The influence of the Roman Law.

state with state. One result of such an interchange of
international relations soon happened, viz. the necessity
of some common system of law to settle the disputes that
might arise in the course of such intercourse.
An appeal
to the law therefore was made, and that appeal was met
as was natural, by resorting to the great written code
which had for so many years been the standard of autho-
rity throughout the greater part of the world, whilst
those who now set themselves to supply what was wanted
were men who knew of no system of positive Inter-
national Law, and had been brought up in the study
of the Roman Digest and Code. With the maxims and
dicta embodied in those books they were familiar, beyond
those books their learning did not reach, or rather dis-
dained to go, and therefore when the international dis-
putes that an active commercial spirit must engender
were referred to their arbitration they applied the legal
rules with which they were familiarized, and thus it came
to pass that one portion of International Law in its
infancy, and for many a long year to come, was dependent
on, and perhaps it may be said shackled by, the Roman
law; hence too we may account for the error of those who
attribute the increasing ardour in the pursuit of the study
of International Law to a revival of the study of Roman
law in the 12th century, consequent upon the discovery
of a copy of the Pandects at the siege of Amalfi. On
this exploded legend it is not necessary to dwell; it is
enough to assert that the influence of the Roman law was
never lost. Still it is an undoubted fact that the 12th
century was remarkable for an increased devotion to its
study, and that, to use Mr Dugald Stewart's words, "it
shot a strong and auspicious ray of intellectual light
across the surrounding darkness, improving men's tastes,
enlarging their views, and invigorating their reasoning
powers';" nay, doing more than that, directly tending to
accelerate the progress of order and civilization, not only
by ameliorating and systematizing legal science, but by
furnishing the parent stock on which were grafted those
branches of pure ethics and liberal politics which have
resulted in such compilations as those of Alberic Gentilis,
Grotius, and his successors.]

1 Introduction to the Encyclopædia Britannica.

[ On this subject generally the reader will find some valuable

Treaties.

The influence of treaties, conventions, and commercial On associations, was still more direct and visible in the formation of the great modern code of public law. They gave a new character to the law of nations, and rendered it more and more of a positive or instituted code. Commercial ordinances and conventions contributed greatly to improve and refine public law and the intercourse of nations, by protecting the persons and property of merchants in cases of shipwreck, and against piracy, and against seizure and arrest upon the breaking out of war. Auxiliary treaties were tolerated, by which one nation was allowed to be an enemy to a certain extent only. Thus, if, in time of peace, a defensive treaty had been made between one of the parties to a subsequent war and a third power, by which certain number of troops were to be furnished in case of war, a compliance with this engagement implicated the auxiliary as a party to the war, only so far as her contingent was concerned. The nations of Europe had advanced to this extent in diplomatic science as early as the beginning of the 13th century, exhibiting a refinement that was totally unknown to the ancients. Treaties of subsidy shewed also the progress of the law of nations. The troops of one nation, to a definite extent, could be hired for the service of one of the belligerents, without affording ground for hostility with the community which supplied the specific aid'. The rights of commerce began to be regarded as under the protection of the law of nations, and Queen Elizabeth complained of the Spaniards, that they had prohibited commerce in the Indian seas, contrary to that law.

cerning,

The efforts that were made, upon the revival of com- Law conmerce, to suppress piracy, and protect shipwrecked pro- shipperty, shew a returning sense of the value and of the wrecks.

information in the "Discours Préliminaire" to De Hautefeuille's work, Sur les Droits et Devoirs des Nations neutres; and in the 4th and 9th chapters of Maine's Ancient Law he will see an admirable account of the function of the Law of nature in giving birth to modern International Law, and the influence of the Roman Law upon that Law.]

[In the 1st Vol. of Anderson, On Commerce, will be found a treaty between Edward III. and certain towns in Flanders (cited from Rymer's Fadera, Vol. v. p. 38) for carrying on trade, and for other purposes stipulated therein, notwithstanding their earl was at war with England.]

ship

wrecks.

Law as to obligations of national justice. The case of shipwrecks may be cited, and dwelt upon for a moment, as a particular and strong instance of the feeble beginnings, the slow and interrupted progress, and final and triumphant success, of the principles of public right. Valin' imputes the barbarous custom of plundering shipwrecked property, not merely to the ordinary cupidity for gain, but to a more particular and peculiar cause. The earliest navigators were almost all pirates, against whose depredations the inhabitants of the coasts were constantly armed and whenever they had the misfortune to be shipwrecked, they were pursued with a vindictive spirit, and deemed just objects of punishment. The practice of plundering shipwrecks [is attributed by Valin, in accordance with the opinion of Selden, though against that of Loccenius, to the Rhodians, from whom it is said to have passed to the Romans; but Pardessus, (to whom every inquirer into the history and progress of commerce, and of the laws by which it has been developed and protected, owes a debt of gratitude,) shews that the cruel custom of plundering the shipwrecked stranger, the douλnтov yévos of the more polished Greeks, is not attributable to any particular nation, nor to any special cause. During the period when the semi-barbarous tribes of the world were in a chronic state of war, and when piracy was an honourable employment, it was not likely that more mercy should be shewn to the shipwrecked stranger than to others who needed help and pity; but in process of time the custom of pillaging, and even of killing the vavayov έévov, which from the testimony of Xenophon (Anab. VII. c. 5), and Herodotus (IV. § 103), we know was in practice, was changed, and more humanity was exhibited towards the victims of storms and tempests. To lay the sin of plundering wrecks upon the Rhodians rather than on any other nation of antiquity is neither warranted by history nor even by the passage in Selden; that the sin did exist is certain, and that the efforts to restrain it were very feeble and gradual and mixed with much positive injustice is certain also.] The goods cast ashore first belonged to the fortunate occupant, and then they were considered as belonging to the state. This change from private to public appropriation

1 Com. sur Ord. Tom. II. Livre Iv. Titre ix.

ship

of the property rendered a returning sense of right and Law as to duty more natural and easy. [The Emperor Constantine, wrecks. or Antonine (for there is some doubt as to which it was)], had the honour of being the first to renounce the claim to shipwrecked property in favour of the rightful owner'. But the inhuman customs on this subject were too deeply rooted to be eradicated by the wisdom and vigilance of the Roman lawgivers. The legislation in favour of the unfortunate was disregarded by succeeding emperors, and when the empire itself was overturned by the northern barbarians, the laws of humanity were swept away in the tempest, and the continual depredations of the Saxons and Normans induced the inhabitants of the western coasts of Europe to treat all navigators who were thrown by the perils of the sea upon their shores as pirates, and to punish them as such, without inquiry or discrimination.

The Emperor Andronicus Comnenus, who reigned at Constantinople in 1183, made great efforts to repress this inhuman practice. His edict was worthy of the highest praise, but it ceased to be put in execution after his death. Pillage had become an inveterate moral pestilence. It required something more effectual than papal bulls, and the excommunication of the church, to stop the evil. The revival of commerce, and with it a sense of the value of order, commercial ordinances, and particular conventions and treaties between sovereigns, contributed gradually to suppress this criminal practice, by rendering the regula tions on that subject a branch of the public law of nations. Valin says, it was reserved to the ordinances of Lewis XIV. to put the finishing stroke towards the extinction of this species of piracy, by declaring that shipwrecked persons and property were placed under the special protection and safeguard of the crown, and the punishment of death without hope of pardon, was pronounced against the guilty.

1 Vinnius in Inst. 2. 1. 47, note 5, [and see also Gothofred's Note upon the Code, 11. 5. 1.]

[2 This edict will be found in Loccenius, De Jure Maritimo, Lib. 1. c. 7, n. 14, and in Pardessus, Collection des lois Maritimes, Tome I. ch. 5.]

3 [On this subject the reader may consult Pardessus, Collection des lois Maritimes, Tome 1. ch. 1; Selden, De Dominio Maris, Lib. 1. ch. 25; Macculloch's Commercial Dictionary, Article, "Wrecks;" and in the following texts he will see the legislation upon this subject between the 6th and 15th centuries:

Treatment of prisoners.

Admis

sion of

dors.

The progress of moderation and humanity in the treatment of prisoners is to be imputed to the influence of conventional law, establishing a general and indiscriminate exchange of prisoners, rank for rank, and giving protection to cartel ships for that purpose. It is a practice of no very ancient introduction among the states of Europe, and was not of very familiar use in the age of Grotius, succeeding the older practice of ransom. From the extracts which Dr Robinson gives from Bellus, who was a judge or assessor in the armies of Charles V. and Philip II., he concludes, that no practice so general, and so favourable to the conduct of prisoners, as a public exchange in time of war, was known in the 16th century'. The private interest of the captor in his prisoner continued through that period; and the practice of ransom, founded on the right of property claimed by the captor, succeeded to the Greek and Roman practice of killing prisoners, or selling them as slaves.

The custom of admitting resident ministers at each ambassa sovereign's court was another important improvement in the security and facility of national intercourse; and this led to the settlement of a great question, which was very frequently discussed in the 15th and 16th centuries, concerning the inviolability of ambassadors. It came at last to be a definite principle of public law, that ambassadors were exempted from all local jurisdiction, civil and criminal; though Lord Coke considered the law in his day to be, that if an ambassador committed any crime which was contra jus gentium, he lost his privilege and dignity as an ambassador, being punishable as any other private alien,

The Roman Law is contained in these passages of the Digest: D. 7. 7. 7; 12. 4. 2; 12. 41. 1. 8 and 1. 44; 47. 2. 43. 11; 47. 9. 3; as well as in the Code, 11. 5, and in the Compilation, called the Jus Navale Rhodiorum, Lib. I. cap. 9-51. The Græco-Roman Law will be found in the Basilica, Lib. LIII. Tit. iii. Both of these last-named compilations are published in the 1st Vol. of Pardessus's Collection des lois Maritimes.

The Law in vogue in the time of the Crusades appears in the Liber Assisarum, cap. 41; whilst in the Rôles d'Oleron, Arts. 2, 4, and 36-44, the Consolato del Mare, cap. 183 and 207, the Statutes of Wisby, Lib. III. Part iii. ch. 4, and in several of the Hanseatic Statutes, all of which sets of laws are published in the 1st and 2nd Vols. of Pardessus's Collection, appears the legislation on wrecks between the 12th and 15th centuries.]

13 Rob. Rep. Appendix A. p. 2.