Chapter XIV: Sir H. Maine on the Law of Nations (2)

"The Pelasgians were a different nation from the Hellenes:
their language was peculiar, and not Greek.... The Pelasgians,
as well as the Hellenes, were members of the Amphictyonic
association, the main tie of which was religion, in which
both nations agreed."--_Niebühr, Hist._ i. (_Travers Twiss'
Epitome_, ch. iii.)

"The royal laws became odious or obsolete, the mysterious
deposit was silently preserved by the priests and the nobles,
and at the end of sixty years the citizens of Rome still
complained that they were ruled by the arbitrary sentence of
the magistrate; yet the positive institutions of the kings
had blended themselves with the public and private manners of
the city; some fragments of that venerable jurisprudence were
compiled by the diligence of antiquarians, and above twenty
texts still speak the rudeness of the Pelasgic idiom of the
Latins."--_Gibbon's Decline and Fall_, vol. viii. ch. xiv.

[301] Gladstone, ii. 173, &c.; Strabo.

[302] _Id._ i. 294.

Now, let us consider this special significance of the Amphictyonic Council. On the one hand, it is attributed to Amphictyon, the son of Deucalion; on the other hand (as I shall presently show), we see the almost identical institution in Italy in contact with Roman law. What, then, was the Amphictyonic Council? Those who have written upon it appear to me to have endeavoured to regard it too much as a federation. Hence a double error. On the one side it was found that, instead of being a federation of all Greece, at most it was only a federation of twelve cities; it was further found that it had no external action, and that on occasions, as, _e.g._ the Persian war, in which the whole nation of Greece acted as one people, it made no appearance.[303] A feeling of disappointment necessarily supervened, and it was asked, if not a federation, what was it? On the other hand, although not a federation for the purposes of government or war, it would be an equal error to deny that it was a federation for certain purposes, more or less invisible to the eye, and which for such purposes retained sufficient vitality to assemble deputies twice a year, and during several centuries, for it is certain that it subsisted to the close of Grecian history, when, indeed, we are astonished to find that when faith in everything else had died out, belief in the Amphictyons again flickers into life. It is true that we know little, but the little that has transpired implies so much more. Were it not for a casual passage in a speech of Æschines, we should hardly have known more than of their existence. As it is, we are thrown back upon conjecture, and upon what we can recover indirectly from tradition. Now, if we suppose the Amphictyonic Council to have tradited down, and to have been a federation for the purposes of traditing down from primitive times, even in their rudimentary form, the rules and principles of the laws of nations, much that is strange and mysterious in its history will disappear.[304] It will at once account for its duration and prestige, in spite of its inactivity and merely passive existence, even supposing that it is reduced in our estimation to a sort of convocation, powerless for action, and merely keeping alive a tradition of the past. From this point of view, the fact of its merely being a federation of twelve States, which is generally adduced to reduce it to unimportance, taken in connection with another fact which I shall presently substantiate, really militates in favour of my argument. It shows that instead of being the one typical institution of the sort, it is only the one which stands out most prominently in history, and merely handed down a tradition which was common to many others. I have already alluded to the Latin league, through which, apparently, the Romans recovered their tradition of the law common to all nations. If all these isolated federations retained their tradition of a law common to all nations--although practically limited to the members of their own confederation--is it not at once in evidence of the action of the Dispersion and at the same time of a tradition anterior to the disruption? Without pretending to have gone over the ground necessary to present an exhaustive catalogue of such federations, I may present the following facts in evidence and illustration.

[303] _Vide_, Pastoret, "Hist. de la Legislation," v. 21.

[304] "The oath taken by the deputies bound the Amphictyons not to
destroy any of the Amphictyonic cities, or to debar them from
the use of their fountains in peace or war; to make war on any
who should transgress in these particulars ... or who should
plunder the property of the god (the Delphine Apollo).... This
is the oldest form of the Amphictyonic oath which has been
recorded, and is expressly called by Æskines the ancient oath
of the Amphictyons."--_Cyclop. of Arts and Sciences._

Outside the Amphictyonic union there were other federations, even within the confines of Greece itself:--

"Qui avoient le même caractère, et peut-étre un caractère plus
intime d'association entre des etats voisins, pour honorer
ensemble des dieux, ou pour se prêter, dans certains cas, un appui
necessaire. Il s'en reunissoit une non loin de Trezime ou Argolide,
une autre à Corinthe, une autre à Onchiste en Beotie; on en trouve
de semblables encore dans plusieurs îles de la Grece, et dans les
colonies de l'Asie Mineure.[305] Ces associations, au reste, ne
seconderent pas moins la civilisation generale que n'auroit pu le
faire un Amphictyonat universel."--_Pastoret, Hist. de la Legis._,
v. 27.

[305] The Ionian federation, composed also of twelve cities, was
almost identical. "L'association s'etoit formée d'abord entre
les douze cités, en y comprenant les deux îles voisines de
Samos et de Chio.... On s'assembloit dans un lieu sacré du
Mont Mycale, que les Ionians avoient dediés en commun _à
Neptune_."--_Pastoret_, ix. 170. There was also a confederacy
of seven states, which met in the _temple of Neptune_, in
the island of Calauria, "and which is even called by Strabo,
viii. 374, an Amphictyonic Council."--_Cyclop. of Arts and
Sciences_, art. Amphic. Council.

We find the same federations when we come to Italy:--

"Among the other works of Servius Tullius was a temple of
Diana, which he erected on the Aventine, apparently near the
present church of Sta. Prisca. This temple, in imitation of the
Amphictyonic confederacy, was to be the common sanctuary and place
of meeting for the cities belonging to the Latin league, of which
Rome had become the chief through the conquest of Alba Longa; and
her supremacy was tacitly acknowledged by the temple being erected
with money contributed by the Latin cities. It is said to have been
an imitation of the Artemisium, or temple of Diana at Ephesus.
(Liv. i. 45; Dionys. iv. 26; Varro, L. L. v. § 43; Val. Max., vii.
3, § 1.) The brazen column containing the terms of the league, and
the names of the cities belonging to it, was preserved in the time
of Dionysius."--Dyer's _Hist. of City of Rome_, p. 51.

Compare this with Niebühr, Hist. ii. chap. ii. (Travers Twiss' "Epitome.")

"So long as Latium had a dictator, none but he could offer
sacrifice on the Alban mount, and preside at the Latin holidays,
as the Alban dictator had done before. He sacrificed on behalf of
the Romans likewise, as they did in the temple of Diana on the
Aventine for themselves and the Latins.... The opinion that the
last Tarquinius or his father constituted the festival is quite
erroneous, as its antiquity is proved to have been far higher. It
is true that Tarquinius converted it into a Roman festival, and
probably, too, by throwing it open to a larger body, transformed
the national worship of the Latins into the means of hallowing
and cementing the union between the states. The three allied
republics had each its own place of meeting--at Rome, at the
spring of Ferentina, and at Anagnia, where the concilium of the
Hernican tribes was held in the circus; that the sittings of the
diets were connected with the Latin festival, seems to be evinced
by the usage, that the consuls never took the field till after it
was solemnised; and by its variableness, which implies that it was
regulated by special proclamation. Like the Greek festivals it
ensured a _sacred truce_."

In these extracts we come upon a federation resembling the Amphictyonic league, whose union is also cemented at a religious festival, the origin of which must be sought for in remote antiquity, and which festival has a direct connection with questions of peace and war. We also catch glimpses of similar federation among the Hernici and Marsi.

Now, let us go to quite an opposite point; and, if we find the same stratification cropping up, may we not conjecture it to have been once the same throughout.

"When the Europeans made their first settlements in America,
six such nations had formed a league, had their Amphictyons or
states-general, and by the firmness of their union, and the ability
of their councils, had obtained an ascendant from the mouth of
the St Lawrence to that of the Mississippi. They appeared to
understand the objects of the confederacy as well as those of
separate nations; they studied a balance of power.... They had
their alliances and treaties, which, like the nations of Europe,
they maintained or they broke upon reasons of state, and remained
at peace from a sense of necessity or expediency, and went to war
upon any emergency of provocation or jealousy."[306]

[306] Adam Fergusson, "Essay on Civil Society," 130. Whatever the
conduct of the Iroquois or Five Nations (sometimes counted as
six) may have been towards surrounding nations, the fidelity
with which they held to their compacts among themselves is
fully acknowledged.

Colden ("History of the Five Indian Nations") says, "This
union has continued so long that the Christians know nothing
of the original of it.... Each of these nations is an absolute
republick by itself, and every castle in each nation makes an
independent republick and is governed by its own 'Sachems' or
old men.... They have certain customs which they observe in
their publick transactions with other nations, and in their
private affairs among themselves; which it is scandalous for
any one among them not to observe, and these always draw after
them either publick or private resentment whenever they are
broke."

In Plato's Republic, "It is laid down that the Greeks are
natural enemies of the barbarians, but are natural friends and
_allies of one another, so that all hostilities between Greek
states_ are to be avoided--are to be conducted on principles
of mildness and forbearance, and to be considered as civil
discord rather than foreign war." "The ten kings of the
Atlantic island were never to make war on each other--there
was a sort of Congress between them." Critias, chap. 15. Sir
G. C. Lewis, "Method," &c., ii. 234. This, taken in connection
with what we know of the Amphictyonic Council, reads more like
tradition than fiction.

In Mexico also there was "that remarkable league, which indeed has no parallel in history (?) It was agreed between the States of Mexico, Tezcuco, and the neighbouring little kingdom of Tlascopan, that they should mutually support each other in their wars, offensive and defensive, and that in the distribution of the spoil one-fifth should be assigned to Tlascopan, and the remainder be divided--in what proportions is uncertain--between the two other powers.... What is more extraordinary than the treaty itself, however, is the fidelity with which it was maintained."--_Prescott's Mexico_, i. p. 17. And in the republic of Tlascala, it is said (_id._ i. 378) "after the lapse of years, the institutions of the nation underwent an important change [they had previously separated into three divisions, of which Tlascala was the largest]. The monarchy was divided, first into two, afterwards into four separate states, bound together by a sort of federal compact, probably not very nicely defined. Each state, however, had its lord or superior chief, independent in his own territories, and possessed of co-ordinate authority with the others in all matters concerning the whole republic. The affairs of government, especially _all those relating to peace and war_, were _settled_ in a _senate_ or _council_, consisting of the four lords, with their inferior nobles." The Tlascalans subsequently incorporated the Othonius, or Otomius (p. 378).

Here, as in the Greek and Latin Leagues, the primary objects of the law of nations seem to have been secured within the limits of their confederation, or of what they would have deemed the pale of civilization. The requirements of their horrible worship (_i.e._ the necessity of procuring human victims for their sacrifices) seems, however, to have overridden every other consideration, and to have impelled them to frequent wars with the nations outside the pale. In the case of the Tlascalans, the traditional lines seem more clearly defined. I have already hinted, in a note, with reference to the Greek and Latin Leagues that the Atlantis of Plato was, as indeed it professes to be, an embodiment of tradition, and not, as it is commonly regarded, as a figment of the imagination; but this strikes me still more forcibly when the League of the Ten Kings in the Atlantis is compared with the League of the Tlascalans.

Plato says: "The particulars respecting the governors were instituted from the beginning as follows. Each of the ten kings possessed absolute authority, both over the men and the _greater part_ of the laws in his own division and in his own city, punishing and putting to death whomsoever he pleased. But the government and communion of these kings with each other were conformable to the _mandates given by Neptune_; and this was likewise the case with their laws. These mandates were delivered to them by their ancestors on a pillar of orichalcum, which was erected about the middle of the island, _in the temple of Neptune._ These kings, therefore, assembled together every fifth, and alternately, every sixth year, for the purpose of distributing an equal part both of the even and the odd; and when they assembled they deliberated on the public affairs, inquired if any one had acted improperly ... a sacrifice of _bulls_ was made in the temple of Neptune, at the foot of the pillar of orichalcum.... But on the pillar, besides the laws, there was an oath, supplicating mighty imprecations against those who were disobedient.... There were also many _other laws_ respecting _sacred_ concerns, and such as were peculiar to the several kings; but _the greatest_ were the following: that they should _never wage war against each other_, and that all of them should give assistance if any one person in some one of their cities should endeavour to extirpate the royal race. And as they consulted in common respecting war, and other actions, in the same manner as their ancestors, they assigned the empire to the Atlantis family."--_Plato's Works_, Sydenham and Taylor's tr., ii. 589.

I think it will then be conceded, that whether or not there was a tradition "of a law common to all nations," there were at any rate channels provided, well adapted to conduct and disseminate it, and that these channels everywhere converge upon the most primitive times. Before proceeding to ascertain whether anything has in fact been transmitted, I must draw attention more particularly to the circumstance that the tradition of all law is everywhere closely connected with the traditions of religion, has been handed down in a similar manner; and, so far as it retains the purity of primitive truth, under the same sanction. From this point of view the following passages from Cicero appears to me to be very significant:

"Hanc igitur video sapientissimorum fuisse sententiam legem
neque hominum ingeniis excogitatum, neque scitum aliquod esse
populorum, _sed æternum quiddam_ quod universum mundum regerat
imperandi, prohibendique sapientiâ.... Quæ non tum denique incipit
lex esse, cum scriptum est, sed tum cum orta est; orta autem simul
est cum mente divina." "Jam ritus familiæ patrumque servari, id
est _quoniam antiquitas proxima accedit ad Deos_, a Deis quasi
_traditam_, religionem tueri."--_Cicero de Legibus_, ii. 4, 11.

There is another curious passage which seems to prove that the
oracles originally existed simply for the preservation of the
primitive tradition; and, although mixed up with imposture, that
they seem to have had the knowledge, or at least the instinct, that
their prestige and power of influence was within the limits of the
traditions which they had corrupted or preserved.[307]

[307] The general assemblies of Greece were held at Delos, "Comme
Métropole du Culte," Pastoret ix. 13. "Ce qu'il y a d'assuré,
c'est que le Pontife exerçoit sur plusieurs objets une
véritable administration de la justice. La décision n'en
appartenoit qu' à lui. Les règles qu'il devoit suivre, le
caractère et l'étendue de ses droits, étoient pareillement
établis dans le recueil connu sous le nom de Jus Pontificum
(Macrobe parle deux fois de ce Jus Pontificum, mais comme d'un
ouvrage perdu. Saturn, vii. chap. xiii.) Un fils du pontife
romain Publius Scævola est même cité dans le livre des Lois
comme prétendant qu'on ne pouvoit exercer un si haut ministère
sans savoir le _droit civil_. Quoi, tout entier? dit Cicéron,
qui le refute; et qui font au pontife le droit des mers, le
droit des eaux, ou d'autres droits semblables?"--Pastoret ix.
203. "Torts, then, are copiously enlarged upon in primitive
jurisprudence. It must be added that _Sins_ are known to it
also. Of the Teutonic codes it is almost unnecessary to make
this assertion.... But it is also true that non-Christian
bodies of archaic law entail penal consequences on certain
classes of acts and on certain classes of omissions, as being
_violations of divine prescriptions and commands_. The law
administered at Athens by the senate of the Areopagus was
probably a _special religious code_; and at Rome, apparently
from a _very early period_, the Pontifical jurisprudence
punished adultery, sacrilege, and perhaps murder. There were,
therefore, in the Athenian and in the Roman states laws
punishing _sins_."--Sir H. Maine, pp. 371, 372.

The expression unwritten laws ([Greek: agraphoi nomoi])
first occurs in the funeral oration of Pericles (Thuc. ii.
37), when it appears to denote those laws of the state which
are corroborated by the moral sanction. It next occurs....
Xenophon, Mem. iv. 4, § 19, 25, ... the expression was
doubtless adopted by Socrates from popular usage. Thus Plato
speaks of [Greek: ta kaloumena hypo tôn pollôn agrapha nomima]
(Leg. vii. 793). _Vide_ Sir G. C. Lewis, "Method of Rea. in
Pol.," ii. 27. [The "laws called unwritten by the multitude"
must evidently imply laws known to the multitude but in
tradition.]

Cicero, "De Natura Deorum," iii., says, "Habes, Balba, quid
Cotta, quid _pontifex_ sentiat. Fac nunc, ego intelligam,
quid tu sentias: a te enim philosopho rationem accipere debes
religionis; _majoribus autem nostris etiam nulla ratione
reddita credere_." "Lex est cui homines obtemperare convenit,
cum ob alia multa, tum ab eo maxime quod lex omnis inventus
quidem, ac _dei munus est_." "Lex est sanctio sancta, jubens
_honesta_, prohibens contraria."

"Deinceps in lege est, _ut de ritibus patriis_ coluntur optimi,
de quo cum consulerent Athenienses Apollinem Pythium, quas
potissimum religiones tenerent, oraculum editum est _eas quæ essent
in more majorum_. Quo cum iterum venissent, majorumque morem
dixissent, sæpe esse mutatum, quæsivissentque quem morem potissimum
sequerentur, e variis respondit, optimum. Et perfecto ita est
ut id habendum sit antiquissimum et a _Deo proximum_ quod sit
optimum."[308]--_Cicero de Legibus,_ ii. 16.

[308] This last sentence is only a gloss of Cicero's from the
stoical point of view, since clearly the enunciation of the
oracle would compel the conclusion, that what was most ancient
and nearest the gods was the best, and not that the best, as
abstractly conceived, was to be held the most ancient, &c.
A moment's consideration will suffice to show that in this
substitution is involved the whole extent of the difference
between the principle of conservation and the principle of
change.

"Demosthène qui avait en faire tant de mauvaises lois,
prononçait que" toutes les lois sont l'ouvrage et le présent
des dieux "et c'était à ce titre qu'il réclamit pour
elles l'obéissance des hommes. Socrate professait la même
doctrine."--Ozanam, "Les Germains avant le Christianisme," i.,
159. Again, "Quand on étudie les lois indiennes on y voit tout
un grand peuple enchaîné par la terreur des dieux. Le livre de
la loi s'annonce comme une revelation.... Les prescriptions du
droit sacré enveloppent pour ainsi dire toute la vie civile,
et c'est là qu'on decouvre enfin la raison de tant de coutumes
dont les Occidentaux avaient conservé la lettre, mais non
l'esprit."--_Id._ p. 161. "If the customs and institutions of
barbarians have one characteristic more striking than another,
it is their _extreme uniformity_" (Maine's "Ancient Law," p.
366). "There are in nature certain fountains of justice whence
all civil laws are derived but as streams; and like as waters
do take tinctures and tastes from the soils through which
they run, so do civil laws vary according to the regions and
governments where they are planted, though they proceed from
the same fountains." (Bacon, "Advancement of Learning," B. ii.
W. iii. 475, ap.; D. Rowland, "On the Moral Commandments," p.
85.)

But this sentiment and tradition was not only common to the people of Greece and Rome, but to the yet uncivilised tribes of Germany.

"Or les dispositions, où la coutume barbare et la loi romaine
s'accordent, sont encore celles qui semblent faire le fond des
législations grèques: non que les douze tables aient été copiées,
comme on l'a cru, sur les lois de Solon, mais à cause de l'étroite
parenté des peuples de la Grèce et du Latium. A travers l'obscurité
des siècles héroïques, on découvre un sacerdoce puissant qui a
ses premiers établissements en Thrace, en Samothrace, à Dodone,
et qui perpétuera son autorité par l'institution des mystères. On
voit aussi la resistance d'une race belliqueuse."--_Ozanam_, "Les
Germains avant le Christianisme,"_ vol. i. chap. "Les Lois."

"Au premier abord rien ne semble plus contraire aux moeurs
barbares que la loi romaine, si subtile, si précise, si bien
obéie. Cependant si l'on en considère les origines, on n'y trouve
pas d'autres principes que ceux dont la trace subsistait dans les
vieilles coutumes de la Germanie. Le droit primitif du Rome, comme
celui du Nord, est un droit sacré."--_Ib._ p. 148.

"Il existait chez les Germains une autorité religieuse,
_dépositaire de la tradition_, et qui y trouvait l'idéal et le
principe de tout l'ordre civil. Cette autorité avait créé la
propriété immobilière en la rendant respectable par des rites et
des symboles, ... elle l'engageait dans les liens de la famille
légitime, consacrée par la sainteté du mariage, par le culte des
ancêtres, par la solidarité du sang: elle l'enveloppait dans le
corps de la nation sédentaire, ou elle avait établi une hierarchie
de caste et de pouvoir, à l'exemple de la hierarchie divine de la
création" (p. 147). "Dans cette suite de scènes dont se compose
pour ainsi dire le drame judiciaire, on reconnaît un pouvoir
religieux, qui cherche _à sauver la paix, à désarmer la guerre_ et
qui s'y prend de trois façons différentes" (p. 142).

Now, if we are agreed that fitting channels for the diffusion of the tradition existed; if, further, we find that all law seems to trace itself back to a common source of supernatural revelation; if the resemblances in the traditions concerning the lawgivers of antiquity--and, with the exception of Lycurgus, the agreement in the fundamentals of their codes--in the great lines of the family, property, and the external relations of life, seems to require the supposition of some common fountain-head at which they all filled the pitcher--we shall, I think, when we come to the question of public law, only require further some evidence of a tradition of maxims, rules, and precedents of procedure in war, founded on and appealing to natural right, and claiming the sanction of the gods, to establish the existence of a law common to all nations different from that which would have arisen from the judgment of the prætors, merely applying the rules and maxims common to the Romans and the adjoining nations, in case of conflict where the law of the State was not allowed to be applied (_supra_, Maine).

I shall, doubtless, be reminded that this was only part of Sir H. Maine's argument, and that it was this, taken in connection with the influence of the Stoics on Roman law, and the stoical conception of nature,[309] which created the fiction of a law of nature, and of a law common to all nations.

[309] "L'erreur a été de croire qu'il n'est rien de plus facile à
l'homme que de suivre la nature, tandis que c'est au contraire
le chef-d'oeuvre de l'art que de la contenir dans les bornes
que la nature lui prescrit: c'est où peuvent à peine parvenir
les legislateurs les plus sages. Que de préjugés à éteindre!
que d'erreurs à combattre! que d'habitudes à vaincre! toutes
choses qui dans tous les temps commandent impérieusement au
genre humain."--_L'Antiquité dévoilée par ses usages_, i. 1.
ii. ch. iii. _par Boulanger_.

Let it then be granted that the theories and maxims of the Stoics had their influence on Roman society and Roman law. It was only part of the influence which stole over and everywhere impregnated the field of primitive tradition. Sir H. Maine shows us how it at once seized upon the element of law, which, be it in fiction only, was said to be common to all nations. Would it the less have seized upon it if, instead of being a fiction, it had been a reality?--_à fortiori_, it would have done so. Therefore Sir H. Maine leaves the question as to the belief among the ancients in a "law common to all nations" still open, or rather, so far as there is an argument, it is only with the previous part of his theory that it is necessary to deal; for all that Sir H. Maine's finely-drawn reasoning and subtle detection of the influence of Grecian stoicism on Roman law accounts for--so far as the present argument is concerned--is the greater attention and respect which was henceforward paid to the fiction, supposing that it had not heretofore and always been paid to the fact, that there was a traditional law common to all nations.

I have previously (p. 3) pointed out the distinction between the law of nations and international law, and I am under the impression that I made the distinction before the publication of Sir H. Maine's work--certainly before I had become acquainted with it. The manner in which Sir H. Maine makes the distinction does not appear to me to be quite accurate. He says:--"It is almost unnecessary to add that the confusion between _jus gentium_, or law common to all nations, and international law, is entirely modern. The classical expression for international law is _jus feciale_, or the law of negotiation and diplomacy" (p. 53). The Fecial College was very far from corresponding with our Corps Diplomatique, neither was its law a law of negotiation and diplomacy; and the distinction between the law of nations and international law was made in modern times, _precisely because_ in antiquity treaty law was subordinate to, and identified with, the traditional law. The Fecial College corresponded much more nearly to what our Heralds' College would be, supposing the Heralds' College invested with the authority of our Admiralty Courts, and also made the trustees of the foundation for the study of international law, which Dr Whewell's bequest had the intention of instituting at Cambridge. We should then have, as in ancient times, a body of men who would be at once the depositaries, the interpreters, and the heralds of a tradition, though, to complete the picture, we should have to invest them with a sacred character, and in some way to give to their decisions the sanction of religion. Dionysius of Halicarnassus tells us that they were priests chosen from the best families at Rome, and that their special intention was to see that the Romans never made an unjust war. "The seventh part of the Sacred Laws was devoted to the college of the Fecials, whom the Greeks call [Greek: eirênodikai].[310] They are men selected from the most illustrious families, and are dedicated during their whole life to this priesthood.... It would take long to enumerate all the various duties of the Fecials, which were multifarious, ... but in the main they are these,--to take heed lest the Romans should ever undertake an unjust war with a city with which they were in league" (Lib. ii.); it was their duty to demand reparation, and, failing, to declare war; in case of differences with allies, they acted as mediators, and they adjudicated in case of disputes. It was for them to decide what constituted an injury to the person of an ambassador, and whether or not the generals had acted according to their oaths; to draw up the articles of treaties, truces, and the like; and to decide as to their nullity and validity, and to communicate accordingly with the Senate, which deliberated upon their report.

[310] [Greek: Eirênodikai]--"Feciales quia _interpretes_ et
_arbitri_ sunt pacis et belli."--_Lexicon_, Ben-Hederic,
Ernesti.

_Vide_ also Plutarch, "Numa;" Livy, lib. i. c. 34.

Vattel, iii. c. iv., says:--"It is _surprising_ to find among
the Romans such justice, such moderation and prudence, _at a
time too_ when apparently nothing but courage and ferocity was
to be expected from them."

What Cicero tells us is not less to the point:--

"There are certain peculiar laws of war also, which are of all
things most strictly to be observed.... As we are bound to be
merciful to those whom we have actually conquered, so should those
also be received into favour who have laid down their arms.... Our
good forefathers were most strictly just as to this particular, the
custom of those times making him the patron of a conquered city or
people who first received them into the faith and allegiance of
the people of Rome. In short, _the whole right and all the duties
of war_ are most rigorously set down in the _fecial laws_, out of
which it is manifest that no war can be justly undertaken _unless
satisfaction has been first demanded_, and _proclamation_ of it
made _publicly beforehand_."--Cicero, _Offices_, i. xi.; again,
also, _vide_ iii. xxxi.

Compare these passages with Mr Gladstone's account of the Homeric age:--

"In that early age, despite the prevalence of piracy, even that
idea of political justice and public right, which is the germ of
the law of nations, was not unknown to the Greeks. It would appear
that war could not be made without an appropriate cause, and that
the offer of redress made it the duty of the injured to come to
terms. Hence the offer of Paris in the third Iliad is at once
readily accepted; and hence, even after the breach of the act,
arises Agamemnon's fear, at the moment when he anticipates the
death of Menelaus, that by that event the claim to the restoration
of Helen will be practically disposed of, and the Greeks will
have to return home without reparation for a wrong, of which
the _corpus_, as it were, will have disappeared."--_Iliad_, iv.
160-62.[311]

[311] Gladstone, "Homer and the Homeric Age," iii. 4.

It is certainly not within the scope of this chapter to indicate the multiform applications of the law of nations, which it would require a legist's special knowledge (to which the writer can lay no claim) to determine with any exactness. My object has been merely to sustain the traditional belief against those who deny it. I shall indeed, for the purposes of illustration, go into detail on one point, viz. the declaration of war; but I may mention incidentally that the Fecial and Amphictyonic law presumably extended to many other points, such as treaties, trophies,[312] truces,[313] hostages, and the like. Moreover, the maritime law of Rhodes and the islands of the Ægean, known to the Romans long before it was embodied in their code (which was not probably until they had extended maritime relations), presents, as Pastoret (ix. 118) informs us, "analogies et rapprochemens multipliés" with modern maritime legislation from the time of the Romans to the "ordonnance de la marine" drawn up by order of Louis XIV.

[312] "To demolish a trophy was looked on as unlawful, and a
kind of sacrilege, because they were all dedicated to some
deity; nor was it _less a crime to pay crime_ to pay divine
adoration before them, or to repair them when decayed, as may
be _likewise_ observed of the Roman triumphal arches.... For
the same reason, those Grecians who introduced the custom of
erecting pillars for trophies incurred a severe censure from
the ages they lived in."--_Potters "Archæologia_," ii. c. 12.
"Before the Greeks engaged themselves in war it was usual
to publish a declaration of the injuries they had received,
and to demand satisfaction by ambassadors; which custom was
observed even in _the most early ages_.... It is therefore no
wonder what Polybius relates of the Ætolians, that they were
held for the common _outlaws_ and robbers of Greece, it being
their manner to strike without warning, and make war without
any previous or public declaration."--_Id._ ii. c. vii. p. 64.
(Compare _infra_, ch. xv.)

[313] "Omnes portas concionabundus ipse imperator circumiit, et
quibuscumque irritamentis poterat, iras militum accuebat, nunc
fraudem hostium incusans, qui, pace petita, induciis datis,
per ipsum induciarum tempus, _contra jus gentium_ ad castra
oppugnando venisset."--_P. Livius_, 1. xc.

In an article on "Belligerent Rights at Sea" (in the _Home and Foreign Review_, July 1863), in which there will be found a nice discrimination of these questions, Mr E. Ryley says:--

"The very largest rule of belligerent rights limits the voluntary
destruction of life and property by the necessity of the occasion
and the object of the war. Bynkershock and Wolf insist that
everything done against the enemy is lawful, and admit fraud,
poison, and the murder, as we should call it, of non-combatants,
as permissible expedients for attaining the object of the war. But
these are the writers who lay the foundations of the law of nations
in reason and custom, and ignore that perception and judgment of
right and wrong which God has communicated to man. It is true that
for the most part, and practically, we know the law of nations by
reason and usage; but this law is founded not on that by which we
know its decisions, but on justice; and reason must admit, and
usage must adopt, whatever is clearly shown to be just and right,
however this may be against precedent, and what has hitherto been
held to be sound reason. There is no law without justice, nor any
justice without conscience, nor any conscience without God. Grotius
thus admirably expresses himself:--'Jus naturale est dictatum
rectæ rationis, indicans actui aliqui, ex ejus convenientiâ
aut disconvenientiâ cum ipsa naturâ rationali, inesse moralem
turpitudinem, aut necessitatem moralem, _ac consequenter ab auctore
naturæ, Deo, talem actum vetari aut præcipi_. Actus, de quibus tale
extat dictatum, _debiti sunt aut illiciti per se, atque ideo a
Deo necessario præcepti aut vetiti intelliguntur_.'[314] And this
principle obtains greater force from the objections which have
been made to it, and the efforts to establish another foundation
for the law of nations. Thus the principle of utility is only a
feeble attempt to give another name to the law of justice which
God has implanted in His creatures; and to pretend to found a law
on general usage and tacit consent is to mistake the evidence of
justice for justice itself."

[314] "De Jure Belli ac Pacis," l. i. c. l. § x. n n, 1 et 2.

At first sight the passage quoted from Mr Ryley's article would seem to militate against my position; in reality we merely take up different weapons against Bynkershock and Wolf. If custom means merely precedent, it may or may not be in accordance with "that perception of right and wrong which God has communicated to man;" but if there is a tradition of a law of nations, the fact creates so great a presumption in favour of its pronouncements, that what is of usage and custom will be the criterion of what is right until the human intellect has shown that what has hitherto been held to be permissible was founded in a precedent of iniquity. On the other hand, we are agreed that the law of nations must be such as to stand the test of the "perception and judgment of right and wrong." As this perception, however, has never wholly died out among mankind, whatever is of general acceptance carries with it an assurance that it has stood this test; and "general usage and the tacit consent" is so much "the evidence of justice," that it has practically been taken, or mistaken by mankind "for justice itself," and the law of nations has always been discussed on the basis of usage. This, I contend, would not have been the case if there had not been behind usage the immemorial sanction and tradition, or if the tacit consent had been only acquiescence in wrong. I am the more confirmed in this view on perceiving that Mr Ryley, after stating his own opinion as to the right of blockade, finds his conclusions, when he has discriminated such precedents as were of an exceptional and retaliatory character, to be in conformity with usage and the decision of legists.

From this point of view those who contend for the basis of tradition and those who contend for the basis of natural justice mean the same thing. They both affirm that there are limitations to human passion even in war. They are both opposed to precedents based on force, and are equally hostile to "the principle of utility," for if, as Mr Ryley puts it, "the principle of utility" is only "another name for the law of justice which God has implanted in His creatures," the phrase is an understatement of the truth, liable to misconstruction, and tends to lower the standard of right; and if it means something different or distinct from this, it means that against which the tradition of mankind protests.

I have already said that international law, as distinguished from the law of nations, requires to be constantly discriminated by the intellect or the conscience of mankind, and more especially now that diplomatists are no longer legists.

There was a certain indirect and collateral influence arising out of the tradition of a law of nations from the fact that a body of men existing as its interpreters, or at least as its depositaries, which it appears to me was destined to operate powerfully in the interests of peace. The existence of such a body of men perpetuated a public opinion in these matters, they fostered an _esprit de corps_ stronger even than the spirit of nationality which then reigned supreme and dominated society. When a violation of treaties or an unjust aggression took place there was thus found a body of men who would stigmatise or at least recognise it as such. The sentiment thus sustained was not all-influential for the purposes of peace, but it was operative to the extent of arresting the attention and perturbing the consciences of mankind. In like manner I venture to say that the diplomatic body, although the depositaries only of a bastard tradition, subserve this purpose also after a fashion, and I much doubt whether many well-intentioned men, in striving to compass its abolition would not, as matters stand, destroy the last breakwater which secures the peace of Europe.

In ancient times the comity of nations was virtually restricted to groups of cities or nations of kindred descent, or which had become confederate by reason of contiguity. This circumstance has been adduced by Sir G. C. Lewis to stop _in limine_ the theory of a law of nations;[315] as if it was necessarily in denial of a tradition of morality common to all nations. Yet, I think that I shall be able to show instances of its recognition as between the groups, but it is precisely in its restricted application within the groups, and in the channels thus provided, that I think we shall find common features, and dimly and obscurely, though certainly, catch glimpses of the tradition.

[315] Sir G. C. Lewis ("Method, &c., of Reasoning in Politics," ii.
35), quotes Mr Ward, "History of Law of Nations" (i. 127), to
the effect "That what is commonly called the law of nations,
is not the law of _all_ nations, but only of such sets or
classes of them as are united together by similar religions
and systems of morality." Sir G. C. Lewis' view is that "as
there are no universal principles of civil jurisprudence
which belongs to each community, so there are no universal
principles of international law which are common to all
communities."--_Id._

If I may complete my thought, these confederations were so many types and anticipations of that Amphictyonic Council, which, if things had not persistently gone wrong in the world, might have been formed in mediæval times by Christendom under the presidency of the Popes,[316] and which may yet be realised in the triumph of religion which seems to be signified in the motto _lumen in coelo_, as attaching to the successor of the present Pope, whose pontificate has been so singularly prefigured in the indication _crux de cruce_.[317]

[316] Since writing the above, I have read a series of papers (which
commenced I think in August 1871) in the _Tablet_ under the
title of "Arbitration instead of War," and I perceive that the
writer arrives by a different route at a similar conclusion.
I should have had pleasure in incorporating the argument with
this chapter, but I shall do better if I induce my readers to
peruse and weigh it as it deserves.

[317] I allude to the ancient prophecy of St Malachy. Its
authenticity as the prophecy of St Malachy may be questioned;
but the antiquity of the prediction, and its existence in
print early in the sixteenth century is, I believe, fully
established. The copy which lies before me will be found in
Moreri's Dictionary of 1732, in the Pontificate of Innocent
XIII. Twelve mottoes given _in prediction_ from that date,
fits the motto "_crux de cruce_," to the 12th successor of
Innocent, viz. Pius IX. Ten other mottoes follow commencing
with "lumen in coelo."

In the _Times_, November 29, 1867, it was said, "If this theory ['the states of Christendom constituted as a species of commonwealth'] could be rendered effectual, international law would be furnished at once with its greatest need, a court to enforce its behests; but nothing is plainer than that for such arbitration _the arbitrators must be fetched from another planet_."

But, inasmuch as Abraham Lincoln practically remarked, you cannot have "a cabinet of angels" in this world, the thing is to discover the arbitrator who is the furthest removed from sublunary influences. Now, how strong soever may be our national mistrusts and prejudices, we cannot refuse to recognise that the Papacy ostensibly satisfies these conditions, and this irrespective of the belief of the preponderant section of the Christian world that he is the infallible guide, and the divinely appointed interpreter of the tradition of morals.

Its representatives being always old men naturally inclined to peace,[318] the sovereign of a small state which a general war would imperil--professing maxims and therefore pledged to a programme of peace--(so that any deviation from it, as in the case of Julius II., would render glaring and abnormal acts which would have been unnoticed in an ordinary sovereign), a sovereign without a family (and whatever may be said of nepotism, it must be conceded that a man who has only collateral relatives is _less_ tempted to found a family than one who has sons), a sovereign, in fine, representing the oldest line of succession in the world,[319] in the oldest city, in the centre of tradition, and like Noah in the traditional symbols (_ante_, p. 220), linking the new world with the old.

[318] "The pontifical power is, from its essential constitution, the
least subject to the caprices of politics. He who wields it
is, moreover, always aged, unmarried, and a priest; all which
circumstances exclude ninety-nine hundredths of all the errors
and passions which disturb states."--_De Maistre, Du Pape_, B.
II. chap. iv.

[319] "The history of that Church joins together the two great ages
of human civilisation. No other institution is left standing
which carries the mind back to the times when the smoke of
sacrifice rose from the Pantheon, and when the cameleopards
and tigers bounded in the Flavian amphitheatre. The proudest
royal houses are but of yesterday when compared with the
line of the supreme Pontiffs. That line we trace back in an
unbroken series, from the Pope who crowned Napoleon in the
nineteenth century, to the Pope who crowned Pepin in the
eighth; and far beyond the time of Pepin the august dynasty
extends, till it is lost in the twilight of fable.... The
Catholic Church is still sending forth to the farthest ends of
the world missionaries as zealous as those who landed in Kent
with Augustine, _and still confronting hostile kings with the
same spirit with which she confronted Attila."--Macaulay's
Essays, "Review of Ranke's Popes._"

This, I find (I quote from a series of important papers on "English statesmen and the independence of Popes," _Tablet_, November 1870), was fully recognised by our greatest minister, Mr Pitt. In 1794, "Pitt suggested, through François de Conzié, Bishop of Arras, that the Pope should put himself at the head of a European league." "On more than one occasion," he wrote, "I have seen the continental courts draw back before the divergences of opinion and of religion which separate us. I think that a common bond ought to unite us all. _The Pope alone can be this centre._... We are too much divided by personal interests or by political views. Rome alone can raise an impartial voice, and one free from all exterior preoccupations. Rome, then, ought to speak according to the measure of her duties, and not merely of her good wishes, which no one doubts."

There have been at different periods of the world various projects of universal pacification;[320] but it is worthy of remark that they have almost all, from that of Henri IV. to the one recently broached by the Professor of Modern History at Cambridge, taken the traditional lines of a confederation of states more or less circumscribed with an amphictyonic council. This has its significance from the point of view I am indicating, but I do not see that it is satisfactorily accounted for on any other view.[321]

[320] Sir G. C. Lewis, "Method, &c.," ii. 285, enumerates several.

[321] In De Quincey's Works, xii. 140, there is a disquisition on
Kant's scheme "of a universal society founded on the empire of
political justice," where it is competent that as the result
of wars man must be inevitably brought "to quit the barbarous
condition of lawless power and to enter into a federal league
of nations, in which even the weakest number looks for its
rights and protection--not to its own power, or its own
adjudication, but to this great confederation (_foedus
amphictyonum_), to the united power, and the adjudication
of the collective will," and is said to be "the inevitable
resource and mode of escape under that pressure of evil which
nations reciprocally inflict," and which seems to contemplate
a situation like the present. "Finally war itself becomes
gradually not only so artificial a process, so uncertain in
its issue, but also is the after-pains of inextinguishable
national debts (a contrivance of modern times) so anxious and
burdensome; ... that at length those governments which have no
immediate participation in the war, under a sense of their own
danger, offer themselves as mediators, though as yet without
any sanction of law, and thus prepare all things from afar for
the formation of a great primary state-body or cosmopolitic
Areopagus, such as is wholly _unprecedented_ in all preceding
ages." I am fully aware of the divergence of this view from
that which I have indicated, but I wish to point out that it
is only "unprecedented" in so far as it is cosmopolitic and
extends to all humanity; but so extending it ought not to
include the traditional notions of an "Areopagus"--_foedus
amphictyonum_--or confederation of states. It ought rather
to talk of an interfusion of states, the only condition upon
which the cosmopolitic Areopagus would be possible; yet it
inevitably falls into the traditionary lines. Moreover, before
mankind can attain to this _inter-fusion_ of states, one
supreme difficulty, which seems always to be over-looked, must
be overcome, we must bring mankind back to be "of one lip and
one speech." The scheme, on the other hand, of a federation
cannot be pronounced impracticable until it has been tried;
yet, although it lies latent in the idea of Christendom, and
although it has had a sort of informal recognition in the
theory and policy of the balance of power, there has never
been any understanding from which we can gather what the
results would be, if the bond of federation were ever cemented
by any solemn pledge or sanction.

It would seem, then, that there has always existed in the world the tradition, and since the triumph of Christianity, the conditions by which, if it had so willed, it might have recovered the golden age of peace and happiness of which it has never entirely lost the tradition.

Until this consummation we must fall back upon the law of nations,[322] though even here it must be borne in mind that Christianity has exercised an indirect influence, and has raised the standard of morality for the world at large.[323] But when all is abated the law of nations remains the _lex legum_, deeply founded in the maxims, sentiments, and usages of mankind. These maxims in their tradition have been concurrently interpreted, adapted, and in a certain sense moulded by the intellect of legists, whose discriminations or conclusions have received the tacit approbation of mankind. Rarely has the production of any profane writer received such an unanimous ratification as the great work of Hugo Grotius, mainly, as we have seen (_ante_, p. 4), based on tradition. Again, the agreement and correspondence among the legists of different nationalities is substantial, and is only to be accounted for upon the supposition that each in his own groove faithfully incorporated and elaborated a tradition; and if you say that this was only an argument among the separate traditions of the Roman law, you only put back the argument one remove, as I have attempted to demonstrate. If conversely you say that the law of nations as we find it is purely the work and elaboration of legists, and the conclusions of abstract reason, put it to this test, bring all the legists of the world into a congress--such a congress is much needed just now--with instructions to create a new code on abstract principles, and upon the basis of the rejection of what is of custom and tradition, and see what they will accomplish! Do not all our difficulties begin exactly where, owing to the complications of modern civilisation, tradition ceases? For the rest we shall presently see what the Congress of Paris, in 1856, was able to effect in this kind.