INTERNATIONAL LAW.

CHAPTER I.

HISTORY OF INTERNATIONAL LAW.

1. Division of the subject-2. International Law among the Jews-3. Among the ancient Greeks and Romans-4. The jus gentium of the Romans-5. Introduction of Christianity into the Roman Empire6. Fall of that Empire and its effects-7. International Law during the dark ages-8. Its origin in modern Europe-9. Injurious effects of Papal supremacy-10. Effects of the Reformation-II. Other causes of its advancement in the middle ages-12. The Rhodian Laws, Rooles d'Oléron, etc.-13. The Consolato del Mare, Guidon de la Mer, etc.-14. Writers on International Law prior to Grotius-15. Writings of Grotius-16. Political events from the peace of Westphalia to that of Utrecht-17. Questions of International Law agitated during that period-18. Writers on Public Law immediately following Grotius19. Political events from the peace of Utrecht to the end of the Seven Years' war-20. Questions of public law during that period-21. Writings of publicists-22. From the close of the Seven Years' war to the French Revolution-23. Questions of public law during that period -24. Writings on International Law-25. From the beginning of the French Revolution to the Congress of Vienna-26. Questions of International Law during that period-27. Writers on International Law-28. Decisions of judicial tribunals-29. From the Congress of Vienna to the Treaty of Washington-30. Questions of International Law during that period-31. Writers on International Law-32. From the Treaty of Washington to the beginning of Civil War in the United States-33. Questions agitated in America during this period -34. Questions agitated in Europe-35. Text-writers and judicial opinions-36. Diplomatic and legislative discussions.

§ I. IN the following sketch of the history of International Law, we shall divide the subject into periods of unequal length, but usually marked by some important event, and having reference rather to the progress of the law than the history of nations. This plan seems preferable to that adopted by Hallam, of dividing it arbitrarily into periods

of half a century each. We shall therefore consider the condition of international jurisprudence: 1st, Among the ancients; 2nd, From the beginning of the Christian era to the fall of the Roman Empire; 3rd, From the fall of the Roman Empire to the beginning of the Reformation; 4th, From the beginning of the Reformation to the peace of Westphalia; 5th, From the peace of Westphalia to the peace of Utrecht; 6th, From the peace of Utrecht to the close of the Seven Years' war; 7th, From the close of the Seven Years' war to the beginning of the French Revolution; 8th, From the beginning of French Revolution to the Congresses of Paris and Vienna in 1814 and 1815; 9th, From the Congress of Vienna to the treaty of Washington in 1842; 10th, From treaty of Washington to the Civil War in the United States in 1861.1

These divisions are somewhat different from those adopted by other writers, but they seem to us most rational, or at least, as best suited to the very brief historical outline which we propose.

First Period-International Law among the Ancients.

§ 2. The history of the Jews, as derived from the Old Testament and the writings of Josephus, furnishes much information relating to the rules by which the ancient Hebrews regulated their intercourse with other nations in peace and war. Grotius and other writers on international jurisprudence have illustrated their own views of public law by numerous examples taken from the history of this singular people, and Selden's International Law of the Jews, entitled De Jure Naturali et Gentium juxta disciplinam Ebræorum, is a work of great erudition. He very justly distinguishes between the usages and practices which were susceptible of general application, and those limited rules of conduct which constitute the jus gentium of the Roman lawyers. As might be expected from an isolated and religious people, most of the laws regulating their international intercourse in peace and war, were of the latter character. Nevertheless the history of the ancient Jews is well worthy of careful study in its connection with this branch of public law; but it must be remembered there is much in the Jewish dispensation,

1 To which we must add an eleventh period, viz., from the Civil War in the United States, to the present day.

although of Divine revelation, which has exclusive reference to them as a peculiar people, with a special mission to perform, and therefore not of general application.

§ 3. Nearly all our knowledge of international law among ancient States is derived from their intercourse with the Jews, and with the Greeks and Romans, more particularly with the latter. Although no professed treatise on international jurisprudence has been left us by any classical writer, nevertheless much information respecting this branch of public law among the Greeks and Romans has been elicited from their civil laws and military ordinances, and from the history of their numerous wars,-information calculated to throw much light upon the rules by which, at different periods, they regulated their intercourse with other nations. Most of these rules were exclusively founded on religion. The laws of peace and war, the inviolability of heralds and ambassadors, the right of asylum, and the obligation of treaties, were all consecrated by religious principles and rites. Ambassadors, heralds, and fugitives who took refuge in the temples, or on the household hearth, were deemed inviolable because they were invested with a sacred character and the symbols of religion. Treaties were sanctioned with solemn oaths, the violation of which, it was believed, must be followed by the vengeance of the Gods. War between nations of the same race and religion was declared with sacred rites and ceremonies. The heralds proclaimed its existence by devoting the enemy to the infernal deities.'

§ 4. What was called the law of nations (jus gentium) by the Romans, was not any positive system or code of jurisprudence established by the consent of all, or even the greater part, of the nations of the world, and applicable alike to themselves and others; it was simply a civil law of their own, made for the purpose of regulating their own conduct towards others in the hostile intercourse of war. It was, therefore, contracted in its nature, and somewhat illiberal in the character of its provisions. In proportion, however, as the Roman empire was extended, and as the Roman people established distant provinces and assimilated to itself the nations which it conquered, the jus gentium became more general and comprehensive in its character and more liberal in its precepts.

The Romans early incorporated into their maritime laws the principles of the nautical code of the Greeks, and as their commerce and intercourse with other nations increased, these laws became more liberal and general in their character and provisions. Many fragments of these old laws are still preserved and may be traced in the Code Theodosian, the Code, Digest, and Pandects of Justinian, in the Basilica, and the Maritime Constitutions promulgated by the Emperor Leon.1

Second Period-From the Christian Era to the Fall of the Roman Empire.

§ 5. The doctrines of the Christian religion, and the universality of their application, were well calculated to give a milder character and a greater extension to the principles of international law, than they had received either under the Jewish dispensation, or the defective and multifarious system of the Greek and Roman mythology. But its progress was comparatively slow, and the bitter persecutions suffered by the early Christians naturally engendered a spirit of retaliation. Moreover, it must be continually borne in mind, while tracing the history of international relations during the reigns of Constantine and the succeeding Christian emperors, that the contests which they carried on with barbarous States were not of a character to develop the refinements of a commercia belli, or even to cause the observance of the acknowledged usages of war, or the previously established practices of international intercourse in peace. It is also to be observed that the seeds of intellectual disease had already been sown, and that all branches of learning were on the decline, before the acknowledgment and toleration of Christianity in the empire, by the formal edict of pacification at the hands of Constantine. The revolution accomplished by Constantine,' says Schlegel, 'might have become a real, and by far the most comprehensive, regeneration of the Roman State, as it substituted for its originally defective and now completely rotten foundation of paganism, a new principle of life, and a higher and more potent energy of divine truth and eternal

1 Wheaton, Hist. Law of Nations; Ward, Law of Nations, vol. i. pp. 171 et seq.; Manning, Law of Nations; Boulay-Paty, Droit Com. Mar., t. i. pp. 33-54; Pardessus, Us et Coutumes de la Mer, tom. i. caps. 1-5; Laurent, Droit des Gens; Ritter de Fecial, Pop. Rom.

justice. But Christianity had not yet become the universal religion of the people, and the empire of Rome,-otherwise the great reaction, which took place under Julian, had not been possible. The peasantry, in particular, continued for a long time yet attached to the old idolatry; and hence the name of pagans was derived. Even Constantine, though he publicly declared himself a convert to Christianity, still did not dare to receive baptism immediately, and thus enter fully into the great community of Christians. The administration. of the Roman State was so completely interwoven with pagan rites and pagan doctrines, that, from an act of this public nature, dangerous collisions might have at first easily ensued. On the whole, the old Roman maxims and principles of State policy continued to prevail, even for a long time after the reign of Constantine; and the period had not yet arrived when Christianity was to work a fundamental reform throughout the whole political world, and a Christian government, if I may so speak, was to be established and organised on that eternal basis, and to strike a deep root and grow into the faith and life of the people, and into their habits and their feelings; but this great renovation was reserved for another and a later period.'

§ 6. It is not within the object of this chapter to investigate or describe the causes which finally overthrew the mighty fabric which valour and policy had founded on the seven hills of Rome, nor to trace the history of those barbarous nations of the north, who, by their martial energy and irresistible numbers and force, imposed their yoke upon the ancient possessors of that vast empire, and permanently settled themselves in its fairest provinces. The decline of taste and knowledge for several preceding ages, and the general corruption of political partisans and office-holders, had prepared the way for this revolution, and the establishment of the barbarian nations on the ruins of the Roman empire in the west, was accompanied, or immediately followed, by an almost universal loss of that learning which had been accumulated in the Greek and Latin languages. What of classical learning is still preserved to us, is the mere fragments of those magnificent intellectual temples, which industrious antiquaries have dug up from the vast ruins of ancient greatness. These fragments, however, are sufficient to show