International Law. A Treatise Volume I Part 5

[Sidenote: No need for a Law of Nations during the Middle Ages.]

-- 41. The Roman Empire gradually absorbed nearly the whole civilised ancient world, so far as it was known to the Romans. They hardly knew of any independent civilised States outside the borders of their empire.

There was, therefore, neither room nor need for an International Law as long as this empire existed. It is true that at the borders of this world-empire there were always wars, but these wars gave opportunity for the practice of a few rules and usages only. And matters did not change when under Constantine the Great (313-337) the Christian faith became the religion of the empire and Byzantium its capital instead of Rome, and, further, when in 395 the Roman Empire was divided into the Eastern and the Western Empire. This Western Empire disappeared in 476, when Romulus Augustus, the last emperor, was deposed by Odoacer, the leader of the Germanic soldiers, who made himself ruler in Italy. The land of the extinct Western Roman Empire came into the hands of different peoples, chiefly of Germanic extraction. In Gallia the kingdom of the Franks springs up in 486 under Chlodovech the Merovingian. In Italy, the kingdom of the Ostrogoths under Theoderich the Great, who defeated Odoacer, rises in 493. In Spain the kingdom of the Visigoths appears in 507. The Vandals had, as early as in 429, erected a kingdom in Africa, with Carthage as its capital. The Saxons had already gained a footing in Britannia in 449.

All these peoples were barbarians in the strict sense of the term.

Although they had adopted Christianity, it took hundreds of years to raise them to the standard of a more advanced civilisation. And, likewise, hundreds of years pa.s.sed before different nations came to light out of the amalgamation of the various peoples that had conquered the old Roman Empire with the residuum of the population of that empire.

It was in the eighth century that matters became more settled.

Charlemagne built up his vast Frankish Empire, and was, in 800, crowned Roman Emperor by Pope Leo III. Again the whole world seemed to be one empire, headed by the Emperor as its temporal, and by the Pope as its spiritual, master, and for an International Law there was therefore no room and no need. But the Frankish Empire did not last long. According to the Treaty of Verdun, it was, in 843, divided into three parts, and with that division the process of development set in, which led gradually to the rise of the several States of Europe.

In theory the Emperor of the Germans remained for hundreds of years to come the master of the world, but in practice he was not even master at home, as the German Princes step by step succeeded in establishing their independence. And although theoretically the world was well looked after by the Emperor as its temporal and the Pope as its spiritual head, there were constantly treachery, quarrelling, and fighting going on. War practice was the most cruel possible. It is true that the Pope and the Bishops succeeded sometimes in mitigating such practice, but as a rule there was no influence of the Christian teaching visible.

[Sidenote: The Fifteenth and Sixteenth Centuries.]

-- 42. The necessity for a Law of Nations did not arise until a mult.i.tude of States absolutely independent of one another had successfully established themselves. The process of development, starting from the Treaty of Verdun of 843, reached that climax with the reign of Frederic III., Emperor of the Germans from 1440 to 1493. He was the last of the emperors crowned in Rome by the hands of the Popes. At that time Europe was, in fact, divided up into a great number of independent States, and thenceforth a law was needed to deal with the international relations of these Sovereign States. Seven factors of importance prepared the ground for the growth of principles of a future International Law.

(1) There were, first, the Civilians and the Canonists. Roman Law was in the beginning of the twelfth century brought back to the West through Irnerius, who taught this law at Bologna. He and the other _glossatores_ and _post-glossatores_ considered Roman Law the _ratio scripta_, the law _par excellence_. These Civilians maintained that Roman Law was the law of the civilised world _ipso facto_ through the emperors of the Germans being the successors of the emperors of Rome. Their commentaries to the _Corpus Juris Civilis_ touch upon many questions of the future International Law which they discuss from the basis of Roman Law.

The Canonists, on the other hand, whose influence was unshaken till the time of the Reformation, treated from a moral and ecclesiastical point of view many questions of the future International Law concerning war.[35]

[Footnote 35: See Holland, Studies, pp. 40-58; Walker, History, I. pp.

204-212.]

(2) There were, secondly, collections of Maritime Law of great importance which made their appearance in connection with international trade. From the eighth century the world trade, which had totally disappeared in consequence of the downfall of the Roman Empire and the destruction of the old civilisation during the period of the Migration of the Peoples, began slowly to develop again. The sea trade specially flourished and fostered the growth of rules and customs of Maritime Law, which were collected into codes and gained some kind of international recognition. The more important of these collections are the following: The _Consolato del Mare_, a private collection made at Barcelona in Spain in the middle of the fourteenth century; the _Laws of Oleron_, a collection, made in the twelfth century, of decisions given by the maritime court of Oleron in France; the _Rhodian Laws_, a very old collection of maritime laws which probably was put together between the sixth and the eighth centuries;[36] the _Tabula Amalfitana_, the maritime laws of the town of Amalfi in Italy, which date at latest from the tenth century; the _Leges Wisbuenses_, a collection of maritime laws of Wisby on the island of Gothland, in Sweden, dating from the fourteenth century.

[Footnote 36: See Ashburner, "The Rhodian Sea Law" (1909), Introduction, p. cxii.]

The growth of international trade caused also the rise of the controversy regarding the freedom of the high seas (see below, -- 248), which indirectly influenced the growth of an International Law (see below, ---- 248-250).

(3) A third factor was the numerous leagues of trading towns for the protection of their trade and trading citizens. The most celebrated of these leagues is the Hanseatic, formed in the thirteenth century. These leagues stipulated for arbitration on controversies between their member towns. They acquired trading privileges in foreign States. They even waged war, when necessary, for the protection of their interests.

(4) A fourth factor was the growing custom on the part of the States of sending and receiving permanent legations. In the Middle Ages the Pope alone had a permanent legation at the court of the Frankish kings.

Later, the Italian Republics, as Venice and Florence for instance, were the first States to send out amba.s.sadors, who took up their residence for several years in the capitals of the States to which they were sent.

At last, from the end of the fifteenth century, it became a universal custom for the kings of the different States to keep permanent legations at one another's capital. The consequence was that an uninterrupted opportunity was given for discussing and deliberating common international interests. And since the position of amba.s.sadors in foreign countries had to be taken into consideration, international rules concerning inviolability and exterritoriality of foreign envoys gradually grew up.

(5) A fifth factor was the custom of the great States of keeping standing armies, a custom which also dates from the fifteenth century.

The uniform and stern discipline in these armies favoured the rise of more universal rules and practices of warfare.

(6) A sixth factor was the Renaissance and the Reformation. The Renaissance of science and art in the fifteenth century, together with the resurrection of the knowledge of antiquity, revived the philosophical and aesthetical ideals of Greek life and transferred them to modern life. Through their influence the spirit of the Christian religion took precedence of its letter. The conviction awoke everywhere that the principles of Christianity ought to unite the Christian world more than they had done hitherto, and that these principles ought to be observed in matters international as much as in matters national. The Reformation, on the other hand, put an end to the spiritual mastership of the Pope over the civilised world. Protestant States could not recognise the claim of the Pope to arbitrate as of right in their conflicts either between one another or between themselves and Catholic States.

(7) A seventh factor made its appearance in connection with the schemes for the establishment of eternal peace which arose from the beginning of the fourteenth century. Although these schemes were utopian, they nevertheless must have had great influence by impressing upon the Princes and the nations of Christendom the necessity for some kind of organisation of the numerous independent States into a community. The first of these schemes was that of the French lawyer, Pierre Dubois, who, as early as 1306, in "De Recuperatione Terre Sancte" proposed an alliance between all Christian Powers for the purpose of the maintenance of peace and the establishment of a Permanent Court of Arbitration for the settlement of differences between the members of the alliance.[37]

Another project arose in 1461, when Podiebrad, King of Bohemia from 1420-1471, adopted the scheme of his Chancellor, Antoine Marini, and negotiated with foreign courts the foundation of a Federal State to consist of all the existing Christian States with a permanent Congress, seated at Basle, of amba.s.sadors of all the member States as the highest organ of the Federation.[38] A third plan was that of Sully, adopted by Henri IV. of France, which proposed the division of Europe into fifteen States and the linking together of these into a federation with a General Council as its highest organ, consisting of Commissioners deputed by the member States.[39] A fourth project was that of emeric Crucee, who, in 1623, proposed the establishment of a Union consisting not only of the Christian States but of all States then existing in the whole of the world, with a General Council as its highest organ, seated at Venice, and consisting of amba.s.sadors of all the member States of the Union.[40]

[Footnote 37: See Meyer, "Die staats- und volkerrechtlichen Ideen von Pierre Dubois" (1909); Schucking, "Die Organisation der Welt" (1909), pp. 28-30; Vesnitch, "Deux Precurseurs Francais du Pacifism, etc."

(1911), pp. 1-29.]

[Footnote 38: See Schwitzky, "Der Europaeische Furstenbund Georg's von Podiebrad" (1909), and Schucking, "Die Organisation der Welt" (1909), pp. 32-36.]

[Footnote 39: See Nys, "etudes de Droit International et de Droit Politique" (1896), pp. 301-306, and Darby, "International Arbitration"

(4th ed. 1904), pp. 10-21.]

[Footnote 40: See Balch, "Le Nouveau Cynee de emeric Crucee" (1909); Darby, "International Arbitration" (4th ed. 1904), pp. 22-33; Vesnitch, "Deux Precurseurs Francais du Pacifism, etc." (1911), pp. 29-54.

The schemes enumerated in the text are those which were advanced before the appearance of Grotius's work "De Jure Belli ac Pacis" (1625). The numerous plans which made their appearance afterwards--that of the Landgrave of Hesse-Rheinfels, 1666; of Charles, Duke of Lorraine, 1688; of William Penn, 1693; of John Bellers, 1710; of the Abbe de St. Pierre (1658-1743); of Kant, 1795; and of others--are all discussed in Schucking, "Die Organisation der Welt" (1909), and Darby, "International Arbitration" (4th ed. 1904). They are as utopian as the pre-Grotian schemes, but they are nevertheless of great importance. They preached again and again the gospel of the organisation of the Family of Nations, and although their ideal has not been and can never be realised, they drew the attention of public opinion to the fact that the international relations of States should not be based on arbitrariness and anarchy, but on rules of law and comity. And thereby they have indirectly influenced the gradual growth of rules of law for these international relations.]

II

DEVELOPMENT OF THE LAW OF NATIONS AFTER GROTIUS

Lawrence, ---- 29-53, and Essays, pp. 147-190--Halleck, I. pp.

12-45--Walker, History, I. pp. 138-202--Taylor, ---- 65-95--Nys, I.

pp. 19-46--Martens, I. ---- 21-33--Fiore, I. Nos. 32-52--Calvo, I.

pp. 32-101--Bonfils, Nos. 87-146--Despagnet, Nos.

20-27--Merignhac, I. pp. 43-78--Ullmann, ---- 15-17--Laurent, "Histoire du Droit des Gens, &c.," 14 vols. (2nd ed.

1861-1868)--Wheaton, "Histoire des Progres du Droit des Gens en Europe" (1841)--Bulmerincq, "Die Systematik des Volkerrechts"

(1858)--Pierantoni, "Storia del diritto intern.a.z.ionale nel secolo XIX." (1876)--Hosack, "Rise and Growth of the Law of Nations"

(1883), pp. 227-320--Brie, "Die Fortschritte des Volkerrechts seit dem Wiener Congress" (1890)--Gareis, "Die Fortschritte des internationalen Rechts im letzten Menschenalter" (1905)--Dupuis, "Le Principe d'equilibre et le Concert Europeen de la Paix de Westphalie a l'Acte d'Algesiras" (1909)--Strupp, "Urkunden zur Geschichte des Volkerrechts," 2 vols. (1911).

[Sidenote: The time of Grotius.]

-- 43. The seventeenth century found a mult.i.tude of independent States established and crowded on the comparatively small continent of Europe.

Many interests and aims knitted these States together into a community of States. International lawlessness was henceforth an impossibility.

This was the reason for the fact that Grotius's work "De Jure Belli ac Pacis libri III.," which appeared in 1625, won the ear of the different States, their rulers, and their writers on matters international. Since a Law of Nations was now a necessity, since many principles of such a law were already more or less recognised and appeared again among the doctrines of Grotius, since the system of Grotius supplied a legal basis to most of those international relations which were at the time considered as wanting such basis, the book of Grotius obtained such a world-wide influence that he is correctly styled the "Father of the Law of Nations." It would be very misleading and in no way congruent with the facts of history to believe that Grotius's doctrines were as a body at once universally accepted. No such thing happened, nor could have happened. What did soon take place was that, whenever an international question of legal importance arose, Grotius's book was consulted, and its authority was so overwhelming that in many cases its rules were considered right. How those rules of Grotius, which have more or less quickly been recognised by the common consent of the writers on International Law, have gradually received similar acceptance at the hands of the Family of Nations is a process of development which in each single phase cannot be ascertained. It can only be stated that at the end of the seventeenth century the civilised States considered themselves bound by a Law of Nations the rules of which were to a great extent the rules of Grotius. This does not mean that these rules have from the end of that century never been broken. On the contrary, they have frequently been broken. But whenever this occurred, the States concerned maintained either that they did not intend to break these rules, or that their acts were in harmony with them, or that they were justified by just causes and circ.u.mstances in breaking them. And the development of the Law of Nations did not come to a standstill with the reception of the bulk of the rules of Grotius. More and more rules were gradually required and therefore gradually grew. All the historically important events and facts of international life from the time of Grotius down to our own have, on the one hand, given occasion to the manifestation of the existence of a Law of Nations, and, on the other hand, in their turn made the Law of Nations constantly and gradually develop into a more perfect and more complete system of legal rules.

It serves the purpose to divide the history of the development of the Law of Nations from the time of Grotius into seven periods--namely, 1648-1721, 1721-1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899, 1899-1911.

[Sidenote: The period 1648-1721.]

-- 44. The ending of the Thirty Years' War through the Westphalian Peace of 1648 is the first event of great importance after the death of Grotius in 1645. What makes remarkable the meetings of Osnaburg, where the Protestant Powers met, and Munster, where the Catholic Powers met, is the fact that there was for the first time in history a European Congress a.s.sembled for the purpose of settling matters international by common consent of the Powers. With the exception of England, Russia, and Poland, all the important Christian States were represented at this congress, as were also the majority of the minor Powers. The arrangements made by this congress show what a great change had taken place in the condition of matters international. The Swiss Confederation and the Netherlands were recognised as independent States. The 355 different States which belonged to the German Empire were practically, although not theoretically, recognised as independent States which formed a Confederation under the Emperor as its head. Of these 355 States, 150 were secular States governed by hereditary monarchs (Electors, Dukes, Landgraves, and the like), 62 were free-city States, and 123 were ecclesiastical States governed by archbishops and other Church dignitaries. The theory of the unity of the civilised world under the German Emperor and the Pope as its temporal and spiritual heads respectively was buried for ever. A mult.i.tude of recognised independent States formed a community on the basis of equality of all its members.

The conception of the European equilibrium[41] made its appearance and became an implicit principle as a guaranty of the independence of the members of the Family of Nations. Protestant States took up their position within this family along with Catholic States, as did republics along with monarchies.

[Footnote 41: See below, pp. 64, 65, 80, 193, 307.]

In the second half of the seventeenth century the policy of conquest initiated by Louis XIV. of France led to numerous wars. But Louis XIV.

always pleaded a just cause when he made war, and even the establishment of the ill-famed so-called Chambers of Reunion (1680-1683) was done under the pretext of law. There was no later period in history in which the principles of International Law were more frivolously violated, but the violation was always cloaked by some excuse. Five treaties of peace between France and other Powers during the reign of Louis XIV. are of great importance. (1) The Peace of the Pyrenees, which ended in 1659 the war between France and Spain, who had not come to terms at the Westphalian Peace. (2) The Peace of Aix-la-Chapelle, which ended in 1668 another war between France and Spain, commenced in 1667 because France claimed the Spanish Netherlands from Spain. This peace was forced upon Louis XIV. through the triple alliance between England, Holland, and Sweden. (3) The Peace of Nymeguen, which ended in 1678 the war originally commenced by Louis XIV. in 1672 against Holland, into which many other European Powers were drawn. (4) The Peace of Ryswick, which ended in 1697 the war that had existed since 1688 between France on one side, and, on the other, England, Holland, Denmark, Germany, Spain, and Savoy. (5) The Peace of Utrecht, 1713, and the Peace of Rastadt and Baden, 1714, which ended the war of the Spanish Succession that had lasted since 1701 between France and Spain on the one side, and, on the other, England, Holland, Portugal, Germany, and Savoy.

But wars were not only waged between France and other Powers during this period. The following treaties of peace must therefore be mentioned:--(1) The Peaces of Roeskild (1658), Oliva (1660), Copenhagen (also 1660), and Kardis (1661). The contracting Powers were Sweden, Denmark, Poland, Prussia, and Russia. (2) The Peace of Carlowitz, 1699, between Turkey, Austria, Poland, and Venice. (3) The Peace of Nystaedt, 1721, between Sweden and Russia under Peter the Great.

The year 1721 is epoch-making because with the Peace of Nystaedt Russia enters as a member into the Family of Nations, in which she at once held the position of a Great Power. The period ended by the year 1721 shows in many points progressive tendencies regarding the Law of Nations. Thus the right of visit and search on the part of belligerents over neutral vessels becomes recognised. The rule "free ships, free goods," rises as a postulate, although it was not universally recognised till 1856. The effectiveness of blockades, which were first made use of in war by the Netherlands at the end of the sixteenth century, rose as a postulate and became recognised in treaties between Holland and Sweden (1667) and Holland and England (1674), although its universal recognition was not realised until the nineteenth century. The freedom of the high seas, claimed by Grotius and others, began gradually to obtain recognition in practice, although it did likewise not meet with universal acceptance till the nineteenth century. The balance of power is solemnly recognised by the Peace of Utrecht as a principle of the Law of Nations.

[Sidenote: The period 1721-1789.]

-- 45. Before the end of the first half of the eighteenth century peace in Europe was again disturbed. The rivalry between Austria and Prussia, which had become a kingdom in 1701 and the throne of which Frederick II.

had ascended in 1740, led to several wars in which England, France, Spain, Bavaria, Saxony, and Holland took part. Several treaties of peace were successively concluded which tried to keep up or re-establish the balance of power in Europe. The most important of these treaties are: (1) The Peace of Aix-la-Chapelle of 1748 between France, England, Holland, Austria, Prussia, Sardinia, Spain, and Genoa. (2) The Peace of Hubertsburg and the Peace of Paris, both of 1763, the former between Prussia, Austria, and Saxony, the latter between England, France, and Spain. (3) The Peace of Versailles of 1783 between England, the United States of America, France, and Spain.

These wars gave occasion to disputes as to the right of neutrals and belligerents regarding trade in time of war. Prussia became a Great Power. The so-called First Armed Neutrality[42] made its appearance in 1780 with claims of great importance, which were not generally recognised till 1856. The United States of America succeeded in establishing her independence and became a member of the Family of Nations, whose future att.i.tude fostered the growth of several rules of International Law.

[Footnote 42: See below, Vol. II. ---- 289 and 290, where details concerning the First and Second Armed Neutrality are given.]