CHAPTER III HISTORICAL DEVELOPMENT 10. EARLY PERIOD. (a) Greece. (b) Rome. 11. MIDDLE PERIOD. (a) Roman Empire. (b) The Church. (c) Feudalism. (d) Crusades. (e) Chivalry. (f) Commerce and Sea Laws. (g) Consulates. (h) Discovery of America. 12. MODERN PERIOD FROM 1648. (a) 1648-1713. (b) 1713-1815. (c) 1815 13. WRITERS. § 10. Early Period The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.1 The early period dates from the time of the development of early European civilization, and extends to the 1 Bluntschli, "Völkerrecht," Introduction; Lawrence, § 20. beginning of the Christian Era. During this period the germs of the present system appear.1 (a) Greece. The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition of general obligations.2 The maritime law of Rhodes is an instance of the general acceptance of common principles. The main body of this law has not survived, yet the fragment appearing in the Digest, De Lege Rhodia de Jactu,3 is, after more than two thousand years, the basis of the present doctrine of jettison. It is reasonable to suppose that though the words of other portions of the Rhodian law are lost, the principles may have entered into formation of later compilations. The recognition by Greece of the existence of other independent states, and the relations into which the states entered, developed crude forms of international comity, as in the sending and receiving of ambassadors and the formation of alliances.5 "But 1 Walker, "Science of International Law," Ch. III., p. 58. when, beside the vague and fleeting World Law, the law of all humanity, was recognized a law special to certain peoples, when the distinction was drawn between the progressive and the stationary, between civilization and barbarity, when the Greek noted тà vóμμa τῶν ̔Ελλήνων, and the Roman felt the ties of a particular Jus Fetiale and a particular Jus Belli, International Law cast off its swaddling bands, and began its walk on earth." 8 Justinian Digest, 14. 2, "If goods are thrown overboard to lighten the ship, as this is done for the sake of all, the loss shall be made good by a contribution of all." Bluntschli, "Völkerrecht," Introduction; Thucydides, "Peloponnesian War," II., 12, 22, 29. 5 The Amphyctionic League recognized some principles of interstate right and comity, as well as preserved Grecian institutions and (b) Rome. Rome made many contributions to the principles of international law in the way of the extension of her own laws to wider spheres, and in the attempt to adapt Roman laws to conditions in remote territories. In this early period Rome may be said to have contributed to the field of what is now considered private international law rather than to that of public international law. This is evident in the laws in regard to marriage, contract, property, etc. The dominance of Rome impressed her laws on others, and extended the influence of those principles which, from general practice, or conformity to accepted standards, gained the name Jus Gentium.1 § 11. Middle Period The varied struggles of the middle period-from the beginning of the Christian Era to the middle of the seventeenth century - had a decided influence upon the body and form of international law. (a) Roman Empire. The growth of the Roman Empire, as the single world, power and sole source of religious traditions. This is shown in the oath of the members, "We will not destroy any Amphyctionic town nor cut it off from running water, in war or peace; if any one shall do this, we will march against him and destroy his city. If any one shall plunder the property of the god, or shall be cognizant thereof, or shall take treacherous counsel against the things in his temple at Delphi, we will punish him with foot and hand and voice, and by every means in our power." They also agreed to make and observe humane rules of warfare. See also Bluntschli," Völkerrecht," Introduction. 17; 1 Maine, "Ancient Law," Ch. III. The idea as to what jus gentium was, of course varied with times. Under the Empire it lost its old meaning. See Cicero, “De Officiis," III., 17; Livy, VI., IX., 11; I., 14; V., 36; Sallust, Bell. Jug.," XXII.; Tacitus, "Ann.," 1, 42; "Quintus Curtius," IV., 11, 17. political authority, left small need of international standards. The appeal in case of disagreement was not to such standards, but to Cæsar. The idea of one common supremacy was deep-rooted. Political assimilation followed the expansion of political privileges. (b) The Church. A similar unifying influence was found in the growth of the Christian Church which knew no distinction - bond or free, Jew or Gentile. Christianity, called to be the state religion early in the fourth century, modeled its organization on that of the Roman Empire; and from the sixth century, with the decay of the Empire, the Church became the great power. The belief in the eternity and universality of Roman dominion was strengthened by the Church, although materially changed in its nature.1 Whatever the inconsistencies in Church and State during the first ten centuries of our era, there had grown up the idea, of great importance for international law, that there could be a ground upon which all might meet, a belief which all might accept, both in regard to political and religious organization. For five hundred years before the days of Boniface VIII. (1294-1303), the holder of the papal office had from time to time acted as an international judge. The canon law, codified by Gregory IX. (1227– 1241), was planned to rival the Corpus Juris Civilis. The Popes, with varying degrees of success, tried to render such international justice as the discordant elements introduced by the growth of cities and rise of nationalities demanded.2 From the Council of Con 4 Bryce, "Holy Roman Empire,” Ch. VII. 2 Bryce, "Holy Roman Empire," Chs. VII. and XV. The "Truce stance (1414-1418), which was a recognition of the fact of nationality, and at which the emperor for the last time appeared as the great international head, the decline of both the Church and the Empire as direct international factors was rapid. (c) Feudalism. By the eleventh century feudalism had enmeshed both the temporal and spiritual authorities. This system, closely related to the possession of land and gradation of classes, discouraged the development of the ideas of equality of state powers necessary for the development of international law, though it did emphasize the doctrine of sovereignty as based on land in distinction from the personal sovereignty of earlier days. (d) The Crusades (1096-1270), uniting Christendom against the Saracen for foreign intervention, awakening Europe to a new civilization, expanding the study and practice of the Roman law which feudal courts had checked, weakening many feudal overlords, enfranchising towns, freeing the third estate, spreading the use of the Latin language, enlarging and diversifying commerce, teaching the possible unity of national interests, led to the apprehension of a broader basis in comity which made the growth of interstate relations more rapid.1 (e) Chivalry. The code of chivalry and the respect for honor which it enjoined introduced a basis of equable dealing which on account of the of God" introduced by the clergy (1034) left only about eighty days in a year for fighting and settling feuds. 6; 1 On effects of Crusades, see Milman, "Latin Christianity," VII., Hallam, "Middle Ages," Ch. III., Pt. I.; Bryce, "Holy Roman Fmpire," Chs. XI., XIII. |