Chapter II: Development and Science of the Law of Nations (1)

I

DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS

Lawrence, §§ 20-29--Manning, pp. 8-20--Halleck, I. pp.
1-11--Walker, History, I. pp. 30-137--Taylor, §§ 6-29--Ullmann, §§
12-14--Holtzendorff in Holtzendorff, I, pp. 159-386--Nys, I. pp.
1-18--Martens, I. §§ 8-20--Fiore, I. Nos. 3-31--Calvo, I. pp.
1-32--Bonfils, Nos. 71-86--Despagnet, Nos. 1-19--Mérignhac, I. pp.
38-43--Laurent, "Histoire du Droit des Gens," &c., 14 vols. (2nd
ed. 1861-1868)--Ward, "Enquiry into the Foundation and History of
the Law of Nations," 2 vols. (1795)--Osenbrüggen, "De Jure Belli
ac Pacis Romanorum" (1876)--Müller-Jochmus, "Geschichte des
Völkerrechts im Alterthum" (1848)--Hosack, "Rise and Growth of the
Law of Nations" (1883), pp. 1-226--Nys, "Le Droit de la Guerre et
les Précurseurs de Grotius" (1882) and "Les Origines du Droit
International" (1894)--Hill, "History of Diplomacy in the
International Development of Europe," vol. I. (1905) and vol. II.
(1906)--Cybichowski, "Das antike Völkerrecht" (1907)--Phillipson,
"The International Law and Custom of Ancient Greece and Rome," 2
vols. (1910)--Strupp, "Urkunden zur Geschichte des Völkerrechts,"
2 vols. (1911).

[Sidenote: No Law of Nations in antiquity.]

§ 37. International Law as a law between Sovereign and equal States based on the common consent of these States is a product of modern Christian civilisation, and may be said to be hardly four hundred years old. However, the roots of this law go very far back into history. Such roots are to be found in the rules and usages which were observed by the different nations of antiquity with regard to their external relations. But it is well known that the conception of a Family of Nations did not arise in the mental horizon of the ancient world. Each nation had its own religion and gods, its own language, law, and morality. International interests of sufficient vigour to wind a band around all the civilised States, bring them nearer to each other, and knit them together into a community of nations, did not spring up in antiquity. On the other hand, however, no nation could avoid coming into contact with other nations. War was waged and peace concluded. Treaties were agreed upon. Occasionally ambassadors were sent and received. International trade sprang up. Political partisans whose cause was lost often fled their country and took refuge in another. And, just as in our days, criminals often fled their country for the purpose of escaping punishment.

Such more or less frequent and constant contact of different nations with one another could not exist without giving rise to certain fairly congruent rules and usages to be observed with regard to external relations. These rules and usages were considered under the protection of the gods; their violation called for religious expiation. It will be of interest to throw a glance at the respective rules and usages of the Jews, Greeks, and Romans.

[Sidenote: The Jews.]

§ 38. Although they were monotheists and the standard of their ethics was consequently much higher than that of their heathen neighbours, the Jews did not in fact raise the standard of the international relations of their time except so far as they afforded foreigners living on Jewish territory equality before the law. Proud of their monotheism and despising all other nations on account of their polytheism, they found it totally impossible to recognise other nations as equals. If we compare the different parts of the Bible concerning the relations of the Jews with other nations, we are struck by the fact that the Jews were sworn enemies of some foreign nations, as the Amalekites, for example, with whom they declined to have any relations whatever in peace. When they went to war with those nations, their practice was extremely cruel. They killed not only the warriors on the battlefield, but also the aged, the women, and the children in their homes. Read, for example, the short description of the war of the Jews against the Amalekites in 1 Samuel xv., where we are told that Samuel instructed King Saul as follows: (3) "Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass." King Saul obeyed the injunction, save that he spared the life of Agag, the Amalekite king, and some of the finest animals. Then we are told that the prophet Samuel rebuked Saul and "hewed Agag in pieces with his own hand." Or again, in 2 Samuel xii. 31, we find that King David, "the man after God's own heart," after the conquest of the town of Rabbah, belonging to the Ammonites, "brought forth the people that were therein and put them under saws, and under harrows of iron, and made them pass through the brick-kiln...."

With those nations, however, of which they were not sworn enemies the Jews used to have international relations. And when they went to war with those nations, their practice was in no way exceptionally cruel, if looked upon from the standpoint of their time and surroundings. Thus we find in Deuteronomy xx. 10-14 the following rules:--

(10) "When thou comest nigh unto a city to fight against it, then proclaim peace unto it.

(11) "And it shall be, if it make thee answer of peace and open unto thee, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.

(12) "And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it.

(13) "And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword.

(14) "But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee."

Comparatively mild, like these rules for warfare, were the Jewish rules regarding their foreign slaves. Such slaves were not without legal protection. The master who killed a slave was punished (Exodus ii. 20); if the master struck his slave so severely that he lost an eye or a tooth, the slave became a free man (Exodus ii. 26 and 27). The Jews, further, allowed foreigners to live among them under the full protection of their laws. "Love ... the stranger, for ye were strangers in the land of Egypt," says Deuteronomy x. 19, and in Leviticus xxiv. 22 there is the command: "You shall have one manner of law, as well for the stranger as for one of your own country."

Of the greatest importance, however, for the International Law of the future, are the Messianic ideals and hopes of the Jews, as these Messianic ideals and hopes are not national only, but fully _inter_national. The following are the beautiful words in which the prophet Isaiah (ii. 2-4) foretells the state of mankind when the Messiah shall have appeared:

(2) "And it shall come to pass in the last days, that the mountain of the Lord's house shall be established in the top of the mountains, and shall be exalted above the hills; and all nations shall flow unto it.

(3) "And many people shall go and say, Come ye, and let us go up to the mountain of the Lord, to the house of the God of Jacob, and he will teach us of his ways, and we will walk in his paths; for out of Zion shall go forth the law, and the word of the Lord from Jerusalem.

(4) "And he shall judge among the nations, and shall rebuke many people: and they shall beat their swords into plowshares, and their spears into pruning-hooks: nation shall not lift up sword against nation, neither shall they learn war any more."

Thus we see that the Jews, at least at the time of Isaiah, had a foreboding and presentiment of a future when all the nations of the world should be united in peace. And the Jews have given this ideal to the Christian world. It is the same ideal which has in bygone times inspired all those eminent men who have laboured to build up an International Law. And it is again the same ideal which nowadays inspires all lovers of international peace. Although the Jewish State and the Jews as a nation have practically done nothing to realise that ideal, yet it sprang up among them and has never disappeared.

[Sidenote: The Greeks.]

§ 39. Totally different from this Jewish contribution to a future International Law is that of the Greeks. The broad and deep gulf between their civilisation and that of their neighbours necessarily made them look down upon those neighbours as barbarians, and thus prevented them from raising the standard of their relations with neighbouring nations above the average level of antiquity. But the Greeks before the Macedonian conquest were never united into one powerful national State. They lived in numerous more or less small city States, which were totally independent of one another. It is this very fact which, as time went on, called into existence a kind of International Law between these independent States. They could never forget that their inhabitants were of the same race. The same blood, the same religion, and the same civilisation of their citizens united these independent and--as we should say nowadays--Sovereign States into a community of States which in time of peace and war held themselves bound to observe certain rules as regards the relations between one another. The consequence was that the practice of the Greeks in their wars among themselves was a very mild one. It was a rule that war should never be commenced without a declaration of war. Heralds were inviolable. Warriors who died on the battlefield were entitled to burial. If a city was captured, the lives of all those who took refuge in a temple had to be spared. War prisoners could be exchanged or ransomed; their lot was, at the utmost, slavery. Certain places, as, for example, the temple of the god Apollo at Delphi, were permanently inviolable. Even certain persons in the armies of the belligerents were considered inviolable, as, for instance, the priests, who carried the holy fire, and the seers.

Thus the Greeks left to history the example that independent and Sovereign States can live, and are in reality compelled to live, in a community which provides a law for the international relations of the member-States, provided that there exist some common interests and aims which bind these States together. It is very often maintained that this kind of International Law of the Greek States could in no way be compared with our modern International Law, as the Greeks did not consider their international rules as legally, but as religiously binding only. We must, however, not forget that the Greeks never made the same distinction between law, religion, and morality which the modern world makes. The fact itself remains unshaken that the Greek States set an example to the future that independent States can live in a community in which their international regulations are governed by certain rules and customs based on the common consent of the members of that community.

[Sidenote: The Romans.]

§ 40. Totally different again from the Greek contribution to a future International Law is that of the Romans. As far back as their history goes, the Romans had a special set of twenty priests, the so-called _fetiales_, for the management of functions regarding their relations with foreign nations. In fulfilling their functions the _fetiales_ did not apply a purely secular but a divine and holy law, a _jus sacrale_, the so-called _jus fetiale_. The _fetiales_ were employed when war was declared or peace was made, when treaties of friendship or of alliance were concluded, when the Romans had an international claim before a foreign State, or _vice versa_.

According to Roman Law the relations of the Romans with a foreign State depended upon the fact whether or not there existed a treaty of friendship between Rome and the respective State. In case no such treaty was in existence, persons or goods coming from the foreign land into the land of the Romans, and likewise persons and goods going from the land of the Romans into the foreign land, enjoyed no legal protection whatever. Such persons could be made slaves, and such goods could be seized, and became the property of the captor. Should such an enslaved person ever come back to his country, he was at once considered a free man again according to the so-called _jus postliminii_. An exception was made as regards ambassadors. They were always considered inviolable, and whoever violated them was handed over to the home State of those ambassadors to be punished according to discretion.

Different were the relations when a treaty of friendship existed. Persons and goods coming from one country into the other stood then under legal protection. So many foreigners came in the process of time to Rome that a whole system of law sprang up regarding these foreigners and their relations with Roman citizens, the so-called _jus gentium_ in contradistinction to the _jus civile_. And a special magistrate, the _praetor peregrinus_, was nominated for the administration of that law. Of such treaties with foreign nations there were three different kinds, namely, of _friendship_ (_amicitia_), of _hospitality_ (_hospitium_), or of _alliance_ (_foedus_). I do not propose to go into details about them. It suffices to remark that, although the treaties were concluded without any such provision, notice of termination could be given. Very often these treaties used to contain a provision according to which future controversies could be settled by arbitration of the so-called _recuperatores_.

Very precise legal rules existed as regards war and peace. Roman law considered war a legal institution. There were four different just reasons for war, namely: (1) Violation of the Roman dominion; (2) violation of ambassadors; (3) violation of treaties; (4) support given during war to an opponent by a hitherto friendly State. But even in such cases war was only justified if satisfaction was not given by the foreign State. Four _fetiales_ used to be sent as ambassadors to the foreign State from which satisfaction was asked. If such satisfaction was refused, war was formally declared by one of the _fetiales_ throwing a lance from the Roman frontier into the foreign land. For warfare itself no legal rules existed, but discretion only, and there are examples enough of great cruelty on the part of the Romans. Legal rules existed, however, for the end of war. War could be ended, first, through a treaty of peace, which was then always a treaty of friendship. War could, secondly, be ended by surrender (_deditio_). Such surrender spared the enemy their lives and property. War could, thirdly and lastly, be ended through conquest of the enemy's country (_occupatio_). It was in this case that the Romans could act according to discretion with the lives and the property of the enemy.

From this sketch of their rules concerning external relations, it becomes apparent that the Romans gave to the future the example of a State with _legal_ rules for its foreign relations. As the legal people _par excellence_, the Romans could not leave their international relations without legal treatment. And though this legal treatment can in no way be compared to modern International Law, yet it constitutes a contribution to the Law of Nations of the future, in so far as its example furnished many arguments to those to whose efforts we owe the very existence of our modern Law of Nations.

[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 passed 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 establishing 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 multitude 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 Oléron_, a collection, made in the twelfth century, of decisions given by the maritime court of Oléron 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 ambassadors, 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 ambassadors 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 mastership 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 ambassadors 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 Émeric Crucée, 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 ambassadors of all the member States of the Union.[40]

[Footnote 37: See Meyer, "Die staats- und völkerrechtlichen Ideen von Pierre Dubois" (1909); Schücking, "Die Organisation der Welt" (1909), pp. 28-30; Vesnitch, "Deux Précurseurs Français du Pacifism, etc." (1911), pp. 1-29.]

[Footnote 38: See Schwitzky, "Der Europaeische Fürstenbund Georg's von Podiebrad" (1909), and Schücking, "Die Organisation der Welt" (1909), pp. 32-36.]

[Footnote 39: See Nys, "Études de Droit International et de Droit Politique" (1896), pp. 301-306, and Darby, "International Arbitration" (4th ed. 1904), pp. 10-21.]

[Footnote 40: See Balch, "Le Nouveau Cynée de Émeric Crucée" (1909); Darby, "International Arbitration" (4th ed. 1904), pp. 22-33; Vesnitch, "Deux Précurseurs Français du Pacifism, etc." (1911), pp. 29-54.

The schemes enumerated in the text are those which were advanced before the appearance of Grotius's work "De Jure Belli ac Pacis" (1625). The numerous plans which made their appearance afterwards--that of the Landgrave of Hesse-Rheinfels, 1666; of Charles, Duke of Lorraine, 1688; of William Penn, 1693; of John Bellers, 1710; of the Abbé de St. Pierre (1658-1743); of Kant, 1795; and of others--are all discussed in Schücking, "Die Organisation der Welt" (1909), and Darby, "International Arbitration" (4th ed. 1904). They are as utopian as the pre-Grotian schemes, but they are nevertheless of great importance. They preached again and again the gospel of the organisation of the Family of Nations, and although their ideal has not been and can never be realised, they drew the attention of public opinion to the fact that the international relations of States should not be based on arbitrariness and anarchy, but on rules of law and comity. And thereby they have indirectly influenced the gradual growth of rules of law for these international relations.]

II

DEVELOPMENT OF THE LAW OF NATIONS AFTER GROTIUS

Lawrence, §§ 29-53, and Essays, pp. 147-190--Halleck, I. pp.
12-45--Walker, History, I. pp. 138-202--Taylor, §§ 65-95--Nys, I.
pp. 19-46--Martens, I. §§ 21-33--Fiore, I. Nos. 32-52--Calvo, I.
pp. 32-101--Bonfils, Nos. 87-146--Despagnet, Nos.
20-27--Mérignhac, I. pp. 43-78--Ullmann, §§ 15-17--Laurent,
"Histoire du Droit des Gens, &c.," 14 vols. (2nd ed.
1861-1868)--Wheaton, "Histoire des Progrès du Droit des Gens en
Europe" (1841)--Bulmerincq, "Die Systematik des Völkerrechts"
(1858)--Pierantoni, "Storia del diritto internazionale nel secolo
XIX." (1876)--Hosack, "Rise and Growth of the Law of Nations"
(1883), pp. 227-320--Brie, "Die Fortschritte des Völkerrechts seit
dem Wiener Congress" (1890)--Gareis, "Die Fortschritte des
internationalen Rechts im letzten Menschenalter" (1905)--Dupuis,
"Le Principe d'Équilibre et le Concert Européen de la Paix de
Westphalie à l'Acte d'Algésiras" (1909)--Strupp, "Urkunden zur
Geschichte des Völkerrechts," 2 vols. (1911).

[Sidenote: The time of Grotius.]

§ 43. The seventeenth century found a multitude of independent States established and crowded on the comparatively small continent of Europe. Many interests and aims knitted these States together into a community of States. International lawlessness was henceforth an impossibility. This was the reason for the fact that Grotius's work "De Jure Belli ac Pacis libri III.," which appeared in 1625, won the ear of the different States, their rulers, and their writers on matters international. Since a Law of Nations was now a necessity, since many principles of such a law were already more or less recognised and appeared again among the doctrines of Grotius, since the system of Grotius supplied a legal basis to most of those international relations which were at the time considered as wanting such basis, the book of Grotius obtained such a world-wide influence that he is correctly styled the "Father of the Law of Nations." It would be very misleading and in no way congruent with the facts of history to believe that Grotius's doctrines were as a body at once universally accepted. No such thing happened, nor could have happened. What did soon take place was that, whenever an international question of legal importance arose, Grotius's book was consulted, and its authority was so overwhelming that in many cases its rules were considered right. How those rules of Grotius, which have more or less quickly been recognised by the common consent of the writers on International Law, have gradually received similar acceptance at the hands of the Family of Nations is a process of development which in each single phase cannot be ascertained. It can only be stated that at the end of the seventeenth century the civilised States considered themselves bound by a Law of Nations the rules of which were to a great extent the rules of Grotius. This does not mean that these rules have from the end of that century never been broken. On the contrary, they have frequently been broken. But whenever this occurred, the States concerned maintained either that they did not intend to break these rules, or that their acts were in harmony with them, or that they were justified by just causes and circumstances in breaking them. And the development of the Law of Nations did not come to a standstill with the reception of the bulk of the rules of Grotius. More and more rules were gradually required and therefore gradually grew. All the historically important events and facts of international life from the time of Grotius down to our own have, on the one hand, given occasion to the manifestation of the existence of a Law of Nations, and, on the other hand, in their turn made the Law of Nations constantly and gradually develop into a more perfect and more complete system of legal rules.

It serves the purpose to divide the history of the development of the Law of Nations from the time of Grotius into seven periods--namely, 1648-1721, 1721-1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899, 1899-1911.

[Sidenote: The period 1648-1721.]

§ 44. The ending of the Thirty Years' War through the Westphalian Peace of 1648 is the first event of great importance after the death of Grotius in 1645. What makes remarkable the meetings of Osnaburg, where the Protestant Powers met, and Münster, where the Catholic Powers met, is the fact that there was for the first time in history a European Congress assembled for the purpose of settling matters international by common consent of the Powers. With the exception of England, Russia, and Poland, all the important Christian States were represented at this congress, as were also the majority of the minor Powers. The arrangements made by this congress show what a great change had taken place in the condition of matters international. The Swiss Confederation and the Netherlands were recognised as independent States. The 355 different States which belonged to the German Empire were practically, although not theoretically, recognised as independent States which formed a Confederation under the Emperor as its head. Of these 355 States, 150 were secular States governed by hereditary monarchs (Electors, Dukes, Landgraves, and the like), 62 were free-city States, and 123 were ecclesiastical States governed by archbishops and other Church dignitaries. The theory of the unity of the civilised world under the German Emperor and the Pope as its temporal and spiritual heads respectively was buried for ever. A multitude of recognised independent States formed a community on the basis of equality of all its members. The conception of the European equilibrium[41] made its appearance and became an implicit principle as a guaranty of the independence of the members of the Family of Nations. Protestant States took up their position within this family along with Catholic States, as did republics along with monarchies.

[Footnote 41: See below, pp. 64, 65, 80, 193, 307.]

In the second half of the seventeenth century the policy of conquest initiated by Louis XIV. of France led to numerous wars. But Louis XIV. always pleaded a just cause when he made war, and even the establishment of the ill-famed so-called Chambers of Reunion (1680-1683) was done under the pretext of law. There was no later period in history in which the principles of International Law were more frivolously violated, but the violation was always cloaked by some excuse. Five treaties of peace between France and other Powers during the reign of Louis XIV. are of great importance. (1) The Peace of the Pyrenees, which ended in 1659 the war between France and Spain, who had not come to terms at the Westphalian Peace. (2) The Peace of Aix-la-Chapelle, which ended in 1668 another war between France and Spain, commenced in 1667 because France claimed the Spanish Netherlands from Spain. This peace was forced upon Louis XIV. through the triple alliance between England, Holland, and Sweden. (3) The Peace of Nymeguen, which ended in 1678 the war originally commenced by Louis XIV. in 1672 against Holland, into which many other European Powers were drawn. (4) The Peace of Ryswick, which ended in 1697 the war that had existed since 1688 between France on one side, and, on the other, England, Holland, Denmark, Germany, Spain, and Savoy. (5) The Peace of Utrecht, 1713, and the Peace of Rastadt and Baden, 1714, which ended the war of the Spanish Succession that had lasted since 1701 between France and Spain on the one side, and, on the other, England, Holland, Portugal, Germany, and Savoy.

But wars were not only waged between France and other Powers during this period. The following treaties of peace must therefore be mentioned:--(1) The Peaces of Roeskild (1658), Oliva (1660), Copenhagen (also 1660), and Kardis (1661). The contracting Powers were Sweden, Denmark, Poland, Prussia, and Russia. (2) The Peace of Carlowitz, 1699, between Turkey, Austria, Poland, and Venice. (3) The Peace of Nystaedt, 1721, between Sweden and Russia under Peter the Great.

The year 1721 is epoch-making because with the Peace of Nystaedt Russia enters as a member into the Family of Nations, in which she at once held the position of a Great Power. The period ended by the year 1721 shows in many points progressive tendencies regarding the Law of Nations. Thus the right of visit and search on the part of belligerents over neutral vessels becomes recognised. The rule "free ships, free goods," rises as a postulate, although it was not universally recognised till 1856. The effectiveness of blockades, which were first made use of in war by the Netherlands at the end of the sixteenth century, rose as a postulate and became recognised in treaties between Holland and Sweden (1667) and Holland and England (1674), although its universal recognition was not realised until the nineteenth century. The freedom of the high seas, claimed by Grotius and others, began gradually to obtain recognition in practice, although it did likewise not meet with universal acceptance till the nineteenth century. The balance of power is solemnly recognised by the Peace of Utrecht as a principle of the Law of Nations.

[Sidenote: The period 1721-1789.]

§ 45. Before the end of the first half of the eighteenth century peace in Europe was again disturbed. The rivalry between Austria and Prussia, which had become a kingdom in 1701 and the throne of which Frederick II. had ascended in 1740, led to several wars in which England, France, Spain, Bavaria, Saxony, and Holland took part. Several treaties of peace were successively concluded which tried to keep up or re-establish the balance of power in Europe. The most important of these treaties are: (1) The Peace of Aix-la-Chapelle of 1748 between France, England, Holland, Austria, Prussia, Sardinia, Spain, and Genoa. (2) The Peace of Hubertsburg and the Peace of Paris, both of 1763, the former between Prussia, Austria, and Saxony, the latter between England, France, and Spain. (3) The Peace of Versailles of 1783 between England, the United States of America, France, and Spain.

These wars gave occasion to disputes as to the right of neutrals and belligerents regarding trade in time of war. Prussia became a Great Power. The so-called First Armed Neutrality[42] made its appearance in 1780 with claims of great importance, which were not generally recognised till 1856. The United States of America succeeded in establishing her independence and became a member of the Family of Nations, whose future attitude fostered the growth of several rules of International Law.

[Footnote 42: See below, Vol. II. §§ 289 and 290, where details concerning the First and Second Armed Neutrality are given.]

[Sidenote: The period 1789-1815.]

§ 46. All progress, however, was endangered, and indeed the Law of Nations seemed partly non-existent, during the time of the French Revolution and the Napoleonic wars. Although the French Convention resolved in 1792 (as stated above, § 30) to create a "Declaration of the Rights of Nations," the Revolutionary Government and afterwards Napoleon I. very often showed no respect for the rules of the Law of Nations. The whole order of Europe, which had been built up by the Westphalian and subsequent treaties of peace for the purpose of maintaining a balance of power, was overthrown. Napoleon I. was for some time the master of Europe, Russia and England excepted. He arbitrarily created States and suppressed them again. He divided existing States into portions and united separate States. The kings depended upon his goodwill, and they had to follow orders when he commanded. Especially as regards maritime International Law, a condition of partial lawlessness arose during this period. Already in 1793 England and Russia interdicted all navigation with the ports of France, with the intention of subduing her by famine. The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to the ports of the enemy or carrying enemy goods. Again Napoleon, who wanted to ruin England by destroying her commerce, announced in 1806 in his Berlin Decrees the boycott of all English goods. England answered with the blockade of all French ports and all ports of the allies of France, and ordered her fleet to capture all ships destined to any such port.

When at last the whole of Europe was mobilised against Napoleon and he was finally defeated, the whole face of Europe was changed, and the former order of things could not possibly be restored. It was the task of the European Congress of Vienna in 1814 and 1815 to create a new order and a fresh balance of power. This new order comprised chiefly the following arrangements:--The Prussian and the Austrian monarchies were re-established, as was also the Germanic Confederation, which consisted henceforth of thirty-nine member States. A kingdom of the Netherlands was created out of Holland and Belgium. Norway and Sweden became a Real Union. The old dynasties were restored in Spain, in Sardinia, in Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen cantons of the Swiss Confederation were added those of Geneva, Valais, and Neuchâtel, and this Confederation was neutralised for all the future.

But the Vienna Congress did not only establish a new political order in Europe, it also settled some questions of International Law. Thus, free navigation was agreed to on so-called international rivers, which are rivers navigable from the Open Sea and running through the land of different States. It was further arranged that henceforth diplomatic agents should be divided into three classes (Ambassadors, Ministers, Chargés d'Affaires). Lastly, a universal prohibition of the trade in negro slaves was agreed upon.

[Sidenote: The period 1815-1856.]

§ 47. The period after the Vienna Congress begins with the so-called Holy Alliance. Already on September 26, 1815, before the second Peace of Paris, the Emperors of Russia and Austria and the King of Prussia called this alliance into existence, the object of which was to make it a duty upon its members to apply the principles of Christian morality in the administration of the home affairs of their States as well as in the conduct of their international relations. After the Vienna Congress the sovereigns of almost all the European States had joined that alliance with the exception of England. George IV., at that time prince-regent only, did not join, because the Holy Alliance was an alliance not of the States, but of sovereigns, and therefore was concluded without the signatures of the respective responsible Ministers, whereas according to the English Constitution the signature of such a responsible Minister would have been necessary.

The Holy Alliance had not as such any importance for International Law, for it was a religious, moral, and political, but scarcely a legal alliance. But at the Congress of Aix-la-Chapelle in 1818, which the Emperors of Russia and Austria and the King of Prussia attended in person, and where it might be said that the principles of the Holy Alliance were practically applied, the Great Powers signed a Declaration,[43] in which they solemnly recognised the Law of Nations as the basis of all international relations, and in which they pledged themselves for all the future to act according to its rules. The leading principle of their politics was that of legitimacy,[44] as they endeavoured to preserve everywhere the old dynasties and to protect the sovereigns of the different countries against revolutionary movements of their subjects. This led, in fact, to a dangerous neglect of the principles of International Law regarding intervention. The Great Powers, with the exception of England, intervened constantly with the domestic affairs of the minor States in the interest of the legitimate dynasties and of an anti-liberal legislation. The Congresses at Troppau, 1820, Laibach, 1821, Verona, 1822, occupied themselves with a deliberation on such interventions.

[Footnote 43: See Martens, N.R. IV. p. 560.]

[Footnote 44: See Brockhaus, "Das Legitimitätsprincip" (1868).]

The famous Monroe Doctrine (see below, § 139) owes its origin to that dangerous policy of the European Powers as regards intervention, although this doctrine embraces other points besides intervention. As from 1810 onwards the Spanish colonies in South America were falling off from the mother country and declaring their independence, and as Spain was, after the Vienna Congress, thinking of reconquering these States with the help of other Powers who upheld the principle of legitimacy, President Monroe delivered his message on December 2, 1823, which pointed out amongst other things, that the United States could not allow the interference of a European Power with the States of the American continent.

Different from the intervention of the Powers of the Holy Alliance in the interest of legitimacy were the two interventions in the interest of Greece and Belgium. England, France, and Russia intervened in 1827 in the struggle of Turkey with the Greeks, an intervention which led finally in 1830 to the independence of Greece. And the Great Powers of the time, namely, England, Austria, France, Prussia, and Russia, invited by the provisional Belgian Government, intervened in 1830 in the struggle of the Dutch with the Belgians and secured the formation of a separate Kingdom of Belgium.

It may be maintained that the establishment of Greece and Belgium inferred the breakdown of the Holy Alliance. But it was not till the year 1848 that this alliance was totally swept away through the disappearance of absolutism and the victory of the constitutional system in most States of Europe. Shortly afterwards, in 1852, Napoleon III., who adopted the principle of nationality,[45] became Emperor of France. Since he exercised preponderant influence in Europe, one may say that this principle of nationality superseded in European politics the principle of legitimacy.

[Footnote 45: See Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" (1874), pp. 53-70.]

The last event of this period is the Crimean War, which led to the Peace as well as to the Declaration of Paris in 1856. This war broke out in 1853 between Russia and Turkey. In 1854, England, France, and Sardinia joined Turkey, but the war continued nevertheless for another two years. Finally, however, Russia was defeated, a Congress assembled at Paris, where England, France, Austria, Russia, Sardinia, Turkey, and eventually Prussia, were represented, and peace was concluded in March 1856. In the Peace Treaty, Turkey is expressly received as a member into the Family of Nations. Of greater importance, however, is the celebrated Declaration of Paris regarding maritime International Law which was signed on April 16, 1856, by the delegates of the Powers that had taken part in the Congress. This declaration abolished privateering, recognised the rules that enemy goods on neutral vessels and that neutral goods on enemy vessels cannot be confiscated, and stipulated that a blockade in order to be binding must be effective. Together with the fact that at the end of the first quarter of the nineteenth century the principle of the freedom of the high seas[46] became universally recognised, the Declaration of Paris is a prominent landmark in the progress of the Law of Nations. The Powers that had not been represented at the Congress of Paris were invited to sign the Declaration afterwards, and the majority of the members of the Family of Nations did sign it before the end of the year 1856. The few States, such as the United States of America, Spain, Mexico, and others, which did not then sign,[47] have in practice since 1856 not acted in opposition to the Declaration, and one may therefore, perhaps, maintain that the Declaration of Paris has already become or will soon become universal International Law through custom. Spain and Mexico, however, signed the Declaration in 1907, as Japan had already done in 1886.

[Footnote 46: See below, § 251.]

[Footnote 47: It should be mentioned that the United States did not sign the Declaration of Paris because it did not go far enough, and did not interdict capture of private enemy vessels.]

[Sidenote: The period 1856-1874.]

§ 48. The next period, the time from 1856 to 1874, is of prominent importance for the development of the Law of Nations. Under the aegis of the principle of nationality, Austria turns in 1867 into the dual monarchy of Austria-Hungary, and Italy as well as Germany becomes united. The unity of Italy rises out of the war of France and Sardinia against Austria in 1859, and Italy ranges henceforth among the Great Powers of Europe. The unity of Germany is the combined result of three wars: that of Austria and Prussia in 1864 against Denmark on account of Schleswig-Holstein, that of Prussia and Italy against Austria in 1866, and that of Prussia and the allied South German States against France in 1870. The defeat of France in 1870 had the consequence that Italy took possession of the Papal States, whereby the Pope disappeared from the number of governing sovereigns.

The United States of America rise through the successful termination of the Civil War in 1865 to the position of a Great Power. Several rules of maritime International Law owe their further development to this war. And the instructions concerning warfare on land, published in 1863 by the Government of the United States, represent the first step towards codification of the Laws of War. In 1864, the Geneva Convention for the amelioration of the condition of soldiers wounded in armies in the field is, on the initiation of Switzerland, concluded by nine States, and in time almost all civilised States became parties to it. In 1868, the Declaration of St. Petersburg, interdicting the employment in war of explosive balls below a certain weight, is signed by many States. Since Russia in 1870 had arbitrarily shaken off the restrictions of Article 11 of the Peace Treaty of Paris of 1856 neutralising the Black Sea, the Conference of London, which met in 1871 and was attended by the representatives of the Powers which were parties to the Peace of Paris of 1856, solemnly proclaimed "that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrangement." The last event in this period is the Conference of Brussels of 1874 for the codification of the rules and usages of war on land. Although the signed code was never ratified, the Brussels Conference was nevertheless epoch-making, since it showed the readiness of the Powers to come to an understanding regarding such a code.

[Sidenote: The period 1874-1899.]

§ 49. After 1874 the principle of nationality continues to exercise its influence as before. Under its aegis takes place the partial decay of the Ottoman Empire. The refusal of Turkey to introduce reforms regarding the Balkan population led in 1877 to war between Turkey and Russia, which was ended in 1878 by the peace of San Stefano. As the conditions of this treaty would practically have done away with Turkey in Europe, England intervened and a European Congress assembled at Berlin in June 1878 which modified materially the conditions of the Peace of San Stefano. The chief results of the Berlin Congress are:--(1) Servia, Roumania, Montenegro become independent and Sovereign States; (2) Bulgaria becomes an independent principality under Turkish suzerainty; (3) the Turkish provinces of Bosnia and Herzegovina come under the administration of Austria-Hungary; (4) a new province under the name of Eastern Rumelia is created in Turkey and is to enjoy great local autonomy (according to an arrangement of the Conference of Constantinople in 1885-1886 a bond is created between Eastern Rumelia and Bulgaria by the appointment of the Prince of Bulgaria as governor of Eastern Rumelia); (5) free navigation on the Danube from the Iron Gates to its mouth in the Black Sea is proclaimed.

In 1889 Brazil becomes a Republic and a Federal State (the United States of Brazil). In the same year the first Pan-American Congress meets at Washington.

In 1897 Crete revolts against Turkey, war breaks out between Greece and Turkey, the Powers interfere, and peace is concluded at Constantinople. Crete becomes an autonomous half-Sovereign State under Turkish suzerainty with Prince George of Greece as governor, who, however, retires in 1906.

In the Far East war breaks out in 1894 between China and Japan, on account of Korea. China is defeated, and peace is concluded in 1895 at Shimonoseki.[48] Japan henceforth ranks as a Great Power. That she must now be considered a full member of the Family of Nations becomes apparent from the treaties concluded soon afterwards by her with other Powers for the purpose of abolishing their consular jurisdiction within the boundaries of Japan.

[Footnote 48: See Martens, N.R.G. 2nd Ser. XXI. (1897), p. 641.]

In America the United States intervene in 1898 in the revolt of Cuba against the motherland, whereby war breaks out between Spain and the United States. The defeat of Spain secures the independence of Cuba through the Peace of Paris[49] of 1898. The United States acquires Porto Rico and other Spanish West Indian Islands, and, further, the Philippine Islands, whereby she becomes a colonial Power.

[Footnote 49: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 74.]

An event of great importance during this period is the Congo Conference of Berlin, which took place in 1884-1885, and at which England, Germany, Austria-Hungary, Belgium, Denmark, Spain, the United States of America, France, Italy, Holland, Portugal, Russia, Sweden-Norway, and Turkey were represented. This conference stipulated freedom of commerce, interdiction of slave-trade, and neutralisation of the territories in the Congo district, and secured freedom of navigation on the rivers Congo and Niger. The so-called Congo Free State was recognised as a member of the Family of Nations.

A second fact of great importance during this period is the movement towards the conclusion of international agreements concerning matters of international administration. This movement finds expression in the establishment of numerous International Unions with special International Offices. Thus a Universal Telegraphic Union is established in 1875, a Universal Postal Union in 1878, a Union for the Protection of Industrial Property in 1883, a Union for the Protection of Works of Literature and Art in 1886, a Union for the Publication of Custom Tariffs in 1890. There were also concluded conventions concerning:--(1) Private International Law (1900 and 1902); (2) railway transports and freights (1890); (3) the metric system (1875); (4) phylloxera epidemics (1878 and 1881); (5) cholera and plague epidemics (1893, 1896, &c.); (6) Monetary Unions (1865, 1878, 1885, 1892, 1893).