But

must look for the earliest literature on the laws of war.1 this obviously brings us to the second of the questions discussed by medieval writers—

To what laws ought the combatants in a just war to conform ? "In the Middle Ages," says Nys,2 "war is characterized by unspeakable cruelty; enemies do to one another as much harm as possible; the annihilation of the enemy is the final end of hostilities. Hence unheard of acts of barbarity; hence the use of poisoned arms; hence the mutilation of prisoners, the waste, sack, and destruction of towns; hence the recourse to treachery and deceit. . . . The unimpeachable evidence of moralists, poets, lawyers, statesmen, soldiers can be appealed to; and their evidence is the same." What is the use, then, it may be asked, to recall the fruitless efforts of medieval thinkers to impose laws upon a state which was thus treated literally as the abrogation of all law? The answer is that their efforts were not altogether fruitless, because they were the origins of practices and tendencies and speculations which lived on in the world of fact, and in the writings of modern international lawyers, till they created a public opinion, which (except in barbarous Prussia and amongst the other tribes of Central Europe whom Prussia had corrupted) has given to some of them a far larger effect than their originators could have dared to hope. There are many instances in the history of law in which the consistent maintenance of a high ideal has at length succeeded in elevating public opinion-but none is so striking as this.

Of these practices, tendencies, and speculations which passed into the writings of the founders of modern international law, and, through them, influenced and still influence the conscience of all civilized peoples, I cannot speak at length. I can only indicate very briefly one or two of the most important.

4

The institution of chivalry did something. It helped to make universal the custom of ransoming prisoners. It helped to forward the custom of releasing prisoners on parole.5 Above all it made men see that an enemy is a human being, and should be regarded as possessing the rights of a human being; that misfortune in war calls for pity, and is not merely an opportunity for gratifying revenge. It is true the class benefited by the customs of chivalry was very limited. "To have the benefit of its courtesies as of right, a man must be a knight, or at least capable of becoming one, a woman must be in religion or a member of a knightly family. The condition of being an orthodox Christian

"1

would have been added by many.' But the causes which modified the rigid class system of the Middle Ages 2 helped to diffuse the ideas of chivalry amongst a larger circle. We see on a European stage the working of that principle which Maitland has emphasized in English legal history-the law of the great men tends to become the law for all.

4

3

The influence of the preaching of the church (though its practice was sometimes contrary to its own preaching) did something. Its condemnation of certain kinds of arms, its teaching that faith should be kept even with an enemy, its constant prohibition of the practice of treating prisoners as slaves —all helped to maintain the idea that there are some things not permissible even in war.

Another influence which made in the same direction was the growth of better discipline in the contending armies. Even in the Middle Ages some provision was made for discipline, and often there were detailed rules as to the distribution of booty, and the right to the ransom paid by prisoners. But these rules were as yet but rudimentary. It was not possible to do more till the introduction of standing armies controlled by a regular military law; and at first the imperfections in the administration of this law, and the irregularity in the pay and feeding of the soldiers, sometimes caused the introduction of these standing armies to aggravate the disease. We must not expect this influence to have a regular and a constant effect in diminishing the horrors of war till quite modern times.7

A more important influence was that of the merchants. That influence tended, in the first place, to modify the rigour of the Roman rule that the outbreak of war broke off all relations between the contending parties. In England Magna Carta provided that, though the persons and goods of alien enemies in England should, on the outbreak of war, be arrested, no damage should be done to them till it was ascertained what treatment

1 Pollock, Camb. Mod. Hist. xii 705.

2 Vol. iv 402-407.

3 Nys, op. cit. 192-Innocent III. forbade, "Artem illam mortiferam et odibilem ballistariorum adversus Christianos et Catholicos exerceri de cætero sub anathemate." 4" Gratien avait inséré dans le Décret le texte dans lequel saint Augustin exprime son opinion: Fides enim quando promittitur etiam hosti servanda est, contra quem geritur," ibid 215.

5Ibid 236-239-one line of reasoning favoured by Bartolus and others was that all Christians in obedience to the church were de Populo Romano, and could not therefore become slaves by capture in wars with one another.

6 For these rules in England see authorities cited vol. i 573 and n. 2, 574-575; Nys, op. cit. 204-208.

7 Nys says, op. cit. 201, “L'établissement d'armées permamentes servit efficacement la cause de la civilisation de la guerre ; and, as discipline became better, there

can be no doubt that in the long run they have had this effect.

8 Ibid 193-194.

2

A step

the enemy country meted out to English merchants.1 further was made by a clause of the Statute of the Staple, which provided that enemy merchants in England should have forty days within which to quit the country. And the Hanse in many places got similar privileges for its members-even in some cases the right to continue their trade in spite of the outbreak of war.3

7

4

Trade again gave rise to special prohibitions against the sale of certain articles specially useful to an enemy. Such prohibitions became common in the thirteenth century. Then, again, states sometimes attempted to prohibit all trade with their enemies. 5 And in these two sets of prohibitions we can see the germs of the doctrines of modern international law which are concerned with contraband and blockade. But as yet the formation of these bodies of doctrines is very remote. It is the bearing of these doctrines upon the rights and duties of Neutrals that gives them the greatest part of their interest in modern law; and, as between the great states of Western Europe, the principles of the law of Neutrality were scarcely formed, even in the first half of the seventeenth century. In that century, indeed, under the influence of commercial needs, they were beginning to emerge. That they were then beginning to emerge was helped by the fact that in the Middle Ages the interests of the great trading centres of Italy and South-Western Europe had pointed the way. The Consolato del Mare provided for the case of a friend's ship which carried enemy goods, and for the case of an enemy ship which carried a friend's goods. In the first case the ship went free and the goods were confiscated; but the captain must be paid freight upon them as if he had carried them to their destination.9 In the second case the goods went free, and the ship was confiscated; and the owners of the goods must come to some arrangement with the capturer. Failing this arrangement, the capturer must take the goods to the port whence he started, and could charge freight for so doing.10

8

18 41" Et si tales (mercatores) inveniantur in terra nostra in principio gwerræ, attachientur sine dampno corporum et rerum, donec sciatur a nobis vel capitali justiciario nostro quomodo mercatores terræ nostræ tractentur, qui tunc invenientur in terra contra nos gwerrina; et si nostri salvi sint, alii salvi sint in terra nostra.”

227 Edward III. st. 2 c. 17.

3 Nys, op. cit. 195.

4 Ibid 225-227; he says at p. 226, “Au XIIIe siècle il devient usage de lancer au début de la guerre des proclamations qui défendent, sous peine de confiscation, à tous navires d'apporter des vivres ou des munitions quelconques à l'ennemi."

5 Ibid 226-citing English ordinances of 1315 and 1357 forbidding all trade with the Scotch.

6 Ibid 224-228.

8 For this code see below 70-71.

7 Below 43-44, 47-49.

9 Black Book of the Admiralty iii 362-363, 539; see Hall, International Law

(6th ed.) 687.

10 Black Book of the Admiralty iii 543-545; Hall, op. cit. 715-716.

The result of all these influences was the beginnings of a wholly new set of doctrines as to the effects of war, which waited long for its realization in the world of fact. Many writers taught that war respected neither age nor sex; and this was the prevalent doctrine when Gentili and Grotius wrote.1 But towards the end of the fourteenth century, Honore Bonet had maintained that war is rather a relation of state to state than of man to man, and that, in consequence, it was wrong to harm those who either did not or could not take part in war-like operations. We see here in germ the modern distinction between combatants and non-combatants. But it was not till the establishment of standing armies that this distinction could be clearly drawn in practice ; and it was not for many centuries after standing armies had become universal that it began to bear fruit.

These influences, which were making in the direction of a law of war, were as yet vague in character and limited in extent. Some of them acquired a greater precision in the works of the great Spanish theologians of the sixteenth century. But we shall see that it was not till long after the establishment of international law as a separate system that they were recognized either in theory or practice.2 Probably, however, war would, for a still longer period, have wanted laws, if these influences had not begun to make their appearance in the Middle Ages. As we shall see, the extent and variety of the rules and speculations which the problem of war aroused formed by far the largest part of the material bequeathed by medieval thinkers to the founders of modern international law- a fact which to a large extent determined the form and contents of their works.

law.

(ii) Other topics which in modern times belong to international

Medieval writers never cease, as Nys points out, to teach that war is an abnormal, peace the normal condition. But naturally in early days the law finds much more to say about the former than the latter. Its great object is to realize its theory. that peace is indeed the normal condition of things, and therefore it concentrates its efforts upon the rules for shortening, limiting, and regulating war. It is not until peace has become more normal than it ever was over the greater part of Europe in the Middle Ages, that the group of topics which modern inter

1 Nys, op. cit. 197.

2 Ibid 197-200.

3 They occur in the "temperaments" proposed by Grotius, but not in the strict law of war as stated by him, below 57.

"Op. cit. 264, "La guerre est l'état exceptionnel; la paix est l'état normal. Les auteurs médiévaux ne cessent de l'enseigner; chez tous, se rencontrent des maximes, transmises religieusement à travers les âges, où cette pensée est indiquée."

national lawyers deal with under the title of Peace begins to emerge with any distinctness. In the Middle Ages we can do no more than point to the origins of one or two of these topics. The view that the maintenance or restoration of peace is an ideal to be aimed at, occasionally bore some fruit in attempts to find other solutions for disputes than war. When helped by the power of the nascent state it did much to regulate and suppress private war; and it sometimes had some effect in shortening wars between peoples. The pope sometimes used his influence to negotiate a treaty of peace. The treaty of Bretigny (1360) was largely due to him; the pope and the Council of Basle helped to conclude the treaty of Arras (1435); and occasionally other rulers intervened.2 Sometimes attempts were made to settle disputes by a conference; but mutual distrust-justified by such events as the assassination of the Duke of Burgundy at Montereau-prevented this method from being much used.3 Arbitration appears more frequently. Henry II. in 1177 arbitrated between the kings of Castile and Navarre; Louis IX. of France in 1264 arbitrated between Henry III. and his barons; and Edward I. in 1291 arbitrated between the thirteen competitors to the throne of Scotland. And there are a few other instances during the fourteenth and fifteenth centuries. Both in treaties of peace and in arbitrations the influence which Roman law has had in promoting the idea that the relations between peoples should be ruled by law is apparent. The forms of treaties, the sanctions attempted to be imposed to secure their observance, and the procedure in cases submitted to arbitration, show that the rules and ideas in common use to regulate the relations of private individuals were applied to regulate the relations of rulers and peoples. It is clear that the use of these forms and conceptions has contributed powerfully to promote the idea that these relations ought to be regulated by law, and to cement the connection between this law and the civil law.

6

4

5

Further, the Middle Ages recognized that a state injured by another, might, without going to war, remedy its wrong by selfhelp. It might allow either all its subjects or such of its subjects

1 On this subject see Nys, op. cit. chap. v. In particular the rule which the jurists laid down for private war, that there must always be a diffidatio, was somewhat easily extended to wars between states in the form of a rule that a formal declaration of war was necessary; the rule is strongly upheld by Gentili as a rule of the jus gentium ordained of God, though by that time it was falling into disuse; it was a rule which squared well with the view that war should only be used as a last resort to recover one's rights, see Nys, op. cit. 176-177.

2 Ibid 266-269.

3 Comines, Bk. II. c. 8, said, "Quand deux grands princes s'entrevoyent pour cuider appaiser differends, telle venue est plus dommageable que profitable," cited Nys, op. cit. 51. 6 Ibid 269.

4 Vol. i 40.

5 Nys, op. cit. 53-54.