it stopped, as far as it could, private wars; it opposed the barbarity of selling Christians as slaves, and introduced a somewhat milder treatment of captives taken in war; and it lent its sanction to all moral obligations. But it was neither pure enough nor strong enough to introduce a mild treatment of infidels, nor did it prevent various kinds of inhumanity, in peace as well as war, between Christians.

The government of the church by a monarch, who gradually gained great political power, was the source of the most striking peculiarities of the public law of the medieval period. The presence in Europe of an ultimate interpreter in religious and moral questions doubtless did great good as well as harm. Every important question of politics had a bearing on religion, which could bring it up for examination and settlement before the Pope; and the very vagueness of the theory of papal interference aided its success on favorable occasions. In a gloss to the canon law (c. 2, Can. xv., qu. 6), it is said of the dispensing power of the Roman See, that "contra jus naturale Papa potest dispensare, dum tamen non contra Evangelium;" and the great Pope Innocent III. said: "Nos secundum plenitudinem potestatis de jure possumus supra jus dispensare." (C. 4, x., De Concessione Præbendæ.) This dispensing power extended to oaths. The oath of fealty was the moral cement of society, the last cord which bound the vassal to the suzerain. But the Popes asserted the right of releasing vassals from their oaths of allegiance, on the plea that the suzerain, who was disobedient or hostile to the church, might be proceeded against even to excommunication, and an outlaw as to church rights ought not to rule over Christians. In the disputes of kings, the weaker party often appealed to the Pope, and thus gave him an opportunity to arbitrate or command. Treaties confirmed by word of honor and solemn oath were open to the papal revision. Word might be broken with heretics, as the enemies of Christ. In the noted case of Huss, who had received a safe conduct, the Council of Constance resolved that it was lawful for a competent ecclesiastical judge to proceed against and

punish obstinate heretics, "etiamsi de salvo conductu confisi ad locum venerint judicii, alias non venturi."1

The neighborhood of dreaded enemies of the Christian religion of encroaching Mohammedan powers — brought up the question whether compacts could be made with infidels. This could not be avoided, if the two religions should have any intercourse, as in Spain; but the lawfulness of treaties, especially of alliances, with them was denied. Fulk, Archbishop of Rheims, told Charles the Simple that there was no difference between becoming the ally of pagans and abandoning God for the worship of idols. (Grotius II., xv., 11, § 3.) And this feeling, that, whilst leagues of peaceful intercourse could be entered into with infidels, alliances with them were forbidden by Christian law, long remained; and was strengthened, no doubt, by the apprehension that thus the scandal would arise of Christians leagued with unbelievers against fellow-Christians.2

Many cruelties handed down from barbarous times held their ground through the mediaval period. Thus strangers were capriciously treated, and had scarcely any rights. (Comp. § 67.) After this period was over, Cardinal Richelieu showed its influence by avowing the right of arresting all strangers who came into the kingdom without safe conducts; and a number of examples occur in those times of illustrious strangers, like Cœur de Lion in 1192, who when thrown by some accident on Christian shores were kept in captivity until they were ransomed. Cruelties in war, of which we speak below in §§ 134, 135, although often prevented by the genius of Christianity, were still common enough. Captives were held for a ransom, or even sold. The serf felt the full severity of war.3

1 Gieseler, Kirchengesch., ii., part 4, 419.

2 Sir E. Coke condemns alliances with infidels in a passage of his 4th Institute cited by Ward, and his contemporary Grotius (ubi supra) does not like them.

8 See Ward's History, passim.

§ 9.

Names given

science.

Our science was called first by Zouch (professor at Oxford), in his "Jus Feciale," 1650, jus inter gentes. Its common English appellation formerly was, the law of nations. Since Bentham led the way, it has been called international law. A distinction of no great value has been set up between these two terms, according to which the former relates to the historical character or origin of the law, and the latter to its jurisdiction or application. They will be used by us as equivalents.

Not the

gentium.

The law of nations, jus inter gentes, is not to be confounded with the jus gentium of the Romans. This term denoted the principles and usages of law common to all same as jus nations, that is, practically, to all nations known to the Romans, as contrasted with what was peculiar to the jus civile, the law of Rome itself. Gaius says (“Inst.," i., § 1), “quod naturalis ratio inter omnes homines constituit, id apud omnes populos peræque custoditur, vocaturque jus gentium, quasi quo omnes gentes utuntur." The common usages of nations may run through all the fields of law, and so will include some rules of the international code. But the two evidently cover different ground, and the civil law never distinctly contemplates a law of nations in the modern sense.

§ 10.

naturale or

It is important, again, not to confound international law with natural law,-or, as it has been variously called, Different jus naturale, lex naturalis, and lex naturæ. Jus nat- from jus urale is the product of natural reason, and ought, lex naturæ. since men are alike in their sense of justice, to be everywhere substantially the same. According to Gaius and most other Roman lawyers, it is not different from jus gentium, as already defined. But Ulpian and others make a distinction between the two, which has passed into the Institutes of Justinian, without, however, influencing Roman law. To them jus naturale

1 Reddie, quoted by Hurd, Law of Freedom and Bondage, i., 46.

is that in which men and animals agree, the law stamped on free animate beings. Savigny thus explains their views:1 "There was a time, we may conceive, when men acknowledged only those relations which are common to man and beast, when they followed natural affections and impulses in all freedom. This was the reign of jus naturale. To this succeeded an age of founding states, when slavery, private property, and obligations were introduced, and introduced everywhere alike. This was the jus gentium. At last jus was developed in each state in its own peculiar way by modifying old institutions, or setting up new ones."

Definition of

by Grotius.

§ 11.

Modern writers have retained the term in an altered signification. Grotius (I., 1, § 10) defines it to be "dicjus naturale tatum rectæ rationis, indicans actui alicui, ex ejus convenientia aut disconvenientia cum ipsa natura rationali ac sociali, inesse moralem turpitudinem aut necessitatem moralem, ac consequenter ab auctore naturæ Deo aut vetari aut præcipi."

Grotius thus uses the term to include morality and jus, as the foundation of jus voluntarium, that is, as the standard to which law civil or international ought to be conformed. existing law may differ widely from it.

$12.

But

Puffendorf's work on the law of nature and nations differs, to his disadvantage, from that of Grotius, in making little account of usage and voluntary jus. According to Grotius, the

1 System des heut. Röm. Rechts, i., 415.

2 That is, a morally binding force. Hartenstein, in his valuable essay on the work of Grotius (Abhandl. der Leipz. Gesellsch., i., 504, 509), reduces the uses made by Grotius of the term jus naturale to these three heads: (1.) To the general obligation to satisfy moral claims, especially the more definite claims of jus and equity. (2.) To the claims or rights which grow out of the nature of man, and would be acknowledged in an incorrupt society, were there no organized state. (3.) To certain effects and results of acts of human will. Thus, Grotius would say, man's will originated property, but when once property was introduced, jus naturale indicated that it is wrong for one to take what is another's without his consent.

1

jus naturale

tional law.

law of nations is "jus illud, quod interpopulos plures aut populorum rectores intercedit, moribus et pacto tacito introductum." Puffendorf, as Mr. Wildman says, "entirely denies Puffendorf the authority of general usage; and his doctrine, put- confounds ting aside the mass of words with which he has incum- and interuabered it, amounts to this: that the rules of abstract propriety, resting merely on unauthorized speculations, and applied to international transactions, constitute international law, and acquire no additional authority, when by the usage of nations they have been generally received and approved of. So that the law of nations, according to Puffendorf, ends, where according to Grotius it begins."

Thus Puffendorf commits the faults of failing to distinguish sufficiently between natural justice and the law of nations; of spinning the web of a system out of his own brain, as if he were the legislator for the world; and of neglecting to inform us what the world actually holds to be the law by which nations regulate their intercourse. Probably he was led into this by not discriminating clearly between the jus gentium of the Romans and the jus inter gentes of modern publicists.

§ 13.

Positive

method in

internation

al law. Its

deficiencies.

An opposite course to this is to exhibit international law in its positive form, as it lies in the practice and understanding of a certain group of nations, either without reference to any jural or moral standard, or with recourse to moral considerations only now and then in disputed cases. This is a safe method, but narrow; and almost takes away scientific character from the subject-matter to which it is applied. What would municipal law be worth, if it did not point back to eternal right, and if by tracing it to its source it might not be made purer and more righteous? If international law were not made up of rules for which reasons could be given, satisfactory to man's intellectual and moral nature; if it were not built on principles of right; it would be even less of a science than is the code which governs the actions of polite society.

i Institutes of International Law, i. 28