Ancient Law Chapter 4

rth Italy， the highest feudal superiors in all the outlying portions of the former Carlovingian empire found themselves practically without a supreme head. Gradually they habituated themselves to the new situation， and the fact of immunity put at last out of sight the theory of dependence； but there are many symptoms that this change was not quite easily accomplished； and， indeed， to the impression that in the nature of things there must necessarily be a culminating domination somewhere， we may， no doubt， refer the increasing tendency to attribute secular superiority to the See of Rome. The completion of the first stage in the revolution of opinion is marked， of course， by the accession of the Capetian dynasty in France. When the feudal prince of a limited territory surrounding Paris began， from the accident of his uniting an unusual number of suzerainties in his own person， to call himself King of France， he became king in quite a new sense， a sovereign standing in the same relation to the soil of France as the baron to his estate， the tenant to his freehold. The precedent， however， was as influential as it was novel， and the form of the monarchy in France had visible effects in hastening changes which were elsewhere proceeding in the same direction. The kingship of our Anglo-Saxon regal houses was midway between the chieftainship of a tribe and a territorial supremacy，。 but the superiority of the Norman monarchs， imitated from that of the King of France， was distinctly a territorial sovereignty. Every subsequent dominion which was established or consolidated was formed on the later model. Spain， Naples， and the principalities founded on the ruins of municipal freedom in Italy， were all under rulers whose sovereignty was territorial. Few things， I may add， are more curious than the gradual lapse of the Venetians from one view to the other. At the commencement of its foreign conquests， the republic regarded itself as an antitype of the Roman commonwealth， governing a number of subject provinces. Move a century onwards， and you find that it wishes to be looked upon as a corporate sovereign， claiming the rights of a feudal suzerain over its possessions in Italy and the AEgean.

　　During the period through which the popular ideas on the subject of sovereignty were undergoing this remarkable change， the system which stood in the place of what we now call International Law

was heterogeneous in form and inconsistent in the principles to which it appealed. Over so much of Europe as was comprised in the Romano-German empire， the connection of the confederate states was regulated by the complex and as yet incomplete mechanism of the Imperial constitution； and， surprising as it may seem to us， it was a favourite notion of German lawyers that the relations of commonwealths， whether inside or outside the empire， ought to be regulated not by the Jus Gentium， but by the pure Roman jurisprudence， of which Caesar was still the centre. This doctrine was less confidently repudiated in the outlying countries than we might have supposed antecedently； but， substantially， through the rest of Europe feudal 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 authority of the head of the Church. It is certain， however， that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth， and even the fourteenth century，。 and if we closely examine the current pretexts of wars， and the avowed motives of alliances， it will be seen that， step by step with the displacement of the old principles， the views afterwards harmonised and consolidated by Ayala and Grotius were making considerable progress， though it was silent and but slow. Whether the fusion of all the sources of authority would ultimately have evolved a system of international relations， and whether that system would have exhibited material differences from the fabric of Grotius， is not now possible to decide， for as a matter of fact the Reformation annihilated all its potential elements except one. Beginning in Germany it divided the princes of the empire by a gulf too broad to be bridged over by the Imperial supremacy， even if the Imperial superior had stood neutral. He， however， was forced to take colour with the church against the reformer； the Pope was， as a matter of course， in the same predicament； and thus the two authorities to whom belonged the office of mediation between combatants became themselves the chiefs of one great faction in the schism of the nations. Feudalism， already enfeebled and discredited as a principle of public relations， furnished no bond whatever which was stable enough 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 jurisconsults were supposed to have given their sanction alone remained standing. The shape， the symmetry and the prominence which they assumed 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 of the Thirty Years' War， the boundless terror and pity which the unbridled license of the soldiery was exciting， must， no doubt， be taken to explain that success in some measure， but they do not wholly account for it. Very little penetration into the ideas of that age is required to convince one that if the ground plan of the international edifice which was sketched in the great book of Grotius had not appeared to be theoretically perfect， it would have been discarded by jurists and neglected by statesmen and soldiers.

　　It is obvious that the speculative perfection of the Grotian system is intimately connected with that conception of territorial sovereignty which we have been discussing. The theory of International Law assumes that commonwealths are， relatively to each other， in a state of nature； but the component atoms of a natural society must， by the fundamental assumption， be insulated and independent of each other. If there be a higher power connecting them， however slightly and occasionally by the claim of common supremacy， the very conception of a common superior introduces the notion of positive law， and excludes the ide

a of a law natural. It follows， therefore， that if the universal suzerainty of an Imperial head had been admitted even in bare theory， the labours of Grotius would have been idle. Nor is this the only point of junction between modern public law and those views of sovereignty of which I have endeavoured to describe the development. I have said that there are entire departments of international jurisprudence which consist of the Roman Law of Property. What then is the inference？ It is， that if there had been no such change as I have described in the estimate of sovereignty —— if sovereignty had not been associated with the proprietorship of a limited portion of the earth， had not， in other words， become territorial —— three parts of the Grotian theory would have been incapable of application. 186

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