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17TH CENTURY ABSOLUTISM: RESPONSIBILITY AS THE KING’S FAULT It would amount to the very over-ambitiousness Brownlie warns of to try to pinpoint when exactly the concept of collective responsibility was no longer followed as a legal principle. According to the paradigm that replaced the collective responsibility principle, only fault of the sovereign himself could give rise to state responsibility. Alberico Gentili’s De Iure Belli Libiri Tres clearly retains thoughts of collective responsibility while introducing new ideas.99 Gentili discusses just reasons for making war, which he categorized into two groups: natural reasons, in which a privilege of nature (e.g., the freedom of commerce) is denied, and human reasons, in which war is waged because a man-made law has been breached.100 In principle, only acts of the sovereign or a nation give reason for just war. Gentili, Regius Professor of Civil Law at Oxford, took a very narrow view of what act was one of the state. Essentially only acts of parliament were acts of state, whereas he did not attribute actions of officials to the state.101 An act is public “when the state has deliberated upon it in legitimate assembly,” but not “where it has been taken by a magistrate or even by the entire populace in a different way as the result of some hasty resolution.”102 On the contrary, “the faults of individuals are not charged against a community, as every one knows . . . .”103 However, “the state, which knows because it has been warned, and which ought to prevent the misdeeds of its citizens, and through its jurisdiction can prevent them, will be at fault and guilty of a crime if it does not do so.”104 So far, Gentili seems to have broken completely with the medieval conception of collective responsibility and accepted the idea that only the sovereign himself can incur responsibility for the state. However, the notion of collective responsibility is still visible. Gentili argues that a reason for a war exists “in instances in which a private individual has done wrong and his sovereign or nation has failed to atone for his fault.”105 At another point in his work he contends that a state commits “a sin of omission . . . when a community fails to make good the delinquency of its individual members.”106 Effectively, Gentili created an obligation to punish or extradite an offender. However, the language reveals that his thought is still influenced by medieval legal conceptions. The community is in principle responsible for its member’s deed, but it can atone for the deed by taking actions against the individual perpetrator: “Satisfaction ought to have been made to the [injured state] for what had been done [by a private individual], either by inflicting punishment for the crime in question or by surrendering the one who had committed it; otherwise war could be made upon the whole state.”107 Thus, Gentili laid the academic foundation for the principle today referred to as “aut dedere aut judicare.”108 Grotius further distanced himself from the notion of collective responsibility. For Grotius, responsibility in international law meant responsibility of the sovereign as a natural person. He did not write that states, nations, or peoples were liable. Instead kings were legally responsible.109 To him, responsibility between private persons arose from fault.110 He transferred the same thought to the responsibility of the sovereign: “The liability of one for the acts of his servants without fault of his own does not belong to the law of nations . . . but to municipal law . . . . ”111 Accordingly, the concept of attribution is unknown to Grotius. Kings “are not liable if their soldiers or sailors have injured friends contrary to orders . . . .”112 The same seems to apply to other persons vested with public authority. Grotius considered a case in which privateers to whom rulers had issued letters of marque and reprisal “had seized the property of friends, had abandoned their native land and were wandering at sea without returning even when recalled . . . .”113 Grotius argued that the sovereigns were not liable for the acts themselves because, inter alia, “they themselves had not been the cause of the wrongful freebootery, and that they had not had any share in it . . . .”114 While the doctrine of attribution was unknown to him, he laid the foundation for the present concept of responsibility due to lack of due diligence. According to Grotius, the sovereign could become complicit in the crimes of individuals through the principles of patientia and receptus. 115 Under the principle of patientia, responsibility ensues if a community or its rulers know of a crime committed by a subject, but fail to prevent it if they can and should do so.116 With regard to his privateering example he argued, for instance, that the rulers were not responsible for renegade privateers because they “had also forbidden by laws that friends should be harmed; that they had not been bound by any law to require a bond . . . .”117 The principle of receptus requires the ruler either to punish or to extradite those who have taken refuge from justice in his realm if he wants to avoid responsibility for their crimes.118 The same duty applies where his subjects commit a crime against a foreign sovereign or subjects.119 Thus, in the privateering example, Grotius considered that the King was required to “punish the offenders as guilty, in case they could be found, or surrender them; [and] in addition [he] should see to it that the property of the freebooters should be rendered liable.”120 Grotius’s thoughts are reflected in the works of a number of other 17th century writers. Only five years after Grotius’s death, Richard Zouche, Gentili’s successor at Oxford, published his main work on international law under the title Juris et Judicii Fecialis, Sive Juris inter Gentes et Quaestionum de Eodem Explicatio.121 Zouche also regarded state responsibility to be the responsibility of the sovereign. He approved of Grotius’s opinion that the prince is not liable for the acts of his servants without fault of his own and cited the Dutch writer’s privateering example in support of this view.122 However, he seems to have rejected the aspect of “receptus” according to which crimes of refugees from justice are imputed to the sovereign. Zouche cited the example of the Macedonian King Perseus, who gave refuge to murderers of Roman vassals.123 When the Romans charged that the crimes were now imputable to Perseus, he replied that he considered the terms “unfair” but would abide by them if Rome also extradited Macedonian criminals.124 According to Zouche, Perseus exclaimed: “And in heaven’s name what avails it that exile should be open to a man, if the exile is nowhere to find a home?”125 Perseus expelled the perpetrators nevertheless, though Zouche did not clarify whether that was done due to a sense of legal obligation or purely out of political savvy.126 The latter is probable, since Zouche explicitly argued that there is no duty to extradite criminals to the place of the crime, unless a treaty exists.127 Samuel Pufendorf was also a professed follower of Grotius. According to Pufendorf, a state could not be held responsible for the acts of its citizens, “for no matter how much a state may threaten, there is always left to the will of citizens the natural liberty to [injure foreign states or nationals].”128 Citing Grotius, Pufendorf contended that a state was responsible only in so far as it was culpable of patientia or receptus. 129 According to Pufendorf, there is a legal presumption that the state can prevent a private injury “unless its lack [of fault to prevent the injury] be clearly established.”130 In this regard, his writing differs from Grotius. As will be discussed later, writers of the late 19th century created a similar presumption in order to justify rules of attribution of which neither Grotius nor Pufendorf knew. By taking into account the changed relationship between individual and state, the radical shift from the medieval system of collective responsibility to a system of fault-based responsibility of the king becomes understandable. The medieval state was a tribal unit, which had single human beings as members. On the contrary, Grotius and his successors were writing at the height of absolutism. All political power in these states was supposed to be vested in the sovereign. The Peace of Westphalia had laid the foundation for the modern territorial state.131 Yet, king and state were identical—“l’etat c’est moi ´ ” as Louis XIV of France supposedly quipped.132 Accordingly, Grotius, who dedicated De Jure Belli Ac Pacis to his patron, Louis XIII of France,133 found it easy to conceive of the area of law, which is today the law of state responsibility, as a law between natural persons. One may ask why the sovereign was not held responsible for all actions occurring in his territory, given that his power was deemed to be absolute. Two reasons account for that. One stems from the continued influence of the jus gentium. Writers in the 16th and 17th centuries regularly relied on the Roman sources of jus gentium to form their opinions.134 However, because these sources were concerned primarily with private law and not with international affairs, these authors quite indiscriminately applied concepts of Roman private law to seemingly analogous international situations.135 Grotius was no exception.