I were gradual relaxations, particularly on the part of Athens, which CHAP. undertook on several occasions to naturalize aliens en masse.1 1 The right of asylum was regarded as of divine origin, and was particularly sacred in connection with Greek temples. Ambassadors were exceptionally privileged. Independent states enjoyed by treaty the right to send ambassadors and were in turn obliged to receive them from other states. Elaborate formalities attended their reception; their persons were regarded as inviolable, and severe punishment was meted out to those who maltreated them; an offense against them was regarded as a ground of war unless due reparation was made. To a certain extent they enjoyed the privilege of exterritoriality, being amenable for offenses not to the local jurisdiction but to their own national tribunals.) The rules relating to the negotiation and interpretation of treaties show many parallels with the modern law, particularly in respect to the conditions under which a treaty could be broken.2 among the In addition to these rules of the substantive law there were Arbitration numerous treaties providing for the settlement of interstate dis- Greeks putes by arbitration. The modern compromis, an agreement in advance to submit disputes of a definite or general character to arbitration, is to be found both in treaties of peace and in alliances between separate states. For example the second treaty of alliance between Sparta and Argos in 418 B.C. stipulated that they should submit their differences to arbitration "on fair and equal terms, according to their ancestral customs."3 Moreover, arbitration was actually resorted to on a number of occasions, and important questions relating to the possession of territory, boundary-lines, and commercial and religious rights were submitted to judicial decision. There was no hesitation, apparently, in submitting to arbitration disputes of a character which in modern times would be regarded as affecting national honor or vital interests, although account must be taken of the fact that in times of tension the agreement to acquiesce in an appeal to arbitral settlement was not faithfully kept.5 warfare In contrast with the law of peace it must be pointed out that Methods of the Greek methods of warfare, though less unrestrained than those which prevailed among the Eastern empires, are revolting to 1 Phillipson, op. cit., Chaps. VII, VIII. Ibid., Chaps. XIII-XV. Thucydides, V, 79; quoted in full by Phillipson, op. cit., II, 61, 62. See Tod, Greek International Arbitration, Chap. II. CHAP. I Rome as a city-state modern conceptions of humanitarian conduct. The universal law, supported by specific treaties, prescribed many rules in mitigation of the severity of interstate conflicts. Formalities attended the declaration of war, with the object of inducing or permitting the offending party to submit to the demands for redress made upon it. Reprisals were regulated. Temples and embassies were regarded as inviolable. It was forbidden to kill prisoners, and provision was made for their ransom and exchange; truces and armistices were regarded as sacredly binding; permission was given for the burial of the dead; treachery was condemned, and poisoned weapons, as well as the poisoning of wells, were forbidden. But in actual practice the Greeks frequently threw off all restraint. State policy as well as imminent military necessity frequently were made to justify treachery and cruelty of the most shocking character. The deliberate massacre by the Lacedæmonians of the Platean garrison that had capitulated is a classic instance.1 At times the entire male population of a captured city was put to the sword, and the women and children sold into slavery. Moreover, the doctrine of reprisals, so familiar as an excuse for the violation of the laws of war down to the latest times, was frequently made the ground for barbarous acts in flagrant contravention of the higher law acknowledged in principle by the perpetrators of the deed.2 Toward those outside the Hellenic circle the Greeks felt themselves bound only by the more obvious rules of the universal law. "The law of all mankind" was regarded as applicable to men as men, apart from race or religion. Its precepts, embodied like the law of the Hellenes in traditional usages, included the inviolability of the ambassadorial character and the obligation of treaties made under oath; but it is a question whether these rules were not as often violated as observed. A recognition of their existence is to be seen in the rebuke administered by Xerxes to those who suggested that he should retaliate upon the Athenians and the Spartans for the murder of the Persian envoys. His reply was that they had violated the law of all mankind and he would not do that very thing which he blamed in them.3 Considered with respect to the development of rules of international law, the history of Rome may be divided into two periods. 'See, in general, Phillipson, op. cit., II, Chap. XXIV. 'Herodotus, VII, 136; quoted by Phillipson, op. cit., I, 60. I In the first, Rome was a city-state among other city-states, and its CHAP. relations with them bear a close comparison with those of the Greek city-states. Down to the beginning of the third century B.C. Rome recognized the existence of other independent communities and maintained relations with them on the basis of formal treaties of alliance. While she dominated her Latin and Italian allies and subsequently absorbed them, she nevertheless regarded herself bound by legal obligations toward them. The institution of the public host, the provisions for naturalization, the extradition of fugitives, the inviolability of ambassadors, the faith of treaties and the formalities attending their negotiation, as well as fixed rules of warfare attest to the possession by Rome of a sense of legal rights and duties existing in a community of distinct juridical units.1 After the Second Punic War, however, Rome entered upon a phase of her history during which she proclaimed herself mistress of the world and denied even a theoretical independence and equality on the part of other states. Law now had its origin not in customs or in treaties but in the will of the dominant state. Hence it is impossible to speak from this time on of a true international law. Such law as there was might, however, be called the constitutional law of a world empire; for the system of colonial government applied by Rome to the provinces was by no means an arbitrary one; while the states not formally within the empire were, though subject to Rome, sufficiently autonomous to enjoy their own laws and civil government. Cicero even fancied he saw a civitas gentium, a community of states, existing as late as his day. gentium Rome But if Rome, by dominating the world, prevented the adoption The Jus of a true international law, she created through her jurists a sys- of later tem of law which was of the highest value in reëstablishing international law at a later period. The civil law of Rome applied to citizens only. Foreigners, who came in large numbers to Rome when the Italian tribes were being absorbed, were subject to the jurisdiction of the prætor peregrinus, and disputes between them, as well as disputes between foreigners and Romans, were settled by the application of the common elements of justice to be found in the customs and usages of the various tribes.2 A law common to all nations, a jus gentium, was thus developed and was in its origin 1Phillipson, op. cit., I, 107-108. The author contests the views of those who hold that Rome recognized no such rights and obligations. 'Maine, Ancient Law, Pollock's edition, p. 52. CHAP. Jus fetiale and jus bellicum a law to be applied to the citizens of different states, and therefore a system of international private rather than public law. In time the principles of the jus gentium came to be associated and even identified with the jus naturale, which, like the universal law of the Greeks, was a law based upon the rational nature of man. It was argued that the principles of justice found to be acknowledged by all states must presumably have their foundation in nature itself, although the latter remained the absolute standard by which such principles were to be judged. The association of jus gentium with jus naturale led in turn to the enlargement of the jus gentium by the addition of rules governing the relationships between states themselves.1 Disputes between states within the empire were referred to Rome, and in so far as they involved questions of personal or property rights analogous to the rights of individuals it was but natural to apply to their solution the rules of the jus gentium. The law of alluvium, the right to occupy land that was res nullius, absolute title to property, contract rights, and other parts of the private law were thus adjusted to form a code of international law. This method of arguing from the rights of individuals to the rights of states and of regarding natural reason, as expressed in custom, as a source of law, was regularly resorted to during the Middle Ages in the struggle to bring law and order out of the prevailing anarchy, and it provided a powerful instrument in the hands of Grotius and his followers in their efforts to reconstruct international society of the seventeenth century upon a more stable basis. Subordinate to, but apparently distinct from, the Roman jus gentium was the jus fetiale and the jus bellicum. The jus fetiale was a special set of principles and rules regulating the formalities attendant upon a declaration of war as well as those involved in the conclusion of treaties of peace and in the process of extradition. They were of great antiquity and had their origin rather in the religious traditions than in the legal conscience of the Romans. A violation of them was thus primarily an offense against religion. The College of Fetials, to whose keeping they were intrusted, performed both diplomatic and judicial functions. As ambassadors or heralds they formulated the demands of their state, asked for due redress, negotiated the extradition of fugitive criminals, and took part in the conclusion of alliances. As judges they determined whether the proposed war was just or unjust according to The precise process of development is not clear. See Phillipson, I, 92, 93. I the four grounds of war prescribed by the jus fetiale. Comparing CHAP. the narrow restrictions of the four grounds of war, embracing only attacks upon Roman territory and the violation of treaties and of the immunities of ambassadors, with the numerous wars waged by the Romans, many writers have been led to regard the fetial procedure as a mere cover for arbitrary conduct. The jus belli or jus bellicum, while sometimes included under the jus fetiale, was distinct from it in that it related to the rights and obligations involved in the actual conduct of war. Its rules were derived partly from religion and partly from the universal law of nature. Acts of treachery were condemned,2 poisoned weapons were forbidden, and assassination was reprobated.3 But on the whole it must be said that the war practices of the Romans, while, like those of the Greeks, less ruthless than the practices of their "barbarian" neighbors, were frequently in open contradiction to the principles recognized by statesmen; and such restraint as was observed must rather be put down to the nobility of character of the particular commander than to the traditions imposed by the state upon its military officials. The rule of good faith alone appears to have been consistently observed. The period of the decline and fall of the Roman Empire was marked by a general loosening of the bonds which held the former dependencies of Rome together. The constitutional law imposed by Rome lost its vitality when the central source of its authority became corrupted from within. Invading hordes which had never been part of the recognized constitutional system broke through the defenses of the colonial outposts and occupied the lawgiving seat of the empire. There was now no bond of a common dependence upon Rome and no sense of a community of interest among the colonies themselves. Each defended itself against the invader as best it could, and within each colony internal strife destroyed what sense there was of a corporate unity. Justinian attempted to revive the authority of law by his codification of the legal traditions of Rome, but there was no basis at hand upon which a society of nations could be constructed. 'Phillipson, II, Chap. XXVI. There 'There is the classic instance of the schoolmaster of Falerii. Livy, V, 27, 28. The language of the Roman commander on that occasion is memorable. are," he said, "laws of war as well as of peace; and we have learned to enforce them not less justly than bravely." Cited by Walker, History of the Law of Nations, I, 48-49. 'As in the case of Pyrrhus and of Arminius. Tacitus, II, 88. |