« iepriekšējāTurpināt »
Law of na
tural justice, on the subject of national duty. It retained strong traces of ancient rudeness, from the want of the Christian system of morals, and the civilizing restraints of commerce. We find the barbarous doctrine still asserted, that prisoners of war became slaves jure gentium,a and even in respect to foreign nations with whom the Romans were at peace, but had no particular alliance, it is laid down in the Digests, that whoever passed from one country to the other became immediately a slave. Nam si cum gente aliqua neque amicitiam, neque hospitium, neque fœdus amicitiæ causa factum habemus: hi hostes quidem non sunt. Quod autem eo nostro ad eos pervenit, illorum fit: et liber homo noster ab eis captus, servus fit, et eorum. Idemque si ab illis ad nos aliquid perveniat. It is impossible to conceive of a rule of national law more directly calculated to destroy all commercial intercourse, and to maintain eternal enmity between nations.
The irruption of the northern tribes of Scythia and Germany, overturned all that was gained by the Roman law, annihilated every restraint, and all sense of national obligation, and civil society relapsed into the violence and confutions in the sion of the barbarous Mankind seemed to be doomed ages. to live once more in constant distrust or hostility, and to regard a stranger and an enemy as almost the same. Piracy, rapine, and ferocious warfare, deformed the annals of Europe. The manners of nations were barbarous, and their maxims of war cruel. Slavery was considered as a lawful consequence of captivity. Mr. Barrington has cited the laws of the Wisigoths, Saxons, Sicilians, and Bavarians, as restraining, by the severest penalties, the plunder of shipwrecked goods, and the abuse of shipwrecked seamen, and as extending the rights of hospitality to strangers. But, not
a Inst. 1.3, 4. Dig. lib. 1. tit. 5. sec. 5. and lib. 49. tit. 15, ch. 12. sec. 1.
b Dig. 49. 15. 5. 2.
c Observations on the Statutes, chiefly the more ancient, pa. 22.
withstanding a few efforts of this kind to introduce order and justice, and though municipal law had undergone great improvement, the law of nations remained in the rudest and most uncultivated state, down to the period of the 16th century. In many instances, shipwrecked strangers were made prisoners and sold as slaves, without exciting any complaint, or offending any public sense of justice. Numerous cases occurred of acts of the grossest perfidy and cruelty towards strangers and enemies. Prisoners were put to death for their gallantry and brave defence in war. There was no reliance upon the word and honour of men in power. Reprisals and private war were in constant activity. Instances were frequent of the violation of embassies, of the murder of hostages, the imprisonment of guests, and the killing of heralds. The victor in war had his option in dealing with his prisoners, either to put them to death, or reduce them to slavery, or exact an exorbitant ransom for their deliverance. So late as the time of the Cardinal Richlieu, it was held to be the right of all nations to arrest strangers who came into the country without a safe conduct.a
The Emperor Charlemagne made distinguished efforts to improve the condition of Europe, by the introduction of order, and the propagation of Christianity; and we have cheering examples, during the darkness of the middle ages, of some recognition of public law, by means of alliances, and the submission of disputes to the arbitrament of a neutral power. Mr. Ward enumerates five institutions, existing about the period of the eleventh century, which made a deep impression upon Europe, and contributed in a very essential degree to improve the law of nations. These institutions were, the feudal system, the concurrence of Europe in one form of religious worship and government, the
a Ward's History of the Law of Nations, ch. 7, 8,9.
establishment of chivalry, the negotiations and treaties forming the conventional law of Europe, and the settlement of a scale of political rank and precedency.
Of all these causes of reformation, the most weight is to be attributed to the intimate alliance of the great powers as one Christian community. The influence of Christiani
Christianity. ty was very efficient towards the introduction of a better and more enlightened sense of right and justice among the governments of Europe. It taught the duty of benevolence to strangers, of humanity to the vanquished, of the obligation of good faith, and of the sin of murder, revenge, and rapacity. The history of Europe, during the early periods of modern history, abounds with interesting and strong cases, to show the authority of the church over turbulent princes and fierce warriors, and the effect of that authority in meliorating manners, checking violence, and introducing a system of morals which inculcated peace, moderation and justice. The church had its councils or convocations of the clergy, which formed the nations professing Christianity into a connexion resembling a federal alliance, and those councils sometimes settled the titles and claims of princes, and regulated the temporal affairs of the Christian powers. The confederacy of the Christian nations was bound together by a sense of common duty and interest in respect to the rest of mankind. It became a general principle of belief and action, that it was not only a right, but a duty, to reduce to obedience, for the sake of conversion, every people who professed a religious faith different from their own. To make war upon infidels was, for many ages, a conspicuous part of European public law; and this gross perversion of the doctrines and spirit of Christianity, had at least one propitious effect upon the Christian powers, inasmuch as it led to the cultivation of peace and union between them, and to a more free and civilized intercourse. The notion that it was lawful to invade and subdue Mahometan and Pagan countries, continued very long to sway the minds of men; and it was not until after the age of Grotius and Bacon, that
this error was entirely eradicated. Lord Coke held, that an alliance for mutual defence was unlawful between Christians and Turks; and Grotius was very cautious as to the admission of the lawfulness of alliances with infidels, and he had no doubt that all Christian nations were bound to assist one another against the attacks of infidels. Even Lord Bacone thought it a matter of so much doubt, as to propound it seriously as a question, whether a war with infidels was not first in order of dignity, and to be preferred to all other just temporal quarrels; and whether a war with infidels might not be undertaken merely for the propagation of the Christian faith, without other cause of hostility.
The influence of chivalry had a very beneficial effect upon of Chivalry. the laws of war. It introduced declarations of war by heralds, and to attack an enemy by surprise was deemed cowardly and dishonourable. It dictated humane treatment to the vanquished, courtesy to enemies, and the virtues of fidelity, honour, and magnanimity in every species of warfare.
The introduction and study of the civil law must also of the Civil have contributed largely to more correct and liberal views of the rights and duties of nations. It was impossible that such a refined and wise system of municipal and ethical jurisprudence as the Roman law, could have been taught in universities and schools, and illustrated by a succession of eminent civilians, who were worthy of being associated with the Roman sages, without at the same time producing a great effect upon the public mind. The very existence of such a grand monument of the embodied wisdom of the ancients, when once it became to be known and examined, must have shed a broad stream of light upon the feudal institutions, and the public councils of the European nations. We accordingly find that the rules of the civil law were applied to the government of national rights, and they have
a 1 Inst. 155.
b Grotius, b. 2. c. 15. sec. 11, 12.
c Bacon's Works, vol. iii. 472. 492.
Law concorning shipwrecks.
contributed very materially to the erection of the modern international law of Europe. From the 13th to the 16th century, all controversies between nations were adjudged by the rules of the civil law.
The influence of treaties, conventions, and commercial associations, had a still more direct and visible influence 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 a 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, and such a refinement was totally unknown to the ancients. Treaties of subsidy showed 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.
The efforts that were made, upon the revival of commerce, to suppress piracy, and protect shipwrecked property, show a returning sense of the value, and of the obligations of national justice. The case of shipwrecks may be cited, and dwelt upon for a moment, as a particular and strong instance.