Alberico Gentili

Italian legal scholar and politician

• Born: January 14, 1552
• Birthplace: Castello di San Ginesio, Ancona, Papal States (now in Italy)
• Died: June 19, 1608
• Place of death: London, England

Gentili brought the study of international law into modern times by arguing that all the states of Europe belonged to one community of law, by applying the principles of morality to international law and particularly to war, and by separating international law from its religious basis and placing it instead on a basis of practicality.

Early Life

Alberico Gentili (ahl-BEHR-ee-koh gehn-TEE-lee) was born in an ancient town in the march of Ancona in the Apennines facing the Adriatic Sea. One of seven children born to Matteo, a physician, and Lucretia, Alberico was educated in law at the University of Perugia, where one of the most celebrated teachers was Rinaldo Rodolfini. Shortly after being graduated on September 22, 1572, with a doctor’s degree in civil law, Alberico was elected a judge at Ascoli and then in 1575 elected to the office of advocate in San Ginesio.

In 1579, the family was broken up by Matteo’s and Alberico’s religious tendencies toward Protestantism and their flight in order to escape the Inquisition, with the youngest son, Scipio, to Laibach in Carniola, Austria, where Protestantism was still tolerated. Unwilling to leave, Lucretia stayed behind with the remainder of her children. Thereafter, an additional split in the family occurred when Matteo, remaining for a time in Laibach, sent Alberico to England and Scipio to universities in Germany and the Low Countries. Not long afterward, finding that Austrian policy toward Protestantism was changing, Matteo followed his son to England and died there in 1602. Scipio eventually found fame as a scholar, poet, jurist, and professor of law at Altdorf, where he died in 1616.

Life’s Work

Reaching England in August of 1580, after brief stays in Tübingen and Heidelberg, Alberico Gentili met, through the small congregation of Italian Protestants in London, a number of distinguished people, including Robert Dudley, earl of Leicester , who had been chancellor of the University of Oxford since 1564. From Dudley, Gentili obtained a letter of recommendation to the authorities of the university describing Gentili as one who, “being forced to leave his country for religion, is desirous to be incorporated into your University, and to bestow some time in reading and other exercise of his profession there.”

Granted small amounts of money for his support, he took up residence in Oxford, receiving his degree on March 6, 1581, and thereupon devoted himself to teaching and writing. His activities in writing were so extensive as to produce until the end of his life at least one book each year, beginning with De iuris interpretibus dialogi sex (1582; six dialogues), which was dedicated to the earl of Leicester.

When the Spanish ambassador to England was found plotting against Queen Elizabeth I in 1584, Gentili and John Hotoman were consulted by the Crown as to the course of action to be followed by the English government. Largely on their advice, the ambassador was treated with civility and permitted to leave the country unharmed. Gentili’s research into the field of foreign ministries led to the publication of his De legationibus libri tres (1585; Three Books on Embassies , 1924).

In the autumn of 1586, through the influence of the queen’s close adviser Sir Francis Walsingham, Gentili accompanied Horatio Pallavicino as ambassador to the elector of Saxony in Wittenberg, but returned to England in 1587 to be appointed regius professor at Oxford, on June 8, 1587. The experience in Germany elevated further his interest in international law and led to the publication of his major work: De iure belli libri tres (1588-1589; The Three Books on the Law of War , 1931), a work in three volumes that appeared again in a thorough revision in 1599. In 1589, he married Hester de Peigni, and the couple eventually had five children.

In the meantime, Gentili’s knowledge was being called more and more into service for actual trial work before the courts in London, where he came to reside. He was admitted in 1600 to Gray’s Inn (one of England’s Inns of Court), leaving his duties at the University of Oxford more frequently to a deputy. In 1605, Gentili was nominated by the Spanish ambassador to England, Don Petrus de Zunica, with permission of King James I, to be advocate to the Spanish embassy of Philip III of Spain and his successors. England was neutral in the struggle then occurring in the Spanish effort to quell the Dutch Protestant revolt, with the result that many cases involving the British merchant marine came before the English Court of Admiralty. Gentili’s notes on these cases were collected and published by his brother Scipio in 1613, five years after Gentili’s death, under the title Hispanicae advocationis libri duo (The Two Books of the Pleas of a Spanish Advocate , 1921).

Gentili suffered obscurity in the light of the work of Dutch legal scholar and Humanist Hugo Grotius (1583-1645) until Gentili’s achievement was largely uncovered by Thomas E. Holland of the University of Oxford in 1874; much of what is known of Gentili is the result of Holland’s original research. Holland encountered two forces in opposition to the resurrection of Gentili’s reputation: the first originating in the Roman Catholic Church, which had centuries before placed Gentili’s name in the index of heretics whose writings were not to be read, and the second, among the Dutch, who carefully guarded any diminution in the reputation of their compatriot Hugo Grotius. Not until 1877 was a monument to Gentili placed in St. Helen’s Church, Bishopsgate, where he was buried, and a new edition of The Three Books on the Law of War was published. In 1908, a statue of Gentili was unveiled in his native town.

Of the many books that Gentili wrote, he is best known for Three Books on Embassies, The Three Books on the Law of War, and The Two Books of the Pleas of a Spanish Advocate. Although he dealt with the practicalities of modern life, divorcing his ideas from the mere dogmas of any specific religion, as the basis for his thought, he infused morality into the foundation of international behavior. In this respect, he departed from the concepts of Niccolò Machiavelli’s Il principe (wr. 1513, pb. 1532; The Prince , 1640) in that he viewed good faith, proper behavior among nations, honesty, and respect as the truly effective qualities, whether in war or peace, among the community of nations. Drawing on his scholarship and experience, Gentili, in the first book of Three Books on Embassies, gives his definition of legations and their history. The second book discusses the rights and immunities of ambassadors in foreign lands, and the third book discusses the behavior and conduct of ambassadors and ministers to foreign countries.

In Gentili’s opinion, war is publicorum armorum justa contentio (the community clothed in arms for a just cause). As to the definition of the term “just,” Gentili said that justice expresses not only law but also what is from all perspectives righteous, as exemplified by self-defense, the defense of others, necessity, and the vindication of natural and legal rights. He believed in honest diplomacy, even among warring enemies, and eschewed verbal trickery. He approved strategy but not perfidy, for example. He also analyzed the treatment of prisoners of war, the taking of hostages, the burial of the dead after battle, behavior toward noncombatants, and the rights of noncombatants. In The Two Books of the Pleas of a Spanish Advocate, Gentili displays his concern for the neutral rights of nonbelligerents. Acting as counsel for Catholic Spain against the Protestant Netherlands, in determining the claimed right of the Netherlands to capture Spanish prizes in English waters, Gentili presented a strong statement of territorial sovereignty, jurisdiction of sovereignties over adjacent seas, and the rights of both belligerents and neutrals.

In his last will, made in London, Gentili expressed the desire that he be buried as closely as possible to his father and that all his unpublished manuscripts, except those referring to the Spanish advocacy, be destroyed, as he considered the remainder of his manuscripts too unfinished to be preserved. The first request was carried out, and he was buried beside his father in the churchyard of St. Helen’s, Bishopsgate. The destruction of the manuscripts apparently did not take place, because twenty-eight volumes came into the possession of a book collector in Amsterdam and were thereafter purchased from his successors in 1804 for the Bodleian Library in Oxford, where they remain.

Significance

Gentili has been heralded as the first knowledgeable author of modern international law and the first clearly to define its subject matter. Francis Bacon insisted on an empirical or inductive method of achieving a true science, as distinct from the deductive, a method that Gentili maintained is the true method of determining international law: that is, to examine the behavior and situation of states, and the changes of society, and, by a process of induction, to modify, cancel, and adjust international law to suit the specific circumstances as newly discovered facts and situations become available.

He conceived of nations as a community of states; he believed in freedom of the seas and in the freedom of intercourse among nations; he insisted that the monarch or leader of a nation exists for the state, not the state for the monarch; and he opposed war generally but recognized that, if war must take place, it must be conducted with honor insofar as war and honor can coexist

In addition to international law, Gentili gave attention in his writings to other controversies of his time, including the limits of sovereign power, the problem of remarriage, the union of England and Scotland, the respective jurisdictions of canon and civil law, and the use of stage plays for the airing of legal and moral questions.

Bibliography

Gentili, Alberico. De iure belli libri tres. 2 vols. Oxford, England: Clarendon Press, 1933. Reprint. Buffalo, N.Y.: W. S. Hein, 1995. The first volume is a photocopy of the original edition in Latin; the second volume contains the English translation by John C. Rolfe and a superb introduction by Coleman Phillipson. This introduction deals with the precursors of Gentili; the place, life, and works of Gentili; his position in law; and his method and conception of law.

Gentili, Alberico. De legationibus libri tres. 2 vols. New York: Oxford University Press, 1924. Reprint. New York: Legal Classics Library, 1997. The first volume is a photocopy of the Latin edition of 1594; the second volume contains the translation by Gordon J. Laing, with an introduction by Ernest Nys dealing with a good concise presentation of the life of Gentili.

Grewe, Wilhelm G. The Epochs of International Law. Translated by Michael Byers. Rev. ed. New York: Walter de Gruyter, 2000. Survey of international law, epoch by epoch, from the Middle Ages through the end of the twentieth century. Includes illustrations, bibliographic references, and index.

Holland, Thomas Erskine. Studies in International Law. Oxford, England: Clarendon Press, 1898. The article on Gentili was delivered at All Souls College, November 7, 1874, and after some additions by Holland, was translated into Italian by Count Aurelio Saffi, thereby reviving both an interest in and a knowledge of Gentili. The first part of the article gives a substantial chronology of Gentili’s life; the second part gives an assessment of his work in international law. Includes an appendix with information on the background of the Gentili family, the controversy over the dates of Gentili’s birth and death, his will, his published and unpublished writings, and the revived interest in the subject as a result of the lecture.

Meron, Theodor. War Crimes Law Comes of Age: Essays. New York: Oxford University Press, 1998. Survey of international law and the history of the concept of war crimes, beginning with the Middle Ages and the Renaissance. Includes bibliographic references and index.

Phillipson, Coleman. “Albericus Gentilis.” In Great Jurists of the World, edited by Sir John MacDonnell. Vol. 2. Boston: Little, Brown, 1914. Reprint. South Hackensack, N.J.: Rothman Reprints, 1968. Part of the Continental Legal History series. A brief summary of the facts of Gentili’s life, with extensive analysis of his three main works.

Simmonds, K. R. “Some English Precursors of Hugo Grotius.” Transactions of the Grotius Society 43 (1962): 143-157. This is a paper originally read before the Grotius Society on May 1, 1957, dealing with the English precursors of Hugo Grotius in international law, including Gentili. Contains only a brief presentation of Gentili’s life and place in the field of international law.

Walker, Thomas Alfred. A History of the Law of Nations: From the Earliest Times to the Peace of Westphalia, 1648. Vol. 1. Cambridge, England: Cambridge University Press, 1899. Reprint. Buffalo, N.Y.: W. S. Hein, 1982. Presents a few facts of Gentili’s life but is largely concerned with the content of The Three Books on the Law of War.