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 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, favouring 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 neighbours; and hence the latter were long shut out from the pale of their international law. § 8. Greece and Rome. Greece. In other parts and ages of the world laws have grown up, in groups of nations, for the regulation of their con- International duct to each other. But these have all been partial, law elsewhere and were never constructed into a science. The quite imperfect. classic states of antiquity had, at the best, a very simple 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 favourably situated for the development of a Hellenic international law; for, like the Christian states of modern times, they formed a circle of communities, standing at nearly the same level of civilisation, and in religion, as well as historical traditions, connected with one another. And, in fact, the rudiments of such a law appear in the course of Greek 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 a 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. 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 fals. leg. § 115. Bekk. The Romans had less of international law than the Greeks, and were less scrupulous, if we except their obserRome. vance, 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 civilised; not in any respect their equals. Towards such enemies they could act as their convenience dictated. No reason for saying that they had no international law. It has been said that the Greeks had no international law at all; and the same arguments would deny the existence of such a law among the Romans, in their earliest times.1 There seems to be no sufficient ground for this opinion. Neither nation may have reached an accurate notion of an international law, but they 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 religion, 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 or to initiate a state of war. (Compare § 115.) middle ages. But in medieval Europe, also, the law of nations was of slow International growth, and for a time it scarcely rose above the law in the level which it reached in 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 centralised 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 uphill 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 1 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. Compare Osenbrüggen de jure belli et pacis (Lips. 1836), p. 4, seq. 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 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, favouring 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 neighbours; and hence the latter were long shut out from the pale of their international law. § 8. The grown up, International in quite imperfect. Greece and Rome. Greece. In other parts and ages of the world laws have groups of nations, for the regulation of their conduct to each other. But these have all been partial, law elsewhere and were never constructed into a science. classic states of antiquity had, at the best, a very simple 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 favourably situated for the development of a Hellenic international law; for, like the Christian states of modern times, they formed a circle of communities, standing at nearly the same level of civilisation, and in religion, as well as historical traditions, connected with one another. And, in fact, the rudiments of such a law appear in the course of Greek 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 a 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. 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 fals. leg. § 115. Bekk. The Romans had less of international law than the Greeks, and were less scrupulous, if we except their obserRome. vance, 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 civilised; not in any respect their equals. Towards such enemies they could act as their convenience dictated. had no interna tional law. It has been said that the Greeks had no international law at No reason for all; and the same arguments would deny the existRaying that they ence of such a law among the Romans, in their earliest times. There seems to be no sufficient ground for this opinion. Neither nation may have reached an accurate notion of an international law, but they 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 religion, 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 or to initiate a state of war. (Compare § 115.) International middle ages. But in medieval Europe, also, the law of nations was of slow growth, and for a time it scarcely rose above the law in the level which it reached in 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 centralised 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 uphill 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 1 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. Compare Osenbrüggen de jure belli et pacis (Lips. 1836), p. 4, seq. who had almost no rights. But the spirit of chivalry, by encouraging high sentiments of honour 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 defence of the weak and unprotected; and it cultivated human 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; it stopped, as far as it could, private wars; it opposed the barbarity of selling Christians as slaves, and introduced a somewhat milder treatment of captives taken in war; and it lent its sanction to all moral obligations. But it was neither pure nor strong enough to introduce a mild treatment of infidels, nor did it prevent various kinds of inhumanity, in peace as well as war, between Christians. The government of the church by a monarch, who gradually gained great political, by means of religious, power, was the source of the most striking peculiarities of the public law of the medieval period. The presence in Europe of an ultimate interpreter in religious and moral questions, doubtless did great good as well as harm. Every important question of politics had a bearing on religion, which could bring it up for examination and settlement before the Pope; and perhaps the very vagueness of the theory of Papal interference aided its success on favourable occasions. In a gloss to the canon law (c. 2, Can. xv. qu. 6), it is said of the dispensing power of the Roman See, that contra jus naturale Papa potest dispensare, dum tamen non contra Evangelium;' and the great Pope Innocent III. said: 'Nos secundum plenitudinem potestatis de jure possumus supra jus dispensare.' (C. 4, x. de concessione præbendæ.) This dispensing power extended to oaths. The oath of fealty was the moral cement of society, the last cord which bound the vassal to the suzerain. But the Popes asserted the right of releasing vassals from their oaths of allegiance, on the plea that the suzerain who was disobedient or hostile to the church might be proceeded against even to ex communication, and an outlaw as to church rights ought not to rule over Christians. In the disputes of kings, the weaker party often appealed to the Pope, and thus gave him an opportunity to arbitrate or command. Treaties confirmed by word of honour and solemn oath were open to the Papal revision. Word might be broken with heretics, as the enemies of Christ. In the noted case of Huss, who had received a safe-conduct, the Council of Constance resolved that it was lawful for a competent ecclesiastical judge to proceed against and punish obstinate heretics, ' etiamsi de salvo conductu confisi ad locum venerint judicii, alias non venturi.' 1 1 Gieseler, Kirchengesch. II. part iv. 418. |