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The History of International Relations During Antiquity and the Middle Ages

Published online by Cambridge University Press:  04 May 2017

Amos S. Hershey
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Extract

The history of international law is essentially a history of the law governing the members of the international community of states in their relations with one another. Inasmuch as the observance of well-established customs of the law of nations implies the existence of an international community of states based upon a general recognition of the fundamental principles of territorial sovereignty and legal equality of independent states, such a law (in the strict and full sense of this term) could not possibly have been developed prior to the rise of the modern European state system, at the close of the Middle Ages or during the fifteenth and sixteenth centuries of our era. Nevertheless, we are by no means without evidence of the observance in intercommunity intercourse of certain rules and customs, even during antiquity and the Middle Ages, mainly with a religious sanction. This was especially the case in Greece, where there were developed rules and customs of intermunicipal law which, in many respects, bear a truly remarkable resemblance to our modern system of international jurisprudence.

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Research Article
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American Journal of International Law , Volume 5 , Issue 4 , October 1911 , pp. 901 - 933
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Copyright © American Society of International Law 1911

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References

1 See especially Kropotkin, Mutual Aid as a Factor in Evolution, ch. 3 on “Savages”; and an interesting study of the relations between Australian groups by Wheeler in 40 R. D. I. (1908), 5-30. See also Letourneau, La guerre dans les diverses race humains (1895), chs. 2-8.

Maine (Int. Law, p. 11) justly observes: “Man has never been so ferocious or so stupid as to submit to such an evil as war without some effort to prevent it.” Montesquieu seems to have had some perception of this truth when he said: “All countries have a law of nations, not excepting the Iroquis themselves, though they devour their prisoners; for they send and receive ambassadors, and understand the rights of war and peace. The mischief is that their law of nations is not founded on true principles.” Esprit des Lois, Bk. I, ch. 3.

2 This is at least true of the Aryan and some of the Semitic peoples. It is not implied in the text that the patriarchal system was the primitive form of social and political organization. It was, relatively speaking, a late and highly developed form of political life. Nor is it implied that the family preceded the clan historically.

3 Amongst the Iroquois, e. g., “the council of the tribe had power to declare war and make peace, to send and receive embassies, and to make alliances. Intercourse between independent tribes was conducted by delegations of wisemen and chiefs.” Morgan, Ancient Society (1877), 118.

4 Fictitious kinship was created by the ceremony of adoption by means of which the newcomer renounced the worship of his former household gods and was initiated into the worship of those by whom he had been adopted. The ancient custom of adoption might be compared with the modern practice of naturalization. See especially Coulanges, The Ancient City; and Fowler, The City-State of the Greeks and Romans, passim.

5 This obligation was also a religious one, being sanctioned by an oath.

6 This is illustrated by the communism of primitive groups which still survives in the mirs or village communities of Russia.

7 A proverbial saying which Plutarch puts into the mouth of Brennus, the Gallic chieftain. See his Life of Camillus.

8 On “International Law and Diplomacy in Ancient China,” see Martin, The Lore of Cathay, chs. 22 and 23 ; and Mueller in 3 Zeitschrift für Volkerrecht und Bundesrecht (1908), 192-205.

9 E. g., “He (the king) should also appoint an ambassador learned in all the treatises, who understands gestures, expression, and acts (which are) pure, clever, well-descended. * * * For verily the ambassador alone unites, (and) divides also the united; the ambassador conducts that business by which they are divided or not. In affairs he (the ambassador) should know by (his) obscure signs and acts the emotions, intentions, and efforts of him (the other king), and (should learn) what he intends to do from (his) dependents. * * *

“A king should know the next (king to him to be) an enemy, as also the adherents of (that) enemy; the (one) next to the enemy (to be) a friend; the one beyond both (to be) neutral. All those he should gain by concilation and the like means, separate or together; also by valor and policy. * * * Whenever (a king) infers a sure increase (of power) of himself in the future, and at the present time (suffers) little annoyance, then let him have recourse to an alliance.

“He (the king) should endeavor to overcome (his) enemy by alliances, bribery, and treachery — altogether or separate — never by battle. * * * But in case the three expedients already mentioned do not suit, let (him), prepared, fight, so that he may conquer his enemies. * * * “

See “The Ordinanves of Manu” translated by Burnell and Hopkins, Lect. VII, Nos. 63-68, 155, 158-164, 169, 177, 180, 198, 200-210, etc. The date of this remarkable compilation is uncertain. It is generally set down as about 500 B.C.

10 Ibid., VII, 195 and 196.

11 Ibid., VII, 90-93. The Greek writers bear witness to the humane conduct of the East Indians in warfare. According to Megasthenes, they never destroyed the fields of the husbandman nor cut down his trees. Arrian adds that the peasants fearlessly followed the plough and gathered in their fruits and harvest in the midst of battle and warfare. For the passages of the Greek writers bearing on this subject, see Arrian, Ind., ch. II; Diodor., II, 36, 40; and Strabo, XV, 484, ed. Cassaub.

12 For summaries of the contents of the Tell-el-Amarna Tablets, see 2 Petrie, History of Egypt, 187-241; and Conder, The Tell-Amarna Tablets (1893). For English translations of many of the tablets, see Records of the Past (new series) passim, and Conder.

13 On the organization of the Egyptian Empire, see Maspero, Struggle of the Nations, pp. 271-280; and Paton, Early History of Palestine and Syria, ch. 6, 82 ff. On the civilization of Syria, see especially Sayce in 88 Contemp. Rev. (1905), 264-77.

14 With the Mitani, a treaty of friendship cemented by marriage had been made at least as early as the reign of Thutmose IV (about 1420-11 B. C.). The reigning Pharaoh also obtained several daughters of the king of Babylonia in marriage, but we learn that a similar request on the part of the latter was peremptorily refused. Whereupon the king of Babylonia suggested that any beautiful Egyptian maiden would do, for who would be able to say, “She is not a king’s daughter.”

15 On this treaty, see especially Breasted, History of Egypt, 437-38; Maspero, The Struggle, etc., 401 ff.; 5 Budge, History of Egypt, 48 ff; and 3 Petrie, History of Egypt, 64 ff. For English translations, see 4 Records of the Past (first series), 25-32; 3 Breasted, Ancient Records of Egypt, ff 370-391; and 2 Brugsch, Egpyt Under the Pharaohs, 171-76.

16 On the mutilation of prisoners, see Maspero, The Struggle of the Nations, 228 and note (Cf. ibid., Life in Ancient Egypt and Assyria, 189). See especially the Great Karnak Inscription of Merneptah, translated by Breasted in 3 Ancient Records of Egypt, § 588.

17 “Therefore, they did set over them taskmasters to afflict them with burdens. * * * And they made their lives bitter with hard bondage, in mortar and in brick, and in all manner of service in the field.” Exod. I, 11, 14. These captives seem to have been well fed, for the Israelites at times longed for the “flesh pots” of Egypt.

18 Exod., XXXIV, 10-16, and Deut., VII, 1-3, 22-26.

19 It is recorded that on one occasion Saul was commanded by the Lord, through Samuel, to “go and smite Amalek, and utterly destroy all that they have and spare them not; but slay both man and woman, infant and suckling, ox, and sheep, camel and ass.” Saul “utterly destroyed all the people with the edge of the sword,” but “spared Agag and the best of the cattle.” Whereupon Samuel was angry and “the Lord repented that he had made Saul king over Israel.” 1 Samuel, XV. For horrible acts of torture on the part of David, see II Samuel, VIII, 2, and XII, 31. The latter passage states that he put the people of Eabbah “ under saws, and under harrows of iron, and under axes of iron, and made them pass through the brickkiln; and thus did he unto all the cities of the children of Ammon.”

On Hebrew Warfare, see especially Letourneau, La guerre, etc., ch. 13.

20 Deut., XX, 10-20. It was also the custom of the Egyptians to issue a summons to surrender before proceeding to extremities. In case of a favorable response to such a summons, the inhabitants were treated as friends, and a moderate tribute was imposed. 1 Brugsch p. 402. From which we may infer that at least some of the provisions of the much-lauded Mosaic code were borrowed from the Egyptians.

21 Isaiah, II, 4, and Micah, IV, 3. Cf. Isaiah, LXV, 25. “The wolf and the lamb shall feed together, and the lion shall eat straw like the bullock; and dust shall be the serpent’s meat. They shall not hurt nor destroy in all my holy mountain, saith the Lord.”

22 For details, see Maspero, Struggle, etc., 634 ff. See especially the Inscription of Asshurnazirpal in 2 Records of the Past (new series), 134-77.

This cruel and vainglorious monarch makes the following boast: “The nobles, as many as had revolted, I flayed; with their skins I covered the pyramid. Some (of those) I immured in the midst of the pyramid; others I impaled above the pyramid on stakes; others, round about the pyramid, I planted on stakes; many at the exit from my own country I flayed; with their skins I clad the fortress-walls,” etc. Col. I, 11, 90-92 of the Inscriptions of Asshurnazirpal. Cf. the translation of another inscription in Goodspeed, History of the Babylonians and Assyrians, p. 197.

It should be noted that these are eases of punishment for rebellion. “ Countries for the first time summoned to submit to Assyria, if they resisted, were subject to the ordinary fate of the conquered, but not otherwise treated with special cruelty.” Goodspeed, op. cit.

23 For example, the Israelites from Samaria to Mesopotamia and Media, and the Jews from Judea to Babylon. This policy of transportation, which appears to have been inaugurated by Tiglathpileser I (about 1100 B. C.), was carried out on a colossal scale by conquerors like Tiglathpileser III (745-27) and Nebuchadnezzar II (604-562). There are instances of its application in Roman history. It was also practiced by the Byzantine emperors and even by Charle magne.

24 Judging from both Greek and Hebrew sources, Cyrus, the founder of the Persian Empire and one of the greatest men of antiquity, appears to have been an exception to this rule.

25 Cf., e. g., the treatment of the corpse of Amasis by Cambyses (Herod. III, 16) with that of Leonidas by Xerxes (Herod. VII, 238).

26 See e. g., the advice of Croesusi to Cyrus — advice which is said to have been followed — to render the Lydians effeminate. Herod. I, 155. Greek statesmen frequently yielded to the temptations of Persian gold.

27 Laurent, who reports this fact together with many others (see 1 Etudes sur l’humanité, p. 477), adds: “It is a beautiful symbol of the mission which belongs to the department of foreign affairs. The diplomacy of the future, ceasing to be inspired by hate, will have no more important function than that of cultivating relations of friendship between nations.”

The Persians were not wholly ignorant of the value of arbitration as a means of preventing war. Herodotus (VI, 42) relates that Artaphernes, the satrap of Sardis, compelled the cities of Ionia “to make agreements among themselves, so that they might give satisfaction for wrongs and not plunder one another’s land.”

28 There were of course some notable exceptions to this rule, as, e. g., Egypt, Assyria, and the Hebrew kingdom of David and his successors.

29 1 Laurent, p. 500.

30 For examples of mutilation and torture, see Judges, I, 7 ; 1 Samuel, XI, 2; 2 Kings, VIII, 12.

31 Laurent, I, p. 544.

32 Montesquieu (Esprit des lots, Bk. XXI, ch. 11) observes that “Carthage had a peculiar law of nations. She caused all strangers who traded in Sardinia and towards the pillars of Hercules to be drowned.” Grote (Pt. II, ch. 18) says they drowned “ any commercial rivals when they could do so with safety.”

33 Polybius (I, 72 — trans, by Schukburgh) thus describes their treatment of the Libyans: “They had exacted half of all agricultural produce ; had doubled the tribute of the towns; and in levying these contributions, had refused to show any indulgence whatever to those who were in embarrassed circumstances.”

34 Of these the most famous and influential was the Delphic Amphictiony — a body of representatives of twelve tribes — instituted for the purpose of safeguarding the interests of Apollo at Delphi. But even the Delphic Amphictionic League was essentially a religious body (although sometimes perverted to political uses), and did not extend over the whole Greek world. It did, however, recognize some principles of interstate comity and sought to humanize warfare. This is shown by the oath of its members: “We will not destroy any Amphictionic 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.” The Delphic League was in no sense a board of arbitration or federal council, as represented by some historians. On the Delphic Ampictyonic Council, see especially Darby, Int. Tribunals (1904), 1-10; and 2 Phillipson, Int. Law and Customs of the Greeks and Romans (1911), 5-11.

25 The most important of these were the Peloponesian League, the Delian Confederacy, and the Achaean and Aetolian leagues. The two latter were genuine federal unions. On these leagues and confederacies, see especially Freeman’s scholarly work entitled A History of Federal Government. The best brief account of federal government in Greece is by Greenidge, Greek Const. History, ch. 7.

56 The first Hegemon of Greece (in historical times) was Sparta. Her first Hegemony lasted from about 550 to 478 B. C., and included the period of the Persian invasions. Then followed the Hegemony of Athens which lasted until 413, the date of the failure of the Sicilian Expedition. The second Hegemony of Sparta falls within the period between the downfall of Athens (404) and the King’s Peace or Peace of Antalcidas (386). During the period which follows we have a brief revival of Athenian power and the short-lived Hegemony of Thebes (371-62). The Hegemony of Greece is finally (after the battle of Chaeronea in 338) seized by Phillip of Macedon.

37 The interstate relations of Greece during the fourth century, B. C., were to a certain extent controlled by attempts to maintain a balance of power between leading Greek states by Persia and leading Greek statesmen like Demosthenes. The idea was suggested by that remarkable political adventurer Alcibiades to Tissaphernes, the Persian satrap at Sardis in Asia Minor, although there are earlier instances of its actual application.

During the third century, B. C., the leading states of Greece were the Achaean and Aetolian Leagues and the maritime power of Rhodes. All Greece eventually fell under the dominion of Rome in the course of the second century B. C.

On the balance of power in Greece, Cf. Hume, Essay on Balance of Power in 1 Essays (ed. by Green and Grose), Pt. II, Essay 7; Wheaton, History. 16 ff; and 2 Phillipson, op. cit., ch. 18, pp. 101 ff.

38 The mutilation of corpses was held by Pausanias to be “more worthy of barbarians than of Greeks.” Herod. IX, 79.

39 The whole male population of Melos was slain and the women and children sold into slavery. The Dorian people of Melos had committed the offense of trying to remain neutral during the Peloponesian War. The Athenians frankly repudiated all considerations of justice, and maintained that gods and men alike “always maintain dominion, whenever they are stronger.” See Thucyd., V, 105.

40 For these debates, see Thueyd., III, 37-48. The Ecclesia had decreed that all adult male Mytilenaeans should be put to death and the woman and children sold into slavery. This decree was afterwards rescinded, and only those guilty of the revolt were tried and executed. But the case was argued in the Ecclesia solely on grounds of public policy or expediency.

41 2 Bury, History of Greece, 98. On the increasing humanity of the Greeks of the fourth century B. C., see also Mahaffy, Social Life of the Greeks, 269-271.

42 Thucyd., IV, 97. The Athenians had garrisoned and fortified the sanctuary of Apollo at Delium in Boeotia. The Boeotians refused to surrender the Athenian dead unless Delium were evacuated. The Athenians entered the plea of military necessity in reply to the charge of using the sacred water, but claimed that they had not injured the sanctuary. Thucyd., IV, 98. Bury (II, p. 486) correctly observes: “There seems little doubt that the conduct of the Boeotians was a greater departure from recognized custom than the conduct of the Athenians,”

43 Thucyd., V, 49.

44 Cf. Polyb., IV, 73-74, and Strabo, Bk. VIII, chs. 3, 33. Yet the “neutrality “ of Elis was frequently violated, especially in later times. Some authorities have seen in the theoretical exemption of Elis from invasion an ancient instance of neutralization. The analogy is evident, but the imperfect “neutralization” of Elis, like that of temples and priests, rested wholly on a religious basis.

45 The Plataeans who surrendered unconditionally to the Spartans in 427 B. C., claimed that “the law of the Greeks is not to kill such.” Thucyd., III, 58. But their eloquent plea produced no effect on their hard-hearted judges. In case of conditional surrender, the “condition must be observed at the risk of offending the gods, provided it had been ratified by an oath.” Greenidge, op. cit., 47-48.

46 Thucyd., II, 103, and V, 3. Laurent (II, p. 144) even cites a case of release on parole.

47 “It is a perpetual law amongst all men, that, when a city is taken from an enemy, both the persons and property of the inhabitants belong to the captors.” Xenophon, Cyrop., Bk. VII, ch. V, 73.

48 Corinth seems, however, to have been an exception to the general rule. In Corinth the resident alien could probably enforce his private rights in his own name. Greenidge, op. cit., 8. In Athens, the Archon Polemachus had general jurisdiction over foreigners. See Aristotle, Const, of Athens, 58. In course of time the Greeks gradually relaxed in their attitude toward foreigners. Actual practice varied greatly at different times and in different places. At the two extremes stand Athens and Sparta — the former being extremely lax or liberal, the latter very strict and exclusive.

49 But the Greek Proxenos was usually a citizen of the state where the aliens whose interests he represented resided. Thus Alcibiades represented the interests of Sparta at Athens. For a very scholarly work on the Greek Proxenis, see Monceaux, Les Proxenies Grecques (1886). See also 1 Phillipson, op cit., 147-156.

50 Such as intermarriage and property rights. In a few cases they seem to have even provided for an interchange of political rights. Such a close alliance was known as a σνμτολιτιΐα.

51 They even sometimes provided for the selection of judges who thus formed a species of international court to which the foreigner might appeal without the intervention of a patron. See Greenidge, p. 54. Cf. 2 Laurent, 123. On Rights and Duties of Foreigners in Greece and Rome, see 1 Phillipson, op. cit., chs. 5-12.

52 For examples of arbitration, see Plutarch, Solon, 10; Ibid., Themis, 24; Herod. V, 83, 95, and VI, 108; Thucyd., V. 31; 2 Phillipson, ch. 20; and Egger (Les Traites ches les Grées et Les Romains, 67 ff), who cites a number of cases of arbitration based on inscriptions. For an interesting example of arbitration between Prienè and Samos recently unearthed, see this Journal, 5:465-66.

53 As, for example, in the Truce of 423 and the Peace of Nicias between Athens and Sparta in 421 B. C. See especially the treaty between Argos and Sparta, Thucyd., V, 79. Cf. Thucyd., I, 78; IV, 118.

54 Historical note on Arbitration in 5 Moore, History of Arbitration, Appendix. III, p. 4821.

55 Thucyd., I, 85. Por offers of arbitration, see Thucyd., I, 28; V, 41; and VII, 18.

56 Thucyd., I, 5.

57 Justinian’s Digest, XIV, 2. On the so-called Rhodian Law, see an interesting article by Benedict in 18 Yale Law Journal (Feb., 1909); and Ashburner, The Rhodian Sea-Law (1909).

58 On the “law of all men,” see Herod. VII, 13; and Polyb., II, 58, and IV, 6.

59 Several instances of the violation of this “Law of all nations” are recorded by Herodotus (VII, 13) and Thucydides (II, 67).

60 This treaty, negotiated by Spurius Cassius, the historical founder of Roman diplomacy, became the model for subsequent treaties of equal alliance. “There shall be peace between Romans and all communities of the Latins, as long as heaven and earth endure; they shall not wage war with each other, nor call enemies into the land, nor grant passage to enemies: help shall be rendered to all in concert to any community assailed, and whatever is won in warfare shall be equally distributed.” Dionys., VI, 95.

61 The particular object of this alliance was to sever the Aequians from the Volscians and thus isolate the latter. It seems to have been the first application of the fundamental principle of Roman diplomacy — divide et impera.

62 I, e., as far north as Cisalpine Gaul and as far south as Sicily. It is not quite correct to speak of the conquest of Italy. It was as the head of a powerful confederacy of Latin and Italian allies rather than as the conqueror or absolute sovereign of subject tribes and cities that Rome first appears as a great world power. Though about one-fifth of Italy was incorporated directly with the Roman Republic, it was rather by way of alliance or confederation than of direct annexation that the Roman mastery over the various races and cities of the Italian peninsula was obtained. These were placed in a condition of varied and unequal alliance with and dependence upon Rome and isolation from each other. See especially Beloch, Der Italische Bund (1880), on the Italian Confederacy.

63 Ortolan (History of Roman Law — Cutler’s ed., 1896, p. 135) thus admirably sums up the foreign policy of the Roman Republic : “ To sow discord among different nations in order to array one against another — to assist the vanquished in conquering their conqueror, — to husband its own resources, to use those of its allies to invade the territories of its neighbors, — to interfere in the disputea of other states, so as to protect the weaker party and finally subjugate both, — to wage unceasing wars, and prove itself stronger in reverses than in success, — to evade oaths and treaties by subterfuge, — to practice every kind of injustice under the specious guise of equity — this was the policy that gave Rome the sceptre of all Italy, and which was destined to secure for it that of the entire known world.”

64 On the jus belli as practiced by the Romans, see Polybius, V, 11. The ideas of Cicero were more liberal, but seldom practiced. On Cicero’s theory of international morality, see Wheaton, History of the Laws of Nations, 20-24.

65 In Greece war was usually declared through a herald, but the Greeks seem to have been less strict in this respect than the Romans; for there are instances of war without declaration.

66 These were : 1) Invasions or violations of Koman territory ; 2 & 3 ) violation of the rights of ambassadors and of treaties or alliances; and 4) military support given to an enemy or attack upon an ally by a hitherto friendly state. Even in these cases war was only justifiable after satisfaction had been demanded and refused. In case of refusal, war was formally declared by hurling a spear across the Roman frontier into the enemy’s territory. For a description of this ceremony, see Livy, I, 32. On the jus fetiale, see especially Hill, History of European Diplomacy, I, pp. 8-11 and notes; and 2 Phillipson, op. cit., ch. 26.

War might be ended in three ways: 1) By a treaty of friendship or alliance; 2) a deditio or unconditional surrender (in this case the lives and property of the enemy were generally spared); 3) by occupatio or conquest and appropriation of the enemy’s territory, or a considerable part thereof. For the formula of deditio, see Livy, I, 38. On the significance of dedition, see Polyb., XX, 9; XXI, 3, and XXXVI, 4. For terms imposed upon the Aetolians, see Polyb., XXI, 32, and Livy, XXXVIII, 11.

67 For references on the jus gentium, see note at the end of this article.

68 Walker, History of the Law of Nations, p. 64.

69 Ibid., p. 65.

70 On the international practice of the Saracens, see Bordwell, Law of War, 12-14; and Walker, History, 45, 57, 58 and 66. Cf. Nys, Etudes, I, 46-74, and Origines, 209 f.

71 See especially Esmein, Cours elementaire l’histoire du trancáis (1901), 175–184. Translated in Munro and Sellery, Mediœval Civilization (enlarged ed., 1907), 159-167.

72 Private warfare was regulated in the course of the twelfth, thirteenth and fourteenth centuries. It was usually preceded by a challenge and terminated by a truce, peace, or promise to keep the peace by one of the adversaries. As a rule, the right of private warfare was limited to noblemen. As an old adage expressed it: “Only a gentleman may engage in warfare.” In any case, ecclesiastics, women, pilgrims, and minors were exempt from hostilities. In France, it was prohibited in 1361, but was not suppressed until Louis XI broke the back of feudalism toward the close of the fifteenth century. In Germany, Faustrecht (fist-right) continued up to the middle of the sixteenth century. On private warfare in the Middle Ages, see especially Luchaire, Manuel, 228-234; Nys, Origines, ch. 5; and Du Cange, Des guerres privées (1838), cited by Bordwell, 15.

73 See the translation from Luchaire in Munro and Sellery, 171-187. The citation is on page 177.

74 Of course there were many exceptions to this rule. In England, e. g., many statutes were passed for the protection of the foreign merchant. Walker, History, 120-121.

75 The movement for a “Truce of God,” which set aside certain days in the week and seasons of the year for the practice of private warfare, originated in Aquitaine at the close of the tenth century, spread to neighboring French dioceses, and culminated in the Council of Clermont in 1095. But this movement failed to accomplish its purpose.

In the second half of the eleventh century, the church made a systematic attempt to establish the “Peace of God.” Peace leagues or associations with regular statutes, treasury, and magistrates, were established in each diocese under the direction of the bishop who did not hesitate to use force, if excommunication failed. Violators of the peace were brought before the “judges of the Peace,” and if found necessary, punished by an “army of the Peace.” Even these efforts were only partially successful. See Luchaire in Munro and Sellery, 183-84.

For texts of the Truces of God, see University of Pa. Trans, and Reprints. I, 8-12; and Henderson, Select Documents, 208-11.

76 The pretensions of both Papacy and Empire at the height of their power went far beyond mere mediation and arbitration. Their claims amounted to an assertion of universal dominion and often resulted in actual intervention. These claims were usually admitted in theory, but denied in practice.

A serious obstacle to the efficacy of the Pope as an arbitrator or mediator, was the doctrine that “no faith need be kept with heretics,” and the assertion of its right to break treaties and annul oaths “ contrary to the interests of the church.” See an interesting article by Andrew White in 95 Atlantic Monthly, 107 ft.

77 See especially the historical note in 5 Moore, History of Arbitration, App. III, 4825 ff; and Nys, Les Origines, ch. 4.

78 On the influence of the Roman law upon the formation of international law, see especially Maine, Ancient Law (Pollock’s ed.), 92 ff, and note H in Appendix; Ibid., Int. Law, 20, 26-29; Wheaton, History, etc., 29 ff. For further references, see note on the jus gentium at the end of this chapter.

79 On the effects of the Crusades, see especially Adams, Civilization of the Middle Ages, 270 ff; Chauveau, Introduction, 135 ff; 4 Milman, Latin Christianity, Bk. VII, ch. 6; Bemont and Monad, Mediaeval Europe, ch. 22; Emerton, Mediwval Europe, 388-97; 1 Hill, History, 368 ff; Munro and Sellery, Mediasvai Civilization, 253-56; Walker, History, 87 ff.

80 On the barbarities of mediaeval warfare, see Nys, Origines, ch. 11; Walker, History, 122 ff.; Hosack, History of the Law of Nations, chs. 2-4; Ward, Enquiry, etc., I, chs. 8, 9, and II, ch. 14.

Nys (Origines, p. 188) gives the following summary of the character of mediaeval warfare : “In the Middle Ages war bears the stamp of an indescribable cruelty; adversaries injure each other as much as possible; the annihilation of the enemy is the final end of hostilities. Hence, unheard of acts of barbarity; the use of poisoned weapons; the mutilation of prisoners, devastation, the sack and destruction of towns; recourse to treason and perfidy. We are unable to furnish a complete picture of the atrocities committed.”

The church made some slight efforts to mitigate the horrors of warfare, as, e. g., its prohibition of the use of the cross-bow and of projectiles hurled from machines, but these efforts were unsuccessful. It also condemned the enslavement of Christian prisoners. Although prisoners were often massacred and sometimes enslaved, the church deserves the gratitude of mankind for its crusade against slavery.

Prisoners of note were generally ransomed, sometimes exchanged, and in a few cases, released on parole. In the latter case hostages were usually given.

81 The following passage from a Christian historian may serve as an illustration of the unrestrained brutality of the Crusaders when their fierce and unbridled passions were aroused (it describes the capture of Jerusalem which was taken by storm on July 15, 1099):

“ No barbarian, no infidel, no Saracen, ever perpetrated such wanton and cold-blooded atrocities of cruelty as the wearers of the cross of Christ on the capture of that city. Murder was mercy, rape tenderness, simple plunder the mere assertion of the conqueror’s right. Children were seized by their legs, some of them were plucked from their mother’s breasts and dashed against the walls or whirled from the battlements. Others were obliged to leap from the walls; some tortured, roasted by slow fires. They ripped up prisoners to see if they had swallowed gold. Of 70,000 Saracens there were not left enough to bury the dead; poor Christians were hired to perform the office. Every one surprised in the temple was slaughtered, till the reek from the dead bodies drove away the slayers. The Jews were buried alive in their synagogues. * * * 4 Milman, History of Latin Christianity, p. 37 of American ed. (1881). Cited by Hosack, History of the Law of Nations, p. 68. Hosack adds that the brutality of the Crusaders has often been contrasted with the remarkable generosity with which Saladin, the renowned Sultan of Egypt, treated the captive Christians when he retook Jerusalem in 1187.

82 The most important of these were Amalfi, Venice, Pisa and Genoa.

83 Harding, Essentials in Mediœval and Modern History, p. 187. See map on pages 184—85 showing extent of mediæval commerce, trade routes, and the Hansa towns and settlements. The objects of the League were common defense, the acquisition, maintenance and security of trade; and it provided for the Settlement of disputes between members by arbitration.

84 On the Consolato del Mare, see especially Pardessus, Us et Coutumes de la Mer, I, 21-34, 206-209, and II, 1-368 or ch. 12. For English translations of the most famous chapters of the Consolato, see Wheaton, History, 63-65, arid Manning, 280-83. Both are copies of Robinson’s translation of the Prize Chapters of the Consolato del Mare, Collectanea Maritima, No. 5. See also 3 Twiss, Blaık Book of the Admiralty, 539 and 611.

Other important mediaeval collections or codes of maritime law were: (1) The so-called Amalfitan Tables, which appear to date from the eleventh century. (2) The Laws of Oleron for Western Europe, which seem to have been completed in the latter part of the twelfth century. (3) The Laws of Wisby. dating from about 1288, for the Baltic Nations. (4) The Maritime Law of the Hanseatic League, completed in 1614. (5) The so-called Rhodian Sea-Law of the Roman Empire and the Early Middle Ages, which, however, is generally regarded as apocryphal. It was first published in 1561, though Ashburner (in The Rhodian Sea-Law, 1909) presents some strong arguments in favor of his opinion that it was “probably put together by a private hand between A. D. 600 and A. D. 800.”

85 Nys, Origines, p. 232. But its actual development dates from a much earlier period, probably the fourteenth century. It was applied by the sea consuls of Barcelona who existed as early as 1279.

86 In the north, i. e., among members of the Hanseatic League, the consular judges were known as aldermen. Like the consuls of the south they represented the powerful merchant guilds or corporations rather than the governments. We should remember in this connection that the Middle Ages were still dominated by the idea of personality of law, and that it was entirely natural that colonies or corporations of foreigners residing in a certain quarter of a mediaeval city should be permitted to administer their own law, and that they should especially demand these privileges in the Orient.

On the MediŔval Origin of the Consulate, see Bonflls (Fauchille), Nos. 734-741; 1 Halleck (Baker’s 3d ed.), 369-70 and note; J1 Holtzendorff in Bandbuch, § 77; 2 F. de Martens, Traité § 18; Hautefeuille, Histoire, 95 ff; 2 Mérignhac, Traité, 314 ff; 2 Nys, Droit Int., 396-400; 1 Oppenheim, § 419; #4 Pradier-Foderé, Traité, Nos. 2036-2043.

87 These “three magicians” (as Bacon called them), whose reigns fall within the latter half of the fifteenth century, all contributed powerfully to the development of that royal power which resulted in the destruction of feudalism as a political force, the unification and nationalization of the state, and the establishment of the modern states-system of Europe. The main “ organizers “ of European diplomacy appear to have been Ferdinand of Aragon, Louis XII and the Emperor Maximilian at the close of the fifteenth century. See 2 Hill, History, p. 309.

88 The researches of Nys (see especially his Origines, ch. 14) and others have rendered earlier accounts of the origin of European diplomacy almost worthless. The system of permanent resident embassies was unknown to antiquity. It originated in Italy (Venice taking the lead) in the thirteenth century. In the fifteenth century the Italian cities had permanent representatives in Spain, Germany, France and England. These states maintained similar relations with one another in the sixteenth century, but the system of resident embassies cannot be said to have been generally established throughout Europe until the age of Mazarin, Richelieu and Louis XIV in the seventeenth century. The terms “ diplomatist “ and “ diplomacy “ did not come into general use, however, until the end of the eighteenth century.

On the origin of European Diplomacy, see especially in addition to Nys, cited above, Baschet, La diplomatie vénitienne; Bonfils (Fauchille), No. 656; 1 Calvo, § 392; 2 Fiore, No. 1177; 1 Flassan, Histoire (1811), passim; (Hill, Histore of European Diplomacy, vols. I & II, passim, more particularly I, ch. 8, ad fin, and II, che. 2, 4, and 7; Holtzendorff in 1 Handbuch, § 83; Krauske, Die Entwichelungder Ständigen Diplomatie (1886); 1 Maulde-la-Clavière, La diplomatie au temps de Machiavel; 1 Oppenheim, §§ 358-59; #3 Pradier-Fodéré, Traité, Nos. 1231-36; ibid., 1 Corps Diplomatique, 203-214; 1 Rivier, 431.

89 I. e., Venice, Florence, Milan, Naples and the Patrimony of St. Peter. It was especially applied by Lorenzo de Medici. Italy also seems to furnish us with the first example of the modern state, viz., the centralized administration of Frederick II in southern Italy and Sicily in the thirteenth century. See Burckhardt, The Civilization of the• Renaissance (Eng. trans, by Middlemore), p. 5. Cited by Nys, Origines, p. 166.

90 Evidences of the application of this idea may be found in the policy of England and France during the sixteenth century, but the balance of power can hardly be said to have been established as a European system prior to the latter part of the seventeenth century. It was first formally and officially recognized by the Peace of Utrecht in 1713.

On the origin of the system of “European Equilibrium,” see Nys, Origines, ch. 8; 2 Hill, History of European Diplomacy, passim, particularly, 158, 238, 294 ff.

91 In the negotiations at Münster and Osnabrück all the leading European Powers were represented, except England, Poland, Muscovy, and Turkey, viz: the Papacy, the German Empire, France, Spain, Sweden, Venice, Denmark, Portugal, and the States-General of Holland. The various German States and the Dukes of Tuscany, Savoy, and Mantua also sent delegates. The Swiss cantons were represented through the good offices of the French and included in the general pacification. The independence of Holland was also recognized. England and Poland were included in the Treaty oř Osnabrück as allies both of the Emperor and Sweden. These details are taken from Bernard’s interesting essay ón “The Congress of Westphalia “ in his “Lectures on Diplomacy,” II, ch. 7 ad fin.

92 Of these 355 German States whose sovereignty was practically (though not theoretically) recognized by the Peace of Westphalia, “150 were secular states governed by hereditary monarchs (Electors, Dukes, Landgraves, and the like), 63 were free city states, and 123 were ecclesiastical states governed by Archbishops and other church dignitaries.” 1 Oppenheim, p. 60.

93 On the so-called International Law of Antiquity, see especially 1 Alcorta, Cours, ch. 6, sec. 1; Bender, Antikes Völkerrecht (1901); Busóit in Mueller’s Handbuch, IV, 1, §§ 54-76; Chauveau, Introduction (1891), § 12; Cybichowski, Das Antike Völkerrecht (1907) ; Egger, Les Traités Publics ches les Grecs et les Romains (1866); (Greenidge, Bandbook of Greek Const. History, ch. 3, § 2; Ibid., Roman Public Life, ch. 7; 1 Hermann, Griechische Antiquitäten, §§ 9-14; #1 Holtzendorff in Handbuch (1885), §§ 40-64; #Laurent, Etudes sur l’Humanite (1879-80), vols. I, II and III; Leseur, Introduction, §§ 33-38; Műller-Jochmus, Geschichte des Volkerrecht im Altertum (1848); #Phillipson, Int. Law and Customs of Ancient Greece and Rome in 2 vols. (1911); Scala, Die Staatsverträge des Altertums (1898) ; 2 Schoemann, Griechische Altertümer, 1-123; #1 Walker, History of the Law of nations (1899), 20-64; Wheaton, History of the Law of Nations (1845), Introduction.

On the International Law of the Middle Ages, see 1 Alcorta, Cours, ch. 6, sec. 2; Chauveau, Introduction, § 13; Hosack, The Rise and Growth of the Law of Nations (1882), che. 2-7; #1 Holtzendorff in Handbuch, §§ 65-84; (Laurent, Etudes, vols. IV-X, passim; Leseur, Introduction, §§ 38-54; (Nys, Les Origines de Droit Int. (1894); ibid., Etudes de Droit Int. (1896 and 1901), in 2 vols., passim; #1 Walker, History, 79-201; Ward, Enquiry into the Foundation and History of the Law of Nations (1795), in 2 vols, (still useful).

1 The historical chapters in treatises of international law are for the most part either slight or practically worthless in the light of our present knowledge. Among the exceptions are Bonfils, Calvo, Despagnet, F. de Martens, Nys, and Wilson and Tucker (the best of the brief sketches).

On the jus gentium, see 1 Austin (Campbell’s ed.), §§ 109-10, and vol. II, Lect. 31, §§ 791-825; (Bryce, Studies in Jurisprudence, 570-86, 753-4; Carlyle, Mediœval Pol. Theory (see index) ; (Clark, Practical Jurisprudence, ch. 14; Duning, Political Theories, Ancient and Mediœval; ibid., From Luther to Montesquieu, passim; Holland, Jurisprudence (10th ed. in 1906), 34-35; 1 Holtzendorff in Handbuch, § 64; Kariowa, Rom. Rechtsgesch, § 59, pp. 451-58; Maine, Ancient Law (Pollock’s ed.), 44 ff, and Pollock’s note in Appendix, 396 ff; ibid., Int. Law, 27-29; 1 F. de Martens, 84 ff; 3 Mommsen, Rom. Staatsrecht, 603-606 and notes; Muirhead, Private Law of Rome, 240; (Art. on jus gentium by Professor Nettleship in 13 Journal of Philology, No. 26; 1 Phillipson, op. cit., ch. 3; (Roby, Roman Private Law, 5-6, especially note 2 on page 5; Salkowsky, Roman Private Law (Whitefleld’s trans.), 10, 30-31; 1 Savigny, System, § 23; (Sohm, Institutes, §§ 12-13; Voigt, Rom. Rechtsgesch, § 15, pp. 152-62; #ibid., Jus Naturale und Jus Gentium dor Römer (1856 in 4 vols.), passim; #Walker, History, §§ 28-29, 85 et passim; Westlake, Chapters, 18 ff; Wheaton, History, 24 ff; Wilson, The State, Nos. 262 ff; (Willoughby, Political Theories, 252-67.