Abbildungen der Seite

the Roman law, and by whom great authority was attached to the views of text writers. The other, composed of English and American writers, whose works, strongly influenced by the common law of England, attach the greatest weight to the decisions of competent courts and to the precedents established by the usages of nations and recognized by them as binding in their intercourse with each other. The present tendency is to obliterate this distinction. The history of both the Roman and common law has been exhaustively studied, and is now generally known, and the historical method of treatment is found to be as successful in its application to international as to municipal law.

"A decided unanimity of opinion among authors as to the reason or justice of a particular usage is strong evidence of its general acceptance as a rule of international law. 'Writers on international law, however, cannot make the law. To be binding the law must have received the assent of the nations who are to be bound by it.'" 18 19

18 Davis

on International Law, pages 26-7.

19 For a convenient list of the pro

minent writers on this subject, see Wilson & Tucker on International Law, Sec. 13.




The close connection between history and law has already been referred to. Important, however, as a knowledge of history is throughout the whole course of his study, it is probably more essential to the student in the study of international law than in the study of any other branch of this science. With no superior authority to adopt principles of international law, such principles can only be the result of evolution, and the history of such evolution is the history of national relations.


The history of international law falls naturally into four sharply defined periods. The ancient, the medieval, the modern, and the current. The first period begins with the dawn of history and terminates with the fall of the Western Roman Empire in 476. The second extends from the fall of the Western Roman Empire to the invasion of Italy by Charles VIII in 1494. The third period extends through the Crimean while the final period begins with the Declaration of Paris and continues down to the present day. Each of these periods has its own marked characteristics, which will be considered in the four succeeding sections.




It is necessary to give to this section the title of international relations between ancient nations, for international law during this period was non-existent. The natural state between foreign nations was universally considered to be war. Peace could only exist as the result of express treaties. Nations were enemies or allies; there was, in theory, no middle ground.

The Greeks came the nearest among ancient nations to acquiring a conception of a system of international law; but their work along this line was limited in the scope of its applications to the inter-relations of the various Greek states. To the ancient Greek the inhabitants of the world were divided into Greeks and Barbarians, and however carefully the relations among the former might be regulated, nothing but mutual hostility and contempt was to be expected between the former and the latter.

The foreign policy of the Romans was through its whole period a most aggressive one. At the time of the highest development of the Roman Empire, Rome was surrounded on the north, south, and west by uncivilized or semi-civilized races, while their relation with the New Persian Empire on the east was one of almost unbroken hostility.

The development of any system of international law during a period of this character was an impossibility.


The overthrow of the Western Roman Empire, in the fifth century, was the beginning of a new era in the

world's history. For the time it seemed like a retrogression. The civilization of the ancient world had been overthrown, and the new and higher civilization was far in the future. The central figure in the history of Western Europe during this period is the colossal institution of feudalism. The influence of feudalism was both towards, and away from, centralization. The sub-infeudation of the land was constantly tending towards the creation of new and minute powers, but the pryamiding feature of the system led to the growth of the theory that this should be continued one step higher; and that under the true organization of society there would be found a common world-wide superior sovereign, from whom the kings of the various countries would hold, as the vassals-in-chief in each country held from the king. The memory of the supremacy of the empire of Rome strengthened this view, as did also the claims of the Pope.

For a long period the center of the stage in European history is taken up with the contest between the Pope and the Emperor of the so-called Holy Roman Empire, for this position of supremacy. The long contest of the Guelfs and Ghibbelines, however, instead of establishing the supremacy of the leader of either faction, shattered the strength of both and resulted in the splitting up of a large portion of Western Europe into a vast number of minute states.

Medieval history, as generally written, is little more than an account of an endless series of military contests between the different European powers. One great advance, however, is to be noticed over the state of international relations in earlier times. Whatever the practice may be, it had at least come to be recognized in theory, and sometimes followed, that nations

owed certain obligations one to another, and that there should be some set of principles governing matters of international intercourse. Two great influences were working towards this end during this period-religion and commerce.


One of the strongest of the influences exerted by the Christian religion was the bond which it created among people of different races. The religions of the ancient world, with few exceptions, had been national in their character, and had strictly excluded outsiders from any part or benefit therein. Christianity, on the contrary, appealed to whoever would embrace it, of whatever race or nationality, and the line which it drew was not that between those of one race and those of another, but between those who accepted the belief and those who rejected it. The great influence of the medieval church, therefore, was thrown in support of the movement for a system of laws governing the relations between different nations. Such laws, however, were only to apply to races within the pale of Christianity; with all others no agreements of such character could lawfully be held. It is, in fact, only within the past century that the principles of international law have been ever held to apply to any except Christian countries. The underlying The underlying principle here observed is not unlike, in its fundamental basis, the division by the Greeks, of mankind into Greeks and barbarians. In the later classification, however, the limits have been extended, and the dividing line is religious instead of racial.

« ZurückWeiter »