and justice. to revive and introduce anything like the reign of law, order, "The Goths, Vandals, and Thuringians, like the Vikings of the north in later days, burned, pillaged, and slew without mercy. They ravaged fields, uprooted vines, cut down olive-trees and burned without distinction all buildings sacred or profane, leaving their track behind them in smouldering ruins. . . . They slew in attack alike priest and layman, man and woman, and put to death their prisoners in the most cruel fashion. . . . Even after the formal adoption of Christianity the war practice of the barbarian conquerors was more than brutal.” 1 .. The vestiges of civilization remained only on the eastern seaboard of the Mediterranean and in the West with the church, which at this juncture, historians declare, alone saved civilization in Europe. In the midst of wars priests like Gregory of Tours cried out continually against every form of cruelty, and happily not always in vain. The Saracen invasion of Europe in 713 brought a new element into European civilization, but with a code of war and peace more advanced and more humane than anything existing on that continent in their times. With the coronation of Charlemagne by Pope Leo III in A. D. 800 the Dark Ages may be said to come to a close, and the name of the Roman Empire and Emperor was revived, and also much of the reality of imperial control. With it came, however, the age of feudalism, which was practically contemporaneous with the Middle Ages. Under the successors of Charlemagne it prevailed throughout the civilized world. It lasted until the fifteenth century and was both a system of land tenure and a system of government. Interfeudal intercourse was again controlled by brute force or somewhat regulated violence. Notwithstanding, however, the conflict and troubles in which the papacy was involved, the Roman Church never ceased to stand for peace in these times of feudalism and brutal force 1 Walker, "History of the Law of Nations," vol. I, p. 65. and in place of the existing violence offered the ideals of Christian fraternity. The unity of the Christian religion had its great influence with its common beliefs and forms of worship, while the Crusades (1096-1291) had their effect as shown in the paragraphs that follow. "In the courts of the feudal lords," says Hill," the judgment of God was sought by the trial of battle, where litigants, witnesses, and judges decided the case by physical combat. But in the ecclesiastical courts justice was determined by the code of canon law, which invoked the principles of reason and equity." "If the popes inspired and organized the Crusades, thus appealing to the use of force, it was not because they loved war but because the holy places were in danger. . . While the church was using its authority to ameliorate the abuses of private warfare in Europe it was thus elevating the power of the sword by the control of noble and refining principles in Asia. By its protection of the helpless and the innocent, which was made the ambition of the Christian knight, chivalry was at the same time ennobling the practice of arms and preparing the forces which were to overthrow feudalism as a social institution. The recognition of the rights of the humble, the association of the Crusades in a common cause, the formation of codes of honor, the emancipation of men from feudal obligations as a reward for their heroic deeds, the return to their places of origin of a new class of freemen were all to constitute a new leaven for the reorganization of society." 1 Nevertheless, the warfare of the Crusades, especially as shown in their capture of Jerusalem by assault in 1099, exhibited at times, unfortunately, that brutality which then pervaded warfare elsewhere and which lasted in Europe until after the time of Grotius and the Thirty Years' War. The revived study of the Roman law, the results of the Crusades as a whole, the influence of chivalry, the development Hill, "History of Diplomacy," vol. I, pp. 271, 272. of commerce and its codes of laws, the incidental formation of leagues of cities, the Reformation, and, finally, the discovery of America all tended toward the advance of civilization, the improvement of the intercourse of peoples, and the development of the laws of nations. Notwithstanding the continued savagery of war, or perhaps on that very account, attempts were being made from time to time for the establishment of peace by means of the "Truce of God" to restrict private warfare and by means of associations or peace leagues to establish the "Peace of God." More effective than either of these was the institution in France of the Quarantaine le Roy, which provided for an enforced lapse of forty days between the outbreak of a quarrel and the beginning of hostilities. Apparently the modern systems of peace societies and the proposed intervals before a declaration of war are only revivals from the ancient days and not especially the creation of modern enlightenment. But the supplanting of feudal justice by the adoption of royal tribunals and decrees was having a wholesome effect toward peace. Writers of note began to challenge the attention of the educated by opposition to the supremacy of any world power and by condemnation of the inhumanity of existing warfare. The ideas of the territorial sovereignty of in- W dividual rulers and nations, the legal equality of states, and the question of the balance of power and the equilibrium of European forces began to be discussed and was established, in fact, by the leading municipalities of Italy. The forerunners of Grotius were having their audience and the times were almost ripe for Grotius himself. 21. The Predecessors of Grotius.-Among the predecessors of Grotius were a number of writers who discussed matters directly and indirectly that are now found comprised within modern international law. Among them were Legnano (1360); Christine of Pisa, a woman born in Venice in 1363; Machiavelli (1469-1527); Victoria, a Dominican monk (1480– 1549), whose works were published in 1557; Bodin (1530-96); Ayala (1548-84); Suarez (1548-1617); and Gentilis, born in 1552. The writers just mentioned were philosophers, theologians, and humanitarians, excepting the famous Machiavelli, an Italian statesman about whose position there has been much debate. His work, "The Prince," published after his death, treated of the policy of rulers and has been the cause of much disrepute to his name in later days. He condemned neutrality, for instance, in wars on the ground that it was more profitable to declare for one side or the other. Victoria, in 1557, disputed the claim of the papacy for world temporal power, while Francisco Suarez, as will be seen, advanced a complete philosophic theory of international law. This writer, Suarez, gave in his work, published in 1612, an admirable statement of the conditions that rendered necessary the foundation and existence of international law among states and communities. Upon this matter he said: "The human race, however divided into various peoples and kingdoms, has always not only its unity as a species but also a certain moral and quasi-political unity, pointed out by the natural precept of mutual love and pity which extends to all, even to foreigners of any nation. Wherefore, although every perfect state, whether a republic or a kingdom, is in itself a perfect community composed of its own members, still each such state, viewed in relation to the human race, is in some measure a member of that universal unity. For those communities are never singly so self-sufficing but that they stand in need of some mutualaid society and communion, sometimes for the improvement of their condition and their greater commodity, but sometimes also for their moral necessity and need, as appears by experiFor that reason they are in need of some law by which they may be directed and rightly ordered in that kind of communion and society. And, although this is to a great extent supplied by natural reason, yet it is not so supplied sufficiently and immediately for all purposes, and therefore it has been ence. possible for particular laws to be introduced by the practice of those same nations. For just as custom introduces law in a state or province, so it was possible for laws to be introduced in the whole human race by the habitual conduct of nations. And that all the more because the points which belong to this law are few and approach very nearly to natural law, and being easily deduced from it are useful and agreeable to nature, so that although this law cannot be plainly deduced as being altogether necessary in itself to laudable conduct, still it is very suitable to nature and such as all may accept for its own sake." The most famous of the predecessors of Grotius, however, was Albericus Gentilis, an Italian Protestant jurist, who left Italy some little time after his graduation at Perugia and found his way to England, and was while there appointed professor of civil law at Oxford in 1587. His first work dealt with the history of legation. In 1588 and 1589 he published in part his best-known work: "De Jure Belli." His third book, published in 1613, treated of the laws of neutrality, a subject little considered at this time while its treatment by him was not only far in advance of his time but also more advanced than any discussion made by Grotius himself upon the matter. Walker declares that "his resolutions are well-nigh, if not in every case, identical with the decisions of modern international law." In its framework the principal work of Gentilis, "De Jure Belli," was followed as a model by Grotius himself. 2 22. Grotius, the founder of the Science of Modern International Law. The great exponent of the principles of modern international law, and the first to arrest the attention of the whole civilized world upon the matter, was Hugo Grotius. His great work upon the subject, written in Latin, bore the title, "De Jure Belli ac Pacis," and was published in 1625. 1 Quoted in Westlake's "Principles," etc., pp. 26, 27. |