aggressors themselves, Thucydides also masterfully showed how Athenian imperialism ultimately undermined Athens’ power over the Aegean Sea, thus providing reasons to moderate or abandon any imperialist policy. Therefore, Thucydides influenced Renaissance thinkers in a protean way. Gentili’s reliance on history was even larger than one might first imagine if one considers that also the works of the orators and philosophers he cited—for instance, Cicero (106 bc– 43 bc) and Seneca (4 bc–ad 65)—often referred to specific historical events. In other words, even when Gentili referred to given philosophical works, he substantially drew upon the historical analysis included in such works. Second, Gentili also relied on philosophical sources. For Renaissance scholars, jurisprudence was a true discipline (vera philosophia),277 a form of wisdom, and a basis for understanding human beings and the world.278 Moreover, there was a growing convergence between jurisprudence and the newly revived political philosophy of Plato (428–348 bc), according to which both philosophy and law were founded on the search for justice. For Renaissance scholars, both law and philosophy were essential components of education.279 273 See, for instance, Gentili, De Iure Belli, Book i, Chapter 3 (referring to Polydore Vergil’s Historia Anglicana) and Book I, Chapter 19 (referring to George Buchanan’s History of Scotland). 274 Kinch Hoekstra, ‘Thucydides and the Bellicose Beginnings of Modern Political Theory’, in Katherine Harloe and Neville Morley (eds) Thucydides and the Modern World (Cambridge: cup 2012) 25–55, 26. 275 Id. 26. 276 Kinch Hoekstra, ‘A Source of War. Gentili, Thucydides, and the Justification of Pre-­ emption’, in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 113–128, 117 (noting that ‘[a]lthough Thucydides is not one of the most frequently cited sources, he is given a special weight’.). 277 Kelley, ‘Vera Philosophia’, 270. 278 Id. 267. 279 Kelley, ‘Jurisconsultus Perfectus’, 90 and 94.

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Gentili was more at home in the world of practice than in the realm of theory. He was not a theoretician and he often used philosophical maxims in a rather sporadic way to settle moral or ethical issues arising from uneven practice. For instance, he used philosophical sources to assess the reasonableness of given practices, that is, their conformity to reason, the law of nature and of nations. He would often collate various maxims from different sources. While the readers can detect his reasoning, it remains evident that he did not consider himself a moral philosopher, but a lawyer. He used philosophical sources instrumentally to develop his theory of the law of nations. Moreover, as mentioned, Gentili often referred to what philosophers wrote about histo­ rical events. Gentili determined the law of nations more by its history than by theory. Third, Gentili often referred to literary sources. Rather than being a mere source of analogies,280 or evidence of state practice,281 or a means of adding weight to legal claims,282 literature developed in parallel with the early modern law of nations from the same humanist discourse and ‘generated foundational thinking on key … aspects of the law of nations, such as … conquest, diplomacy … and the laws of war’.283 As Hoekstra aptly argued, ‘to claim that writers of this period merely illustrate[d] their pre-established arguments with quotations from, or references to, authorities would be to exaggerate the creative autonomy of authors and underplay the extent to which writers are formed by their reading’.284 While some humanists such as Valla considered law ‘as a form of literature’,285 Gentili rejected such approach, as it would subordinate law to the humanities. Instead, for Gentili, law was a distinct field of study, with its own aims and objectives.286 Gentili cited ancient and modern poets, playwrights, and dramatists with little if any distinction regarding chronology or literary field. Early modern epic plots, plays, and tragedies reflected and overlapped with the

280 Gentili, De Iure Belli , Book i, Chapter 1, p. 11 (arguing that ‘although one ought not to judge from examples, … yet it is clear that a plausible conjecture may be deduced from examples’.). 281 Id. (noting the importance of practice to ascertain whether a custom has arisen: ‘for it is not fitting to change things which have always had a fixed observance.’). 282 Id. (noting that ‘a decision has greater weight which is supported by the opinions of a large number of men’.). 283 Warren, Literature & the Law of Nations, 62. 284 Hoekstra, ‘Thucydides and the Bellicose Beginnings of Modern Political Theory’, 26. 285 Kelley, ‘Vera Philosophia’, 268. 286 Id.

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c­lassical concerns of the law of nations.287 Gentili used literature both ­inductively and deductively: while ‘examples from classical epic could illustrate … precepts of the law of war’, epics could ‘prompt unexpected new questions’.288 In De Iure Belli, Gentili devoted space to a variety of epic actions, and his ‘lawyerly reading’ of Homer’s Iliad, Virgil’s Aeneid, and Tasso’s Jerusalem Delivered (Gerusalemme Liberata)289 shaped his laws of war.290 For instance, Gentili condemned the use of spells and magic arts in the conduct of war and deemed them unlawful because they transformed war that is ‘a contest between men’ into ‘a struggle of demons’. He also noted that ‘the famous Tasso for that reason, somewhere in ... his admirable Jerusalem, condemn[ed] such conduct in war’.291 Analogously, when discussing the treatment of the slain, Gentili affirmed that burial or restitution of the corpses was part of the law of nations and natural law. To prove the existence of such customary norms, he referred to a variety of epic poems from Virgil’s Aeneid to Ariosto’s Orlando Furioso292 and Tasso’s Gerusalemme Liberata.293 He aptly referred to Sophocles’ Antigone to make the point that hostilities should cease after death and that this was a norm of ‘divine law, a law of nature, customary and eternal’.294 Classic examples helped him to analyse the laws of war and elucidate his thought on the same.295 Relying on these, however, ‘could be a double-edged sword’.296 For instance, while Iliadic examples supported the inviolability of ambassadors, they also allowed lack of respect for the deceased.297 While the Iliad certainly conveyed a sense of universal compassion as both winners and losers suffered in the same way, ‘the true hero’ of the poem was force.298 Did the citation of literary sources help perpetuate an exclusionist and hierarchical regime of wealth and power? Did Gentili put force at the very centre of human history and the law of nations? In order to address these questions, it may be useful to refer to Hugo Grotius’ approach to the same issues. For 287 Warren, Literature & the Law of Nations, 24. 288 Id. 38. 289 Torquato Tasso, Gerusalemme Liberata [1581] Luca Caretti (ed) (Milano: Mondadori 1983). 290 Warren, ‘Gentili, the Poets, and the Laws of War’, 147. 291 Gentili, De Iure Belli, Book ii, Chapter 6, p. 161. 292 Ludovico Ariosto, Orlando Furioso [1532] John Harington (transl) [1591] (Oxford: oup 1971). 293 Gentili, De Iure Belli, Book ii, Chapter 24, pp. 278–279. 294 Id. p. 278. 295 Warren, Literature & the Law of Nations, 39. 296 Id. 38. 297 Id. 298 Simone Weil, ‘L’Iliad ou le Poème de la Force’ (1940–1) Les Cahiers du Sud 230–231.

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i­nstance, Grotius ‘employed techniques of persuasion’, referring to the great poets of the past.299 His 1609 Mare Liberum was part of a larger oeuvre, De Iure Praedae, written in response to the capture of Portuguese booty.300 The Dutch East India Company commissioned Grotius ‘to write a defence which justified the Company’s actions both legally and morally to quell shareholders’ concerns’.301 Grotius relied intensively on Virgil’s Aeneid, the Latin epic poem that centers on Aeneas’ voyage to Latium and the founding of Rome, as a persuasive strategy to justify Dutch imperialism. By theorizing the freedom of the seas, Grotius ‘refute[d] the claim of any country to dominion over the seas and to exclude foreigners from the right of peaceful trade’.302 In the opening paragraphs of the Mare Liberum, Grotius quoted the Aeneid to make the point that the air and the seas were free to all and affirm ‘the absolute sanctity of a natural law of hospitality’.303 Scholars have pointed out that by theorizing a duty of hospitality and referring to the Aeneid, Grotius ‘gave a sense of epic order’ to ‘the establishment of a Dutch Empire’.304 Did reference to the Aeneid play a similar role in the Gentilian system? Gentili’s De Iure Belli captured the competitive international orientation of states in early modern Europe. As mentioned earlier, Gentili wrote the De Iure Belli during the Anglo-Spanish war (1585–1604), when Spain tried to invade England. In De Iure Belli, Gentili referred to the same passage of the Aeneid to support the plight of refugees, arguing that ‘those who have been driven from their own home should somehow find a safe place somewhere’.305 However, Gentili added both subjective and objective qualifications to the hospitality theme. First, the migrants should have been compelled to leave their country through 299 Gary Edmond, ‘The Freedom of Histories: Reassessing Grotius on the Sea’ (1995) 2 Law Text Culture 179–217, 193. 300 Hugonis Grotii, Mare Liberum sive de Iure quod Batavis Competit ad Indicana Commercia Dissertatio (Leiden: Elzevier 1609); Hugo Grotius, The Free Sea, David Armitage (ed.), Richard Hakluyt (trans.) (Indianapolis: Liberty Fund 2004) [1609]; Hugo Grotius, De Iure Praedae [Commentary on the Law of Prize and Booty] [1604] Gwladys L. Williams and Walter H. Zeydel (trans.) (Oxford: Clarendon Press 1950). 301 Edmond, ‘The Freedom of Histories’, 188. 302 Ivan Shearer, ‘Grotius and the Law of the Sea’ (1983) 46 Bulletin of the Australian Society of Legal Philosophy 46–65, 49. 303 Jones, ‘The Poetic Ocean in Mare Liberum’, 194 304 Id. 195. 305 Gentili, De Iure Belli, Book i, Chapter 17, p. 80; see also Francisco de Vitoria, ‘On the American Indians’ [De Indiis (1539)] in Political Writings, Anthony Pagden and Jeremy Lawrence (eds) (Cambridge: cup 1991), q. 3. Art. 1, para. 2 (referring to the same verses: ‘What men, what monsters, what inhuman race,/ What laws, what barbarous customs of the place,/ Shut up a desert shore to drowning men,/ and drive us to the cruel seas again!’).

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some ­emergency.306 Therefore, in the Gentilian scheme, economic migrants did not have the right of hospitality.307 Second, a safe place should be granted ‘if it [could] be given without too much inconvenience’.308 For instance, ­unoccupied or vacant lands could be taken, if they belonged to no one.309 Nonetheless, the host state retained full sovereignty over these lands; ‘the newcomers ought to do what [was] most just and submit to the rule of [the local sovereign]’.310 Again referring to the Aeneid, Gentili noted that Aeneas was ‘­introducing his followers into the Kingdom of Latium, to form one body with the Latins’.311 Finally, Gentili acknowledged the state right to deny hospitality for reason of state, for instance if the number of exiles was so great as to be ‘perilous to the commonwealth’, ‘for safety is always the right of a community’.312 From the above analysis, it is difficult to say that Gentili’s De Iure Belli was an apology of conquest or that it justified the political, economic, and social exploitation and subjugation of countries in the form of colonialism.313 Gentili excluded the right to hospitality on the basis of economic reasons; he explicitly despised greed.314 While he seemed to have been concerned and sympathetic about the fate of refugees and exiles, he qualified the plight of refugees, understanding their state of necessity, but also stressing the need of state security and public safety. Both Gentili and Grotius referred to Ovid’s Metamorphoses in support of the freedom of the sea.315 In Ovid’s poem, the goddess Latona transformed a group of peasants into frogs after they refused to let her drink from a pool: ‘Why must you stop me drinking? Water belongs to everyone. Nature never intended the sun or the air or the flowing streams to be private: I’m simply here for my common right’.316 Gentili used this poetic argument, stating that the sea was ‘by nature open to all … and its use common to all, like that of the air. It [could not] therefore be shut off by any one’.317 Nonetheless, referring then to Virgil’s 306 Gentili, De Iure Belli, Book i, Chapter 17, p. 79. 307 Id. p. 80. 308 Id. 309 Id. 310 Id. p. 81. 311 Id. 312 Id. p. 82. 313 Cf. Pierino Belli, A Treatise on Military Matters and Warfare [De Re Militari et Bello Tractatus, 1558], Herbert C. Nutting (transl.) (Oxford: Clarendon Press 1936) Part x, Chapter 2, p. 335 (referring to his own [and Gentili’s] home country as ‘unfortunate and desolated Italy of ours which a multitude of masters has made a tributary, nay, rather a slave …’). 314 Gentili, De Iure Belli, Book i, Chapter 17, p. 80. 315 Ovidii, Metamorphoseon Libri xv (Venetiis: Johannes Gryphius 1556). 316 Jones, ‘The Poetic Ocean in Mare Liberum’, 197. 317 Gentili, De Iure Belli, Book i, Chapter 19.

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­Aeneid, Gentili added that when Dido, the Queen of Carthage, was reproached for her people’s lack of hospitality, she replied that her ‘hard fate and the infancy of [her] kingdom compel[led] [her] … to protect all parts of [her] realm’.318 Gentili probably took the passage from Machiavelli’s The Prince, where the Florentine political theorist ‘excuse[d] the inhumanity of [Dido’s] reign owing to its being new’.319 There is a fundamental ambiguity regarding the presence of these two apparently conflicting quotes. On the one hand, Gentili affirmed that the freedom of the sea belonged to the law of nature. This entailed that all people had the right to travel and visit the territories of others provided that they did no harm. In parallel, coastal states should welcome peaceful visitors. On the other hand, Gentili also hinted at the possibility that a state could restrict access to its land to safeguard fundamental interests such as state security. Instead, Grotius referred to the Metamorphoses to ‘most immediately and explicitly offe[r] the ocean as … a means to trade and commerce … that neither [could] nor should ever be made proper’.320 Both Gentili and Grotius relied on an arsenal of Roman law sources to affirm that the sea was common to all; both referred to poetic examples to confirm human sociability and hospitality. In both De Iure Belli and Mare Liberum, ‘sociability’ could ‘ultimately slid[e] into imperialism’.321 In fact, if a state refused freedom of the sea, other states could wage war against it. However, Gentili also acknowledged thay polities had the right to defend certain fundamental interests, including their own existence. This nuance seems to be confirmed by his poetic reference to Dido, whom he presented as a prudent, capable, and wise queen who ultimately offered hospitality, after having carefully put the safety of her people first. Therefore, the Gentilian work remains slightly more ambiguous than the Grotian one. The legal scholar John Selden (1584–1654) would later cite exactly the same verses of the Aeneid ‘as support for the proposition that people across history had exerted control over the seas and shores’.322 In conclusion, like other Renaissance legal scholars, Gentili relied on the humanities including history, literature, and philosophy to build his legal arguments. The use of such literature required some interpretive caution, as the humanities not only offered positive examples to emulate. Whether the use of literary sources helped fostering arguments for imperialist expansion in the Gentilian oeuvre in particular and in the development of the early modern law 318 Id. 319 Niccolò Machiavelli, The Prince, Quentin Skinner and Russell Price (transl) [Il Principe 1532] (Cambridge: cup 1988) Chapter 17. 320 Jones, ‘The Poetic Ocean in Mare Liberum’, 198. 321 Id. 322 Edmond, ‘The Freedom of Histories: Reassessing Grotius on the Sea’, 204

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of nations in general remains open to debate. The examples discussed above seem to refute the argument that Gentili deliberately used literary sources to foster imperialist expansion. Rather, the power of literature was that it provided Gentili a tool to make sense of reality, hope that humanity could cope somehow, that things would turn out right, and wars would end. It was a source of resilience and, albit indirectly, of the law of nations. Nonetheless, the indeterminacy of the early modern law of nations, the contradictions and dilemmas in Gentili's work, and the subsequent selective use of some of the literary examples used by Gentili by other scholars such as Grotius and Selden certainly require further scrutiny. 3.7

The Gentilian Sonnets

Not only did Gentili refer to literary sources in his legal treatises, but he also wrote sonnets and commentaries on theatre and poetry. This section briefly illuminates Gentili’s poetical output. Although Alberico Gentili’s younger brother, Scipione, was a renowned poet,323 Alberico was not a great poet.324 His poetical output is limited to five sonnets, some of which were unpublished, even though other works of poetry have been attributed to him.325 Whereas his legal work was published entirely in Latin and had some circulation, his sonnets were in Italian and have never been published in their entirety. The literary value of the Gentilian sonnets remains limited and explains why they have not 323 Pallant, ‘Scipione Gentili’, 100 and 119 (reporting that Scipione Gentili translated Torquato Tasso’s Gerusalemme Liberata from Italian into Latin, and that Tasso himself praised such translation). 324 Van der Molen, Alberico Gentili and the Development of International Law 41 (‘One winter evening … [Gentili’s] father said to his sons: ‘let each of you take a piece of charcoal and write a Latin poem on the wall. I shall relate the theme in prose’. Scipione succeeded in expressing the theme in a few lines of poetry, but the story relates that Alberico covered the entire wall with his poem. The father then encouraged Scipio[ne] to cultivate the Muse, but at the same time extracted a promise from Alberico that he should never again turn his mind to verse’.). 325 Mariagrazia Bellorini, ‘Note di Poesia nell’Opera di Alberico Gentili, Giurista Elisabettiano’ in Renzo S. Crivelli and Luigi Sampietro (eds) Il Passaggiere Italiano. Saggi sulle Letterature di Lingua Inglese in Onore di Sergio Rossi (Roma: Bulzoni 1994) 139–165, 145 (also attributing to Gentili an unpublished translation of the Psalms in Italian, Primi Venticinque Salmi di David in Varie Rime Italiane, currently conserved at the Bodleian Library, MS Bodl. 13. Gentili donated the translation to Sir Thomas Bodley (1545–1613), the diplomat and scholar who founded the Bodleian Library in Oxford, presenting it as the work of a relative, and regretting not to have anything better to offer to him.) 149 (noting that the Psalms could be attributed to Scipione Gentili, who published a translation into Latin of the same).

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received much attention. Nonetheless, his sonnets deal with important political issues of his time, including the reign of Queen Elizabeth i (1558–1603), that of King James i (1603–1625), and the patronage of Queen Anne (1603–1619). While the literary analysis of such production clearly falls outside the scope of this book, this output presents some significant legal political aspects. This section briefly examines these sonnets for the light they shed on Elizabethan ­politics in general and the Gentilian contribution to the law of nations in particular. As mentioned, Gentili authored five sonnets. The first sonnet was dedicated to Sir Henry Unton, a diplomat who died in 1596. It highlighted his diplomatic activity and praised Queen Elizabeth.326 Unton served with Leicester and the English forces on campaign in the Netherlands in 1586, as well as acting as resident ambassador to France for several periods. The Gentilian sonnet is part of a collection of verses published in Unton’s honour after his death in France.327 The other sonnets are all dedicated to British sovereigns: Queen Elizabeth i, Queen Anne, and King James i. Perhaps the most significant sonnet authored by Gentili is that dedicated to Queen Elizabeth i. Conserved in a manuscript at the Bodleian Library, it remained unpublished for centuries.328 In a letter Gentili wrote to his father, he included the sonnet dedicated to the queen.329 Although Gentili was not a gifted poet, the sonnet provides interesting historical insights regarding Gentili’s loyalty to his benefactress and can help explain some of the legal positions he adopted during the course of his career. To my knowledge, this is the first translation of Gentili’s sonnet from Italian into English: 326 James W. Binns, ‘Diritto e Poesia nell’Opera di Alberico Gentili’, vvaa, Alberico Gentili— Atti dei Convegni nel Quarto Centenario della Morte, vol. ii (Milan: Giuffrè 2010) 177–187, 177. 327 Id. 328 Ragoni, Alberico Gentili Vita e Opere, 59 (transcription of the sonnet by Diego Panizza); Giovanni Minnucci, ‘Una Lettera Inedita su Questioni Teologiche di Alberico Gentili al Padre Matteo con un Sonetto Dedicato alla Regina Elisabetta I d’Inghilterra (18 Settembre [1592?])’ (2015) 8 Historia et Ius 1–11. 329 MS D’Orville 617, p. 60 verso (‘Io arrivai benissimo e sto benissimo. Desidero aver lettere da voi per sapere di voi perché adesso ch’io son lontano temo [per] voi e tanto piú che intendo che la peste è cresciuta questa settimana … Leggete questo sonetto racconcio, e scrive[temi], se ci [riconoscete][qual]cosa del vostro: “Figlia del grande Arrigo, Elisa grande,/ ch’empi della tua gloria, e illustri il mondo,/volgi la terra immensa, e il mar profondo,/ e quanto sopra al mar s’aggira, e spande/ aurati fregi a te, sacre ghirlande/ tesse Ossonia al tuo nome, … /[ed] io, che da tempeste aspre e mortali/ cacciato, peregrin qui aggiunsi in porto,/ e qui spiro, e qui vivo tuo devoto:/già che di care merci orientali o di Parnaso a te nulla riporto/ di te degno, ti sacro l’alma in toto”. Altro non ho [da scrivervi], al ritorno, piacendo a Dio, vi dirò tutt[o]. State sano. Oxford, 18 Settembre. Alberico figliol vostro. Di grazia scrivetemi [sia] giovedì [che] sabato [affinchè] io stia tanto piú consolato … Di grazia no[n] [vi am]malate [e] riguardatevi dal medicare.’)(my transcription).

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Daughter of the great Henry, great Elise, / who enlighten and fill the world with your glory, / turn the immense earth, and the deep sea, / and what wanders above the sea / golden laurels and sacred garlands / Oxford weaves to your name … /Hunted by harsh and mortal storms, / pilgrim here I reached the port, / and your devotee here I breathe and live: / while I do not bring lavish oriental goods or any poetry / worthy of you, I devote my soul to you. After some standard praise of the Queen as a shining light, Gentili expressed his gratitude for her protection. He explained that he could not afford lavish gifts for the Queen and he did not have literary talents worthy of her. However, he offered her his devotion. The sonnet reminds that after Gentili’s difficult arrival, not only did the protection of the Queen save him from lethal dangers but it also enabled him to pursue his academic interests. Sadness pervaded another sonnet that Gentili published in 1603, after the death of the Queen.330 The sonnet highlighted that the Queen contributed to international governance with sacred power (imperio santo) and was one of the greatest and most praiseworthy sovereigns in the world. Once again, the literary value of the sonnet is too limited to be considered further (or to deserve translation); nonetheless, the sonnet highlighted the perceived relevance of the Queen’s reign, not only internally, but also externally. Devotion to Elizabeth was also mentioned in a sonnet Gentili dedicated to King James i.331 Again in this sonnet, Gentili repeated how he escaped from tyranny, how Queen Elizabeth i welcomed him, and that he devoted his affection to her. To reinforce his loyalty, he referred to the ivy, a symbol of fidelity. Devotion was also a key term appearing in a later sonnet, which Gentili authored for Queen Anne, the consort of James i.332 The sonnet was published in the introductory materials of his friend John Florio’s Italian/English Dictionary: Queen Anna’s New World of Words.333 While the dictionary demonstrated 330 Minnucci, Silete Theologi in Munere Alieno, 124 (including Gentili’s sonnet in Italian: ‘Rotta è l’alta colonna, che sostegno/Gran tempo al mondo fu d’imperio santo/ Tolto è d’Anglia infelice il pregio, e il vanto/Di fortunato e glorioso regno./Elisa è morta, il piú grande, il piú degno/ Rettor del mondo…’). 331 Id. 124. 332 Frances A. Yates, John Florio: The Life of an Italian in Shakespeare’s England (Cambridge: cup 1934) 274. 333 John Florio, Queen Anna’s New World of Words (London: Bradwood 1611) (including ­Gentili’s sonnet in Italian: Alla Real Maestà di Anna Seren[issi]ma Regina della Gran Br[e] tagna. Regina grande, e figlia di gran r[e],/ E [sorella] di re grandi, e al gran re sposa,/ E madre sopra tutte gloriosa/Di re futuri in ogni etate egregi/ Ecco a tante corone, a tanti pregi/ … Giungi beltade augusta e luminosa/di tuo proprio valor ti segni e fregi/[A] [t]e il mondo [s'] inchina; te l’Italia cole/Ch’il sermon nostro di tua grazia onori/e sì dolce lo parli,

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the appreciation of the Italian language and culture at the English court, it also showed the powerful network of contacts and patronage to which Gentili belonged. Once again, the sonnet is not of great literary value; nonetheless, it has some historical significance, as it offers valuable insights into Gentili’s political stance. It can also help explain certain legal solutions he devised. Great Queen, and daughter of a great king, / Sister of great kings, and to the great king spouse, / And glorious mother / Of future kings … / To the many crowns, and their merits / … you bring beauty, dignity, and splendor / adorned by your own value./ … /may you live a long life for the world/ … enjoy new dawns / and illuminate us as a new sunshine’.334 After listing Queen Anne’s impressive familial relations, the sonnet politely ­emphasized her own merits. While the sonnet to Queen Elizabeth emphasized her glory, the sonnet to Queen Anne highlighted her soft power in the form of ‘beauty, dignity, and splendor’. Yet, both sonnets shared a common theme: ­devotion. Both sonnets implicitly referred to a sort of Golden Age: if Queen Elizabeth i enlightened the world and received golden laurels, Queen Anne was defined as a new sunshine. Finally, both sonnets indirectly referred to the ambitions of the country: reference was made to ‘the immense earth’, the ‘deep sea’, and ‘the world’. The second sonnet was published in Florio’s Queen Anna’s New World of Words, whose title explicitly referred to the geographical discoveries. Therefore, it is not surprising to interpret a certain conservatism in the Gentilian works, nor is the fact that he condemned popular revolts, anarchy, and civil wars. At the same time, it is not surprising to read a certain liberalism in his works; he was against any form of religious theocracy and condemned religious wars. Rather, Gentili was in favour of a broad and inclusive notion of the international community, which included nations irrespective of their culture and/or religion. While an extensive literary discussion of his sonnets is not possible here, their relevance for the understanding of the political context in which Gentili lived and worked has been pointed out. 3.8

Debating Theatre in Elizabethan England

Theatre became a key form of cultural exchange in early modern England. Queen Elizabeth i used the visual arts, literature, and the stage as ­instruments e ... scrivi./Anna Regina vivi al mondo vivi/All’Italia devota e nuovi albori/ ... a noi splendi un nuovo sole. Umilissimo servitore, Alberico Gentili.). 334 Id. (My translation from Italian into English.).

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of political propaganda to legitimize her rule and gain popular ­support.335 ­Because it represented an affordable form of entertainment, theatres were popular and powerful mass media.336 Given ‘the pressure of the historical moment, with its military conscriptions, refugee movements’, and famine, Elizabethans turned to the theatre ‘not only for entertainment or relief but also … to make sense of the times in which they lived’.337 Nonetheless, for strict Protestants such as the Puritans, who advocated an intense form of Protestantism, the theatre could threaten the salvation of the soul. They objected to the theatre relying, inter alia, on theological grounds and considered it an inappropriate form of entertainment. In parallel, local authorities feared public performances to be a breeding ground for the plague and/or conducive to riots and public disorders, and often closed theatres as a matter of public order.338 Therefore, a culture war emerged with regard to the propriety of theatre in Elizabethan England. Although the elites supported theatre, the matter remained hotly debated and soon reached university circles, raising significant religious, political, and cultural issues.339 In Oxford, William Gager (1555–1622) of Christ Church, a well-known Latin playwright, and John Rainolds (1549– 1607), an eminent theologian, afterwards President of Corpus Christi, had a dispute on the subject of the propriety of the academic play. The controversy arose after Gager’s Ulysses Redux was staged at Oxford on 6 February 1592.340 The play summarized Homer’s Odyssey and depicted Ulysses’ return to Ithaca.341 The tragicomedy did not have any particularly radical content; in fact, it relied on familiar literary topics, and was even rather ­conservative—after all, Gager was a clergyman and lawyer, as well as a playwright. Nonetheless, the Ulysses Redux remained a theatrical play and i­ncluded a female character, Ulysses’ wife Penelope, who was to be played by a man—as was customary at 335 Tanya Pollard, ‘Introduction’, in Tanya Pollard (ed) Shakespeare’s Theater (Oxford: Blackwell 2004) x–xxv, xiv (noting that ‘reigning monarchs of the late sixteenth and early ­seventeenth centuries—Elizabeth i, James i, and Charles I—were supporters of the theater’.). 336 Gary B. Goldstein, ‘Did Queen Elizabeth Use the Theater for Social and Political Propaganda?’ (2004) 7 The Oxfordian 153–169, 153, and 160. 337 Eric J. Griffin, English Renaissance Drama and the Specter of Spain (Philadelphia: University of Pennsylvania Press 2009) 13. 338 Pollard, ‘Introduction’, xii and xiii (noting that theatres would be eventually closed in 1642.). 339 J.W. Binns, ‘Women or Transvestites on the Elizabethan Stage? An Oxford Controversy’ (1974) 5 Sixteenth Century Journal 95–120, 98. 340 Eve Rachele Sanders, ‘The Body of the Actor in “Coriolanus”’ (2006) 57 Shakespeare Quarterly 387–412, 392. 341 Homer, The Odyssey, R. Fagles (transl) (London: Penguin 2006).

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the time. This triggered outrage from the Puritan John Rainolds who objected to the fact that a male actor would play a female character. Consequently, he refused to attend the performance. He also complained that one of the play’s characters overtly mocked him and his position on the theatre.342 The dispute played out in an angry exchange of letters between Gager and Rainolds. When two years later Gager stopped replying to Rainolds, Gentili took up Gager’s cause and responded on his behalf.343 Not only was he ‘one of Gager’s dearest friends’, but ‘he himself had just published a short treatise on the legitimacy of theatrical representations’:344 the 1593 Commentatio ad Legem iii Codicis de Professoribus et Medicis (Commentary on the Third Law of the Justinian’s Code on Teachers and Doctors).345 Despite the ‘unalluring title’, the commentary constituted a powerful, ‘lively and eloquent defence of poetry’ and drama.346 In this short treatise, Gentili discussed the third law of the Justinian’s code De Professoribus et Medicis that did not exempt poets from taxation, while painters and other artists were immune from taxation.347 Gentili pondered why this should be the case.348 From this relatively peripheral, marginal, and irrelevant starting point, Gentili offered a lively defence of poetry and academic plays.349 He addressed ‘some of the central questions of Renaissance criticisms’ on the aims, ends, and methods of writing, as well as ‘some interesting side issues’.350 He defended poetry against the criticisms raised against the art form by Plato—who notoriously banned poets from the ideal republic.351

342 Binns, ‘Women or Transvestites on the Elizabethan Stage?’ 99. 343 Sanders, ‘The Body of the Actor in “Coriolanus”’, 392. 344 Cristiano Ragni, ‘A Stranger, and Learned, and an Exile for Religion: Alberico Gentili, Shakespeare, and Elizabethan England’, in Mark Roberts (ed) Proceedings of the Shakespeare and His Contemporaries Conference (Florence: British Institute 2014) 81–89, 82. 345 After delivering his defence of poetry as a speech at one of the University graduation ceremonies, Gentili revised and transformed the speech into a treatise, dedicating it to Dr. Tobias Matthew (1546–1628), the former Dean of Christ Church and Vice-Chancellor of the University of Oxford, Bishop of Durham, later to be Archbishop of York. Alberici Gentilis, Commentatio ad Legem iii Codicis de Professoribus et Medicis (Commentary on the Third Law of the Justinian Code on Teachers and Doctors) (­Oxford: Joseph Barnes 1593). 346 J.W. Binns ‘Alberico Gentili’s Commentatio ad Legem iii Codicis de Professoribus et Medicis (Commentary on the Third Law of the Title of the Code on Teachers and Doctors), in J.W. Binns (ed. and trans.) Latin Treatises on Poetry from Renaissance England (Summertown 1999) 59–65, 60. 347 Id. 348 Id. 349 Binns, ‘Alberico Gentili in Defense of Poetry and Acting’, 225. 350 Id. 226. 351 Binns ‘Diritto e Poesia nell’Opera di Alberico Gentili’, 179.

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The exchange of views between Gentili and Rainolds on the propriety of theatre would develop into ‘the most thorough and weighty exposition’ of the matter in Elizabethan times.352 Because both Gentili and Rainolds were wellread men, their exchange of views ‘range[d] far and wide over the whole field of objections to acting’.353 The dispute centred on university plays, that is, plays performed at universities by non-professional players who would perform without pay, rather than plays tout court. After Gentili sent Rainolds his short Latin treatise, which discussed acting,354 the two scholars exchanged several letters, which Rainolds published in his 1599 The Overthrow of StagePlays.355 Other letters Gentili and Rainolds subsequently exchanged are conserved in Corpus Christi College, Oxford.356 Two further commentaries Gentili published in 1599, De Actoribus et Spectatoribus Fabularum Non Notandis (Against the censure of actors and spectators of plays) and the De Abusu Mendacii (On the abuse of lying) also summarized elements of the debate with Rainolds.357 A reputed theologian, John Rainolds endorsed Puritan objections to the theatre, criticizing actors and playwrights for their supposed immorality. For the Puritans, theology governed ‘every aspect of life, including … acting’.358 Rainolds firmly opposed theatre, considering the stage a moral plague and a form of idolatry.359 For Rainolds, the Bible unequivocally forbade men from impersonating women.360 He criticized cross-dressing as a sin against nature,

352 Binns, ‘Women or Transvestites on the Elizabethan Stage?’ 98. 353 Id. 354 Id. 100. 355 John Rainolds, The Overthrow of Stage-Plays by the Way of Controversy between D. Gager and D. Rainolds [1599] J.W. Binns (introduction) (New York: Johnson Reprint Corporation 1972). 356 Alberico Gentili, Unpublished Letter to John Rainolds. Undated. Corpus Christi College, Oxford, MS 352; Alberico Gentili, Unpublished Letter to John Rainolds. 8 February 1594. Corpus Christi College, Oxford, MS 352; John Rainolds, Unpublished Letter to Alberico Gentili. 25 January 1594. Corpus Christi College, Oxford, MS 352; John Rainolds, Unpublished Letter to Alberico Gentili. 12 March 1594. Corpus Christi College, Oxford, MS 352. 357 Alberico Gentili, Disputationes Duae: I. De Actoribus et Spectatoribus Fabularum Non Notandis. ii. De Abusu Mendacii (Hanau: apud Guilielmum Antonium 1599). The volume is dedicated to Toby Matthew, one of Gentili’s mentors. 358 Leon Markovicz, ‘Introduction’, in Leon Markovicz (ed.) Latin Correspondence by Alberico Gentili and John Rainolds (Salzburg: Universität Salzburg 1977) 1–14, 10. 359 John R. Elliott Jr., ‘Queen Elizabeth at Oxford: New Light on the Royal Plays of 1566’, in Kirby Farrell and Kathleen M. Swaim (eds.), The Mysteries of Elizabeth i: Selections from English Literary Renaissance (Amherst and Boston: University of Massachusetts Press 2003) 31–42, 37. 360 Binns, ‘Women or Transvestites on the Elizabethan Stage?’, 95 and 100.

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b­ ecause it could confuse the gender identity of the young performers and pose a threat to the morality of the public.361 More generally, Rainolds criticized the dissimulation that was at the core of any theatrical performance. He considered both players and the public as sinners for their participation in the theatre and condemned the ‘falsehood’ at the basis of the theatrical experience as ‘the most shameful thing of all’.362 Rainolds accused Gentili of being Italian, a follower of Machiavelli, and an atheist (Italicus, Machiavellicus, atheus).363 Rainolds questioned the permissibility of any form of lie (mendacium), whether it was for entertainment (for instance, plays) (mendacium iocosum) or for an alleged sense of duty to help others (for instance, if a doctor lied or omitted the full truth to a terminally ill patient) (mendacium officiosum).364 Gentili’s defence of poetry and theatre clashed with Rainolds’ theocratic approach. Gentili acknowledged that one should yield to the authority of the theologians in religious matters.365 However, he thought that theologians should leave the interpretation of law to lawyers.366 For Gentili, the regulation of theatre was a secular matter, to be governed by law. Gentili defended poetry, which he noted was a blend of truth and fiction.367 He claimed that although art imitates nature, it often exceeds nature, and that the material of the poet is universal likelihood rather than a particular truth.368 Poetry, he argued, ‘both teaches and delights’; it can benefit morals and have a cathartic effect in expressing the emotions.369 For Gentili, ‘poets are doctors. They certainly cure through the emotions’.370 Poets also improve people’s customs, in the same manner as skilled doctors improve their patients’ health.371

361 Sanders, ‘The Body of the Actor in “Coriolanus”’, 393–395. 362 Id. 399 (quoting Rainolds’ letter, 10 July 1593). 363 Vincenzo Lavenia, ‘Mendacium Officiosum: Alberico Gentili’s Ways of Lying’, in Tamar Herzig and Miriam Eliav-Feldon (eds.) Dissimulation and Deceit in Early Modern Europe (London: Palgrave Macmillan 2015) 33. 364 Id. 365 Alberico Gentili, Letter to John Rainolds, undated, in Markovicz (ed.) Latin Correspondence by Alberico Gentili and John Rainolds, 39. 366 Diego Panizza, ‘Alberico Gentili: Vicenda Umana e Intellettuale di un Giurista Italiano nell’Inghilterra Elisabettiana’, in Alberico Gentili—Giurista e Intellettuale Globale—Atti del Convegno Prima Giornata Gentiliana (Milano: Giuffrè 1988) 33–58, 51. 367 Binns, ‘Alberico Gentili in Defense of Poetry and Acting’, 226. 368 Gentili, Commentary on the Third Law of the Title of the Code on Teachers and Doctors, 97. 369 Binns, ‘Alberico Gentili in Defense of Poetry and Acting’, 226. 370 Gentili, Commentary on the Third Law of the Title of the Code on Teachers and Doctors, 93. 371 Filippo Mignini, ‘Temi Teologico-politici nell’Incontro tra Alberico Gentili e Giordano Bruno’, in Fabrizio Meroi (ed.) La Mente di Giordano Bruno (Florence: Olschki 2004) 103– 123, 114.

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For Gentili ‘the very essence of the theatre [wa]s the representation of persons’, and even lawyers and orators represent persons.372 Moreover, poets often create characters of inimitable virtue, thus setting a high bar for human behaviour.373 For Gentili, cross-dressing was not a real issue; he noted that, on the one hand, some plays had no female roles anyway; and, on the other hand, that it was possible for women to play women on the stage.374 Gentili also defended the mendacium iocosum and the mendacium officiosum, referring to the writings of ancient philosophers, such as Plato, medieval scholars, and his contemporaries.375 Gentili argued that human beings have two principal aims: the conservation of society and the exercise of their businesses. Lying ought to be considered permissible if used for the public good.376 Skating on thin ice, he claimed that the abuse of evil is not an evil but good.377 Finally, he concluded with some matter-of-fact considerations: if the Queen, distinguished guests, and leading university dignitaries attended the performance of academic plays, then clearly any performance of these plays would be respectable.378 On all issues Gentili and Rainolds were ‘diametrically opposed’ and their personalities clashed over a broad range of arguments.379 Paradoxically, they interpreted identical sources in completely different ways.380 Their respective lines of argument can appear fragmented and centrifugal to a modern reader; the number of rhetorical questions, cross-references, and invectives make the correspondence unappealing to modern sensibilities. The authors themselves seem to have been divided between the fury of their arguments and haste. They were aware that the dispute distracted them from more important­

372 Binns, ‘Women or Transvestites on the Elizabethan Stage?’, 111. 373 Bellorini, ‘Note di Poesia nell’Opera di Alberico Gentili, Giurista Elisabettiano’, 143. 374 Binns, ‘Women or Transvestites on the Elizabethan Stage?’, 111–112 (noting that Gentili was alluding to the Italian commedia dell’arte, a theatrical form in which women acted the female parts). 375 Lavenia, ‘Mendacium Officiosum’, 34. 376 Alberico Gentili, Letter to John Rainolds, undated, in Markovicz (ed.) Latin Correspondence 37–51, 49–51. 377 John Rainolds, letter to Alberico Gentili, 10 July 1593 (reporting Gentili’s argument), in Markovicz (ed) Latin Correspondence, 29. 378 Alberico Gentili, Letter to John Rainolds, undated, in Markovicz (ed.) Latin Correspondence, 45. 379 Markovicz, ‘Introduction’, 11. 380 Id.

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matters.381 Gentili would soon complete his masterpiece, the De Iure Belli, and John Rainolds would contribute, inter alia, to the King James Version of the Bible.382 The dispute between Gentili and Rainolds provides the reader with ‘an opportunity to capture the … intellectual life’ of Gentili and his cultural context.383 Gentili certainly appreciated poetry, literature, and theatre. He belonged to a cultural network which included poets and playwrights. One of his mentors, Sir Philip Sidney, authored a volume in defence of poetry.384 Gentili referred to a number of literary sources in his legal writings. He also wrote a volume on Virgil, which he used for teaching his son, Robert, and a number of sonnets.385 At the same time, the Elizabethan stage controversy mirrored the broader clash between the sovereign and the Puritans. The Puritans demanded that the Reformation be taken to a level that the government was not prepared to go. Reportedly, the Queen herself rebuked Rainolds ‘for his obstinate preciseness, willing him to follow her laws, and not to run before them’.386 Despite this reproach, Rainolds remained a formidable opponent for Gentili and even led other scholars to leave Oxford.387 More fundamentally, the controversy revealed the gradual secularization of society in the sixteenth century and the changing roles of the theologian and the lawyer.388 While ‘Rainolds was perhaps the most learned of those Elizabethans who attacked the stage, and Gentili the most able defender of the academic drama’, the controversy was not only about the nature and function of theatre, but also about the interplay between power and politics, and law and theology in the early modern period.389 381 Alberico Gentili, Letter to John Rainolds, undated, in Markovicz (ed.) Latin Correspondence, 43 (‘[our] opinions ought not delay either you or me in the least from greater works’.). 382 The Holy Bible, King James Version (London: Barker 1611). 383 Markovicz, ‘Introduction’, 13. 384 Philip Sidney, A Defense of Poesie (London: James Roberts for Henry Olney 1595). 385 Alberici Gentilis, Lectionis Virgilianae Variae Liber (Hanau: apud Guilielmum Antonium 1603) (dedicated by Alberico to his son Robert, and by Robert to his grandfather Matteo Gentili). 386 Dana Sutton, ‘General Introduction’, in Dana Sutton (ed.) William Gager: The Complete Works, vol ii (NY and London: Garland Publishing 1994) v–xvi, at xii–xiii. 387 Diego Pirillo, ‘Repubblicanesimo e Tirannicidio: Osservazioni su Alberico Gentili e Giordano Bruno’, in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 275–303, 283. 388 Giovanni Minnucci, ‘Un Discorso Inedito di Alberico Gentili in Difesa della Giurisprudenza’ (2015) xliv Quaderni Fiorentini 211–251, 219. 389 Binns, ‘Women or Transvestites on the Elizabethan Stage?’ 119.

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Dialectical Antinomies

What kind of approach must we take to interpret, understand, and critically assess Gentili’s work? This book adopts both textual and contextual methods to examine the life and work of Alberico Gentili. While it focuses primarily upon texts, it also considers them in their historical, political, and cultural contexts. Gentili lived in the early modern period, and his frames of reference are not those of the contemporary world. Gentili’s training in the University of Perugia, his study of the classics, and his Reformed belief shaped and sharpened his approaches to the study of the law of nations, and therefore interpreting his work requires moving beyond a purely textual interpretation to include context. Gentili’s texts presented different layers of meaning that reflected their cultural, political, and historical context and that his contemporaries could easily detect. Nowadays, only the knowledge of these cultural, political, and historical assumptions allows a true understanding of his work.390 Gentili was involved with various epistemic communities and cultural and political networks. While he was ‘part of a legal tradition which stretched back to ancient and medieval jurisprudence’,391 he also advised the British government on a range of current issues of political relevance. He was a religious refugee, but also a Regius Professor at the University of Oxford. He belonged to the Republic of Letters (Respublica literaria), the intellectual community of his time, but he also belonged to a powerful political network. Gentili mastered the dialectical method, examining arguments and counterarguments in a lively and cutting-edge fashion. His use of such method explains some of the apparent contradictions, antinomies, and paradoxes in his work. Rooted in medieval rhetoric, the topical/dialectical method was particularly suited to international law, which has never been an exact science. The method assumed that in an orderly composition, true and just arguments would prevail over false and/or unjust arguments.392 Gentili rarely adopted the 390 For an analogous argument with regard to Renaissance painting, see Malcolm Bull, The Mirror of the Gods: How Renaissance Artists Rediscovered the Pagan Gods (New York and London: oup 2005) 221 (stating that ‘An iconographer trying to reconstruct the lost argument of a Renaissance painting … must learn more about Renaissance arguments than the painter needed to know; and this is not, as has been claimed, a self-contradiction, but the plain outcome of the undeniable fact that we no longer enjoy the advantages of Renaissance conversation. We must make up for it through reading and inference’.). 391 Merio Scattola, ‘Alberico Gentili (1552–1608)’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law (Oxford: oup 2012) 1092, 1094. 392 Marchetto, ‘Alberico Gentili e la Tradizione’, 75–93.

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literary genre of the disputatio which followed the Aristotelian pattern of thesis, antithesis, and synthesis, and expressed a sort of ‘mathematical reason’ (ratio mathematica).393 Rather, he used a peculiar dialectic style of argumentation that consisted in first enumerating the negatives and then the positives of a given position. For instance, in a passage of the Advocatio Hispanica, he explained that ‘before appearing in court, it was his practice to turn over in his mind everything which could be said in support of his opponents’.394 In the Advocatio Hispanica, Gentili’s opinions generally started with ‘a categorical statement of the case’ from the perspective of his opponents, and then explored the arguments that he supported.395 In the De Armis Romanis, by using the technical device of the humanist dialogue and the rhetorical device of the dissoi logoi, Gentili’s stance became virtually indistinguishable, and eminent historians and international lawyers remain puzzled by the impenetrability of his thought.396 Not only did the ambivalence of some of his writings bear witness to his impressive intellectual skills, but it also enabled him to express alternative viewpoints not necessarily in conformity with the political and religious orthodoxy of his time.397 In other words, contradictions and deliberate paradox allowed him to express his opinions and freed him from the control of political and religious powers. Against this background, some antinomies were intended and indeed necessary, not only to avoid negative reactions, but also to save his own life. The political instability and uncertainty which characterized Gentili’s times were thus reflected in his work. This particular reading of Gentili’s work seems to be supported by the fact that other contemporary scientists attempted to introduce innovative ideas by pairing them with more conservative views and using dialectical tools.398 For instance, Galileo Galilei (1564–1642) used dialectical reasoning ‘to persuade his 393 Gentili, De Iure Belli, Book i, Chapter 1, 11 (‘Neque ego tibi dico demonstrationes, quas petes a Mathematico; sed quales ista tractatio patitur, suasorias’; translation of the author: ‘And I will not offer you mathematical demonstrations; rather persuasive arguments’.). 394 Frank Frost Abbott, ‘Alberico Gentili and His Advocatio Hispanica’(1916) 10 ajil 737, 745. 395 Id. 396 Alberico Gentili, The Wars of the Romans—A Critical Edition and Translation of the De Armis Romanis, Benedict Kingsbury, and Benjamin Straumann (eds) David Lupher (trans) (Oxford: oup 2011). 397 Andrea Greenbaum, Emancipatory Movements in Composition (New York: suny Press 2002) 1–22 (considering the use of the two-fold argument as a way of expressing dissent). 398 Jean Dietz Moss, ‘The Interplay of Science and Rhetoric in Seventeenth Century Italy’ (1989) 7 Rhetorica–Journal of The History of Rhetoric 23–43, 23 (referring to how ‘scientific demonstration yielded to dialectic and to rhetoric as means of gaining assent to a

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audience to accept the Copernican theory as the best explanation of the cosmic system’399 In the 1632 Dialogue Concerning the Two Chief World Systems, in which Galileo sought to demonstrate the superiority of the Copernican theory over the Ptolemaic one in the face of the Church’s opposition, Galileo did not openly endorse the Copernican system; rather, he carefully developed the argument of his Dialogue as a sharp and vivid confrontation of opinions.400 According to Dietz Moss, ‘[t]he decision to cast the work in the form of a dialogue was in itself a rhetorical strategy’ that enabled Galileo to investigate the Copernican theory without openly endorsing it.401 Yet, the use of rhetorical tools did not prevent the Inquisition from convicting Galileo on ‘the charge of teaching the forbidden thesis’.402 Galileo was found ‘vehemently suspect of heresy’, forced to recant his work, and the Dialogue Concerning the Two Chief World Systems was put on the Index of forbidden books.403 While Gentili admittedly did not understand or follow the new cosmological ideas,404 could he not still express alternative viewpoints by using dialectical reasoning and the literary form of dialogue? This particular reading of Gentili’s work seems to be supported by the fact that with some audacity Gentili defended Machiavelli’s work in his De Legationibus Libri Tres.405 Written in 1513, but unpublished until 1532, Machiavelli’s The Prince, was fiercely criticized (and placed on the Index) for advancing absolutist and ruthless political ideas.406 Instead, for Gentili, Machiavelli’s Prince was a self-defence manual s­ cientific theory’.) See also, of the same author, Novelties in the Heavens—Rhetoric and Science in the Copernican Controversy (Chicago: University of Chicago Press 1993). 399 Moss, ‘The Interplay of Science and Rhetoric in Seventeenth Century Italy’, 23. 400 Galileo Galilei, Dialogue Concerning the Two Chief World Systems—Ptolemaic and Copernican [Florence 1632] Stillman Drake (transl) Albert Einstein (foreword) (Berkeley and Los Angeles: University of California Press 1967). 401 Moss, ‘The Interplay of Science and Rhetoric in Seventeenth Century Italy’, 42. 402 Id. 403 Maurice Finocchiaro, The Galileo Affair (Berkeley and Los Angeles, California: University of California Press 1989) 291 (also reporting that Galileo spent the rest of his life under house arrest at his villa in Arcetri near Florence.). 404 Although Gentili did not share Copernicus, Galileo, and Bruno’s cosmological beliefs, he nonetheless mentored Bruno and helped him to secure a lectureship in Wittenberg. However, Bruno’s return to Italy sealed his fate; after being arrested and condemned as a heretic, he was burned to death in the Campo de’ Fiori in Rome. Thomas E. Holland, Studies in International Law (Oxford: Clarendon Press 1898) 11; Diego Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento—Bruno, Sidney, e i Dissidenti Religiosi Italiani (Roma: Edizioni di Storia e Letteratura 2010) 2. 405 Diego Panizza, ‘Machiavelli e Alberico Gentili’ (1970) 2 Il Pensiero Politico 476, 481. 406 Niccolò Machiavelli, The Prince, Quentin Skinner and Russell Price (transl) [Il Principe 1532] (Cambridge: cup 1988).

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cautioning citizens against the dangers of tyranny. For Gentili, Machiavelli’s real intent was not to teach the tyrant; rather, by honestly disclosing the dishonest machinations of the despot, Machiavelli aimed at educating people in order that they might avoid the dangers of tyranny.407 Later scholars have followed the republican reading of Machiavelli.408 One might wonder whether the interpretation that Gentili advocated for Machiavelli’s work might also be suitable for interpreting some of Gentili’s own (apparent) contradictions. While the ambiguity of Gentili’s writings are thus probably due to political expediency, they make his thought even more interesting today, as the interpreter is presented with a thought-provoking jigsaw. What Gentili hid in his texts is at least as significant as what he made immediately visible in them. The political absolutism, religious persecutions, and intellectual intolerance of the sixteenth and seventeenth centuries forced many thinkers to hide their opinions.409 Thus, for many scholars in early modern Europe, some dissimulation became a compelling feature of their lives, which they used tactically to cope with the particular political circumstances of their times.410 ‘The literature of the early modern period is full or references to the “masks” … which cover men’s true motives’.411 In one of his minor works, the De Abusu Mendacii Disputatio,412 Gentili distinguished between two types of lies: lies that harm others (dolus malus) and lies serving others’ interests (dolus bonus). While he condemned the former, he 407 Alberico Gentili, De Legationibus, Book iii, Chapter ix (stating ‘sui propositi non est tyrannum instruere, sed arcanis eius palam factis ipsum miseris populis nudum et conspicuum exhibere’.). 408 Other intellectuals adopted a republican reading of Machiavelli, including Francis Bacon. See Daniel R. Coquillette, Francis Bacon (Stanford: Stanford University Press 1992) 88 (discussing the idea of ‘join[ing] serpentine wisdom with columbine innocency’.) See generally Gisela Bock, Quentin Skinner, and Maurizio Viroli (eds.) Machiavelli and Republicanism (Cambridge: cup 1990); Mary G. Dietz, ‘Trapping the Prince: Machiavelli and the Politics of Deception’ (1986) 80 American Political Science Law Review 777–799; John Langton and Mary Dietz, ‘Machiavelli’s Paradox: Trapping or Teaching the Prince?’ (1987) 81 American Political Science Review 1278–1279; Garrett Mattingly, ‘Machiavelli’s Prince: Political Science or Political Satire?’ (1958) 27 The American Scholar 482–491. 409 Perez Zagorin, Ways of Lying—Dissimulation, Persecution, and Conformity in Early Modern Europe (Cambridge, MA: Harvard University Press 1990) 330 (calling the 16th and 17th centuries as the Age of Dissimulation). 410 Jean-Pierre Cavaillé, Dis/simulations—Religion, Morale et Politique au xviie Siècle (Paris: Champion 2002); Jon R. Snyder, Dissimulation and the Culture of Secrecy in Early Modern Europe (Berkeley and Los Angeles: University of California Press 2012). 411 Peter Burke, The Historical Anthropology of Early Modern Italy (Cambridge: cup 1987) 13. 412 See Alberico Gentili, Disputationes Duae: I. De Actoribus et Spectatoribus Fabularum Non Notandis. ii. De Abusu Mendacii (Hanau: apud Guilielmum Antonium 1599).

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allowed the latter. Among the lies which allegedly served others’ interests were irony (the mendacium iocosum), a maieutic tool to foster discussion on given matters (such as that used by Socrates), and the officious lie (mendacium officiosum)—e.g. a physician lying to a patient to prevent her suffering.413 For Gentili the officious lie was not a lie; rather, he considered it to be done for the patient’s good.414 For Gentili, officious lies were applicable in various fields, including medicine, rhetoric, poetry and philosophy as well as law and politics.415 Did Gentili adopt some narrative mechanisms of dissimulation in his own writings? This remains an open question. One could argue that Gentili did not hide his true opinions but rather disguised them by adopting sophisticated literary genres. Facilitated by the use of a variety of legal genres, ranging from treatises and commentaries to dialogues and disputations, the Gentilian rhetorical method of discussing both sides of an issue enabled him to include both conservative and liberal elements in his works. In the De Armis Romanis, the Defender defended the alleged civilizing mission of the Roman Empire. Yet, the Accusator forcefully affirmed that the quest for power (cupiditas imperii) could not be a just cause of war. A recent reading of Gentili’s De Iure Belli emphasizes that by adopting a providentilist theory of commerce, Gentili supported Europe’s expansion. However, such reading does not acknowledge that Gentili also significantly qualified freedom of commerce. For Gentili, states could restrict commerce for various reasons such as state security, public morals, and public health. The fact that Gentili did not include such qualifications in the same chapter in which he conceptualized freedom of commerce but in a chapter in which he dealt with the misdeeds of individuals may have misled scholars to qualify him as a mere proponent of liberalism.416 Again, in his De Iure Belli, Gentili briefly mentioned that tyrants deserved a violent end, comparing them to pirates. Was it merely an incidental remark? In his Regales Disputationes, his defence of absolute monarchy and his advocacy

413 Lavenia, ‘Mendacium Officiosum’, 31 (noting that Gentili relied on Thomas Aquinas, who argued that acts should be judged not only by their aims but also by their outcomes and divided lies into three groups: harmful (perniciosum), ironic (iocosum), and useful (officiosum).). 414 Van der Molen, Alberico Gentili and the Development of International Law, 258. 415 Gianfranco Borrelli, ‘Tecniche di Simulazione e Conservazione Politica in Gerolamo Cardano e Alberico Gentili’ (1986) 12 Annali dell’Istituto Storico Italo–Germanico in Trento 87– 124, 109 (noting that Gentili relied on Plato who considered the role of politicians as analogous to that of doctors and analogizing the art of government to the art of medicine). 416 Gentili, De Iure Belli, Book i, Chapter 21, pp. 101–102; Book i, Chapter 19, pp. 89–90.

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of humanitarian intervention against tyrants remain to this day puzzling ­aspects of his theory. But even in his De Iure Belli, Gentili conceptually distinguished the absolutist monarch from the tyrant.417 Was he attempting to persuade the monarch to adopt good governance, while warning that if the sovereign became a tyrant, the state could face a civil war and even be invaded by foreign armies? These questions have been viewed in different ways. Most of the Gentilian texts have dialogic properties; they can produce a multiplicity of impressions according to the context in which their reception takes place, gaining a new life and meaning that move entirely beyond the original intention and context in which they were written. The development of  multiple meanings within various historical, cultural, and institutional ­contexts is referred to as heteroglossia.418 The Gentilian system has become a ­battlefield between different interpretive communities. Some scholars find Gentili’s works to be clear, interesting, and useful and some find them challenging, convoluted and confusing. Some interpret Gentili as a staunch conservative, elaborating theories that ultimately justified European expansion. Others view him as a liberal scholar envisaging a revolution from within the system. Therefore, competing views emerge from the ambiguity of his texts. Gentili’s use of metaphors, his discussion of literary examples, and his use of multiple perspectives enable several meanings to be detected in his works, which all require investigation. Following this line of argument, Gentili’s works are a treasure chest or a powder keg of legal arguments, depending on the perspective of the reader. Those who are looking for the maintenance of peace and security and the protection of human dignity and fundamental rights can find sufficient support in Gentili’s work. Those who are looking for motives to wage war, can also find a number of arguments in Gentili’s De Iure Belli. Yet, Gentili was a lawyer first and foremost; his theory of the law of war is not a pacifist programme, but nor is it bellicose as some have claimed. This book has adopted a textual and contextual reading of Gentili’s works in the attempt to unveil the meaning that Gentili wanted to convey, in the light of the historical context in which he lived. Gentili thus appears more moderate than many have thought. While he supported preventive war, he conceived it as an instrument of self-defence against grave and imminent dangers. He wrote his masterpiece De Iure Belli when England was at war with Spain and an invasion was looming. Again, while Gentili supported humanitarian intervention, this was not conceived as an expansionist tool, but rather as a tool to help the 417 Gentili, De Iure Belli, Book iii, Chapter 22, p. 415 (‘a tyrant and a king are not the same thing’.). 418 Roland Barthes, Mythologies (New York: Hill and Wang 1972).

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v­ ulnerable. He expressly praised the English intervention in the Netherlands in favour of the Protestant rebels who were fighting for their independence. Reading Gentili’s texts in their historical context enables a more nuanced understanding of the complexity of his thought. In conclusion, Gentili’s works become intelligible when they are seen in their historical, political, and cultural context.419 3.10 Conclusions In the early modern period, the geographical discoveries, the Reformation, and the emergence of the modern states fundamentally altered international politics and posed a range of legal issues. In order to address such challenges, legal scholars transcended disciplinary boundaries and looked to the humanities as the foundational sources of topoi, examples, and arguments to build their international legal theories. Therefore, many of the significant modes of thought that have framed the way international law understands the world have developed in conversation with the humanities.420 While Gentili relied on the Italian style in the early phase of his career, denouncing some of the excesses of the philological current of humanism, legal humanism deeply influenced his later works. In the 1582 De Iuris Interpretibus Dialogi Sex, Gentili principally, albeit not exclusively, embraced the Italian style.421 In this early phase, Gentili argued that lawyers should mainly focus on the study of law, namely the Justinian’s Digest. For Gentili, the interpreter of Justinian law (interpres iuris Iustiniani) did not need a sophisticated knowledge of Latin, ancient Greek, history, philosophy or literature.422 In this early phase of the Gentilian production, Gentili mainly focused on private domestic law (covering issues such as contracts.) However, Gentili gradually abandoned his earlier positions on methodology.423 Realizing that the true method for studying law had to connect the best 419 For a critical assessment of the utilitarian approach to the history of international law, see David Kennedy, ‘Primitive Legal Scholarship’ (1986) 27 Harvard ilj 2. 420 Méniel, ‘Law and Literature in the Humanist Period’, 104–105 (arguing that for the humanists, ‘all disciplines [we]re connected one with another’.). 421 Diego Panizza, Alberico Gentili, Giurista Ideologo dell’Inghilterra Elisabettiana (Padova: La Garangola 1981) 44–46. 422 Eugenio Garin, ‘Leggi, Diritto e Storia nelle Discussioni dei Secoli xv e xvi’, in vvaa, La Storia del Diritto nel Quadro delle Scienze Storiche (Firenze: Olshki 1986) 418. 423 Giovanni Minnucci, ‘Per una Rilettura del Metodo Gentiliano’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 54.

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of both legalistic and interdisciplinary approaches, he combined aspects of the Italian and French styles to reach an original complexity.424 He conceived of the role of lawyers as going beyond the mere study of the Justinian’s Digest, to examine and interpret the law applicable to given legal issues.425 For Gentili, the interpreter of law (interpres iuris) could rely not only on the legal sources, but also on history, philosophy, and literature.426 The legal expert (iurisperitus) was no longer a pure civilian (interpres iuris civilis), but an intellectual able to rely not only on jurisprudence but also on the humanities to detect state practice, customs, and general principles of the law of nations.427 In any case, no categorization ‘can do justice … to Gentili’s complex work and personality’.428 In fact, Gentili switched from one style to another with great ease, depending on the object of his enquiry.429 In some early works and even in the Hispanica Advocatio, the influence of the Italian style seems to predominate; in others, such as the De Legationibus and De Iure Belli, Gentili successfully combined the Italian and French styles, and legal and non-legal sources in a rather eclectic way.430 Like other early modern scholars, Gentili used literature, history, and philosophy instrumentally for the purpose of illustrating his point, but also for identifying state practice, customs, and general principles of law. He used examples from history, philosophy, and literature to develop his own juridical thinking. For Gentili, the merit of poetry did not lie in depicting a particular truth, but in investigating universal truths.431 Not only does art emulate life, but it often surpasses it (ars est naturae imitatrix, vincit tamen illam saepe), offering inimitable characters whose virtues are not to be found in nature.432 Thus, poetry could purify the human soul and have a cathartic function; poets are like doctors, relieving us from our passions, trepidations, and emotions (poe­tae medici sunt).433 By offering such high examples, poetry could also have  an educative function and be an important instrument of active civil

424 Alain Wijffels, ‘From Perugia to Oxford: Past and Present of Political Paradigms’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 59–78, 60. 425 Giovanni Minnucci, Alberico Gentili–Iuris Interpres della Prima Età Moderna (Bologna: Monduzzi 2011) 178. 426 Minnucci, ‘Per una Rilettura del Metodo Gentiliano’, 55. 427 Id. 56. 428 Id. 429 Id. 430 Id. 60 and 62. 431 Bellorini, ‘Note di Poesia nell’Opera di Alberico Gentili, Giurista Elisabettiano’, 143. 432 Iurlaro, ‘Il Testo Poetico della Giustizia’, 186. 433 Bellorini, ‘Note di Poesia nell’Opera di Alberico Gentili, Giurista Elisabettiano’, 143.

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­philosophy (est ars poetica instrumentum activae philosophiae civilis).434 While Gentili admitted that good poets are rarer than phoenixes435 and that watching a bad play should be forbidden—he fundamentally viewed poetry and theatre as educative tools, arguing that poetry and theatre were morally beneficial. More importantly, for our discourse, literary examples historically contributed to shape the early modern law of nations. Gentili’s rhetorical method of discussing both sides of an issue enabled him to include both conservative and liberal elements in his works. Some ambiguity remains, however, as various aspects of his theory have been interpreted in different ways. Most of Gentili’s texts have dialogic properties and thus can produce a multiplicity of impressions. Gentili’s work has thus been strongly debated by different interpretive communities. Some view him as a staunch conservative, elaborating theories that ultimately justify European expansion. Others see him as a liberal scholar, envisioning a revolution from within the system. It is impossible to provide a definitive assessment for his work; rather, competing views emerge from the multiple perspectives and scales of analysis that one can adopt when scrutinizing his texts. Gentili’s use of metaphors, his discussion of literary examples, and his apparent contradictions all enable different meanings to be detected in his works and none of these should be overlooked. 434 Alberico Gentili, Commentary on the Third Law of the Title of the Code on Teachers and Doctors, in J.W. Binns (ed.) Latin Treatises on Poetry from Renaissance England (Summertown 1999) 72–119, 91. 435 Id. 93.

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Gentili and the Law of Nations All the universe, which you see, in which things divine and human are included, is one … the whole world is one body, … all men [and women] are members of that body, [and] … the world is their home … And this union of ours is like an arch of stones, which will fall unless the stones … hold one another up.1

∵ 4.1 Introduction The sixteenth century was an ‘age of transformation’, characterised by four great cultural, religious, and geo-political themes: the Renaissance, the Reformation, the Counter-Reformation, and overseas discoveries.2 In the cultural domain, the Renaissance constituted a revival of classical values in the visual arts and the letters.3 While scholars of the Middle Ages placed the divine front and centre in the order of things, Renaissance humanists reaffirmed the centrality of humanity in the ‘great chain of beings’.4 Giovanni Pico della Mirandola’s Oration on the Dignity of Man put humankind ‘at the very centre of the world’, advancing the theory that human greatness lies in the power to ‘make’

1 Alberico Gentili, De Iure Belli Libri Tres, John C. Rolfe (transl.) (Oxford: Clarendon Press 1933) Book 1, Chapter xv, p. 67. 2 Richard Mackenney, Sixteenth Century Europe—Expansion and Conflict (New York: Palgrave 1993) 6 and 3. 3 See Eugenio Garin, ‘L’Uomo del Rinascimento’, in Eugenio Garin (ed.) L’Uomo del Rinasci­ mento (Roma/Bari: Laterza 1988) 1–12, 2; Georg Voigt, Die Wiederbelebung des classischen Al­ terthums: oder, das erste Jahrhundert des Humanismus (Berlin 1859) (considering Humanism as a new coming to life (Wiederbelebung) of classical antiquity); Jacob Burckhardt, The Civili­ zation of the Renaissance in Italy [Die Kultur der Renaissance in Italien, 1860] (London: Penguin Classics 1990). 4 Donald R. Kelley, Renaissance Humanism (Boston: Twayne Publishers 1991) 44; Ernst Cassirer, Paul Oskar Kristeller, and John Herman Randall (eds.) The Renaissance Philosophy of Man (Chicago: Chicago University Press 1948).

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oneself.5 Accordingly, human beings are made neither of heavenly nor of earthly stuff, so that with free choice and dignity, they may fashion themselves into whatever form they choose.6 While human figures took central stage in the Renaissance figurative arts, philosophers considered human beings as ‘a great miracle’ (magnum miraculum est homo)7 and education as a vehicle to bring humankind closer to divinity.8 The diffusion of Renaissance humanism coincided historically with a renewal (renovatio) in the religious sphere.9 Stemming from ‘changes in religious sensibility’,10 the Reformation expressed the desire for religious reform and the search of new religious models. It soon clashed with the Roman Church on certain theological doctrines and, more fundamentally, on the question of Papal authority. In conformity with the Renaissance ideals, the Protestant reformers ‘emphasiz[ed] human individuality’.11 The Counter-Reformation, the religious movement which attempted to halt the diffusion of the Reformation, advanced some institutional reforms.12 In order to prevent the diffusion of Protestantism, the Church established the Inquisition and the Index of forbidden books.13 The ‘persistent lack of consensus about what was orthodox and what was heterodox’ and the urgent need to raise ‘the spiritual level of the entire Church’ led the Pope to call an ecumenical council to address and resolve the theological issues of the day.14 Presided over 5

Giovanni Pico della Mirandola, Oration on the Dignity of Man [De Hominis Dignitate, 1486] Robert Caponigri (transl) (Washington DC: Regnery 1956) (‘I have placed you at the very center of the world, so that from that vantage point you may with greater ease glance round about you on all that the world contains. [I] have made you a creature neither of heaven nor of earth, neither mortal nor immortal, in order that you may, as the free and proud shaper of your own being, fashion yourself in the form you may prefer’.) 6 Id. Compare with William Shakespeare, Hamlet [first performed 1609] G.R. Hibbard (ed.) (Oxford: oup 1987) Act ii, scene ii (‘What a piece of work is a man! How noble in reason! How infinite in faculty! In form and moving how express and admirable! In action how like an angel! In apprehension how like a god! The beauty of the world! The paragon of animals! And yet, to me, what is this quintessence of dust?’). 7 Garin, ‘L’Uomo del Rinascimento’, 2. 8 Silvia Ferretto, ‘La Scienza della Politica tra Filosofia e Riflessione Religiosa nella Forma­ zione di Alberico Gentili’, in vvaa Alberico Gentili—Le Marche al Tempo di Alberico Gen­ tili: Religione, Politica e Cultura (Milano: Giuffrè 2012) 267. 9 Eric Cochrane, Italy 1530–1630 (London/New York: Longman 1988) 144. 10 Mackenney, Sixteenth Century Europe, 4. 11 Ralph C. Hancock, Calvin and the Foundations of Modern Politics (Ithaca and London: Cornell University Press 1989) 4. 12 Mackenney, Sixteenth Century Europe, 4. 13 Cochrane, Italy 1530–1630, 144. 14 Id. 145–146 and 148–149.

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by papal legates, the Council of Trent (1545–1563) dealt with pressing theological questions and introduced some institutional reforms.15 In parallel, overseas travels had opened new geographical horizons.16 The discoveries of new lands brought about a number of crucial geo-political issues about the freedom of the seas, freedom of commerce, and the (il)legitimacy of conquest. The discoveries also contributed to the emergence of new power dynamics, shifting the arena for power struggles from the Mediterranean basin to the oceans.17 Cultural, political, and economic as well as religious conflicts characterized the sixteenth century, ‘connecting the changes associated with Renaissance, Reformation, Counter-Reformation, and overseas discovery’.18 An ‘entirely new age … had dawned’.19 The emergence of non-state actors such as refugees, mercenaries, pirates, transnational corporations also significantly changed ‘the texture of international politics’.20 In fact, the sixteenth century was a period of ‘tremendous, and ultimately decisive, shifts in the balance of political, military, and economic power in both Europe and the wider world’.21 Having illuminated Gentili’s life and method in chapters 2 and 3 respectively, the book now focuses on his contribution to the early modern law of nations (ius gentium). This chapter describes some of the foundational contributions Gentili made to the theory of the early modern law of nations and sets the ground for the next chapters that will focus on specific areas of the law of nations such as the law of war and the law of the sea. A Renaissance humanist, Gentili responded to the religious and political challenges of his time, putting humanity at the heart of his legal theory. On the 15 16

Id. 150. World maps became increasingly accurate. Abraham Ortelius, Theatrum Orbis Terrarum (Theatre of the World) (Antwerp: Gilles Coppens de Diest 1570); Gerardus Mercator, Atlas Sive Cosmographicae Meditationes de Fabrica Mundi et Fabricati Figura (Atlas or cosmographical meditations upon the creation of the universe, and the universe as created) (Duisburgi: 1595); Matteo Ricci, Li Zhizao, and Zhang Wentao, Kunyu Wanguo Quantu (Chinese: 坤 輿 萬 國 全 圖 ; English: A Map of the Myriad Countries of the World)(Beijing: 1602), James Ford Bell Library, University of Minnesota . 17 Fernand Braudel, La Méditerranée (Paris: Flammarion 1985). 18 Mackenney, Sixteenth Century Europe, 9. 19 E.H. Gombrich, ‘The Renaissance: Period or Movement’ in J.B. Trapp (ed.) Background to the English Renaissance: Introductory Lectures (London: Gray-Mills 1974) 9–30, 13. 20 Daniel H. Nexon, The Struggle for Power in Early Modern Europe (Princeton, New Jersey: Princeton University Press 2009) 287. 21 Jonathan I. Israel, Conflicts of Empires—Spain, the Low Countries and the Struggle for World Supremacy 1585–1713 (London: The Hambledon Press 1997) xiv.

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one hand, he reconceptualized the notion of the international community so as to include all nations irrespective of their religion. According to Gentili, the international community—which he also called the ‘community of [hu] mankind’,22 or the ‘global commonwealth’23 (respublica omnium)—included all of the polities of the world, not merely of Christendom. In distinguishing the international community from the Christian community (respublica chris­ tiana), which almost all his predecessors had confused, he replaced the theological foundations of the law of nations with legal ones.24 For Gentili, ‘those who say we should have regard for our fellow citizens, but not to strangers, destroy the community and fellowship of humankind’.25 On the other hand, he clearly distinguished theology from the law of nations. He saw law as the science of justice (scientia iusti), which was responsive to human needs and had the potential to improve the human condition;26 he considered the law of nations (ius gentium) to be the law between nations (ius inter gentes)27 governing the international community (societas gentium) for the common good.28 In fact, the international community ‘cannot be maintained except by the love and protection of those who compose it’.29 Gentili responded to the political emergence of the nation states by conceptualizing the law of nations as an inter-polity law. He did not include private individuals as subjects of ius gentium.30 Rather, he only considered nations as the subjects of international law, marking the beginning of a vision of international law that has endured until today.31 He contributed to the development of the concept of diplomatic immunity by ‘produc[ing] the first coherent study

22

Andreas Wagner, ‘Francisco de Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth’ (2011) 31 ojls 565, 581. 23 Id. 565–582 (noting that ‘different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law’.) 24 Dominique Gaurier, ‘Introduction’, in Alberico Gentili, Le Trois Livres sur le Droit de la Guerre, Dominique Gaurier (ed. and transl.)(Limoges: Presses Universitaires de Limoges 2012) 25. 25 Gentili, De Iure Belli, Book i, Chapter 15, p. 68. 26 Cfr. Eugenio Garin, L’Umanesimo Italiano—Filosofia e Vita Civile nel Rinascimento [Der Italienische Humanismus 1947] (Bari: Laterza 1993) 38–46 (discussing the humanist ideal of law as an instrument for the common good and the common bond of human society in Coluccio Salutati’s De Nobilitate Legum et Medicinae). 27 Daniel R. Coquillette, ‘Legal Ideology and Incorporation i: The English Civilian Writers, 1523–1607’ (1981) 61 Boston University LR 55. 28 Gesina H.J. Van der Molen, Alberico Gentili and the Development of International Law — His Life Work and Times, 2nd revised edition (Leyden: A.W. Sijthoff 1968) 135. 29 Gentili, De Iure Belli, Book i, Chapter 15, p. 69. 30 Wagner, ‘Francisco de Vitoria and Alberico Gentili’, 577. 31 David Kennedy, ‘Primitive Legal Scholarship’ (1986) 27 Harvard ilj 58–59.

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on diplomatic law’.32 More generally, Gentili emphasized the importance of the peaceful settlement of international disputes.33 He stressed that ‘differences among sovereigns … should be decided by the law of nations’ and pinpointed the importance of arbitration as an international dispute settlement mechanism.34 He also considered the possibility of establishing international dispute settlement mechanisms based on state consent.35 The chapter proceeds as follows. First, it addresses the question of whether Alberico Gentili can be considered as one of the founders of international law. Second, it examines Gentili’s conceptualization of the international community. Third, it investigates his contribution to the notion of the law of nations. Fourth, it discusses and critically assesses his contribution to the development of diplomatic law. Fifth, it analyzes his contribution to the theory of the peaceful settlement of international disputes. Finally, it illuminates Gentili’s influence on the secularization of international legal theory. The conclusions will then sum up the key findings of the chapter. 4.2

The Founder(s) of International Law

Who is the founder of international law? While ‘Gentili was certainly one of the most eminent professors of law at Oxford’ and was highly regarded by his contemporaries, for long ‘no one had seriously challenged Hugo Grotius’ reputation as the founder of international law’.36 Yet, since the rediscovery of Gentili by Holland, authors have debated if he should be considered as one of the founders of international law.37 Most scholars would agree with Theodor ­Meron that Gentili was ‘an original, enlightened … and eloquent writer who has not been given as much credit as his works clearly deserve’.38

32 33 34 35 36 37

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Artemis Gause, ‘Gentili, Alberico (1552–1608)’, odnb (Oxford: oup 2004–2014) 2. Van Der Molen, Alberico Gentili and the Development of International Law, 116. Peter Schroeder, ‘Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations’, in Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 185. Van Der Molen, Alberico Gentili and the Development of International Law, 116. Gause, ‘Alberico Gentili’, 7. Boudewijn Sirks, ‘Alberico Gentili’, in Peter Cane and Joanne Conaghan (eds.), The New Oxford Companion to Law (Oxford: oup 2008) 496, 497 (‘Th[e] books [published by Gentili] established him as the founder of the modern concepts of international law and of international relations’.); Coquillette, ‘Legal Ideology and Incorporation I’, 55 (‘Gentili became a pioneer in the modern factual treatment of … customary law between nations’.) Theodor Meron, ‘Common Rights of Mankind in Gentili, Grotius and Suarez’ (1991) 85 ajil 110, 116.

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However, perhaps the question as to whether there is a founder of international law is misplaced.39 The extent of the continuity between the early modern law of nations and contemporary international law is currently hotly debated. On the one hand, some eminent scholars have referred to the sixteenth century as the prehistory or mythical origin of international law, thus suggesting that international law developed at a later stage and that there may in fact not be much continuity at all between contemporary international law and its so-called ‘pre-history’.40 They highlight the importance of discontinuities in the history of political thought in general and in the history of international law in particular. On the other hand, other distinguished scholars have argued that some elements of international law existed even in ancient times41 and that there are elements of continuity in the history and theory of international law.42 For them, the coalescence of international law has been a cumulative process.43 The problem of continuity and change is central to international legal history and theory. While contextual historians like Skinner would seem to stress a discontinuity between the past and present, vice versa, international lawyers look for continuity and coherence. Certainly, there has been both continuity and change in the history of international law; therefore, both aspects need to be taken into account. On the one hand, far from being the invention of a few creative minds, international law is the outcome of both historical and doctrinal developments and many have collectively contributed to its making and evolution over the course of time.44 Even if one argued that a few scholars have 39

40 41 42

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Jeff L. Holzgrefe, ‘The Origins of Modern International Relations Theory’ (1989) 15 Review of International Studies 11, 11 (‘Whatever the merits of these and similar claims … [t]hey may describe pieces of the puzzle, but they do not … reveal the nature of the whole development’.) Martti Koskenniemi, ‘International Law and Raison d’état: Rethinking the Prehistory of International Law’, in Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 297. Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (London: Macmillan 1911); David J. Bederman, International Law in Antiquity (Cambridge: cup 2001). Ann Orford, ‘On International Legal Method’ (2013) 1 London Review of International Law 166–197, 175 (‘If the self-imposed task of today’s contextualist historians is to understand the meaning of a text in its proper time and place, the study of international law requires attention to the movement of meaning. International law is inherently genealogical, depending as it does upon the transmission of concepts, languages, and norms across time and space’.) Holzgrefe, ‘The Origins of Modern International Relations Theory’, 11. Giorgio Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes: il Ruolo di Alberico Gentili agli  Albor­i del Diritto Internazionale Moderno’, in Ferdinando Treggiari (ed.) Alberico

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contributed more than others, those scholars nonetheless relied upon previous sources. Therefore, the Solomonic proposals to acknowledge the existence of several founders of international law or even to abandon the search for its founders may be a sensible option.45 On the other hand, early-modern jurists may have been working on something that is, essentially, only distantly related to contemporary international law. In other words, it is only with a pinch of salt (cum grano salis) that we can turn to the works of Alberico Gentili to obtain useful insights for contemporary international law. Therefore, investigating what contribution Gentili made to the development of early modern international law seems a more promising endeavour. Certainly, Gentili contributed a number of concepts to the law of nations. In fact, retrieving his work entails inquiring into concepts we take for granted but without which we could not live in the world as we do. The next sections will shed light on Gentili’s contribution to the theory of the law of nations. 4.3

The Notion of International Community

For Gentili, the unity of humankind was the very foundation of the law of nations.46 He believed that by nature, all human beings are sociable and connected by links of kinship, brotherhood, and reciprocal love.47 In his view, there is no fundamental antagonism between peoples; rather, their natural affinity prevails.48 The idea of the unity of humankind was not a new idea; indeed, it was a common doctrine in the Middle Ages. For medieval intellectuals, the constitution of a universal state (monarchia universalis) was an essential condition of universal peace.49 Medieval civil lawyers conceptualized such a universal state as a continuation of the Roman ­Empire.50 In parallel, medieval Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010). 45 Meron, ‘Common Rights of Mankind in Gentili, Grotius, and Suarez’, 116 (‘It is only fair that Gentili share with Grotius the latter’s reputation as the founder of modern international law’.) 46 Alberico Gentili, The Wars of the Romans, Benedict Kingsbury and Benjamin Straumann (eds.) David Lupher (trans.) (Oxford: oup 2011) 147 (‘the original source of the law of nations … is that of human fellowship’.) 47 Gentili, De Iure Belli, Book i, Chapter 15, p. 67. 48 Id. Book i, Chapter 12, p. 54. 49 Dante Alighieri, Monarchia, Diego Quaglioni (ed), in Dante Alighieri, Opere, M. Santagata (ed) (Milano: Mondadori 2014). 50 Henry Nézard, ‘Albericus Gentilis’, vvaa, Les Fondateurs du Droit International (Paris: Giard & E. Briere 1904) 37–93, 78.

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canon lawyers saw such a universal state as a mystical body composed of Christians (republica christiana). Did the idea of the unity of humankind have any imperialist or religious connotation in the Gentilian thought? Gentili argued that there is a certain natural unity of humankind, but not a legal or political unity.51 Like other Protestant scholars, Gentili went beyond the medieval identification of the international community (societas gentium) with the community of Christian nations (respublica gentium christianarum), based on theological sources, or the idea of a universal empire. In fact, he elaborated a universal conception of the community of nations (civitas gentium maxima) based on natural law. Such an international community included all peoples (respublica omnium) irrespective of their religion and cultural diversity.52 For Gentili, all human beings constitute the human society (generis hu­ mani societas) and the world is one body (mundus unum est corpus).53 As a consequence, human beings are citizens of the world and the world is a cosmopolis, a single homeland for all, and a universal republic.54 In accordance with the Stoics, who maintained that the whole world formed one city-state (civitatem totius mundi unam esse), Gentili considered the world as one commonwealth, the common city of all, and all human beings as its citizens.55 The Gentilian vision of the world as a cosmopolis overcame the medieval dichotomies between the City of God (Civitas Dei) and the Earthly City (Civitas Terre­ na), and between Christendom on the one hand and the pagans on the other.56 Rather, in a way similar to Tommaso Campanella’s City of the Sun (Città del Sole, Civitas solis), for Gentili all human beings are part of a cosmic whole.57 Whereas the philosopher Campanella (1568–1639) defended a vision of a unified, peaceful world governed by a theocratic monarchy, Gentili advocated an international community that would accommodate cultural and religious diversity. In an often-quoted passage of the De Iure Belli, Gentili stated that: All this universe, which you see, in which things divine and human are included, is one, and we are members of a great body. And in truth the

51

Ursula Vollerthun, The Idea of International Society (Cambridge: cup 2017) 124; Gentili, De Iure Belli, Book i, Chapter 12, p. 54 (‘We are by nature all akin’). 52 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 89–90. 53 Gentili, De Iure Belli, Book i, Chapter 15, p. 67. 54 Id. 55 Id. 56 Augustine, The City of God against the Pagans, R.W. Dyson (trans) (New York: cup 1998). 57 Tommaso Campanella, La Città del Sole [1602] Luigi Firpo (ed.) (Bari: Laterza 1997).

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world is one body. Moreover, nature has made us all kindred, since we have the same origin and the same abode. She has implanted in us love for one another and made us inclined to union. And this union of ours is like an arch of stones, which will fall, unless the stones push against one another and hold one another up … Now you have heard, that the whole world is one body, that all men and women are members of that body, that the world is their home…58 4.4

The Notion of Ius Gentium

Gentili certainly ‘contributed much’ to the conceptualization of the law of nations and ‘paved the way for the modern conception’ of the same.59 He commonly used the notion of the law of nations (ius gentium), defining it as the law that ‘is in use among all nations (omnes gentes utuntur), that natural reason (naturalis ratio) has established among all human beings (inter omnes homi­ nes) and that is equally observed by all humankind (apud omnes peraeque custoditur)’.60 Of Roman origins, the term ius gentium originally referred to the law governing the ‘relationships between Roman citizens and foreigners or between foreigners inter se’, ‘considered from the standpoint of a single political community’.61 Gentili derived the classical notion of ius gentium from the Di­ gest and the Institutes of Justinian, and then adapted it to describe international relationships.62 Yet, Gentili also used the term international law (ius inter gentes) in his De Iure Belli and other works.63 While one of Gentili’s predecessors, Francisco de Vitoria (c. 1483–1546), had used the term ius inter gentes once without defining it, Gentili defined ius gentium as that which natural law established among all nations (ius gentium [est] quod naturalis ratio inter omnes gentes constituit).64

58 Gentili, De Iure Belli, Book i, Chapter 15, p. 67. 59 Van der Molen, Alberico Gentili and the Development of International Law, 240–241. 60 Gentili, De Iure Belli, Book i, Chapter 1, p. 8. 61 Carlo Focarelli, ‘Jus Gentium in Alberico Gentili: A Call for Prudence and the Common Sense of Humanity’, (2017) 2 Rivista di Diritto Internazionale 329–355, 337–338. 62 Id. 336–337. 63 Gentilis, De Iure Belli, Book i, Chapter 25, p. 202. 64 Van der Molen, Alberico Gentili and the Development of International Law, 241 (referring to a Gentili’s letter, dated 8 February 1594, directed to John Rainolds, and conserved in the Corpus Christi College, Oxford).

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It was one of Gentili’s students and successors to the Regius Chair of Civil Law in Oxford, Richard Zouche (1590–1661), who would consistently use the term ius inter gentes.65 The term became common during the eighteenth century when the philosopher Jeremy Bentham (1748–1832) used it to indicate the law governing international relations.66 For Gentili the law of nations was a manifestation of, and partially overlapped with, natural law (ius naturae).67 In the Gentilian system, natural law constituted a common heritage of legal principles conforming to reason that lived in the conscience of humankind by nature. Such law was not written but inborn: ‘we have not received [natural laws] through instruction, but have acquired them at birth’.68 For Gentili, natural reason had established natural law among peoples,69 and such law expressed universal justice.70 While Grotius distinguished natural law (ius gentium naturale)—derived from common values, unwritten, and set by nature—and positive law (ius gen­ tium voluntarium),71 in Gentili’s work such a distinction remained vague.72 In fact, while in some of his works, he seemed to equate the law of nations and natural law,73 in other writings he kept the notions distinct, albeit closely related. In fact, Gentili appealed to natural law ‘in order to test the validity of any doctrine or the legitimacy of any practice’, interpreting natural law ‘in the 65

Richard Zouche, Iuris Et Iudicii Fecialis, Sive, Iuris Inter Gentes, Et Quaestionum De Eodem Explicatio, Thomas E. Holland (ed) (Washington D.C: Carnegie Institution 1911). 66 Peter Haggenmacher, ‘Osservazioni sul Concetto di Diritto Internazionale di Gentili’, in vvaa, Alberico Gentili nel Quarto Centenario del De Iure Belli (Milano: Giuffrè 2000) 129– 143, 131; Jeremy Bentham, An Introduction to the Principles of Morals and Legislation [1789] J.H. Burns and H.L.A. Hart (eds.) (London: University of London 1970). 67 Amor Bavaj, Alberico Gentili—Fondatore della Scienza del Diritto Internazionale (Macerata: Affede 1935) 28. 68 Gentili, De Iure Belli, Book i, Chapter 1, p. 10. 69 Id. p. 8 (‘quod naturalis ratio inter omnes homines constituit’.) See also Benedict Kingsbury and Benjamin Straumann, ‘Introduction: Roman Wars and Roman Laws’ in Alberico Gentili, The Wars of the Romans—A Critical Edition and Translation of the De Armis Romanis, Benedict Kingsbury and Benjamin Straumann (eds) David Lupher (trans) (Oxford: oup 2011) xiv (noting that Gentili relied on Cicero’s definition of natural law as the ‘true law’ as ‘right reason, consonant with nature, spread through all people’ (Est quidem vera lex recta ratio, naturae congruens, diffusa in omnes…)). 70 Bavaj, Alberico Gentili, 29. 71 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 88 footnote 10; Randall Lesaffer, ‘The Classical Law of Nations (1500–1800)’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 408–440, 424. 72 Van der Molen, Alberico Gentili and the Development of International Law, 201. 73 Gentilis, De Iure Belli, Book I, Chapter 1, p. 8 (‘the law of nations is that which is in use among all the nations…, which [natural] reason has established among all human beings, and which is equally observed by all humankind. This law is the natural law’.)

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sense of humanity, justice, the highest common sense of [human]kind’.74 Gentili formally acknowledged the peremptory character of the law of nature (cui derogare non valet)75 and its supremacy over the law of nations. He acknowledged that the latter was binding in so far as it reflected the former.76 For instance, he condemned the practice of killing prisoners of war, as being against the law of nature.77 Although natural law had been often violated, it ­nonetheless remained a law.78 Gentili relied on authorities, precedents, and self-­evidence as criteria to identify norms of the law of nature.79 One could argue that by universalizing the self-evident natural law, Gentili was legitimizing the oppression of peoples who had little to do with Europeans before the geographical discoveries and their subordination to a system of values that they did not share. In assessing the Grotian contribution to international law, Anghie points out that natural law was a concept created by Europeans, reflected European values, and little had to do with non-Europeans.80 Any violation of natural law legitimized violence under the early modern law of nations. Certainly, if natural law was equated to a system in which the Christian religion and European culture were assumed to be the default or best characteristics, the theorization of such natural law could favour hegemonic views, legitimize punishments against violations of the law of nations, and justify military expansionism. However, Gentili seemed to prefer a more nuanced and culturally diverse vision of natural law/international law. In Gentili’s view the law of nations was separate from theology, and enabled peaceful communication, commerce, and political relations among nations while also respecting the religious freedoms and cultural diversity of its members. Gentili elaborated some counterweights to freedom of communication, freedom of commerce, and freedom of the sea, by identifying nations’ right to regulate immigration and trade, assert their sovereignty over territorial waters, and exercise self-defence. At the same time, his 74

Coleman Phillipson, ‘The Great Jurists of the World—Albericus Gentilis’ (1911) 12 Journal of the Society of Comparative Legislation 52, 61. 75 Bavaj, Alberico Gentili, 42. 76 Id. 43. 77 Gentili, De Iure Belli, Book iii, Chapter viii, p. 327 (arguing in favour of the safety and immunity of prisoners of war while criticizing the perpetual imprisonment of the same); Book ii, Chapter xvi, p. 210 (‘prisoners are not to be slain’); p. 211 (‘loyalty, humanity, generosity, justice, and faith demand much more that is wholly absent from the public codes’.). 78 Id. Book i, Chapter 1, p. 7. 79 Focarelli, ‘Ius Gentium in Alberico Gentili’, 341. 80 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: cup 2005) 20–21.

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conception of n ­ atural law was essentially grounded on the maxim of not doing to others what one would not wish to have done to oneself. It included the prohibition of cruelty, torture, tyranny, persecution on ethnic and religious grounds, and other inhumane treatment.81 It also outlawed war for reasons of conquest, religion, or cultural diversity. Diverse cultural practices, religions, and forms of governments were thus part and parcel of the Gentilian vision of the international community. Gentili expressly condemned the hegemonic ambitions and greed that characterized European expansionism. At the same time, he justified wars to defend ‘humanity’ and ‘liberty’ against violations of the law of nations.82 According to Gentili, at the domestic level, good neighbourhood imposes a duty of intervention if our neighbour’s house is on fire.83 Likewise, in international relations, one state can lawfully intervene to defend another.84 One could argue that in condoning humanitarian intervention against tyrants and cannibals because of their violations of natural law, Gentili was nonetheless implicitly supporting imperial ambitions and thus expansionist policies. Several international law scholars see humanitarian intervention as a component of ‘imperial domination’, as a way to replace one form of domination with another, and as an ‘alibi for exploitation’, considering it inconsistent with the principle of sovereign equality.85 Gentili admitted that acts of humanitarian intervention are often motivated by selfish economic and geopolitical interests.86 However, he also believed that humanitarian intervention could be a genuinely altruistic act. For instance, he explicitly approved of the English intervention in support of the Dutch rebels against Spain. However, this was hardly a war of conquest. When Elizabeth i was offered the sovereignty of the Netherlands she declined, suggesting that profiteering was unlikely to be the prime reason for the intervention. Gentili considered cannibalism to be a violation of natural law and thus saw war as a legitimate response to defend innocent victims of such practices. The invectives against human sacrifices and cannibals and the legitimacy of wars 81 Gentili, De Iure Belli, Book i, Chapter 1, p. 7. 82 Diego Panizza, ‘The “Freedom of the Sea” and the “Modern Cosmopolis”, in Alberico Gentili’s De Iure Belli’ (2009) 30 Grotiana 88, 94. 83 Gentili, De Iure Belli, Book i, Chapter 15, p. 72. 84 Id. 85 Anne Orford, Reading Humanitarian Intervention—Human Rights and the Use of Force in International Law (Cambridge: cup 2003) 20, 22, 28, and 47. 86 Cfr. Hans Morgenthau, ‘To Intervene or Not to Intervene’ (1967) 45 Foreign Affairs 425– 436, 430 (‘all nations will continue to be guided in their decisions to intervene … by what they regard as their respective national interests’.)

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against them remain controversial aspects of Gentilian thought, as is his ­discussion on wars of intervention. These narratives could lead to a ‘sense of separateness’ and ‘distancing’ of the other.87 Historical evidence shows that news of cannibalism and human sacrifices circulated widely in early modern Europe. Nonetheless, several early modern intellectuals correctly pointed out that such crimes could be dealt with domestically, by means of gradual diplomatic persuasion. In conclusion, there is a fierce debate as to whether the Gentilian concept of natural law supported military expansionism or was rather fashioning a system of the law of nations that could embrace cultural diversity, freedom of religion, and an equilibrium between the interests of states and of the international community respectively. Gentili was the first to separate the law of nations from theology.88 In Gentili’s times, the law of nations was not studied as an autonomous discipline.89 Rather, earlier scholars had approached the law of nations by linking it to nonlegal disciplines such as moral philosophy, theology, and military law. Not only were theological considerations mixed with legal considerations, but the former also outweighed the latter in addressing given issues.90 Instead, Gentili considered the law of nations in mostly legal terms, delineating the boundaries between ethics and the law of war91 and famously penning the phrase ‘theologians, mind your own business’ (silete theologi in munere alieno).92 Further to Luther’s burning of canon law books in 1520, Gentili formally condemned canon law.93 Nonetheless Gentili ‘entered the domain of theology’ several times, referring to theologians’ publications, canon law, and even addressing theological questions.94 Significantly, for Gentili, the law of nations was a part of divine law (ius gentium particula est divini iuris), a divine gift, and a light shining out of darkness.95 Moreover, Gentili relied extensively on elements of canon law in notable passages of his system concerning diplomacy, neutrality law, and the law of the sea, which were all sectors in a state of legal uncertainty at the time.96 87 Orford, Reading Humanitarian Intervention, 124. 88 Van der Molen, Alberico Gentili and the Development of International Law, 241. 89 Badiali, ‘Dallo Ius gentium allo Ius Inter Gentes’, 83. 90 Bavaj, Alberico Gentili, 20. 91 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 83. 92 Gentili, De Iure Belli, Book i, Chapter 12, p. 57 (my translation). 93 Gentilis, De Nuptiis, Chapter 19 (‘flammis, flammis libros spurcissimos barbarum’.) 94 Van der Molen, Alberico Gentili and the Development of International Law, 242. 95 Gentili, De Iure Belli, Book i, Chapter 1, p. 7. 96 Giovanni Minnucci, Silete Theologi in Munere Alieno (Bologna: Monduzzi 2016) 197 and 201.

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However, these apparent inconsistencies can be explained by the zeitgeist of Gentili’s age ‘when theological questions were of such predominating practical significance’.97 A close examination of the Gentilian system reveals that the divine origin of the law of nations was more a formal tribute to widespread and deeply held sixteenth-century religious beliefs than a conceptual pillar of the Gentilian theory of the law of nations. Gentili did not consider canon law as a source of the law of nations; rather, he used it as an intellectual repertoire of concepts that could help address questions of the law of nations. For instance, Gentili borrowed some canon law concepts such as extraterritoriality and equity, to shape notions of neutrality, equity intra legem, and international justice. Gentili also separated the law of nations from civil law.98 His differentiation between the two fields was ‘the more remarkable’ given his expertise in civil law.99 While medieval scholars often examined issues pertaining to the law of nations in conjunction with civil law, which governed most domestic legal systems,100 Gentili saw international law as quite distinct from civil law. By stating that the law of war belonged to the law of nations (lex extra rempubli­ cam) rather than internal law (lex reipublicae),101 Gentili upheld the distinction between international law and domestic law. He did not consider international law as ‘a mere application or extension of civil law’.102 Rather, he considered the law of nations and civil law to be distinct albeit analogous fields. Even if a given domestic legal system was common to two or more states, it nonetheless remained domestic law; it did not assume an international law character and it did not constitute international law. ‘Is the law of the Venetians international law because the Nurembergers use the same?’ Gentili asked. ‘Was the law of the Romans international law, because the Athenians and the Lacedaemonians availed themselves of the same law? Is the law, derived from Roman law, which now is in force throughout the entire Christian world, to be looked upon as international law?’ Gentili argued that Roman law was not ­international law because it was not common to the entire world, and therefore it could not be called international law.103 97 Bavaj, Alberico Gentili, 38. 98 Gentili, Disputationum de Nuptiis, 57–59 (nostra philosophia Justinianismus non est); Gentili, De Iure Belli, Book i, Chapter 3, pp. 16–17 (‘differences among sovereigns … must be decided by the law of nations and not by the … civil law of Justinian’.) 99 Phillipson, ‘The Great Jurists of the World’, 58. 100 Bavaj, Alberico Gentili, 20. 101 Virgilio Ilari, ‘Ius Civile e Ius Extra Rempublicam nel De Iure Belli di Alberico Gentili’, in Studi in Onore di Arnaldo Biscardi, vol iii (Milano: Cisalpino 1982) 540. 102 Phillipson, ‘The Great Jurists of the World’, 58. 103 Gentilis, Lectionum et Epistolarum quae ad Ius Civile Pertinent Libri i–iv (Londini 1583– 1584) Book iii, Chapter 1, pp. 154–155.

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For Gentili, the law of nations governed the societas gentium, while domestic law governed the civitas. The international community (societas gentium) differed from polities (civitas). While the international community was composed of all nations, irrespective of cultural and religious diversity, distinct polities were under different sovereign authorities.104 Because civil law was not common to all nations, it was not the law of nations.105 Moreover, civil law was not suitable for addressing international relations and therefore could not automatically constitute a source—let alone the sole source—of international law.106 For instance, Gentili criticized Baldus (1327–1400), one of the most eminent medieval civilians, for comparing war to a hunt, and admitting the possibility of waging war in the territory of neutrals.107 Far from being a mere theoretical issue, the question lied at the heart of international law, which now proscribes waging war on the territory of neutrals. Analogizing the territory of neutrals to that of a church (which then enjoyed a sort of extraterritoriality and was immune from the criminal jurisdiction of states), Gentili inferred that the belligerents had no right to pursue their enemies in the territory of neutrals. Finally, Gentili conceptualized the primacy of the law of nations over domestic law, viewing the former as constituting a superior legal order.108 At the same time, Gentili used civil law as a fruitful source of analogies. Instead of considering it a direct source of the law of nations, he saw it as indirect source of analogies.109 The end of the Roman Empire did not mean the end of Roman law; on the contrary, Gentili generally considered civil law, which was based on Roman law and medieval interpretations of it, to be consistent with the law of nations and the law of nature.110 While he maintained the distinction between the law of nations and the civil law in theory, he often applied ideas derived from the ius civile to the ius gentium in practice because of the parallels between the two fields. Gentili argued that civil law was ‘ an ­agreement and bond of union among citizens’, and so was the law of nations among nations.111 For Gentili, Roman law was a conceptual matrix of the law of nations.112 104 Phillipson, ‘The Great Jurists of the World’, 58. 105 Van der Molen, Alberico Gentili and the Development of International Law, 241. 106 Guido Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’ (1938) 12 An­ nali della Facoltà Giuridica dell’Università di Camerino 243. 107 Nézard, ‘Albericus Gentilis’, 83. 108 Haggenmacher, ‘Osservazioni sul Concetto di Diritto Internazionale di Gentili’, 137. 109 Id. 136 (arguing that Gentili used civil law as a scientific reference). 110 Gentili, De Iure Belli, Book i, Chapter 3, p. 17 (‘it is true that the civil law does not correspond to the law of nature and of nations in all respects; yet, it is not wholly unlike the law of nature or that of nations’.); James Brown Scott, Law, the State, and the International Community (New York: Columbia University Press 1939) 375. 111 Gentili, De Iure Belli, Book I, Chapter 25, p. 124. 112 Anthony Pagden, The Burdens of Empire (Cambridge: cup 2015) 82.

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Because of the expansion of the Roman Empire, Roman law was not to be considered as merely domestic but as the outcome of a melting pot of traditions, laws, and cultures.113 Moreover, for Gentili, civil law embodied reason.114 Therefore, if civil law could not always offer adequate solutions to the law of nations, it remained a useful point of reference, as a proximate and imperfect manifestation of the law of nature.115 Gentili acknowledged the great complexity of the law of nations in his lifetime; he noted that the law of nations remained hidden, divided, and dispersed.116 In the Middle Ages, the European legal system had the twofold authority of the Emperor and the Pope at its apex. ‘Should a disagreement arise between territories, the Pope … could arbitrate a solution to which both parties would be bound’.117 However, during the Renaissance, the medieval hierarchical system of international relations was gradually giving way to a system of sovereign nations, and old rules no longer met current needs.118 The Reformation, the emergence of sovereign states, and geographical discoveries all required the elaboration of new rules for governing international relations. For Gentili, because the law of nations was ‘hidden’, its recovery represented a great and difficult task.119 Gentili sought to identify, map, and interpret the law of nations by using an inductive method.120 First, he examined actual phenomena and concrete facts. Second, he used scholarly writings, non-binding precedents, customs, treaties, and general principles of law as sources of the law of nations.121 Doctrinal opinions and non-binding precedents mainly served to detect the existence of customs or general principles of law. Third, he identified such customs and general principles of law through a process of induction. Hence, he avoided the metaphysical, dogmatic, and deductive methods based on abstract principles such as those used by the theologians.122 He did not propose ‘an ideal system’ of norms and deliberately refrained from aprioristic statements, overly rigid definitions, and dogmatism; instead, he cited examples from around the 113 Pagden, The Burdens of Empire, 82. 114 Gentili, De Iure Belli, Book I, Chapter 3, p. 18. 115 Astuti, ‘Di un’Antica Raccolta di Questioni del Diritto Internazionale’, 244; Phillipson, ‘The Great Jurists of the World’, 58 (suggesting that ‘neither Gentili nor any one else could entirely eliminate the principles of the civil law’ from the international legal system). 116 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 83. 117 Dana Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ (2006–2007) 8 San Diego ilj 291–343, 322. 118 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 89. 119 Bavaj, Alberico Gentili, 37. 120 Phillipson, ‘The Great Jurists of the World’, 57. 121 Gentili, dib, Book i, Chapter i, pp. 1–11. 122 Phillipson, ‘The Great Jurists of the World’, 57.

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world of current practice that addressed contemporary needs.123 This is perhaps Gentili’s major contribution to the law of nations: his attempt to map it, to contribute to its development as an autonomous branch of law, and to address contemporary needs.124 4.5

Diplomatic Law

Gentili greatly contributed to the development of diplomatic law, the area of international law that governs diplomatic relations. While the ancient Greeks developed rules about diplomacy and the Romans expanded such rules, by the Middle Ages, diplomatic exchanges were generally handled on an ad hoc basis. There was ‘no agreement among states as to the rules either the diplomats themselves [should] follow, or that the states [should] follow towards these representatives’.125 When a problem arose during this period, states dispatched diplomatic agents to address the issue and discharged them of their duties upon completion. There were no permanent embassies. In the early modern period, however, a standing diplomacy gradually replaced the medieval practice of temporary assignments.126 By residing within the countries to which they were accredited, such permanent diplomats ‘not only handled problems when they arose, but could monitor all local events’ and inform their home countries of the activities of the host state.127 As states emerged as the main actors of international law, they all felt ‘the pressure to have the best … information’.128 More importantly, permanent diplomats could facilitate long-term alliances and maintain stable, peaceful, and prosperous relations among nations.129 Therefore, states started to consider the diplomatic service as an essential state function, institutionalizing and accepting both temporary and permanent diplomatic agents.130 By fulfilling particular tasks – ­maintaining good political, cultural, and economic relations between the home state and the host state – diplomats started to be seen as organs of their home state, representing their sovereign in the presence of another.131 123 124 125 126 127 128 129 130 131

Focarelli, ‘Ius Gentium in Alberico Gentili’, 342. Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 87. Zartner, ‘Can International Law Survive?’ 321. Lesaffer, ‘The Classical Law of Nations (1500–1800)’ 437. Zartner, ‘Can International Law Survive?’ 321–322. Richard Langhorne, ‘Alberico Gentili on Diplomacy’ (2009) 4 Hague Journal on Diplomacy 311. Lesaffer, ‘The Classical Law of Nations (1500–1800)’ 437. Langhorne, ‘Alberico Gentili on Diplomacy’, 310–312. Paul Behrens, ‘Diplomatic Interference and Competing Interests in International Law’ (2012) 82 byil 178–247.

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Yet, the establishment of permanent diplomatic agents raised a number of issues and required a sustained reflection on the ‘art and practice of representation’.132 In fact, as the permanent presence of diplomats ‘extended the reach of their activities’, it raised the question of their liability for any misconduct.133 While diplomatic agents were expected not to interfere in the domestic affairs of the host state, they remained subjects of their home state, and represented and promoted their ruler’s interests.134 Therefore, it was uncertain what action could be taken by the host state in case of the ambassador’s misconduct.135 Already in antiquity, there was an understanding that ‘the physical integrity’ of diplomats ‘should be respected and protected’.136 In the Middle Ages, canon and civil lawyers analogized the role of the diplomat to that of an agent, and diplomacy to an agency agreement (mandatum), whereby the sovereign authorized the diplomat to act on his or her behalf.137 Accordingly, diplomats could be liable ‘for actions [that] fell outside their mandate’.138 For the other actions that fell within their mandate, only the diplomat’s ruler ‘could judge the diplomat’.139 Gentili was one of the first early modern scholars to deal with the topic of diplomatic law from an international law perspective.140 Published in 1585, Gentili’s De Legationibus (On Embassies)141 constituted ‘the first successful attempt to encompass diplomatic law as a coherent whole’142 and was significantly more comprehensive than earlier studies.143 In general terms, Gentili appreciated the value of permanent missions, highlighting the importance of continuous communication between states to ‘prevent misunderstanding’, 132 Joanna Craigwood, ‘Sidney, Gentili, and the Poetics of Embassy’, in R. Adams et al. (eds) Diplomacy and Early Modern Culture (London: Palgrave 2011) 82–100, 82. 133 Lesaffer, ‘The Classical Law of Nations (1500–1800)’ 438. 134 Id. 135 Behrens, ‘Diplomatic Interference and Competing Interests in International Law’, 178–247. 136 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 437. 137 Id. 138 Id. 139 Id. 438. 140 Id. 141 Alberico Gentili, De Legationibus (London: Thomas Vautrollier 1585). Alberico Gentili, De Legationibus, Gordon J. Laing (trans.) (New York: oup 1924). See also Ms D’Orville 614, p. 269 verso ff (including the preparatory notes Gentili used for writing De Legationibus. These include various quotations and the relevant references). 142 Peter Haggenmacher, ‘Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.) Hugo Grotius and International Relations (Oxford: Clarendon Press 1990) 133–176, 139. 143 Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan 1954) 95.

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‘facilitate the opportunity for negotiation’, and maintain peace.144 While Gentili ‘still upheld that diplomats could be prosecuted for common crimes and in civil disputes’, he considered that for conduct within their mandate, they could not be judged under municipal law.145 Therefore, in case of misconduct, their ‘only punishment should be expulsion’ from the host country under the law of nations.146 Gentili conceptualized diplomatic protection as a duty of the ambassador. For Gentili, the ambassador was bound to take care of his sovereign’s subjects and their property.147 Therefore, ambassadors could file claims before the domestic courts of the host state in order ‘to recover losses, to prevent anticipated wrong’, and to protect the interests of their nationals on behalf of their sovereign.148 For instance, Gentili did not contest the right of sovereigns to regulate in the public interest and to eventually expropriate the property of their subjects or even that of foreigners for the common good. However, he acknowledged that the sovereign had the duty to restore or pay compensation for ‘what he ha[d] received … for the public advantage, whether in war or in peace’.149 If a sovereign was ‘obligated to his [or her] own people’, asks Gentili, ‘how much more [would] he [or she] be obligated to the subjects of another sovereign?’150 In this regard, ambassadors filing claims on behalf of their fellow citizens discharged a public duty and were ‘responsible to their sovereign alone’.151 Gentili dedicated De Legationibus to the quintessential ambassador, Sir Philip Sidney (1554–1586), an English poet, diplomat, and soldier as well as one of the most well-known figures of the Elizabethan age. Sidney played a prominent political role in promoting the Reformation in England and on the Continent; not only did he fight in a military campaign in the Low Countries, but he also mentored intellectuals, like Gentili, who supported the Reformation. While ‘Sidney was a hot-tempered, arrogant, and in many ways “difficult” young man, who was not liked by all his contemporaries’, he was considered a ‘literary genius’ of the Elizabethan age.152 Gentili praised Sidney as the image 144 Zartner, ‘Can International Law Survive?’ 322. 145 Lesaffer, ‘The Classical Law of Nations (1500–1800)’ 438. 146 Kenneth R. Simmonds, ‘Gentili on the Qualities of the Ideal Ambassador’ (1964) 13 Indian Year Book of International Affairs 47–58, 48. 147 Gentili, Hispanica Advocatio, Book i, Chapter xviii, p. 80. 148 Id. p. 81. 149 Id. Chapter xxvi, p. 119. 150 Id. 151 Id. Chapter xviii, p. 81. 152 Katherine Duncan-Jones, Sir Philip Sidney: Courtier Poet (New Haven and London: Yale University Press 1991) xii and 306.

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(imago) and living example of the perfect ambassador (species viva perfecti legati).153 It remains uncertain whether the dedication of Gentili’s book to Sidney was an appeal for patronage or reflected a sincere appreciation of Sidney’s diplomatic skills.154 Indeed, not only did Gentili often meet with Sidney, but Sidney encouraged Gentili to author a treatise on the subject and ‘aided him in his thinking about embassy with every Socratic device’.155 Completed in just six months, the book could not have been timelier.156 While Gentili ‘ha[d] some personal exposure to diplomacy’, he wrote about it when the subject was ‘so unsettled as to be difficult to describe with any certainty’.157 From the mid-sixteenth century onwards, several treatises focused on the status of ambassadors, including treatises by Tasso (1544–1595),158 Maggi, who published works in the late sixteenth century,159 and Hotman ­(1552–1636)160 among others.161 Yet, most of these works did not examine the matter from a distinctively legal perspective. Gentili’s De Legationibus was the first systematic, scientific, and legal study on diplomacy, examining the rights and duties of ambassadors, contributing to the development of the 153 Gentilis, De Legationibus, Chapter III, p. 22. 154 Christopher N. Warren, Literature & the Law of Nations (Oxford: oup 2015) 36. 155 J.W. Binns, ‘Alberico Gentili in Defense of Poetry and Acting’ (1972) 19 Studies in the Re­ naissance 224–272. 156 Gentili, De Legationibus, pp. vi–vii. 157 Langhorne, ‘Alberico Gentili on Diplomacy’, 308. 158 Torquato Tasso, Il Messaggero (Venetia: Bernardo Giunti 1582). 159 Octavianus Magius, De Legato Libri Duo (Venetiis: [Lodovico Avanzi] 1566) (focusing on the ambassadorial practice of the Venetian state and stressing three fundamental qualities of the ideal ambassador: negotiating skills, regard for the dignity of the embassy, and a willingness to respect the laws of the country where the ambassador [was] stationed.) 160 Jean Hotman, The Ambassador [L’Ambassadeur 1603] James Shawe (transl) (London: V[alentine] S[immes] 1603); Nys, ‘Introduction’, 22–23 (noting that Jean Hotman ‘was accused of having plagiarized’ a treaty written by another scholar, Carlo Pasquali (1547– 1625). Hotman, admitted ‘having looted … old and new writers’ and even confirmed that ‘the great part of it [was] either the result of [his] reading or of [his] relations with friends’. Nonetheless, he argued that writing a ‘work without aid and counsel would be both too defective and too sterile’ and added that authors on this subject ‘all borrow[ed] from each other, although each one of them … labored independently’.) 161 Étienne Dolet, De Officio Legati (Lyons 1541); Étienne Dolet, ‘On the Functions of the Ambassador’ Jesse S. Reeves (ed) ajil 27 (1933) 80–95 (noting that prudence is a key feature of the ideal ambassador but encouraging spying and contending that the national interest should be prioritized above all else); Conrad Braun [Conradi Bruni], De Legationibus Libri Quinque (Mainz: per Franciscum Behem typographum 1548); Conrad Braun, Les Cinq Livres sur les Ambassades, Dominique Gaurier (transl) (Limoges: Presses Universi­ taires de Limoges 2008)(discussing diplomatic practice among German princes); Carlo Pasquali, L’Ambassadeur [Legatus, 1559] (Limoges: Presses Universitaires de Limoges 2014) (discussing general issues and referring to Roman and Greek examples).

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c­ oncept of diplomatic immunity, and addressing key questions of diplomatic law. It is composed of three books. Book i provides the definition and history of legations. Book ii treats the law of legations. Book iii outlines the qualities required in an ambassador and constitutes a ‘conduct manual’ for early modern diplomatic agents.162 What are Gentili’s main contributions to diplomatic law? First, he developed the concept of diplomatic immunity. As is known, diplomatic immunity is a form of legal immunity that ensures diplomats should be safe wherever they go and should not be susceptible to charges or prosecution under the host state’s laws, although the host state can expel them. In the first book of the De Legationibus, Gentili conceived of diplomacy as a way to facilitate communication between states, thus preventing possible misunderstandings and conflicts between them. In doing so, he was therefore upholding the doctrine that ambassadors should be safe wherever they go.163 For Gentili, ambassadors represented their home states and thus deserved polite treatment.164 In addressing the topic, Gentili mostly relied on historical precedents and comparatively little on doctrine.165 His investigation revealed that the institution of embassies existed among all nations and indirectly proved ‘the universal validity of the law of nations’.166 Contrary to the common perception of his time, Gentili did not view ambassadors as licensed spies, or at least argued that they ‘should not be treated as if they were’.167 Rather, he detailed the range of rights and obligations that states maintained towards ambassadors. For Gentili, the ambassador held the privilege of immunity and ought to be held in such respect as to be safe in times of peace or war and freely pass through third states.168 He interpreted the notion of the diplomatic body extensively, extending all the traditional immunities of ambassadors to the various advisors, attendants, and even menial workers at the embassy.169 In civil matters, Gentili ‘denied that the ambassador was immune from the jurisdiction of the receiving country with respect to contracts he might make, but held that authorities

162 Warren, Literature & the Law of Nations 1580–1680, 142. 163 Langhorne, ‘Alberico Gentili on Diplomacy’, 317. 164 Craigwood, ‘Sidney, Gentili, and the Poetics of Embassy’, 89. 165 Alain Wijffels, ‘Early-Modern Scholarship on International Law’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 23–49, 40. 166 Id. 167 Langhorne, ‘Alberico Gentili on Diplomacy’, 312–313. 168 Gentili, De Legationibus, Book ii, Chapter 1, p. 58. 169 Langhorne, ‘Alberico Gentili on Diplomacy’, 315.

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of the receiving state should neither seize his movable property nor enter his house’.170 Yet, Gentili argued that the diplomats’ behaviour should respect the laws of the host country.171 Moreover, for Gentili, ambassadors maintained the right not to comply with superior orders of their sovereign if such orders were manifestly unjust or clashed with natural law.172 This was a rather radical departure from the contemporary literature on diplomatic law. Most Renaissance scholars affirmed the primacy of domestic politics over the law of nations, considering ambassadors as mere subjects of their sovereign, who should comply with the latter’s orders without hesitation irrespective of any moral doubt.173 For instance, for the Italian humanist Ermolao Barbaro (1453–1493) ambassadors should diligently abide by the orders of their sovereigns and further the prestige and power of their home country.174 Analogously, in the dialogue Il Mes­ saggiero (the Messenger), published in 1582 and often cited by Gentili in his De Legationibus, the Italian humanist Torquato Tasso (1544–1595) envisaged the complete subordination of ambassadors to their sovereign.175 For Tasso, diplomats had no autonomy. Instead, Gentili rejected the idea that ambassadors should be passively obedient to their sovereign and subject to the reason of state. For Gentili passive obedience to a sovereign’s orders was not a virtue.176 Torn between ethics and politics, between the law of nations and domestic law, between the reason of humanity and the reason of state, ambassadors should follow their own conscience and comply with both divine (ius Dei) and international law (ius gen­ tium) rather than state law (ius principi) only.177 In case of conflict between the

170 Nussbaum, A Concise History of the Law of Nations 95; Gentili, De Legationibus, Book ii, Chapter 16. 171 Langhorne, ‘Alberico Gentili on Diplomacy’, 312. 172 Stefano Colavecchia, ‘Alberico Gentili: in Margine ad Alcuni Studi Recenti e Nuove Proposte di Ricerca’ (2014) 98 Nuova Rivista Storica 389. 173 Diego Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento—Bruno, Sidney, e i Dissidenti Italiani (Roma: Edizioni di Storia e Letteratura 2010) 114. 174 Ermolao Barbaro, Tractatus de Officio Legati [1481] Vittore Branca (ed.) (Firenze: Olshki 1969) 159 (‘legati munus est mandata Reipublicae suae vel Principis obire diligenter’.) 175 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 114 (quoting Torquato Tasso, Il Messaggiero, in Torquato Tasso, Dialoghi, G. Baffetti (ed.) (Milano: Rizzoli 1998) 305–383, 378 ‘se ’l principe non è perfetto, non può esser perfetto l’ambasciatore; ma se ’l principe è perfetto, l’ambasciatore ancora può essere perfetto’.) 176 Diego Pirillo, ‘Tasso at the French Embassy: Epic, Diplomacy, and the Law of Nations’, in Jason Powell and William T. Rossiter (eds) Authority and Diplomacy from Dante to Shake­ speare (London/New York: Routledge 2013) 135–154, 146. 177 Colavecchia, ‘Alberico Gentili: in Margine ad Alcuni Studi Recenti e Nuove Proposte di Ricerca’, 389.

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law of nations and state law, ambassadors should obey the law of nations.178 Certainly, Gentili was aware of the radical nature of his position and admitted that his theory was not followed in practice.179 At the same time, Gentili ‘carefully distinguished his position from the contemporary … doctrines on tyrannicide, recently advanced in England by the Scottish humanist George Buchanan’.180 In the 1579 dialogue De Iure Regni apud Scotos, Buchanan (1506–1582) theorized that all political power derived from the people; that the people transferred such power to the sovereign under certain conditions;181 and that the sovereign was bound by such conditions and might be held accountable for his or her acts.182 Moreover, for Buchanan, sovereigns were legitimate only if they complied with the law.183 If they breached the law, they would become tyrants.184 Buchanan also theorized a universal individual right to resist and kill tyrants and overthrow their government under the law of nature.185 For Buchanan, rebellion against tyrants was obedience to God.186 Instead, Gentili condemned the doctrine of popular resistance because he abhorred anarchy, political disorder, and civil war.187 Therefore, ‘[u]nder extreme circumstances, a sovereign could legitimately govern even against the will of his subjects’, just as doctors could ‘cure diseases against the will of [their] patients’.188 Yet, for Gentili, diplomats could disobey the orders of their sovereign if the latter conflicted with the law of nations.189 Within the state, Gentili argued, only the magistrate had the right to resist the tyrant, while the people should obey the orders of their superiors.190 Second, Gentili addressed the question of whether an ambassador plotting against the sovereign should face expulsion or punishment. If an ambassador was discovered to be a spy, or ‘to be engaged in a treacherous conduct’ towards 178 Gentilis, De Legationibus, Book iii, Chapter 15. 179 Id. Chapters 14–15. 180 Pirillo, ‘Tasso at the French Embassy’, 147. 181 George Buchanan, De Jure Regni Apud Scotos [1579] The Powers of the Crown in Scotland, Charles Flinn Arrowood (trans) (Austin: University of Texas Press 1949) 52. 182 Id. 41. 183 Diego Pirillo, ‘Repubblicanesimo e Tirannicidio: Osservazioni su Alberico Gentili e Giordano Bruno’, in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Inter­ nazionale (Milano: Giuffrè 2008) 295. 184 Id. 296. 185 Buchanan, De Jure Regni Apud Scotos, 140. 186 Id. 143. 187 Pirillo, ‘Tasso at the French Embassy’, 147. 188 Id. 189 Gentili, De Legationibus, Book iii, Chapter 15. 190 Pirillo, ‘Tasso at the French Embassy’, 147.

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a state, or to have committed any other crime, he or she ought to be sent back to his or her country.191 If, however, ‘the ambassador inflict[ed] a personal ­injury on the sovereign, he [would be] liable even to the capital penalty; and his own prince ought in such a case to surrender him to the jurisdiction of the offended state’.192 This part of the book relied upon and expanded the advice Gentili gave to the Privy Council in respect of the Throckmorton Plot of 1584. The failed conspiracy intended to overthrow the rule of Elizabeth i, put Mary Stuart Queen of Scots (1542–1587) on the throne, and disrupt the English Reformation.193 When state authorities found compromising documents at the house of Francis Throckmorton (1554–1584), one of the conspirators, it became evident that Don Bernardino de Mendoza (1540–1604), the Spanish Ambassador, was an accomplice to the plot.194 While there was no doubt about his involvement in the conspiracy, ‘there was considerable doubt about what to do with him’.195 Should the government send the ambassador back to Spain for trial? Or should the ambassador be punished in England?196 Reportedly, the government was ‘inclined to execute or imprison the ambassador’, on the ground that ‘in vain he appeal[ed] to immunity’ under the law of the nations who violated the same law.197 However, before taking action, the Queen’s Privy Council sought advice from two civilians, Alberico Gentili, who was then lecturing at Oxford, and Jean Hotman (1552–1636), who was then serving as foreign secretary to Robert Dudley, Earl of Leicester.198 Although the pressure upon these scholars must 191 Gentili, De Legationibus, Book ii, Chapter 18. 192 Id. Book ii, Chapter 19. 193 Mordechai Feingold, ‘What’s in a Date? Alberico Gentili and the Genesis of the De Lega­ tionibus Libri Tres’, (2017) 64 Notes and Queries 312–317, 312. 194 On Bernardino de Mendoza, see Jensen De Lamar, Diplomacy and Dogmatism: Bernardino de Mendoza and the French Catholic League (Cambridge, MA: Harvard University Press 1964) (noting that Mendoza shared King Philip ii’s ambition to restore Catholicism in Europe and considered diplomacy as merely ‘another arm of the military, to be used by the king … for crushing the enemy’.) 195 Langhorne, ‘Alberico Gentili on Diplomacy’, 314. 196 Ernest Nys, ‘Introduction’, Alberico Gentili, De Legationibus Libri Tres, Gordon J. Laing (trans.) (New York: oup 1924) 11–37, 22. 197 Edward P. Cheyney, ‘International Law under Queen Elizabeth’ (1905) 20 English Histori­ cal Review 659, 660–661. 198 On Jean Hotman, see generally Guillaume H.M. Posthumus Meyjes, Jean Hotman’s English Connection (Amsterdam/New York/Oxford/Tokyo: Koninklijke Nederlandse Akademie Van Wetenschappen 1990) (highlighting that Jean Hotman was the eldest son of François Hotman—an eminent humanist jurist of the French School—, studied at the universities of Valencia, Paris, and Oxford, and worked as a secretary of Lord Leicester.)

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have been great to yield to the popular demand for the exemplary punishment of the ambassador, both Hotman and Gentili unanimously opined that the law of nations was applicable and that consequently Mendoza’s plea of diplomatic immunity was legitimate.199 In their view, the ambassador ‘should be expelled from England in order to be tried in his own country’.200 In particular, Gentili believed the ambassador was immune from criminal jurisdiction of the host state ‘only in the case of a conspiracy which was not carried into effect’.201 Gentili stressed the distinction between actual acts and mere plans, arguing that the ambassador should be expelled because he had plotted rather than harmed the Queen.202 More importantly, Gentili also aptly noted that any sovereign who broke the law of nations by harming foreign ambassadors could expect retaliation.203 Acting on the advice of Gentili and Hotman, the government decided to expel the ambassador.204 That the opinion given by Gentili and Hotman was the right one is now universally admitted; but the matter was controversial at the time.205 For instance, in 1571, a panel of five civilians had asserted the criminal liability of the Scottish Ambassador to England, John Leslie (1527–1596), Bishop of Ross, for conspiring in favour of Mary Stuart against Elizabeth i in the Ridolfi Plot206 and argued in favour of subjecting him to the criminal jurisdiction of the receiving state.207 Yet, the advice was not followed.208 After imprisonment in the Tower of London, Leslie was banished from the country.209 Third, Gentili acknowledged that all nations had the right of legation, that is, the right to send envoys or establish diplomatic missions. In addressing the question as to whether excommunicated persons had the right of legation, Gentili argued that religious differences should not impede the legitimate

199 Meyjes, Jean Hotman’s English Connection, 180. 200 Id. 201 Nussbaum, A Concise History of the Law of Nations, 95. 202 Langhorne, ‘Alberico Gentili on Diplomacy’, 314. 203 Gentili, De Iure Belli, Book II, Chapter 2, p. 137. 204 Behrens, ‘Diplomatic Interference and Competing Interests in International Law’, 181. 205 Thomas E. Holland, Studies in International Law (Oxford: Clarendon Press 1898) 10. 206 Arnold D. McNair, ‘The Debt of International Law in Britain to the Civil Law and the Civilians’ (1953) 39 Transactions of the Grotius Society 188. 207 K.R. Simmonds, ‘Some English Precursors of Hugo Grotius’ (1957) 43 Transactions of the Grotius Society 143–157, 149. 208 McNair, ‘The Debt of International Law in Britain to the Civil Law and the Civilians’, 188–189. 209 Ennio Agabiti, Alberico Gentili—Fondatore della Scienza del Diritto Internazionale (Fermo: 1908) 46.

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e­ xercise of the rights of embassies.210 His position relied on practice, as diplomatic relations took place between Protestant and Catholic rulers on the one hand, and between Orthodox and Catholic rulers on the other, as well as between the Ottomans and the Persians.211 For instance, he noted that despite being excommunicated by Pope Julius ii (1443–1513), the Republic of Venice continued its diplomatic relations with other Christian governments.212 Moreover, Gentili considered religion as an affair between God and human beings, rather than between human beings, and stressed that the right of embassy remained intact irrespective of religious differences.213 Finally, in the third book of the De Legationibus, Gentili investigated ‘the qualifications necessary for, and the mode of conduct of, an ideal ambassador’.214 Such book does not have a legal nature; rather, it belongs to the Medieval and Renaissance literary genre of the mirrors for princes (specula principum). Mirrors for princes gave their readers an opportunity for reflection. Gentili highlighted the moral virtues that the ideal ambassador should possess, providing practical rules for the education and conduct of ambassadors.215 The third book of the De Legationibus shows a certain evolution in the theoretical conceptualization of diplomacy. While earlier theoretical works on diplomacy ‘suggested that the virtues that qualified an individual for diplomatic service were essentially those that made him a noble human being: patience, modesty, discretion, honesty, gravity’, kindness, and humanity, sixteenth-­ century authors like Francesco Guicciardini (1483—1540), Niccolò Machiavelli (1469–1527), and Alberico Gentili ‘increasingly associated diplomatic success’

210 Gentili, De Legationibus, Book ii, Chapter 11. 211 Id. 212 Nys, ‘Introduction’, 35. 213 Gentili, De Legationibus, Book ii, Chapter 11. 214 Thomas W. Balch, ‘Albericus Gentilis’ (1911) 5 ajil 665–679, 672. 215 See also Gentili, MS D’Orville 614, p. 269v (quoting, in Italian, Torquato Tasso’s Il Messag­ giero describing the perfect ambassador: ‘Perfetto ambasciatore è colui che sa a beneficio del suo principe trattare i negozi con prudenza, fare i complimenti con eloquenza e che può sostenere con la gravità dei costumi con la dignità dell’aspetto e con lo splendore della vita la maestà del principe … Eccoti l’effigie e l’immagine del perfetto ambasciatore, alla quale for­ mare è necessario, che concernono: nobiltà…, dignità e venustà d’aspetto; … esperienza delle corti e del mondo; cognizione delle cose di stato, della storia e [della filosofia morale]; fede e amor verso il suo principe, destrezza d’ingegno, accortezza e facondia, grazia nello spiegare i concetti, gravità e piacevolezza nel conversare; affabilità e cortesia nel favorire amici e co­ noscenti. Perché forse tutte queste condizioni non si ritroveranno mai in alcuno, è sufficiente averne la maggior parte per avvicinarsi alla perfezione’.) Torquato Tasso, Il Messaggiero, in T. Tasso, Opere Complete (Venezia: Plet 1835) 689–713, 713.

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with some deployment of dissimulation.216 As is known, Guicciardini’s Storia d’Italia reflected, inter alia, the author’s own personal experience as statesman and ambassador to Spain for the Florentine Republic.217 For Guicciardini ‘the ambassadors sent abroad [were] the eyes and ears of republics, and it [was] thus they who should be believed, not those who ha[d] a personal stake in affairs’.218 To perform their duties, ambassadors should develop a double perspective: on the one hand, they should gather data and send information back home. On the other hand, they should not take the side of the prince at whose court they were residing; rather, they should maintain a decorous distance and examine such information from the perspective of their own sovereigns. For Machiavelli, the ambassador’s role was one of ‘double representation’: while ambassadors represented their monarchs before foreign sovereigns, they represented themselves in the dispatches and reports that they sent to their principals.219 For Gentili, ambassadors also played a dual role: they represented their sovereigns when they were in public, but they represented themselves in private.220 Gentili believed ambassadors should possess four principal moral virtues: honesty, strength, moderation, and prudence.221 They should be trustworthy and perform their duties with integrity, keeping their promises.222 Moral strength and courage were also vital. And if necessary, ambassadors should be willing to sacrifice their life for their work.223 In addition, they should perform their duties with moderation and prudence. Not only does moderation in private life prevent corruption in the public life, but it also enables the ­ambassador to have a balanced view on political matters.224 Finally, for Gentili 216 John Watkins, ‘Ambassadors, Factors, Translators, Spies: Agents of Transcultural Relations in the Early Modern World’ (2009) 38 Clio 339–347, 341–342. 217 Francesco Guicciardini, L’Historia d’Italia di M. Francesco Guicciardini Gentil’huomo Fio­ rentino (Firenze: Lorenzo Torrentino 1561); Francesco Guicciardini, Storia d’Italia, Silvana Seidel Menchi (ed) (Torino: Einaudi 1971). 218 Francesco Guicciardini, Discorsi Politici, in Francesco Guicciardini, Scritti Politici e Ricordi Roberto Palmarocchi (ed) (Bari: Laterza 1933) 133 (‘gli ambasciatori che si mandano fuori sono gli occhi e le orecchie delle repubbliche, ed a loro si ha a credere, non a quegli che hanno passione nelle cose’.) 219 Watkins, ‘Ambassadors, Factors, Translators, Spies’, 342. 220 MS D’Orville 614 p. 270 (‘l’ambasciatore sostiene due persone: in pubblico rappresenta la persona del principe; in casa e altrove la sua come fanno gli attori’.) 221 Diego Panizza, ‘Il Pensiero Politico di Alberico Gentili. Religione, Virtú e Ragion di Stato’, in Diego Panizza (ed.) Alberico Gentili. Politica e Religione nell’Età delle Guerre di Religione (Milano: Giuffrè 2002) 57–213, 138. 222 Gentili, De Legationibus, Book iii, Chapter 11. 223 Id. Chapter 12. 224 Id. Chapter 13.

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­ rudence was a key virtue that signalled the capacity to perform one’s duty app propriately, but also enriched the meaning of all the other virtues.225 Gentili emphasized the need for ‘standards of diplomatic integrity’.226 He argued that ambassadors should be ‘honest and good’.227 If their duty of loyalty to their sovereign clashed with law and morality, then they should conform to the requirements of the latter.228 For Gentili, ambassadors remained subject to the rule of law. If the sovereign planned to commit unjust deeds, the ambassador had the right to resist unjust orders and comply with natural law.229 Gentili also considered whether an ambassador could lie under any circumstances.230 He condemned bribery, deceit, and spying outright and argued that ambassadors should possess the best combination of human virtues. For Gentili, not only did virtuous ambassadors serve the home state and the host state, but they also benefitted the international community as a whole, potentially promoting peaceful and prosperous relations among nations.231 Although the De Legationibus had a limited scope and did not cover every issue of diplomatic law, it certainly constitutes an essential reading not only for international legal historians but also for those interested in a diplomatic career or an international law profession more generally. It soon became ‘one of the leading authorities on the subject’.232 Although De Iure Belli may be the most compelling Gentilian work, and the Hispanica Advocatio his most dynamic, De Legationibus remains a work of prime importance, emphasizing the dual role of the ambassador as a national and international public officer.233 Through this work Gentili fashioned an ideal ambassador as a person with ‘considerable ability’, ‘an agile mind’, and capable of rapid decision making.234 He emphasized the value of an intellectual education, knowledge of history, philosophy, and current practice as well as foreign languages.235 More fundamentally, he highlighted prudence as ‘the most vital quality of all’, which enabled those who are arbiters of international affairs to grasp ‘the essence and 225 Gentili, De Legationibus, Book III, Chapter 14. 226 Simmonds, ‘Gentili on the Qualities of the Ideal Ambassador’, 55. 227 MS D’Orville 614 p. 270 verso (l’ambasciatore deve essere uomo dabbene e onesto). 228 Panizza, ‘Il pensiero politico di Alberico Gentili’, 142. 229 Simmonds, ‘Gentili on the Qualities of the Ideal Ambassador’, 53. 230 MS D’Orville 614 p. 270 verso (admitting that certain omissions can be tolerated, while lies should be avoided.) 231 Simmonds, ‘Gentili on the Qualities of the Ideal Ambassador’, 58. 232 Id. 233 Id. 49. 234 Gentili, De Legationibus, Book iii, Chapter iii, pp. 153–155; and Chapter iv, pp. 155–156. 235 Id. Book ii, Chapters v, pp. 159–160; vi, p. 160; and vii, pp. 167–171.

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truth of the situations’, to ‘be resourceful in emergencies’, and to adopt sound judgment.236 The ius legationis should not be abused; rather, it should be exercised in good faith.237 4.6

The Settlement of International Disputes

In the sixteenth century, a new international legal order gradually emerged.238 Whereas the medieval legal order was based on a homogenous, centralized, and hierarchical vision of Christendom, with the Pope and the Emperor at its apex,239 the new international legal system was heterogenous, decentralized, and polycentric, composed of sovereign states (superiorem non recognoscen­ tes). Because sovereign states did not acknowledge the existence of any superior authority above them, there was no power that could settle international disputes by default. The authority of the Pope to settle international disputes was no longer recognized. Very few cases of arbitration occurred in the sixteenth and seventeenth centuries.240 Only in the eighteenth and nineteenth centuries did arbitration become more common as a useful tool to prevent war.241 Rather, wars were constantly fought for a range of different reasons, and early modern scholars principally devoted their attention to the law of war. Although the peaceful settlement of international disputes was more of a theoretical topic than a practical one in his time, Gentili insisted that war was not a normal or necessary condition.242 For Gentili, if wars were considered a natural necessity, then they could be justified in any case, which would be absurd.243 Rather, he considered wars to be political phenomena.244 Conflicts were not the result of an imagined conflictual nature of humankind, or the

236 Simmonds, ‘Gentili on the Qualities of the Ideal Ambassador’, 52. 237 Gentili, De Legationibus, Book iii, Chapter 11. 238 Peter Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili. Considerazioni Sparse di un Groziano’, in vvaa, Il Diritto della Guerra e della Pace di Alberico Gentili (Milano: Giuffrè 1995) 21. 239 Id. 240 Ian Brownlie, ‘The Peaceful Settlement of International Disputes’, in vvaa, Alberi­ co ­Gentili—La Soluzione Pacifica delle Controversie Internazionali (Milano: Giuffrè 2003) 37–55, 40. 241 Id. 242 Id. 243 Id. 244 Id.

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rotation of the stars, or destiny;245 rather, Gentili argued, wars were the result of the greed and injustice of human beings (cupiditas et iniustitia hominum).246 The change of the geopolitical order deeply influenced the way Gentili approached the settlement of international disputes. Gentili rejected the medieval idea which saw the Pope as the supreme authority in the relations among nations and the supreme arbiter of international disputes. Instead, he noted that there was no international court and tribunal that could adjudicate international disputes. Therefore, he emphasized the importance of diplomatic dispute settlement mechanisms and arbitration as useful tools for settling international disputes. Gentili stressed the importance of diplomacy as a tool to prevent war and preserve peace, and highlighted that diplomacy plays a crucial role in inter­ national law.247 Although most of the time successful diplomacy and conflict management remained invisible,248 Gentili understood the importance of diplomacy for the maintenance of international peace and security. By resorting to diplomatic methods of dispute settlement—negotiation, enquiry, mediation, conciliation, and good offices—the parties retain control over the outcome of the procedure, since any solution proposed is subject to eventual acceptance. As is known, the parties to diplomatic dispute settlement mech­ anisms are under no legal obligation to accept the proposals of settlement that they are offered. Nonetheless, if diplomatic means of conflict management are successful, they can prevent war and preserve peace. In addition to the traditional diplomatic means of dispute resolution, Gentili also acknowledged the importance of arbitration that would provide the parties with binding awards. He argued that there was a duty to seek peaceful settlement by negotiation, other peaceful means, or arbitration.249 Finally, for Gentili, war constituted a mechanism of last resort to settle international disputes. Because the international system of the time did not have international tribunals, ‘war ha[d] a place in international society’ and ‘in some cases’ it was ‘the only way’ to defend the state, enforce international law, and maintain the international community.250 However, Gentili argued that it 245 Cfr. Honoré Bonet, The Tree of Battles [L’Arbre de Batailles, 1431] G.W. Coopland (trans) (Liverpool: Liverpool University Press 1949) 119. 246 Gentilis, De Iure Belli, Book I, Chapter 12, p. 54 and Book I, Chapter 7, p. 34. 247 Ian Brownlie, ‘The Role of Power in International Relations’, in vvaa, Alberico Gentili—La Soluzione Pacifica delle Controversie Internazionali (Milano: Giuffrè 2003) 88–93, 88. 248 Id. 90. 249 Brownlie, ‘The Peaceful Settlement of International Disputes’, 40. 250 Benedict Kingsbury, ‘Gentili, Grotius, and the Extra-European World’, in Harry N. Schreiber (ed) The Law of the Sea: The Common Heritage and Emerging Challenges (The Hague: M. Nijhoff 2000) 39–49, 49.

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should constitute only the last resort (extremo loco) to settle international disputes, since it is always possible to employ diplomatic or adjudicative means of dispute settlement in the first instance.251 Gentili compared war to a sort of trial among sovereigns,252 to settle their dispute, punish those who violated international law, and restore peace and justice.253 Far from conceiving of war as an instrument of power, hegemony, and aggression, Gentili conceptualized it as a tool of self-defence, to prevent imperial hegemonies, maintain the international legal order, and pursue international justice.254 Because war became an instrument of justice, it could not be waged unjustly, with aims, methods, and weapons running against its own ends.255 Therefore, Gentili discussed the just causes for waging war and identified a number of limits to warfare. For instance, he insisted that war should be declared. He saw a declaration of war as essential and suggested ‘the preceding of a declaration by a warning or a claim for redress by the injured state’.256 This warning could facilitate settlement, mutual understanding, and the maintenance of international peace. Finally, he also defended the equal treatment of belligerents.257 4.7

The Secularization of Legal Theory

One of the most important contributions of Gentili’s thought to international law was the gradual secularization of this field of study. In the early modern period, ‘theology was losing its traditional role as the main epistemo­logical support’ for other sciences;258 rather, the separation of science from theology was a key achievement in different fields of study.259 Gentili contributed to the general secularization process by gradually separating the law of nations from theology. While earlier scholars approached the law of nations by ­adopting a

251 Gentili, De Iure Belli, Book i, Chapters 3–4. 252 Id. Book i, Chapters 2 and 6. 253 Giorgio Badiali, ‘L’Attualità del Pensiero Gentiliano nel Moderno Diritto Internazionale’, in vvaa, Alberico Gentili nel Quarto Centenario del De Iure Belli (Milan: Giuffrè 2000) 41–42. 254 Id. 42. 255 Id. 256 Kenneth R. Simmonds, ‘Hugo Grotius and Alberico Gentili’ (1959) 8 German yil 85–100, 90. 257 Gentili, De Iure Belli, Book i, Chapter 2, p. 13. 258 Diego Panizza, Alberico Gentili, Giurista Ideologo nell’Inghilterra Elisabettiana (Padua: La Garangola 1981) 8. 259 Martin van Gelderen, ‘Iustitiam Non Includo: Carl Schmitt, Hugo Grotius and the Ius Pub­ licum Europaeum’ (2011) 37 History of European Ideas 156.

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moralizing, scholastic, and/or theological stance, Gentili approached the same juridically.260 Most of Gentili’s predecessors—scholars like Francisco de Vitoria (1483– 1546), Domingo de Soto (1494–1560), and Francisco Suarez (1548–1627)—were Catholic theologians. Active in the sixteenth century until the early seventeenth century, the Spanish School of Salamanca emphasized the primacy of theology among the various fields of knowledge. For instance, in his relectio De Potestate Civili, Vitoria stated that ‘the duty and calling of a theologian is so wide that no argument, no discussion or controversy on any subject can be considered foreign to his profession … Theology is … the … first of all sciences and disciplines in the world’.261 Accordingly, theology extended so broadly to cover almost any field of inquiry.262 Similarly, Soto’s treatise on justice and law considered God as the ultimate origin of the human commonwealth.263 Analogously, Suarez approached the law of nations from a theological perspective because, for him, theology was the appropriate lens through which to understand the human condition.264 For Suarez, God was the supreme source of all laws; accordingly, any obligation falling under natural law ultimately derived its force from God’s authority and thus had binding force.265 Consequently, Suarez viewed theologians as the most qualified interpreters of laws. Members of the School of Salamanca thus adapted theological thought, including the work of Thomas Aquinas on just war, to the contemporary political setting,266 adopting a deductive method of a priori reasoning and relying heavily on canon law.267 As a humanist lawyer and a civilian with no formal training in theology, Gentili rejected the centrality of theology among the various disciplines and as the only lens through which to examine international relations. His famous motto, ‘Theologians, mind your own business!’ (Silete theology in munere alieno),268 expressed clearly that he saw law and theology as distinct d­ isciplines 260 Nussbaum, A Concise History of the Law of Nations, 101. 261 Diego Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli: The Great Debate between Theological and Humanist Perspectives from Vitoria to Grotius’, in Pierre-Marie Dupuy and Vincent Chetail (eds) The Roots of International Law (Leiden: Brill 2014) 211–247, 215. 262 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 26. 263 Domingo de Soto, De Iustitia et Iure Decem (Salamanca: 1556). 264 Francisco Suarez, De Legibus et de Deo Legislatore (Coimbra: 1612) preface. 265 Id. i, 5.13. 266 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 214–215. 267 Frank F. Abbott, ‘Alberico Gentili and His Advocatio Hispanica’ (1916) 10 ajil 737–748, 747. 268 Alberico Gentili, De Iure Belli, Book I, Chapter 12, p. 57.

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with different aims, objectives, and subject matters.269 While law investigates human beings and seeks to govern human affairs (and therefore constitutes human law, or ius humanum), theology investigates God and aims to study divine matters including divine law (ius divinum), which governs the relationship between God and human beings.270 Thus, according to Gentili, while theologians should study theology, lawyers should study law. Gentili was aware that there could be lawful things that run against divine law, and he admitted that law investigates external acts rather than the inner motives of the soul (lex nostra non scrutatur conscientiam).271 Therefore, he adopted an inductive method, scrutinizing and critically assessing concrete cases of his own time and drawing practical rules from such cases. He only rarely cited canon law, indeed when he did, he did not refer to such law as binding law, but as a mere source of reference.272 Like other early modern legal scholars, Gentili considered law as true philosophy (vera philosophia), that is, a true discipline independent of other fields of study with its own aims and objectives.273 For him, law is the art of determining what is fair and equitable (ars boni et aequi)274 and constitutes a starting point for understanding human beings and the world.275 According to Gentili, lawyers should not merely apply the law; rather, they should pursue justice.276 In the Gentilian theory, by interpreting and applying the law, ­lawyers 269 Alberico Gentili, Disputationum de Nuptiis Libri vii (Hanoviae: Guilielmum Antonium 1601) Book i, Chapter vii, p. 37 (‘theologia, et iurisprudentia, siue scientiae, siue artes, per subiectum, aut per finem distinguuntur … Sed theologiae subiectum Deus est: finis ius divi­ num. Iurisprudentiae subiectum homo, sive actiones humanae: finis ius humanum’.); Minnucci, Silete Theologi in Munere Alieno, 216–217. 270 Gentili, De Iure Belli, Book i, Chapter ix. 271 Gentili, Hispanica Advocatio, Book i, Chapter xiv, p. 66 (noting that ‘many things are lawful that are not honorable’); Gentili, De Nuptiis, p. 63; Minnucci, Silete Theologi in Munere Alieno, 218–219. 272 Abbott, ‘Alberico Gentili and his Advocatio Hispanica’, 747. 273 Donald R. Kelley, ‘Civil Science in the Renaissance: Jurisprudence Italian Style’ (1979) 22 Historical Journal 777–794, 783. 274 Gentili, Disputationum de Nuptiis, Book i, Chapter xi, p. 57 (‘Quemadmodum philosophia … non est Aristotelismus, aut Platonismus, sed studium sapientiae et veritatis: ita nostra phi­ losophia Iustinianismus non est, sed ars boni et aequi’.) 275 Donald R. Kelley, ‘Jurisconsultus Perfectus: The Lawyer as Renaissance Man’ (1988) 51 Jour­ nal of the Warburg and Cortauld Institutes 84–102, 85. 276 Gentili, Disputationum de Nuptiis, 57 (‘Nostra non est ars, recitare, quid in libris Iustiniani est constitutuum, sed definire explicare, quid in quaque quaestione est iuris … iustitiam namque colimus … equum ab iniquo separantes, licitum ab illicito discernentes’.); Giovanni Minnucci, Alberico Gentili Iuris Interpres della Prima Età Moderna (Bologna: Monduzzi 2011) 178–179.

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become ‘ministers of justice’ (sacerdotes iustitiae)277 and the archetype of  the secular intellectual, that is, ‘the [person] of science … who [i]s committed to the common good’.278 For Gentili, law takes precedence over other disciplines. Gentili discussed the importance of freedom of religion both within the state and in international relations. Recalling the famous statement by Theodoric (454–526), King of the Ostrogoths, who after seizing a part of the Roman Empire instructed his people not to oppress the Roman subjects who had a different religion, Gentili wrote: ‘we cannot rule over religion: for no one can be forced to believe against his will’.279 In the De Iure Belli, Gentili wondered whether a sovereign should promote adhesion to one religion only within the state.280 Gentili acknowledged that such policy would foster religious cohesion and political unity, but he warned that this could also lead to internal religious wars. Therefore, he argued in favour of religious freedom (libertas religio­ nis debetur)281 on both theoretical and practical grounds. On the one hand, he stressed the conceptual distinction between human law and divine law. On the other hand, he pointed out that religious tolerance could prevent civil wars and secure domestic political stability.282 He illustrated the case for religious tolerance by referring to the concrete example of the Turkish Empire, a country of Islamic faith but tolerant of Christian and Jewish communities.283 He also referred to the peaceful co-existence of Orthodox, Catholic, and Jewish communities in Ancona and Rome.284 As aptly noted by Kingsbury, ‘at a time of widespread intolerance and exclusion of the Jewish people in Christianruled Europe, passages in [Gentili’s De Iure Belli] may arguably be interpreted as protests against mistreatment’.285 In conclusion, for Gentili, sovereigns

277 Id. (referring to Ulpian’s definition of lawyers as the priests of the laws in Digest I.I.I.I.). 278 Kelley, ‘Jurisconsultus Perfectus’, 85. 279 Gentili, De Iure Belli, Book i, Chapter ix, p. 38. 280 Id. Book i, Chapter x, p. 44. 281 Id. (arguing that ‘force should not be used against subjects who have embraced another religion’.) 282 Mark Somos, ‘Selden’s Mare Clausum. The Secularization of International Law and the Rise of Soft Imperialism’ (2012) 14 Journal of the History of International Law 288. 283 The Ottoman Empire offered refuge to Iberian Jewish people fleeing persecution and hosted several Jewish communities at the time. Salonica was considered the main centre of Jewish life in the Ottoman Empire. 284 Gentili, De Iure Belli, Book i, Chapter ix, p. 41 (opposing the forced conversion and persecution of the Jewish people.) 285 Kingsbury, ‘Gentili, Grotius, and the Extra-European World’, 55; Gentili, De Iure Belli, Book iii, Chapter xi, p. 343.

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could not impose their religion on their subjects by the use of force and should tolerate different faiths provided that they were not harmful to the state.286 Analogously, at the international level, Gentili denied that religious difference could justify war or any breach of the law of war (ius in bello).287 For Gentili, all nations belonged to the international community, irrespective of their religious differences. For instance, for Gentili—contrary to some of his contemporaries—the Ottoman Empire constituted part of the international community.288 Gentili detached himself from the Eurocentric tradition of the Christian Commonwealth (Res Publica Christiana).289 Such a concept indicated the ‘religious, cultural, and to a certain extent political and juridical unity’ of Medieval and Renaissance Europe.290 While Grotius legitimized the exclusion of non-Christian polities from the international society.291 Gentili appears to have been open to a more inclusive understanding of the international community. Was the secularization of international legal theory a disguised tool of imperialism? While Gentili wrote about freedom of religion, England was at war with Spain, which aimed to establish a universal monarchy and impose Catholicism as a single faith. It is possible that Gentili’s own experience of religious persecution, the wars of religion that beleaguered Europe, and the risk of a Spanish invasion fuelled his theory of freedom of religion. In the Gentilian system, freedom of religion appears more as a tool against hegemonic ambitions and tyrannical rule rather than a tool of oppression and conquest. Gentili denied that the conversion of the Indians was a legitimate justification for war. For Gentili, the Europeans had no right to access Indian territories in order to convert the Indians. Nonetheless, international legal historians have pointed out that an unintended consequence of the secularization of international law and international relations ultimately contributed to the establishment of the British 286 Gentili, De Iure Belli, Book i, Chapter 10, p. 44. 287 Nussbaum, A Concise History of the Law of Nations, 97. 288 Noel Malcolm, ‘Alberico Gentili and the Ottomans’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 129 (stating that it was proper to exchange embassies with the Ottoman sultan.); Arnulf Becker Lorca, ‘Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation’ (2010) 51 Harvard ilj 475–552, 506 (noting that ‘[o]nly the 1854 Treaty of Paris sanctioned Turkey’s admission into the international community’.) 289 Malcolm, ‘Alberico Gentili and the Ottomans’, 130. 290 Lesaffer, ‘The Grotian Tradition Revisited’, 112. 291 John D. Haskell, ‘Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial’ (2011) 25 Emory ilr 286 (documenting the multitude of Grotius’ anti-Semitic and Islamophobic comments.)

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­Empire.292 Contrary to Portuguese, Spanish, and French colonial projects, ‘English thinkers worked out a way to encounter native rulers and legal systems’ without taking a position on religious matters.293 Such international legal theories ‘proved effective in securing non-European cooperation’ and constituted a sort of ‘soft imperialism’, allowing ‘a continued role for local courts, traditions, and government’.294 For instance, Anghie points out that British imperialism based on secular law was easier to establish and maintain than the colonialism based on religion.295 While these scholars refer to later periods than that in which Gentili lived (for instance, Anghie refers to the nineteenth century, while Gentili lived in the sixteenth century), one may question whether Gentili could foresee such developments or the abuse of humanitarian intervention against the tyrannical rule of given sovereigns. While there is no sufficient historical evidence to ascertain whether Gentili could foresee the global dimension of English maritime expansion at the time in which he authored his works, what is certain is that Gentili acknowledged that humanitarian intervention could be (and has been) subject to abuse. Gentili admitted that rarely did states intervene to defend innocent citizens from the tyrannical rule of other sovereigns and when they did so, it was often motivated by selfinterest. Nonetheless, Gentili highlighted that, when properly done, that is, without acquisition of territory, humanitarian intervention could pursue the highest form of justice, that of protecting the vulnerable against the cruelty of others. But was Gentili’s conception truly secularized? Although Gentili’s separation between law and theology was ‘quite far-ranging by the standards of its day, it was not absolute’.296 The intellectual universe of early modern scholars included the Greco-Roman world, the Christian tradition, and Hebrew sources.297 Their vision still combined knowledge and faith.298 Like other Renaissance scholars, Gentili relied on a variety of sources, including not only classical Christian sources, but also, albeit more sporadically, Jewish and Islamic 292 Gentili, De Iure Belli, Book I, Chapter 16, pp. 74–78. 293 Id. 294 Id. 295 See Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law’ (1999) 40 Harvard ilj 1–71, 46–51. 296 Noel Malcolm, ‘Alberico Gentili and the Ottomans’, in vvaa, Alberico Gentili—La Salva­ guardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 89. 297 Charles Leben, ‘Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe’ (2016) 27 ejil 106. 298 Malcolm, ‘Alberico Gentili and the Ottomans’, 89.

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sources, theological opinions, and canon law.299 He had extensive knowledge of both the Old and New Testament, but with a predilection for the Old Testament.300 Gentili also cited post-biblical Hebrew sources, canon law, and theological writings, in particular those of Augustine.301 Far from constituting a mere display of erudition, Gentili’s biblical references expressed his profound religious faith and were used instrumentally to detect state practice.302 For instance, when discussing whether subjects had the right to resist their monarch on the grounds of religion, Gentili relied on historical examples and religious sources that emphasized the virtue of patience.303 Each of the three books of the De Iure Belli ended with a prayer for peace.304 However, as a humanist, Gentili mainly relied on literature of legal, historical, and philosophical character.305 While he posited the primacy of divine law over other laws, in his system, divine law often faded in the concept of natural law expressing fundamental human dignity and values rather than specific theological principles. He also diverged from the theological tradition in many significant respects. He argued in favour of religious freedom and denied that religion was a just cause for waging war.306 He also denied that there could be a right to convert others (ius predicandi).307 While he admitted the possibility to wage war against atheist populations, because he considered religion to be

299 Diego Panizza, ‘Diversità Culturale e Diritto delle Genti: alle Origini del Paradigma Eurocentrico’, in vvaa, Alberico Gentili e il Mondo Extraeuropeo (Milano: Giuffrè 2001) 68, 81; Benedict Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo: gli Infedeli, gli Indiani d’America e la Sfida della Differenza’, in vvaa, Alberico Gentili e il Mondo Extraeuropeo (Milano: Giuffrè 2001) 11–47, 17. 300 Nussbaum, A Concise History of the Law of Nations, 97. 301 For a seminal study, see Shabtai Rosenne, ‘The Influence of Judaism on the Development of International Law: A Preliminary Assessment’ (1958) 5 Nederlands Tijdschrift Voor Inter­ nationaal Recht 119 (examining the influence of Hebraism on Gentili’s works on diplomatic law and the law of war). See also Leben, ‘Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe’, 81 (noting that Protestant theologians ‘made the study of the Bible a Christian duty’ and that their concept of a ‘New Israel’ required knowledge of the historical Israel, thus explaining Gentili’s references to Jewish philosophers and historians such as Philo of Alexandria and Flavius Josephus). 302 Gentili, De Iure Belli, Book II, Chapter 23, p. 276. 303 Id. Book I, Chapter 11, p. 50. 304 Id. Book i, Chapter 25, p. 127; Book ii, Chapter 24, p. 286; Book iii, Chapter 24, p. 433. 305 Nussbaum, A Concise History of the Law of Nations, 97. 306 Gentili, De Iure Belli, Book I, Chapter 9, pp. 38–39. 307 Id. Book i, Chapter 25, p. 123.

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something natural, he nonetheless viewed this as a mere theoretical scenario.308 In conclusion, Gentili contributed to the secularization of international law by adopting a distinctively legal approach to the subject. This is not to say that his argumentations were completely detached from theological influences. Actually, like his contemporaries, he also relied on religious examples and ­religious sources, albeit the proportion of such sources varied depending on the subject matter of his treatises.309 While this reliance on religious sources and examples is rare in contemporary international law, it was relatively common in early modern scholarship. Whereas Grotius constantly cited religious ­sources and arguments, systematically listing them before any other argument, Gentili was not as methodical as Grotius in this respect and did not rely on religious sources for every legal issue. While he professed his belief that ‘the words which are written in the Sacred Books … were uttered not merely for the Hebrews, but for all [humankind], all nations and for all times [and] are of a true nature’, and acknowledged that such sources had special weight in theory, in practice he did not necessarily confer such sources with more weight than others.310 Rather, he used the religious sources he felt relevant to the matter at hand, including Islamic sources.311 Given the importance of religion in the social life of the sixteenth century, it might have been problematic for scholars and even for scientists not to include some religious element in their writings. For most of Gentili contemporaries, the boundaries between the sacred and the secular and between the spiritual and the material was quite porous. Religion once present everywhere was gradually consigned to a separate sphere. However, a secular worldview emerged slowly as it was made possible by deeply religious thinkers, including Gentili. 4.8

Final Remarks

While Gentili was certainly one of the most renowned professors of law at Oxford and was highly regarded by his contemporaries, for long ‘no one had seriously challenged Hugo Grotius’s reputation as the founder of international law’.312 Yet, since Holland’s rediscovery of Gentili, authors have begun to­ 308 Gentili, De Iure Belli, Book I, Chapter 25, p. 125 and Chapter 9, p. 41. 309 Abbott, ‘Alberico Gentili and His Advocatio Hispanica’, 747 (noting that ‘not one in fifty of [Gentili’s] references in the Advocatio Hispanica is to the canon law’.) 310 Gentili, De Iure Belli, Book i, Chapter 1, p. 11. 311 Gentili, De Iure Belli, Book i, Chapter viii, pp. 36–37 (referring to Islamic sources). 312 Gause, ‘Gentili, Alberico’, 7.

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debate his importance and whether he should indeed be regarded as one of the founders of public international law. Most scholars would agree with Theodor Meron that Gentili was ‘an original, enlightened … and eloquent writer who has not been given as much credit as his works clearly deserve’.313 The question, however, is misplaced. On the one hand, eminent scholars have referred to the sixteenth century as the prehistory or mythical origin of international law, thus suggesting that international law only truly developed at a later stage.314 On the other hand, international law has never been the product of careful planning and systemic architecture. Rather, it has had a whimsical past and a cumulative formation. Therefore, the quest to identify the exact founder(s) of international law seems misplaced. There were many who contributed to the making of the field; and even if one admitted that a few scholars contributed more than others, they still relied on previous sources. The Solomonic proposal to acknowledge the existence of several founders of international law seems reasonable.315 Nonetheless, Gentili certainly played a crucial role in the foundation of the modern law of nations, contributing a number of concepts that we take for granted but without which we could not live in the world as we do. Gentili conceived of the law of nations (ius gentium) in the sense of a law between nations (ius inter gentes)316 governing the community of nations (societas gentium).317 He saw it as a mixture of both natural law and positive law. He identified its sources, adopting an inductive method based on practice. Mixing realism with idealism, he acknowledged the binding nature of international law, and the existence of a higher law within international law, that is, natural law (ius naturae) which we would now call ius cogens. Gentili contributed to the conceptualization of the law of nations as an autonomous discipline.318 While earlier scholars linked the law of nations to nonlegal disciplines such as moral philosophy, theology, and military law, Gentili considered the law of nations in proper legal terms. For Gentili, the law of nations was a true philosophy (vera philosophia), that is, an independent and comprehensive art and science that provided the legal principles governing the international order.319 He famously told theologians to mind their own

313 Meron, ‘Common Rights of Mankind in Gentili, Grotius and Suarez’, 116. 314 Koskenniemi, ‘International Law and Raison d’état’, 297. 315 Meron, ‘Common Rights of Mankind in Gentili, Grotius and Suarez’, 116. 316 Coquillette, ‘Legal Ideology and Incorporation I’, 55. 317 Van Der Molen, Alberico Gentili, 135. 318 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 83. 319 Gentili, De Legationibus, Book III, Chapter 9.

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business (silete theologi in munere alieno)320 and saw law and theology as distinct fields of study. He relied largely on legal, historical, and philosophical sources, supporting his legal tenets with historical examples which he drew from both ancient and contemporary historians. Nonetheless, Gentili’s theory was not completely secular. For most Renaissance scholars, the boundary between the sacred and the secular was porous. As was common for his time, Gentili relied on a variety of sources, including biblical and post-biblical sources, canon law, and theological writings. As a man of faith, he ended each of the three books of the De Iure Belli with a prayer for peace. While he generally supported freedom of religion and condemned religious wars, he admitted the possibility of waging war against atheist populations.321 In conclusion, although his legal arguments were not completely detached from theological influences, Gentili contributed to the gradual secularization of international law by adopting a distinctively legal approach to the subject. For Gentili, the international community (respublica omnium) included all the polities of the world.322 He saw the international community as a cosmo­ polis and human beings as citizens of the world. Far from conceiving of the community of nations as including the Christian polities alone, Gentili’s cosmopolitan vision extended to all nations, irrespective of size, power, ethnicity, culture or religion. Did he intend this cosmopolitan vision of international law to be a tool for domination and hegemony? Or rather, did he conceive of international law as an art of justice and a tool of ultimate resistance to hegemony? As conceptualized by this early modern scholar, a universal vision of international law could be both an instrument of oppression and of liberation, of dominion and of freedom. The notion of the commonwealth of humankind played a pivotal role for Gentili, justifying intervention in support of humanity and liberty against violations of the law of nations. According to Gentili, good neighbourhood imposes a duty of intervention, if our neighbour’s house is on fire. Likewise, one state can intervene to defend another. In fact, the application of this theory has led to diverging outcomes. In some cases, it has led to the acquisition of independence and the consolidation of democratic governments. In other cases, it has given rise to abuses.323

320 Gentili, De Iure Belli, Book i, Chapter 12, p. 57. 321 Id. Book I, Chapter 25, p. 125. 322 Wagner, ‘Francisco de Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth’, 581; Van Der Molen, Alberico Gentili, 115. 323 See Chapter 5 below.

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Gentili contributed to the development of diplomatic law, producing the first comprehensive legal treatise on the subject. The De Legationibus does not have a dogmatic character; rather it briefly narrates the history of diplomacy, develops the concept of diplomatic immunity, and enumerates the qualities which Gentili felt that every diplomat should have. When the Privy Council sought Gentili’s advice as to the treatment of Don Bernardino de Mendoza, the Spanish Ambassador who had participated in a plot against the Queen, Gentili developed the notion of diplomatic immunity. While the general expectation at the time was that the ambassador would be executed, the Privy Council followed Gentili’s advice. The third book of De Legationibus is of lasting interest, as it portrayed the ideal diplomat: a person of intellectual power, a good speaker, fluent in the language of the host country, with a wide knowledge of history, philosophy, and literature, who should be trustworthy and possess courage, temperance, and prudence, as well as combine affability and dignity.324 More generally, Gentili emphasized the importance of the peaceful settlement of international disputes. He examined both diplomatic and judicial dispute settlement mechanisms and highlighted the importance of arbitration among these. He stressed that ‘differences among sovereigns … [should] be decided by the law of nations’.325 He also considered the possibility of establishing judicial dispute settlement mechanisms between sovereign states upon their consent.326 In conclusion, Gentili’s work reflected the changing realities of his lifetime. 324 Gentili, De Legationibus, Book iii. 325 Schroeder, ‘Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations’, 185. 326 Van Der Molen, Alberico Gentili, 116.

Chapter 5

Gentili and the Law of War As from some stage or theatre the knight Saw played the tragedy of human state, Saw death, blood, murder, woe and horror strange, And the great acts of fortune, chance, and change.1

∵ 5.1 Introduction In the early modern period, war became a central feature of international relations.2 Wars of religion, the growth of the Ottoman Empire, and maritime expansion contributed to an almost permanent state of warfare3 and while wars of religion made the modern state, early modern states made war in order to survive and maintain stability.4 Gunpowder, firearms, and artillery changed the face of warfare in Europe.5 The military revolution of the sixteenth century perfected warfare but also increased its cost, scale, and length.6 The star fort (trace italienne), the shift from cavalry to infantry, and the tactical deployment of troops rather than frontal assault further altered the nature of warfare.7 1 Torquato Tasso Jerusalem Delivered, Edward Fairfax (transl) (London 1600); Torquato Tasso, Gerusalemme Liberata [1581] Luca Caretti (ed) (Milano: Mondadori 1983), xx, 73 (‘mira quasi in teatro od in agone,/l’aspra tragedia dello stato umano:/i vari assalti e ’l fero orror di morte,/e i gran giochi del caso e de la sorte’.) 2 Jeremy Black, European Warfare 1494–1660 (London: Routledge 2002) 427. 3 Randall Lesaffer, ‘The Classical Law of Nations (1500–1800)’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 408–440, 427. 4 Charles Tilly, The Formation of National States in Western Europe (Princeton: Princeton University Press 1975) 42. 5 Bert S. Hall, Weapons and Warfare in Renaissance Europe (Baltimore: Johns Hopkins University Press 1997). 6 Lesaffer, ‘The Classical Law of Nations (1500–1800)’ 427. On the military revolution in the sixteenth century, see Clifford J. Rogers (ed.) The Military Revolution Debate: Readings on the Military Transformation of Early Modern Europe (Boulder, CO: Westview Press 1995) 37 and David Eltis, The Military Revolution in Sixteenth Century Europe (London: Tauris 1995). 7 Geoffrey Parker, The Military Revolution: Military Innovation and the Rise of the West 1500– 1800, 2nd ed. (Cambridge: cup 1996) 24. © VALENTINA VADI, ���� | doi:10.1163/9789004426030_006

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While old medieval castles had tall, thin walls, new star forts had low, thick walls that could withstand repeated barrages of cannon fire8 and were almost impossible to conquer.9 Because the capture of a star fort required months if not years, carrying out sieges or defending one’s own fortresses from attack called for critical mass of both infantry and munitions.10 Such military developments therefore resulted in the rising costs of warfare. In turn, this fostered ‘the monopolization of war’ by states and determined ‘the shift towards stateto-state warfare’.11 Because of the need to recover the expenses from the enemy, plunder, looting, and disruption became systemic manifestations of warfare.12 Although war became a central feature of early modern international relations, and new military tactics and weapons required new rules of warfare, the law of war was not yet codified or settled. Old legal sources, such as the sixthcentury Corpus Iuris Civilis of Justinian, still the basic source for studies in civil law, were silent on the matter. As is known, the Corpus Iuris Civilis mainly regulated the relationship between private individuals rather than states. Moreover, it focused on ‘domestic law’, i.e. the law applicable within the confines of the Roman Empire among Roman citizens and included very few references to the law of nations (ius gentium), meant as the law governing the relations between Roman citizens and the rest of (the then known) world. Since the second half of the fourteenth century, medieval commentators— civil lawyers, canon lawyers, and even moral theologians—had filled this legal void, developing a doctrinal body of theories on the law of war. In the Middle Ages, the law of war constituted a legal field which would not easily fit into current international law categories, including elements of the law of nations, but also parts of domestic military, constitutional, tort, and criminal law13 as 8

Christopher Duffy, Siege Warfare: The Fortress in the Early Modern World 1494–1660 (London: Routledge 1979). 9 Parker, The Military Revolution, 8 (noting that ‘the Italian architect and humanist Leon Battista Alberti (1404–1472) was the first to divine the correct response to the bombard. His treatise, De Re Aedificatoria [written between 1440 and 1450 and first printed in 1485] … argued that defensive fortifications would be more effective if they were built in uneven lines … and even speculated that a star-shaped configuration might be best’.); Hall, Weap­ ons and Warfare in Renaissance Europe, 161–162 (noting the addition of the polygonal bastion in the projects of Francesco di Giorgio Martini (1439–1501) and Giuliano da Sangallo (1445–1516).) 10 Parker, The Military Revolution, 13–14. 11 Randall Lesaffer, ‘The Lore and Laws of Peace-Making in Early Modern and 19th-Century European Peace Treaties’, Tilburg Law School Research Paper No. 03/2018, 1–27, 6; Tilly, The Formation of National States in Western Europe, 42 (arguing that ‘war made the state and the state made war’.) 12 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 427. 13 Peter Haggenmacher, ‘Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inau-

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well as doctrines of moral theology.14 The medieval conception of the law of war focused on the question of whether a war could be just, and if so how. The medieval theologians investigated the circumstances that could justify war and make licit what would otherwise be illicit, such as combat, assault, and murder. Their prime concern was not that of regulating war; rather, they aimed at determining when Christians could carry out war without endangering their souls.15 Elaborated by Saint Augustine (ad 354–430) and Thomas Aquinas (1226– 74), and then shaped by theologians, canon lawyers, and civil lawyers in the late Middle Ages, the just war doctrine still played a role in the early modern period.16 The doctrine conceptualized war as ‘an instrument of justice’.17 Scholars posited that a war could be considered just when it met three necessary criteria: (1) if belligerents waged war under the authority of a sovereign (aucto­ ritas principis); (2) for a ‘just cause’ (iusta causa); (3) with a ‘right intention’ (recta intentio).18 In a nutshell, the just war theory established the conceptual pillars of the ius ad bellum, determining who could legitimately wage war, for what reasons, and with what aims. The first criterion, the authority to fight a war (auctoritas), aimed at defining who could legitimately wage war. Under the just war theory, only the sovereigns and soldiers under their command could wage a just war. For Aquinas, sovereigns had the right to protect their people against internal strife and the right to protect the commonwealth against external enemies.19 Consequently, sovereigns and their soldiers who killed enemies in a just war were not guilty of murder.20 Instead, both Saint Augustine and Thomas Aquinas ‘denied the use of physical violence to private persons’.21 For Thomas Aquinas, private ­individuals who had suffered a wrong might not declare war because they could access justice through domestic legal means. For instance, they could file

14 15 16 17 18 19 20 21

gural Lecture’ in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.) Hugo Grotius and International Relations (Oxford: Clarendon Press 1990) 133–176, 158. Peter Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili. Considerazioni Sparse di un “Groziano”’, in VVAA, Il Diritto della Guerra e della Pace di Alberico Gentili (Milano: Giuffrè 1995) 24. Id. 24. Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 428; Jost Delbrück and Klaus Dicke, ‘The Christian Peace Ethic and the Doctrine of Just War from the Point of View of International Law’ (1985) 28 German yil 194–208, 196. Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 428. G.I.A.D. Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, in Bull, Kingsbury, and Roberts (eds.) Hugo Grotius and International Relations, 177–207, 181. Frederick H. Russell, The Just War in the Middle Ages (Cambridge: cup 1975) 268. Id. 69. Id. 18.

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a claim before domestic courts.22 Analogously, the Tree of Battles, a fifteenthcentury treatise on war, stated that individuals could not seek justice from those who wronged them; rather, the sovereign should carry out justice on their behalf.23 Therefore, the just war theory excluded that private parties could wage just wars, thus condemning insurgents, bandits, and pirates.24 The second criterion required the existence of a ‘just cause’ (iusta causa) for waging war. Under the just war theory, a sovereign could wage war only after receiving an injury (iusta bella ulciscuntur iniurias).25 In this manner, just wars were tools of self-defence, aimed at avenging injuries, punishing the enemy, and promoting justice.26 Accordingly, ‘wars and battles waged for a just cause [were] but the proper execution of justice, to bestow right where it belong[ed]’.27 For instance, just wars could be waged to recover lost goods, to repel an enemy attack, and to avenge past injuries.28 In medieval times, licit wars (bella iustis­ sima) could be waged against infidels and heretics as enemies of the faith (ini­ mici sanctae fidei).29 The third criterion in establishing a just war was that the intention of the combatants should be ‘right’ (recta intentio). This element referred to the true aim, state of mind, and disposition of the combatants.30 Soldiers should not fight in search of violence, profit, or power (libido dominandi).31 Rather, they should be motivated by obedience, piety, and the pursuit of justice. The condition of recta intentio indirectly required a certain moderation in the conduct of war.32 Under the just war theory, if a war were ‘just’, then it would legitimize acts that would otherwise have been criminal, such as wounding, taking prisoners, and killing.33 If a war were ‘unjust’, such acts would remain unlawful. Certain 22 Russell, The Just War in the Middle Ages, 268. 23 Honoré Bonet, The Tree of Battles [L’Arbre de Batailles, 1431] G.W. Coopland (trans) (Liverpool: Liverpool University Press 1949) 129. 24 Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, 182. 25 Russell, The Just War in the Middle Ages, 18. 26 Kate Langdon Forhan, The Political Theory of Christine de Pizan (Aldershot: Ashgate 2002) 137. 27 Christine de Pizan, The Book of Deeds of Arms and of Chivalry [Le Livre des Faits d’Armes et de Chevalerie, 1410] Sumner Willard (trans) (University Park, Pa.: Pennsylvania State University Press 1999) 14. 28 Russell, The Just War in the Middle Ages, 62–64; Bonet, The Tree of Battles, 125 (‘war … seeks nothing other than set wrong right’.) 29 Russell, The Just War in the Middle Ages, 199–201. 30 Langdon Forhan, The Political Theory of Christine de Pizan, 138. 31 Russell, The Just War in the Middle Ages, 16. 32 Langdon Forhan, The Political Theory of Christine de Pizan, 138. 33 Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, 181–182.

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acts were considered lawful or unlawful according to whether the war was itself just or unjust: ‘The conditions under which the act was performed, rather than the act itself determined its legal status’.34 Under the just war theory, either a war was ‘just’ or it was ‘unjust’; there was no middle ground, namely a war could not be ‘just’ on both sides.35 Only one belligerent had a right to wage war and only this belligerent profited from the ius in bello and enjoyed the rights of war (iura belli) such as the right to loot and conquer.36 Consequently, provided that a country was waging a just war, it could wage it ‘by whatever means were necessary to gain victory’.37 Under the just war theory, there was only limited reflection on the lawfulness of deceit or the use of certain weapons in the conduct of warfare.38 Medieval scholars saw the outcome of a war— victory or defeat—as expressing God’s will (arbitrium Dei).39 Medieval scholars dedicating autonomous works to the law of war included Giovanni da Legnano, Honoré Bonet, and Christine de Pizan.40 An Italian canonist and politician, Giovanni da Legnano (c. 1320–1383) was the first to systematize the legal questions arising from war in a single work. His 1360 De Bello (On War) was the first attempt to reconcile contemporary practice and legal principles, updating the tenets of Roman law in order to reflect the political and military changes taking place in fourteenth-century Europe.41 Relying on Da Legnano and a range of historical, literary, and philosophical sources, the works of Honoré Bonet (c. 1340–c.1410) and Christine de Pizan (1364–c.1430) contributed to the vernacularization of the law of war. Written in French, their treatises circulated widely among policy-makers and intellectuals across Europe. Bonet and de Pizan contributed to the field by making key issues of the law of war and military law understandable to a wide audience. Both authors explained complex topics in a clear and accessible way. Bonet’s L’Arbre de Ba­ tailles (The Tree of Battles) had a notable structure: each chapter started with a question, proceeded with a short discussion, and concluded.42 De Pizan’s Livre des Faits d’Armes et de Chevalerie (The Book of Deeds of Arms and of Chivalry) 34 Russell, The Just War in the Middle Ages, 155. 35 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 428. 36 Id. 37 Russell, The Just War in the Middle Ages, 155. 38 Id. 234–243. 39 Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, 184. 40 Peter Haggenmacher, Grotius et la Doctrine de la Guerre Juste (Paris: Presses Universitaires de France 1983) 39–40. 41 Giovanni da Legnano, Tractatus De Bello, de Represaliis et de Duello, Thomas E. Holland (ed) (Oxford: Clarendon Press 1917). 42 Honoré Bonet, L’Arbre des Batailles, Ernst Nys (ed) (Bruxelles: Muquardt 1883).

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was written in the form of a dialogue and detailed strategy, tactics, and technology of medieval warfare while also addressing key issues of the law of war.43 Of a more practical content than Bonet’s work, it was not only impactful in its author’s time, but even more in early Renaissance England.44 Da Legnano, Bonet, and de Pizan did not question the legitimacy of war if waged for a just cause, and thus investigated what reasons could justify recourse to war (ius ad bellum). Nonetheless, they paid little if any attention to the manner in which war was to be waged (ius in bello).45 They identified very few rules on the matter, preventing priests from waging war, and warning that war should not be waged against women and children.46 Medieval scholars wrote very little–if anything–that would moderate warfare. While medieval war theorists argued that only the Pope could determine whether a belligerent state was waging a ‘just war’, or command Christian states to wage a holy war against heretics and lead crusades, as well as support colonization processes, since the Reformation, a part of Christendom contested such authority.47 By the mid-sixteenth century the Pope had lost the last remnants of his universal political power ‘to pass judgment on the justification of the claims put forward by the belligerents’.48 Therefore, the just war theory became ‘an empty box’ with no ‘real substance’.49 Not only was the law of war applied to both belligerents, but no references were made to the responsibility for the war in the subsequent peace treaties.50 The wars of religion also raised the fundamental questions as to whether war could be objectively ‘just’ on both sides, and how to settle international disputes. More fundamentally, in an increasingly polycentric world, the very legitimacy of holy wars, i.e., wars waged for cultural and/or religious reasons, started to be questioned. Finally, the authority of theologians to contribute to the law of war was also called into question.51 43

Christine de Pizan, The Book of Deeds of Arms and of Chivalry [Livre des Faits d’Armes et de Chevalerie 1410] Charity Cannon Willard (ed) and Sumner Willard (trans) (University Park, Pennsylvania: Pennsylvania State University Press 1999). 44 Christine de Pizan, The Book of Feats of Arms and of Chivalry, William Caxton (transl.) A. Byles (ed) [1490] (London: oup 1932). Queen Elizabeth i had a copy of the book in her court library. 45 Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, 184. 46 Id. 47 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 24. 48 Randall H. Lesaffer, ‘The Grotian Tradition Revisited: Change and Continuity in the History of International Law’ (2003) 73 British yil 114 and 116. 49 Id. 116. 50 Id. 51 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 25.

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Against this background, Gentili’s masterpiece, De Iure Belli (On the Law of War)52 constituted a seminal contribution to the development of the law of war. Gentili’s response to the political, religious, and cultural turmoil of the Iron century was to elaborate an original theory of the law of war. The treatise addressed a number of topical issues in a profoundly innovative way which reflected the new emerging geopolitical order. Gentili’s De Iure Belli was the first complete theory on the law of war in its classical form as an inter-state phenomenon. It constituted a watershed by overcoming the medieval concept of the just war and delegitimizing religious wars.53 This chapter aims to review Gentili’s contribution to the law of war in detail. Accordingly, it addresses five key questions. First, what are the core tenets in the Gentilian theory of war? Second, how did Gentili conceptualize war? Third, how did Gentili address the issue of the justice of war? Fourth, how did his approach to the just war theory influence his stance on religious wars, preventive wars, and proportionality in the conduct of warfare? Fifth, was his theory on the balance of power an expression of early modern imperialism or a tool against hegemony? Drawing on a broad range of theoretical traditions, including the history and theory of international law, international relations, and political theory, the chapter critically examines the Gentilian theory, situates it in its historical context, and relates it to the works of Gentili’s predecessors, peers, and subsequent scholars, highlighting its originality in doing so. By discussing the significant and long-lasting contributions of the Gentilian theory of the law of war to the development of international law, the chapter engages with the broader debate on the legality of war, preventive war, humanitarian intervention, and the balance of power in international law. The chapter proceeds as follows. First, it explores the main features of Gentili’s treatise De Iure Belli, which displays Gentili’s theory on the law of war. It examines his definition of war, how he addressed the issue of the justice of war, his important contribution to neutrality law, his key tripartition of the law of war in ius ad bellum, ius in bello, and ius post bellum, and his ­humanization of the law of war. Second, the chapter illuminates Gentili’s conceptualization of the right of freedom of religion as a natural right, and his c­ ondemnation

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Alberico Gentili, De Iure Belli Libri Tres, John C. Rolfe (trans) (Oxford: Clarendon Press 1933). For more recent translations from Latin into modern languages, see Alberico Gentili, Il Diritto di Guerra, Diego Quaglioni (intr.) Giuliano Marchetto and Christian Zendri (eds) Pietro Nencini (trans) (Milan: Giuffrè 2008); Alberico Gentili, Le Trois Livres sur le Droit de la Guerre d’Alberico Gentili, Dominique Gaurier (ed. and trans.) (Limoges: Presses Universitaires de Limoges 2011). Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 25–26.

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of religious wars. Third, the chapter illustrates Gentili’s conceptualization of preventive war as a tool of self-defence. Fourth, it highlights relevant aspects of the Gentilian theory of the balance of power. After critically assessing the promises and pitfalls of the Gentilian theory of the law of war, the chapter concludes by highlighting the originality and long-lasting contribution of the Gentilian theory of the law of war to international law. 5.2

De Iure Belli

Gentili’s theorization of the law of war is the most renowned aspect of his work. Gentili’s De Iure Belli is a masterpiece of early modern literature of political and legal thought.54 It addresses a number of key questions such as: What is war? Who can legitimately wage it? When should it be waged? Against whom should it be waged? How is it governed? In addressing these questions, Gentili’s treatise greatly contributed to the development of the law of war as an important subfield of international law.55 Gentili’s De Iure Belli was the first systematic legal treatise distinguishing the law of war from other fields of study. Rather than conforming to the consolidated genre of the mirrors for princes (specula principum), which he used for the third book of his De Legationibus, Gentili produced a truly legal treatise. Earlier scholars including Giovanni da Legnano (ca. 1320–1383), Pietrino Belli (1502–1575), and Balthasar de Ayala (1548–1584) wrote mirrors for princes,56 that is, political writings instructing rulers on certain rules of behaviour.57 Such works were devised to constitute ideal codes of conduct for leaders and combined the law of war with domestic military, administrative, and criminal law as well as with political, moral, historical, philosophical, logistic, and military considerations.58 Conversely, Gentili adopted a distinctly legal perspective in his work, abandoning moralizing stances and leaving aside issues of military law. Gentili wrote a legal treatise that distinguished the law of war from other 54 55 56 57

58

Stefano Colavecchia, ‘Alberico Gentili: in Margine ad Alcuni Studi Recenti e Nuove Proposte di Ricerca’ (2014) 98 Nuova Rivista Storica 383–392. Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 19. Id. 36. See Dominique Gaurier, ‘Pietrino Belli, un Précurseur?’, in Rinaldo Comba and Gian Savino Pene Vidari (eds.) Un Giurista tra Principi e Sovrani—Pietrino Belli a 500 Anni dalla Nascita (Alba: Fondazione Ferrero 2004) 19–29, 20 (noting that Belli’s De Re Militari et Bello Tractatus constitutes a ‘perfect manual’ or ‘ideal vade mecum’ for military tribunals). Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili, 36.

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disciplines, and in doing so he provided ‘a clear modern conception of the subject’.59 More fundamentally, Gentili adopted an international legal perspective to the governance of war. While Belli and Ayala ‘treated war from a variety of perspectives, among which the legal and in particular the international perspective [was] neither the only, nor necessarily the main one’,60 Gentili adopted a distinctly international law approach to war.61 He neatly distinguished between the ‘internal’ domestic order and the ‘external’ international order, and identified the law of war as belonging to the latter.62 While Belli and Ayala rarely referred to the law of nations (ius gentium), Gentili conceptualized the law of war as a specific subfield of international law.63 Therefore, Gentili delimitated the scope of his enquiry in an original fashion, emancipating the law of war from other fields of study and adopting a distinctly international legal perspective.64 Earlier works on the law of war did not delineate their field of inquiry in such a clear fashion. For instance, Pietrino Belli’s De Re Militari et Bello Tractatus (A Treatise on Military Matters and Warfare)65 did not distinguish the law of war from military law.66 Rather, it included many digressions on administrative military matters.67 Analogously, in his 1582 De Iure Belli et Officiis Bellicis et Disciplina militare (Three Books On the Law of War and on the Duties Connected with War and on Military Discipline),68 Balthasar de Ayala included military law elements in his legal theory of war.69 Instead, for Gentili, 59

Diego Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli. The Great Debate between “Theological” and “Humanist” Perspectives from Vitoria to Grotius’, Institute for International Law & Justice Working Paper 2005/15, 4. 60 Carlo Focarelli, ‘Jus Gentium in Alberico Gentili: A Call for Prudence and the Common Sense of Humanity’ (2017) 2 Rivista di Diritto Internazionale 329–355, 333. 61 Id. 334–335. 62 Id. 335. 63 Gentili, De Iure Belli, Book iii, Chapter 17, p. 385 (referring to the law of nations). 64 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 36. 65 Pietro Belli, De Re Militari et Bello Tractatus (Venice: Francesco Portonari 1563). 66 Rodolfo Venditti, ‘Il Diritto Penale Militare nel Pensiero di Pietrino Belli’, in Rinaldo Comba and Gian Savino Pene Vidari (eds.) Un Giurista tra Principi e Sovrani—Pietrino Belli a 500 Anni dalla Nascita (Alba: Fondazione Ferrero 2004) 41–52, 43. 67 See e.g. Pierino Belli, A Treatise on Military Matters and Warfare [De Re Militari et Bello tractatus] (Oxford: Clarendon Press 1936) Part i, Chapter vi, p. 11 (discussing who may render military service), Chapter x, p. 19 (discussing the various branches of the army). 68 Balthazaris Ayalae, De Iure Belli et Officiis Bellicis et Disciplina Militari Libri iii (Duaci: Ex officina Ioannis Bogardi 1582); Balthazaris Ayalae, De Jure et Officiis Bellicis et Disciplina Militari Libri iii, John Westlake (ed), John Pawley Bate (transl) (Oxford: oup 1912) Book iii (discussing matters of military law). 69 Wilhelm Grewe, The Epochs of International Law [Epochen Der Völkerrechtsgeschichte, 1944], Michael Byers (trans) (Berlin/New York: De Gruyter 2000) 208.

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the law of war was not part of domestic law (ius proprium); rather, it was part and parcel of the law of nations.70 Therefore, Gentili separated the law of war from military law, which concerned the domestic regulation and organization of the armed forces of a given state.71 While medieval commentators did not distinguish the law of war from military law, Gentili clearly identified the law of war as a component of the law of nations and distinguished the latter from the domestic law.72 Gentili provided an analytical framework for the law of war that is still broadly used today. His De Iure Belli is composed of three books. The first book focuses on the law relating to the right to go to war, or the ius ad bellum. The second book examines the law governing the conduct of war, the ius in bello. The third book explores the laws governing the conclusion of war and the restoration of peace, the ius post bellum. This tripartition sensibly differed from previous legal framing. For instance, Belli adopted a much less coherent structure for his treatise on military matters and warfare.73 Divided into eleven parts, Belli’s De Re Militari Et Bello Tractatus covered key aspects of the law of war, but the analysis was fragmented and mixed both military matters and public law. Moreover, by giving a detailed account of the cases which Belli had adjudicated when he held the office of auditor, his treatise combined theory and practice. Gentili’s De Iure Belli also discussed cases, but had a more theoretical, coherent, and systemic approach to the law of war. Gentili conceived of the three different dimensions of the law of war (ius ad bellum, ius in bello, and ius post bellum) as a continuum. In fact, for Gentili, in every phase of the law of war, the parties ought to observe justice and aim at restoring peace and thus avoid doing anything that would thwart that aim.74 With regard to the ius ad bellum, for instance Gentili stated that wars should be announced and declared.75 If a war was not declared when it ought to be declared, Gentili argued, it would breach the law of war because it would be ‘savage, deadly, and destructive’. Not only would such a war be unjust, but it would also prevent any meaningful peace and would instead lead to extermination.76 70 Gentili, De Iure Belli, Book i, Chapter 1, pp. 3–5; Giuliano Marchetto, ‘Alberico Gentili e la Tradizione: la Letteratura Consulente come Fonte dello Ius Belli’, in Alberico Gentili— L’Eredità di un Classico della Teoria Internazionale Moderna (Milano: Giuffrè 2008) 75–93, 78. 71 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 431. 72 Gentili, De Iure Belli, Book i, Chapter 1, pp. 4–5; Christian Zendri, ‘Fra Novità e Tradizione. Alberico Gentili e la Costruzione di un Ius Belli’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 267–293, 275. 73 See generally Belli, A Treatise on Military Matters and Warfare. 74 Gentili, De Iure Belli, Book ii, Chapter 1, p. 131. 75 Id. 76 Id. Chapter 2, p. 140.

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With regard to the ius in bello, for Gentili, wars ought to be waged with arms, not with poisons.77 The use of poisons against the enemy was a violation of the law of nature.78 Commenting on the Biblical episode of Judith’s poisoning of Holofernes, Gentili praised the sentiment that inspired her brave action, namely, the love that Judith had for her people. However, he condemned the mode of her action; for while it ensured the safety of her people in the short term, it also endangered their safety in the long term. Gentili argued that if the law of nations approved these despicable practices, nothing would be left to protect our safety. Rather, life would be exposed to treachery and plots. He concluded that even in the conduct of war, the law of nature required not to do to others what one would not wish to be done to oneself.79 Finally, with regard to the ius post bellum, for Gentili, peace treaties should not impose harsh and/ or dishonourable conditions which could lead to further conflicts; rather, they should include just provisions to encourage peace. Whereas earlier commentators considered war as part of the natural order of the universe80 and of natural law, Gentili considered it to be part of the law of nations. While others considered war to be of a perpetual character (bella vigebunt usque in finem saeculorum),81 Gentili considered war as an accidental phenomenon. For Gentili, human beings are born ‘for union and not for discord’.82 While Bonet considered that from the disposition of human nature there could be but ‘little accord in this world’ and that ‘by natural inclination or by the planets human beings are tempted to make war’,83 for Gentili, peoples do not wage war by nature; rather, they wage war because some sovereigns have ‘an unbounded thirst for power and riches.84 He nonetheless condemned lust for power and dominion as a ‘form of brigandage on a large scale’ and an illegitimate reason for war.85 While he condemned those sovereigns who waged war when they had suffered no injury, he also noted that sovereigns 77 Gentili, De Iure Belli, Book II, Chapter 6, p. 156. 78 Id. p. 155. 79 Id. Chapter 8, pp. 168–169. 80 Giovanni da Legnano, Tractatus De Bello, de Represaliis et de Duello, Thomas E. Holland (ed) (Oxford: Clarendon Press 1917) c. 10, 85–90. 81 Belli, A Treatise on Military Matters and Warfare, Part i, Chapter i, p. 3 (noting that the ‘beginnings [of war] are almost coincident with those of [humankind]’ and that ‘there will be no end to this evil until the world itself shall pass away’.); Diego Quaglioni, ‘Pour une Histoire du Droit de Guerre au Début de l’âge Moderne. Bodin, Gentili, Grotius’ (2010) 10 Laboratoire Italien 1–13, 4 (referring to Belli). 82 Gentili, De Iure Belli, Book i, Chapter 5, p. 28. 83 Bonet, The Tree of Battles, 119. 84 Gentili, De Iure Belli, Book i, Chapter 7, p. 53. 85 Id.

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‘­always allege[d] some plausible reason for beginning their wars; although frequently, they ha[d] no reason at all’.86 Like Bonet and Belli, Gentili considered peace as the ultimate aim of war (belli finis est pax).87 Due to the lack of a permanent international court or tribunal during the Renaissance period, war emerged as the ‘court of last resort’ to settle disputes among states.88 For Gentili, international disputes ought to be settled in accordance with the law of nations and a sovereign should not resort to war if a peaceful dispute settlement mechanism was available, such as arbitration.89 In order to illuminate the Gentilian theory on the law of war, this section examines and critically assesses the principal features of the De Iure Belli: Gentili’s definition of war, the causes of war, and neutrality, as well as elements of the ius in bello and the ius post bellum. The section shows that the Gentilian theory of the law of war constituted a sophisticated system that influenced the law of nations of the time and remains relevant today. 5.2.1 Defining War Gentili considered the law of war (ius belli) as a part of the law of nations (ius gentium).90 He then defined war as a legitimate conflict between nations (bel­ lum est publicorum armorum iusta contentio).91 His definition had three essential elements: (1) a public contest between sovereigns; (2) by force of arms; (3) conducted in conformity with the law. This section situates the Gentilian definition of war in its legal historical context and shows its complexity: while such definition partially followed the scholastic tradition, at the same time it was also innovative in a number of ways. The first two elements—that war should be between sovereign states and waged by public armies—reflected traditional tenets of the scholastic tradition. Only states can wage wars (ius belligerandi), and they can wage wars only against other states.92 Thomas Aquinas first formulated the doctrine that wars 86 Gentili, De Iure Belli, Book I, Chapter 7, p. 53. 87 Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter 1, p. 59 (noting that ‘in war, there is no other objective than peace, and there is no peace apart from justice’.); Bonet, The Tree of Battles, 125 (‘war … seeks … to turn dissension to peace’.); Gentili, De Iure Belli, Book i, Chapter v, p. 29 (‘the purpose of war is peace’.) 88 Belli, A Treatise on Military Matters and Warfare, Part i, Chapter v, p. 11; Gentili, De Iure Belli, Book i, Chapter iii, p. 15 (‘the necessity which justifies war arises when one is driven to arms as the last resort’.) 89 Gentili, De Iure Belli, Book i, Chapter iii, pp. 15–16. 90 Id. Book I, Chapter 1, p. 5 (‘questions of war ought to be settled in accordance with the law of nations’.) 91 Id. Book I, Chapter 2, p. 12. 92 Id.; Belli, A Treatise on Military Matters and Warfare, Part i, Chapter v, p. 6.

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should be public in his Summa Theologica, where he argued that ‘it is not the business of … private individual[s] to declare war, because [they] can seek for redress of [their] rights from [a] tribunal’.93 Instead, the absence of an international court justified war among states in certain circumstances. Similarly, Gentili argued that as non-state actors could seek and obtain justice by filing claims before the domestic tribunals, they should file such claims rather than resort to violence.94 Gentili’s emphasis on the public nature of war echoed similar positions of Ayala and Belli.95 This conceptualization of war as publicorum armorum iusta contentio had two constraining effects. First, it restricted the scope of lawful war to public war, thus ‘delegitimizing the concept of private war’.96 If an individual had a grievance, he or she should seek redress before a tribunal or the intervention of the relevant public authorities.97 For Gentili, war was a matter of public authority. Therefore, for Gentili, neither brigands nor pirates could wage war. Second, such a concept of war limited ‘the circle of those wielding public authority who might legitimately undertake a war’.98 ‘In theory, at least, the smaller the circle, the less war was likely’.99 Only those authorized or led by a sovereign could fight a legitimate war. Nonetheless, there was a dark side to the conceptualization of war as publi­ corum armorum iusta contentio: it implied that the law of nations would not apply to bandits, insurgents, and pirates.100 Gentili considered pirates to be the common enemies of humankind.101 How could the law of nations extend to 93 Thomas Aquinas, Summa Theologica (New York: Benziger Brs 1947) pt 2 question 40. 94 Gentili, De Iure Belli, Book i, Chapter iii, p. 15. 95 Belli, A Treatise on Military Matters and Warfare, Part i, Chapter v, p. 10; Giorgio Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes: il Ruolo di Alberico Gentili agli Albori del Diritto Internazionale Moderno’ in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giu­ridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 95–96, footnote 36; Alain Wijffels, ‘Early Modern Scholarship on International Law’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 44 (noting Ayala’s experience as a military judge in the Spanish armies during the Dutch revolt against Spain.) 96 Ileana Porras, ‘Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce, and War in Hugo Grotius’ De Iure Praedae—the Law of Prize and Booty, or on How to Distinguish Merchants from Pirates’ (2005–2006) 31 Brooklyn jil 741–804, 776. 97 Gentili, De Iure Belli, Book i, Chapter iii, p. 20. 98 Porras, ‘Constructing International Law in the East Indian Seas’, 776. 99 Id. 100 Gentili, De Iure Belli, Book i, Chapter iv, p. 22; Belli, A Treatise on Military Matters and Warfare, Part i, Chapter v, p. 11. 101 Gentili, De Iure Belli, Book iii, Chapter xxiii, p. 423.

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those who had withdrawn from the same? For Gentili, because pirates scorned the law of nations, they could find no protection in that law. Therefore, the laws of war did not apply to them.102 No law remained in force to govern the war against pirates. The monopolization of violence facilitated the emergence and consolidation of nation states.103 The third element—that war should be conducted in conformity with the law—went beyond the classical theory of the just war. Focused on the justice of resorting to war, the scholastic tradition required war to be public and to be ‘just’: for the scholastics, not only should war be public, but it also ought to have a just cause (iusta causa) and be waged with a just intention (iusta intentio).104 Proponents of the ‘just war’ approach saw war as a form of punishment, and considered war combatants to be in ‘a morally asymmetrical relationship’.105 According to the classical just war theory, if the belligerent with a just cause and the right intention had a range of rights, the other belligerent could have none, due to the injustice of his/her cause.106 Instead, Gentili endorsed what Vattel would later call a ‘regular war’ theory. Instead of focusing on the question of whether or not the intention of the belligerents was just, Gentili focused on whether or not they had a just cause to resort to force and on the conduct of the belligerents in war.107 Instead of seeing war as a punishment, Gentili conceptualized it as a trial or a duel to settle disputes among sovereign states and considered the combatants to be in a symmetrical relationship of equality.108 May a war be waged with justice on both sides? Expressly relying on the work of the legal humanists Raphaël Fulgosius (1367–1427) and Andrea Alciato 102 Gentili, De Iure Belli, Book i, Chapter iv, p. 23. 103 Janice E. Thomson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterrito­ rial Violence in Early Modern Europe (Princeton, NJ: Princeton University Press 1994) (discussing the historical processes through which states achieved a monopoly on violence); Amedeo Policante, The Pirate Myth—Genealogies of an Imperial Concept (London: Routledge 2015) xiii (arguing that the monopolization of violence by states played a role in ‘imperial rhetoric’.). See Chapter 7 below. 104 Laurens van Apeldoorn, ‘Just War Theory’ in Yih-Jye Hwang and Lucie Cerna (eds) Global Challenges: Peace and War (Leiden: Brill 2013) 53–64, 54; Delbrück and Dicke, ‘The Christian Peace Ethic and the Doctrine of Just War from the Point of View of International Law’, 196. 105 Van Apeldoorn, ‘Just War Theory’, 56. 106 Gentili, De Iure Belli, Book i, Chapter vi, p. 31 (referring to Baldus’ opinion). 107 Id. Book i, Chapter ii, p. 13 (‘the war must be just and all the acts of the war must be just’); See also Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter i, p. 60 (stating that even when war is declared on just grounds, if it is waged ruthlessy … it thereby becomes unlawful’.) 108 Gentili, De Iure Belli, Book i, Chapter 3, p. 15 and Chapter 6, pp. 31 and 33.

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(1492–1550), Gentili acknowledged that in almost any dispute, both sides maintain that they are pursuing a just cause.109 For Fulgosius and Alciato, there might be cases in which both parties were right. Gentili shared this position, acknowledging three different scenarios: (1) the just fight each other; (2) the unjust fight each other; and (3) the just fight the unjust. He also added that there could be cases in which there is reasonable doubt as to the justice of the cause.110 Because of the weakness of human nature—Gentili argued—human beings are unable to see clearly and are not aware of the purest and truest form of justice, which is an absolute and objective justice. Rather, they can only aim at an imperfect justice as it appears from their standpoint.111 Therefore, Gentili argued that ‘if it is evident that one party is contending without any adequate reason, that party is surely practicing brigandage and not waging war’ and the injustice of a party authorizes the other party to wage a just war.112 However, if there was doubt about which side has a just cause, and each side aimed at justice, both sides could be assumed to be ‘just’. There may be cases in which ‘the war is just on one side, but on the other is yet more just’.113 Gentili’s conceptualization of war as a duel ‘thoroughly subverted the theological tradition of the just war’ because it implied the possibility that war could be just on both sides and granted juridical equality to the warring parties.114 Because it might be practically impossible to ascertain the justness of the cause and there might be cases in which both belligerents had one or more just causes to wage war, accordingly, each side had ‘an equal status with corresponding rights and duties’.115 Therefore, for Gentili, the law of war applied to both sides.116 Accordingly, both sides should conduct the hostilities in accordance with the law of war.117 The theologians a priori ruled out the concept of the bilateral justice of war ‘because it involved a logical contradiction’.118 They assumed that ‘right and

109 Gentili, De Iure Belli, Book i, Chapter vi, p. 31. 110 Id. 111 Id. 112 Id. pp. 31–32. 113 Id. p. 33. 114 Diego Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli: The Great Debate between Theological and Humanist Perspectives from Vitoria to Grotius’, in Pierre-Marie Dupuy and Vincent Chetail (eds) The Roots of International Law (Leiden: Brill 2014) 211–247, 218. 115 Van Apeldoorn, ‘Just War Theory’, 57. 116 Gentili, De Iure Belli, Book i, Chapter vi, p. 31. 117 Grewe, The Epochs of International Law, 210. 118 Id.

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wrong … were objectively on one side only’.119 The theologians Diego Covarrubias (1512–1577), Domingo de Soto (1494–1560), and Francisco de Vitoria (1483– 1546) admitted that a war could be apparently just on both sides, for instance when one of the parties believed they were waging a just war due to subjective justifiable ignorance (ignorantia invincibilis).120 In such cases, Vitoria argued, good faith explained the defence of an unjust cause.121 Paradoxically, Vitoria admitted the possible existence of a subjective bilateral justice of war for moderating the liability of Indigenous peoples for waging an unjust war against the Spaniards. For Vitoria, a justified fear of the Spaniards, who were armed, different, and militarily strong could lead Indigenous peoples to wage war against the Spaniards.122 Nonetheless, for Vitoria, this was not a case of legitimate selfdefence; such ‘invincible ignorance’ did not justify war; rather, it made it only apparently just on both sides.123 Moreover, this special case confirmed the general rule that, according to the medieval notion of just war, war could be just on one side only.124 According to Vitoria, ‘if … both parties ha[d] right and justice on their side, they [could not] lawfully fight each other’.125 Analogously, Hugo Grotius (1583–1645) would later hold the same basic position that ‘[a] war cannot be just on both sides’.126 Rather, for the scholastics and Grotius, the only just cause for waging war was when harm had been inflicted.127 Therefore, they envisaged just war as a defence and a punishment for the wrongdoing (iniuria) of another state.128 As a consequence, defensive wars were just; offensive wars unjust.129 Instead, Gentili held that it is impossible for human beings to know pure, true, and supreme justice, that is, divine justice.130 The Gentilian concept of the bilateral justice of war related to the question of ascertaining the justice of 119 Grewe, The Epochs of International Law, 210. 120 Gentili, De Iure Belli, Book i, Chapter vi, p. 31; Dominici Soto, De Iustitia et Iure (Lugduni: apud Gulielmum Rovillium 1559) Book v, question i, article 7. 121 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 29. 122 Giuseppe Tosi, ‘La Teoria della Guerra Giusta in Francisco de Vitoria e il Dibattito sulla Conquista’ (2006) Jura Gentium 1–17, 4. 123 Id. 124 Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, 188. 125 Francisco de Vitoria, De Iure Belli, in Francisco de Vitoria, Political Writings, Anthony Pagden and Jeremy Lawrance (eds) (Cambridge: cup 1991) 312–313. 126 Hugo Grotius, De Iure Belli ac Pacis, J.B. Scott (introduction), F.W. Kelsey (trans) (Oxford: oup 1925) Book ii, Chapter xxiii, Sect. 13. 127 Vitoria, De Iure Belli, p. 303. 128 Id. 129 Venditti, ‘Il Diritto Penale Militare nel Pensiero di Pietrino Belli’, 45. 130 Gentili, De Iure Belli, Book i, Chapter vi, p. 31.

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war from an international law perspective. In medieval times, the Pope could ascertain such justice. In the early modern period, however, papal political authority became contested. In the absence of a permanent international tribunal, ascertaining the justice of a given war thus became an elusive endeavour. In some cases, Gentili argued, it was impossible for human beings to judge which belligerent had a legitimate cause for war. If, in theory, the distinction between just and unjust causes of war could be clearly determined, in practice, the assessment remained fraught with difficulty. It could be doubtful on which side justice rested. Legal pretexts could be easily found. While the Spanish theologians believed that reason (recta ratio) could always ascertain the truth, the objective cause of war, and the intention of states, for Gentili, the weakness of human nature could make such elements difficult to establish.131 Therefore, it would be better to simply assume that both belligerents might have legitimate causes for waging war. For example, one side might have a just cause defending its right to engage in commerce, and the other might have an even more just cause such as securing its defence.132 The bilateral justice of war assumed the equality (aequalitas) of the two contending parties. If ‘brought to its extreme’, the notion of the bilateral justice of war could lead to ‘the proposition and acceptance of the free right of the sovereign state to go to war (liberum ius ad bellum)’.133 For Balthazar Ayala (1548–84), who adopted the notion of ‘just war from both sides’ (bellum iustum ex utraque parte), ‘sovereign princes and states of equal standing confronting each other in case of a conflict, acted as their own judges over the justice of their causes’.134 For Ayala, any war made by a sovereign state was just; no other authority could judge its (in)justice.135 Therefore, according to Ayala, a war could be c­ onsidered 131 Gentili, De Iure Belli, Book I, Chapter vi, p. 31. (referring to ‘the weakness of human nature’ and noting that human beings ‘see everything dimly’.); Id. Book i, Chapter 1, p. 8 (considering the law of nations as a ‘light amid great darkness’, and noting that due to darkness, human beings ‘often cannot recognize it’.) The fallibility of the human mind was a common theme in Elizabethan England. See e.g. Francis Bacon, The Two Books of the Profi­ cience and Advancement of Learning Divine and Human [1605] in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: Murphy 1876) 135–254, 150 (arguing that ‘the human mind is ‘far from the nature of a clear and equal glass wherein the beams of things should reflect according to their true incidence; nay, it is rather like an enchanted glass, full of superstition and imposture, if it not be delivered and reduced’.) 132 Ursula Vollerthun, The Idea of International Society (Cambridge: cup 2017) 136; Gentili, De Iure Belli, Book 1, Chapter 6, pp. 31–33 and 101. 133 Delbrück and Dicke, ‘The Christian Peace Ethic and the Doctrine of Just War’, 198. 134 Balthazaris Ayalae, De Jure et Officiis Bellicis et Disciplina Militari Libri iii, John Westlake (ed), John Pawley Bate (transl) (Oxford: oup 1912). 135 Grewe, The Epochs of International Law, 208.

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‘just’ ‘even in cases when it [was] not founded on a just cause’.136 Ayala acknowledged that both belligerent states were just (in the sense of legal) combatants (iusti hostes), and thus held equal rights and were both entitled to the (albeit limited) protections of the law of war.137 Gentili’s position was slightly more nuanced. He admitted that it would be up to states to decide whether they should resort to force, but he considered war as an instrument of last resort whose aim should be the preservation of peace. Gentili also believed that disputes should be settled through diplomatic means of dispute settlement or arbitration, and only if those failed, could sovereigns consider resorting to war.138 For Gentili, there should be just reasons for war, and wars should not be undertaken for a slight cause.139 Quite a significant part of Book i of the De Iure Belli is dedicated to a detailed discussion of the just causes for waging war. Nonetheless, Gentili admitted that from an international law perspective, in the absence of a permanent judicial tribunal, it would be difficult, if not impossible, to ascertain the justice of state’s causes for waging war. He did not deny the importance of justice but he stressed the difficulty of ascertaining it in the absence of an international court or tribunal. While he did not completely abandon the idea of a just war, he argued that both belligerents were entitled to the rights and were subject to the obligations of the law of war. In this manner, Gentili contributed to the humanization of war.140 Gentili believed in the existence of perfect justice, but admitted the fallibility of human nature in seeking justice and recognizing and implementing the law of nations. For Gentili, ‘Truth exists, even though it be hidden in a well, and when it is diligently and faithfully sought, it can be brought forth and as a rule it is brought forth’.141 Analogously, perfect justice exists, but it may not belong to this world, as human beings are not cognizant of the same.142 Human justice, that is, imperfect justice, nonetheless exists, and its pursuit permeates the entire Gentilian opus. Justice is at the heart of the Gentilian system: as he puts it, ‘there is no phase of war which can be devoid of justice’.143 Similarly, Gentili considered the law of nations as an expression of the law of nature, a natural expression of the 136 Grewe, The Epochs of International Law, 208. 137 Id. 138 Gentili, De Iure Belli, Book i, Chapter iii, pp. 15–16. 139 Id. Book i, Chapter vii, p. 35. 140 Grewe, The Epochs of International Law, 209. 141 Gentili, De Iure Belli, Book i, Chapter i, p. 8. 142 Id. Book i, Chapter 6, p. 31. 143 Id. Book ii, Chapter 1, p. 131.

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human society, and ‘a light amid great darkness’.144 Because of the fallibility of human nature and the imperfection of human vision, ‘there may be reasonable doubt as to the justice of the cause’.145 Because of human fallibility we often cannot recognize the rule of international law.146 For Gentili, the aim of justice is to give each person their due.147 However, that is no easy task. For instance, if both Titius and Sempronius claimed to own something and the law was vague, each party could make their claim but neither could be found guilty of injustice without trial. Analogously, Gentili argued, it might be true that both belligerents have just causes for war.148 Moreover, for Gentili the outcome of a war did not necessarily constitute ‘a judgment as to the respective merits of the case; it [was] by no means certain that the just cause [would] win’.149 Gentili condemned those sovereigns who unjustly waged war in breach of the law of nations. However, he did not blame the law of nations, only its application.150 The uncertainty about who was right and who was wrong in war motivated Gentili to state that ‘in general it may be true in nearly every kind of dispute, that neither of the two disputants is unjust’.151 Irrespective of whether justice was clearly evident on one of the two sides, Gentili posited the general principle requiring the application of the law of war to both parties.152 He did not consider the intentions of states to be relevant to the law of nations; realistically, he concluded, ‘not everything that is permitted is honest’ (non omne quod licet, honestum est).153 Gentili was thus an early proponent of what Emer de Vattel (1714–1767) would call ‘regular war’, or war in due form.154 Since in war, it was usually unclear which of the opposing sides had a just cause for waging war, and there might be cases in which both belligerents had just causes for waging war, both belligerents were equal, and should observe the same rules in their conduct

144 Gentili, De Iure Belli, Book i, Chapter 1, p. 8. 145 Id. Book i, Chapter 6, p. 31. 146 Id. Book i, Chapter 1, p. 8. 147 Id. Book i, Chapter 25, p. 127; Book ii, Chapter 2, p. 139 (defining justice as the virtue which gives everyone his or her own). 148 Gentili, De Iure Belli, Book i, Chapter 6, p. 31. 149 Id. p. 33; Joachim von Elbe, ‘The Evolution of the Concept of Just War in International Law’ (1939) 33 ajil 665–688, 677. 150 Gentili, De Iure Belli, Book i, Chapter 6, p. 33. 151 Id. p. 31. 152 Id. p. 33. 153 Gentili, De Iure Belli, Book ii, Chapter 16, p. 211. 154 Gregory M. Reichberg, Henrik Syse, and Endre Begby, The Ethics of War (Oxford: Blackwell 2006) 372.

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toward each other.155 For Gentili, the conflict needed to be ‘just’ (iusta conten­ tio) in the sense of being just and ‘perfect in all its parts’.156 The belligerents should have just causes for war, and their acts should be just. War should be waged regularly (iusto modo belli) under the law of nations.157 In the Gentilian theory, a just war implied regular warfare, that is, begun and waged by a sovereign according to the rules. Regular warfare thus differed from the acts of brigands, pirates, and insurgents.158 Not only did Gentili explore the just causes for waging war, but he also discussed the form and modalities of warfare.159 He argued that the conflict should be ‘just’ in the sense of ‘appropriate’ in relation to its modalities.160 Wars should be waged by lawful combatants, formally declared, and follow certain norms.161 In this regard, his conceptualization of the procedural restraints of war recalled the notion of bellum iustum under Roman law. Under Roman law, a war was just if ‘commenced in accordance with the rules of the fetial proceedings’.162 However, the Gentilian notion of just war also went beyond the Roman notion of bellum iustum as it humanized the conduct of warfare.163 After war, the parties should seek justice and peace, meant as an ordered harmony.164 Gentili’s understanding of the epistemic uncertainty, asymmetrical information, and the fact that belligerents at war typically claimed justice for their own causes and actions led him to downplay the ius ad bellum requirement of the just intention, and to adjust the ius in bello and the ius post bellum accordingly. In mapping the ius in bello, Gentili rationalized, restrained, and attempted to humanize the existing norms. He believed that regular forces should wage war respecting customary norms without inflicting unnecessary violence on civilians. The violence of war should thus be limited. In this regard, Gentili’s theory of the law of war can be described as an early version of humanitarian 155 Reichberg, Syse, and Begby, The Ethics of War, 372. 156 Gentili, De Iure Belli, Book i, Chapter 2, p. 13. 157 Id. 158 Von Elbe, ‘The Evolution of the Concept of Just War in International Law’, 676 fn 92. 159 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 96. 160 Id. 161 Id. 97. 162 Von Elbe, ‘The Evolution of the Concept of Just War in International Law’, 666. 163 Gentili, De Iure Belli, Book ii, Chapter 1, p. 131 (‘it is not enough to have a just cause for beginning a war, unless it is also waged with justice’); Bonet, The Tree of Battles, 125 (briefly referring to need to conduct war in a reasonable manner). 164 Gentili, De Iure Belli, Book iii, Chapter i, p. 290 (considering justice as ordered harmony); Cfr. André Gardot, Jean Bodin. Sa Place parmi les Fondateurs du Droit International, in Collected Courses of the Hague Academy of International Law 50 (Leiden/Boston: Brill Nijhoff 1934) 710 (referring to Jean Bodin’s concept of justice harmonique).

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law—limiting the means and methods of warfare and protecting persons who are not participating in the hostilities.165 The dark side of the theory of the regular war was its justification of unlimited force against irregular/unlawful combatants.166 If the distinction between regular and irregular combatants was aimed at preventing the misuse of violence by those without a public authorization to wage war, such as brigands, rebels, and pirates, the paradoxical effect of such distinction was that it could lead to unlimited violence against irregular forces. In fact, as the law of war was inapplicable to unlawful combatants,167 such non-state actors were ‘not protected by the laws of war, they could be killed or enslaved, their property [was] everybody’s booty and contractual engagements with them [were] not to be observed’.168 For Gentili such non-state actors operated not just against the law of nations but outside the international legal system, disturbing international peace and security.169 Therefore, for Gentili, ‘since they d[id] not observe the principles of international law in conducting their own actions, they [might] not seek protections under international law from prosecution by other states’.170 Rather, states should deal with them resolutely. For Gentili, ‘[t]hose who d[id] not undertake to be part of the international community, and abide by the law, [we]re not then entitled to turn around and claim protections under that law when confronted with it’.171 Therefore, states were ‘free to address problems with them’ as they saw fit, provided that they respected the law of nations.172 5.2.2 The Causes of War Gentili devoted most of Book i of the De Iure Belli to an examination of the causes of war. For Gentili, war constituted a last resort (extrema ratio), after states had unsuccessfully resorted to other peaceful means of dispute settlement, such as consultation, mediation, or arbitration.173 Gentili considered sovereigns to be ‘bound to examine the justice of [their] cause’ before they 165 Convention (iv) Relative to the Protection of Civilian Persons in Time of War (iv Geneva Convention), 12 August 1949, unts No. 973, vol. 75, p. 287. 166 Pablo Kalmanovitz, ‘Early Modern Sources of the Regular War Tradition’, in Seth Lazar and Helen Frowe (eds.) Oxford Handbook of Ethics and War (Oxford: oup 2015) chapter 8. 167 Grewe, The Epochs of International Law, 209. 168 Id. 169 Dana Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ (2006–7) 8 San Diego ilj 291–343, 324. 170 Id. 339. 171 Id. 325. 172 Id. 325 and 338. 173 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 99.

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engaged in war.174 While Gentili did not consider a ‘right intention’ (recta in­ tentio) to be a necessary requirement for waging war lawfully, he considered that states should have a just cause for waging war.175 If there was no just cause, the war would be unjust and legitimize other states to intervene to collectively defend the state that had been attacked unjustly. Gentili summarized his position by stating that a just war is always a defensive war to a certain extent.176 Gentili warned that wars should not be fought for trivial reasons.177 As physicians do not apply ‘heroic remedies’ except to the gravest illnesses, so states should not wage wars ‘except for a very weighty reason’.178 Nonetheless, states should not be put up with anything and everything to avoid war. In fact, while a just peace is ‘a beautiful thing’, no injustice or ‘nothing shameful should be endured in order to have peace’.179 War should only be waged if necessary, and if constituted ‘the last resort of all’.180 For Gentili the causes of war could be divine, natural or human.181 With regard to the divine causes of war, he denied the lawfulness of religious wars. Gentili saw religion as a bond between the human and the divine which could not be imposed by force.182 Gentili believed that ‘religion ought to be free’ and the ‘freedom of the spirit’ should be granted in religious matters; as religion was a kind of marriage between human beings and the divine, not a matter of obligation.183 Because religion constitutes a linkage between a given person and the divine, it is not a linkage between human beings. Therefore, no rights are violated by a difference in religion.184 No person can complain of being wronged because others have a different religious belief.185 He also noted that

174 Von Elbe, ‘The Evolution of the Concept of the Just War in International Law’, 678. 175 Gentili, De Iure Belli, Book i, Chapter 5 (bella iuste geruntur); Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter i (noting that ‘war should not be made if just cause is lacking’). See also Diego Panizza, Alberico Gentili Giurista Ideologo nell’Inghilterra Elisa­ bettiana (Padua: La Mandragola 1981) 98–99. 176 Gentili, De Iure Belli, Book iii, Chapter 18; Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter i (‘more righteous are the wars that arise from the desire to escape injury, or even to avenge the same, whether a [state] is righting a wrong done to itself, or to some other … surely nature teaches us to oppose force with force, and arms with arms’.) 177 Gentili, De Iure Belli, Book i, Chapter 20, p. 93. 178 Id. 179 Id. p. 94. 180 Id. Book ii, Chapter 1, p. 133. 181 Id. Book i, Chapter 7, p. 35. 182 Id. Book i, Chapter 9, p. 38. 183 Id. pp. 38–39. 184 Id. p. 41. 185 Id.

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in most cases, belligerent nations used religion as a mere pretext for war.186 For instance, he referred to the hegemonic ambitions of the Spanish Empire and considered the French wars of religion as due to a conflict between the monarch and its aristocracy rather than proper religious reasons.187 Gentili argued that the principle of religious tolerance is fully compatible with the reason of state.188 Gentili did not deny that the unity of religion can be an element of state cohesion, but noted that even in the presence of unity of religion there may be political division.189 Therefore, like Bodin, Gentili argued that ‘violence should not be employed against subjects who have embraced another religion than that of their ruler … unless the state suffered some harm in consequence’.190 For example, he reported that the Roman Emperor Augustus (63 BC–AD 14) showed favour to the synagogues of the Jewish people because they were ‘nurseries of the virtues’.191 Gentili saw religious tolerance as the best tool to prevent political disorder and believed in the compatibility between religious pluralism and political stability. Strictly speaking, Gentili denied that there could be natural causes for waging war.192 For Gentili, there is no natural enmity among human beings and human beings are not naturally destined to wage wars among themselves because of their differences. He acknowledged that through the strife of atoms ‘the world dies and is born every day’; and that ‘all this harmonious universe is formed of discordant elements’.193 However, he postulated the existence of a discordant harmony, in which differences could coexist peacefully. He saw human society as a stone arch that was liable to fall unless the stones pushed against one another and in doing so held one another up. The international community stands ‘as it were by mutual opposition and supported by its strain’. Quoting Horace, Gentili called this union ‘the discordant harmony of things’.194 Instead, for Gentili, conflicts arose because of human ambition and injustice.195 If, however, natural law was violated, then it would be natural for states 186 Gentili, De Iure Belli, Book I, Chapter 9, p. 40. 187 Id. Book i, Chapter x, p. 47. 188 Id. p. 43 (‘the profession of a different form of religious belief by their subjects does not harm [sovereigns]’.) 189 Id. (‘Harmony of religion undoubtedly makes human beings united’); Book iii, Chapter xi, p. 341 (‘One may see everywhere how the greatest political disturbance is compatible with the greatest unity of religion’.) 190 Id. Book i, Chapter x, p. 44. 191 Id. 192 Panizza, Alberico Gentili Giurista Ideologo nell’Inghilterra Elisabettiana, 103. 193 Gentili, De Iure Belli, Book i, Chapter xii, p. 53. 194 Id. Book i, Chapter xv, p. 67. 195 Id. Book i, Chapter xii, p. 54; Bonet, The Tree of Battles, 158 (­acknowledging that ‘there are

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to defend themselves and to protect their entitlements under the law of nations.196 Legitimate natural causes of wars could be either defensive or offensive. Gentili distinguished four grounds on which defensive force might be justly used.197 The first ground was that of ‘necessary defence’ and embraced both self-defence and necessity.198 With regard to self-defence, Gentili reaffirmed that it is lawful to repel force by force (vim vi repellere [licet]).199 Gentili stressed that there is only one eternal law, ‘to maintain one’s safety by any and every means’ (lex una, et perpetua, salutem omni ratione defendere).200 For Gentili, ‘necessity has no law, but it itself makes law’.201 He added that ‘under the pressure of arms the power of necessity is so great that even what is unjust appears wholly just’.202 In sum, he affirmed the right of states to safeguard and defend their own freedom against external threats. Gentili considered reprisals as a subsidiary form of self-defence. Already in the fourteenth century, Bartolus de Saxoferrato (1313–1357) considered reprisals as a form of self-defence, and equated violence against one citizen with violence against a polity. Gentili distinguished the conduct of states from that of private individuals, and argued that wrongs committed by private citizens do not necessarily entail the responsibility of their home states (privatus non nocet universitati—quam privatus fecit iniuriam non debet luere respublica).203 However, like da Legnano, Gentili held that if a state failed to prevent or punish private wrongs committed against the subject of another state, then the former would be internationally responsible for its negligence, and the wronged state would be therefore entitled to reprisals or to wage war.204 Da Legnano plenty of people of such kind that if they had gained the whole world they would still not be content, and through their avarice would want to seize the cities and towns, the kingdoms and lordships of another … of this avarice are born all tyrannies’.); Francesco Guicciardini, Ricordi 2, 41 (‘gli uomini sono naturalmente inclinati al bene …[ma] si partono facilmente per interesse proprio dalla inclinazione naturale’) in Ugo Spirito, Machiavelli e Guicciardini (Firenze: Sansoni 1968) 96. 196 Gentili, De Iure Belli, Book i, Chapter 13, p. 58 and Book i, Chapter 5, p. 28 (arguing that those who do not comply with law should be punished and forced to conform to the law.) 197 Vaughan Lowe, ‘The Use of Force in the British Tradition of International Law’, in vvaa Alberico Gentili: l’Uso della Forza nel Diritto Internazionale (Milano: Giuffrè 2006) 71–95, 71. 198 Id. 199 Gentili, De Iure Belli, Book i, Chapter 13, pp. 58–59. 200 Id. p. 59. 201 Gentili, The Wars of the Romans, 2.2, p. 151 (quoting Gratian). 202 Gentili, De Iure Belli, Book i, Chapter 13, 59 (quoting Bodin). 203 Id. Book i, Chapter 21, 99. 204 Id. p. 100 (‘satisfaction ought to be made … either by inflicting punishment for the crime in question or by surrendering the one who has ­committed it; otherwise war could be

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c­ onsidered individuals as parts of ‘the mystical body’ of a community; therefore, a state could declare war in defence of one of its citizens, if the injured subject could not obtain justice from the courts of the host state.205 Like da Legnano, Gentili considered reprisals as a ‘subsidiary remedy’ to be used only when ordinary remedies failed.206 Therefore, like Bartolus and da Legnano, Gentili saw reprisals as a form of self-defence.207 The second ground on which defensive force could be justly used was that of ‘useful defence’ (utilis defensio) or ‘defence on grounds of expediency’, justifying preventive war against a non-belligerent state because of reasonable fear of a potential aggression.208 For Gentili, no state should expose itself to danger: ‘[n]o one is more quickly laid low than one who has no fear, and a sense of security is the most common cause of disaster’. Therefore, states ‘should not wait for violence’ to be offered to them, ‘if it [was] safer to meet it halfway’.209 Gentili thus endorsed preventive self-defence; quoting Philo of Alexandria (20 bce–c. 50 ce), a Jewish philosopher, he wrote: ‘we kill a snake as soon as we see one, even though it has not injured us and will perhaps not harm us. For thus we protect ourselves before it attacks us’.210 He further argued that ‘no one ought to wait to be struck, unless he [or she] is a fool’.211 Gentili admitted that defence is useful not only against imminent attacks, but also against likely and possible dangers.212 As he put it, ‘it is … fitting to look ahead into the distant future and not to wait until danger beats on one’s doors, one’s bedchamber, and one’s very bedposts’.213 Therefore, according to Gentili states could exercise preventive self-defence in case of necessity.214 He required ‘a just cause for fear’ as ‘suspicion [was] not made upon the whole state’.); Book ii, Chapter i, p. 134 (‘the sovereign … can render you satisfaction for the injustice of his magistrate. If the sovereign does not give satisfaction, then one must resort to war and reprisals must be granted’.) 205 Da Legnano, Tractatus De Bello, de Represaliis et de Duello, c 79, 130. 206 Jasonne Grabher O’Brien, ‘In Defense of the Mystical Body: Giovanni da Legnano’s Theory of Reprisals’ (2002) 1 Roman Legal Tradition 25–55, 28–30. 207 Id. 31. 208 Gentili, De Iure Belli, Book i, Chapter 14, pp. 61–66. 209 Id. p. 61. 210 Id. 211 Id. p. 62. 212 Id. 213 Gentili, The Wars of the Romans, 2.9, p. 253; Cfr. Niccolò Machiavelli, Arte della Guerra e Scritti Politici Minori, Sergio Bertelli (ed) (Milan: Feltrinelli 1961) 58–60 (urging to be prepared when the enemy is not pressing, for when he is at the door it will be too late). 214 Gentili, De Iure Belli, Book i, Chapter 3, p. 20 (‘unless it is necessary, war cannot be just’); Book i, Chapter 14, p. 62 (addressing the question ‘when a matter may be said to have reached the point where it is necessary to resort to … expedient defence’.)

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enough’;215 he then defined a ‘just fear’ as ‘the fear of a greater evil, a fear which might properly be felt even by a [person] of great courage’.216 Therefore, he conceived of preventive warfare as ‘a special case of self-defence’.217 For instance, self-defence could justify preventive war against powerful and ambitious states such as Spain or the Ottoman Empire to counter their expansionism ‘[f]or they [we]re content with no bounds, and end[ed] attacking the fortunes of all’.218 Gentili’s third and fourth grounds for defence (honesta defensio) were based on the stoic cosmopolitan notion that the world is one country (universa orbis civitas) and human beings are its citizens, ‘like a single herd feeding in a common pasture’.219 These grounds were characterized by a solidaristic vision of international relations based on the unity of humankind.220 Honesta defensio relied on the principle that ‘nature has established among human beings kinship, love, … and a bond of fellowship … ; and that the law of nations is based upon the association of humankind’.221 Relying on the Stoic notion that the world is one city, that all human beings are fellow citizens, and that ‘the world is their home’, Gentili affirmed that ‘all this universe … is one’ and ‘the world is one body’, and all human beings are members of this great body.222 Nature ‘has implanted in us love for one another and made us inclined to union. And this union of ours is similar to an arch of stones, which will fall unless the stones push against one another and hold one another up’.223 Since human beings constitute one body, it is their duty not only not to harm but also to help one another under natural law.224 In particular, the third ground was ‘defence for the sake of honour’, that is, to defend others (in gratiam aliorum).225 If a sovereign was unjustly attacked, the injustice was not only against that sovereign but against the international 215 Gentili, De Iure Belli, Book i, Chapter 14, p. 62; Gentili, De Iure Belli Libri Tres, Thomas E. Holland (ed.) (Oxford: Clarendon Press 1877) p. 59 (‘nemo exponere debet se periculo’ and ‘iusta causa metus requiritur: suspicio non est satis’.) 216 Gentili, De Iure Belli, Book i, Chapter 14, p. 62. 217 Benedict Kingsbury and Benjamin Straumann, ‘Introduction: Roman Wars and Roman Laws’, in Alberico Gentili, The Wars of the Romans, Benedict Kingsbury and Benjamin Straumann (eds.) David Lupher (trans) (Oxford: oup 2011) xxiv. 218 Gentili, De Iure Belli, Book I, Chapter 14, p. 64. 219 Id. Book i, Chapter 15, p. 67. 220 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 103–104. 221 Gentili, De Iure Belli, Book i, Chapter 15, p. 67. 222 Id. 223 Id. 224 Id. p. 68. 225 Id. p. 67.

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community as a whole.226 Therefore, military intervention to help a sovereign who was unjustly attacked was not only legitimate but also compulsory if the defence was without danger to the defender.227 This concept is similar to the idea of collective self-defence under contemporary international law.228 Gentili justified honest defence on moral, legal, and political grounds. From a moral perspective, he considered honest defence as an expression of perfect justice: ‘that is perfect justice which defends the weak … And that is the justice of which I am in quest’.229 From a legal perspective, Gentili admitted that no state is bound to place itself in danger to defend another.230 He also conceded that rarely, if ever, have states defended other states for the mere sake of honour; rather, states have often helped other states, hoping to gain something in return.231 Nonetheless, Gentili considered honesta defensio as a type of ‘perfect justice’ as it defended the weak.232 Gentili probably borrowed this theory from canon law, as canon lawyers admitted that if one could prevent evil from happening, she should help his or her neighbor, without exposing herself to danger. In other words, one ‘should do to another what [she] would should be done to [her]’.233 While Gentili recalled Guicciardini’s pessimistic opinion that no state would ever intervene for the sake of others unless it had some strategic reason to do so, Gentili considered that special causes could be added to the general cause of waging war for the sake of others, provided that such special causes did not amount to hegemonic ambition.234 Among such special causes, Gentili included territorial proximity, alliance treaties, and a shared religion. Based on human solidarity, charity, geographical proximity or a common religion,235 this was ‘a claim for Protestant solidarity’ during the wars of religion.236 More fundamentally, from a political perspective, Gentili considered the domino effect that injustice could have on the international plane. He noted that ‘if one private citizen does not defend another, there is a magistrate who 226 Panizza, Alberico Gentili Giurista Ideologo nell’Inghilterra Elisabettiana, 106. 227 Gentili, De Iure Belli, Book i, Chapter 15, p. 70 (adding that ‘no one is bound to place himself or herself in danger; no one is bound to rush into a fire for the sake of another’.) 228 Lowe, ‘The Use of Force in the British Tradition of International Law’, 72. 229 Gentili, De Iure Belli, Book i, Chapter 15, p. 71. 230 Id. p. 70 231 Id. p. 71. 232 Id. 233 Bonet, The Tree of Battles, 137. 234 Panizza, Alberico Gentili Giurista Ideologo nell’Inghilterra Elisabettiana, 107. 235 Gentili, De Iure Belli, Book I, Chapter 15, pp. 71–72. 236 Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, 190.

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can avenge the wrongs of private individuals’ at the domestic level.237 Because at the international level, there was neither an international court nor police, honest defence was even more crucial to prevent the spread of injustice. Using a powerful metaphor, Gentili noted that ‘if a fire begins to rage in any house, it is not easy to prevent the neighbouring houses from burning’.238 Like a fire or a contagion, ‘the Romans advanced from one people to another … and finally possessed whatever power there was’.239 Therefore, Gentili asked: ‘when we see the smoke from a neighbouring fire, do we not run to the place where the fire is to put it out?’240 The fourth legitimate defensive cause of war was the defence of subjects of another state against the immoderate cruelty, unjust oppression, and tyranny of their sovereign (defensio innocentium).241 In the early modern period, a discourse against tyranny—meaning conduct that shocked the conscience of humankind—emerged in the theory and practice of the emerging law of nations.242 The statesman, lawyer, and philosopher Thomas More (1478–1535) and the theologian Francisco de Vitoria argued that it was legitimate to defend ‘innocents’ from ‘tyranny and oppression’.243 Like other theologians of the School of Salamanca, Vitoria nonetheless geographically restricted intervention to the Americas to ‘save’ Indigenous inhabitants from rulers who inflicted harm on their people.244 Whether this was a way to justify colonial expansionism or actually limit imperialist ambitions remains controversial.245 Postcolonial scholars have highlighted that this type of intervention amounted to an

237 Gentili, De Iure Belli, Book I, Chapter 15, p. 70. 238 Id. p. 72. 239 Id. p. 73. 240 Id. 241 Id. Book i, Chapter 16, pp. 74–78. 242 D.J.B. Trim, ‘If a Prince Use Tyrannie Towards his People: Interventions on Behalf of Foreign Populations in Early Modern Europe’, in Brendan Simms and D.J.B. Trim (eds) Hu­ manitarian Intervention: A History (Cambridge: cup 2011) 29–66, 29–30. 243 Thomas More, Utopia [1516], G.M. Logan and R.M. Adams (eds) (Cambridge: cup 1989) 87–88 (arguing that Utopians loathe fighting but ‘go to war only for good reasons: to protect their own land, to drive invading armies from the territories of their friends, or to liberate an oppressed people in the name of humanity from tyranny and servitude’.); Francisco de Vitoria, ‘On the American Indians’ [De Indiis, 1539] in Political Writings, Anthony Pagden and Jeremy Lawrence (eds) (Cambridge: cup 1991) 287–288. 244 Francisco de Vitoria, ‘On the Law of War’ [De Indiis Relectio Posterior, sive De Iure Belli, 1539] in Political Writings, Anthony Pagden and Jeremy Lawrence (eds) (Cambridge: cup 1991). 245 Trim, ‘If a Prince Use Tyrannie Towards his People’, 32 (arguing that the argument of humanitarian intervention intended to narrow Spanish imperialism).

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‘insidious justification’ of the Spanish conquest, presenting the replacement­of local sovereigns with Christian ones for the good of the Indians.246 Nonetheless, since the Reformation, given polities considered themselves as ‘the spiritual brethren of oppressed minorities’ in other countries and supported foreign co-religionists.247 Therefore, French Huguenot theorists (later called monarchomachs) adopted an ideology of resistance, revived the doctrine of tyrannicide, and extended the right to intervene against Christian tyrants.248 According to the monarchomachs, ‘the slaughter of the innocents’ not only justified but also required other sovereigns to wage a just war against the tyrant.249 Published in the aftermath of the St Bartholomew’s Day Massacre (24 August 1572), the 1579 Vindiciae contra Tyrannos (Defence against Ty­ rants), the most significant Huguenot contribution to the theory of resistance, justified humanitarian intervention to help the victims of a tyrannical rule because of the unity of humankind. Lack of intervention was thus criticized as an abdication of humanity.250 The aim of such intervention ‘was not to conquer, but to defend … an oppressed people against … a common enemy and a common plague’.251 Being a religious refugee himself, Gentili endorsed the concept of humanitarian intervention. His humanitarian paradigm conformed to, but also differed from, the texts of the period and responded to the legal/political crisis raised by the early modern wars of religion and related hegemonic attempts.252 Like the monarchomachs, Gentili assumed that natural law required sovereigns to respect certain fundamental rules of justice such as religious freedom.253 For Gentili, sovereigns and their subjects had mutual obligations; while sovereigns were bound to defend their citizens; their citizens were bound to defend their countries and their sovereigns.254 While sovereigns were expected to rule

246 Anghie, Imperialism, Sovereignty and the Making of International Law, 28. 247 Id. 31. 248 See e.g. Stephanus Junius Brutus [Philippe Duplessis Mornay], Vindiciae contra Tyrannos (Edimburgi 1579) quaestio iv (specifically calling for intervention against foreign tyrants). 249 Trim, ‘If a Prince Use Tyrannie Towards his People’, 34–35. 250 Vindiciae contra Tyrannos, quaestio iv. 251 Trim, ‘If a Prince Use Tyrannie Towards his People’, 34. 252 Luca Scuccimarra, ‘Le Ragioni dell’Umanità. Alberico Gentili e il Problema della Difesa Onesta’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 311–330, 326. 253 Amor Bavaj, Alberico Gentili (Macerata: Affede 1935) 62. 254 Gentili, De Iure Belli, Book i, Chapter 23, pp. 114–115; Book ii, Chapter 18, p. 236.

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justly; their citizens were bound to ‘render loyal obedience’.255 For Gentili, sovereigns could not ‘act according to their whim and caprice’, or do to subjects whatever they wished; rather, as parents should behave in the best interest of the child, so states should govern in the best interest of their citizens.256 As Gentili pointed out, ‘Kingdoms were not made for kings, but kings for their kingdoms’.257 Nonetheless, unlike the monarchomachs, Gentili argued that if a sovereign behaved in a tyrannical manner, any domestic insurrection would be illegitimate as it would be the recipe for chaos and anarchy.258 Like Bodin, he did not accept domestic insurrections or tyrannicide as a form of legitimate defence.259 Rather, in case of injustice, cruelty, or atrocity against minorities, it would be legitimate for other states to intervene for reasons of humanity to protect the innocent.260 Gentili expressly stated that he did not wish to establish ‘a supervision of one sovereign by another’.261 Nonetheless, in extreme circumstances, the common humanity trumped sovereignty. The Gentilian theory thus mirrored the position of the Huguenot theorists and Jean Bodin, postulating that foreign sovereigns had a right to intervene in case of unjust oppression to rescue people in danger.262 For Gentili, intervention for the defence of innocents would be just on the grounds of common humanity. Relying on Cicero, Gentili noted that there are two kinds of injustice: ‘one resulting from injury and the other from not averting injury to others, if one has the power to do so’. Quoting Cicero, he argued that ‘those who say that we should think about the interests of our fellow citizens but not those of foreigners, destroy the common society of [humankind]’.263 For instance, Gentili praised the English intervention in the Low Countries, where Protestant allies fought for their independence from Catholic Spain.264 During the Dutch Revolt (1567–1609), the Habsburg rule of the Low Countries 255 Gentili, De Iure Belli, Book i, Chapter 23, pp. 114–115. 256 Id. Book ii, Chapter 21, p. 252. 257 Id. Book I, Chapter 16, pp. 75–76. 258 The question of tyranny was central in contemporary debates. For instance, Gentili and Shakespeare were writing about the same issue from a literary and legal perspective respectively. On Shakespeare and tyranny, see Stephen Greenblatt, Tyrant: Shakespeare on Power (New York: Norton & Co. 2018). 259 Panizza, Alberico Gentili Giurista Ideologo nell’Inghilterra Elisabettiana, 109. 260 Gentili, De Iure Belli, Book I, Chapter 16, pp. 74–76. 261 Id. p. 74. 262 Jean Bodin, De la République (Paris 1583) Book ii, Chapter v. 263 Alexis Heraclides and Ada Dialla, Humanitarian Intervention in the Long Nineteenth Cen­ tury (Manchester: Manchester University Press 2015) 17. 264 Gentili, De Iure Belli, Book i, Chapter 16, p. 77.

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was portrayed as tyrannical on several grounds, including for its desires to end diversity of religion and suppress Dutch freedoms.265 Queen Elizabeth i intervened in the Netherlands in the belief that aid would help the rebels to fight against oppression but also for fear that a repression of the revolt would leave her bereft of allies and thus lead to an attack on England.266 Although she provided financial and military aid, her intervention did not effect a regime change or the acquisition of land.267 When she was offered the sovereignty of Holland in 1576 and of the whole United Provinces in 1585, she rejected both offers.268 Gentili admitted that in some historical circumstances, humanitarian motives disguised other objectives becoming a pretext for military expeditions in pursuit of ulterior motives. As noted by Walzer, ‘ever since the Spaniards conquered Mexico in order to stop the Aztec practice of human sacrifice’, scholars have criticized humanitarian intervention as ‘a rationale for imperial expansion’.269 Reportedly, the justifications that King Philip ii invoked for waging war against England included intervening on behalf of persecuted Catholics, who were a minority in England and Wales and a majority in Ireland, in addition to ending English sea raiding and crushing ‘heresy’.270 Elizabeth i intervened in France using ‘diplomacy, financial, and logistical aid’ sending supplies and ships to the oppressed Huguenots not only to preserve their freedom of worship, but also to prevent the spread of chaos and disorder across borders.271 Gentili did not condemn ulterior motives as such, provided that they were not imperialist in nature. Like the author of the Vindiciae contra Tyrannos, Gentili posited that ‘the rhetoric of preventing tyranny [should] not be a pretence for the acquisition of territory’.272 He highlighted that where the protection of the weak takes place with no other objective, humanitarian intervention is an expression of perfect justice (plena est iustitia quae defendit infirmos).273 With regard to Spanish intervention in Ireland, he denied that Spain could acquire territory there.274

265 Trim, ‘If a Prince Use Tyrannie Towards his People’, 37 and 48. 266 Id. 41–42. 267 Id. 47–48. 268 Id. 52. 269 Michael Walzer, Just and Unjust Wars, iii ed. (New York: Basic Books 2000) xi. 270 Trim, ‘If a Prince Use Tyrannie Towards his People’, 52. 271 Id. 272 Id. 52 273 Gentili, De Iure Belli, Book i, Chapter 15, p. 71. 274 Id. Book i, Chapter 23, pp. 115–116.

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Gentili’s contribution to the history and theory of humanitarian intervention was first highlighted by Gezina Van der Molen, during the inter-war years, who highlighted his concept of ‘the right of intervention on behalf of subjects who are treated cruelly and unjustly by their prince’.275 For Hersch Lauterpacht, this was ‘the first authoritative statement of the principle of humanitarian ­intervention—the principle that exclusiveness of domestic jurisdiction stops when outrage upon [hu]mankind begins’.276 More recently, scholars have pointed out that while formally condemning empire, early modern scholars lived in established (Vitoria’s Spain) or emerging empires (Grotius’ Netherlands).277 Therefore, their works require extensive analysis to move beyond the face value of their writings. In supporting humanitarian intervention, in theory, Gentili seemed to be supporting a legitimate aim (preventing atrocities); nonetheless, in practice, such interventions could be more problematic than the problems they aimed to solve. Therefore, the reader is left with legitimate questions that can lead to different legitimate answers. Moreover, Gentili was not the first to articulate theories of humanitarian intervention, as recent scholarship demonstrated the importance of Bodin or the Vindiciae contra ty­ rannos in that sense.278 Gentili then examined legitimate natural causes of offensive wars. Offensive wars ‘aim[ed] at enforcing some minimal standards of justice at the level of mankind’.279 Not only could such wars have a restorative function, redressing past wrongs, but they could also have a dissuasive function, preventing future offences.280 Gentili distinguished three types of offensive wars: (1) necessary wars, (2) useful wars, and (3) honest wars. Necessary offensive wars were those conducted by peoples to maintain their own existence.281 For instance, if people had to abandon their lands because of war, pandemics, frequent earthquakes, or persecution, they might have to move to other states: ‘it is just that those who have been driven from their home should somehow find a safe place somewhere’.282 For Gentili, human beings should have ‘pity’ for the migrants who have to flee because of such 275 Van der Molen, Alberico Gentili and the Development of International Law, 131. 276 Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) British yil 1–53, 46. 277 Anghie, Imperialism, Sovereignty and the Making of International Law, 13–31. 278 See generally Heraclides and Dialla, Humanitarian Intervention in the Long Nineteenth Century. 279 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 42. 280 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 108. 281 Gentili, De Iure Belli, Book i, Chapter 17, p. 79. 282 Id. 79 and 80.

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emergencies and a safe place of exile ‘should be granted, if it can be given without too much inconvenience’.283 For instance, states could let the migrants occupy vacant places without inhabitants.284 However, an important tenet of the Gentilian system was that the host state would retain jurisdiction over the immigrants, and the newcomers ‘ought to do what [wa]s most just and submit to the rule of the host state’.285 In other words, they would become subjects of the host governments.286 Gentili’s vision of state identity was a fluid one, as a polity would remain ‘certainly the same’ if it became more ethnically diverse;287 ‘if any one’s field should be flooded … it is clear that the field continues to belong to its former owner; for flood merely changes the aspect of an estate’.288 Nonetheless, nations could limit access to their territory for legitimate reasons; for instance, occupied lands belonged to their occupants;289 if the number of refugees was too high, a given state could limit access to its territory for reasons of state security.290 If, however, access was unjustly denied, could people wage offensive wars to conquer new territories? Gentili admitted this possibility but only in case of necessity.291 ‘Greed and avarice combined with a fondness for changing … abode’ did not justify war.292 Useful offensive wars could be waged to redress past wrongs and guarantee the exercise of natural rights such as freedom of commerce (ius commercii), freedom of innocent passage through a given territory, access to ports, and freedom of the sea.293 While Gentili considered hospitality a duty imposed by human solidarity, and commerce a useful service in accordance with the law of nations, he admitted that states could limit the access of foreigners and/or limit the import/export of given goods, such as silver and gold, for ­security reasons.294 In fact, for Gentili, safety was more important than freedom of communication, commerce, and movement. Therefore, a state could l­egitimately 283 Gentili, De Iure Belli, Book I, Chapter 17, 80. 284 Id. 285 Id. 81. 286 Id. 287 Id. Book i, Chapter 23, p. 114 (noting that ‘a ship is the same, if it is gradually changed completely’.) 288 Id. p. 116. 289 Id. Book i, Chapter 17, p. 81 (‘those lands that are not vacant ought not to be taken; for it is not right that one should neglect oneself through love for another’). 290 Id. 291 Id. 80. 292 Id. 293 Id. Book I, Chapters 18–19, pp. 83–92. 294 Id. Book i, Chapter 19, pp. 87 and 89.

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place restrictions on such freedoms: commerce should give way to the state (cedatur igitur regno mercatura).295 Only the absolute prohibition of commerce or the total exclusion from common goods such as the sea were contrary to the law of nature.296 Therefore, other states could wage war against the state that infringed such norms.297 Gentili denied the legitimacy of the Spanish conquest. Although in abstract terms, the total prohibition of commerce by given states could be a legitimate cause of war, in the case of the Indians, the Spanish conquest was unlawful because the Spaniards were motivated by conquest (dominium).298 Useful wars could also be waged to vindicate past wrongs.299 If natural law were violated, then it would be natural for states to protect their entitlements under the law of nations.300 Finally, Gentili defended the legitimacy of offensive ‘honest wars’, that is, those wars that were undertaken ‘for the common interest and on behalf of others’.301 Honest wars were analogous to what has come to be called ‘humanitarian intervention’, and could be waged in response to cruelty, unjust oppression, and tyranny. For Gentili, honest wars could be either offensive or defensive.302 As mentioned, since human beings constitute one body, it is their duty not only not to harm but also to help one another under natural law.303 Therefore defensive wars (honesta defensio) could be undertaken ‘for the sake of others’,304 to defend the weak, and constitute a type of ‘perfect justice’.305 Offensive wars could be waged to enforce the common law of humankind (ius commune humanitatis) in order to foster liberty.306 Among the crimes against nature that could justify honest wars, Gentili listed piracy, human sacrifices, and cannibalism.307 For Gentili, the prevention or punishment of such crimes was an honourable reason to wage war as all 295 Gentili, De Iure Belli, Book i, Chapter 17, p. 82 (‘safety is always the right of a community’); Book i, Chapter 21, p. 101 (‘the law of trade is just; but that of maintaining one’s safety is more so’.) 296 Id. 297 Id. 298 Id. Book i, Chapter 19, p. 89. 299 Id. Book i, Chapter 18, pp. 83–85. 300 Id. 83. 301 Id. Book i, Chapter 25, pp. 122–127. 302 Id. Book i, Chapter 15 (‘Of defence for the sake of honour’); Book i, Chapter 25 (‘Of an honourable reason for waging war’.) 303 Id. Book i, Chapter 15, p. 68. 304 Id. p. 67. 305 Id. 306 Id. Book i, Chapter 25, p. 122. 307 Scuccimarra, ‘Le Ragioni dell’Umanità’, 326.

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states were ‘entitled to vindicate … the common law of humankind, because in the violation of that law we are all injured’.308 He added that ‘they do not deserve to be called men, who divest themselves of human nature’.309 With regard to piracy, Gentili argued that ‘a war against pirates justly call[ed] all to arms because of love of our neighbours and the desire to live in peace’.310 For Gentili, ‘war should be made against pirates by all men, because in the violation [of the common law of humanity] we are all injured’.311 With regard to human sacrifices and cannibalism, Gentili considered these as ‘monstrous offences against the laws of nature’, because they deprived human beings of their natural rights, such as the right to life.312 He stated that the Spaniards had a just reason for waging war against the Indians who, reportedly’[ate] human flesh, slaying men for that purpose’ because such acts were ‘contrary to human nature’ and ‘the innocents [should] be protected’.313 Was Gentili’s position on cannibalism an indirect way of legitimizing conquest? One could argue that Gentili used cannibalism as a pretext for masking imperialist ambitions. However, the De Iure Belli expressly condemned imperialist wars in general and the Spanish Empire in particular. Gentili argued that interventions should not have territorial motivations and should aim primarily to defend the innocent. Moreover, Gentili explicitly dismissed other ‘pretexts’ used by Spain to justify its expansion such as the violation of freedom of commerce. In this regard, Gentili argued that if the real intention of Spain had been to trade goods with the natives, the natives’ refusal to trade with them would have been in breach of the law of nature, and such breach could have been a just cause for waging war. However, because the Spaniards truly had imperialist ambitions, then, it was legitimate for the Indigenous peoples to repel the Spaniards as the latter did not have a just cause for waging war. With regard to cannibalism, it seems plausible to infer that Gentili considered it an inhuman crime and believed intervention could stop unnecessary suffering on the grounds of compassion and justice. This is perhaps one of the most controversial and heavily criticized aspects of Gentili’s work: did Gentili’s position on cannibalism betray a European sense of moral superiority? Was it a form of othering different civilizations, denying them humanity in the interest of a European colonising project? Historians have long debated whether, and if so to what extent, cannibalism was 308 Gentili, De Iure Belli, Book i, Chapter 25, p. 122. 309 Id. p. 125. 310 Id. p. 124. 311 Id. 312 Id. 313 Id. pp. 122–123.

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practiced in the early modern period.314 In most early modern accounts of what Europeans called the ‘New World’, ‘imagination [was] at work’.315 The ‘rich and complex world emerging from the encounter between members of highly civilized cultures’ was narrated and passed to European peoples by European narrators, that is, ‘members of one of the cultures in question’.316 Most of the Indigenous codices were destroyed as heretical texts. Reportedly, cannibalism was less prevalent than Gentili and his contemporaries assumed.317 Like other contemporaries, Gentili had come to believe the rumours that cannibalism was a rather common occurrence in the Americas and thus he formulated his theories on humanitarian intervention with that belief in mind and in order to save the victims of such practices. The Dominican friar Bartolomé de las Casas (1484–1566), who voyaged to Central America as a missionary among the Maya of Guatemala, had a clearer picture of the matter. While admitting that there were cases of cannibalism, he argued that intervention ‘to rescue a few by killing many was disproportionate and immoral, a remedy worse than the disease’.318 Likewise, Vitoria, who admitted the legitimacy of humanitarian intervention, was ‘distressed by the news of the horrible deeds of the conquistadores and the destruction of the Indians’.319 In this regard, like Vitoria, Gentili noted that had the Indians discovered other nations, they would have behaved more humanely. Gentili did not seem to have had an ethnocentric vision of international relations as he reported that human sacrifices had been practiced by different peoples in different periods and regions, including Europe and Asia.320 The reported scale of such phenomena led Gentili to consider humanitarian intervention as an appropriate response to the crime. After condemning such practices, whether conducted in Europe or elsewhere, he concluded that war could be waged against idolaters, if idolatry was joined with the slaughter of ­innocent

314 Brian Sandberg, War and Conflict in the Early Modern World 1500–1700 (Malden, MA: Polity 2016) 13. 315 Stephen Greenblatt, Marvellous Possessions—The Wonder of the New World (Chicago: University of Chicago Press 1992) 23. 316 Walter D. Mignolo, ‘The Darker Side of the Renaissance: Colonization and the Discontinuity of the Classical Tradition’ (1992) 45 Renaissance Quarterly 808–828, 815 (also discussing Pre-Columbian codices, textual production in Amerindian languages, and the pictographic writing system). 317 Federico Chabod, Lezioni di Metodo Storico (Bari: Laterza 1983) (discussing how to critically examine historically false sources). 318 Heraclides and Dialla, Humanitarian Intervention in the Long Nineteenth Century, 20. 319 Id. 320 Gentili, De Iure Belli, Book i, Chapter 25, p. 123.

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victims ‘for the innocent [should] be protected’.321 He linked intervention against cannibals to interventions against tyrants whom he described as ‘thirsty for blood’; in both cases, intervention would be just because of the common humanity, somehow drawing an analogy between the (American) human beings subjected to human sacrifices and the (European) human beings who were massacred during the ongoing wars of religion. Gentili wove the parallel discursive threads of humanitarian intervention against cannibals and tyrants respectively because of the common humanity of the human beings involved, and the perceived inhumanity and injustice of any aggression for religious reasons. In conclusion, Gentili’s position on humanitarian intervention does not seem to be based on a denial of a common humanity or a desire to reach a uniform culture or religion. Rather, it seems informed by the idea that all human beings have the right to live, to practice their culture, and to profess their religion only insofar they do not harm others or affect their respective rights. Was his position in the interest of a European colonising project? As mentioned, Gentili expressly condemned imperialist wars in general and the Spanish empire in particular. He warned that intervention should not have territorial aims, but rather focus on the necessity of defending innocents. Whatever one thinks about the merits of Gentili’s position on the matter of cannibalism, the justification of warfare on the basis of cannibalism did not seem play a prominent role in the subsequent colonization of North America. 5.2.3 Neutrality Neutrality! What kind of thing is that?322 The early modern law of nations did not generally govern neutrality as such, and legal opinion was divided with regard to the international rights and responsibilities that the legal status of neutrality entailed.323 Rather, customary norms emerged about the mutual rights of belligerents and non-belligerents in relation to merchant shipping during maritime warfare.324 The state practice was varied. If a few guiding principles emerged, state policy nonetheless prevailed as ‘the deciding factor’.325

321 Id. 322 Thomas W. Balch, ‘Albericus Gentilis’ (1911) 5 ajil 676 (reporting the words of King Gustavus Adolphus (1594–1632) of Sweden pronounced during the Thirty Years War.) 323 K.R. Simmonds, ‘Alberico Gentili and the Admiralty Bar, 1605–1608’ (1958) 7 Archiv des Völkerrechts 3–23, 15. 324 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 433. 325 Simmonds, ‘Alberico Gentili and the Admiralty Bar’, 15.

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Gentili contributed to the long and complex evolution of neutrality law.326 For reasons of comprehensiveness this section relies on both De Iure Belli and Advocatio Hispanica to offer the reader a complete picture of Gentili’s contribution to the emergence of neutrality law. While Gentili did not expressly use the concept of neutrality nor did he examine the rights and duties of the neutrals in great detail, he did investigate some key related issues and propose solutions that remain valid nowadays.327 Gentili repeated the prohibition on invading or interfering with the territory of a neutral state in times of war, arguing that the conflicts should not take place in the territory of neutrals or in their coastal waters.328 This was not selfevident at the time. In the Middle Ages, sovereignty was equated to private property (nihil est aliud territorium quam dominium), and war was analogized to a hunt.329 Hunters in the pursuit of wild beasts could capture them in the land of others, provided that the pursuit had started elsewhere.330 Gentili criticized this view, arguing that sovereignty did not identify with property and that enemies could not be compared to wild beasts; rather, he claimed that the territories of neutrals offered full protection and security to persons who sought refuge there (alienum territorium securitatem praestat) and enemies could not be captured in neutral lands (non licet hostem capere in territorio alieno).331 For instance, during the Dutch rebellion against Spain (1568–1648), Gentili condemned the Dutch attacks on Spanish vessels in English waters after the signature of the peace treaty between England and Spain in 1604. For Gentili such attacks violated the law of nations, because of England’s neutrality.332 Like Belli, Gentili admitted the right of innocent passage through neutral territory but denied that states could lawfully wage war or take prisoners in neutral territory.333 Rather, a neutral state could provide asylum (postliminium).334 Gentili acknowledged the existence of a right to asylum, but for Gentili that right was not unqualified; rather, states could provide asylum to the victims of adverse 326 Alfred Rubin, ‘The Concept of Neutrality in International Law’ (1988) 16 Denver jil and Policy 353–375, 360. 327 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 106. 328 Gentili, De Iure Belli, Book ii, Chapter 22; Gentili, Hispanica Advocatio, Book i, Chapter 5, pp. 21–23; Gentili, Hispanica Advocatio, Book i, Chapter 14; see also Belli, A Treatise on Military Matters and Warfare, Part 2, Chapter 18, p. 99. 329 Henry Nézard, ‘Albericus Gentilis’, vvaa, Les Fondateurs du Droit International (Paris: Giard & E. Briere 1904) 37–93, 74. 330 Gentili, Hispanica Advocatio, Book i, Chapter 5, p. 21. 331 Id. 332 Simmonds, ‘Alberico Gentili and the Admiralty Bar’, 16. 333 Gentili, De Iure Belli, Book i, Chapter 19, p. 138. 334 Nézard, ‘Albericus Gentilis’, 75.

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fortune provided that there was no wicked intent. Admittedly, this passage of the De Iure Belli is not clear. Did Gentili require compliance with the laws of the host state? Did he refer to state security? Gentili also discussed the consequences of the neutral state’s trade with one of the belligerents. According to state practice, belligerent sovereigns could forbid their subjects from all trade with the enemy and even access to enemy territory.335 More controversial was the question of whether sovereigns could prohibit or prevent foreign subjects, especially foreign merchants subject to a neutral sovereign, to trade with enemies.336 The principle of free trade was well-established and impeding free trade could be perceived as a violation of the law of nations. Nonetheless, ‘nations at war … tried to prevent neutrals from carrying on the sea supplies necessary and helpful to their opponents in the waging of the war’.337 The state of war was recognized as a just cause for imposing a ban on trade with the enemy, because goods ‘were a direct aid to the war effort’.338 A different albeit related question concerned the types of goods that should be the object of such embargos. Certainly, trade in weaponry and gun powder between neutrals and enemies could be legitimately prevented or halted.339 Some treaties, including a treaty between England and France, allowed neutral ships and their cargoes to trade with an enemy, with the exception of arms and munitions.340 Contraband items could be seized.341 State practice confirmed the distinction between tradable items and contraband. Because of the necessity to preserve its own existence in times of war, for Gentili, a belligerent state could legitimately prevent a neutral state from having commercial relations with the enemy, in order to weaken the enemy’s resistance. For Gentili, ‘those who render[ed] aid m[ight] always be attacked in war because of the aid which they ha[d] sent’.342 In other words, ‘they should be considered enemies who d[id] what please[d] the enemy. And they [we]re in the army of the enemy who g[a]ve to the army of the enemy things necessary for war’.343 While neutrals aimed to preserve their profit (lucrum commerciorum), Gentili ­argued, the belligerent parties intended to preserve their own safety (salus sua). 335 Alain Wijffels, ‘Julius Caesar’s Notes on the Status of pows’ (1997) 65 Tijdschrift voor Rechtsgeschiedenis 349–372, 356–357. 336 C.G. Roelofsen, ‘Grotius and State Practice of His Day’ (1989) 10 Grotiana 16. 337 Balch, ‘Albericus Gentilis’, 674. 338 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 433. 339 Wijffels, ‘Julius Caesar’s Notes on the Status of pows’, 356. 340 Rubin, ‘The Concept of Neutrality in International Law’, 363. 341 Id. (but noting that ‘there was no necessary uniformity in the treaties taken as a group’.) 342 Gentili, De Iure Belli, Book ii, Chapter 2, p. 140. 343 Balch, ‘Albericus Gentilis’, 675.

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For Gentili, the principle of free trade would give way to the reason of state (ragion di stato). He understood that the need to preserve public safety could justify breach of freedom of commerce.344 In this context, ‘Gentili support[ed] measures against the person and property of foreign merchants whose dealings assist[ed] the enemy, particularly the enemy’s warfare’.345 Nonetheless, he cautioned that any automatism should be avoided, and that some hostile acts did not necessarily justify war.346 This was a big issue at the time (magna quaestio), as during the Anglo-­ Spanish War (1585–1604), English vessels impeded the Hanseatic League, the Dutch, Danish, and Polish merchants, then third neutrals, from trade with Spain.347 Neutral ships were searched and eventually seized. The neutrality of ships was ‘a contested status that depended, among other things, on … whether the ship carried warlike cargo’.348 Preventing trade of neutrals with the enemy was perceived to be part of a ‘war waged with a power which had … an unlimited amount of money, but which was singularly dependent on other countries’ for a number of commodities.349 Neutrals opposed and complained about these trade embargoes proclaimed by belligerents, as they were interested in continuing their commerce.350 For instance, the Hanseatic cities complained that the English pillaged their ships in spite of the treaty that provided that the Hanse were entitled to pursue trade with England’s enemies.351 The Queen’s reply, Gentili reported, was that the Hanseatic friendship with both sides ‘did not consist in injuring the one party and aiding the other’.352 How to treat neutral goods on enemy ships or enemy goods on neutral ships was another controversial issue.353 Could these goods be taken as a prize?354 Despite the shipowners’ protests, ‘the right to seize enemies’ goods on neutral 344 Gentili, De Iure Belli, Book I, Chapter 21 (‘Ius commerciorum aequum est, at hoc aequius tuendae salutis. Est illud gentium ius, hoc Naturae est. Est illud privatorum, est hoc regno­ rum. Cedat igitur regno mercatura, homo naturae, pecunia vitae’.) 345 Alain Wijffels, ‘Gentili and the Hanse: The Early Reception of the De Iure Belli (1598)’, in Pierre-Marie Dupuy and Vincent Chetail (eds.) The Roots of International Law (Leiden: Brill 2014) 181–209, 182. 346 Gentili, De Iure Belli, Book ii, Chapter 2, p. 140. 347 Id. Book ii, Chapter 22, p. 267. 348 Margaret R. Hunt, ‘All at Sea: The Prize Papers as a Source for Global Microhistory’ (2015) 37 German Historical Institute London Bulletin 124–135, 126. 349 Edward P. Cheyney, ‘International Law under Queen Elizabeth’ (1905) 20 English Histori­ cal Review 659, 672. 350 Gentili, De Iure Belli, Book ii, Chapter 22, p. 267. 351 Id. 352 Id. 353 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 433. 354 Id.

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ships was exercised ‘whenever there was an opportunity’.355 In a speech to the Ambassador of Poland, Queen Elizabeth I argued that intercepting aid sent to enemies was in accordance with the law of nature and of nations, since natural law allowed peoples to defend themselves.356 Analogously, in a case in which Gentili served as the advocate of English merchants before the High Court of Admiralty in London, he did not contest the right of a Tuscan warship to search and seize Ottoman enemies’ goods in English ships in Tuscan waters.357 Similarly, when the Sardinians and Maltese seized an English ship en voyage to Constantinople, they argued that ‘it [wa]s contrary to the law of nations for a neutral people to send arms to belligerent nations with whom they [we]re at peace’, recalling ‘the precedent of the Hanseatic cities which were forbidden to furnish munitions of war to the Spaniards, when Spain and England were at war’.358 Gentili did not contest the right to seize arms directed to the enemy in neutral vessels; rather, he contested the existence of the factual circumstances that would justify the applicability of such rule, arguing that in casu the taking of the English vessel was unlawful.359 He argued that, on the one hand, the law of nations prohibited neutrals from selling military supplies to one of the belligerents.360 On the other hand, however, he argued that those rules did not apply to the present case as most of the cargo of the English ship did not have a military use.361 As to the material which had a military use, namely gun powder, he argued that such arsenal was intended for the ship’s own defence, not for sale, and therefore, it could not be subject to confiscation.362 Gentili concluded that the Maltese could legitimately prevent any arms trade between neutrals and their enemies, but should not requisition the English ship because the ship had not engaged in such trade.363 Therefore, on behalf of his clients he requested the return of the cargo and of the ship itself.364

355 Cheyney, ‘International Law under Queen Elizabeth’, 665. 356 Id. 668. 357 Gentili, Advocatio Hispanica, Book i, Chapter xxviii, 125–126; Book i, Chapter xxvii, 123; Frank Frost Abbott, ‘Alberico Gentili and His Advocatio Hispanica’ (1916) 10 ajil 745 (noting that although the Tuscans and the Turks were not formally at war, they ‘were raiding each other’.) 358 Abbott, ‘Alberico Gentili and His Advocatio Hispanica’, 745–746. 359 Gentili, Hispanica Advocatio, Book i, Chapter xx, pp. 87–98. 360 Id. p. 88. 361 Id. pp. 87 and 95. 362 Id. p. 92. 363 Id. pp. 95–96. 364 Id. p. 92.

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In conclusion, the early modern law of war did not govern neutrality in general and it did not detail the rights and duties of non-belligerents in ­particular.365 While states could agree on such rights by signing particular treaties, even such agreements often did not prevent recourse to force. Only in the last decades of the eighteenth century and the first decades of the nineteenth century did ‘general rules of customary law gr[o]w out of this practice’.366 Rules of naval warfare and prize law ‘strongly contributed to the early modern development of the status of neutrals’367 as ‘[l]itigation before the Court of Admiralty often involved captains, shipowners, merchants’ who were subjects of a neutral sovereign.368 One of the most significant problems of early modern neutrality law was the controversy as to the legality of the seizure of enemy goods in neutral ships and the capture of neutral goods in enemy ships.369 The English maritime practice was severe: ‘enemy goods were liable to capture under a neutral flag and neutral goods were equally vulnerable whilst under an enemy flag’.370 Nonetheless, ‘the treatment of neutrals could fluctuate according to an opportunistic assessment of the circumstances and of the interests at stake’.371 Gentili contributed to the elaboration of some notions of neutrality law, affirming the belligerents’ duty to respect the neutrality of other countries, not to wage war in their territories or territorial seas, and the neutrals’ duty not to provide any arms to the belligerents. 5.2.4 The Ius in Bello The second book of the De Iure Belli focuses on the ius in bello. While most of the Scholastics focused on the ius ad bellum only, Alberico Gentili sparked an interest in the ius in bello, illustrating the rules limiting the use of violence during war and introducing the idea of proportionality in the conduct of warfare. One of Gentili’s precursors, Pierino Belli advocated such moderation because, according to Belli, human beings are inclined to evil (proclives esse omnes homines ad malum) and, in the conduct of war, it is crucial not to make mistakes, as even the smallest spark can give rise to the biggest fires (Oportet etiam in re militari quam minime peccari, quando et minima scintilla magna possit

365 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 434. 366 Id. See generally Stephen C. Neff, The Rights and Duties of Neutrals: A General History (Manchester: Manchester University Press 2000). 367 Wijffels, ‘Julius Caesar’s Notes on the Status of pows’, 360. 368 Id. 369 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 18. 370 Id. 371 Wijffels, ‘Julius Caesar’s Notes on the Status of pows’, 361.

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conflari incendia).372 Instead, for Gentili, human beings are inclined to good; if ­nonetheless war was necessary, they should wage it according to the law of war. In his theory of the law of war, Gentili argued that it was ‘fitting to restrain the violence of war as much as possible’. Not only was moderation required because war was a means of attaining peace,373 but also and more fundamentally because both sides shared a common human nature.374 Accordingly, ‘war, like peace, ha[d] its laws’.375 The law of nations governed not only the recourse to war, but also the conduct of the same and was applicable to all belligerents, irrespective of the alleged justice or injustice of their recourse to war.376 In fact, Gentili discussed ‘just war’ not only in relation to the reasons for waging war, which he examined in the first book of the De Iure Belli, but also in the sense of war waged according to the law of war. Far from being a purely theoretical exercise, his approach promoted the ‘humanization’ of the law of war.377 He continually emphasized the need to attain and maintain certain minimum standards of conduct in international relations and to deal with enemies according to law.378 Ideas of restraint and humanity underpinned Gentili’s theory of the law of war and he advocated recourse to ‘humane principles’, and called for ‘a high degree of respect and mercy for the human person’ in the conduct of war.379 Gentili’s contribution was all the more important if one considers that such humane ideas were far from universal—let alone implemented—in the early modern period. Gentili also discussed the importance of proportionate action in the conduct of war.380 For instance, while he considered that in waging war, craft and 372 Diego Quaglioni, ‘Pierino Belli: Guerra e Diritto’ in Diego Quaglioni, Machiavelli e la Lin­ gua della Giurisprudenza (Bologna: Il Mulino 2011) 177–198, 197. 373 Gentili, De Iure Belli, Book iii, Chapter 1, p. 289 (‘the end of war … is peace’); Book ii, Chapter 23, p. 275 (adding that ‘regard must be had to the future, since those who are our enemies may become our friends … in your treatment of your friend bear in mind that he may become your enemy; and in your treatment of your enemy, that you may be one day reconciled with him’.) 374 Gentili, De Iure Belli, Book ii, Chapter 18, p. 239; Book ii, Chapter 20, p. 250 (arguing that ‘the community of nature … always continues to be a common bond … the enemy, too, partakes of this common nature’.); Book ii, Chapter 21, p. 251 (both sides have ‘that tie which is created within [them] by nature, and always shall have it’.) and p. 252 (‘Hostility does not sever our natural ties with any one’.) 375 Gentili, De Iure Belli, Book ii, Chapter 21, p. 251. 376 Carlo Focarelli, Introduzione Storica al Diritto Internazionale (Milan: Giuffrè 2012) 206. 377 Theodor Meron, ‘Shakespeare’s Henry the Fifth and the Law of War’ (1992) 86 ajil 1–45, 26–27. 378 Gentili, De Iure Belli, Book ii, Chapter 3, pp. 143; K.R. Simmonds, ‘Some English Precursors of Hugo Grotius’ (1957) 43 Transactions of the Grotius Society 143–157, 147. 379 Meron, ‘Shakespeare’s Henry the Fifth and the Law of War’, 44. 380 Peter Schroeder, ‘Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations’, in Benedict

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stratagem were admissible, he nonetheless did not allow every kind of craft.381 Rather, he argued that agreements with enemies should be made in good faith, considering good faith ‘the foundation of justice’.382 While Gentili referred to a number of examples, one seems particularly pertinent. For Gentili, the Samnites, an ancient Italic people who fought several wars with the Roman Republic, ‘were unjust when they agreed with the enemy to take away but one stone along the entire circuit of their walls and then took the stone from the bottom of the wall, thus wholly destroying it’. In fact, Gentili argued, ‘if but one stone was to be taken from the wall, it was not right that the whole wall should be destroyed’.383 He concluded that every interpretation is natural if it is clear to the ears of common people.384 Gentili asserted that ‘the rights of humanity and the laws of war [required] the sparing of those who surrendered’,385 and argued that prisoners of war should be treated humanely and not be killed.386 Therefore, he condemned King Henry v’s (1386–1422) order to execute prisoners after the Battle of Agincourt in the Hundred Years’ War against France as a ‘hateful and inhuman deed’. As Gentili put it, ‘I cannot praise the English who, in that famous battle in which they overthrew the power of France, having taken more prisoners than the number of their victorious army and fearing danger from them by night, set aside those of high rank and slew the rest’.387 Gentili briefly noted the evolution in the modes of warfare: from fighting with bare hands, kicking and biting, as well as using stones and agricultural tools, to the use of bows and arrows, swords, and fire arms.388 For Gentili, biting and the use of agricultural tools were unworthy of human beings. He also considered that the law of nations forbade the use of poison, poisonous weapons, and poisonous animals as well as the poisoning of wells or w ­ atercourses.389 He admitted the use of stratagems, provided that they were not ­perfidious.390 He also admitted the use of new weapons and war machinery, such as guns,

Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 176. 381 Gentili, De Iure Belli, Book ii, Chapter 3, pp. 142–143. 382 Id. Book ii, Chapter 4, p. 145. 383 Id. p. 146. 384 Id. 385 Meron, ‘Shakespeare’s Henry the Fifth and the Law of War’, 27. 386 Grewe, The Epochs of International Law, 213. 387 Gentili, De Iure Belli, Book ii, Chapter 16, p. 212. 388 Id. Book II, Chapter 7, p. 163. 389 Id. Book II, Chapter 6, p. 159 (wishing ‘Farewell to Baldus in this matter. Farewell to poisons. Farewell, nay perish, those who war with poison’.) 390 Id. Book ii, Chapter 3, pp. 142–144.

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bombards, and cannons, because he considered them analogous to t­ raditional weapons.391 ‘Siege warfare was a central feature of early modern warfare’.392 Under the traditional laws of war, once siege works were set, capitulations did not have to be accepted, and if a town or fortress was taken by storm, it could be sacked and plundered.393 The lives of the city dwellers were entirely at the besieger’s disposal. Although sacks were generally deplored for their slaughter of innocents, atrocities, and injustices, they remained lawful under the law of nations.394 Examples of terrific storms abounded.395 In the context of siege warfare, Gentili admitted that there might be reasons for refusing to accept a surrender, but if there was no such cause, it surely seemed right to accept it; otherwise there would be a war of extermination.396 Gentili denied that obstinate resistance (pertinax defensio) during siege warfare deserved punishment.397 Only those enemies who had personally violated the laws of war (for examples deserters) could be killed.398 For Gentili, the exchange of prisoners should be conducted in good faith, and captured leaders should be treated humanely.399 During the early modern period, ‘it was customary for the belligerents to seize and confiscate the property of enemy subjects found on their territory’ to partially meet the costs of war.400 If most peace treaties provided for the restitution of immovable goods, they permitted the seizure and acquisition of title on the movables.401 The law of war also permitted the destruction of fortresses, towns, and buildings in order to weaken the enemy and bring the conflict to a rapid conclusion. Gentili realistically narrated many episodes of brutal devastation.402 391 Gentili, De Iure Belli, Book ii, Chapter 7, p. 163. 392 Lesaffer, ‘The Classical Law of Nations 1500–1800’, 432. 393 Id. 394 J.R. Hale, War and Society in Renaissance Europe 1450–1620 (Leicester: Leicester University Press 1985) 195. 395 Id. (reporting that ‘when the Spanish troops stormed Maastricht in 1579, one-third of the city’s men, women, and children were slaughtered on the spot’ and adding that ‘an English survivor of the sack of Antwerp in 1576 compared the storm to Michelangelo’s Last Judgement in the Sistine Chapel’.); Hall, Weapons and Warfare in Renaissance Europe, 211 (reporting that ‘the siege of Ostende lasted three years and cost the lives of 40,000’.) 396 Gentili, De Iure Belli, Book ii, Chapter 17, p. 218. 397 Id. Book ii, Chapter 16, pp. 212–213. 398 Grewe, The Epochs of International Law, 213. 399 Id. 400 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 435. 401 Id. 435–436. 402 Gentili, De Iure Belli, Book II, Chapter 23, pp. 272–274 (referring to the Tamerlan, Titus, and other historical examples).

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Nonetheless, Gentili condemned all wanton violence against human beings, cultural and natural heritage. He distinguished between combatants and noncombatants (innocentes), that is, those who refrained from all violence in armed conflict.403 Gentili condemned the execution of enemy chiefs, the killing of surrendered soldiers and prisoners of war, and all arbitrary forms of cruelty such as mistreating prisoners or denying burial to the dead.404 Even if he admitted that the practice had sometimes been otherwise, he held that ‘not everything that is permitted is honest’ (non omne quod licet honestum est).405 Rather, he restated the duty to honour the deceased with an appropriate ­burial, referring to literary examples drawn from Renaissance epic including Ariosto’s Orlando Furioso406 and Tasso’s Gerusalemme Liberata,407 and Greek ­tragedies including Euripides’ Suppliants and Sophocles’ Antigone.408 Gentili claimed that ‘it [was] the usage of war either to bury the dead or to turn them over to their countrymen when they ask[ed] for them’. Because ‘an outrage to the dead is an outrage to our common nature’ and ‘no one ought to be angry  with the dead’,409 Gentili also repeated the prohibition to damage the corpses of the deceased and the duty to return them to the respective party without any ransom under the law of nations and the law of humanity (Hoc est gentium et humanitatis ius).410 Referring to the literary example drawn from Homer’s Iliad, he criticized Achilles’ conduct with regard to the corpse of Hector.411 For Gentili, acts of violence should be avoided with regard to non-­combatants who ‘are compelled to experience the cruelty of fortune’, including the elder­ ly, women, children, priests, peaceful peasants, foreign merchants, and the ­mentally ill for reasons of humanity and in accordance with divine, natural, and domestic laws.412 While Belli argued that children, merchants, c­ lergymen,

403 Gentili, De Iure Belli, Book II, Chapters 21 and 22. 404 Id. Book ii, Chapter 15, p. 205 and Chapter 16, p. 210 (‘prisoners are not to be slain’.) 405 Id. Book II, Chapter 16, p. 211. 406 Ludovico Ariosto, Orlando Furioso [1532] John Harington (transl) [1591] (Oxford: oup 1971). 407 Torquato Tasso, Gerusalemme Liberata [1581] Luca Caretti (ed) (Milano: Mondadori 1983). 408 Euripides, The Suppliants [423 bc] Rosanna Warren and Stephen Scully (transl.) (Oxford: oup 1995); Sophocles, Antigone [442 bc] in Sophocles, The Tragedies, Richard C. Jebb (transl) (Cambridge: cup 1917). 409 Gentili, De Iure Belli, Book II, Chapter 24, pp. 279–280. 410 Id. p. 281. 411 Id. p. 280 (also criticizing Hector for similar conduct against the corpse of Patroclus). 412 Id. Book ii, Chapter 20, p. 250. See generally Book ii, Chapter 20 (of suppliants); Chapter 21 (of women and children); Chapter 22 (of farmers, traders, foreigners, and the like).

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f­ oreigners, and neutrals ought to be spared,413 Gentili expanded the ­category of non-combatants to include women and the elderly.414 He admitted that if women took up arms, they would lose their immunity as ‘women who led armies, and other brave females of that kind ought not to be spared more than any man’.415 Nonetheless, he insisted that their treatment should always be in conformity with the laws of war.416 He considered rape to be unlawful under any circumstance, even in siege warfare.417 The elderly, farmers, clerics, traders, and the mentally ill should not be treated violently, provided they were unarmed.418 Travellers, merchants, and foreigners staying among enemies should not be molested ‘for they themselves were not enemies’.419 Gentili condemned the destruction of cultural heritage, such as temples, statues, sacred objects and artworks, libraries and manuscripts.420 He despised both the irrationality and iniquity of such devastation. On the one hand, he stressed that not only was there no profit in such ruination but such destructions were also not conducive to peace and justice, which should be the ultimate ends of war; rather, they unavoidably led to a war of annihilation.421 On the other hand, he condemned the iniquity of excess in war.422 For Gentili all those who violated the temples of others deserved censure, except if they acted in response to similar outrages.423 Like Erasmus, he considered a ‘cruel slaughter’ the killing of ‘holy men’ who took up arms to defend the temple of Jerusalem.424 Gentili concluded that the belligerents should not offend the religion of others, ‘for fear that [their] … religion m[ight] be outraged in turn because of this provocation’.425

413 Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter 9, pp. 80–81 (noting that the practice of carrying away women into captivity persisted in dealings with the Turks). 414 Gentili, De Iure Belli, Book ii, Chapter 21, p. 251 (arguing that ‘children should always be spared and so should women’.). 415 Id. p. 252. 416 Id. p. 253. 417 Id. p. 257 (‘to violate the honour of women will always be held to be unjust’.); Belli, A Trea­ tise on Military Matters and Warfare, Part vii, Chapter iii (considering rape a crime, not to be condoned). 418 Gentili, De Iure Belli, Book ii, Chapter 21, p. 260 (on the elders); Book ii, Chapter 22, pp. 261–269 (on farmers, religious persons, traders, and foreigners). 419 Id. 420 Id. Book II, Chapter 23, p. 270. 421 Id. 422 Id. 423 Id. pp. 271–272. 424 Id. Book ii, Chapter 22, p. 261. 425 Id. Book ii, Chapter 23, p. 272.

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Gentili also condemned the devastation of nature, the killing of cattle, the destruction of harvests, the cutting of trees, and the poisoning of wells.426 ­Similar provisions are key aspects of current humanitarian law.427 For Gentili, ‘the land of the enemy should not be ruined’.428 Rather, both sides should act ‘not as if war would blaze forever, but as if one day their minds would be reconciled and peace returned’.429 Nonetheless, in cases of military necessity (what Prussian scholars would later call Kriegraison), he admitted that temples that were used as fortresses could be destroyed for military necessity or by way of retaliation.430 In conclusion, on the whole, Gentili sought to moderate the conduct of war. For Gentili, belligerents should avoid excesses, adopt moderation in warfare, and observe honour, justice, and humanity. Such moderation was required by the common humanity of the belligerents and was functional to the achievement of a durable peace in the aftermath of war. Because Gentili considered peace as the very aim of war, he advocated moderation in the conduct of the same thus contributing to the gradual coalescence of humanitarian law. 5.2.5 The Ius post Bellum After considering the various prerequisites for waging war lawfully (ius ad bel­ lum) and reflecting on the lawful conduct of war (ius in bello), Gentili concluded his theory on the law of war by illuminating the features of the ius post bellum (i.e. law after war). The ius post bellum is the legal framework regulating the transition from conflict to peace. This section examines Gentili’s stance on the ius post bellum, discussing the aims, objectives, and operation of this branch of law. The section also discusses the elements of continuity and change with the scholastic tradition.

426 Gentili, De Iure Belli, Book ii, Chapter 22, p. 261 (‘it is forbidden for fruitful trees to be cut down in time of war’); Book ii, Chapter 23, p. 270 (‘to waste the crops, burn farmhouses,­and commit other outrages of that kind is a mark of extreme hatred’.); Book ii, Chapter 6, p. 159 (condemning the contamination of water); Book ii, Chapter 23, p. 275 (‘it is forbidden to cut down fruitful trees, even for the purpose of making engines of war … if such trees had the power of speech, they would all cry out with one voice that it was unjust for them, not being the cause of war, to suffer punishment because of war… trees harm no one, but they are useful’.) 427 Giorgio Badiali, ‘L’Attualità del Pensiero Gentiliano nel Moderno Diritto Internazionale’, in vvaa, Alberico Gentili nel Quarto Centenario del De Iure Belli (Milan: Giuffrè 2000) 53. 428 Gentili, De Iure Belli, Book ii, Chapter 23, p. 275. 429 Id. 430 Id. pp. 274–275.

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The third book of the De Iure Belli ‘is in all but a name a treatise on the law of peace’.431 Why did Gentili focus on peace in a treatise on the law of war? Before Gentili, the lawyer and statesman Belli pointed out that ‘it has been so arranged and ordered by nature that opposites are bound together; and the things which appear to [human beings] to be utterly opposed are yet connected with one another’.432 Quoting Solomon, Belli recalled that ‘the end of mirth is heaviness’ and added that ‘death follows life with no interval’ (quod vivens moritur).433 He noted that ‘all things are thus produced, i.e. opposites from opposites, and … there is a mutual development from one into another’.434 Likewise, there is a natural connection between war and peace as the end of war should be peace: ‘Wars should be waged not out of greed and cruelty, but in the desire for peace’.435 Belli defined peace as ‘the work of justice’, a ‘virtue’, and ‘sentiment of love’, but cautioned that ‘if you desire peace, prepare for war’ (si vis pacem, para bellum).436 Analogously, Gentili considered peace as the aim of war.437 He considered peace as ‘ordered harmony’, ‘the proper distribution of things’, and ‘the orderly settlement of war’.438 For Gentili, peace was the ‘complete cessation of discord’ that should seek and reflect justice.439 Starting from the premise that peace should be the end of war, he considered the importance of a permanent peace and innovatively linked it not only to justice but also to state security. Both Gentili and Belli defined peace as ‘an agreement by the terms of which a war already begun is brought to an end’.440 According to Gentili, the word peace (pax) stemmed from the Latin verb pangere, to make a pact specifying the rights and duties of both parties.441 Gentili distinguished peace treaties from truces, as the former aimed to end a war, while the latter merely postponed it, and constituted a sort of ‘temporary and intermediate peace’.442 He also stressed that in signing peace, ‘both sides commonly consider[ed], not only the past, but also the future’.443 431 Wijffels, ‘Gentili and the Hanse’, 182. 432 Belli, A Treatise on Military Matters and Warfare, Part x, Chapter i, p. 277. 433 Id. 434 Id. 435 Id. p. 278. 436 Id. pp. 278–279. 437 Gentili, De Iure Belli, Book iii, Chapter i, p. 289. 438 Id. p. 290. 439 Id. 440 Belli, A Treatise on Military Matters and Warfare, pp. 278–279; Gentili, De Iure Belli, Book ii, Chapter 10, p. 176 (interpreting peace (pax) as a pact (pactio) that puts end to war.) 441 Russell, The Just War in the Middle Ages, 4; Gentili, De Iure Belli, Book iii, Chapter 1, p. 290. 442 Gentili, De Iure Belli, Book ii, Chapter 12, p. 186. 443 Id. Book iii, Chapter 1, p. 290.

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The third book of the De Iure Belli thus explores the ius post bellum and, in particular, peace treaties regulating the restoration of peace.444 Gentili ­identified the ius post bellum as a distinct legal framework, separate from theology and domestic law and emerging from a dialectical interaction of the law of nations with peace processes. Therefore, he aptly noted that the analogical extension of civil law concepts to the ius post bellum, albeit possible, was not always desirable because it could be unsuitable to the latter. For Gentili, peace treaties should not be analogized to mere contracts.445 While the former were governed by the law of nations, the latter were governed by the civil law. Therefore, in the interpretation of treaties, justice, good faith, and equity (aequitas) should prevail over the strict or literal interpretation of the law (rigor iuris).446 For Gentili, an overly strict interpretation of peace treaties would end up paradoxically justifying their violation or invalidate them.447 And the respect of peace treaties was critical to the maintenance of peace, as their violation could ultimately lead to a new war.448 Gentili contributed to the humanization of the ius post bellum. Earlier scholars, including Vitoria, relied on the just war theory and therefore conceptualized post-war justice as a continuation of such theory. Accordingly, they viewed the victor as a judge adjudicating a dispute between those who committed an injury and those who suffered it.449 For Vitoria, in making peace, the victor should have two aims: (1) reparation and (2) punishment.450 First, the victor should seek reparation for all the losses suffered during the war. Second, he might punish the vanquished ‘both as a matter of justice and as a deterrent to others’.451 In pursuing these objective, the victor should observe ‘proportionality and moderation’.452 For Vitoria, ‘the victor might pursue security and peace 444 Randall Lesaffer, ‘Alberico Gentili’s Ius Post Bellum and Early Modern Peace Treaties’, in Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: oup 2010) 210–240, 210. 445 Gentili, De Iure Belli, Book iii, Chapter 14, p. 361. 446 Id. (adding ‘there should be no deception’.); Chapter 12, p. 349 (‘Justice should be preferred to the letter of the law’.); Chapter 20, p. 406 (‘we do not decide disputes by cunning, but by justice, and we make laws with an eye, not to their literal force, but to the common good’.) 447 Id. Book iii, Chapter 14, p. 361. 448 Giuliano Marchetto, ‘La Definizione Giuridica della Pace nel De Iure Belli di Alberico Gentili’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 295–309, 297. 449 Diego Panizza, ‘Alberico Gentili e la Scuola di Salamanca. Un Contrasto di Paradigma’, in Marta Ferronato and Lucia Bianchin (eds.) Silete Theologi in Munere Alieno—Alberico Gentili e la Seconda Scolastica (Milano: cedam 2011) 163–184, 174. 450 Id. 174. 451 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 231. 452 Id.

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for instance pulling down fortresses’; or ‘deprive the enemy of part of his land … in revenge and according to the scale of injury’.453 The Gentilian system both builds upon and departs from this tradition. For Gentili, the ius post bellum had two fundamental aims: (1) punishment (ultio) and (2) the restoration of peace (firmitas pacis).454 With regard to the victor’s rights of ‘punishment’, Gentili builds upon the scholastic tradition, arguing that such punishment aimed at providing reparation for past wrongs and preventing future wrongs.455 Therefore, ‘the vanquished party m[ight] be deprived of all weapons of war’;456 ‘[t]heir fortifications and, if necessity demand[ed], their town taken by storm m[ight] be destroyed’.457 For Gentili, the victor would be entitled to recover the expenses of the war and compensation for the losses that he suffered if the enemy did not have a just cause. However, if the loser had just ground for litigation, he should not be condemned.458 Realistically, Gentili noted that often ‘those who have the better cause are defeated by those who have the worse’.459 And the victor ‘can hardly pronounce the cause of the vanquished just’. Yet, for Gentili, the victor ‘ought, so far as possible, to have regard to the principles of justice and along with his own right to maintain those of the other party’.460 Although Gentili condemned ‘the lust for dominion’ and concurred with Augustine that ‘wars made for the sake of extending one’s power were a form of brigandage on a large scale’, he considered that the victor was entitled to deprive the enemy of his territory.461 Nonetheless, he considered the p ­ ossibility of leaving their realm to the vanquished, ‘if that [wa]s consistent with safety’.462 For Gentili, cities could be sacked when taken but they should not be sacked when surrendered.463 They ought not to be devastated without a just reason.464 Finally, for Gentili, prisoners should be spared; he firmly stated that any form of cruelty was unjust and unjustifiable and he expressly condemned the use of torture.465 453 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 231. 454 Gentili, De Iure Belli, Book iii, Chapter 1 and Chapter 13. 455 Id. Book iii, Chapter 2, p. 295; Chapter 13, p. 353. 456 Id. Book iii, Chapter 6. 457 Id. Book iii, Chapter 7. 458 Id. Book iii, Chapter 3, p. 298. 459 Id. 460 Id. 299. 461 Id. Book iii, Chapter 4, p. 304. 462 Id. Book iii, Chapter 10, p. 336. 463 Id. Book iii, Chapter 7, p. 315. 464 Id. p. 319. 465 Id. Book iii, Chapter 8, p. 325 (‘who will defend the Spaniards when they inflicted a wretched death upon some great kings of the New World…?’).

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Yet, in his conduct, the victor ought to follow moderation (moderatio), compassion, and humanity.466 As Gentili pointed out, in the aftermath of war the will of the victor could not be completely unrestrained; ‘if the vanquished could lose everything’, he argued there would never be peace.467 For instance, Gentili argued that temples and sacred objects should be spared.468 The punishment should be ‘just’, proportionate to the measure of each offence, and in conformity with the law of nature.469 For Gentili, limits to vengeance and punishment were due to the common humanity of the victor and the vanquished.470 The baseness of others ought not to make us base.471 The victor should impose nothing upon the vanquished which was contrary to the law of nature.472 Gentili concluded that the victor should behave justly as ‘justice is the foundation of all the virtues, and one should not depart from it for the sake of advantage’.473 What if the victor did not behave justly? As mentioned, for Gentili war amounted to a trial and the victor should behave like a just judge. Nonetheless, as the maxim nemo iudex in re sua aptly states, no person can judge a case in which they have an interest. In the absence of an international tribunal to check and punish the injustice of the victor, did the victor remain substantially unbound and unaccountable? Gentili addressed this question, considering that the victor would have to render an account not only to God, but also to the rest of the international community.474 In fact, Gentili believed that ‘nemesis overtakes the unjust’,475 and that other sovereigns would wage honest wars against the unjust ‘to maintain the common law of nations and of nature’.476 With regard to the restoration of peace, this was a novel element that Gentili introduced into the ius post bellum. Rather than considering peace as a mere appendix to war, Gentili considered peace as a guiding principle, the ordered end of war, and the right order of things (ordinata concordia).477 Gentili

466 Gentili, De Iure Belli, Book iii, Chapter 3, p. 294. 467 Id. Book iii, Chapter 2, p. 291. 468 Id. Book III, Chapter 6, p. 313. 469 Id. Book iii, Chapter 2, pp. 291 and 295. 470 Id. p. 291 (arguing that the whole world is one commonwealth; all human beings are one people and fellow citizens, being ‘like a single herd grazing in a common pasture’.) 471 Id. 292 (adding that ‘if others use abusive language, we should consider not what is fitting for them to hear but what our own modesty will allow us to utter’.) 472 Id. Book iii, Chapter 11, p. 346. 473 Id. Book iii, Chapter 2, p. 296. 474 Id. Book ii, Chapter 21, p. 257. 475 Id. Book iii, Chapter 2, p. 296. 476 Id. Book ii, Chapter 21, p. 257. 477 Marchetto, ‘La Definizione Giuridica della Pace nel De Iure Belli di Alberico Gentili’, 306.

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­conceptualized the ius post bellum as a lex pacificatoria; he highlighted that peace should be the end of the ius post bellum. For Gentili, in the aftermath of war, ‘everything should be directed towards the true purpose of victory, which is the blessing of peace’.478 Gentili adopted the famous definition of peace as the true end of war elaborated by Augustine: ‘peace is not sought in order to provoke war, but war is waged in order to attain peace. Be a peacemaker, then, even by fighting, so that through your victory you might bring those whom you defeat to the advantages of peace’.479 Gentili also highlighted the importance of establishing a permanent peace, linking peace and international stability on the one hand and peace and state security on the other.480 Therefore, in his system, perpetual peace (firmitas pacis) and safety, rather than retribution, were the essential criteria for establishing a just legal order after war.481 As mentioned, Gentili saw war as a conflict between equal states recognizing each other as a rightful enemy (iustus hostis). Not only did this seminal move contribute to the ‘humanization’ of warfare,482 but it also contributed to the humanization of the ius post bellum. In fact, ‘the obligation imposed on belligerents to avoid excesses and observe … honour, justice, and humanity’ also applied to the victor.483 For Gentili, ‘the victor’s conduct [would] depend on the seriousness of the injury received, the amount of damages suffered, and the necessity of ensuring ultimate security’.484 However, the victor should not go beyond such limits; ‘for war is made not for its own sake, but with a view to attain peace’485 and peace could endure ‘if it were fair on both sides’.486 Gentili recommended the adoption of terms of peace which enabled stable and peaceful relations among nations.487 In fact, he believed peace would last, if the terms of peace treaties were ‘fair on both sides’ and complied with the law of nations and the law of nature.488 For Gentili, reasonableness, moderation, compassion, and common sense should guide the conduct of the ­victor.489 478 Gentili, De Iure Belli, Book iii, Chapter 2, p. 293. 479 Augustine, Political Writings, Michael W. Tkacz and Douglas Kries (eds) (Indianapolis: Hackett Publishing 1994) 219. 480 Gentili, De Iure Belli, Book iii, Chapter 13, p. 359. 481 Id. Book iii, Chapter 1. 482 Marchetto, ‘La Definizione Giuridica della Pace nel De Iure Belli di Alberico Gentili’, 237–239. 483 Phillipson, ‘The Great Jurists of the World’, 76. 484 Id. 485 Gentili, De Iure Belli, Book iii, Chapter 1. 486 Id. Book iii, Chapter 13, p. 354. 487 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 115. 488 Gentili, De Iure Belli, Book iii, Chapter 13, p. 354. 489 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 115.

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Equity (aequitas) should be preferred to strict law (ius strictum), and honesty (honestas) to utility (utilitas).490 Equity was not an autonomous norm but rather a complex, elusive, and foundational feature in the Gentilian system. It was a safeguard that prevented the international legal order from adopting rigid positions, and enabled it to be flexible and respond to evolving circumstances, as well as to ensure a dynamic dialogue between the law of nations and natural law. In the Gentilian theory, equity was not against the law, but superior to it, as it expressed a higher order of natural justice: ‘in all matters the consideration of justice and equity prevails over the strict interpretation of the law[;] the law of equity is superior to the letter of the law; the meaning is more than the words’.491 Equity and justice became guiding criteria in the determination of the terms of peace.492 Gentili did not endorse the humanist ethics of empire and considered the struggle for glory or dominion (cupiditas gloriae et dominationis) as a fault of humankind. Whereas he indirectly justified territorial acquisition as an outcome of a legitimate war, he stressed that ‘the victor m[ight] not exact war indemnity and tributes or demand territorial cessions to such an extent as to endanger the establishment of a lasting peace’.493 For Gentili, ‘[t]o inflict cruel punishments’ amounted to ‘barbarism’.494 Instead, ‘by being compassionate’, the victor would ‘ensure the future’.495 If the victor had the right to be paid the damages suffered during the war, Gentili recommended moderation in the amount of damages requested.496 Gentili also discussed the law of nations governing peace treaties, an important matter which most of his predecessors had largely ignored. Just as sovereigns had the exclusive power to declare war, they had the exclusive prerogative to make peace.497 Early modern peace treaties became increasingly extensive and ‘played a crucial role in the formation of the political and legal order of Europe’ and the world.498 As Lesaffer points out, ‘[t]hrough peace treaty practice, the ius post bellum grew into a mass of customary principles, concepts, institutions, and rules’.499 On the one hand, such treaties generally 490 Gentili, De Iure Belli, Book iii, Chapter 12. 491 Id. Book i, Chapter 21, p. 101. 492 Id. Book iii, Chapter 13, p. 354. 493 Von Elbe, ‘The Evolution of the Concept of Just War in International Law’, 677; Gentili, De Iure Belli, Book iii, Chapters 4–6 and 13. 494 Phillipson, ‘The Great Jurists of the World’, 76. 495 Von Elbe, ‘The Evolution of the Concept of Just War in International Law’, 677. 496 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 114–115. 497 Wijffels, ‘Julius Caesar’ Notes on the Status of pows’, 362. 498 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 436; Lesaffer, ‘Alberico Gentili’s Ius Post Bellum and Early Modern Peace Treaties’, 210. 499 Lesaffer, ‘Alberico Gentili’s Ius Post Bellum and Early Modern Peace Treaties’, 212.

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put ‘an end to the hostilities’, provided for ‘a general amnesty, the revocation of reprisals, and … the mutual release of prisoners of war’.500 On the other hand, they restored peaceful relations among nations, providing, inter alia, for ‘perpetual peace and friendship’ among states, ‘free movement of persons, [and] the right to trade’.501 As noted by Lesaffer, ‘[t]he perpetuity of peace … did not imply that the signatories promised never to resort to war against one another again. It only meant that the peace treaty exhausted their right to resort to war for disputes over which the war had started’.502 For Gentili, just as doctors had to treat an illness at the root in order to prevent future illness, treaty makers should prevent offences that could reignite the hostilities to achieve perpetual peace.503 For Gentili, peace treaties should be signed and implemented in good faith (pacta sunt servanda). States ought to settle their differences legally and the international community should pursue and maintain peace. Gentili recommended the use of simple clauses and the avoidance of excessive subtlety (sub­ tilitates iuris).504 Minor formal imperfections should not affect the validity of peace treaties.505 Error and fraud could cause the invalidity of peace treaties; however, relying on Bodin, Gentili denied that fear (metus) or coercion could invalidate them. In fact, he saw both elements as inherent to victory. In other words, for Gentili a defeated state could not annul a peace treaty because of fear or duress.506 Instead, a treaty ceased to be valid if it involved an illicit object.507 Gentili acknowledged that the law of nations was dynamic and could be adapted to emerging needs. While treaties should be respected (pacta sunt ser­ vanda) provided that affairs remained in the same condition (rebus sic stanti­ bus), Gentili claimed that a fundamental change of circumstances could justify their breach.508 For Gentili, if a term of a treaty became harmful or unjust, it ‘should no longer be regarded as valid’.509 For instance, if a state promised help to an ally, but was assailed by so great a force that it could hardly maintain its 500 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 436. 501 Id. 502 Id. 503 Gentili, De Iure Belli, Book iii, Chapter 14, p. 360. 504 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 115. 505 Marchetto, ‘Una Guerra Giusta per una Giusta Pace’, 7. 506 Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan 1954) 96. 507 Gentili, De Iure Belli, Book iii, Chapter 18, p. 391. 508 Id. Book iii, Chapter 14, p. 365 and Chapter 24, p. 427 (acknowledging force majeure (vis maior) and necessity as sufficient grounds for non performance.) 509 Wijffels, ‘Gentili and the Hanse’, 183.

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own defence, it would be no longer bound to render aid.510 Gentili also recalled the case of the Hanseatic cities. In 1552, Queen Elizabeth i repealed the privileges that she had previously granted to the Hanse because they had become harmful to domestic merchants.511 For Gentili, treaties always included a tacit condition to the effect that they were binding only if the essential conditions upon which they rested remained unchanged (clausola rebus sic stantibus).512 The general clause did not belong to ancient Roman law; rather, it originated in medieval canon law, which tended to moderate the rigour of the civil law with considerations of equity.513 The civilians had later adopted it in the ius com­ mune, and Gentili introduced it into international law, where it has remained to the present.514 5.3

Freedom of Religion

In the sixteenth century, the relationship between the sacred and the secular was not neatly separated; rather, theology still provided a fundamental lens through which people understood their world. The Reformation had revolutionary implications, contributing to the formation of sovereign states and raising fundamental questions about the relationship between theology, law, and politics. Unsurprisingly then, this interplay assumed central relevance in the Gentilian theory. Gentili challenged all-too-common perceptions about the relationship between religion, law, and politics and, most importantly, warned against any assumption that religious difference necessarily leads to violence, conflict, and war. At the same time, he contributed to the gradual separation of the law of nations from theology and the conceptualization of freedom of religion. Gentili separated the ius divinum (‘divine law’) regulating the relationship between God and human beings (inter Deum et hominem) from the ius huma­ num (‘human law’) governing human relations (inter hominem et hominem). While Gentili admitted the formal primacy of divine law over human law, and he sporadically referred to some elements of divine law in his major legal 510 Gentili, De Iure Belli, Book iii, Chapter 14, p. 365. 511 Id. Book iii, Chapter 16, p. 379; Wijffels, ‘Gentili and the Hanse’, 183. 512 Nussbaum, A Concise History of the Law of Nations, 96. 513 Id. 514 The doctrine is part of customary international law and is restated in 1969 Vienna Convention on the Law of Treaties. Vienna Convention on the Law of Treaties (vclt), 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, in force 27 January 1980, Article 62 (Fundamental Change of Circumstances).

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works, divine law was not the central focus of his work. In fact, he believed that theologians should focus on divine law, and lawyers should focus on human law.515 Reference to the primacy of divine law was to be expected given the religious spirit of the time, nonetheless Gentili’s main focus shifted from the theological tradition to the humanist one.516 Gentili elaborated a general theory of freedom of religion (libertas religio­ nis), tolerance, and religious peace.517 Because religion indicates an internal phenomenon, it cannot be imposed by force;518 rather, it requires freedom (li­ bertas religionis debetur).519 Because religion is ‘the greatest of blessings’ (som­ mum bonum) and a powerful force, people are ready to die for it.520 Nonetheless, religion relates to the personal and close union between God and human beings (coniugium Dei et hominis) rather than interpersonal relationships.521 Therefore, if people in another state ‘live in a manner different from that which we follow in our own state, they surely do no wrong’.522 Analogously, for Gentili, nobody should be offended by the fact that another person practiced a ­different faith. Acknowledging a limited cultural and religious pluralism, ­Gentili believed that religion should not give rise to any war, just as cultural  ­diversity should not constitute a just cause for waging war.523 Therefore, he excluded the legitimacy of any form of religious violence, arguing that there should be no forced conversions, persecutions, or exterminations.524 For

515 Diego Panizza, ‘Il Pensiero Politico di Alberico Gentili’, in Diego Panizza (ed) Alberico Gen­ tili—Politica e Religione nell’Età delle Guerre di Religione (Milano: Giuffrè 2002) 70. 516 Id. 71. 517 Gentili, De Iure Belli, Book i, Chapters 8–11. 518 Bonet, The Tree of Battles, 126 (arguing that ‘war should not be made against the unbelievers’). 519 Francisco de Vitoria, On the American Indians [De Indiis, 1539], in Anthony Pagden and Jeremy Lawrance (eds) Political Writings (Cambridge: cup 1991) question 2, article 4 ­(arguing that ‘religion is a matter of will’); Maria Rosa Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, in Marta Ferronato and Lucia Bianchin (eds.) Silete The­ ologi in Munere Alieno—Alberico Gentili e la Seconda Scolastica (Padova: cedam 2008) 83–111, 98; Giorgio Badiali, ‘Le Guerre di Religione nel Pensiero di Alberico Gentili’, in ­Diego ­Panizza (ed.) Alberico Gentili—Politica e Religione nell’Età delle Guerre di Religione (Milano: Giuffrè 2002) 33. 520 Gentili, De Iure Belli, Book iii, Chapter 11, p. 343. 521 Id. Book i, Chapter 9. 522 Id. p. 41. 523 Id. Book i, Chapter 19. 524 Id. Book i, Chapter 15. See also Bonet, The Tree of Battles, 126 (arguing that Christians ‘cannot and ought not to constrain or force unbelievers to receive [their] faith’.)

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i­ nstance, he a­ rgued, the Jewish people should not be mistreated or compelled to convert.525 Moreover, for Gentili, no religion is so execrable as to require the massacre of people of different religious belief: rather, it is the false interpretation of religion to determine such aberrations.526 Therefore, Gentili denied that religious difference was a just cause of war.527 Relying on the theologian Francisco de Vitoria (1483–1546) who held that religious diversity was not a just ground of war (causa iusti belli non est diversitas religionis),528 Gentili affirmed that war should not be waged on religious grounds. In most wars, Gentili noted, religion constituted the mere pretext rather than the real reason for war.529 Instead, he explained that most ‘religious’ wars were motivated by temporal considerations, such as personal ambition, greed, and injustice.530 As an example, he referred to the French wars of religion.531 For Gentili, these were not due to authentic religious motives, but to a clash between the French monarchy’s centralization of power and the resistance of the aristocracy to such royal policy. With regard to the conquest of the Indies, like Vitoria, Gentili recognized that Indigenous peoples were sovereign in their territories and were entitled to their lands.532 Therefore, they should not be deprived of their sovereignty and property because of their different religious beliefs. Like Vitoria, Gentili ­condemned the Spanish conquest of the Americas.533 For Gentili, the Spaniards used religion as a mere pretext for their wars of conquest against the 525 Gentili, De Iure Belli, Book i, Chapter 9, p 41 (Iudaeos non molestandos, non compellendos ad fidem). See also Francisco de Vitoria, On the American Indians [De Indiis, 1539], in Anthony Pagden and Jeremy Lawrance (eds) Political Writings (Cambridge: cup 1991) ­question 2, article 4, para. 39 (arguing that ‘pagans and [the Jewish people] are by no means to be compelled to believe’ and quoting the Gratian’s Decretum ‘Concerning the Jewish people, the holy Council laid down that no one should use force to compel belief, since God is merciful to those He wishes’.) 526 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 100. 527 Gentili, De Iure Belli, Book i, Chapter 9, pp. 38–39 (‘Religion is of such nature that it ought to be forced upon no one against h[er] will’ and ‘force in connection with religion is unjust’.) 528 Grewe, The Epochs of International Law, 220. 529 Gentili, De Iure Belli, Book i, Chapter 10, p. 47. 530 Id. Book iii, Chapter 11, pp. 340–341. 531 Id. 532 Francisco de Vitoria, Relectio de Indiis Recenter Inventis (1538), L. Pereña and J.M. Perez Prendes (eds.) (Madrid: Consejo Superior de Investigación Científica 1967) (arguing that the Indians were rightful owners of their property and that their chiefs rightly exercised jurisdiction over their tribes); Gentili, De Iure Belli, Book i, Chapter 9. 533 Diego Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento—Bruno, Sidney e i Dissidenti Religiosi Italiani (Roma: Edizioni di Storia e Letteratura 2010) 182.

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­natives.534 Instead, the Spanish conquest was a clear example of an unjust war.535 For Gentili, the pursuit of conquest was not a legitimate cause of war; rather, he considered ambitions of conquest (cupiditas gloriae et dominationis) as evil.536 While Gentili condemned ‘holy wars’, he did admit the legitimacy of self– defence against the same. Referring to historical examples, he praised the Justinian wars against the Persians, the Goths, and the Vandals, who had different religious beliefs, to protect the borders of the Roman Empire.537 He ‘rejected the idea that war against the Turks was either a war for the sake of religion or a war dictated by nature’ but justified it for defensive reasons.538 He added that war should not be made upon the Turks if they were keeping the peace.539 Rather, war could be waged only if they acted as enemies. In such case, he justified war not on religious grounds but on the grounds of self-defence.540 Analogously, Gentili viewed defending the subjects of another against their sovereign as a form of defensive war. In particular, he regarded the English intervention in the Low Countries as a form of just defence of the Dutch against their sovereign.541 The efforts of King Philip ii to extinguish heresy and centralize power in the Spanish dominions inevitably increased dissatisfaction with the Crown and sparked the Dutch revolt. As the revolt against the Crown came to be equated with a religious struggle between Protestantism and Catholicism, the Dutch rebels were able to draw on networks of co-confessionals especially in Germany and France as well as gain support from Queen Elizabeth of England.542 Gentili listed ‘many bonds of kinship’ between the English and the Dutch and the ‘grievous oppression’ under which the country was held. However, he concluded that the intervention did not merely defend the liberty of the Dutch rebels but the liberty of all: if the resistance of the Dutch, which Gentili called ‘that bulwark of Europe’, should be broken down by the Spaniards, ‘nothing would be left as a bar against their violence’.543 534 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 182. 535 Id. 536 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 240. 537 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 100. 538 Noel Malcolm, ‘Alberico Gentili and the Ottomans’, in vvaa, Alberico Gentili—La Salva­ guardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 79. 539 Gentili, De Iure Belli, Book i, Chapter 12, pp. 55–57. 540 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 100. 541 Gentili, De Iure Belli, Book i, Chapter 16, p. 77. 542 Daniel H. Nexon, The Struggle for Power in Early Modern Europe: Religious Conflict, Dynas­ tic Empires, and International Change (Princeton: Princeton University Press 2009) (highlighting how the mobilization of transnational religious networks intersected with and ultimately destabilized the Spanish empire.) 543 Gentili, De Iure Belli, Book i, Chapter 16, p. 78.

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Religious freedom was one of the fundamental pillars of the Gentilian system. Gentili despised the use of compulsion in matters of religion, condemned the moral and material damages of the religious wars, and argued in favour of religious pluralism within a state. For Gentili, States must respect freedom of religion (libertas religionis debetur) in order to achieve both internal and external peace. At the domestic level, religious freedom constituted a limit to political absolutism, dogmatic intolerance, and theocracy.544 While Gentili admitted that religious unity can be a factor of cohesion and stability within a state (instrumentum regni), he did not consider it to be an indispensable prerequisite of internal peace. In fact, there could be internal troubles even when there was unity of religion.545 Therefore, Gentili argued that the sovereign should not use force to promote such unity, unless given cults threatened the very existence of the state, undermined its public order, or conspired against the sovereign.546 Instead, sovereigns should tolerate religious diversity and grant religious freedom. Indeed, he believed that religious tolerance could prevent civil wars.547 In fact, for Gentili, different religions could coexist peacefully, provided that none violated the public order.548 He mentioned a number of contemporary examples of the peaceful coexistence of people of different faith, referring, inter alia, to Switzerland, certain German towns, and even the Turkish Empire.549 With regard to the French wars of religion (1562–1598) between Roman Catholics and Huguenots, he aptly noted that such conflicts were principally due to the clash between the power of the sovereign and the ambitions of the aristocracy, rather than purely religious motives.550 In parallel, Gentili denied that mere religious difference could justify revolt against a sovereign or justify resistance; only magistrates (whom he identified in the higher echelons of the political body) could oppose the tyrant with arms.551 For Gentili, no other subject had the right to resist state authority; the only way people could defend their freedom of conscience was through exile.552 544 Paola Anna Pillitu ‘Metodo Scientifico e Libertà di Religione in Alberico Gentili’, in Diego Panizza (ed.) Alberico Gentili—Politica e Religione nell’Età delle Guerre di Religione. Atti del Convegno Seconda Giornata Gentiliana (Milano: Giuffrè 2002) 41–55, 53. 545 Gentili, De Iure Belli, Book iii, Chapter 11, pp. 340–341 (referring to the conflicts between Guelphs and Ghibellines in Italy). 546 Id. Book iii, Chapter 11, p. 342. 547 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 101. 548 Gentili, De Iure Belli, Book i, Chapter 10. 549 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 103. 550 Gentili, De Iure Belli, Book i, Chapter 10. 551 Id. Book i, Chapter 11. 552 Id. pp. 50–52.

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Gentili argued that protecting religious freedom can foster international peace. Different states could have different religions, provided that they caused no harm to each other.553 In the absence of harm, a given state could not wage war against other states on religious grounds.554 Gentili also noted that in the aftermath of war, imposing a given religion on the vanquished was neither right nor useful; in fact, different religions can coexist peacefully and the sudden and violent imposition of a new faith was against natural law and could undermine public order.555 Therefore, Gentili supported religious tolerance on political, legal, and humanitarian grounds. One exception Gentili mentioned was that states could take action against cults that threatened public order and the safety of society. More bizarrely, Gentili admitted the theoretical scenario in which states could wage war against people without religion.556 For Gentili, those who denied the existence of God violated the law of nature and should be considered enemies of humankind.557 Nonetheless, for Gentili all nations had their own religion, and therefore, he saw this as a mere abstract hypothesis.558 In conclusion, Gentili’s separation of the law of nations from theology was not absolute.559 On the one hand, because of his deeply held beliefs, his personal experience as a religious refugee, and the religious spirit of the sixteenth century, the interplay between religion, politics, and law still played a central role in his work. On the other hand, he struggled to entirely separate the legal and religious spheres.560 His work still relied on biblical and post-biblical sources, canon law, and even the works of the theologians of the School of Salamanca. For instance, when discussing whether it was possible to make a treaty with peoples of different religion, Gentili considered this question in part a theological one and in part legal.561 While he argued that cross-cultural trade was certainly permitted, and peace might be made and kept with people of different religion, he opined that it was never right to make alliances with 553 Gentili, De Iure Belli, Book i, Chapter 9. 554 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 101. 555 Gentili, De Iure Belli, Book iii, Chapter 11. 556 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 100 (also noting, at 102, that a similar harsh stance against atheists had been adopted by Bodin, who considered them as prone to anarchy). 557 Gentili, De Iure Belli, Book i, Chapter 25, p. 125; Book i, Chapter 9, p. 41 (defining atheists as communes hostes hominum). 558 Gentili, De Iure Belli, Book i, Chapter 9. 559 Noel Malcolm, ‘Alberico Gentili and the Ottomans’, in Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: oup 2011) 127, 145. 560 Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, 111. 561 Gentili, De Iure Belli, Book iii, Chapter 19, p. 397.

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them against Christians.562 Like Botero and de la Noue, Gentili condemned the 1536 Franco-Ottoman alliance between the King of France, Francis i (1494– 1547), and the Turkish Sultan of the Ottoman Empire, Suleiman the Magnificent (1494–1566), to weaken the power of the Emperor, because as a consequence of that alliance ‘so many thousands of men, boys, and women were captured and led off into everlasting and intolerable slavery’.563 When Gentili authored his treatise, Barbary raiding along Southern Mediterranean coasts was at its peak, and this historical context unavoidably influenced his perspective. However, by theorizing the freedom of cross-cultural commerce, the necessity of keeping faith, and maintaining a just peace, he nonetheless contributed to the creation of ‘an uneasy trust’ among different civilizations.564 Cross-­ cultural exchange can promote peaceful and prosperous relations among nations by ‘interlocking interests’ and creating ‘the necessary incentives for cooperation among strangers’.565 That building trust among different civilizations would be a challenging but desirable task is implicit in Gentili’s own contradictions: after writing ‘you cannot trust the infidels’, Gentili hastened to add that ‘faith should be kept’ with unbelievers.566 He recalled that Western theologians convinced the King of Hungary and Poland, Wladislaw iii (1424–1444), not to keep faith with the Sultan Mehmed ii (1432–1481) with whom a truce had been signed. For Gentili, this brought about the ‘lamentable disaster’ of the 1444 Battle of Varna, in Bulgaria, in which ‘the king fell together with almost all of Hungary’.567 As a consequence of not keeping faith, darkness spread over all Europe. Even more interestingly, in elaborating the importance of good faith in international relations, Gentili relied on cross-cultural sources. At the very beginning of the De Iure Belli, Gentili compared those who do not keep faith to 562 Gentili, De Iure Belli, Book III, Chapter 19, pp. 401–402. 563 Id. p. 402. 564 Gentili’s position did not necessarily reflect official positions on the matter. Cfr. Calvin’s Case (1608), 77 ER 377, (reporting the dictum pronounced by Chief Justice Edward Coke that ‘All Infidels [we]re in law perpetual enemies (perpetui inimici)’ and that ‘if a Christian King should conquer a kingdom of an Infidel, and bring them under his subjection, there ipso facto the laws of the Infidel [would be] abrogated, for that they be not only against Christianity, but against the law of God and of Nature’.) Merete Borch, ‘Rethinking the Origins of Terra Nullius’ (2001) 32 Australian Historical Studies 222–239, 225 (noting that Coke’s dictum together with the Virginia Charter could thus be seen as the joint expression of the legal-official attitude towards acquisition in North America.) On Coke’s categorization of heresy as a crime comparable to high treason, see Edward Coke, Institutes of the Laws of England [1628–1644] (London: Brooke 1797) Part iii, Chapter 5. 565 Francesca Trivellato, The Familiarity of Strangers (New Haven: Yale University Press 2009) 4. 566 Gentili, De Iure Belli, Book iii, Chapter 19, pp. 402–403. 567 Id. 403.

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beasts. Combining quotes from Moses Maimonides’ The Guide for the Per­ plexed, the most influential book of medieval Jewish philosophy, and Cicero’s De Officiis, Gentili noted that ‘some men differ very little from the brutes’ and ‘what can you do with the man who says that there is no obligation to keep faith?’568 Nonetheless, the Gentilian system reflected the gradual ‘secularization’ of ‘legal and political theory that [occurred] in early modern Europe’.569 Gentili certainly contributed to the gradual separation of the law of nations from theology. One of his most famous mottos—‘[t]heologians, mind your own business’ (silete theologi in munere alieno)570—was directed against the School of Salamanca, a group of Spanish theologians who considered theology as the mother of sciences (mater scientiarum) and advocated its primacy in the ambit of the law of nations.571 By contrast, Gentili believed that theologians should rather focus on religion, as the relationship between individuals and the divine; ‘only jurists … [we]re equipped to expound the principles of international law and justice’.572 Even more significantly, Gentili argued in favour of cultural diversity, religious tolerance, and religious freedom on political, humanitarian, and legal grounds. In the Gentilian theory, religion emerged as a tool that could foster unity within states, but also as a privileged relation between the individual and the divine; something that remained personal and should not be imposed by force; and should not be considered as a just cause for waging wars or not keeping faith with other civilizations. 5.4

Preventive War

In the aftermath of the geographical discoveries and subsequent explorations, the international legal order shifted from the hierarchical system under the temporal authority of the Emperor and the Pope to a rapidly expanding horizontal system of formally equal sovereign states.573 In the new geopolitical order, the Pope and the Emperor were no longer the apexes of the political and 568 Gentili, De Iure Belli, Book i, Chapter 1, p. 7. 569 Malcolm, ‘Alberico Gentili and the Ottomans’, 127. 570 Id. 571 Martti Koskenniemi, ‘International Law and Raison d’état: Rethinking the Prehistory of International Law’, in Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 299. 572 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 6. 573 Piirimäe, ‘Alberico Gentili’s Doctrine of Defensive War’, 187.

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legal system. Rather, a new international order existed that ‘increasingly appeared as a competitive and violent stage on which the states could grow and achieve greatness, or decline and even disappear, depending on the quality of their government and the virtue of their rulers and citizens’.574 Therefore, ‘the main duty of rulers’, was to ‘maintain the state’.575 While the power shift dynamic in early modern international relations fostered factors of uncertainty and instability and created the conditions for war, Gentili openly endorsed the doctrine of preventive war as a form of defensive war. As Vagts aptly put it, ‘the problem of preventive war is … the problem of whether a war considered inevitable in the long run is to be fought now, rather than later when the advantages may lie with the opposing camp’.576 Suggesting that preventive war has a defensive nature seems to be an oxymoron—why should one state wage war against another in order to prevent war? Paradoxically, preventive war appears offensive rather than defensive in nature. Nonetheless, Gentili saw preventive war as a quintessentially defensive tool that enabled states to close windows of vulnerability and prevent other states from reaching hegemony in the international geopolitical order. If a state achieved hegemony, Gentili argued, then it would constitute a major threat to the safety of other states and international peace and security. Thus, he conceptualized preventive war as a tool of self-defence to prevent states from reaching hegemony. For Gentili, the purpose of preventive wars was to preserve international peace: a preventive war could halt the erosion of power determined by the rise of an adversary and prevent the future dangers this power shift might present. Gentili’s theory on preventive war was a turning point in the early modern period. For Gentili, it was not only an actual injury but also merely the fear of injury that justified self-defence and armed conflict.577 This constituted a 574 Piirimae, ‘Alberico Gentili’s Doctrine of Defensive War’, 194. 575 Id. 576 Alfred Vagts, Defense and Diplomacy: The Soldier and the Conduct of Foreign Relations (New York: King’s Crown Press 1981). 577 Whether preventive war is an admissible form of self-defence is currently debated; the contemporary discussion centres on the precise meaning of Article 51 of the United Nations Charter which permits warfare in self-defence against aggression. United Nations, Charter of the United Nations, signed at San Francisco on 26 June 1945, in force 24 October 1945, 1 unts xvi. For some scholars, the provision incorporates pre-emptive self-­ defence in the face of an imminent threat. See Christine Gray, International Law and the Use of Force (New York: oup 2004). For others, the content of the provision is more limited. See Guglielmo Verdirame, ‘The “Sinews of Peace”: International Law, Strategy, and the Prevention of War’ (2007) 77 byil 84 (noting that the doctrine of preemptive self-defence has come to the forefront of legal debate since the terrorist attacks on 11 September 2001);

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s­ ignificant departure from the classical theory of just war (bellum iustum), under which only a received injury (iniuria accepta) could justify war.578 For the theologians, war was a response to violence and constituted self-defence and punishment against wrongdoing against the delinquent party.579 Consequently, ‘self-defence on the basis of fear, rather than any real injury, could never count as proper grounds for war’.580 States could not wage preventive wars to prevent some future harm.581 Rather, the theologian Francisco de Vitoria used the concept of defensive pre-emption, but only in the context of the ius post bellum. In fact, for Vitoria, the adoption of preventive measures, such as demolishing the enemy’s fortresses, could be an effective retribution for past wrongs and prevent ‘the renewal of … wrongdoing in the future’.582 In sum, under the traditional conceptualization of the just war, preventive war appeared to lack one or more requirements of justice, including the just cause and the idea that war should be the last resort (extrema ratio). Instead, relying on ancient Roman law and canon law, Gentili transcended the idea of injury as a just cause of war. He considered it legitimate for a state to wage war not only when a wrongdoing was being committed, but also when it might possibly or probably be committed. For the medieval canon lawyers, self-defence did not merely include ‘active resistance to injury’, but also ‘some forward looking (pre-emptive) action’.583 Canon lawyers generally agreed that city-states had the right to defend their country (patria) by war and that ‘the necessity of defence’ justified war.584 For instance, the canonist Johannes Teutonicus (1170–1245) elaborated a theory on self-defence justifying defence

578 579 580 581 582 583 584

Olivier Corten, The Law Against War—The Prohibition of the Use of Force in Contemporary International Law (Oxford: Hart Publishing 2010) 407 (arguing that contemporary international law does not enshrine preventive self-defence); Yoram Dinstein, War, Aggression, and Self-Defence, 6th ed. (Cambridge: cup 2017) 223 (denying the existence of a broader customary international law right of anticipatory or pre-emptive self-defence) and 231 (admitting ‘interceptive self-defence’). On Gentili’s importance in the current debate about on pre-emptive self-defence, see generally Lowe, ‘The Use of Force in International Law’, 71–95. Piirimäe, ‘Alberico Gentili’s Doctrine of Defensive War’, 187 (referring to Francisco de Vitoria, Domingo de Soto, and Luis Molina). Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 17. Gregory Reichberg, ‘Preventive War in Classical Just War Theory’ (2007) 9 Journal of the History of International Law 5–34, 15. Id. 15. Id. 13–14 (stressing the need to remain within the boundaries of ‘immediacy, necessity, and proportionality’.) Id. 7–8. Frederick H. Russell, The Just War in the Middle Ages (Cambridge: cup 1975) 100.

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against violence that was being inflicted or was imminent.585 Analogously, for the canon lawyer Giovanni da Legnano (1320–1383), if brave belligerents should wait for the enemy to attack (and therefore wage war in self-defence),586 they could conduct pre-emptive strikes to repel a perceived imminent offence or to gain a strategic advantage in an impending war shortly before that attack materialized.587 However, canon law required that ‘forms of pre-emptive a­ ction … remained within the bounds of necessity and immediacy’.588 Not only did Gentili admit armed defence against an imminent offence (pre-emption), but he also accepted that an adversary who was preparing an attack or had acquired military capability could be preventively attacked (prevention).589 Prevention differs from pre-emption as it addresses a more distant threat, that is, a threat that has not yet fully materialized. According to Gentili, preventive war constituted a useful self-defence (utilis defensio) when there was fear of an attack.590 In fact, Gentili stressed that ‘[n]o one is more quickly brought down than one who has no fear, and a sense of security is the most common cause of disaster … Then we ought not to wait for violence to be offered us, if it is safer to meet it halfway. … Therefore … those who desire to live without danger ought to [anticipate] impending evils’.591 Gentili recognized ‘the importance of power and fear in the dynamics of international relations’, and this influenced his theory of the law of war.592 For Gentili, a just fear of an attack was a just cause of war. Gentili replaced the traditional concept of injury (iniuria) with the concept of just fear (metus ius­ tus) i.e., ‘the fear of a greater evil, a fear which might properly be felt even by a man of great courage’.593 He did not define the notion of fear; rather, he suggested that fear is subjective. He aptly noted that people fear different things, and that law cannot provide indications on what is to be feared.594 However, a 585 Russell, The Just War in the Middle Ages, 131–132. 586 Da Legnano, De Bello, c. 27, 105. 587 Id. c. 26, 105. 588 Reichberg, ‘Preventive War in Classical Just War Theory’, 10. 589 Id. 6. 590 Gentili, De Iure Belli, Book i, Chapter 14, pp. 61–62. 591 Id; Gentili, De Armis Romanis, Book ii, Chapter 9, p. 253 (‘It is … fitting to look ahead into the distant future and not to wait until danger beats on one’s doors, one’s bedchamber, and one’s very bedposts’.) 592 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 240. 593 Gentili, De Iure Belli , Book i, Chapter 14, pp. 61–62. 594 For a similar approach, see also Thomas Hobbes, Elements of Law, in Thomas Hobbes, Human Nature and De Corpore Politico, J.C.A Gaskin (ed) (Oxford: oup 2008) 79 (‘Every man by right of nature is judge himself of the means, and of the greatness of the danger’.); Thomas Poole, ‘Hobbes on Law and Prerogative’, in David Dyzenhaus and Thomas Poole

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mere suspicion did not constitute a just cause for fear.595 Analogously, the mere fact that a foreign state was increasing in power would not in itself justify the resort to preventive war.596 For Gentili, some evidence was necessary in addition to mere power. In fact, ‘a fear [would be] justified if there [wa]s a just reason to be afraid, even if no danger [was] actually present’.597 For instance, ‘enemies are those who make preparations to attack us’ and can jeopardize the security and very existence of the state.598 Faced with ‘the antinomy between the two juridical values of security and justice’, Gentili rejected the ideal of ‘justice before security’ as metaphysical, and seemed to opt for ‘the lower, but most basic value’.599 However, for Gentili, the two values were compatible. On the one hand, he held the epistemological belief that it was difficult, if not impossible, to ascertain whether states had just or unjust causes for waging wars. Gentili was aware that human beings often have only imperfect knowledge of truth. On the other hand, from an ontological perspective, he recognized that wars of religion and wars waged for greed or conquest were undoubtedly unjust. In such cases, self-­defence required war against imminent oppressors. Prevention was necessary to ensure substantial equality between the belligerents in those cases in which the forces of the two sides were uneven and there was a concrete risk of the annihilation of the weaker side due to the imperialist and hegemonic ambitions of the other. In such cases, the sovereign had a duty to protect her citizens from harm and the legal distinction between the aggressor and the defender would become blurred because of the parallel motives of necessary self-­defence and international justice. In Gentili’s view, security became the indispensable precondition for later achieving justice by preventing aggression, military expansionism, and imperialism. Then, just relations among nations would be the indispensable precondition of achieving peace. Therefore, Gentili’s theory of preventive defence attempted to reconcile the two ‘juridical extremes’ of state security and international justice in a way that was clearly at odds with the scholastics’ just war theory.600 (eds) Hobbes and the Law (Cambridge: cup 2012) 68–96, 72 (noting that in Hobbes, ‘the war of all against all results … from a fear-driven cascade: the anticipation of one man being attacked causes them to attack the other because the first considers it a better option than waiting to be attacked’.) 595 Gentili, De Iure Belli, Book i, Chapter 14, pp. 61–62. 596 Noel Malcolm, ‘Alberico Gentili and the Ottomans’, in vvaa, Alberico Gentili—La Salva­ guardia dei Beni Culturali nel Diritto Internazionale (Milan: Giuffrè 2008) 63–89, 78. 597 Gentili, De Armis Romanis, Book ii, Chapter 8, p. 245 (‘metus iustus est, si causa metuenda iusta est, etsi periculum nullum vere subsit’.) 598 Gentili, De Armis Romanis, Book ii, Chapter 10, p. 271. 599 Josef L. Kunz, ‘Bellum Justum and Bellum Legale’ (1951) 45 ajil 528–534, 533–534. 600 Yehuda Melzer, Concepts of Just War (Leyden: A.W. Sijthoff 1975) 52.

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The concept of the balance of power also had much relevance in the Gentilian conceptualization of preventive war. In fact, it helped to identify a just fear. For Gentili, the rising power of a state could be a just cause of fear for another state. In fact, Gentili aptly noted, the growing acquisition of power by a state could lead to power politics. As Gentili wrote, ‘we should oppose powerful and ambitious chiefs. For they are content with no bounds, and end by attacking the fortunes of all’.601 Yet, ‘[m]ore than sheer power must be taken into account’ and ‘some other reason must be added for justice’s sake’.602 For instance, Gentili considered that preventive actions could be undertaken against certain states (in his time, the Ottoman Empire and the Spaniards) that pursued imperialist policies. He also argued that states should unite in opposing common dangers.603 In fact, he argued that ‘it is better to provide that [states] should not acquire too great power, than to be obliged to seek a remedy later, when they have already become too powerful’.604 According to Gentili, the probability of an attack (probabilis causa) was a necessary and sufficient condition to wage a just war, ‘regardless of a possible unjust concealed reason (ratio latens)’.605 For Gentili, preventive action would be permissible if it ultimately concerned the safety and the very existence of the state. In an incisive manner, he stressed that ‘No one ought to wait to be struck, unless [s]he is a fool’ and ‘a defence is just which anticipates dangers that are already meditated and prepared, and also those which are not meditated, but are [likely] (verisimilia) and possible (possibilia)’.606 It remains unclear whether Gentili’s theory on preventive defence influenced contemporary practice. In arguing for a renewed campaign against Spain, the statesman Sir Francis Bacon paraphrased Gentili noting that sovereigns ought to ‘keep due sentinel, that none of their neighbours do ever grow so (by increase of territory, … or the like), as they become more able to annoy them, than they were’.607 He then continued that ‘a just fear of an imminent danger, though no blow be given, is a lawful cause of war’608 and that ­preventive

601 Gentili, De Iure Belli, Book i, Chapter 14. 602 Reichberg, ‘Preventive War in Classical Just War Theory’, 18. 603 Gentili, De Iure Belli, Book i, Chapter 14, p. 65 (noting that ‘a common fear unites even the most hostile entities’.); Gentili, De Armis Romanis, Book ii, Chapter 12, p. 323. 604 Id. 605 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 40. 606 Gentili, De Iure Belli, Book i, Chapter 14, pp. 61–62. 607 Francis Bacon, ‘Of Empire’, in Francis Bacon, Essays (Boston: Little, Brown and Co. 1889) 138. 608 Id.

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wars that are waged upon just fear are true d­ efensive wars.609 As Bacon explained, ‘as long as men are men … a just fear will be a just cause of a preventive war’, especially if there is a nation that is manifestly detected to aspire to universal empire and conquest.610 In identifying ‘just fears’, Bacon noted that ‘toward ambitious states, which … aspire to great [empires], and seek upon all occasion to enlarge their dominions … all particular fears do grow and multiply’.611 After describing Spain’s general disposition to enlarge its dominions, Bacon referred to its ‘particular disposition and eye of appetite’ it had toward England.612 Like Gentili, Bacon argued that among the grounds for a war with Spain were ‘a just fear of the subversion of our ... state’ and religion. Like Gentili, he then defined ‘just fear’ as the ‘clear foresight of imminent danger’.613 Although Bacon generically praised the ‘civilians’, he did not specifically refer to Gentili. However, while Gentili conceptualized preventive war as a defensive tool, Elizabethan policy was ambivalent, and Bacon expressed its clear imperialist aims.614 Even before the formal inception of the Anglo-Spanish war, Elizabeth i had granted letters of marque to privateers such as Sir Francis Drake (1540– 1596) to disrupt trade between Spain and its colonies. These privateers carried out raids and plunders, and even engaged in the trade of kidnapped slaves. It is difficult to decide whether such acts constituted preventive defence or profit seeking piratical activities. For Bacon, the greatness of the Spanish Empire ‘consisted in [its] treasure, [its] treasure in the Indies, and their Indies … [were] but an accession to such [empire] as [long as the Spaniards] [we]re masters by sea’.615 If the maritime forces of Great Britain and the United Provinces—­ Bacon argued—beat the Spaniards at sea, ‘the links of that chain whereby they hold their greatness [would be] dissolved’.616 The imperial motive became particularly evident in Bacon’s conclusion: ‘whereas wars are generally causes of poverty; on the contrary, the special nature of this war with Spain, if it be made

609 Francis Bacon, ‘Considerations Touching a War with Spain’ [1624], in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: M. Murphy 1886) 202. 610 Id. 205. 611 Id. 204. 612 Id. 205. 613 Id. 203. 614 Id. 202. 615 Id. 214. 616 Id. 214.

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by sea, is likely to be a lucrative war’.617 Moreover, while Gentili argued that peace with the Turks should be preserved at least until they were at peace, for Bacon preventive war against the Turks was always justified ‘not for cause of religion, but upon just fear; forasmuch as it [was] a fundamental law in the Turkish empire that they [might] … make war upon Christendom for the propagation of their law; so … there lie[d] upon the Christians a perpetual fear of a war, hanging over their heads from them’.618 Whereas Gentili argued that states could wage preventive war to prevent vulnerability, ensure peace, and security; war theorists have cautioned that states rarely wage preventive wars to close windows of vulnerability; far more often than not, their pre-emptive strikes merely start wars of aggression to take advantage of windows of opportunity and gain hegemony. Moreover, preventive wars raise moral, legal, and political dilemmas. From a moral perspective, one always wonders whether it is possible to take an alternative course of action instead of violence. From a legal perspective, the permissibility of preventive war can raise uncertainty and violence: states can perceive the arming of others as hostile rather than for legitimate security reasons. If only a state had this perception, a dangerous and unnecessary war might ensue and start a cascading series of preventive attacks. More importantly, by recurring to preventive war, states accept war as a legitimate tool in international relations. The idea of preventive war seems to contradict the conceptualization of war as an instrument of last resort. Finally, from a political perspective, preventive wars can foster self-serving military interventions. Was Gentili aware of the moral, legal, and political risks of preventive war? Arguably, for Gentili the benefits of preventive defence outweighed the costs, because such defence could prevent the annihilation of a given state and impede powerful states from reaching hegemony. It served to protect the state and its people from foreign aggression when the emerging threat was of such a dire nature that the state could not risk that it would become imminent. In other words, Gentili seemed to admit preventive defence in case of necessity or force majeure (albeit he did not explicitly use either concept in this specific context). Did Gentili have Machiavelli in mind, when articulating his theory of preventive defence? When Machiavelli described the then depressing condition of his (and Gentili’s) land, which had been repeatedly invaded, M ­ achiavelli noted that Italian rulers in particular, and thus rulers more generally, should secure the state against ruthless foreign enemies by being no less ruthless than 617 Bacon, ‘Considerations Touching a War with Spain’ 214. 618 Id. 204.

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their opponents: ‘if by practicing virtue they are torn down again, then virtue is the greatest vice’.619 Although Gentili did not cite Machiavelli in his De Iure Belli, he certainly read his works, as he cited him in De Legationibus. Undoubtedly, the reason of state (ragion di stato) permeated the preventive defence doctrine.620 Paradoxically, though, the Gentilian concept of preventive war had anti-­ imperialistic features, endorsing not only the reason of state but also the reason of the international community. Other humanist thinkers conceptualized preventive war as a tool of military expansionism. For instance, Machiavelli considered attack the best form of defence and argued that ‘the pursuit of empire abroad is a precondition of virtue and liberty at home’.621 Analogously, the geographer Hakluyt insisted that only by pursuing an expansionist policy overseas, could England solve its domestic problems.622 Instead, not only is the Gentilian concept of preventive war ‘devoid of any imperialistic connotation’, but it is ‘just the opposite’.623 For Gentili, preventive war was an articulation of the principle of self-defence in theory, and a way to protect weaker nations in practice; he assumed their fear of destruction at the hands of the stronger, and acknowledged their right of preventive self-defence.624 Moreover, according to Gentili, preventive defence could also protect humankind from Empire. As noted by Panizza, ‘there is not a trace of the humanist notion that war can legitimately be made for empire in the De Iure Belli’.625 Rather, Gentili considered preventive war as an instrument for preserving the balance of power and peace.626 .

619 John Yoo, Point of Attack—Preventive War, International Law and Global Welfare (Oxford: oup 2014) 62. 620 Cf. Louis Henkin, How Nations Behave (New York: Columbia University Press 1968) 265 (‘No view of international law, no interpretation of any norm or agreement, could concede that a nation may be legally required to do that which lead to its destruction, or jeopardize its independence or security’.) 621 Diego Panizza, ‘Languages of Empire in Early Modern Political Theory: from Machiavelli’s Roman Paradigm to the Modern Empire of Commerce’, in vvaa, Alberico Gentili—­ Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 349–390, 358. 622 See Chapter 6 below. 623 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 224. 624 George R. Lucas, ‘The Case for Preventive War’, in Deen K. Chatterjee (ed) The Ethics of Preventive War (Cambridge: cup 2013) 46–62, 61 (referring to Montesquieu’s similar argument); Montesquieu, The Spirit of the Laws [1748] A.M. Cohler, B.C. Miller, and H.S. Stone (trans) (Cambridge: cup 1989) Book x, Chapter 2 (noting that ‘among societies, the right of natural defence sometimes carries with it a necessity to attack, when one people sees that a longer peace would put another people in a position to destroy it and that an attack at this moment is the only way to prevent such destruction’.) 625 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 224. 626 Verdirame, ‘The “Sinews of Peace”’, 84.

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263

The Balance of Power

The elaboration of the concept of the balance of power is one of Gentili’s major contributions to the theory of international law. Gentili defined the ‘balance of power’ as the provision that states ‘should not to acquire too great power’; in this manner, the international community would not ‘be obliged to seek a remedy later’, when such states ‘ha[d] already become too powerful’.627 Gentili’s central concern was the preservation of peace and he sought not only to understand and so control power, but also to harness it for justice. He thus transformed the idea of balance (bilanx) that traditionally symbolized justice into a tool for governing international relations, providing just peace and stability within the international community, and opposing hegemony under the law of nations.628 The concept of balance ‘implies an equilibrium’ of interests among nations within the international legal system.629 Far from expressing or legitimizing power politics (Machtpolitik), such a balance, Gentili argued, could contribute to ensuring justice and peace since no polity would be in a position to seek hegemony.630 For Gentili, countries should ‘unite in opposing the common danger’, thus protecting their communities and the international community as a whole.631 He believed that the maintenance of peace depended upon the equality of nations.632 This section briefly reviews the intellectual origins of the concept, and how Gentili transplanted it from humanist political theory into international legal theory.633 While the balance of power doctrine ‘has been in the making for centuries’ and elements of the same appeared in Thucydides and Polybius,634 in humanist political theory, the balance of power was context specific: it indicated how the ruler of Florence, Lorenzo de’ Medici (1449–1492), pursued a policy of maintaining peace in Italy by preventing any state from becoming so powerful that it might become hegemonic.635 As the historian Francesco Guicciardini put it, ‘Knowing that it would be very dangerous both for himself and for the

627 Gentili, De Iure Belli, Book i, Chapter 14, p. 65. 628 Lucien Bély, L’Art de la Paix en Europe. Naissance de la Diplomatie Moderne xvie–xviiie siècle (Paris: puf 2007) 22. 629 Detlev Vagts, ‘Balance of Power’, Max Planck Encyclopaedia of Public International Law (Oxford: oup 2018) para. 1. 630 Id. 631 Gentili, De Iure Belli, Book i, Chapter 14, p. 65. 632 Id. 633 Piirimäe, ‘Alberico Gentili’s Doctrine of Defensive War’, 199. 634 Yoo, Point of Attack, 63. 635 Gentili, De Iure Belli, Book i, Chapter 14, p. 65.

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F­ lorentine Republic if one of the great powers increased its strength, he sought by every means to make sure that Italian affairs were balanced, in other words, that they did not incline in one way or another’.636 Checking and maintaining the political balance of power in Italy was therefore an essential condition for the security, indeed the survival, of the Florentine Republic. Lorenzo de’ Medici and his allies ‘had a perpetual eye one upon another, that none of them should overtop’.637 His ‘so-called policy of equilibrium’ was ‘openly disrespectful’ of the prerogatives of the major political powers of the time, kept major European powers out of Italy, and sought to prevent them from using the country as a battlefield.638 Gentili praised Lorenzo de’ Medici for his balance of power policy because it helped to preserve peace in Italy.639 As is known, after Lorenzo de’ Medici’s death, European rulers failed to maintain the balance of power in the continent, foreign forces invaded the Italian peninsula , and wars ravaged Europe.640 Despite the formal historical demise of the concept, Gentili considered the concept of the ‘balance of power’ to be a fertile ground for international legal theory. In particular, he translated the concept of the balance of power from humanist political theory into the language of international law, and conceptualized it as one of the ingredients of the right recipe for solving the problem of the age, which was, the problem of empire. According to Gentili, the balance of power was not sufficient to maintain international peace; rather, peace required international justice, equity, and solidarity, all elements that prominently appeared in the De Iure Belli.641 Still, the balance of power theory constituted one of the ‘cornerstone[s] of a just and stable international order’.642 Unless states united to fight against the common enemy, nothing would resist imperial expansionism and the international community would fall: ‘just as, if any one should pluck out the keystone of an arch, on which all the stones lean, the rest would follow and fall with it’.643 In other words, the balance of power theory ‘emphasized the security of individual states against the e­ ncroachments 636 Francesco Guicciardini, Storia d’Italia, in Francesco Guicciardini, Opere, E. Scarano (ed) (Turin: utet 1981) 2:89. 637 Francis Bacon, ‘Considerations Touching a War with Spain’ [1624], in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: M. Murphy 1886) 207, 205. 638 Riccardo Fubini, ‘The Italian League and the Policy of the Balance of Power at the Accession of Lorenzo de’ Medici’ (1995) 67 Journal of Modern History 166–199, 198. 639 Gentili, De Iure Belli, Book i, Chapter 14. 640 Id. p. 65; Vagts, ‘Balance of Power’, para. 3; Francesco Guicciardini, Storia d’Italia, Silvana Seidel Menchi (ed) (Torino: Einaudi 1971) p. 95. 641 See generally Gentili, De Iure Belli, Book iii. 642 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 224. 643 Gentili, De Iure Belli, Book i, Chapter 14, p. 65.

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of other states or empires seeking to aggrandize themselves’.644 For Gentili, the balance of power was not necessarily a natural status ‘maintained by self-correcting natural forces’; rather, it could be, and in certain instances should be ‘the product of deliberate human intervention’.645 Gentili used the concept of the balance of power broadly, arguing that no state should be allowed to reach hegemony: ‘We should oppose powerful and ambitious princes. For they are content with no bounds, and end by attacking the fortunes of all … For pretexts for war are not lacking to those who strive for dominion and are already hated because of their power’.646 By uniting their forces, states could call into question the injustice of those striving for imperial expansion.647 Gentili explained that ‘it is better to provide that [human beings] should not acquire too great power, than be obliged to seek a remedy later, when they have already become too powerful’.648 For Gentili, not only injury but also a just fear could be a legitimate cause of war; as Piirimäe correctly points out, for Gentili ‘all just wars’, including preventive wars, were ‘defensive in character’.649 Translating the idea of the balance of power from political theory into the language of international law responded to the needs of the early modern period, which was characterized by war, political instability, and violence. In this regard, Gentili rejected the humanist theory of the legitimacy of war for the sake of glory and empire (bellum pro gloria et imperio). In the Gentilian theory, greed, ambition, and hegemony were not just causes of war.650 For instance, he denounced the Spanish and Turkish policies of empire and called for preventive war against them.651 He also praised the English intervention in the Netherlands’ rebellion against Spain, inter alia, as a form of pre-emptive defence against the attempts of the Spanish Empire to achieve imperial predominance within Europe and beyond.652 Gentili conceptualized the law of nations as a corrective to the tyrannical rule of sovereigns within their own state and to their hegemonic ambitions at the international level.653 When Gentili published De Iure Belli and De Armis 644 Yoo, Point of Attack, 63. 645 Vagts, ‘Balance of Power’, para. 1. 646 Gentili, De Iure Belli, Book i, Chapter 14, p. 64. 647 Id. p. 65. 648 Id. p. 64. 649 Piirimäe, ‘Alberico Gentili’s Doctrine of Defensive War’, 208. 650 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 246. 651 Gentili, De Iure Belli, Book i, Chapter 14, p. 64. 652 Id. Book i, Chapter 16. 653 See Chapter 7 below.

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Romanis in 1598 and 1599 respectively, Spain and England were at war. In De Armis Romanis, Gentili noted that the Spanish Empire of his time was ‘ten times larger than the Turkish Empire or four times larger than the ancient Roman Empire’.654 Spain was then the richest and most powerful country in the world.655 Without doubt, the extraordinary dimensions of the Spanish Empire were altering the balance of power among sovereign states within the international community.656 The eventual creation of a universal state under the aegis of King Philip ii would have crushed religious and cultural diversity. Therefore, Gentili conceptualized the balance of power, preventive defence, and humanitarian intervention as tools to oppose the violent expansion of particular states.657 In the Gentilian theory, pre-emptive strikes and preventive warfare are linked to state security, self-defence, necessity, the balance of power, and ultimately, international peace. In conclusion, Gentili translated the principle of the balance of power from humanist political theory into the language of international legal theory. The concept became a cornerstone of the Gentilian system, an anti-imperialist tool to foster peace and security within Europe and beyond. As noted by a war theorist, ‘although balance of power thinking accepted the inevitability of war, including preventive war’, it also emphasized state security and offered a check on imperial ambitions.658 For Gentili, law and politics were closely connected, and he made the ‘humanist art of statecraft’ an ‘integral part’ of his system.659 If ‘the gap between power and law in the international field is never very wide’, the Gentilian conceptualization of the balance of power enabled the ‘conceptual worlds’ of political theory and international law to ‘become more and more intertwined’.660 5.6

Critical Assessment

Gentili contributed greatly to the emergence of international law as an autonomous discipline. This is particularly evident from his reflections on the law of war, which he correctly viewed as an important part of the law of nations. While previous contributions did not theoretically distinguish the law of war 654 Gentili, De Armis Romanis, Book ii, Chapter 12, p. 333. 655 Carlo M. Cipolla, Conquistadores, Pirati, Mercatanti (Bologna: Il Mulino 1996) 10. 656 Diego Pirillo, ‘Eretici Italiani e Selvaggi Americani: il Nuovo Mondo nella Coscienza Pro­ testante Italiana del Cinquecento’, (2010) 50 Rinascimento 377–397, 391. 657 Id. 658 Yoo, Point of Attack, 63. 659 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 228. 660 Vagts, ‘Balance of Power’, para. 15.

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from different fields of study such as theology and military, administrative, and criminal domestic law, Gentili distinguished the law of war as a separate field. He also systematized the international legal theory of war, identifying three ‘separate, but chronologically ordered, and logically connected’ subfields of the law of war: the ius ad bellum, the ius in bello, and the ius post bellum.661 His De Iure Belli organically reflected this tripartition, with each of its books focusing on a distinct subfield of the law of war. The first book discussed the ius ad bellum, that is, what is war, who had the authority to wage war and against whom, and why and when a state could wage war. The second book explored the law governing the conduct of war, the ius in bello, detailing how war should be waged. The third book examined the ius post bellum, the law governing the conclusion of war, the restoration of peace, and the rights and obligations of both the victors and the vanquished. Not only did the tripartition of the law of war constitute a theoretical advance, but it ‘became classic and remains so today’.662 Gentili adopted a dialectical method of analysis which was rooted in the medieval style of disputations. In addressing unsettled legal issues, he examined the applicable legal principles, discussed arguments and counterarguments, and finally demonstrated the reasonableness of his thesis ‘on the basis of authority and consent’.663 His method did not follow a deductive, geometrical or mathematical aprioristic model; rather, it was inductive and dialectical, examining both theory and practice. Gentili criticized the ‘geometrical reason’ (ratio geometrica) ‘as a method not really suited to the realm of law and justice’; rather, for Gentili, the law of nations ‘could only be built through practice and experience’.664 Gentili created an original, significant, and coherent international legal theory of war on three different intellectual pillars: (1) the civilian/Romanistic legal tradition; (2) the ‘scholastic’ or ‘theological’ tradition; and (3) the humanist historical and philosophical tradition about war.665 Gentili used his sources eclectically; while he borrowed rules from Roman law and transplanted them into international law, he was also aware that Roman private law and the law of nations were distinct fields and not every element of the former was transposable to the latter. While he used some language of the scholastic tradition, he nonetheless criticized it for mixing the law of nations with theology. While he certainly borrowed elements from humanist political theory, he was nonetheless a lawyer first and foremost. Therefore, the De Iure Belli did not merely sum 661 662 663 664 665

Lesaffer, ‘The Lore and Laws of Peace-Making’, 3. Lesaffer, ‘The Classical Law of Nations 1500–1800’, 428. Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 6. Id. 7. Id. 8.

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up these intellectual traditions, but transcended the same, transforming the borrowed aspects into the cornerstones of a new original theory with the law of nations at its centre. For Gentili, war constituted a last resort (extrema ratio) and belligerents should have a just cause for waging war (iustae sint causae).666 His discussion of the just causes of war was intended to limit the legitimacy of warfare.667 In discussing the various ‘just’ causes of war, he denied that religious and/or cultural differences were justifications for any war.668 However, he admitted the legitimacy of war against tyrants committing massive violations of the law of nations against their own citizens.669 Gentili noted that states rarely intervened to protect others unless it served some interest of the state; nonetheless, he considered it just to defend the vulnerable for the sake of solidarity and common humanity. He postulated the primacy of the law of nations over domestic law, and conceived humanitarian intervention as a tool to enforce international law, protect the vulnerable, and ensure international justice. Gentili also admitted the legitimacy of punitive intervention to sanction gross violations of the law of nations such as piracy and cannibalism. As is known, this form of war was used as a tool of conquest; but it also anticipated collective humanitarian intervention through organs of the United Nations to protect humanity against gross violations of human rights.670 The question as to whether intervention is legitimate under contemporary international law remains open. While intervention has some revolutionary potential, and postulates the existence of universal values that prevail over domestic sovereignty, it can have dramatic, destabilizing, and even imperialistic implications if it is not pursued for its proclaimed aims. Gentili understood well the risk that humanitarian intervention could be instrumentalized; he nonetheless clarified that, if properly done, namely without territorial acquisition, humanitarian intervention constitutes the highest form of justice by defending humanity against tyrannical oppression.671 Subverting the whole structure of the medieval doctrine of just war, Gentili supported the thesis of ‘the bilateral justice of war’, highlighting the ­‘impossibility to know the justice of the case’.672 Because the subjective ­intentions of each of the belligerent parties were difficult to ascertain, an 666 Peter Haggenmacher, ‘Pensiero Umanitario e Intervento in Gentili’, in vvaa, Pensiero Umanitario e Intervento in Gentili (Milano: Giuffrè 1998) 19–45, 30. 667 Id. 668 Id. 669 Gentili, De Iure Belli, Book i, Chapter 16. 670 Haggenmacher, ‘Pensiero Umanitario e Intervento in Gentili’, 44–45. 671 Gentili, De Iure Belli, Book i, Chapter 16. 672 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 20–21.

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i­ nternational judge would be needed to assess whether the causes of war were just.673 In the absence of such judge, for Gentili it was better to assume, as a general rule, that each belligerent had a plausible claim against the other. Gentili abandoned the medieval theory of the ‘just war’ which ‘opposed a just to an unjust belligerent’ and granted the rights of war only to the just belligerents.674 Rather, for Gentili, a war could be ‘just’ on both sides (bellum iuste geri utrimque). For instance, if a state waged war against another to prevent the latter’s expansionism, the latter could exercise self-defence.675 Therefore, the various arguments on the just war (bellum iustum) did not affect how the law of nations governed war as a phenomenon: ‘for a war to be legal, it sufficed that the belligerent was sovereign, that he formally declared war, [and] made a claim towards the justice of his cause’.676 This theoretical development had important consequences for the ius in bello and the ius post bellum. The bilateral justice of war entailed that the belligerents were equal and enjoyed the same rights and obligations under the law of war.677 Gentili contributed to the humanization of the law of war, prohibiting unnecessary violence and destruction, the use of treacherous and poisonous weapons, requiring moderation in warfare and the protection of noncombatants including women, children, and the elderly among others. Gentili’s theory of the law of war can be described as an early version of humanitarian law, limiting the means and methods of warfare and protecting persons who were not, or were no longer, participating in the hostilities. The bilateral justice of war also influenced the ius post bellum: for Gentili, peace treaties should not be tools of vengeance; rather, they should aim at restoring and maintaining perpetual peace. This would allow treaty-makers to negotiate a compromise, reach a settlement, and use pacificatory language. Gentili’s analysis of peacemaking also deserves praise, as it was ‘the most systematic’, elaborate, and comprehensive of all the great monographs on the law of treaties in the early modern period.678 Gentili’s reflection on preventive war and the balance of powers also contributed to the history and theory of international law. Gentili conceptualized preventive war as a war fought to maintain the balance of powers and prevent the coalescence of empires and power relations. For Gentili, a just fear could legitimize waging preventive wars in order to defend not only state security 673 674 675 676

Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 110. Lesaffer, ‘The Lore and Laws of Peace-Making’, 7. Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 110. Lesaffer, ‘The Lore and Laws of Peace-Making’, 7; Gentili, De Iure Belli, Book i, Chapter 2 and 6. 677 Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 111. 678 Lesaffer, ‘The Lore and Laws of Peace-Making’, 3.

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but also international peace. As Walzer pointed out, the arguments concerning both preventive war and the balance of power were essentially utilitarian: for Gentili, preventive war was instrumental in maintaining the balance of power and preserving liberty and peace. In fact, an early fight, ‘before the balance tip[ped] in any decisive way, greatly reduce[d] the cost of the defence’ while increasing its effectiveness.679 Such arguments were certainly dangerous as they could justify a myriad of fruitless wars. Gentili delimited their extent by positing that only a ‘just fear’, that is, an existing threat to state security and international peace, actual preparation for war, and uneven strength could justify the exercise of preventive defence. In other words, states might use military force in case of necessity, ‘whenever the failure to do so would seriously risk their territorial integrity or political independence’.680 5.7 Conclusions The De Iure Belli of Alberico Gentili constitutes a masterpiece of early modern political thought and a keystone of the international legal theory of war.681 Gentili ‘differ[ed] from his predecessors by a keen sense of realism’: he ‘derive[d] inspiration from human nature and concrete facts rather than abstract principles and metaphysical assumptions’.682 At the same time, he also showed some idealism. While the De Iure Belli addressed contemporary issues and concerns, it also discussed notions and norms that still belong to current international law.683 Gentili eclectically relied on three different pillars: (1) law; (2) theology; and (3) Renaissance political theory. First, as to its legal component, the De Iure Belli drew upon different legal traditions, including Roman law, canon law, feudal law, and medieval commentaries of the same.684 In particular, Gentili ­relied extensively on consilia, legal opinions written by lawyers on specific ­legal issues.685 Second, in criticizing theologians, Gentili unavoidably relied on some of their arguments. As mentioned, he contributed to the gradual ­secularization of the law of nations, yet still relied on biblical and post-biblical sources, canon law, and the opinions of theologians. Third, Renaissance ­Humanism had a deep impact on Gentili’s vision of the international order. 679 Walzer, Just and Unjust Wars, 77. 680 Id. 85. 681 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 38–39. 682 Von Elbe, ‘The Evolution of the Concept of the Just War in International Law’, 677. 683 Focarelli, Introduzione Storica al Diritto Internazionale, 207. 684 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 40. 685 Id.

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While Gentili was neither a philosopher nor a historian, history and moral philosophy provided him with useful materials to develop and complete his legal arguments.686 Historical examples could not be understood without their philosophical reading, while moral philosophy could acquire practical relevance only through historical examples.687 Acknowledging the cyclical nature of history and the uniformity of human nature, Gentili identified the law of war by combining theory and practice. The eclectic nature of its sources made the De Iure Belli a unique treatise, which drew upon a rich panoply of legal, philosophical, and historical sources while conceptualizing the law of war as a distinct legal field and a part of the law of nations.688 Gentili was the first to separate the law of nations from theology, distinguishing the international legal theory of war from moral theology.689 The Gentilian theory reflected the gradual secularization of society and the rise of the modern state in the sixteenth century.690 While Gentili considered international law and theology as distinct fields of study, he did not remove all considerations of ethics from the law.691 On the contrary, the Gentilian system is characterized by recurring attention to humanity, equity, and justice. Gentili also distinguished the emerging law of nations from civil law. Although well versed in civil law, Gentili believed that the law of nations differed from civil law, and that therefore the content of the former could not be identified by a default reference to the latter.692 When he borrowed principles from civil law, he was concerned with their adaptability to the law of nations; he first addressed the question of whether given principles of the domestic order suited the needs of the international system, before transplanting them from the domestic realm to the international one.693 His theories significantly diverged from those of the medieval glossators, commentators, and theologians on the notion of just war, preventive war, and war of religion. While for the Spanish theologians, each side could tell the other that it had absolute justice on its side but only one had it, for Gentili, there is always another way of seeing things, different worldviews are possible, and both belligerents could have legitimate reasons for waging war. The bilateral justice of war constituted a paradigm shift in the theory of war; it i­ mplied that both belligerents could be iusti hostes, thus being entitled to the same rights 686 Id. 42. 687 Id. 43. 688 Id. 44. 689 Von Elbe, ‘The Evolution of the Concept of the Just War in International Law’, 677. 690 Id. 691 Zartner, ‘Can International Law Survive?’ 318 and 320. 692 Id. 316. 693 Id. 317.

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and duties under the laws of war. Gentili conceptualized war as a duel between equals. While the theologians rejected the legitimacy of preventive war, holding that injury was the only just cause of war and denying that ‘fear of something uncertain c[ould] constitute a just cause of war’, for Gentili a just fear could justify preventive war as a tool of self-defence.694 Gentili conceptualized preventive war as a war fought to maintain the balance of powers and to prevent the formation of empires. For Gentili, a just fear could legitimize waging preventive wars in order to defend state security and international peace. Such arguments were certainly dangerous as they could justify countless wars. ­Gentili delimited their extent by affirming that only an existing threat to state security and international peace, actual preparation for war, and u ­ neven strength could justify the exercise of preventive defence. In other words, ­nations could use military force ‘in the face of threats of war, whenever the failure  to do so would seriously risk their territorial integrity or political independence’.695 Finally, canon lawyers considered religious difference as a legitimate cause for war, while Gentili condemned wars of religion. In conclusion, in his theory of the law of war, Gentili addressed the main issues of his epoch, including wars of religion, the discoveries, and the clash of civilizations as well as imperial expansion. In dealing with such issues, Gentili contributed to the gradual secularization of the law of nations: he denied any legitimacy to wars of religion and acknowledged the value of cultural and religious diversity within the limits imposed by the common law of humanity. He was against any religious or cultural fundamentalism. More importantly, his theory ‘present[ed] clearly the rules of conduct that nations should follow in dealing with one another, either in beginning war, or waging it’, or in its aftermath.696 His task was constrained by the need to build from actual practice and elicit the consent of powerful patrons. He started from understanding how things were, and then imagined and defended some sensible limitations. His theory of the law of war thus oscillated between realism and idealism. 694 Zartner, ‘Can International Law Survive?’ 317. 695 Walzer, Just and Unjust Wars, 85. 696 Balch, ‘Albericus Gentilis’, 672.

Chapter 6

Gentili and the Law of the Sea Where are your monuments, your battles, martyrs? Where is your tribal memory? Sirs, in that grey vault. The sea. The sea has locked them up. The sea is History.1

∵ 6.1 Introduction In the Age of Exploration, which began in the early fifteenth century and lasted until the seventeenth century, European explorers, merchants, and adventurers began to travel the world by sea in search of new trading routes, riches, and knowledge. The exploration of distant lands and civilizations led to a sharp rise in global trade flows, diplomacy, and cultural interactions across the globe. The movement of people, goods, and ideas intensified dramatically during this era.2 Advancements in cartography and navigational instruments led to a new mapping of the globe, resulting in a new world-view. The world’s seas and oceans served as bridges to growing interaction among different polities, linking them in dense webs of commercial and cultural exchange.3 From the perspective of many non-Europeans, though, the Age of Exploration meant the arrival of foreigners from previously unknown continents; the propagation of diseases that decimated populations; and exploitation, conquest, and war. Therefore, the age required a sustained reflection on how the law of nations regulated international cultural diversity, trade, and the world’s oceans. Yet, in the early modern period, the law of the sea (ius maris) remained vague, incomplete, and largely inconsistent. Only a few treaties addressed the law of the sea bilaterally and only then in a fragmentary fashion. In parallel, the 1 Derek Walcott, ‘The Sea is History’, in Derek Walcott, Selected Poems (London: Faber 2009). 2 David J. Bederman, ‘The Sea’, Bardo Fassbender and Anne Peters (eds.) The Oxford Handbook of the History of International Law (Oxford: oup 2012) 359–379, 359. 3 Andrew Phillips and J.C. Sherman, International Order in Diversity: War, Trade, and Rule in the Indian Ocean (Cambridge: cup 2015) 51 and 59. © VALENTINA VADI, ���� | doi:10.1163/9789004426030_007 This is an open access chapter distributed under the terms of the CC BY-NC-ND 4.0 license.

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existing customs addressed the issues inherent to the law of the sea only in a ‘patchy’ way, and the available treatises diverged significantly. As a result, the regulation of the world’s oceans, that is, the main conduit of movement of peoples and transmission of goods and ideas at the time, remained a site of contestation. For nations and private actors alike (be they privateers, merchants, fishermen or sailors as well as adventurers and pirates), the law of the oceans was no more secure than the ocean itself. Were the oceans capable of being owned?4 If the answer to that question was yes, then, who owned the sea? Or, if ownership of the seas was materially impossible, could nations exercise any control over activity at sea such as rampant piracy and trade? This chapter explores how Alberico Gentili addressed these key questions and in doing so contributed to the early modern development of the law of the sea. Such scrutiny is both timely and important, as the evolution of the law of the sea has contributed to shape world history over the past 500 years. Although Gentili’s contribution to the law of the sea was original, significant, and foundational, it has been understudied and deserves further scrutiny. In order to discuss the Gentilian contribution to the law of the sea, this chapter examines both his De Iure Belli5 and the Hispanica Advocatio (or the Pleas of a Spanish Advocate).6 While international legal historians generally recognize De Iure Belli as Gentili’s masterpiece, constituting a first attempt to systematize the law of war, they often criticize or dismiss the legal significance of the Hispanica Advocatio. They consider it as a work ‘of forensic character and, as such, devoid of any coherent theoretical substance’.7 Far from the theoretical heights of the De Iure Belli, the Hispanica Advocatio includes a range of apparently contradictory statements.8 Therefore, scholars question the significance of the Hispanica Advocatio to determine Gentili’s stance on a range of maritime issues. In fact, the work is deemed to reflect advocacy rather than scholarly analysis, thus seeming less reliable than other sources. 4 Bederman, ‘The Sea’, 362. 5 Alberici Gentilis, De Iure Belli Libri Tres (Hanau: excudebat Guilielmus Antonius 1598); Alberici Gentilis, De Iure Belli Libri Tres, Thomas E. Holland (ed.) (Oxonii: Typographo Clarendoniano 1877); Alberico Gentili, De Iure Belli Libri Tres [1612] John C. Rolfe (transl.) (Oxford: Clarendon Press 1933). 6 Alberici Gentilis, Hispanicae Advocationis Libri Duo (Hanoviae: Apud haeredes Guilielmi Antonii 1613); Alberico Gentili, Hispanicae Advocationis Libri Duo, vol. ii, Frank Frost Abbott (trans.) (New York: oup 1921). 7 Diego Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis in Alberico Gentili’s De Iure Belli’ (2004) 30 Grotiana 88, 88. 8 Alain Wijffels, Alberico Gentili and Thomas Crompton (Leiden: Ius Deco 1992) (reporting these criticisms); G.H.J. Van der Molen, Alberico Gentili and the Development of International Law, 2nd edition (Leyden: A.W. Sijthoff 1968) 167, 173–174, 186.

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However, Gentili’s De Iure Belli provides only a part of the Gentilian reflection on the law of the sea. After all, it was a treatise illustrating the law of war rather than the law of the sea. Therefore, it only peripherally dealt with the law of the sea, focusing on war-related issues. Instead, in the Hispanica Advocatio Gentili often narrated disputes involving important and delicate issues of international law in general and the law of the sea in particular.9 Therefore, it is crucially important to examine the Hispanica Advocatio to investigate the Gentilian theory of the law of the sea. In fact, not only can the work shed light on some sea-related aspects of the law of war, such as neutrality law,10 but it can also complement the sparse and fragmentary war-related maritime aspects of the De Iure Belli.11 Certainly, the Hispanica Advocatio has a significant place in the history and theory of international law. On the one hand, the Hispanica Advocatio has historical value, as it vividly portrays a number of legal disputes before the English High Court of Admiralty. It constitutes a time capsule of historical events at sea, revealing maritime state policies and the legal arguments presented by the parties to given maritime disputes of the day. It offers historical evidence of how different players—states and non-state actors, pirates and privateers, interlopers and merchants, belligerents and neutrals—interacted in times of war and peace. It also demonstrates how the early modern law of the sea was implemented in practice. On the other hand, the Hispanica Advocatio has a notable legal significance as it shows how litigation shaped the law of the sea. It depicts how general principles of law emerged in the heat of litigation and treaties were implemented in practice. More fundamentally, by showing conflicting arguments on given topical issues, the work illuminates the development of the international legal method. Certainly, as a work of advocacy, the Hispanica Advocatio needs to be interpreted carefully. With this proviso, such work can shed further light on the development of the early modern law of the sea, the development of an international legal method, and Gentili’s seminal contribution to the history and theory of the law of the sea. Additional primary sources on Gentili’s contribution to the early modern law of the sea include the Gentili Papers and the private papers of Sir Julius Caesar. The Gentili Papers are conserved at the Bodleian Library; Manuscript D’Orville 608 contains fragmentary drafts of the Hispanica Advocatio and

9 10 11

Guido Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’ (1938) 12 Annali della Facoltà Giuridica dell’Università di Camerino 215–248, 224. See Chapter 5 above. M.E. Nys, ‘Les Manuscripts de Sir Julius Caesar’ (1887) 19 Revue de Droit International et de Législation Comparée 461–471.

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some interesting personal documents.12 While for some parts, there seems to be a general concordance of Gentili’s notes, as contained in MS D’Orville 608 and the Hispanica Advocatio,13 for other parts, ‘the rearrangements carried out by Gentili were … very extensive and may therefore warrant the provisional conclusion that the Hispanica Advocatio should be counted among the author’s works of doctrine’.14 The private papers of Sir Julius Caesar (1557–1636), a judge of the High Court of Admiralty, include both correspondence with litigants, or lawyers, including Gentili, and Caesar’s handwritten notes on the legal arguments presented by the parties.15 Of Italian descent—his father was one of the doctors of Queen Elizabeth I (1533–1603)—Caesar was a notable civilian and served as a judge of the High Court of Admiralty from 1587 until 1606.16 As noted by Wijffels, while ‘Caesar’s extensive notes as a judge’ show ‘a keen interest in counsels’ technical arguments’, they ‘do not reflect any particular ambition for original thinking’; rather, they reflect the desire to buttress his own position. Caesar was probably ‘a successful careerist who relied on a complex network of patronage’, and ‘succeeded, through his offices, his marriages, and private dealings, in accumulating considerable wealth and furthering his … caree[r]’.17 The study of Caesar’s papers can shed additional light on the functioning of the Court of Admiralty; the legal method used by counsels and judges; and the most salient arguments of key maritime disputes. As Gentili omits to give detailed information about the disputes in which he was involved in the Hispanica Advocatio, or even the Court’s decision for that matter,18 the Caesar’s Papers can fill some of the gaps. For instance, the Caesar’s papers confirm that the ‘civil law model of reasoning’ prevailed at the Court of Admiralty.19 They show that the pleadings contained 12

MS D’Orville 608; Alain Wijjffels, ‘Alberico Gentili e Thomas Crompton. Un Sfida tra un Professore e un Avvocato’, in Alain Wijjffels (ed.) Alberico Gentili Consiliatore (Milan: Giuffrè 1999) 25–83, 46. 13 Keith R. Simmonds, ‘The Gentili Manuscripts’ (1959) 76 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 534–552, 550–551. 14 Wijffels, Alberico Gentili and Thomas Crompton, 7. 15 Alain Wijffels, ‘Sir Julius Caesar’s Notes on Admiralty Cases: An Alternative to Judicial Reporting?’ in Chantal Stebbings (ed.) Law Reporting in England (London: Hambledon Press 1995) 89–112, 90. 16 Lamar M. Hill, Bench and Bureaucracy—The Public Career of Sir Julius Caesar (Cambridge: James Clarke & Co. 1988) 1. 17 Alain Wijffels, ‘Caesar, Sir Julius (bap. 1558, d. 1636)’ odnb (Oxford: oup 2004) (noting that, like Gentili, Caesar lived lived in Bishopsgate and is buried in St. Helen’s, Bishopsgate.); Hill, Bench and Bureaucracy, xiv. 18 Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’, 228. 19 Wijffels, ‘Sir Julius Caesar’s Notes on Admiralty Cases’, 97.

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reference to the fundamental texts and ‘the ocean of doctrinal authorities’ of the ius commune tradition.20 The sound archival work conducted by eminent historians has offered important insights that previous international law stu­ dies did not take into account21 and has clarified Gentili’s stance on many maritime disputes.22 In addition to these primary sources, secondary legal, historical, and literary sources can close the gap in our knowledge of Gentili’s contribution to the law of the sea. This ‘triangulation’ of the available sources helps filling the gaps in the primary sources, so that we may better understand and interpret Gentili’s works and decipher his position on a number of legal issues, including maritime warfare and neutrality, piracy and privateering, plunder and prize. This ‘triangulation’ of the sources—the joint use of both primary sources and secondary legal, historical, and literary sources—also illuminates the impact that the Gentilian theory of the law of the sea had on the making of the early mo­ dern law of nations. This chapter explores Gentili’s contribution to the law of the sea. Its argument is divided into three parts. First, it discusses Gentili’s approach to the spatial ordering of the sea and examines his twofold contribution to the conceptualisation of the freedom of the seas and the notion of the territorial sea in the early modern law of nations. Second, it investigates Gentili’s approach to the regulation of the sea as a place where merchants, pirates, and privateers as well as other non-state actors interacted. In this regard, the chapter illuminates Gentili’s view of these non-state actors and their role in the making of the law of the sea. In the sixteenth century, the oceans became a place of international encounter and conflict to an unprecedented degree because of the discoveries, the spread of maritime trade, and seaborne colonial expansion.23 The oceans became ‘a space where the international community cease[d] to be an abstract idea, and bec[ame] real, in the interplay of the variety of different rights and duties which exist[ed] in the ocean space’.24 As Benton suggests, ‘ships were 20 21 22 23 24

Wijffels, ‘Sir Julius Caesar’s Notes on Admiralty Cases’, 92. See e.g. Van der Molen, Alberico Gentili and the Development of International Law, 329 (noting that ‘a thorough research into the disputes brought at the time before the English Admiralty Court could throw more light on Gentili’s opinion’.) For seminal studies of the same, see Alain Wijffels, ‘Sir Julius Caesar and the Merchants of Venice’ in F. Battenberg and F. Ranieri (eds.) Geschichte der Zentraljustiz in Mitteleuropa (Weimer 1994) 195–219. Michael Kempe, ‘Even in the Remotest Corners of the World: Globalized Piracy and International Law, 1500–1900’ (2010) 5 Journal of Global History 353–372, 354. Henry Jones, ‘The World as It is, Not as We’d like It to Be – Thinking with the Sea about International Law’, (2015) 5 nyu Jean Monnet Working Paper Series, 1–30, 13.

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both ‘islands of law … and … vectors of law thrusting into ocean space’.25 Reflection on the regulation of commerce, privateering, and piracy became crucial.26 Third, the chapter discusses the Hispanica Advocatio, scrutinising some maritime disputes in which Gentili served as counsel of Spain before the High Court of Admiralty. Discussion of the Hispanica Advocatio enables an exploration of how the law of the sea emerged in practice. In fact, admiralty courts ‘dominated the … development of international law at sea until, in the 20th century, the United Nations Convention on the Law of the Sea (unclos) attempted to settle finally the legal regime in a multilateral treaty’.27 The chapter proceeds as follows. Section 6.2 explores Gentili’s dual contribution to the notion of the freedom of the seas and the concept of territorial waters. Section 6.3 examines Gentili’s support for the freedom of communication, movement, and commerce. Section 6.4 discusses the difficult distinction between piracy and privateering in the early modern period, and Gentili’s sanctioning of both. Section 6.5 discusses Gentili’s advocacy at the High Court of A ­ dmiralty. After providing a critical assessment, the chapter concludes. 6.2

The Sea: Between Freedom and Sovereignty

Gentili’s contribution to the early modern law of the sea was seminal, significant, and impactful. He played a fundamental role in the debate on the freedom of the seas, elaborating the diverging but complementary concepts of the freedom of the high seas and territorial waters and linking these notions to the concept of the balance of power. This section discusses the Gentilian elaboration of the binary concepts of the freedom of the seas and territorial waters, and the way Gentili shaped the legal debate on sea governance by exercising a key influence on its major players. This analysis shows how Gentili’s theories influenced the development of the law of the sea in a previously unacknowledged way.

25 26

27

Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400– 1900 (Cambridge: cup 2010) 112. On the historical relation between world histories and the world’s oceans, see Christian Buchet and Gérard Le Bouëdec (eds) The Sea in History—The Early Modern World/La Mer dans l’Histoire—la Période Moderne (New York: Boydell & Brewer 2017) and David Armitage, Alison Bashford, and Sujit Sivasundaram (eds) Oceanic Histories (Cambridge: cup 2017). Henry Jones, ‘Lines in the Ocean: Thinking with the Sea about Territory and International Law’ (2016) 4 London Review of International Law 307–343, 311.

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6.2.1 The Freedom of the High Seas In the age of European expansion, one of the main questions was whether the seas were free or open for appropriation and, in the latter case, who owned the seas. Roman sources established that the sea was common to all (res communis omnium), it had no owner, either public or private (res extra patrimonium),28 and was ‘incapable of appropriation, just as [wa]s the air’.29 Roman sources also regarded the shore ‘as a part of the sea, not as a part of the land’ and considered it to be common to all.30 Nonetheless, under Roman law, the Emperor had jurisdiction over offences committed at sea, including piracy.31 In anti­ quity, such principles were not ‘formal international law—because there were no States in the Mediterranean basin independent of the Roman Empire’; rather, they constituted ‘basic public policy’ of the Roman Empire until its fall.32 In the Middle Ages, a number of polities ‘competed for supremacy over both land and water’ in order ‘to police adjacent seas’, control fisheries, prevent piratical incursions, and secure ‘exclusive control over trade routes’.33 At the beginning of the seventeenth century, the battle of ideas concerning the freedom of the seas had reached its zenith.34 Far from being theoretical, the so-called ‘Battle of Books’ reflected the geopolitics of the time.35 On the one hand, since the fifteenth century, Spain and Portugal had advanced ‘claims to sovereignty (including both jurisdiction and dominion) over ocean areas’.36 Since the 1493 Papal Bull Inter Caetera and the 1494 Treaty of Tordesillas divided the non-European world between Portugal and Spain, Spain had become the dominant maritime power in the Americas, while Portugal had established trading posts in South America, Africa, China, and the East Indies.37 The ­Spanish and Portuguese crowns ‘treated all crossing these lines without their 28

Percy Thomas Jr. Fenn, ‘Justinian and the Freedom of the Sea’ (1925) 19 ajil 716–727, 716 and 720–721. 29 Id. 723. 30 Id. 31 Percy Thomas Jr. Fenn, ‘Origins of the Theory of Territorial Waters’ (1926) 20 ajil 465–482, 465. 32 Arvid Pardo, ‘The Law of the Sea: Its Past and Its Future’ (1984) 63 Oregon LR 7–17, 7. 33 Id. 34 W.E. Butler, ‘Grotius and the Law of the Sea’ in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.) Hugo Grotius and International Relations (Oxford: oup 1990) 209– 220, 211. 35 Bederman, ‘The Sea’, 365. 36 Id. 37 Jones, ‘Lines in the Ocean’, 4 (noting that the Treaty of Tordesillas drew an ideal line along a meridian west of the Cape Verde islands and gave Spain exploration rights to the west and Portugal to the east.).

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e­ xpress permission as criminal intruders, no different from pirates’.38 Since the union of the Spanish and Portuguese crowns under King Philip ii (1527–1598), the Iberians had claims to an almost universal jurisdiction over the entire globe.39 However, France, England, the Netherlands, Russia, and local rulers in Africa, South and South East Asia endorsed the principle of the freedom of the seas.40 In the aftermath of the Reformation, several European states ‘refused to recognize the authority of the Pope to grant the non-European world to Spain and Portugal’ and accorded no international validity to the Papal Bull.41 These nations accordingly ‘demanded unlimited freedom of trade and free passage on the open seas’, and ‘defin[ed] every measure taken by Spain or Portugal to hinder such passage as itself an act of piracy’.42 Explorers, traders, and privateers from England, France, and the Low Countries openly challenged the Iberian dominion over the oceans.43 In parallel, for the Afro-Asian rulers, who governed over land-based empires, the oceans were ‘a non-territory, a space not suitable for control, but rather one that existed solely as a transport surface’.44 Against this background, Gentili endorsed the principle of the freedom of the high seas (mare liberrimum).45 For Gentili, the high seas were not ­susceptible to dominion and were rather common to all (res communis 38 39

Kempe, ‘Globalized Piracy and International Law’, 358. Michel Bottin, ‘Frontières et Limites Maritimes au xvie Siècle’, in M. Lafourcade (ed) La Frontière des Origines à Nos Jours—Actes des Journées de la Societé Internationale d’Histoire du Droit (Bourdeaux: Presses Universitaire de Bourdeaux 1998) 27–41, 37. 40 Hassan S. Khalilieh, Islamic Law of the Sea—Freedom of Navigation and Passage Rights in Islamic Thought (Cambridge: cup 2019) (discussing the commonality of the sea in the Qur’an); Charles Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (Oxford: Clarendon Press 1967) 42–49. 41 Pardo, ‘The Law of the Sea: Its Past and Its Future’, 9. 42 Kempe, ‘Globalized Piracy and International Law’, 358. 43 Edward P. Cheney, ‘International Law under Queen Elizabeth’ (1905) 20 English Historical Review 659–672, 659–660 (noting that when the pirate-merchant-adventurer Francis Drake (1540–1596) returned from his voyage round the world bringing with him plunder captured from Spanish settlements and ships, Don Bernardino Mendoza, the Ambassador of Spain in England, appealed directly to Queen Elizabeth for the restoration of stolen property. However, the Queen argued that Drake took legitimate reprisals against Spain because the Spanish monopoly was in breach of the law of nations (contra ius gentium). She did not recognize the authority of the Pope to invest the Spanish King with the Ameri­ cas. Therefore, she concluded that ‘all are at liberty to navigate that vast ocean, since the use of the sea and the air are common to all’.) 44 P.E. Steinberg, The Social Construction of the Ocean (Cambridge: cup 2001) 46. 45 Gentili, De Iure Belli, Book I, Chapter 19, 146; Gentilis, Hispanica Advocatio, Book i, ­Chapter 6, p. 24; Chapters 8–9, 14, and 19.

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omnium).46 The sea was ‘by nature open to all … and its use [wa]s common to all, like that of the air. It c[ould] not therefore be shut off by any one’.47 This was not a new idea; rather, in Roman law, the seas were res publica extra commercium, or public goods which could not be owned or traded.48 For Gentili, Roman law was not a binding source of the early modern law of nations; rather, it constituted a useful source of analogies as it often expressed natural justice. Gentili relied on the Roman conceptualization of the seas and transposed it to the early modern law of nations by way of analogy. He rejected the Iberian claims that the oceans were under the dominion of Portugal and Spain and closed to other nations. He also rejected the Republic of Venice’s claims over the Adriatic Sea as a form of unlawful seizure (usurpatio).49 Rather, the freedom of the high seas entailed that all had the right to maritime navigation, trade, and free use (usus communis) of maritime resources (beneficia naturae).50 With regard to the use of maritime resources, for Gentili the sea was ‘not a fit object for physical appropriation’ and thus it was ‘the property of none’ (proprietas nullius) and instead ‘common to all’ and subject to ‘common use’.51 Nonetheless, what was taken from the sea ceased to be common property and became private property.52 As noted by Gentili, ‘as the fish are caught, they unquestionably become the property of the owner into whose hands they have come … and the very water of the sea, when it is collected for the manufacture of salt, belongs to [the person] who has collected it’.53 Gentili nonetheless argued that property lost at sea should remain with the original owners. The regulation of ownership of the spoils of sunken ships that the ocean returned along the coasts was ‘particularly contentious’.54 Who owned the cargo of the sunken ship? What compensation, if any, should be paid to those who helped

46 Gentili, Hispanica Advocatio, Book i, Chapter 4, p. 24 (mare communissimum); Gentilis, De Iure Belli, Book I, Chapter 19. 47 Gentili, De Iure Belli, Book i, Chapter 19, p. 90. 48 Bederman, ‘The Sea’, 362. 49 Gentili, De Iure Belli, Book I, Chapter 19, pp. 91–92. 50 Coleman Phillipson, ‘The Great Jurists of the World—Albericus Gentilis’ (1911) 12 Journal of the Society of Comparative Legislation 52, 62. 51 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 97–98. 52 Gentili, De Iure Belli, Book i, Chapter 4, p. 24; Diego Pirillo, ‘Balance of Power and Freedom of the Seas: Richard Hakluyt and Alberico Gentili’ in Daniel Carey and Claire Jowitt (eds) Richard Hakluyt and Travel Writing in Early Modern Europe (Aldershot: Ashgate 2012) 177–186, 184. 53 Gentili, De Iure Belli, Book i, Chapter 4, p. 24. 54 Francesca Trivellato, ‘Amphibious Power: The Law of Wreck, Maritime Customs, and Sovereignty in Richelieu’s France’ (2015) 33 Law & History Review 915–944, 916.

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to salvage the cargo? Maritime customs provided ‘rewards for those who helped salvage goods from a storm’, for the right to compensation constituted an ‘incentive to aid wrecked ships’, even though such compensation ‘varied greatly in rates and forms across time and place’.55 A different albeit related issue was the regulation of items of cargo that reached the shore. Sovereign states soon adopted regulatory frameworks that complemented existing customs to govern the recovery of shipwrecks. The recovery of such wrecks was perceived to be a sensitive matter as it impinged on three key areas: the diplomatic relations with other sovereigns, ‘the promotion of commerce and navigation, and the consolidation of royal power across the kingdom’.56 Such norms had a ‘liminal quality, located as they were at the intersection of multiple sources of law and subjected as they were to political impulses that responded to contingent situations’.57 Gentili claimed that the property of shipwrecks should remain with the original owners; he criticized as ‘unjust’ the contemporary French and English law of salvage enabling those finding items at shipwrecks to keep their finds (‘finders keepers’).58 At the heart of Gentili’s reflections on the freedom of the sea was the distinction between dominion (dominium) and jurisdiction (iurisdictio), which has become a fundamental theme in the history and theory of the law of the sea.59 While he considered property claims to the sea to be inadmissible, he did admit that maritime nations could exercise different forms of jurisdiction over the high seas to prevent or punish crime and take measures against piracy.60 For Gentili, states had ‘the right of supervision’ and ‘jurisdiction over the deep’ to punish crimes committed at sea such as piracy.61 During Gentili’s age, piracy constituted one of the greatest threats to the international legal order and the punishment of piracy was ‘of the greatest importance’.62 Gentili saw pirates as the ‘common enemies of humankind’, who had placed themselves outside the legal order and thus did not enjoy any rights under the law of nations.63 Rather, they were subject to universal jurisdiction, and not only states 55 Trivellato, ‘Amphibious Power’, 918. 56 Id. 922 (referring to the Kingdom of France). 57 Id. 941. 58 Gentili, De Iure Belli, Book i, Chapter 19, p. 91. 59 Bederman, ‘The Sea’, 363–365 (stating that while Roman sources distinguished the concepts of ownership (dominium), power (imperium), and control or jurisdiction (jurisdictio), in his De Iure Belli, Gentili revived the distinction between property and jurisdiction). 60 Alison Reppy, ‘The Grotian Doctrine of the Freedom of the Seas Reappraised’ (1950) 19 Fordham LR 243, 276. 61 Gentili, De Iure Belli, Book i, Chapter 19, p. 92; Book i, Chapter 25, p. 124. 62 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 101. 63 Id.

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but also all individuals could punish them.64 As Gentili put it, ‘a war against pirates justly calls all men to arms because of love for our neighbour and the desire to live in peace’.65 Yet, Gentili warned that such jurisdiction should not ‘degenerate into abuse’.66 No nation should deny the use of the sea to another without good reason. For Gentili, the denial of navigation and commerce ‘without good and sufficient cause’ constituted a violation of the law of nations and was thus an offence against the international community as a whole.67 Consequently, war could be justly declared to restore such rights.68 In fact, for Gentili, as the freedom of the seas enabled peoples to navigate, interact, trade, and acknowledge their unity (humanitatis nexus firmissimus),69 any disruption to the freedom of the seas (without good reason) would breach the law of nations.70 Finally, Gentili linked the debate on the freedom of the seas to the concept of the balance of power, as elaborated by Niccolò Machiavelli.71 For Gentili, the Spanish Empire threatened to jeopardize the balance of power both in Europe and beyond. In fact, ‘under the pretext of prosecuting heresy, [the King of Spain] was pursuing [an] imperial plan’.72 Therefore, Gentili ‘recommended following the policies of Lorenzo de’ Medici’, preserving the balance of power and preventing the establishment of one global dominion (monarchia universalis).73 On the one hand, he argued in favour of the freedom of the seas, to counter the hegemonic expansion of Spain; on the other, he also challenged the legal claims on which emerging empires sought to establish their domi­ nion worldwide, by conceptualizing a range of limits to the freedom of the sea, including the notion of the territorial sea.74 6.2.2 The Territorial Sea Gentili was the first to develop the notion of the territorial sea. Acknowledging that the coasts were ‘not only geographical boundaries between the land and

64 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 101. 65 Gentili, De Iure Belli, Book i, Chapter 25, p. 124. 66 Reppy, ‘The Grotian Doctrine of the Freedom of the Seas Reappraised’, 276. 67 Gentili, De Iure Belli, Book i, Chapter 4. 68 Reppy, ‘The Grotian Doctrine of the Freedom of the Seas Reappraised’, 276. 69 Gentili, De Iure Belli, Book I, Chapter 19. 70 Diego Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento—Bruno, Sidney, e i Dissidenti Religiosi Italiani (Roma: Edizioni di Storia e Letteratura 2010) 190. 71 Pirillo, ‘Balance of Power and the Freedom of the Seas’, 177. 72 Id. 180. 73 Id. 74 See Chapter 7 below.

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the sea’, but they were ‘often also political and jurisdictional frontiers’,75 Gentili investigated the questions as to whether the adjacent waters belonged to the coastal state or could be subject to its jurisdiction. While Gentili reaffirmed that the sea was common to all and could not be appropriated, he nonetheless elaborated the concept of territorial waters as an intermediate legal notion between the freedom of the high seas and the territorial sovereignty of the coastal state. This section examines Gentili’s seminal contribution to the law of the sea by focusing on how he elaborated the notion of territorial waters, relying on Roman law, civil law, and feudal law. Under Roman law, the Emperor had some limited powers to police the seas; but such jurisdiction was essentially aimed at suppressing piracy and safeguarding the freedom of navigation and of commerce.76 Such jurisdiction was broad and narrow at the same time. It was broad because it related to the entire sea. It was narrow, because it was limited in scope, that is, the repression of piracy. It fundamentally differed from the power the Emperor exercised on land (terra firma). Therefore, the idea of ‘a narrow belt of the sea’ placed under coastal state sovereignty was not of Roman origin;77 rather, it was theorized after the fall of the Roman Empire when Venice and other Italian maritime cities advanced claims upon the Adriatic Sea and neighbouring waters respectively.78 Medieval jurists such as Baldus (1327–1400) elaborated the notion of adjacent waters out of feudal law,79 ‘recogni[zing] … the existence of a special interest of a monarch in the neighbouring waters, with an accompanying right of a more particularized jurisdiction than that monarch could exercise over the sea at large’.80 In the sixteenth century, there was no unitary notion of territorial seas; ­rather, various states advanced a series of claims, such as property rights or control over fisheries in their adjacent seas.81 For instance, the King of Denmark claimed dominion (mare clausum) in the northern seas, and alleged that he could forbid all fishing in the area and/or issue fishing licences.82 The English mathematician, astronomer, and maritime advisor to Queen Elizabeth i 75 76 77 78 79 80 81 82

Trivellato, ‘Amphibious Power’, 941. Fenn, ‘Origins of the Theory of Territorial Waters’, 471. Tommy T.B. Koh ‘The Origins of the 1982 Convention on the Law of the Sea’ (1987) 29 Malaya Law Review 1–17, 3. Reppy, ‘The Grotian Doctrine of the Freedom of the Seas Reappraised’, 276–277. Id. 276. Fenn, ‘Origins of the Theory of Territorial Waters’, 473. Umberto Leanza, ‘La Delimitazione del Mare Territoriale nel Mare Mediterraneo’ (1995) 16 Zb. Prav. Fak. Sveuc. Rij. 15–36, 30. Cheney, ‘International Law under Queen Elizabeth’, 670

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J­ ohn Dee (1527–1608)83 attempted to establish the legality of Elizabeth’s claims of sovereignty over the surrounding seas and fisheries of the British Isles defi­ ning the boundaries of this dominion in the widest terms.84 However, Elizabethan policy had generally allowed foreign access to British waters.85 Instead, soon after his succession to the English throne, James i of England (1566–1625) claimed ‘all fisheries along the British coasts’ thus ‘prohibiting foreign vessels from fishing in those proximate waters without a royal licence’.86 This policy extended the traditional Scottish policies of the closure of the sea (mare clausum) to the English sea.87 In his 1613 De Dominio Maris, the Scottish Professor of mathematics and of law William Welwood (1578–1622) argued that the adjacent seas were property of the coastal state.88 Welwood did not dispute freedom of passage over the oceans; rather, he was concerned with the ‘exhaustibility of natural resources’.89 Although Gentili believed that the sea was common to all (res communis omnium), he acknowledged that states had some limited powers to police thehigh seas. Nonetheless, that jurisdiction was essentially aimed at, and thus li­ mited to, suppressing piracy and safeguarding freedom of navigation and of commerce.90 The jurisdiction over the high sea was therefore of more limited nature and scope than the power the sovereign exercised over land. In fact, while the former gave the sovereign the power to prevent and punish crimes, territorial sovereigny included both jurisdiction and imperium, that is, the power to govern a given space. If there were to be an extension of sovereignty to the adjacent sea, Gentili argued, then such power should be similar to that on land. In effect, there should be an extension of territorial sovereignty over the adjacent sea.91

83

John Dee, General and Rare Memorials pertaining to the Perfect Art of Navigation (London: John Day 1577). 84 David Armitage, The Ideological Origins of the British Empire (Cambridge: cup 2000) 106–108. 85 Id. 108. 86 Bederman, ‘The Sea’, 369. 87 Armitage, The Ideological Origins of the British Empire, 108 (noting that ‘the Scots were more dependent on their fisheries than on their agriculture for subsistence, and hence more protective of their coastal and oceanic fishing grounds’.) 88 Ivan Shearer, ‘Grotius and the Law of the Sea’ (1983) 46 Bulletin of the Australian Society of Legal Philosophy 46–65, 52. 89 Gary Edmond, ‘The Freedom of Histories: Reassessing Grotius on the Sea’ (1995) 2 Law Text Culture 179–217, 208. 90 Fenn, ‘Origins of the Theory of Territorial Waters’, 471. 91 Id.

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Gentili was the first to use the term ‘territorial sea’ or marine territory (marinum territorium) and he conceptualized the notion of territory (territorium) as a comprehensive concept covering both land and adjacent water.92 Gentili saw the territorial sea as a portion of the land (mare portio terrae).93 Coastal waters were, he argued, a part of the territory of the state whose shores they reached. It followed that the territorial rights of coastal states expanded to the sea adjacent to their coasts. Coastal states maintained regulatory powers and exclusive jurisdiction over their coastal waters (mare adiacens) for protecting vital interests such as state security, public health, and access to ocean resources.94 Such particularized jurisdiction existed in parallel with the general jurisdiction over piracy and criminal offences that all states had in the high seas. This was a breakthrough which helped to strengthen the internal and external sovereignty of states.95 ‘Unlike his predecessors’, Gentili ‘assimilate[d] the land and the territorial waters into a single unit’ in relation to the powers which the coastal sovereign could exercise over them.96 He was the first to elaborate the legal notion of territory as including both land and waters. With regard to the coastal state’s power over the territorial sea, according to Gentili, such authority was not absolute; rather, it was subject to two limitations. First, coastal states were not to deny foreign ships innocent passage through their territorial waters.97 Second, foreign ships could freely use harbours for the purpose of obtaining shelter and provisions.98 Nonetheless, innocent passage remained a right provided that the state of transit ‘ha[d] no reason to fear that harm w[ould] be done and if it [was] certain that harm [could] not be done’.99 In fact, Gentili pointed out that states could legitimately refuse harmful passage: ‘one who attempts what is unlawful loses his lawful

92 Gentili, De Iure Belli, Book iii, Chapter 17, p. 384; Gentili, Hispanica Advocatio, Book i, Chapter 8 (entitled ‘de territorio marino tuendo’); Fenn, ‘Origins of the Theory of Territorial Waters’, 478 (noting that ‘After Gentili, it is literally correct to speak of territorial waters in international law’); Frank Frost Abbott, ‘Alberico Gentili and His Advocatio Hispanica’ (1916) 10 ajil 737, 743; Leanza, ‘La Delimitazione del Mare Territoriale nel Mare Mediterraneo’, 21; Lauren Benton, ‘Piracy and Politics in Gentili’s Hispanica Advocatio: Implications for an Understanding of Universal Jurisdiction’, in vvaa, Alberico Gentili— Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 169–188, 177. 93 Gentili, De Iure Belli, Book iii, Chapter 17, p. 369. 94 Id. 95 Bottin, ‘Frontières et Limites Maritimes au xvie Siècle’, 30. 96 Reppy, ‘The Grotian Doctrine of the Freedom of the Seas Reappraised’, 278. 97 Gentili, De Iure Belli, Book i, Chapter 19, p. 86. 98 Gentili, Advocatio Hispanica, Book i, Chapter 6. 99 Gentili, De Iure Belli, Book i, Chapter 19, p. 87.

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rights’.100 Analogously, ‘[a]lthough the use of harbours [was] open to all’— Gentili argued—‘the abuse of them [was] not permitted to anyone’.101 For Gentili, warfare should not take place in the territory and adjacent sea of a neutral state.102 For instance, Gentili cited a case from the Dutch revolt against Spain, when a Dutch warship intercepted a Spanish warship leading to the United Provinces. When the Spanish warship took refuge in an English harbour, the Dutchmen waited for the Spaniards to leave the port. For Gentili, the conduct of the Dutch violated English sovereignty.103 Finally, in their territorial waters, states could deny rights of navigation and commerce for reasons of public health, national security, and self-defence.104 Gentili considered the Chinese practice of limiting commerce with foreigners to a limited number of ports to be legitimate. The exact length of territorial waters remained unsettled until the second half of the twentieth century.105 Gentili did not take a definite position on the extent of the territorial waters. Three main criteria were used in maritime practice: the cannon-shot rule, the line-of-sight rule, and marine leagues.106 First, the cannon-shot rule set the limit of the extent of territorial waters to the reach of a shot fired from the coast.107 Second, under the line-of-sight rule, ‘a coastal state could claim a band of the sea from its coast to as far as the human eye could see, within which, the coastal state could exercise powers to protect its security, to enforce its customs regulations, and to protect the coastal population and its economic interests, for example, in fisheries’.108 Third, marine leagues were sometimes used to identify the extent of territorial waters. Both the cannon-shot rule and the line-of-sight rule were vague; a more certain criterion for identifying the territorial sea was given by the use of marine league, corresponding to four nautical miles.109 In the Hispanica Advocatio Gentili seems to adhere to the 100-mile boundary rule established by medieval

100 Gentili, De Iure Belli, Book i, Chapter 19, p. 87. 101 Gentili, Hispanica Advocatio, Book i, Chapter 14, p. 61. 102 Id. 103 Abbott, ‘Alberico Gentili and His Advocatio Hispanica’, 744. 104 Gentili, De Iure Belli, Book i, Chapter 19. 105 Trivellato, ‘Amphibious Power’, 915; Leanza, ‘La Delimitazione del Mare Territoriale nel Mare Mediterraneo’, 21; United Nations Convention on the Law of the Sea (unclos) opened for signature on 10 December 1982, in force 16 November 1994, 21 ilm 1261 (1982), Article 2 (setting the limit of territorial waters to twelve nautical miles). 106 Koh, ‘The Origins of the 1982 Convention on the Law of the Sea’, 4. 107 Id. 108 Id. 109 Id.

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­glossators.110 Nonetheless, since this was a piece of advocacy, it remains uncertain whether by using this criterion he expressed his definitive stance on the matter. 6.2.3 Impact What impact did Gentili’s theory of the freedom of the high seas and territorial waters have on the development of the early modern law of the sea? Treatises on international law rarely mention Gentili when they discuss the so-called battle of the books. After all, Gentili did not author a specific treatise on the freedom of the seas or on territorial waters. Rather, his contribution to the theory of the law of the sea is ‘hidden’ in his more general works, De Iure Belli and the Hispanica Advocatio. Nonetheless, this section shows that his contribution has been more influential and impactful than it is usually acknowledged. The Gentilian theory of the freedom of the seas and the conceptualization of the territorial sea certainly inspired subsequent theoretical and practical developments. Not only did Gentili deeply influence the main proponent of the freedom of the seas, Hugo Grotius (1583–1645),111 but he also influenced the principal proponent of the closure of the sea (mare clausum), notably John Selden (1584–1654).112 On the one hand, Gentili strongly influenced the main proponent of the freedom of the sea, Hugo Grotius. Grotius read Gentili’s works and recommended them to his students. Reportedly, Grotius had both De Iure Belli and Hispanica Advocatio among his books and there is evidence that he read both.113 In his 1609 Mare Liberum, Grotius mentioned Gentili among the most famous jurists (clarissimi iurisconsulti) favouring a universal right to navigation.114 Following Gentili, Grotius argued that the high seas were common to all (res communis omnium) and could not be acquired (res extra commercium). 110 Fenn, ‘Origins of the Theory of Territorial Waters’, 477 (noting that in his Tractatus de Fluminibus, Bartolus of Saxoferrato (1314–1357) argued that state sovereignty extended to nearby islands that were at a ‘moderate distance’ from the coast not exceeding 100 miles. Later jurists cited this passage to lay down a hundred-mile limit to the jurisdiction of a state over the adjoining sea.) 111 Hugonis Grotii, Mare Liberum sive de Iure quod Batavis Competit ad Indicana Commercia Dissertatio (Leiden: Elzevier 1609); Hugo Grotius, The Free Sea, David Armitage (ed.), Richard Hakluyt (trans.), (Indianapolis: Liberty Fund 2004). 112 John Selden, Of the Dominion, Or, Ownership of the Sea (London 1652). 113 Pirillo, ‘The Balance of Power and the Freedom of the Seas’, 183; Lauren Benton, ‘Legalities of the Sea in Gentili’s Hispanica Advocatio’, in Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 269–282, 281. 114 Diego Pirillo, ‘Eretici Italiani e Selvaggi Americani: il Nuovo Mondo nella Coscienza Pro­ testante Italiana del Cinquecento’ (2010) 50 Rinascimento 377–397, 389.

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Rather, every nation was free to travel to every other nation, and to trade with it.115 Grotius also recognized the difference between proprietary rights and the authority to assert jurisdiction offshore, ‘a legal distinction for which he cite[d] Baldus but for which he m[ight] have been in Gentili’s intellectual debt’.116 However, his theory profoundly differed from Gentili’s in a number of ways. For example, whereas Gentili linked the freedom of the seas to the idea of the balance of powers, Grotius did not make this connection. And while Gentili’s positions on the freedom of the high seas and the notion of territorial waters in part reflected and influenced the Elizabethan and Jacobean policies, by claiming the freedom of the sea, Grotius provided an ideological justification of ‘Dutch interloping in the colonial empires of Spain and Portugal’.117 On the other hand, the Gentilian concept of territorial waters influenced the main proponent of the closure of the sea, the lawyer and polymath John Selden. In his Mare Clausum (Closed Seas),118 written under royal patronage in 1616/1617 but published only in 1635 for contingent political reasons, Selden argued that the sea could be appropriated. Selden’s theory thus differed from the Gentilian one.119 Like Gentili, though, Selden admitted innocent passage in the adjacent sea,120 and maintained that restrictions on navigation and commerce did not necessarily violate the law of nature and the law of nations.121 The Gentilian theory of the freedom of the high seas and his conceptualization of the territorial sea relied on maritime practice. When the King of Denmark claimed dominion in the northern seas and alleged that he could prohibit fishing in the area and/or issue fishing licences, the English responded that ‘the most celebrated lawyers [Gentili] had given their judgment that the sea, by the law of nations, [was] free and common, and [could] not be monopolized by any prince’.122 Since James I’s ascension to the English throne in 1603, England advanced claims over the seas around England and Scotland.123

115 See generally Grotius, The Free Sea. 116 Bederman, ‘The Sea’, 366; Grotius, The Free Sea David Armitage (ed) Richard Hakluyt (trans) 31 (‘[Some] affirm a right over the sea [based on] protection and jurisdiction, which … they distinguish from property’.) 117 Martine Julia Van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615 (Leiden: Brill 2006) xix. 118 Selden, Of the Dominion, Or, Ownership of the Sea. 119 Butler, ‘Grotius and the Law of the Sea’, 211. 120 Ruth Lapidoth, ‘Freedom of Navigation its Legal History and its Normative Basis’ (1975) 6 Journal of Maritime Law & Commerce 259, 266. 121 Edward Gordon, ‘Grotius and the Freedom of the Seas in the Seventeenth Century’ (2008) 16 Willamette jil & Dispute Resolution 252–269, 266. 122 Cheney, ‘International Law under Queen Elizabeth’, 670. 123 Pirillo, ‘Balance of Power and the Freedom of the Seas’, 185.

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Therefore, Gentili’s reflection contributed to the development of the early modern law of the sea. More fundamentally, Gentili’s extravagant words would become a commonplace during the following century. By the end of the seventeenth century, the principle of the freedom of the high seas prevailed. This reflected the ‘power politics of the period, as the principle of the freedom of the seas matched the rising of maritime powers (especially Britain, the Netherlands, and France) at the expenses of coastal states.124 Nonetheless, the law of the sea gradually accommodated both the ideas of open and closed seas, acknowledging the right of coastal states to exercise some exclusive prerogatives in their territorial waters.125 Gentili’s concept of the territorial sea was generally adopted, as states increasingly recognized ‘a range of authority over navigation and fisheries very close to shore’.126 While the freedom of the high seas could be ‘a device for universal justice’ as it formally granted all states equal access to the seas, ‘in practice, … it open[ed] possibilities only for those who ha[d] the means of making use of the opportunity’, thus ‘serv[ing] the interests of the rich and powerful’.127 According to Röling and Anghie, the thesis of the freedom of the seas ‘made it possible for European states to conquer and dominate the greater part of the non-­European world’.128 Such theory structured the world around expansionist, capitalist, and imperialist exploitation.129 Yet, the theory of mare clausum was no better alternative. In fact, it presupposed the hegemony of the Iberian states, and it favoured imperial claims to universal dominion over the entire world and the establishment of a universal monarchy (monarchia universalis). It would preclude freedom of commerce and navigation in areas of the globe where such freedoms had been exercised for centuries.130 While the Grotian theory of the freedom of the sea perfectly matched and represented the interest of the Dutch East India Company, 124 125 126 127

Bederman, ‘The Sea’, 369. Gordon, ‘Grotius and the Freedom of the Seas in the Seventeenth Century’, 268. Bederman, ‘The Sea’, 369. B.V.A. Röling, ‘Are Grotius’ Ideas Obsolete in an Expanded World?’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds), Hugo Grotius and International Relations (Oxford: Clarendon Press 1990) 281–299, 282. 128 Id. 295. 129 Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: cup 2005). 130 Ran Anand, Origin and Development of the Law of the Sea (The Hague: Martinus Nijhoff 1982) 86 (arguing that the principle of the freedom of the seas was well-established in the Indian Ocean before the arrival of Europeans).

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­ entili’s theory of the freedom of the seas and his conceptualization of the G territorial sea reflected (and influenced) British policies. Yet, by linking the freedom of the seas to the balance of power, the Gentilian theory expressed the need for an equilibrium among states against hegemonic attempts to establish empires. More generally, Gentili conceptualized the freedom of the high seas and the territorial sea not as mutually exclusive concepts, but as complementary ones. The Gentilian concept of the freedom of the sea was not unlimited; rather, it was subject to some important considerations, such as the prevention of crime and piracy, and the maintenance of peace. In parallel, the jurisdiction and regulatory power that coastal states exercised over territorial waters were not absolute; rather, Gentili envisaged the right of innocent passage in territorial waters, thus limiting the powers of the coastal states. Overall, the Gentilian theory was characterized by moderation and the perceived need to strike a balance between opposing interests. His idea of the balance of powers and his anti-hegemonic stance highlighted a fundamental feature of the law of the sea: the need to balance the interests of coastal states and those of the international community as a whole131 to prevent maritime powers from reaching hegemony and ensure peaceful, prosperous, and just relations among nations. The Gentilian binary theory of the freedom of the seas and territorial waters remains embedded in the current law of the sea.132 The enduring consequence of the seventeenth-century debate over the freedom of the seas and Alberico Gentili’s role in it was the gradual emergence of an inclusive ocean regime ‘to govern humanity’s common interest in the use of shared space, shared resources, and a shared destiny’.133 6.3

The Freedom of Communication, Movement, and Commerce

Relying on the Stoic notion of universal human society, Gentili conceptualized the world as the great commonwealth of humankind (respublica magna).134 He viewed the world as a cosmopolis, a city inhabited by people from many different countries, free to reach, interact, and trade with one another. For Gentili, ‘nature has established among men kinship, love, kindliness, and a 131 Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan 1954) 99. 132 Gentili, De Iure Belli, Book i, Chapter 19, p. 91 (‘community of ownership must be observed in all things which nature has produced for the common use of [human beings]’.); Diego Panizza, ‘The “Freedom of the Sea” and the “Modern Cosmopolis”, in Alberico Gentili’s De Iure Belli’ (2009) 30 Grotiana 88–106, 97. 133 Gordon, ‘Grotius and the Freedom of the Seas in the Seventeenth Century’, 269. 134 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 88.

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bond of fellowship’.135 Because of the natural interdependence of nations, nature itself required the freedom of the seas (mare liberum), freedom of interaction (ius communicationis), freedom of movement (ius peregrinandi), and freedom of commerce (ius commercii).136 Only through navigation, interaction, and trade could the citizens of the world reach each other.137 Each freedom became a natural right that was part and parcel of the system of natural law (ius humanae societatis) and closely connected to the other freedoms.138 For instance, Gentili highlighted the close relationship between freedom of commerce and freedom of the sea. On the one hand, the freedom of the sea was instrumental to the freedom of international commerce.139 On the other hand, merchants ought to enjoy the freedom of the sea to serve the common good. While sections 6.1 and 6.2 examined the Gentilian conceptualization of the freedom of the sea—as qualified by the theory of the balance of power—and the concept of territorial waters respectively, this section illuminates the Gentilian theory of freedom of communication, freedom of commerce, and freedom of movement as well as their qualifications and limits. Far from positing these as absolute rights, Gentili elaborated a sophisticated legal framework that attempted to strike a balance both between the interests of states and those of the international community and also between the safeguarding of cultural diversity and early modern globalization. 6.3.1 The Freedom of Communication The freedom of communication (ius communicationis) meant the freedom to interact with other people, to share or exchange goods and ideas, participate in the world, and cooperate for the common good.140 Although sovereign nations constitute perfect communities in themselves (civitas perfecta, or respublica sibi sufficiens), they are never so self-sufficient that they do not require some mutual assistance, association, and intercourse with other countries.141 Their 135 Gentili, De Iure Belli, Book I, Chapter 15, p. 67. 136 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 88. 137 Id. 92. 138 Gentili, De Iure Belli, Book i, Chapter 19, p. 138. 139 K.R. Simmonds, ‘Alberico Gentili and the Admiralty Bar, 1605–1608’ (1958) 7 Archiv des Völkerrechts 3–23, 8. 140 Luigi Lacchè, ‘Introduzione’ in Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli—Alberico Gentili e gli Orizzonti della Modernità (Milano: Giuffrè 2009) 7. 141 Georg Cavallar, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (London: Routledge 2002) 395; Luca Scuccimarra, ‘Societas Hominum. Cosmopolitismo Stoico e Diritto delle Genti’, in Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli 40–41.

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citizens are both citizens of their home country and of the world. They belong to the universal society of humankind (civitas mundi) and have certain natural rights. The right of communication was grounded in the natural sociability of humankind.142 As Vitoria put it, ‘it is a law of nature to welcome strangers’ ­because of amity (amicitia) and kinship between human beings (hominum ­inter se cognatio)’.143 For Vitoria, ‘a man is not a wolf to his fellow man … but a fellow’.144 Addressing the ius communicationis was of extraordinary importance to the development of the early modern law of nations. Not only was the freedom of communication the substratum of all the other freedoms, but it was perceived as an expression of human sociability and kinship and as such at the very core of the law of nations. In this sense, the right of communication constituted ‘the raison d’être of international law as a whole’.145 Ancient principles confirmed a pattern of free movement through history.146 Yet, hospitality became a particular concern in the sixteenth century due to the growth of migratory flows during the wars of religion. Moreover, emerging patterns of exploration, contact, and mutual interaction among civilizations made freedom of communication a key issue in the early modern period. Scholars investigated the freedom of communication identifying what happened in the past and attempting to foresee what the future held, eventually transforming aspirations into political demands and legal claims, and conceptualizing mutual rights and obligations. On the one hand, international legal theorists investigated under which circumstances foreigners had the right to some form of hospitality. On the other hand, limits and constraints to migrations were identified ‘through the enduring dialectic between sovereignty and hospitality’.147 In fact, the ius communicationis suffered from a major paradox: it could be both ‘the founding principle of a universal society’ and ‘the main legal ground for justifying the colonial conquest of the New World’.148 Gentili assumed the existence of a right of communication; he had a cosmopolitan vision of the world, he saw the world as one city, and human beings as

142 Vincent Chetail, ‘Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel’ (2017) 27 ejil 901–922, 904. 143 Id. (citing Vitoria). 144 Id. 145 Id. 905. 146 Cavallar, The Rights of Strangers, 10; James AR Nafziger, ‘The General Admission of Aliens under International Law’ (1983) 77 ajil 804–847, 805–808. 147 Chetail, ‘Sovereignty and Migration’, 901. 148 Id. 905.

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its citizens; and he believed in the unity and sociability of human beings.149 Aware of the ambiguities and contradictions of the right of communication, Gentili did not conceive of the ius communicationis as an absolute right; rather, he envisaged some limits to its main articulations, the freedom of movement (ius peregrinandi) and the freedom of commerce (ius commercii).150 6.3.2 The Freedom of Movement Under the law of nations, Gentili claimed that human beings also possessed the right to travel and dwell in foreign countries or freedom of movement (ius peregrinandi) provided that they did not harm foreign communities.151 For Gentili, as for Vitoria, the right to travel was a natural right that belonged to all: as citizens of the world, human beings could travel from one province to another.152 Gentili postulated international hospitality (hospitalitas) as one special form of interaction among individuals of different societies, political communities, and cultures. Analogously, Vitoria considered it ‘humane and dutiful to behave hospitably to strangers’153 and considered amity (amicitia) between human beings as ‘part of natural law’.154 While Vitoria postulated the free movement of persons ‘as a rule of international law’ and an expression of ‘the right of communication between people’ (ius communicationis),155 and argued that ‘the barbarians would do wrong to the Spaniards if they were to bar them from their lands’,156 Gentili sought to strike a balance between inclusion and exclusion, the individual freedom of movement and the public interest, thus qualifying the right to migrate (ius migrandi) to a significant extent. Gentili theorized a right to migrate for those who were ‘compelled to leave their country through some emergency and to seek another home’.157 He noted that ‘entire peoples have deserted their native soil and gone to a different part of the world’158 because of ‘the destruction of their cities’, ‘pestilence, or frequent earthquakes’ or other ‘intolerable defects of an unfavourable location’.159 He suggested that human beings should have ‘pity for their kind’ and should 149 Gentili, De Iure Belli, Book i, Chapter 1, p. 67. 150 Lacchè, ‘Introduzione’, 10. 151 See also Vitoria, ‘On American Indians’, q. 3. Art. 1, para. 1. 152 Annabel S. Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press 2011) 29 (referring to Vitoria). 153 Vitoria, ‘On American Indians’, q. 3. Art. 1, para. 2. 154 Id. 155 Chetail, ‘Sovereignty and Migration’, 901 and 903. 156 Vitoria, ‘On American Indians’, q. 3. Art. 1, para. 2. 157 Gentili, De Iure Belli, Book i, Chapter 17, p. 79. 158 Id. 159 Id.

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not allow their demise.160 Therefore, for Gentili, people should be entitled to leave their own country in order to escape extreme evils such as earthquakes, civil strife, war, and religious persecution. Relying on the Roman poet Virgil, Gentili stated that ‘it is just that those who have been driven from their own home should somehow find a safe place somewhere’.161 At the same time, Gentili sensibly qualified freedom of movement. The right of free movement was restricted to those who moved because of an emer­ gency; it did not extend to those who migrated for ‘greed and avarice, combined with a fondness to change their abode’ (libido atque avaritia et mutandae sedis amor).162 Gentili further qualified the freedom of movement stressing that a safe place ‘ought to be granted, if it c[ould] be given without too much inconvenience’.163 For instance, vacant lands could be used for the purpose, and the sovereign of the host state would retain jurisdiction over those who took possession of such lands and improved them.164 In that scenario, Gentili posited, ‘newcomers ought to do what [was] most just and submit to the rule of [the sovereign] of the land’.165 Nonetheless, ‘those lands which [we]re not vacant ought not to be taken; as it [wa]s not right that one should neglect oneself through love for another’.166 Finally, the state of destination could deny hospitality for good reasons such as public safety and state security. While Gentili noted that it may be in the interest of the host state to welcome refugees as ‘an increase of population is beneficial for purposes of greatness’, he was careful to add that ‘in some instances’ exiles were not to be made subjects of the host state ‘if their number [wa]s so great as to be perilous to the commonwealth’.167 In conclusion, Gentili qualified freedom of movement to a significant extent. 6.3.3 The Freedom of Commerce The early modern period was characterized by intense cultural, political, military, and economic contact. International trade certainly intensified global contacts; individuals, companies, tribes, states, and empires competed and clashed but also cooperated with one another.168 By maintaining commercial 160 Gentili, De Iure Belli, Book i, Chapter 17, p. 80. 161 Id. 162 Id. 163 Id. (emphasis added). 164 Id. pp. 80–81. 165 Id. p. 81. 166 Id. 167 Id. p. 80. 168 Kumkum Chatterjee and Clement Hawes, ‘Introduction’, in Kumkum Chatterjee and Clement Hawes (eds) Europe Observed—Multiple Gazes in Early Modern Encounters ­(Lewisburg: Bucknell University Press 2008) 1–19, 17.

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relations across religious and cultural boundaries, merchants performed an ‘important function as commercial and cultural mediators’ as commercial exchanges complemented if not fostered cultural exchanges.169 In other words, not only did religious and cultural diversity not prevent exchange, but trade enabled cultural flows stemming from multiple centres. Common ideas of fairness, reciprocity, and trust worked across cultural communities creating a space of cultural hybridity. Gentili viewed commerce as a fact of nature and an expression of human sociability.170 To him, commerce is inherent to the design of nature because nations are naturally interdependent. Nature has distributed commodities over different regions ‘in order that it may be necessary for human beings to have commerce with one another’.171 Gentili elaborated the notion of comparative advantage: ‘[h]ere the crops of grain are richest, there grapes grow best’.172 For Gentili, ‘No blessing has been bestowed by divine providence upon any one for his sole enjoyment. But if nature had given everything equally to all men, the reasons for loving one another would readily be destroyed; for it is through this inequality that we ask and give in turn without ceasing’.173 Through commerce, people enjoy the benefits of nature. Commercial activities do not merely benefit merchants; rather, they can benefit the community as a whole by addressing given needs.174 By divine design, ‘[e]ach nation c[an] acquire what it lack[s] by supplying another nation with those gifts of which it had been given an abundance’.175 Such interdependence requires people to enter into relationship with one another in order to thrive. Through commerce, all can enjoy the fruits of the earth, no matter where they grow. Moreover, not only is commerce necessary for the universal enjoyment of natural resources, but also 169 Francesca Trivellato, ‘Introduction’, in Francesca Trivellato, Leor Halevi, and Catia Antunes (eds) Religion and Trade: Cross-Cultural Exchanges in World History 1000–1900 (Oxford: oup 2014) 1–3 (noting how, against the odds, merchants across the globe ‘concocted ways of bartering, securing credit, and establishing durable commercial relations with people who did not speak their language, wore different garb, and worshipped other gods’.) 170 Ileana Porras, ‘Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations’ (2014) 27 Leiden jil 641–660, 651. 171 Gentili, dib, Book i, Chapter 19, p. 88. 172 Id. 173 Id. 174 Ileana Porras, ‘Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius’ De Iure Praedae—The Law of Prize and Booty, or on How to Distinguish Merchants from Pirates’ (2005–2006) 31 Brooklyn jil 741–804, 760 (referring to Grotius). 175 Id. 762.

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for bringing peoples together. Therefore, commerce constitutes ‘an instrument of providence’ whereby products can be made available in places where they do not exist or at a time when they are not otherwise available.176 Gentili endorsed the doctrine of the providential function of commerce.177 Whereas medieval theological sources did not always view commerce in a positive light,178 Gentili saw trade as having not only an economic function but also as being instrumental to peace and prosperity.179 Because peoples need one another, ‘their interchange makes the completeness of the universe’.180 Merchants ‘serve the welfare of [hu]mankind’.181 In fact, by traversing the oceans, they ended the historical separation between different civilizations and could build peaceful and prosperous relations among nations.182 As Gentili wrote, ‘It is an advantage to the earth that men sail at sea; to the sea that men journey over the earth … The winds … unite [peoples] separated in location. This is a wonderful gift of nature provided man’s frenzy does not turn it to his own injury’.183 Ahead of his time, Gentili approved inter-confessional trade relations.184 While Gentili considered freedom of trade to be a natural right,185 he also affirmed the state’s right to regulate trade and investments and even to limit access to certain parts of their territories for security reasons under natural law and the law of nations.186 If free trade is a fair interest (ius commerciorum aequum est), public safety or state security (tuitio salutis) is a paramount interest.187 In fact, Gentili acknowledged that in some cases, trade can clash with the public interest, and that traders cannot ‘set themselves as authorities on justice’.188 While economic interests concern citizens and belong to private law 176 Martti Koskenniemi, ‘Vox Theologi: Empire and Private Rights in the 16th Century’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 125–149’, 136. 177 Ileana Porras, ‘The Doctrine of the Providential Function of Commerce in International Law—Idealizing Trade’, in Martti Koskenniemi, Mónica García-Salmones Rovira, and Paolo Amorosa (eds) International Law and Religion (Oxford: oup 2017) 313–333, 313. 178 Porras, ‘Constructing International Law in the East Indian Seas’, 761. 179 Id. 180 Gentili, De Iure Belli, Book i, Chapter 19, p. 89. 181 Porras, ‘Constructing International Law in the East Indian Seas’, 803. 182 Id. 763. 183 Gentili, De Iure Belli, Book i, Chapter 19, pp. 88–89. 184 Id. Book iii, Chapter 19; Gentili, Advocatio Hispanica Book i, Chapter 25, p. 117 (referring to ‘the very definite rule of the law of nations which regulate[s] trade relations without making any distinction between nations’). 185 Vitoria, ‘On American Indians’, q. 3. Art. 1, para. 3. 186 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 183. 187 Gentili, De Iure Belli, Book I, Chapter 21, pp. 101–102. 188 Id. Book i, Chapter 3, p. 18.

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(ius privatorum), public safety concerns kingdoms and belongs to public law (ius regnorum).189 As Gentili put it, ‘let trade … give way to sovereignty, man to nature, money to life’.190 In fact, ‘it is contrary to nature and contrary to the law of nations for private individuals to seek their own advantage at the expense of others’.191 Therefore, in case of conflict, priority must be given to the protection of life, public safety, and the reason of state (ratio status).192 Commerce must give way to the fundamental needs of the state (cedat regno mercatura).193 States can forbid the importation of harmful goods or commodities that are contrary to the religion or public morals of the country.194 For Gentili, ‘strangers have no right to argue about these matters, since they have no license to alter the customs and institutions of foreign peoples’.195 Gentili highlighted that ‘it is lawful to diminish the advantages of private individuals, provided some great gain is won for human society’.196 For Gentili, conflicts of law could be settled by giving precedence to norms protecting the common good. For instance, he noted that China limited trade with European merchants to a series of Chinese ports, and he saw this practice as perfectly legitimate.197 He explained, pragmatically, that ‘a guest is not said to be rejected when he is not admitted to every part of a house. It is lawful to keep the secrets of a Kingdom concealed.’198 Gentili attempted to strike a reasonable balance between national and international interests as well as private and public interests. On the one hand, while he supported the freedom of international commerce, he acknowledged that coastal states had the right to regulate and might adopt reasonable measures to restrict trade through their ports and passage through their coastal waters.199 For instance, states could legitimately adopt barriers to trade, such as banning exports in silver and gold to avoid the impoverishment of a given territory, provided that other forms of trade were maintained.200 189 Gentili, De Iure Belli, Book i, Chapter 3, p. 18. 190 Id. 191 Id. 192 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 95. 193 Id. 194 Gentili, De Iure Belli, Book i, Chapter 19, pp. 89–90. 195 Id. p. 90. 196 Id. Book I, Chapter 21 p. 102. 197 Id. Book i, Chapter 19, p. 90. 198 Id. 199 Id. Book I, Chapter 21. 200 Id. Book i, Chapter 19, p. 90. Cfr. Manuel Fraga Iribarne, Luis de Molina y el Derecho de la Guerra (Madrid: 1947) 66 (noting that the philosopher and theologian Luis de Molina (1535–1600) also admitted that states could legitimately set embargos, ­prohibit commerce

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On the other hand, Gentili also argued that the economic interests of merchants should not prevail over the public interest under both national and international law.201 For instance, he acknowledged the state’s right to regulate and to prohibit trade in goods that might offend the religious tenets, cultural customs, or family values of the country.202 He even recommended the extraterritorial application of national regulation prohibiting trade in certain goods ‘as a matter of international comity’.203 In striking a balance between the reason of state and the needs of the wider human society, Gentili used ‘a pragmatic spirit of moderation (moderatio)’.204 He found a middle way between the static need of self-preservation and the dynamic need of international trade.205 Because Gentili considered freedom of the sea, freedom of communication, freedom of movement, and freedom of commerce as natural rights, he deemed unreasonable interference with such rights a significant injury, a wound on human society, and a justification for war.206 For Gentili, the total prohibition of passage, communication, and commerce between peoples without reasonable cause constituted a violation of the law of nations.207 In fact, he argued that ‘the unjustifiable refusal of passage’ or harbour facilities amounted to a breach of the law of nations and could justify war.208 An unjustifiable interfe­ rence with commerce constituted good cause for just war.209 If a sovereign ‘refuse[d] the sea to others’, those who ‘[we]re refused a privilege of nature’ would ‘be justified in making war’.210 While private individuals could defend their natural rights before domestic judges, Gentili noted that there were no with foreigners, and block access to their own ports, if other nations did not face a state of necessity such as famine, thus necessarily needing to trade with the state, or if foreigners looked too powerful or aggressive. In fact, Molina argued, nations might have a just fear to be overcome or suffer any injury and thus they could prudently and legitimately adopt trade restrictions.) 201 Gentili, De Iure Belli, Book i, Chapters 1, 19, and 21; Book iii, Chapters 11 and 19. 202 Id. Book i, Chapter 19, pp. 89–90. 203 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 8; Gentili, Advocatio Hispanica, Book i, Chapter 13. 204 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 96. 205 Amor Bavaj, Alberico Gentili—Fondatore della Scienza del Diritto Internazionale (Macerata: Affede 1935) 57. 206 Gentili, De Iure Belli, Book i, Chapter 19, p. 88; Vitoria, ‘On American Indians’, q. 3. Art. 1, para. 6. 207 See generally Gentili, De Iure Belli, Book i, Chapter 19, entitled ‘On Natural Reasons for Making War’. 208 Gentili, De Iure Belli, Book i, Chapter 19, p. 87. 209 Id. p. 90. 210 Id. p. 92.

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international courts or tribunals for settling international disputes; therefore, if diplomatic means of dispute settlement failed, states would have no other means to defend their rights than to resort to war.211 Was Alberico Gentili advocating conquest? At the end of the sixteenth century and the beginning of the seventeenth century, the violent wars among Europeans and the intercivilizational encounters between merchants and the local inhabitants of other continents presented legal theorists with new questions about how to govern the interactions between different civilizations, whether to protect refugees, and if so how, how to govern international trade, how to balance the eventual clash between private and public interests, and between the interests of states and those of the international community. International law’s trajectory reflected the key role of communication, trade, and movement in international relations from its earliest inception. The cosmopolitan ideal ‘of creating, preserving, and sustaining a global society of [hu]mankind could be used in principle to justify an extensive intervention in the affairs of other states or communities’ and ‘it could and did provide the basis of arguments that could be and were wielded to legitimize the colonial expansion of Europe’.212 Historians have highlighted how commerce and migration were significant factors that contributed to the formation and expansion of early modern empires.213 For Gentili, navigation, communication, trade, and movement were all expressions of human nature, and should be left as free as possible. If international disputes arose because of the alleged violation of natural rights, states could resort to diplomatic means of dispute settlement; if these failed, states could resort to war. Yet, justifying war to promote free trade could lead to the so-called ‘empire of commerce’,214 and ultimately justify violence on behalf of trade.215 However, there are anti-imperialist arguments in the Gentilian theory as well. Gentili was aware of the possible instrumentalization of the law of nations

211 Gentili, De Iure Belli, Book I, Chapter 19, p. 92. 212 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 94. 213 Alison Games, Migration and the Origins of the English Atlantic World (Cambridge: Harvard University Press 1999); Alison Games, Web of Empire: English Cosmopolitans in an Age of Expansion 1560–1660 (New York: oup 2008); Lauren A. Benton, A Search for Sovereignty: Law and Geography in European Empires 1400–1900 (New York: cup 2010). 214 Diego Panizza, ‘Languages of Empire in Early Modern Political Theory: from Machiavelli’s Roman Paradigm to the Modern Empire of Commerce’, in vvaa, Alberico Gentili—­ Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 349–390, 353. 215 Porras, ‘Constructing International Law in the East Indian Seas’, 756.

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and understood that, in some cases, trade could be used as a means of disguising conquest. Therefore, he denied the legitimacy of the Spanish wars against Indigenous peoples on the ground that the Indians allegedly denied the Spaniards the possibility to trade with them. Whereas denial of commerce could be a legitimate cause of war in theory, it could not justify the Spanish war against Indigenous peoples in practice, because ‘the Spaniards were aiming … not at commerce, but at dominion’.216 Therefore, Gentili argued that the Spanish wars against Indigenous peoples could not be considered lawful. With regard to migrations, Gentili forcefully affirmed that ‘it [was] not just … that the weaker … should give place to the more powerful’ and rejected that the law of might could be the law of right.217 Moreover, he did not necessarily prioritize international interests over domestic ones. His theory carefully balanced private and public interests and also domestic and international interests by stressing the importance of public safety, state security, and other legitimate concerns. Finally, not only did Gentili openly condemn policies of empire, but he also rejected the argument of terra nullius. He acknowledged the sovereignty and property rights of Indigenous peoples and considered the occupation of vacant lands as a tool to acquire property, rather than sovereignty, over those lands.218 In conclusion, if some of Gentili’s arguments can be read as supporting some form of imperialism, others have a distinct anti-hegemonic character. Whereas for some scholars Gentili was a firm supporter of imperialism, for others he was not. Both interpretations seem plausible given that they are based on distinct aspects of Gentili’s work. However, adopting a holistic approach to his work reveals that Gentili’s theory unquestionably clashed with expansionist ambitions. The general neglect of Gentili’s work after his death may reflect the fact that his anti-imperialist stances were difficult to reconcile with the imperial policies pursued by major maritime powers in the seventeenth and eighteenth centuries. However, the aim of this book is not to persuade the reader in one direction or the other, but rather to provide the tools for a better understanding of the man and his work. The reader can decide if Gentili supported conquest or not. Before addressing this topic in more detail in chapter 7, the chapter now examines Gentili’s theory on piracy and privateering.

216 Gentili, De Iure Belli, Book i, Chapter 19, p. 89. 217 Id. Book i, Chapter 17, p. 80. 218 See Chapter 7 below.

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Piracy and Privateering

In the sixteenth century, private maritime violence, ‘as old as maritime trade itself, developed into a global phenomenon’.219 Whether sea robbers were ‘disrupters to networks of economic and cultural exchange’, key economic and political actors220 or even a defining feature of the early modern international law of the sea221 remains contested. The treatment of private maritime violence under the law of nations oscillated between condemnation and instrumentalization, and there was a significant divergence between international legal theory and state practice.222 Such ambivalence was reflected in the distinction between piracy and privateering. Piracy broadly referred to acts of violence, detention or depredation by private actors upon a ship or a coastal area, typically with the goal of stealing cargo and other valuable items.223 Acts of piracy at land or at sea were rarely distinguished.224 Gentili defined piracy as ‘any taking not authorized by a­ ­sovereign’ and pirates (piratae) as ‘the enemies of all’ (communes hostes omnium).225 Relying on the civilian tradition, for Gentili, pirates could be ‘attacked by all … with impunity’ and were ‘always subject to capture everywhere’.226 While Gentili generally argued for moderation in the conduct 219 Kempe, ‘Globalized Piracy and International Law’, 354. 220 Claire Jowitt, ‘Introduction: Pirates? The Politics of Plunder, 1550–1650’, in Claire Jowitt (ed.) Pirates? The Politics of Plunder, 1550–1650 (New York: Palgrave 2007) 3–19, 3. 221 Gerry Simpson, ‘Piracy and the Origins of Enmity’, in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi (eds.) Time, History, and International Law (Leiden: Brill 2007) 219, 223. 222 Kempe, ‘Globalized Piracy and International Law’, 354. 223 For the current definition of piracy under contemporary international law, see Convention on the High Seas, signed on 29 April 1958, in force 30 September 1962, unts 450, Article 15 (defining piracy, inter alia, as ‘[a]ny illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship … and directed on the high seas, against another ship … or against persons or property on board such ship.’); unclos Article 101 (repeating almost verbatim Article 15 of the Convention on the High Seas). See also Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted 10 March 1988, in force 1 March 1992, 1678 unts 221. 224 Mark Chadwick, Piracy and the Origins of Universal Jurisdiction (Leiden/Boston: Brill 2019) 72. 225 Lauren Benton, ‘Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism’ (2005) 47 Comparative Studies in Society and History 700–724, 705. 226 Gentili, Hispanica Advocatio, Book i, Chapter 4, p. 18; Pierino Belli, De Re Militari et Bello Tractatus [1563] Herbert Nutting (transl.) (Oxford: Clarendon 1933) 83 (claiming that ‘pirates [were] wholly outside the pale of law’ so that ‘it should be permissible for anyone to attack them’.)

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of war, he supported the harsh treatment of pirates. For Gentili pirates did not qualify as ‘just enemies’ (iusti hostes); rather, they were outside the law, and were thus not protected by the law of nations.227 By juxtaposing piracy and warfare as two distinct and mutually exclusive categories, Gentili not only ­reduced pirates to inhuman predators driven by nothing but greed, but also elevated states to a higher plane that obscured instances in which states behaved inhumanly. The characterization of pirates as enemies of humankind delegitimized them as unjust enemies, portrayed them as outliers, as chimerical ‘others’ who threatened to undermine the international system, and ultimately justified brutal military repression.228 While most states formally condemned piracy, they ‘repeatedly adjusted’ the legal concept of piracy to suit their economic or political ambitions.229 Privateering referred to ‘state-sponsored maritime raiding’.230 It was ‘a form of maritime plunder carried out by private parties but authorized and sponsored by state authority through formal documentation’.231 States could authorize corsairs or privateers to conduct raids on the ships of a foreign nation in times of war and in times of peace. In times of war, privateering amounted to a form of naval warfare. Corsairs served as a sort of auxiliary navy ‘at a time when warships were few and far between’.232 In times of peace, privateering was a form of reprisal to avenge a perceived breach of the law of nations by a foreign state.233 In practice, privateers were often ‘pirates in all but name’.234 Their aims, methods, and conduct were similar to those of pirates, albeit under the mantle of state authorization. Privateers sought and received letters of marque and reprisal authorizing them to attack and capture enemy ships.235 227 Gentili, De Iure Belli, Book ii, Chapter 24, p. 283 (adding that ‘pirates, when taken m[ight] be punished by shameful death … and left unburied’.); Marcus Rediker, Villains of All Nations: Atlantic Pirates in the Golden Age (Boston: Beacon Press 2004). 228 Peter Schröder, ‘Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations’ in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 163, 178. 229 Kempe, ‘Globalized Piracy and International Law’, 354. 230 Lauren Benton, ‘Toward a New Legal History of Piracy: Maritime Legalities and the Myth of Universal Jurisdiction’ (2011) 23 International Journal of Maritime History 225–240, 230. 231 Christopher Harding, ‘Hostis Humani Generis—The Pirate as Outlaw in the Early Modern Law of the Sea’ in Claire Jowitt (ed.) Pirates? The Politics of Plunder, 1550–1650 (New York: Palgrave 2007) 20–38, 24. 232 Porras, ‘Constructing International Law in the East Indian Seas’, 752–753. 233 Tullio Scovazzi, ‘Alberico Gentili e il Diritto del Mare’, in Talitha Vassalli di Dachenhausen (ed.) Atti del Convegno in Memoria di Luigi Sico (Napoli: Editoriale Scientifica 2011) 489– 497, 495. 234 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 10. 235 Benton, ‘Toward a New Legal History of Piracy’, 230.

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According to maritime practice, privateers then brought their ‘prizes’ before the Admiralty Court, which adjudicated title.236 If the Court found that the ship, cargo or both was a lawful prize, the spoils were carefully divided between the Admiralty and the privateer. If the court found that the prize was not a lawful prize, it ruled in favour of the original owner. While piracy tended to be universally condemned as a crime, subject to universal jurisdiction—that is, the right of any polity to capture, try, and punish offenders—the legitimacy of privateering was vigorously debated.237 The question was whether war-like activities by non-state actors could be legitimized in this manner. While, in theory, there was a clear difference between privateers and pirates, in practice, ‘the line between privateering and piracy was thin, and the distinction was blurred by cycles of … war and peace: In times of war, the demand for privateers surged, and in periods of peace, decommissioned, experienced sea raiders found themselves without sponsors yet sometimes continued to engage in raiding’.238 Whether certain crews were considered pirates or privateers often depended on whose custody they found themselves in—that of the country that had issued the commission, or that of the object of attack. As noted by a historian, ‘[t]he boundary between licit and illicit activity at sea in this period [was] permeable: one monarch’s ‘pirate’ [was], literally, another’s ‘privateer’.239 Certain countries, including Spain, questioned whether privateers could legitimately wage war and contested the existence of any dividing line between privateers and pirates.240 From the Spanish perspective, the Lutheran corsairs (corsarios luteranos)—the Huguenot buccaneers, the Dutch freebooters, and the Elizabethan Sea Dogs, all privateers commissioned by Protestant sovereigns who crossed the papal lines of demarcation, preyed on the Spanish colonies, and assaulted the Spanish galleons—were both pirates and ‘excommunicated heretics’, thus challenging ‘not only Spanish interests but also the unity of the

236 Alfred Rubin, ‘The Concept of Neutrality in International Law’ (1988) 16 Denver jil and Policy 361. 237 Jan Lemnitzer, Power, Law, and the End of Privateering (Basingstoke: Palgrave Macmillan 2014) (explaining that only in the nineteenth century did the Declaration of Paris outlaw privateering.); Declaration respecting Maritime Law between Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, signed at Paris, 16 April 1856 (1856) XLVI British and Foreign State Papers, p. 26, Article 1 (stating that ‘Privateering is, and remains, abolished’). 238 Benton, ‘Legal Spaces of Empire’, 707. 239 Jowitt, ‘Introduction: Pirates?’ 13. 240 C.G. Roelofsen, ‘Grotius and State Practice of His Day’ (1989) 10 Grotiana 18.

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Christian commonwealth’ and the imperial order.241 The punishment of such ‘pirates’ was to be handed over to the Inquisition where they were tried for heresy. Furthermore, privateers could be charged with piracy if they exceeded the bounds of their letters of marque, for instance by attacking neutral nations, or failing to bring their prize before admiralty courts.242 Therefore, ‘[t]he lega­ lity of their actions depended upon open and conflicting interpretations of whether the timing, location, and targets of raids fell within the terms of often dubious commissions’.243 An example, drawn from Gentili’s practice as an advocate defending the interests of Spain before the High Court of Admiralty, can illustrate the difficulty in distinguishing privateering from piracy in practice.244 In Botelho c. Hendrik de Jong, a Portuguese merchant sued a Dutch privateer/pirate before the High Court of Admiralty requiring the restitution of a ship, the San Antonio, and its cargo.245 On Christmas Day 1604, while the San Antonio was sailing from Lisbon to Brazil, the Vineyard, a warship under the command of de Jong attacked it and took it as a prize.246 De Jong had a letter of marque from the United Provinces, which were then at war with Spain and thus also with Portugal (given the union of the Crown of Portugal and the Crown of Spain in 1580).247 While en route to Holland, a storm forced him to seek shelter in an English port.248 Once there, the English vice-admiral seized his booty on the ground that de Jong had committed ‘hostile and warlike acts within English territory’.249 In London, joined by the Ambassador of the King of Spain, Botelho, the owner of the ship, sued de Jong before the High Court of Admiralty in order to recover his property.250 For Thomas Crompton, the advocate defending the interests of de Jong, the privateers had acquired the San Antonio as a lawful prize.251 In fact, military 241 Amedeo Policante, The Pirate Myth (London: Routledge 2015) xviii. 242 Benton, ‘Toward a New Legal History of Piracy’, 231. 243 Benton, ‘Legal Spaces of Empire’, 707. 244 Gentili, Hispanica Advocatio, Book i, Chapter x, pp. 47–49. 245 Wijffels, ‘Alberico Gentili and Thomas Crompton’ (referring to the Caesar’s Papers. Botelho c. Hendrik de Jong, Lansdowne 131, ff 270v–294r, Lansdowne 132, ff. 53v–56r, Lansdowne 139 ff 112r–128v.) 246 Id. 9. 247 Id. 248 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 13. 249 Id. 250 Wijffels, ‘Alberico Gentili and Thomas Crompton’, 9. 251 Alain Wijffels, ‘Alberico Gentili e Thomas Crompton. Una Sfida tra un Professore e un Avvocato’, in Alain Wijffels (ed.) Alberico Gentili Consiliatore (Milan: Giuffrè 1999) 25–83, 69.

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practice regarded a seizure as final when it had been held for a short time. Therefore, for Crompton, the Court should recognize and protect de Jong’s exercise of his rights and let him depart with the ship and its cargo.252 For the Spanish Ambassador, ‘a judgment against the Portuguese merchants would effectively defeat the guarantees provided in the [1604] peace treaty’ between England and Spain.253 In such treaty, England adopted a position of neutrality with regard to the war between Spain and the United Provinces.254 Concerning the nationality of the warship, the Ambassador produced evidence that ‘de Jong was the only Dutchman onboard’ the Vineyard, the ship that captured the San Antonio.255 Forty-five men out of the crew of fifty were English.256 The same Vineyard had originally set forth from an English port.257 Reportedly, ‘English merchants had provided all the funds for acquiring and furnishing the ship’.258 In his pleading, Gentili argued that the privateers had not yet acquired the San Antonio as a lawful prize.259 Following Baldus, Alciatus, and Ayala, in opposition to the military practice cited by his opponent, Gentili pointed out that from a legal perspective, a prize only became the property of the captors when they carried their booty within their own fortified lines, in this case the United Provinces.260 The orthodox position in prize law was that the acquisition of a prize required a formal adjudication. Therefore, for Gentili, ‘the Dutch had not acquired a legal title to the property’, because the ship ‘had not been brought within their own fortified lines’261 and the Court should allow the return of the property to its original owners.262 Finally, Gentili recalled that King James i had condemned privateering as a form of plunder and forbade any hostile action against the Spaniards.263 Gentili elegantly concluded that because almost everyone onboard the ship was British, the ship was piratical; therefore, the booty should be restored to the original owners.264

252 Wijffels, ‘Alberico Gentili e Thomas Crompton’, 69–70. 253 Wijffels, ‘Alberico Gentili and Thomas Crompton’, 9. 254 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 5. 255 Wijffels, ‘Alberico Gentili and Thomas Crompton’, 9. 256 Id. 257 Id. 258 Id. 259 Gentili, Hispanica Advocatio, Book i, Chapter x, p. 48. 260 Id. Book i, Chapter ii, p. 7. 261 Id. Book i, Chapter ii, p. 48. 262 Id. Book i, Chapter x, p. 48. 263 Id. Book i, Chapter xvi, p. 73. 264 Id. Book i, Chapter x, pp. 48 and 73.

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The Court of Admiralty rendered a decision in favour of the Portuguese merchants who recovered the ship and its cargo.265 In the adjudication of this admiralty dispute, policy considerations mattered. In fact, ‘an undated and unsigned memorandum, written in Italian’, conserved among the Caesar papers, cautioned that if the Court did not adjudicate in favour of the Portuguese merchants, similar predations would rapidly increase in number.266 In turn, such violations of the peace treaty provisions could eventually lead to a new war. This case study epitomizes the difficulty in distinguishing privateering from piracy in practice. It also shows how legal and policy arguments were intertwined in the early modern law of the sea. Certainly, the legal notions of piracy and privateering ‘did not develop in isolation but responded directly to shifting patterns of violence at sea’.267 The boundary between legitimate and illegitimate violence at sea was ‘permeable’,268 and deeply connected to the foreign policy of states in relation to warfare and commerce. States used privateering for political and economic reasons, not only to wage war, but also to challenge Iberian hegemony in the Americas and further their foreign mercantilist policies.269 In fact, privateering simultaneously provided ‘an economic mode of warfare and a violent way of doing business’.270 The regular issuing of letters of marque to authorize corsairs legally disguised the political and economic use by the state of violence at sea.271 The maritime policy of Elizabethan England included a varied practice, ranging from the self-defence of merchant vessels to various forms of reprisals, and from privateering to ‘sheer bald piracy’.272 ‘Other nations did not always clearly distinguish’ the various motives behind an attack against their ships: some captures were alleged to prevent contraband; other seizures were alleged to constitute a legitimate reprisal, or privateering; finally, certain captures definitely had a piratical nature.273 ‘The state papers, reports of ambassadors, and foreign correspondence are full of bitter complaints of English depredations at sea’.274 265 266 267 268

Nys, ‘Les Manuscripts de Sir Julius Caesar’, 465. Wijffels, ‘Alberico Gentili and Thomas Crompton’, 28. Benton, ‘Toward a New Legal History of Piracy’, 225. Jowitt, ‘Introduction: Pirates?’ 7; Claire Jowitt, The Culture of Piracy 1580–1630 (Farnham: Ashgate 2010) 8 (noting that ‘the category of pirate included[d] a wide variety of figures from all sorts of social, religious, and ethnic backgrounds, who were variously defined in different cultural registers as “pirates”, “corsairs”, “buccaneers”, and “filibusters”’). 269 Kempe, ‘Globalized Piracy and International Law’, 358. 270 Harding, ‘Hostis Humani Generis’, 26. 271 Id. 272 Cheney, ‘International Law under Queen Elizabeth’, 671. 273 Id. 274 Id. 672.

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Despite the condemnation of piracy and the uncertain legal status of privateering in the early modern period, privateering was used to great effect for both political and economic reasons. Since the 1560s Elizabeth i had granted privateering commissions to Sir Francis Drake (1540–1596) and the Sea Dogs— a group of sea-raiders—to attack the Spanish fleet and loot their galleons in order to bring back riches and treasure.275 During the Anglo-Spanish War (1585–1604), privateering became a means of waging war.276 Far from being ‘an incidental by-product of war’, it became ‘the characteristic form of maritime warfare’.277 Spain’s hegemonic ambitions, both within and outside Europe, and its threat to invade the country required defensive action; privateering became both a way to wage war, and a tool of economic competition with other countries.278 On the one hand, privateering constituted ‘a technique of warfare’ at a time when most countries’ navies were not equipped for large-scale or sustained military action.279 Recourse to privateering constituted a revolution in naval strategy, protecting coastal communities, strengthening the fleet, and ultimately becoming part of a military policy. Due to English anxieties about the strength of the Navy in relation to other sea-powers280 and the lack of funds to expand the fleet, privateering became a ‘joint venture between state and private entrepreneurs – a kind of privatization of state warfare’.281 On the other hand, privateering was also a tool of economic competition with other countries. Privateers jeopardized the maritime trade of an enemy state by attacking its merchant shipping.282 In the end, the military and economic benefits provided by privateers seemed to outweigh the diplomatic ­inconveniences caused by any piratical behaviour of the same. Privateers played an important role in defending the country from attacks by sea, opened up new markets, and disrupted the Spanish hegemony in the Americas.283

275 Chadwick, Piracy and the Origins of Universal Jurisdiction, 59. 276 Philip Gosse, The History of Piracy (New York: Tudor 1934) 113. 277 Kenneth R. Andrews, Elizabethan Privateering (Cambridge: cup 1964) 6. 278 Jowitt, ‘Introduction: Pirates?’ 4. 279 Harding, ‘Hostis Humani Generis’, 24. 280 Jowitt, ‘Introduction: Pirates?’, 11. 281 Harding, ‘Hostis Humani Generis’, 25. 282 Id. 24–25. 283 Anne Pérotin Dumon ‘The Pirate and the Emperor: Power and Law on the Seas 1450–1850’, in James D. Tracy (ed) The Political Economy of Merchant Empires State Power and World Trade, 1350–1750 (Cambridge: cup 1991) 196–227, reprinted in C.R Pennel (ed.) Bandits at Sea: A Pirates Reader (New York: nyu Press 2001) 25–55, 33–33.

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­ rivateers thus played a number of roles: ‘as agents of warfare; agents of comP merce; [and] agents of exploration’.284 After the death of Queen Elizabeth in 1603, her successor James i sought to end the Anglo-Spanish War. Under the Treaty of London, signed on 18 August 1604, Spain formally recognised the Protestant monarchy in England, while England ended its financial and military support for the Dutch rebellion, assuming neutral status in the ongoing war between Spain and the Dutch Pro­ vinces. The Treaty opened the English Channel to Spanish shipping and required the end of any trade disruption at sea. Accordingly, James I took ‘measures against piracy’ and ‘forb[ade] all … assistance to privateers who attacked ships of friendly nations’.285 International trade became a prime objective of the nascent British empire. Alberico Gentili was the first to ‘systematically … develop a concept of piracy’ in international legal theory, and his model remains current.286 Relying on Cicero’s classical definition of pirates as anyone’s common enemy (communis hostis omnium), Gentili endowed it ‘with greater precision’; for Gentili, pirates represented the enemies of all humankind because they acted against the law of nations and the human society (contra ius gentium et contra humanae societatis communione).287 He briefly mentioned an episode that Augustine narrated in De Civitate Dei (City of God) in which a captured pirate gave ‘an apt and true reply’ to Alexander the Great when asked why he kept ‘hostile possession of the sea’. The pirate responded by asking the sovereign why he seized the whole earth. Thus, the pirate who ruled the sea with a mere ship was called a robber, and yet the king who ruled it with a great fleet was styled as an empe­ ror.288 Gentili concluded that both imperial expansion and piracy were unlawful under the law of nations. From the conceptualization of pirates as universal enemies, Gentili derived a universal right to prosecute and punish pirates.289 For Gentili, pirates did not enjoy any rights under international law for they lost the protection of their home state.290 Because piracy was an international crime, all nations could wage war against pirates (bellum piraticum).291 As the common enemies of 284 Harding, ‘Hostis Humani Generis’, 27. 285 Wijffels, ‘Alberico Gentili and Thomas Crompton’, 11. 286 Kempe, ‘Globalized Piracy and International Law’, 356. 287 Gentili, De Iure Belli, Book 1, Chapter 25, p. 124. 288 Id. Book i, Chapter 4, p. 24 referring to Augustine, The City of God against the Pagans, R.W. Dyson (trans) (New York: cup 1998) Book iv, Chapter iv. 289 Gentili, De Iure Belli, Book 1, Chapter 25, p. 124. 290 Id. Book i, Chapter 4, p. 24; Book iii, Chapter 23, p. 423. 291 Id.

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­humankind (hostis humani generis), they were subject to universal jurisdiction, could be brought to justice everywhere,292 and could be punished by all.293 Universal jurisdiction over piracy was certainly aimed at preventing a common danger and ‘optimizing law enforcement’, given that piracy often occurred outside any state’s territorial jurisdiction.294 States regularly criminalized piracy as a capital offence, and suppressed foreign perpetrators when the home state was not prepared to act.295 While Gentili’s position on piracy remained the same over the course of his career, his position on privateering changed considerably. During the Elizabethan reign, he considered privateering—that is, raiding with the authorization of a sovereign—a legitimate pursuit. Published during the Anglo-­Spanish war, his De Iure Belli explicitly distinguished French privateers from pirates because they possessed and exhibited letters of their king.296 In times of war, Gentili considered privateers as ‘naval allies’ (socii navales).297 For Gentili, ‘the assumption of a public cause’ could transform privateers into allies; relying on Roman history, he referred to the most important leader of the Lusitanian people, Viriathus (180bc–139bc), who turned from private brigandage to the defence of his country, eventually becoming a general.298 Was Gentili implicitly referring to the Sea Dogs? The irony was that the Iberian Viriathus resisted Roman imperial expansion into the regions of western Spain; while Elizabethan privateers were resisting the Iberian Empire. To illustrate the point, and perhaps to make it more palatable to an international audience, Gentili also provided other examples from Palestine, Persia, and Asia.299 Gentili’s stance on privateering changed considerably after James i adopted a tougher stance on piracy.300 At the domestic level, pirates were defined as enemies of all humankind (hostes humani generis) and the Chief Justice Edward Coke (1552–1634) even equated domestic pirates to traitors.301 Reflecting his government’s change of policy, Gentili condemned privateering as a form 292 Harding, ‘Hostis Humani Generis’, 21. 293 Gentili, De Iure Belli, Book i, Chapter 4, p. 22; Book ii, Chapter 14, p. 199; Book iii, Chapter 23, p. 423. 294 Harding, ‘Hostis Humani Generis’, 23. 295 Chadwick, Piracy and the Origins of Universal Jurisdiction, 75. 296 Gentili, De Iure Belli, Book i, Chapter 4, p. 26. 297 Id. Book ii, Chapter 14, p. 199. 298 Id. Book i, Chapter 4, pp. 24–25. 299 Id. p. 25. 300 Chadwick, Piracy and the Origins of Universal Jurisdiction, 73 (reporting that King James i of England considered pirates as ‘enemies of God and Men’.) 301 Id. 77 (explaining that ‘the equation of piracy with treason rested on the ancient feudal notion’ that subjects were bound in loyalty to their sovereign.)

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of piracy. For Gentili, the granting of letters of marque amounted to a deliberate sanction of robbery of merchants. For instance, in the Advocatio Hispanica, when discussing booty captured under letters of marque by Dutch privateers from Spaniards, he denounced the Dutch as pirates, thus legitimizing the detention of the Dutch ship on the high seas by the Englishmen and its removal to England, considering this as an exercise of England’s jurisdiction.302 Acting as an advocate for merchants whose goods had been seized in the Mediterranean Sea and then sold to English merchants in Barbary ports, he argued that the Barbary states were supporting pirates and that the sale was unlawful.303 For Gentili, if ‘brigands t[ook] a thing away, they d[id] not take away its ownership’.304 Therefore, ‘the right to stolen property [wa]s everlasting’,305 and ‘whoever b[ought] from [pirates] directly or indirectly d[id] not acquire title in the goods, regardless of possible unawareness that the goods came from pirates’.306 Therefore, he argued that English buyers, who bought goods in Tunis from pirates, should return the items to the Spaniards, the victims of the pirates.307 Yet, ‘Gentili also argued the opposite direction’ when the interests of his clients demanded it.308 In Venetian Merchants c. English Merchants of Barbary,309 Venetian merchants required the restitution of goods seized by the notorious English pirate John Ward, then based in Tunis. As mentioned, since the conclusion of the peace with Spain in 1604, James i reversed the Elizabethan policy of sponsoring privateering against Spain. In this context, English mariners such as Ward ‘turned to the Mediterranean both to trade and to raid’.310 In April 1607, the Venetian ship Reniera e Soderina was carrying a cargo of cotton, cinnamon, indigo, and silk worth more than five hundred thousand crowns, when 302 Nussbaum, A Concise History of the Law of Nations, 99. 303 Benton, ‘Toward a New Legal History of Piracy’, 229. 304 Gentili, De Iure Belli, Book iii, Chapter 23, p. 423. 305 Id. p. 424. 306 Nussbaum, A Concise History of the Law of Nations, 99. 307 Id. 308 Id.; White, Piracy and Law in the Ottoman Mediterranean, 178 (noting that Gentili ‘struggled with whether the North African provinces, as [formally] constituent parts of the Ottoman Empire, exercised sovereignty or not, and thus whether they were covered by the content of the sultan’s treaties. He argued both sides depending on his employer’.); Gentili, Hispanica Advocatio, Book i, Chapter xxiii, pp. 108–109 (‘my opponents will say that … I am contradicting myself if I argue otherwise. But there are differences between the present case and that’). 309 Wijffels, ‘Sir Julius Caesar and the Merchants of Venice’, (referring to Venetian Merchants c. English Merchants of Barbary, Lansdowne 145, ff. 167r, 285r–303v.) 310 Benton, ‘Piracy and Politics in Gentili’s Hispanica Advocatio’, 175.

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Ward seized it near Cyprus.311 After the capture of the ship, Ward returned to Tunis and sold the booty to a local civil servant, Cara Osman (or Crosman), who was a captain of the Janissaries, elite infantry units that formed the Ottoman Sultan’s troops.312 English merchants bought the cargo and brought it to London in October 1607.313 In November 1607, the Venetians sued the English merchants before the High Court of Admiralty, reclaiming the goods and obtaining the seizure of the same.314 The case became of object of intense political pressure. On behalf of the Venetian merchants, the Venetian Ambassador claimed that Jack Ward was an infamous pirate and that Crosman did not exist and was an invented go-between.315 Even admitting the existence of Crosman and his role in the affair, the Ambassador argued that Venice and the Ottoman Empire, which included Tunis, were at peace, and therefore, Crosman should not have bought stolen goods.316 Although Venice and the Ottoman Empire had been at peace since 1573, the North African port cities that were formally a part of the Ottoman Empire hardly respected the treaty.317 The Ambassador implicitly hinted that the plunder of the Reniera e Soderina was a case of state piracy, as ‘Ward might qualify as a regular privateer in the service of Tunis’.318 In fact, Ward depended ‘on the local ruler’s protection in order to secure for his ships and crew a safe basis’ where he could ‘sell the product of his enterprises’, and 're-equip his fleet’.319 In turn, Tunis ‘secured a constant influx of goods’, ‘attracted foreign merchants, and thus enhanced [its] importance … as a marketplace’.320 Finally, the Ambassador also alleged the bad faith of the English buyers.321 On their part, the English merchants ‘protested that … their trade had always been honest’ and that they bought their cargo in Tunis from the local authorities.322 As the Venetian merchants had obtained an expert opinion 311 Daniel J. Vitkus, ‘Introduction’, in Daniel J. Vitkus (ed.) Three Turk Plays from Early Modern England (New York: Columbia University Press 1999) 1–35, 25. 312 Nys, ‘Les Manuscripts de Sir Julius Caesar’, 466. 313 Id. 314 Id. 315 Id. 316 Id. 317 Joshua M. White, Piracy and Law in the Ottoman Mediterranean (Stanford, CA: Stanford University Press 2018) 4. 318 Wijffels, ‘Sir Julius Caesar and the Merchants of Venice’, 204. 319 Id. 202. 320 Id. 321 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 12. 322 Wijffels, ‘Sir Julius Caesar and the Merchants of Venice’, 198.

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(consilium) from a Professor of the University of Padua, the English merchants sought the advice of Alberico Gentili.323 In a memorial submitted to the Court, dated 5 June 1608, Gentili stated that he did not intend to support piracy in any way, but he nonetheless argued that the English merchants had legitimate title to the goods.324 For Gentili, the sale was legitimate under Turkish law because it had the approval of Barbary officials and followed all the local formalities.325 Gentili also explained that because Venice had a peace treaty with the Ottoman Empire, the Venetians thus had the possibility to file claims in the place where the transaction occurred.326 They would need to prove that they had been subjected to a piratical attack.327 However, they would not be able to do so, because they had been attacked by privateers sponsored by the Ottomans themselves and this would be evidence of war between the Ottomans and Venice despite the peace treaty.328 The reason of state and international justice prevailed over Gentili’s argument. In fact, the Court of Admiralty rendered a decision in favour of the Venetian merchants.329 For Venice, ‘the case had major implications for the safety of Venetian trade in the Mediterranean’.330 For England, friendly commercial relations with Venice were key to the success of the King’s European peace policy and the promotion of English trade.331 Moreover, because ‘Venice was a privileged observatory of Italian as well as international affairs’, England sought to remain on good terms with Venice to also ‘gather intelligence on international politics’.332 After consultation with the Venetian Doge, James i came to the conclusion that he would never pardon Ward without the assent of the Republic of Venice; while the Republic expected that no pardon would be granted until full indemnity was paid.333 When Ward formally applied to James i for a pardon, offering a magnificent bribe in exchange for his own amnesty and that of his crew, and promising to return ships, guns, and goods and to

323 Gentili, Hispanica Advocatio, Book i, Chapter xxiii, pp. 108–114. 324 Id. p. 109. 325 Id. 326 Benton, A Search for Sovereignty, 127. 327 Id. 328 Id. 329 Nys, ‘Les Manuscripts de Sir Julius Caesar’, 467; Wijffels, ‘Alberico Gentili e Thomas Crompton’, 55. 330 Wijffels, ‘Sir Julius Caesar and the Merchants of Venice’, 197. 331 Id. 205. 332 Diego Pirillo, ‘Espionage and Theology in the Anglo–Venetian Renaissance’ (2017) 25 Mediterranean Studies 53–75, 58. 333 Hotson, ‘Pirates in Parchment’, 10.

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cease all piratical activities, he was neither pardoned nor allowed to return home.334 In conclusion, in the early modern period, although the distinction between piracy and privateering was clear in theory, it was fuzzy in practice. In his Advocatio Hispanica, Gentili condemned both piracy and privateering as contrary to the law of nations. Based on Cicero and Roman law sources, the concept of the pirate as the enemy of all helped to centralize violence and the consolidation of nation states; it also suspended the application of international law to pirates; and, according to some, facilitated early modern globalization and imperial expansion.335 Gentili’s positions on the question as to whether the owner who had lost her property through piracy could claim restitution from any other possessor of such goods remained contradictory. In one case, in which he defended Spanish clients, he argued that pirates selling goods did not transfer the property of the same and ruled out acquisition by third parties for lack of good faith.336 In the case concerning the Venetian merchants, though, he admitted that the fiscal authorities of Barbary states could transfer title, because of their public function and the good faith of the buyers.337 Admittedly, this is not one of the clearest parts of Gentili’s work. Possibly, Gentili considered good faith as the distinctive element that justified acquisition of property by third parties. In other words, for Gentili, buyers ought to be in good faith to acquire property from thieves and pirates.338 Nonetheless, the quantity of the arguments he delibe­ rately employed to defend his clients make it difficult to ascertain which arguments he ultimately considered superior, and which arguments he merely inserted to create a critical mass of arguments (ad abundantiam) to persuade the Court. It is also unclear whether there were in-depth commonalities among his pleadings or whether he ‘did not mind putting his client’s interests before everything in the practical application of his principles’.339

334 Vitkus, ‘Introduction’, 27. 335 Policante, The Pirate Myth, xviii. 336 Gentili, Hispanica Advocatio, Book i, Chapters 12 and 15 (noting that pirates captured Spanish ships and sold the cargo to Berbery authorities, which then sold the items to English merchants. Gentili argued that there was no transfer of title and no acquisition of property. Rather, the stolen goods should be returned to the Spanish merchants). 337 Abbott, ‘Alberico Gentili and His Advocatio Hispanica’, 743. 338 Gentili, Hispanica Advocatio, Book i, Chapter 15, p. 66 (discussing the good faith the buyer ought to show). 339 Van der Molen, Alberico Gentili and the Development of International Law, 174.

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315

Advocacy at the High Court of Admiralty

In 1605, with the permission of James i, Don Pedro de Zuñiga (1560–1631), the Spanish Ambassador in London, appointed Alberico Gentili as the Advocate of Spain (Advocatus Hispaniorum) at the High Court of Admiralty in London.340 Under the 1604 Treaty of London, Spain abandoned any intention to invade England, while England ended its military and financial support of the United Provinces. Because Spain remained at war with the United Provinces, several disputes were brought before the English High Court of Admiralty concerning maritime issues.341 Gentili advised on issues concerning neutrality, contraband, privateering, and piracy.342 Why did Gentili—a Protestant who was living in exile—agree to defend a Catholic power whose actions he had often criticized in the De Iure Belli? Gentili openly condemned Spanish hegemonic ambitions in his De Iure Belli. England and Spain had been at war for almost two decades, and ‘tales of Spanish … enmity, depicted in art, performed on stage, and recounted in popular literature and pamphlet press’ still proliferated.343 Moreover, during the same period, the Low Countries had allied with England against the Iberians. Therefore, critics censured Gentili’s defence of (Catholic) Spain against the (Protestant) Dutch. In an unpublished manuscript, dated December 1605, Gentili defended his choice arguing that his previous arguments in the De Iure Belli had been objective.344 In De Iure Belli, he criticized Spain for preventing navigation to the new lands.345 Analogously, he argued that in his new role as the Advocate of Spain, he was not defending Spain but fighting for truth and justice.346 For Spain, the role that Gentili played in the Mendoza affair might have been relevant. As is known, Gentili’s theory of state immunity benefitted the Spanish ambassador. Yet, this had occurred twenty years earlier. More likely, the Spanish government appointed him for several good reasons, including his fame, expertise,

340 Kenneth R. Simmonds, ‘Un’Opinione Inedita di Alberico Gentili’ (1957) 34 Rivista Internazionale di Filosofia del Diritto 83–87, 83. 341 Nys, ‘Les Manuscripts de Sir Julius Caesar’, 462. 342 Simmonds, ‘Un’Opinione Inedita di Alberico Gentili’, 83. 343 Porras, ‘Constructing International Law in the East Indian Seas’, 782. 344 MS D’Orville 608, p. 25. 345 Id. 346 Id. (‘Non stamus pro Hispanis nos … sed pro iustitia … sacerdotes iustitiae, equum ab iniquo separantes, licitum ab illicito discernentes’.)

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and ­connections at Court.347 At a time in which the English High Court of Admiralty adjudicated delicate matters of international law, and local animosity against Spain remained high after two decades of war, if Spain aimed to successfully defend its claims and win disputes, having one of the best lawyers (princeps fori) would be crucial. Finally, Gentili’s representation of the Spanish Embassy matched royal policy.348 As the Treaty of London ended the protracted and expensive Anglo-Spanish war, James i saw its implementation as the best guarantee of peace. In the sixteenth century, the English High Court of Admiralty, which then sat in a former church in Southwark, London, had both administrative and judicial functions.349 Not only did it issue letters of reprisals, but it also had both civil and criminal jurisdiction on all shipping and mercantile cases involving English ships or crews at sea, or cases involving foreigners along the English coast.350 The Lord Admiral could institute ex officio proceedings against nationals who had disregarded admiralty law, for instance by attacking foreign vessels without a letter of marque.351 In parallel, ‘foreign merchants, or foreign diplomats on their behalf, could bring actions in the court to reclaim captured property’.352 Because of its broad jurisdiction, the High Court of Admiralty did not merely deal with purely national cases; rather, in most cases, it addressed maritime issues of a transnational character. The High Court of Admiralty operated in a grey area between law and politics.353 While the judges of the High Court of Admiralty had to administer justice,354 the Court was also subject to certain political, economic, and diplomatic constraints. On the one hand, the admiralty machine was not institutionally independent from the executive power. Admiralty judges were overseen by the Lord Admiral who was a minister of the sovereign.355 Moreover, the Lord Admiral and admiralty judges all ‘had a material interest in the outcome of the trials’. Whereas the Lord Admiral received a tenth of the value of every prize, the compensation of the admiralty judges was also ‘tied to the fees 347 Guido Astuti, ‘La Advocatio Hispanica de Alberico Gentili’, (1950) Anuario de Historia del Derecho Español 50–69, 53 (adding that ‘Gentili performed his duties with diligence, integrity, and care’.) 348 Ian Maclean, Learning and the Marketplace—Essays in the History of the Early Modern Book (Brill: Leiden/Boston 2009) 321. 349 Andrews, Elizabethan Privateering, 23. 350 Id. 351 Id. 352 Id. 353 Hill, Bench and Bureaucracy, xii. 354 Roelofsen, ‘Grotius and State Practice of His Day’, 24. 355 Hill, Bench and Bureaucracy, 17, 19, and 28.

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and profits of the office’.356 Last but not least, the Lord Admiral was also ‘a promoter of privateering ventures’.357 Therefore, he frequently intervened in cases which directly affected his business and ‘he did not hesitate to instruct the judge accordingly’.358 Even when the court granted favourable judgments to strangers, execution of the same would be wanting.359 On the other hand, in the late sixteenth century, the High Court of Admiralty was at the centre of international politics and diplomacy.360 Because most of the maritime disputes adjudicated by the Court inevitably had international implications, the Court was also subject to political and diplomatic interference by the sovereign and the Privy Council for reasons of foreign policy.361 Therefore, the Court of Admiralty navigated between the Scylla of economic pressure and the Charybdis of political interference. In conclusion, the court did not meet current standards of independence and impartiality.362 Unsurprisingly, in a letter conserved among the D’Orville manuscripts, Gentili ‘expressed … his frustration at the progress of some of the Admiralty proceedings’, and accused one of the admiralty judges of partiality.363 In the letter, Gentili reported that a judge adjudicated against Spain, as he had done so before in other cases, after committing some procedural errors and rushing to reach his conclusions.364 For Gentili, this was manifestly unjust (‘sono cose queste tutte manifestamente ingiuste’), but he concluded that this judge would never change (‘questo giudice sarà così sempre come è stato sempre’).365 In this regard, in his posthumous Hispanica Advocatio, Gentili offered two pearls of wisdom, arguing that ‘a judge should guard his reputation by not becoming an advocate’, and that ‘one ought to avoid and escape by all means … the judgments of those whom [one] holds in suspicion’.366 Nonetheless, the mentioned

356 Roelofsen, ‘Grotius and State Practice of His Day’, 23–24. 357 Andrews, Elizabethan Privateering, 27. 358 Id. 24. 359 Id. 26. 360 Hill, Bench and Bureaucracy, 26–27 (noting that the Court ‘became an essential agent of English policy’.) 361 Andrews, Elizabethan Privateering, 25 and 27; Hill, Bench and Bureaucracy, 60 (noting that it was not unusual for [admiralty judges] to receive a directive in the Queen’s name instructing [them] to show uncommon favor to a particular litigant’.) 362 Hill, Bench and Bureaucracy, xii (highlighting that admiralty judges were ‘rarely able to exercise judicial independence’.) 363 Wijffels, Alberico Gentili and Thomas Crompton, 7–8. 364 MS D’Orville 608, 134r. 365 Id. 366 Gentili, Hispanica Advocatio, Book ii, Chapter xv, pp. 190–191.

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constraints did not prevent the Court of Admiralty from achieving some reasonable outcomes at least for the standards of the period. Published posthumously in 1613, the Hispanica Advocatio constituted a major contribution to the emergence of the law of the sea.367 It is unique because, up until then, jurists wrote treatises on general subjects or commentaries on particular laws.368 Instead, the Hispanica Advocatio is a ‘hybrid’ work lying in between an academic treatise and a piece of advocacy.369 It includes opinions on matters of maritime law, originally written as notes and records of cases in which Gentili appeared as an advocate before the High Court of Admiralty from 1605 up to his death in 1608.370 In addition to the opinions in which Gentili defended the interests of Spain, there are opinions in which Gentili defended the interests of English subjects in the context of other maritime disputes, and personal notes destined for other co-counsels or the Spanish Ambassador.371 All these different materials concerned similar issues of the law of nations. The Hispanica Advocatio portrays the early modern law of the sea from a bottom up perspective. It shows how given legal principles were applied in practice in the heat of litigation. Not only did it constitute ‘the first case-book of the law of nations’, but it also contributed to the development of the early modern law of the sea.372 Gentili’s premature death prevented the completion of the Hispanica Advocatio. As is known, in his will, signed on 14 June 1608, five days before his death, Alberico Gentili asked his brother Scipione to burn all manuscripts except the Hispanica Advocatio.373 In Gentili’s view, it required some minor editorial work before publication, and he trusted his brother Scipione to undertake this work without too much inconvenience. While Scipione did not burn any of his brother’s manuscripts, he did publish the Hispanica Advocatio a few years later for his brother. However, he likely published the manuscript as it stood.374 The Hispanica Advocatio constitutes an imperfect recast of the original opinions.375 While Alberico Gentili completely rewrote some of his legal opinions, he left 367 Alberico Gentili, Hispanicae Advocationis Libri Duo (Hanoviae: Apud haeredes Guilielmi Antonii 1613); Alberico Gentili, Hispanicae Advocationis Libri Duo, Frank Frost Abbott (trans) (New York: oup 1921). 368 Abbott, ‘Alberico Gentili and His Advocatio Hispanica’, 742. 369 Wijffels, ‘Sir Julius Caesar’s Notes on Admiralty Cases’, 100. 370 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 4. 371 Astuti, ‘La Advocatio Hispanica’, 55. 372 Simmonds ‘Alberico Gentili at the Admiralty Bar’, 22. 373 Simmonds, ‘Un’Opinione Inedita di Alberico Gentili’, 84. 374 Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’, 234. 375 Astuti, ‘La Advocatio Hispanica’, 55.

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others almost unchanged and unintelligible.376 The volume also includes some spurious materials concerning matters of civil procedure and civil law. For instance, one legal opinion concerns the admission of Gentili’s son, Robert, to the All Souls College, Oxford.377 In another unrelated letter, Gentili matter-offactly admits the weakness of his case in one of the disputes before the High Court of Admiralty. It is unlikely that Gentili would have published such letters, if he had the time to finalize his manuscript. He probably envisaged some major rewriting and planned to insert additional materials to the main arguments of the Hispanica Advocatio, but his premature death prevented such revision.378 However, not only do these spurious materials contain historical value and contribute to reconstruct some of the disputes, but they also shed light on the dialectical nature of the early modern theory and practice of the law of nations. Nonetheless, the material in the volume is scattered, the sequence of opinions is haphazard, and a final revision by Gentili would have been beneficial. Whether Gentili aimed to keep the Hispanica Advocatio as a collection of consilia or transform it into a proper treatise, or rather develop it into a collection of pleadings remains uncertain. The form of the Hispanica Advocatio recalls a collection of consilia that was ‘an important genre of the Italian method’.379 Written by eminent jurists, such legal opinions (consilia sapientium) traditionally bridged the gap between theory and practice, idealism and realism, as well as law and politics.380 They could be written in defence of a client’s interests (pro parte) or constitute an impartial tool to address a given legal issue (pro veritate). In the latter case, the use of legal opinions ‘was a stra­ tegy, in the absence of an international jurisdictional forum … to maintain the dispute within relatively peaceful boundaries’.381 While most of Gentili’s opinions were written pro parte, they did not merely put forward the arguments in favour of his clients; rather, they followed the dialectical method. After briefly describing the facts (casus sic est) and the legal issues (quid iuris) of each case, 376 377 378 379

Astuti, ‘La Advocatio Hispanica’, 47. Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’, 230. Id. 232. Alain Wijffels, ‘Early-Modern Scholarship on International Law’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 23–60, 30. 380 Silvia Ferretto, ‘La Scienza della Politica tra Filosofia e Riflessione Religiosa nella Forma­ zione di Alberico Gentili’, in vvaa, Alberico Gentili—Le Marche al Tempo di Alberico Gentili: Religione, Politica, e Cultura (Milano: Giuffrè 2012) 265. 381 Alain Wijffels, ‘Alberico Gentili and the Hanse: The Early Reception of the De Iure Belli (1598)’, in Pierre-Marie Dupuy and Vincent Chetail (eds.) The Roots of International Law (Leiden: Brill 2014) 181–209, 181.

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Gentili dialectically discussed the possible arguments and counterarguments (disputatio in utramque partem) to reach a given solution (solutio).382 A diligent and able advocate, Gentili preferred to ‘err on the side of completeness’ and referred to a vast amount of materials including the civil law, scholarly opinions (opiniones doctorum), and previous decisions (decisiones), as well as historical examples.383 Substantively, the Hispanica Advocatio constitutes an imperfect treatise. Gentili structured the various opinions in different chapters according to the various legal topics; while the first book mainly addressed questions of international law, the second book mainly dealt with procedural and other matters.384 While Gentili did not produce an organic and unitary treatise, he nonetheless went beyond a mere collection of consilia.385 Therefore, the Hispanica Advocatio is not a mere collection of consilia; rather, it constitutes an ‘imperfectly systematic treatise’.386 Gentili’s premature death prevented the completion of ‘the ideal final version’ of the monograph he had in mind.387 Some evidence suggests that had Gentili had more time, he would probably have revised the Hispanica Advocatio and transformed it into a proper treatise.388 Confronting the original manuscript with the published version, Wijffels reveals that ‘the author first envisaged a conventional collection of consilia’ and that only ‘at a later stage’ did ‘he modif[y] the concept of the work’.389 The Hispanica Advocatio has also been seen as a collection of pleadings. ­Wijffels hypothesizes that after first conceiving the Hispanica Advocatio as a collection of consilia, and imagining it as a properly structured treatise, Gentili opted for a middle ground in the form of a collection of pleadings (plaidoyers).390 Collections of pleadings were ‘a successful genre’; the very title of the Gentilian work, Hispanica Advocatio, which can be translated as pleas of 382 Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’, 235. 383 Id. 236. 384 Alain Wijffels, ‘Alberico Gentili et la Genèse de la Hispanica Advocatio’, in vvaa, De la Res Pública a los Estados Modernos—Journées Internationales d’Histoire du Droit (Bilbao: upv 1992) 299–329, 314. 385 Astuti, ‘La Advocatio Hispanica’, 55. 386 Wijffels, ‘Sir Julius Caesar’s Notes on Admiralty Cases’, 98. 387 Id. 100. 388 Frank Frost Abbott, ‘Translator’s Prefatory Remarks’, in Alberico Gentili, Hispanicae Advocationis Libri Duo, vol. ii, Frank Frost Abbott (transl) (New York: oup 1921) 9 (noting that had Gentili ‘lived to publish the book, very likely … he would have expanded his summaries into detailed arguments’, stated reasons, and completed sentences.) 389 Alain Wijffels, ‘Early Modern Literature on International Law and the Usus Modernus’ (1995) 16 Grotiana 35–54, 47. 390 Wijffels, ‘Sir Julius Caesar’s Notes on Admiralty Cases’, 111.

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Spain, seems to support this theory.391 For Wijffels, this literary form allowed for a lively and incisive style and constituted an intermediate approach between the genres of the collection of consilia on the one hand and the treatise on the other.392 In any case, the Hispanica Advocatio deliberately has both practical and theoretical relevance. It is also likely that had Gentili had more time, he would have revised it further. In conclusion, despite some of its perceived limits, including the fragmented and at times contradictory nature of the legal opinions expressed by Gentili, the Hispanica Advocatio remains one of his most important works. It is significant for two reasons. First, it illuminates Gentili’s method and his adherence to the Italian style of argumentation (mos italicus).393 In the Hispanica Advocatio Gentili used free analogies extensively, transplanting rules from a given legal field to another entirely different sector.394 For instance, in addressing the question as to whether a captured ship recovered its freedom when it sailed through neutral waters, one of Gentili’s arguments was based on canon law, which held that when a prisoner was on a church’s territory, she was no longer subject to sovereign authority.395 Gentili drew most of his analogies from civil law, canon law, and medieval commentaries upon the same.396 While in other works, he often used biblical, philosophical, and historical sources, non-legal sources are rare in the Hispanica Advocatio, which presents a typically legal discussion.397 Therefore, the method Gentili used in his Hispanica Advocatio was similar to that used by contemporary international lawyers. Second, the Hispanica Advocatio highlights Gentili’s contribution to the early modern law of the sea. It examines important questions of both the law of nations in general and the law of the sea in particular. It also sheds some light on key concepts such as the freedom of the high seas, the territorial sea, neutrality, privateering, and piracy. Gentili identified the law of the sea as an important part of the law of nations and conceived the latter as a discipline separate from theology and the civil law.398 He often cited civil law, but to ‘confir[m] or illustrat[e] rules derived from contemporary usage’.399 The cases

391 Wijffels, ‘Sir Julius Caesar’s Notes on Admiralty Cases’, 111. 392 Id. 393 Wijffels, ‘Early-Modern Literature on International Law and the Usus Modernus’, 48. 394 Id. 395 Id. 396 Abbott, ‘Translator’s Prefatory Remarks’, 9. 397 Nussbaum, A Concise History of the Law of Nations, 98. 398 Astuti, ‘Di un’Antica Raccolta di Questioni di Diritto Internazionale’, 240. 399 Id. 241.

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discussed in the Hispanica Advocatio illuminate the early modern origin of key concepts of the law of the sea.400 In conclusion, while the Hispanica Advocatio may not reflect the definitive opinion of Gentili due to the contingent circumstances in which it was written, it certainly sheds light on the historical developments of international law, contributing important insights not only on the law of the sea but also on neutrality law and the law of war. Not only is the Hispanica Advocatio a time capsule and a window into the past, which offers fascinating insights into the living law of maritime disputes and the practical application of the law of nations in the early modern period, but it also offers an engaging discussion of legal issues according to a methodology that remains current nowadays.401 For each issue, Gentili examined a range of laws, cases, and authorities both in favour and against his line of argument. It is in the heart of these arguments that the law of nations was shaped and came to life. 6.6

Critical Assessment

Gentili greatly contributed to the emergence of the early modern law of nations. While the Gentilian theory has not attracted the interest it deserves, it has contributed key notions to the law of the sea such as the freedom of the seas and the territorial sea and addressed crucial issues such as piracy and privateering. His thinking transcended the so-called battle of the books, which opposed the freedom of the sea to the closure of the same, as his theory contributed to both intellectual currents in equal measure and foreshadowed a vision of the law of the sea that lasted through modernity and still finds mainstream resonance today. Rather than advocating mere protectionism or the absolute freedom of the seas, Gentili identified both polarity and complementarity between freedom and jurisdiction; a common use of natural resources and state sovereignty; and private and public interests in the governance of the sea. More fundamentally, his contribution to the law of the sea should not be seen as a separate chapter of his vast scholarly production; on the contrary, it constitutes one of the pillars of the Gentilian system of international law. Although the Hispanica Advocatio is often considered to be an unreliable piece of advocacy, its study greatly contributes to the history and theory of ­international law. This imperfect treatise shows the international practice of the time and the emergence of key concepts of the law of the sea. Although 400 Astuti, ‘La Advocatio Hispanica’, 57. 401 Id. 67.

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a­ dmiralty law has ‘never [been] a product of meticulous planning and intense systematic architecture’, it has substantively contributed to the creation of important principles of international law, intertwining with the practical application of the same.402 Domestic admiralty courts have constituted an important place of international diplomacy and have applied elements of the law of nations.403 Gentili’s Hispanica Advocatio offers important insights on the functioning of admiralty courts and a lively discussion of key concepts of the law of nations such as the freedom of the sea, territorial sea, neutrality, privateering, and piracy. Gentili used a dialectical method of argumentation.404 He would first list all of the possible counterarguments that the opponents could raise against his case.405 Then, he would vigorously put forward the arguments in favour of his case.406 His scrutiny tended to be exhaustive. In a note he wrote to a junior counsel, he advised him to carefully consider the legal questions and to deliberately include not only relevant and pertinent arguments, but also additional arguments because they could influence the judge.407 These cases show certain inconsistencies in Gentili’s arguments with respect to his previous works.408 Yet, law is not an exact science and such contradictions probably reflect ‘his agility as a lawyer’, rather than imperfections of legal reasoning.409 Gentili was ‘hired to defend Spanish interests with the approval of the English crown’, and had to use delicate diplomatic skills in performing his duties.410 For Simmonds, this ‘may help to explain, if not entirely to excuse, some of the contradictions and uncertainties observed in his pleadings’.411 As a lawyer, Gentili was diligent, skilful, and ‘surprisingly successful’.412 He exposed his arguments logically with ‘vivid forensic skill’, constant ‘energy’, and ‘intensity’.413 Although he principally relied on ancient authorities, he ‘applied these precedents to the cases before him with a keen awareness of

402 Shavana Musa ‘Tides and Tribulations: English Prize Law and the Law of Nations in the Seventeenth Century’ (2015) 17 Journal of the History of International Law 47–82, 49. 403 Id. 81. 404 Abbott, ‘Alberico Gentili and His Advocatio Hispanica’, 746. 405 Id. 406 Id. 407 Id. 747. 408 Benton, ‘Legalities of the Sea in Gentili’s Hispanica Advocatio’, 271. 409 Id. 271–273. 410 Id. 273. 411 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 21. 412 Id. 413 Id. 21–22.

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c­ ontemporary events and conditions’.414 He was ‘impatient, anxious to dispose of the arguments against him, critical … of the abilities of the opposing counsel’ and ‘astute in his use of authorities’.415 The Hispanica Advocatio has constituted not only ‘a personal record of advocacy’ and a vivid example of pleading, but also ‘the work of a great jurist’.416 Because the Hispanica Advocatio ‘presents the arguments actually made before the court’ and reflects ‘the actual application of the principles of international law to concrete cases’, not only does it ‘throw light on contemporary conditions’, but it also illuminates the development of the law of the sea in practice.417 In fact, admiralty law ‘reflected international law in action’.418 The Hispanica Advocatio covers a broader range of maritime questions than the De Iure Belli and constitutes a formidable source of both historical and legal information. From a historical perspective, it offers a nuanced relationship between local historical events and global historical change. It shows us the complex relations among nations in the early modern period, and it does so from a bottom up perspective. It offers a rare window into the culture, the social networks, and legal and diplomatic issues of the time. From a legal perspective, the Hispanica Advocatio exposes the reader to the settlement of contingent maritime disputes and the formation of long-lasting legal concepts. The Hispanica Advocatio provides a rare insight in the way doctrinal theories moved to forensic practice, and, vice versa, precedents contributed to the emergence of general principles of the law of the sea and maritime customs. By illuminating specific legal disputes, and displaying the legal strategies of the parties, not only does the Hispanica Advocatio enable a microhistorical analysis of global phenomena,419 but it also shows the coalescence of international law concepts relating to naval warfare and neutrality, piracy and privateering, prize and plunder. The High Court of Admiralty was a socio-legal site, a web of people and practice that contributed to global legal shifts and trends. Gentili contributed to the elaboration of the binary notions of the freedom of the sea and the territorial sea. For Gentili, the sea was common to all (res communis) and could not be owned. Therefore, if a sovereign restricted others’ 414 Simmonds, ‘Alberico Gentili at the Admiralty Bar’, 23. 415 Id. 21–22 (noting that Gentili was ‘an extremely able’ lawyer ‘enjoying the cut and thrust of litigation’.) 416 Id. 22–23. 417 Abbott, ‘Alberico Gentili and His Advocatio Hispanica’, 742–746. 418 Musa, ‘Tides and Tribulations’, 82. 419 Valentina Vadi, ‘Perspective and Scale in the Architecture of International Legal History’ (2019) 30 ejil 53–71; Valentina Vadi, ‘The Power of Scale: International Law and Microhistories’ (2018) 46 Denver Journal of International Law and Policy 315–348.

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rights to navigate on the high seas, such restriction could serve as a cause of just war. Nonetheless, Gentili also admitted a multi-layered exercise of jurisdiction over the sea. In general terms, states held jurisdiction over the seas to prevent piracy. Gentili defined pirates as the common enemies of humankind. Because pirates violated the law of nations, sovereigns could assert jurisdiction over them, capture, and punish them. While Gentili thus contributed to the theoretical development of the freedom of the seas, he also conceptualised the notion of territorial sea. For Gentili sovereign jurisdiction extended to proximate seas and in such waters ‘the word territory … applied equally to land and to water’.420 He thus argued that states had full sovereignty and jurisdiction on the territorial sea and that belligerents could not wage war in the territorial waters of a neutral state: ‘let everyone enjoy the use of the sea, but without violating the jurisdiction of another nation. Let everyone remember too that there are limits to a journey by sea as well as to every other journey’.421 In conclusion, while he theorized the freedom of the sea, he also highlighted a number of limits to the same, based on the security of coastal states and of the international community as a whole. For Gentili, the law of nations formed the basis not only for freedom of navigation, but also for multiple forms of jurisdiction over the sea. The chapter shows that in the early modern period, the oceans were spaces of contention, and non-state actors played a significant role in international legal relations.422 The distinction between pirate and privateer was ‘not clear or stable’.423 Gentili considered piracy to be a crime under the law of nations and defined pirates as the common enemy of humankind.424 He initially ­considered privateers as a subsidiary navy but later changed his mind and viewed them as mercenaries of the sea.425 Privateering combined trade and plunder, and was ‘at the same time both a public and a private undertaking; both ­domestic and international in its implications’.426 While during the Elizabethan reign, it was part of the state’s military policy, during the Jacobean era, 420 Gentili, Hispanica Advocatio, 35. 421 Id. 38. 422 Michael Kempe, ‘Even in the Remotest Corners of the World: Globalized Piracy and International Law, 1500–1900’ (2010) 5 Journal of Global History 353–372, 353, and 359. 423 Vitkus, ‘Introduction’, 30. 424 Gentilis, De Iure Belli, Book i, Chapters 4 and 25. 425 Giorgio Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes: il Ruolo di Alberico Gentili agli  ­Albori del Diritto Internazionale Moderno’, in Ferdinando Treggiari (ed.) Alberico ­Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 97. 426 L.M. Hill, ‘The Admiralty Circuit of 1591: Some Comments on the Relations between Central Government and Local Interests’ (1971) 14 The Historical Journal 3–14, 3.

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it was formally condemned.427 As more nations began participating in oversea trade, privateering became problematic.428 While in his De Iure Belli, Gentili adopted a mild stance acknowledging that letters of sovereigns could play a role in determining whether or not someone was a pirate,429 in the Advocatio Hispanica, he aptly noticed this evolution and condemned both piracy and privateering. 6.7 Conclusions In the early modern period, the overseas discoveries altered the spatial vision of the world in fundamental ways and determined a paradigm change in legal theory.430 The vastness of the terrestrial sphere, the encounters between different civilizations, and the cultural, commercial, and even violent exchanges among them required new legal frameworks. Connecting Europe, America, Asia, Africa, and Oceania, the oceans were both the place where different ­civilizations met, clashed, and influenced one another and a ‘space of competing legal strategies’, a realm in which ‘contradictory, mutually exclusive’ claims ‘competed and collided’.431 As exploration, navigation, and commerce intensified, the oceans became ‘forces of global integration’432 and the law of the sea became more and more central to the creation of an international legal order. Far from merely meaning a ‘free space for commerce’ and navigation,433 the freedom of the seas transformed the oceans into ‘a space of events’ of growing intensity and frequency, a great bridge for the movement of ideas, people, ­capital, and goods, ‘a world of mobilities and connections’ and ‘a context for human activities’.434 The oceans became a space of economic, political, military, and cultural encounters; the freedom of the seas prevailed because it 427 Andrews, Elizabethan Privateering, 235. 428 Peter C. Mancall and Carole Shammas, ‘Introduction’, in Peter C. Mancall and Carole Shammas (eds) Governing the Sea in the Early Modern Era (San Marino CA: Huntington Library 2015) 1–13, 6. 429 Gentili, De Iure Belli, Book i, Chapter 4, p. 26. 430 Carl Schmitt, Land und Meer. Eine weltgeschichtliche Betrachtung (Leipzig: Verlag von Philipp Reclam 1942). 431 Kempe, ‘Globalized Piracy and International Law’, 371 and 359. 432 Benton, ‘Legal Spaces of Empire’, 701. 433 Jones, ‘Lines in the Ocean’, 317; Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (New York: Telos Press 2003) 43. 434 Jones, ‘Lines in the Ocean’, 317–319.

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r­ eflected an open, mobile, and changing world. Related to European oversea expansion,435 the development of the early modern law of the sea also reflected trade patterns, navigation, and features not only of the Mediterranean Sea but also of other regions of the world.436 In parallel, states began asserting ­territorial rights in their coastal waters to control fisheries and to protect some fundamental interests such as public safety and public health. Gentili influenced the development of the law of the sea, contributing to the emergence of the key binary concepts of the freedom of the high seas and state sovereignty over the territorial sea. Gentili also addressed issues of naval warfare and neutrality; piracy and privateering; smuggling and the law of finds. Gentili condemned both piracy and privateering as forms of unlawful maritime violence. He defined pirates as enemies of humankind (hostes humani generis) and conceptualized universal jurisdiction to punish them. For Gentili, they lacked the legal protection accorded by domestic and international law, so that everybody could fight them. By committing crimes against the law of nations and engaging in a perpetual war against all, pirates separated themselves from the international community and thus renounced the protection of the law of nations. Not only did Gentili influence the theory of the debate, but he also engaged with the practice of international law. Often overlooked by scholars because of its practical nature, the Hispanica Advocatio reveals Gentili’s active engagement with maritime practice, while it also develops key arguments and theories of the law of the sea.437 In the early modern period, the admiralty courts were ‘part of a system for governing the oceans’, ‘a forum for the development of international law in practice’, and ‘a mechanism for controlling piracy’.438 From a historical perspective, the Hispanica Advocatio constitutes a time capsule, showing us the complex relations among nations in the early modern period from a bottom up perspective. It offers a rare window into the culture, the social networks, and legal and diplomatic issues of the time. From a legal p ­ erspective, it illuminates the settlement of contingent maritime disputes, and the formation of enduring legal concepts of the law of the sea.

435 Anghie, Imperialism, Sovereignty and the Making of International Law. 436 Van Ittersum, Profit and Principle, xlv and l. 437 Benton, ‘Piracy and Politics in Gentili’s Hispanica Advocatio’, 174. 438 Jones, ‘Lines in the Ocean’, 330; Benton, ‘Piracy and Politics in Gentili’s Hispanica Advocatio’, 187.

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In elaborating notions that still inform the current law of the sea, Gentili sought to strike a balance between state interests and those of the international community. Gentili’s theory and practice regarding the law of the sea was characterized by a singular tension between the differing interests of individual states and those of the international community. Such tension still characterizes the contemporary law of the sea, seeking to endorse delicate equilibrium between particular and common interests.439 Gentili also identified a further tension within the early modern law of the sea between the attempts to instrumentalize the law of nations for the pursuit of particular interests and the power of the same to correct or regulate such interests. He resisted the instrumentalization of private maritime violence as a tool of politics and condemned wars of conquest for the pursuit of hegemonic empires. 439 Butler, ‘Grotius and the Law of the Sea’, 217.

Chapter 7

Gentili and the Injustice of Empire New mariners and masters new shall rise, That shall find out that erst so hidden was, And shall discover where the passage lies And all the men that went before surpasse, To find new lands, new stars, new seas, new skies.1

∵ 7.1 Introduction One of the central questions raised by maritime explorations was the regulation of the interactions between different civilizations. Not only did the explorations change the vision of the world as a whole, but they also questioned the place of various polities within it.2 In fact, ‘the expansion of world trade relations, ensuing military confrontations, and technical advances in transportation and communication led to an interconnected world’,3 a ‘paradigm change’, and ‘a trauma’.4 To several European maritime powers, the Indies appeared as a ‘free space, as an area open to European occupation and expansion’.5 However, these were not empty spaces; rather, different civilizations had inhabited these lands for centuries. From the sixteenth century onwards, structures of domination and patterns of resistance emerged.6 The Portuguese ‘built a maritime and commercial empire in the Eastern Indies with trading … posts along the coasts of Africa’.7 The Spaniards ‘took over the great empires of the Aztecs, 1 Ludovico Ariosto, Orlando Furioso, xv, 21–22, Sir John Harington (transl.) (London 1591) xv, 14, p. 114. 2 Jordan Branch, The Cartographic State—Maps, Territory, and the Origins of Sovereingty (Cambridge: cup 2015) 103. 3 Arnulf Becker Lorca, ‘Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation’ (2010) 51 Harvard ilj 475–552, 548. 4 Luigi Lacchè, ‘Introduzione’, in Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli—Alberico Gentili e gli Orizzonti della Modernità (Milan: Giuffrè 2009) 9. 5 Carl Schmitt, The Nomos of the Earth [1974] (New York: Telos Press 2003) 87. 6 Robert Young, Postcolonialism: An Historical Introduction (Oxford: Blackwell 2001). 7 Randall Lesaffer, ‘The Classical Law of Nations (1500–1800)’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 408–440, 439. © VALENTINA VADI, ���� | doi:10.1163/9789004426030_008

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Mayas, and Incas’ and established their own empire in South and Central America as well as the Caribbean Sea.8 Such expansion involved acts of violence, inhumanity, economic exploitation, dispossession, and displacement of  Indigenous peoples from their lands.9 Contact with the Europeans also spread illnesses that did not exist before in the Americas.10 While patterns of resistance emerged, as is known, the struggle ‘led to a new spatial order of the earth with new divisions’.11 The Spanish and the Portuguese ‘claims to monopoly over navigation and commerce’ and ‘their conquest of native lands in the Indies raised new questions for which new answers needed to be articulated’.12 The Iberians claimed ‘a monopoly on navigation, trade, and colonization’ over the oceans and based their claims ‘on papal investiture’.13 They also understood and presented the conquest of America, the appropriation of land and natural resources, and the destruction of the ancient civilizations of that continent as part of a much larger ‘just war’ which aimed to violently integrate the whole of humanity into a single confessional empire. Nonetheless, other nations challenged such claims.14 From the sixteenth century onwards, nations engaged in a continuing political struggle using legal arguments and sometimes violence to advance their claims to land.15 Debates emerged over whether Indigenous polities were sovereign nations; whether their different political, cultural, and religious beliefs should be respected;16 whether the conquest and economic exploitation of overseas territories was legitimate or not. Depending on the interpretation of the various legal, philosophical, and theological sources, answers to these questions differed widely.17 Moreover, because there was as no common past with

8 9

Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 439. Margaret Kohn, ‘Post-colonial Theory’, in Duncan Bell (ed.), Ethics and World Politics (Oxford: oup 2010) 200–218. 10 Carlo M. Cipolla, Conquistadores, Pirati, Mercatanti (Bologna: Il Mulino 1996) 10–11. 11 Schmitt, The Nomos of the Earth, 87. 12 Lesaffer, ‘The Classical Law of Nations (1500–1800)’, 412. 13 Id. 439. 14 Id. 440. 15 Saliha Belmessous (ed.), Native Claims: Indigenous Law against Empire, 1500–1920 (New York: oup 2012) (highlighting the resistance and strategies of the Indigenous people in the face of European expansion). 16 Dana Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ (2006–7) 8 San Diego ilj 291–343, 309. 17 Id.

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the Indigenous peoples, questions arose as to the ­applicability of the ­existing law of nations, which was based on the common legal heritage of European nations, to the newly established inter-continental relations.18 Early modern scholars were aware that such questions required specific reflection.19 The law of nations expanded along with the pursuit of Empire.20 It came to govern and to some extent limit the mutual interaction between polities on a global scale.21 At the same time, it also ‘underwent transformations more significant than a mere geographical expansion’.22 In fact, the geographical expansion of the law of nations through processes of transplantation and local transformation changed its conceptual outlook and outreach.23 In fact, the early modern law of nations did not merely constitute a tool for creating order out of disorder and restraining the excesses of warfare, but it also became a place of contestation between the imperialist claims of expansionist powers and the anti-hegemonic resistance of Indigenous peoples and other nations. In the early modern period, empire was a complex, ambiguous, and elusive notion, expressing a wide spectrum of both theories and practices of power.24 Three parallel notions of empire could be identified in state practice.25 First, the concept of empire (imperium) increasingly referred to external sovereignty (supremitas).26 Monarchs increasingly became sovereign, owing authority to no other ruler (Rex superiorem non recognoscens).27 By the middle of the sixteenth century, ‘the traditional universal powers, the Pope and the Emperor, had lost the struggle for the establishment of their supremacy in Europe’.28 Therefore, a number of European states acquired external sovereignty, no 18

Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: cup 2004) 17–23. 19 See generally James Muldoon, Popes, Lawyers, and Infidels: The Church and the NonChristian World, 1250–1550 (Philadelphia: University of Pennsylvania Press 1979) ix–x; Anghie, Imperialism, Sovereignty, and the Making of International Law. 20 Becker Lorca, ‘Universal International Law’, 478. 21 Id. 548. 22 Id. 546. 23 Id. 24 Anthony Pagden, Lords of All the World (New Haven CT: Yale University Press 1995) 12. 25 Matthew Day, ‘Imagining Empire: Richard Hakluyt’s The Principal Navigations (1598– 1600) and the Idea of a British Empire’ (2002) 3 Journeys 1–28, 6. 26 Laurent Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400– 1900 (Cambridge: cup 2010) 5. 27 Day, ‘Imagining Empire’, 6. 28 Randall H. Lesaffer, ‘The Grotian Tradition Revisited: Change and Continuity in the History of International Law’ (2003) 73 British yil 115.

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l­onger recognizing ‘a higher external authority’.29 In this regard, the idea of empire mirrored that of external sovereignty; no longer were states merely parts of a greater political entity; rather, they were perfect communities, complete in and of themselves (communitates perfectae).30 Such a conception of empire was a by-product of state formation.31 Second, the concept of empire (imperium) increasingly referred to internal sovereignty, that is, the capacity of the nation to govern itself regardless of its form and to pursue the achievement of its own destiny.32 By no means was this an automatic outcome of external sovereignty. If several states had reached external sovereignty—that is, sovereignty vis-à-vis other states—this did not necessarily mean that they had also achieved ‘full internal sovereignty’—that is, sovereignty vis-à-vis their own citizens.33 Rather, civil wars beleaguered most European countries whose governments therefore lacked complete control over their territories.34 In the attempt to overcome civil wars (bellum civile), monarchs increasingly centralized power, adopted forms of political absolutism, gradually assuming full control over their lands and metaphorically becoming ‘emperors’ in their kingdom (rex in regno suo est imperator).35 Imperium thus indicated internal sovereignty, that is, a geopolitical entity with its own administration,36 the monopoly of force within the state, and exclusive competence ‘of acting on the international scene’.37 Third, the concept of empire also indicated any form of political, economic, and military power of one nation over another.38 Immense territorial empires ruled diverse peoples in South America, Africa, and Asia.39 The Amerindian empires dissolved as Spanish conquistadores violently conquered their 29 30 31

Lesaffer, ‘The Grotian Tradition Revisited', 115. Id. 123. David Armitage, ‘The Elizabethan Idea of Empire’ (2004) 14 Transactions of the Royal Historical Society 269–277. 32 Scipionis Gentilis, De Iurisdictione Libri iii (Francofurti: typ. Wechelianis 1601) Book iii (identifying sovereignty with imperium). 33 Lesaffer, ‘The Grotian Tradition Revisited’, 127. 34 Id. 35 Day, ‘Imagining Empire’, 6. 36 Pagden, Lords of All the World, 15; Day, ‘Imagining Empire’, 15. 37 Lesaffer, ‘The Grotian Tradition Revisited’, 116. 38 Benjamin Cohen, The Question of Imperialism (London: Macmillan 1974) 16; Christian Reus-Smit, ‘Struggles for Individual Rights and the Expansion of the International System’ (2011) 65 International Organization 207–242, 216 (‘Empires are hierarchies; their defining features are the asymmetrical distribution of power between the metropolitan state and peripheral polities, and the unequal distribution of social powers between metropolitan “citizens” and colonial subjects’.) 39 Charles H. Parker, Global Interactions in the Early Modern Age (Cambridge: cup 2010) 2.

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t­ erritories. In Africa, several imperial states including the Songhay Empire exerted control over large areas. In Asia, the Ottoman, Safavid, and Mughal Empires as well as the Chinese Ming Dynasty (1368–1644) and Japanese Tokugawa shogunate (1603–1868) exercised power differently but all controlled large territories and different peoples. In the extreme North, Russian emperors had created an immense empire. In Europe, the Habsburg rulers of the Holy Roman Empire increasingly aspired to establish a universal empire.40 Nonetheless, as other states consolidated their power internally, they sought to oppose the ­Spanish hegemony and expand their power abroad. By the early seventeenth century, Dutch, English, and French maritime empires also emerged and competed over transoceanic trade routes.41 Historians have tended to use empire and states as synonyms and the difference between states and empires has often been blurry.42 For instance, ‘the imperial idea … play[ed] a vital part in the thought of the Elizabethan age’ both in terms of internal and external state sovereignty, as well as territorial expansion.43 After the defeat of the Spanish Armada and the failure of its attempt to invade England in 1588, Elizabethan foreign policy gradually shifted its focus from a defensive policy to a policy of exploration, mercantilism, and incipient expansion. In fact, ‘mercantilist theories … emphasized the accumulation of wealth … as a pillar of national security’.44 These different conceptualizations of empire reflected the emergence of modern states, the transformation of international relations, and the European expansion. In his works, Gentili mixed the law of nations and political theory in an original fashion, reflecting on peace, power, justice, and empire. At first sight, the Gentilian theory presents some normative ambivalence. While some of the elements of his system, such as humanitarian intervention and

40 41 42

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Brian Sandberg, War and Conflict in the Early Modern World 1500–1700 (Malden, MA: Polity 2016) 11–12. Id. 12. David Armitage, The Ideological Origins of the British Empire (Cambridge: cup 2000) 15; Fernand Braudel, La Méditerranée et le Monde Méditerranéen à l’époque de Philippe ii (Paris: Armand Colin 1990); Fernand Braudel, The Mediterranean and the Mediterranean World in the Age of Philip ii, 2 vols (Berkeley: University of California Press 1995) 672–673 (noting that ‘Europe was moving of its own accord towards the construction of a vast state’.). Frances A Yates, Astraea—The Imperial Theme in the Sixteenth Century (London: Routledge 1975) 38–39. Paul Keal, European Conquest and the Rights of Indigenous Peoples (Cambridge: cup 2003) 39.

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­ reventive defence could seemingly be used to advance imperial claims,45 p other elements—including the condemnation of wars based on religion or cultural diversity or the terra nullius argument—could be used to oppose empire. Such ambivalence of the Gentilian language could allow it to serve imperial and non-imperial purposes alike. Was he ‘celebrating policies of empire’?46 Or was he formulating a theory of anti-hegemonic resistance within the law of nations? The debate about the legitimacy of empire ‘was one of the most important stages in the development of modern political and legal thought’.47 It centred on the relationship between Europeans and the world, the governance of intercivilizational relations, and dramatically influenced the making of the early modern law of nations. States engaging in the conquest attempted to justify their empire and to ‘create a just basis for the same’.48 Debates about the legitimacy of conquest involved a wide range of professions and individuals, such as lawyers, theologians, geographers, merchants, and ­explorers. Opinions varied widely, not simply because of different national interests, but because of variations in religious belief, ethical vision, and legal interpretation. The debate was often ‘eclectic, drawing on a variety of sources, philosophical, theological, and legal’.49 Moreover, ‘there was a great gulf between the … theories of intellectuals on the one hand, and the practice of [states] … on the other’.50 Although European powers attempted to justify their expansion using a variety of arguments, ‘[t]he actual dynamics of the conquest, fuelled by European greed and a huge technological gap, were marked by extreme brutality and provoked a demographic catastrophe’.51 Reports of mass killings, slavery, and dispossession of land raised doubts as to the legitimacy of conquest. Critical voices cautioned against the ambitions of empire on political, economic, and ethical grounds. For instance, the Flemish philosopher and humanist Justus

45 46 47 48 49 50 51

Martti Koskenniemi, ‘Introduction: International Law and Empire—Aspects and Approaches’ in Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca (eds) International Law and Empire (Oxford: oup 2017) 1–18, 4. Id. 9. James Muldoon, ‘Medieval Canon Law and the Conquest of the Americas’, Jarbuch für Geschichte Latinamerikas (Köln: Böhlau Verlag 2000) 9–22, 11. Id. 9. Id. 16 Id. 10. Joan-Pau Rubiés, ‘The Discovery of New Worlds and Sixteenth-Century Philosophy’, in Henrik Lagerlund and Benjamin Hill (eds.) Routledge Companion to Sixteenth-Century Philosophy (London: Routledge 2017) 54–84, 70.

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Lipsius (1547–1606) highlighted ‘the perils of empire’; for the philosopher, states should focus on self-preservation rather than expansion for both political and economic reasons.52 By engaging in colonialism—that is, acquiring full or partial political control over another country, occupying it with settlers, and exploiting it economically—the colonial states would ‘forever exhaust themselves by sending out armies and colonies’.53 In a latter addressed to a Spanish correspondent, Lipsius aptly noted that ‘the New World conquered by you, has conquered you in its turn’ (Novus orbis victus vos vicit).54 Other intellectuals denounced the injustice of the conquest. The Spanish friar and historian Bartolomé de Las Casas (1484–1566) famously denounced the greed and the inhuman behaviour of the conquistadores, the unbridled exploitation of natural resources, and the suffering endured by Indigenous peoples.55 In opposing the arguments of the philosopher Juan Ginés de Sepúlveda (1490–1573), who supported the Spanish conquest of the Americas, Las Casas rejected the Aristotelian idea that some people were natural slaves and that this applied to the Indians. Rather, he denounced the violence committed by the Spaniards in the Indies.56 Not only did Las Casas condemn the falsehood of the news concerning the nature and customs of the Indians, which were full of factual errors and based on ‘mere fables’ (merae fabulae), but he also pointed out that the Spaniards lacked any legal title to the occupied lands; rather, it was the Indians who had a just cause for war, namely, self-defence, against the Spaniards.57 He concluded that any war constituted ‘an ocean of all evils’ (malorum omnium oceanus).58 The Florentine historian Francesco Gucciardini (1483–1540) and the Neapolitan philosopher Giordano Bruno (1548–1600) similarly condemned the massacres of the natives, the taking of their lands, and the injustice of

52 53 54 55 56 57 58

Halvard Leira, ‘At the Crossroads: Justus Lipsius and the Early Modern Development of International Law’ (2007) Leiden jil 65–88, 85. Id. 82 (quoting Lipsius). John H. Elliott, The Old World and the New 1492–1650 (Cambridge: cup 1970) 63 (quoting Justus Lipsius’ letter). Bartolomé de Las Casas, The Spanish Colonie, or Briefe Chronicle of the Acts and Gestes of the Spaniards in the West Indies Called the Newe World … and now first Translated into English (London: William Brome 1583) [Brevísima relación de la destrucción de las Indias 1552]. James Muldoon, The Americas in the Spanish World Order. The Justification for Conquest in the Seventeenth Century (Philadelphia: University of Pennsylvania Press 1994) 5. Luca Baccelli, ‘Guerra e Diritti. Vitoria, Las Casas e la Conquista dell’America’ (2008) 37 Quaderni Fiorentini 67–101, 85–86. Id. 87.

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­conquest.59 For both Guicciardini and Bruno, religion should not be spread through violence and force.60 Bruno also noted that the unbridled development of international commerce led to violence and conquest.61 Yet, while these and similar reflections may have haunted the European conscience, they did not halt the European expansion. Gentili wrote ‘at a time when the term empire was not yet in common usage as a description of English overseas ventures’.62 England was only a kingdom; even with the addition of Wales and parts of Ireland, it did not qualify as an empire.63 During the long Elizabethan age (1558–1603), England remained ‘militarily weak with respect to the other major European powers’,64 and continued to be on the margins of the European expansion.65 Elizabeth i’s external policy was principally defensive and the ‘British Empire’ was nothing but ‘a textual affair’66 that ‘came to occupy centre-stage only much later ... in the eighteenth century.67 Nonetheless, from the Elizabethan period on, narratives of empire also emerged.68 After Sir Francis Drake’s circumnavigation of the globe from 1577 to 59 60 61 62 63 64 65 66 67

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Filippo Mignini, ‘Temi Teologico-politici nell’Incontro tra Alberico Gentili e Giordano Bruno’, in Fabrizio Meroi (ed.) La Mente di Giordano Bruno (Florence: Olschki 2004) 111. Diego Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento (Roma: Edizioni di storia e letteratura 2010) 171. Diego Pirillo, ‘Bruno, gli Inglesi e il Nuovo Mondo’, (2004) 44 Rinascimento 49–75, 73. Lauren Benton, ‘Piracy and Politics in Gentili’s Hispanica Advocatio: Implications for an Understanding of Universal Jurisdiction’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 175. Bridget McPhail, ‘The Rich Freedoms of England: English Myths of Origin, the Common Law, and the Union of 1605’, in vvaa, Alberico Gentili—La Soluzione Pacifica delle Controversie Internazionali (Milano: Giuffrè 2003) 97–126, 105. Diego Pirillo, ‘Voyagers and Translators in Elizabethan England: Richard Hakluyt, John Florio, and Renaissance Travel Collections’, in A. Yarrington et al (eds) Travels and Translations: Anglo-Italian Cultural Transactions (Amsterdam: Rodopi 2013) 27–47, 29. Day, ‘Imagining Empire’, 1 and 5. William Howard Sherman, John Dee: The Politics of Reading and Writing in the English Renaissance (Amherst: University of Massachusetts Press 1995) 152. Diego Panizza, ‘Languages of Empire in Early Modern Political Theory: from Machiavelli’s Roman Paradigm to the Modern Empire of Commerce’, in vvaa, Alberico Gentili— Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 349–390, 355; Jennifer Pitts, Boundaries of the International—Law and Empire (Cambridge, MA: Harvard University Press 2018); Sankar Muthu, ‘Introduction’ in Sankar Muthu (ed) Empire and Modern Political Thought (Cambridge: cup 2012) 1–6, 5; Sankar Muthu, Enlightment Against Empire (Princeton NJ: Princeton University Press 2003); Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton: Princeton University Press 2010). Carole Shammas, ‘Introduction’, in Elizabeth Mancke and Carole Shammas (eds) The Creation of the British Atlantic World (Baltimore: Johns Hopkins University Press 2015) 1–16, 6.

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1580, an influential segment of the English elite including Sir Francis Walsingham, Sir Philip Sidney, and the Earl of Leicester seemed to favour an expansionist mercantilist policy to counter the hegemonic ambitions of the Spanish Empire in Europe and beyond, and secure access to the world trade.69 From the 1570s, accounts of oceanic voyages and travel literature started to be printed with some regularity.70 It was through this literature that the ‘Elizabethan audience became aware of an expanding world’.71 During the 1580s, the courtier, soldier, and explorer Sir Walter Raleigh (1552–1618) established a network of experts, geographers, and scientists in order to legitimize and promote maritime expansion.72 In 1584, Queen Elizabeth i gave him the patent ‘to discover, search, find out, and view such remote heathen and barbarous lands countries and territories not actually possessed of any Christian prince and inhabited by Christian people’.73 In parallel, the Queen chartered a number of mercantile companies, granting them monopolies to challenge the Iberian monopolies without formal direct governmental involvement. The Levant Company was chartered in 1581, the East India Company in 1600, and the Virginia Company in 1606. The chartering of mercantile companies was ‘one of the major ways in which European countries established colonial rule’.74 Chartered companies were ‘hybrid actors’: On the one hand, these companies used their private capital to establish commercial trade routes and networks in the Americas, Asia, and Africa and to maximize their profit. On the other hand, chartered companies also played key public functions and even wielded extensive armed forces in the settlements.75 By gradually ‘empowering them with military, judicial, and political powers’, England pursued wealth and power, adhering to ‘an oceanic or thalassocratic vision of empire’.76 It also gradually established colonial rule in a clear disregard of Indigenous sovereignty, conflating occupation of territories by private 69 70 71 72 73 74 75

Bruce Mcleod, The Geography of Empire in English Literature (Cambridge: cup 1999) 2. Pirillo, ‘Bruno, gli Inglesi e il Nuovo Mondo’, 54. Pirillo, ‘Voyagers and Translators in Elizabethan England’, 29. Pirillo, ‘Bruno, gli Inglesi e il Nuovo Mondo’, 54. Id. 53. James Thuo Gathii, War, Commerce, and International Law (Oxford: oup 2010) 200. Andrew Phillips and J.C. Sharman, International Order in Diversity: War, Trade, and Rule in the Indian Ocean (Cambridge: cup 2015) 11. 76 Gathii, War, Commerce, and International Law, 201; Phillips and Sharman, International Order in Diversity, 13; David Armitage, ‘The Elephant and the Whale: Empires of Land and Sea’ (2007) 9 Journal for Maritime Research 23–36. See also Martti Koskenniemi, ‘What Should International Legal History Become?’ in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 393 (noting that

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Illustration 3

 he Armada Portrait, circa 1588, Queen Elizabeth i, by an unknown T English artist, on display at the Queen’s House, Greenwich © National Maritime Museum, Greenwich, London

parties with acquisition of sovereignty, something the legal discourse ‘had kept separate since Alberico Gentili’.77 For instance, the Virginia Company Charter provided that the grantees ‘could establish settlements on lands which [were] not actually possessed by any Christian prince’.78 In other words, by chartering

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g­ overnments ‘lacked funds needed to set up an effective government over the territories’, and thus used chartered companies as intermediaries.) Anthony Pagden, ‘Empire and Its Anxieties’ (2012) American Historical Review 141–148, 146. Elizabeth Mancke, ‘Chartered Enterprises and the Evolution of the British Atlantic World’, in Mancke and Shammas (eds) The Creation of the British Atlantic World, 237–262, 241.

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mercantile companies, states were overstepping Indigenous sovereignty by allowing their subjects to appropriate land belonging to Indigenous nations and claiming sovereignty over the same land through unlawful occupation. This shift in foreign policy is also evident in the elaborate symbolic and allegoric network surrounding the famous Armada Portrait.79 Not only did the Armada Portrait of Queen Elizabeth i celebrate the defeat of the Spanish Armada in 1588, but it also depicted the Queen’s ambition for international power. On the top left of the canvas, English warships threatened the Spanish fleet, and on the top right the ‘Protestant Wind’ drove the Spanish fleet onto a rocky coast amid stormy seas. In the foreground of the portrait, Elizabeth i’s drive for international power was reflected by a number of imperial symbols. For instance, the Queen’s hand rested on a globe with her fingers covering the West Indies, indicating England’s imperialist ambitions. By 1600, ‘the elements of English maritime engagement with a wider world’ were set.80 Gravitating towards the expansionist ambitions of powerful elites, a circle of scholars, including John Dee (1527–1608), Francis Bacon (1561–1626), and Richard Hakluyt (1552–1616) advocated British maritime expansion, the conquest and colonization of the New World. A mathematician, astronomer, and advisor to Queen Elizabeth i, John Dee encouraged British imperial expansion in order to increase the security of the state.81 Not only did he promote the idea of an English overseas empire in theory, but he also influenced royal policy in practice, inter alia providing maps to explorers and adventurers.82 A philosopher, scientist, statesman, and lawyer, Francis Bacon saw colonization as a tool to relieve some internal problems of state, including overpopulation, poverty, discontent, and civil wars.83 In parallel, the humanist scholar, historian, and geographer Richard Hakluyt also advocated exploration, trade, and settlement.84 A ‘famous man in his own day, regularly called upon for his expert 79 80 81 82 83 84

See illustration 3. See also Anna Riehl, The Face of Queenship—Early Modern Representations of Elizabeth i (London: Palgrave Macmillan 2010). Benton, ‘Piracy and Politics in Gentili’s Hispanica Advocatio’, 176. John Dee, General and Rare Memorials Pertaining to the Perfect Art of Navigation (London: Iohn Daye 1577); Sherman, John Dee, 150; Armitage, The Ideological Origins of the British Empire, 105. Henry Jones, ‘Property, Territory, and Colonialism: An International Legal History of Enclosure’ (2019) 39 Legal Studies 187–203, 195. Samuel Garrett Zeitlin, War and Peace in the Political Thought of Francis Bacon, doctoral thesis (Berkeley: University of California Berkeley 2018) 7. Richard Hakluyt, Divers Voyages Touching the Discoverie of America (London: Thomas Dawson 1582) (depicting several reasons why colonizing America would be beneficial for England) and Richard Hakluyt, The Principall Navigations, Voiages, Traffiques and Discoueries of the English Nation (London: Christopher Barker 1589–1600) (chronicling efforts

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a­ dvice on oceanic navigation and overseas discovery’,85 Hakluyt considered the diffusion of Protestantism a prime reason for colonial expansion. Yet, most of his considerations had a more practical nature. While Hakluyt condemned the cruelty of the Spanish conquistadores, he relied on Aristotle’s theory of natural slavery. In addition, he considered colonization a tool for ­England to ‘solve a number of domestic social problems’, expand commerce, and counterbalance the power of the Spaniards in the Americas.86 Finally, the geographer also argued that by sending religious dissidents to the West Indies, ‘the Elizabethan authorities would easily defeat the internal opposition and restore peace in England’.87 What role did Alberico Gentili play in the debate on the legitimacy of empire and European expansion? While Tuck has argued that Gentili’s De Iure Belli was highly influential in justifying the English colonial expansion,88 Benton has cautioned that the Gentilian contribution to the debate remains ambiguous: ‘Whereas scholars have recently revealed the details of Grotius’ entanglement with Dutch interests in the East Indies, the influence on Gentili of the expanding English overseas ventures remains obscure’.89 Certainly, Gentili participated in the debate about the (il)legitimacy of conquest, highlighting the necessity of resisting the Spanish Empire.90 For Gentili, ‘the descriptions of the Spanish conquest in the New World’ propelled the fear of tyranny in Europe: he ‘saw the massacre of the American [peoples] as a possible foretelling of the risks posed by the tyranny of the Habsburg Empire in Europe’.91 Gentili was in close contact with the most influential thinkers of his age.92 For some time, Gentili and Hakluyt belonged to the same circle of intellectuals

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in navigation and exploration from antiquity to present, promoting voyages of exploration, and advocating English colonialism.). On Hakluyt, see Peter Mencall, Hakluyt’s Promise: An Elizabethan Obsession for an English America (New Haven, CT: Yale University Press 2007). David Harris Sacks, ‘Cosmography’s Promise and Richard Hakluyt’s World’ (2009) 44 Early American Literature 161–178, 161. Day, ‘Imagining Empire’, 21. Pirillo, ‘Voyages and Translators in Elizabethan England’, 37. Richard Tuck, The Rights of War and Peace. Political Thought and the International Order from Grotius to Kant (Oxford: oup 1999) 47–50. Benton, ‘Piracy and Politics in Gentili’s Hispanica Advocatio’, 176. Maria Rosa Di Simone, ‘La Guerra di Religione nel Pensiero di Alberico Gentili’, in Marta Ferronato and Lucia Bianchin (eds.) Silete Theologi in Munere Alieno—Alberico Gentili e la Seconda Scolastica (Padova: cedam 2008) 83–111, 94. Pirillo, ‘Voyagers and Translators in Elizabethan England’, 34 and 42. Id. 32 (noting that Hakluyt calls Gentili ‘our Gentili’ (Gentilis noster) in a letter to a common friend, thus ‘suggesting a close personal and intellectual friendship’.)

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at Oxford, where Hackluyt had been a member of Christ Church College.93 Both scholars belonged to the same circle of patronage too.94 At the same time, Gentili knew ‘dissidents’ such as Giordano Bruno and even helped him to obtain a lectureship at the University of Wittenberg. Gentili’s work at time converged and at time diverged from that of his contemporaries and cannot be classified among the proponents of European territorial expansion or the pure critics of the same. In order to examine and critically assess the Gentilian contribution to the debate on the (il)legitimacy of European expansion, this chapter proceeds as follows. First, it illuminates how early modern scholars addressed the challenge of diversity and tried to give coherence to the new reality of cultural and legal pluralism. Second, it briefly discusses the legal debate over the (il)legitimacy of European expansion and conquest. Third, it discusses how early modern scholars relied on the Roman model to debate the (il)legitimacy of the European expansion.95 In particular, it examines and critically assesses Gentili’s De Armis Romanis addressing the question as to whether Gentili supported hegemonic expansion or whether he had anti-hegemonic stances. Fourth, after having examined themes of external sovereignty and imperial expansion, the chapter illuminates Gentili’s theory of internal sovereignty. Such theory complements the Gentilian theory on external sovereignty and can shed further light on this enigmatic scholar. Fifth, after providing a critical analysis of the complexities of the Gentilian thought, the chapter concludes. 7.2

Cultural Diversity and the Law of Nations

Cultural diversity is a central theme in the history and theory of international law. Commercial exchanges, migratory fluxes, and cultural interactions have always occurred, and these connections have always raised the question of how diverse communities can live together and engage in peaceful, just, and prosperous relations while retaining and enjoying their cultural differences. While the challenge of governing ‘a heterogeneous world while simultaneously accommodating deep cultural, social, and religious differences’ remains a key 93 94 95

David B. Quinn, Explorers and Colonies. America, 1500–1625 (London: Hambledon Press 1990) 229. Pirillo, ‘Voyagers and Translators in Elizabethan England’, 27 (noting that Hakluyt’s 1582 Divers Voyages were dedicated to Philip Sidney). Gentili dedicated his 1585 De Legationibus to Sidney. Ileana Porras ‘Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations’ (2014) 27 Leiden Journal of International Law 641–660, 644.

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feature of international law,96 it became a particularly pressing issue in the early modern period when wars of religion, technological progress in navigation, geographical discoveries, and transoceanic encounters increased and intensified commercial exchanges, cultural interactions, migratory processes, and territorial expansion.97 Arising from early modern cultural encounters, the call on different civilizations to understand other cultures constituted a formidable epistemological challenge.98 While the medieval debate concerning cultural diversity centered on the traditional dichotomy between Christians and pagans, early modern peoples struggled to make sense of the existence of the other peoples they met. While the civilizations of Mesoamerica and Peru shortly assumed that European newcomers should be gods according to their worldviews, Chinese and Japanese representations of sixteenth-century Europeans expressed some bemusement.99 In turn, encounters with other cultures enabled Europeans to see their own culture as one among others.100 In particular, Europeans wondered whether the peoples of the New World were of a common lineage with the peoples of the Old World or a separate creation.101 Were they perfect communities that should govern themselves? Did they have natural rights? As the historian Eugenio Garin aptly put it, ‘the image that Europeans had of the other civilizations mirrored the very European soul and expressed both its good and bad conscience’.102 Whereas ‘initial contacts evoked images of paradise’, they 96

Benedict Kingsbury, ‘Confronting Difference: Alberico Gentili’s De Iure Belli (1598) and the Enduring Combination of Pragmatic Pluralism and Normative Judgment’ (1998) 92 ajil 713–723, 713. 97 David Abulafia, The Discovery of Mankind. Atlantic Encounters in the Age of Columbus (New Haven: Yale University Press 2008). 98 Ritchie Robertson ‘Introduction’, in Urs Bitterli, Cultures in Conflict: Encounters between European and non European Cultures 1492–1800, Ritchie Robertson (transl)(Stanford: Stanford University Press 1989) 1–19, at 4. 99 Cristóbal Colón, Textos y Documentos Completos : Relaciones de Viajes, Cartas y Memoriales, Consuelo Varela (ed) (Madrid: Alianza Editorial 1982) 31 (‘Ellos también tenían a gran maravilla nuestra venida y creían que éramos venido del cielo’.); Charles R. Boxer, The Christian Century in Japan 1549–1650 (London: cup 1951) 29 (reporting the opinion of a Chinese interpreter on his contemporary Europeans: ‘they eat with their fingers instead of with chopsticks such as we use. They show their feelings without any self-control. They cannot understand the meaning of written characters. They are people who spend their lives roving hither and yon. They have no fixed abode and barter things which they have for those they don’t’.) 100 Robertson ‘Introduction’, 4. 101 Abulafia, The Discovery of Mankind. 102 Eugenio Garin, ‘Alla Scoperta del Diverso: i Selvaggi Americani e i Saggi Cinesi’, in Rina­ scite e Rivoluzioni. Movimenti Culturali dal xiv al xviii Secolo (Roma/Bari: Laterza 1975) 329–362, 330 (translation of the author).

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‘developed all too often into cultural collision, raising the question of whether it is possible to understand another culture at all’.103 Europeans and their hosts each shared ‘certain images and ideas concerning other remote populations’ that they projected upon these newly discovered beings.104 Each civilization’s sense of its own cultural identity inevitably shaped its vision of others.105 Early modern theologians, philosophers, and lawyers engaged in complex debates on how to best govern interactions among peoples. As aptly noted by Anghie, international law did not precede the challenge of cultural diversity; rather, it emerged as a response to it.106 Was it possible for Renaissance humanists to imagine a truly universal international community inclusive of all human beings irrespective of their ethnic, political, religious, and cultural differences?107 Or were Europeans fundamentally unable to establish international relations within and outside their borders without the use of violence?108 Most attempts to address the challenge of cultural diversity oscillated between tolerance, paternalism, and repression.109 Among Gentili’s contemporaries, ‘two attitudes emerged’: ‘others’ were either considered as human beings and were thus expected to assimilate, or they were perceived as inferior.110 Rather than accurately understanding another culture, Europeans framed the others as ‘imperfect’ versions of themselves.111 What was denied was the existence of human beings that were truly other, with their own authentic identity, values,

103 Robertson ‘Introduction’, 5. 104 Tzvetan Todorov, The Conquest of America–The Question of the Other (Norman: University of Oklahoma Press 1999) 4–5. 105 Stuart B. Schwartz, ‘Introduction’, in Stuart B. Schwartz (ed) Implicit Understandings: Observing, Reporting, and Reflecting on the Encounters between Europeans and Other Peoples in the Early Modern Era (Cambridge: cup 1994) 1–19, 3. 106 Antony Anghie, ‘Francisco De Vitoria and the Colonial Origins of International Law’ (1996) 5 Social and Legal Studies 321–336, 321. 107 Luca Scuccimarra, ‘Societas Hominum. Cosmopolitismo Stoico e Diritto delle Genti’, in Lui­gi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli—Alberico Gentili e gli Orizzonti della Modernità (Milan: Giuffrè 2009) 29–49, 38–39. 108 Pirillo, ‘Bruno, gli Inglesi e il Nuovo Mondo’, 72–73 (noting that for the philosopher Giordano Bruno, Europe exported its internal crisis to other continents, at a time in which religious wars deeply divided it. Bruno thus considered the violence of the religious wars and the extermination of the Indigenous peoples by the conquistadores as two sides of the same coin.) 109 Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870–1960 (Cambridge: cup 2001) 88–97. 110 Todorov, The Conquest of America, 42. 111 Robertson ‘Introduction’, 7; Anghie, ‘Francisco De Vitoria and the Colonial Origins of International Law’, 323–325 (appraising Vitoria’s position on the matter).

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autonomy, and sovereignty.112 After examining the way Gentili addressed diversity in key parts of his work, this section critically assesses his approach. 7.2.1 The Challenge of Cultural Diversity Gentili’s views on the challenge of cultural diversity in international relations was ‘comparatively progressive’, relatively ‘liberal and pluralistic’.113 Gentili ‘combined a pragmatic pluralistic understanding of international society’ and ‘normative judgment’, which has ‘remained prominent in international law as a strategy for dealing with difference’.114 For Gentili, all human beings have a common origin and some common denominator. Gentili was convinced that the American and Eurasian continents were once united, hypothesizing that in ancient times the peoples of these continents were also united.115 This belief underpinned his assessment of ‘others’ as equals.116 At the same time, he acknowledged that land and climate (terrae ac caeli) influenced the character and laws of different countries, which thus varied widely.117 Therefore, Gentili attempted to devise a truly universal international community inclusive of all human beings while respecting the political, religious, and cultural differences among states.118 He equated the law of nations to the law of nature, which was not based on aprioristic truths but rather on ‘universal common sense’.119 Thus, he detected natural law by investigating the customs and practices of a wide variety of countries. By avoiding metaphysical assumptions, in which cultural biases would surface, Gentili proposed a functional, pragmatic, and concrete system ‘to enable people to co-exist’.120 He attempted to strike ‘a balance between relativism and ethical absolutism:’ on the 112 Todorov, The Conquest of America–The Question of the Other, 42; Anghie, ‘Francisco De Vitoria and the Colonial Origins of International Law’, 325. 113 Diego Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli. The Great Debate between “Theological” and “Humanist” Perspectives from Vitoria to Grotius’, nyu Institute for International Law & Justice Working Paper 2005/15 (2005) 42–43. 114 Kingsbury, ‘Confronting Difference’, 713. 115 Benedict Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo: gli Infedeli, gli Indiani d’America e la Sfida della Differenza’, in vvaa, Alberico Gentili e il Mondo Extraeuropeo (Milano: Giuffrè 2001) 11–47, 19. 116 Id. 20. 117 Gentili, De Iure Belli, Book iii, Chapter 11, p. 345 (arguing that ‘to bring about a change in the customs of Persia, a change in the climate of Persia was necessary’.) 118 Scuccimarra, ‘Societas Hominum. Cosmopolitismo Stoico e Diritto delle Genti’, 29–49, 38–39. 119 Carlo Focarelli, ‘Jus Gentium in Alberico Gentili: A Call for Prudence and the Common Sense of Humanity’ (2017) 2 Rivista di Diritto Internazionale 329–355, 355. 120 Id. 353.

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one hand, he recognized freedom of religion and cultural diversity as important values. He also acknowledged the human dignity of all human beings; for Gentili, all human beings were born to be free and held natural rights such as the right to life, not to be tortured, to have a family, and freedom of religion. On the other hand, for Gentili, gross violations of natural law, such a tyranny and the imposition of a given religion justified just wars against the others.121 Gentili elaborated a universal notion of the international community, defined as human society (societas humana) or a global commonwealth (res publica magna).122 For Gentili, nature has established ‘kinship, love, kindliness, and a bond of fellowship’ among human beings, and ‘the law of nations is based upon this association of [humankind]’.123 According to Gentili, ‘[t]his union of ours is like an arch of stones, which will fall, unless the stones push against one another and hold one another up’.124 Gentili rejected the idea that international society included only Christendom (res publica christiana); rather, he endorsed a universal vision of the international community as embracing the whole world.125 Gentili described the law of nations as the ‘law of human society’ (ius socie­ tatis humanae) or universal law, which could be applied to all people. While Gentili did not have a systematic theory of sources of international law, he nonetheless adopted a pluralist approach to international relations and made a ‘great effort’ to investigate the convergence among laws, customs, and principles belonging to different polities.126 He scrutinized historical precedents, evaluated them, and detected general principles of law on the basis of the consistent practice of the majority of nations and doctrinal authorities.127 Gentili also warned against the practice of the powerful to equate their customs with the law of nature. For him, natural law was ‘inherently culture-neutral’.128 He used a wide range of ancient, medieval, and modern sources, including Jewish and Ottoman sources, to identify the law of nations.129 For instance, he referred, inter alia, to the Ottoman practice, when discussing the protection of 121 Focarelli, ‘Jus Gentium in Alberico Gentili', 353. 122 G.H.J. Van der Molen, ‘Alberico Gentili and the Universality of International Law’ (1962) Indian Year Book of International Affairs 33–46, 35. 123 Alberico Gentili, De Iure Belli, John C. Rolfe (trans) (Oxford: Clarendon Press 1933) Book i, Chapter 15, pp. 67–69. 124 Id. 125 Id. Book i, Chapter 1. 126 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 29. 127 Id. 128 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 48. 129 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 17.

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civilians in time of war.130 Gentili acknowledged that domestic laws and cultures could vary widely, looked for common ground, and tried to build a solid yet flexible architecture to govern international relations. At the same time, he also adopted a normative stance in evaluating the evidence he found.131 Gentili argued that religious difference was not a just cause of war. While traditional doctrines alleged difference between Christians and the Infidels, and thus justified war waged on the basis of religious and cultural differences, Gentili saw freedom of religion as an individual freedom and made ‘a strong prudential argument for religious tolerance within states as a means to avoid civil war’.132 According to Gentili, no war could be justified because peoples refused to convert to a given religion. For Gentili, ‘natural enemies’ did not exist.133 Gentili rejected the view that Palestinians and the Jewish people on the one hand, and Islamists and Christians on the other, were natural enemies and destined to wage wars against each other.134 For Gentili, if wars were considered to be a natural necessity, they would be justified in any case, and this conclusion would absurd. Rather, he considered wars as political phenomena. Conflicts were not due to an imagined conflictual nature of humankind, the rotation of the stars, or destiny, but to the greed and injustice of human beings (cupiditas et iniustitia hominum).135 Not only did Gentili believe that religious tolerance could prevent war, but he suggested that interaction among different communities, such as trade, could foster dialogue, mutual understanding, peace, and prosperity.136 Not only did Gentili embrace the idea of religious freedom but he also endorsed the notion of cultural diversity. Gentili emphasized that cultural differences cannot justify war: if people ‘in another state live in a manner different from that which we follow in our own state, they surely do us no wrong’.137 With reference to the trade of the Europeans in the Indies, he highlighted the duty to respect the laws of native peoples: ‘Strangers have no right to argue about these matters, since they have no license to alter the customs and

130 Gentili, De Iure Belli, Book ii, Chapter 21. 131 Kingsbury, ‘Confronting Difference’, 717. 132 Id. 718. 133 Gentilis, De Iure Belli, Book I, Chapter 12 134 Id. p. 54. 135 Id. 136 Id. Book iii, Chapter 19, p. 401. 137 Id. Book i, Chapter 9, p. 41.

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institutions of [I]ndigenous peoples’.138 He acknowledged that Indigenous peoples were sovereign and had property rights. By denying that mere cultural differences could constitute a legitimate cause for waging war, Gentili converged with the position of Bartolomé de Las Casas and Giordano Bruno. In his 1552 Brevísima Relación, Las Casas depicted Indigenous kingdoms as ‘illustrious’ (illustria regna) ‘with great cities, sovereigns, judges, and laws’ (magnas civitates, reges, iudices, leges).139 He also denied that cultural difference could be a just cause for war; rather, for Las Casas, peoples could legitimately defend themselves against those who waged war under the pretext of ‘civilizing’ them (praetextu sapientiae).140 Although Las Casas did not appear among the Gentilian sources, Gentili might have known his work. An English translation of Las Casas’ Brevísima Relación appeared in 1583.141 Both scholars condemned the Spanish conquest as being based on illegitimate grounds. Both scholars acknowledged the sovereignty and property rights of the Indians and their right to defend themselves against the unlawful expansion of others. Both scholars considered all human beings to be born free. Like Giordano Bruno, Gentili argued that none should be subject to forced conversion to any given religion.142 Because Gentili was a ‘stranger’, he had a relatively sophisticated approach to the challenge of diversity. Gentili admitted that states could limit commerce for safety, religious, and cultural reasons. He opposed religious persecutions, noting that in several places in Europe and the Ottoman Empire different religions co-existed peacefully.143 He considered the Ottoman Empire and Indian nations as part of the international society.144 He recognized the autonomy and sovereignty of Indigenous kingdoms, and established ‘a pluralist scheme in which legal interaction between different societies is quite possible even with huge differences in such matters as religious practices, political systems, [and] 138 Gentili, De Iure Belli, Book i, Chapter 19, p. 92. 139 Baccelli, ‘Guerra e Diritti’, 92. 140 Id. 141 Bartolomé de Las Casas, The Spanish Colonie, or Briefe Chronicle of the Acts and Gestes of the Spaniards in the West Indies Called the Newe World … and now first Translated into English (London: William Brome 1583). 142 Davide Suin ‘Sovrani e Sudditi: la Riflessione di Alberico Gentili tra Assolutismo e Cosmopolitismo’ (2017) 9 Storia e Politica 255–278, 267 (noting that although Gentili did not explicitly refer to Bruno’s work, the two intellectuals met in Oxford and London in 1583–1584.) 143 Gentili, De Iure Belli, Book i, Chapter 10, p. 44. 144 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 16.

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commercial laws’.145 Most of Gentili’s contemporaries either viewed the Indians as human beings and then expected assimilation, or perceived them as inferior.146 By contrast, Gentili admitted the existence of human beings with their own cultural values, traditions, religions, autonomy, and sovereignty. As Kingsbury highlights, Gentili appreciated cultural and religious diversity and viewed the law of nations as a legal frame which enabled international relations while acknowledging ‘differences in many social practices’ (mores).147 Gentili ‘regarded law as a sufficiently neutral instrument capable of bringing some order despite and within conflicts, rather than political or cultural unity’.148 While most of his contemporaries believed in the superiority of their own culture, Gentili acknowledged the value of other cultures. With regard to Africa, in De Armis Romanis, Gentili noted that ‘nature’ separated the African and European continent by a very wide sea; treaties required both peoples to remain content with those natural boundaries; and the law of nations forbade a nation to become a source of fear to all the members of the international community. Therefore, Africa should be left ‘to the Africans, to whom nature gave it’.149 Gentili also noted exchanges of technical know-how between Africa and Europe, reporting that the Romans learned techniques, instruments, and machinery of war from the Africans.150 With regard to Asia, in De Armis Romanis, Gentili recalled that ‘somewhere in the East, when Alexander killed all the adult males who had waged a desperate fight against him and levelled their city to the ground, he was believed by the Indians to fight in the manner of barbarians and brigands; and showing respect for the opinion of these very wise and just men, he left off that behaviour thereafter’.151 In particular, with regard to China, Gentili noted that nations could restrict freedom of commerce for reasons of state, and referred to China as a positive example of such limitations.152 Another Italian refugee, Francesco Pucci (1543–1597), who lived in Oxford from 1572 to 1575, noted that Chinese political theory was more advanced than European thought.153 While 145 Kingsbury, ‘Confronting Difference’, 718. 146 Todorov, The Conquest of America, 42. 147 Kingsbury, ‘Confronting Difference’, 718. 148 Focarelli, ‘Jus Gentium in Alberico Gentili’, 353. 149 Gentili, De Armis Romanis, Book i, Chapter 13, p. 113. 150 Id. Book i, Chapter 12, p. 107. 151 Id. Book ii, Chapter 10, p. 283. 152 Gentili, De Iure Belli, Book i, Chapter 19, p. 90. 153 While Pucci is not cited in Gentili’s De Iure Belli, this does not necessarily mean that they did not meet during Pucci’s stay in Oxford. Diego Pirillo, ‘Eretici Italiani e Selvaggi

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Pucci is not cited in Gentili’s De Iure Belli, it is possible that the two crossed paths in Oxford. Moreover, information about China and other Asian polities certainly reached Europe.154 With regard to the West Indies, Gentili criticized the Spanish attempt to justify conquest on the basis of the alleged inferiority of Indigenous peoples.155 According to Gentili, human beings are not enemies by nature; rather, they are trained to become so.156 Here Gentili hinted at the idea that peace should be built in the minds of human beings and that culture and education could play a role in fostering dialogue among nations. Gentili did not adhere to the Plautus’ maxim ‘a man is a wolf to another man’ (homo homini lupus); rather, he held that ‘we were born for union and not for discord’.157 For Gentili, ‘we are by nature all akin’.158 He implicitly endorsed the Vitorian maxim homo homini homo, considering that ‘all men seem to seek the good’ (omnes appetere bonum videntur).159

­ mericani: il Nuovo Mondo nella Coscienza Protestante Italiana del Cinquecento’ (2010) A 50 Rinascimento 377–397, 388. On Francesco Pucci, see generally Giorgio Caravale, Il Profeta Disarmato. L’Eresia di Francesco Pucci nell’Europa del Cinquecento (Bologna: Il Mulino 2010). 154 An appreciation of Chinese culture was particularly evident in the work of Matteo Ricci (1552 – 1610). An Italian Jesuit priest, Ricci became an advisor to the imperial court of the Wanli Emperor, becoming the first European to enter the Forbidden City of Beijing in 1601. While formally on mission to convert Chinese people to Catholicism, Ricci appreciated Chinese culture. He was able to speak Chinese, as well as to read and write classical Chinese; he also adopted their mode of dress and sought common values between Catholicism and Confucianism. Inevitably, his attempt to forge a mutual comprehension between China and the West became controversial among Jesuits. Ronnie Po-chia Hsia, A Jesuit in the Forbidden City: Matteo Ricci 1552–1610 (Oxford: oup 2012). See also R. Bing Wong, ‘Asian Connections and Chinese Comparisons: The Unconquered East’ in Hamish Scott (ed) The Oxford Handbook of Early Modern European History (Oxford: oup 2015) 334–354, 337 (noting that ‘historians have become very aware of Chinese goods entering the material culture of early modern Europe, especially in the form of porcelains, silks, and teas’.). 155 Pirillo, ‘Bruno, gli Inglesi e il Nuovo Mondo’, 67. 156 Id. 68. 157 Gentili, De Iure Belli, Book i, Chapter 5, p. 28 (quoting Cicero). 158 Id. Book i, Chapter 12, p. 54. 159 Id. Book i, Chapter i, p. 10 (quoting Aristotle); Cfr. Fr. Baconis, De Augmentiis Scientiarum Libri ix (Amstelaedami: Ioannis Ravesteinii 1662) Book vi, p. 502 (endorsing the axiom homo homini lupus and arguing that justice should be done so that man could be a god to another man (iustitia debetur, quod homo homini sit Deus).)

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7.2.2 Slavery and Freedom Firmly connected to the anthropological idea of human beings as innately good was Gentili’s belief in the equality and freedom of human beings. Gentili rejected the Aristotelian idea of natural slavery, according to which certain peoples were inherently predisposed to be slaves; rather, he considered all human beings to be equal and free by nature and united by similarity and kinship (natura sumus cognati omnes).160 Relying on the Aristotelian theory of slavery, some of Gentili’s contemporaries, including Juan Ginés de Sepulveda (1494– 1573), attempted to justify the subjugation of the natives in the Indies.161 They contended that the natives were predisposed to slavery by nature, and that waging war against barbarians was like hunting beasts.162 In contrast, Gentili argued that ‘slavery was contrary to nature’.163 Like the French jurist and Renaissance political philosopher Jean Bodin, Gentili denied that any human being could be born into slavery or to be a slave.164 Rather, for Gentili, slavery was ‘all but death’165 and the law of nature had made men and women free.166 Under the law of nations, however, the question arose as to whether prisoners of war became the slaves of their captors. Under Roman law, ‘captives became the slaves of their captors, and according to feudal custom[,] war prisoners could be held for ransom’.167 Like the lawyer and statesman Pierino Belli (1502–1575) and the philosopher and theologian Luis de Molina (1535–1600),168

160 Gentili, De Iure Belli, Book iii, Chapter 9, p. 330; Cfr. Pope Paul iii, Sublimis Deus (The sublime God) a papal encyclical, promulgated on 2 June 1537, which recognized Indigenous peoples of the Americas as human beings, acknowledged their rights to freedom and private property, and forbade their enslavement. 161 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 20. 162 Gentilis, De Iure Belli, Book i, Chapter 12, p. 54 (reporting Aristotle’s belief that ‘the barbarians [were] created by nature to be slaves; that therefore war against them [was] just’ but considering this view incorrect.) 163 Id. Book iii, Chapter 11, p. 346. 164 Jean Bodin, Les Six Livres de la République (Lyon: Gabriel Cartier 1593). 165 Gentili, De Iure Belli, Book iii, Chapter 9, p. 328 and Chapter 11, p. 346. 166 Id. Book iii, Chapter 9, p. 331. 167 Frederick H. Russell, The Just War in the Middle Ages (Cambridge: cup 1975) 279. 168 Belli, A Treatise on Military Matters and Warfare [De Re Militari et Bello Tractatus], Part iv, Chapter i, p. 115. See also Luis de Molina, Tratado Da Justiça e Do Direito—Debates sobre a Justiça, o Poder, a Escravatura e a Guerra [1593–1609] (Lisbon: Fundaçao Calouste Gulbenkian 2012) Treatise ii, On the Law of War, p. 312; Honoré Bonet, The Tree of Battles [1431] G.W. Coopland (trans) (Liverpool: Liverpool University Press 1949) 152–153 (noting that reasonable food should be given to prisoners and that the ransom should be reasonable).

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de lege lata, Gentili denied that enslavement could be a consequence of war among Christian states.169 In antiquity and the Middle Ages, ‘prisoners of war’ were either killed or enslaved, if they could not pay a ransom. Nonetheless, the practice of enslavement gradually became obsolete among Christian states and was gradually replaced by imposing a ransom upon the prisoner.170 In general terms, Gentili considered that prisoners ought to be spared; he did not approve of perpetual imprisonment and discussed the modalities for the exchange and liberation of prisoners, including ransom, which should be moderate.171 For Gentili, slavery was ‘among the greatest ills which bef[e]ll surrendered or captured soldiers since by it one was subjected to another’s domination and reduced to the condition of a beast’.172 He noted that ‘slavery never existed among Christians’,173 and that, as a result, an enemy could not be held captive perpetually.174 However, according to Gentili, in some circumstances, the ius gentium admitted enslavement as a consequence of war.175 Gentili noted that in wars between Christians and Ottomans, prisoners would remain slaves if there was no provision for them in the terms of the peace treaty.176 Like Belli,177 Gentili admitted the practice of enslavement in the aftermath of war because, he argued, slavery was better than slaughter and extermination.178 He considered the etymology of servi, slaves, to come from servare, to save the lives of prisoners.179 While de lege ferenda Jean Bodin (1530–1596) argued that slavery should be

169 Gentili, De Iure Belli, Book iii, Chapter 9, p. 328. 170 Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter 18, p. 98; Gentili, De Iure Belli, Book iii, Chapter 8, p. 325. 171 Gentili, De Iure Belli, Book iii, Chapter 8, p. 327; Jean Allain, Slavery in International Law: Of Human Exploitation and Trafficking (Leiden: Martinus Nijhoff 2013) 37. 172 Gentili, De Iure Belli, Book iii, Chapter 9, p. 328. 173 Allain, Slavery in International Law, 38. 174 Gentili, De Iure Belli, Book iii, Chapter 9, p. 328. 175 Id. 330. See also Will Smiley, From Slaves to Prisoners of War—The Ottoman Empire, Russia, and International Law (Oxford: oup 2018). 176 Gentili, De Iure Belli, Book iii, Chapter 9, p. 332 (also noting that pirates kidnapped people from coastal communities to enslave them and sell them as slaves; thus, he did not consider pirates just enemies, but enemies of humankind.) 177 Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter 18, pp. 95 (stating that ‘things taken in war, whether animate or inanimate, bec[a]me the property of the captors’) and 98 (adding that ‘a man taken in war change[d] from a person to a thing … Such prisoners bec[a]me slaves of the captor’.) 178 Gentili, De Iure Belli, Book iii, Chapter 9, p. 331. 179 Frederick H. Russell, The Just War in the Middle Ages (Cambridge: cup 1975) 7.

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abolished,180 de lege lata Gentili admitted that slavery could be a lawful consequence of war and noted that it was a then common phenomenon.181 In the early modern period, the practice of slavery was widespread; throughout the Mediterranean and beyond, Christian and Muslim pirates would mutually capture slaves belonging to either coastal areas.182 Gentili noted that Christians who were captured by the Turks became slaves of the Turks under Islamic law.183 Since the late fifteenth century, the Ottomans demanded proof that the imported slaves were prisoners of war, but Ottoman officials regularly provided such certificates, and therefore, formal evidence of lawful acquisition became a sort of factual ‘import duty’.184 At the same time, ‘if any Turk should be captured when engaged in pillage, he would become a slave’.185 While Gentili considered all human beings to be born free and condemned slavery as a brutal practice, he acknowledged its existence and considered it a lesser evil than slaughter. He recommended that enslaved prisoners of war be treated mercifully.186 Nonetheless, Gentili admitted slavery only as a consequence of war and stressed that ‘it [was] a barbarous cruelty and injustice for anyone to be made a slave in times of peace’.187 Whereas Pierino Belli considered that enslavement 180 Diego Pirillo, ‘Schiavitù e Diritto delle Genti nel De Iure Belli di Alberico Gentili’, in Nicola Panichi (ed) Figure di ‘Servitù’ e ‘Dominio’ nella Cultura Filosofica Europea tra Cinquecento e Seicento (Firenze: Le Lettere 2010) 137–153, 139; Jean Bodin, Six Books of the Commonwealth [1576] M.J. Tooley (transl) (Oxford: Blackwell 1955) 16 (‘there can be no more cruel and detestable practice than human sacrifice. Yet, there is hardly a people which has not practised it, and each and all have done so for centuries under the cover of piety … such thing shows how little the law of nature can be deducted from the practices of men, however inveterate, and one cannot on these grounds accept slavery as natural. Again, what charity is there in sparing captives in order to derive some profit or advantage from them as if they were cattle?’). On Jean Bodin, see Howell A Lloyd, Jean Bodin, this Pre-eminent Man of France—An Intellectual Biography (Oxford: oup 2017). 181 Gentili, De Iure Belli, Book iii, Chapter 9, p. 331; Book i, Chapter 6, p. 33. 182 Kemp, ‘Globalized Piracy and International Law’, 365; Joshua M. White, Piracy and Law in the Ottoman Mediterranean (Stanford, CA: Stanford University Press 2018) 2 and 7 (noting that both corsairs from North-African city-states of Algiers, Tunis, and Tripoli and Christian corsairs including the Knights of Saint John of Malta and the Knights of Saint Stephen conducted raids and ‘carried thousands into captivity’.) 183 Gentili, De Iure Belli, Book iii, Chapter 9, p. 332. 184 Paul Finkelman and Seymour Drescher, ‘Slavery as Problem in International Law’, in Oli­ vier Moréteau, Aniceto Masferrer, and Kjell A. Modéer (eds) Comparative Legal History (Cheltenham: EE 2019) 284–301, 297. 185 Gentili, De Iure Belli, Book i, Chapter 12, p. 56. 186 Id. Book iii, Chapter 9, p. 331 and 333; cfr. Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter 12, p. 85. 187 Gentili, De Iure Belli, Book i, Chapter 12, p. 56.

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(servitus) could take place not only in war, but also among peoples with ‘no ties of friendship or hospitality’,188 contending that ‘with good right, the Spaniards enslaved those Indians of the West, who live far away from our world’,189 for Gentili, war, enmity, and slavery were not natural phenomena, that is, phenomena dictated by nature.190 Thus, he rejected the theory of natural slavery which the Spaniards unjustly used to justify their enslavement of the Indians.191 For Gentili, slavery was due to the greed and injustice of human beings (cupiditas et iniustitia hominum).192 As a 1573 Ottoman-Venetian treaty prohibited the enslavement of either side’s subjects,193 he concluded that Christians ‘ought not to make war upon the Turks when they [we]re … keeping the peace’, but only when they ‘act[ed] as enemies’.194 The legal systems of the time did not condemn slavery or the slave trade. The contractual and treaty instruments (asiento) on the basis of which Spain organized the transatlantic slave trade from the sixteenth century onwards did not question the legality of the slave trade per se, but merely detailed what were considered lawful means of acquisition.195 Historians estimate that before 1640, 90 percent of the roughly 800,000 enslaved Africans reached the

188 Belli, A Treatise on Military Matters and Warfare, Part ii, Chapter 12, p. 85. 189 Id. 190 Gentili, De Iure Belli, Book i, Chapter 12, p. 56. 191 Pope Paul iii’s encyclical Sublimis Deus of 29 May 1537 often referred to as the Magna Charta of the Indians forbade the enslavement of Indigenous peoples and the seizure of their property (‘the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and ... they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved’.) Spain formally proscribed Indian slavery in 1542. See Joyce E. Chaplin, ‘Enslavement of Indians in Early America’, in Elizabeth Mancke and Carole Shammas (eds) The Creation of the British Atlantic World (Baltimore: Johns Hopkins University Press 2015) 45–70, 48. 192 Gentili, De Iure Belli, Book i, Chapter 12, p. 54. 193 White, Piracy and Law in the Ottoman Mediterranean, 2. 194 Gentili, De Iure Belli, Book i, Chapter 12, pp. 56–57. 195 Georges Scelle, La Traité Négrière aux Indes de Castille—Contrats et Traités d’Assiento Vol. i (Paris: Sirey 1906) 711; Georges Scelle, ‘The Slave Trade in the Spanish Colonies of America: The Assiento’ (1910) 4 ajil 612–661. For a critical appraisal of Scelle’s work, see ­Anne-Charlotte Martineau, ‘Georges Scelle’s Study of the Slave Trade: French Solidarism Revisited’ (2017) 27 ejil 1131–1151.

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Americas in Portuguese ships;196 they usually trace the beginning of slavery in Anglophone America to the year 1619.197 With regard to the Iberian Empire, Luis Molina’s treatise On Slavery (1593– 1609) provided a legal account of the contemporary slave trade that was taking place from the African coast to the Americas.198 Through his discussions with Portuguese traders, Molina acquired detailed knowledge of the slave trade in which slaves would be captured along the African coastline and then transported to Brazil. He also briefly mentioned slave-trading practices in India and Asian countries. De lege lata, Molina opined that lawful ways of enslavement were being a captive of war, through sale, or being born into slavery.199 While he admitted the overall legitimacy of slavery provided that titles existed,200 he argued that the slave trade ‘met none of these conditions’; for Molina ‘it was nothing but the iniquitous treatment of one’s fellow human being’.201 Instead, he considered that by virtue of their creation in the imago Dei, all peoples were equal, and de lege ferenda, he argued forcefully in favour of the liberation of slaves.202 Analogously, after having been a slave owner, the theologian Bartolomé de Las Casas (1484–1566) eventually condemned the enslavement of the Indians.203 After having suggested that Spain substitute African slaves for Indians, he repented and powerfully opposed all slavery in the Spanish Empire theorizing the innate freedom of all peoples (omnium una libertas).204 Gentili’s treatise did not refer to the slave trade, and whereas he held that the child of a slave woman was a free person, it is not possible to infer from this

196 James Horn and Philip D. Morgan, ‘Settlers and Slaves—European and African Migrations to Early Modern British America’, in Elizabeth Mancke and Carole Shammas (eds) The Creation of the British Atlantic World (Baltimore: Johns Hopkins University Press 2015) 19–44, 20 (noting, at 26, that ‘two out of three African migrants became slaves through kidnapping or as prisoners of war.’) 197 Chaplin, ‘Enslavement of Indians in Early America’, 55. 198 Luis de Molina, Tratado Da Justiça e Do Direito—Debates sobre a Justiça, o Poder, a Escravatura e a Guerra [De Iustitia et Iure, 1593–1609] (Lisbon: Fundaçao Calouste Gulbenkian 2012) Treatise iii, On Slavery, pp. 312–325. 199 Id. pp. 312–325. 200 Id. p. 342. 201 Kirk R. MacGregor, ‘Luis de Molina’, in Rafael Domingo and Javier Martínez-Torrón (eds) Great Christian Jurists in Spanish History (Cambridge: cup 2018) 191–208, 205. 202 Id. 204–205. 203 Kenneth Pennington, ‘Bartolomé de Las Casas’, in Rafael Domingo and Javier Martínez– Torrón (eds) Great Christian Jurists in Spanish History (Cambridge: cup 2018) 98–114, 108. 204 Pennington, ‘Bartolomé de Las Casas’, 111; Ignatio de la Rasilla, ‘Bartolomé de las Casas: A Radical Humanitarian in the Age of the Great Encounter’, in Kasey McCall-Smith, Jan Wouters, and Felipe Gomez Isa (eds) The Faces of Human Rights (Oxford: Hart 2019) 1–8, 7.

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statement any general stance on the matter. It was not until the e­ ighteenth century that opposition to slavery gradually took central stage in international legal discourse.205 Nonetheless, Gentili argued that the Aristotelian theory of natural slavery and religion were being used as pretexts for legitimizing the Spanish conquest of the New World.206 Given that the Spaniards aimed at subjecting the natives to slavery and conquering their lands, Gentili viewed the Spanish conquest as a clear example of an unjust war.207 He did not merely condemn the inhuman treatment of the natives, but he seemed to denounce the economic exploitation and domination of the New World, and considered it not only morally wrong but also contrary to the law of nations. If the Spaniards, Gentili argued, aimed to establish commercial relations with the natives, they could defend this right even with force.208 However, their aim was not to establish commercial relations with the natives; rather, they sought to dispossess them of their lands and deprive them of their sovereignty and natural rights.209 Thus, their wars against the Indians were unjust.210 Therefore, if the legal tradition did not provide Gentili with a long list of antislavery arguments, he nonetheless affirmed the illegitimacy of conquest. 7.2.3 Gross Violations of Natural Law There are some conservative arguments in the Gentili’s theory.211 Although, as mentioned, Gentili endorsed some cultural and religious pluralism, often relying on a plurality of sources and majoritarian consent among these, in case of an irreconcilable conflict of norms, he believed in the primacy of his own cultural values.212 He even admitted coercion to bring about his vision of morality. For Gentili, customs and practices of an abominable kind, offences against humankind, and the ‘common law of humanity’ constituted a legitimate cause of war ‘to avenge our common nature’: ‘For they do not deserve to be called men,

205 Seymour Drescher and Paul Finkelman ‘Slavery’, in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law (Oxford: oup 2012) 890–916, 901. 206 Gentili, De Iure Belli, Book i, Chapter 12, p. 55. 207 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 182. 208 Gentili, De Iure Belli, Book i, Chapter 19, p. 89. 209 Id. 210 Id. Book i, Chapter 12, p. 55 211 Kingsbury, ‘Confronting Difference’, 722. 212 Id. 723.

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who divest themselves of human nature’.213 Gentili maintained the legitimacy of a war undertaken to redress gross violations of natural law, such as piracy, cannibalism, and human sacrifices. According to Gentili, the protection of the international community constituted the primary source of legitimation of war. Not only was his position ‘interventionist’, as it could be used to legitimize intervention in the affairs of other states, but it also possibly universalized some aspects of the European moral vision.214 Gentili’s position on humanitarian intervention diverged from Las Casas’ view on the matter. For both Gentili and Las Casas the crimes of individual persons should not be considered to be just causes for waging public wars; rather, any prosecution should be left to the local sovereign.215 Nonetheless, for Gentili the reported scale of cannibalism could justify war if the state failed to prevent its occurrence. As Gentili never went to the Americas, he thus relied on accounts of the discoveries which did not accurately or fairly depict Indige­ nous peoples and their worldviews.216 Instead, Las Casas, who had spent time in the Indies, warned that the scale of the genocide committed by the conqui­ stadores far outweighed any possible human sacrifice, and that it was difficult

213 Gentili, De Iure Belli, Book i, Chapter 25, p. 125. 214 Vincenzo Lavenia, ‘Alberico Gentili: i Processi, le Fedi, la Guerra’, in Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli (Milan: Giuffrè 2009) 192. 215 Baccelli, ‘Guerra e Diritti’, 93. 216 See, ex multis, Antonio Pigafetta, Magellan’s Voyage: A Narrative of the First Circumnavigation [Relazione del Primo Viaggio Intorno al Mondo, first published 1550–9] R.A. Skelton (transl.), vol. 1 (New Haven: Yale University Press 1969) 45 (speaking of ‘men, as tall as a giant … called Canibali, who eat human flesh’.); Thomas Harriot, A Brief and True Report of the New Found Land of Virginia (London: 1588) (reporting on the natural resources of Americas); William Shakespeare, The Tempest [1610–1] (London: Macmillan 2008) i, ii, 333–334, 343–344 (in which the expropriated and enslaved Caliban points out: ‘This island’s mine, by Sycorax my mother,/which you took from me … /I am all the subjects that you have /which first was my own King’.); Francis Bacon, A Letter of Advice to the Duke of Buckingham, George Villiers [c. 1623] (London: Printed for R.H. and H.B. 1661) 11 (urging the duke to ‘make no extirpation of the natives under the pretence of planting religion: God surely [would] no way be pleased with such sacrifices’.) See also Susan Scafidi, ‘Old Law in the New World: Solórzano and the Analogical Construction of Legal Identity’ (2003) 55 Florida Law Review 191–204, 198 (reporting that a widely circulated letter attri­ buted to Columbus celebrated the native people as gentle and lacking any ill will, but also warned against certain islands inhabited by cannibals and arguing that ‘although simplistic and inaccurate, Columbus’ words laid the foundations for two competing theories regarding the nature of the Indians’: either they were fellow human beings or they were savage).

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to distinguish the perpetrators of ­atrocities from their alleged punishers.217 For Las Casas, the latter were even more ‘barbarian’ than the former.218 Some of the reasons that used to justify military intervention were culture bound, reflecting some specific European idiosyncrasies of the time. For instance, Gentili admitted that war could be waged against atheists, that is, those who ‘[we]re wholly without religious belief’ and sodomites.219 This seems contradictory, because Gentili also advocated religious freedom and cultural pluralism; nonetheless, for Gentili to abide by some religion was a fact of nature.220 Yet, he also hastened to add that ‘no nation exist[ed] which [wa]s wholly destitute of religion’.221 Moreover, Gentili allowed the occupation of uncultivated land as a means to acquire property.222 Although he subordinated such acquired property to the sovereignty of the local sovereign,223 one may wonder whether by admitting the acquisition of uncultivated lands he impli­ citly universalized the western agricultural model and disavowed the existence of other economic and cultural forms of land use.224 Gentili also admitted that a total ban on commerce or navigation was a just cause to wage war as both freedom of commerce and freedom of the sea were functional to the common good of human society.225 Such conservative aspects of the Gentilian thought could easily play into the hands of the powerful. Nonetheless, Gentili’s thought also contained ‘anti-colonialist’ arguments.226 In explaining his theory of intervention, Gentili did not consider it as a tool of oppression and conquest; rather, he conceptualized it as a form of honest war, in defence of oppressed states, without involving any transfer of

217 Baccelli, ‘Guerra e Diritti’, 93. 218 Id. 219 Gentili, De Iure Belli, Book i, Chapter 9, p. 41. 220 Id. 221 Id. 222 Id. Book i, Chapter 17. 223 Id. 224 Diego Panizza, ‘Diversità Culturale e Diritto delle Genti: alle Origini del Paradigma Eurocentrico’, in Benedict Kingsbury (ed) Alberico Gentili e il Mondo Extraeuropeo (Milano: Giuffrè 2001) 51–96, 81. 225 Id. 79 (nonetheless admitting restrictions to freedom of commerce for reasons of state, public safety, and cultural integrity.) 226 Id. 57; Kingsbury, ‘Confronting Difference’, 722.

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land.227 Gentili was aware that there might be abuses of law.228 He knew that states would rarely intervene in the domestic affairs of others unless they stood to gain economic and political advantages by doing so. Moreover, as Kingsbury puts it, ‘force may achieve … short term objectives such as … the removal of a particular tyrant, but outside powers … are ordinarily unwilling to commit forces on a scale or for a duration sufficient to have even a prospect of … bringing peace to bitterly divided societies’.229 However, the fact that a norm could be abused did not mean that its intrinsic ratio (in casu, protection of the vulnerable) automatically ceased to exist.230 In other words, the Gentilian theory of intervention seemed to be genuinely aimed at ensuring the safety and survival of oppressed peoples. Gentili legitimized intervention against states not on the grounds of religious or cultural diversity, but in cases involving gross violations of the law of nature and/or tyrannical behaviour. Gentili published his Commentationes De Iure Belli in 1588 and his De Iure Belli in 1598, when there was good reason to fear that the Spanish Empire would dominate in Europe and the entire world.231 For Gentili, the protection of common security meant a resolve to confront hegemonic powers. Gentili was not a relativist, resigned to tyranny or indifference; for him, such relativism would amount to ‘an abdication of responsibility for basic human values’.232 Instead, he conceptualized an ‘obligation to resist injustice [which could] occur in every sphere of human relations and in all societies and cultures’.233 The perpetration of atrocities, crimes against humanity, and the state failure to protect its population from these crimes justified intervention. Among different cultures, Gentili denied that cultural diversity and religious difference inevitably led to conflict; on the contrary, he postulated that only tyrants would seek to reduce religious pluralism and cultural diversity, thus justifying the humanitarian intervention of other states. Gentili visualized the international community as a cosmopolitan city, ‘a place where people and cultures from … all partes of the world cohabit[ed] in more or less peaceful coexistence’.234 227 UN Charter Article 51. 228 Catherine Lu, ‘The One and Many Faces of Cosmopolitanism’ (2000) 8 Journal of Political Philosophy 244–267, 253. 229 Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 ejil 599–625, 620. 230 Gentili, De Iure Belli, Book, i, Chapter 6, p. 33 (‘the law is not to blame but its application’). 231 Lavenia, ‘Alberico Gentili: I Processi, le Fedi, la Guerra’, 194–195. 232 Lu, ‘The One and Many Faces of Cosmopolitanism’, 263. 233 Id. 234 Id. 262.

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Gentili’s ethos centred on the notion of human unity, common vulnerability, and the need for a united front against power-seeking states. The common humanity requires not only that one does no harm to others (avoiding active injustice) but also that one prevents or stops acts of wrongdoing and alleviates human suffering (avoiding passive injustice).235 For Gentili, being indifferent to the unjustified oppression of others meant being complicit with injustice. Far from conceptualizing the so-called ‘standard of civilization’, a construct that distinguishes between civilized and uncivilized peoples, Gentili recognized that humanity is one and many at the same time. In fact, the unity of humankind did not entail sameness; rather, it was based on plurality and cultural diversity. Gentili acknowledged both cultural diversity and the natural bonds of affinity among human beings. In particular, Gentili acknowledged that Indians were born free and equal in dignity and rights. They were entitled to sovereignty (dominium iurisdictionis) and property (dominium rerum). Gentili judged Indigenous peoples as fully capable of governing kingdoms. This was far from being a universal view at the time. For instance, the Spanish jurist Juan de Solórzano y Pereira (1575–1655) analogized the status of Indigenous peoples to that of ‘miserables’ (miserabiles personae), such as widows, orphans, and others needing special protection.236 Analogously, for Vitoria, Indigenous peoples were unable to govern themselves.237 Gentili rejected the terra nullius argument by acknowledging the sovereignty of the Indigenous peoples over their lands. He categorically ­excluded that any sovereignty over their lands could be acquired through occupation. Religious and cultural difference did not justify war against them either.238 Moreover, for Gentili, nations could limit commerce for protecting public ­order, or for religious and cultural reasons. Gentili allowed wars against the Indians if they practiced human sacrifices to save the prospective victims, 235 Lu, ‘The One and Many Faces of Cosmopolitanism’, 264. 236 See Scafidi, ‘Old Law in the New World’, 200. See also Juan de Solórzano y Pereira: De Indiarum Iure sive de Iusta Indiarum Occidentalium Inquisitione, Acquisitione et Retentione [1629] (Madrid: Consejo Superior de Investigaciones Científicas 2001) Book ii. 237 See Francisco de Vitoria, On the American Indians [De Indiis, 1539], in Anthony Pagden and Jeremy Lawrance (eds) Political Writings (Cambridge: cup 1991) question 1, conclusion, para. 23 (interpreting Aristotle’s theory of natural slavery as requiring that ‘those who are by nature less intelligent … need others to govern and direct them … like children [are subordinate] to their parents until they reach adulthood, and like a wife to her husband’.); question 3, article 8 para. 18 (considering barbarians as ‘unsuited to setting up or administering a commonwealth both legitimate and ordered’ due to ‘their lack of letters, … of systematic agriculture, of manufacture’ and concluding that ‘for their own benefit the princes of Spain might take over their administration’.) 238 Gentili, De Iure Belli, Book i, Chapter 12, p. 55 and Chapter 25, p. 123.

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but denied the legitimacy of the Spanish conquest on most grounds. Gentili implicitly held that Spain’s opponents, including Indigenous polities, were entitled to self-defence and even preventive war. 7.2.4 Critical Assessment The scholarly assessment of Gentili’s theory on cultural diversity is divided. Some scholars consider him to have contributed to intellectual justifications for European expansion, and to be a proponent of Eurocentric values, and political and ‘cultural imperialism’.239 For instance, some argue that Gentili fundamentally endorsed Christian values and made ‘normative judgments based on his own moral universe, a universe that was not coextensive with international society as he conceived it’.240 For others, the depiction of Gentili as a supporter of colonialism is too hasty, simplistic, and ultimately, deceptive.241 Although Gentili had an influence on the expansion of commercial exchanges through his support of the notions of the freedom of the sea and freedom of commerce, this does not necessarily imply imperialism; commercial exchanges by sea have taken places on all continents for ages. Humans seem disposed to wander, travel, explore new regions, and engage in commerce. This disposition often responds to certain vicissitudes, including famine and drought.242 By endorsing the freedom of commerce and the freedom of the sea, Gentili defended international maritime practices that have always existed, not only in Europe but worldwide. For ­Gentili, people share the earth with other people who may have different ways of doing things. Each person has the right to approach others with a view to engaging in commerce. Although this right is often abused, still ‘such abuse cannot annul the right of citizens of the world to try to establish community with all [others] ’.243 Gentili’s concept of the freedom of the sea was a ­structured response to hegemonic attempts to maintain an empire over the oceans. Considering him a champion of imperial expansion runs against his elaboration of the balance of power,244 his invectives against wars waged for greed and power, 239 Panizza, ‘Diversità Culturale e Diritto delle Genti’, 82–83. 240 Kingsbury, ‘Confronting Difference’, 720; Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 46 (arguing that that ‘the value of civilization’ has ‘always played a crucial role in sustaining the ethic of empire’). 241 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 24. 242 Jeremy Waldron, ‘What is Cosmopolitan?’ (2000) 8 Journal of Political Philosophy 227–243, 237. 243 Id. 238 (quoting Immanuel Kant, The Metaphysics of Morals, in Immanuel Kant, Political Writings, 137). 244 Gentili, De Iure Belli, Book i, Chapter 14.

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and the anti-hegemonic stance that pervaded his De Iure Belli. As Kingsbury notes, the English debate on expansion really began decades later and did not centre on the Gentilian arguments for the repression of unnatural practices (cannibalism),245 refusal of commerce, or even occupation of vacant lands with the approval and under the sovereignty of the domestic rulers.246 Rather, as is known, the colonialists were more interested in arguments of t­ erra nullius, which Gentili expressly rejected. Gentili acknowledged that ­Indigenous peoples were sovereign and had property rights, and also recognized their right to limit commerce for reasons of safety, and—more f­undamentally— their right to self-defence. Instead, colonial powers viewed the Americas and most of the African and Australasian territories as ‘ownerless territories; for the native inhabitants were counted as nothing’.247 With regard to humanitarian intervention, this can obviously give rise to abuses. Gentili was aware of this, but he did not suggest using it for imperial purposes; quite the opposite, he conceived of humanitarian intervention as a tool to fight hegemonies and tyrannies. In the Gentilian system, humanitarian intervention could take place against any state infringing the law of nations, irrespective of its religion. In fact, Gentili argued in favour of humanitarian intervention in the Low Countries when the Dutch were fighting for their independence against Spain. Gentili based humanitarian intervention on the idea that the weak should be protected if one powerful nation attacked a vulnerable polity or if domestic tyrants abused their citizens to such an extent as to endanger their own most fundamental rights and freedoms. States should intervene if domestic rulers abused their sovereignty or if a powerful state attacked another for reasons of greed or empire. Relying on Cicero, Gentili saw failure to prevent an injustice as a form of injustice itself.248

245 Cfr. Jill Lepore, Encounters in the New World: A History of Documents (New York: oup 2000) (reporting John Smith’s account of cannibalism among the British residents of Jamestown, the first permanent British settlement, established in 1607). 246 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 24. 247 Martha Nussbaum, ‘Duties of Justice, Duties of Material Aid: Cicero’s Problematic Legacy’ (2000) 8 Journal of Political Philosophy 176–206, 179 (citing Immanuel Kant, Perpetual Peace, in Immanuel Kant, Political Writings (Cambridge: cup 1991) 106.) 248 Id. 194 (quoting Cicero, De Officiis, Book I: ‘there are two types of injustice: one committed by people who inflict a wrong, another by those who fail to ward it off from those on whom it is being inflicted, although it is in their power to do so … the person who does not provide a defence or oppose the injustice, if he can, is just as blameworthy as if he had deserted his parents or his friends or his country’.)

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More fundamentally, Gentili recognized human unity and offered a compelling view of how different civilizations could meet ‘on terms of humanity, justice, and tolerance, which are the foundations of perpetual peace’.249 He conceptualized a notion of justice that could work not only for the fair-minded but also for strangers. Among different cultures, he was familiar with the transformation that comes from new and unexpected combinations of human beings, cultures, and ideas. Gentili’s condemnation of religious wars did not merely relate to wars waged between Christians; rather, Gentili condemned all wars of religion, even those waged between different faiths (be they Christian, Islamic, Jewish or other) thus admitting religious pluralism both within and beyond Europe. Likewise, Gentili elaborated an intellectual architecture to respond to the challenge of diversity based on cultural pluralism; international justice; and the pursuit of peace, prosperity, and the common good.250 Gentili’s inclusive pluralism to the challenge of cultural diversity can be seen as ‘the most meaningful and lasting contribution’ of his system to the history and theory of international law.251 In conclusion, Gentili believed in the universality of international law as a legal order. His work contains a tension between the universality of international law and the potential for abuse of the system. While some view Gentili as contributing to the legitimation of European oversea expansion, others have praised his pluralism ‘as ahead of its time’.252 ‘That discordant assessments of Gentili’s doctrines readily coexist is indicative of the effective and stable’, if imperfect, ‘operation of his combination of pragmatic pluralism and normative judgment’.253 7.3

The (Il)legitimacy of European Expansion

The debate about the legitimacy of European expansion centered on the relationship between Europeans and the World and the governance of international relations. It dramatically influenced the making of the early modern law of nations. States engaging in the conquest attempted to justify their empire

249 250 251 252 253

Lu, ‘The One and Many Faces of Cosmopolitanism’, 265. Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 45. Panizza, ‘Diversità Culturale e Diritto delle Genti’, 57. Kingsbury, ‘Confronting Difference’, 722. Id. 723.

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and to formally ‘create a just basis for the same’.254 Debates involving the legitimacy of conquest occupied not only lawyers but also theologians, geographers, merchants, and explorers. Although scholars drew on common philosophical, theological, and legal sources,255 their opinions diverged to a significant extent not simply because of different national interests, but because of variations in religious belief, ethical vision, and legal interpretation. This section focuses on the debate over the (in)justice of conquest in light of natural law. The law of nations was deemed to reflect natural law, thus being ‘a source of rights and duties attaching to human beings as such—throughout the world as a whole’.256 In order to detect the content of natural law and the law of nations, early modern scholars ‘made ample use of private law analogies’ derived from civil and canon law.257 Gentili contributed to the debate about the (il)legitimacy of conquest. He did not address the issue in a systematic fashion; rather, one can infer his position by analysing different parts of his De Iure Belli258 and the De Armis Romanis.259 For instance, Gentili examined issues relating to the European conquest when he discussed the various reasons for waging war in his De Iure Belli. ­Although the De Armis Romanis is a theoretical discussion on the (in)justice of the Roman empire, it can be considered an allegory, and has been used to detect the Gentilian stance on the debate about the (il)legitimacy of conquest. Although Gentili was in close contact with the most influential intellectuals of his time, he developed a distinctively autonomous approach. In fact, his work at time converged and at time diverged from that of his contemporaries and cannot be easily classified among the proponents of expansion or the pure critics of the same. 254 James Muldoon, ‘Medieval Canon Law and the Conquest of the Americas’, Jarbuch für Geschichte Latinamerikas (Köln: Böhlau Verlag 2000) 9–22, 9. 255 Id. 16. 256 Hedley Bull, ‘The Emergence of a Universal International Society’, in Hedley Bull and Alan Watson (eds) The Expansion of International Society (New York: oup 1984) 119. 257 Randall Lesaffer, ‘Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription’ (2005) 16 ejil 25–58. 258 Alberici Gentilis, De Iure Belli Libri Tres (Hanau: excudebat Guilielmus Antonius 1598); Alberici Gentilis, De Iure Belli Libri Tres, Thomas E. Holland (ed.) (Oxonii: Typographo Clarendoniano 1877); Alberico Gentili, De Iure Belli Libri Tres [1612] John C. Rolfe (transl) (Oxford: Clarendon Press 1933). 259 Alberici Gentilis, De Armis Romanis et Iniustitia Bellica Romanorum Libri ii (Hanau: apud Guilielmum Antonium 1599); Alberico Gentili, The Wars of the Romans—A Critical Edition and Translation of De Armis Romanis, Benedict Kingsbury and Benjamin Straumann (eds.) David Lupher (trans.) (Oxford: oup 2011).

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In order to examine and critically assess the Gentilian contribution to the debate on the (il)legitimacy of European expansion, this section investigates the Gentilian thought in an analytical fashion, focusing on the range of legal arguments usually employed by Gentili’s contemporaries on the (il)legitimacy of conquest. These arguments include: (1) invention (ius inventionis); (2) occupation of vacant lands (occupatio vacuorum); (3) proselytism (ius praedicandi); (4) freedom of movement (ius peregrinandi); and (5) preventing or putting an end to gross violations of natural law. This section illuminates Gentili’s stance on these various arguments contrasting it with that of his contemporaries. While his line of argument was based on the civil law tradition and relied on analogies drawn from it, Gentili also departed from civil law, attempting to strike a balance between national interests and those of the international community.260 7.3.1 Discovery The doctrine of discovery (ius inventionis) played a central role among the arguments supporting the European conquest.261 Sovereigns often employed this doctrine to justify empire, claiming rights to territory on the basis of prior discovery. For instance, Spain based its claim to the New World on the right of discovery, which also prominently appeared in Pope Alexander vi’s bull Inter Coetera.262 Queen Elizabeth’s Charters to the adventurers Sir Humphrey Gilbert (1539–1583) and Sir Walter Raleigh (1552–1618) also relied on arguments of discovery, almost paraphrasing the papal bull in some relevant aspects. While the Queen rejected the validity of the bull’s donation of the New World to the Iberian Empire, her charters still relied on arguments of discovery. Nonetheless, scholars questioned the legitimacy of title based upon discovery.263 The Spanish theologian Francisco de Vitoria (1483–1546) rejected this doctrine, claiming that discovery could not be a lawful argument for c­ onquering 260 Diego Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis in Alberico Gentili’s De Iure Belli’ (2009) 30 Grotiana 88–106, 104. 261 Giuseppe Tosi, ‘La Teoria della Guerra Giusta in Francisco de Vitoria e il Dibattito sulla Conquista’ (2006) Jura Gentium 1–17, 3. 262 Alexander vi, bull Inter Caetera, 4 May 1493 (‘should any of said islands have been found by your envoys and captains, [we] give, grant, and assign to you and your heirs and successors … forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and the south.’) 263 Andrew Fitzmaurice, ‘Discovery, Conquest, and Occupation of Territory’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law (Oxford: oup 2012) 840–859, 841.

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lands.264 Gentili agreed with Vitoria, noting that ‘mere discovery of territories did not bestow title’.265 The mere fact of discovering a territory did not mean that such territory belonged to none.266 Because the lands in question had their sovereigns and their owners, they were not res nullius (nobody’s thing), and the Europeans could not appropriate them.267 In conclusion, both Vitoria and Gentili argued, the argument of discovery provided no support for the acquisition of the New World, ‘any more than it would if [Indigenous peoples] had discovered us’.268 Following the distinction between land and sea under Roman property law, Gentili also clarified that the high seas were common to all (res communis), could not be acquired by possession or occupation, and could not be subject to private or public property claims.269 The Gentilian theory differed from the official Elizabethan policy. Queen Elizabeth’s Charter to Sir Humphrey Gilbert of 11 June 1578 granted him ‘all the soil of all such lands, countries and territories to be discovered … with full power to dispose thereof … according to the order of the laws of England’.270 Only ‘remote, heathen, and barbarous lands, countries and territories not actually possessed of any Christian prince or people’ were targeted.271 After Sir Gilbert reached Newfoundland and soon determined that the site was not suitable for the settlement, the Queen granted a new charter to his half-brother, Sir Walter Raleigh.272 Raleigh soon planted settlements on Roanoke Island, but the ongoing war with Spain prevented continuous relations with the metropole, and the disappearance of the colonists proved the colonial experiment to be a failure.273 Despite the failures of these early colonial attempts, these charters 264 Lauren Benton and Benjamin Straumann, ‘Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice’ (2010) 28 Law and History Review 1–38, 15. 265 Id. 266 Gentili, De Iure Belli, Book i, Chapter 19. 267 Francisco de Vitoria, On the American Indians [De Indiis, 1539], in Anthony Pagden and Jeremy Lawrance (eds) Political Writings (Cambridge: cup 1991) question 2, article 3. 268 Id.; cfr. Gentili, De Iure Belli, Book i, Chapter 19, p. 89 (criticizing the conquistadores for regarding it ‘as beyond dispute that it was lawful to take possession of those lands which were not previously known to us; just as if to be known to none of us were the same thing as to be possessed by no one’.) 269 Benton and Straumann, ‘Acquiring Empire by Law’, 15. 270 Henry Jones, ‘Property, Territory, and Colonialism: An International Legal History of Enclosure’ (2019) 39 Legal Studies 187–203, 187. 271 Elizabeth i, Charter to Sir Humphrey Gilbert of 11 June 1578, reprinted in William S. Powell, ‘An Elizabethan Experiment’, in Lindley S. Butler and Alan D. Watson (eds) The North Carolina Experience: An Interpretive and Documentary History (Chapel Hill: University of North Carolina Press 1984) 29–52, 36. 272 Powell, ‘An Elizabethan Experiment’, 31. 273 Id. 35.

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show the disregard of Indigenous realms, rights, and interests as if they did not exist. They also show the lack of reference to natural law and the law of nations; exclusive reference was made to the laws of England. The official policy was that by discovering and occupying land, the colonists extended not only political control, but also the private property and territorial sovereignty of the home country. 7.3.2 Occupation Scholars also discussed the Roman concept of res nullius (thing without owners) as a possible justification for occupying vacant lands (occupatio vacuorum) and defending claims to the same.274 According to Roman law, movable ­objects without owners (res nullius) could be acquired by anybody though possession or occupation (occupatio vacuorum).275 Yet, Roman law did not allow acquisition of land through occupation; only in the Middle Ages did the doctrine extend to land.276 In the context of European expansion ‘the question arose whether all things in the [Americas] had, upon the arrival of the Europeans, the status of res nullius’, or whether Indigenous peoples had any sovereignty and property claims over the newly discovered lands.277 Gentili agreed with Vitoria that the territories of the Americas were not res nullius.278 Canon lawyers had debated the question as to whether legitimate possession and property (dominium) ‘depended upon being in the state of grace’.279 If dominium depended on grace, ‘only Christians could legitimately hold property and self government’.280 Therefore, ‘this theory would justify Christian conquest of any territory possessed by non-Christians’.281 Gentili firmly rejected this theory, holding that all human beings, not only Christians, possessed certain rights, such as the right to property and self-government. Gentili rejected the idea that property and self-determination depended on grace; rather, for Gentili, the heathens legitimately possessed land, owned property, and had the capacity and right to govern themselves. Therefore, there existed no general right to invade their lands. In this regard, he agreed with Vitoria that ‘the Indians [could] not be ­deprived of their lands merely by virtue 274 Benton and Straumann, ‘Acquiring Empire by Law’, 6. 275 Id. 14–15. 276 Lorenzo Cotula, ‘Land, Property, and Sovereignty in International Law’ (2017) 25 Cardozo Journal of International & Comparative Law 229. 277 Benton and Straumann, ‘Acquiring Empire by Law’, 20. 278 Id. 25. 279 Muldoon, ‘Medieval Canon Law and the Conquest of the Americas’, 20. 280 Id. 281 Id.

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of their status as unbelievers’.282 Rather, as Indigenous societies had ‘properly organized cities, … magistrates…, laws, industries, and commerce’,283 they had rights ‘to their freedom, their property, their territories, and their selfgovernance’.284 Not only did Indian chiefs rightly exercised jurisdiction over their tribes,285 but ‘the Indians were true masters’ (veri domini) of themselves, their land, and their property (dominium sui et rerum).286 Gentili rejected the argument that the occupation of vacant lands (occupatio vacuorum) could be a tool to acquire sovereignty under the law of nations. Rather, such occupation could be a tool to acquire private property under the law of the land (lex loci).287 For Gentili, ‘the earth was given to … [human beings], and whatever lands [we]re possessed by none, belong[ed] to everyone … God did not create the world to be empty’.288 Because nature abhors a vacuum (natura nihil vult vacuum), people could occupy and cultivate vacant land.289 However, Gentili stressed, if lands were not empty, they should not be taken.290 Moreover, even if given lands were empty, in order to lawfully appropriate them, for Gentili, ‘the express consent of the local ruler was needed’.291 For Gentili, such occupation was not a means to acquire sovereignty over newly found lands; rather, it was a way to acquire private property with the consent of the local rulers in conformity with the law of the land; the new proprietors would remain under the sovereignty of the local sovereign. While ‘vacant land should not be unreasonably refused’, ‘the local ruler m[ight] impose on foreign settlers the limitations that m[ight] be required by reason of state’.292 Only if such consent was unreasonably denied, and the migrants faced a state of necessity (namely, earthquake, drought, and similar vicissitudes) ‘there [would be] legitimate ground for war’.293

282 Anghie, Imperialism, Sovereignty, and the Making of International Law, 18. 283 Francisco de Vitoria, ‘On the American Indians’ [De Indiis, 1539] in Francisco de Vitoria, Political Writings, Anthony Pagden and J. Lawrance (eds) (Cambridge: cup 1991) q. 1 art. 6, para. 23, 250 (also denying that the Spaniards had any right to occupy Indigenous lands). 284 Ramon Hernandez, ‘The Internationalization of Francisco De Vitoria and Domingo De Soto’ (1991) 15 Fordham ilj 1031–1059, 1040. 285 Benton and Straumann, ‘Acquiring Empire by Law’, 21. 286 Vitoria, On the American Indians, question 1, conclusion, para. 23. 287 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 102. 288 Gentili, De Iure Belli, Book i, Chapter 17, p. 80. 289 Id. p. 81. 290 Id. 291 Panizza, ‘The Freedom of the Sea and the Modern Cosmopolis’, 103. 292 Id. 293 Id.

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For Gentili, occupation remained a domestic matter, a tool to acquire private property under the law of the land, rather than a tool to acquire sovereignty under the law of nations. Whereas he praised the role of farmers in economic systems, he did not perceive farming as such as an expropriatory tool or as a tool of conquest. Rather, the explicit consent of the local ruler was needed for the acquisition of ownership of vacant lands. Gentili certainly did not see Indigenous land as terra nullius.294 Rather, he reminded his readers that ‘occupation [was] a double-edged sword and that … had [Montezuma the ninth Aztec Emperor] conquered Europe, [he] m[ight] have exercised dominion … with perhaps more justice than Europeans had in America’.295 The Gentilian theory differed from the official Elizabethan and Jacobean policies and the later Hobbesian approach to this matter in significant respects. As mentioned, the Elizabethan charters did not refer to Indigenous peoples. The 1606 Virginia Charter established that land would belong to James i, with the Virginia Company as the King’s tenant, and the settlers as subtenants provided that the grantees ‘could establish settlements on lands which [were] not actually possessed by any Christian prince’.296 With no reference to the law of nature and the law of nations, the charter determined that the colony would be subject to English sovereignty; its inhabitants and their children would remain English subjects and have to comply with the common law of England. The Charter proclaimed colonial rule in manifest disregard of Indigenous sovereignty, conflating occupation of territories by private parties with acquisition of property and sovereignty by the British sovereign, something Alberico Gentili had kept separate. As the Danish historian Merete Borch has pointed out, ‘the transition from natural law to positivism heralded a change of attitude to other peoples which rejected the possibility that they could have the same rights … as European peoples. When the natural rights perception of the law disappeared, the way was open for the implementation of the terra nullius argument’.297 The official colonial policies implicitly followed a Hobbesian concept of settlement. The English philosopher Thomas Hobbes (1588–1679) delineated a theory of colonial expansion according to which ‘[t]he multitude of poor and yet strong people [that was] still increasing [should] be transplanted into countries not sufficiently inhabited’. While would-be settlers should ‘not 294 Borch, ‘Rethinking the Origins of Terra Nullius’, 232. 295 Andrew Fitzmaurice, Sovereignty, Property, and Empire 1500–2000 (Cambridge: cup 2014) 75. 296 Mancke, ‘Chartered Enterprises and the Evolution of the British Atlantic World’, 241. 297 Borch, ‘Rethinking the Origins of Terra Nullius’, 238.

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e­ xterminate those whom they f[ound] there’, they should ‘constrain them to inhabit closer together’ and ‘court each little plot with art and labour, to give them their sustenance in due season. And when all the world is overcharged with inhabitants, then the last remedy of all is war, which provides for every man, by victory or death’.298 In the Hobbesian theory there was no reference to the sovereignty and property rights of Indigenous peoples; and there was no reference to the possibility that the local ruler might oppose or limit immigration on legitimate grounds and exercise self-defence. In conclusion, occupation ‘became the single most important justification for European empire over the five centuries following the discoveries by Columbus’.299 For the colonizers, occupation did not just constitute a means to acquire private property but a tool to gain sovereignty. No consideration was given to local rulers except if such rulers were Christian. Whereas the colonists argued that North America was uninhabited, the conflicts between various Indian tribes and the French, Dutch, and English colonial settlements demonstrated that it was not vacant land.300 Moreover, the Crown granted land to the colonists provided that it was ‘not yet cultivated’ even in those regions that were inhabited by Indigenous peoples.301 The agriculturalist argument that by not incorporating labour to the soil, Indigenous peoples had not appropriated land, was a domestic (both retrospective and prospective) corroboration of colonial expansion to the detriment of nomadic civilizations.302 It expressed the royal support of active colonial expansion in the form of acquisition of property and sovereignty of new lands.303 7.3.3 Ius Praedicandi Among the arguments supporting the European conquest, proselytism (ius praedicandi) also played a central role. From the start, the Spanish Empire attempted to legitimize its expansion on the grounds that it would preach and diffuse the Christian religion worldwide. The papal bulls that divided the Indies into two separate spheres of influence for the Spaniards and the Portuguese

298 Thomas Hobbes, Leviathan [1651], C.B. Macpherson (ed.) (London: Penguin Books 1985) Chapter 30. 299 Fitzmaurice, ‘Discovery, Conquest, and Occupation of Territory’, 852. 300 See, ex multis, Jill Lepore, The Name of War: King Philip’s War and the Origins of American Identity (New York: Vintage 1998). 301 David Armitage, Foundations of Modern International Thought (Cambridge: cup 2013) 110. 302 Fitzmaurice, ‘Discovery, Conquest, and Occupation of Territory’, 852 and 853. 303 Borch, ‘Rethinking the Origins of Terra Nullius’, 238 (highlighting, at 239, ‘the injustice not only of dispossession but also of the continuing denial of native title’.)

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‘made this religious task explicit’.304 Pope Alexander vi (1431–1503) ‘donated’ the discovered lands to the King of Spain in order for him to spread the Catholic religion.305 In England, whereas Elizabethan charters to Gilbert and Raleigh required the colonies to follow ‘the true Christian faith, now professed in the Church of England’ but did not mention proselytism, the later official Jacobean policies would encourage attempts to persuade Indigenous peoples to change their religion.306 Gentili firmly rejected the idea that states could wage wars on religious grounds and cautioned that religion did not justify wars.307 He also noted that religion was often used as a pretext for waging hegemonic wars. Instead, Gentili was in favour of freedom of religion (libertas religionis).308 For Gentili, religion was the linkage between each human being and God and such bond did not justify coercion or violence.309 As a marriage between human beings is based on freedom, so should be the spiritual marriage between the divine and human beings.310 Like Vitoria, Gentili argued that religion did not provide a proper warrant for the use of force against Amerindians, for belief could not be forced.311 Yet, Gentili greatly diverged from the theological tradition concerning the ius praedicandi and the later official Jacobean colonial policy. While Vitoria and the theologian Domingo de Soto (1495–1560)312 argued that the law of nations granted the Spaniards the right to preach their religion without interference (ius praedicandi) and admitted that war could be justified if a country refused to admit evangelical missions,313 the Dominican friar Bartolomé de las 304 Joan-Pau Rubiés, ‘The Discovery of New Worlds and Sixteenth-Century Philosophy’, in Henrik Lagerlund and Benjamin Hill (eds.) Routledge Companion to Sixteenth-Century Philosophy (London: Routledge 2017) 54–84, 70. 305 Baccelli, ‘Guerra e Diritti’, 71. 306 Elizabeth i, Charter to Sir Walter Raleigh, 25 March 1584, reprinted in The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, Francis Newton Thorpe (ed) (Washington, DC: Government Printing Office 1909). 307 Gentilis, De Legationibus, ii, 11 (cautioning that ‘bella religionis causa movenda non sunt’.). 308 Gentili, De Iure Belli, Book I, Chapter 9, p. 39 (arguing that religion ought to be free— libertas religionis debetur.) 309 Id. (arguing that religion is a kind of marriage between God and man—Coniugium quoddam Dei et hominis est religio.) 310 Id. (arguing that freedom of the spirit ought to be granted—si igitur coniugio alteri carnis libertas defenditur obstinate, etiam huic coniugio spiritus tribuatur libertas.) 311 Gregory M. Reichberg, Henrik Syse, and Endre Begby, The Ethics of War (Oxford: Blackwell Publishing 2006) 289. 312 Domingo de Soto, De Iustitia et Iure Libri Decem (Salamanca 1556). 313 De Vitoria, On the American Indians, question 3 article 2 para. 9.

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Casas argued that evangelical missions could only be conducted peacefully but also claimed that this was the only legitimate basis for the Spaniards to be in the Americas.314 The official Jacobean colonial policy, expressed in the 1606 Charter of Virginia, commended and accepted the desires of the colonizers for ‘propagating the Christian Religion’ to Indigenous peoples. For James i, these different civilizations ‘live[d] in Darkness’ and he accepted and agreed to the colonizers’ desires to ‘bring the Infidels and Savages … to human Civility’.315 Instead, for Gentili, the law of nature did not confer the right of preaching one’s religion to others, let alone to impose it by force.316 Therefore, Gentili dismissed the claim that religious differences, as such, gave any rights to war. Finally, he excluded that denying Christians the right to teach the Gospel could give rise to a legitimate war. 7.3.4 Freedom of Movement A legal argument often used to assert the legitimacy of conquest was the freedom of movement (ius peregrinandi). Humanists posited ‘a human faculty to visit any part of the world’, a ‘right to travel’ (ius peregrinandi).317 Such right expressed the rise of a new cosmopolitan ethos, the idea of ‘a global human community … across political and confessional borders’.318 Postulating such right nonetheless meant that the Europeans had ‘a right under ius gentium to travel and sojourn in the land of the Indians; and that providing that [they did] not harm the Indians, the natives m[ight] not prevent them’.319 For Anghie, not only did the ‘apparently innocuous enunciation of a right to travel and sojourn’ ‘endorsed and legitimized endless [European] incursions into Indian society’, but it ‘extended finally to the creation of a comprehensive, indeed inescapable system of norms which [we]re inevitably violated by the Indians’.320 Gentili admitted freedom of movement but qualified the right to migrate to a significant extent. On the one hand, he admitted it only in case of necessity. For Gentili, people had a right to leave their own country in order to escape 314 Benjamin Hill, ‘Domingo de Soto’, in Rafael Domingo and Javier Martinez-Torrón (eds) Great Christian Jurists in Spanish History (Cambridge: cup 2018) 134–155, 146. 315 James i, Charter of Virginia, 10 April 1606, reprinted in The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, Francis Newton Thorpe (ed) (Washington, DC: Government Printing Office 1909). 316 Gentili, De Iure Belli, Book i, Chapter 25, p. 123 (arguing that it was unlawful to make war upon the Indians because they refused to hear the preaching of the Gospel). 317 Rubiés, ‘The Discovery of New Worlds and Sixteenth-Century Philosophy’, 58. 318 Id. 60. 319 Anghie, Imperialism, Sovereignty, and the Making of International Law, 20. 320 Id. 21.

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extreme evils such as earthquakes, famine, civil strife, war, and religious persecution. This right was included in the right to preserve one’s being (ius se conservandi). However, for Gentili movement should not be motivated by mere desire, greed, and fondness for changing abode (libido atque avaritia et mutandae sedis amor).321 Unlike the theologian Domingo de Soto (1494–1560), Gentili excluded that foreigners could permanently settle in another country for purely economic reasons. On the other hand, Gentili considered that the state of destination might deny hospitality for good reasons (‘for it is not right that one should neglect oneself through love of another’.)322 While he noted that it might be in the interest of the host state to welcome refugees as ‘an increase of population is beneficial for purposes of greatness’,323 his support of freedom of movement was not unconditional. In fact, the newcomers ought to submit to the local ruler.324 Nonetheless, the host state could limit such freedom if the number of newcomers was too high and thus endangered national security.325 In other words, for Gentili visiting foreign lands was not tantamount to conquering them; it was lawful only insofar as it had a peaceful purpose, and ultimately respected the sovereignty of the host state. In conclusion, for Gentili, the ius migrandi had a broad meaning but was also limited to a significant extent. It was not merely connected to the freedom of commerce (ius commercii) and of navigation but also to freedom of religion (libertas religionis) and the plight of refugees. As is known, Gentili considered freedom of commerce a natural right but subjected it to certain qualifications expressing the reason of state, namely public morals, public health, and state security. Analogously, he significantly limited freedom of the sea, by conceptualizing territorial waters. In the same vein, he also significantly limited the freedom of movement, subjecting it to reasons of necessity and sustenance and ultimately, the regulatory sovereignty of the host state. 7.3.5 Just War The international right to punish gross violations of natural law also became an apology for dispossession.326 When European explorers, merchants, and conquistadores first came into contact with the Indies, they told imaginative 321 Anghie, Imperialism, Sovereignty, and the Making of International Law, 21. 322 Gentili, De Iure Belli, Book i, Chapter 17, p. 81. 323 Id. 324 Id. 325 Id. 326 Panizza, ‘Alberico Gentili e la Scuola di Salamanca’, 177.

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accounts of their travels. As Anghie reminds us, ‘writers of the period appear to have characterized the Indians as being, among other things, slaves, sinners, heathens, [and] barbarians’.327 They mixed fact and invention, provided fictional accounts of places and their peoples, and emphasized the ‘otherness’ of the native population.328 Such characterization of non-European societies was used to ‘legitimiz[e] European conquest of these societies and justified the measures colonial powers used to control and transform them’.329 In this context, the alleged violation of natural law became a pretext for war.330 For Vitoria, ‘[o]ccasional crimes contrary to natural law could only be punished by [local] leaders’.331 If states could wage war to punish sinners, Victoria argued, since every country was full of sinners, ‘kingdoms could be exchanged every day’.332 Yet, he admitted the legitimacy of war in case of tyranny, human sacrifice, and cannibalism, because such practices caused injury to innocent people.333 Other Spanish scholastics, such as Diego de Covarruvias (1514/24–1602), ‘argued that crimes against nature could not justify external intervention, basically because of lack of jurisdiction’.334 Las Casas analogously cautioned that only a few perpetrated such crimes, and that, therefore, any military intervention would have shed more blood than the crime it allegedly aimed to avenge.335 Instead, Vitoria argued that if Amerindian rulers endorsed ‘tyrannical and oppressive laws against the innocents’, other states should ­intervene to protect innocent populations: it is the duty of human beings to

327 Anghie, Imperialism, Sovereignty, and the Making of International Law, 19. 328 Hernández, ‘The Internationalization of Francisco de Vitoria and Domingo de Soto’. 329 Anghie, Imperialism, Sovereignty, and the Making of International Law, 4 330 Panizza, ‘Alberico Gentili e la Scuola di Salamanca’, 179. 331 Rubiés, ‘The Discovery of New Worlds and Sixteenth-Century Philosophy’, 72. 332 Francisco de Vitoria, On the American Indians [De Indiis, 1539], in Anthony Pagden and Jeremy Lawrance (eds) Political Writings (Cambridge: cup 1991) question 2, article 5. 333 Id. q. 3. Art. 5, para. 15; Gentili, De Iure Belli, Book i, Chapter 25, pp. 198–199. See also Aldo Andrea Cassi, ‘Lo Ius in Bello nella Dottrina Giusinternazionalistica Moderna. Annotazioni di Metodo e Itinerari di Indagine’ (2009) 38 Quaderni Fiorentini 1141–1168, 1158. 334 Diego Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli: The Great Debate between Theological and Humanist Perspectives from Vitoria to Grotius’, in Pierre-Marie Dupuy and Vincent Chetail (eds) The Roots of International Law (Leiden: Brill 2014) 211–247, 244. 335 Luca Scuccimarra, ‘Proteggere l’Umanità. Lezioni dal Cinquecento?’, in Vincenzo Lavenia (ed) Alberico Gentili—Responsibility to Protect: Nuovi Orientamenti su Intervento Umanitario e Ordine Internazionale (Milano: Giuffrè 2015) 47, 63.

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protect each other’s interests and safety because all human beings are ‘all alike’.336 Following medieval sources, Gentili argued that legitimate wars could be waged to halt or avert ‘gross violations of natural law’.337 He included cannibalism, human sacrifices, piracy, and atheism among the kind of crimes against humanity (delicta contra naturam) that could justify war.338 For Gentili, any war waged to punish crimes against nature would be offensive, but legitimate because waged in defence of the common law of humanity. For Gentili, sovereign power was never totally unlimited; rather, the idea of humanitarian intervention served as a way to keep sovereigns in check, as their abusive behaviour would not go unpunished. Gentili conceptualized an international responsibility to help populations in need as an expression of mutual solidarity. Undoubtedly, this was an interventionist approach, even for the standards of the time.339 Gentili did not seem to realize that accusations of crimes against nature could be used as a pretext for conquest.340 Therefore, as Pagden points out, ‘by insisting that violations of [natural] law granted the right to any state … to … wage a just war against the violators and by insisting that dominium over both persons and moveable goods could be acquired in such wars, [Gentili] was handing the European powers a license to conquer virtually any peoples whose behaviour did not conform to the codes established by … jurists’.341 In fact, the alleged defence of innocents (defensio innocentium), the ideal of an international community and universal solidarity created an asymmetrical relation of trust in which ‘civilized nations’ had the power to police the ‘barbarians’.342 Such discourse had ‘imperialistic implications’, as it could entail the ‘rule over others’,343 give rise to abuses and a sort of never-ending violence. In other words, humanitarian intervention could be used as a pretext to pursue ulterior aims and objectives. 336 Anthony Pagden, ‘Turning Barbarians into Gentle Peoples: Alberico Gentili, Francisco de Vitoria, and the Justice of Empire’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milano: Giuffrè 2014) 103–123, 107. 337 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 243. 338 Gentili, De Iure Belli, Book i, Chapter 25, pp. 122–127. 339 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 21. 340 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 184. 341 Anthony Pagden, The Burdens of Empire (Cambridge: cup 2015) 92. 342 Scuccimarra, ‘Proteggere l’Umanità. Lezioni dal Cinquecento?’, 59; Neta Crawford, Argument and Change in World Politics. Ethics, Decolonization, and Humanitarian Intervention (Cambridge: cup 2002) 131. 343 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 236.

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The Gentilian system, however, also presented some flexibilities, derogations, and exceptions that enabled nations to defend themselves from the imperialist ambitions of other states. For Gentili, humanitarian intervention was legitimate only if it did not include territorial acquisition. Moreover, the right to self-defence was a basic principle of justice.344 Every nation had the right to regulate the commercial activities taking place within its borders and to set the criteria of, and limits to, the exploitation of natural resources.345 For Gentili the exploitation of resources such as silver and gold should take place respecting the general principle of equity.346 States could limit access to their own territory in order to protect their security.347 In fact, Gentili acknowledged that commerce could disguise plans for conquest.348 Thus, it was legitimate for Indigenous peoples to wage war against the invaders. Gentili also considered the legitimacy of preventive defence. In order to counter Spanish expansionism, Gentili argued that peace, security, and pluralism should be safeguarded.349 Therefore, he invited nations to follow the example of Lorenzo de’ Medici who upheld peace in Italy by preserving a balance of powers among the European sovereigns. Analogously, nations should be keen to preserve a balance of powers and peace at the international level. In this context, Gentili argued that preventive defence was a legitimate form of selfdefence to counter the hegemony of imperial powers (in casu Spain).350 7.3.6 Converging Divergences In a world of clashing cultures and conflicting beliefs about what was right, different arguments emerged as to the (il)legitimacy of conquest. Far from being a mere theoretical debate, these arguments had a profound impact on world politics and the evolution of international law. While sovereigns often used discovery, occupation, and conquest to justify empire, like other early modern scholars, Gentili questioned the legitimacy of these arguments under the law of nations As aptly noted by Fitzmaurice, ‘there was a significant gap, therefore, between the language of the law of nations and the practice of states. On matters of empire, international law appeared to be more a system

344 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 236. 345 Id. 346 Id. 347 Id. 348 Id. 349 Gentili, De Iure Belli, Book I, Chapter 14, p. 65. 350 Id.

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of rhetoric than a system of justice’.351 Nonetheless, the law of nations could also be invoked for anti-hegemonic purposes. Gentili had a ‘cosmopolitan vision of [the] international order’, and emphasized the freedom of the seas, the freedom of commerce, the freedom of movement, and the freedom of religion.352 At the same time, he carefully qualified such rights with a series of provisos, combined idealism with pragmatism, and attempted to strike a reasonable balance between public and private interests and between national interests and those of the international community. His theory of the law of nations discussed the most urgent contemporary questions including those related to the (il)legitimacy of conquest. In part, Gentili’s views reflected ‘the actual practices of Elizabeth’s foreign politics’, and ‘supported and justified the English struggle against Spain both in Europe and in the world’.353 In part, however, Gentili’s theories, which denied discovery, occupation, and conquest as legal arguments to justify empire, sensibly diverged from official Elizabethan and Jacobean colonial policies. Whether Gentili’s reflection on ‘the freedom of commerce, on occupation of vacant land and international punishment’ played any critical role in justifying the English colonization of the Americas remains controversial.354 Gentili acknowledged the sovereignty, property, and natural rights of Indigenous peoples, the injustice of the Spanish conquest, and albeit implicitly, the legitimacy of Indigenous peoples’ defence against conquerors. Yet, his work can also be read as a justification of the freedom of the sea, the freedom of commerce, and the freedom of movement including the right of religious refugees to settle in other countries. In conclusion, Gentili’s theory contributed to debates over the (in)justice of empire; and his theory of the law of nations contained ambiguities, which could foster European expansion, but also criticized conquest and imperialism.355 7.4

The Roman Model: Empire or Commonwealth?

In order to address the questions posed by the geographical discoveries and European expansionism, early modern scholars drew analogies between Roman law and the law of nations and borrowed concepts and ideas from the 351 Fitzmaurice, ‘Discovery, Conquest, and Occupation of Territory’, 841. 352 Panizza, ‘The Freedom of the Seas and the Modern Cosmopolis’, 104. 353 Id. 354 Id. 105. 355 Cfr. Fitzmaurice, ‘Discovery, Conquest, and Occupation of Territory’, 860.

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former to shape the latter.356 With the emergence of polities separate and independent from the reach of the Papal and imperial powers, Roman law ­increasingly became a source of reference for governing international relations.357 Not only was it a language common to all Europeans, but it was deemed to reflect natural reason. Roman law was in fact ‘a multicultural pro­ duct’ of different, largely African, Middle-Eastern, and Indo-Mediterranean civilizations.358 Early modern scholars referred to Roman sources by way of analogy to build and develop a new transnational legal order. Roman law was used in many areas and for multiple purposes. In fact, it offered a reservoir of legal arguments rather than univocal solutions to given legal issues; it was ‘more resource than road map’.359 Roman law was not univocal; rather, it could sustain two different theoretical models. On the one hand, the model of the Roman Republic—the period of ancient Roman civilization traditionally dated to 509 bc and ending in 27 bc with the establishment of the Roman Empire—nourished and sustained aspirations for self-determination, independence, and representation.360 On the other hand, the ideology that characterized the expansion of the Roman ­Empire—the post-Roman Republic period—provided arguments to justify imperialist expansion.361 As aptly noted by Kelley, ‘a fundamental dialectic (duplex interpretatio) was so inherent in jurisprudence that it seems impossible to tie Roman legal doctrines to any particular political or ideological ­position – ­absolutist … or revolutionary’.362 Therefore, early modern scholars borrowed concepts from Roman law to justify two opposite theoretical models: 1) the republican model; and 2) the imperial model. For instance, the republican model inspired the Huguenot theory of a right of resistance during the French civil wars.363 For the so-called monarchomachs, sovereignty belonged to the people, and people retained a

356 Benton and Straumann, ‘Acquiring Empire by Law’, 13. 357 Id. 4. 358 P.G. Monateri, ‘Black Gaius: A Quest for the Multicultural Origins of the “Western Legal Tradition”’ (2000) 51 Hastings Law Journal 479, 484. 359 Benton and Straumann, ‘Acquiring Empire by Law’, 38. 360 Benedict Kingsbury and Benjamin Straumann, ‘Introduction’, in Benedict Kingsbury and Benjamin Straumann (eds), The Roman Foundations of the Law of Nations (Oxford: oup 2010) 4–18. 361 Id. 362 Donald R. Kelley ‘Law’, in J.H. Burns and M. Goldie (eds) The Cambridge History of Political Thought 1450–1700 (Cambridge: cup 1991) 66–94, 74. 363 Quentin Skinner, Foundations of Modern Political Thought (Cambridge: cup 1978) vol ii, 240.

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right to resist a regime that tyrannically took their rights.364 The powerful concept of common wealth (res publica), derived from Roman sources, inspired the constitutions of a number of polities, including that of the United States. This egalitarian perspective, which owed much to Cicero, has deeply influenced contemporary international law with regard to the decolonization process and the consolidation of the concept of state immunity (i.e., the idea of par in parem non habet imperium, ‘an equal has no power over an equal’).365 In this context, Kingsbury and Straumann point out that ‘probably the most important and lasting legacy of the republican tradition is the formulation of natural and later human rights’.366 By contrast, the imperial model provided arguments to justify the expansion of European powers.367 For instance, Sir Thomas Smith (1513–1577), the Regius Professor of Civil Law of Cambridge University, used the Roman model for advocating the conquest of Ireland.368 However, the Roman model soon became the object of criticisms among the very advocates of colonialism. For instance, Hakluyt criticised the Roman empire for overextending itself, for its tyrannical features, and ultimately for failing to achieve the common good, both for the Romans and the colonized.369 This section aims to address the question as to whether Gentili took a position on the legitimacy of the Roman Empire, and thus indirectly on European expansion, by analyzing and critically assessing his De Armis Romanis et Iniustitia Bellica Romanorum Libri Duo (The Wars of the Romans).370 The flexibility of the Roman model and the binary use of Roman law (to either justify or 364 French Huguenot theorists, the Monarchomachs—from the Greek μόναρχος (‘monarchos’, meaning monarch, sole ruler), and μάχομαι (‘makhomai’, meaning ‘to fight’)—­ theoretically justified tyrannicide. 365 Kingsbury and Straumann, ‘Introduction’. 366 Id. 367 Id. 368 David Beers Quinn, ‘Sir Thomas Smith (1513–1577) and the Beginnings of English Colonial Theory’ (1945) 89 Proceedings of the American Philosophical Society 543–560, 545 (noting, at 546, that Smith ‘tried to apply his academic knowledge of the past to elucidation of the present, and incidentally to his own profit’.); David Armitage, Ideological Origins of the British Empire (Cambridge: cup 2000) 25 (noting ‘the ambiguity of Ireland’s position [in the early modern period] – as ... a kingdom, though treated practically by the English as if it were a colony’.); Alberici Gentili, Hispanicae Advocationis Libri Duo (Hanau 1613) Book i, Chapter 8, p. 35 (briefly referring to Ireland as if it were distinct from Britain, but nonetheless under the jurisdiction of King James I); De Iure Belli, Book i, Chapter 23, p. 117 (considering the Irish as subjects of the Kingdom). 369 Day, ‘Imagining Empire’, 9–10. 370 Alberico Gentili, De Armis Romanis et Iniustitia Bellica Romanorum Libri Duo (Hanoviae: Apud Guilielmum Antonium, 1599); Alberico Gentili, The Wars of the Romans—A Critical

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c­ ondemn imperialist projects) is particularly evident in this Gentilian work. While De Iure Belli focuses on the ius in bello, the De Armis Romanis focuses on the ius ad bellum. Due to its focus, the De Armis Romanis has a more political register than the De Iure Belli, as it focuses on high politics and the secrets of state (arcana imperii). Traditionally considered as a minor work and a sort of erudite appendix to the De Iure Belli, only recently has the De Armis Romanis been seen as a distinct and autonomous Gentilian contribution to the specific topic of empire. In fact, this ambitious work includes key elements of the Gentilian theory of the international legal order. The section proceeds as follows. After briefly summarizing the content of the De Armis Romanis, the section discusses various interpretations of the work and concludes that by adopting a type of legal humanist dialogue, Gentili deliberately maintained dualism in order to convey his true opinions about empire. 7.4.1 The Wars of the Romans The De Armis Romanis comprises two volumes. Originally published under the title De Iniustitia Bellica Romanorum Actio in 1590, the first volume criticizes Roman imperialism, accusing the Romans of tyranny and unjust warfare. The second volume, on the other hand, entitled De Iustitia Bellica Romanorum Defensio, rebuts ‘chapter by chapter, the accusations of injustice made in the first [volume]’ and praises the Roman Empire.371 By using the literary genre of paired speeches (dissoi logoi), Gentili could juxtapose two contrasting perspectives.372 As the De Armis Romanis lacks an introduction or conclusion, Gentili’s position is not easy to detect. In the first speech—the accusation (actio)—the Accuser Picenus (i.e., a lawyer coming from Picenum, the ancient Roman name for Gentili’s home region) criticized Roman wars as unjustified and thus highlighted the injustice of the Roman Empire.373 Criticism of the Roman Empire was present even in c­ lassical

Edition and Translation of De Armis Romanis, Benedict Kingsbury and Benjamin Straumann (eds.) David Lupher (trans.) (Oxford: oup 2011). 371 Benedict Kingsbury and Benjamin Straumann, ‘Introduction: Roman Wars and Roman Laws’, in Gentili, The Wars of the Romans—A Critical Edition and Translation of De Armis Romanis, x. 372 David Lupher, ‘The De Armis Romanis and the Exemplum of Roman Imperialism’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: oup 2010) 98. 373 Diego Panizza, ‘Alberico Gentili’s De Armis Romanis: The Roman Model of the Just Empire’, in Kingsbury and Straumann (eds) The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire, 53–84, 58–59.

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sources;374 the Accuser drew upon these earlier criticisms, condemning wars of expansion.375 In particular, he claimed that for the Romans utility ‘always preceded justice’ in waging war. In fact, the Accuser argued, if in theory the Romans only waged just wars under the fetial law, in practice, all their wars were conducted to rob the possessions of others, expand their empire, and conquer the entire world.376 Because they were waged for unjust reasons, all the Roman wars were unjust, and the same Roman empire was unjust. Not only did the Accuser criticize the economic burden imposed on the conquered nations,377 but he also criticized the Roman legal system for tolerating slavery378 and condemned the luxury and corruption of the Romans.379 Finally, for the Accuser, if Rome prevailed over other nations ‘through luck and the force of arms, neither of these made it or its rule just’.380 More interestingly, the accuser highlighted the importance of sources in the making of history. He admittedly lacked access to alternative viewpoints, namely ‘anything by the other peoples with whom the Romans had their disputes and wars’.381 He also aptly highlighted that ‘without any doubt’ perspective mattered as ‘a Goth [would] write [history] far differently from a Roman’.382 Finally, he stressed that ‘placed as we are at such a remote distance in time, we can only know the misdeeds of the Romans through those who have praised the Romans’.383 Nonetheless, he argued that even in the Roman sources there were ‘very many things scattered throughout, as though strewn about some large shipwreck, which, when gathered with painstaking toil, c[ould] defeat the opinion of the common people, overcome the long ingrained consensus of scholars, and do away with the standard view of the Romans’ virtuous warmaking’.384 For ‘extremely unjust acts emerge[d]’ even in works that praised the Romans.385 374 Kaius Tuori, ‘Alberico Gentili and the Criticism of Expansion in the Roman Empire. The Invader’s Remorse’ (2009) 11 Journal of the History of International Law 205–219, 208. 375 Id. 213. 376 Gentili, De Armis Romanis, Book 1, Chapter 7, p. 55. 377 Id. Chapter 13, p. 115. 378 Id. p. 117 (‘that training in military affairs is unfortunate that has as its aim that others shall become slaves, people who were neither born to be slaves nor have merited adversity through any fault of their own’.) 379 Id. p. 115. 380 Id. 381 Id. Book i, Chapter 1, p. 15. 382 Id. p. 13. 383 Id. Book i, Chapter 7, p. 59. 384 Id. Book i, Chapter 1, p. 15. 385 Id. Book i, Chapter 7, p. 59.

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The Accuser concluded that ‘it was cheating, perfidy, avarice, audacity, cruelty that brought forth [the Roman] empire over us. Th[e Romans] ... subjugated a certain area of the world … that was more honest, more just, more humane, more good-natured, more moderate than they were themselves’.386 Gentili thus captured the essence of empire in rather sharp tones: ‘this is the secret of empire: by which a dominion is believed to be agreeable that is in fact savage despotism. Or can be anything more savage than that … [human beings] be cast down even below any truly human condition? What will the whim of the despot not dare or not be able to do with [people] [who] do not know how to raise their faces up and look upon the sky? This is the secret of empire: which while it most fully strengthens domination it most fully conceals it and presents the face of its opposite’.387 In the second speech—the Defence (defensio)—the Defender, identified as a Roman, defended the justice of Roman wars.388 The Defender briefly noted that he would not refute everything charged against the Romans, as he was not defending any Celestial Jerusalem.389 The Defender also limited his defence to the republican era.390 His defence of Roman imperialism was then threefold. First, the defence illustrated that compliance with religious rules—the ius ­fetiale—had a constraining effect. Second, for the Defender, if the Romans had a just formal cause of war, their true aims were irrelevant. While having a just cause for waging war was necessary to wage a just war, the Defender argued that intentions were irrelevant under the law of war because they pertained to theology.391 Consequently, a war would be just if it was based on a just cause irrespective of the intentions of the belligerents.392 For instance, with regard to the conquest of Sicily, the Defender stated that the island was ‘home of the Cyclopes, nurse of tyrants, [and] captive of slaves’: would not the Romans wish ‘to free this Sicily … from so many monsters and disasters?’393 When an allied city complained of the

386 Gentili, De Armis Romanis, Book i, Chapter 1, p. 17. 387 Id. Book i, Chapter 13, p. 115. 388 Id. Book ii, Chapter 6, pp. 212–213 (‘this is a defence, not an encomium of the Romans’.) 389 Id. Book ii, Chapter 9, p. 259. 390 Id. 391 Cfr. Gentili, De Iure Belli, Book i, Chapter 7, p. 35 (‘some raise the question whether or not it is necessary for the justice of war that the leader have a good motive, which is a problem for the theologians’.) 392 Diego Panizza, ‘Il De Armis Romanis di Alberico Gentili: Paradigmi Imperiali, Guerra, e la Moderna Cosmopoli’ (2011) 25 Filosofia Politica 215–226, 218. 393 Gentili, De Armis Romanis, Book ii, Chapter 6, pp. 230–231.

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savagery of the Carthaginians, the Romans justly aided their allies.394 The Defender nonetheless admitted that ‘[w]hile there was indeed the pretext of aiding allies’, in fact ‘a prize tempted them’.395 Third, the defence alleged a civilizing effect of the Roman conquest.396 The Defender saw the Roman empire as a paradigm of excellence, based on key ethical values such as virtue, liberty, peace, and humanity.397 According to the Defender, the Roman peace (pax Romana) furthered the common wealth and joining the Roman Empire provided the vanquished peace, prosperity, and an advanced legal system.398 According to the defence, by acquiring the Roman citizenship, not only were the conquered ‘happier under Roman rule than they were under their own rulers’,399 but many of the former enemies later rose to be the rulers of Rome. For the apologist, ‘Roman inclusiveness became the basis … for the success and duration of the empire’.400 In parallel, the Defender praised Roman law as a high quality and resilient legal system.401 As Pagden points out, ‘[t]hat the benefits of Roman rule rested predominantly on the concept of citizenship which in turn rested on its laws was hardly a novel claim’.402 Earlier scholars had similarly argued that the Roman legal system constituted a ‘superior mode of justice—one which had brought peace and prosperity to the … world’.403 7.4.2 Diverging Interpretations Did Gentili praise the Roman conquest and use the Roman model in support of his theory of the just grounds for going to war? Or did De Armis Romanis back the English resistance against the expansionist ambitions of Spain? Or was it a mere oratorical exercise? For several scholars, Gentili was ‘an admirer of empire’.404 Whereas the Accuser can be recognized as ‘Gentili’s alter ego’, the Defender ‘gets more than twice as many pages to make his case, has the “last word”, and uses many arguments that Gentili had advanced in his more 394 Gentili, De Armis Romanis, Book II, Chapter 6, p. 231. 395 Id. 396 Pagden, ‘Turning Barbarians into Gentle Peoples’, 112. 397 Panizza, ‘Il De Armis Romanis di Alberico Gentili’, 119. 398 Panizza, ‘Alberico Gentili’s De Armis Romanis’, 79–80 and 76–77. 399 Gentili, De Armis Romanis, Book ii, Chapter 13, pp. 337 and 347. 400 Pagden, ‘Turning Barbarians into Gentle Peoples’, 113. 401 Gentili, The Wars of the Romans, Book 2, Chapter 13, p. 351. 402 Pagden, The Burdens of Empire, 88. 403 Id. 404 Martti Koskenniemi, ‘Vox Theologi: Empire and Private Rights in the 16th Century’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 125–149, 128.

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systematic De Iure Belli’.405 According to Tuori, ‘true historical criticism’ of the Roman Empire was ‘dangerous’ to Gentili’s own legal aims. If Gentili ‘ultimately agreed with the accusations he present[ed]’, he could not use Roman examples ‘as the foundation of ius gentium’.406 Far from being ‘a simple historical judgment’, the (in)justice of the Roman empire determined the (il)legitimacy of the civil law as a source of analogies for the international legal order.407 Because Gentili was a Professor of civil law, it was not in his interest to argue for the injustice of the Roman Empire.408 Yet, for other scholars, Gentili was highly critical of the Roman conquest and of empire more generally. They contend that for Gentili ‘imperial rule was out of the question’; rather, ‘the civic and republican virtues of old Rome should … inspire and govern’ the operation of the international community in which the powers of states should be ‘balanced and limited’.409 In the De Iure Belli and the De Armis Romanis, Gentili attempted to justify a preventive war against the Spanish Empire to preserve liberty in Europe and beyond.410 Both textual and contextual interpretation of the De Armis Romanis supports an anti-imperialist reading. On close examination of the text, some cogent criticisms in the attack are not adequately rebutted in the defence of Roman imperialism.411 By adopting bombastic, casuistic, and flamboyant tones, the Defender failed to address the convincing criticisms of the Accuser.412 The Gentilian defence of the Roman Empire seemed to be deliberately dull, for instance when the Defender briefly dismissed the attacks by the British tribesmen.413 The Gentilian anti-hegemonic stance seems to be confirmed by the fact that Gentili’s work certainly drew inspiration from Cicero’s third book of the Republic.414 In this book, Cicero described two famous speeches delivered by the 405 Andreas Wagner, ‘Lessons of Imperialism and of the Law of Nations: Alberico Gentili’s Early Modern Appeal to Roman Law’ (2012) 23 ejil 873, at 875. 406 Tuori, ‘Alberico Gentili and the Criticism of Expansion in the Roman Empire’, 216. 407 Id. 218–219. 408 Id. 217 (arguing that ‘it was vital that Gentili did not win the argument with himself’.) 409 Id. 247. 410 Panizza, ‘Alberico Gentili’s De Armis Romanis’, 57–58. 411 Robert Howse, ‘Machiavelli’s Rome and Gentili’s De Armis Romanis: The Case of the Early Roman Kings’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 79–102, 81–82. 412 Id. 82. 413 Tuori, ‘Alberico Gentili and the Criticism of Expansion in the Roman Empire’, 216. 414 Benjamin Straumann, ‘Imperium Sine Fine: Carneades, the Splendid Vice of Glory, and the Justice of Empire’, in Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca (eds) International Law and Empire (Oxford: oup 2017) 335–358, 352.

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Greek sceptic philosopher Carneades in 155 bc to protest a fine that Rome had levied on Athens.415 One speech contended that ‘justice d[id]not exist’ because ‘if Rome wanted to be just, she would have to give up her empire’ because she gained it unjustly.416 Yet, the other speech claimed that ‘Rome had gained the empire justly, by defending her allies in just wars’.417 As Straumann aptly notes, Cicero was highly critical of imperialist practices in his De Officiis.418 As is known, during the chaotic transition from the republic to the empire in the first century bc, Cicero championed a return to the traditional republican government, was proscribed as an enemy of the state, and consequently executed. It is possible that, by relying on Cicero, Gentili also critically assessed Roman imperialism. Certainly, Cicero was one of Gentili’s prime sources and deeply influenced his thinking. While historically Carneades had first delivered a speech praising the justice of the Roman empire to then discuss its injustice, both Cicero and Gentili inversed the order of the argument.419 However, this inversion did not eliminate aporia, rather it still invited the reader to find the truth among diverging arguments.420 From a contextual/historical perspective, Gentili published the first part of the De Armis Romanis in 1590, two years after the defeat of the Spanish Armada. When Gentili published the entire De Armis Romanis et Iniustitia Bellica Romanorum Libri ii in 1599, England was still at war with Spain. To Gentili’s contemporaries, the Roman conquest of Britain brought to mind the Armada. Charging history with political salience, Gentili’s De Armis Romanis questioned ‘the very legitimacy of the Roman empire, and even more fundamentally, the question of the legitimacy of empire in general’.421 The piece could be read as underscoring the need of a vigorous defence against Spain under the guidance of a warrior queen—Queen Elizabeth i—fighting the invader as a new Boudicca.422 415 Alain Wijffels, ‘Antiqui et Recentiores: Alberico Gentili – Beyond Mos Italicus and Legal Humanism’, in Paul J. du Plessis and John W. Cairns (eds.) Reassessing Legal Humanism and its Claims: Petere Fontes? (Edinburgh: Edinburgh University Press 2016) 27. 416 Straumann, ‘Imperium Sine Fine’, 337. 417 Id. 418 Id. 340. 419 Wijffels, ‘Antiqui et Recentiores’, 27. 420 But see id. (noting that Gentili’s inversion of arguments ‘may be thought to achieve the opposite effect of Carneades’ exercise’). 421 Panizza, ‘Alberico Gentili’s De Armis Romanis’, 55. 422 Paulina Kewes, ‘Henry Savile’s Tacitus and the Politics of Roman History in Late Elizabethan England’ (2011) 74 Huntington Library Quarterly 515–551, 536 and 540 (internal reference omitted); [Publius Cornelius] Tacitus, The Annals, J.C. Yardley (trans) Anthony A. Barrett (ed) (Oxford: oup 2008) Book 14, Chapter 35 (reporting the uprising of the

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A ‘satellite treatise of historical criticism gravitating towards the core of Gentili’s system of jurisprudence’,423 the De Armis Romanis ‘provides the key to understanding the masterpiece, the De Iure Belli’.424 In his De Iure Belli, Gentili ‘d[id] not include the pursuit of empire … among his … just reasons for war’, associating such pursuit with the irregular violence of brigands and the illegitimate war motives of the Ottoman and Spanish empires.425 Gentili explicitly condemned imperialist wars, translated the idea of the balance of power into international legal terms, postulated the legitimacy of preventive war to fight hegemonic ambitions of powerful states and qualified the natural rights whose violations could give rise to war to a significant extent. Far from being absolute rights, the freedom of religion, the freedom of movement, the freedom of commerce, and freedom of the sea were qualified to a significant extent, endorsing a certain balance between private and public interests and between national interests and those of the international community. Finally, some scholars suggest that De Armis Romanis was a mere oratorical exercise, endorsing Gentili’s fundamental ambiguity about empire. For these scholars, Gentili did not provide a definitive answer to the question of whether the Roman Empire had been just;426 rather, he wrote in a spirit of post-modern indeterminacy.427 The De Armis Romanis set out particularly polarized views on the (il)legitimacy of the Roman empire and empire more generally; whether or not these polarities reflected Gentili’s views remains uncertain.428 Despite the legal arguments’ sophistication, whether Gentili praised or criticized the Roman conquest remains unclear. As the De Armis Romanis lacks an introduction or conclusion, the author did not provide the reader with a clear indication of his preference. Both protagonists ‘acted as if they were defending a case before the court’.429 And it is up to the reader to adjudicate on the justice of their respective case. In De Armis Romanis, ‘most facts … are common ground:

British Celtic Iceni tribe led by Queen Boudicca against the occupying Roman forces in ad 60 or 61). 423 Panizza, ‘Alberico Gentili’s De Armis Romanis’, 81. 424 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 246–247. 425 Ian Hunter, ‘Law, War, and Empire in Early Modern Protestant Jus Gentium: the Casuistries of Gentili and Vattel’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuf­ frè 2014) 164–165. 426 Ennio Agabiti, Alberico Gentili—Fondatore della Scienza del Diritto Internazionale (Fermo 1908) 50. 427 Clifford Ando, ‘Empire and the Laws of War: A Roman Archaeology’, in Kingsbury and Straumann (eds) The Roman Foundations of the Law of Nations, 30. 428 Tuck, The Rights of War and Peace, 16–17. 429 Wijffels, ‘Antiqui et Recentiores’, 27.

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what opposes the two argumentations is the assessment of those facts’.430 Gentili noted that while facts could be relatively uncontroversial, they could be used to support different conclusions..431 Analogously, in the De Iure Belli, while Gentili denied the legitimacy of empire as a just cause for waging war, he accepted it as the result of a just war.432 When he discussed the rights of war, he noted that ‘what [wa]s taken on each side [was] the property of the captors’ and admitted the acquisition of land.433 In his discussion of peace treaties, ‘the establishment of an enduring peace justifie[d] a wide range of sanctions against the defeated enemy’.434 In other words, just causes of war were the unreasonable refusal of vacant lands by the local ruler in case of necessity such as drought and famine; the honest defence of vulnerable populations oppressed by a tyrant (even though Gentili clarified that it should not include territorial expansion and he principally referred to the Dutch revolt against Spain); and the punishment of gross violations of the law of nations (such as cannibalism). 7.4.3 International Law and Empire Was the De Armis Romanis a mere ‘rhetorical humanist exercise’?435 Did Gentili criticize or praise the Roman conquest? And, more relevant to our discussion, did he indirectly praise or criticize the Roman Empire as a model for the modern international order? In order to address these questions, this section first examines the dialogic form of the De Armis Romanis. It then examines it in the light of its historical and cultural context.436 The section concludes that De Armis Romanis was a rhetorical humanist exercise that remained deliberately ambiguous. However, Gentili did not write it in a spirit of post-modern indeterminacy; rather, he had anti-hegemonic positions. The ambiguity of some passages of De Iure Belli might be explained by the fundamental indeterminacy of the early modern law of nations. Gentili was a lawyer first and foremost, and he had to rely on, map, and examine existing law. The ambiguity of the De Armis Romanis was deliberate and reflected the winds of change. The De Armis Romanis takes the form of a Renaissance humanist dialogue which was a well-established literary form in England and Continental Europe 430 Wijffels, ‘Antiqui et Recentiores’, 29. 431 Gentili, De Armis Romanis, Dedicatory Epistle, 360–361. 432 Gentili, De Iure Belli, Book i, Chapters 7 and 12. 433 Gentili, De Iure Belli, Book i, Chapter 6, p. 33. 434 Hunter, ‘Law, War, and Empire in Early Modern Protestant Jus Gentium’, 165; Gentili, De Iure Belli, Book iii, Chapter 4, 303–306. 435 Lupher, ‘The De Armis Romanis and the Exemplum of Roman Imperialism’, 98. 436 Id. 99.

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by the second half of the sixteenth century.437 Humanist dialogues were a way of investigating a given topic and experimenting with conflicting ideas.438 They did not seek to provide a definitive solution to a given problem; rather, they constituted theatres of conflicting ideas and challenged their readers to pursue the quest they had begun.439 They pretended to portray an exchange of views without any apparent mediation of the author. Yet, each dialogue was simultaneously a fictional literary exchange and an actual conversation between the author and the reader.440 The author’s views might be conveyed by one of the characters or be segmented in the remarks of different speakers.441 The readers could then infer the implicit opinion of the author from the various conflicting views and form their own opinion on the matter. Thus, ‘humanist dialogues present[ed] their discussions not as definitive treatments but rather as bases for further examination of the subjects discussed’.442 Humanist dialogues intentionally sought to create ambiguities.443 On the one hand, they encouraged readers to see that both sides of an issue could validly be defended. Different readers of the same dialogue might reach different conclusions as to the way to reconcile these tensions or rather opt for one extreme or the other. On the other hand, the ambiguity of such dialogues enabled a ‘filigree of calculated reticenc[e]’, ‘discretion’, and even ‘self-imposed control’.444 In fact, ‘in dialogue [scholars] could dispute ideas without making a commitment to them, without being held responsible’.445 The De Armis Romanis is a humanist dialogue that sets out to assess the ‘deeds of the people who ruled the world, and to search out arguments of proper duty[,] and true virtue and justice’.446 It is a complex work that can be interpreted in different ways. Gentili deliberately used the drafting technique of paired speeches (dissoi logoi) to juxtapose two contrasting perspectives.447 The 437 Virginia Cox, The Renaissance Dialogue: Literary Dialogue in Its Social and Political Contexts, Castiglione to Galileo (Cambridge: cup 1992); Peter Burke, ‘Renaissance Dialogue’ (1989) 3 Renaissance Studies 1–12. 438 K.J. Wilson, Incomplete Fictions—The Formation of the English Renaissance Dialogue (Washington D.C. Catholic University of America Press 1985) 177. 439 Cox, The Renaissance Dialogue, xii. 440 Id. 5. 441 Id. 442 David Marsh, The Quattrocento Dialogue: Classical Tradition and Humanist Innovation (Cambridge, MA: Harvard University Press 1980) 14. 443 Id. 444 Cox, The Renaissance Dialogue, 83. 445 Wilson, Incomplete Fictions, 180. 446 Gentili, De Armis Romanis, Dedicatory Epistle, p. 359. 447 Lupher, ‘The De Armis Romanis and the Exemplum of Roman Imperialism’, 98.

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‘clash between a prosecutor and a defending advocate … emerges as a lively piece of forensic rhetoric’.448 The De Armis Romanis can be read as ‘a rhetorical humanist exercise’.449 The humanist or oratorical tradition ‘drew most extensively on the literary and rhetorical writings of the ancient world’ and commonly employed the rhetorical technique of ‘leaving the reader rather unclear about where the author stood’.450 Nonetheless, Gentili did not write in a spirit of post-modern indeterminacy; rather, he had anti-hegemonic positions. Gentili had firmly endorsed antihegemonic stances in his De Iure Belli, when his home country was mostly subject to foreign dominations and his adoptive country was fighting against Spain, which was then the most powerful nation in the world. The ambiguity of some passages of De Iure Belli might be explained by the fundamental indeterminacy of the early modern law of nations. Gentili was a lawyer first and foremost, and he had to rely on, map, and examine existing law. The enhanced ambiguity of the De Armis Romanis could be due to the shifting political climate. In the 1590s the winds were changing: although England was still at war with Spain, the government had started to nurture expansionist ambitions. It is possible that Gentili was not at ease with the developments and preferred to ‘hide’ his opinions in the De Armis Romanis. Such deliberate ambiguity enabled him to express alternative viewpoints not necessarily in conformity with the political orthodoxy of his time.451 In other words, contradictions and deliberate paradox allowed him to voice his opinions without fear of repercussions. Against this background, some antinomies were intended; the political instability and uncertainty which characterized Gentili’s times were thus reflected in his work. This particular reading of Gentili’s work seems to be supported by the fact that other contemporary scientists attempted to introduce innovative ideas by pairing them with more conservative views and using dialectical tools.452 For instance, in the Dialogue Concerning the Two Chief World Systems, Galileo sought to demonstrate the superiority of the Copernican theory over the Ptolemaic one in the face of the Church’s opposition, by only implicitly endorsing the Copernican system, rather carefully developing the argument of his 448 Panizza, ‘Alberico Gentili’s De Armis Romanis’, 58–59. 449 Lupher, ‘The De Armis Romanis and the Exemplum of Roman Imperialism’, 98. 450 Tuck, The Rights of War and Peace, 16–17. 451 Andrea Greenbaum, Emancipatory Movements in Composition (New York: suny Press 2002) 1–22 (considering the use of the two-fold argument as a way of expressing dissent). 452 Jean Dietz Moss, ‘The Interplay of Science and Rhetoric in Seventeenth Century Italy’ (1989) 7 Rhetorica–Journal of The History of Rhetoric 23–43.

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­ ialogue as a sharp and vivid confrontation of opinions.453 In other words, D the decision to cast the work in the form of a humanist legal dialogue allowed Gentili to discuss his anti-hegemonic theory without openly endorsing it. Certainly, in the De Armis Romanis, Gentili relied on the ‘malleability of the Roman model’,454 to dialectically explore the tension between imperialist and anti-imperialist positions. As a lawyer first and foremost, Gentili was aware of the injustice of empire and the indeterminacy of the law of nations, and he cautioned against abuses of such law. In the De Iure Belli, he cautioned against wars waged for imperial ambition and greed. In De Armis Romanis, he discussed the wars of the Romans to contribute to ongoing debates on the (il)legitimacy of empire. By adopting a type of legal humanist dialogue, Gentili deliberately maintained dualism in order to convey his true opinions about empire. While this book alignes with other scholars in suggesting that Gentili ultimately opposed imperial expansion, given the complexity of Gentili’s work, other readings remain possible. 7.5 The Regales Disputationes Following the examination of the De Armis Romanis and the ambiguity surrounding its interpretation, this section investigates the contribution of the Regales Disputationes to the history and theory of international law.455 Although scholars have traditionally investigated the De Armis Romanis and the Regales Disputationes separately, it is appropriate to juxtapose their analysis in order to better scrutinize Gentili’s contribution to the development of international law by examining his reflection on sovereignty. In discussing sovereignty, scholars generally distinguish between internal sovereignty, that is, ‘governing authority within the state’, and external sovereignty, that is, ‘sovereignty as between states’.456 While De Armis Romanis discusses issues of sovereignty

453 Galileo Galilei, Dialogue Concerning the Two Chief World Systems—Ptolemaic and Copernican [Florence 1632] Stillman Drake (transl) Albert Einstein (foreword) (Berkeley and Los Angeles: University of California Press 1967). 454 Lupher, ‘The De Armis Romanis and the Exemplum of Roman Imperialism’, 91–100. 455 Alberici Gentilis, Regales Disputationes Libri Tres: I De Potestate Regis Absoluta; ii De Unione Regnorum Britanniae; iii De Vi Civium in Regem Semper Iniusta (London: apud Thomam Vautrollerium 1605). 456 James Crawford, ‘Sovereignty as a Legal Value’, in James Crawford and Martti Koskenniemi (eds) The Cambridge Companion to International Law (Cambridge: cup 2012) 117–133, 120.

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as between states, the Regales Disputationes focus on sovereign power within the state, its nature, limits, and resistance against it. Any discussion of internal sovereignty may at first appear to be an issue of public law rather than international law, as international law does not require a specific form of government; rather, it ‘leaves the distribution of authority internally to each state’.457 Yet, the two types of sovereignty are in fact closely connected, as polities ‘act in international relations by virtue of [their] authority in internal relations’.458 Under international law, only sovereign states are independent subjects of the same and can wage war. Moreover, the concept of sovereignty is at the heart of key international law notions such as sovereign equality, state immunity, and the principle of non-intervention. The reason of state also qualifies a number of natural rights, such as freedom of religion.459 In other words, how sovereignty is theorized is relevant to the constitution of international law.460 Moreover, international law also deeply interacts with, and seeks to limit, the reason of state.461 The Regales Disputationes demonstrate that sovereign states are not only subjects of international law, but also remain subject to the same. They posit that ‘assertions in terms of domestic sovereignty are not indefeasible’ and that ‘the apparently clear distinction between internal and international tends to break down … depending on the development of international relations’.462 In fact, transplanted as an idea from the constitutional legal order into international law, ‘sovereignty has often played in reverse’.463 When human security and well-being suffer because of an abuse of internal sovereignty, then the matter no longer belongs to the domestic jurisdiction of the state, but becomes a matter of international concern.464

457 Crawford, ‘Sovereignty as a Legal Value’, 118. 458 Id. 128. 459 Aldo Andrea Cassi, ‘Conquista. Dallo Ius Communicationis allo Ius Belli nel Pensiero di  ­Alberico Gentili’, in Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli—­ Alberico Gentili e gli Orizzonti della Modernità (Milano: Giuffrè 2009) 139–163, 149. 460 Nehal Bhuta, ‘State Theory, State Order, State System—Jus Gentium and the Constitution of Public Power’, in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 398–417, 398. 461 Martti Koskenniemi, ‘International Law and Raison d’État: Rethinking the Prehistory of International Law’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 298. 462 Crawford, ‘Sovereignty as a Legal Value’, 121–122. 463 Id. 126. 464 Id. 131.

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According to Gentili, the internal and external aspects of sovereignty were governed by two distinct regimes. Internal sovereignty followed a top-down pattern and was absolute, whereas external sovereignty followed a bottom-up pattern and remained subject to the law of nations. The Regales Disputationes discuss matters of internal sovereignty and political theory, and complement Gentili’s earlier reflections on external sovereignty and the law of nations. While Gentili conceptually distinguished between domestic law and the law of nations, a certain level of conceptual fluidity remained in his works, as the Gentilian theory of the law of nations deeply limited internal sovereignty detracting from its presumed absolute nature. For this reason, the Regales Disputationes are of interest not only to political theorists, but also to legal historians and international lawyers. However, the Regales Disputationes have been largely neglected by inter­ national law scholars for three reasons. First, they have been traditionally ­considered a treatise on matters of public law. Certainly, they contributed to early modern political theory to a significant extent. However, the Regales Disputationes address not only important matters of public law, but also the crucial interplay between public law and international law. Second, the Regales Disputationes have never been translated from Latin into modern languages and their accessibility to the public has been limited. Gentili did not write in classical Latin, the canon language used by Cicero; instead, he used a Medieval Latin that even classicists find difficult to interpret. Moreover, the Regales Disputationes also include entire passages in ancient Greek. Third, Gentili adopted a dialectical style, the argumentative technique common in medieval disputations of citing and confronting authorities in argument, which can make his works difficult to decipher according to modern standards.465 In addition, he often combined arguments from law and political theory. Even historians of political thought have neglected Gentili, primarily focusing on Jean Bodin (1530–1596) and Thomas Hobbes (1588–1679). While the masterpieces of these scholars on matters of political theory appeared in French and English respectively, the Gentilian works were written in Latin. Nonetheless, Gentili represented more than a mere link between Bodin and Hobbes. While he certainly relied on Bodin,466 he also introduced key distinctions in his legal theory. In parallel, although Gentili may have influenced 465 Andrew Sharp, ‘Alberico Gentili’s Obscure Resurrection as a Royalist in 1644’, in vvaa, ­Alberico Gentili—L’Ordine Internazionale in un Mondo a più Civiltà (Milano: Giuffrè 2004) 290. 466 Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven: Yale University Press 1996) 77.

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Hobbes, who studied in Oxford while Gentili was a Regius Professor of civil law there, the Gentilian and Hobbesian political theories diverge to a significant extent, and the Gentilian theory remains worthy of separate investigation.467 More fundamentally, the Regales Disputationes deserve investigation because they epitomize the Gentilian theory of internal sovereignty and complement his theory on external sovereignty. This section discusses the Regales Disputationes and their key contribution to the history and theory of international law as follows. First, it briefly describes the emergence of absolutism in the early modern period. Second, it explores Gentili’s theory of the absolute power of the sovereign. Third, it focuses on Gentili’s discussion of the royal prerogative. Fourth, it investigates the limits to sovereign authority that Gentili envisaged and that states could not overstep. Finally, the section concludes by providing a critical assessment of Gentili’s conceptualization of sovereignty, highlighting the close connection between the concept of internal sovereignty and his vision of international order. 7.5.1 The Emergence of Absolutism and the Royal Disputations The Gentilian discussion of sovereignty must be placed within the broader political debates of the period. In the early modern period, the concept of sovereignty (supremitas)—its origins, forms, and limits—became a central focus of discussion.468 In Europe, the emergence of absolutist theories reflected the emergence of sovereign states that acknowledged no earthly superior as a result of long historical processes culminating in the Reformation. The Reformation propelled the formation of independent and sovereign states, ‘challenging the claim of the Papacy to universal sovereignty, both in the temporal and in the spiritual world’.469 In parallel, European debates were ‘part of a larger, truly global struggle over legal order’.470 467 Carlo Galli, ‘Alberico Gentili e Thomas Hobbes. Crisi dell’Umanesimo e Piena Modernità’, in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 91–112, 94. 468 Quentin Skinner, The Foundations of Modern Political Thought, vol. ii: The Age of Reformation (Cambridge: cup 1978) 349. 469 Thomas W. Balch, ‘Albericus Gentilis’ (1911) 5 ajil 665–679, 667. 470 Roland Mousnier, ‘Quelques Remarques pour une Comparaison des Monarchies Absolues en Europe et en Asie’ (1984) 272 Revue Historique 29–44 (discussing the rise of Islamic empires such as the Ottomans and the Mughals, as well as Asian forms of absolutism in the early modern period.); Lauren Benton, ‘Made in Empire: Finding the History of International Law in Imperial Locations’ (2018) 31 Leiden Journal of International Law 473–478, 475 (noting that as composite polities, empires ‘necessarily devised ways of managing legal complexity’ and ‘interpolity regulation … well before the widespread recognition of international law as a professional field’.); Jane Burbank and Frederick Cooper (eds.)

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While theories and experiences of absolute power varied across different geographical and cultural areas, a common core of absolutist thought emerged, effectively shaping the emergence of the modern world.471 Scholars addressed the key question of ‘how to construct a unity out of the natural plurality and diversity of individuals’ and perceived the state (civitas) as a perfect unit (socie­ tas perfecta).472 By achieving unity, the state enabled essential conditions of human flourishing, such as peace, security, and justice. Fears of the dark consequences of religious strife and civil war fostered the call for a centralized authority and absolute sovereignty.473 Political theorists of the sixteenth and seventeenth centuries emphasized that the locus of power should be undivided, unlimited, and internal to the state.474 This notion was in stark contrast to the legal pluralism of non-state medieval polities, through which different people exercised different types of authority over the same land, and there was no meaningful difference between domestic and international spheres due to the lack of definite boundaries and mutually exclusive states.475 From the late sixteenth to the late seventeenth century, absolutism emerged as the mainstream of political theory and practice. Not only was it perceived as a remedy to the anarchy provoked by the civil wars, but it was also seen as a tool for strengthening the state in a world of increasingly threatening, competitive, and violent international relations.476 The reason-of-state writers also contributed to the emergence of absolutist thinking in early modern Europe. The reason of state (ragion di stato), a term first used by the Florentine historian Guicciardini (1483–1540) and widespread in the literature of the time,

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Empires in World History: Power and the Politics of Difference (Princeton: Princeton University Press 2010) (arguing that much of world history has been shaped not only by foreign but also locally produced devices of imperial control.) Cesare Cuttica and Glenn Burgess, ‘Introduction: Monarchism and Absolutism in Early Modern Europe’, in Cesare Cuttica and Glenn Burgess (eds) Monarchism and Absolutism in Early Modern Europe (London: Routledge 2012) chapter 1. Bhuta, ‘State Theory, State Order, State System’, 413 (internal reference omitted). Roland Mousnier, ‘Les Concepts d’ «Ordres» d’ «États», de «Fidélité» et de «Monarchie Absolue» en France de la Fin du xv e Siècle à la Fin du xviii e’ (1972) 247 Revue Historique 289–312, 305 (noting that for Bodin ‘la première raison d’être de la monarchie est de faire vivre ensemble un nombre d’hommes … en accordante harmonie … ceci à l’intérieur du royaume, mais aussi à l’extérieur, entre les différents peuples et états’.) Kinch Hoekstra, ‘Early Modern Absolutism and Constitutionalism’ (2013) 34 Cardozo Law Review 1079–1098, 1079. Hendrik Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton, NJ: Princeton University Press 1996) 3. Panizza, ‘Le Idee Politiche di Alberico Gentili’, 31 and 34.

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­ rioritized self-preservation over other concerns and was a central theme in p Gentili’s Regales Disputationes.477 The Regales Disputationes thus reflected the gradual diffusion of an absolutist vision of state sovereignty in the contemporary European political thought, and its content aligned with that of other reason-of-state writers such as Giovanni Botero, Scipione Ammirato, and Jean Bodin.478 The former Jesuit, diplomat, and courtier Giovanni Botero (1544–1617) advised sovereigns not to pursue a policy of expansion, placing the preservation (il conservare) of states before their expansion (l’aggrandire).479 Analogously, the historian Scipione Ammirato (1531–1601) discussed the reason of state, stating that it enabled derogations to the law, while still requiring compliance with divine and natural law.480 Ammirato also condemned the ambition of insurgents and criticized the futility of revolts.481 The concept of absolutism was given its early modern impetus by Jean Bodin (1530–1596). While Bodin had adopted a constitutionalist orientation in earlier works, in his République, he developed an absolutist theory of sovereignty, arguing that sovereignty should be supreme, unified, absolute, and perpetual.482 According to Bodin, sovereigns were accountable only to God, and he reasoned against any resistance theory.483 While Bodin generally acknowledged that different polities had different constitutions, he likely leaned toward absolutism after the St. Bartholomew Day Massacre of 1572: fears of civil wars and analogous slaughters probably led Bodin to shift perspective.484 Bodin deeply influenced Gentili, who read the République while writing De Iure Belli.485 477 478 479 480

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Panizza, ‘Il Pensiero Politico di Alberico Gentili, 173. Panizza, ‘Le Idee Politiche di Alberico Gentili’, 55. Giovanni Botero, Della Ragion di Stato Libri Dieci (Venice: de Ferrari 1589). Scipione Ammirato, Discorsi sopra Cornelio Tacito (Florence: Giunti 1594), Book xii, Discourse i, Della Ragione di Stato (defining the ragion di stato as ‘contravvenzione di legge ordinaria, per rispetto di publico beneficio, ovvero per rispetto di maggiore e più universale ragione’.) Id. Book xix, Discourse 10. Jean Bodin, Les Six Livres de la Republique (Paris: chez Iacques du Puis 1583). See generally Julian Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge: cup 1973). Claire Vergerio, ‘Alberico Gentili’s De Iure Belli: An Absolutist’s Attempt to Reconcile the Jus Gentium and the Reason of State Tradition’ (2017) 19 Journal of the History of International Law 429–466, 444–445. Cfr. François de La Noue, Discours Politique et Militaire (Basel: François Forest 1587) (providing a historical analysis of the French religious wars in the form of a military diary and emphasizing the importance of internal peace). Alain Wijffels, ‘From Perugia to Oxford: Past and Present of Political Paradigms’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 59–78, 68–69.

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Early seventeenth-century England was still a nation in the making, divided between religious and political factions, and constantly on the cusp of both civil and international wars. It was a time of domestic plots and religious strife.486 With the start of the Stuart period in 1603, tensions between the Crown and Parliament crystallized inter alia around James i and his pretensions to absolutism, as well as over the Parliament’s role in the constitutional order. While the Parliament had gradually acquired a distinct institutional identity, the King endorsed the concept of the divine right of sovereigns.487 The pending risk of a civil war, the existence of religious factions, and the conservatism of James i all contributed to the absolutist turn of Gentili’s work.488 It was a time of endless cycles of devastating wars; without peace at home, the survival of the polity was at risk. Gentili’s Regales Disputationes reflected the gradual expansion of royal power in England. Before the 1580s, England could be compared to a ‘monarchical republic’, a ‘common weal’ (res publica) where the sovereign power was limited by law.489 However, successive monarchs continuously tried to expand royal power in the realm.490 The Elizabethan regime adopted absolute ideas of sovereignty, denounced theories that legitimized resistance to princely rule, and grew more authoritarian in tone in response to the perceived threat of plots, civil war, and religious strife.491 A further ‘swing to the right’ characterized the political culture of the 1590s.492 The last decade of the sixteenth century has 486 On 5 November 1605, in the so-called Gunpowder Plot, a group of English Catholics attempted to assassinate King James i and blow up the House of Lords. 487 James vi of Scotland, The True Law of Free Monarchies (Edinburgh: Robert Walde 1598); James vi of Scotland, Basilikon Doron (Edinburgh: Robert Walde 1599); James i [of Great Britain], ‘A Speech to the Lords and Commons of the Parliament at White-Hall, on Wednesday the xxi of March Anno 1609’, in James i, Works (James Winton 1616) 527–531. 488 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 116. 489 Patrick Collinson, ‘The Monarchical Republic of Queen Elizabeth I’ (1987) 69 Bulletin of the John Rylands Library 394–424. 490 Wallace T. MacCaffrey, ‘Place and Patronage in Elizabethan Politics’, in S.T. Bindoff, J. Hurstfield, and C.H. Williams (eds.) Elizabethan Government and Society (London: University of London 1961) 95–126, 95. 491 Alexandra Gajda, The Earl of Essex and Late Elizabethan Political Culture (Oxford: OUP 2012) 15; Alexandra Gajda, ‘Debating War and Peace in Late Elizabethan England’ (2009) 52 The Historical Journal 851–878, 853; Cornel Zwierlein, ‘Scipione and Alberico Gentili on Conspiracies around 1600: Tacitean Views on the Crimen Laesae Majestatis’, in Vincenzo Lavenia (ed) Alberico e Scipione Gentili nell’Europa di Ieri e di Oggi. Reti di Relazioni e Cultura Politica—Atti della Giornata Gentiliana in Occasione del iv Centenario della Morte di Scipione Gentili (1563–1616) San Ginesio, 16–17 Settembre 2016 (Macerata: Edizioni Università di Macerata 2018). 492 Gajda, The Earl of Essex and Late Elizabethan Political Culture, 17.

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been described as ‘the darkest and most turbulent of the Queen’s reign’.493 Indeed, economic hardship, war, and factional discord characterized ‘these twilight years of the reign’.494 In response, ‘greater emphasis was laid on the obedience of subjects’, the ‘sanctity’ of the political order, and royal supremacy.495 The ascent to the throne of James i on 24th March 1603 reinforced such conservative trends. In his 1598 treatise, The True Law of Free Monarchies, James i defended the doctrine of the divine right of sovereigns and endorsed an absolutist theory of monarchy.496 Published in London in 1605 and dedicated to King James i, the Regales Disputationes discuss key issues of sovereignty.497 Gentili argued in favour of a centralized state power as a tool of survival in a dangerous domestic environment and a competitive international realm.498 The first disputation, De Potestate Regis Absoluta (On the absolute power of the sovereign), elaborated a theory of state sovereignty and addressed the question of whether the power of the sovereign should be absolute. The second disputation, De Unione Regnorum Britanniae (On the Union of the Kingdoms of Britain), discussed a topical matter of then international (now public) law. In this work, Gentili advocated a closer political, economic, and religious union between England and Scotland. After King James vi of Scotland ascended to the throne of England as James i, the Union of the Crowns took place, but it was a personal union. The King aimed to make it permanent despite the opposition of the respective Parliaments of the two Kingdoms raising all sorts of legal objections.499 Gentili’s dissertation supported the idea of a formal political union between England and Scotland, beyond the existing personal union.500 After discussing the promises and pitfalls of the

493 Gajda, The Earl of Essex and Late Elizabethan Political Culture, 17. 494 Paul E.J. Hammer, The Polarization of Elizabethan Politics: The Political Career of Robert Devereux, 2nd Earl of Essex, 1585–1597 (Cambridge: cup 1999) 1. 495 Gajda, The Earl of Essex and Late Elizabethan Political Culture, 17. 496 James [Stuart] vi of Scotland, The True Law of Free Monarchies (Edinburgh: Robert Walde 1598). See also James [Stuart] vi of Scotland, Basilikon Doron (Edinburgh: Robert Walde 1599). 497 Alain Wijffels, ‘Alberico Gentili e i Fondamenti Storico-Concettuali del Diritto Comune Europeo’, in vvaa, Alberico Gentili nel Quarto Centenario del De Iure Belli (Milan: Giuffrè 2000) 173–205, 191. 498 Kingsbury, ‘Confronting Difference’, 719. 499 McPhail, ‘The Rich Freedoms of England’, 100. 500 For a similar approach, see Francis Bacon, A Brief Discourse Touching the Happy Union of the Kingdom of England and Scotland [1603] (London: Milbourne 1700).

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union, he concluded that it was up to the King to make the decision.501 While Gentili relied on authorities from different legal fields, including canon law, his arguments primarily exhibited a political character.502 He largely neglected the conflicts of interest that characterized large sectors of society privileging an absolutist vision of power.503 According to Gentili, the authority of the sovereign should suffice, at least in theory, to balance any possible conflict of interest.504 Although the English Parliament rejected political union with Scotland in 1607, the two kingdoms were eventually united over a century later, by the Acts of Union 1707. De Unione Regnorum Britanniae bridged the gap between the first and third dissertations, which focused on the power of the sovereign and the rights of the citizens respectively, by discussing the union of King James i and his citizens in a single body politic.505 Gentili argued that a closer union would lead to internal peace (bona pax), thus contributing to a greater external security of the kingdom.506 By reinforcing its internal sovereignty, the kingdom would acquire more relevance in its external relations. In this regard, the disputation sought the realization of a United Kingdom that could transcend the particularism of its components. For Gentili, political unions expressed the natural tendency of humankind to be united and should therefore be promoted. Gentili’s third essay, De Vi Civium in Regem Semper Iniusta (any violence against a sovereign by citizens is always unlawful) addressed a key political issue of the time: the use of violence against the sovereign.507 Previously discussed in the Middle Ages, the topic acquired critical relevance in the early modern period with the emergence of sovereign states.508 It raised fundamental questions about sovereignty and resistance to sovereign power.509 After refuting ten arguments in favour of the use of force against the sovereign, Gentili

501 Alain Wijffels, ‘Alberico Gentili e l’Unione Anglo-Scozzese: Alla Ricerca di una Nuova Matrice per il Discorso Politico’, in vvaa, Alberico Gentili—La Soluzione Pacifica delle Controversie Internazionali (Milano: Giuffrè 2003) 159–177, 162. 502 Id. 171–172. 503 Id. 174. 504 Id. 175. 505 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 206. 506 Panizza, ‘Le Idee Politiche di Alberico Gentili’, 53. 507 Alain Wijffels, ‘Assolutismo Politico e Diritto di Resistenza: la Disputatio Gentiliana De Vi Civium in Rege Semper Iniusta’, in vvaa, Alberico Gentili—L’Uso della Forza nel Diritto Internazionale (Milano: Giuffrè 2006) 433–457, 435. 508 Id. 509 Id.

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put forward ten counterarguments.510 He concluded by denying the legitimacy of political violence against a sovereign by citizens within the state.511 7.5.2 Conceptualizing Sovereignty Because the dialectics between law and politics has always shaped international law, Gentili’s political theory of sovereignty constitutes a fundamental key to understanding his theory of the law of nations.512 Before examining the linkage between internal and external sovereignty in the Gentilian work, this section briefly explains Gentili’s conceptualization of sovereignty. A disclaimer is in order: The question as to whether Gentili’s absolutist theory of sovereignty demonstrated a prescriptive or descriptive, contingent or general character remains open.513 A balanced assessment is difficult, as Gentili’s positions evolved over the course of his career, and ‘branding him as an absolutist was a very convenient way for Catholic critics to undermine the Protestant’s work when it was revived in the nineteenth century’.514 Whether Gentili’s conceptualization of sovereignty was contingent, responding to the specific historical situation of Jacobean England, or general remains a matter of debate. However, irrespective of whether Gentili’s analysis was prescriptive or descriptive, an examination of this theory greatly contributes to understanding his theory of the law of nations. Gentili generally acknowledged the existence of a plurality of political forms and models, such as democracy, aristocracy, and monarchy.515 He noticed that very often the character, habits, and laws of human beings ‘correspond with the features of their native lands’,516 and stressed that the type of governance should suit the spirit of those governed.517 He did not consider absolutism as the best, let alone the only, form of government.518 Rather, he

510 Wijffels, ‘Assolutismo Politico e Diritto di Resistenza’ 440. 511 Wijffels, ‘Alberico Gentili e i Fondamenti Storico-Concettuali del Diritto Comune Europeo’, 192. 512 Vergerio, ‘Alberico Gentili’s De Iure Belli: An Absolutist’s Attempt to Reconcile the Jus Gentium and the Reason of State Tradition’ (2017) 444. 513 Wijffels, ‘Alberico Gentili e i Fondamenti Storico-Concettuali del Diritto Comune Europeo’, 203. 514 Vergerio, ‘Alberico Gentili’s De Iure Belli’, 432. 515 Gentili, De Iure Belli, Book iii, Chapter 10, pp. 336–337. 516 Gentili, De Iure Belli, Boook iii, Chapter 7, p. 317. 517 Sharp, ‘Alberico Gentili’s Obscure Resurrection as a Royalist in 1644’, 307. 518 Alain Wijffels, ‘Le Disputazioni di Alberico Gentili sul Diritto Pubblico’, in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 250.

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conceptualized absolutism as a response to political instability.519 In countries on the verge of civil war, Gentili argued that an absolutist mode of government might be suitable to address political instability.520 In some circumstances, tyrants had taken the place of princes, and conversely, republics had replaced monarchies. For Gentili, the Florentines, who were notoriously seditious, needed the principate of Cosimo de’ Medici (1389–1464). Vice versa, it was expedient and just for the Romans to overthrow monarchy.521 Nonetheless, in his Regales Disputationes, Gentili focused on absolute monarchy and formulated a contractual theory of absolute sovereignty. By constituting themselves as a body of citizens, the people irrevocably transferred the power to govern the polity to the sovereign. Like Bodin, Gentili conceptualized sovereignty as ‘the supreme, indivisible, and absolute power of the ruler over its citizens’, subject to no other authority except for divine and natural law.522 In the first royal disputation on the absolute power of the King (De Potestate Regis Absoluta), Gentili defended an absolutist theory of sovereignty, granting almost unlimited powers to the ruler. According to Gentili, after a given community had transferred power to the ruler, the sovereign became absolute. Not only did sovereigns remain subject to God alone, but they were like God in their own kingdoms (Princeps est Deus in terris).523 Relying on Bodin, Gentili defined sovereignty as the ‘absolute and perpetual power’ of the sovereign over citizens (potestas absoluta et perpetua), and conceptualized the sovereign as unbound by human law (princeps legibus solutus est) and subject to none (supra principem nihil est).524 Like Bodin, Gentili also conceptualized sovereigns as supreme equals (aequalitas et supremitas).525 For Gentili, the duty of the sovereign consisted of governing the state for the common good. Gentili emphasized that sovereigns were entrusted with power 519 Davide Suin, ‘Principi Supremi e Societas Hominum: il Problema del Potere nella Riflessione di Alberico Gentili’ (2017) 24 Scienza e Politica 107–124, 121. 520 Diego Panizza, ‘Le Idee Politiche di Alberico Gentili’ (1976) Il Pensiero Politico 20–56, 33. 521 Gentili, De Iure Belli, Book iii, Chapter 10, pp. 336–337. 522 Andreas Wagner, ‘Alberico Gentili—Sovereignty, Natural Law, and the System of Roman Civil Law’, in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 92–114, 97. 523 Gentili, Regales Disputationes, i, 9 (‘Ille est huic absolute supremus, qui nihil supra se, nisi Deum agnoscit: nec cuiquam reddere rationem, nisi Deo, habet’) and 8 (‘Supremi sunt, quibus est nullus supra: sed ipsi sunt supra omnes in omnibus’) and i, 11. 524 Bodin, République, i, 8; Gentili, Regales Disputationes, i, 9 and i, 7. 525 Gentili, Regales Disputationes, i, 9 (ille est huic absolute supremus, qui nihil supra se, nisi Deum agnoscit: nec cuiquam reddere rationem, nisi Deo, habet); Wijffels, ‘From Perugia to Oxford: Past and Present of Political Paradigms’, 66.

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not to dominate their subjects, but to serve as trustees of the state ([potestas] est tamen non dominationis, sed administrationis’.):526 ‘kingdoms were not made for [sovereigns] but [sovereigns] for their kingdoms’ (non regna esse propter reges, sed reges propter regna factos esse).527 It was the duty of sovereigns, Gentili argued, to defend, protect, and care for their subjects and their country.528 Gentili compared the art of government to medicine: in the same way that doctors exercise their practice to save human lives, sovereigns govern the state for the common good.529 His doctrine on sovereignty reflected a conceptualization of the sovereign as ‘a common parent to all’ (parens patriae),530 and of the art of government as the relationship between parents and their children.531 Any power (potestas) should be used in a just and reasonable fashion (according to a sound person’s judgment—the arbitrium boni viri).532 Relying on the lex regia, Gentili held that ‘what pleas[ed] the sovereign, ha[d] the strength of law’ (quod principi placuit, legis habet vigorem).533 Nevertheless, Gentili mitigated the force of the normative power of the sovereign relying on the Roman law principle of digna vox, which admonished the ruler to respect the law and according to which the ruler voluntarily abided to the law in normal circumstances. Gentili highlighted that while the sovereign held legislative power (potestas condendi leges),534 laws should be reasonable 526 Gentili, De Iure Belli, Book iii, Chapter 15, p. 372 and Chapter 22, p. 412 (‘[principibus] commissa tutela est, non dilapidatio’.) 527 Gentili, De Iure Belli, Book i, Chapter 16, p. 76; Book iii, Chapter 12, p. 349 (‘governments are constituted not for the advantage of any individual, but for that of the community’.) 528 Gentili, Hispanica Advocatio, Book i, Chapter xviii, p. 80; Gentili, De Iure Belli, Book iii, Chapter 12, p. 350. 529 Alberico Gentili, Lodi delle Accademie di Perugia e di Oxford (Perugia: Libreria Universitaria 1968) 78–79; Alberici Gentilis, De Legationibus, Book ii, Chapter 7; Regales Disputationes, i, 16 (reges nostros esse veluti medicos). See also Francis Bacon, ‘The Apology of Sir Francis Bacon in Certain Imputations concerning the Late Earl of Essex’ in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: Murphy 1876) 333–341, 335 (using the same metaphor) and James i, ‘A Speech to the Lords and Commons of the Parliament at White-Hall, on Wednesday the xxi of March Anno 1609’, in James i, Works (James Winton 1616) 527–531, at 529. 530 See also Pierino Belli, A Treatise on Military Matters and Warfare [De Re Militari et Bello Tractatus] (Oxford: Clarendon Press 1936) Part ii, Chapter ii, p. 62; cfr. James i, Speech of 21 March 1609, 527–531 (arguing that the power of the sovereign should be used ‘ad aedificationem, non ad destructionem’ and also referring to the concept of sovereign as parens patriae). 531 Gentili, De Iure Belli, Book i, Chapter 10, p. 47. 532 Gentili, Regales Disputationes, i, 23. 533 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 184. 534 Straumann, ‘The Corpus Iuris as a Source of Law between Sovereigns in Alberico Gentili’s Thought’, 103.

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and just.535 Moreover, sovereign powers were not completely boundless. According to Gentili, sovereigns remained subject to divine, natural, and international law.536 For example, sovereigns could not arbitrarily kill people in their kingdoms, or sell their kingdoms and their citizens. They should not seek their own advantage or aim for profit alone.537 The necessary condition for any exercise of sovereign power was the permanence of the state.538 Gentili neatly distinguished sovereignty from tyranny. Whereas Gentili knew that a standard form of government such as monarchy could degenerate into tyranny, he maintained a conceptual division between the two forms of government.539 Gentili considered the sovereign to be a king as long as he ruled well, but a tyrant when he oppressed the people entrusted to his care.540 According to Gentili, while the sovereign (princeps) was guided by justice and the commonweal, the tyrant (tyrannus) prioritized his own individual interests over the common good.541 While the sovereign permitted the peaceful coexistence of different beliefs, the tyrant forcefully imposed uniformity of faith.542 While the sovereign voluntarily respected the rule of law and ­complied with d­ ivine and natural law, the tyrant breached all such legal frameworks.543

535 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 184. 536 Suin, ‘Sovrani e Sudditi’, 266; Cfr. Mousnier, ‘Les Concepts d’«Ordres» d’«États», de «Fidélité» et de «Monarchie Absolue» en France de la Fin du xve Siècle à la Fin du xviiie’, 307 (noting that for the French theorists of absolutism ‘restent en dehors de la puissance du roi tous les droits que ses sujets tiennent de la loi de nature, dont une partie a été transformée en droit divin positif par la volonté de Dieu et est contenue dans le Décalogue: droit de propriété, [droit de famille] ( familia), liberté et franchise de sa personne, etc. Le devoir du roi est d’assurer le respect de la loi de nature et de la loi de Dieu’.) 537 Gentili, De Iure Belli, Book iii, Chapter 12, p. 350. 538 Alberici Gentilis, Disputationum Decas Prima (Londini: 1587) Disputatio ii, p. 47 (elaborating a conservative vision of the domestic legal order in which sovereigns were seen as parents of their subjects holding an absolute power over the same (supra principem nihil est), but arguing that sovereigns remained bound not to adopt measures that could endanger the very existence of the state (omnis data potestas, sed … ea quae civitate manente competat). 539 Gentili, De Iure Belli, Book iii, Chapter 22, p. 415 (‘a tyrant and a king are not the same thing … how diametrically opposed the two things are!’) 540 Cf. Bracton, Note Book—A Collection of Cases [written 1220–30 and first printed in 1569] F.W. Maitland (ed) vol. iii (London: cup 1887) 9.3 (‘rex est dum bene regit, tyrannus dum populum sibi creditum violenta opprimit dominatione’.) 541 Gentili, Regales Disputationes, i, 34; Gentili, De Iure Belli, Book i, Chapter 10, p. 47. 542 Gentili, De Iure Belli, Book i, Chapter 10, p. 47. 543 Suin, ‘Principi Supremi e Societas Hominum’, 116.

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Furthermore, whereas the just prince respected the rights of his subjects and did not limit such rights without just cause, the tyrant treated free persons as slaves.544 Both sovereigns and their subjects abided by the law: the latter because they were obliged to, the former because of their willingness to do so in order to promote the common good.545 In the De Iure Belli, Gentili regarded sovereignty as a lawful supremacy and depicted the ideal sovereign as one who did not desire to be a tyrant, but rather the parent of his people (parens patriae). For Gentili, the sovereign ought to reign not as much for his own sake as for that of his subjects, and should be the fountain head of peace.546 Gentili explained that sovereigns and their subjects had mutual obligations (mutua obligatio): they should protect each other, and while the former should govern well, the latter should abide by the law.547 This idea of mutual obligations was also developed by Bodin and other French absolutist theorists, who similarly conceptualized a reciprocal duty of fidelity between the sovereigns and their citizens.548 If a sovereign breached this compact, for example, by desiring to change the religion of his or her subjects, Gentili dismissed the idea that sedition, let alone tyrannicide, could address such behaviour. Rather, deeply influenced by Stoic moral philosophy, he claimed that private citizens had no choice but to flee.549 7.5.3 The Royal Prerogative Gentili also discussed ‘the key constitutional question of the age’: the royal prerogative (regia prerogativa).550 As Poole aptly highlights, this doctrine was ‘something like the dark matter’ of absolutist constitutional discourse, as it addressed the question of whether the sovereign had ‘the capacity to act outside normal legal channels’.551 The royal prerogative traditionally referred to a

544 Gentili, Regales Disputationes, i, 27. 545 Id. i, 30. 546 Gentili, De Iure Belli, Book i, Chapter 10, pp. 46–47; Book iii, Chapter 22, p. 413. 547 Id. Book i, Chapter 22. 548 Mousnier, ‘Les Concepts d’«Ordres» d’«États», de «Fidélité» et de «Monarchie Absolue» en France de la Fin du xv e Siècle à la Fin du xviii e’, 303 (noting that for French absolutist theorists, ‘la fidélité est le «sang» du corps politique. Elle porte dans toutes ses parties le mouvement et la vie. Fidélité du roi aux lois fondamentales du royaume … la conservation de la couronne, de ses sujets et de leurs intérêts’.) 549 Wagner, ‘Alberico Gentili—Sovereignty, Natural Law, and the System of Roman Civil Law’, 100; Gentili, De Iure Belli, Book i, Chapter 11, pp. 50 and 52. 550 Poole, ‘Hobbes on Law and Prerogative’, 90 and 85. 551 Id.

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b­ undle of powers that the Crown could exercise without Parliament’s consent.552 While sovereigns exercised their ordinary powers through law, in case of need, they ‘could act outside the law at least in those circumstances where … the safety of the public required it’.553 Gentili discussed the royal prerogative by applying a historical analogy in an anachronistic manner. He examined a Roman law, the lex regia de imperio, by which the Roman people had delegated their authority to the emperor.554 Gentili interpreted the lex regia expansively, considering it to epitomise a total and irreversible transfer of power from the people to the sovereign.555 He refuted arguments against the absolutism of the sovereign.556 For Gentili, the sovereign was not bound by domestic laws, rather having the unfettered power to change them.557 This contrasted with the analysis of the rex regia conducted by his brother, Scipione Gentili, who had some decidedly republican attitudes and reaffirmed the sovereign’s duties under divine, natural, and civil laws.558 Did Gentili distinguish between the ordinary (potestas ordinaria) and extraordinary powers (potestas extraordinaria) of the sovereign?559 This distinction first derived from medieval thought: theologians distinguished between ordained and absolute divine power (potentia Dei ordinata et absoluta).560 Medieval canon lawyers subsequently transplanted this reflection about divine power from theology to legal theory in order to define the extension and the

552 Benjamin Straumann, ‘The Corpus Iuris as a Source of Law Between Sovereigns in Alberico Gentili’s Thought’ in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: oup 2010) 109 (referring to the theory of the humanist legal historian Antonio Augustin (1517–1586)). 553 Poole, ‘Hobbes on Law and Prerogative’, 85. 554 Diego Panizza, ‘Il Pensiero Politico di Alberico Gentili. Religione, Virtú e Ragion di Stato’, in Diego Panizza (ed.) Alberico Gentili. Politica e Religione nell’Età delle Guerre di Religione (Milano: Giuffrè 2002) 57–213, 180. 555 Gentili, Regales Disputationes, i, 35. 556 Id. i, 15. 557 Straumann, ‘The Corpus iuris as a Source of Law between Sovereigns in Alberico Gentili’s Thought’, 105. 558 Bianchin, ‘Il Diritto Pubblico nel Rinnovamento della Tradizione Dottrinale’, 437; Scipionis Gentili, Oratio de Lege Regia de Imperio Principis (Norimbergae 1600); Scipionis Gentilis, De Iurisdictione Libri iii, Book iii, Chapter 22 (praising the German Free and Imperial Cities, nostalgically comparing them to the medieval Italian communes). 559 Gentili, Regales Disputationes, i, 10. 560 Massimiliano Traversino Di Cristo, ‘La Questione della Potentia Dei Absoluta in Alberico Gentili’, in Vincenzo Lavenia (ed) Alberico Gentili—Diritto Internazionale e Riforma (Milano: Giuffrè 2017) 113–145, 122.

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limits of the temporal power.561 While the ordinary powers of the sovereigns required them to comply with the law, the extraordinary powers (plenitudo potestatis) enabled them to derogate from the law (royal prerogative).562 In exceptional circumstances, a sovereign could adopt authoritarian measures that might look tyrannical in order to protect the safety of the people (salus populi) or the state (salus reipublicae).563 Was Gentili interpreting the lex regia as a law which freed the sovereign from having to comply with all domestic laws at all times?564 According to Baldus (1327–1400), an eminent commentator on civil law, sovereigns were ‘superior to every positive law’, but they could subject themselves to reason and were subject to reason because they were reasonable beings.565 Baldus considered that sovereigns could not recall a privilege through their ‘proper and ordinary powers’.566 Gentili agreed with Baldus that sovereigns were superior to every positive law, and that they should exercise sovereign authority reasonably, legitimately, and with justice.567 While Gentili noted that a privilege could not be recalled without cause,568 he also added that at the domestic level, the sovereign did not need to provide reasons for his conduct and might ‘substitute his will for the giving of reasons’.569 However, the sovereign remained bound by divine law, natural law, and the law of nations.570 Therefore, at the international level, the sovereign had to provide reasons for his conduct and remained accountable to the international community. Because sovereigns did not acknowledge any superior, there could be no arbitration or adjudication between sovereigns unless they themselves consented to these processes.571 Nonetheless, in cases of breach of the law of nations or of the law of nature, other states could ­legitimately wage war 561 Id. 123. 562 Gentili, Regales Disputationes, i, 10. 563 Suin, ‘Principi Supremi e Societas Hominum’, 114. 564 In this sense, see Straumann, ‘The Corpus Iuris as a Source of Law between Sovereigns in Alberico Gentili’s Thought’, 110. 565 Gentili, De Iure Belli, Book iii, Chapter 16, p. 378. 566 Id. (emphasis added). 567 Id. Book ii, Chapter 17, p. 229 (‘what is so like a beast as to exercise power and neglect reason’.); Id. Book ii, Chapter 17, p. 226 (‘what is allowed to the will ought not to go beyond reason’) and p. 227 (‘power is properly used of that which we can do legitimately and without injustice’.) 568 Id. Book iii, Chapter 16, p. 378 (‘it is better to adhere to honesty and good faith’.) 569 Straumann, ‘The Corpus Iuris as a Source of Law between Sovereigns in Alberico Gentili’s Thought’, 105. 570 Id. 106. 571 Gentili, De Iure Belli, Book i, Chapter 3, p. 22.

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against the non-compliant state to redress the wrong or in self-defence. This did not necessarily mean that the law of nations was an inflexible system. For instance, Gentili discussed the question of whether a party might withdraw from or terminate a given treaty had there been a fundamental change of circumstances.572 In fact, for Gentili, the emergence of fundamentally different circumstances constituted a just cause for terminating treaties. He specified that if an agreement was ‘contrary to natural reason’, then it should not be kept, eventhough reasons for noncompliance with the treaty should be provided.573 He also envisaged a number of exceptions to general rules of free trade and freedom of religion, among others. Certainly, Gentili believed that any ‘plenitude of power’ should be used ‘justly’; the reason of state required the sovereign to act well in accordance with natural law and divine law.574 Gentili understood ‘power’ (potestas) not with reference to its abuse, but ‘to its legitimate use’ (ad legitimum usum).575 In this perspective, ‘fullness of power’ (plenitudo potestatis) was granted for achieving that which was ‘good and praiseworthy’, not ‘what [was] tyrannical and deserving of censure’.576 As Gentili wrote, ‘fullness of power, however broad and absolute it [might] be, [was] so limited that nothing unseemly [was] admitted’.577 The fullest exercise of power (plenissima potestas) always demanded good faith and should not go beyond reason:578 ‘[u]nless used justly, a plenitude of power would be a plenitude of storms’.579 Gentili argued that a plenitude of powers found its origin and end in the safety of the people, which was the highest law (salus populi lex suprema).580 The link between necessity and security also appears in other Gentilian works. In his disputation on lying, for example, Gentili admitted the use of an officious lie in cases of great necessity. In such cases, law should be considered in the light of its ultimate aim, that is, the safety of the people. Gentili cited the maxim ‘let the safety of the people be the supreme law’ (salus populi suprema lex esto).581 In De Armis Romanis, Gentili wrote, ‘that which is not permissible 572 Gentili, De Iure Belli, Book iii, Chapter 16, pp. 378–379. 573 Id. Book iii, Chapter 14, p. 365. 574 Sharp, ‘Alberico Gentili’s Obscure Resurrection as a Royalist in 1644’, 307. 575 Gentili, De Iure Belli, Book ii, Chapter 17, p. 227. 576 Id. 577 Id. 578 Id. p. 226. 579 Burgess, Absolute Monarchy and the Stuart Constitution, 77. 580 Gentili, De Armis Romanis, Book ii, Chapter 4, pp. 186–187. 581 Alberici Gentilis, Disputationum Duae: I De Actoribus & Spectatoribus Fabularum Non Notandis; ii. De Abusu Mendacii (Hanau: 1599) 131.

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by law is made permissible by necessity. Necessity has no law, but it itself makes the law’.582 In his De Iure Belli, Gentili considered that freedom of religion was not absolute; rather, it should be in conformity with public order.583 He also affirmed that ‘a just and unavoidable necessity ma[d]e anything lawful’.584 In addition, he praised Cosimo de’ Medici and his authoritarian rule of Florence, because the then ‘distracted republic’ needed someone to settle its affairs. And in such a case, for Gentili ‘a tyrant took the place of a lawful prince’.585 In short, in cases of necessity, Gentili resolved the tension between justice and the common good in favour of the latter (aequo antistat bonum).586 In the Regales Disputationes, the reason of state (ratio stati) took precedence over other values.587 Gentili warned, however, that such authoritarian rule should not become habitual, as this would transform a sovereign into a tyrant (princeps malus).588 Instead, Gentili called for good governance (potestas bona).589 The Gentilian emphasis on the need to preserve internal peace reflected the specific historical context in which he lived, rather than a belief that absolutism was the ideal model of governance.590 For Gentili, civil wars were never just wars because they were not public wars, but private conflicts among citizens;591 he feared the fury of such internal wars (civilium bellorum furores), as they raged against the vital organs of the state and could turn any legal system into anarchy.592 The prospect of a civil war in England was far from remote and indeed civil war eventually erupted in 1642, a few decades after Gentili’s death. Similar allusions to an imminent civil war appeared in the contemporaneous play Henry iv by William Shakespeare (1564–1616),593 in which King 582 Gentili, De Armis Romanis, Book ii, pp. 115–116 (quod non est licitum lege, necessitas facit licitum. Non habet legem necessitas, sed ipsa legem facit). 583 Gentili, De Iure Belli, Book i, Chapter 10. 584 Id. Book iii, Chapter 12. 585 Id. Book iii, Chapter 10, p. 337. 586 Gentili, Regales Disputationes I De Potestate Regis Absoluta, p. 25. 587 Galli, ‘Alberico Gentili e Thomas Hobbes’, 105. 588 Sharp, ‘Alberico Gentili’s Obscure Resurrection as a Royalist in 1644’, 307. 589 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 193. 590 Id. 193–194. 591 Gentili, De Iure Belli, Book iii, Chapter 9, p. 330 (civil wars ‘are not wars but dissensions … we do not speak of enemies but of factions’.) On the historical developments of the distinction between wars and civil wars, see David Armitage, Civil Wars – A History of Ideas (New Haven: Yale University Press 2017). 592 Gentili, De Armis Romanis, Book ii, Chapter 10, pp. 276–277; Gentili, De Iure Belli, Book iii, Chapter 9, p. 331 (arguing that civil strife ‘is always abnormal, wretched, and the worst of all conflicts’.) 593 William Shakespeare, Henry iv [1597] David Bevington (ed) (Oxford: oup 2008).

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Henry iv lamented the ‘intestine shock’ and ‘butchery’ of civil war.594 The ‘sea of adversities’ which characterized Gentili’s time,595 the struggle between Catholics and Protestants, and the growing contrasts between the Puritans and the Crown likely encouraged Gentili to state that even tyranny is to be preferred to anarchy (ipsa tyrannis tolerabilis prae anarchia) in order to avoid a civil war. The contemporary Shakespearean tragedy Troilus and Cressida echoed such absolutist thinking,596 stating that ‘plagues’, ‘portents’, and ‘mutiny’ could uproot ‘the unity and married calm of states’, and suggesting that ‘only a resolved king … c[could] dispel … the centrifugal forces threatening the state’.597 Gentili referred to the secrets of state (arcana imperi); likewise, Shakespeare noted that ‘there is a mystery … in the soul of state’.598 Gentili’s reference to the lex regia had three implications. First, because the lex regia indicated the transfer of sovereignty between a given people and their sovereign, reference to this law indicates that Gentili believed that sovereignty originally belonged to the people. This approach differed from theocratic absolutist theories propounded by medieval scholars and King James i. Second, Gentili analogically and anachronistically used the lex regia to develop a theory of absolutism which expanded the scope of sovereign extraordinary powers in the domestic context. His expansive theory reflected the gradual shift towards more absolutist forms of government in practice: ‘what had been “extraordinary” powers in the Middle Ages [had] now increasingly become part of the “ordinary category”’.599 Gentili articulated the tension between the commitment to the rule of law and the commitments to the safety of the people and called, above all, for unity and peace. All of his works dealt with war and peace; in his time, certainly the continent was at war more than it was at peace.600 Only unity would prevent foreign invasions and civil wars. Furthermore, the transformation of the scale and intensity of war ‘led to an increase in the authority of states’, as the very existence of the state would be threatened

594 Cristiano Ragni, ‘A Stranger, and Learned, and an Exile for Religion: Alberico Gentili, Shakespeare, and Elizabethan England’, in Mark Roberts (ed) Proceedings of the Shakespeare and His Contemporaries Conference (Florence: British Institute 2014) 81–89, 84. 595 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 191 (quoting Justus Lipsius). 596 William Shakespeare, Troilus and Cressida [1602] Bell (ed) (London: Cawthorn 1811). 597 Ragni, ‘A Stranger, a Learned, and an Exile for Religion’, 86–87 (referring to Shakespeare, Troilus and Cressida, i, iii). 598 Id. 87 (referring to Shakespeare, Troilus and Cressida, iii, iii). 599 Vergerio, ‘Alberico Gentili’s De Iure Belli’, 464. 600 See generally Olaf Asbach and Peter Schröder (eds) War, the State, and International Law in Seventeenth-Century Europe (Farnham: Ashgate 2010).

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without constitutional change.601 Third, because the lex regia was analogous to domestic law, it did not strip the sovereigns of their duties under the law of nature and of nations. Therefore, even absolute states, which Thomas Hobbes (1588–1679) would later analogize to biblical sea monsters (Leviathans), would remain subject to the law of nations. In this way, Gentili overcame the challenge of reconciling two contradictory, if not mutually exclusive, concepts: the rule of law and absolutism. Nonetheless, questions remain about whether the law of nations limited state power in the early modern period or whether it could also function ‘as an instrument of state interest’.602 This question reflects the broader issue of whether international law constitutes ‘a cure to the world’s ills, or perhaps (at least in some of its forms) a part of those ills itself’.603 Indeed, ‘history illuminates the ways in which [international] law has been used in the past to structure, support, channel, and oppose international power’.604 As it was then formulated, the law of nations could include justifications for war, enslavement, and dispossession, but it also included the seeds of peace, resistance, and change.605 Analogously, while international law has been implicated in colonialism, it has also given rise to the decolonization process. Gentili was aware of the possible instrumentalizations of international law, and he opposed such abuses. However, he also acknowledged the potential of the law of nations to humanize international relations, suggesting that he had faith that it would ultimately be a force for good.

601 Brian M Downing, The Military Revolution and Political Change (Princeton nj: Princeton University Press 1992) 76 (generally arguing that states exposed, and able to respond, to high levels of warfare, such as France, became absolutist. States less exposed to warfare, such as England, maintained their constitutional heritage. Those states exposed to warfare but unable to meet its demands ceased to exist altogether.); Thomas Ertman, Birth of the Leviathan—Building States and Regimes in Medieval and Early Modern Europe (Cambridge: cup 1997) 317 (noting that ‘In response to war, … rulers sought to monopolize political power … to guarantee order at home and battlefield success abroad’.) 602 Hedley Bull, The Anarchical Society: A Study of Order in World Politics [1977] (New York: Columbia University Press 2002) 49. 603 Martti Koskenniemi, ‘What Should International Legal History Become?’ in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 381–397, 382. 604 Id. 605 Id. 383.

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7.5.4 Taming the Leviathan? According to Gentili, even absolute sovereigns remained subject to divine, natural, and international law.606 If sovereigns could breach domestic law in given circumstances, they remained bound by both divine and natural law.607 Gentili argued that these were not merely formal restraints. Sovereigns remained subject to God and ought to respect divine laws.608 As divine law governed the relationship between man and God, sovereigns were required not to impose a given religion upon their subjects. For Gentili, not only would violations of divine law be enforced by God at the final judgment,609 but there might also be earthly repercussions for individual misdeeds.610 Sovereigns also remained subject to natural law. Gentili identified natural law with the law of nations; therefore, he delimited the sovereign powers in a sensible manner, affirming the primacy of the law of nations over municipal law. Gentili posited that the law of nations was a ‘light amid great darkness’;611 by ‘pos[ing] certain inderogable … legal limits to the sovereign’,612 it constituted a counterweight to the absolute power of the sovereign. In the Gentilian system, sovereigns became tyrants if they unnecessarily breached the law of nature.613 Tyranny and gross violations of natural law entitled other states to wage war against the rogue sovereign. Relying on the principle of universal solidarity, Gentili held that it was lawful for the international community to intervene to honestly defend (honesta defensio) the unjustly 606 Gentili, De Regales Disputationes, i, 17 (Princeps, inquit Baldus, supra ius, scilicet civile: infra ius, scilicet naturale, & gentium. Non supra divinum ius’.) 607 Id. (‘nec absolutus legibus dei, naturae, gentium’). 608 Gentili, Regales Disputationes, i, 9; Gentili, De Iure Belli, Book i, Chapter 6, p. 33. 609 Randall Lesaffer, ‘The Nature of Europe’s Classical Law of Nations’, in Jean D’Aspremont and Samantha Besson (eds) Oxford Handbook of the Sources of International Law (Oxford: oup 2017) 99–116, 107; Gentili, De Iure Belli, Book i, Chapter 6, p. 33 (referring to punishment in the afterlife). 610 Gentili, De Iure Belli, Book i, Chapter 6, p. 33 (adding that ‘there is no sin without retribution’ and referring to ‘ill repute in the eyes of others and remorse in one’s own heart’.); Gentili, De Armis Romanis, Book i, Chapter 4, pp. 38–39 (referring to the concept of nemesis); Gentili, De Iure Belli, Book iii, Chapter 2, p. 296 (arguing that ‘nemesis overtakes the unjust’.) 611 Gentili, De Iure Belli, Book i, Chapter 1, p. 10. 612 Suin, ‘Principi Supremi e Societas Hominum’, 113. 613 Cfr. Mousnier, ‘Les Concepts d’ «Ordres» d’ «États», de «Fidélité» et de «Monarchie Absolue» en France de la Fin du xve Siècle à la Fin du xviiie’, 309 (noting that for French absolutist theorists, ‘le roi devenait « tyran », c’est-à-dire s’il violait, sans la pression d’une nécessité vitale, la loi de nature, la loi de Dieu, les coutumes, s’il exerçait son pouvoir dans son seul intérêt particulier’.)

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o­ ppressed citizens of a tyrannical state.614 According to Gentili, it was lawful to help rebels, provided that they acted against a tyrannical government. Citizens should be protected against tyrants.615 ‘Unless we wish to make sovereigns exempt from the law and bound by no statutes and precedents’, Gentili argued, ‘there must also of necessity be someone to remind them of their duty and hold them in restraint’.616 In other words, the reasons of humanity (ratio humanitatis) prevailed over the reason of state (ratio stati).617 As previously noted, in the third royal disputation, De Vi Civium in Regem Semper Iniusta (any violence against a sovereign by citizens is always unlawful), Gentili denied the legitimacy of political violence within the state.618 Like Luther, Bodin, James i, and most scholars of the time, Gentili argued that the citizens of any given state did not have the right to take up arms against tyrants.619 He claimed that subjects ought not resist their sovereign with force of arms ‘however sinfully, illegally or self-seekingly a prince acted’.620 He also argued that perfect justice does not belong to this world, and nobody can be just at all times.621 As such, the subjects had no right to armed resistance (ius resistendi); they could not wage war because they were private individuals.622 Moreover, insurgents could be driven by ambition, greed, or a thirst for power. Gentili considered civil wars to be not only unlawful, but also futile, as they usually led to anarchy and even tyranny was better than anarchy.623 For this reason, Gentili condemned plots and insurrections, and affirmed the inviolability of the sovereign, the importance of reason of state, and the common 614 Gentili, De Iure Belli, Book i, Chapter 15. 615 Id. Book i, Chapter 16, p. 75. 616 Id. p. 74. 617 The subtext of the Regales Disputationes, which was not discussed explicitly but was implicit in the reference to the ius naturae and Gentili’s previous work, reveals that even absolute forms of government remained subject to the law of nations. For Gentili natural law corresponded to the law of nations; violations of natural rights justified the other members of the international community to wage a just war against the rogue state. To gather this crucial aspect of the Gentilian theory of sovereignty, the readers must read between the lines of the Gentilian works. 618 Wijffels, ‘Alberico Gentili e i Fondamenti Storico-Concettuali del Diritto Comune Europeo’, 192. 619 Traversino Di Cristo, ‘La Questione della Potentia Dei Absoluta in Alberico Gentili’, 134. 620 Sharp, ‘Alberico Gentili’s Obscure Resurrection as a Royalist in 1644’, 287. 621 Gentili, De Vi Civium in Regem Semper Iniusta, 99–100; Gentili, De Iure Belli, Book ii, ­Chapter 21, p. 254 (hinting at the possibility of perfect divine justice: ‘He is the great Judge of all things’.) 622 Suin, ‘Principi Supremi e Societas Hominum’, 116. 623 Gentili, De Vi Civium in Regem Semper Iniusta, 103 (ipsa tyrannis tolerabilis prae anarchia).

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good (utilitas communis).624 Safeguarding public order and internal peace (ordo and pax publica) was the leitmotif of the Gentilian royal disputations.625 However, Gentili also contemplated both pragmatic responses to tyranny and international law limits to sovereign powers. Oppressed subjects could try to persuade the sovereign to change his or her own conduct, or migrate to another state, or ask foreign sovereigns to intervene.626 In this regard, Gentili emphasized the importance of personal resilience and moral strength in the face of adversity. Gentili himself had abandoned his home town to escape the ­Inquisition. It was his belief that while sovereigns should extradite criminals to their home country, refugees could and should find refuge in other countries.627 In addition, like Bodin, Gentili envisaged international law limits to sovereign power. In his perspective, oppressed subjects could hope for the intervention of a foreign sovereign.628 Gentili admitted the existence of a responsibility to protect, the legitimacy of humanitarian intervention, and the use of force to defend the innocent subjects of a state (defensio innocentium) from the tyrannical rule of their sovereign.629 If a state breached natural law, other states could legitimately wage war against that state to restore justice. Gentili argued that humanitarian intervention constituted a lawful use of violence against a sovereign. This remedy belonged to the international legal order rather than the domestic legal sphere, as only sovereigns could wage a legitimate war against another sovereign.630 For Gentili, the justification for such humanitarian intervention was the unity of humankind, solidarity, and ultimately the maintenance of peace.631 Gentili saw the world as a single polity (respublica

624 Gentili, De vi Civium in Regem Semper Iniusta, 126 (aequo antistat bonum). 625 Id. 201–202. 626 Wijffels, ‘Assolutismo Politico e Diritto di Resistenza’, 452. 627 Gentili, De Iure Belli, Book iii, Chapter 23; Christian Zendri, ‘Transfughi e Fuoriusciti nei De Iure Belli Libri Tres di Alberico Gentili (1598)’ (2014) 14 Laboratoire Italien 1–12, 8. 628 Gentili, De Vi Civium in Regem Semper Iniusta, 116; André Gardot, Jean Bodin. Sa Place Parmi les Fondateurs du Droit International in Collected Courses of the Hague Academy of International Law 50 (Leiden/Boston: Brill Nijhoff 1934) 728; Merio Scattola, ‘Jean Bodin on International Law’ in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 78–91, 90–91. 629 Gentili, De Iure Belli, Book i, Chapter 16, p. 75. 630 Wijffels, ‘Assolutismo Politico e Diritto di Resistenza’, 452. 631 Suin, ‘Principi Supremi e Societas Hominum’, 119.

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magna), whose people were humanity as a whole, and whose provinces were nations.632 Scholars have found it difficult, if not impossible, to reconcile Gentili’s absolutism with his theory of humanitarian intervention. From a domestic ­perspective, political theorists have questioned the intellectual congruence between sovereignty and intervention.633 Reason-of-state writers traditionally ‘had little consideration’ for the law of nations, as ‘their language was not that of law, but that of political necessity’.634 Meanwhile, from an international law perspective, the doctrine of the responsibility to protect has always been and remains controversial; critics contend that it can constitute a Trojan horse to intervene in the domestic affairs of states, dissimulate imperialist aims, and contribute to the power of interventionist states.635 Nonetheless, in the sixteenth century, Gentili and other proponents of humanitarian intervention contended that such intervention did not justify invading or conquering other countries and appropriating their harvest.636 Gentili admitted that humanitarian intervention could be subject to abuse in practice. He quoted Guicciardini’s argument that ‘no prince would take up arms for the defence of [foreign] people, except if he were led by a desire for personal gain’, and recognized that ‘the number was very great of those who through the hope of some gain flew to the aid of one who needed help’.637 Gentili further noted that the Romans often used the pretext of waging war in defence of others to veil ulterior motives. For example, they waged war against the Samnites allegedly to defend the Lucanians. However, as Gentili recognized, ‘the secret and more urgent reason was the great power of the Samnites, which would become still greater if they should conquer the Lucanians’.638 While Gentili acknowledged the risks of humanitarian intervention, he stressed the duty to help people in need, fight tyrants, and restore the common good and peace.639 Gentili considered humanitarian intervention as a type of honest defence, that is, military action intended to help others (in gratiam ­aliorum), to prevent tyrants from adopting expansionist policies and to restore 632 Suin, ‘Principi Supremi e Societas Hominum’, 117 and 121. 633 Vergerio, ‘Alberico Gentili’s De Iure Belli’, 452 (arguing that ‘as a Protestant exile in England with close ties to the Court, it was unthinkable for Gentili not to support the Dutch revolt’ and that ‘Gentili therefore had to … contradict himself for the sake of political bienséance’.) 634 Id. 461. 635 See generally Scuccimarra, ‘Proteggere l’Umanità. Lezioni dal Cinquecento?’, 47–81. 636 Id. 70. 637 Gentili, De Iure Belli, Book i, Chapter 15, p. 71. 638 Id. 639 See generally Gentili, De Iure Belli, Book i, Chapter 15.

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international justice.640 Therefore, Gentili linked the duty to protect to the theory of the balance of power. By fighting a tyrant and defending another people, states ultimately defended themselves. Gentili considered that ‘the whole world [was] one body’, and ‘it [was] for the interest of the whole body, even of the offending member, that each of the members [were] preserved’.641 Gentili believed that the world is our home (domus maxima rerum) and its parts must sustain each other, as the stones of an arch sustain each other. He wrote that ‘the stones push against one another’ and the arch of stones stands because of the ‘mutual opposition’ and diverging forces of the stones, which he called ‘the discordant harmony of things’.642 If one stone falls, every other stone falls too. Gentili further wrote, ‘that is perfect justice who defends the weak … and that is the justice of which I am in search’.643 However, he did not envisage humanitarian intervention as a legal duty, but a moral responsibility and a form of active solidarity. His notion of responsibility to protect replaced a closed form of sovereignty, which emphasized the domestic jurisdiction of states, with an open form of sovereignty, subject to the law of nations and exposed to the scrutiny of the international community.644 This was Gentili’s peculiar mix of law and politics, international law and the reason of state. Unlike reason-of-state writers, however, he envisaged a more central role of law in international relations. 7.5.5 Critical Assessment Considered to be ‘the most absolutist piece of writing that appeared in England in the early seventeenth century’,645 the Regales Disputationes had an uncertain fate. Largely neglected by its contemporaries, except for a pamphlet criticizing it four decades after its publication and a contemporary critique by the German humanist, Johannes Althusius (1563–1638), the work has never received the attention it deserves and has inspired a mixed assessment. Scholars debate whether the Gentilian conservative turn favoured total absolutism,646 or whether in fact he never reached such an extreme stance.647

640 Gentili, De Iure Belli, Book i, Chapter 15, p. 67 641 Id. pp. 67 and 68–69. 642 Id. 643 Id. 644 Scuccimarra, ‘Proteggere l’Umanità. Lezioni dal Cinquecento?’, 49. 645 Burgess, Absolute Monarchy and the Stuart Constitution, 77 (reporting this criticism). 646 Panizza, ‘Le Idee Politiche di Alberico Gentili’, 23. 647 Vincenzo Piano Mortari, ‘Il Pensiero Politico dei Giuristi del Rinascimento’, in Luigi Firpo (ed.) Storia delle Idee Politiche Economiche Sociali vol. iii Umanesimo e Rinascimento (Torino: utet 1987) 411–509, 451.

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There seemed to be a shift in Gentili’s thought, from his moderate liberal positions in the De Legationibus and De Iure Belli, to his more conservative stance in the Regales Disputationes.648 In fact, one of his critics, Johannes Althusius, used some of the arguments Gentili had developed in his De Iure Belli to refute the arguments Gentili later developed in the Regales Disputationes.649 The opinions Gentili expressed in the Regales Disputationes seemed to strongly diverge from those expressed in his previous writings.650 In both De Iure Belli and the Royal Disputations, Gentili relied on Bodin, who notoriously adopted absolutist positions in his La République. However, the influence of Bodin varied in the two Gentilian works. If La République influenced the De Iure Belli, in many aspects, the De Iure Belli ran against the absolutist tenets of La République. Instead, the Regales Disputationes aligned with Bodin’s absolutist political theory. The De Iure Belli included several liberal arguments. For example, Gentili contended that monarchs were in the position of guardians or administrators of their respective countries, and not absolute rulers independent of law.651 They were the trustees of their realms.652 They should rule their polity according to justice and reason. They could not either enter into any agreement that might be detrimental to their state or sell their kingdoms.653 According to Gentili, sovereigns existed for their states, rather than states for their sovereigns.654 As such, the sovereign had not only rights, but also duties. For instance, the sovereign should always prioritize the common good.655 The De Iure Belli also constructed an embryonic right of resistance by admitting armed resistance against a tyrant by the magistrates (i.e., the higher political echelons of the states). In his discussion of the burial of the dead in De Iure Belli, Gentili briefly acknowledged that detested tyrants often feared that their bodies could be mistreated after their death because of the ‘fury’ of the people.656 Gentili

648 Galli, ‘Alberico Gentili e Thomas Hobbes’, 96. 649 Corrado Malandrino, ‘Alberico Gentili nella Politica di Althusius’, in Marta Ferronato and Lucia Bianchin (eds.) Silete Theologi in Munere Alieno—Alberico Gentili e la Seconda Scolastica (Padua: cedam 2011) 129–147, 136. 650 Mario Sbriccoli, ‘Presentazione degli Atti Seconda Giornata Gentiliana’, in vvaa, Alberico Gentili—L’Ordine Internazionale in un Mondo a Più Civiltà (Milano: Giuffrè 2004) 281. 651 Gentili, De Iure Belli, Book iii, Chapter 22. 652 Coleman Phillipson, ‘The Great Jurists of the World—Albericus Gentilis’ (1911) 12 Journal of the Society of Comparative Legislation 52, 66. 653 Gentili, De Iure Belli, Book iii, Chapter 15. 654 Id. Book i, Chapter 16 (non regna esse propter reges, sed reges propter regna factos esse). 655 Phillipson, ‘The Great Jurists of the World’, 66. 656 Gentili, De Iure Belli, Book ii, Chapter 24, p. 282.

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c­ ommented that ‘what may be done by citizens against a tyrant may not be done by one enemy to another. What may perhaps be done against a tyrant, … may be done against an unjust enemy’.657 It is unclear whether Gentili was implying that tyrants, like pirates, could be punished by a shameful death and left unburied. The question as to whether tyrannicide could be just was very topical in Gentili’s time.658 At the international level, Gentili also acknowledged the possibility of humanitarian intervention to rescue the subjects of another state from the tyrannical rule of their sovereign. For example, Gentili justified the intervention of England in the Dutch revolt against Spain and considered the Anglo-Spanish war as a ‘struggle for liberty’.659 Finally, Gentili conceptualized preventive war and even humanitarian intervention as tools of self-defence to prevent other states from reaching hegemonic power. Instead, the Regales Disputationes demonstrated an increased adherence to the absolutist tenets of the reason of state. Bodin’s La République and, albeit implicitly, Machiavelli’s Il Principe clearly influenced Gentili’s political theory. Rather than stressing good governance, Gentili emphasized state security, arguing that the role of government was to ‘maintain the state’ (mantenere lo stato). While he distinguished between good sovereigns and tyrants, he primarily relied on French politiques—jurists and intellectuals who prioritized internal peace over religious uniformity—and the philosophers of the reason of state (ragion di stato) who privileged the maintenance of the state over other concerns—when discussing matters of internal sovereignty. Furthermore, although Gentili noted that the sovereign remained subject to divine, natural, and international law—which were potentially important restrictions— such  limits to sovereign power were not clearly described in the Regales ­Disputationes.660 There was no explicit reference to the practical implications 657 Gentili, De Iure Belli, Book II, Chapter 24, p. 283. 658 Cfr. Alberico Gentili, The Wars of the Romans, Benedict Kingsbury and Benjamin Straumann (eds) David Lupher (transl) (Oxford: oup 2011) 38–39 (asking ‘what ignorance of either the nature of things or of his own city possessed the man who imagined that upon death of one man there would not be another who would desire the same thing?’); William Shakespeare, Julius Caesar [1599] Arthur Humphreys (ed.) (Oxford: oup 1999) Act iii, scene ii (‘I fear there will a worse come in [Caesar’s] place’); William Shakespeare, Hamlet [first performed 1609] G.R. Hibbard (ed.) (Oxford: oup 1987), Act iii, Scene 1 (To be, or not to be, that is the question:/Whether it’s nobler in the mind to suffer/The slings and arrows of outrageous fortune,/Or to take arms against a sea of troubles/And by opposing end them’.) 659 Alexandra Gajda, The Earl of Essex and Late Elizabethan Political Culture (Oxford: oup 2012) 77. 660 Wijffels, ‘Alberico Gentili e i Fondamenti Storico-Concettuali del Diritto Comune Europeo’, 198–199.

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of the violation of such law by the sovereign, namely, humanitarian intervention.661 The question therefore remains whether the absolutist turn of the Regales Disputationes represented a natural development of Gentili’s previous perspective or an abrupt departure from the positions expressed in the previous Gentilian works. There is some continuity between De Iure Belli and Regales Disputationes. Gentili’s De Iure Belli had already been influenced by Bodin’s La République, Machiavelli’s The Prince, and Guicciardini’s theory on the ragion di stato, approving historical examples of authoritarian rule. For instance, Gentili found that the rule of the Medici family had enabled Florence to maintain internal stability and the balance of power among European nations during the Renaissance. Like Machiavelli, Gentili argued that the death of Lorenzo de’ Medici broke this fragile equilibrium and foreign invasions brought utter devastation to the peninsula.662 In De Legationibus, Gentili also commended Cosimo de’ Medici’s autocratic rule, maintaining that without stability the polity would not flourish. The reason of state also permeated additional and more central aspects of the Gentilian theory of the law of nations. For example, his conceptualization of the rebus sic stantibus clause reflected Machiavelli’s claim that ‘a prudent ruler cannot and should not respect his word, when such respect works to his disadvantage and when the reasons for which he made the promise no longer exist’.663 Whereas Machiavelli justified treachery, ruthlessness, and inhumanity, Gentili transformed political theory into legal language, attempting to rid it of its nefarious connotations, but ultimately weaving the reason of state into the fabric of international law. Additional reason-of-state moments in Gentili’s De Iure Belli relate to the various limits Gentili imposed on the exercise of natural rights. Religious freedom, for example, could be enjoyed insofar as it did not impinge on the rights and freedoms of others. Freedom of trade and freedom of movement might be restricted when necessary for national ­security, public policy or public welfare. The freedom of the sea did not extend to territorial waters.

661 Wijffels, ‘Alberico Gentili e i Fondamenti Storico-Concettuali', 199. 662 Niccolò Machiavelli, The Prince, Quentin Skinner and Russell Price (transl) [Il Principe 1532](Cambridge: cup 1988) chapter 10, p. 88 (lamenting that the Italian peninsula was then ‘more enslaved than the Hebrews, more oppressed than the Persians, more scattered than the Athenians, without an aknowledged leader, and without order and stability … in short utterly devastated’.) 663 Niccolò Machiavelli, Discourses on Livy, Harvey C. Mansfield and Nathan Tarcov (eds) (Chicago: University of Chicago Press 1996), Book i, chapter 18, p. 61.

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In the Regales Disputationes these previous insertions of the reason of state into the fabric of international law took centrestage, reflecting the changing political climate. The Regales Disputationes were published after Essex’s revolt, fall, and execution for treason in 1601. Essex was one of Gentili’s mentors; the dedicatee of Gentili’s masterpiece, De Iure Belli; and the godfather of Gentili’s first son, Roberto, named after Essex himself. After the earl’s death, rumour circulated that Gentili had been implicated in the uprising.664 The Regales Disputationes were published in 1605, when England was either contemplating rumours of a Catholic revolt or witnessing its manifestation in the Gunpowder Plot of 5 November 1605.665 Against this background, Gentili’s main concern was the safeguarding of peace. He ‘avoided the inflammatory language of … theology’; instead, he adopted ‘the irenic language’ of law, ‘asking people to think … rationally of their interests in attaining peace in an imperfect and dangerous world’.666 The three regal disputations concerned topical issues of the day, including the absolute nature of sovereign power (superiorem non recognoscens), the unity of the kingdom, and the illegality of any violence against the sovereign and political violence more generally.667 Dedicated by Robert Gentili, the son of Alberico, to James i, the Regales Disputationes ‘echoed and cited with approval James’ own advocacy of absolute monarchy’,668 and were read by the King.669 While James i used theological arguments to justify his absolutism, Gentili relied on legal and political justifications. While James i subjected rulers only to divine law, Gentili also contemplated the law of nations as a limit to state sovereignty. Therefore, the Regales Disputationes connected the development of political theory, public law, and the law of nations in an original perspective, and offered three primary contributions to the history and theory of international law. First, Gentili’s theory contributed to the secularization of the law of n ­ ations. Under his theory, the sovereign was not subject to any foreign jurisdiction

664 Gajda, The Earl of Essex and Late Elizabethan Political Culture, 76. 665 Sharp, ‘Alberico Gentili’s Obscure Resurrection as a Royalist in 1644’, 288. As is known, in the Gunpowder Plot, some insurgents, most famously Guy Fawkes (1570–1606), conspired to blow up the Houses of Parliament. 666 Id. 288 and 292. 667 Id. 303. 668 Id. 288. 669 Chiara Petrolini, ‘Religione e Potestà dei Principi: Gentili e Sarpi’, in Vincenzo Lavenia (ed) Alberico Gentili—Responsibility to Protect: Nuovi Orientamenti su Intervento Umanitario e Ordine Internazionale (Milan: Giuffrè 2015) 215–242, 226.

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(iurisdictio peregrina) of any temporal or religious nature.670 Gentili rejected theocracy as a viable form of government, affirming that religion was a matter for individual conscience, as it expressed the relationship between human beings and God.671 Moreover, Gentili argued that the common good of the state should be prioritized over religious uniformity. Therefore, he identified a secular basis for state sovereignty. In doing so, he also contributed to the idea of sovereign equality within the international community. Second, Gentili separated the law of nations from the domestic law672 and maintained the supremacy of the law of nations over domestic law. Although the argument of the supremacy of the law of nations was mentioned only in passing in the Regales Disputationes,673 it was fully elaborated in the De Iure Belli. Read together, the Regales Disputationes and the De Iure Belli reveal a sophisticated pattern of thought. For Gentili, absolutism was one form of government that might be suitable to given political circumstances, but it was not the only one, let alone the ideal one. Rather, he considered that forms of government should be suitable to specific constituencies. In difficult times, Gentili argued, an absolutist monarchy could ensure internal peace. Third, and more importantly, Gentili elaborated a series of counterweights to the absolutism of the sovereign.674 In this regard, the Regales Disputationes did not reverse Gentili’s previous saying: ‘theologians hallucinate and lawyers merely adulate kings, when they say that sovereigns are permitted to do everything and that their sovereignty is absolute’.675 Not only in De Iure Belli, but also in the Regales Disputationes, Gentili maintained that the sovereign remained subject to natural law,676 that is, the law of nations.677 If the sovereign was not answerable to anybody within the state, nonetheless he or she remained

670 Gentili, Regales Disputationes, i, 8. 671 Gentili, De Iure Belli, Book i, Chapter 9. 672 Gentili, Regales Disputationes, i, 7 (‘ius civilis quod non est naturale, & quod est in civitate’). 673 Gentili, Regales Disputationes, i, 17. 674 Gentili, De Iure Belli, Book iii, Chapter 15. 675 Id. (hallucinantur theologi, adulantur iurisconsulti qui persuadent omnia principibus licere, summamque eorum et liberam esse potestatem); see also De Papatu Romano, Oxford, Bodleian Library, Ms. D’Orville 607, cc. 6v–7r (quoting Alciato and adopting an almost identical formulation). 676 Gentili, Regales Disputationes, i, 17 (‘Princeps … nec absolutus legibus Dei, naturae, gentium’). 677 Gentili, De Iure Belli, Book i, Chapter 1

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a­ ccountable ­to the international community.678 According to Gentili, the law of nature (i.e. the law of nations) posed peremptory standards recognized by all members of the international community, which included ‘to live honourably; not to wrong another; to give every person his or her due; to protect one’s children; to defend oneself against injury; [and] to recognize kinship with all human beings’.679 For Gentili, these peremptory norms were an indispensable component of the architecture of international law. Moreover, as expounded in the De Iure Belli, such standards did not have a purely theoretical relevance, but also a practical one. Such peremptory norms were enforceable through a series of legal mechanisms, including what is now comparable to preventive defence, collective defence, and humanitarian intervention.680 The supremacy of the law of nations thus constituted a powerful counterbalance to the domestic absolutism of states. In this way, Gentili perceived the law of nations as a form of resistance. While Gentili condemned civil wars, he justified wars against tyranny at the international level. As noted by Lauterpacht, Gentili endorsed ‘the principle of humanitarian intervention—the principle that exclusiveness of domestic jurisdiction stops when outrage upon humanity begins’.681 He also developed an early modern ‘theory of universal jurisdiction’ which permitted states to use force in response to violations of the law of nations.682 ‘Such forceful responses, Gentili believed, would serve as both punishment of the wrong-doer and deterrence of future acts’.683 In particular, he thought they would deter sovereigns from misbehaving domestically and prevent them from achieving hegemony at the international level. Gentili seemed to support an anti-hegemonic conceptualization of humanitarian intervention, which differed from the ‘imperial humanitarianism’ propounded by other contemporaries.684 While Gentili acknowledged that most military interventions were driven by self-interest, he demonstrated interest in 678 Gentili, Regales Disputationes, i, 17 (‘Princeps, inquit Baldus, supra ius, scilicet civile: infra ius, scilicet naturale, & gentium’.) 679 Gentili, De Iure Belli, Book i, Chapter 3, p. 18. 680 Carlo Focarelli, Introduzione Storica al Diritto Internazionale (Milan: Giuffrè 2012) 205. 681 Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 26 British yil 1– 53, 46. 682 Jennifer M. Welsh, ‘Distributing the International Responsibility to Protect: the Balance between Global and Regional Organizations’, in Vincenzo Lavenia (ed) Alberico Gentili— Responsibility to Protect: Nuovi Orientamenti su Intervento Umanitario e Ordine Internazionale (Milan: Giuffrè 2015) 83–106, 85. 683 Id. 684 Michael Barnett, Empire of Humanity. A History of Humanitarianism (Ithaca: Cornell University Press 2013) 49.

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understanding what states should do to protect humanity. He distinguished between domestic and international law, but put humanity first. Furthermore, Gentili elaborated the idea that sovereignty should not merely refer to the power of the state over its citizens, but also to the responsibility and accountability of the state towards its polity and the international community as a whole. According to his theory, sovereigns appeared as trustees of humanity and remained accountable under the law of nations.685 The idea of humanitarian intervention constituted an exception to the general rule of comity (comitas) and non-interference among nations.686 While Gentili considered the former to be an exercise of the right to defend oppressed peoples, the latter required consideration of, and respect for, the sovereign equality and independence of states.687 Nonetheless, the Gentilian theory is labyrinthine and may also be read as supportive of imperialism. One could argue that while ‘the equality of sovereigns made them equally legal partners in war and prevented methods of military annihilation’, such equality also excluded any mercy or legal protection to a range of non-state actors, such as rebels, pirates, and cannibals.688 As Schröder argued, ‘war was thus waged until the ultimate destruction of those who had, according to Gentili, relinquished human society’.689 According to Gentili, ‘the Spaniards [waged a war] against violators of the law of nature … against cannibals, and monsters of lewdness’.690 These are harsh words, a stark reminder of the medieval just war theory, which cannot easily be reconciled with post-modern sensibilities. However, Gentili also offered other arguments which justified Indigenous resistance and self-defence against the greed of the Spaniards, and more generally legitimized self-defence against the imperial ambitions of other polities. Rather than articulating a clear argument on the counterbalancing power of the law of nations, the Regales Disputationes emphasized the absolute power of the sovereign. In the Regales Disputationes, Gentili referred to the supremacy of the law of nations only briefly and incidentally by quoting medieval 685 Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 ajil 295–333. 686 Claudia Storti, ‘Foedus, Amicitia e Societas: Alberico Gentili tra Tradizione e Innovazione’, in vvaa, Alberico Gentili—Atti dei Convegni nel Quarto Centenario della Morte, vol. ii (Milan: Giuffrè 2010) 335–376, 359. 687 Gentili, De Iure Belli, Book i, Chapter 16. 688 Peter Schröder, ‘Carl Schmitt’s Appropriation of the Early Modern European Tradition of Political Thought on the State and Interstate Relations’ (2012) 33 History of Political Thought 348–371, 363–364 (internal citations omitted). 689 Id. 365. 690 Gentili, De Iure Belli, Book i, Chapter 25, p. 124.

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s­ cholars who considered the powers of the sovereign to be legally limited by natural law. This style of argumentation may appear lacking to contemporary legal scholars trained in an epoch of positivism.691 Nevertheless, the short reference is indeed present, and can provide conceptual clarity to the Gentilian argument.692 The reference to the supremacy of international law as a counterweight to tyranny and empire was deliberately short to prevent the disappointment of the King. The mere presence of the reference may well indicate that some liberal essence of the Gentilian thought remained even during an unfavourable political climate. One could argue that in conceptualizing humanitarian intervention as a counterweight to tyranny, there is a risk that one empire replaces another in a never-ending stream of violence.693 However, the Gentilian conceptualization of humanitarian intervention was orientated towards defensive, rather than offensive, reasons and excluded territorial acquisition. Gentili argued that because all human beings belong to ‘the common city of all’ and see ‘the world as one home’, they have ‘the duty to aid others’ ‘when they can’.694 For Gentili, this union legitimized an armed intervention in favour of other peoples: ‘we should provide help to other peoples who are victims of aggression exactly as we would help our neighbours’.695 Therefore, he grounded the idea of humanitarian intervention in the idea of common humanity (humanitas) and solidarity. Gentili admitted that some scholars opposed such intervention on the grounds that it could hide utilitarian motives. However, he dismissed this argument, contending ‘that is perfect justice which defends the weak’ (plena est iustitia quae defendit infirmos); ‘this is the justice I am looking for’.696 While Gentili constantly borrowed literary examples from the Roman poet Virgil, he never mentioned the poet’s famous expression ‘empire without end’ (imperium sine fine).697 Given the fact that Gentili knew the Aeneid very well

691 Francesca Iurlaro, ‘The Burden of Reason: Ratio Probabilis, Consensio Omnium, and the Impact of Humanitas on Alberico Gentili’s Theory of Customary International Law’ (2017) 38 History of Political Thought 409–438, 410. 692 Id. 693 Schröder, ‘Carl Schmitt’s Appropriation of the Early Modern European Tradition of Political Thought on the State and Interstate Relations’, 370 (referring to Carl Schmitt’s instrumentalization of the early modern European tradition of political thought for contingent political reasons in Nazi Germany). 694 Gentili, De Iure Belli, Book i, Chapter 15, p. 68. 695 Iurlaro, ‘The Burden of Reason’, 425. 696 Gentili, De Iure Belli, Book i, Chapter 15, p. 71. 697 Benjamin Straumann, ‘Imperium Sine Fine: Carneades, the Splendid Vice of Glory, and the Justice of Empire’, in Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca (eds) International Law and Empire (Oxford: oup 2017) 335–358.

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(he even wrote a short work explaining it for his son Robert),698 this omission was certainly intentional. In his De Iure Belli, Gentili acknowledged that nothing remained of the original Roman Empire.699 Of the territories of the ancient Roman empire, one area was occupied by the Turks; another by the English, French, and Spaniards; a third by the Roman Pope, the Venetians, and other princes of Italy; and finally, ‘the part occupied by the Germans themselves’.700 Gentili noted that traces of the old Roman Empire had remained in the form of the Holy Roman Empire, but his discussion referred to the ­historical/geographical/political reality of Charles v’s empire, rather than a theoretical apology of empire as a form of government, let alone the best form of government. In Gentili’s time, the Roman Empire was no longer without borders (fines), and the Roman state (urbs) no longer corresponded to the entire (known) world (orbs). Gentili had travelled through Germany, and had direct knowledge of the geographical extent of the Holy Roman Empire. He did not perceive such conglomeration as being without end (finem); rather, he recognized its historical contingence, noting the cycles and counter-cycles of history and the emergence and disappearance of empires over time. Whatever Gentili’s attitude to the Roman empire, ‘he strongly opposed any empire with universalist ambitions in his own time’.701 He did not transfer the mirage of an all-powerful and all-conquering Rome into the legal texture of his treatise on the law of nations. Instead, he clarified that imperial expansion was in breach of the law of nations and opposed the imperialist ambitions of Philip ii—the son of Charles v, Holy Roman Emperor.702 Whereas Gentili postulated a certain natural unity of humankind, he rejected the idea of a political unity in the form of a universal empire.703 The De Armis Romanis narrated the competition between empire and resistance to empire, and left its readers unsure of Gentili’s ultimate stance. In conclusion, while some scholars contend that Gentili supported an ­imperialist vision in international relations, others argue that he adopted ­anti-imperialist stances.704 For example, Gentili wrote that conflicts among 698 Alberici Gentilis, Lectionis Virgilianae Variae Liber ad Robertum Filium (Hanoviae: apud Guilielmum Antonium 1603). 699 Gentili, De Iure Belli, Book i, Chapter 23, p. 112. 700 Id. 701 Ursula Vollerthun, The Idea of International Society (Cambridge: cup 2017) 143. 702 Cfr. Grotius, De Iure Belli ac Pacis, Book i, Chapter 22, para. 13 (similarly noting that ‘there are many places formerly belonging to the Roman Empire, over which the Emperor has at present no control’.) 703 Vollerthun, The Idea of International Society, 124. 704 On Gentili’s anti-imperialism, see generally Vollerthun, The Idea of International Society.

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nations should be settled in accordance with the law of nations, rather than sheer force.705 He viewed the law of nations as a binding law. Although Gentili acknowledged that sovereigns often breached it, he argued that ‘it is hard but not impossible to induce human beings to observe justice’, and that ‘a law which many transgress is none the less a law’.706 Moreover, Gentili maintained an inclusive vision of the international community as a community formed by all of the sovereigns of the world. This pluralism contradicts the vision of a universal monarchy. In short, the Gentilian theory of internal sovereignty and its relationship with external sovereignty combined liberal and conservative elements, blending idealism and realism. 7.5.6 Epilogue: Gentili and Hobbes In juxtaposing the Gentilian theory of internal sovereignty to that of the English philosopher Thomas Hobbes (1588–1679), certain elements of Gentili’s mixture of realism and idealism become more evident. The Gentilian shift to absolutism for the sake of the self-preservation, internal peace, and order of the state was echoed by Hobbes.707 In fact, it is plausible that Hobbes had both direct and indirect knowledge of Gentili’s work. Hobbes studied at Magdalen Hall, Oxford, and Gentili regularly gave lectures at the University. It would seem likely that as a student, Hobbes may have had access to Gentili’s work, or attended his lectures.708 Hobbes’ patron, the philosopher and statesman Francis Bacon (1561–1626), had been a colleague of Gentili at the Gray’s Inn before becoming Lord C ­ hancellor.709

705 Gentili, De Iure Belli, Book i, Chapter 1, p. 5. 706 Id. p. 6–7. 707 Thomas Hobbes, Leviathan, C.B. Macpherson (ed.) (London: Penguin Books 1985) [1651]; Thomas Hobbes, Leviathan, Noel Malcolm (ed) (Oxford: Clarendon 2014). 708 See Dana Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ (2006–7) 8 San Diego ilj 291–343, 298 fn 9 (noting that ‘Gentili was still a Professor at Oxford at the time that Hobbes matriculated at the University although it is uncertain whether the two actually met’.) Certainly, Hobbes had regular access to the private library of the Cavendish family which included extensive legal collections including Gentili’s De Legationibus. See Daniel Lee, ‘Hobbes and the Civil Law—The Use of Roman Law in Hobbes’ Civil Science’, in David Dyzenhaus and Thomas Poole (eds) Hobbes and the Law (Cambridge: cup 2012) 210–235, 220–221 (noting Hobbes’ ‘careful, though often unacknowledged, use of Roman law and civilian commentaries in his political writings’.) 709 Both Gentili and Bacon were correspondents and close friends of Sir Tobie Matthew and had acquaintance with Sir Julius Caesar. Daniel R. Coquillette, Francis Bacon (Stanford: Stanford University Press 1992) 12 (noting that Bacon and Matthews were close friends) 11 (noting that Bacon was among Sir Julius Caesar’s close friends and ‘actually died in the arms of Sir Julius, his nephew by marriage and supervisor of his will’). Bacon was a patron of libraries, and it is possible that he had read Gentili’s work. Both Gentili and Bacon had

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Whatever influence there was, ‘Gentili’s name was lost in the alchemy of transformation’.710 This section briefly examines the fundamental features of Gentili and Hobbes’ respective theories of sovereignty. In both theories, fear of anarchy and self-preservation played an important role, as the state (civitas) was conceptualized as a tool to prevent civil war and to maintain peace.711 For both Gentili and Hobbes, the sovereign was absolute and held above the domestic law (princeps legibus solutus est).712 According to Gentili, the sovereign resembled God in his or her own kingdom (Princeps est Deus in terris).713 Analogously, for Hobbes, the sovereign was a ‘mortal god’ or a Leviathan.714 Both Gentili and Hobbes viewed the sovereign as the architect of his or her own kingdom,715 and both discussed the royal prerogative, referring to the lex regia to describe the origins of sovereignty as an irrevocable transfer of power from the people to the sovereign.716 Gentili condemned wars waged for greed; likewise, Hobbes listed ‘the insatiable appetite or bulimia of enlarging dominion’ among the diseases of a state.717 Like Gentili, Hobbes despised civil wars, considering sedition to be a sign of sickness and civil wars the death of the state.718 Yet, Gentili combined realism with some idealism. While Gentili realistically considered that the reason of state could justify the royal prerogative—i.e., a plenitude of powers (plenitudo potestatis) of the sovereign—, his intellectual universe also presented certain idealist elements. Gentili argued that the sovereign should govern for the common good. He maintained that there was a difference between sovereigns acting for the common good and tyrants acting

the same patron, Essex. On the role of Bacon in Essex’ trial, see Francis Bacon, ‘The Apology of Sir Francis Bacon in Certain Imputations concerning the Late Earl of Essex’ in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: M. Murphy 1886) 333–341. 710 Sharp, ‘Alberico Gentili’s Obscure Resurrection as a Royalist in 1644’, 292. 711 Hobbes, Leviathan, Chapter 17, p. 227 (referring to common peace and safety at home and defence from the invasion of foreigners). 712 Hobbes, Leviathan, Chapter 29, p. 367. 713 Gentili, Regales Disputationes, i, 11. 714 Hobbes, Leviathan, Chapter 17, p. 227. 715 Id. Chapter 29, p. 363; Alberico Gentili, De Nuptiis (Hanau: 1601), Book i, Chapter xi, p. 59 (analogizing law to architecture [scientia architectonica] and the sovereign to an architect [architectus in republica]). 716 Hobbes, De Cive, vii, para. 15; Norberto Bobbio, Thomas Hobbes (Torino: Einaudi 1989) 49. 717 Hobbes, Leviathan, Chapter 29, p. 375. 718 Gentili, De Iure Belli, Book iii, Chapter 9, p. 331 (defining civil strife as ‘abnormal, wretched, and the worst of all wars’); Bobbio, Thomas Hobbes, 31.

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in their own interest. Gentili argued that the sovereign voluntarily submitted to the rule of law for the common weal. Gentili’s absolutism reflected a conservative vision of society; however, Gentili’s realism was mitigated by some idealism. The Gentilian theory was built upon an anthropological belief that human beings are innately good and that ‘nature has implanted in us love for one another and made us inclined to union’.719 For Gentili, there is natural amity between human beings;720 he argued that ‘the whole world is one body’ (mundus unum est corpus) united by bonds of kinship, love, kindness, and fellowship. These bonds are at the heart of the law of nations.721 Gentili believed that human beings ‘are not foes of one another by nature’722 and that ‘no war is natural’.723 Instead, he considered peace as the state of nature and if a man’s desires were ‘boundless’, that would not be an expression of general human nature, but the specific expression of the fault of an individual.724 In the Gentilian theory, there was an implicit appreciation that ‘Man to Man is a kind of God’ (homo homini deus), and that human beings are inclined to do good.725 Humankind thus naturally constituted a universal society and the normal state of humankind was peace. Natural law therefore required human beings to aid one another: ‘since we are one body, just as the other members would aid the one that was injured, … exactly so [human beings] will aid one another, since society cannot be maintained except by the love and protection of those who compose it’.726 While Gentili believed that it was a law of nature to welcome strangers, and that amity between human beings was part of natural law, he also considered the preservation of one’s own life a paramount law of nature (primum bonum).727 As such, Gentili envisaged some counterweights to natural rights for safety concerns. He admitted the legitimacy of preventive defence in case of legitimate fear, and conceptualized a range of general exceptions to freedom of commerce and freedom of the sea on grounds of public morals, public

719 Gentili, De Iure Belli, Book i, Chapter 15, p. 67. 720 Id. Book i, Chapter 12, pp. 54–55. 721 Id. Book i, Chapter 15, p. 67. 722 Id. Book i, Chapter 12, p. 55. 723 Id. p. 54. 724 Id. 725 Id. Book i, Chapter 15, p. 68. 726 Id. pp. 68–69. 727 Id. Book i, Chapter 14, p. 62 (‘no one should expose himself to danger’.)

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health, and state defence.728 He expressly warned that people should not be asked to love others more than themselves. Whereas the Gentilian theory of sovereignty was built upon anthropological optimism, according to which human beings are born for fellowship and solidarity,729 the Hobbesian theory was built upon a pessimistic vision of human beings. While Machiavelli perceived that men could be bad, Hobbes considered human beings to be naturally competitive. In fact, Hobbes postulated a ‘general inclination of humankind, a perpetual and restless desire of power after power that cease[d] only in Death’.730 According to Hobbes, such competition led not only to distrust among individuals,731 but also to ‘contention, enmity, and war’.732 For Hobbes, war thus constituted the state of nature before the inception of states. While for Hobbes, the state of nature was a potentially permanent conflict between individuals (bellum omnium contra omnes)733 and human freedom

728 Gentili, De Iure Belli, Book i, Chapter 21, p. 101 (‘the law of trade is just; but that of maintaining one’s safety is more so’.); Chapter 19, pp. 89–90 (enabling trade exceptions on grounds of public health, public morals, and the conservation of natural resources, and noting that ‘strangers have no right to argue about these matters, since they have no license to alter the customs and institutions of foreign peoples’) and 90 (permitting states to limit international trade to given ports of entry). 729 Gentili, De Iure Belli, Book i, Chapter 15, p. 68. 730 Niccolò Machiavelli, The Prince [Il Principe 1532], Quentin Skinner and Russell Price (transl) (Cambridge: cup 1988) chapter xvii, 2 (‘Nasce da questo una disputa: se [sia] me­ glio essere amato che temuto, o [il] converso. Respondesi, che si vorrebbe essere l’uno e l’altro; ma, perché … è difficile accozzarli insieme, è molto più sicuro essere temuto che amato … Perché degli uomini si può dire questo generalmente: che siano ingrati, volubili, simulatori e dissimulatori, fuggitori de’ pericoli, cupidi di guadagno …’) (‘a question arises: whether it be better to be loved than feared or feared than loved? It may be answered that one should wish to be both, but, because it is difficult to unite them in one person, is much safer to be feared than loved, when, of the two, either must be dispensed with. Because this is to be asserted in general of men, that they are ungrateful, fickle, false, cowardly, covetous, and as long as you succeed they are yours entirely … when the need is far distant; but when it approaches they turn against you’.) See also Niccolò Machiavelli, Discorsi Sopra la Prima Deca di Tito Livio (Firenze: Bernando Giunti 1531); Niccolò Machiavelli, Discourses on Livy, Harvey C. Mansfield and Nathan Tarcov (eds) (Chicago: University of Chicago Press 1996) Book i, Chapter iii, p. 15; Hobbes, Leviathan, Chapter 11, p. 161. 731 Hobbes, Leviathan, Chapter 13, 186–187 (‘it may seem strange to some that Nature should … render men apt to invade and destroy one another … [but think] what opinion he has of his fellows subjects, when he rides armed; of his fellow citizens, when he locks his doors; and of his children and servants, when he locks his chests’.) 732 Hobbes, Leviathan, Chapter 11, p. 161. 733 Galli, ‘Alberico Gentili e Thomas Hobbes’, 98 (noting that Hobbes compared the state of nature to that of foul-weather; even if there was no war, there could be war at any time.)

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was analogous to anarchy,734 Gentili contended that nature has established a certain kinship between human beings and human rights and freedoms are inborn.735 Hobbes considered that the saying ‘Man to Man is a kind of God’ was true among citizens within the state, while the saying ‘Man is wolf to Man’ (homo homini lupus) was true among states at the international level.736 Instead, according to Gentili, a person is not a ‘wolf to his fellow man’, but a fellow, and different civilizations can coexist peacefully provided that they do no harm to each other. Moreover, while Hobbes believed that war was the state of nature ­between states,737 Gentili emphasized that states should guarantee peace internally and maintain peaceful relations with other nations overseas. In the Gentilian work, not only could peace and justice be identified with the common good (bonum commune), but they also constituted the ends of the law of nations. As noted by political theorist Ursula Vollerthun, ‘the peace which results from an equal distribution of power, and the war which is fought in order to oppose the reach for universal political rule are expressions of the same concern: the preservation of justice’.738 States ought to secure these ends both internally and externally. Gentili emphasized the importance of mutual trust and good faith in international relations.739 Whereas Plautus’ aphorism homo homini lupus represented both the origin and purpose of Hobbes’ political theory, the formula homo homini deus had a valuable, albeit implicit, ‘heuristic utility’ for Gentili, and counter-hegemonic and emancipatory potential.740 For Gentili, ‘those who say that we should have regard for our fellow citizens, but not for strangers, destroy the community and the fellowship of humankind’.741 734 Bobbio, Thomas Hobbes, 98. 735 Hobbes, Leviathan, Chapter 14, p. 189; Francis Bacon, ‘Considerations Touching a War with Spain’ [1624], in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: Murphy 1886) 204 (arguing that peace was ‘but a naked and empty name’ and that ‘the truth is, there is ever between all states a secret war’.) Cfr. Gentili, De Iure Belli, Book i, Chapter 1 p. 10 (‘natural law does exist … such laws are not written but inborn … we have not received them through instruction, but have acquired them at birth’.) 736 Thomas Hobbes, De Cive [1642] (Oxford: Clarendon Press 1998) Howard Warrender (ed.), 24, epistle dedicatory (‘To speak impartially, both sayings are very true; that Man to Man is a kind of God; and that Man to Man is an arrant Wolfe: the first is true, if we compare Citizens amongst themselves; and the second, if we compare Cities’.) 737 Fr. Baconis, De Augmentiis Scientiarum Libri ix (Amstelaedami: Ioannis Ravesteinii 1662) Book vi, p. 502 (endorsing the axiom homo homini lupus); Ugo Pagallo, ‘Bacon, Hobbes and the Homo Homini Deus Formula’ (1998) 11 Hobbes Studies 61–69, 67. 738 Vollerthun, The Idea of International Society, 114. 739 Gentili, De Iure Belli, Book iii, Chapter 19, p. 403. 740 Pagallo, ‘Bacon, Hobbes and the Homo Homini Deus Formula’, 61. 741 Gentili, De Iure Belli, Book i, Chapter 15, p. 68.

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In contrast, according to Hobbes, given the dangers posed by the state of nature, people protect their lives and limbs as far as possible.742 The desire for self-preservation, which is as strong as the gravity by which ‘a stone falls downward’, impels human beings to get out of the state of nature (status naturalis), transfer their rights to a sovereign, and establish the state (status civilis) in order to defend their safety.743 Rather than being sociable by nature, human beings become sociable by education (disciplina).744 Furthermore, for Hobbes, natural laws were not sufficient to ensure peace among human beings because they were not proper laws, but merely a bundle of moral tenets that could not be enforced: ‘there exist[ed] no law before and outside the state’.745 Only the fear (terror) of a sovereign could quell human passions and ensure that human beings maintain peace.746 In the Hobbesian system, the sovereign was akin to a Leviathan, a sea monster referenced in the Bible, with complete powers and exercising absolute sovereignty (imperium absolutum).747 Unbounded by domestic law,748 the sovereign remained bounded by divine and natural law, but because natural law consisted of a sort of moral philosophy including equity, justice, gratitude, respect, and other moral virtues, it did not constitute ‘proper law’ and did not bind states, obliging them in conscience only.749 Whereas Hobbes deprived natural law of its validity,750 such law maintained its full force in Gentili’s Regales Disputationes. Not only did Gentili maintain that the sovereign remained subject to natural law, but he also conceptualized the responsibility to protect as an enforcement mechanism. In case of breach of natural law, the international community could intervene against the r­ ogue

742 Hobbes, De Cive, Book i, Section 7. 743 Id. 744 Id. Book i, Section 2. 745 Schröder, ‘Carl Schmitt’s Appropriation of the Early Modern European Tradition of Political Thought’, 357; Bobbio, Thomas Hobbes, 46. 746 Adriano Cavanna, Storia del Diritto Moderno in Europa—Le Fonti e il Pensiero Giuridico (Milano: Giuffrè 1982) 144; Bobbio, Thomas Hobbes, 46. 747 Hobbes, Leviathan, Chapter 17, p. 227. 748 Id. Chapter 18. 749 Id. Chapter 15; Larry May, Limiting the Leviathan—Hobbes on Law and International Affairs (Oxford: oup 2013) 5 (noting that for Hobbes, the law of nature bound only in foro interno); Martin Loughlin, ‘The Political Jurisprudence of Hobbes’, in David Dyzenhaus and Thomas Poole (eds) Hobbes and the Law (Cambridge: cup 2012) 5–21, 16 (noting that, for Hobbes, natural law could become binding if it was converted into positive laws by command of the sovereign.); Perez Zagorin, Hobbes and the Law of Nature (Princeton: Princeton University Press 2009) 12 (noting that Hobbes regarded the law of nature as ‘moral philosophy’.) 750 Cavanna, Storia del Diritto Moderno in Europa, 149.

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state.751 The existence of the counterbalancing force of international law was one of the key differences between Gentili and Hobbes’ respective theories.752 Hobbes admitted the coexistence of international and domestic laws, but denied that the law of nations could be binding on states.753 Instead, he considered natural law and the law of nations to be non-binding laws.754 According to Hobbes, there was no other binding law than domestic law as promulgated by the sovereign, as only the sovereign had the power to enforce the law.755 Instead, Gentili clearly articulated the supremacy of the law of nations and natural law over municipal law and the capacity of the former to abrogate sovereign rights ‘if states fail[ed] to exercise their responsibilities to their citizens’.756 Whereas Hobbes denied any force to customs and general principles of law, Gentili considered both as (binding) sources of the law of nations.757 According to Hobbes, it was the sovereign’s will (voluntas) to determine what was just, and therefore he did not elaborate any meaningful distinction between sovereigns and tyrants.758 In contrast, justice was the leitmotif of the Gentilian opus. Not only did Gentili articulate the difference between sovereigns and tyrants,759 but he also constantly referred to justice in his works. Moreover, whereas Hobbes did not discuss the notion of abuse of power, Gentili conceptualized the law of nations as a corrective to sovereigns’ abuses of power and as an emancipating force against tyranny and imperialism.760 If 751 Gentili, Regales Disputationes, i, 17 (‘Princeps … nec absolutus legibus Dei, naturae, gentium’). 752 Wijffels, ‘Alberico Gentili e i Fondamenti Storico-Concettuali del Diritto Comune Europeo’, 202. 753 Loughlin, ‘The Political Jurisprudence of Hobbes’, 10. 754 Hobbes, Leviathan, Chapter 17 (‘covenants, without the Sword, are but Words, and of no strength to secure a man at all’.) 755 See generally Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of England [1681] (Chicago: University of Chicago Press 1997). 756 Welsh, ‘Distributing the International Responsibility to Protect’, 85. 757 Bobbio, Thomas Hobbes, 55; Gentili, De Iure Belli, Book i, Chapter 1, p. 9 (‘a custom is binding’.) 758 Bobbio, Thomas Hobbes, 59. 759 Gentili, De Iure Belli, Book i, p. 76 (arguing that ‘kingdoms were not made for their kings, but kings for their kingdoms’.); Book iii, Chapter 12, p. 349 (arguing that ‘governments are constituted not for the advantage of any individual, but for that of the community’.) 760 Gentili, De Iure Belli, Book i, Chapter 14, p. 64 (arguing that states should oppose those ‘who are content with no bounds, and end by attacking the fortunes of all’.); Book i, ­Chapter 16, pp. 74 (‘there must … of necessity be some one to remind [sovereigns] of their duty and hold them in restraint’.) and 75 (stressing the principle of defending subjects whom are treated cruelly and unjustly.); Vollerthun, The Idea of International Society, 113 (noting that ‘Gentili’s opposition to … universal control and power to fall into the hands of one people or one man is implicit in his whole work’.)

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fear of death propelled Hobbes to articulate a grammar of obedience, hope led Gentili to articulate an alternative vision of international relations where different cultures could peacefully coexist, provided states did not abuse their powers internally (by becoming tyrants) and externally (by unjustly attacking others for imperialist reasons). In Gentili’s words, ‘peace would be enduring if it were fair on both sides’.761 Although nations might differ in many ways, from size to culture and religion, in international law, all nations, whether Christian or not, were equal and there was ‘no supervision of one sovereign by another’.762 Finally, whereas for the positivist Hobbes, justice had a formal nature—i.e., he viewed justice as embodied in positive law, regardless of the content of such law and the circumstances—for Gentili, justice had a substantive quality.763 According to Gentili, ‘justice should be preferred to the letter of the law’.764 Gentili was aware that perfect justice might not be known in full by human beings, but he nonetheless argued that they should seek it.765 For example, ambassadors should follow the law of nations and natural law and disobey the orders of their sovereigns if the latter clashed with the former. Gentili further emphasized that ‘nothing which was cruel was just’,766 stating that ‘perfect justice’ is ‘that which defends the weak’.767 For Hobbes, the ultimate aim of law was the preservation of peace, but for Gentili, there could be no peace without justice.768 Furthermore, while Hobbes considered that there were no laws governing war (inter arma silent leges), Gentili contended that even if states often violated it, the law of nations remained binding law.769 In conclusion, the comparison between the Gentilian and Hobbesian theories of sovereignty serves to further decipher the complexity of the Gentilian 761 Gentili, De Iure Belli, Book iii, Chapter 13, p. 354. 762 Vollerthun, The Idea of International Community, 122. 763 Bobbio, Thomas Hobbes, 113; Gentili, De Iure Belli, Book i, Chapter 14, p. 65 (‘No one’s sovereignty must ever on any account be allowed to grow so great, that it is not permitted to call in question even his manifest injustice’.) 764 Gentili, De Iure Belli, Book iii, Chapter 12, p. 349. 765 Id. Book i, Chapter 6, p. 31 (‘we see everything dimply, and are not cognizant of th[e] purest and truest form of justice’.) 766 Id. Book iii, Chapter 2, p. 295. 767 Id. Book i, Chapter 15, p. 71. 768 Bobbio, Thomas Hobbes, 116; Gentili, De Iure Belli, Book iii, Chapter 2, p. 296 (‘Justice is the foundation of all the virtues and one should not depart from it for the sake of advantage’.); Book iii, Chapter 1, p. 290 (‘defining peace as ‘ordered justice’ and ‘order’ as the proper distribution of things which … is the nature of justice’.) 769 Bobbio, Thomas Hobbes, 119; Gentili, De Iure Belli, Book i, Chapter 1, p. 7 (‘Because many act contrary to justice, justice is not therefore non-existent; and a law which many transgress is none the less a law’.); Book i, Chapter 6, p. 33 (arguing that the laws of war applied to both belligerents).

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thought and highlights that Gentili was neither as liberal as his supporters have argued, nor as conservative as his detractors have contended. Gentili’s central concern was peace, defined as a natural state under the law of nature. In contrast, war was as a tool of last resort to re-establish peace and international justice. At the domestic level, peace was considered a paramount interest. Nonehteless, at both the domestic and international level, Gentili prioritized the reason of humanity (ratio humanitatis) over the reason of state (ratio stati). 7.6

Critical Assessment

Often considered separately, Gentili’s De Armis Romanis and the Regales Disputationes narrated one big story looking at sovereignty albeit from different ­perspectives. While De Armis Romanis focused on the external dimension of sovereignty, the Regales Disputationes centred on the internal one. Together they addressed the relationship between domestic and international law. Sovereign nations formed the basic units of the international order and the law of nations governed their relations. The notion of sovereignty postulated the equality of nations as they were subject to no external superior power. It also required them to defend and preserve themselves through their own capabilities. Although sovereignty also implied the duty of non-interference, for Gentili there were limited circumstances in which intervention was possible for reasons of humanity. Both De Armis Romanis and the Regales Disputationes mixed political theory and legal analysis; both have given rise to diverging interpretations. The De Armis Romanis constitutes an enigmatic allegory that leaves philosophical questions open and avoids definitive statements. The (in)justice of the Roman Empire was a metaphor that could help to highlight the pros and cons of imperial expansion. That discussion was then timely and topical because England was at war with the powerful Spanish Empire. Gentili juxtaposed two interpretations of Roman history and supported each with apparently plausible legal arguments.770 While Gentili’s dialectical way of writing is thought-provoking, it leaves many questions unanswered. It remains unclear whether Gentili favoured an anti-hegemonic stance, or rather argued in favour of imperialism. Critics of the De Armis Romanis see it as 770 Annabel Brett, ‘Liberty and Absolutism: The Roman Heritage and the International Order in Alberico Gentili’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 189–212, 211.

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a mere endorsement of sheer power, a praise of empires old and new, and an invitation to Elizabethan elites to adopt a policy of expansion and imperialism. Reading the De Armis Romanis in light of the De Iure Belli, other scholars interpret it as a cautionary tale against the dangers of imperialism, condemning empire, and authorizing defence against hegemonic ambitions. For Panizza, both the 1598 De Iure Belli and the 1599 De Armis Romanis endorsed the republican values of liberty, equality, and fraternity and introduced such principles into the international system.771 Finally, other scholars argue that De Armis Romanis ‘does not warrant the identification of Gentili with either of the two protagonists’ of the work.772 Nonetheless, it was not a mere ‘academic exercise’.773 While Panizza famously conceptualized Gentili as lawyer and ideologue, for Brett, Gentili proposed an interpretation of ‘what [was] lawful’ rather than an ideological agenda; ‘what [was] licit d[id] not coincide with any clear set of political values’, even though Gentili might well have ‘ideological commitments’ and these could change over time.774 Because of its indeterminacy, the law of nations might be used to serve different interests and values. The legal theory developed by Gentili in his De Iure Belli seemed to favour values of liberty, equality, and solidarity. In De Armis Romanis, Gentili used the form of the disputation to illuminate both imperialist and anti-imperialist stances and the related legal arguments. His true stance was deliberately hidden in the argument. In conclusion, this Gentilian work cannot be categorized easily;775 rather, it remains ‘sibylline’, and illuminates the open structures of Gentili’s thought. The Regales Disputationes illustrate the Gentilian conceptualization of so­ vereignty. Although this work may seem peripheral at best and unrelated at worst to the Gentilian theory of the law of nations, it deals with the important interplay between public law and international law. By investigating the powers of the sovereign, it also illuminates key limits to the same under international law.776 Public law was not Gentili’s principal concern; he did not elaborate a general theory of public law.777 Rather, the Regales Disputationes were written in response to major political events of the time. Gentili focused on 771 Brett, ‘Liberty and Absolutism’, 192. 772 Id. 211. 773 Id. 774 Id. 775 Id. 212; Gajda, The Earl of Essex and Late Elizabethan Political Culture, 92. 776 Alain Wijffels, ‘Alberico Gentili e il Rinnovamento del Diritto Pubblico nella Tradizione dello Ius Commune’, in vvaa, Alberico Gentili—Atti dei Convegni nel Quarto Centenario della Morte, vol ii (Milan: Giuffrè 2010) 519–556, 530. 777 Id.

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absolute monarchy as a form of government that could be suitably adopted in given political circumstances.778 At first sight, the Regales Disputationes betray a conservative stance that seems to contradict the humanizing spirit that characterized Gentili’s earlier works. They have been seen as a manifestation of the peculiar clash between civil lawyers supporting monarchical absolutism and common lawyers supporting parliamentarism within the English domestic legal system.779 In this vein, the Regales Disputationes would reflect a given domestic political situation,780 constitute ‘a complete intellectual volte face’ and ‘an abandonment’ of the republican values of virtue and liberty.781 Yet, others ‘see more continuity within Gentili’s thought’.782 The line between liberty and absolutism in the Gentilian thought is therefore complex, and not reducible to a simple formula. Conservative and liberal aspects co-exist within the Gentilian system, expressing contrasting patterns of values. This chapter identifies a number of distinct elements of unity within Gentili’s thought throughout his works. While peace was a fundamental aim and cardinal value in both the domestic and international systems, natural law constituted the fundamental key to establish a just, peaceful, and prosperous system of domestic politics and international relations. It also constituted a limit to state sovereignty. Power also emerged as an important thread in the Gentilian tapestry of the law of nations. Far from endorsing imperialism, Gentili transplanted the concept of the balance of power – a system of counterweights against hegemonic ambitions – from political theory to international law. Such concept aimed to prevent abuses of power, counter the formation of hegemonic empires, and maintain liberty at the international level. While Gentili contributed to the conceptualization of sovereignty, he also conceptualized the law of nations as a limit to the same. This is particularly evident in the Gentilian concept of human liberty. For Gentili, human liberty was part of the laws of nature. Gross violations of natural law enabled states to intervene to rescue people who were victims of tyrannical governments, and even to wage war to restore international justice. War and peace, power and law, humanity and sovereignty are thus the core themes in the Gentilian theory of the law of nations. 778 Wijffels, ‘Alberico Gentili e il Rinnovamento del Diritto Pubblico’, 530. 779 Brett, ‘Liberty and Absolutism’, 193. 780 B.P. Levack, The Civil Lawyers in England 1603–1641. A Political Study (Oxford: Clarendon Press 1973) 113. 781 Panizza, ‘Il Pensiero Politico, 173–205. 782 Brett, ‘Liberty and Absolutism’, 194.

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In this scenario, the Gentilian approach to the question of resistance to sovereign power assumes new meaning. For Gentili, rebellion or resistance to tyrannical rule was illegal. He viewed sovereigns as the primary loci of legitimacy and law. At the same time, whereas Gentili discussed absolute monarchy as a form of government, he did not consider this as the best, let alone the unique form of government.783 Rather, his discussion of absolutism was context specific. Moreover, by conceptualizing the supremacy of the law of nations over domestic law, he contributed to the elaboration of human rights and fundamental freedoms, and even peremptory (ius cogens) norms. While Gentili did not endorse the concept of parliamentary sovereignty, thus appearing conservative, he was more liberal than most of his contemporaries by postulating the primacy of inherent rights such as freedom of religion over domestic law. Identifying such patterns can provide new insights not only into the fundamental pillars and structures, shape and contours, core and periphery of the Gentilian theory of the law of nations, but also into the evolution of the Gentilian system over time. Far from being a static system, Gentili’s thought evolved through time, adapting to changing circumstances. Panizza identified three distinct phases in Gentili’s production.784 In a first phase, the republican phase, Gentili endorsed humanist democratic ideals, admitting the right of political resistance, at least in given circumstances. In a second phase, he mixed up conservative and liberal elements. In a third phase, he tended to emphasize conservative/pessimist elements of his thought, which included absolutism, reason of state, and realism. Yet, the republicanism/absolutism, idealism/realism, and optimism/pessimism binaries are inaccurate and even deceptive when applied to the Gentilian system. A more productive frame of reference places the ideal and the real within a spectrum that extends from more idealistic to more realist positions but encompasses both. This frame allows a more comprehensive analysis of the Gentilian thought, reflecting its gradual but inexorable shift from an idealist phase to a realist one.785 This book suggests that Gentili had certain constant patterns of thought throughout his work. Rather then proper ‘turning points’, the reader finds shifts of emphasis. The Gentilian theory was certainly fluid, and constantly adapted to changing circumstances, but its fundamental features never changed: the primacy of international law over domestic law

783 Wijffels, ‘Alberico Gentili e il Rinnovamento del Diritto Pubblico nella Tradizione dello Ius Commune’, 530. 784 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 116. 785 Id. 145.

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and the key importance of peace and justice, individual freedom, and the common good. The republican phase of the Gentilian thought reflected Gentili’s closeness to Calvinist ideals. In his De Legationibus, which epitomized this liberal phase, Gentili admitted that diplomats could ignore superior orders (ius principis) if the latter clashed with divine law (ius Dei).786 This position starkly contrasted with the diplomatic literature of the Renaissance.787 The third book of the De Legationibus portrayed the ideal, intellectual, and moral qualities that an ambassador should possess to exercise his office and constituted a sort of political treatise on the art of good governance. ‘Recommending reading for the perfect ambassador’, Gentili praised Machiavelli ‘as the sharpest praiser and proponent of democracy … in the highest degree hostile to tyranny’.788 For Gentili, Machiavelli presented himself as an advisor to princes to disguise the real aim of his works, that is, educating nations against the dangers of tyranny. In this manner, his work could be tolerated by the sovereign. In this phase, virtue prevailed over the reason of state. And yet, even in this liberal phase, there are some conservative elements. For instance, like the Scottish humanist George Buchanan, Gentili considered Cosimo de’ Medici (1389–1464) to have been a tyrant, but like Guicciardini, Gentili saw that Cosimo had been able to govern Florence in difficult times, preserving the city’s autonomy against foreign powers.789 After years of a flourishing republican government, Florence faced considerable political instability. Cosimo established an authoritarian regime internally, and established an external system of checks and balances among Italian polities through the 1454 Peace of Lodi. This stability lasted for fifty years, during which Florence became one of the main cultural, political, and financial hubs of the Renaissance. For Gentili, it was ‘absurd’ to suggest that Cosimo ‘ought to have waited for his state to be made subject to a … foreign ruler, or should have resigned the tiller to those who would … have exposed the ship to the dangers of reefs and storms, when he himself was the only one who knew how to keep her safe in port’.790 Moreover, Gentili also declined to consider tyrants those rulers who had 786 Alberici Gentilis, De Legationibus Libri Tres (Hanoviae: apud Guilielmum Antonium 1594) iii, 15. 787 Garrett Mattingly, Renaissance Diplomacy (Boston: Houghton Mifflin 1955) 188–189. 788 Brett, ‘Liberty and Absolutism’, 189–212; Howse, ‘Machiavelli’s Rome and Gentili’s De Armis Romanis’, 81; Gentili, De Legationibus, Book iii, Chapter 9. 789 Gentili, De Legationibus, Book ii, Chapter 7, p. 77. 790 Id. For a benign assessment of Lorenzo de’ Medici (1449–1492)’s role in maintaining the balance of power that his grandfather had contributed to establishing, see Gentili, De Iure Belli, Book i, Chapter 14, p. 65.

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reached power through the use of force.791 For him, it did not matter the way power had been obtained, provided that the sovereign governed justly.792 Nor did he consider to be tyrants those who ruled against the will of their people.793 Like a doctor requiring her patients to take bitter medicines for their health, sovereigns could adopt unpopular measures for the common good.794 In any case, for Gentili, private individuals could not resist tyranny by the use of force.795 In a second phase, Gentili combined some elements of the republican liberal tradition with more conservative elements.796 This phase was epitomized by the 1598 De Iure Belli and the 1599 De Armis Romanis. In his masterpiece Gentili argued that, in extreme circumstances, ‘subjects who occupied a particular public position’ such as magistrates and public officials of the highest rank ‘could lawfully resist tyrants by force of arms’.797 However, Gentili’s argument was not intended to acknowledge the right of the people to overthrow a tyrannical government. On the contrary, for Gentili private individuals did not have a right to resist the tyrant.798 Rather, he argued that they should obey their sovereign or should flee religionis causa to remain faithful to their conscience.799 For Gentili, any form of private violence was unlawful, including individual resistance against tyranny.800 In fact, Gentili considered tyranny to be a lesser evil than anarchy and civil war.801 Gentili rejected the theory of resistance elaborated by George Buchanan.802 Buchanan, who had been the preceptor of King James i for several years, postulated a radical theory of the right of resistance. According to Buchanan, not only public officials but also ­individuals had the right to resist tyranny, as 791 Id. 792 Id. 793 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 131. 794 Gentili, De Legationibus, Book ii, Chapter 7, 76. 795 Id. 83. 796 Panizza, ‘Il Pensiero Politico di Alberico Gentili’, 147. 797 Gajda, ‘Debating War and Peace in Late Elizabethan England’, 868; Gentili, De Iure Belli, Book i, Chapter 11, p. 51; Giorgio Galli, Manuale di Storia delle Dottrine Politiche (Milano: Saggiatore 1985) 79–80 (noting that the reformers Jean Calvin (1509–1564) and Theodor Beza (1519–1605) as well as the anonymous author of the 1579 Vindiciae contra Tyrannos also argued that magistrates had the right to take action against a tyrant on behalf of the oppressed people). 798 Gentili, De Iure Belli, Book i, Chapter 18, p. 84. 799 Id., Book i, Chapter 11, p. 50. 800 Id. Book i, Chapter 2. 801 Id. Book iii, Chapter 10, pp. 336–337 (referring to Cosimo De’ Medici’s rule in Florence). 802 George Buchanan, A Dialogue on the Law of Kingship among the Scots. A Critical Edition and Translation of George Buchanan’s De Iure Regni apud Scotos Dialogus, R.A. Mason and M.S. Smith (eds.) (Aldershot 2004).

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subjects should obey divine law rather than state law if the latter clashed with the former.803 He identified two bodies of the sovereign: a physical body (the king) and a mystical body (the state).804 For Buchanan, an attack on the physical body of the sovereign did not automatically translate into an attack on the mystical body of the state.805 The key idea of his treatise De Iure Regni apud Scotos was that sovereigns were subject to the law and should not abuse their power.806 While the king should be the voice of law (lex loquens), the rule of law required a silent king (rex mutus).807 If they breached the law, sovereigns would become tyrants and legitimize their subjects’ revolt. For Buchanan, the best way to prevent tyranny was by educating the sovereign.808 Despite the good intentions, the thesis did not meet the favour of King James i, to whom Buchanan had dedicated his treatise, for the key reason that the right of individual resistance indirectly legitimated the physical elimination of the tyrant, and thus could lend support to civil wars.809 On the basis of this theory, revolutionaries would eventually execute King Charles i (1600–1649), the son of James i.810 For Gentili, the only legitimate form of conflict was external to the state, among sovereign nations, as only sovereigns had the power to wage war (ius belligerandi).811 In this sense, he admitted the legality of humanitarian intervention, i.e. the intervention of a state to fight the tyranny of another, following the fifth book of Bodin’s République and the fourth book of the Vindiciae contra tyrannos, an influential yet anonymous Huguenot treatise.812 For Gentili, nature has established a common bond of reciprocal love and fraternity among human beings.813 Relying on Stoic cosmopolitanism, Gentili considered human beings to be citizens of the entire world.814 Such close connections among

803 Id. 152. 804 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 126. 805 Id. 806 Id. 128. 807 Pirillo, Diego ‘Tra Obbedienza e Resistenza: Alberico Gentili e George Buchanan’, Luigi Lacchè (ed) Ius Gentium, Ius Communicationis, Ius Belli—Alberico Gentili e gli Orizzonti della Modernità (Milan: Giuffrè 2009) 209–227, 221. 808 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 125. 809 Id. 810 Pirillo, ‘Tra Obbedienza e Resistenza’, 219. 811 Diego Pirillo, ‘Tirannide e Tirannicidio nello Spaccio: Bruno tra George Buchanan e ­Alberico Gentili’, in Olivia Catanorchi e Diego Pirillo (eds.) Favole, Metafore, Storie—­ Seminario su Giordano Bruno (Pisa: Scuola Normale Superiore 2007) 249–279, 258. 812 Stephanus Junius Brutus, Vindiciae contra Tyrannos (Edimburgi 1579) quaestio quarta. 813 Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento, 134. 814 Gentili, De Iure Belli, Book i, Chapter 15, p. 67.

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human beings, which was at the heart of the Gentilian theory of the law of ­nations, was also the life and blood of his theory of humanitarian intervention. As a citizen of the world, everybody had the duty to defend humankind, and help those in need. As Gentili put it, ‘the subjects of other [states] do not seem to me to be outside of the kinship of nature and of universal society … and unless we wish to make sovereigns exempt from the law, and bound by no statutes and no precedents, then there must also be those who remind them of their duty, and hold them in check’.815 This did not constitute a right of inspection of sovereigns over other sovereigns; sovereignty remained intact provided that it respected natural law and the law of nations.816 Gentili saw lack of intervention in case of need as an implicit abdication of humanity, even worse than the same violence used by tyrants.817 This position conformed to Elizabethan foreign policy, supporting the war against Spain in general and the British intervention in the Low Countries in particular.818 The key theme in this intermediary phase of the Gentilian thought was the common good at both domestic and international level. At the domestic level, Gentili expressly distinguished absolute sovereignty from tyranny. A sovereign should govern well and for the common good. The sovereign did not receive power (imperium) to alienate his or her subjects, but to rule them as human beings.819 Sovereigns might not make agreements to the detriment of their kingdoms, since they were entrusted with their defence, not with their dilapidation.820 For Gentili, power was not granted for being exercised without any restraint.821 Rather, it should be used properly, legitimately, and with justice.822 Gentili added that ‘[f]ullness of power, however broad and absolute it [might] be, [was] also limited so that nothing unseemly [was] admitted’.823 Rather, full powers should be used in an exemplary manner; in fact, he understood them ‘not with reference to [their] abuse, but to [their] legitimate use’.824 Reasons of humanity (ratio humanitatis) prevailed over the reason of state (ragion di stato or ratio stati). Gentili argued that ‘the theologians [were] mistaken, and the jurists flatter[ed], when they maintain[ed] that everything [was] allowed to 815 Gentili, De Iure Belli, Book i, Chapter 16, p. 74. 816 Brett, ‘Liberty and Absolutism’, 205. 817 Scuccimarra, ‘Proteggere l’Umanità: Lezioni dal Cinquecento?’ 69 (referring to the Vindiciae contra Tyrannos). 818 Pirillo, ‘Tirannide e Tirannicidio nello Spaccio’, 260. 819 Gentili, De Iure Belli, Book iii, Chapter 15, p. 371. 820 Id. Book iii, Chapter 22, p. 412. 821 Id. Book iii, Chapter 15, p. 372. 822 Id. Book ii, Chapter 7, p. 227. 823 Id. 824 Id.

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sovereigns and that they ha[d] supreme and unrestricted power’.825 In fact, divine, natural, and international law delimited the sovereign’s power. While Gentili rejected any resistance theory at the internal level, condemning civil wars, he admitted the existence of limits to the sovereign’s power at the international level, admitting war to redress gross violations of the law of nations.826 Accordingly, in the Gentilian theory war became an instrument of international justice to protect universal human values, the international community, and the common good. At the international level, Gentili accepted that ‘a state [would be] justified in pursuing the advantageous (utile) at the expense of the honourable (honestum), if necessity demand[ed] it’.827 For Panizza, such prioritizing of the useful over the good in case of necessity translated Machiavelli’s political theory into natural law.828 While the traditional view held that honesty should prevail over utility, in the De Iure Belli Gentili suggested that the protection of public safety could prevail over other considerations.829 However, whether this was a truly Machiavellian moment remains open to debate. Rather, such balance of interests reflected the legal heritage that Gentili, a lawyer first and foremost, generally used in his De Iure Belli. The Gentilian theory of the law of nations was a nuanced system, inclusive of a number of rules but also admitting derogations, exceptions, and some flexibility. Therefore, it is possible that Gentili conceptualized the common good, the safety of the people, as a reasonable limit to, if not the essence of, the law of nations. Moreover, the principle of necessity was not a Gentilian invention, but a common element in most legal systems and a general principle of the law of nations. As Gentili aptly stated, while ‘a just and unavoidable necessity makes anything lawful’, ‘complete justice is that which prefers honour to everything’.830 In the third phase, the realist phase, due to the dramatic political changes following the ascent to the throne of James i, Gentili adopted a more authoritarian stance. The Regales Disputationes, which epitomized this phase of the Gentilian production, emphasized the conservative aspects of the Gentilian thought; the reason of state was a key theme of the work. In addressing questions of political theory and international law, the Gentilian theory mirrored and adapted to the changing political circumstances of his times. Published in 1605, the same year of the Gunpowder Plot, the Regales Disputationes denied 825 Gentili, De Iure Belli, Book iii, Chapter 15, pp. 371–372. 826 Id. Book i, Chapter 16, p. 75. 827 Brett, ‘Liberty and Absolutism’, 192. 828 Panizza, ‘Il Pensiero Politico di Alberico Gentili, 162–163. 829 Gentili, De Iure Belli, Book iii, Chapter 12, pp. 351–352. 830 Id. p. 352.

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almost any right of resistance.831 For Gentili, only sovereigns could wage war; he considered private violence, including resistance to the sovereign, a breach of the law.832 He made no reference, direct or indirect, to the possibility for the higher magistrates to resist the sovereign rule, as this could have been seen as a ‘poisonous seditious doctrine’ that would ultimately weaken the commonwealth, the safety, and well-being of the people (salus populi).833 Rather, he considered the maintenance of peace and security to be the ultimate aim of states. Often considered to be a radical departure from the moderation of other Gentilian works, the Regales Disputationes complemented the previous Gentilian works rather than departing from them entirely. For instance, in his De Iure Belli, while Gentili argued for religious freedom, he nonetheless held that such freedom could be subject to restrictions for the protection of public order. While Gentili supported freedom of commerce, he nonetheless claimed that states could limit trade to protect public safety. He allowed preventive war as a defence against aggressive imperialism. Therefore, the reason of state was not absent from the De Iure Belli. At the heart of the Gentilian system lied a fundamental balance between private and public, domestic and international interests, the reason of state and the reason of humanity. At the same time, even in the Regales Disputationes, as in previous works, while Gentili emphasized the sovereignty of states, he also placed constraints and limitations on the power of the sovereign.834 In fact, Gentili stated that sovereigns had both rights and duties towards their citizenry. Kingdoms were not made for their sovereigns; rather, sovereigns were made for their ­kingdoms.835 Even if the sovereign was unbound by domestic law (solutus a lege posita), he remained bound by the laws of God, of nature, and of nations.836 These branches of law did not merely amount to ethical principles 831 Alberici Gentilis, Regales Disputationes (Londini: apud Thomam Vautrollerium 1605) p. 128 (considering that ‘nullam esse posse causam iusta rebellandi, aut resistendi principi’.); p. 114 (nonetheless admitting the legitimacy of the Dutch revolt against Spain–‘Sed neque ad exemplo Belgarum iustissimo argumentum huc iuste ducitur, si non et leges Belgicae habentur: quae expresse exuant principatu principem suum, qui fecerit contra leges’). 832 Pirillo, ‘Repubblicanesimo e Tirannicidio: Osservazioni su Alberico Gentili e Giordano Bruno’, 302. 833 Thomas Hobbes, Leviathan, Chapter 29 (referring to ‘the poison of seditious doctrines, whereof one is that every private man is judge of good and evil actions’.) 834 Brett, ‘Liberty and Absolutism’, 206. 835 Gustave Rolin-Jaequemyns, ‘Quelques Mots sur les Hommages Projetés à la Mémoire de Grotius et d’Albéric Gentil, et sur les Dernières Publications y Relatives’ (1876) Revue de Droit International et Législation Comparée 694. 836 Gentili, Regales Disputationes, Disputatio i, p. 17; cfr Gentili, De Iure Belli, Book iii, Chapter 16, p. 378 (arguing that a sovereign who made a contract with his or her own subjects was bound to them by natural law, by the law of nations, and by the civil law.)

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with no compelling force; on the contrary, Gentili also envisaged possibilities for international law enforcement. While the Regales Disputationes do not detail the external limits to state sovereignty posed by the law of nations, they nonetheless contain references to Gentili’s earlier works on this matter. In a ‘deliberately destabilizing way’, Gentili referred to his earlier works (in which he denied the most extreme aspects of absolutism) to suggest some ‘genuine continuity of content’ in his thought.837 In his De Nuptiis, Gentili stated that ‘natural law prevail[ed]over domestic law’.838 Analogously, in his De Iure Belli, Gentili postulated that natural reason (ratio naturalis) required sovereigns to comply with treaties (pacta sunt servanda) and the same natural law prevailed over domestic law.839 As is known, for Gentili natural law also indicated the law of nations; as he considered the law of nations to be the law that natural reason constituted among all human beings.840 In the Regales Disputationes Gentili postulated a double face of sovereignty, its internal primacy over domestic law, and its external subordination to the law of nations.841 The primacy of the law of nations over domestic law enabled other states to use force against tyrants to repress behaviour that was deemed to infringe natural law and the law of nations.842 Gentili considered the oppression of innocents and the violation of natural rights to be violations of the law of nations. In the clash between state (iura maiestatis) and humanity (ratio humanitatis) it was the latter that prevailed in the Gentilian theory of the international order. Moreover, within the Regales Disputationes, absolutism was not presented as the best, let alone the only form of government. On the contrary, referring to the Swiss who ‘fought long and with happy results’ against foreign rulers, Gentili offered ‘a passionate rhetoric of republican liberty right in the middle of a disputation defending absolute power’.843 From a public law perspective, questions arise as to whether Gentili privileged legal analysis over the political reality of the British ­system.844 While the

837 Brett, ‘Liberty and Absolutism’, 199. 838 Gentili, De Nuptiis, p. 8; Giovanni Minnucci, ‘Alberico Gentili Interpres Iuris Iustiniani o Simpliciter Interpres Iuris?’ in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 237–265, 251. 839 Gentili, De Iure Belli, Book iii, Chapter 16. 840 Giovanni Minnucci, Silete Theologi in Munere Alieno (Bologna: Monduzzi 2016) 194. 841 Pirillo, ‘Repubblicanesimo e Tirannicidio’, 302. 842 Gentili, De Iure Belli, Book i, Chapter 16. 843 Brett, ‘Liberty and Absolutism’, 200. 844 Wijffels, ‘Alberico Gentili e il Rinnovamento del Diritto Pubblico nella Tradizione dello Ius Commune’, 534.

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Gentilian theory was liberal when compared to that proposed by James i,845 Gentili paid little, if any, attention to the particular features of the British system and the importance of Parliament within the same. This assessment is necessarily left to public law historians. Rather, from an international law perspective, both De Armis Romanis and the Regales Disputationes contributed to the conceptualization of state sovereignty. Gentili perceived important conflicts between the reason of state (ratio stati) and the law of nations (ratio naturae) and attempted to devise solutions. Such solutions may or may no longer be appropriate to our current needs, but nonetheless show a particular dialectic way to examine problems and address given issues. In conclusion, far from being incoherent, chameleonic, or even contradictory, the Gentilian system was characterized by fluidity, intellectual versatility, and a mix of idealism and pragmatism. The Gentilian legal theory kept changing: Every phase of the Gentilian architecture built upon the previous phases, changing the whole, but not replacing it. Gentili was both a legal theorist and a practitioner, and his system developed accordingly. The Gentilian system did not belong to the realm of pure theory nor was it a mere historical collection of precedents. Rather, it was a legal theory based on practice that discussed not only norms, derogations, and exceptions, but also a wealth of historical examples drawn from antiquity and contemporary history. Therefore, the Gentilian system constituted a significant and original mix of international legal history and theory. The distinct legal character of Gentili’s work made it a flexible system to respond to the complexity of human nature, the dynamism of human society, and the changing features of history. As an interpres iuris, Gentili aimed to detect general principles of law that could be universally valid; as a sacerdos

845 Benjamin Straumann, ‘The Corpus Iuris as a Source of Law Between Sovereigns in Alberico Gentili’s Thought’ in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (Oxford: oup 2010) 106 and 109 (noting that for Gentili, it was the people (populus) who conferred sovereignty to their ruler). Instead, King James i defended the divine right of sovereigns. See e.g. James i, ‘A Speech to the Lords and Commons of the Parliament at White-Hall, on Wednesday the xxi of March Anno 1609’, in James i, Works (James Winton 1616) 527–531 at 529 (‘The state of monarchy is the supremest thing upon earth … There be three principal [comparisons] that illustrate the state of monarchy: one taken out of the word of God, and the two other out of the grounds of policy and philosophy. In the Scriptures kings are called gods, and so their power after a certain relation compared to the Divine power. Kings are also compared to fathers of families; for a king is truly parens patriae, the politic[al] father of his people. And lastly, kings are compared to the head of this microcosm of the body of man’.)

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iustitiae, he looked for equity and justice.846 This is not to say that his legal theory does not have blind spots—what theory does not? Nonetheless, his reflection on internal and external sovereignty illuminated the limits of state sovereignty and saw nations both as the subjects of, and subject to, international law. In turn, the anti-hegemonic thread of his concept of the balance of power that underpinned De Iure Belli also featured in the De Armis Romanis and the Regales Disputationes. More fundamentally, because of the open structures of the Gentilian thought, his work remains relevant today not only because it mirrors some of the anxieties of contemporary international lawyers but also because it invites international lawyers and international legal historians to address key questions such as why and how we approach the law of nations, and why it matters. 7.7 Conclusions Early modern debates employed philosophy, history, theology, and law ‘to bridge the gap’ between different civilizations ‘sometimes for reconciliatory purposes yet more often for the sake of empire’.847 The term empire was an elusive one, ‘whose meaning shifted constantly in relation to the different contexts in which it was employed’.848 In the late fifteenth and sixteenth centuries, it predominantly indicated the emergence of the modern sovereign state (civitas perfecta) and the articulation of both internal and external sovereignty. Only in the seventeenth and eighteenth centuries did the meaning of empire shift in relation to global contexts and acquire its modern meaning, that is, political, cultural, economic, and military power exercised over a variety of peoples often ‘widely separated in space’.849 Fully immersed in debates concerning empire, Gentili sensibly restricted the range of just causes for waging war.850 He denied that greed and desire for power could be legitimate causes for war, thus excluding ‘the pursuit of

846 Giovanni Minnucci, ‘Per una Rilettura del Metodo Gentiliano’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 55–56. 847 Walter Rech, ‘International Law, Empire, and the Relative Indeterminacy of Narrative’, in Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca (eds) International Law and Empire (Oxford: oup 2017) 57–80, 63. 848 Panizza, ‘Languages of Empire’, 355. 849 Id. 850 Cassi, ‘Lo Ius in Bello nella Dottrina Giusinternazionalistica Moderna’, 1167.

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e­ mpire’ as a just cause of war.851 He also excluded religion and cultural diversity as just causes for waging war, as none should be offended by the fact that other countries have different cultures, laws, and habits.852 He created an imperfect pluralist framework in which international relations among different societies were possible, while acknowledging religious, cultural, and legal differences.853 Gentili denied that the discovery of territories or terra nullius could be a title for acquiring sovereignty; rather, he acknowledged the sovereignty and property rights of Indigenous peoples. Gentili rejected the Aristotelian argument that certain peoples were slaves by nature, finding the Aristotelian distinction between civilized states and barbarian to be ‘insolent’.854 He noted that human beings were not foes by nature; rather, they were trained to be enemies.855 For Gentili, natural law ‘forbid[s] one to injure … those wh[o] are of a different [ethnicity] from our own’.856 Gentili believed in ‘natural rights’ that naturally pertained to all human beings under natural law.857 Such rights included, but were not limited to, the right to establish a family and the right to raise and educate children.858 They also included the right to interact with other peoples, freedom of commerce, and freedom of navigation. More fundamentally, such individual rights also included religious freedom (libertas religionis) and the right to flee in case of religious persecution, tyranny, and natural disasters. Gentili also condemned the use of torture as a tool to gather evidence in judicial proceedings.859 These rights were innate and ‘known naturally to all’.860

851 Gentili, De Iure Belli, Book i, Chapter 7, p. 53. 852 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 30. 853 Id. 854 Gentili, De Iure Belli, Book i, Chapter 12, p. 54. 855 Id. pp. 54–55. 856 Id. Book iii, Chapter 9. 857 Id. Book i, Chapter 25, p. 124. 858 Id. 859 Rolin-Jaequemyns, ‘Quelques Mots sur les Hommages Projetés à la Mémoire de Grotius et d’Albéric Gentil, et sur les Dernières Publications y Relatives’, 694 (referring to Alberico Gentili, Ad Titulum de Maleficiis et Mathematicis, ad Titulum de Professoribus et Medicis (Hannoviae: 1593)); Arrigo Solmi, ‘Alberico Gentili e il Nuovo Diritto Internazionale’, in Pietro De Francisci, Giorgio del Vecchio, Amedeo Giannini, and Arrigo Solmi (eds) Alberico Gentili—Scritti e Discorsi (Roma: Anonima Romana Editoriale 1936) 9–26, 21. ­Alberico Gentili’s brother, Scipione Gentili, also expressed a similar condemnation of ­torture, corporal punishment, and chains. Scipionis Gentilis, De Iurisdictione Libri iii (Francofurti: typ. Wechelianis 1601) Book i, Chapters 12–13. 860 Gentili, De Iure Belli, Book i, Chapter 25, p. 125.

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Gentili admitted a range of just causes for waging war, including the occupation of vacant lands, the protection of natural rights, self-defence, and humanitarian intervention. For Gentili, in case of necessity, due to religious persecution, repeated earthquakes, or wars, people could flee and find refuge in other countries. Local rulers should allow them to occupy vacant lands; the newcomers would remain under the jurisdiction of the local ruler. If, however, the local ruler unjustifiably denied them access to vacant lands, the refugees had a legitimate cause for waging war. For Gentili, those who deprived individuals of fundamental rights committed offenses against the law of nature.861 He argued that ‘customs and practices of an abominable kind … represent[ed] not just different mores, but offenses against human nature and the common law of humanity’.862 Honest wars could be waged for the sake of others, to protect them against tyranny and gross violations of the law of nations, such as human sacrifices and cannibalism. Gentili did not consider these mere crimes to be subject to domestic jurisdiction but acts of such a gravity as to deserve humanitarian intervention. Gentili did not conceive preventive defence and humanitarian intervention as tools of expansion; rather, he saw them as defensive tools, to defend one’s own rights and, where possible, those of other human beings. For Gentili, any total and unjustified denial of freedom of commerce amounted to a violation of the law of nations and could justify war. He saw trade as a ‘mutually beneficial exchange which would build amity among separated peoples’.863 Thus, he adopted a ‘providentialist doctrine of commerce’ according to which mutual needs and resources foster interdependence and comity among nations.864 For Gentili, therefore monopolies over the ocean were ‘an affront to all of humanity’ for preventing other countries from engaging in trade and he strongly condemned the hegemonic ambitions of the Spanish Empire.865 At the same time, however, Gentili carefully qualified freedom of commerce. He argued that while in theory denial of commerce could justify war, in practice it was not ‘a real reason for the Spanish invasions’. According to ­Gentili, 861 Gentili, De Iure Belli, Book I, Chapter 25, p. 124. 862 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 243. 863 Porras, ‘Appropriating Nature’, 643. 864 Id. 643 and 660 (noting that the providentialist theory of commerce took hold and has continued to shape international law’s attitude to trade). 865 Ileana Porras, ‘Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce, and War in Hugo Grotius’ De Iure Praedae—The Law of Prize and Booty, or on How to Distinguish Merchants from Pirates’ (2005–2006) 31 Brooklyn jil 741–804, 764.

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‘the Spaniards were aiming at dominion, and were quite wrongly trying to take possession of the lands of the Indians as if they were possessed by none’.866 Gentili condemned any exploitation of freedom of commerce as a tool of hegemony and acknowledged that nations could limit commercial exchanges for moral, cultural, and religious motives as well as for state security. He acknowledged that freedom of commerce reflected private interests and that these could clash with paramount public interests, such as the very existence of the state. Polities concretely threatened by other states’ imperial ambitions could legitimately resort to self-defence. He argued that nations had a right to selfdefence, and the reason of state could prevail over freedom of commerce. ‘The law of trade is just; but that of maintaining one’s safety is more so’ (ius commerciorum aequum est, at hoc aequius tuendae salutis).867 He explained that ‘[t]he former is a law of nations, the latter of nature. The former concerns private citizens, the latter kingdoms. Let trade therefore give way to the kingdom, man to nature, money to life’.868 For Gentili, general principles of law required that ‘the profane should yield to the sacred, the things of the body to those of the spirit, the interests of fortune to those of the person, … that which involves individual advantage to that which involves the public welfare, the strict law to the just one’.869 For instance, he approved of countries, such as China, that legitimately limited trade for security reasons. More generally, Gentili noted that property owners were ‘often unable to do what they want[ed] with their own in order that the commonwealth [might] suffer no harm, and also that nothing which [was] not just [might] be done to other citizens’ because ‘it [was] contrary to natural law and the law of nations for an individual to seek his or her own advantage at the expense of others’.870 Instead, private profit could be lawfully limited, ‘provided some great gain [was] thereby won for the state and for human society’.871 Gentili concluded that ‘these traders ought to be pleased that their traffic is interfered with and their profits taken away, because such action is advantageous to so great part of the world’.872 Although some Gentilian ideas and beliefs can be interpreted as supporting European expansion, ‘on some issues [his] pluralism has also been read as 866 Benedict Kingsbury, ‘Gentili, Grotius, and the Extra-European World’, in Harry N. Schreiber (ed) The Law of the Sea: The Common Heritage and Emerging Challenges (The Hague: M. Nijhoff 2000) 39–49, 56; Gentili, De Iure Belli, Book i, Chapter 19. 867 Gentili, De Iure Belli, Book i, Chapter 21, p. 101. 868 Id. 869 Id. p. 102. 870 Id. 871 Id. 872 Id.

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ahead of his time’.873 While it may be argued that ambiguities, anxieties, and criticisms justified colonial expansion all the better ‘add[ing] to the appeal of any justificatory discourse’, and, as a Regius Professor, Gentili might have written with the exigencies of Elizabethan England in mind, the fact remains that his De Iure Belli and even his De Armis Romanis contain both conservative and liberal elements, as well as a clear anti-hegemonic leitmotiv.874 If it is true that the principal motive of Elizabethan foreign policy was national defence, the Gentilian work can be read as promoting state equality, independence, and freedom in international relations. Such an interpretation of the Gentilian theory can also help explain why it was soon neglected in the seventeenth and eighteenth centuries. Once most European states had adopted imperial policies, the anti-hegemonic features of the Gentilian system rendered it somewhat irrelevant, if not outrightly opposed to imperial ambitions. If, as Gentili wrote, the true test of a scholar is in his work (hoc experimentum hominis, opus eius),875 then in his work are the deep structures of his legal theory. Gentili’s De Iure Belli and De Armis Romanis show that the law of nations has always been contested terrain. The complexity of the Gentilian thought is particularly evident in the De Armis Romanis. By metaphorically discussing the (in)justice of the Roman Empire, Gentili examined the (in)justice of empire more generally. As is known, Roman history often offers a sort of pleasing mirror (miroir complaisant) enabling its observers to find the image they desire. Does one desire a model of Republican virtues and democratic governance? The history of the Roman Republic, as idealized by orators like Cicero, offers such a high model of civic virtue. Does one look for a narrative of war, conquest, and empire? The history of the Roman Empire, as narrated by historians like Tacitus and others, offers plenty of stories of the kind. The power of the De Armis Romanis lies precisely the fact that it adopts two different perspectives—that of the victor and that of the defeated—and points in opposite directions, virtually daring its readers to choose one of the two competing interpretations. Like a mirror, it asks its readers to critically engage with the perennially battling forces of war and peace, tyranny and freedom, division and unity, and allow them to decide on the injustice of empire. While for many scholars De Armis Romanis endorses an imperialist stance, for others it questions the legitimacy of the Roman Empire and the legitimacy

873 Kingsbury, ‘Gentili, Grotius, and the Extra-European World’, 57. 874 Id. 875 Gentili, De Armis Romanis, Book ii, Chapter 1, pp. 122–123.

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of empire more generally.876 In De Armis Romanis Gentili attempted to justify a preventive war against the Spanish Empire to preserve Europe’s liberty.877 In conclusion, not only did Gentili reject ‘the pursuit of empire as a just cause of war’, but he also ‘rejected empire as an ideal structure’ of the international order.878 To consider Gentili as an ideologue of colonialism or as a staunch conservative would be a hasty, and ultimately unpersuasive, assessment, because it would fail to take into account the deep structure of Gentilian thought,879 including his express condemnation of the Spanish Empire in particular and hegemonic ambitions more generally. In addition to examining matters related to the external dimension of sovereignty and empire, Gentili also examined the internal dimension of sovereignty, concerning the form and function of government and the relationship between sovereigns and their people. The power of sovereigns over their subjects was not perceived as a purely internal question, but also as a matter of the law of nations. On the one hand, nations were considered subjects of the law of nations. On the other hand, they had to comply with international law anddefeating tyranny was seen not just as an internal matter, but as a matter of the law of nations. Therefore, Gentili’s Regales Disputationes offered a legal-political theory of internal sovereignty that complemented his theory of external sovereignty as expressed in De Armis Romanis and De Iure Belli. For Gentili, all nations who did not recognize any power above them were sovereign (superiorem non recognoscentes)880 and different polities had different forms of governments.881 Among the different forms of government each community could adopt, Gentili examined and critically assessed absolutism. He formulated a theory of internal sovereignty characterized by the primacy of the sovereign over domestic law (supremitas).882 Even though the absolute power of the sovereign could degenerate into tyranny, and it was often difficult to distinguish the former from the latter, Gentili maintained the separation between absolutism and tyranny.883 While the sovereign aimed at the common good and justice, the tyrant was motivated by self-interest. While the sovereign voluntarily respected the religious freedom of his or her subjects provided they posed no danger to the state, the tyrant imposed religious unity 876 Panizza, ‘Alberico Gentili’s De Armis Romanis’, 55. 877 Id. 57–58. 878 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 230. 879 Kingsbury, ‘Alberico Gentili e il Mondo Extraeuropeo’, 25. 880 Suin, ‘Sovrani e Sudditi’, 256. 881 Gentili, De Iure Belli, Nencini (trans), Book iii, Chapter 10, p. 493. 882 Gentili, Regales Disputationes, p. 30. 883 Id. p. 24.

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by force.884 Nonetheless, for Gentili, it was better to have a state, even if badly governed, than to fall into anarchy, as civil wars could jeopardize the very existence of states (salus reipublicae).885 Citizens did not have a right to resist their sovereign but, if necessary, they could flee or ask for and hope in the intervention of a foreign sovereign.886 While the Regales Disputationes are generally considered to express a rather unbounded absolutism, they included limits to the sovereign’s power. In fact, the sovereign remained subject to divine, natural, and international law.887 In the Gentilian theory, these were not empty categories. Subjecting sovereign states to international law also subjected them to the ‘honest war’ of humanitarian intervention. Gentili viewed humanitarian intervention as a tool to check sovereigns and protect their citizens from cruel treatment. Gentili had a cosmopolitan vision of justice; preventing, facing, and defeating tyranny was not just an internal matter, but became a matter of the law of nations.888 For Gentili, the tyrant was the enemy of humankind. Therefore, it was lawful to wage preventive war against the same or use military intervention for humanitarian reasons.889 If sovereigns breached the law of nations, they would legitimize other sovereigns to wage war against the state.890 Gentili acknowledged that humanitarian intervention could be instrumentalized. Nonetheless, key passages of his De Iure Belli referring to the politics of the Italian peninsula—then fragmented in a multiplicity of states and oppressed by foreign invasions—seem to lend support to the liberal reading of Gentili’s concept of humanitarian intervention as a tool to protect the weak, the vulnerable, and those in need rather than a tool of imperial conquest. Yet, as mentioned, other interpretations remain plausible given the complexity of the Gentilian thought. 884 885 886 887

Suin, ‘Sovrani e Sudditi’, 263. Id. 261. Id. 264. Alain Wijffels, ‘Une Disputation d’Alberico Gentili sur le Droit du Souverain de Disposer de Son Royaume et des Biens de Ses Sujets’, in Jacques Krynen and Michael Stolleis (eds) Science Politique et Droit Public dans les Facultés de Droit Européennes (Frankfurt am Main: Klostermann 2008) 469–484, 472. 888 Gentili, De Iure Belli, Book i, Chapter 14. 889 Id. Book i, Chapters 15 and 16. 890 Gentili, Regales Disputationes, iii, 116.

Chapter 8

Alberico Gentili and Hugo Grotius Knowledge is in the end based on acknowledgment.1

∵ 8.1 Introduction A religious refugee and Regius Professor of civil law at the University of Oxford, Gentili contributed to the development of the law of nations as an autonomous discipline, separate from domestic law and theology. He systematized important fields of international law such as the law of war, diplomatic law, and the law of the sea. In his masterpiece, the De Iure Belli, he also elaborated key legal concepts such as religious freedom, humanitarian intervention, and the protection of civilians during armed conflict. Soon after Gentili’s death, his fame was overshadowed by that of Hugo Grotius (1583–1608), a Dutch scholar who is often regarded as one of the founders of international law.2 Although it is now clear that the foundational structure of international law emerged over centuries and this discipline is the product of collegiate rather than individual efforts,3 it seems appropriate to compare Alberico Gentili and Hugo Grotius’ works systematically on a range of themes to dispel the mystery behind the genesis of given international law concepts and to attribute these concepts to their respective authors.4 Did Gentili influence Grotius’ work? If so, to what

1 Ludwig Wittgenstein, On Certainty (New York: Harper 1969) 378. 2 But see James Leslie Brierly, The Law of Nations. An Introduction to the International Law of Peace (Oxford: Clarendon Press 1963) 28 (noting that ‘to consider Grotius as the founding father of international law is to exaggerate his originality and to do less than justice to the writers who preceded him’.) 3 Benedict Kingsbury and Adam Roberts, ‘Introduction: Grotian Thought in International Relations’, in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.) Hugo Grotius and International Relations (Oxford: Clarendon Press 1990) 1–64, 3. 4 For earlier studies, see Kenneth R. Simmonds, ‘Hugo Grotius and Alberico Gentili’ (1959) 8 German yil 85–100; Kenneth R. Simmonds, ‘Some English Precursors of Hugo Grotius’ (1957) 43 Transactions of the Grotius Society 143–157.

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extent is Gentili present in Grotius’ writings? Did the Renaissance canons of originality differ from the contemporary ones? This chapter aims to answer these questions, comparing Gentili and Grotius’ respective works on a range of themes. Addressing these questions does not merely have a historical value; rather, it can provide a better understanding of the history and theory of international law. Juxtaposing the scholarly works of Gentili and Grotius on a range of themes can help to address the question of whether Grotius borrowed some concepts from Gentili’s work. It also sheds some light on the unique and original contributions Gentili made to the early modern law of nations. Comparing the work of Gentili and Grotius may be challenging because Gentili’s work lacks a perfectly systemic framework. Gentili was a great practitioner and his scholarly work addressed pragmatically the major political questions of the day. He discussed contemporary issues through schemes based on practice rather than adopting an abstract theoretical perspective. Furthermore, his typical use of arguments, counterarguments, and analogies makes it difficult to determine his preferred line of argument. By contrast, Grotius’ style was structured, linear, and clear.5 This does not necessarily mean that Grotius’ arguments were of better quality, but that his readers might grasp them more easily. Therefore, any juxtaposition of the works of Gentili and Grotius needs to: (1) take into account the diverging styles of the authors; (2) detect the lines of their respective arguments; and (3) evaluate the findings in an analytical manner. Only the sustained scrutiny of both works can fully do justice to each author. In order to compare Gentili and Grotius’ respective works, this chapter proceeds as follows. Section 1 briefly highlights why the confrontation is needed and introduces the life and work of Hugo Grotius. Section 2 illustrates the different writing styles of the two scholars. Section 3 discusses the similarities and differences in their methods. Section 4 compares some select passages of Gentili and Grotius’ major works on key issues of international law including the concepts of natural law, international community, defensive and offensive warfare, peaceful dispute settlement, prisoners of war, noncombatants, and, lastly, the law of peace treaties. Section 5 critically assesses the convergences and divergences of their respective arguments. Finally, the chapter concludes by evaluating the respective contributions of these scholars to the early modern law of nations. Gentili had a profound and d­ eterminant 5 Peter Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili. Considerazioni Sparse di un “Groziano”’. in vvaa, Il Diritto della Guerra e della Pace di Alberico Gentili—Atti del Convegno della Quarta Giornata Gentiliana (Milano: Giuffrè 1995) 9–54, 12.

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influence on G ­ rotius’ thought; at the same time there are many differences in their legal theories.6 8.2

Comparing Gentili and Grotius’ Respective Works

Visitors to the Rijksmuseum in Amsterdam are often startled by the book chest of Hugo Grotius (1583–1645),7 which is exhibited amidst the finest paintings of the Dutch Golden Age. Most visitors are not jurists let alone experts in international law or legal history. What they see is a rather simple wooden box, with iron locks and leather features, encased in glass and located at the centre of a large room. Yet, when international lawyers visit the museum, they inevitably gravitate toward the book chest. Once used for storing books, the large, solid box inexorably captures the imagination of international lawyers. It appears as a symbol of resilience and as an essential element in the history of international law. Hugo Grotius is deemed to be one of the founders of international law, as he wrote treatises that deeply influenced the development of international law as we know it.8 Born in 1583, as the son of a burgomaster, Grotius ‘came from a wealthy family that was part of ruling … elite of Delft in Holland’.9 A child prodigy, he studied at the University of Leiden when only eleven, ‘published a book at fourteen’, and defended a doctorate at the University of Orléans at fifteen.10 Soon after, King Henry iv of France acclaimed him as ‘the miracle of Holland’.11 He wrote nearly sixty books mostly in Latin, ranging from theology and history to poetry and law. He made history for his contribution to the law of nations. Grotius soon became ‘an engaged participant’ in Dutch politics, which focused on reaching independence from Spain, and fostering commercial expansion and religious reform.12 Under the aegis of Johan Van Oldenbarnevelt (1547–1619), statesman, politician, and the Land’s Advocate of Holland, Grotius 6

Fujo Ito, ‘Alberico Gentili e Ugo Grotio’ (1964) 41 Rivista Internazionale di Filosofia del Diritto 621–627, 623. 7 The Book Chest of Hugo Grotius is physically displayed in the Rijksmuseum, Amsterdam, and can be seen at (last visited on 10 September 2019). 8 Hedley Bull, ‘The Importance of Grotius in the Study of International Relations’, in Bull, Kingsbury, and Roberts (eds) Hugo Grotius and International Relations 65–93, 67. 9 John T. Parry, ‘What is the Grotian Tradition in International Law?’ (2014) 35 University of Pennsylvania jil 299, 325. 10 Bull, ‘The Importance of Grotius in the Study of International Relations’, 67. 11 Id. 12 Parry, ‘What is the Grotian Tradition of International Law?’ 304 and 325.

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held several political offices in the country.13 Like his protector, Grotius stressed the need for commercial expansion to secure the United Provinces’ independence from Spain,14 politically stood against centralization of power in the seven provinces, and religiously endorsed the creed of the Arminians. The theological ­controversy between the Arminians (or Remonstrants) and the Calvinists (or Contra-Remonstrants) centred on the doctrine of divine predestination.15 What initially started as a theological disagreement soon became a political matter that divided the Provinces into different factions. When Grotius’ party was defeated by a coup, Van Oldenbarnevelt was executed and Grotius was imprisoned for his religious beliefs in the castle of ­Loevestein—as he was considered too Catholic by the Reformers16 and too Protestant by the Catholics.17 However, two years later, he managed to escape from the castle ‘in a manner appropriate to a scholar’, by hiding in the bookchest that his wife had used to send him books for the duration of his prison sentence.18 ‘He made his way to France, where … [he] spent the rest of his life in exile’.19 Grotius’ efforts to return to the United Provinces were fruitless.20 Serving as the Ambassador of Protestant Sweden to Catholic France, ‘Grotius does not seem to have been a success as a diplomat’; he himself ‘was inclined to regard his diplomatic duties as an unwelcome interruption’ to his studies.21 Grotius contributed to the law of nations mainly with two works. The first, De Iure Praedae (the law of prize) was written during the Dutch period.22 It was 13 14

Parry, ‘What is the Grotian Tradition of International Law?’ 340. Martine Julia Van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies 1595–1615 (Leiden: Brill 2006) xix. 15 Richard Tuck, Philosophy and Government 1572–1651 (New York: cup 1993) 182 (explaining the Arminian view of salvation by analogizing God’s offer of grace to the elect to a parent’s offer to buy something for a child: ‘the child can refuse the offer, but he cannot purchase the present himself’.) 16 C.G. Roelofsen, ‘Grotius and the International Politics of the Seventeenth Century’, in Bull, Kingsbury, and Roberts (eds) Hugo Grotius and International Relations, 95–131, 130 (noting that the Reformers perceived him as sympathizing for the Catholics (Grotius Papizans)). 17 Henk JM Nellen, Hugo Grotius: A Lifelong Struggle for Peace in Church and State 1583–1645 (Leiden: Brill 2014) 649 (noting that the Catholics considered Grotius as ‘not Catholic enough’ (non satis catholice)). 18 Bull, ‘The Importance of Grotius in the Study of International Relations’, 68. 19 Id. 20 Parry, ‘What is the Grotian Tradition of International Law?’ 347. 21 Bull, ‘The Importance of Grotius in the Study of International Relations’, 69–70 (reporting that King James i of England considered Grotius a ‘pedant, full of words, and of no great judgment’.) 22 Hugo Grotius, De Iure Praedae [1604] Gwladys L. Williams and Walter H. Zeydel (trans.) (Oxford: Clarendon Press 1950).

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published posthumously in the mid-nineteenth century except for one chapter, Mare Liberum (The Freedom of the Seas), published in 1609.23 In his De Iure Praedae, Grotius tried to demonstrate that the Portuguese, in attempting to control trade in the East Indies, violated natural law.24 According to this line of argument, when a Dutch merchant, Jacob van Heemskerck, who did not have a privateering commission, seized a Portuguese ship, the Santa Catarina, near Malacca in 1603, he did not commit an act of piracy; rather, for Grotius, he was justified in taking the ship as a compensation for Portuguese infringement of the law of nations.25 In Mare Liberum, Grotius famously argued that no power had exclusive rights to navigation, fisheries or trade in the East Indies.26 Dedicated to King Louis xiii of France and published in 1625, the De Iure Belli ac Pacis (The Law of War and Peace)27 secured fame for Grotius. The book allegedly aimed to minimize bloodshed in wars by constructing a general theory of law that would restrain and regulate war. It provided a general normative framework that proved to be foundational to govern relations between emerging sovereign states. Grotius has deeply influenced the history and theory of international law, and remains an almost constant reference in different fields of international law.28 The Grotian works have ‘in some measure evolved away from [their] author’ and have become a treasure trove of international law literature.29 As Higgins points out, ‘there has to be something extraordinary about a man who 23 24 25

26 27 28

29

Hugo Grotius, The Free Sea [1609] David Armitage (ed.) Richard Hakluyt (trans.) (Indianapolis: Liberty Fund 2004). Henry Jones, ‘Lines in the Ocean: Thinking with the Sea about Territory and International Law’ (2016) 4 London Review of International Law 329. Ileana Porras, ‘Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius’ De Iure Praedae—the Law of Prize and Booty, or on How to Distinguish Merchants from Pirates’ (2005–2006) 31 Brooklyn jil 741–804, 755. Bull, ‘The Importance of Grotius in the Study of International Relations’, 71. Hugonis Grotii, De Iure Belli ac Pacis Libri Tres (Parisiis: apud Nicolaum Buon 1625); Hugo Grotius, De Iure Belli ac Pacis Libri Tres, J.B. Scott (introduction), F.W. Kelsey (trans) (Oxford: oup 1925). See Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 byil 1 (postulating the existence of a ‘Grotian tradition’—meant as ‘a commitment to the idea of an international society’.). But see Parry, ‘What is the Grotian Tradition in International Law?’, 304 (contending that ‘many of the ideas that Lauterpacht … and other writers identify as the Grotian tradition did not come from Grotius’ and that ‘the Grotian tradition … is less about Grotius than it is about the ideas and goals of his post-World War ii interlocutors’, but also admitting, at 323, that ‘ agreement exists on the importance of Grotius … but the specific content of the tradition remains somewhat elusive’.) Kingsbury and Roberts, ‘Introduction: Grotian Thought in International Relations’, 5.

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wrote in Latin in the early seventeenth century and whose words we study and invoke today in a vastly changed world’.30 Grotius’ legal works have influenced ‘discussions about the past, present, and future of global governance’,31 and have been ‘cited extensively as authority in judicial decisions, diplomatic practice, and scholarly works’.32 Its geometrical spirit ‘appealed more to the age of system-builders like Pufendorf, Spinoza, Leibniz … than did the plain empirical approach of Gentili’.33 By contrast, Gentili was soon neglected after his death. For centuries, his works languished in various libraries across Europe without having any apparent influence on the evolution of the law of nations. ‘For centuries [Gentili] was mentioned in writings on international law only here and there’,34 mostly as one of Grotius’ predecessors. Vattel did not even mention him in his treatise on the law of nations.35 Grotius’ ‘derogatory and partly unfair remarks … may well have influenced the judgment of later generations’.36 While Holland’s Inaugural Lecture at All Souls’ College, University of Oxford, on 7 November 1874, opened a new era in the study and appreciation of Gentili, most of Gentili’s works have yet to be edited and translated into modern languages, while some have never been published. Therefore, only the principal works of Gentili are accessible to the public. Usually considered as the evidence and the tool of an incredible escape, Grotius’ chest of books also proves that he was an erudite and avid reader.37 The existing letters that Grotius wrote to his relatives and friends indicate that he managed to read specific books in prison, including Gentili’s De Iure Belli.38 Therefore, the book chest constitutes a visual clue that can contribute to ongoing investigations on early modern international law. In ­particular, the 30

Rosalyn Higgins, ‘Grotius and the Development of International Law in the United Nations Period’, in Bull, Kingsbury, and Roberts (eds.) Hugo Grotius and International Relations 267–280, 279. 31 John D. Haskell, ‘Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial’ (2011) 25 Emory ilr 269– 298, 271. 32 Kingsbury and Roberts, ‘Introduction: Grotian Thought in International Relations’, 4. 33 Peter Haggenmacher, ‘Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture’ in Bull, Kingsbury, and Roberts (eds.) Hugo Grotius and International Relations 174. 34 Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan 1954) 100. 35 Id. 36 Id. 37 Valentina Vadi, ‘Grotius’ Book Chest, International Law and Material Culture’ (2017) 68 nilq 317–328. 38 Haggenmacher, ‘Grotius and Gentili’, 152 (noting that Grotius read both De Iure Belli and the Advocatio Hispanica in prison).

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chest confirms that Grotius read several Gentilian works before writing his own and that the origins of international law may be more pluralist than originally thought. If books generally have an emancipatory potential, in Grotius’ case, reading books provided him with inspiration, relief, and ultimately, a way to escape. The book chest is also a reminder that scholars are indebted to their predecessors and that acknowledging their sources is the only way to find their own originality. 8.3

Diverging Writing Styles

Gentili and Grotius had different writing styles. Whereas Gentili embraced a style of Latin that was full of imperfections and included many post-classical words and features, Grotius’ Latin was close to ‘perfection’.39 While Gentili adopted a dialectic and inductive style, Grotius adopted a systematic and deductive style. Gentili was a great practitioner and his scholarly work addressed pragmatically the major political questions of the day. Gentili arranged his treatises by topics, rather than by principles. He discussed the emerging law of nations through schemes based on practice. Moreover, he typically used arguments and counterarguments, in the fashion of medieval disputations. His dialectical style makes identifying his preferred line of argument difficult. Gentili ‘often hesitate[d] in drawing precise conclusions’ and ‘it is sometimes difficult not to lose the thread of his argument’.40 By contrast, Grotius’ argumentative style was structured, linear, and clear. His use of classical Latin was ‘accomplished’, his prose ‘well-ordered’, and his rhetorical style skilled.41 Grotius considered ‘an orderly structure of the greatest importance when presenting a legal argument’.42 Without a clear order, he argued, words would be like ‘sand without lime’ (arena sine calce).43 Following the systematic line of the humanist tradition, the Grotian system analysed and critically assessed any topic relating to the law of war.44 While he privileged 39

Gustave Rolin-Jaequemyns, ‘Quelques Mots sur les Hommages Projetés à la Mémoire de Grotius et d’Albéric Gentil, et sur les Dernières Publications y Relatives’ (1876) Revue de Droit International et Législation Comparée 690–696, 691. 40 G.H.J. Van der Molen, Alberico Gentili and the Development of International Law 2nd ed. (Leyden: A.W. Sijthoff 1968) 243. 41 Roelofsen, ‘Grotius and the International Politics of the Seventeenth Century’, 107, footnote 58. 42 Nellen, Hugo Grotius, 79. 43 Id. 79 footnote 103. 44 Haggenmacher, ‘Grotius and Gentili’, 161–162.

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legal sources over non-legal ones, he also relied on theological, philosophical, historical, and literary sources.45 This does not necessarily mean that Grotius’ arguments are of better quality than the Gentilian ones, but his views are more readily grasped. Whereas Gentili adopted a polemical style, Grotius took an irenic stance. Gentili was ‘continually on the warpath’, used a polemical tone, and made frequent use of invectives in his writings.46 For instance, Gentili harshly criticized the great Dutch Renaissance humanist Erasmus of Rotterdam (1466–1536) alleging that the latter did not know what he was saying.47 No similar tirades appear in Grotius’ De Iure Belli ac Pacis.48 While this polemical style characterized the texts of the Renaissance period, it has fallen out of fashion these days. By contrast, Grotius employed a composed, polished, and detached tone. His style was ‘always controlled and tempered, seeking to extricate itself from … meaningless passions’. He used a ‘formalistic and technical’ language derived from ‘the conceptual reservoir of lawyers’.49 Grotius himself claimed to have ‘a pacific temperament’ (ingenium pacatum)50 and avoided inflammatory tones and polemics in both his theological and legal works.51 An ‘ambivalent attitude’ characterized his works; ‘it is hard to find Grotius ever adopting an ­unequivocal position’ on doctrinal points.52 While many scholars have interpreted Grotius’ avoidance of points of doctrine as setting forth a secularized

45

C.G. Roelofsen, ‘Some Remarks on the Sources of the Grotian System of International Law’ (1983) 30 Netherlands ilr 73–79, 73 (adding that ‘most [of this mass of materials] seems at first sight quite irrelevant to our subject’). Grotius, ibp, Prolegomena, 46–47 (admitting, at 47, that he cited poets and orators for embellishing his writings as their views did not have much (legal) weight). 46 Nussbaum, A Concise History of the Law of Nations, 100 (noting that Gentili attacked the French humanist schools, theologians, common law jurists, whom he called pettifoggers (legulei), and even Erasmus of Rotterdam whom he considered a ‘dilettante’). 47 Alberico Gentili, De Iure Belli, Book V, Chapter 1. 48 Id. Book iii, Chapter 19, p. 403. 49 Karma Nabulsi, ‘An Ideology of War, not Peace: Jus in Bello and the Grotian Tradition of War’ (1999) 4 Journal of Political Ideologies 13–37, 18. 50 Nellen, Hugo Grotius, 81. 51 Haggenmacher, ‘Grotius and Gentili’, 147 (noting that ‘one of [Grotius’] most typical tendencies was to discover truth beyond divergent opinions’.) 52 Roelofsen, ‘Some Remarks on the Sources of the Grotian System of International Law’, 78 (also arguing, at 79, that ‘the cautious attitude repeatedly recommended by Grotius, his preaching on the virtues of the status quo and the respect shown to established rights, all betray a conservative outlook, which can be easily associated with the traditions of the Dutch patriciate to which Grotius belonged’).

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restatement of international law,53 critical scholars contend that Grotius did not have ‘a neutral position’ but expressed a religious stance ‘in favour of a reconciliation of the Christian churches’.54 In Grotius’ view, the religious conflicts among the Christian churches, which were a persistent cause of war in Europe, were largely attributable to excesses of dogmatism.55 He argued that if the various religious currents could agree on a set of core dogmatic tenets, while disagreeing on peripheral issues, then they could reunify the Christian church.56 His irenic position relied on Erasmus, who argued for a middle road (via media) between opposing religious currents.57 Although Grotius’ approach to religious unity among Christian faiths was not popular in the Renaissance, his moderate tones have led generations of scholars to appreciate his legal works.58 With regard to his polished prose, he used ‘close relatives and friends as research assistants [and] proof readers’.59 Whereas Gentili also included contemporary evidence and recent practice, Grotius did not.60 Gentili avoided ‘all arbitrary dogmatic methods’; rather, he considered ‘actual conditions and possibilities’61 and his works constituted a legal ‘commentary upon the events of the sixteenth century’.62 He tried to fashion legal solutions to address contemporary problems. Grotius was critical of Gentili’s extensive reference to current events, considering some distance as a 53 Nussbaum, A Concise History of the Law of Nations, 105 (arguing that by stating that natural law would be valid even if there was no God, Grotius ‘made an important step toward the emancipation of international law from theology’.) 54 Haskell, ‘Hugo Grotius in the Contemporary Memory of International Law’, 274–275. 55 J. Heering, Hugo Grotius as Apologist for the Christian Religion: a Study of his Work De Veritate Religionis Christianae, 1640 (Leiden: Brill 2004) 41–52. 56 Freya Sierhuis, ‘Controversy and Reconciliation: Grotius, Vondel, and the Debate on Religious Peace in the Dutch Republic’, in Isabel Karremann, Cornel Zwierlein, and Inga Mai Groote (eds.) Forgetting Faith? Negotiating Confessional Conflict in Early Modern Europe (Berlin/Boston: De Gruyter 2012) 139–162, 153. 57 Johannes Trapman, ‘Grotius and Erasmus’, in Henk JM Nellen and Edwin Rabbie (eds.) Hugo Grotius, Theologian: Essays in Honour of Posthumus Meyjes (Leiden: Brill 1994) 77– 99, 93. 58 Nussbaum, Concise History of the Law of Nations, 105–112. 59 Martine van Ittersum, ‘The Working Methods of Hugo Grotius: Which Sources Did He Use and How Did He Use Them in His Early Writings on Natural Law Theory?’ Paul J. du Plessis and John W. Cairns (eds.) Reassessing Legal Humanism and its Claims: Petere Fontes? (Edinburgh: Edinburgh University Press 2016) 166. 60 Roelofsen, ‘Some Remarks on the Sources of the Grotian System of International Law’, 75. 61 Coleman Phillipson, ‘The Great Jurists of the World—Albericus Gentilis’ (1911) 12 Journal of the Society of Comparative Legislation 52, 80. 62 Ernest Nys, ‘Introduction’, Alberico Gentili, De Legationibus Libri Tres, Gordon J. Laing (trans.) (New York: oup 1924) 31.

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necessary prerequisite for building a theory of the law of nations which could have universal validity and survive the contingencies of time.63 Grotius treated history as an ‘uninterrupted continuum’64 and took most of his examples from antiquity.65 In an age in which piracy and privateering were common pheno­ mena worldwide, Grotius referred to the wars the Romans fought against the pirates in the Mediterranean Sea.66 In conclusion, Gentili and Grotius had different writing styles. The difference between their styles is comparable to the distance between Christopher Marlowe and William Shakespeare.67 Yet, despite some imperfections, or perhaps because of these, one can still appreciate Gentili’s style for some of the very flaws his critics have pointed out. The reader can see him working things out and playing with ideas. Close to spoken language,68 Gentili’s lively writing style captures the reader’s imagination, and ‘sometimes achieve[s] a certain eloquence’.69 His incisive style has been praised for its energy, brevity, and humour.70 On the other hand, where Gentili seemed to ‘struggl[e] with his s­ ubject matter … it must not be forgotten that he had first to gather the raw material himself to work it up’.71 Moreover, while Grotius criticized Gentili for including only a limited number of examples,72 readers may prefer Gentili’s straight­ forwardness to Grotius’ ‘propensity to luxuriant quotations’.73 While Grotius 63 Grotius, dbp, prolegomena 58 (expressly stating that he would not focus on current disputes and particular events.) 64 C.G. Roelofsen, ‘Grotius and State Practice of His Day’ (1989) 10 Grotiana 45. 65 Grotius, dbp, prolegomena 46. 66 Michael Kempe, ‘Beyond the Law. The Image of Piracy in the Legal Writings of Hugo Grotius’ (2005–7) 26–28 Grotiana 379–395, 383–384. 67 Thomas E. Holland, Discorso Inaugurale Letto nel Collegio dei Fedeli Defunti in Oxford, il 7 Novembre 1874, Aurelio Saffi (trans.) (Roma: Ermanno Loescher & Co. 1884) 8. 68 Dominique Gaurier, ‘Introduction’, in Alberico Gentili, Le Trois Livres sur le Droit de la Guerre, Dominique Gaurier (ed. and trans) (Limoges: Presses Universitaires de Limoges 2012) 15–32, 30 (noting that ‘cette vivacité de style … nous semble assez proche d’un discours parlé’.) 69 Van der Molen, Alberico Gentili and the Development of International Law, 243. 70 Alain Wijffels, Alberico Gentili and Thomas Crompton (Ius Deco: Leiden 1992) 14 (reporting that in a maritime dispute in which Gentili defended Spain’s interests before the High Court of Admiralty, one of his adversaries claimed that his view was supported by authorities ‘occupying high office under the King of Spain’, quoting Balthasar Ayala and Antonio Gamma. After demonstrating that Gamma’s point was not substantiated, ‘Gentili closed this singular discussion with a pun (in English): ‘And let us game no more with Gamma’s game’.) 71 Van der Molen, Alberico Gentili and the Development of International Law, 245. 72 Grotius, De Jure Belli ac Pacis Libri Tres, Francis Kelsey (trans) § 38, at 22. 73 Haggenmacher, ‘Grotius and Gentili’, 147.

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c­ riticized Gentili for relying on examples drawn from contemporary practice, readers may prefer Gentili’s animated accounts to Grotius’ examples drawn from antiquity. Gentili’s lively style and responsiveness to the political events of his time bring him closer to the reader than the orderly perfection of Grotius; in the words of a Grotian scholar, ‘Gentili wrote memorably—so that his words remain in mind forever’.74 8.4

On Method

Gentili and Grotius adopted different methods. Gentili used an empirical method, addressing practical legal issues of his time. For instance, his De Legationibus addressed legal issues posed inter alia by the misconduct of an ambassador during the so-called Throckmorton plot. His De Iure Belli addressed legal issues posed by the contemporary wars of religion and the Anglo-Spanish war. The Hispanica Advocatio collected a number of legal opinions Gentili delivered during his service as the Advocate of Spain before the High Court of Admiralty. In order to address key legal questions of the time, Gentili’s argumentative style combined legal theory with historical examples from antiquity and contemporary history. When addressing a given legal question, he critically assessed the pros and cons of different approaches.75 Gentili expressly rejected the mathematical/geometrical method that postulated a single solution to any given problem.76 For Gentili, jurisprudence was not a science of geometrical perfection and mathematical certainty; rather, it expressed a constant search for justice and ‘an open-ended art of judgment’.77 As Gentili argued, ‘I shall not give you demonstrations, such as you may get from a mathematician, but … persuasive arguments’.78 In the Gentilian theory, the concept of justice, the idea that one should render each his own,79 was mitigated by equity (aequitas).80 Generally indicating ‘what is fair and reasonable in the administration of justice’, the notion of equity moderated the force 74 75

Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 38. Giuliano Marchetto, ‘Le Fonti del De Iure Belli Libri Tres (1598) di Alberico Gentili: Osservazioni sull’Uso dei Consilia’, in Marta Ferronato and Lucia Bianchin (eds.) Silete Theologi in Munere Alieno—Alberico Gentili e la Seconda Scolastica (Padova: cedam 2008) 65–82, 69. 76 Gentili, De Iure Belli, Book i, Chapter 1. 77 Ian Hunter, ‘Law, War, and Empire in Early Modern Protestant Jus Gentium: the Casuistries of Gentili and Vattel’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 153. 78 Gentili, De Iure Belli, Book i, Chapter 1, p. 11. 79 Gentili, De Armis Romanis, Book ii, Chapter 4, p. 185. 80 Gentili, De Iure Belli, Book iii, Chapter 13, p. 354.

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of the law, ‘avoid[ing] the manifest injustices that could arise from the strict application’ of the law, thus making the legal system more flexible.81 Gentili did not use equity ‘as a principle endowed with autonomous normativity but rather as a method for infusing elements of reasonableness and individualized justice’ in the application of law.82 In other words, he referred to what is now called equity infra legem, i.e. within the boundaries of the law. The Gentilian manuscripts, conserved at the Bodleian Library in Oxford, allow us to decipher Gentili’s method in a rather accurate way.83 These notes show that Gentili read a vast amount of works before writing his own books.84 For Gentili, ‘like good food is good for our health, good readings feed our soul’.85 Gentili also made notes of the books he had read, transcribing key sentences on his papers, adding the necessary references and short comments of approval or criticism to then reuse such extracts in his works.86 In this manner, when writing he could easily consult his notes to find the appropriate quotes. To facilitate access to these sources, he indexed them based on author and subject. In certain cases, he added full and lengthy quotes, in others he merely listed the relevant topic and where to find the full treatment of the topic.87 More interestingly, the passages that were central to him might not necessarily be central to the argument of the book he was reading.88 In reading his sources, Gentili was already elaborating his future arguments. Such readings were instrumental to the development of his own thought.89 Instead, Grotius used an aprioristic, deductive, and mathematical way of reasoning.90 As Grotius put it, ‘just like the mathematicians who contemplate their figures abstracting from tangible objects, I have in my treatment of law withdrawn my mind from any particular legal fact’.91 Grotius used ‘a 81

Francesco Francioni, ‘Equity in International Law’, Max Planck Encyclopaedia of Public International Law (Oxford: oup 2013) 1. 82 Id. 7. 83 Ian Maclean, Learning and the Marketplace—Essays in the History of the Early Modern Book (Brill: Leiden/Boston 2009) 323. 84 Alain Wijffels, ‘From Perugia to Oxford: Past and Present of Political Paradigms’, in Ferdinando Treggiari (ed.) Alberico Gentili—La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 59–78, 69. 85 MS D’Orville 612, p. 28 (‘nobilissimi auditores, litterae animis nostris tales esse dicuntur, quales corporibus cibi sunt. Atque ut cibus corpori ingestus si bonus sit, gignit succos bonos: ita litterae bonae animo illatae fructus gratissimos et gratiosissimos ferit’.) 86 See e.g. MS D’Orville 611. 87 Id. p. 314 verso. 88 Wijffels, ‘From Perugia to Oxford’, 69. 89 Id. 76–77. 90 Hendrik van Eikema Hommes, ‘Grotius Mathematical Method’ (1984) 31 Netherlands ilr 98–106, 98. 91 Grotius, De Iure Belli ac Pacis, Prolegomena, para. 58.

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­ etaphysical framework’ advancing ‘theistic’ arguments and interpretations.92 m He proceeded by formulating legal axioms (regulae) and then deducing fundamental legal principles (leges) from the axioms.93 For instance, in his De Iure Belli ac Pacis, Grotius postulated that human beings have ‘an inclination towards peaceful coexistence’ (appetitus societatis). From this axiom he directly deduced basic principles and other rules.94 While he used aprioristic reasoning to identify natural law, he adopted some deductive reasoning to identify the law of nations that could (but did not necessarily) confirm the former. ­Quotations played an important role in his work, as he usually reasoned by quotation. Whereas Gentili relied on both ancient and contemporary examples, Grotius relied on examples taken from antiquity. Nonetheless, both Gentili and Grotius addressed prevailing concerns and Grotius’ attempt to write in a detached way did not change ‘his interest in the resolution of practical matters of his own era’.95 Both Gentili and Grotius had an eclectic method, assembling all the materials bearing upon war to restrain and regulate both the recourse to war and violence in warfare.96 Gentili and Grotius’ eclecticism pushed beyond modern disciplinary boundaries as Renaissance scholars had a vast erudition, using sources from different fields of human knowledge, geographical areas, and historical periods. Their discursive matrix relied on a wide variety of sources and authorities, quoting the statements of philosophers, historians, poets, and even orators.97 Both often failed to state ‘what [was] the law governing the matter’.98 While contemporary international law scholars criticize this approach as flawed,99 both Gentili and Grotius seemingly adopted the best scholarly methods of the late sixteenth and early seventeenth centuries.100 92

Gary Edmond, ‘The Freedom of Histories: Reassessing Grotius on the Sea’ (1995) 2 Law Text Culture 179–217, 184. 93 van Eikema Hommes, ‘Grotius Mathematical Method’, 103. 94 Id. 104. 95 Edmond, ‘The Freedom of Histories: Reassessing Grotius on the Sea’, 201–202 (noting that Grotius developed his theory of freedom of the seas to assist the Dutch East India Company.) 96 Roelofsen, ‘Some Remarks on the Sources of the Grotian System of International Law’, 75. 97 Id. 98 Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) byil 1–53, 4 and 5 (reproaching that Grotius ‘will tell us, often with regard to the same question, what is the law of nature, the law of nations, divine law, Mosaic law, the law of the Gospel, Roman law, the law of charity, the obligations of honour, or considerations of utility. But we often look in vain for a statement as to what is the law governing the matter’.) 99 Id. 100 Roelofsen, ‘Grotius and the International Politics of the Seventeenth Century’, 125.

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Gentili and Grotius also had a peculiar citation style that most contemporary international lawyers would find lacking in many respects. Early modern concepts of originality differed from contemporary views. In the Renaissance period, ‘the relationship between the quoted text and the text in which the quotation occured [was] complex; many borrowings and appropriations [were] unacknowledged’.101 References were formulated in such a terse way as to res­ emble enigmatic pieces of an incomplete jigsaw.102 Studying the marginalia—­ including references, citations, and quotes—of these texts enables the interpreter to illuminate Gentili and Grotius’ respective methodologies, map their cultural matrix, and identify their original contribution to the early modern law of nations.103 Far from constituting a mere display of erudition, the marginalia reveal ‘the architecture of sources’104 and the way Gentili and Grotius built their respective works. This section now briefly considers the specific ways Gentili and Grotius approached their sources respectively. While Gentili had his own precursors, sometimes he did not mention them at all. For instance, although Gentili mentioned Pietrino Belli in the Laudes Academiae Perusinae and repeatedly cited him in the Advocatio Hispanica, he did not cite him in the De Iure Belli. Rather, Gentili briefly stated that, except for the treatise of Giovanni da Legnano and ‘scattered passages in the writings of others, he ha[d] read nothing upon the subject and he complain[ed] much of the quality of all that he ha[d] read’.105 Yet, he borrowed much.106 One p ­ ossible explanation for this omission may be that Belli was a practitioner rather than a humanist lawyer: his De Re Militari did not circulate among the ­European humanist lawyers and did not include legal humanists among his ­sources.

101 Ian Maclean, Interpretation and Meaning in the Renaissance—The Case of Law (Cambridge: cup 1992) 11. 102 Christian Zendri, ‘Nello Scrittoio di Alberico Gentili. Spunti di Ricerca’, in vvaa, Alberico Gentili—Atti dei Convegni nel Quarto Centenario della Morte, vol ii(Milano: Giuffrè 2010) 97–116, 97. 103 Christian Zendri, ‘Metodo e Sistema delle Fonti in Alberico Gentili’, in Marta Ferronato and Lucia Bianchin (eds.) Silete Theologi in Munere Alieno—Alberico Gentili e la Seconda Scholastica (Padova: cedam 2011) 45–64, 63. 104 Francesca Iurlaro, ‘The Burden of Reason: Ratio Probabilis, Consensio Omnium, and the Impact of Humanitas on Alberico Gentili’s Theory of Customary International Law’ (2017) 38 History of Political Thought 409–438, 409. 105 Thomas E. Holland, Studies in International Law (Oxford: Clarendon Press 1898) 23. 106 Dominique Gaurier, ‘Pietrino Belli, un Précurseur?’, in Rinaldo Comba and Gian Savino Pene Vidari (eds.) Un Giurista tra Principi e Sovrani—Pietrino Belli a 500 Anni dalla Nascita (Alba: Fondazione Ferrero 2004) 23.

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Rather, Belli used medieval sources.107 By contrast, Gentili’s De Iure Belli is a research monograph written for a large public of scholars and practitioners. An even more striking omission is the lack of any reference to Machiavelli in Gentili’s De Iure Belli.108 Although Machiavelli deeply influenced Gentili’s thought, no single reference to Machiavelli appeared in Gentili’s masterpiece. Machiavelli’s The Prince described ruthless methods of governance to maintain sovereign power. Most readers of the Prince consider Machiavelli a proponent of tyranny. However, for Gentili, Machiavelli was not an advocate of tyrants but rather a defender of democracy (democratiae laudator) and republican values, and an opposer of tyranny (tyrannidis summe inimicus).109 For Gentili, Machiavelli aimed to unveil the conduct of sovereigns (arcana imperi) and educate people to defend themselves against tyranny.110 A range of textual elements support a republican reading of Machiavelli’s Discourses on Livy, in which Machiavelli praised the ancient Roman Republic. In his 1585 De Legationibus, Gentili expressly considered Machiavelli a defender of democracy. Gentili argued that the ideal ambassador should carefully read Machiavelli’s Discourses as an exemplary work which successfully combined history and philosophy, and buttressed republican values.111 Despite this earlier positive assessment, Gentili omitted any explicit reference to Machiavelli in the De Iure Belli. This omission can be explained by the double-edged fortune of Machiavelli in Elizabethan England.112 On the one hand, Machiavelli’s works circulated

107 Gian Savino Pene Vidari, ‘Pietrino Belli e i Giuristi del suo Tempo’, in Rinaldo Comba and Gian Savino Pene Vidari (eds.) Un Giurista tra Principi e Sovrani—Pietrino Belli a 500 Anni dalla Nascita (Alba: Fondazione Ferrero 2004) 69–83, 77–78. 108 Diego Panizza, ‘Machiavelli e Gentili’ (1970) 2 Pensiero Politico 476–843. 109 Diego Pirillo, ‘Repubblicanesimo e Tirannicidio: Osservazioni su Alberico Gentili e Giordano Bruno’, in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 275–303, 285. 110 Gentili, De Legationibus Libri Tres, Gordon Laing (trans.) (New York: oup 1924) iii, 9. 111 Vincenzo Lavenia, ‘Mendacium Officiosum: Alberico Gentili’s Ways of Lying’, in Tamar Herzig and Miriam Eliav-Feldon (eds.) Dissimulation and Deceit in Early Modern Europe (London: Palgrave Macmillan 2015) 28. 112 On Machiavelli’s fortune in Elizabethan England, see Mario Praz, Machiavelli e gli Inglesi dell’Epoca Elisabettiana (Firenze: Vallecchi Editore 1930); Felix Raab, The English Face of Machiavelli. A Changing Interpretation 1500–1700 (London: Routledge 1965); Sidney Anglo, Machiavelli—The First Century. Studies in Enthusiasm, Hostility, and Irrelevance (Oxford: oup 2005); Alessandro Arienzo and Alessandra Petrina (eds), Machiavellian Encounters in Tudor and Stuart England, Literary and Political Influences from the Reformation to the Restoration (Farnham and Burlington: Ashgate 2013).

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widely in England and even influenced Elizabethan drama.113 For instance, William Shakespeare’s plays and tragedies are replete with direct references to Machiavelli’s works, characters, and topics.114 On the other hand, Machiavelli’s theories also came to epitomize political immorality. This association became common after the publication of the 1576 Anti-Machiavel of Innocent Gentillet (1535–1588).115 Gentillet linked the massacre of St. Bartholomew’s Day to Machiavelli’s influence on Queen Catherine of France (1519–1589), a member of the Medici family and a Florentine, like Machiavelli.116 Given this mixed reception of Machiavelli’s theories in England, naturally Gentili did not mention Machiavelli in the De Iure Belli, perhaps for fear that his work would be automatically dismissed as a Machiavellian work.117 In fact, his monograph went beyond its various Machiavellian inspirations and explicitly condemned imperial expansion for reasons of greed and ambition, justified humanitarian intervention against domestic tyrants, and endorsed some crucial humanitarian notions.

113 Alessandra Petrina and Alessandro Arienzo, ‘Introduction. Introducing Machiavelli in Tudor and Stuart England’, in Arienzo and Petrina (eds), Machiavellian Encounters in Tudor and Stuart England, 1–12. 114 See generally Praz, Machiavelli e gli Inglesi dell’Epoca Elisabettiana, 28 (noting the insertion of Machiavellian characters in the Elizabethan theatre); John Roe, Shakespeare and Machiavelli (Cambridge: D.S. Brewer 2002)(showing Shakespeare’s engagement with Machiavelli’s thought); Rosanna Camerlingo, ‘Henry v and the Just War: Shakespeare, Gentili, and Machiavelli’, in Arienzo and Petrina (eds), Machiavellian Encounters in Tudor and Stuart England, 103–120 (considering Henry v as a literary exemplar of Machiavellian characters and highlighting that Gentili’s De Iure Belli influenced Shakespeare’s Henry v); Hugh Grady, Shakespeare, Machiavelli, and Montaigne: Power and Subjectivity from Richard ii to Hamlet (Oxford: oup 2002) (considering Richard ii, Hamlet, and Macbeth as other examplars of Machiavellian characters). See e.g. William Shakespeare, The Merry Wives of Windsor [1602] T.W. Craik (ed.), (Oxford: oup 1990) Act 3, Scene 1 (the Host asking ‘Am I politic? Am I subtle? Am I a Machiavel?’); William Shakespeare, Henry v [1599], Gary Taylor (ed.) (Oxford: oup 2008); William Shakespeare, Richard ii [1595] Anthony Dawson and Paul Yachnin (eds) (Oxford: oup 2011)(dealing with the deposition of a monarch, and raising historical parallels between King Richard ii and Queen Elizabeth i); William Shakespeare, Macbeth [1606] Nicholas Brooke (ed) (Oxford: oup 2008). 115 Innocent Gentillet, Anti-Machiavel [1576] C. Edward Rathé (ed.) (Genève: Librarie Droz 1968). 116 John Tedeschi, ‘I Contributi Culturali dei Riformatori Protestanti Italiani nel Tardo Rina­ scimento’ (1987) Italica 19–61, 31. 117 Praz, Machiavelli e gli Inglesi dell’Epoca Elisabettiana 34 (noting that others, such as Raleigh, relied on Machiavelli, but did not acknowledge the source).

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Gentili rarely included references and when he did, he mentioned only the essential ones.118 While Gentili tended to neglect minor scholars,119 he sometimes also failed to formally acknowledge important ones.120 In other cases, he provided only partially accurate references, using the pretext that his contemporaries or predecessors did not take a legal approach to the relevant issues121 or that certain facts belonged to the public domain. For instance, in De Iure Belli, he discussed the evolution of arms and the admissibility of their use during warfare, referring to the Miscellanea by Girolamo Maggi (1523?–1572).122 Far from dealing with the law of war, the Miscellanea explained the difficult passages of selected ancient sources.123 Reading the Miscellanea, it becomes evident that not only did Gentili use Maggi’s work as an explicit source of references, but also as an implicit repertoire of topoi, ideas, and examples from the classical world.124 In fact, while Gentili cited Maggi to discuss the invention of bombards, he relied upon but did not cite Maggi when he discussed examples from the past, such as the use of war machinery by Archimedes during the siege of Siracuse.125 Gentili even paraphrased some of Maggi’s passages.126 Why did he not cite Maggi in full? One reason could be that Gentili considered classical topoi to be facts of the public domain that did not necessitate further reference. Gentili’s references often lacked precision. For instance, on matters of naval military law, he referred to a work written by the French humanist Lazare de Baïf (1495–1547); nonetheless, Gentili did not mention the correct title of the work, simply referring to the content of the same, De Re Navali (on naval issues).127 In other cases, he omitted the internal references of a quoted text.

118 Diego Quaglioni, ‘L’Edizione del Commento alla L Iulia de Adulteriis di Alberico Gentili’, in vvaa, Alberico Gentili—L’Ordine Internazionale in un Mondo a più Civiltà (Milano: ­Giuffrè 2004) 261. 119 Guido Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili (Bologna: Zanichelli 1937) 23 and 25. 120 Brian C. Lockey, Law and Empire in English Renaissance Literature (Cambridge: cup 2006) 63 (noting ‘twentyfour distinct passages from Gentili’s De Iure Belli in which Gentili’s arguments resemble Vitoria’s own prior writings on just war’.) 121 Giorgio Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes: il Ruolo di Alberico Gentili agli Albori del Diritto Internazionale Moderno’, in Ferdinando Treggiari (ed.) Alberico ­Gentili— La Tradizione Giuridica Perugina e la Fondazione del Diritto Internazionale (Perugia: Università degli Studi di Perugia 2010) 79–116, footnote 3. 122 Zendri, ‘Nello Scrittoio di Alberico Gentili’, 105. 123 Id. 124 Zendri, ‘Metodo e Sistema delle Fonti in Alberico Gentili’, 53. 125 Zendri, ‘Nello Scrittoio di Alberico Gentili’, 109. 126 Id. 111. 127 Id. 103.

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For instance, with regard to slavery, Gentili mentioned that in ancient Greece, slavery was analogized to death, quoting Maggi’s Miscellanea.128 However, the quote was not fully accurate as Maggi himself was quoting another scholar.129 In his De Armis Romanis, Gentili often quoted Cicero by heart, merely mentioning the title of the Ciceronian work rather than inserting an accurate reference.130 These imprecisions were probably due to lack of time and/or the publisher’s need to keep references to a minimum.131 Grotius also kept references to a minimum. He wrote an impressive number of books.132 In preparation for this, he corresponded with colleagues, read books, and noted down relevant passages of these resources in the form of notes which he collected and carefully assembled.133 Although Grotius claimed that he had ‘indicated the sources from which conclusions [were] drawn’, and that therefore ‘it would be an easy matter to verify them’, in fact he omitted a great deal of references and therefore it can be difficult to track the sources.134 In his references, Grotius was selective; while a high number of references to a source shows that a scholar substantively contributed to his own thinking, a low number of references to another source does not necessarily indicate a lack of comparable influence. For instance, while Grotius professedly admired Erasmus, he rarely cited his writings.135 Moreover, Grotius often avoided mentioning the secondary sources, taking quotations from a primary source via an intermediate source without necessarily reading the primary source himself. By simply supplying the reference to the original source, he misleadingly implied that he had read the original himself. This research shortcut was ‘entirely typical of the working methods of early modern scholars’.136 Readers can detect that Grotius relied on Gentili because he repeated the imperfections typical of Gentili’s references. As mentioned, Gentili’s approach 128 Id. 112 (referring to Gentili, De Iure Belli, Book III, Chapter 9, p. 328). 129 Id. 130 David Lupher, ‘La Traduzione del De Armis Romanis di Alberico Gentili: Avventure di un Neo-Classicista’, in vvaa, Alberico Gentili—Giustizia, Guerra, Impero (Milan: Giuffè 2014) 50. 131 Ian Maclean, ‘Alberico Gentili, His Publishers, and the Vagaries of the Book Trade Between England and Germany, 1580–1614’, in Ian Maclean, Learning and the Marketplace— Essays in the History of the Early Modern Book (Leiden/Boston: Brill 2009) 315. 132 Nellen, Hugo Grotius, 2. 133 Guillaume H.M Posthumus Meyjes, ‘Some Remarks on Grotius’ Excerpta Theologica Especially Concerning his Meletius’, in Henk J.M. Nellen and Edwin Rabbie (eds), Hugo Grotius Theologian: Essays in Honour of ghm Posthumus Meyjes (Leiden/New York: Brill 1994) 1–18, 1. 134 Grotius, ibp, Prolegomena, 39. 135 Trapman, ‘Grotius and Erasmus’, 94. 136 Van Ittersum, ‘The Working Methods of Hugo Grotius’, 169.

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to referencing was far from accurate. Because Grotius exactly reproduced some of Gentili’s mistakes, it is clear that Gentili’s work influenced Grotius much more than the latter admitted.137 For instance, Gentili cited St. Augustine in support of the argument that ‘the injustice of an adversary makes wars just’.138 However, the sentence he quoted was from a later chapter of St. Augustine’s De Civitate Dei than the one he referred to. The same mistake appears in Grotius’ De Iure Belli ac Pacis.139 Analogously, when discussing the misconduct of an ambassador, Gentili referred to a historical example, erroneously attributing it to Polybius.140 Grotius used the same example, also mistakenly referring to Polybius.141 Grotius often cited more sources than he had access to, and second-hand quotations abounded in his texts. As Van Ittersum highlights, he ‘added layer upon layer of authorities in his marginal references, with the aim of adding further weight to his argument’.142 He usually mentioned a source and ‘all the authors referred to therein, without checking them and without specifying which one was the key to the others’.143 For instance, when discussing the question as to ‘whether a war m[ight] be just on both sides’, Grotius relied on several authors, including Gentili.144 While most of the sources appeared in Gentili’s De Iure Belli, Grotius repeated one of Gentili’s mistaken references.145 As Haggenmacher aptly notes, it is possible ‘he may never even have seen’ the referenced treatise.146 As noted by Van Ittersum, ‘Grotius mined the text of De Iure belli so thoroughly that he ended up copying historical exempla as well as references’, which ‘suggests that he was more indebted to [Gentili] than he cared to admit’.147 In other instances, Grotius borrowed from Gentili’s quotes of ancient sources, misinterpreting them. For example, both Gentili and Grotius relied on Cicero’s Philippica Quarta, for defining lawful enemies. In his speech, Cicero did not define lawful enemies; rather, he was arguing that while the Roman Republic used to fight a certain type of (lawful) enemy, Mark Anthony was none of 137 Artemis Gause, ‘Alberico Gentili (1552–1608)’, odnb (Oxford: oup 2004–2014) 7. 138 Gentili, De Iure Belli, Book i, Chapter 6, p. 32. 139 Grotius, ibp, Book ii, i, 4. 140 Gentili, De Legationibus, Book ii, xxi. 141 Grotius, ibp, Book xviii, iv, 5. 142 Van Ittersum, ‘The Working Methods of Hugo Grotius’, 192. 143 Haggenmacher, ‘Grotius and Gentili’, 148. 144 Id. 149 (referring to Grotius, ibp, ii, 23, 13). 145 Id. 149 (referring to Gentili, De Iure Belli, Book I, Chapter 6.) 146 Id. 150. 147 Van Ittersum, ‘The Working Methods of Hugo Grotius’, 176–177.

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these. Gentili referred to Cicero, paraphrasing his text. Grotius allegedly quoted Cicero, but in fact, he borrowed Gentili’s paraphrasis without referring to Gentili.148 Gentili was ‘mentioned twice towards the end of that chapter, but … only to be refuted’.149 To assess whether Grotius relied on Gentili, and if so to what extent, quantitative evidence needs to be coupled with qualitative analysis. In De Iure Praedae, Grotius cited Gentili’s De Iure Belli eleven times.150 In the De Iure Belli ac Pacis, Grotius cited Gentili’s De Iure Belli, De Legationibus, and the Hispanica Advocatio a dozen times.151 Overall, these numbers would seem negligible, especially when compared to the references Grotius made to other scholars. Yet, ‘quantitative evidence’ remains inconclusive without ‘qualitative analysis’.152 In fact, Grotius relied on Gentili’s works more ‘than mere statistical evidence might suggest’.153 Although a section of Chapter 12 of the De Iure Praedae is entirely drawn from one chapter of Gentili’s De Iure Belli, Gentili was only mentioned once together with other scholars.154 The Renaissance standards of scholarship and writing were not as exacting as contemporary ones. Academic scholarship was considered as a combinatory art (ars combinatoria). In a universe of words in which almost everything had been written already, humanist scholars often recombined words, concepts, and images of previous scholars to formulate new knowledge.155 Some eclecticism, imitation (imitatio), and emulation (aemulatio) were defining features of Renaissance writing. Relying on a famous metaphor, Erasmus of Rotterdam analogized writers to busy bees plucking pollen from the flowers of all the best writers and transforming it into pure nectar.156 Erasmus argued that 148 Haggenmacher, ‘Grotius and Gentili’, 150. 149 Id. 151. 150 The figure is based on the use of the search function in the electronic version of Grotius’ De Iurae Praedae. 151 Haggenmacher, ‘Grotius and Gentili’, 147. 152 Id. 153 Id. 147–148. 154 Id. 148 (noting that the chapter concerned is De Iure Belli, Book I, Chapter 19, pp. 138–149 and that Gentili was ‘probably not the only victim’.); Joachim von Elbe, ‘The Evolution of the Concept of Just War in International Law’ (1939) 33 ajil 665–688, 678 (noting ‘Again and again the reader of … Grotius, who shall have made the acquaintance of the lights of moral and legal learning of the sixteenth century, will catch the echo of their opinions and their very phrases’)(internal reference omitted). 155 See e.g. Anton Francesco Doni, La Seconda Libraria [The Second Book Collection](Venetia: per Francesco Marcolini 1551) proemio. 156 Desiderius Erasmus, De Duplici Copia Rerum ac Verborum Commentarii Duo (Paris: Josse Bade 1512).

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writing does not merely require reliance on a plurality of models, but also an active transformation; one’s work should not look like a ‘mosaic’ but as ‘a river flowing from the fountain of one’s heart’.157 In sum, ‘the imitator was free to borrow as long as he added to what he borrowed’.158 In practice, nearly all Renaissance scholars ‘borrowed material, in varying degrees, one from the other, often without adequate acknowledgement’.159 Most found their own style and recombined earlier ingredients in an original fashion, often giving rise to significant outputs.160 Only the learned could find out the model.161 Yet, identifying the links among texts may be crucial for understanding the genesis of given concepts.162 Moreover, certain academic standards existed and academics stigmatized malpractice.163 While some borrowing was customary, sufficiently independent labour was expected. Gentili’s originality lied in inventing new concepts and theories and approaching legal issues in an innovative fashion. He was a great eclectic, relying on different sources of both legal and non-legal character, combining philosophy with history, and law with politics. He rushed to publish his works, for fear of losing his manuscripts. The Inquisition destroyed all the manuscripts he had composed in Italy.164 Understandably, he wanted to ensure the permanency and diffusion of the works he completed in England. Although other intellectuals still circulated manuscript copies, he preferred to publish his works through the medium of print in order to reach an international readership.165 Although his works were ‘sometimes hastily written, they show great stud[y] and an industry worthy of praise’.166 In any case, Gentili’s imprecisions makes the retrieval of his sources slightly more difficult, but not impossible. He combined a broad range of diverse references in an original way to derive coherent legal arguments.167 Therefore, if he used authorities (auctoritates) 157 George W. Pigman iii, ‘Versions of Imitation in the Renaissance’ (1980) 33 Renaissance Quarterly 1–32, 8–9. 158 Richard Posner, Law and Literature (Cambridge, MA: Harvard University Press 1988) 346. 159 Simmonds, ‘Some English Precursors of Hugo Grotius’, 154. 160 Pigman, ‘Versions of Imitation in the Renaissance’, 1–2. 161 Id. 12. 162 Id. 163 Astuti, Mos Italicus e Mos Gallicus nei Dialoghi De Iuris Interpretibus di Alberico Gentili, 19 and 180 (noting that Gentili himself invited the humanist Cujas and Duarenus to openly acknowledge their debt to the medieval interpreters.) 164 Alberici Gentilis, De Diversis Temporis Appellationibus Liber (Wittenberg: ex officina Cratoniana 1586), dedication (listing the manuscripts the Inquisition destroyed after his flight). 165 Maclean, ‘Alberico Gentili, His Publishers, and the Vagaries of the Book Trade’, 318 and 312. 166 Nys, ‘Introduction’, 29. 167 Zendri, ‘Metodo e Sistema delle Fonti in Alberico Gentili’, 63.

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and ­examples ­(exempla) for elaborating his arguments, he contributed original thought to the theory of international law.168 His greatest legacy lies in his attempt to map the existing law of nations, contribute to its development, and emancipate it from theology.169 Analogously, if Grotius was ‘seldom strikingly original’, it was ‘his capacity to synthetize this knowledge’ that made his work stand out.170 If Grotius followed the path of predecessors, he deliberately challenged comparison with his models. ‘His originality reside[d] not in the introduction of new arguments, but in his new arrangements of traditional elements’.171 While De Iure Belli ac Pacis was ‘not the most original treatise written on the law of nations up to that time, it was certainly the most systematic’.172 If Grotius borrowed concepts from Gentili as well as from others, he also transformed such materials and used them to build his legal theory of the law of war. Grotius’ use of his notes may possibly explain some of the convergences between his writings and those of other scholars, including Gentili. Like Gentili, Grotius had ‘publication fever’; he probably faced time constraints due to his diplomatic career. The primary sources probably were not at hand. Finally, he may have hidden some of his direct sources for ‘human vanity and elegance’.173 In conclusion, both Gentili and Grotius were acting within the disciplinary boundaries of the time. Neither Gentili nor Grotius created the system of international law that developed subsequently; rather, they set out general theories of the laws of war that have influenced the evolution of the law of nations.174 Their methods relied on the academic standards of the time. If contemporary scholars did not raise an eyebrow, this almost certainly indicates that their respective works presented sufficiently independent labour. It would be unfair to scrutinize their works under more exacting standards that were not in force at the time of their writing. At the same time, it is only by examining their ideas on the law of nations that the convergences and divergences between their respective works become clear. Accordingly, the object of the next section is to compare Gentili and Grotius’ respective views on a range of topics of the law of nations.

168 169 170 171

Zendri, ‘Metodo e Sistema delle Fonti in Alberico Gentili’, 63. Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes’, 88. Bull, ‘The Importance of Grotius in the Study of International Relations’, 73. Roelofsen, ‘Grotius and the International Politics of the Seventeenth Century’, 107, footnote 57. 172 Bull, ‘The Importance of Grotius in the Study of International Relations’, 74 (emphasis omitted). 173 Haggenmacher, ‘Grotius and Gentili’, 148. 174 See generally Peter Haggenmacher, Grotius et la Doctrine de la Guerre Juste (Paris: Presses Universitaires de France 1983).

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Converging Arguments?

This section confronts Gentili and Grotius’s respective works on a range of themes to illuminate the origins of given international law concepts and allow the attribution of these notions to their respective authors. The Gentilian theory of the law of war influenced the structure and argumentative patterns of the Grotian theory, while Gentili did not benefit from a similar direct and plain source of inspiration.175 Rather, his treatise was the first comprehensive monograph on the law of war.176 Grotius read Gentili’s work and used it as a model for his own work. In the prolegomena of his De Iure Belli ac Pacis, Grotius named Gentili as one of the worthiest legal theorists on the law of war. After admitting that he had profited from Gentili’s diligent work, Grotius stated that he left it to his readers ‘to pass judgment on the shortcomings of [Gentili’s] work as regards [to] the method of exposition, arrangement of matter, delimitation of inquiries, and distinctions between the various kinds of law’.177 Yet, ‘Grotius owed infinitely more to  Gentili than one would conclude from reading the sober words of the  [p]rolegomena’.178 While Grotius was ‘rather remiss in acknowledging Gentili’s influence on his own work’,179 he read Alberico Gentili’s De Iure Belli and the Advocatio Hispanica during his stay in prison at Loevestein.180 Gentili and Grotius’ works have a similar subject matter. While the title of Grotius’De Iure Belli ac Pacis suggests a broader coverage than the title of Gentili’s De Iure Belli seems to designate, in fact both treatises cover analogous subject matter.181 Both treatises examine the causes for waging war (ius ad bellum), the law governing war (ius belli), and the law governing the peace subsequent to the end of hostilities (ius pacis or ius post bellum).182 Paradoxically, although

175 Haggenmacher, ‘Grotius and Gentili’, 156–157. 176 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Alberico Gentili’, 38. 177 Hugo Grotius, De Jure Belli ac Pacis Libri Tres [1625] Francis W. Kelsey (transl.) (Oxford: Clarendon Press 1925) § 38, at 22. 178 Van der Molen, Alberico Gentili and the Development of International Law, 243. 179 Gause, ‘Gentili, Alberico’, 7. 180 Van der Molen, Alberico Gentili and the Development of International Law, 243. 181 Georg Schwarzenberger, ‘The Grotius Factor in International Law and Relations: A Functional Approach’, in Bull, Kingsbury, and Roberts (eds.) Hugo Grotius and International Relations 301–312, 305 (noting that ‘Grotius’ decision to amplify the title of Gentili’s work may well have been due to awareness of the unwisdom of appropriating … a title that was not his, and doubts on the adequacy of his acknowledgments to an earlier fellow-author in their common field’.) 182 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 33.

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the title of Gentili’s De Iure Belli seems to merely refer to the law of war, Gentili dedicated more space to the the ius pacis than Grotius did.183 Moreover, while Grotius indulged in many private law aspects, Gentili’s approach was more concise and modern.184 Gentili and Grotius’ treatises also have a similar structure. The third book of Grotius’ De Iure Belli ac Pacis runs practically parallel with the second and third book of Gentili’s De Iure Belli. The chapters’ titles ‘show a great similarity and the material is treated in the same order’.185 Both authors started with introductory remarks on the sources of the law applicable to war, on the definition of war (belli definitio), the lawful conduct of war, and ended with considerations on the termination of war.186 Gentili and Grotius’ works converge on a range of argumentative patterns. For instance, the ‘idea of international society’ which is central to Gentili’s De Iure Belli is also present in Grotius’ work, and ‘Grotius adds little to Gentili’s account’.187 Both Gentili and Grotius’ works reflected the emergence of the law of nations as a law among equal sovereigns rather than subordinate entities under the spiritual and temporal power of the Papacy and the Emperor.188 Both have been generally considered to contribute to the secularization of international law, even though recent studies have highlighted that they contributed to such process rather than completed it. In fact, Gentili’s famous motto ‘Silete theologi in munere alieno’ has often been interpreted to imply much more than the author originally intended. In parallel, Grotius’ famous statement ‘even if we should concede [etiamsi daremus] that which cannot be conceded … that … there is no God’, ‘what we have been saying would have a ­degree of validity’ has often been used as evidence that he secularized natural law.189 Nonetheless, Grotius’ statement reflected a theoretical hypothesis already formulated by medieval theologians. He always believed in God’s

183 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 33. 184 Giorgio Badiali, ‘L’Attualità del Pensiero Gentiliano nel Moderno Diritto Internazionale’, in vvaa, Alberico Gentili nel Quarto Centenario del De Iure Belli (Milan: Giuffrè 2000) 25– 57, 33, and 37. 185 Van der Molen, Alberico Gentili and the Development of International Law, 319 n. 242 (citation omitted). 186 Haggenmacher, ‘Grotius and Gentili’, 157. 187 Peter Schroeder, ‘Vitoria, Gentili, Bodin: Sovereignty and the Law of Nations’, in Benedict Kingsbury and Benjamin Straumann (eds.) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 183. 188 Bull, ‘The Importance of Grotius in the Study of International Relations’, 74. 189 Grotius, De Iure Belli ac Pacis, Prolegomena, para. 11.

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­existence.190 In fact, Grotius was a lay theologian, and authored the apologia De Veritate Christiana (on the Truth of the Christian religion).191 Both Gentili and Grotius elaborated a theory of the freedom of the sea and supported claims for free trade, movement, and navigation against the Spanish and Portuguese monopolies.192 Like Vitoria, Gentili and Grotius ‘drew on and applied a providentialist theory of commerce’.193 According to this theory, ‘Providence distributed scarcity and plenty across the earth so that peoples could not be self-sufficient, but would need to [rely on one another] to acquire what they lacked’.194 Gentili stated: ‘[c]ommodities are distributed over different regions, in order that it may be necessary for [people] to have commerce with one another … No blessing has been bestowed by divine Providence upon any one for his sole enjoyment. … Thus, it is an advantage that men journey over the earth … The winds … unite [peoples] separated in location. This is a wonderful gift of nature’.195 Grotius wrote: ‘For God has not willed that nature shall supply every region with all the necessities of life … it was His will that human friendships should be fostered by natural needs and resources’.196 Grotius argued: ‘Consider the Ocean, with which God has encircled the different lands and which is navigable from boundary to boundary; consider the breath of the winds in their regular courses and in their special deviations blowing not always from one and the same region at one time or another: are these things not sufficient indications that nature has granted every nation access to every other nation?’197 Grotius added ‘by means of the winds [nature] brings together peoples who are scattered in different [places], and … she distributes

190 Perez Zagorin, Hobbes and the Law of Nature (Princeton: Princeton University Press 2009) 17–18. 191 Ileana Porras ‘The Doctrine of the Providential Function of Commerce in International Law—Idealizing Trade’, in Martti Koskenniemi, Mónica García-Salmones Rovira, and Paolo Amorosa (eds) International Law and Religion (Oxford: oup 2017) 313–333, 323–324; Christoph A. Stumpf, The Grotian Theology of International Law—Hugo Grotius and the Moral Foundations of International Relations (Berlin/New York: De Gruyter 2006)(concluding that Grotius’ legal theory can be perceived as a theological system of the law of nations.) 192 Grotius, Mare Liberum, Chapter 1 (‘Every nation is free to travel to every other nation and to trade with it’.) 193 Ileana Porras, ‘Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations’ (2014) 27 Leiden jil 641–660, 641. 194 Id. 195 Gentili, dib, Book i, Chapter 19, pp. 88–89. 196 Porras, ‘Appropriating Nature’, 653. 197 Hugo Grotius, Mare Liberum, Robert Feenstra (ed)(Leiden/Boston: Brill 2009) Chapter i, p. 2.

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the sum of her gifts throughout various regions in such a way as to make a reciprocal commerce a necessity of peoples’.198 As the above passages show, Gentili deeply inspired Grotius who relied on the same classical sources used by Gentili to discuss the providential design of commerce.199 Gentili deeply influenced Grotius’ argument that the sea was free.200 As Theodor Meron notes, ‘a whole section of chapter [twelve] of Grotius’… Mare Liberum was drawn from Gentili’s De Iure Belli’.201 Whereas Gentili’s reflection on the law of the sea appeared in both his De Iure Belli and the Hispanica Advocatio, Grotius dedicated a separate monograph, De Iure Praedae, of which Mare Liberum was intended to be a chapter, to key issues of the law of the sea. Nonetheless, Gentili ‘organized the issues more systematically’ than Grotius was able to do in the 1609 Mare Liberum.202 Gentili drew a better balance between private and public interests on the one hand, and between the interests of coastal states and those of the international community on the other. In fact, Gentili ‘sought to bridge the gap between principle and practice’ by distinguishing sovereignty from jurisdiction. The former applied to the territorial sea, while the latter applied to the high seas.203 By distinguishing coastal waters from the high seas, he acknowledged certain rights to coastal states ‘insisting, however, that a coastal state’s right to control its territorial seas did not justify closing them to foreign navigation’.204 Grotius initially ‘criticized those who advocated territorial seas’, and ‘considered virtually all seas high’.205 He only ‘admitted the right of a state to the ownership of its gulfs and bays’.206 Therefore, for Grotius, almost ‘all but the slightest parts of the sea were to remain free’.207 In his 1625 De Iure Belli ac Pacis, however, Grotius fine-tuned his approach taking into account certain rights of coastal states.208 198 Porras, ‘Appropriating Nature’, 653. 199 Porras, ‘The Doctrine of the Providential Function of Commerce in International Law’, 324. 200 Van der Molen, Alberico Gentili and the Development of International Law, 243. 201 Theodor Meron, ‘Common Rights of Mankind in Gentili, Grotius and Suarez’ (1991) 85 ajil 113 n.25. 202 Edward Gordon, ‘Grotius and the Freedom of the Seas in the Seventeenth Century’ (2008) 16 Willamette jil & Dispute Resolution 252–269, 267. 203 Id. 204 Id. 205 Edmond, ‘The Freedom of Histories: Reassessing Grotius on the Sea’, 210. 206 Percy Thomas Jr. Fenn ‘Origins of the Theory of Territorial Waters’ (1926) 20 ajil 465–482, 480. 207 Edmond, ‘The Freedom of Histories: Reassessing Grotius on the Sea’, 210. 208 Ivan Shearer, ‘Grotius and the Law of the Sea’ (1983) 46 Bulletin of the Australian Society of Legal Philosophy 46–65, 46, and 56.

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Both Gentili and Grotius condemned piracy. Whereas Gentili saw pirates as outlaws because they deprived others of their property and liberty, for Grotius they harmed freedom of commerce (libertas commerciorum) and were the archenemies of traders. In other words, Grotius focused on the impact piracy had on trade and economic actors (what John Stuart Mill would later call homo oeconomicus) rather than on the impact it had on coastal communities and the international society as a whole.209 For both Gentili and Grotius, the violation of freedom of commerce could give rise to a just war. However, Gentili conceptualized piracy as a distinct crime, rather than as a breach of freedom of commerce. Moreover, while in the Gentilian system, the high seas were free but remained subject to the functional jurisdiction of the members of the international community to repress crime,210 in his De Iure Praedae, Grotius considered the sea as a jurisdictional void, in which individuals regained the sovereignty they had before the inception of states and could engage in private just wars.211 Only in the 1625 De Iure Belli ac Pacis, did Grotius consider the pirate as a universal outlaw and delegate the obligation to extradite or prosecute to states.212 Grotius was also ‘heavily indebted to Gentili’ in his theory of the law of war.213 As noted by Neff, ‘in his treatment of the laws of war, Grotius was hardly a trailblazer’.214 Both Gentili and Grotius considered arbitration a useful dispute settlement mechanism.215 Both held that only a war lawfully declared could be a just war.216 For both Gentili and Grotius, wars should not be initiated upon some light pretext and should not be undertaken for religious reasons.217 Both sought to emancipate the law of nations from theology, even though they asserted that the ultimate source of the law was divine.218 Like Vitoria and De las Casas, both Gentili and Grotius rejected claims of ‘discovery’ over lands ­already occupied by Indigenous peoples.219 Both denied the arguments of terra 209 Mark Chadwick, Piracy and the Origins of Universal Jurisdiction (Leiden/Boston: Brill 2019) 97. 210 Laurent Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400– 1900 (Cambridge: cup 2010) 130. 211 Chadwick, Piracy and the Origins of Universal Jurisdiction, 96. 212 Id. 105. 213 Bull, ‘The Importance of Grotius in the Study of International Relations’, 73. 214 Stephen C. Neff, Justice among Nations A History of International Law (Cambridge, MA: Harvard University Press 2014) 163 (arguing that Grotius’ approach differed in some respects from Gentili’s, but ‘not significantly’.) 215 Gentili, IB, Book i, Chapter 3, p. 16; Grotius ibp, Book ii, Chapter xxiii. 216 Gentili, IB, Book ii, Chapter 1, p. 131; Grotius ibp, Book iii, Chapter iii. 217 Gentili, IB, Book I, Chapter 12; Grotius, ibp, Book II, Chapter 20, 48. 218 Grotius, ibp, Prolegomena 11. 219 Grotius, ibp, Book II, Chapter 22, ix.

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nullius and considered that Indigenous polities had their own sovereigns, their own governments, and their own legal systems.220 Both condemned the greed that motivated the conquest of land.221 Both Gentili and Grotius generally denied that rebellion could be permitted either by domestic law or by the law of nations;222 they nonetheless admitted third-party humanitarian intervention, arguing that when a government was oppressing its people, a third party could intervene.223 Both Gentili and Grotius sanctioned warfare against those who committed ‘crimes against nature’—including anthropophagy, human sacrifices, piracy, and atheism—for the benefit of the international community.224 Both Gentili and Grotius sought to ‘humanize the conduct of war’,225 arguing for moderation in the treatment of prisoners of war,226 and setting the pattern for categorizing non-combatants as protected persons. Gentili condemned the slaying or enslaving of prisoners of war.227 Analogously, Grotius argued for moderation in the treatment of prisoners of war.228 Both relied on natural law, in addition to and beyond positive law.229 While the distinction between the two is well articulated in Grotius, Gentili did not explain it; rather he implied it, stating that natural law prevailed over statutory law. With regard to the ius post bellum, both Gentili and Grotius maintained the right of territorial conquest.230 Both appealed to moderation, compassion, and humanity. Both considered the security of the victor to be an important component of the ius post bellum. Both Gentili and Grotius concluded their respective treatises with a prayer.231 220 Grotius Mare Liberum, Chapter 4. 221 Id. Chapter 2. 222 Gentili, IB, Book i, Chapter 10; Grotius, ibp, Book I, Chapter 4 (nonetheless allowing resistance in cases of extreme necessity). 223 Grotius, ibp, Book II, Chapter 25, viii (replicating Gentili’s quote of Thucydides). 224 Gentili, IB, Book i, Chapter 25; Grotius, ibp, Book II, Chapter 20, xl 225 Lauterpacht, ‘The Grotian Tradition’, 12. 226 Gentili, IB, Book ii; Grotius, ibp, Book III, Chapter 11, viii, Chapter xii.viii, and Chapter xiii.iv (requiring belligerants to observe moderation, restraint, and proportionality (temperamenta) in pursuing their claims, by restricting the means of war to only what was necessary to achieving the ends and by seeking to limit the impact of war on the innocents and even the enemy. See also Grotius, ibp, prolegomena 28 (noting the lack of restraint in the conduct of war). 227 Gentili, IB, Book III, Chapter 9. 228 Grotius, ibp, Book III, Chapters 2–16 (closely following Gentili and quoting the same passage from Seneca). 229 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 88. 230 Gentili, IB, Book iii, Chapter 2; Grotius, ibp, Book iii, Chapter 15. 231 Gentili, IB, Book iii, Chapter 24, p. 433 (‘Now may the Great and Good God lead princes to put an end once for all to war and piously keep the terms of peace and of treaties … In peace the stars are strong and earth’s creatures are at rest. Nothing without peace is dear to

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However, the Gentilian and Grotian systems also diverged on notable aspects of the law of nations. Grotius’ De Iure Belli ac Pacis had a broader coverage than Gentili’s De Iure Belli. In fact, Grotius’ treatise not only covered public international law, but also private international law and transnational law.232 Gentili did not always clearly distinguish between the law of nations and natural law. At certain times, he identified the law of nations with natural law.233 On other occasions, he provided a more sophisticated analysis of the linkage between natural law and the law of nations, defining the law of nations as an agreement and bond of union among nations, and the law of nature as a bond of union among human beings.234 Conversely, Grotius clearly distinguished between the primary law of nations (ius gentium primarium), i.e., natural law that applied to human beings, and the secondary or voluntary law of n ­ ations (ius gentium secondarium) that applied to states.235 While Gentili equated the law of nations with the law of nature, but admitted that in some instances the law of nature prevailed over the law of nations, Grotius kept positive law and natural law distinct but did not articulate a hierarchical relationship between the two.236 Both Gentili and Grotius acknowledged that the law of nations was based on the society of humankind (generis humani societas).237 Both Gentili and Grotius relied on Cicero and the Stoic notions of the human society.238 God…’); Grotius, ibp, Book iii, Chapter 25, para. 7 (‘And may God, to whom alone it belongs to dispose the affections and desires of sovereigns, inscribe these principles upon their hearts and minds, that they may always remember that the noblest office, in which man can be engaged, is the government of men, who are the principal objects of the divine care’.) 232 Bull, ‘The Importance of Grotius in the Study of International Relations’, 84. 233 Gentili, De Iure Belli, Book i, Chapter 1, p. 5. 234 Id. Book i, Chapter 25, p. 124. 235 Peter Haggenmacher, ‘Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium Revisited by Theologians’ in Jean D’Aspremont and Samantha Besson (eds) The Oxford Handbook of the Sources of International Law (Oxford: oup 2017) 60. 236 Wilhelm Grewe, The Epochs of International Law [Epochen Der Völkerrechtsgeschichte, 1944], Michael Byers (trans) (Berlin/New York: De Gruyter 2000) 215 (noting that ‘it is impossible to identify in Grotius’ work a clear and consistent principle which provides information about the relationship between, and the relative importance of, the two orders—the law of nature (ius gentium naturale) and the law of nations (ius gentium volontarium)—which he presented as standing in opposition to each other’.); cfr. Randall Lesaffer, ‘Roman Law and the Intellectual History of International Law’ in Anne Orford and Florian Hoffmann (eds) The Oxford Handbook of the Theory of International Law (Oxford: oup 2016) 47 (arguing that the primary law ‘applied in the forum of conscience (forum internum)’ while secondary law properly ‘generated legal effects’ in international relations (forum externum)). 237 Gentili, De Iure Belli, Book i, Chapter 15, p. 67. 238 Haggenmacher, ‘Grotius and Gentili’, 172; Benjamin Straumann, ‘Oikeiosis and Appetitus Societatis—Hugo Grotius’ Ciceronian Argument for Natural Law and Just War’ (2003–4) 24/25 Grotiana 41–66.

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Their definitions of war diverged. Gentili’s definition of war was more precise than that provided by Grotius.239 While Gentili saw war as a conflict between sovereign powers following given rules (publicorum armorum iusta contentio), Grotius defined war as a state of violent conflict (status per vim certantium) including public, private, and mixed conflicts (i.e. those between a state on the one hand, and non-state actors on the other.)240 Whereas, ahead of his time, Gentili condemned both piracy and privateering, Grotius admitted that ‘in places such as the sea that were by nature free…, the private actor … could engage in just war in self-defence or in retaliation for injury, including an interference with the right to trade’.241 While Gentili claimed that war could be objectively just on both sides (bellum iustum ex utraqua parte), Grotius followed the medieval theological doctrine of the unilateral justice of war.242 Both distinguished between ‘just’ and ‘unjust’ grounds for war,243 and dedicated to the causes of ‘just war’ an important part of their respective doctrines.244 Relying on the Spanish theologians’ theory of just war, Grotius argued that there could be no other just cause for undertaking war except injury.245 Following the Spanish School, Grotius ­rejected the humanist political culture that informed Gentili’s jurisprudence of war.246 Therefore, the ‘substantive content’ of his work was similar to that of

239 Giorgio Del Vecchio, Due Note su Alberico Gentili e su Ugo Grozio (Roma: Società Italiana di Filosofia del Diritto 1957) 11. 240 Gentili, IB, Book I, Chapter 2 (conceiving war as a contest between sovereign powers following given rules—publicorum armorum justa contentio); Grotius, ibp, i, i, 2.1 (defining war as the state of contention by force—status per vim certantium—and including private force.) 241 Porras, ‘Constructing International Law in the East Indian Seas’, 755. 242 Grotius, ibp, ii, xxiii, 13 (noting that ‘a war cannot be just on both sides’.) 243 Id. ii, i, 1 (emphasizing, at least in theory, that ‘no other just cause for undertaking war [could] there be excepting injury received’, but recognising in practice that states could legally resort to war for several reasons including defence, recovery of property, punishment’ (at ii, i, 2.2), and gross violations of the law of nature (at ii, xx, 11)). See Emer de Vattel, The Law of Nations [1758], Béla Kapossy and Richard Whatmore (eds) (Indianapolis: Liberty Fund 2008) ii, i, para 7 (criticizing Grotius for giving to ambitious states pretexts without number.); Immanuel Kant, ‘Perpetual Peace: A Philosophical Sketch’, in Immanuel Kant, Political Writings, Hans Reiss (ed.) H.B. Nisbet (trans) (Cambridge: cup 1991) 93, 103 (describing Grotius as ‘sorry comforter’ of military aggression). 244 Haggenmacher, ‘Il Diritto della Guerra e della Pace di Gentili’, 30. 245 Diego Panizza ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli: The Great ­Debate between Theological and Humanist Perspectives from Vitoria to Grotius’, in Pierre-Marie Dupuy and Vincent Chetail (eds) The Roots of International Law (Leiden: Brill 2014) 211–247, 218. 246 Id. 216.

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Vitoria and the Spanish theologians and differed from that of Gentili.247 While Gentili compared war to a duel or a trial; Grotius conceptualized it as a kind of punishment.248 Whereas Gentili allowed pre-emptive strikes, Grotius rejected the notion of preventive war.249 Gentili argued that ‘we ought not to wait for violence to be offered us, if it is safer to meet it halfway’.250 In fact, ‘a defence is just which anticipates dangers that are already meditated and prepared, and also those which are not meditated, but are probable (verisimilia) and possible (possibilia)’.251 For instance, Gentili argued, ‘we kill a snake as soon as we see one, even though it has not injured us and will perhaps not harm us’.252 For Gentili, ‘it is better to smother the smoke before it breaks into a blaze’:253 ‘it is lawful to destroy the house of a neighbour in order that a fire may not reach us … and there are many other instances in which it is lawful to injure others to avoid an injury yourself’.254 Therefore, preventive defence, in the form of aiding those who are unjustly attacked, could be the best form of self-defence against hegemonic attempts. For instance, Gentili stated that ‘every contagion must be avoided’ and noted that ‘like a kind of contagion’, the Romans ‘­advanced from one people to another … and finally possessed whatever power there was’.255 Therefore, for Gentili the ius gentium permitted preventive war, anticipating a perceived threat to one’s security. Accordingly, ‘against the … shift of power that would be brought about by an eventual subjection of the … ­Netherlands to Spain, E ­ ngland was entitled to defend the Dutch rebels, indeed the common cause of Protestantism and of Europe against Spanish tyranny’.256

247 Ramon Hernandez, ‘The Internationalization of Francisco De Vitoria and Domingo De Soto’ (1991) 15 Fordham ilj 1031–1059, 1032 (noting that Grotius ‘refer[red] extensively to Vitoria and transcribe[d] many of his paragraphs’.) 248 Von Elbe, ‘The Evolution of the Concept of Just War in International Law’, 679. 249 Gentili, IB, Book i, Chapters 13–14; Grotius, ibp, ii.i.xvii. 250 Id. Book i, Chapter 14, p. 61. 251 Id. pp. 61–62; Gentili, Hispanica Advocatio, Book i, Chapter 17, p. 123 (arguing that ‘[o]ne should anticipate offence, that which is potential as well as that which is actual’.) 252 Gentili, IB, Book i, Chapter 14, p. 61. This was a recurring topos in Gentili’s work. See for instance Gentili, De Iure Belli, Boook iii, Chapter 13, p. 359 (‘what mortal ever sleeps calmly near a viper? For even though it may not strike, yet it causes anxiety. It is therefore safer to be secure against death than to have been in danger but not have perished’.) 253 Kinch Hoekstra, ‘A Source of War. Gentili, Thucydides, and the Justification of Preemption’ in vvaa, Alberico Gentili—La Salvaguardia dei Beni Culturali nel Diritto Internazionale (Milano: Giuffrè 2008) 125. 254 Gentili, IB, Book i, Chapter 15, pp. 72–73. 255 Id. p. 73. 256 Roelofsen, ‘Grotius and State Practice of his Day’, 7.

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Grotius adopted a different view of war. For Grotius, war followed injury (iniuria accepta) and could not prevent an evil: ‘that the possibility of being ­attacked confers the right to attack is abhorrent to every principle of equity. Human life exists under such conditions that complete security (plena securitas) is never guaranteed to us. For protection against uncertain fears we must rely on divine providence … not on force’.257 He also added that ‘fear of an uncertain [event] [could not] confer the right to resort to force’.258 For Grotius, preventive defence was based on considerations of expediency and was ‘abhorrent to all principles of natural justice’.259 Citing Euripides, Grotius stated: ‘if your husband … intended to have killed you, you ought to have waited, till he actually did make the attempt’.260 Instead, for Gentili a potential victim of rape could legitimately kill the person who intended to commit the crime.261 Gentili viewed this as an example of legitimate self-defence, excusing from any liability, an exercise of the natural right to defend one’s own life from imminent and concrete threat.262 Whereas Gentili admitted the utility of preventive war as a tool of self-­ defence to avert or minimize injury and the admissibility of pre-emptive strikes for reason of state (ratio status), Grotius rejected ‘the idea that utility could be the ground of legitimate self-defence’; rather, he ‘focused on the antinomy between justice and injustice’.263 Whereas Gentili argued that the use of certain stratagems was permissible in warfare, Grotius opined that all deceit should be avoided.264 While Gentili relied upon and developed the theory of the balance of power, Grotius never mentioned such theory.265 Rather, for Grotius, ‘order remained one of the cardinal values in the international system’.266 Gentili argued that if the subjects of a given state were treated cruelly and unjustly, another state had the moral duty to intervene, when it could (si potest).267 Grotius considered intervention as a privilege that a state could exercise at its convenience (cum suo commodo).268 257 Grotius ibp, Book ii, Chapter 1, Sec. xxvii. 258 Id. (metus rei incertae ius ad vim dare non potest). 259 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 89. 260 Hoekstra, ‘A Source of War’, 121. 261 Gentili, De Nuptiis, p. 8; Giovanni Minnucci, Silete Theologi in Munere Alieno (Bologna: Monduzzi 2016) 192–193. 262 Minnucci, Silete Theologi in Munere Alieno, 193. 263 Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli’, 229. 264 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 91. 265 Draper, ‘Grotius’ Place in the Development of Legal Ideas about War’, 199. 266 Nabulsi, ‘An Ideology of War, not Peace’, 17. 267 Gentili, De Iure Belli, Book I, Chapter 16. 268 Grotius, De Iure Belli ac Pacis Libri Tres, Book ii, Chapter 25, para. 7(1).

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With regard to the ius in bello, because Grotius referred only to ancient examples as precedents, he maintained a more conservative stance on warfare than Gentili.269 Grotius neatly distinguished what was legal from what was desirable and then noted that not all that was lawful was also honourable.270 In realistically discussing the violent customs of war, he considered it lawful to commit violence against women, children, civilians, and prisoners.271 Instead, for Gentili, combatants could fight against women, clergymen, and peasants only if they were active combatants; otherwise, civilians should not be involved in the hostilities. For Grotius devastations, destruction of properties, and even of temples and cemeteries were lawful.272 Grotius also stated that by the law of nations, all persons captured in a public war could be enslaved, or subject to punishment by their captors and their property confiscated; only in a second passage did he discuss some moderation (temperamenta belli), arguing that innocent persons should not be killed or punished with brutality.273 As Badiali aptly notes, Grotius supported the brutality of warfare by relying on historical data.274 Instead, Gentili refused to accept historical examples as definitive evidence of the law of war because he found them contrary to nature and rather promoted a theory of law that was closer to natural law (and contemporary humanitarian law).275 Gentili’s treatment of the prisoners of war ‘is much clearer and more practical than that of Grotius’: ‘in his discussion, the prisoner [was] no longer regarded as a chattel’; rather, he insisted that ‘at all times the actions of the captor [should] be governed by the law of nations and by the notions of equity (aequitas) and honesty (honestas) which [should] govern the exercise of any discretion permitted under that law’.276 He highlighted ‘the value of tolerance and restraint’, ‘the avoidance of humiliating conditions’ and ‘the necessity of maintaining a clear distinction between captives, deserters, and those who surrender[ed] voluntarily’.277 For instance, on the specific issue of the treatment of women in siege warfare, ahead of his times, Gentili argued that ‘to violate the honour of women

269 Nabulsi, ‘An Ideology of War, not Peace’, 30. 270 Badiali, ‘L’Attualità del Pensiero Gentiliano nel Moderno Diritto Internazionale’, 54. 271 Grotius, De Iure Belli ac Pacis, Book iii, Chapter 4, p. 9. 272 Badiali, ‘L’Attualità del Pensiero Gentiliano nel Moderno Diritto Internazionale’, 54. 273 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 92. 274 Badiali, ‘L’Attualità del Pensiero Gentiliano nel Moderno Diritto Internazionale’, 55. 275 Id. 276 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 92. 277 Id.

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[would] always be held to be unjust’.278 He denied that reprisals could justify it.279 Grotius had a more conservative stance. After mentioning the argument that rape might be legal on the grounds that ‘it [was] not inconsistent with the law of war that everything which belongs to the enemy should be at the disposition of the victor’, he reasoned that, being unrelated to either security or punishment, rape ‘should consequently not go unpunished in war any more than in peace. The latter view is the law not of all nations, but of the better ones’.280 Not only was Gentili’s position on the treatment of women in times of war ahead of his times, but it also reflected an understanding of women as human beings. Conversely, not only did Grotius analogize women to mere chattels, but he also considered their treatment in utilitarian terms. As Theodor Meron, a former President of the International Criminal Tribunal for the Former Yugoslavia, sadly notes, ‘[u]nder modern international law … the protection of women’s rights does not appear to have been a priority item’.281 Again, for Gentili, danger did not justify the killing of captives and he praised those that did not slay their captives, ‘no matter how great danger threatened them’.282 Grotius did not take such a firm stance: ‘So far as the law of nations [was] concerned, the right of killing such slaves, that is, captives taken in war, [was] not precluded at any time, although it [was] restricted ... by the laws of states’.283 Elsewhere, however, ‘Grotius advocated sparing captives who ha[d] surrendered unconditionally’.284 The Gentilian and Grotian systems of the law of nations also diverged with reference to the question of slavery. Gentili explicitly contested that the Aristotelian doctrine of natural slavery could justify wars.285 Like Vitoria, he denied that the native peoples could be understood as slaves by nature in Aristotelian terms and condemned the Spanish conquest of the Americas.286 For Gentili, 278 Theodor Meron, ‘Shakespeare’s Henry the Fifth and the Law of War’ (1992) 86 ajil 1–45, 30. 279 Id. 280 Id.; Grotius ibp, Book iii, Chapter iv, pt xix. 281 Theodor Meron, ‘Shakespeare’s Henry the Fifth and the Law of War’, 30 (noting that ‘[o] nly in the fourth Geneva Convention of 1949 was an unequivocal prohibition of rape established’.) Geneva Convention No. iv Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 unts 287, Article 27. 282 Id. 39. 283 Grotius ibp, Book iii, Chapter 4, pt. x. 284 Meron, ‘Shakespeare’s Henry the Fifth and the Law of War’, 39; Grotius ibp, Book iii, Chapter xi, pt. xv. 285 Gentilis, De Iure Belli, Book iii, Chapter 11. 286 Diego Pirillo, Filosofia ed Eresia nell’Inghilterra del Tardo Cinquecento—Bruno, Sidney, e i Dissidenti Religiosi Italiani (Roma: Edizioni di Storia e Letteratura 2010) 182.

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the Spanish conquest was a clear example of unjust war; the Spaniards used the Aristotelian theory of natural slavery as a mere pretext to enslave the natives and conquer their lands.287 He admitted the possibility of legal slavery as a consequence of war, as was customary at the time. However, for Gentili, every human being is born to be free and no man could be born in a state of subordination or slavery.288 Gentili rejected the idea that there could be peoples who might be naturally suited to slavery, and that such alleged predisposition could justify war against them for enslaving them. He denied the possibility that pri­ soners of war could be enslaved in wars between Christians.289 As Turks used to capture and enslave Christians, Gentili admitted the possibility of capturing and enslaving them as a matter of reciprocity.290 By contrast, Grotius argued that people could alienate their rights, even to the point of enslaving themselves or their children to another.291 In De Iure Praedae, Grotius endorsed Aristotle’s doctrine that some people were naturally suited to be slaves.292 For Grotius, the doctrine explained why given populations could choose to submit to another state. In fairness to Grotius, he later revised his arguments and followed Gentili’s arguments on this point, thus abandoning the Aristotelian doctrine of natural slavery in his De Iure Belli ac Pacis.293 However, whereas for Gentili every human being is born free and no man could be born into a state of subordination, for Grotius ‘not only [did] the prisoners of war themselves become slaves, but also their descendants forever’.294 While Gentili highlighted that ‘laws restrain[ed] the cruelty of masters’, for Grotius ‘there [was] nothing that a master [wa]s not permitted to do to his slave’.295 In essence, while Gentili condemned slavery and seemed to have objected to the slave trade, Grotius’ theory ‘would be later be utilized by others … justifying the African slave trade’.296 Both Gentili and Grotius explained that common human nature demanded that the dead were covered and all animosity against the enemy should cease

287 Id. 288 Gentili, De Iure Belli, Book I, Chapter 12. 289 Grewe, The Epochs of International Law, 213. 290 Id. 291 Grotius, ibp, Book i, Chapter iii, para. viii. 292 Grotius, De Iure Praedae, Chapter vi. 293 Grotius, ibp, Book II, Chapter 22, xii. 294 Jean Allain, Slavery in International Law: Of Human Exploitation and Trafficking (Leiden: Martinus Nijhoff 2013) 42. 295 Id. 43. 296 Id. 43–44.

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after death.297 They referred to the same literary sources, ranging from Euripides’ Suppliants and Sophocles’ Antigone to Virgil’s Aeneid and Tacitus’ Annals.298 Both cited human dignity and compassion as the rationale for these provisions of natural law299 and both noted that the history of civil wars has shown that the dead are offered frequent indignities.300 Grotius added a digression on suicide in relation to burial.301 Finally, Gentili was more precise than Grotius with regard to the immunity of ambassadors and with respect to the property and land of neutrals.302 With regard to the establishment of peace, both Gentili and Grotius considered that the object of every war should be the establishment of peace.303 However, while Gentili examined the specific problems arising at the conclusion of hostilities, Grotius was briefer and generally ‘follow[ed] closely the wise … advice given by Gentili, although nowhere d[id] he acknowledge the assistance he derived from the earlier work’.304 Again, Gentili’s exposition was both ‘persuasive and constructive’.305 ‘Although he grant[ed] wide privileges to the victorious state, title to territories and property … he d[id] appreciate that both moral and legal obligations accompany[ied] these rights’.306 In conclusion, for Gentili ‘a respect for the defeated people, their country, customs, and way of life [wa]s the surest way to … safeguard peace’.307 While Gentili admitted the inclusion of heathen nations in the international community, Grotius argued that although treaties between Christians and heathens were not forbidden by the law of nations, ‘too close an alliance might 297 Gentili, IB, Book ii, Chapter 24, p. 280 (‘an outrage to the dead is an outrage to our common human nature’) and p. 278 (‘the right to injure ceases with death’); Grotius, ibp, Book ii, Chapter 19, 140 (‘our common human nature calls upon us to cover the dead’), and 142 (‘all animosity against the vanquished and the dead must cease’.) 298 Gentili, IB, Book ii, Chapter 24, p. 278 and p. 282; Grotius, ibp, Book ii, Chapter 19, 140–142. 299 Gentili, IB, Book ii, Chapter 24, p. 280 (referring to human sympathy) and p. 284 (referring to justice and common human nature); Grotius, ibp, Book ii, Chapter 19, 141 (referring to human dignity and compassion). 300 Gentili, IB, Book ii, Chapter 24, p. 283 (‘what may be done by citizens against a tyrant may not be done by one enemy to another); Grotius, ibp, Book ii, Chapter 19, p. 143 (‘in reading the history of civil wars, we find more frequent instances of indignities offered to the dead, than in the accounts of any foreign wars’.) 301 Grotius, ibp, Book ii, Chapter 19, p. 144. 302 Del Vecchio, Due Note su Alberico Gentili e su Ugo Grozio, 11. 303 Gentili, IB, Book iii, Chapter 24, p. 433; Grotius, ibp, Book i, Chapter 1. 304 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 94. 305 Id. 95. 306 Id. 307 Id.

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well increase the power of the heathen or hinder the spread of the Gospel’.308 Gentili alone understood the importance of state succession regarding treaties. In fact, he did not consider treaties to be personal deals among sovereigns, but tools to preserve ‘continuity and stability in international relations’.309 Whereas Grotius endorsed ‘contractual absolutism’,310 Gentili argued that a treaty can become inapplicable because of a fundamental change of circumstances (rebus sic stanti­bus).311 His original proposition attempted to strike a balance between the principle that treaties must be respected (pacta sunt servanda) and the demands of an ever-changing international system. Gentili’s conceptualization of the rebus sic stantibus doctrine expressed a balance between ruthless realism and idealistic legalism. Expressing some ruthless realism, Machiavelli had argued that sovereigns could break their promises and agreements where interests and circumstances demanded it, and that they could be compelled to act ruthlessly and without humanity in order to maintain power.312 Expressing some idealistic legalism, Gentili’s contemporaries, including Grotius, endorsed a sort of contractual absolutism, comparing treaties to contracts and transplanting the sanctity of contract principle from domestic private law to the law of nations. Instead, Gentili adopted a moderate position between the two approaches. In fact, he transplanted the notion of rebus sic stantibus from the reason-of-state literature and medieval canon law to international legal theory, arguing that sovereigns should observe treaties in good faith; nonetheless, they could break their promises in exceptional circumstances, namely, if a fun­damental change of circumstances had a radical effect on the obligations of the treaty affecting its overall balance and equity. In other words, Gentili ­acknowledged that the duty to implement treaties in good faith lay at the heart of the law of nations. However, he elaborated a contrary

308 Gentili, IB, Book iii, Chapter 19; Grotius, ibp, Book ii, Chapter 15. 309 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 96. 310 Grotius, ibp, Book iii, Chapter 25, para. 6 (‘on whatever terms peace is made, it must be absolutely kept’.); Stefan Kadelbach, ‘Hugo Grotius: On the Conquest of Utopia by Systematic Reasoning’, in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel (Oxford: oup 2017) 134–159, 150. 311 Gentili, dib, Book iii, Chapter 14, p. 365 and Chapter 16, p. 379 (arguing that every convention should be understood with circumstances as they stand—omnis conventio intelligitur rebus sic stantibus). 312 Niccoló Machiavelli, The Prince, Quentin Skinner and Russell Price (eds) (Cambridge: cup 1988) Chapter 18, pp. 61–62.

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principle of rebus sic stantibus—that treaties cease to bind nations when there has been a fundamental change of circumstances—to maintain the substantive justice and long-term viability of the international legal order. Instead, Grotius affirmed the principle of pacta sunt servanda whatever the content of the applicable treaty, without considering whether the implementation of a treaty could affect either party if a fundamental change of circumstances had occurred.313 Whereas Gentili’s positions closely reflected the official English stance, Grotius’ positions closely reflected the official Dutch views on the matter.314 According to the Netherlands, the English insistence on a revision of the financial clauses of the Treaty of Nonsuch in 1595 violated the terms of the treaty.315 Against this background, Gentili captured a perennial feature of international law: its struggle between continuity and change. The rebus sic stantibus rule is now part of customary international law.316 In conclusion, the convergences and divergences between the Gentilian and Grotian systems show that neither Gentili nor Grotius were pure systematizers of previous knowledge. By contrast, their respective original combinations of previous materials made them author innovative works which ­contributed to the development of the law of nations in general and the law of war in particular. The next section critically assesses how Gentili influenced Grotius and how the substantial differences between the De Iure Belli and the De Iure Belli ac Pacis explain their varied success. 8.6

Critical Assessment

Both Gentili and Grotius were writing at a time of fundamental changes requiring a major rethinking of the law of nations: paradoxically, while Europe expanded overseas, it was ‘divided along religious lines’ and its eastern frontier was constantly retreating ceding to the pressures of the Ottoman armies.317 War, violence, and exploitation overlapped and intermingled in international relations. Both Gentili and Grotius were scions of notable ­families, religious 313 Grotius, ibp, Book I, Chapter 3, viii (not mentioning Gentili but using an identical quote from Angelus de Ubaldis’ comment on the Digest.) 314 Roelofsen, ‘Grotius and State Practice of his Day’, 8. 315 Id. 10–11. The Treaty of Nonsuch was signed on 19 August 1585 by Elizabeth i of England and the Dutch rebels fighting against Spanish rule. 316 Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331, in force 27 January 1980, Article 62 (Fundamental Change of Circumstances). 317 Carlo M. Cipolla, Vele e Cannoni (Bologna: Il Mulino 1999) 119–120.

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refugees, and held important public offices. Both wrote extensively about important issues of the day and their works have contributed to the history and theory of the law of nations. What influence did Gentili have on Grotius? Grotius acknowledged Gentili’s importance at least twice. When Benjamin Aubéry du Maurier, the French Ambassador to The Hague, asked Grotius to recommend some books for the education of his son, Grotius recommended the writings of Gentili on the law of nations.318 Grotius also acknowledged Gentili’s importance in the Prolegomena of his De Iure Belli ac Pacis, albeit emphasizing the alleged shortcomings of Gentili’s work. However, Grotius’ acknowledgment of his intellectual debt to Gentili remained inadequate.319 By arguing that ‘the work … of all of his predecessors was unsatisfactory because it was unsystematic and incomplete … and then producing what he claimed was a systematic discussion of the basic elements of international law and relations, Grotius set the terms of any discussion about the origins of international law, identifying his own work as the beginning of all serious thought on international law’.320 In practice, he ‘deflected subsequent scholars from close examination of earlier writers’.321 Grotius cited Gentili eleven times in his De Iure Praedae, and seven times in his De Iure Belli ac Pacis. In the latter work, on five out of seven references ‘he specifically reject[ed] or criticis[ed] an opinion of Gentili’.322 Grotius’ implicit references to Gentili’s works betrayed a much more systemic use of Gentili’s work, than the sparse explicit references would suggest.323 Gentili influenced Grotius to a significant extent.324 While Holland considered Gentili’s De Iure Belli to be the archetype of Grotius’ treatise and hence ‘the real cradle of the law of nations’,325 Haggenmacher argues that the convergences between Gentili and Grotius’ respective works do not lessen the value of Grotius’ work.326 On the one hand, the similarities between Gentili and ­Grotius’ works are ‘substantial’ and Gentili’s works were among the most 318 Haggenmacher, ‘Grotius and Gentili’, 151–152. 319 Del Vecchio, Due Note su Alberico Gentili e su Ugo Grozio, 12. 320 James Muldoon, ‘Medieval Canon Law and the Conquest of the Americas’, Jarbuch für Geschichte Latinamerikas (Köln: Böhlau Verlag 2000) 9–22, 11. 321 Id. 322 Simmonds, ‘Some English Precursors of Hugo Grotius’, 154. 323 Haggenmacher, ‘Grotius and Gentili’, 151 (noting that Grotius ‘used Gentili’s works more extensively than would appear at first glance’ and ‘might even have kept the De Iure Belli on his desk as a permanent companion while writing his own’.) 324 Del Vecchio, Due Note su Alberico Gentili e su Ugo Grozio, 12. 325 Thomas E. Holland, ‘Praefatio’, Gentili, De Iure Belli, Thomas E. Holland (ed) (Oxford: Clarendon University Press 1877) xxi. 326 Haggenmacher, ‘Grotius and Gentili’, 151.

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i­mportant sources Grotius had.327 If Gentili was ‘a struggling pioneer’, often adopting an empirical approach and discussing contemporary problems in a ‘hesitant’ fashion, Grotius relied on the former’s work and had a more ‘confident’ style.328 On the other hand, while it is not possible to quantify the extent of the Gentilian influence, it is possible to assess it qualitatively. While Grotius relied on Gentili’s writings, he also transformed what he borrowed.329 Grotius was more than a mere follower of Gentili, as the divergences between the two scholars’ works demonstrate. While some have depicted Grotius’ work as superior to that of Gentili, because of its systematic nature,330 others consider Gentili’s work more attuned to contemporary international law because of his deep understanding of realpolitik, lack of dogmatic aims, and more humane stance on a range of topical issues.331 Both Gentili and Grotius’ masterpieces—De Iure Belli and De Iure Belli ac Pacis, respectively—focus on the law of war. Both Gentili and Grotius were writing at a time when international law was not yet a distinct discipline; rather, the law of nations was fragmented and lawyers had to map and interpret it playing a quasi-creative role.332 Gentili considered himself as an interpreter of law (iuris interpretes). For him, law offered the solutions to the major political questions of the time. In turn, Grotius considered himself as a legal philosopher and cared deeply ‘for the unity of the Christian churches’.333 Grotius has had more historical influence than Gentili for a number of reasons. First, the clarity, structure, and comprehensiveness of Grotius’ De Iure Belli ac Pacis made it become a standard textbook.334 By contrast, Gentili’s De Iure Belli is a complex work that requires the reader to engage with the complex argumentative style; Gentili seems to offer one opinion, but then presents

327 328 329 330 331

Haggenmacher, ‘Grotius and Gentili’, 156. Simmonds, ‘Some English Precursors of Hugo Grotius’, 155–156. Id. 156. Haggenmacher, ‘Grotius and Gentili’, 167. Coleman Phillipson, ‘Introduction’, in Alberico Gentili, De Iure Belli, Libri Tres, John C. Rolfe (trans) (Oxford: Clarendon Press 1933) at 51a (noting that ‘parts of [Grotius’] work were in some respect … unprogressive, and in other respects were alien to the circumstances … of the age’) at 11a–12a (noting that ‘because of the greater affinity between his point of view and that of modern states and jurists, [Gentili] is, in that respect, as much as, if not more than, Grotius, the progenitor of the existing law of nations’.) 332 Bull, ‘The Importance of Grotius in the Study of International Relations’, 79. 333 Martine Julia Van Ittersum, ‘Hugo Grotius—The Making of a Founding Father of International Law’, in Anne Orford and Florian Hoffmann (eds) The Oxford Handbook of the Theory of International Law (Oxford: oup 2016) 82–100, 97. 334 Haggenmacher, ‘Grotius and Gentili’, 175.

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a range of counterarguments and his conclusion are often nuanced. It can be an appealing read, but only to committed readers. Second, Grotius’ calm tone, moderation, clear writing and his apparent detachment from the historical events of his time has transformed his De Iure Belli ac Pacis into a classic. Making reference to Grotius’ works became more important than reading the actual content of his writings.335 By contrast, Gentili’s engagement with the historical events of his time may have prevented the circulation of his works beyond their epoch. Gentili’s barbaric Latin, his spirit of contradiction, and polemical tones have all hampered his wider appeal.336 Third, because Grotius’ writings justified maritime powers’ expansion, they became popular in the age of discovery and colonialism.337 Grotius’ De Iure Belli ac Pacis endorsed many views to which the international community was eagerly receptive, supporting equality between Protestant and Catholic states, freedom of commerce and freedom of the seas.338 Grotius’ De Iure Belli ac Pacis expressed and/or strengthened the claims of powerful states worldwide.339 Had Grotius’ writings not reflected some of the predominant views and interests of seventeenth-century Europe, ‘they could not have had the impact on thought and action that in the event they had’.340 By contrast, there is an element of controversy in Gentili’s positions due to some contradictions and even paradoxes within his writings. The ideological ambiguity of Gentili remains open; it is difficult to attack or defend him ideologically because his works can raise diverging interpretations.341 While some contend that he supported imperialist expansion without hesitation,342 others take the opposite point of view, stressing that Gentili criticized hegemonic attempts. In his writings Gentili particularly criticized the Iberian and Ottoman Empires because they were the most ambitious, powerful, and threatening powers of the time; but his theory of the balance of power can be interpreted to 335 Parry, ‘What is the Grotian Tradition in International Law?’ 319 (reporting these views). 336 Nussbaum, A Concise History of the Law of Nations, 101. 337 Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: cup 2004) 292–293. 338 Id. 339 Bull, ‘The Importance of Grotius in the Study of International Relations’, 74. 340 Id. 93. 341 Alessandra Petrina, ‘Ai Margini del Testo: Alberico Gentili e la Circolazione dell’Opera di Machiavelli in Inghilterra’, in Vincenzo Lavenia (ed) Alberico Gentili—Responsibility to Protect: Nuovi Orientamenti su Intervento Umanitario e Ordine Internazionale (Milano: Giuffrè 2015) 195–214, 212. 342 Anthony Pagden, ‘Gentili, Vitoria, and the Fabrication of a ‘Natural Law of Nations’, in Kingsbury and Straumann (eds.) The Roman Foundations of the Law of Nations, 340, 343.

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­constitute a general tool to prevent any state from pursuing imperialist policies and achieving hegemony. Certain humane Gentilian stances were out of sync with the hegemonic ambitions of European powers and could eventually hinder colonial expansion. For instance, with regard to privateering, Gentili condemned what was a widespread practice. His various qualifications to the freedom of the sea and the parallel conceptualization of territorial waters could limit the expansionist claims of both consolidated and emerging maritime empires. By conceptualizing the territorial sea, approving of China’s restrictions applicable to ports of entry, and identifying a state right to adopt defensive measures even in the absence of an injury but because of fear (si vis pacem para bellum), Gentili’s theory could hamper maritime expansion. An example can clarify the issues at stake. Where Europeans encountered great Asian powers, they practiced strategies of deference.343 As an Asian military revolution had already introduced crucial technological innovations, the ‘differences in styles of warfare reflected local adaptations to geography, politics or culture’ rather than indicating technological power difference.344 On the rare occasions when Europeans challenged these powers in the early modern period, ‘they suffered rapid and salutary defeats’.345 Therefore, Western merchants often sought to reach an agreement with local rulers. Nonetheless, Western naval powers could be devastating when it came to attacking ports and fortifications with their ships.346 Archival research shows that Asian sovereigns considered European fleets almost invincible at sea due to their cannons. For instance, the Japanese called European galleons Black

343 Andrew Phillips and J.C. Sharman, International Order in Diversity: War, Trade, and Rule in the Indian Ocean (Cambridge: cup 2015) 7 (also noting at 10 that the ‘preponderance of material power’ of the Mughal Empire ‘ultimately allowed the Mughals to set the terms of European engagement with much of the Indian Ocean international system’.) 344 Id. 94. 345 J.C. Sharman, ‘Myths of Military Revolution: European Expansion and Eurocentrism’ (2018) 24 European Journal of International Relations 491–513, 492; Phillips and Sharman, International Order in Diversity, 95 (referring to many military reverses suffered by the Portuguese in Africa and the Indian Ocean); Adam Clulow, The Company and the Shogun: The Dutch Encounter with Tokugawa Japan (New York: Columbia University Press 2014) 16 (noting that initial claims of the Dutch company about trade and land ‘trigger[ed] a sequence of conflicts that were only resolved by voc [Dutch East India Company] withdrawals, concessions, or outright surrender’.); Peter D. Shapinsky, Lords of the Sea: Pirates, Violence, and Commerce in Late Medieval Japan (Ann Arbor: Center for Japanese Studies Publications University of Michigan 2014) Chapter 3 (noting that although traditionally depicted as a land-based empire, Japan also had coastal fortifications and warships such as the atakebune.) 346 Phillips and Sharman, International Order in Diversity, 95.

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Ships (kurofune).347 The colour black had a simultaneously negative and positive connotation in Japanese culture: ‘In its negative sense it refer[red] to the limits of the known world and in a positive sense it was associated with wealth’. While ‘ship[s] and [their] people were associated with the unknown’, ‘any object or person that came from the sea was considered … a treasure’.348 While the Mughals spotted the weaknesses of the ­Portuguese on land, they noted the prowess of Portuguese in ‘using firearms’ and in maritime warfare.349 Gunarmed, ocean-going sailing ships were ‘like floating towers or castles’; they were designed not merely for invasion but for the utter conquest of kingdoms.350 Therefore, Asian rulers sought ways to keep the Europeans at bay and trade with them at sea, or rather limit their access to specific ports only, where local imperial delegates could control the trade with Europeans.351 China, Korea, and Japan all had comparable restrictions in place, although they differed in their particulars.352 Such limits included the use of a few ports of entry to control movement in and out of the country; for example, Dutch and Chinese merchants could only trade in the southern port of Nagasaki. In this manner, strong Asian powers, whether in India, the Middle East, China or Japan, ensured that the Europeans would not upset the existing balance of power.353 By qualifying freedom of commerce and admitting that trade could be limited by states on grounds of state security, religion, and public morals, Gentili proposed a subtle position that could enable states to balance freedom of commerce with other strategic interests and values.354 347 Cipolla, Vele e Cannoni, 111. 348 Alexandra Curvelo, ‘The Disruptive Presence of the Namban-jin in Early Modern Japan’ (2012) 55 Journal of the Economic & Social History of the Orient, 581–602, 590–591. 349 Phillips and Sharman, International Order in Diversity, 98. 350 Francis Bacon, ‘Considerations Touching a War with Spain’ [1624], in The Works of Francis Bacon, Basil Montagu (ed) (Philadelphia: M. Murphy 1886) 208 (also noting that English ships ‘were not so great of bulk … but … more serviceable’). 351 Cipolla, Vele e Cannoni, 119. 352 Since the reunification of Japan under the Tokugawa Shogunate in 1600 following a century of civil war, the shogun proceeded to reestablish order in both domestic and international relations. Aware of the colonial expansion of Spain and Portugal in Asia, ‘the shogunate exerted a firm hand on foreign traders’, adopting maritime restrictions on trade and travel (kaikin). Peter C. Mancall and Carole Shammas, ‘Introduction’, in Peter C. Mancall and Carole Shammas (eds) Governing the Sea in the Early Modern Era (San Marino CA: Huntington Library 2015) 1–13, 8. 353 K.N. Chaudhuri, Trade and Civilisation in the Indian Ocean—An Economic History from the Rise of Islam to 1750 (Cambridge: cup 1985) 78–79. 354 Gentili, De Iure Belli, Book i, Chapter 19, p. 90 (‘a guest is not said to be rejected when he is not admitted to every part of a house. It is lawful to keep the secrets of a kingdom conceiled and to hold aloof all who come to spy into them or might do so’.)

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8.7 Conclusions The Gentilian and Grotian works were at the same time both their own creations and a mosaic composed almost entirely of the thoughts of others.355 Their works reflected and complied with the Renaissance standards of ‘originality’, which differed from contemporary ones356 and for which knowledge production was ‘a truly collaborative affair’.357 Although Gentili had a great influence on Grotius, their works remain distinct and merit study in their own right. The Gentilian and Grotian works present both similarities and differences. On many doctrinal points, Gentili and Grotius adopted similar positions; this was particularly the case with regard to the idea of the freedom of the sea, and a number of different albeit related aspects of the ius ad bellum, ius in bello, and ius post bellum. Both ‘s[ought] to temper power with law’,358 opposed cruelty, and rejected pretexts of discovery and religious conversion as justifications for the use of force.359 Both Gentili and Grotius critically assessed state practice through legal reasoning and normative appraisal. These normative assessments were based on their own moral universe. At the same time, there are significant points of contrast. While Gentili admitted preventive defence, Grotius denied that this could be in conformity with justice. While Gentili denied the admissibility of poisonous arms, Grotius allowed them. While Gentili affirmed that human beings are born free, Grotius adhered to the Aristotelian notion of natural slavery. While Gentili considered the balance of power to be a useful tool to prevent hegemony and guarantee peace, Grotius showed no interest in the balance of power as a tool of international governance for maintaining peace and preventing war. Gentili and Grotius also adopted different methods. Gentili’s method was inductive; he discussed various opinions, precedents, and theories to reach a general principle.360 The discussion of the various examples followed a given 355 Hoekstra, ‘A Source of War’, 116. 356 Antony Maurice Honoré, ‘Alberico Gentili e la Dottrina della Guerra Giusta nella Prospettiva di Oggi’, in vvaa, Alberico Gentili e la Dottrina della Guerra Giusta nella Prospettiva di Oggi (Milan: Giuffrè 1991) 23–66, 28. 357 Van Ittersum, ‘The Working Methods of Hugo Grotius’, 191. 358 Benedict Kingsbury, ‘Gentili, Grotius, and the Extra-European World’, in Harry N. Schreiber (ed) The Law of the Sea: The Common Heritage and Emerging Challenges (The Hague: M. Nijhoff 2000) 39–49, 42. 359 Gentili, De Iure Belli, Book i, Chapter 12; Book i Chapter 25; Grotius, De Iure Belli ac Pacis, Book II, Chapter 22, 8–12. 360 Honoré, ‘Alberico Gentili e la Dottrina della Guerra Giusta nella Prospettiva di Oggi’, 45.

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argumentative order, and there was an internal coherence within the Gentilian system. Gentili closely followed the state practice of his time; while he normatively distinguished the best practice, he did not set out an ideal system. He nonetheless brought some order to what was then an extremely dispersed field of study, contributing to the systematization, moderation, and humanization of the law of war, and infusing the international legal system with a spirit of moderation and tolerance. Grotius’ method was deductive; he attempted to offer statesmen a mathematical synthesis of what was just.361 Grotius had profound faith in moral justice, rejected all arguments based on reason of state expediency, and derived his theory from a set of initial principles. He did not discuss contemporary practice; rather, he concentrated on historical examples.362 His work benefitted from its sophisticated execution, and a learned, theoretical, and systematic approach to given legal issues.363 For Kingsbury, Grotius De Iure Belli ac Pacis ‘is vastly more systematic, elegant, and philosophically rigorous’ than Gentili’s De Iure Belli.364 The unifying force of Grotius’ logical, rational, and deductive method, his erudition, and the natural ease and fluency of his writing enabled him to build ‘an integrated system of law’.365 This has led some scholars to conclude that ‘[i]t is the pattern and construction of his work, rather than the ­particular opinions expressed, that has made it an enduring landmark in the history of … international law’.366 While the Grotian writing style is superior to the Gentilian one, Gentili seems to have adopted a more legal method and proposed more balanced legal solutions to given legal issues. For instance, while Grotius endorsed privateering and defended ‘the right of private persons to punish transgressors of natural law’,367 Gentili condemned privateering as a form of robbery; while Grotius did not deal with neutrality law in any great detail, Gentili elaborated its important tenets.368 While both endorsed the providential function of c­ ommerce, Gentili qualified freedom of commerce to such an extent to anticipate the 361 Grotius, De Iure Belli ac Pacis, Prolegomena 58. 362 Id. 363 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 97. 364 Kingsbury, ‘Gentili, Grotius, and the Extra-European World’, 40. 365 Simmonds, ‘Hugo Grotius and Alberico Gentili’, 99. 366 Id. 367 Martine Julia Van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories, and the Rise of Dutch Power in the East Indies 1595–1615 (Leiden: Brill 2006) xxxviii. 368 Henry Nézard, ‘Albericus Gentilis’, vvaa, Les Fondateurs du Droit International (Paris: Giard & E. Briere 1904) 37–93, 90.

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g­ eneral exceptions clauses, which characterise contemporary international economic law. He also contributed to the development of the theory of diplomatic immunity. His definition of war was far more precise than the Grotian one.369 Finally, while both Gentili and Grotius endorsed the theory of the freedom of the sea, Gentili qualified such freedom, recognizing the reasons of coastal states and elaborating the notion of territorial waters. While Gentili’s ‘name and work are less well known today than that of Grotius’, ‘Gentili [was] in many respects the greater and more modern of the two’370 and his vision of the law of nations is ‘closer to our own ideas than is the doctrine of Grotius’.371 By referring to contemporary precedents in addition to the ancient ones, he promoted a humanization of warfare. His preference for discussing particular concrete cases rather than setting out broad ­generalizations has meant that his work was more in line with international practice and historical developments of international law. He viewed the law of nations as a mixture of theory and practice; rather than developing a grand theory, he adopted a constructive and pragmatic approach in trying to solve the practical problems of the time’.372 He rightly identified the instrumental nature of the law of nations as an instrument of peace and justice, rather than an end in itself.373 His work ‘reflect[ed] a profound belief in the importance of international law, in its capacity to do good’.374 For Gentili, jurisprudence is the art of identifying and applying the law (nostra … est ars … definire … quid in quaque quaestione est iuris); it is the love of wisdom and truth (studium sapientiae et veritatis); it is the art of what is good and equitable (ars boni et aequi).375 369 Nezard, ‘Albericus Gentilis’, 90. 370 Vaughan Lowe, ‘International Law: the Common Pursuit’, in vvaa, Alberico Gentili— Giustizia, Guerra, Impero (Milan: Giuffrè 2014) 391–409, 399. 371 Bull, ‘The Importance of Grotius in the Study of International Relations’, 73. 372 Lowe, ‘International Law: the Common Pursuit’, 402. 373 Id. 404. 374 Id. 409. 375 Gentilis, De Nuptiis, p. 57.

Conclusions Iustitia finis nostra artis est.1

…

Justice Justice shall you pursue.2

∵ The sixteenth century was a tumultuous period in world history. The Reformation, the rise of modern states, geographical discoveries, and global encounters made it necessary to recognize and develop rules for governing international relations. Expanding webs of economic and cultural exchange knitted the peoples of different continents together on an unprecedented scale. Indeed, sustained ‘processes of contact, interaction, and exchange influence[d] far more than simply economic life’, leading toward political, cultural, and social transformations around the world and growing interdependence.3 Furthermore, since ‘new cultures of power and cultures of war’ emerged all around the globe, how to govern these international interactions became a crucially important question.4 Investigating how early modern scholars addressed this question is important not only for better understanding the dynamics of the common history of culturally diverse communities, but also for appreciating how international law developed. This ambivalent system attempted, though ultimately failed, to prevent injustices from being carried out over the centuries and yet it contained the seeds of anti-hegemonic resistance. Alberico Gentili was an innovative thinker and a legal architect of the early modern law of nations. Due to the open texture of his works, Gentili’s opus has inspired many analyses and diverging interpretations. As there are infinite opportunities to uncover new elements in Gentili’s thought, it is not only possible, but likely that further studies will advance the conversation and even take 1 Gentili, MS D’Orville 615, p. 286 (‘Justice is the end of our art’.). 2 Deuteronomy 16:18–20. 3 Jan De Vries, ‘The Limits of Globalization in the Early Modern World’ (2010) 63 The Economic History Review 710–733, 712. 4 Brian Sandberg, War and Conflict in the Early Modern World 1500–1700 (Malden, MA: Polity 2016) 9 (internal reference omitted). © VALENTINA VADI, ���� | doi:10.1163/9789004426030_010

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it in new directions. This book contributes to the ongoing debates by focusing on Gentili’s theory of the law of nations, illuminating his occasionally brilliant insights and perhaps more frequent blind spots, the paradoxes of his thought, and both his courage and fear.5 Gentili contributed to the emergence of the law of nations as an autonomous discipline, distinct from both theology and domestic law, and to its ­systematization and humanization in many respects. As a result, the law of nations became ‘a specialized branch of the law in its own right’.6 In fact, Gentili saw law as the art of justice (ars iusti) and as a science to be built by policymakers (scientia architectonica) and interpreted by lawyers (sacerdotes iustitiae).7 For Gentili, human beings are designed ‘for union and not for discord’,8 and thus war and conflict do not belong to the state of nature, but instead are due to the ‘ambition and injustice of human beings’.9 Gentili did not perceive cultural diversity as a threat to the international order; rather, he considered it to be an intrinsic feature of the international community. He recognized the importance of religious freedom and cultural diversity, and elaborated an idea of cosmopolis, or universal human society, based upon the respect of cultural and religious differences. Gentili conceived of the international order in ‘multicivilizational’ terms.10 He acknowledged the existence of different civilizations and saw that his civilization was simply one among many.11 Gentili’s 5

For a similar approach, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: cup 2001) 7. 6 Alain Wijffels, ‘Early-Modern Scholarship on International Law’, in Alexander Orakhelashvili (ed.) Research Handbook on the Theory and History of International Law (Cheltenham: EE 2011) 23–49, 43. 7 MS D’Orville 615, p. 286 (‘Justice is the end of our art, like good health is the end of medicine, persuasion the end of rhetorics, victory the end of war and so forth. Therefore, we are called priests [in the temple] of justice, and we look for its principles—iustitia finis nostra artis est, ut medica sanitas, oratoria persuasio, militaris victoria, aliarum alii. Itaque iustitiae sacerdotes dicimur. Subiectum vero nobis ius, cuius scilicet principia quaerimus’.). 8 Gentili, De Iure Belli, Book i, Chapter 5, p. 28. 9 Id. Book i, Chapter 12, p. 54. 10 Diego Panizza, ‘Introduction—The Quest for a New Universality’, in vvaa, Alberico ­Gentili—L’Ordine Internazionale in un Mondo a Più Civiltà. Atti del Convegno Decima Giornata Gentiliana (Milan: Giuffrè 2004) 58–59. 11 Compare, mutatis mutandis, with Francis Fukuyama, The End of History and the Last Man (New York: Free Press 1992) (arguing that all cultures and all civilizations will attain one form alone, that of Western liberal democracy and that history will end) and Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon & Schuster 1996) (hypothesizing that globalization has not produced a universal civilization and that history is far from having ended; rather, for Huntington, people’s cultural and religious identities will be the primary source of conflict in the post-Cold War world. In order to prevent a global war, Hungtington argues that each civilization should accept that its civilization is simply one among many.) See also Yasuaki Onuma, ‘An Intercivilizational

498

Conclusions

theory was innovative in advocating mutual understanding and peaceful relations among peoples of different beliefs. Furthermore, he acknowledged the sovereignty and property rights of Indigenous peoples. This stance differed from existing theories that postulated the existence of one true religion (vera religio) and sought to assimilate foreign cultures into a given religious and cultural framework. In a world dominated by violence and fear, Gentili sought to establish an international legal order to enable religious freedom and cultural diversity, as well as just, peaceful, and prosperous relations among nations. At the same time, however, Gentili’s theory also had clear limits: his invectives against atheists demonstrate, for example, that he could not conceive of life without any form of religion or ethics. For Gentili, a war against atheists was a purely theoretical hypothesis, because he believed that everyone had a belief system, perhaps hinting at the existence of secular religions. Religion certainly remained an essential feature of the sixteenth century cosmology. Gentili’s diatribes against cannibals, in part based on error of fact (error facti) and coeval reports, seemed to condone wars waged by the conquistadores. However, Gentili explicitly condemned both wars of conquest and assimilationist policies, arguing that sovereigns should not impose their religion on their subjects. He rejected the idea that any form of proselytization could be part of natural law. Moreover, he condemned the Spanish wars of conquest on many other grounds, but principally because they were driven by greed and Gentili openly criticized imperialism. Gentili also contributed to the development of the law of war, which he meaningfully articulated in the three distinct, yet connected components of ius ad bellum, ius in bello, and ius post bellum. His treatise contributed to limiting the just causes of war and humanizing warfare. For Gentili, the aim of war should be peace. He clearly delimited what he considered to be just grounds for waging war, and was adamant that wars waged for conquest could never be just. He considered humanitarian intervention a pure form of justice, that is, justice that helps those in need. Moreover, he highlighted the importance of moderation in the conduct of war. Gentili conceptualized preventive war as a tool of self-defence and an instrument to preserve the balance of power and to Perspective on International Law’, in vvaa, Alberico Gentili—L’Ordine Internazionale in un Mondo a Più Civiltà. Atti del Convegno Decima Giornata Gentiliana (Milan: Giuffrè 2004) 65–87 (emphasizing that civilizations ‘have influenced each other and have transformed themselves through these mutual influences’ and proposing an inter–civilization perspective of international law i.e. a perspective which pays attention not only to economic factors, but also to other factors including political, social, cultural, religious, and historical ones. According to Onuma, civilizations should dialogue; and an intercivilization approach to international law does not undermine its universality but highlights the plurality of the civilizazions which compose it.)

Conclusions

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prevent imperial powers from achieving hegemony. At the same time, his tenet that non-state actors could not be legitimate enemies could be subject to abuse, and ultimately reinforced state formation by quintessentially disqualifying such actors from the protection of the law of nations. The legitimacy of preventive wars remains controversial, as they often engender more problems than they seek to address. One might question why Gentili wrote a treatise on war, if his main concern was peace. However, in an age dominated by incessant warfare, religious strife, and violence, the idea that there was no right to make war was farfetched. The focus was rather on the reasons and modalities of warfare. Moreover, Gentili dedicated considerable attention to the respect of cultural diversity and religious freedom and, more generally, the law of peace. The third book of the De Iure Belli contained important aspects of treaty law, humanitarian law, and even transitional justice. Other Gentilian works also focus on distinct aspects of the law of peace, including the law of the sea and diplomatic law. Nonetheless, the gap between theory and practice is evident. All too often, early modern powers did not respect the laws of war and indiscriminately killed civilians. They waged war for ambition and greed, and to invade and plunder, but masked such motives behind the more palatable guise of a ‘just’ cause. Gentili condemned such unleashing of unlawful violence for imperial ambitions irrespective of any allegedly ‘just’ causes. Gentili also made an important contribution to the theory of the law of the sea. His conceptualization of the high sea as common (res communis) remains part and parcel of the current law of the sea. He was the first to conceptualize the territorial sea as a maritime extension of territorial sovereignty. In a­ ddition, his thoughts on the freedom of the sea and the territorial sea deeply influenced the so-called Battle of the Books. His reflection on piracy and privateering anticipated norms of the contemporary law of the sea. While Gentili conceptualized a range of freedoms as natural rights—­ including freedom of commerce, freedom of navigation, and freedom of ­movement—, he also subordinated such freedoms to considerable limitations and exceptions on the grounds of public morals, public health, and state security. While Gentili certainly cared about freedom of the sea, freedom of commerce, and freedom of movement, he cared about other issues more, such as resistance, national security, and self-defence. His theory contended that the law of nations could serve a variety of purposes, and he attempted to strike a balance between private and public interests, and between the reason of state and the interests of the international community. Gentili’s theory prioritized some governance interests over others; individual economic freedoms could be restricted to advance public interests such as public morals, public health, and national security.

500

Conclusions

In an age of political chaos, civil wars, wars of religion and conquest, Alberico Gentili examined the new reality of sovereign power, both internally and externally. He acknowledged that different states required different forms of government. He did not formulate a comprehensive theory of public law, focusing instead on absolute monarchy as a type of government that could be suitable to certain historical circumstances and in cases of necessity. Gentili believed the primary purpose of government to be the well-being of its people and the conservation of peace. Gentili’s respective theories on politics and the law of nations are often considered separately as distinct intellectual endeavours and yet they were interconnected and influenced each other. This reciprocal influence could either potentially moderate the blind spots of each theory or rather emphasize them. While Gentili affirmed the legitimacy of absolutism, at least in those constitutional contexts that faced instability and potential external aggressions, he postulated the primacy of the law of nations over domestic law. Gentili considered international law to be binding on states and to be founded on values common to the international community as a whole. This primacy could, and in fact did, moderate the absolutism of certain states. If a state committed gross violations of the law of nature, Gentili considered humanitarian intervention to be permissible under international law. However, external interventions could also be led by self-interest and do more harm than good. Gentili acknowledged the potential abuse of humanitarian intervention; however, provided that it was not followed by any territorial acquisition, he saw it as a pure form of justice to alleviate and put an end to human suffering. Gentili’s political theory had an impact on his theory of the law of nations. In fact, he originally translated the reason of state (ragion di stato) from political theory into international legal terms. Power, fear, and self-preservation were leitmotifs of his work and justified preventive war to preserve the state. In addition, the reason of state—including public safety, public morals, and public ­order—could justify limitations on natural rights such as freedom of religion, freedom of commerce, and freedom of movement. In consideration of the reason of state, Gentili translated the rebus sic stantibus clause from the ius commune into the law of nations, recognising the fundamental interest of polities to find a balance between domestic concerns and international law demands. However, the r­ eason of state could also be abused to justify gross violations of the law of nations, such as religious persecutions, pogroms, and privateering. Gentili was aware of the possible misuses of the reason of state and warned that religious persecutions could justify humanitarian intervention. He also warned that privateering was a form of robbery and that denying shelter to refugees without reason was in human.

Conclusions

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Like other Renaissance scholars, Gentili referred to a rich range of sources in his work, including historical, philosophical, and literary texts. Although he did not ‘invent’ international law, he certainly interpreted the sources in a creative way. Gentili relied on Roman law, the scholastic tradition, and humanism to create ‘a new and coherent system’.12 While the style he adopted was dialectical and emblematic of the Italian School, he also significantly borrowed from the French School and humanist tradition by referring to literature, history, and philosophy. Not only did humanism influence the overall structure of the Gentilian legal thought, but it also provided Gentili ‘with solutions to a great variety of topical questions that he discussed’.13 For example, Gentili translated the theory of the balance of power from Renaissance political theory into the language of the law of nations, recommending it as ‘the ideal basis of international order’.14 Gentili did not seek ‘absolute perfection’;15 his theory did not follow a ‘geometrical or mathematical model’, because he considered ‘mathematical reason’ (ratio mathematica) or aprioristic reasoning to be inappropriate for the ‘realm of law and justice’.16 Although in terms of form Gentili’s works belonged to  ‘primitive’ international legal theory, relying on an eclectic approach to ­authorities, in terms of substance he much more modern than his contemporaries.17 In fact, Gentili reflected on the emerging law of nations in a systematic way and on the basis of schemes based on practice. Gentili highlighted the importance of both theory and practice in the study of international law. He did not discuss the law of nations in the abstract. Rather, for Gentili, international law could only be understood on the basis of both theory and practice. His masterpiece, the De Iure Belli, constituted ‘a legal commentary on the events of the sixteenth century’, dealing with all the great questions of the time, from the illegitimacy of conquest to freedom of religion, and 12

Diego Panizza, ‘Political Theory and Jurisprudence in Gentili’s De Iure Belli: The Great Debate between Theological and Humanist Perspectives from Vitoria to Grotius’, in Pierre-Marie Dupuy and Vincent Chetail (eds) The Roots of International Law (Leiden: Brill 2014) 212. 13 Id. 212–213. 14 Id. 246. 15 Dana Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ (2006–7) 8 San Diego ilj 291–343, 334. 16 Gentili, De Iure Belli, Book i, Chapter i, p. 11 (‘I shall not give you demonstrations, such as you may get from a mathematician, but the persuasive arguments which this kind of treatise allows’.). 17 David Kennedy, ‘Primitive Legal Scholarship’ (1986) 27 Harvard ilj 1, 2–3 (identifying primitive (pre-1648), traditional (1648–1900) and modern (1900–1980) periods in international legal theory, on the basis of different ways of thinking about international law).

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Conclusions

from the freedom of the sea to the legitimacy of self-defence.18 His Advocatio Hispanica constituted a fascinating collection of early modern pieces of advocacy, attesting to Gentili’s successful legal practice before the High Court of Admiralty. Gentili’s legacy is undoubtedly ‘important and distinctive’.19 Not only did he play an important role in the history of international law by contributing to the development of the law of nations as an autonomous discipline, but he also helped to lay the foundations for contemporary international law. He addressed questions of war and peace, violence and humanity, tyranny and liberty, and empire and justice, envisioning an international legal order based on the fundamental values of unity, peace, freedom, humanity, and justice. Discussing the life and works of Alberico Gentili contributes to the broader ‘enquiry into the foundations of the law of nations’, and can also help to understand and address contemporary dilemmas.20 Questions about piracy and trade, oppression and freedom, and war and peace, as well as the governance of the commons remain as salient today as they were in Gentili’s times. Other topical issues include the (in)appropriateness of humanitarian intervention, preventive war, and how to deal with the violence of non-state actors, whether terrorists, pirates, or cyber-criminals.21 In the current climate, characterized by a pervasive sense of uncertainty and turmoil, Gentili’s writings feel especially relevant, particularly for their emphasis on the importance of peace, the safeguard of religious and cultural diversity, as well as the duty to protect and stand for human dignity and humanity’s law.22 Gentili’s contribution to the development of international law remains pertinent not because his solutions should necessarily be today’s solutions, but because illuminating his theory can help to understand past and current trajectories of international law, to foster critical thinking about the law and the legal tools at hand to address current challenges. 18 19 20 21 22

Thomas E. Holland, ‘Gentili, Alberico’, in Dictionary of National Biography, volume 21 (London: Smith, Elder, and Co. 1890) 124–127, 126. Benedict Kingsbury and Benjamin Straumann, ‘Introduction’, in Benedict Kingsbury and Benjamin Straumann (eds) The Roman Foundations of the Law of Nations (Oxford: oup 2010) 18. Randall Lesaffer, ‘International Law and Its History: The Story of an Unrequited Love’, in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi (eds.) Time, History, and International Law (Leiden: Brill 2007) 29. Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ 292. Alberico Gentili, De Iure Belli, Book I, Chapter 9 (emphasizing that ‘the fact that other peoples adopt different customs and traditions does not offend us’. ‘At qui in alia civitate sunt, ii si vivunt aliter; atque nos vivimus in civitate nostra, nos utique; non offendunt’.)

Conclusions

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Gentili’s work expresses the tension between the past and the future, continuity and change, realism and idealism. It is difficult, if not impossible, to place Gentili and his work into one category. Given their deliberate ambiguity and paradox, some of his works offer an unfinished jigsaw and give rise to diverging interpretations. Gentili lived during a transitional period of shifting global dynamics, and his theory of the law of nations constituted a bridge from the medieval way of thinking about international relations to the early modern law of nations. In some ways, he was the product of his time. His works contained some conservative elements; however, he also looked forward, initiating a dialogue that remains open. His work also presented liberal aspects and addressed questions that remain relevant today. Thus, despite being the product of a certain place and moment in history, Gentili’s work should be read by anyone interested not only in the past, but also in the present and the future of international law. By examining the history of international law in general, and Gentili’s work in particular, ‘we gain insight into what is fundamentally the continuing and lasting importance of international law in the international system’.23 Historical developments challenge and place current international law under pressure. However, as Gentili himself wrote, ‘because many act contrary to justice, justice is not therefore non-existent; and a law which many transgress is none the less a law’.24 Therefore, ‘justice is the end of our art’.25 23 Zartner Falstrom, ‘Can International Law Survive the 21st Century?’ 296. 24 Gentili, De Iure Belli, Book i, Chapter 1, p. 7. 25 Gentili, MS D’Orville 615, p. 286.

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Index absolutism 2–4, 28, 145, 251, 332, 344, 392–398, 403, 406–408, 412, 413, 417–419, 423, 437, 439, 441, 448, 448, 449, 485, 486, 500 Ad primum Maccabaeorum Disputatio 65, 86 admiralty court 47, 85–88, 304, 323 admiralty law 316, 323, 324 Advocatio Hispanica 10, 125, 143, 229, 278, 311, 324, 326, 463, 472, 502 Aeneid 128–131, 427, 485 Africa 279, 280, 326, 329, 332, 333, 348 Age of Exploration 273 Alciato, Andrea 100, 102, 103, 119, 305, 206 Alexander vi, Pope 370 Althusius, Johannes 21, 413, 414 ambassadors 45, 90, 128, 169–173, 175–178, 307, 430, 485 America 227, 228, 279, 326, 330, 332, 359, 369, 369 Amerindians 370 Ammirato, Scipione 394 analogy 103, 119, 281, 377 Anghie, Antony 161, 196, 290, 343, 371, 373 Anglicanism 62, 65, 73 Anglo-Spanish war 81, 129, 231, 260, 308–310, 316, 460 Annals 485 Anne, Queen 132–135 anticlericalism 24 Antigone 94, 128, 237, 485 Anti-Machiavel 405 antinomies 142–148, 388 Aquinas, Thomas 114, 182, 194, 203 arbitration 27, 30, 48, 155, 179, 180, 191, 203, 209, 212, 404, 476 arbre de batailles, L’ 196 See also Tree of Battles, The Ariosto, Ludovico 128 Aristotle 63, 114, 123 Armada portrait 338, 339 Arminians 53 Asia 227, 280, 310, 326, 332, 333, 337, 348 atheism 11, 374, 477 Augustine, St. 187, 194, 242, 249, 309, 468

Ayala, Balthasar de 200, 204, 208, 209, 306 Bacon, Sir Francis 13, 32, 259–261, 339, 423 Baïf, Lazare de 466 balance of power 18, 22, 26, 27, 38, 122, 153, 198, 199, 259, 262–266, 269, 270, 272, 278, 283, 289, 291, 292, 360, 375, 385, 413, 415, 433, 443, 481, 490–493, 498, 501 Baldus 50, 165, 284, 289, 306, 404 Barbaro, Ermolao 172 Battle of the Books 288, 322, 399 Battle of Lepanto 48 Baudelaire, François 125 Belli, Pierino 32, 200, 201, 203, 204, 229, 233, 237, 240, 350–352, 463, 464 Bentham, Jeremy 160 Benton, Lauren 279, 340 Bodin, Jean 32, 67, 207, 111, 121, 214, 21, 223, 246, 350, 351, 395, 399, 402, 410, 411, 414 body politic 397 Bonet, Honoré 196, 202, 203 Borch, Merete 368 Botero, Giovanni 32, 253, 394 Brett, Annabel 432 Brevísima Relación 347 brigands 204, 211, 212, 311, 354, 385 British Empire 309, 336 Bruno, Giordano 32, 63, 64, 335, 336, 341, 347 Buchanan, George 173, 435–437 Budé, Guillaume 100 Caesar, Sir Julius 276, 276, 307 Calvinism/Calvinists 62, 353 Campanella, Tommaso 158 cannibalism 162, 163, 225–228, 268, 356, 373, 374, 386, 445 canon law 61, 103, 104, 118, 119, 163, 164, 182, 183, 187, 190, 218, 247, 252, 256, 270, 321, 363, 367, 486 cargo 231, 232, 281, 282, 302, 304–307, 311, 312, 325 Carneades 384 cartography 273 Castelvetro, Giacomo 74 Castiglione, Giovan Battista 74

Index Catherine, Queen 465 Catholic Church/Catholicism 2, 3, 54, 62, 67, 87, 185, 250 causes of war 203, 208, 212–228, 265, 268, 386, 498 Charter of Virginia 371 chartered companies 337 children 111, 187, 237, 269, 361, 368, 400, 419, 444, 482, 485 China 279, 298, 348, 349, 446, 489, 492 churches 26, 65, 71, 48, 459 Cicero 52, 110, 114, 126, 221, 314, 361, 378, 383, 384, 391, 447, 467–469, 478 civil law 17, 53, 66–68, 75, 78, 80, 84, 91, 103, 106, 116–120, 122, 164–166, 193, 231, 271, 276, 284, 319–321, 364, 378, 383, 392, 404, 450 civil war 4, 71, 147, 173, 332, 346, 393, 395, 399, 406, 407, 424, 436 Clement viii, Pope 69 clash of civilizations 4, 272 Coke, Edward 310 colonialism 130, 186, 335, 360, 378, 408, 448, 490 colonies 260, 304, 335, 370 Commentatio ad Legem iii Codicis de Professoribus et Medicis 107, 137 Commentationes De Iure Belli 358 common good 154, 168, 184, 282, 98, 362, 378, 400–402, 406, 411, 412, 414, 418, 424, 425, 427, 435, 436, 438, 439, 448 common law 67, 225, 226, 243, 272, 355, 368, 379, 445 conquest 26, 95, 127, 130, 153, 162, 185, 214, 224, 226, 249, 250, 258, 268, 269, 273, 293, 300, 301, 328, 330, 334–336, 339–341, 347, 349, 355–357, 360, 362–364, 368, 369, 371, 373–376, 378, 380–386, 447, 449, 477, 484, 492, 498, 500, 501 Copernican theory 144, 388 Corpus Iuris Civilis 51, 52, 193 Council of Trent 60, 153 Counter-Reformation 43, 54, 151, 152, 157 Cujas, Jacques 100, 101, 107 cultural diversity 4, 18, 33, 43, 44, 90–93, 119, 158, 161–163, 248, 254, 266, 273, 292, 296, 334, 341–362, 444, 497–499, 502

559 cultural heritage 238 customs 54, 92, 95, 108, 112–114, 118, 120, 125, 139, 149, 166, 274, 282, 287, 298, 299, 324, 335, 344–347, 355, 429, 445, 482, 485 De Abusu Mendacii 138, 145 De Actoribus et Spectatoribus Fabularum non Notandis 138 De Armis Romanis 13, 18, 19, 23, 34, 42, 83, 143, 146, 266, 341, 348, 363, 378–382, 389, 405, 422, 431–433, 436, 442, 443, 447, 448, 467 De Bello 196 De Civitate Dei 309, 468 De Dominio Maris 285 De Iure Belli Commentatio Prima 81 De Iure Belli ac Pacis 21, 23, 454, 457, 462, 468, 469, 471–473, 476, 476, 484, 487–490, 494 De Iure Belli Libri Tres 83, 198 De Iure Praedae 22, 129, 453, 454, 464, 475, 476, 470, 484, 488 De Iure Regni apud Scotos 173 De Iuris Interpretibus 22, 77, 97–100, 104–107, 148 De Latinitate veterum Bibliorum versionis male accusata Disputatio 86 De Legationibus Libri Tres 42, 78, 79, 121, 122, 124, 125, 144, 149, 168–172, 176, 178, 191, 199, 262, 414, 416, 435, 460, 464, 469 De Linguarum Mixtura Disputatio Parergica 86, 97, 103 De Officiis 254 De Potestate Civili 182 De Re Militari et Bello Tractatus 201 De Verborum Significatione 23, 97, 102 Dee, John 285, 379 definition of war 198, 203, 473, 479, 495 democracy 435, 469 Denmark 284, 289 despotism 3, 381 Devereux, Robert 81–85 See also Earl of Essex dialogue 8, 14, 26, 3, 39, 69, 93, 143, 144, 197, 245, 346, 349, 379, 386, 387, 389, 503 Dialogue Concerning the Two Chief World Systems 144, 288 Digest 97, 100, 102, 110, 116, 148, 149, 159

560 diplomatic immunity 154, 155, 171, 175, 191, 495 diplomatic law 16, 17, 96, 167–179, 191, 450, 499 Discourses on Livy 464 discovery 17, 33, 153, 140, 364–366, 375, 376, 444, 476, 470, 493 Disputationum de Nuptiis Libri vii 86 dissoi logoi 143, 349, 387 domestic law 3, 42, 73, 90, 96, 112, 118, 123, 164, 165, 172, 193, 201, 241, 267, 268, 391, 407, 409, 418, 424, 428, 429, 434, 440, 441, 445, 450, 477, 497, 500 Doneau, Hugues 68, 100 Drake, Sir Francis 260, 308 Dudley, Sir Robert 42, 75, 81, 174 See also Earl of Leicester Du Maurier, Benjamin Aubéry 488 Dutch, the 80, 81, 88, 162, 224, 231, 250, 287, 304, 306, 309, 311, 325, 361, 386, 415, 480 Earl of Essex 85 See also Devereux, Robert Earl of Leicester 42, 75, 81, 174, 337 See also Dudley, Robert Elizabeth i, Queen 29, 32, 39, 42, 69, 72–75, 79, 80, 87, 132–125, 162, 174, 175, 222, 247, 250, 260, 276, 284, 308, 309, 316, 337, 339, 384 emperor 166, 179, 214, 253, 354, 279, 284, 309, 311, 368, 403, 422, 473 England 4, 21, 22, 29, 30, 41, 45, 55, 58, 61–63, 65, 72–78, 70, 81, 85, 87–90, 106, 107, 126, 129, 135–141, 147, 169, 173–175, 189, 197, 222, 229, 230, 232, 250, 260, 262, 266, 280, 285, 289, 306, 308, 309, 311, 313, 315, 333, 336, 337, 340, 365, 366, 369, 370, 384, 386, 388, 395, 396, 398, 406, 413, 415, 417, 431, 447, 464, 465, 470, 481 equality 9, 118, 162, 205, 206, 208, 258, 263, 350, 390, 418, 420, 432, 447, 490 equity 92, 112, 164, 241, 245, 247, 269, 375, 428, 443, 461, 481, 482, 486 Erasmus 238, 457, 458, 467, 469 Euripides 94, 237, 481, 485 Europe 4, 37, 44, 45, 47, 48, 50, 51, 54, 66, 69, 71–73, 80, 81, 86, 88, 90, 109, 113, 120, 129, 132, 145, 153, 163, 184, 185, 192, 196, 227,

Index 245, 250, 253, 149, 264–266, 283, 300, 308, 326, 331, 333, 337, 340, 347–349, 358, 360, 262, 368, 376, 383, 386, 392, 393, 455, 458, 480, 487, 490 European expansion 119, 147, 150, 279, 333, 334, 336, 340, 360, 362–376, 378, 446 faith 41, 45, 53, 54, 56–60, 62, 79, 88, 90, 112, 179, 184–187, 190, 195, 207, 235, 236, 241, 246, 248, 251–253, 259, 312, 370, 401, 405, 408, 417, 486, 487, 494 farmers 54, 101, 238, 368 fascism 27 feudal law 48, 50, 27, 284 Fitzmaurice, Malgosia 375 Florio, John 134 France 45, 79, 90, 105, 133, 222, 230, 235, 250, 253, 280, 452–453 Francis i, King 253 freedom of commerce 2, 18, 22, 27, 81, 88, 146, 153, 161, 224, 226, 231, 290–302, 348, 357, 360, 372, 385, 425, 440, 444–446, 476, 490, 492, 494, 499, 500 freedom of communication 81, 161, 224, 292–294, 299 freedom of the high seas 278–284, 28, 289, 293, 321, 327 freedom of movement 292, 294, 295, 299, 364, 371, 372, 376, 416, 499, 500 freedom of navigation 284, 185, 375, 444, 499 freedom of religion 2, 4, 43, 44, 56, 67, 89, 111, 163, 184, 185, 190, 198, 247–254, 345, 346, 370, 372, 376, 385, 390, 405, 406, 439, 500, 501 freedom of the seas 2, 31, 81, 129, 153, 277–280, 283, 288–292, 322, 325–327, 376, 454, 490 French style 17, 51, 54, 77, 95, 99, 100, 101, 104–108 Fulgosius, Raphaël 205, 206 Gager, William 135, 137 Galilei, Galileo 143, 144, 388 Garin, Eugenio 342 Germany 48, 59, 90, 150, 422 Gentili, Bartolo 48 Gentili, Matteo 48, 49, 57, 58, 68, 85

Index Gentili, Pancrazio 48, 57 Gentili, Scipione 30, 45, 49, 58, 68, 69, 85, 88, 90, 132, 218, 394, 403 Gentilian sonnets 95, 132–125 Gentillet, Innocent 465 Germany 46, 69, 73, 90, 250, 422 Gerusalemme Liberata 132, 237 Gilbert, Sir Humphrey 364, 365, 370 Grotius, Hugo 3, 9, 10, 13, 19, 21–23, 31, 32, 128–131, 155, 160, 185, 188, 207, 223, 288, 289, 340, 450–495 Guicciardini, Francesco 176, 177, 263, 336, 393, 435 Guide for the Perplexed, The 254 Hakluyt, Richard 13, 32, 262, 339, 340, 378 Hall, Joseph 86, 87 hegemony 4, 18,22, 82, 95, 181, 190, 198, 255, 261, 263, 265, 290, 291, 307, 308, 333, 375, 419, 446, 481, 493, 499 Henry iv, King 452 Henry viii, King 42, 66 Higgins, Rosalyn 454 high seas 280–282, 286, 288, 311, 325, 365, 475, 476 Hispanicae Advocationis Libri Duo 42, 85, 88 Hobbes, Thomas 12, 32, 368, 37, 392, 408, 423–430 Hoekstra, Kunch 127 Holland, Thomas Erskine 23, 155, 222, 325, 452, 488 honest war 8, 223, 225, 243, 357, 445, 449 Horace 214 Hotman, François 63, 64, 100, 101, 106, 170, 174, 175 Huguenots 74, 83, 222, 251 human beings 94, 110, 111, 116, 117, 120–122, 124, 126, 140, 151, 152, 157–159, 176, 180, 183, 190, 202, 206–209, 217, 219, 223, 225, 226, 228, 233–235, 237, 240, 247, 258, 265, 293, 294, 296, 343–359, 352, 353, 359, 362, 363, 366, 367, 370, 373, 374, 381, 398, 418, 419, 421, 423, 425–427, 427, 438, 441, 444, 445, 462, 278, 483, 493, 497 human law 183, 184, 247, 248, 399 humanism 22, 72, 92, 95, 97, 100, 107, 120, 122, 148, 152, 272, 501

561 humanist tradition 107, 116, 120, 456, 501 humanitarian law 32, 39, 109, 239, 269, 482, 499 humanitarian intervention 4, 8, 147, 162, 186, 198, 220, 222, 223, 225, 227, 228, 266, 268, 337, 356, 358, 361, 374, 375, 411–413, 415, 416, 419–421, 437, 438, 445, 449, 450, 465, 477, 498, 500, 502 humanities 4, 17, 39, 50, 51, 69, 91–150 idolatry 238, 227 illegitimacy of conquest 35, 501 immunity 54, 155, 171, 174, 175, 191, 238, 315, 378, 390, 485, 495 imperialism 125, 129, 131, 185, 186, 198, 248, 301, 360, 376, 379, 381, 383, 420, 429, 431–433, 440, 498 Index, the 3, 26, 36, 79, 144, 152 Indians 185, 220, 225–227, 301, 335, 347, 348, 353–355, 359, 366, 367, 371, 373, 446 Indigenous peoples 32, 39, 207, 226, 259, 301, 330, 331, 335, 347, 349, 355, 356, 361, 365, 366, 368, 369, 370, 375, 376, 444, 476, 498 injustice 18, 92, 180, 205, 206, 210, 213, 214, 217–219, 221, 228, 234, 243, 249, 265, 469, 481, 497 injustice of empire 329–339 Inquisition, the 41, 46, 56, 58, 68, 69, 79, 149, 305, 411, 470 Inter Caetera 279 international court 180, 203, 204, 209, 219 international disputes 27, 155, 179–181, 191, 197, 203, 300 international community 3, 15, 17, 18, 22, 81, 113, 115, 135, 154, 155, 157–159, 162, 163, 165, 178, 180, 185, 190, 212, 214, 243, 246, 262–264, 266, 277, 291, 292, 300, 325, 327, 328, 343–345, 356, 358, 364, 374, 376, 383, 385, 404, 409, 417–420, 423, 428, 439, 442, 451, 475–477, 486, 490, 497, 499, 500 interpretation 9, 11, 12, 35, 38, 51, 77, 92, 95, 96, 99, 100, 102–105, 112, 118, 139, 142, 145, 235, 241, 245, 249, 330, 334, 33, 383, 389, 432, 447 Ireland 222, 336, 378

562 Italian style 17, 28, 38, 50, 51, 77, 95, 96, 99, 100, 101, 104–108, 148, 149, 321 Italy 26, 41, 47, 48, 50, 59, 72, 75, 269, 375, 422, 470 ius in bello 18, 185, 196–198, 201–203, 211, 233–239, 267, 269, 379, 482, 493, 498 ius ad bellum 10, 18, 194, 197, 198, 201, 211, 233–235, 267, 379, 472, 493, 498 ius post bellum 10, 198, 201–203, 211, 239–247, 256, 267, 269, 472, 493, 498 ius divinum 94, 128, 163, 183, 184, 187, 247, 238, 404, 405, 409, 435, 427 ius gentium 10, 109, 154, 155, 159–167, 172, 189, 193, 200, 203, 351, 371, 383, 480 ius humanum 183, 247 James i 21, 29, 32, 39, 85, 87, 132–134, 285, 306, 309–311, 313, 315, 316, 368, 371, 395–397, 407, 410, 417, 436, 437, 439, 442 Japan 492 judges 6, 53, 208, 276, 299, 316, 317, 397 Julius ii, Pope 176 jurisdiction 2, 22, 53, 165, 171, 174, 175, 223, 279, 280, 282–286, 289, 291, 295, 309–311, 316, 322, 325, 327, 364, 367, 373, 386, 390, 413, 418, 419, 445, 475, 476, 479 just war 2, 119, 182, 194–198, 205–209, 211, 217, 220, 234, 241, 256, 258, 259, 268, 269, 271, 295, 325, 330, 369, 372–375, 381, 386, 420, 376, 479 Justinian 51, 102, 107, 114, 123, 149, 159, 193, 250 Kelley, Donald R. 377 Killigrew, Henry 83, 84 Kingsbury, Benedict 33, 184, 348, 358, 361, 378, 494 LaNoue, François de 253 Las Casas, Bartolomé de 32, 227, 335, 347, 354–357, 373, 476 Lauterpacht, Hirsch 223, 419 Lateran Pacts 26 Laudes Academiae Perusinae et Oxoniensis 86 law of human society 345 law of humanity 226, 237, 272, 355, 445

Index law of nature 81, 94, 110, 111, 116, 127, 128, 131, 161, 165, 166, 202, 209, 225, 226, 232, 243, 244, 252, 289, 293, 344, 345, 358, 368, 472, 404, 408, 409, 419, 425, 431, 445, 478 law of salvage 282 law of the sea 9, 10, 16, 18, 31–33, 39, 88, 109, 153, 167, 273–328, 450, 475, 499 law of war 9, 10, 16, 18, 32, 39, 42, 81, 82, 89, 96, 109, 116, 119, 120, 128, 147, 153, 164, 179, 185, 192–272, 274, 275, 322, 450, 457, 466, 471–473, 475, 482, 483, 487, 489, 494, 498 lawyers 5–8, 10, 13, 15, 16, 20, 21, 28, 33, 37, 44, 48, 51, 52, 60, 72–74, 90–92, 96–98, 100, 102, 105, 108, 121, 125, 130, 131, 143, 148, 149, 156–158, 168, 183, 184, 193, 199, 218, 248, 256, 266, 270, 272, 276, 289, 316, 321, 334, 343, 363, 366–391, 403, 418, 433, 443, 452, 457, 463, 389, 495, 497 Lectionis Virgilianae Variae Liber 86 legacy 4, 30, 33, 34, 39–41, 338, 471, 502 legal theory 181–188, 190, 254, 270, 271 Legalium Comitiorum Oxoniensium Actio 78 Legnano, Giovanni da 196, 199, 215, 216, 257, 463 Leicester, Robert 42, 75–77, 80, 81–83, 133, 174, 337 Lesaffer, Randall 7, 9, 245, 246 Leslie, John 175 letters of marque 260, 303, 305, 307, 311 Leviathan 423 lies 145–146 Lipsius, Justus 32, 87, 335 literature 10, 13–15, 17, 28, 20, 31, 83, 87, 92, 94, 95, 107, 115, 123, 127, 128, 131, 135, 141, 145, 148, 149, 172, 187, 215, 337, 353, 455, 486, 501 Livre des Faites d’Armes et de Chevalerie 196 Lloyd, Griffith 78, 106 Louis xiii, King 454 Low Countries 73, 80, 90, 169, 221, 250, 280, 315, 361, 438 Luther, Martin 54, 410 Maggi, Girolamo 170, 466, 467 Maimonides, Moses 253–254 manuscripts (mss) 15, 34, 37, 46, 79, 94, 85, 238, 318, 461, 470

Index mare clausum 284, 285, 288–290 Mare Liberum 129, 131, 288, 454, 475 Machiavelli, Niccolò 13, 32, 121, 139, 145, 176, 177, 261, 262, 283, 416, 426, 435, 464, 465, 486 maritime affairs 29, 44, 69, 82, 88, 89, 103, 186, 192, 228, 233, 260, 274, 275–279, 281, 282, 284, 287, 289–291, 301–304, 308, 308, 315–318, 322, 324, 327–329, 333, 337, 339, 360, 490–492, 499 Matthew, Tobie 75, 84 Medici, Cosimo de’ 399, 496, 416, 435 Medici, Lorenzo de’ 263, 264, 283, 375, 416 mercenaries 153, 325 merchants/traders 36, 54, 69, 74, 230–233, 237, 238, 247, 273–275, 277, 280, 292, 296–300, 306, 307, 311–314, 316, 339, 363, 372, 446, 476, 481, 492 Meron, Theodor 155, 189, 475, 483 Mendoza, Bernadino de 78, 174, 191, 315 Messaggiero, Il 172 military law 109, 163, 189, 196, 199–20, 466 military revolution 192, 491 Mill, John Stuart 476 Minnucci, Giovanni 33 Miscellanea 466, 467 Molina, Luis de 350 monarchy 87, 146, 158, 185, 290, 309, 396, 399, 401, 417, 416, 423, 433, 434, 500 Montaigne, Michel de 121 More, Thomas 219 Mundus Alter et Idem 87 municipal law 2, 94, 169, 409, 429 mutual obligations 220, 402 nation states 44, 104, 159, 205, 314, 412 nationalism 24 nationalist movement 26 natural heritage 237 natural law 17, 95, 110, 111, 116–118, 128, 129, 158–163, 172, 178, 182, 187, 189, 202, 214, 217, 220, 225, 245, 252, 292, 294, 297, 344, 345, 355, 360, 363, 364, 366, 368, 372–374, 494, 399, 402, 202, 405, 409, 411, 418, 421, 425, 428–430, 433, 438, 439, 441, 444, 446, 451, 459, 462, 473, 477, 478, 482, 494, 498

563 nemesis 243 Netherlands 23, 133, 148, 162, 222, 223, 265, 280, 290, 480, 487 neutrality law 10, 38, 109, 120, 163, 169, 198, 203, 228–233, 275, 277, 300, 315, 321–325, 327, 494 New World 227, 293, 445, 449, 340, 342, 354, 355, 364–366 occupation 301, 329, 337, 229, 357, 359, 361, 364, 365–369, 375, 376, 386, 445 Oration on the Dignity of Man 151 Orford, Anne 8, 13 Orlando Furioso 128, 237 Ottoman Empire 185, 192, 217, 253, 259, 312, 313, 347 Ovid 130 pacta sunt servanda 112, 246, 441, 486, 487 Pagden, Anthony 374, 382 Panizza, Diego 33, 262, 432, 434, 439 papal authority 55, 56, 152 Parliament 83, 395, 442 peace 310 peace treaties 61, 197, 202, 236, 240, 241, 244–246, 269, 386, 457 Peigne, Hester de 45, 83, 90 persecution 45, 55, 61, 71, 90, 145, 162, 185, 223, 295, 372, 444, 445 Petrelli, Lucrezia 48 Philip ii, King 80, 222, 250, 266, 280, 422 Philippica Quarta 468 philosophy 17, 28, 48, 63, 68, 92, 83, 119, 121–123, 125, 126, 131, 146, 148, 149, 163, 168, 183, 187, 181, 254, 271, 402, 428, 443, 469, 470, 501 Pico Della Mirandola, Giovanni 151 pirates 18, 115, 26, 268, 274, 277–280, 282, 284–286, 291, 301–315, 321–327, 356, 374, 454, 459, 476, 477, 479, 500, 502 Pisan, Christine de 196 Pius v, Pope 56 Plato 93, 118, 137, 140 Plautus 349, 427 pluralism 14, 96, 104, 214, 248, 251, 341, 355, 357, 358, 375, 393, 423, 446 poetry 17, 50, 92, 96, 123, 132, 134, 137, 139, 141, 146, 149, 150, 452

564 poisoning 202, 215, 235, 239 political theory 35, 39, 115, 122, 123, 198, 254, 263–267, 270, 333, 249, 391, 393, 398, 414–417, 427, 431, 433, 439, 500, 501 politics 4, 17, 29, 31, 51, 91, 108, 120, 133, 141, 146, 148, 153, 172, 247, 252, 259, 263, 266, 290, 313, 316, 317, 319, 328, 375, 276, 379, 381, 398, 413, 433, 438, 449, 452, 470, 491, 500 Pomponazzi, Pietro 49 Pope 14, 47, 55, 152, 156, 179, 180, 197, 208, 254, 280, 331, 364, 422 See also individual popes Portius, Simon 49 ports 224, 287, 298, 311, 491, 492 Portuguese 306, 307, 329, 330, 353, 354, 369, 454, 492 positive law 77, 110, 160, 189, 404, 430, 477, 478 precedents 15, 95, 110, 113, 114, 118, 121, 162, 166, 171, 323, 324, 345, 410, 438, 442, 482, 493, 495 preventive war 18, 81, 147, 198, 199, 216, 217, 254–262, 265, 266, 269–272, 460, 380, 385, 415, 440, 448, 449, 480, 500, 502 priests 197, 237 Prince, The 131, 144, 415, 416, 469 prisoners of war 161, 235, 237, 246, 350, 351, 352, 451, 477, 482, 489 privateering 18, 277, 178, 301–315, 317, 321–324, 326, 327, 454, 459, 479, 491, 494, 499, 500 proportionate action 234 proselytism 56, 57, 364, 369–371 Protestants 56, 63, 74, 79, 136, 407 Public health 22, 286–7, 327, 372, 426, 499 public law 69, 86, 291, 298, 390, 391, 396, 417, 432, 442, 500 Public morals 22, 139, 146, 298, 372, 425–6, 492, 499 Public order 251–2, 440 Pucci, Francesco 63–65, 348, 349 Puritans 62, 80, 135, 136, 138, 141, 407 Queen Anna’s New World of Words 133, 134 Rainolds, John 63, 65, 66, 80, 136–141 Raleigh, Sir Walter 337, 364, 365, 370

Index ratio humanitatis 410, 431, 438, 441 reason of state (ragion di stato) 107, 122, 130, 172, 214, 262, 298, 299, 313, 367, 372, 390, 393, 394, 405, 406, 410, 412, 413, 415–417, 424, 431, 434, 435, 438, 439, 440, 442, 446, 481, 500 rebus sic stantibus 112, 246, 247, 416, 487, 500 Reformation 17, 36, 43, 44, 46, 47, 54–56, 59, 62, 63, 65, 67, 73, 74, 89–91, 104, 141, 148, 151–153, 166, 169, 174, 197, 220, 247, 280, 392, 495 refugees 4, 63, 66, 68, 71–74, 129, 130, 153, 224, 295, 300, 372, 376, 411, 445, 488, 500 Regales Disputationes 19, 21, 86, 146, 389–392, 394–396, 399, 406, 413–418, 420, 428, 431, 432, 439–443, 488 religion 4, 11, 43, 60, 61, 71, 80, 81, 85, 135, 154, 158, 161, 162, 176, 184–188, 190, 192, 197, 213, 214, 218, 220, 222, 228, 238, 258, 260, 261, 264, 271, 272, 293, 298, 334, 336, 342, 345–347, 355, 357, 361, 362, 369, 370, 371, 402, 409, 418, 430, 444, 460, 474, 487, 492, 498, 500 Renaissance 4, 10, 44, 47, 55, 67, 68, 89, 97, 100–103, 120, 122, 123, 125, 126, 131, 137, 151–153, 166, 172, 176, 185, 186, 190, 197, 203, 237, 270, 343, 350, 386, 416, 435, 450, 457, 458, 462, 464, 470, 493, 501 Reparation 241, 242 reprisals 215, 216, 246, 307, 316, 487 republic 80, 102, 137, 142, 158, 176, 177, 235, 269, 281, 313, 384, 395, 406, 447, 464 Republic 387 République, La 394, 414–416, 437 res nullius 365, 366 res publica 378, 395 resistance 21, 90, 173, 190, 220, 230, 238, 249–251, 256, 329–331, 377, 382, 390, 395, 397, 406, 410, 414, 419, 420, 422, 434, 436, 437, 439, 440, 496, 499 restitution 128, 236, 305, 311, 314 rhetoric 50, 142, 146, 205, 222, 276, 388, 441 Ridolfi Plot 175 rights of man 118 rights of war 196, 269, 386 rights of women 118 Risorgimento 24

Index Roman Empire 18, 105, 146, 165, 166, 184, 193, 250, 266, 279, 284, 333, 363, 377–386, 422, 431, 447 Roman law 17, 21, 33, 50, 51, 66, 76–78, 96, 99, 101, 105, 117–119, 131, 164–166, 196, 211, 247, 256, 270, 281, 284, 314, 350, 355, 366, 376–380, 382, 400, 403, 501 royal prerogatives 372, 402–408, 424 Russia 280 Saxoferrato, Bartolus de 215 scholastic tradition 13, 197, 116, 119, 182, 203, 205, 239, 267, 501 school of Salamanca 119, 182, 219, 252, 254 Schröder, Peter 109, 420 Scotland 289, 396 Second World War 26 See also World War ii secularization 11, 17, 33, 67, 141, 155, 181, 231 Selden, John 131, 288, 289 self-defence 32, 39, 81, 145, 147, 181, 195, 199, 215–218, 250, 255–258, 262, 266, 269, 272, 287, 307, 335, 360, 369, 375, 405, 415, 420, 445, 446, 479–481, 498, 499, 502 Seneca 126 Sepúlveda, Juan Ginés de 375, 380 Shakespeare, William 121, 406, 407, 459 ships 438, 222, 230–233, 277, 281, 282, 286, 303, 304, 307, 309, 312, 313, 316, 353, 491, 492 Sidney, Sir Philip 75, 141, 169, 170, 337 siege warfare 236, 248, 483 Six Dialogues on the Interpreters of Law 50, 77, 96, 98, 105 Skinner, Quentin 13, 156 slavery 253, 334, 339, 340, 350–355, 467, 483, 484, 493 Smith, Sir Thomas 378 Socrates 146 soldiers 58, 81, 119, 194, 195, 237, 351 Solórzano y Pereira, Juan de 359 Sophocles 94, 128, 237, 485 Soto, Domingo de 82, 207, 370, 372 sources of law 91, 5, 104, 110, 282 sovereignty 21, 32, 33, 39, 90, 111, 130, 161, 162, 220–222, 229, 249, 268, 278, 279, 284–287, 293, 298, 301, 322, 325, 327,

565 331–333, 337–339, 341, 344, 347, 348, 355, 357, 359, 361, 366–369, 372, 376, 377, 389–402, 407, 412, 413, 415, 418, 420, 423, 424, 426, 428, 430–434, 438, 441–444, 448, 475, 476, 498, 499 Spain 4, 18, 22, 42, 47, 73, 76, 79–82, 87, 89, 129, 147, 162, 177, 185, 217, 221–223, 226, 229, 231, 232, 259, 260, 265, 266, 278–221, 287, 289, 304–306, 309–311, 315–318, 321, 353, 354, 361, 364, 365, 370, 375, 376, 382, 384, 415, 438, 452, 460, 480 Spaniards 88, 207, 222, 225, 226, 232, 259, 250, 259, 260, 287, 294, 301, 306, 311, 329, 335, 340, 353, 355, 370, 420, 422, 446, 484 Spanish Armada 81, 333, 339, 384 Spanish Empire 81, 214, 226, 228, 260, 265, 266, 283, 337, 340, 354, 358, 369, 383, 391, 445, 448 Speranza, Giuseppe 30 star fort 192–3 stars 64, 180, 346 state immunity 15, 378, 390 state of nature 32, 423, 426–428, 497 state security 22, 130, 131, 146, 224, 230, 240, 244, 258, 266, 269, 270, 272, 286, 295, 297, 301, 372, 415, 446, 492, 496 Stoics 158 Storia d’Italia 177 Straumann, Benjamin 378, 384 Suarez, Francisco 32, 182 Summa Theologica 204 Suppliants 94, 237, 485 surrender 119, 174, 235, 236, 382 Tacitus 32, 39, 447, 485 Tasso, Torquato 128, 132, 170, 172 terra nullius 32, 39, 301, 334, 359, 361, 368, 444, 476 territorial sea 18, 22, 71, 277, 283–291, 321–325, 327, 475, 491, 499 Teutonicus, Johannes 256 theatre 17, 92, 96, 123, 132, 135–141, 150 theory of universal jurisdiction 419 Throckmorton, Francis 174 Throckmorton Plot 174, 460 Thucydides 32, 39, 126, 263

566 torture 45, 90, 162, 242, 444 trade law 109 transnational religious movement 4 treaties 61, 67, 91, 110–112, 114, 124, 166, 197, 202, 218, 230, 233, 236, 240, 241, 244–247, 269, 273, 275, 348, 386, 405, 441, 451, 486, 487 treaty law 108, 110, 499 Treaty of London 87, 309, 315, 316 Treaty of Nonsuch 80, 487 Treaty of Tordesillas 279 Tree of Battles, The 195, 196 See also Arbre de Batailles, L’ True Law of Free Monarchies, The 395 Tuck, Richard 340 tyranny 80, 81, 92, 139, 145, 162, 219, 222, 225, 340, 345, 358, 373, 401, 406, 407, 409, 410, 419, 421, 439, 435–438, 444, 445, 447–449, 464, 481, 500, 502 Ulysses Redux 136 unity of humankind 133, 137, 158, 217, 220, 359, 411, 422 University of Oxford 2, 4, 23, 42, 43, 53, 75, 76, 90, 142, 450, 455 University of Perugia 22, 41, 45, 47, 50, 53, 76, 90, 100, 105, 142 University of Pisa 48 Unton, Henry 133 unwritten law 110 Vagts, Alfred 255 Valla, Lorenzo 99, 126, 127 Van Ittersum, Martina 468 Van der Molen, Gesina 30, 223

Index Van Oldenbarnevelt, Johan 452, 453 Vatican Archives 30, 31 Venice 176, 284, 312, 313 Vermigli, Pietro 49 Vettel, Emer de 205, 210, 455 victory 48, 196, 244, 246, 355, 369 Vindiciae contra Tyrannos 220, 223, 437 Virgil 86, 141, 295, 421 Vitoria, Francisco de 32, 159, 182, 207, 219, 227, 241, 247, 256, 293, 294, 350, 364–366, 370, 373, 474, 480, 483 Vollerthun, Ursula 427 Walsingham, Francis 75, 79, 80, 337 Walzer, Michael 222, 270 wars 207, 223–225, 260 wars of religion 4, 11, 43, 44, 71, 89, 188, 192, 197, 214, 218, 220, 228, 249, 251, 258, 264, 272, 293, 342, 362, 460, 500 Wars of the Romans, The 42, 83, 379–389 See also De Armis Romanis weapons 181, 193, 196, 235, 236, 242, 269 Welwood, William 285 West Indies 339, 340, 349 Wijffels, Alain 33, 104, 276, 320, 321 Wladislaw iii, King 253 women in war 197, 237, 238, 257, 269, 482, 483 World War ii 20 See also Second World War Zouche, Richard 109, 160 Zúñiga, Pedro de 87, 315