International law history

About the end of the thirteenth century, there were more than one hundred ecclesiastical sovereign states within the limits of the German Empire. Now we can readily infer what all this means in the contest between Feudalism and the Roman Jurisprudence. The bishops were nurtured in this latter system, they were hostile to the usages of Feudalism, they had no desire to perpetuate the sway of their own families. Consequently in all the ecclesiastical states the principles of the Roman Jurisprudence were to a greater or less extent introduced or restored. And precisely the same thing happened with the great Free Cities of the North, known as the Hanseatic League, to which we have already referred.

All these things contributed to establish the Roman System side by side with Feudalism in Germany and to perpetuate it. Even the transfer of the imperial title to the German monarchs, and the frequent visits of the German Emperors to be crowned at Rome, together with the sentimental desire on their part to revive not only the Roman Empire, but all the incidents of that Empire, including therein of course the Roman Jurisprudence, were powerful factors in the revival of the principles of the Roman Law in Germany. The Lutheran Reformation checked this movement by the enlargement of the powers of the petty feudal princes, who, in consequence of it, became absolute monarchs within their own dominions, and found the usages of Feudalism more in accordance with their selfish purpose than the principles of the Roman Jurisprudence. But the free spirit which first found vent in the American Revolution, and which speedily reacted upon Europe, ultimately leading to the French Revolution of 1789, began also to make headway in Germany about the same time, and led to the promulgation of new codes of law both in Prussia and Austria, mainly upon the lines of the Roman Law, and ultimately to the adoption of the Code Napoleon, by all the States of Germany.

There is yet another phase of the great contest. In the course of it the Christian Church laid the foundations of modern International Law. Private International Law, as it has been called, or the Conflict of Laws, as it has sometimes been known, had been very fully developed by the Praetor Peregrinus at Rome in the administration of justice between Roman citizens and foreigners domiciled at Rome, and in controversies between foreigners themselves of different nationalities; and modern civilization has added little or nothing to the rules of the Roman Law upon this subject. But it was reserved for the Christian Church of the Middle Ages to deal with the nations as nations, and to procure them to deal with each other as members of the common family of States, upon principles of equity and justice, and in accordance with the tenets of Christianity. Feudalism was no more than organized brigandage; and it tended to make every nation, and every petty principality, and every man, the enemy of every other nation, and principality, and human being.

Feudalism was a state of society, in which every man capable of bearing arms may be said to have slept upon his arms, ever ready to be roused to the sound of battle, and in which every alien was regarded prima facie as an enemy. The Christian Church ever sought to superinduce a kindlier feeling, to induce the nations to refrain from border warfare, and to submit their controversies to arbitration; and many a controversy between nations in the Middle Ages was submitted to the Roman Pontiff as arbitrator. We may recall one famous controversy towards the end of the period, which is most interesting to us as having reference to our own America.

At the end of the fifteenth century, when Columbus had just discovered America, Spain and Portugal led all the nations of Europe and of the world in maritime enterprise. While the great Genoese, and Alonzo de Ojeda, and Amerigo Vespucci, and other famous adventurers, were engaged in the discovery and exploration of a new world for Castille and Leon, Bartholemew Diaz, in the services of Portugal, pushed southward along the coast of Africa and doubled the Cape of Good Hope, being the first to do so since the time of Pharoah Necho, King of Egypt. Following in his wake, the great Portuguese navigator, Vasco de Gama, sailed through the straits of Mozambique, plunged boldly into the unknown wastes of the Indian Ocean, and reached the coast of Hindustan.

A controversy arose between Spain and Portugal as to their respective spheres of action and their dominion over the discovered region beyond the Ocean. The controversy was submitted to Pope Alexander VI as arbitrator. Drawing a meridian line north and south some distance west of the Azores, the Pontiff allotted all the discoveries west of that line to Spain and all east of it to Portugal. It so happened that a few years afterwards, in A.D. 1500, the Portuguese navigator Pedro Alvarez Cabral, bound on a voyage to Hindustan, was driven out of his course by a storm on the west coast of Africa, and came on the shores of Brazil. The land which he discovered was east of the meridian line drawn by Pope Alexander, and became Portuguese territory, while elsewhere to the west the power of Spain became dominant. The arbitration was a notable one; it was readily accepted by both parties; and it removed for all time all danger of conflict between Spain and Portugal in respect of their maritime enterprises and colonial acquisitions. (Note. - The action of Pope Alexander VI, who has sins enough for which to answer without the imputation to him of sins of which he is not guilty, has been misrepresented by various writers who knew better, as an attempt on his part to give the islands of the sea, as though he claimed dominion over them, to Spain and Portugal. The act of the Pope, as is very apparent from the documents themselves in which the controversy was stated and decided, was purely and simply an arbitration, and not an evidence of any assumption of papal ownership or authority over these trans-Atlantic lands.)