pire and for glory ought to be governed by those principles which constitute just causes of war. The mutual animosity of the belligerent parties ought there, even, to be tempered by the nobleness of the cause. The Romans waged war with the Cimbri for their very existence; whilst with the Samnites, Carthagenians, and Pyrrhus they fought for empire. Carthage was perfidious, and Hannibal was cruel; but with the others they found a stronger sense of justice. And he quotes the words of the old poet Ennius to prove the generosity with which Pyrrhus even restored his prisoners without ransom. Nec mi aurum posco, nec mi pretium dederitis; Ferro, non auro, vitam cernamus utrique. Vosne velit, an me regnare hera, quidve ferat, Fors, Eorumdem me libertati parcere certum est; Domo, ducite, doque, volentibu' cum magnis Diis.f Faith was to be kept even with an enemy. As examples of the sacredness of this maxim he cites the case of Regulus returning to Carthage, and of the Roman senate surrendering to Pyrrhus the traitor who had offered to poison his royal master. The observance of this rule distinguishes just wars from those offences against humanity which proceed from pirates and robbers. Towards the latter, promises even sanctioned by an oath, are not binding for an oath binds only where it has been taken under a conscientious conviction of the right to exact it. Thus if you refuse to pirates the stipulated ransom you are bound by oath to pay, there is neither fraud nor perjury; for a pirate is not to be considered as a public enemy-perduellis—but the enemy of the human race. Between you and him there f De Offic. i. 12. Lib. i. 13. iii. 22. 27-32. can be nothing in common, neither the obligation of contracts, nor that of an oath. To refuse to perform such an engagement is not perjury, which consists in violating an oath lawfully administered and conscientiously taken. Regulus, on the other hand, could not, without being guilty of perjury, refuse to perform a compact made with a lawful enemy, between whom and the Romans the fecial law was mutually binding.h The oblivion of these principles of justice and mercy by the Romans in their conduct towards other nations was, according to Cicero, the main cause of the decline and fall of the republic, which he affirms to have been well merited, and as it were awarded by the justice of the gods. "So long as the Roman people" says he, "maintained its empire by benefits, and not by injuries, so long as it carried on wars either to extend its empire, or in defence of its allies; those wars were terminated by acts of clemency, or of necessary severity. The senate was an asylum for kings, people, and nations. Our magistrates and generals placed their chief glory in protecting with justice and fidelity the provinces and allies. Thus Rome merited the name of patroness rather than that of mistress of the world. These usages and this discipline have long been gradually declining; and with the triumph of Sylla disappeared altogether. Indeed nothing could seem unjust towards allies, when citizens were treated with such cruelty. Thus he stained the injustice of his cause with a deeper dye by the injustice of his victory. The conqueror raised his hasta in the forum, and when he exposed to public sale the property of the most opulent and most virtuous citizens, Regulus vero non debuit conditiones pactiones que bellicas et hostiles perturbare perjurio. Cum justo enim et legitimo hoste res gerebatur; adversus quem et totum jus feciale, et multa sunt jura communia. Quod ni ita esset, nunquam claros viros senatus vinctos hostibus dedidisset. (Lib. iii. 29.) declared that he merely sold the spoils of victory! He was followed by a man who, in an equally impious cause, attended with a still more shameful victory, not only confiscated the property of individual citizens, but involved in the same calamity whole provinces and countries. After having thus desolated and ruined foreign nations, we have seen him carry in triumphal procession the image of Marseilles, as if to announce the destruction of the republic in his triumph over that faithful city, without whose aid none of our generals would have triumphed in the transalpine wars."i The patriotic partiality of Cicero has indignantly drawn this strong contrast between the conduct of the Romans towards other nations, in the earlier period of the republic, and the degenerate age in which he lived. But history attests that the practice of his countrymen, in their intercourse with other nations, varied as much from his generous theory of international morality, as their religious faith differed from his sublime conceptions of the divine attributes. A great modern writer has clearly shown by what arts of crafty policy and flagrant injustice that people acquired dominion over so large a portion of the earth. The intercourse of the Romans with foreign nations was but too conformable with their domestic discipline. Their ill adjusted constitution fluctuated in perpetual mutations, but ever preserved the character, impressed upon it by Rome's martial founder, of a state, the very law of whose being was perpetual war— whose unceasing occupation was the conquest and colonization of foreign countries. For more than seven centuries the Romans pursued a scheme of aggrandizement, conceived in deep policy, and prosecuted with inflexible pride and pertinacity, at the expense of all the useful pursuits and charities of private life. All solicitude for the i Lib ii. 8. * Montesquieu, Grandeur et Decadance des Romains, ch. 6. fate of their fellow citizens made captive in war, was disdained by their stern and crafty policy. Hoc caverat mens provida Reguli Fœdis et exemplo trahenti Perniciem veniens in œvum, Si non periret immiserabilis The formal institution of the fecial law, with a college of heralds to expound and enforce it, which they borrowed from the Etruscans, was merely intended to give a regular sanction to the practice of war, and contributed but little to mitigate its enormities. The precepts of this code are strongly contrasted with the oppressive conduct of the Romans towards their allies, and their unjust and cruel treatment of their vanquished enemies. "Victory," in their expressive metaphorical language, "made even the sacred things of the enemy profune;" confiscated all his property, moveable and immoveable, public and private, doomed him and his posterity to perpetual slavery; and dragged his kings and generals at the chariot wheels of the conqueror, thus depressing an enemy in his spirit and pride of mind, the only consolation he has left, when his strength and power are annihilated. If there were occasional exceptions to the exercise of this extreme rigour and inhumanity they only serve to confirm the general character of the conquests achieved by the Romans, which were not unfrequently terminated by delivering over to the executioner the captive sovereigns as if they had been guilty of some crime in defending their country's independence. No professed treatise of international law has been left, Roman fecial law and jus us by any ancient writer. Neither the work of Aristotle gentium. * See, among other examples the affecting picture drawn by Plutarch of the treatment of king Persius and his family at the triumph of Paulus Æmilius. upon the laws of war, nor the institutes of the Roman fecial law have descended to modern times. When the Romans called their fecial law the law of nations, jus gentium, we are not to understand from hence that it was a positive law, established by the consent of all nations. It was in itself only a civil law of their own; they called it a law of nations, because the design of it was to direct them how they should conduct themselves towards other nations in the hostile intercourse of war, and not because all other nations were obliged to observe it. And the incidental notices which may be collected from the writings of the Roman lawyers of what they call the jus gentium concur in showing that the idea associated with this term was not that of a positive rule governing the intercourse between independent communities, but what has been since called the law of nature, or the rule of conduct that is observed, or ought to be observed by all mankind independent of positive institution and of compact. Hence it is always contrasted by these writers with the municipal law, jus civile, which regulated the private relations of individuals, and with the constitutional code, jus publicum, which regulated the internal government of the city." Thus Cicero, in laying down the rules of justice applicable to secret defects in an article exposed to sale, states that the vendor is bound in conscience to disclose those defects. "When you expose a house to sale which you wish to be rid of on account of its defects, your advertisement is a snare to the buyer unless these defects be disclosed. Although the usage of society attaches no odium to such conduct, and it may not be prohibited by positive statute, or by the civil law; nevertheless the law of nature forbids it. As I have often said, and cannot too often repeat, there 1 Grotius, de J. B. ac P. Proleg. § 36. m Rutherforth's Inst. Nat. Law, B. ii. ch. 9, § 10. n Ompteda, Litteratur des Voelkerschts, 1 Bd. §§ 32-44. |