person ever come back to his country, he was at once considered a free man again according to the so-called jus postliminii. An exception was made as regards the ambassadors. They were always considered inviolable, and whoever violated them was handed over to the home State of those ambassadors to be punished according to discretion.

Different were the relations when a treaty of friendship existed. Persons and goods coming from one country into the other stood then under legal protection. So many foreigners came in the process of time to Rome that a whole system of law sprang up regarding these foreigners and their relations with Roman citizens, the so-called jus gentium in contra-✓ distinction to the jus civile. And a special magistrate, the praetor peregrinus, was nominated for the administration of that law. Of such treaties with foreign nations there were three different kinds, namely, of friendship (amicitia), of hospitality (hospitium), or of alliance (foedus). I do not propose to go into details about them. It suffices to remark that, although the treaties were concluded without any such provision, notice of termination could be given. Very often these treaties used to contain a provision according to which future controversies could be settled by arbitration of the so-called recuperatores.

Very precise legal rules existed as regards war and peace. Roman law considered war a legal institution. There were four different just reasons for war, namely: (1) Violation of the Roman dominion; (2) violation of ambassadors; (3) violation of treaties; (4) support given during war to an opponent by a hitherto friendly State. But even in such cases war was only justified if satisfaction was not given by the Foreign State. Four fetiales used to be sent as

2

No need

for a Law

of Nations during the Middle Ages.

ambassadors to the foreign State who asked for satisfaction. If such satisfaction was refused, war was formally declared by throwing a lance from the Roman frontier into the foreign land by one of the fetiales. For warfare itself no legal rules existed, but discretion only, and there are examples enough of great cruelty on the part of the Romans. Legal rules existed again for the end of war. War could be ended, first, through a treaty of peace, which was then always a treaty of friendship. War could, secondly, be ended by surrender (deditio). Such surrender spared the enemy their lives and property. War could, thirdly and lastly, be ended through conquest of the enemy's country (occupatio). It was in this case that the Romans could act according to discretion with the lives and the property of the

enemy.

And

From this sketch of their rules concerning external relations, it becomes apparent that the Romans gave to the future the example of a State with legal rules for its foreign relations. As the legal people par excellence, the Romans could not leave their international relations without legal treatment. though this legal treatment can in no way be compared to the modern International Law, yet it constitutes a contribution to the Law of Nations of the future, in so far as its example furnished many arguments to those to whose efforts we owe the very existence of our modern Law of Nations.

§ 41. The Roman Empire gradually absorbed the whole civilised ancient world, so far as it was known to the Romans. They did not know of any independent civilised States outside the borders of their empire. There was, therefore, neither room nor need for an International Law as long as this empire

existed. It is true that at the borders of this worldempire there were always wars with barbarous tribes, but these wars gave opportunity for the practice of a few rules and usages only. And matters did not change when under Constantine the Great (313-337) the Christian faith became the religion of the empire and Byzantium its capital instead of Rome, and, further, when in 395 the Roman Empire was divided into the Eastern and the Western Empire. This Western Empire disappeared in 476, when Romulus Augustus, the last emperor, was deposed by Odoacer, the leader of the Germanic soldiers, who made himself ruler in Italy. The land of the extinct Western Roman Empire came into the hands of different peoples, chiefly of Germanic extraction. In Gallia the kingdom of the Francs springs up in 486 under Chlodovech the Merovingian. In Italy, the kingdom of the Ostrogoths under Theoderich the Great, who defeated Odoacer, rises in 493. In Spain the kingdom of the Visigoths appears in 507. The Vandals had, as early as in 429, erected a kingdom in Africa, with Carthage as its capital. The Saxons had gained a footing in Britannia already in 449. All these peoples were barbarians in the strict sense of the term. Although they had adopted Christianity, it took hundreds of years to raise them up to the standard of a more advanced civilisation. And likewise hundreds of years passed before different nations came to light out of the amalgamation of the various peoples that had conquered the old Roman Empire with the residuum of the population of that empire. It was in the eighth century that matters became more settled. Charlemagne built up his vast Frankish Empire, and was, in 800, crowned Roman Emperor by Pope Leo III. Again the whole

The Fif-
Sixteenth

world seemed to be one empire, headed by the Emperor as its temporal, and by the Pope as its spiritual master, and for an International Law there was therefore no room and no need. But the Frankish Empire did not last long. According to the Treaty of Verdun, it was, in 843, divided into three parts, and with that division the process of development set in, which led gradually to the rise of the different States of Europe.

In theory the Emperor of the Germans remained for hundreds of years to come the master of the world, but in practice he was even not master at home, as the German Princes step by step succeeded in establishing their independence. And although theoretically the world was well looked after by the Emperor as its temporal and the Pope as its spiritual head, there were constantly treachery, quarrelling, and fighting going on. War practice was the most cruel possible. It is true that the Pope and the Bishops succeeded sometimes in mitigating such practice, but as a rule there was no influence of the Christian teaching visible.

§ 42. The necessity for a Law of Nations did not arise until a multitude of States absolutely indepenCentury. /dent of one another had successfully established themselves. The process of development, starting from the Treaty of Verdun of 843, reached that climax with the reign of Frederic III., Emperor of the Germans from 1440 to 1493. He was the last of the emperors crowned in Rome by the hands of the Popes. At that time Europe was in fact divided up into a great number of independent States, and thenceforth a law was needed to deal with the international relations of these Sovereign States. Six factors of importance prepared the ground for

the growth of principles of a future International Law.

(1) There were first the Civilians and the Canonists. Roman Law was in the beginning of the twelfth century brought back to the West through Irnerius, who taught this law at Bologna. He and the other glossatores and post-glossatores considered Roman Law the ratio scripta, the law par excellence. These Civilians maintained that Roman Law was the law of the civilised world ipso facto through the emperors of the Germans being the successors of the emperors of Rome. Their commentaries to the Corpus Juris Civilis touch upon many questions of the future International Law which they discuss from the basis of Roman Law.

The Canonists, on the other hand, whose influence was unshaken till the time of the Reformation, treated from a moral and ecclesiastical point of view many questions of the future International Law concerning war.1

(2) There were, secondly, collections of Maritime Law of great importance which made their appearance in connection with international trade. From the eighth century the world trade which had totally disappeared in consequence of the downfall of the Roman Empire and the destruction of the old civilisation during the period of the Migration of the Peoples, began slowly to develop again. The sea trade specially flourished and fostered the growth of rules and customs of Maritime Law, which were collected into codes and gained some kind of international recognition. The more important of these collections are the following: The Consolato del Mare, a private collection made at Barcelona in Spain 1 See Holland, Studies, pp. 40-58; Walker, History, I. pp. 204-212.