Roman practice

of war.

the birth of our Saviour) Syracuse was besieged, and after
a long and vigorous defence fell. The Roman general,
Marcellus, was neither an ungenerous leader nor a cold-
blooded butcher; indeed, as Niebuhr asserts, his humanity
is generally set forth by the ancients as quite exemplary;
and yet Syracuse was given up to slaughter and pillage,
its most eminent citizens were butchered, the rest of the
inhabitants were driven out and compelled to tear the
grass from the earth to appease their hunger, many of
them were sold into slavery, all that was in the town
became the prize of the soldiery or of the state, and Rome
was enriched with the noble specimens of art that had
made Syracuse renowned in her day. Nor was this all,
Agrigentum suffered the same fate two years later, and
from having been once a peerless city, famed for its
magnificence and the opulence of its inhabitants, sunk
into ruin and utter insignificance; and in each case be it
noticed, treachery of the worst description achieved that
victory which the Roman arms alone could not.
taking of Syracuse," says Niebuhr, "is of the same date
as that of Capua, and both of these events may show us
how little the wars of the ancients are like those of our
own days'."

"The

Again, at a much later period, when the Emperor Augustus, towards the end of his reign, was consolidating his power and carrying the Roman eagles across the Weser and to the Elbe, a Roman general, famed for his humanity quite as much as for his courage and soldierly qualities, Nero Claudius Drusus, met the Germans in the field and not only defeated them with great slaughter, but laid waste whole districts, carried off the women and children into slavery, and hunted the men down like wild beasts.

Instances like these are enough to mark the fierce spirit of conquest and the barbarous international customs of the Romans without any additional exemplification such as is to be found in their haughty triumphs, in their gladiatorial shows, when wretched captives were "butchered to make a Roman holiday," in their cunning interpretation of treaties, in the barbarous doctrine of law

1 Lectures on Roman History, Vol. II., Bohn's Edition, 1852, p. 119.

of war.

19. maintained in Justinian's time', that prisoners of war Roman became slaves jure gentium, and that the consequence of practice capture, even in time of peace, was slavery and loss of property. "It is impossible," says Chancellor Kent, "to conceive of rules of national law more directly calculated to destroy all commercial intercourse and to maintain eternal enmity among nations." May we not add, it is equally impossible to conceive that modern rules of international law were derived from Rome?

But in the midst of this ferocity some redeeming features are visible; thus, for instance, prisoners of war might purchase their liberty, and were sold only when unransomed; hence in the course of time grew up the more humane custom of allowing the exchange of prisoners; captives were not maltreated by the Romans, as the Athenians were at Syracuse by Greek conquerors, always excepting kings and generals, who were, at least in Cicero's day, butchered without mercy, after having been led in triumph through the city. Nor were the inhabitants of the conquered country entirely deprived of their lands, some small portion was allowed to remain in their hands, on condition of their paying rent for the same as tenants (coloni).

Belli.

That there was too something like a law of war, in- The Jus tended to soften its fierceness, we learn from Sallust and Cicero. The first of these writers, in that admirable and finished piece of composition in which he tells the tale of the war against Jugurtha, is narrating the siege and capture of the Numidian town Capsa by Marius, and in describing the brutalities that ensued, the slaughter of the young men, the sale into slavery of the rest of the inhabitants, and the sack of the town, mentions them as deeds contrary to the law of war (contra jus belli), but forced on Marius by necessity, and pardonable on account of the untameable nature and faithless disposition of the inhabitants. The second, in his oration for Balbus', whilst enlarging upon the greatness, the eloquence, and the learn

3 Niebuhr, History of Rome, III. p. 252; Livy, x. 31, xxx. 43. 4 Idem dies et victoribus imperii et victis vitæ finem fecit. Cic. Verr. 11. 5, 30.

5 Livy, п. 41, VIII. 4; Cic. Verr. Act. 11. Lib. III. cap. 6.

6 Cap. xci.

7 Cap. vi.

The Jus
Belli.

ing of Cn. Pompey (who was counsel with him and Crassus in the case), speaks of him as eminently distinguished for an acquaintance with all the learning relating to the law of war and peace. Now from the passage here quoted, and from another one in the De Officiis', as well as from one or two places in the Digest and elsewhere, we gain some insight into the matter that was comprised in this part of the Roman law. Thus we find that one important portion of it was taken up, at least in old times, with the rules prescribed by the Fecials, many of whom, like Scævola, were as famed for their knowledge of law as for their high position in the state-that in other parts of it are given clear definitions of war and peace', and explanations of the condition of citizens during hostilities, of the position and rights of lawful enemies, of Postliminium, and of the regulations relating to military service; for if we are to place any credence in the story told by Cicero, of Cato the Elder, no person was justified in joining in a campaign and fighting with the troops engaged therein unless he was a miles, (a soldier bound by the sacramentum, or oath of obedience,) whilst the law relating to truces, foreign treaties, public conventions. and sponsions, formed no small or unimportant head of the Roman jus belli et pacis.

Such then, as far as light is thrown by the scattered fragments to be found in the Corpus Juris Civilis and the allusions dispersed through the classical authorities on this part of the jurisprudence of Rome-such are the vestiges of her law of peace and war; and whilst we see the trace of regular law in this as in other phases of Roman life, we see how easily and wilfully it was set at nought; and we find that, closely allied as modern codes and legal systems are to the old Roman laws, in all the various matter that is comprised within the limits of International Law the Roman Jus belli et pacis has left nothing on which the foundation of the modern system can be said to rest; nay, has left no vestige of any systematic treatise on the subject, save a bare notice of a lost work by Varro, a Liber Humanarum, vaguely alluded to by Aulus Gellius. Yet that the Roman law did exer

1 Lib. I. cap. ii.
3 De Off. 1. cap. ii.

2 D. 49. 15. 12. and 24; 50. 16. 118.
4 Aul. Gell. I. cap. 25.

cise an influence upon International Law we shall have The Jus occasion to notice a little way further on.]

Belli.

tional

ages.

The irruption of the northern tribes of Scythia and InternaGermany overturned all that was gained by the Roman Law in the law, annihilated every restraint, destroyed all sense of middle national obligation, and threw civil society for a time into the violence and confusion of the barbarous ages. Mankind seemed to be doomed 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, notwithstanding 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 Cardinal Richelieu, it was held to be the right of all nations to arrest strangers who came into the country without a safe conduct.

XXX.

1 Observations on the more ancient Statutes, Magna Charta, c.

[ Ward's History of the Law of Nations, Vol. 1. ch. 7, 8, 9; Vol. 1. p. 274 (note Ž). The reader will find in the Introduction

International

middle

ages.

The Emperor Charlemagne made distinguished efforts Lawin the to improve the condition of Europe, [by vigorous measures for the promotion of trade and commerce, by opening roads, establishing lighthouses, facilitating communications along the Danube and between that river and the Rhine,] by the introduction of order and by 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 establishment of chivalry, the negotiations and treaties forming the conventional law of Europe, the settlement of a scale of political rank and precedency, [to which must be added the crusades.]

Of all these causes of reformation, the most weight is to be attributed to the intimate alliance of the great Influence powers as one Christian community. The influence of tianity. Christianity was very efficient towards the introduction

of Chris

to Pardessus's admirable work on the maritime laws of Europe, Collection des lois Maritimes, Tome 1. from p. lx., a most interesting account of the state of commercial enterprise in the civilized world at the period here spoken of. He is also referred to the first volume of Duer, On Insurance, Lecture 11. p. 28, for information on the same subject. In the second and third volumes of Meyer's treatise, Sur l'esprit, origine, et progrès des Institutions Judiciaires, a clear and concise account of the judicial institutions of England, France, and Germany during the same period of time is given; and from Guizot's well-known Lectures on Civilization in Europe, especially in the 2nd, 4th, 7th, 8th, 9th, and 11th lectures; from Hallam's History of Europe during the Middle Ages, and from the Introduction to Robertson's History of Charles the Fifth, no small insight into the manners, customs, and social feelings that characterized Europe during the early part of the Middle Ages, can be obtained.]

[The benefits conferred by Charlemagne upon the opening civilization of Europe are concisely stated in Martin's Histoire de France, Tome I., in Pardessus's Collection des lois Maritimes, Tome I. Introduction, and in Sir Jas. Stephen's Lectures on French History, Vol. 1.]

2 Ward's History of the Law of Nations, Vol. 1. 322—328.