ciple of belief and action, that it was not only a right, but a duty, to reduce to obedience, for the sake of conversion, every people who professed a religious faith different from their own. To make war upon infidels was, for many ages, a conspicuous part of Euro pean public law; but this gross perversion of the doctrines and spirit of Christianity had at least one propitious effect upon the Christian powers, inasmuch as it led to the cultivation of peace and union between them, and to a more free and civilized intercourse. The notion that it was lawful to invade and subdue Mahometan and Pagan countries, continued very long to sway the

minds of men; and it was not till after the age of Grotius *11 and Bacon, that this error was entirely eradicated. Lord

Coke (a) held, that an alliance for mutual defence was unlawful between Christians and Turks; and Grotius was very cautious as to the admission of the lawfulness of alliances with infidels, and he had no doubt that all Christian nations were bound to assist one another against the attacks of infidels. (6) Even Lord Bacon (c) thought it a matter of so much doubt, as to propound it seriously as a question, whether a war with infidels was not first in order of dignity, and to be preferred to all other just temporal quarrels; and whether a war with infidels might not be undertaken merely for the propagation of the Christian faith, without other cause of hostility.

Of Chivalry.

The influence of chivalry was beneficial upon the laws of war. It introduced declarations of war by heralds; and to attack an enemy by surprise was deemed cowardly and dishonorable. It dictated humane treatment to the vanquished, cour

(a) 4 Inst. 155.

(b) Grotius, b. 2, c. 15, sec. 11, 12. The university of Salamanca, as early as 1550, decided in favor of Las Casas upon the thesis maintained by Sepulveda, and refuted by Las Casas, that it was a right and duty to make war upon Pagans and Heretics, in order to propagate the true faith. But the minds of men in Catholic countries remained long unsettled on this point, and the doctrines of Sepulveda are said to have been sanctioned within the period of the last fifty years, by the Royal Academy of History at Madrid. (Dict. Hist. art. Sepulveda. Verplanck's Discourse before the New York Historical Society, 1818.) Even as late as 1718, the Emperor Charles VI. commissioned two ships of war to cruise “through any seas, far and wide, to follow and pursue any such as are the enemies of our august house, but chiefly the enemies of the Christian name." The commission was dated at Vienna, July 16, 1718. But afterwards the commission was restricted by an additional instruction, dated at Brussels, 28th September, 1718, to war “against the Spaniards, but not against any other power, though even enemies to the Christian name." See the commission at large in Callender's Voyages, vol. iii. 447, 450.

(c) Bacon's Works, vol. iii. 472, 492.

tesy to enemies, and the virtues of fidelity, honor, and magnanimity in every species of warfare.

The introduction and study of the civil law must also Of the Civil have contributed largely to more correct and liberal views Law.

of the rights and duties of nations. It was impossible that such a refined and wise system of municipal and ethical jurisprudence as the Roman law, could have been taught in universities and schools, and illustrated by a succession of eminent civilians, who were worthy of being associated with the Roman sages, without at the same time producing a great effect upon the public mind. This grand monument of the embodied wisdom of the ancients, when once known and examined, must have reflected a broad stream of light upon the feudal institutions and the public counsels of the European nations. We accordingly find that the rules of the civil law were applied to the government of national rights, and

*

they have contributed very materially to the erection of the *12 modern international law of Europe. From the 13th to the 16th century, all controversies between nations were adjudged by the rules of the civil law.

Treaties, conventions, and commercial associations had

Of Treaties.

a still more direct and visible influence in the formation of the great modern code of public law. They gave a new character to the law of nations, and rendered it more and more of a positive or instituted code. Commercial ordinances and conventions contributed greatly to improve and refine public law and the intercourse of nations, by protecting the persons and property of merchants in cases of shipwreck, and against piracy, and against seizure and arrest, upon the breaking out of war. Auxiliary treaties were tolerated, by which one nation was allowed to be an enemy to a certain extent only. Thus, if in time of peace, a defensive treaty had been made between one of the parties to a subsequent war and a third power, by which a certain number of troops were to be furnished in case of war, a compliance with this engagement implicated the auxiliary as a party to the war, only so far as her contingent was concerned. The nations of Europe had advanced to this extent in diplomatic science as early as the beginning of the 13th century, and such a refinement was totally unknown to the ancients. (a) Treaties of subsidy showed also the

(a) Under Henry III., in 1240, the Flemings obtained leave to carry on their trade as usual, when England and France were at war, so long as they took no other part

progress of the law of nations. The troops of one nation, to a definite extent, could be hired for the service of one of the belligerents, without affording ground for hostility with the community which supplied the specific aid. The rights of commerce began to be regarded as under the protection of the law of nations, and Queen Elizabeth complained of the Spaniards, that they had prohibited commerce in the Indian seas, contrary to that law.

Law con

wrecks.

The efforts that were made, upon the revival of commerce, to suppress piracy, and protect shipwrecked property, show cerning ship- a returning sense of the value and of the obligations of national justice. The case of shipwrecks may be cited, and dwelt upon for a moment, as a particular and strong in*13 stance * of the feeble beginnings, the slow and interrupted progress, and final and triumphant success of the principles of public right. Valin (a) imputes the barbarous custom of plundering shipwrecked property, not merely to the ordinary cupidity for gain, but to a more particular and peculiar cause. The earliest navigators were almost all pirates, and the inhabitants of the coasts were constantly armed against their depredations, and whenever they had the misfortune to be shipwrecked, they were pursued with a vindictive spirit, and deemed just objects of punishment. The practice of plundering shipwrecks has been traced to the Rhodians, and from them it passed to the Romans; and the efforts to restrain it were very feeble and gradual, and mixed with much positive injustice. The goods cast ashore first belonged to the fortunate occupant, and then they were considered as belonging to the state. This change from private to public appropriation of the property, rendered a returning sense of right and duty more natural and easy. The Emperors Hadrian and Antoninus had the honor of having first renounced the claim to shipwrecked property in favor of the rightful owner. (b) But the inhuman customs on this subject were too deeply rooted to be eradicated by the wisdom and vigilance of the Roman lawgivers. The laws in favor of the unfortunate were disregarded by succeeding emperors, and when the empire itself was overturned by the northern barbarians, the

in the war than what their earl, under his feudal relation to the crown of France, was called upon by reason of his homage to perform. Southey's Early Naval History of England, vol. i. 180.

(a) Com. Sur. Ord. tom. ii. 579-587.

(b) Vinnius in Inst. lib. 2, tit. 1, art. 47, note 5. Valin, ub. sup.

*

laws of humanity were swept away in the tempest; and the continual depredations of the Saxons and Normans induced the inhabitants of the western coasts of Europe to treat all navigators, who were thrown by the perils of the sea upon their shores, as pirates, and to punish them as such, without inquiry or discrimination. The Emperor Andronicus Comnenus, who reigned at Constantinople in 1183, made great efforts to repress this inhuman practice. His edict was worthy of the highest praise, but *14 it ceased to be put in execution after his death. Pillage had become an inveterate moral pestilence. It required something more effectual than papal bulls, and the excommunication of the church, to stop the evil. The revival of commerce, and with it a sense of the value of order, commercial ordinances, particular conventions and treaties between sovereigns, contributed gradually to suppress this criminal practice, by rendering the regulations on that subject a branch of the public law of nations. Valin says, it was reserved for the ordinances of Louis XIV. to put the finishing stroke to this species of piracy, by declaring that shipwrecked persons and property were placed under the special protection and safeguard of the crown; and the punishment of death, without hope of pardon, was pronounced against the guilty. (a)1

Treatment

The progress of moderation and humanity in the treatment of prisoners, is to be imputed to the influence of of prisoners.

(a) The sense of justice, in respect to shipwrecks and piracy, has made its way into the kingdom of Siam, in Eastern India; and by a treaty with the United States, in April, 1836, persons and property in American vessels, suffering shipwreck in the Siamese dominions, or taken by pirates and brought therein, are to be carefully protected, preserved, and restored. By the treaty of commerce and navigation between the United States and Hanover, May 20, 1840, art. 8, assistance is to be given to the shipwrecked and stranded vessels, and no more than the ordinary salvage or duties, on unlading the cargo for repairs in such cases, shall be demanded. The treaty likewise specially declares, "that the ancient and barbarous right to wrecks of the sea shall be entirely abolished, with respect to the property of the subjects or citizens of the contracting parties." Such a stipulation between two civilized and Christian nations, near the middle of the 19th century, sounds oddly, and might as well have been spared.

1 Principles of enlightened justice and generous policy were applied to the interpretation of the Revenue Laws of the United States, in a late case of shipwreck. It was held that goods, taken from a British vessel wrecked on our coast, and landed and sold without a permit therefor, were not forfeited to the United States. The Gertrude, 3 Story C. C. 68.

2 Similar stipulations are introduced into the treaties with Borneo and Lew Chew, 10 U. S. Stat. 909, 1101, and Japan, 11 U. S. Stat. 597.

Christianity, and of conventional law, establishing a general exchange of prisoners, rank for rank, and giving protection to cartel ships for that purpose. It is a practice of no very ancient introduction among the states of Europe, and it was not of very familiar use in the age of Grotius, and it succeeded the elder practice of ransom. From the extracts which Dr. Robinson (6) gives from Bellus, who was a judge or assessor in the armies of Charles V. and Philip II., he concludes that no practice so general and so favorable to the conduct of prisoners, as a public exchange in time of war, was known in the 16th century. (c) The private interest of the captor in his prisoner, and his right to claim ransom money, continued through that period; and the practice of ransom, founded on the right of property claimed by the captor, succeeded to the Greek and Roman practice of killing prisoners, or selling them as slaves.

Admission of The custom of admitting resident ministers at each Ambassadors. sovereign's court, was another important improvement in

the security and facility of national intercourse; (d) and this *15 led to the settlement of a great question, which was very

frequently discussed in the 15th and 16th centuries, concerning the inviolability of ambassadors. It became at last a definitive principle of public law, that ambassadors were exempted from all local jurisdiction, civil and criminal; though Lord Coke considered the law in his day to be, that if an ambassador committed any crime which was not merely malum prohibitum, he lost his privilege and dignity as an ambassador, and might be punished

(b) 3 Rob. Adm. Appendix A.

(c) When Sir Richard Hawkins, in his armed ship Dainty, was captured in the South Sea, after a desperate engagement, in 1594, the Spanish commander, Don Beltran, an officer of great gallantry, courtesy, and humanity, claimed, nevertheless, a property in his prisoner, and the right to a ransom. Callender's Voyages, vol. ii. 126, 134. The custom of enslaving prisoners of war was continued in Europe down to the 13th century, and was then extinguished, though asserted even by Grotius, De Jure Belli, lib. 3, c. 7, to be conformable to the law of nations. It was discontinued under the influence of Christianity, though the right to the ransom of prisoners as the subjects of property, was continued to a much later period.

(d) Ferdinand the Catholic is said to have introduced the practice of resident ministers. Prescott's Hist. of Ferdinand and Isabella, vol. i. 352. The right of sending public ministers to the confederate states, and to foreign states, is preserved to all the princes and states composing the present Germanic Confederation, (1844,) and so it is in that of the Swiss Cantons; but the privilege is wisely taken away from the several states by the Constitution of the United States of America.