第32章

During the period through which the popular ideas on thesubject of sovereignty were undergoing this remarkable change,the system which stood in the place of what we now callInternational Law was heterogeneous in form and inconsistent inthe principles to which it appealed. Over so much of Europe aswas comprised in the Romano-German empire, the connection of theconfederate states was regulated by the complex and as yetincomplete mechanism of the Imperial constitution; and,surprising as it may seem to us, it was a favourite notion ofGerman lawyers that the relations of commonwealths, whetherinside or outside the empire, ought to be regulated not by theJus Gentium, but by the pure Roman jurisprudence, of which Caesarwas still the centre. This doctrine was less confidentlyrepudiated in the outlying countries than we might have supposedantecedently; but, substantially, through the rest of Europefeudal subordinations furnished a substitute for a public law;and when those were undetermined or ambiguous, there lay behind,in theory at least, a supreme regulating force in the authorityof the head of the Church. It is certain, however, that bothfeudal and ecclesiastical influences were rapidly decaying duringthe fifteenth, and even the fourteenth century,. and if weclosely examine the current pretexts of wars, and the avowedmotives of alliances, it will be seen that, step by step with thedisplacement of the old principles, the views afterwardsharmonised and consolidated by Ayala and Grotius were makingconsiderable progress, though it was silent and but slow. Whetherthe fusion of all the sources of authority would ultimately haveevolved a system of international relations, and whether thatsystem would have exhibited material differences from the fabricof Grotius, is not now possible to decide, for as a matter offact the Reformation annihilated all its potential elementsexcept one. Beginning in Germany it divided the princes of theempire by a gulf too broad to be bridged over by the Imperialsupremacy, even if the Imperial superior had stood neutral. He,however, was forced to take colour with the church against thereformer; the Pope was, as a matter of course, in the samepredicament; and thus the two authorities to whom belonged theoffice of mediation between combatants became themselves thechiefs of one great faction in the schism of the nations.

Feudalism, already enfeebled and discredited as a principle ofpublic relations, furnished no bond whatever which was stableenough to countervail the alliances of religion. In a condition,therefore, of public law which was little less than chaotic,those views of a state system to which the Roman jurisconsultswere supposed to have given their sanction alone remainedstanding. The shape, the symmetry and the prominence which theyassumed in the hands of Grotius are known to every educated man;but the great marvel of the Treatise "De Jure Belli et Pacis,"was its rapid, complete, and universal success. The horrors ofthe Thirty Years' War, the boundless terror and pity which theunbridled license of the soldiery was exciting, must, no doubt,be taken to explain that success in some measure, but they do notwholly account for it. Very little penetration into the ideas ofthat age is required to convince one that if the ground plan ofthe international edifice which was sketched in the great book ofGrotius had not appeared to be theoretically perfect, it wouldhave been discarded by jurists and neglected by statesmen andsoldiers.

It is obvious that the speculative perfection of the Grotiansystem is intimately connected with that conception ofterritorial sovereignty which we have been discussing. The theoryof International Law assumes that commonwealths are, relativelyto each other, in a state of nature; but the component atoms of anatural society must, by the fundamental assumption, be insulatedand independent of each other. If there be a higher powerconnecting them, however slightly and occasionally by the claimof common supremacy, the very conception of a common superiorintroduces the notion of positive law, and excludes the idea of alaw natural. It follows, therefore, that if the universalsuzerainty of an Imperial head had been admitted even in baretheory, the labours of Grotius would have been idle. Nor is thisthe only point of junction between modern public law and thoseviews of sovereignty of which I have endeavoured to describe thedevelopment. I have said that there are entire departments ofinternational jurisprudence which consist of the Roman Law ofProperty. What then is the inference? It is, that if there hadbeen no such change as I have described in the estimate ofsovereignty -- if sovereignty had not been associated with theproprietorship of a limited portion of the earth, had not, inother words, become territorial -- three parts of the Grotiantheory would have been incapable of application.

Ancient Law

by Henry Maine

1861