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of rules by which international conduct could be guided; and, in fact, no such rules are to be found in Roman Law. With regard to outer barbarians the customs of Roman warfare were as severe as ever. Their tribes were beyond the pale of law. Slaughter and rapine were their portion if they resisted, and those who escaped the sword were too often sold into slavery.

§ 24.1

Empire and the

universal authority during the Middle Ages.

After the fall of the Western Empire the theory of a common superior for states still survived. Just as Greece The Holy Roman conquered her conquerors by bringing them Papacy claimod

into subjection to her arts and her philosophy, so Rome amid the ruins of her material power

enslaved the minds of the nations who no longer submitted to her yoke. The spell of her world-wide dominion was not broken by the invasions of Attila and the sack of Genseric. When the sceptre had departed from her hand, men refused to believe in what was happening before their eyes. They held that her dominion was to be eternal, as well as universal. Though Rome was no longer the seat of empire, still the Empire itself was Roman. It must live on, they thought, in some form; and so they cast about to find a power which should be a fit possessor of the world-wide sovereignty no longer centred in the city of the seven hills. At first the only substitute to be found was the decaying Empire of the East, and for many years the Roman world was ruled, in name at least, from Constantinople. But in time a more vigorous successor arose; and from the coronation of Charlemagne as Emperor by Pope Leo III. in the basilica of St. Peter at Rome, on Christmas Day, A.D. 800, the imperial power and the world-wide dominion involved in it were held to have passed to a new line of Frankish sover

1 The substance, and often the words, of this section and the two following are taken from the author's paper on Grotius in his Essays on Some Disputed Questions in Modern International Law.


eigns. The Eastern Empire put forth a feeble protest, but outside its own rapidly diminishing territories none accepted its claim to universal sovereignty. For many centuries the Romano-German Empire was believed to be a continuation of the old dominion of the city of the seven hills, and theoretically it succeeded to all the powers of its predecessor. Practically, however, the personal character of each Emperor largely determined the nature and extent of his influence; and gradually the Papacy, which had been the chief agent in creating the new or Holy Roman Empire, became its rival in pretensions to universal dominion. The pretended gift by Constantine of all the West to the Roman Pontiff, and the very real spiritual supremacy exercised by the successors of St. Peter, formed the basis of a claim “to give and to take away empires, kingdoms, princedoms, marquisates, duchies, countships, and the possessions of all men.” And this claim was not an idle boast, as was proved in 1077, when the Emperor Henry IV., the most powerful prince in Europe, humbled himself at Canossa before the great Pope Gregory VII.3

§ 25.

The International Law of the Middle Ages was influenced enormously by the conflicting claims of the Pope and the Emperor. The idea of a common superior still lingered among the nations, and greatly assisted disappeared at the Roman Pontiffs in their efforts to obtain a suzerainty over all temporal sovereigns. For as the Empire founded by Charlemagne gradually decreased in extent till it scarce spread beyond the limits of Germany, more and more difficulty was felt in ascribing to it universal dominion. Yet no one dreamed of asserting boldly that independent states had no earthly superior, and therefore when the Papacy came

The idea of a

the Reformation.

1 Bryce, Holy Roman Empire, Chs. IV., V.

Ibid., Chs. VII., XII., XXV.
Ibid., Ch. x.


forward with its claims, men's minds were predisposed to accept them.

As an arbitrator between states, the Pope often possessed great influence for good. In an age of force he introduced into the settlement of international disputes principles of humanity and justice; and his supernatural sanctions compelled obedience from brutal potentates who cared little or nothing for the higher law which he expounded. Had the Papacy always acted upon the principles it invariably professed, its existence as a great court of appeal in disputes between states would have been an unmixed benefit. But the Roman Curia gradually sank into such terrible corruption that the moral sense of mankind revolted against its iniquities, and the authority of the Pope became less and less, till at length a large part of Europe threw it off altogether. Both the Papacy and the Empire remained; but the theory of universal dominion received its death-blow when in the stormy period of the Reformation the two powers, one or other of which ought, according to it, to have calmed the waves of political and religious strife, were obliged to join in the turmoil. The Pope, of course, opposed the Reformers, and the Emperor took the same side. Community of religion became a new bond between states. The Protestant princes of the German Empire were often in arms against the Emperor. His authority was set at nought within the limits of his own dominions, and outside them he had long received nothing more than mere honorary precedence as the first potentate in Christendom. Thus the notion of a common superior exercising sovereign rights over all nations gradually faded away. Practically it had long been obsolete, and at length it ceased to exist.

§ 26.

New principles were required unless states were openly to avow that in their mutual dealings they recognized no law but

1 J. S. Mill, Dissertations and Discussions, II., 152-158.


was grave danger

ness in interna

the right of the strongest. For a time there was undoubtedly a reaction towards this view. In 1513 Machi- For a time there avelli set forth in The Prince the doctrine that of utter lawlessin matters of state ordinary moral rules did not tional affairs. apply, and his work soon became the political manual of the rulers and generals of the time. Cruel as were the wars of the Middle Ages, it is doubtful whether the long struggle between Spain and the revolted Netherlands, and the terrible Thirty Years' War, were not stained by greater atrocities than any perpetrated in the days of chivalry. But fortunately for humanity the tendency towards lawlessness in international transactions was arrested by the publication in 1625 of the great work of Grotius, De Jure Belli ac Pacis. In this book the new ideas which had been floating about in the atmosphere of European thought for a century or more. were clearly stated, systematically arranged, and logically applied to the regulation of the mutual dealings of states. Weary of anarchy, Europe eagerly adopted a system which promised to put some curb upon the fierce passions of rough warriors and the finesse of polished statesmen. Thus the whole basis of International Law was changed and new principles introduced into its very foundation. They belong to our third period; but before we inquire what they were and how they were applied, it will be well to state very briefly the nature of the secondary influences which helped to mould the law of nations during the period we have just reviewed.

§ 27.

As the Roman Empire fell, the advancing tide of barbarian invasion swept away the bulwarks of civilization. Commerce disappeared; warfare was restrained by no rules; pirates swept the seas. And in the rinth century the terrible incursions of the Northmen Middle Ages. began to add a fresh element of horror to the universal confusion. But a new and better order slowly evolved itself

Influences which made for improve ment during the

out of the chaos. The Christian Church softened the man. ners and mitigated the cruelty of the barbarian nations, as one by one they entered into her fold. The temporal power of the Holy Roman Empire and the spiritual authority of the Papacy worked together for a time in the cause of civilization. Feudalism became the great organizing principle in remodelling society. The study of Roman Law gave a magazine of new ideas and rules to statesmen and lawyers. The revival of commerce produced various codes of maritime law, of which the famous Consolato del Mare was the chief. Viewed in connection with international relations, the most important part of the new organization of Europe was the universal supremacy claimed by the Roman Pontiff and the Emperor, the former in the spiritual, the latter in the temporal sphere. To this we have already alluded. It may, however, be advisable to point out here that both Pope and Emperor were rather judges and arbitrators than lawgivers. They dealt with particular cases, not with general rules. There was no corpus of International Law till comparatively modern times. The nearest approach in the Middle Ages to any system of regulations that could be known beforehand by states was found in the various maritime codes.

§ 28.

conception of territorial sovereignty.

Foremost among the secondary influences which determined the ideas of the Middle Ages upon international Importance of the

relations was the conception of territorial sovereignty due to feudalism. When the political

rights and duties of individuals within the state came to be associated with the possession of land, it was an easy inference that the sovereign of the community, whose political functions were far larger than those of any other member of it, must have a corresponding extension given to his rights over the soil on which his people were settled. Formerly, if he could not be universal ruler, he was lord of

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