“There are certain peculiar laws of war also, which are of all things most strictly to be observed.... As we are bound to be merciful to those whom we have actually conquered, so should those also be received into favour who have laid down their arms.... Our good forefathers were most strictly just as to this particular, the custom of those times making him the patron of a conquered city or people who first received them into the faith and allegiance of the people of Rome. In short, the whole right and all the duties of war are most rigorously set down in the fecial laws, out of which it is manifest that no war can be justly undertaken unless satisfaction has been first demanded, and proclamation of it made publicly beforehand.”—Cicero, Offices, i. xi.; again, also, vide iii. xxxi.
Compare these passages with Mr Gladstone’s account of the Homeric age:—
“In that early age, despite the prevalence of piracy, even that idea of political justice and public right, which is the germ of the law of nations, was not unknown to the Greeks. It would appear that war could not be made without an appropriate cause, and that the offer of redress made it the duty of the injured to come to terms. Hence the offer of Paris in the third Iliad is at once readily accepted; and hence, even after the breach of the act, arises Agamemnon’s fear, at the moment when he anticipates the death of Menelaus, that by that event the claim to the restoration of Helen will be practically disposed of, and the Greeks will have to return home without reparation for a wrong, of which the corpus, as it were, will have disappeared.”—Iliad, iv. 160–62.[311]
It is certainly not within the scope of this chapter to indicate the multiform applications of the law of nations, which it would require a legist’s special knowledge (to which the writer can lay no claim) to determine with any exactness. My object has been merely to sustain the traditional belief against those who deny it. I shall indeed, for the purposes of illustration, go into detail on one point, viz. the declaration of war; but I may mention incidentally that the Fecial and Amphictyonic law presumably extended to many other points, such as treaties, trophies,[312] truces,[313] hostages, and the like. Moreover, the maritime law of Rhodes and the islands of the Ægean, known to the Romans long before it was embodied in their code (which was not probably until they had extended maritime relations), presents, as Pastoret (ix. 118) informs us, “analogies et rapprochemens multipliés” with modern maritime legislation from the time of the Romans to the “ordonnance de la marine” drawn up by order of Louis XIV.
In an article on “Belligerent Rights at Sea” (in the Home and Foreign Review, July 1863), in which there will be found a nice discrimination of these questions, Mr E. Ryley says:—
“The very largest rule of belligerent rights limits the voluntary destruction of life and property by the necessity of the occasion and the object of the war. Bynkershock and Wolf insist that everything done against the enemy is lawful, and admit fraud, poison, and the murder, as we should call it, of non-combatants, as permissible expedients for attaining the object of the war. But these are the writers who lay the foundations of the law of nations in reason and custom, and ignore that perception and judgment of right and wrong which God has communicated to man. It is true that for the most part, and practically, we know the law of nations by reason and usage; but this law is founded not on that by which we know its decisions, but on justice; and reason must admit, and usage must adopt, whatever is clearly shown to be just and right, however this may be against precedent, and what has hitherto been held to be sound reason. There is no law without justice, nor any justice without conscience, nor any conscience without God. Grotius thus admirably expresses himself:—‘Jus naturale est dictatum rectæ rationis, indicans actui aliqui, ex ejus convenientiâ aut disconvenientiâ cum ipsa naturâ rationali, inesse moralem turpitudinem, aut necessitatem moralem, ac consequenter ab auctore naturæ, Deo, talem actum vetari aut præcipi. Actus, de quibus tale extat dictatum, debiti sunt aut illiciti per se, atque ideo a Deo necessario præcepti aut vetiti intelliguntur.’[314] And this principle obtains greater force from the objections which have been made to it, and the efforts to establish another foundation for the law of nations. Thus the principle of utility is only a feeble attempt to give another name to the law of justice which God has implanted in His creatures; and to pretend to found a law on general usage and tacit consent is to mistake the evidence of justice for justice itself.”
At first sight the passage quoted from Mr Ryley’s article would seem to militate against my position; in reality we merely take up different weapons against Bynkershock and Wolf. If custom means merely precedent, it may or may not be in accordance with “that perception of right and wrong which God has communicated to man;” but if there is a tradition of a law of nations, the fact creates so great a presumption in favour of its pronouncements, that what is of usage and custom will be the criterion of what is right until the human intellect has shown that what has hitherto been held to be permissible was founded in a precedent of iniquity. On the other hand, we are agreed that the law of nations must be such as to stand the test of the “perception and judgment of right and wrong.” As this perception, however, has never wholly died out among mankind, whatever is of general acceptance carries with it an assurance that it has stood this test; and “general usage and the tacit consent” is so much “the evidence of justice,” that it has practically been taken, or mistaken by mankind “for justice itself,” and the law of nations has always been discussed on the basis of usage. This, I contend, would not have been the case if there had not been behind usage the immemorial sanction and tradition, or if the tacit consent had been only acquiescence in wrong. I am the more confirmed in this view on perceiving that Mr Ryley, after stating his own opinion as to the right of blockade, finds his conclusions, when he has discriminated such precedents as were of an exceptional and retaliatory character, to be in conformity with usage and the decision of legists.
From this point of view those who contend for the basis of tradition and those who contend for the basis of natural justice mean the same thing. They both affirm that there are limitations to human passion even in war. They are both opposed to precedents based on force, and are equally hostile to “the principle of utility,” for if, as Mr Ryley puts it, “the principle of utility” is only “another name for the law of justice which God has implanted in His creatures,” the phrase is an understatement of the truth, liable to misconstruction, and tends to lower the standard of right; and if it means something different or distinct from this, it means that against which the tradition of mankind protests.
I have already said that international law, as distinguished from the law of nations, requires to be constantly discriminated by the intellect or the conscience of mankind, and more especially now that diplomatists are no longer legists.
There was a certain indirect and collateral influence arising out of the tradition of a law of nations from the fact that a body of men existing as its interpreters, or at least as its depositaries, which it appears to me was destined to operate powerfully in the interests of peace. The existence of such a body of men perpetuated a public opinion in these matters, they fostered an esprit de corps stronger even than the spirit of nationality which then reigned supreme and dominated society. When a violation of treaties or an unjust aggression took place there was thus found a body of men who would stigmatise or at least recognise it as such. The sentiment thus sustained was not all-influential for the purposes of peace, but it was operative to the extent of arresting the attention and perturbing the consciences of mankind. In like manner I venture to say that the diplomatic body, although the depositaries only of a bastard tradition, subserve this purpose also after a fashion, and I much doubt whether many well-intentioned men, in striving to compass its abolition would not, as matters stand, destroy the last breakwater which secures the peace of Europe.