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HOW CULTIVATED IN MIDDLE AGES.
is not to be regretted, that Mr Ward should, in the more advanced period of his life, have devoted his leisure to that lighter species of literature, in which he has so delighted the more polished circles of English society, the student of international law may be permitted to wish, that he had also found leisure, to render more perfect, his juvenile historical work; and that, instead of only coming forward, no doubt most opportunely, with detached essays, in vindication of the just claims of his country, on occasions when they were assailed, he had erected a more complete and permanent monument to his own fame, by presenting the world with a scientifically digested book of international law, in both peace and war.
Of International Law during the Sixteenth Century.
So much for the progress of international law, during what have been called the middle ages, or prior to the sixteenth century. Even during that century, compared with those that succeeded, there are few works on that department of law; and before noticing them, we may mark another important improvement, in the practice of that law, which made its first appearance in the course of that century. The practice, and almost recognised right, of sending ambassadors, may be traced to the earliest and rudest ages of society; indeed, there could not otherwise be any mode of communication or intercourse between, or among, independent tribes, or nations. But this is very different from the custom now so universal in Europe, of the different sovereign states having public ministers, permanently resident at the courts, or in the capitals of each other. This practice was unknown to the ancients. It appears to have been equally unknown to the modern less civilized nations of Asia, Africa, and America, so far as not emanating from Europe. It does not appear to have commenced, even in Europe, till the sixteenth century. And the origin of this practice of the European sovereigns, having ordinary and resident embassies, at the courts of each other, is to be ascribed, it should appear, to the causes we have just been considering. * And when once introduced, the advantages of the practice could not fail to be felt, as facilitating measures for the general good, for the maintenance of a due balance of power, and for the protection of the weaker states against the aggressions of the stronger, and more ambitious.
On the other hand, in the course of the sixteenth century, one of the previous principal ties of union, among the Christian nations, underwent a great disruption, through the Reformation in religion. For it must be admitted, that however beneficial the reformation was, not merely in a religious point of view, but also in the promotion of civil liberty, the result, in the mean time, was the direction of the arms of the European nations, not against the infidels as formerly, but against each other; until these wars were put an end to, by the prevalence of more enlightened views of religious
* Ward, Vol. II. p. 478.
DURING THE SIXTEENTH CENTURY
toleration, and by a conviction, from experience, of the importance of the maintenance of a balance of power, in Europe, for the security of independent states.
To proceed to the writers on international law, in the sixteenth century, it is well known the great work of Grotius did not make its appearance, till the beginning of the following century, (1625,) and the various attempts which were made to depreciate the merits of Grotius have been justly reprobated. But on the other hand, it is necessary to guard against the disposi. tion, so generally prevalent among historians and other writers, to ascribe a great deal more, than is their due, to great conquerors and lawgivers, and to attribute frequently to individual exertions, what is the result of the accumulated experience, and practical progressive improvement of the particular community or nation, or of the species in general. And, without, in the slightest degree, detracting from the merits of so great a man as Grotius, who contributed so much to the improvement of international law in Europe, it seems but justice to his predecessors, and due to the truth of history, to endeavour to ascertain, what these predecessors had been able to accomplish, in this department of science.
In 1506, Oldendorp, afterwards professor at Marburg, published a work, which may be considered as the first system of natural law, although almost unknown in these more recent times; entitled, Isagoge, seu elementaria introductio Juris Naturæ, Gentium, et Civilis. The title, at least, of this work, obviously contemplates the law of nations, as a separate science; for, along with the jus nature and jus civile, it promises also an introductio in jus gentium ; and the third section of this book, which is superscribed de jure gentium, is particularly devoted to that subject, opposes the jus gentium to the jus nature, and maintains the former to be different from the latter. But in perusing the beginning of this section, we find, Oldendorp had no distinct or accurate idea of the law of nations, and in fact understood by it nothing else than the law of nature, so far as it can be shown to have been actually adopted by nations, and fixed and established by them in their internal institutions and usages; in other words, determinatio juris naturalis.
Another learned jurist, Vasquez, a Spanish civilian, who lived about the same time, (1509–1566,) entertained different, but not less inaccurate ideas on this subject. In his Controversic Illustres, Lib. ii. C. 54. § 246, Vasquez incidentally treats of the law of nations, and appears to have been the first, or one of the first, who divided that law into jus gentium primævum, and secundarium, a distinction so frequently used in subsequent times. By jus gentium primævum, he understood the mere jus nature. By jus gentium secundarium, he understood the civil laws, institutions, and ordinances, adopted by the greater part of nations, or the jus civile, in so far as it is common or uniform among these nations, although without any convention, or obligatory connexion of the one nation with the other. “ Jus gentium secundarium,” he says, “naturale non tam est, quam positivum; nam ea omnia, quæ sunt juris gentium, prius fuerunt juris tantum civilis; sed paulatim serpserunt, aut velociter transvolârunt ad reliquas gentes et regiones ; sicque, cum primum, ab
uno vel altero homine vel regione, inventum fuisset, et receptum, tum juris tantum civilis, non etiam juris gentium, id fuit. Postquam, vero, eo jure omnes omnino, aut pleræque aliarum gentium, uti quoque cæpissent, jam juris gentium effectum videtur, inque jus gentium conversum, et transformatum est. Quemadmodum et ex diverso, si quod hodie juris gentium est, in desuetudinem abhinc forte cæpisset, ita ut penes unam tantum provinciam maneret, sine dubio, juris gentium esse desineret, et jam juris tantum civilis, diceretur.” Such a confused notion of the jus gentium obviously originated in the signification attached by the Roman lawyers to these terms.
About the same time with Vasquez, there lived another learned Spanish jurist, Suarez, (1548-1617), who in his work, De Legibus et Deo Legislatore, propounds far more correct ideas of international law; but of whom, it is remarkable, Grotius makes no mention. After distinguishing the jus gentium from the jus nature, he observes of the former, Lib. ii. C. 19. No. 9; “ Ratio hujus juris est, quia humanum genus, quamvis in varios populos et regna divisum, semper habeat aliquam unitatem, non solum specificam, sed etiam quasi politicam et moralem, quam indicat naturale præceptum mutui amoris et misericordiæ, quod ad omnes extenditur, etiam extraneos, et cujuscunque nationis. Quapropter, licet unaquæque civitas, respublica, aut regnum, sit in se communitas perfecta, et suis membris constans, nihilominus quælibet illarum est etiam membrum aliquo modo hujus universi, prout genus humanum spectat. Nunquam, enim, illæ communitates adeo sunt sibi sufficientes sigillatim, quin indigeant aliquo mutuo juvamine et societate, ac com