ture of the Numidian town Capsa by Marius, and in describing the brutalities that ensued, the slaughter of the young men, the sale into slavery of the rest of the inhabitants, and the sack of the town, mentions them as deeds contrary to the law of war (contra jus belli), but forced on Marius by necessity, and pardonable on account of the untameable nature and faithless disposition of the inhabitants. The second, in his oration for Balbus', whilst enlarging upon the greatness, the eloquence, and the learning of Cn. Pompey (who was counsel with him and Crassus in the case), speaks of him as eminently distinguished for an acquaintance with all the learning relating to the law of war and peace. Now from the passage here quoted, and from another one in the De Officiis, as well as from one or two places in the Digest and elsewhere, we gain some insight into the matter that was comprised in this part of the Roman law. Thus we find that one important portion of it was taken up, at least in old times, with the rules prescribed by the Fecials, many of whom, like Scævola, were as famed for their knowledge of law as for their high position in the statethat in other parts of it are given clear definitions of war and peace, and explanations of the condition of citizens during hostilities, of the position and rights of lawful enemies, of Postliminium, and of the regulations relating to military service; for if we are to place any credence in the story told by Cicero, of Cato the Elder, no person was justified in joining in a campaign and fighting with the troops engaged therein unless he was a miles, (a soldier bound by the sacramentum, or oath of obedience,) whilst the law relating to truces, foreign treaties, public conventions and sponsions, formed no small or unimportant head of the Roman jus belli et pacis. Such then, as far as light is thrown by the scattered fragments to be found in the Corpus Juris Civilis and the allusions dispersed through the classical authorities 2 Lib. I. cap. ii. 1 Cap. vi. 3 D. 49. 15. 12. and 24; 50. 16. 118. on this part of the jurisprudence of Rome, such are the vestiges of her law of peace and war; and whilst we see the trace of regular law in this as in other phases of Roman life, we see how easily and wilfully it was set at nought; and we find that, closely allied as modern codes and legal systems are to the old Roman laws, in all the various matter that is comprised within the limits of International Law the Roman Jus belli et pacis has left nothing on which the foundation of the modern system can be said to rest; nay, has left no vestige of any systematic treatise on the subject, save a bare notice of a lost work by Varro, a Liber Humanarum, vaguely alluded to by Aulus Gellius'. Yet that the Roman law did exercise an influence upon International Law we shall have occasion to notice a little way further on.] al Law in the The irruption of the northern tribes of Scythia and Germany overturned all that was gained by the Roman law, annihilated every restraint, destroyed all sense of national obligation, and threw civil society for a time into the violence and confusion of the barbarous ages. Mankind Internationseemed to be doomed to live once more in constant distrust middle ages. or hostility, and to regard a stranger and an enemy as almost the same. Piracy, rapine, and ferocious warfare, deformed the annals of Europe. The manners of nations were barbarous, and their maxims of war cruel. Slavery was considered as a lawful consequence of captivity. Mr Barrington has cited the laws of the Wisigoths, Saxons, Sicilians, and Bavarians, as restraining, by the severest penalties, the plunder of shipwrecked goods, and the abuse of shipwrecked seamen, and as extending the rights of hospitality to strangers. But, notwithstanding a few efforts of this kind to introduce order and justice, and though municipal law had undergone great improvement, the law of nations remained in the rudest and most uncultivated state, down to the period of the 16th century. In many instances, shipwrecked strangers were made prisoners and 1 Aul. Gell. 1. cap. 35. * Observations on the more ancient Statutes, Magna Charta, c. xxx. 7 sold as slaves, without exciting any complaint, or offending any public sense of justice. Numerous cases occurred of acts of the grossest perfidy and cruelty towards strangers and enemies. Prisoners were put to death for their gallantry and brave defence in war. There was no reliance upon the word and honour of men in power. Reprisals and private war were in constant activity. Instances were frequent of the violation of embassies, of the murder of hostages, the imprisonment of guests, and the killing of heralds. The victor in war had his option in dealing with his prisoners, either to put them to death, or reduce them to slavery, or exact an exorbitant ransom for their deliverance. So late as the time of Cardinal Richelieu, it was held to be the right of all nations to arrest strangers who came into the country without a safe conduct'. The Emperor Charlemagne made distinguished efforts to improve the condition of Europe, [by vigorous measures for the promotion of trade and commerce, by opening roads, establishing lighthouses, facilitating communications along the Danube and between that river and the Rhine,] by the introduction of order and by the propagation of Christianity'; and we have cheering examples, during the [ Ward's History of the Law of Nations, Vol. 1. ch. 7, 8, 9; Vol. I. p. 274 (note Z). The reader will find in the Introduction to Pardessus's admirable work on the maritime laws of Europe, Collection des lois Maritimes, Tome I. from p. lx., a most interesting account of the state of commercial enterprize in the civilized world at the period here spoken of. He is also referred to the first volume of Duer, On Insurance, Lecture II. p. 28, for information on the same subject. In the second and third volumes of Meyer's treatise, Sur l'esprit, origine, et progrès des Institutions Judiciaires, a clear and concise account of the judicial institutions of England, France, and Germany during the same period of time is given; and from Guizot's wellknown Lectures on Civilization in Europe, especially in the 2nd, 4th, 7th, 8th, 9th, and 11th lectures; from Hallam's History of Europe during the Middle Ages, and from the Introduction to Robertson's History of Charles the Fifth, no small insight into the manners, customs, and social feelings that characterized Europe during the early part of the Middle Ages, can be obtained.] [ The benefits conferred by Charlemagne upon the opening civilization of Europe are concisely stated in Martin's Histoire de France, Tome I., in Pardessus's Collection des lois Maritimes, Tome 1. Introduction, and in Sir Jas. Stephen's Lectures on French History, Vol. 1.] darkness of the middle ages, of some recognition of public law, by means of alliances, and the submission of disputes to the arbitrament of a neutral power. Mr Ward enumerates five institutions, existing about the period of the eleventh century, which made a deep impression upon Europe, and contributed in a very essential degree to improve the law of nations'. These institutions were, the feudal system, the concurrence of Europe in one form of religious worship and government, the establishment of chivalry, the negotiations and treaties forming the conventional law of Europe, the settlement of a scale of political rank and precedency, [to which must be added the crusades.] Christianity. Of all these causes of reformation, the most weight is to be attributed to the intimate alliance of the great powers as one Christian community. The influence of Influence of Christianity was very efficient towards the introduction of a better and more enlightened sense of right and justice among the governments of Europe. [Indeed, as Laurent says, the idea of a system of International Law is due to Christianity. For how could there be any legal tie between man as an individual and men as people and nations, until the consciousness of a common nature was acknowledged, until the gulf which separated the free man from the slave was filled up, until the contempt for or hatred of the stranger as barbarian or enemy was removed, until man's nature was changed and war ceased to be regarded as a glorious pastime or as an ordinary occupation, and until an equitable system of independent states was substituted for one huge overgrown empire ever striving to draw all neighbours within its grasp and to maintain unlimited rule?] Christianity taught the duty of benevolence to strangers, of humanity to the van 1 Ward's History of the Law of Nations, Vol. 1. 322–328. [ Histoire du droit des gens, Laurent, Tome IV. livre III. ch. 1; Le droit maritime, par Cauchy, Tome I. p. 205. Sociantur gentes unitate religionis magis quam aut alterius communione aut foederis pactione (Albericus Gentilis, De Jure Belli, 1. 3, c. 15).] quished, of the obligation of good faith, and of the sin of murder, revenge, and rapacity. The history of Europe, during the early periods of modern history, abounds with interesting and strong cases, to shew the authority of the church over turbulent princes and fierce warriors, and the effect of that authority in meliorating manners, checking violence, and introducing a system of morals which inculcated peace, moderation and justice. The church had its councils or convocations of the clergy, which formed the nations professing Christianity into a connexion resembling a federal alliance, and those councils sometimes settled the titles and claims of princes, and regulated the temporal affairs of the Christian powers. The confederacy of the Christian nations was bound together by a sense of common duty and interest in respect to the rest of mankind. It became a general principle of belief and action, that it was not only a right, but a duty, to reduce to obedience, for the sake of conversion, every people who professed a religious faith different from their own. To make war upon infidels was, for many ages, a conspicuous part of European public law; and this gross perversion of the doctrines and spirit of Christianity, had at least one propitious effect upon the Christian powers, inasmuch as it led to the cultivation of peace and union between them, and to a more free and civilized intercourse. The notion that it was lawful to invade and subdue Mahometan and Pagan countries, continued very long to sway the minds of men; and it was not until after the age Grotius and Bacon, that this error was entirely eradicated. Lord Coke' held, that an alliance for mutual defence was unlawful between Christians and infidels or idolaters: Grotius was very cautious as to the admission of the lawfulness of alliances with infidels, having no doubt that all Christian nations were bound to assist one another against their attacks'; Lord Bacon' thought it a matter of so much doubt, as to propound it seriously as a question, 1 Inst. 155. 4 2 Grotius, Bk. II. c. 15, § 11, 12. of 3 Bacon's Works, Vol. 111. p. 538, fol. edition, 1738, "Of an Holy War." |