Volume I Part 5 (1/2)
[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 establis.h.i.+ng 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 masters.h.i.+p 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.]