gers and enemies as nearly synonymous, and considered foreign persons and property as lawful prize. Their laws of war and peace were barbarous and deplorable. So little were mankind accustomed to regard the rights of persons or property, or to perceive the value and beauty of public order, that in the most enlightened ages of the Grecian republics, piracy was regarded as an honorable employment. There were powerful Grecian states that avowed the practice of piracy; and the fleets of Athens, the best disciplined and most respectable naval force in all antiquity, were exceedingly addicted to piratical excursions. It was the received opinion, that Greeks, even as between their own cities and states, were bound to no duties, nor by any moral law, without compact; and that prisoners taken in war, had no rights, and might lawfully be put to death, or sold into perpetual slavery, with their wives and children. (a) *There were, however, many feeble efforts, and some suc- *5 cessful examples, to be met with in Grecian history, in favor of national justice. The object of the Amphictyonic council was to institute a law of nations among the Greeks, and settle contests between Grecian states by a pacific adjustment. It was also a law of nations among them, and one which was very religiously observed, to allow to the vanquished the privilege of burying their own dead, and to grant the requisite truce for that purpose. Some of these states had public ministers resident at the courts of others, (b) and there were some distinguished instances of great humanity shown to prisoners of war. During a cessation of arms in the course of the Peloponnesian war, Athens and Sparta agreed to an exchange or mutual surrender of prisoners. (c) The sound judgment and profound reflections of Aristotle, naturally raised his sense of right above the atrocious maxims and practices of his age, and he perceived the 5. (a) Thucydides, b. 1, sec. Mitford's History of Greece, 8vo. edit. vol. ii. 352, vol. vi. 107, 135, et passim. Isocrates, Orat. Panathe. Opera, edit. Wolfius, p. 635.— Barbari natura essent hostes. Ward's Inquiry into the History of the Law of Nations, vol. i. 177-183. Goguet's Origine des Loix, &c. part 2, b. 5. Grotius, b. 3, c. 7. Justin's Hist. 1, 43, c. 3. Latrocinium maris gloriosum habebatur. Potter's Antiquities of Greece, b. 3, c. 10 and 12, b. 4, c. 21. (b) Mitford's History, vol. v. 378, 379. (c) Thucyd. 1, 5, c. 18. injustice of that doctrine of Grecian policy, that, by the laws of war, the vanquished became the absolute property of the victor. "Wise men," he observed, "entertained different opinions upon that subject. Some considered superiority as a proof of virtue, because it is its natural effect, and they asserted it to be just that the victors should be masters of the vanquished; whilst others denied the force of the argument, and maintained that nothing could be truly just which was inconsistent with humanity." (a) He then proceeded to weaken by argument the false foundations on which the law of slavery, by means of capture in war, was established; and though he does not write on the subject very distinctly or forcibly, it seems to be quite apparent that his convictions were against the law. In ancient Rome. The Romans exhibited much stronger proofs than the Greeks of the influence of regular law, and there was a marked difference between those nations in their in*6 tercourse *with foreign powers. It was a principle of the Roman government, that none but a sworn soldier could lawfully fight the enemy; and in many instances the Romans showed that they excelled the Greeks, by the observance of better principles in their relations with other nations. The institution of a college of heralds or priests, charged with the fecial law relating to declarations of war and treaties of peace, was evidence of a people considerably advanced in the cultivation of the law of nations as a science; (b) and yet with what little attention they were accustomed to listen to the voice of justice and humanity, appears but too plainly in their haughty triumphs, their cunning interpretation of treaties, their continual violation of justice, their cruel rules of war, and the whole series of their wonderful successes, in the steady progress of the conquest of the world. The perusal of Livy's magnificent history of the rise and progress of the Roman power, excites our constant admiration of the vigor, the skill, the valor, and the fortitude of the Roman people; yet, notwithstanding the splendor of the story, (a) Gillies's Aristotle's Politics, vol. ii. 35, 36. Cicero de Off. 1, 11. The colle (b) Livy, b. 1, c. 32. Ib. b. 9, c. 5. Ib. 36, c. 3. gium fecialium was instituted, according to legendary story, as early as the reign of Numa Pompilius, and the efficacy of that institution on the rights of war is declared by Cicero, belli æquitas sanctissime feciali populi Romani jure prescripta est. and the attractive simplicity of the writer, no reader of taste and principle can well avoid feeling a thorough detestation of the fierce spirit of conquest which it displays, and of the barbarous international law and customs of the ancients. A purer system of public morals was cultivated, and insensibly gained ground, in the Roman state. The cruelties of Marius in the Jugurthan war, when he put part of the inhabitants of a Numidian town to the sword, and sold the rest for slaves, were declared by Sallust (a) to be a proceeding contra jus belli. At the zenith of the Roman power, the enlarged and philosophical mind of Cicero was struck with extreme disgust at the excesses in which his countrymen indulged their military spirit. He justly discerned that mankind were not intended, by the law and constitution of their nature, as rational and social beings, to live in eternal enmity with each other; and he recommends, in one of the most beautiful and perfect ethical codes to be met with among the remains of the ancients, the virtues *7 of humanity, liberality, and justice towards other people, as being founded in the universal law of nature. Their ancestors, he observed, applied the term enemy to that man whom they regarded merely as a foreigner; but to deny to strangers the use and protection of the city, would be inhuman. To overturn justice by plundering others, tended to destroy civil society, as well as violate the law of nature and the institutions of Heaven; and by some of the most happy illustrations and pathetic examples, Cicero vindicated the truth, and inculcated the value of the precept, that nothing was truly useful which was not honest. (b) In the latter ages of the Roman empire, when their municipal law became highly cultivated, and adorned by philosophy and science, the law of nations was recognized as part of the natural reason of mankind. Quod vero naturalis ratio inter omnes homines constituit, id apud omnes gentes peræque custoditur, vocatur que jus gentium, quasi quo jure omnes gentes utuntur. (c) The Roman law was destined to obtain the honorable distinction of becoming a national guide to future ages, (a) Sal. Jug. ch. 91. (b) Off. b. 1, sec. 12; b. 3, sec. 5, 6, 7, 11. De Legibus, b. 1. (c) Dig. 1, 1, 9. Inst. 1, 2, 1. and to be appealed to by modern tribunals and writers, in cases in which usage and positive law are silent, as one authoritative evidence of the decisions of the law of nations. It must be admitted, however, that the sages from whose works the Pandects were compiled, speak very indistinctly and imperfectly on the subject of national law. They must be read with much discrimination, as Grotius observed, (a) for they often call that the law of nations which prevailed, and perhaps by casual consent, among some nations only; and many things which belonged to the law of nations they treated indiscriminately with matters of mere municipal law. The Roman juris prudence, in its most cultivated state, was a very imperfect *8 transcript of the precepts of natural *justice on the subject of national duty. It retained strong traces of ancient rudeness, from the want of the Christian system of morals, and the civilizing restraints of commerce. We find the barbarous doctrine still asserted, that prisoners of war became slaves jure gentium; (b) and even in respect to foreign nations with whom the Romans were at peace, but had no particular alliance, it is laid down in the digests, that whoever passed from one country to the other became immediately a slave. Nam si cum gente aliqua neque amicitiam, neque hospitium, neque fœdus amicitiæ causa factum habemus, hi hostes quidem non sunt: quod autem ex nostro ad eos pervenit, illorum fit: et liber homo noster ab eis captus, servus fit et eorum. Idemque est, si ab illis ad nos aliquid perveniat. (c) It is impossible to conceive of a rule of national law more directly calculated to destroy all commercial intercourse, and to maintain eternal enmity between nations. Law of Na middle ages. The irruption of the northern tribes of Scythia and tions in the Germany, overturned all that was gained by the Roman law, annihilated every restraint, and all sense of national obligation; and civil society relapsed into the violence and confusion of the barbarous ages. Mankind seemed to be doomed to live once more in constant distrust or hostility, and to regard a stranger and an enemy as almost the same. Piracy, rapine, and (a) Proleg. sec. 53. (b) Inst. 1, 3, 4. Dig. lib. 1, tit. 5, sec. 5, and lib. 49, tit. 15, ch. 12, sec. 1. (c) Dig. 49, 15, 5, 2. ferocious warfare deformed the annals of Europe. The manners of nations were barbarous, and their maxims of war cruel. Slavery was considered as a lawful consequence of captivity. Mr. Barrington (a) has, indeed, cited the laws of the Visigoths, Saxons, Sicilians, and Bavarians, as restraining, by the severest penalties, the plunder of shipwrecked goods, and the abuse of shipwrecked seamen, and as extending the rights of hospitality to strangers. But, notwithstanding a few efforts 9 of this kind to introduce order and justice, and though municipal law had undergone great improvement, the law of nations remained in a rude and uncultivated state, down to the period of the 16th century. In many instances, shipwrecked strangers were made prisoners, and sold as slaves, without exciting any complaint, or offending any public sense of justice. Numerous cases occurred of acts of the greatest perfidy and cruelty towards strangers and enemies. Prisoners were put to death for their gallantry and brave defence in war. There was no reliance upon the word and honor of men in power. Reprisals and private war were in constant activity. Instances were frequent of the violation of embassies, of the murder of hostages, the imprisonment of guests, and the killing of heralds. The victor in war had his option in dealing with his prisoners, either to put them to death, or reduce them to slavery, or exact an exorbitant ransom for their deliverance. So late as the time of Cardinal Richelieu, it was held to be the right of all nations to arrest strangers who came into the country without a safe-conduct. (b) The Emperor Charlemagne made distinguished efforts to improve the condition of Europe, by the introduction of order, and the propagation of Christianity; and we have cheering examples during the darkness of the middle ages, of some recognition of public law by means of alliances, and the submission of disputes to the arbitrament of a neutral power. Mr. Ward enumerates five institutions, existing about the period of the 11th century, which made a deep impression upon Europe, and contributed, in a very essential degree, to improve the law of nations. (c) These institutions were the feudal system, the concurrence of Europe (a) Observations on the Statutes, chiefly the more ancient, p. 22. (c) Ib. vol. i. 322-328. |