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


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. 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. 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."

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.
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," 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.


2 Ibid 264.

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.


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."

must look for the earliest literature on the laws of war.1 But 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 mediaval 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.


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. 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 Holland, Studies in International Law 50-55.

2 Op. cit. 188.

• Ibid 245.

VOL. V.-3

3 Ibid 190-192.

5 Ibid 247-248.

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would have been added by many.' But the causes which modified the rigid class system of the Middle Ages 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.

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,3 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.

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.

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

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. 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

1§ 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."

3 Nys, op. cit. 195.

227 Edward III. st. 2 c. 17. 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."

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

• Ibid 224-228.

8 For this code see below 70-71.

7 Below 43-44, 47-49.

"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.

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