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tional activity did not directly help to bring into being either the territorial distribution of modern Europe or the ideas which dominate modern International Law. Even with the limitation just insisted upon the history of International Law is a wide and varied subject. In the short space of one chapter it will be impossible to give more than the slightest outline of it. The earlier portion, especially, can be touched upon but lightly, since it is only in the later period that the system attains anything like its modern form and present importance. Enough, however, will be said to show what are the great creative principles which have at various times governed the ideas of nations upon the subject of their mutual intercourse, how those principles arose, how they worked, and how they were superseded by others when they were no longer applicable.
The history of International Law may be divided into three periods, during each of which one fundamental idea dominated the minds of men with respect to international relations. It will be advisable to take the periods separately, though there was in fact no strongly marked boundary line between them, but each gradually shaded off into its successor. The old and the new ideas struggled awhile for the mastery, and finally the new prevailed.
The first period extends from the earliest times to the establishment of the universal dominion of Rome under the Cæsars. Its distinguishing mark is the belief in the First Pethat nations owed duties to one another if they earliest times to were of the same race, but not otherwise. States pire ---states as as such possessed no rights, and were subject to no tual rights and obligations. The tie of kinship, real or feigned, Kinship was the near or remote, through the father or through tions between the mother, was the basis of all ancient society; nities. and just as it settled the condition of the individual within the state, so it also prescribed and limited the duties of the state to other states. This comes out most clearly in the history of Greece. In the Homeric poems piracy and robbery are accounted honorable, and there is no distinction between a state of war and a state of peace. The persons of heralds were indeed respected, but this seems to have been due to religious feeling quite as much as to any sense of intertribal duty. And the same ferocity which distinguished early society appears to have continued, so far as barbarians were concerned, down to the close of the independent political existence of the states of ancient Greece. Aristotle calmly reasons that nature intended barbarians to be slaves, and among the natural and honorable means of acquiring wealth he classes making war in order to reduce to slavery such of mankind as are intended by nature for it. At a Cater period still, in the speech of the Macedonian ambassadors urging the Ætolian Council to war with Rome, occurs the passage, “ Cum barbaris eternum omnibus græcis bellum est, eritque." 3 This was doubtless merely a rhetorical statement, but the fact that it could be made is significant. When we reflect that by barbarian was meant simply non-Greek, we see at once that the Greeks recognized no duties towards those nations who were not of Hellenic descent. But
RJOD - from the
the Roman Em
such had no inu
among themselves they had a rudimentary International Law based upon the idea that all Hellenic peoples, being of the same race and similar religion, were united together by bonds which did not subsist between them and the rest of the world. They were often guilty of acts of ferocious cruelty in their warfare with one another, but nevertheless they recognized such rules as that those who died in battle were to receive burial, that the lives of all who took refuge in the temples of a captured city were to be spared, and that no molestation was to be offered to Greeks resorting to the public games or to the chief seats of Hellenic worship.4
1 Politics, Bk, I., Chs. II., VI. 8 Livy, History, Bk. XXXI., Ch. 29. Ibid., Bk. I., Ch. VIII, 4 Grote, History of Greece, Pt. II., Ch. ii.
When Rhodes became the great naval power of the Ægean, a maritime code arose which was called the Laws of the Rhodians, and was obeyed wherever Greek commerce extended. This code has a curious and important history. From it were derived many of the commercial and marine regulations of the Roman Emperors, and after the revival of commerce vague recollections of imperial laws were among the influences which helped to form the Consolato del Mare, the great maritime code of the Middle Ages, from which much of the modern law of naval capture and many modern commercial regulations are derived.
Among the Romans of the Republic there is perhaps less trace of a true International Law than among the Greeks. Rome stood alone in the world. She was not
Republican Rome one of a group of kindred states; and therefore in her dealings with other states she was rarely restrained by any notion of rights possessed by them as against herself. Many writers have considered that in her Jus Feciale, and in the strict rules which excluded from her armies all who had not taken the sacramentum, or military oath, she possessed the germs of an international code. But
. it is clear that these regulations sprang partly from religious feeling and partly from the love of order which so distinguished the ancient Romans. They were in no respect due to any idea that Rome had obligations towards other nations. It was the duty of the Fecials to demand satisfaction from foreign states, and to make solemn declarations of war by dooming the enemy to the infernal gods ;? but the law which imposed these functions upon them was purely a matter of internal regulation, and by the time of Cicero it had ceased to be strictly observed. The rule about the military oath was no more intended for the protection of the enemy from lawless adventurers than is the American law of recruiting. True International Law is based upon the notion that states are mutually bound to observe certain rules in their dealings with one another. A few instances may be quoted of the use by Livy and other Roman writers of the phrase Jus Gentium in the sense of universal usage binding on all nations in the matter of war and negotiation;1 but, in the main, Rome neither claimed for herself nor gave to other states the benefit of any idea of mutual obligation, except with regard to the faith of treaties and the safety of the persons of ambassadors.
1 Pardessus, Us et Coutumes de la Mer, I., 21-34, 209–260, and II., 1-368. 2 Livy, History, Bk. I., Ch. 32 ; Cicero, De Otliciis, Bk. I., Ch. ii.
In the SECOND
the Reforination - it was deemed that the relations of states must be
such a superior while the Empire
The second period begins with the establishment of the universal dominion of Rome under the Cæsars, and ends with the
Reformation. It is characterized by the concepRoman Empire to tion that there was to be found somewhere a
common superior whose commands regulated
the dealings of ordinary states with each other, regulated by a common superior. - a fact which of itself completely destroys the The Emperor was
theory of absolute international rights; for was all-powerful. among those rights that of equality is always
-. reckoned, and we now see that for many ages International Law was based upon the doctrine of the fundamental inequality of states. The Roman Empire in its palmy days extended over the larger part of Europe, and much of Asia and Africa. Roughly speaking, it was coterminous with the world of ancient civilization. The policy of its rulers frequently left some remnants of self-government to conquered nations. Thus the Roman Emperor was the political superior
, of a large number of subordinate rulers, and their disputes, whether personal or national, were settled by appeals to Casar. Under these circumstances International Law was Its precepts
1 See article on Jus Gentium by the late Professor Nettleship in the Journal of Philology, Vol. XIII., No. 26.
really based upon the commands of a superior. were laws in the strictest Austinian sense. They imposed perfect obligations, and were armed with tremendous sanctions. Universal sovereignty was a great fact. It filled men's minds with awe and wonder. The Majestas Populi Romani was an object of religious reverence, and the Roman state itself, incarnate in the person of its Cæsar, was worshipped as a god. It stood between the world and anarchy, it protected civilization against barbarism, it united the nations by moral and material bonds, it kept the Roman peace within its boundaries, and it held at bay beyond them the savage hordes who longed for the plunder of its rich provincial lands. No wonder, then, that its supremacy was not merely submitted to, but welcomed. No wonder that people theorized about it, and held that the existence of a common superior over all states was part of the natural order of the universe. No wonder that memories of worldwide sway were so deeply graven on the minds of men that, long after Rome had fallen, her conquerors strove to build anew the fabric of her greatness, and their chieftains could think of no alternative to tribal sovereignty but universal dominion.
While the old Roman Empire remained strong, fact and theory with regard to the settlement of disputes between nations coincided with tolerable accuracy. It must not be supposed that the Emperors issued among their laws anything like an international code. There was no room for any such body of rules, because the subordinate states could have little or no foreign policy. Their external activity was chiefly exercised in their dealings with Rome herself. In these they stood rather in the relation of suppliants to a superior than of equals treating with an equal on common ground. When dynastic disputes arose, or when one subordinate state complained of ill-treatment from another, an appeal was made to Cæsar, and his decision was final. A series of isolated judgments on such cases could give rise to no body