亨利-梅因：国际法Lecture 1

nce must not， I have to warn you， be attributed to their influence. Their sphere was more particularly Italy； but Ferrari， an historian who has written both in Italian and French， and who ha

s conceived the expedient of mapping out Italian history into periods according to the nature of the revolutions which occurred in the Italian States， has counted among these states no less than 7，000 revolutions， each with a war of its own， small or great. Still the emperor and the pope， and yet more the pope than the emperor， were unquestionably， on the whole， makers of peace； and sometimes the place of the pope was taken by a prince of acknowledged sanctity， like St. Louis of France. But the outbreak of the great wars of religion， the wars between （Catholic and Protestant， put an end to these pacific influences. The pope， of course， was necessarily on one side among the combatants， and on the whole the emperor was on the same side. Hence it came about that the great international jurists belonged to the smaller states and were wholly Protestants. The International Law of the Roman Catholic doctors had fallen into suspicion and finally into disrepute. A law with a new sanction was required if states were to obey it， and this is what the new jurists produced. The effect was a rapid mitigation of wars and a rapid decrease in their frequency.

　　It is very important that we should ask ourselves what is the true place in legal history of the set of rules called International Law. It will be found that the proper answer to this question involves replies to several less general questions which are nowadays put by critical writers， or which spontaneously suggest themselves to the mind of the student， as to the nature and authority of the famous system before us. What， then， is its place in the general development of European jurisprudence？ We may answer pretty confidently that its rapid advance to acceptance by civilised nations was a stage， though a very late stage， in the diffusion of Roman Law over Europe. Those of you who have paid any attention to the history of law are aware that I have now touched upon a subject of much interest， and of some difficulty. In considerably less than a century， all the ideas of learned men on the history of Roman Law in the western world have undergone change. A hundred years ago， the virtually universal assumption of Juridical writers was that， when the pressure of invading barbarous races had broken up the territories of the Roman Empire into separate kingdoms， the Roman Law was lost， as the Empire itself was supposed to have been lost. It was indeed plain that， if this were so， the Roman Law must in some way or other， and at some time or other， have undergone a revival， and this was explained by fables， like the story of the discovery of a copy of Justinian's Pandects at the siege of Amalfi.

　　More recent learning， learning which on some points is extremely recent， has taught us that many of these assumptions are doubtful and many others are certainly false. The Roman Empire was never wholly lost， nor the Roman Law either. The Empire， with Caesar at the head of it， and with some institutions associated with it which even pointed back to the Republican Roman period， survived to be destroyed by Napoleon Bonaparte， though no doubt it was ever decaying and sinking into a heap of ceremonies， names， and forms. The Roman Law， on the other hand， was practically everywhere， and its tendency was， not to decay， but to extend its area and enlarge its authority. The systems of local custom which first established themselves in the new Europe betray a large ingredient of Roman Law it many portions of their structure. At a later date， writers of treatises professing to set forth the whole， or a definite part， of the institutions of particular countries， are found to have borrowed considerable fragments of books which the Romans regarded as of authority. And then we seem to see a whole flood of Roman jurisprudence spreading to the ends of civilised Europe.

　　No one explanation can be offered of these facts. In some countries， the Roman Law probably never ceased to be obeyed， and t

he foreign element in its institutions was the barbarous usage. In others the reverse of this occurred； the basis， at least the theoretical basis， of the institutions was barbarous， but the Roman Law， still known to some classes， was rapidly absorbed. A barbarous system of law is always scanty， and if it be contiguous to a larger and snore extensive system， the temptation in practitioners to borrow from this is irresistible. Only the other day， this process was full in view in British India. The bulk of the Native Indian law was extremely narrow. In whole departments of affairs， no rules were found to settle controversies which naturally rose up. And the result was that the bulk of Native Indian law was gradually becoming English through the filtration of rules into it from the more extensive system by its side. And this went on， until both the English and the purely Native law were gradually superseded by the new Indian Codes. We are not， however， to suppose that the Roman Law came to be received by European communities through any process resembling legislation. In the history of law， it is always essential to keep in mind the fact that legislatures are of very recent appearance in modern Europe. The earliest attempt to distinguish clearly between legislative and executive power， between legislative and executive action， has been traced to an Italian writer of the fourteenth century. The powerful bodies from which many of the legislatures are descended， assemblies of great men advising and controlling kings， were not true legislatures themselves. They assisted occasionally in the making of laws， but that was because law-making was recognized as important business， and the duty of these Councils， Parliament or States-General， was to advise the King in all important business. In truth， far the most influential cause of the extension of particular laws and of particular systems of law over new areas was the approval of them by literate classes， by clergymen and lawyers， and the acquiescence of the rest of the community in the opinions of these classes. When then we are asked by what legislative authority International Law came to be adopted so as to make it binding on particular communities， we should rejoin that the same question must first be put respecting the extension of Roman law and of every other system of law which， before the era of legislatures， gave proof of possessing the same power of self-propagation.

　　A great part， then， of International Law is Roman Law， spread over Europe by a process exceedingly like that which， a few centuries earlier， had caused other portions of Roman Law to filter into the interstices of every European legal system. The Roman element in International Law belonged， however， to one special province of the Roman system， that which the Romans themselves called Natural Law or， by an alternative name， Jus Gentium. In a book published some years ago on 'Ancient Law' I made this remark： 'Setting aside the Treaty Law of Nations， it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the Roman jurisconsults affirmed by them to be in harmony with the Jus Gentium， the Publicists have found a reason for borrowing it， however plainly it may bear the marks of a distinctively Roman origin.' I must observe， however， that the respect for natural law as the part of the Roman Law which had most Cairns on our reverence did not actually begin with the international lawyers. The habit of identifying the Roman law with the Law of Nature， for the purpose of giving it dignity， was of old date in Europe. When a clergyman or a lawyer of an early age wishes to quote the Roman Law in a country in which its authority was not recognised， or in a case to which Roman Law was not allowed to apply， he calls it 'Natural Law.' When our Edward III laid a document before the Pope for the purpose of establishing his claim to the French throne， and of contending th

at the descendants of women may succeed to the property or throne of a male ancestor， he spoke of himself as arguing on Natural Law； though in point of fact the power of women to transmit rights of inheritance to their descendants was pure Roman Law of recent origin， and was not specially connected in any way with the Law of Nature.

　　But though the founders of the system which lies at the basis of the rules now regulating the concerns of states inter se were not the first to describe the Law of Nature and the Law of Nations， Jus Nature， Jus Gentium， as the most admirable， the most dignified portion of Roman Law， they speak of it with a precision and a confidence which were altogether new. They look upon it as perfectly determinable if the proper tests be applied， partly on the authority of express texts of Roman Law， partly by a process of inference from a great mass of recorded precedents. Its fitness for international purposes they regard as a discovery of their own， and some writers of their day speak of the system as the new science. No more doubt of its reality seems to have been entertained than （let us say） of the English common law by an English mediaeval lawyer. It is sometimes difficult to be quite sure how Grotius and his successors distinguished rules of the Law of Nature from religious rules prescribed by inspired writers. But that they did draw a distinction is plain. Grotius's famous work， the 'De Jure Belli et Pacis，' is in great part composed of examples supplied by the language and conduct of heathen statesmen， generals， and sovereigns， whom he could not have supposed to know anything of inspired teaching. If we assume him to have believed tha

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