Expansion of commerce and the develop ment of mari time codes. (f) The expansion of commerce, especially maritime, emphasized the duties and rights of nations. The old Rhodian laws of commerce, which had in part been incorporated in and expanded by the Roman code during the days before the overthrow of the Empire, formed a basis for maritime intercourse. From the fall of the Empire to the Crusades commerce was attended with great dangers from pirates on the sea and from exactions in the port. The socalled Amalfitan Tables seem to have been the sea law of the latter part of the eleventh century. The much more detailed Consolato del Mare of doubtful origin between the twelfth and fourteenth centuries derived some of its principles from the eleventh-century code. The Consolato was recognized by maritime powers as generally binding, and made possible wide commercial intercourse. Many of its principles have stood to the present day, though touching such questions as the mutual rights of neutrals and belligerents on the sea in time of war. As the Consolato formed the code of Southern Europe, the Laws of Oléron formed the maritime code for Western Europe, and were compiled the latter part of the twelfth century, whether by Richard I or by his mother, Queen Eleanor, is a disputed question. These laws are based in large measure on the other existing systems. The Laws of Wisby, dating from about 1288, supplemented the Laws of Oléron, and formed the fundamental law of maritime courts of the Baltic nations.2 The Hanseatic League in 1591 compiled a system of marine law, Jus Hanseaticum Maritimum,3 based on the codes of Western and Northern Europe. The maritime law of Europe had been practically unchanged for nearly a hundred years, when systematized in 1673 under 1 Hall, p. 713. 'Laws of Wisby contain early reference to marine insurance, § 66. • Expanded in 1614, Louis XIV. Similar to the maritime codes are the "Customs of Amsterdam," the "Laws of Antwerp," and the "Guidon de la Mar." (g) Closely connected with the development of maritime law during the latter part of the middle period was the establishment of the office of consul. The consuls, Consuls and the development of under the title of consules marinariorum et mermaritime law. catorum, resident in foreign countries, assisted by advice and information the merchants of their own countries, and endeavored to secure to their countrymen such rights and privileges as possible. Consuls seem to have been sent by Pisa early in the eleventh century, and were for some time mainly sent by the Mediterranean countries to the East. (h) The discovery of America marked a new epoch in territorial and mercantile expansion, and introduced new problems among those handed down from an age of political chaos. Discovery of Contributions of the (i) The middle period, with all its inconsistencies in theory and practice, had nevertheless taught men some lessons. The world-empire of Rome showed a common political sovereignty by which the acts of remote Middle Period. territories might be regulated; the world-religion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions imbued men's minds with the possibility of a unity, but a unity in which all other powers should be subordinate to a single power, and not a unity of several sovereign powers acting on established principles. The feudal system emphasized the territorial basis of sovereignty. The Crusades gave to the Christian peoples of Europe a knowledge and tolerance of one another which the honor of the code of chivalry made more beneficent, while the growth of the free cities opposed the dominance of 'De Valroger, "Droit Maritime," I, § 1. classes, feudal or religious. The fluctuations and uncertainties in theory and practice of international intercourse, both in peace and war, made men ready to hear the voice of Grotius (1583-1645), whose work marks the beginning of the modern period. 12. Modern Period (1648-) The modern period of international law may be divided into four epochs: (a) From the Peace of Westphalia, 1648, to the Peace of Utrecht, 1713; (b) from the Peace of Utrecht, 1713, to the Congress of Vienna, 1815; (c) from the Congress of Vienna, 1815, to the call for the First Hague Peace Conference, 1898; (d) from the call for the First Hague Peace Conference, 1898, to the present time. 1648-1713: (a) It became evident at the termination of the Thirty Years' War in 1648 that the old doctrines of world-empire, whether of Pope or of Emperor, could no longer Development be sustained. The provisions of the Peace of of principles. Westphalia, while not creating a code to govern international relations, did give legal recognition to the existence of such conditions as Grotius contemplated in "De Jure Belli ac Pacis," viz. sovereign states, equal to one another as such regardless of area and power. The decree of James I, in 1604, establishing a neutral zone by “a straight line drawn from one point to another about the realm of England," in which neither of the parties to the war between the United Provinces and Spain should carry on hostilities, formed a precedent in maritime jurisdiction, even though the decree was but imperfectly enforced. This early part of the modern period was especially fruitful in treatises and discussions upon the nature of international law, and upon what it ought to be, and also upon the law of the sea, particularly Grotius's "Mare Liberum," 1609, Selden's "Mare Clausum," 1635, and Bynkershoek's "De Dominio Maris," 1702.1 During this period the public law was diligently studied; the right of legation became generally recognized; French gradually took the place of Latin in international intercourse,2 with a corresponding modern spirit in the practice, though the discussions were usually ponderous and abstract; the idea of the balance of power flourished and formed a subject of frequent controversy; the principle of intervention upon political grounds was propounded and acknowledged; and the opinions of the great publicists, such as Grotius, gained great weight and were widely studied. The general principles of neutral trade, including "free ships, free goods," were laid down, prize laws and provisions as to contraband were adopted, numerous treaties of commerce gave witness of the growth of international intercourse, and both men and states became somewhat more tolerant. (b) The Treaty of Utrecht (1713) contained recognition of many of the principles which had become fairly well 1713-1815: Testing of principles. accepted during the years since 1648. There were evidences of the growing influences of the New World upon the policy of the Old; the American fisheries question appeared; the international regulations in regard to commerce were multiplied, and the central subject of the preamble was the subject of "the balance of power." 3 For many years the question of succession to the various seats of royal and princely power formed the chief subject of international discussion. During the eighteenth century the steady growth of England as a maritime power and the European complications over transAtlantic possessions gave rise to new international issues. The basis of modern territorial acquisition was found in the Roman 1 The Marine Ordinance of Louis XIV, 1681, became the basis of sea law. 2 With the decline of the influence of the "Holy Roman Empire," the use of Latin in diplomacy became less general. Abbé Saint-Pierre, in three volumes, 1729, "Abrégé du Projet de Paix perpétuelle," outlines a plan for peace by fixed system of balance of power. law of occupatio, and the Roman law of river boundaries was almost exactly followed.1 From the Treaty of Aix-la-Chapelle (1748), in which former treaties were generally renewed, to 1815, the growth and observation of the principles of international law was spasmodic. By the Peace of Paris and by the Peace of Hubertsburg (1763), many questions of territorial jurisdiction were settled. England, then become the dominant power in North America, with greatly extended power in the East, impressed upon international practice adherence to actual precedent rather than to theoretically correct principles. At the same time in Central Europe the conditions were ripe for that violation of international justice, the partition of Poland in 1772, followed by the further partition in 1793 and 1795. The rights which the concert of nations was thought to hold sacred were the very ones most ruthlessly violated by the neighboring powers. The American Revolution of 1776 and the French Revolution of 1789 introduced new principles. The "armed neutrality" of 1780,2 while maintaining the principle "free ships, free goods," made impossible the converse, "enemy's ships, enemy's goods," which had been held. Both the American and French Revolutions made evident the necessity of the development of the laws of neutrality hitherto greatly confused and disregarded. During the French Revolution it seemed that to Great Britain alone could the states of Europe look for the practice of the principles of international law. After the French Revolution it was necessary to define just intervention that Europe might not be again convulsed. It became clear that the state was an entity and distinct from the person of its king. No longer could the king of France or of any European state say "L'état, c'est moi." Even 1 "Institutes," II, 1, 21, 22. 'Declaration of Russia, Feb. 28, 1780. The works of Moser (1701-1786) and his immediate followers attempt to make practical the principles of international law. |