Interna tional Law. Its bind ing force. Law of Nations Greece. system rendered perfect by the application of one to the other,] and therefore to separate national morality from International Law proper would be as productive of harm as to encourage the suggestion that governments are not as strictly bound by the obligations of truth, justice, and humanity in relation to other powers, as they are in the management of their own local concerns. International Law, so far as it is in accordance with principles of justice, truth, and humanity, is equally binding in every age, and upon all mankind. But the Christian nations of Europe, and their descendants across the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and, above all, by the brighter light, the more certain truths, and the more definite sanction, which Christianity has communicated to the ethical jurisprudence of the ancients, have established a system of law peculiar to themselves. They form together a community of nations, united by religion, manners, morals, humanity, and science, and united also by the mutual advantages of commercial intercourse, by the habit of forming alliances and treaties with each other, of interchanging ambassadors, and of studying and recognising the same writers and systems of public law. After devoting the present chapter to a cursory view of the history of International Law, we shall enter upon the examination of the European and American code of International Law, and endeavour to collect, with accuracy, its leading principles, and to discuss their practical details. This law, as understood by the European world, and in ancient by America, is the offspring of modern times. The most refined states among the ancients seem to have had no conception of the moral obligations of justice and humanity between nations, and there was no such thing in existence as the science of International Law. [In ancient Greece, from the earliest to the latest period of its history, we find nothing to lead us to the conclusion that the intercourse of state with state, whether in peace or war, was regulated by any systematic legal rules. In peace, or rather in the short intervals of actual cessation from hostilities, there was as little desire among the neighbouring states of which Greece was composed to under Nations. stand each other's institutions and laws as there was Law of thought of recognising the existence of any of those ge- Ancient neral or universal rights and obligations that have been Greece. found so convenient in modern times for facilitating the international relations of the civilized world; whilst war was disfigured by a ferocity and an absence of legal restraint that are happily unknown to later days. In the so-called heroic ages, we know from Homer the extent to which piracy was carried, and the fact that the pirate's business had very little taint of dishonour attaching to it. Thucydides too speaks of the reign of Minos as an era in civilization, when by his efforts the Egean was cleared from the swarm of pirates that infested its shores. Nor was piracy confined to those early days: in later times the practice was avowed by powerful Greek cities, and even the fleets of Athens, glorious as was her naval renown, did not disdain occasionally to imitate the Phocæans and relieve the dulness of life by a little maritime robbery. But in addition to this scourge, the ferocity with which hostilities were carried on, the customary devastation by which they were marked, the entire absence of humanity to the conquered, the want of faith in the observance of conventions, and the deep-rooted existence of slavery as a domestic institution, shew that whatever progress civilization had made in Greece, its influence was not productive of anything like a system of International Law based upon honour, justice and equity. And however eloquent was the language, however earnest the attempt of philosophers like Plato and Aristotle to maintain the superiority of equity and faith over lawless force, or to urge the claims of right against might, such attempts and such language were vain. As far then as the progress of International Law is concerned, the history of Greece presents little that is interesting or valuable, whatever interest and value it may have in the history of civilization and of man3. Were it worth while to dwell at further length upon 1 Odyss. xv. 385, 426; xvII. 425; ш. 71-74. Thucyd. 1. § 8. 2 Justini Historia, Lib. XLIII. 3. 3 The reader is directed to Laurent's admirable work, L'Histoire de l'Humanité, for full information on the subjects above mentioned. The following passages deserve notice, Tome XI. Livres Premier et Troisième. Law of phicty onic League. the subject, we might notice two features-the right of citizenship, with the international conventions relating to it, in which, though the resemblance is but slight, something like the modern notion of private International Law The Am- appears; and the influence of the Amphictyonic Council', whose object has been stated, with a want of accuracy that needs correction, to have been the institution of a law of nations among the Greeks, and whose efforts it has been as incorrectly asserted were directed to the checking of violence and the settlement of contests between Grecian states by a pacific adjustment. Whereas in truth the council of the Amphictyonic league was but a collection of deputies from certain associated states meeting twice a year at Thermopyla and at Delphi, for the protection and cultivation of a common worship, a religious rather than a political assembly. In so far as it was a place of union for many of the scattered and otherwise unsympathizing states of Greece, where Dorians and Ionians met and deliberated on some matters of common concern, an idea of brotherhood and of federal unity might have been started, and to that extent the Amphictyonic Council would be national and international, but beyond that its international influence did not go. What it neither did nor attempted to do was to introduce regulations by which state might associate with state and city with city on terms of mutual forbearance; to maintain the principles of honour, justice and regard for plighted faith; to soften the ferocity of war, and to check the violence and settle the contests between Grecian states. The very oath that was imposed upon its members shews how narrow was the circle of interests within which the league lay'; the destruction of Crissa attests the iniquity and cruelty of its acts; and its nullity as a political institution in the best days of Greece is marked by the absence of any allusion to it in the pages of Thucydides, Xenophon, Polybius, and Aristotle. 1 For the influence of the Amphictyonic Council valuable information is given in Laurent, L'Histoire de l'Humanité, Tom. 11. ch. iv. p. 86; for its history in Grote's History of Greece, Vol. 11. p. 328 &c.; in Smith's Dictionary of Greek and Roman Antiquities, sub verb. "Amphictyons," and Freeman's History of Federal Government, Vol. 1. ch. iii. 2 Eschin. de Falsa Legatione, 121. 3 Eschin. c. Ctesip. 125. Nations. No Law of Nations If from Greece we turn to Rome, we shall find amidst Law of all the striking differences of habits, manners, thought Ancient and action that separate these two great nations of anti- Rome. quity, none more striking than the devoted cultivation of law as a science and its influence upon all their inner in Rome. life by which the Romans are marked; yet in spite of the perfection to which law thus cultivated as a science and practised as an art attained, a perfection that has resulted in its "having become the national guide to future ages," and in spite of the large debt which the jurisprudence of nearly every country of Europe owes to the Roman code that great exemplar of modern legal systems-we may safely affirm that the jurisprudence of ancient Rome is not the nidus out of which modern Inter national Law sprung. Political history, the art of war, the science of government, are all illustrated in the annals of Rome from its earliest to its latest period; and in all these points of contact with the foreign people and nations whom they came across, the Romans have left records enough for us to understand the policy which actuated them, and from these records later times have learnt valuable lessons: but of those relations between foreign states which, whether peaceful or warlike, in later days have produced rules and regulations that have materially improved the happiness of man by softening the cruelties. of war and enhancing the blessings of peace, the Romans, in the imperial as much as in the republican time, took no heed. In respect of other nations, when Rome was mistress of the world, international rules appealing to justice and equity, and observant of honour and faith, had no existence; and the Jus Gentium was nothing more than a synonym for the law of nature, or a fictitious system which served as a foundation for a new set of equitable as opposed to old common law regulations. The reason for this is simple. In the first place, International Law rests upon two great maxims-that nations are mutually independent, and that they are equal-but the history of Rome shews the exaggerated notions of Roman superiority, as well as the constant aim of the Roman people to destroy all other power, sovereignty and independence than their own. In the next place, the chronic state of war, and the lust of conquest, which mark the history of Rome, were Reasons why no in Rome. Law of The Jus unfavourable to the growth of anything like that friendly union among states which is productive not only of reciprocal rights and obligations, but of reciprocal esteem. And lastly, the entire submission of the rest of the world to the Roman empire, whether as subjects or allies, effectually extinguished every vestige of independent national life, and consequently prevented all chance of the creation of International Law. To use De-Hautefeuille's words, "there was only one nation in the world, there could be no other law than what that nation sanctioned." But it has been asserted that the proofs of the exist ence of a law of nations among the Romans are visible in the following facts-the institution of a college of heralds and of a fecial law; the recognition of a Jus Gentium, a jurisprudence common to all nations; and the ameliorating influence of humanity, justice and law upon their military operations. We shall examine each of these very briefly, and shew how slight foundation there is for such an assertion. What then was the Jus Feciale, what were the functions of the College of Fecials, what was the influence exerted by its members upon the foreign relations of Rome? Much error and much exaggeration have appeared in the accounts that have been written in old and adopted in later days on this subject. According to Cicero' (in whose time the fecials and their grotesque forms had lost much of their hold upon Roman life) by the fecial law (jus feciale) was decided whether a war was equitable or inequitable; according to Plutarch and Dionysius of Halicarnassus, to the fecials was referred the question of the justice or injustice of a war, on their voice hung the question of peace or war, and it was their peculiar office to settle by arbitration if possible differences that otherwise would end in hostilities. These views have been implicitly adopted by more modern authorities. Thus Grotius has stated that the old Romans first took counsel of the college of priests called Fetiales before they declared war. Bossuet has upheld the superior merits of the godless pagan over the followers of Him 1 De Off. 1. 2. 36. Plutarch, Numa, XII. Dionys. Hal. Ant. Rom. 11. 72. 3 De Jure Belli et Pacis, 11. 23. 4. 4 Discours sur l'Histoire Universelle, 3 partie, vi. C |