INTERNATIONAL LAW—KENNEDY'S KIILSEAN ESSAY; TWISS'S INTRODUCTORY LECTURES. * Mn. KENNEDY'S linlsean
essay on The Influence of Christianity upon National Law has the merits of treating its subject with a pregnant brevity and of not reading like a prize composition. A clear arrangement facilitates the apprehension of the subject ; the treatise conveys a good idea of the nature, rise, progress and improvement of international law ; the reading of the endear is extensive and its essence well presented. The literary history
i of international law might have borne fuller development—indeed, it is hardly touched after Grotius. There is a fault, perhaps im- possible to avoid under the circumstances if the candidate would succeed. The prospect of a prize has the effect of an advocate's fee, and makes the writer less of an inquirer after philosophical truth than a pleader for some partial view of it. Thus in the present essay, the influence of Christianity is made too much of; it is not only pressed into the author's service on every occasion, but other influences are altogether overlooked or not sufficiently allowed for. If the Christian influence was so great as the writer would lead the reader to suppose, (for he does not so directly affirm it,) the operation should have been more prompt and uniform, especially when the power of the Romish Church is considered. But more than fifteen hundred years elapsed be- fore international law was recognized, even by scholars, as a prac- tical branch of learning. The operation depends very much less on the mere profession of Christianity than on a variety of other circumstances. The modern Greeks and Russians make profes- sions of Christianity enough ; but they are not very strict observ- ers of the established laws of war, much less of the common prac- tices of humanity. The same may be said of the Spaniards of the olden time, and of many religious wars, whether waged against the Infidel or between Christians. In practice, the spirit in which the laws of war are exercised depends greatly upon the indi- viduals who wage the war. Some Saracen chiefs even during the dark ages and under the provocation of the C;usades, have exhibited a spirit of humanity that would be esteemed remarkable even in our days. Upwards of sixteen centuries after Christ, and long after a system of international law had been received, Louis the Fourteenth devastated the Palatinate.
The truth is, that the spirit or theory of international law rests upon the manners and civilization of a people. These get softer and milder as a nation advances in numbers and wealth. The Greeks after the Roman conquests might be a more debased people than their ancestors, but they were more humane than the heroic race which sacrificed human victims. Opinion, though it must have been seared by the civil wars, was milder in the age of Au- gustus than in the good old times" of Rome, or even when Numantia and Carthage were destroyed. Opinion also expands with greater knowledge and wider intercourse : barbarism and ignorance look upon the stranger as upon a lawful prey, like the old Roman or the modern wrecker. No doubt, Christianity has had very great influence on modern as opposed to ancient society ; and so far its effects have been operative on international law, but mostly in an indirect mode as it influenced progress ; and its operation is perhaps less in this branch of morality than in any other, from the nature of the case.
A premature truth is a barren truth ; it is good seed sown on a rock. Mr. Kennedy uses the common argument that Chris- tianity operated by its maintenance of the oneness of the human race. In practice this goes for little. There was no international law as a system till the establishment of the balance of power ; because there can be none as law save between states that have some parity in manners' opinions, and ideas. Neither does much international law exist now save between Christian nations of European blood. The Emperor Nicholas would brook no inter- ference in his dealings with Turkey—she was beyond the pale. Nobody interferes with the British in India, where international " comity " is not very strictly observed. The same may be said of the United States of America with the Indians and Spanish colonists ; and Indeed with all European powers in dealing with "savages." It may be said, too, that international law, like other law, is much better kept when parties have the means of defending themselves, and when "proceedings" promise cost and trouble with uncertain success. The first systematic presentation of the law of nations was by Grotius, less than a century after the idea of the balance of power was practically considered, and much less than a century after Europe was constituted in something like its present divisions, and Muscovy. connected by treaty with the West. The funda- mental principles of the laws of war do not seem to have been originated by priests or scholars, but by soldiers. In the thir- teenth century, St. Louis, on his cleatdied, nearly reached the principle. In the following century, Da Guese,lin attained it as far as persons. About the same time, a treatise appeared on the subject ; both the dying words of Du Gueselin and the leen- bmtions of the writer being prompted, perhaps,' by the useless miseries inflicted by the English wars in France.
• The Influence of C7iristianity upon International Law. The 11u1sean Prize Tway in the Unirersity of Cambridge for the Year Mt By a M. Kennedy, B.A., of Gonville and Caius College. Published by Macmillan, Cambridge.
Two Introductory Lectures on the Science of International Law. By Travers Twigs, D.C.L., Regius Professor of Civil Law in the University of @ford, and Advocate in Doctors' Commons. Published by Longman and Co. "Similar to these was the advice of St. Louie to his successor, on his deathbed. To take heed not to go to war without deep reflection, and un- less of necessity ; and then to take care that neither the clergy nor those who had not injured him should suffer ; and Du Guesclin, when dying, en- joined his followers, Souvenez vous que putout oil rOUB ferez la guerre, les ecclesiastiques, le pauvre peuple lea femmes et lea enfants, ne sont point vous ennemis, que vous no poreez lea armes pie pour lea defendre et les proteer.' "The Manual entitled L'Arbre des Batailles, written by the Prior Ho- nore Bonner in the reign of Charles the Fifth of France, one of the earliest professed treatises on a portion of international law contains many rules of -tatians of war, which the general prevalence of feelings of this nature had caused to be observed. In the 84th chapter it is stated, that battles should be avoided if possible on holy days, though those who might be at-
tacked on such days were pe j
rfectly ustified in .defending themselves. In the 86th chapter, the question whether those who fall in battle are saved, is discussed at length. The fist presumption is that they are nut; for that being in anger and evil passions at the time of their death, they die in a state of mortal sin. Three conclusions, however, are drawn : 1st, that those who die in a just war undertaken for the faith, and are not in a state of mortal sin, and 2dly, those who die in a just war for a just cause, .are saved ; but that, 3dly, those who fall in an unjust war for an unjust cause, are not. The I22d and 123d chapters exempt churchmen and pil- grims from war; and the benefits of this exemptien are afterwards extended to infirm and diseased persons, and others: and the rules laid down in chap- ters 105-8, .respecting affording students, natives of belligerent countries, facilities to frequent, during war, the universities of the enemy's country-, and permitting their near relatives to visit them, would probably .exceed the moderation with which war is carried on even The Two Introductory Lectures by the Oxford Professor of Civil Law supply the deficiency 'we have mentioned as existing fir the 'Cambridge Bachelor's Ridsian Essay. Dr. Twiss almost confines himself to the literary history of the Law of Nature and of from. the -time when Franciscus a Victoria, a Domi- nican monk, scandalized at the stretch of authority by Pope Alexander the Sixth in so coolly dividing the newly-dis- covered lands of the heathen, - raised doubts as to the right to deprive the Indians of 'their independeirce or their territory, either on the ground that they were sinners, or on the ground that they were pagans." This doctrine was • first taught at Valladolid in 1525, and subsequently when its author was Professor in the University of Salamanca. The disserta- tions De India, and on other subjects connected with inter- national law, were not, however, published 'till 1557. Other writers followed Victoria in the same century; but they were all rather theologians than -leoists, discussing the abstract right rather than deducing the actio7.1 practice. It was not till Grotius, in 1625, combined in his great work the law of nature with the general conduat of nations, that-the science, as already said, was received as a practical system. Indeed, some of the righteous conclusions of the early moral and theological writers are nearly as far as ever from being established. MD propositions of PQM, the pupil of Victoria, are much as he left them, a matter of moral opinion. Soto who was also a member of the Dominican order, was' the confessor of the Emperor Charles V. and the oracle of the Council of Trent, to whom that assembly was indebted for much of the precision and even elegance for which its doctrinal decrees are not unjustly oommended. He was. the au- thority consulted by Charles V. on occasion of the conference held before him at Valladolid in 1542, between Sepulveda, the advocate of the Spanish colo- nists, who maintained that the conquest of the Indies from the natives was lawful, and Bartholomew Las Cases, the Bishop of Chiapa, who contended that such conquest was unlawful, tyrannical, and unjust. The opinion of Soto may be gathered from the excellent principle laid down in his treatise on justice and law, dedicated to Don Carlos, that there can be no difference between Christianliand pagans, for the law of nations is equal to all nations. Negue discrepantia (ut veer) est inter Cluistianos et Inficleles, q_uondam jus gent:1nm etmens gentibuii cequale est.' To Soto belongs the signal honour of being the, first who condemned the African slave-trade. It is affirmed,' says he, that the unhappy /Ethiopians are by fraud or by force carried away and sold as slaves. If this be true, neither those who have taken them, nor those who have purchased them, nor those who hold them in bondage, can ever have a quiet conscience until they have emancipated them, even if they should obtain no compensation.'
"It is difficult for us, in the present age, to measure the degree of cou- rage and noble principle which impelled these excellent monks to vindicate the rights of the oppressed against the authority of the Church, the ambi- tion of the Crown, the avarice and pride of their countrymen, and the pre- judices of their own Order."
In speaking of the "literary history" of the subject, that term must be understood in its full extent. Dr. Twiss's survey of the literature of international law is not a mere bibliographical ac- count of books. On the contrary, it embraces a biographical no- tice of the writers, a critical estimate of their actual and compara- tive merits, and a sufficient view of the nature of their works and the influence they exercised on the progress of the science. As Mr. Kennedy is perhaps inclined to attribute too much to theory— to a mere argument, or opinion—so Dr. Twiss probably is prone to allow too httle weight to abstract right, and to dwell too much on the de facto usage of nations. This, however, in a publication with a practical object, is no more than was to be expected.
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