CIVIL LAW AND INTERNATIONAL LAW

The burgeoning nation-states of the sixteenth century required the development of a public international law (ius intergentes), as proposed by Vitoria. But the divisive effect of the Reformation on what had seemed to be a community of Christian peoples meant that such a law had to be separated from theology.

In 1584 the Spanish ambassador to the court of Queen Elizabeth, Don Bernadino de Mendoza, was shown to have been implicated in a plot to free Mary, Queen of Scots, from prison and make her Queen of England. The Privy Council wanted to punish Mendoza but consulted Gentili as to the legal position. He advised that the criminal immunity of ambassadors under the civil law prevented any such punishment and so Mendoza was merely deported. Soon afterwards Gentili published the first treatise specifically devoted to a topic of international law, De legationibus. In this work Gentili gives an account of ambassadorial prac­tice from Roman times and particularly of the Roman law of interna­tional relations, the ius fetiale. He discusses texts from the Corpus iuris but carefully distinguishes between the civil law and the law of nature and of nations. International law, he urged, is founded on the latter. In 1587 Queen Elizabeth made Gentili Regius Professor of Civil Law at Oxford and in the next few years he wrote several essays on the law of war, which were published together in Hanau in 1598 under the title De iure belli, lib. III. Gentili thus began the process of creating international law as a dis­tinct discipline out of civil law materials. The process was completed a generation later by Grotius.

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