rules also which they unite to impose on their subjects, respectively, for the treatment of one another, are included here, as being in the end rules of action for the states themselves. Here notice, extending 1. That as Christian states are now controllers of opinion among men, their views of law have begun to spread beyond the bounds of Christendom, as into Turkey, China, and Japan. beyond Christen dom, but not observed towards savages. 2. The definition cannot justly be widened to include the law which governs Christian states in their intercourse with savage or half-civilized tribes; or even with nations on a higher level, but lying outside of their forms of civilization. In general, towards such nations, they have acted on the principle that there is no common bond of obligation between them and the other parties, observing only so much of international law as suited their policy or sense of right at the time. Especially towards savage tribes they have often acted with flagrant selfishness, as if they feared no retribution from a weaker party, or were beyond the reach of public opinion. (Comp. § 143 and § 223.) 3. The rules of action agreed upon by two or more Christian states, but not by all, or the most of them, form no part of international law; although they often illustrate it, and often pave the way for the admission of new modifications of it. 4. Nations, it is conceded by all, have obligations towards foreigners who are not constituent parts of any nation, or, at least, of any nation by which the law of nations is acknowledged. The consideration of the rights or moral claims of such persons belongs to international law, not as the system of rules observed between nations, but as involving obligations which all nations, or all Christian nations, acknowledge. (§ 146.) § 6. The way in which positive international law becomes such shows that it must be progressive and somewhat uncertain. Right, as Heffter remarks,1 is either guaranteed, under the 1 Völkerrecht, § 2. al law. Its nature. protection and force of a competent power (as we see it in the state), or free, that is, the individual power or person Genesis of must protect and preserve it for himself. The law of internationnations is of this latter kind. First of all, the sin- voluntary gle state sets up for itself its views of right against other states. If it gives up its isolation, it freely forms in intercourse with other states a common right or law, from which now it can no longer set itself free, without offering up, or at least endangering, its peaceful relations, and even its exist ence. Thus a law of nations can grow up only by the consent of the parties to it. It is, therefore, more a product of human freedom than the municipal law of a particular state. Its natural progress is to start from those provisions which are necessary in conducting political and commercial intercourse, while it leaves untouched, for a time, many usages which are contrary to humanity and morality; until, with the advance of civilization, the sway of moral ideas becomes stronger. It grows into a system of tolerable justice and humanity after, perhaps long after, municipal legislation has worked itself clear of many faults and errors. For although growth than both branches of law have the same foundation of justice, and although a state, like Rome, for example, with an advanced system of internal laws, ought to have its views of international obligations purified; yet, as states have diverse interests and opinions, it takes time before a seeming interest can be given up, even after right is acknowledged to be on the other side; and it takes time to bring the views of nations to a common standard.1 Of later state law. 1 A state in the lower grade of civilization, like a savage, becomes conscious of its separate existence in the act of resistance, or of defending that existence. Such self-preservation on the part of the individual arouses, it may be, no better feeling than that of independence and self-reliance; in the state it helps the members to feel their unity and dependence, and the priceless value of the state itself. Hence war is a moral teacher: opposition to external force is an aid to the highest civic virtues. But if this were all there could be no recognition of obligations towards foreigners, no community of nations, in short, no world. These conceptions grow up in man, from the necessity of recognizing rules of intercourse, and intercourse is itself a natural necessity from the physical ordinances of God. Self-protection § 7. Why this Christian states. The same causes which have enabled Christian states to reach a higher point of civilization than any other, law arose in have made them the first to elaborate a system of international law. These causes have been principally: (1) the high moral standard of the religion which they in common professed, a religion which cultivates alike the sentiments of justice and of humanity; (2) the inheritance which came to them of philosophy and legal science from the classical states of antiquity, and especially the system of Roman law; and (3) a close historical connection since the times of the Roman empire, favoring the spread of common ideas. Thus the same religious and jural views, and a similar historical development, give rise to a community of nations, where it is comparatively easy for common usages to grow up. No such common feeling, but quite the opposite, existed between them and their Mohammedan neighbors; and hence the latter were long shut out from the pale of their international law. International law else where quite imperfect. Greece and § 8. In other parts and ages of the world laws have grown up, in groups of nations, for the regulation of their conduct to each other. But these have all been partial, and were never constructed into a science. The classic states of antiquity had, at the best, a very simple Rome. and imperfect body of such rules and usages. Ambassadors and heralds had a sacred character; truces and treaties were acknowledged to be obligatory; war was usually begun with an open declaration, and, perhaps, with solemn formalities; but when once begun, it was waged with little rule or check. The Greeks were favorably situated for the development of a Hellenic international law; for, like the Christian states of modern times, they formed a Greece. and intercourse are thus the two sources of international law; they make it necessary, and the conception in man of justice, of rights and obligations, must follow, because he has a moral nature. circle of communities, standing at nearly the same level of civilization, and in religion, as well as in historical traditions, connected with one another. And, in fact, the rudiments of such a law appear in the course of their history. They generally gave quarter, allowed the ransom of prisoners, respected trophies, and consented to truces for the burial of the dead. They acted on the principle of the balance of power against dangerous and ambitious state belonging to their circle; they had a usage bearing some resemblance to the modern consular system; and they sometimes by treaties or perpetual leagues, as the Amphictyonic, secured the existence of the parties concerned, or even softened the severities of war. But towards barbarians they acted almost without rule, and among themselves permitted the most flagrant acts of inhumanity. Rome. The Romans had less of international law than the Greeks, and were less scrupulous, if we except their observance, in their earlier days, of the fecial rules, which accorded so well with the formality of their religious character. The reason of this appears to be that, after they became masters of Italy, many of the nations they encountered were of another type than their own, and for the most part in decay or half civilized, and not in any respect their equals. Towards such enemies they could act as their convenience dictated. that they It has been said that the Greeks had no international law at all; and the same arguments would deny the ex- No reason istence of such a law among the Romans, in their for saying earliest times.2 There seems to be no sufficient had no inground for this opinion. Neither nation may have law. reached an accurate notion of an international law, but they ternational 1 Thus the old Amphictyonic league contemplated an armed intervention for the security of any member threatened with utter ruin by another; and no state belonging to the league was to be deprived in war of the use of its fountain water. Eschines, De Falsa Legatione, § 115; Bekk. ; p. 279, Taylor. 2 A controversy was carried on in regard to the Greeks between Wachsmuth and Heffter, the former affirming the existence of a law of nations among them, the latter denying it. Comp. Osenbrüggen, De Jure Belli et Pacis (Leipz., 1836), p. 4, seq. had usages corresponding to those which nations under such a law now observe; and if these usages were placed under the sanction of religion, to secure for them a more thorough observance, that religious character no more takes them out of the category of laws regulating conduct towards other states, than the same religious sanction given to the duty of hospitality took this duty out of the list of moral precepts. All morality and jus are sanctioned by religions which have in them a moral element, and sometimes the forms of religion grow on to them so as to give them a religious aspect. The fecial law in Rome's earlier days must have been the common property of all the Latin cities, a living law under the protection of the higher powers, introduced to prevent by its formalities a state of irregular war. (Comp. § 120.) Internation Middle Ages. But in mediæval Europe, also, the law of nations for a time scarcely rose above the level which it reached in al law in the Greece and Rome. Especially was this the case during the period of dissolution and reconstruction, and so long afterwards as national existence was kept down by the spirit of feudalism. The principal causes which modified it were, together with this of feudalism, the spirit of chivalry, the influence of Christianity, and the centralized government of the Christian church. Feudalism, by breaking up society into portions slightly united together, made the progress of better usages and the triumph of right over will an up hill work; it increased the tendency to private war and sanctioned the right of resistance to the central government; and it involved the presence on the soil of a large mass of men who had almost no rights. But the spirit of chivalry, by encouraging high sentiments of honor and fidelity, gave a moral sanction to the observance of treaties, and rendered fraud and unfair advantages over a rival unworthy of the true knight; it threw a lustre over the defense of the weak and unprotected; and it cultivated humane feelings towards each other among the rulers of society. The spirit of Christianity, also, which, indeed, was at work in the origination of chivalry itself, — did much to facilitate intercourse among men of a common faith; - |