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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. 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.
(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.
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;1 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. 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.
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.
* Ibid 266-269.
* 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. • Ibid 269.
4 Vol. i 40.
5 Nys, op. cit. 53-54.
as had been injured, to exact reprisals from the subjects of the state which had inflicted the injury. The theory which underlies the institution of reprisals is the theory universally held in the Middle Ages that that which is due from a community is due from each of its members. The breadth of the theory accounts for the wide use of reprisals in many different connections. We shall see that in Italy the interests of commerce led to their regulation and that that regulation is one of the roots of that department of private international law which regulates the legal consequences of foreign judgments. Elsewhere they continued to be used extensively all through the Middle Ages and later, till the growth of the power of the state and the interests of commerce led to their regulation, limitation, and finally to their disuse. The founders of modern international law turned against them. Gentili called the law relating to them "most hateful"; and Grotius, though he does not deny their legality or even their usefulness, cites with approval the Roman theory-wholly opposed to the mediæval theory on which reprisals rested-that "Si quid universitati debetur, singulis non debetur, nec quod debet universitas singuli debent."" The law and custom of reprisals may have helped indirectly to forward the view that neutral individuals who offend the rules of international law may be punished by a belligerent state. Otherwise they have left hardly any trace in our modern law.
The influence of commercial interests in first limiting and then abolishing the right of reprisals shows us the source from which we may expect to find some development of the rules for the regulation of the peaceful intercourse of different nations. the relations of the great trading centres of Italy and South Western Europe many of the doctrines of our modern international law originated. Just as we find in them some of the germs of the law of Neutrality, and some regulation of Reprisals,8 so we find the beginnings of the conception of the Balance of Power, the institution of permanent embassies, and the consequent 2 Below 73-75, 98.
1 Nys, op. cit. 63.
3" Dico esse odiosissimum hoc jus literarum markæ, quod merito divinissimus noster rex abominatur: per quod geretur latrocinium verius quam bellum: contra inermes et innoxios mercatores et alios ab aciebus longe positos," Lansdowne MSS. vol. 139, cited Nys, op. cit. 77.
4 De Jure Belli et Pacis iii 2. 2, "Est igitur hoc inter jura illa quæ Justinianus ait usu exigente et humanis necessitatibus agentibus humanis constituta. ita hoc naturæ repugnat, ut non more et tacito consensu induci potuerit."
Alioqui magna daretur injuriis faciendis licentia, cum bona imperantium sæpe non tam facile possint in manus venire, quam privatorum qui plures sunt," ibid. Ibid iii 2. 1; the custom was practically obsolete by the end of the seventeenth century, Nys, op. cit. 77. 8 Below 73-75.
7 Above 35. Nys, op. cit. 167-168, "Cinq grands Etats-Florence, Naples, Milan, le patrimoine de saint Pierre, Venise, etablissent un systeme de balance politique."
development of the art of diplomacy. Many institutions which have played a large part in the making of modern international law could not arise till Western Europe had ceased to be one Holy Roman Empire, and had come to be a collection of territorial states. But the fact that Italy had anticipated this new organization sometime before the Reformation finally broke up the theoretical basis upon which the Holy Roman Empire rested, and the fact that Italy was more highly civilized than the rest of Europe, caused the Italian ideas to influence the growth of modern international law in much the same way as they influenced the growth of modern commercial and maritime law. They were a useful model when, in the sixteenth century, mediæval ideas as to international relations required to be modified to suit the needs of independent territorial states.
The Necessities of the Territorial State
I have already said something of the new political ideas which came with the rise of the territorial state. We have seen that this new political phenomenon was accompanied by large changes in men's religious and intellectual outlook, and by a great enlargement of the boundaries of the known world. All these changes affected the relations of the various states of Europe, and added large new chapters to the laws and customs which regulated them. Here I shall, in the first place, indicate briefly the nature of some of these problems, and, in the second place, give some concrete instances of the manner in which some of them were solved by English statesmen and lawyers. This history will show us that it was the actual facts of the political life of Europe which led the lawyers of many countries to perceive that a new branch of law had arisen, and to endeavour, by a combination of mediæval theories and modern practice, to set it forth in systematic form.
(i) The nature of the new problems.
Of these new problems I shall only indicate briefly a few of the most important.
In the Middle Ages, when embassies were few and temporary, when the position of the nascent territorial state was not fully appreciated, the positions of a foreign sovereign and an ambassador were by no means clearly defined. We find a sovereign exercising acts of jurisdiction outside his own country-e.g. Richard I. hanged thieves on his way to Palestine, and Edward I., while staying at Paris, was allowed to exercise jurisdiction over a thief caught in his hotel.1 On the other hand, acts of hostility were committed
1 Nys, op. cit. 297.
3 Vol. iv 190-217.
2 Below 63-65.
against foreign sovereigns by their personal enemies, though no state of war existed-e.g. Richard I. was seized by Leopold of Austria and imprisoned on his way home from Palestine; and Henry IV. detained Prince James of Scotland in 1405.1 The ideas, firstly, that the person of the sovereign is always sacred, and, secondly, that the jurisdiction of a sovereign within his own dominions is exclusive, are at the root of the modern law. The foreign sovereign is immune from all interference by legal process or otherwise, but he can exercise no active functions outside his own territory. Similarly the universal prevalence of permanent embassies in the sixteenth century made it necessary to go beyond the vague phrases about the sanctity of the ambassador's person which had passed current in the Middle Ages, and to define his position in relation to the law of the country to which he was accredited. It was only gradually that the extent of his immunity from the process and jurisdiction of that country's courts was defined by the help of the ideas, firstly, that he represents the person of his sovereign, and secondly that, by a legal fiction, he, his dwelling-place, and his suite, are regarded as being outside the territory of the state to which they are accredited.3
These permanent embassies, which gave rise to the modern law as to the position of an ambassador, also gave rise to the diplomatic organization of modern times. The Italian cities, and especially Venice, pointed the way to the organization of a regular "corps diplomatique"; and the reports of these Venetian ambassadors are one of the most important sources of modern European history. Thus, as Nys has said, "Italy introduced the civilized world to international life." Gradually diplomacy became a separate art, and the profession of the diplomatist a separate, sometimes almost a hereditary, profession." Questions of precedence as between the ambassadors of different princes, and the gradations of rank between different classes of diplomatic agents," I gave rise to frequent disputes, to a series of monographs
1 Walker, op. cit. 114.
2 Below 45, 49.
Below 45-46; "Deux fictions, celle de la représentation du monarque par l'ambassadeur et celle de l'exterritorialité du ministre public contribuent à une exagération des privilèges des ministres publics, exagération qui trouve peut-être une justification historique dans la considération que l'imperfection des autorités locales necessitait une solide protection contre les désordres populaires ou contre les caprices du despotisme," Nys, op. cit. 341.
See ibid 297-312, for an account of the Venetian organization; ibid 316-325 for an account of the beginnings of a similar organization in the principal countries of Western Europe.
5 Ibid 313.
6" On remarque que, dans certains pays monarchiques, la carrière diplomatique devient l'apanage de quelques grandes familles. Il n'y a d'exclusion pour aucun talent, mais on voit de véritables dynasties se transmettre de père en fils l'art de négocier," ibid 325.
7 Walker, op. cit. 174-176.