亨利-梅因：国际法Lecture 1

he truth. It is not peace which was natural and primitive and old， but rather war. War appears to be as old as mankind， but peace is a modern invention. Our intelligence is only just beginning to enable us to penetrate the clouds which rest on the farther verge of history， but what does seem clear to trained observation is the universal belligerency of primitive mankind. Not only is war to be seen everywhere， but it is war more atrocious than we. with our ideas， can easily conceive.

　　Take one example， the practices concerned with the treatment of the wounded and of prisoners. At first there are signs which cannot be mistaken that the prisoner and the wounded man are not only killed but tortured before being put to death. The still savage races from whom most has been learned as to the original usages and conditions of men are the North American Indians and the aborigines of Australia. That the North American Indians tortured their prisoners before putting them to death is one of a number of facts very familiar to us which have made their way into literature. One branch of this race， the Mexicans， attained to a certain degree of civilization， but it is also matter of familiar knowledge that the Mexicans put their prisoners to death with the greatest cruelty almost in hecatombs， and that the practice with them had acquired a religious sanction. As to the Australians， it has been observed that they have inherited the animal instinct which leads them even to torture their game after it is captured and before it is killed. The English school-boy has often been shocked by the concluding passage in a Roman triumph when the gallant enemy， who had been led in the procession， was not only killed but flogged. When we come to medieval war these cruelties have disappeared， and， though the suffering of the wounded and of prisoners was great， it seems to have been due rather to ignorance and carelessness than to cruelty. It is said that at the battle of Agincourt only one man who had any knowledge of medicine or surgery was present， the functionary who was the predecessor o

f the official now known as the King's Staff Surgeon.

　　The only influences which at the beginning of history seem to put an end to war on a large scale are influences which have been much maligned and to which some injustice has been done. The conventionally revised history of the world begins with the formation of certain great empires， the Egyptian， the Assyrian， the Median， and the Persian. No doubt they were a result rather of man's rapacity than of his humanity. The object of their founders was to gratify ambitious display on a great scale and to increase the area from which they could take their taxes； but nevertheless no one could say how much war they extinguished by the Prohibition， which they undoubtedly carried out， of hostilities among the various sub-divisions of their subjects. The latest of these Empires which conferred similar benefits on mankind in the West was the Roman Empire. During the long Roman peace not only did bloodshed practically cease， but the equality of the sexes， the mitigation of slavery， and the organization of Christianity made their appearance in the world. When， however， one of these empires breaks up， the old suffering revives. 'Give peace in our time， O Lord，' is a versicle in the Anglican Liturgy which is said to date from the rupture of the Empire， that is from the time when the Empire was breaking up into kingdoms occupied by barbarian races. It is obviously a prayer for an unusual and unhoped-for blessing. In the East the amount of bloodshed prevented by the Chinese Empire is incalculable. Independently of any other benefits， which the Indian Empire may confer on the collection of countries which it includes， there is no question that were it to be dissolved， or to fall into the hands of masters unable to govern it， the territories which make it up would be deluged with blood from end to end. As the history of modern Europe proceeds there are moments when old controversies seem to have been exhausted and fighting is to a certain extent relaxed， but then some great difference arises between men —— the wars of religion， for example， commence —— and Europe is again full of bloodshed.

　　There are other facts at first sight of smaller apparent importance which are too little noticed. At all times， amid truculent wars ever reviving， there are signs of a conscious effort to prevent war or to mitigate it. Man has never been so ferocious， or so stupid， as to submit to such an evil as war without some kind of effort to prevent it. It is not always easy to read the tokens of his desire and endeavour to obviate war or to diminish its cruelties； it takes some time to interpret these signs； but when attention is directed to them they are quite unmistakable. The number of ancient institutions which bear the marks of a design to stand in the way of war， and to provide an alternative to it， is exceedingly great. There are numerous old forms of trial discoverable in a great number of countries and in a great number of races in which， among the ceremonial acts of the parties， you can see evidence of a mimic combat. The Roman sacramentum is the best and most familiar instance of this. What we call a judicial proceeding is obviously taking the place of a fight. Another expedient， which is a good deal misunderstood， is the pecuniary fine which was imposed sometimes on the individual author of a homicide， sometimes on his tribe， the Wehr Geld of the Germans， the Eric fine of the ancient Irish. I have seen it represented as evidence of the slight value attached by these races to human life. Here （it is said） is a mere money compensation for killing an enemy. But this is a misapprehension of the amount of the punishment inflicted. If we had learned that a man who tools the life of another was deprived of the whole of his land we should， I suppose， have been of opinion that the punishment was at all events not trivial. But one of the new ideas which we owe to the ancient Irish law， the Bre

hon law， is an adequate conception which we for the first time gain of the importance to mankind of moveable property. Capitale， cattle， capital， a long descended term， was the imperatively required implement for the cultivation of land， at a time when land was plentiful and perhaps common and undivided. The necessity imposed on the family or tribe of a man who had taken a life of paying a portion of this jealously guarded subject of ownership to another of the ancient groups was not a slight but an excee

　　dingly heavy penalty. It is remarkable further that， among the tribal groups of which society was primitively or anciently made up， the observance of good faith seems to have been more strict than among individuals. There is some evidence of want of respect for sanctity of agreement among individuals， but not so amid tribes. The ancient monuments which are open to us no doubt generally recount victories and defeats， but they also record treaties. Treaties of great complexity and antiquity are found among the surviving savages. Also we have a glimpse of systems of what would now be called International Law； that is to say of rules enforced with a regular ceremonial by trained official agents. Such was the jus fetiale of the Romans. And it is to be noted that there are certain departments of this law in which stricter provision teeny to have been made than were at the outset found in modern days in what is technically called the Law of Nations； for example， the extremely express and severe rules which regulate declarations of war.

　　In modern days the name of International Law has been very much confined to rules laid down by one particular class of writers. They may be roughly said to begin in the first half of the seventeenth century， and to run three parts through the eighteenth century. The names which most of us know are first of all that of the great Hugo Grotius， followed by Puffendorf， Leibnitz， Zouch， Selden， Wolf， Bynkershoek， and Vattel. The list does not absolutely begin with Grotius， nor does it exactly end with Vattel， and indeed as regards the hither end of this series the assumption is still made， and I think not quite fortunately， that the race of law-creating jurists still exists. It is further to be noted that before international law fell into the hands of these writers it had like most other subjects of thought attracted the attention of the Church. There is a whole chapter of the law of nations which is treated of by Roman Catholic theological writers， and a slight difference which distinguishes their use of technical expressions， such for example as 'law of nature' and 'natural law，' occasionally perplexes the student of the system before us.

　　The rules， however， laid down by the writers I have named and a few others， the nature of their system， and the degree in which it is settled， will occupy much of our time in the present or future courses of lectures. In the first place their system is that conventionally known as International Law； and secondly in them we find， not only the writers at whom Dr. Whewell's implied condemnation is aimed， but the writers whose works acted on the spirit of belligerency like a charm， who did prevent wars and mitigate them， and did something to prepare a time when war should be do more. I said something a few minutes ago of the erect of great agglomerations of countries in territorial empires in producing peace. When the Roman Empire had broken up， after a while the new European world was long protected against incessant war by its surviving authority. Its very shadow gave as much peace as was to be had. The pope or the emperor， each a continuation of the Caesars， served as a court of arbitration and did compose disputes and prevent wars. Too much influe

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