great republic of the different States of Greece was concerned; but the stranger with whom there was no alliance was an enemy, and all Treaties of peace, like those formerly made between the Turks and Europeans, were for a limited period. The Collegium and the Jus Feciale of the Romans are the most remarkable instances of regard for International justice ever exhibited by any nation, and the wonder is increased by the reflection, that this Collegium was the institution of a nascent State, which, in its very infancy, laid down the observance of right towards other nations, as a cardinal principle of its public policy.-The institution of the recuperatores also bears testimony to the same political integrity; how much, indeed, the practice of Rome in her maturity and decline was at variance with that principle of her early days, is well known. But making, as history compels us to do, this admission, it must be remembered that if the Jus inter Gentes (g), strictly speaking, was violated by the practice of conquering Rome, yet the Jus Gentium was in reality established by her compilation of Jurisprudence; for in this stood transcribed eternally, if the word were applicable to a mortal work, those maxims of written Reason, those principles of Natural Law, which not only guide a State in its conduct towards Individual Foreigners, and are the root of Comity, or Private International Law, but which guide a State in its conduct towards other States, and (g) The expression of Lucan as to the violation of the Laws of Embassy by the Egyptians is very remarkable; I do not remember to have seen it noticed: : "Sed neque jus mundi valuit, neque foedera sancta which constitute the most considerable foundation of Public International Justice. THE CHRISTIAN ERA BEFORE GROTIUS. We enter next upon the Christian æra. Great and inestimable has been the effect of the doctrines of Revelation upon the Jurisprudence of Nations, though long retarded by the evil passions both of mankind generally and of the governors of men; yet the language, and the teaching, the system of a representation of different nations, the very forms of the assembling of the Councils of the Church, the notion of a common International Tribunal, the authority of the Pope during ages steeped in intellectual ignorance and moral grossness, contributed to preserve some idea of the Duties and Rights of Nations. During the earlier part of the Middle Ages the Pope discharged the functions of International Judge and Arbitrator in the conventions of Christendom. The practice might have been imperfect, but the theory was sublime. The Right of the Pope to discharge these noble functions was almost unquestioned before the time of Boniface VIII., A.D. 1302. A great change was effected by the introduction and prevalence of the doctrine, that a distinction was to be taken between temporal subjection ratione feudi, and subjection in temporal matters ratione peccati (h). In Ecclesiastical Law the distinction was of little avail, and easily evaded, for in the Middle Ages the acts of an absolute irresponsible prince were easily brought within the category of sin (ratione peccati). (h) De Marca, De Concord. Sacerd. et Imper. iv. c. xvi. 5. But in International Law, the distinction was of the utmost importance, for it was now competent to Princes to tell their subjects, that there were circumstances under which the Papal Interdict was unfawful, and therefore invalid. The Pope lost his character of International Judge, and retained but for a season, and with difficulty, the character of International Arbitrator. That, too, had disappeared before the epoch of the Reformation, though up to that period all the foreign or international affairs of a State were considered and treated as matters appertaining solely to the prince, and with which the people had no concern. It must be remembered that, even in the year 1493, Ferdinand and Isabella were confirmed in their possessions and discoveries in the New World by the Bull of the Pope,' issued, as former Bulls had been, in virtue of his general territorial supremacy over the whole world; and that as late as the year 1701 the Pope complained, in his Consistory, that Austria had recognized the Ruler of Prussia under his new title of King, "not considering that it was the ex"clusive privilege of the Holy See to make kings" (i). The Crusades introduced the principle of Intervention, both upon the general ground of religious sympathy, and upon the particular ground of reverence for those holy places which had been the scenes of our Lord's life and death-principles which, after the lapse of five centuries, are, while I write these pages, again most powerfully affecting the destinies of Europe. Though the Greek Empire, for many cen (i) Lamberty, Mémoires, t. i. 353, cited Günther, ii. 445. turies before its destruction, occupied no position which affects the history of International Jurisprudence, yet the conquest of Constantinople by the Turks operated very injuriously upon the jus commune of Christendom; because thereby an important portion of Christendom has been, up to a very recent period, exempted from its influence, Events, however, which are now happening, the great internal changes in the habits and laws of that extraordinary people, and their increasing connection with the Christian States, are evidently preparing the way for a general diffusion of International justice among nations of different religious creeds. During the Middle Ages, the most remarkable features of International Jurisprudence are the maritime codes of commercial towns, the institution of the Consulate, the laws and customs of Embassies. ERA OF GROTIUS. It is strange that the admirable and luminous treatise of Suarez (k), De Legibus et Deo Legislatore, is not referred to by Grotius in his great work, because it appears from his other writings that he was acquainted (as indeed he could not but have been) with the works of this profound jurist. Suarez certainly cannot be claimed as a fruit of the Reformation, but at that epoch, from whatever cause, a new æra of International Jurisprudence opens upon us. Streaks of light from various countries, our own included, preceded the dawn of International Jurisprudence which appeared in the Mare Liberum of Grotius, (k) Born 1548, died 1617. published in 1609; but its full meridian shone forth in his great work, De Jure Belli et Pacis, which was published in 1624. It is scarcely too much to say, that no uninspired work has more largely contributed to the welfare of the Commonwealth of States. It is a monument which can only perish with the civilized intercourse of nations, of which it has laid down the master principles with a master's hand. Grotius first awakened the conscience of Governments to the Christian sense of International duty (7). His work has been blamed for a want of systematic arrangement, and because the examples which illustrate the principles of law are taken chiefly from classical times and classical literature; but these defects were, in truth, necessarily incident to the particular period at which he wrote. His work was defended from these charges by himself during his lifetime (m), and since his death has received a vindication from the pen of Sir James Mackintosh, which will not easily be surpassed (n). I would fain linger on the merits of this famous master-builder of International Jurisprudence, this great legislator of the community of States, but I am admonished by diminishing space to proceed. (1) "Christianis placuit," "Christianis in universum placuit," "hoc perfecit reverentia Christianæ legis," &c.-Vide post, p. 40. (m) In one of his latest letters to his brother, Grotius says of some one who had attacked his work: "Non probat quod, in illis libris De Jure Belli ac Pacis, utor Paganorum dictis: verùm non ita ut utor, ut illa sequi satis esse Christianis arbitror, sed ut erubescent Christiani si minùs præstent."-H. Grot. Epistolæ, Ep. 546, p. 920 (ed. Amstelod. 1687); and see Proleg. to De Jure B. et P. (n) Lecture on the Law of Nature and Nations. |