[10] Consolato Del Mare, c 285, quoted in Grotius op. cit. iii, 145.
[11] Wheaton, History of the Law of Nations, p. 66.
[PART 2. THE NEW INTERNATIONAL LAW.]
During the sixteenth century the idea of the individuality of territorial states reached material realization. A school of international law writers arose who endeavored to determine the relations which ought to exist between these states. A new recognition was given to the state's exclusive authority over matters of war and prize. The old Roman laws of JusGentium and JusNaturale were combined with the observed practices of nations to build up rules conformable to the new situation.
Machiavelli writing in 1513[1] distinctly recognized the independence of the territorial state.[2] He conceived of the Prince as being under obligations to no superior, either human or divine.[3] He recognized the state as the sole agency which could authorize war and the capture of prize but recommended liberality in distributing the produce of prize and booty as a policy calculated to encourage loyalty and perseverance in the soldiers,[4] a theory well in harmony with his idea of human nature, which considered man as actuated solely by the hope of personal gain.[5]
Conrad Brunus in 1548 also voiced the theory of state supremacy in war. "The war making power resides in the supreme authority of the state to whom it exclusively belongs to authorize hostilities against other nations by a solemn declaration."[6]
Francis de Victoria held that captured moveables become by the law of nations property of the captors but pillage should be only permitted when necessary for reducing the enemy.[7]
Balthazar Ayala took an even more advanced stand. He pointed out that according to the laws of Spain, lands, houses and ships of war taken from the enemy become the property of the crown and as to other articles the right of the captors to appropriate them as booty is restrained by that of the state to regulate the division reserving to itself a certain share and distributing the rest according to the respective rank of the captors. In regard to naval captures he says: