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of the feeble beginnings, the slow and interrupted progress, and final and triumphant success, of the principles of public right. Valin imputes the barbarous custom of plundering shipwrecked property, not merely to the ordinary cupidity for gain, but to a more particular and peculiar cause. The earliest navigators were almost all pirates, and the inhabitants of the coasts were constantly armed against their depredations, and whenever they had the misfortune to be shipwrecked, they were pursued with a vindictive spirit, and deemed just objects of punishment. The practice of plundering shipwrecks has been traced to the Rhodians, and from them it passed to the Romans; and the efforts to restrain it were very feeble and gradual, and mixed with much positive injustice. The goods cast ashore first belonged to the fortunate occupant, and then they were considered as belonging to the state. This change from private to public appropriation of the property, rendered a returning sense of right and duty more natural and easy. The Emperors Hadrian and Antoninus had the honour of having first renounced the claim to shipwrecked property, in favour of the rightful owner. But the inbuman customs on this subject were too deeply rooted to be eradicated by the wisdom and vigilance of the Roman lawgivers. The laws in favour of the unfortunate were disregarded by succeeding emperors, and when the empire itself was overturned by the northern barbarians, the laws of humanity were swept away in the tempest, and the continual depredations of the Saxons and Normans, induced the inhabitants of the western coasts of Europe, to treat all navigators who were thrown by the perils of the sea upon their shores, as pirates, and to punish them as such, without inquiry or discrimination.
The Emperor Andronicus Comnenus, who reigned at Constantinople in 1183, made great efforts to repress this inhuman practice. His edict was worthy of the highest praise, but it ceased to be put in execution after his death. Pillage had become an inveterate moral pestilence. It required something more effectual than papal bulls, and the excommunication of the church, to stop the evil. The revival of commerce, and with it a sense of the value of order, commercial ordinances, and particular conventions and treaties between sovereigns, contributed gradually to suppress this criminal practice, by rendering the regulations on that subject a branch of the public law of nations. Valin says, it was reserved to the ordinances of Lewis XIV. to put the finishing stroke towards the extinction of this species of piracy, by declaring that shipwrecked persons and property were placed under the special protection and safeguard of the crown, and the punishment of death without
a Com. sur Ord. tom. 2. 579-587. 6 Vinnius in Inst. lib. 2. tit. 1. art. 47. pote 5. Valin ub. sup.
hope of pardon, was pronounced against the guilty. Treatment of prisoners.
The progress of moderation and humanity in the treatment of prisoners, is to be imputed to the influence of conventional law, establishing a general and indiscriminate exchange of prisoners, rank for rank, and giving protection to cartel ships for that purpose. It is a practice of no very ancient introduction among the states of Europe, and it was not of very familiar use in the age of Grotius, and it succeeded the elder practice of ransom. From the extracts which Dr. Robinson' gives from Bellus, who was a judge or assessor in the armies of Charles V. and Philip II., he concludes, that no practice so general, and so favourable to the conduct of prisoners, as a public exchange in time of war, was known in the 16th century. The private interest of the captor in his prisoner, continued through that period; and the practice of ransom, founded on the right of property claimed by the captor, succeeded to the Greek and Roman practice of killing prisoners, or selling them as slaves.
The custom of admitting resident ministers at each sovereign's court, was another important improvement in the security and facility of national intercourse ; and this led to the settlement of a great question, which was very frequently discussed in the 15th and 16th centuries, concerning the inviolability of ambassadors. It came at last to be a definitive principle of public law, that ambassadors were exempted from all local jurisdiction, civil and criminal; though Lord Coke considered the law in his day to be, that if an ambassador committed any crime which was not merely malum prohibitum, he lost his privilege and dignity as an ambassador, and might be punished as any other private alien, and that he was even bound to answer civilly for his contracts that were good jure gentium.“ Thus stood the law of nations at the
Admission of ambassadors.
a 3 Rob. Rep. Appendix A.
of Grotius. It had been rescued, to a very considerable extent, from the cruel usages and practices of the northern barbarians. It had been restored to some degree of science and civility by the influence of Christianity, the study of the Roman law, and the spirit of commerce. It had grown greatly in value and efficacy, from the intimate connexion and constant intercourse of the modern nations of Europe, who were derived from a common origin, and were governed by similar institutions, manners, laws, and religion. But it was still in a state of extreme disorder, and its principles were little known, and less observed. It consisted of a series of undigested precedents, without order or authority. Grotius has, therefore, been justly considered as the father of the law of nations; and he arose like a splendid luminary, dispelling darkness and confusion, and imparting light and security to the intercourse of nations. It is said by Barbeyrac, that Lord Bacon's works first suggested to Grotius the idea of reducing the law of nations to the certainty and precision of a regular science. Grotius has himself fully explained the reasons which led him to undertake his necessary, and most useful, and immortal work. He found the sentiment universally prevalent, not only among the vulgar, but among men of reputed wisdom and learning, that war was a stranger to all justice, and that no commonwealth could be governed without injustice. The saying of Euphemus in Thucydides, he perceived to be in almost every one's mouth, that nothing which was useful was unjust. Many persons, who were friends to justice in private life, made no account of it in a whole nation, and did not consider it as applicable to rulers. He perceived a horrible licentiousness and cruelty in war, throughout the Christian world, of which barbarians might be ashamed. When men took up arins, there was no longer any reverence for law either human or divine, and it seemed as if some malignant fury was sent forth into the world, with a general license for the commission of all manner of wickedness and crime.a
a 4 Inst. 153.
b Pref. to Puff. sec. 29.
c Proleg. De Jur. Bel.
The object of Grotius was to correct these false theories and pernicious maxims, by showing a community of sentiment among the wise and learned of all nations and ages, in favour of the natural law of morality. He likewise undertook to show that justice was of perpetual obligation, and essential to the well being of every society, and that the great commonwealth of nations stood in need of law, and the observance of faith, and the practice of justice. His object was to digest in one systematic code, the principles of public right, and to supply authorities for almost every case in the conduct of nations; and he had the honour of reducing the law of nations to a system, and of producing a work which has been resorted to as the standard of authority in every succeeding age. The more it is studied, the more will our admiration be excited at the consummate execution of the plan, and the genius and erudition of the author. There was no system of the kind extant, that had been produced by the ancient philosophers of Greece, or by the primitive Christians. The work of Aristotle on the rights of war, and the writings of the Romans on their fecial law, had not survived the wreck of ancient literature; and the treaties of some learned moderns on public law, were most imperfect, and exceedingly defective in illustrations from history, and in omitting to place their decisions upon the true foundations of equity and justice. Grotius, therefore, went purposely into the details of history and the usages of nations, and he resorted to the testimony of philosophers, historians, orators, poets, civilians, and divines, because they were the materials out of which the science of morality was formed ; and when many men, at different times and places, unanimously affirmed the same thing for truth, it ought to be ascribed to some universal cause. His unsparing citation of authorities, in support of what the present age may consider very plain and undisputed truths, has been censured by many persons as detracting from the value of the work. On the other hand, the support that he gave to those truths, by the concurrent testimony of all nations and ages, has been justly supposed to contribute to that reverence for the principles of international justice, which has since distinguished the European nations.
a Proleg. sec. 3. and 28.
Among the disciples of Grotius, Puffendorf has always puffendorf. held the first rank. His work went more at large into the principles of natural law, and combined the science of ethics with what may be more strictly called the law of nations. It is copious in detail, but of very little practical value in teaching us what the laws of nations is at this day. It is rather a treatise on moral philosophy than on international law; and the same thing may be said of the works of Wolfius, Burlemaqui, and Rutherforth. The summary of the law of nations, by Professor Martens, is a treatise of greater practical utility, but it is only a very partial view of the system, being confined to the customary and conventional law of the modern nations of Europe. Bynkershoeck's
Bynkertreatise on the law of war has always been received as of shoock. great authority, on that particular branch of the science of the law of nations, and the subject is ably and copiously
a Proleg. of Grot. sec. 36 37, 38.
b Omni in re consensio omnium gentium lex naturæ putanda est. Cic. Tuscul. Quæsl. lib. 1. ch. 13. VOL. I.