his people. Now, in the absence of the former alternative, he claimed to be lord of his people's lands. Thus sovereignty became territorial, a character it still retains. The influence of the change has been far greater during the modern epoch than it was in the Middle Ages, and it will therefore be considered more at length when we deal with our third period. Feudal notions lent themselves so readily to the theory of universal sovereignty that the principles contained in them could not produce any great revolution in thought with regard to international matters while that theory retained its sway. Feudalism organized society in a pyramidical form. At the base was the great mass of the cultivators of the soil. Above them came the mesne lords, above them the tenants-in-chief, and finally the king. But as there were many kings and princes in Europe, it was easy to go a step further and place at the apex of the pyramid one common superior, who was to exercise overlordship over all subordinate rulers. Throughout the greater part of Europe this superiority was conceded in theory to the head of the Holy Roman Empire, though the realm of England claimed entire independence, and her kings insisted upon the imperial character of their own royalty. But when the direct power of the Emperors became limited to Germany, their theoretical supremacy over other lands had little practical effect. Among non-Germanic rulers feudal ties and papal authority formed a rudimentary public law. Thus we find that within the Empire the rules of Roman Law still controlled the mutual relation of states, with Cæsar as supreme judge and supreme lawgiver; while outside it feudal subordination took the place of imperial authority, and when feudal ties failed the Papacy stood in the background, ready and sometimes able to settle disputes by its spiritual author ity. We have already seen how, at the Reformation, the Pope and the Emperor lost even the theoretical acknowledg ment of their claim to universal dominion. By that time feudalism, too, had fallen into utter decay, and the way was left clear for the introduction of fresh regulative principles. The old order bequeathed to the new but one element, and that was the conception of territorial sovereignty. Roman Law of course remained, for it is part of the world's heritage for all time; but the portions of it that influenced the foundation of the new system were those which had been little used in the old. Cruelty of the usage of war. Growth of maritime codes. § 29. Up to the end of the second period the usages of war were still ferocious in the extreme. About the time of Grotius we find the first beginnings of the custom of exchanging prisoners; but this great amelioration won its way to universal adoption by slow degrees. During the Middle Ages captives were often treated with detestable cruelty. For instance, in 1268 Charles of Anjou, brother of Saint Louis of France, first mutilated and then burnt alive a number of prisoners he had taken at the battle of Tagliacozzo. The population of an invaded country were subjected to the foulest indignities, and sometimes whole districts were laid waste and turned into deserts out of sheer wantonness. When a place was taken by storm it was given up to pillage and rapine, no attempt to restrain the passions of the victorious soldiery being made by their commanders. Even the rules of good faith were frequently disregarded, though in theory their obligation was admitted. Both the rights and duties of neutrals were ill defined and loosely observed. Commerce had, however, won for itself considerable recognition. The date of the Consolato del Mare is very uncertain, but it cannot be placed later than the fourteenth century. And it did not stand alone; for the revival of commerce led to the growth of other maritime codes, such as the Laws of Oleron, the Leges Wisbuenses, and the Coutumes d'Amsterdam.2 From that time, 1 Hosack, Rise and Growth of the Law of Nations, 52. 2 Pardessus, Us et Coutumes de la Mer, Vol. II. therefore, Europe had not only a codified lex mercatoria, but also a recognized body of laws for the regulation of maritime capture. Just at the close of our present period diplomacy showed signs of becoming a regular profession. The old custom of sending envoys only when some special business had to be transacted was giving place to the modern system of permanent embassies, resident at the courts of friendly nations. But though in certain parts of International Law some progress may be noted, yet, taken as a whole, the system was still very imperfect. Indeed, it cannot be called a system with any approach to accuracy. It was rather a mass of undigested, and often contradictory, precedents, and there was danger of its being entirely swept away in the great outburst of cruelty and lawlessness that arose as old restraints became inoperative, and old theories faded from the minds of men. § 30. PERIOD from We now come to our third period, which extends from the Reformation to the present time. The basis of International Law during the whole of this period has been the principle of the absolute independence of sovereign states, and their complete equality before the law which regulates their mutual intercourse as a society of independent units. In the THIRD the Reformation time-the ruling to the present principle is that there exists a society of independent states, the members of which have mutual rights and obligations. 1 When a number of equal and independent states no longer own, even in theory, a common superior, the most obvious mode of escape from utter lawlessness in their mutual dealings seems to us, with our present ideas, to be the regulation of their conduct towards one another by rules to which all have assented. But it may well be doubted whether International Law in the modern 1 Much of this section and the ten following are to be found in the author's paper on Grotius, printed in his Essays on Some Disputed Questions in Modern International Law, but it will be seen that he has modified some of the views put forward in the earlier work. sense would ever have existed had general consent been sup posed to be necessary before its commands could claim obedience. As a matter of fact, their obligation was based partly upon the express or tacit consent of states, and partly upon the theory of the extreme sanctity attaching to the precepts of the so-called Law of Nature. The great exploit of the early publicists was to apply this Law of Nature to the intercourse of states, and thus fill up the gap caused by the disappearance of the conception of universal sovereignty. But, in addition, general consent was put forward by most of them as the ground on which certain of their rules rested. Thus from the first there were two elements in modern International Law. Some writers and thinkers gave greater prominence to the Law of Nature, others to the consent of nations, but few are to be found who deal with one element to the exclusion of the other. There can, however, be no doubt that the theory of a state and a Law of Nature was the most powerful influence in creating, shaping, and winning acceptance for the International Law which arose on the ruins of the state-system of medieval Europe. The change in about by the work of Grotius and the theory of a Law of Nature. § 31. It is impossible to attempt here an account of the origin and growth of the ideas which cluster round the notion of Nature and her law. They had their birth in ideas was brought ancient Greece, and they are still alive and active to-day, though their vigor is not so great, or the acceptance of them so general, as it was when Hugo Grotius wrote that "the principles of Natural Law, if you attend to them rightly, are of themselves patent and evident, almost in the same way as things which are perceived by the external senses."1 Such a statement as this takes away the breath of a modern jurist; but when it was first given to the world no one thought it extravagant, 1 De Jure Belli ac Pacis, Prolegomena, § 39. because every one who reasoned at all upon the problems of society and government accepted without reserve the theory of a Law of Nature. On this one point even Catholic and Protestant were agreed. The Jesuit casuist, Francisco Suarez, and the Oxford civilian, Albericus Gentilis, were alike in this, that they regarded Nature as a lawgiver and endeavored to interpret what they deemed her just and simple precepts to a world which stood sorely in need of them. These men were two of the most distinguished of the forerunners of Grotius. They both wrote towards the end of the sixteenth century, and from the treatise of the latter, De Jure Belli, the great Dutch jurist took much of the plan and arrangement of his own De Jure Belli ac Pacis. Indeed, so great are his obligations to Gentilis that some authorities are disposed to contest his right to be called the father of International Law. But after making all possible allowances for his debt to his predecessor, the fact remains that it was Grotius, and not Gentilis, who won the ear of the civilized world, altered its theory of international relations, and made its warfare infinitely more merciful than before. It is one of the marvels of history that this was possible. Huig van Groot, commonly called Hugo Grotius, was born at Delft, in the Province of Holland, on the tenth of April, 1583, and grew up amid the later scenes of the long struggle of his countrymen with Spain on behalf of their local liberties and national independence. He early distinguished himself both as a scholar and as a jurist, and was soon raised to public office. But the part he took in civil disputes led to his arrest by order of Prince Maurice of Nassau and the States-General in 1618. He was condemned to perpetual imprisonment, but escaped after three years, owing to the devotion of his wife, and fled to Paris, where he lived for a time on a pension granted by the French king and very irregularly paid. After some years he entered into the diplomatic service of Queen Christina of Sweden, and while engaged in the performance of a mission on behalf of the Swedish government in 1645, |