Ancient Law Chapter 4

f Nature. There is too one consequence of immense practical importance to mankind which， though not unknown during the early modern history of Europe， was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed. If the society of nations is governed by Natural Law， the atoms whi

ch compose it must be absolutely equal. Men under the sceptre of Nature are all equal， and accordingly commonwealths are equal if the international state be one of nature. The proposition that independent communities， however different in size and power， are all equal in the view of the law of nations， has largely contributed to the happiness of mankind， though it is constantly threatened by the political tendencies of each successive age. It is a doctrine which probably would never have obtained a secure footing at all if international Law had not been entirely derived from the majestic claims of Nature by the Publicists who wrote after the revival of letters.

　　On the whole， however， it is astonishing， as I have observed before， how small a proportion the additions made to international Law since Grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the Roman Jus Gentium. Acquisition of territory has always been the great spur of national ambition， and the rules which govern this acquisition， together with the rules which moderate the wars in which it too frequently results， are merely transcribed from the part of the Roman law which treats of the modes of acquiring property jure gentium. These modes of acquisition were obtained by the elder jurisconsults， as I have attempted to explain， by abstracting a common ingredient from the usages observed to prevail among the various tribes surrounding Rome； and， having been classed on account of their origin in the "law common to all nations，" they were thought by the later lawyers to fit in， on the score of their simplicity， with the more recent conception of a Law Natural. They thus made their way into the modern Law of Nations， and the result is that those parts of the international system which refer to dominion， its nature， its limitations， the modes of acquiring and securing it， are pure Roman Property Law —— so much， that is to say， of the Roman Law of Property as the Antonine jurisconsults imagined to exhibit a certain congruity with the natural state. In order that these chapters of International Law may be capable of application， it is necessary that sovereigns should be related to each other like the members of a group of Roman proprietors. This is another of the postulates which lie at the threshold of the International Code， and it is also one which could not possibly have been subscribed to during the first centuries of modern European history…… It is resolvable into the double proposition that "sovereignty is territorial，" i.e. that it is always associated with the proprietorship of a limited portion of the earth's surface， and that "sovereigns inter se are to be deemed not paramount， but absolute， owners of the state's territory."

　　Many contemporary writers on International Law tacitly assume that the doctrines of their system， founded on principles of equity and common sense， were capable of being readily reasoned out in every stage of modern civilisation. But this assumption， while it conceals some real defects of the international theory， is altogether untenable， so far as regards a large part of modern history. It is not true that the authority of the Jus Gentium in the concerns of nations was always uncontradicted； on the contrary， it had to struggle long against the claims of several competing systems. It is again not true that the territorial character of sovereignty was always recognised， for long after the dissolution of the Roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. An old order of things， and of views founded on it， had to decay —— a new Europe， and an apparatus of new notions congenial to it， had to spring up before two of the chiefest postulates of International Law could be universally conceded.

　　It is a consideration well worthy to be kept in view that during a large part of what we usually term modern history no such conc

eption was entertained as that of "territorial sovereignty." Sovereignty was not associated with dominion over a portion or subdivision of the earth. The world had lain for so many centuries under the shadow of Imperial Rome as to have forgotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths， claiming immunity from extrinsic interference， and pretending to equality of national rights. After the subsidence of the barbarian irruptions， the notion of sovereignty that prevailed seems to have been twofold. On the one hand it assumed the form of what may be called "tribe-sovereignty." The Franks， the Burgundians， the Vandals， the Lombards， and Visigoths were masters， of course， of the territories which they occupied， and to which some of them have given a geographical appellation； but they based no claim of right upon the fact of territorial possession， and indeed attached no importance to it whatever. They appear to have retained the traditions which they brought with them from the forest and the steppe， and to have still been in their own view a patriarchal society a nomad horde， merely encamped for the time upon the soil which afforded them sustenance. Part of Transalpine Gaul， with part of Germany， had now become the country de facto occupied by the Franks —— it was France； but the Merovingian line of chieftains， the descendants of Clovis， were not Kings of France， they were Kings of the Franks. The alternative to this peculiar notion of sovereignty appears to have been —— and this is the important point —— the idea of universal dominion. The moment a monarch departed from the special relation of chief to clansmen， and became solicitous， for purposes of his Own， to invest himself with a novel form of sovereignty， the only precedent which suggested itself for his adoption was the domination of the Emperors of Rome. To parody a common quotation， he became "aut Caesar aut nullus." Either he pretended to the full prerogative of the Byzantine Emperor， or he had no political status whatever. In our own age， when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns， it takes its designation from the people， instead of the territory. Thus we have Emperors and Kings of the French， and a King of the Belgians. At the period of which we have been speaking， under similar circumstances a different alternative presented itself. The Chieftain who would no longer call himself King of the tribe must claim to be Emperor of the world. Thus， when the hereditary Mayors of the Palace had ceased to compromise with the monarchs they had long since virtually dethroned， they soon became unwilling to call themselves Kings of the Franks， a title which belonged to the displaced Merovings； but they could not style themselves Kings of France， for such a designation， though apparently not unknown， was not a title of dignity. Accordingly they came forward as aspirants to universal empire. Their motive has been greatly misapprehended. It has been taken for granted by recent French writers that Charlemagne was far before his age， quite as much in the character of his designs as in the energy with which he prosecuted them. Whether it be true or not that anybody is at any time before his age， it is certainly true that Charlemagne， in aiming at an unlimited dominion， was emphatically taking the only course which the characteristic ideas of his age permitted him to follow. Of his intellectual eminence there cannot be a question， but it is proved by his acts and not by his theory.

　　These singularities of view were not altered on the partition of the inheritance of Charlemagne among his three grandsons. Charles the Bald， Lewis， and Lothair were still theoretically —— if it be proper to use the word —— Emperors of Rome. Just as the Caesars of the Eastern and Western Empires had each been de jure emperor of the whole world， with d

efacto control over half of it， so the three Carlovingians appear to have considered their power as limited， but their title as unqualified. The same speculative universality of sovereignty continued to be associated with the Imperial throne after the second division on the death of Charles the Fat， and， indeed， was never thoroughly dissociated from it so long as the empire of Germany lasted. Territorial sovereignty —— the view which connects sovereignty with the possession of a limited portion of the earth's surface —— was distinctly an offshoot， though a tardy one， of feudalism. This might have been expected a priori， for it was feudalism which for the first time linked personal duties， and by consequence personal rights， to the ownership of land. Whatever be the proper view of its origin and legal nature， the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis， to consider the relation of the tenant to the patch of soil which created and limited his services —— and then to mount up， through narrowing circles of super-feudation， till we approximate to the apex of the system. Where that summit exactly was during the later portion of the dark ages it is not easy to decide. Probably， wherever the conception of tribe sovereignty had really decayed， the topmost point was always assigned to the supposed successor of the Caesars of the West. But before long， when the actual sphere of Imperial authority had immensely contracted， and when the emperors had concentrated the scanty remains of their power upon Germany and No

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