ferocious warfare deformed the annals of Europe. The manners of nations were barbarous, and their maxims of war cruel. Slavery was considered as a lawful consequence of captivity. Mr. Barrington (a) has, indeed, cited the laws of the Visigoths, Saxons, Sicilians, and Bavarians, as restraining, by the severest penalties, the plunder of shipwrecked goods, and the abuse of shipwrecked seamen, and as extending the rights of hospitality to strangers. But, notwithstanding a few efforts *9 of this kind to introduce order and justice, and though municipal law had undergone great improvement, the law of nations remained in a rude and uncultivated state, down to the period of the 16th century. In many instances, shipwrecked strangers were made prisoners, and sold as slaves, without exciting any complaint, or offending any public sense of justice. Numerous cases occurred of acts of the greatest perfidy and cruelty towards strangers and enemies. Prisoners were put to death for their gallantry and brave defence in war. There was no reliance upon the word and honor of men in power. Reprisals and private war were in constant activity. Instances were frequent of the violation of embassies, of the murder of hostages, the imprisonment of guests, and the killing of heralds. The victor in war had his option in dealing with his prisoners, either to put them to death, or reduce them to slavery, or exact an exorbitant ransom for their deliverance. So late as the time of Cardinal Richelieu, it was held to be the right of all nations to arrest strangers who came into the country without a safe-conduct. (b) The Emperor Charlemagne made distinguished efforts to improve the condition of Europe, by the introduction of order and the propagation of Christianity; and we have cheering examples during the darkness of the middle ages, of some recognition of public law by means of alliances, and the submission of disputes to the arbitrament of a neutral power. Mr. Ward enumerates five institutions, existing about the period of the 11th century, which made a deep impression upon Europe, and contributed, in a very essential degree, to improve the law of nations. (c) These institutions were the feudal system, the concurrence of Europe (a) Observations on the Statutes, chiefly the more ancient, p. 22. (c) Ib. vol. i. 322-328. *10 in one form of religious worship and government, the * establishment of chivalry, the negotiations and treaties forming the conventional law of Europe, and the settlement of a scale of political rank and precedency. Influence of Of all these causes of reformation, the most weight Christianity is to be attributed to the intimate alliance of the great powers as one Christian community. The influence of Christianity was very efficient towards the introduction of a better and more enlightened sense of right and justice among the gov ernments of Europe. It taught the duty of benevolence to strangers, of humanity to the vanquished, of the obligation of good faith, and of the sin of murder, revenge, and rapacity. The history of Europe, during the early periods of modern history, abounds with interesting and strong cases, to show the authority of the Church over turbulent princes and fierce warriors, and the effect of that authority in meliorating manners, checking violence, and introducing a system of morals, which inculcated peace, moderation, and justice. The Church had its councils or convocations of the clergy, which formed the nations professing Christianity into a connection resembling a federal alliance, and those councils sometimes settled the titles and claims of princes, and regulated the temporal affairs of the Christian powers. The confederacy of the Christian nations. was bound together by a sense of common duty and interest in respect to the rest of mankind. It became a general principle of belief and action, that it was not only a right, but a duty, to reduce to obedience, for the sake of conversion, every people who professed a religious faith different from their own. To make war upon infidels was, for many ages, a conspicuous part of European public law; but this gross perversion of the doctrines and spirit of Christianity had at least one propitious effect upon the Christian powers, inasmuch as it led to the cultivation of peace and union between them, and to a more free and civilized intercourse. The notion that it was lawful to invade and subdue Mahometan and Pagan countries, continued very long to sway the minds of men; and it was not till after the age of * 11 Grotius and Bacon, that *this error was entirely eradicated. Lord Coke (a) held, that an alliance for mutual defence (a) 4 Inst. 155. was unlawful between Christians and Turks; and Grotius was very cautious as to the admission of the lawfulness of alliances. with infidels, and he had no doubt that all Christian nations were bound to assist one another against the attacks of infidels. (a) Even Lord Bacon (b) thought it a matter of so much doubt, as to propound it seriously as a question, whether a war with infidels was not first in order of dignity, and to be preferred to all other just temporal quarrels ; and whether a war with infidels might not be undertaken merely for the propagation of the Christian faith, without other cause of hostility. Of Chiv Of the Civil Law. The influence of chivalry was beneficial upon the laws of war. It introduced declarations of war by alry. heralds; and to attack an enemy by surprise was deemed cowardly and dishonorable. It dictated humane treatment to the vanquished, courtesy to enemies, and the virtues of fidelity, honor, and magnanimity in every species of warfare. The introduction and study of the civil law must also have contributed largely to more correct and liberal views of the rights and duties of nations. It was impossible that such a refined and wise system of municipal and ethical jurisprudence as the Roman law, could have been taught in universities and schools, and illustrated by a succession of eminent civilians, who were worthy of being associated with the Roman sages, without at the same time producing a great effect upon the public mind. This grand monument of the embodied wis (a) Grotius, b. 2, c. 15, sec. 11, 12. The university of Salamanca, as early as 1550, decided in favor of Las Casas upon the thesis maintained by Sepulveda, and refuted by Las Casas, that it was a right and duty to make war upon Pagans and Heretics, in order to propagate the true faith. But the minds of men in Catholic countries remained long unsettled on this point, and the doctrines of Sepulveda are said to have been sanctioned within the period of the last fifty years, by the Royal Academy of History at Madrid. (Dict. Hist. art. Sepulveda. Verplanck's Discourse before the New York Historical Society, 1818.) Even as late as 1718, the Emperor Charles VI. commissioned two ships of war to cruise "through any seas, far and wide, to follow and pursue any such as are the enemies of our august house, but chiefly the enemies of the Christian name." The commission was dated at Vienna, July 16, 1718. But afterwards the commission was restricted by an additional instruction, dated at Brussels, 28th September, 1718, to war "against the Spaniards, but not against any other power, though even enemies to the Christian name." See the commission at large in Callender's Voyages, vol. iii. 447, 450. (b) Bacon's Works, vol. iii. 472, 492. dom of the ancients, when once known and examined, must have reflected a broad stream of light upon the feudal institutions and the public councils of the European nations. We * accordingly find that the rules of the civil law were applied 12 to the government of national rights, and they have *contributed very materially to the erection of the modern international law of Europe. From the 13th to the 16th century, all controversies between nations were adjudged by the rules of the civil law. Of Treaties. Treaties, conventions, and commercial associations had a still more direct and visible influence in the formation of the great modern code of public law. They gave a new character to the law of nations, and rendered it more and more of a positive or instituted code. Commercial ordinances and conventions contributed greatly to improve and refine public law and the intercourse of nations, by protecting the persons and property of merchants in cases of shipwreck, and against piracy, and against seizure and arrest, upon the breaking out of war. Auxiliary treaties were tolerated, by which one nation was allowed to be an enemy to a certain extent only. Thus, if in time of peace, a defensive treaty had been made between one of the parties to a subsequent war and a third power, by which a certain number of troops were to be furnished in case of war, a compliance with this engagement implicated the auxiliary as a party to the war, only so far as her contingent was concerned. The nations of Europe had advanced to this extent in diplomatic science as early as the beginning of the 13th century, and such a refinement was totally unknown to the ancients. (a) Treaties of subsidy showed also the progress of the law of nations. The troops of one nation, to a definite extent, could be hired for the service of one of the belligerents, without affording ground for hostility with the community which supplied the specific aid. The rights of commerce began to be regarded as under the pro (a) Under Henry III., in 1240, the Flemings obtained leave to carry on their trade as usual, when England and France were at war, so long as they took no other part in the war than what their earl, under his feudal relation to the crown of France, was called upon by reason of his homage to perform. Southey's Early Naval History of England, vol. i. 180. tection of the law of nations, and Queen Elizabeth complained of the Spaniards, that they had prohibited commerce in the Indian seas, contrary to that law. The efforts that were made, upon the revival of com- Law concerning shipmerce, to suppress piracy, and protect shipwrecked wrecks. property, show a returning sense of the value, and of the obligations of national justice. The case of shipwrecks may be cited, and dwelt upon for a moment, as a particular and strong instance of the feeble beginnings, the slow and *13 interrupted progress, and final and triumphant success of the principles of public right. Valin (a) imputes the barbarous custom of plundering shipwrecked property, not merely to the ordinary cupidity for gain, but to a more particular and peculiar cause. The earliest navigators were almost all pirates, and the inhabitants of the coasts were constantly armed against their depredations, and whenever they had the misfortune to be shipwrecked, they were pursued with a vindictive spirit, and deemed. just objects of punishment. The practice of plundering shipwrecks has been traced to the Rhodians, and from them it passed to the Romans; and the efforts to restrain it were very feeble and gradual, and mixed with much positive injustice. The goods cast ashore first belonged to the fortunate occupant, and then they were considered as belonging to the state. This change from private to public appropriation of the property, rendered a returning sense of right and duty more natural and easy. The Emperors Hadrian and Antoninus had the honor of having first renounced the claim to shipwrecked property in favor of the rightful owner. (b) But the inhuman customs on this subject were too deeply rooted to be eradicated by the wisdom and vigilance of the Roman lawgivers. The laws in favor of the unfortunate were disregarded by succeeding emperors, and when the empire itself was overturned by the northern barbarians, the laws of humanity were swept away in the tempest; and the continual depredations of the Saxons and Normans induced the inhabitants of the western coasts of Europe to treat all navigators, who were thrown by the perils of the sea upon their shores, as pirates, and to punish them as such, without inquiry or discrimination. VOL. I. (a) Com. sur. Ord. tom. ii. 579–587. (b) Vinnius in Inst. lib. 2, tit. 1, art. 47, note 5. Valin, ub. sup. 2 |