Page images


grew up a sort of corpus juris fecialis, apparently embracing many of the doctrines of international law. Belli, quidem, equitas, sanctissime, feciali populi jure, præscripta est. *

But this laudable institution does not appear to have long survived the liberties of Rome. Amid the commotions of intestine civil wars, it could be of little use.

The name of feciales came to be a mere title of honour, and the institution disappeared, under the first emperors. Indeed it was not to be expected, that a people could long continue to recognise the principle of national independence in other states, whose policy, for a series of ages, was to subject to their sway, all the surrounding nations, whose empire came in time to embrace all the civilized part of the habitable globe, and who viewed all the nations beyond the imperial territories, as barbarians, with reference to whom, they did not consider themselves bound to observe the ordinary rules of justice.

The jus feciale, whatever may have been its doc. trines, it is to be regretted has not reached modern times. But even Cicero does not appear to have had any very distinct notion of international law. For in ascribing to Cicero an acquaintance with international law, as a science, Grotius, as Von Ompteda observes, has not only erred himself, but has misled others. In the passage referred to by Grotius, in the Proleg. & i. namely, Pro Balbo, chap. 6.; Cicero merely eulogises, as an orator, Pompey's knowledge, as a statesman, of leagues, treaties, the conditions of foreign nations, and of the universal law of war and peace; but, does not, as a philosopher, represent international law, as having

* Cicero de Off. Lib. i.

been then cultivated as a science. And, in the two principal passages, in which Cicero makes mention of the Jus gentium, de Offic. lib. iii. cap. 3. and cap. 6, it is manifest, he means by that expression, nothing more, than the general jus nature, which is common to mankind, as rational beings, as distinguished from the lower animals, and which he opposes to the jus civile, or the internal peculiar legislation or jurisprudence of a state, by no means the reciprocal rights and obligations of whole nations, in relation to each other. *

As little do the classical jurisconsults of Imperial Rome, from whose writings, the compilations of Justinian, or rather of Tribonian, were taken, appear to have had any distinct notion of international law, properly so called, as to have cultivated it as a science.

Thus, in distinguishing the jus gentium from the jus civile, at the commencement of his Institutions, so happily discovered recently at Verona by Bluhme, and edited by professor Goeschen, in 1824, the jurisconsult Gaius, who lived in the second century, obviously means by the jus gentium, not any body of rules, between nation and nation, in the modern sense of these terms, but that collection of internal regulations, which, all nations, who have made any progress in civilization, adopt, or use in common. “Omnes homines, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure, utuntur. *** Quod vero, naturalis ratio inter omnes homines constituit, id apud omnes populos peræque custoditur, vocaturque jus gentium, quasi quo jure, omnes gentes utuntur.” Here the jus gentium is described as merely inter

: * Von Ompteda Litt. § 36.


homines, between, or among, individuals, of the same state; not inter populos, or inter gentes; although used by them, in common, within their respective territories.

Thus, in the same way, Ulpian, who lived in the third century, and whose fragments were corrected from the unique Vatican manuscript, and published in 1822, by professor Hugo; " Jus gentium est, quo gentes humanæ utuntur ; quod, a naturali recedere, facile intelligere licet ; quia illud omnibus animalibus, hoc solis hominibus, inter se, commune est ;'* obviously understanding by jus gentium, that branch of the internal law of a state, which is not peculiar to it, but which it enforces, in common with all other civilized nations.

Hermogenianus, also, who lived in the fourth century, describes the jus gentium, and this description, which seems to have puzzled Vattel, in his Droit des Gens, certainly approaches somewhat nearer to the true sense of international law, as now settled. Thus, “ Ex hoc jure gentium, introducta bella, discretæ gentes, regna condita, dominia distincta, terris termini positi, ædificia collocata, commercium, emptiones-venditiones, locationes-conductiones, obligationes, instituta.” But of these matters, whose origin is thus ascribed to the jus gentium, only the three first, the introduction of wars, the separation of nations, and the foundation of states, are connected with international law, properly so called; all the rest belong to internal private law, or jurisprudence, or at least to that natural law, which is common to all individual men. This description, too, is placed in connexion with a fragment, in which Ulpian speaks of a jus gentium, which is obviously merely the jus

* Dig. L. 1. § 4.

nature, common to all men. In the description itself, likewise, many things are mingled, which cannot be entirely derived froin, or classed under, international law, properly so called. And, upon the whole, we may conclude, that Hermogenianus had not any more distinct notion, of what we now understand, by such terms, than the more illustrious Roman jurisconsults, who preceded him.

In the same way, Tribonian, whom Justinian employed, to compile his Digest and Institutions, from the writings of the classical jurisconsults of Rome, appears to have had no other notion of the jus gentium, than what was entertained by his more able predecessors, Gaius and Ulpian. Vattel seems to have some difficulty as to this matter; but the correctness of this observa. tion is manifest, from a comparison of the passages, which in the composition of the Institutes, Tribonian excerpted from the works of these authors, and in which the words jus gentium occur. Indeed, it is plain, from $ ii. of the Institutes, de Rerum Divisione, that Tribonian considered the jus naturæ, or jus naturale, and the jus gentium, as synonymous; for he expressly states, “ Quarundam, enim, rerum dominium nanciscimur, jure naturali ; quod, sicut diximus, appellatur jus gentium.”

The result of this investigation is, that the Roman lawyers had no accurate, or distinct idea, of what has been called, in modern times, the law of nations, or more correctly international law; but merely understood by the terms, jus gentium, the collections of those rules, which nations, who had made any progress in civilization observed in common, and enforced within

[ocr errors]



their respective territories. Such however, was the influence of the Digest, Institutes, and other compilations of Justinian, in the middle ages, that the meaning, attached by the Roman lawyers, to the term, jus gentium, was adopted by many authors, in later times. And it was, therefore, necessary to ascertain decidedly, what was really the meaning of these terms, as used by the Romans, in order to be able to judge of the works of many of these later writers.


Of International Law during the Middle Ages.

Having thus seen, how vague and indistinct, were the notions of international law, entertained in ancient times, and how little it was viewed, or cultivated, as a separate science, susceptible of systematic arrangement, we proceed shortly to trace its progress and cultivation, after the subversion of the Roman empire in the west, when the provinces, conquered by the northern nations, came to be divided into separate kingdoms, principalities, republics, or states. And, from this division of the Roman provinces, embracing almost the whole of Europe, among the different northern invading nations, into separate kingdoms, republics, or states, independent of each other, but of which the population was connected by various ties, and were, in time, led to frequent intercourse, from community of race, or origin, from strong affinity, though not identity of language, and from the adoption of the same religion, there can be no doubt,

« PreviousContinue »