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The Medieval Ideas1

The dominant political theory of the Middle Ages, which regarded Western Europe as a single society under emperor and pope, prevented the growth of anything like the international law of modern times. But the peculiar intellectual conditions which made for the supremacy of law-divine or natural or human were favourable to the growth of rules upon particular topics, which were extensively used by the founders of international law in the sixteenth and seventeenth centuries. The application of some of these kinds of law to the war-like or peaceful relations of the several communities of which Western Europe consisted, was helped by the fact that, far back in the seventh century, Isidore of Seville, in the fifth book of his Etymologiæ, had adapted from Ulpian's institutes certain definitions of jus naturale, jus gentium, and jus militare. His definition of jus gentium, corresponds, as Nys has said, in some sort to our modern international law; while his definition of jus militare gives us some of the most important headings of a work upon the laws of war. These definitions, having been inserted by Gratian in the Decretum, became the starting point of a large body of doctrine. But this doctrine did not cover the whole ground marked out in these definitions. It was only the topics which interested the medieval speculator that were thus developed.

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Of these topics by far the most important were the laws of war. As Professor Holland has said, "Just as the forms of litigious procedure are a more prominent topic in early legal literature than the substantive law itself, so were the rules which are applicable to the conflicts of States discussed before those which should govern their peaceful intercourse." 8 This pheno

The best and most exhaustive account of these ideas is contained in Nys's Origines du Droit International; it is on his work that I have mainly relied; cf. also Walker, op. cit. 79-137.

2 Vol. ii 121-122, 127-128.

3 Ibid 131-132.

* Bishop of Seville 601, died 633; his Etymologiæ is "a complete encyclopedia of medieval science in twenty books," Walker, op. cit. 205 n. 1; cf. vol. ii 135. 5 Nys, op. cit. 9.

6 The law of nature is: "Jus commune omnium nationum, et quod ubique instinctu naturæ non constitutione aliqua habeatur." "Jus gentium est sedium occupatio, ædificatio, munitio, bella, captivitates, servitutes, postliminia, fœdera, paces, induciæ, legatorum non violandorum religio, connubia inter alienigenas prohibita."

"Jus militare est belli inferendi solemnitas, fœderis faciendi nexus, signo dato egressio in hostem, vel pugnæ commissio. Item signo dato receptio; item flagitii militaris disciplina, si locus deseratur; item stipendiorum modus, dignitatum gradus; præmiorum honor, veluti cum corona vel torques donantur. Item prædæ decisio et pro personarum qualitatibus et laboribus justà divisio; item principis portio "-cited Nys, op. cit. 9 nn. 1-3.

7 Ibid 9, 10.

8 Holland, Studies in International Law 40.

menon is due to two causes. In the first place, the turbulence of the Middle Ages made all questions relating to war matters of first-rate importance. In the second place, the desire to bring all the phenomena of the universe under some kind of law made the phenomenon of war very interesting both to canonists and civilians. Was war in any circumstances justifiable? If so, under what circumstances? What were just causes of war? What were the conditions under which it ought to be waged? What difference did it make if the enemy was an infidel? Under what conditions was private war justifiable? All these questions and many others were exhaustively discussed from that mixed legal and moral point of view which is characteristic of the speculations of both canonists and civilians. Other topics were comparatively of small importance. Indeed, at this period, and even in the sixteenth and seventeenth centuries, some of them were often only discussed in relation to war. We get, for instance, some discussion of methods of settling disputes other than by war, and of treaties of peace and commercial treaties, and a few hints as to the position of foreign rulers and ambassadors.2 When these topics were not discussed in relation to war, they were treated as quite separate branches of knowledge. They were not regarded as topics which belonged to one and the samedepartment of knowledge. The only bond of union was the idea connecting all branches of knowledge in the Middle Ages-the idea that the matters with which they dealt should be regulated by some sort of law.

I shall therefore consider briefly the medieval treatment of (i) various topics connected with war, and (ii) other topics which in modern times have become important branches of international law.

(i) Topics connected with war.

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The legality of war was a subject of discussion all through the Middle Ages. The early fathers of the church had pronounced against war. But Augustine had admitted that it might be just; his opinion was followed by Gratian; and it prevailed, even though the war was waged between Christians." Wycliffe, on the other hand, maintained the illegality of war between Christians in the broadest terms." In the sixteenth

1 Below 57.

2 Below 36-39.

3 Nys, op. cit. 44, 45; Walker, op. cit. 204; Holland, Studies in International

Law 42.

Walker, op. cit. 205; Nys, op. cit. 45, 46.

5 Ibid 98; Holland, op. cit. 43-44.

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Quod homicidium per bellum vel prætensam legem justicia pro temporali causa, sive spirituali revelatione est expresse contraria Novo Testamento quod quidem est lex gratiæ et plena misericordiæ," Fasc. Ziz. (R.S.) 366, cited Nys, op. cit. 48.

century his views found an echo in the writings of such men as Colet, Erasmus, and More;1 and they were deemed worthy of refutation by Suarez. But they were opposed to the weight of mediæval authority, and still more to the weight both of mediæval and modern practice.3 They still remain an ideal which from century to century has attracted the finer spirits of successive ages.

It was impossible, therefore, to maintain that all war was unjust. But it was equally impossible to maintain that all wars were just; nor was it possible to say that any atrocity might be permitted even in a just war. This obviously gives rise to two classes of questions-When will a war be considered just? and, to what laws ought the combatants in a just war to conform ? To the solution of these questions the mixed moral and legal criteria of medieval thinkers were applied. This gave rise to a large literature1 which influenced profoundly the earliest writers on modern international law, and, through them, the law of our own times.

When will a war be considered to be just?

The starting-point of the discussion was found in some words which Isidore of Seville borrowed from Cicero as to the just war, the unjust war, the civil war, and the more than civil war. Gratian used these words in the parts of the Decretum in which he dealt with war, and enlarged upon them." From him they passed into those numerous Summa which medieval canonists composed for the use of those who heard confessions. Just as these Summa are one of the roots from which sprang the idea of equitable rules superior to the rules of merely human law, so they are one of the chief sources of the rules as to when war may be justly waged. The Summa of the great Hostiensis distinguished seven species of war, four of which were just and three unjust. Aquinas said that the just war must comply with three requisites. It must have the authority of a prince in obedience to whose orders one is bound to wage war. It must

1 Nys, op. cit. 48, 388-399.

2 Ibid 138.

3 Even among those who admitted that war might be just, "Deux courants se produisent; tandis qu'une partie des auteurs est sinon trés favorable à la guerie, du moins portée a l'excuser, une autre partie s'en montre l'adversaire irréconciliable"; the former party prevailed in the sixteenth century, ibid 100, IOI.

4 For this literature see ibid c. 6.

5 Ibid 99, 100; cf. Walker, op. cit. 206-207. 6 Nys, op. cit. 101, 102.

7 Vol. iv 276 n. 5, 280 n. 5.

8 Bellum Romanum, between believers and infidels-just; bellum judiciale, between believers under the authority of a judge-just; bellum præsumptuosum, waged by rebels in contempt of authority-unjust; bellum licitum, authorized by a prince-just; bellum temerarium, waged by believers against legal authority-unjust; bellum voluntarium, waged by believers on their own authority-unjust; bellum necessarium, waged by believers in self-defence-just: see Nys, op. cit. 102; Walker, op. cit. 211.

have a just cause, i.e. those attacked must have deserved to be attacked by reason of some misdeed committed by them. The intention of those who wage war must be an intention to do good or avoid evil.1 Many other writers analysed with great minuteness the causes of war in order to decide which of them justified war and which did not.2

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These speculations as to the justice or injustice of war were concerned with wars between Christians. Other considerations applied to wars against infidels or heretics.3 An age which preached crusades, founded the military orders, and persecuted infidels, had no doubt whatever about the justice of such wars. But gradually distinctions were established. Innocent IV. maintained that it was unjust to wage war against the Saracens merely to convert them to Christianity. If they did not harm Christians, Christians had no right to seize their lands or goods. But these views were attacked by Henry of Susa, and his views were the more popular. He denied to infidels any rights of sovereignty, and only admitted that those who lived in submission to Christian princes were immune from attack.5 But the views of Innocent IV. gradually prevailed. It is true that Wycliffe maintained that the infidel, being deprived of grace, could be attacked and despoiled at will. But Wycliffe's views were formally condemned by the Council of Constance; and at that Council the rights of infidels were maintained with much ability by one of the representatives of Poland and Lithuania, the pagan inhabitants of which countries had suffered cruelly from the inroads of the Teutonic Order.7

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To us who have grown accustomed to the omnipotence of the sovereign state these theoretical discussions as to the justice or injustice of war may seem somewhat useless. What bearing, it may be asked, can they have upon the modern rules of international law, which accept war as a fact and attempt to regulate it without reference to its justice? The answer is that they have had two lasting and permanent effects upon the growth of the modern law.

(a) They have enforced the truth that war is prima facie a moral wrong; that it is not lightly to be undertaken; and that it needs to be justified. It may seem that this truth had little effect upon the international practice of the Middle Ages. But even then it accomplished something. The careful apologetic statements sometimes issued by rulers showed that at least lip

1

Nys, op. cit. 104-105.

2 Ibid 105-124; Holland, Studies in International Law 44-50.

3 Nys, op. cit. c. 7.

6 Ibid 149.

4 Ibid 144.

7 Ibid 149-151.

5 Ibid 144-145.

service was paid to it;1 and the limitations imposed upon private war by the Truce of God,2 and the occasional cases in which disputes were submitted to arbitration,3 are evidence that it accomplished some practical results. Above all it established a point of view which, having been adopted by the founders of our modern international law, has done much and may we hope in the future do more for the cause of peace. This may appear to be a very general-almost some may say an impalpable effect. But it is none the less real; and it has been helped by the second and more direct of the effects of this point of view upon the growth of the modern law.

(b) The opinion which condemned unnecessary and causeless war even against infidels inspired the works of moral theologians, like Las Casas, Franciscus de Vitoria, and Dominique Soto, in which the cruelties perpetrated by the Spaniards on the Indians were condemned. These books stand at the parting of the ways between the mixed moral and legal discussions of the Middle Ages and the legal treatises on modern international law. They contained a careful reconsideration and restatement of the mediæval doctrine as to war; and the mediæval doctrine, as thus reconsidered and restated, passed into the modern law, and influenced it in two directions. In the first place, it made for the expansion of the doctrine that some law should govern international relations beyond the bounds of Christendom. The mediæval doctrines were dependent upon the moral legal and theological conceptions which governed the circle of peoples who lived within the Holy Roman Empire; and they were therefore necessarily confined to those peoples. The admission that peoples who were outside that circle had rights, showed that the conception of a law between peoples was emancipating itself, even in the minds of the most orthodox,5 from a particular set of theological beliefs. We can see the beginnings of a development which will make international law coextensive with the civilized world. In the second place, these books discussed with great minuteness all questions connected with the conduct of a war. In them we

1 "Le soin extrême que les souverains médiévaux mettaient à établir le bien fondé de leurs réclamations, ne fût-ce que pour s'attribuer une apparence de justice, se manifeste dans leurs appels à l'opinion publique," Nys, op. cit. 56. 3 Below 37.

work.

2 Ibid 264.

4 Nys, op. cit. 152-156; see Walker, op. cit. 214-230 for an analysis of Vitoria's

5 See Walker's summary, op. cit. 218, 219.

"The

"As Phillimore says, Commentaries on International Law (ed. 1854) i 20: first important consequence which flows from the influence of Natural upon International law is, that the latter is not confined in its application to the intercourse of Christian nations . . . but that it subsists between Christian and Heathen, and even between two heathen nations, though in a vaguer manner and less perfect condition than between two Christian communities."

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