CHAP. I c. The Holy Roman Empire Effects of the feudal system The year 800 A.D., which saw the coronation of Charlemagne as Emperor of the West by Pope Leo III, opened a new era in the history of international relations. The plan was conceived of reviving the ideal of an ordered world by bringing to the support of the empire the new bond of the Christian faith. Throughout the Dark Ages of the barbarian invasions men looked back to Rome as the symbol of law and order, and it was felt that if peace among the nations was to be established at all it must be upon the basis of a single unifying authority. But Christianity had in the meantime entered its claims to the spiritual allegiance of the Western world, and its official head, the pope, was able to promise the new emperor effective aid in accomplishing a task at which others before him had failed. The whole organized influence of the church, cutting across national lines, was to help establish the reign of law upon which the salvation of society depended. The emperor was to wield the temporal sword which would reduce rebellious individuals to obedience to the actual precepts of the law. The pope was to hold the spiritual sword which would enforce the observance of those common principles of morality which lay behind the law. Thus was formed the Holy Roman Empire, within which peace through law was to be maintained by the coöperation of the temporal and spiritual authorities. In this reorganization of the old empire on a new basis there was even less room for the existence of an international law in the modern form than there was during the reign of Augustus. For the Roman system of colonial administration was replaced by the feudal system, which practically eliminated the corporate personality of the individual state by identifying political authority with land tenure. The internal organization of the state was fundamentally altered by reducing the individual to a position of immediate dependence upon his overlord, to whom he owed personal allegiance, whereas before he had been bound by the more comprehensive and abstract law of the state. The state thus ceased to be based upon a community of interest between citizens and became a successive series of personal relations to the feudal lord. Territorial sovereignty accompanied the feudal tie. The result was that the centralization of the authority of the empire in the hands of the emperor amounted to no more than an acknowledgment of personal homage. There was no community of feeling between the separate feudal states, as there was none between the vassals of different lords. A common law of nations was as impos I sible as a common law of the state.1 If the emperors, by reason CHAP. of their exalted position, from time to time acted as arbitrators between kings and princes, in so doing they were exercising their personal influence rather than performing recognized legal functions attendant upon the prerogative of their office. the church But what the empire lacked in cohesiveness the Church of Rome Influence of undertook to supply. Both directly and indirectly it sought to lay a restraining hand upon the centrifugal forces which manifested themselves within the first century after the founding of the empire. On the one hand the pope, as spiritual head of Christendom, undertook to pass judgment upon the conduct of princes no less than upon that of individuals. Since sovereignty was a personal relationship between vassal and lord, it was possible in cases of misconduct to threaten rulers with deposition, and even to depose them by releasing vassals from their oath of allegiance, the binding force of which was moral rather than political. The same spiritual authority enabled the pope to offer his good offices and mediation and to act as arbitrator in disputes between princes. This latter function was one of the highest importance, and the record of arbitral cases decided either by the popes themselves or under their influence is one of the brighter pages of an era given over for the most part to petty wars.2 In addition to the functions of arbitrator, the church undertook to lay a general restraint upon the practice of private warfare between feudal princes. During the tenth century conventions of the clergy proclaimed the Truce of God, which forbade resort to arms on certain days of the week and during certain seasons of the year. At the same time the effort was made to prevent the resort to arms through the organization of peace leagues or associations which were established in the various dioceses. While these movements partook more of the character of intrastate regulations than of international law, in feudal times the line between individual conduct and the corporate conduct of the state was scarcely distinguishable. Moreover, specific prohibitions were issued by the church from time to time against particular practices of warfare which appeared barbarous. Its early opposition to the The latter did, however, develop later in countries such as England where the feudal system soon lost its hold. Nys, Les Origines, Chap. V; Moore, International Arbitrations, V, Appendix III, translating from Mérignhac, Traité Théorique et Pratique de l'Arbitrage International. * Walker, History, I, 85-86. CHAP. I Conflict between church and state Influence of civil and canon law profession of arms later developed into an attitude of official sanction, when the clergy came to exact a vow from the warriors of feudal times that they should use their weapons for the protection of the weak and the defenseless and of the church. This religious vow, on which the whole institution of chivalry rested, did much to ennoble the conception of private warfare and helped to mitigate the cruelty of earlier times. It seems, however, to have failed when large armies were in the field and when the hosts of the crusaders went into battle against the heathen.1 But the beneficent influence which the church sought to exercise by these methods was offset by the conflicts of jurisdiction between pope and emperor. Theoretically, the functions of the two were distinct; practically, they overlapped at many points. The conflict over investitures which culminated in the triumph of Gregory VII over Henry IV was but one of many disputes between the temporal and spiritual powers. The plan of coöperation on equal terms in the maintenance of unity and law gave way to a rivalry as to which should take precedence over the other. By the time of Boniface VIII (1294-1303) the pope had succeeded in asserting the priority of the claims of the church, but the long struggle cost the papacy the loyalty of the feudal princes, and the spiritual sword of the Holy Roman Empire was as little able as the temporal to maintain its authority over the growing tendency of the units of the empire to assert their independence of control. The ideal of a world state, which men still believed to be the true, even if unattainable, principle of law and order, was defeated partly by the inability of pope and emperor to adjust their respective claims and partly by the inherent looseness of the feudal bond. In the meantime the progress of secular and religious learning was helping to lay the wider foundations of law which became in later centuries the basis upon which the modern system of international law was built. The study of Roman law was revived in the universities, and the Corpus Juris Civilis was found to contain many principles of law for the regulation of conduct between individuals which, being deduced from general principles of justice, were equally applicable to the relations between states. In the meantime the study of the canon law of the church was being pushed forward with equal vigor. The treatise published by Gratian at Bologna in 1148 (?1144), known as the Decretum, and 1 Walker, op. cit., I, 129 ff. 1 I supplemented by the Decretals of Gregory IX and similar de- CHAP. cretals of later popes, came to be known under the general term of Corpus Juris Canonici, official sanction being given to it by Gregory XIII in 1580. Many questions of international law, especially those relating to war, were discussed by the canonists from the point of view of general morality and Christian traditions. The canon law held valid throughout all Christendom, and, while it was administered in separate courts, it kept before the minds of men the ideal of a general rule of conduct transcending the local laws of the separate communities.1 commerce With the growth of medieval commerce a new element entered Growth of into the law of nations. After the barbarian inroads of the sixth and seventh centuries trade began to revive among the maritime cities of the Mediterranean and along the shores of the Baltic. Collections of maritime customs were drawn up setting forth the rights and duties of merchants and ship-owners of different countries in their dealings one with another. The Rhodian Laws, of uncertain origin, possibly dating back as far as the seventh century, the Tabula Amalfitana of the eleventh century, the Laws of Oleron of the twelfth century, the Laws of Wisby, dating from the thirteenth or fourteenth century, and in particular the Consolato del Mare of the fourteenth century, while dealing with the relations between individuals of different countries and thus belonging to international private law rather than public law, had considerable influence in strengthening the conception of a general law taking precedence within its field over the law of the particular state. Moreover, confederations of independent communities arose, such as the Hanseatic League (1250-1450), for the protection of commerce and offered in their limited way an example of the possibilities of the order and prosperity that might flow from the adoption of a common rule of law. of national By the close of the Middle Ages the character of the European Formation state system had completely changed. The Holy Roman Empire states had lost its vitality as a bond of union between Christian princes. Independent national states were being formed which disavowed the recognition of any higher political authority than the will of their individual rulers. Territorial sovereignty was replacing feudalism in the internal organization of the state. England, 1A valuable survey of the doctrines of the theologians and canonists of the Middle Ages may be found in Vanderpol, La Doctrine Scholastique du Droit de Guerre, Part II. CHAP. I The Thirty France, and Spain had by the year 1500 become unified in the hands of powerful monarchs whose control extended throughout the length and breadth of their kingdoms. The Italian cities had won their independence. The petty German states alone still paid formal deference to the emperor, but even in them the spirit of local sovereignty was beginning to assert itself. Europe was no longer a community of states owing allegiance to a single political superior. The conception of unity set forth in Dante's De Monarchia had been succeeded by the practical political cynicism of Machiavelli's Prince, which gave expression to a state policy of enlightened self-interest and glorified deceit. Parallel with this development of self-conscious nationalism came the repudiation of the spiritual authority of the church, both in its external activities as an organized institution and in its assertion of the principle of Christian unity under a common head. The Reformation merely gave further expression to a sense of independent self-determination which the new learning of the Renaissance had awakened. World empire had failed because the political unity which it sought to attain had neither economic nor compelling social interests behind it, and because the ambitions of rulers and the rivalries attendant upon dynastic succession prevailed over the unorganized demand of the people at large for peace. The old order in Europe was dead; the new order had not yet come to life. For a century or more Europe drifted in a state of helpless anarchy; each nation's hand was against its neighbor, and no state was certain of its rights or its obligations. The Thirty Years' War, beginning in 1618, was a confused struggle in which religious and political objects were inextricably bound up. The secularization of church lands in Germany, the extension of religious toleration, the maintenance of the authority of the emperor over the German princes, were the original questions at issue. But, beginning as a domestic struggle within the German states, the war drew into its vortex one state after another which had originally no part in the dispute, and whose interference was prompted by apprehension lest the victorious emperor should threaten their security by becoming again the dominant political power in Europe. It exhausted the resources of the participants and made of much of Germany a barren waste. Finally it was terminated by the Peace of Westphalia of 1648, consisting of the two treaties of Osnabrück and Münster, to which all of the leading Christian |