Part 3

In the Middle Ages the development of these ideas received little encouragement. All laws are silent in the time of war,[25] and this was a period of war, both bloody and constant. There was no time to think of the right or wrong of anything. Moreover, the Church emphasised the lack of rights in unbelievers, and gave her blessing on their annihilation.[26] The whole Christian world was filled with the idea of a spiritual universal monarchy. Not such as that in the minds of Greek and Jew and Roman who had been able to picture international peace only under the form of a great national and exclusive empire. In this great Christian state there were to be no distinctions between nations; its sphere was bounded by the universe. But, here, there was no room or recognition for independent national states with equal and personal rights. This recognition, opposed by the Roman Church, is the real basis of international law. The Reformation was the means by which the personality of the peoples, the unity and independence of the state were first openly admitted. On this foundation, mainly at first in Protestant countries, the new science developed rapidly. Like the civil state and the Christian religion, international law may be called a peace institution.

[25] The saying is attributed to Pompey:—“Shall I, when I am preparing for war, think of the laws?”

[26] This implied, however, the idea of a united Christendom as against the infidel, with which we may compare the idea of a united Hellas against Persia. In such things we have the germ not only of international law, but of the ideal of federation.

_Grotius, Puffendorf and Vattel._

In the beginning of the seventeenth century, Grotius laid the foundations of a code of universal law (_De Jure Belli et Pacis_, 1625) independent of differences of religion, in the hope that its recognition might simplify the intercourse between the newly formed nations. The primary object of this great work, written during the misery and horrors of the Thirty Years’ war, was expressly to draw attention to these evils and suggest some methods by which the severity of warfare might be mitigated. Grotius originally meant to explain only one chapter of the law of nations:[27] his book was to be called _De Jure Belli_, but there is scarcely any subject of international law which he leaves untouched. He obtained, moreover, a general recognition for the doctrine of the Law of Nature which exerted so strong an influence upon succeeding centuries; indeed, between these two sciences, as between international law and ethics, he draws no very sharp line of demarcation, although, on the whole, in spite of an unscientific, scholastic use of quotation from authorities, his treatment of the new field is clear and comprehensive. Grotius made the attempt to set up an ethical principle of right, in the stead of such doctrines of self-interest as had been held by many of the ancient writers. There was a law, he held, established in each state purely with a view to the interests of that state, but, besides this, there was another higher law in the interest of the whole society of nations. Its origin was divine; the reason of man commanded his obedience. This was what we call international law.[28]

[27] See Maine’s _Ancient Law_, pp. 50-53: pp. 96-101. Grotius wrongly understood “Jus Gentium,” (“a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various Italian tribes”) to mean “Jus _inter_ gentes.” The Roman expression for International Law was not “Jus Gentium,” but “Jus Feciale.”

“Having adopted from the Antonine jurisconsults,” says Maine, “the position that the Jus Gentium and the Jus Naturæ were identical, Grotius, with his immediate predecessors and his immediate successors, attributed to the Law of Nature an authority which would never perhaps have been claimed for it, if “Law of Nations” had not in that age been an ambiguous expression. They laid down unreservedly that Natural Law is the code of states, and thus put in operation a process which has continued almost down to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the unassisted contemplation of the conception of Nature. There is, too, one consequence of immense practical importance to mankind which, though not unknown during the early modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed. If the society of nations is governed by Natural Law, the atoms which compose it must be absolutely equal. Men under the sceptre of Nature are all equal, and accordingly commonwealths are equal if the international state be one of nature. The proposition that independent communities, however different in size and power, are all equal in the view of the Law of Nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age. It is a doctrine which probably would never have obtained a secure footing at all if International Law had not been entirely derived from the majestic claims of Nature by the Publicists who wrote after the revival of letters.” (_Op. cit._, p. 100.)

[28] The name “International Law” was first given to the law of nations by Bentham. (_Principles of Morals and Legislation, XIX._ § xxv.)

Grotius distinctly holds, like Kant and Rousseau, and unlike Hobbes, that the state can never be regarded as a unity or institution separable from the people; the terms _civitas_, _communitas_, _coetus_, _populus_, he uses indiscriminately. But these nations, these independent units of society cannot live together side by side just as they like; they must recognise one another as members of a European society of states.[29] Law, he said, stands above force even in war, “which may only be begun to pursue the right;” and the beginning and manner of conduct of war rests on fixed laws and can be justified only in certain cases. War is not to be done away with: Grotius accepts it as fact,[30] (as Hobbes did later) as the natural method for settling the disputes which were bound constantly to arise between so many independent and sovereign nations. A terrible scourge it must ever remain, but as the only available form of legal procedure, it is sanctioned by the practice of states and not less by the law of nature and of nations. Grotius did not advance beyond this position. Every violation of the law of nations can be settled but in one way—by war, the force of the stronger.

[29] In the Peace of Westphalia, 1648, the balance of power in Europe was recognised on the basis of terms such as these.

[30] Grotius, however, is a painstaking student of Scripture, and is willing to say something in favour of peace—not a permanent peace, that is to say, the idea of which would scarcely be likely to occur to anyone in the early years of the seventeenth century—but a plea for fewer, shorter wars. “If therefore,” he says, “a peace sufficiently safe can be had, it is not ill secured by the condonation of offenses, and damages, and expenses: especially among Christians, to whom the Lord has given his peace as his legacy. And so St. Paul, his best interpreter, exhorts us to live at peace with all men.... May God write these lessons—He who alone can—on the hearts of all those who have the affairs of Christendom in their hands.” (_De Jure Belli et Pacis_, III. Ch. XXV., Whewell’s translation.)

See also _op. cit._, II., Ch. XXIII., Sect. VIII., where Grotius recommends that Congresses of Christian Powers should be held with a view to the peaceful settlement of international differences.

The necessary distinction between law and ethics was drawn by Puffendorf,[31] a successor of Grotius who gave an outwardly systematic form to the doctrine of the great jurist, without adding to it either strength or completeness. His views, when they were not based upon the system of Grotius, were strongly influenced by the speculation of Hobbes, his chronological predecessor, to whom we shall have later occasion to refer. In the works of Vattel,[32] who was, next to Rousseau, the most celebrated of Swiss publicists, we find the theory of the customs and practice in war widely developed, and the necessity for humanising its methods and limiting its destructive effects upon neutral countries strongly emphasised. Grotius and Puffendorf, while they recommend acts of mercy, hold that there is legally no right which requires that a conquered enemy shall be spared. This is a matter of humanity alone. It is to the praise of Vattel that he did much to popularise among the highest and most powerful classes of society, ideas of humanity in warfare, and of the rights and obligations of nations. He is, moreover, the first to make a clear separation between this science and the Law of Nature. What, he asks, is international law as distinguished from the Law of Nature? What are the powers of a state and the duties of nations to one another? What are the causes of quarrel among nations, and what the means by which they can be settled without any sacrifice of dignity?

[31] Puffendorf’s best known work, _De Jure Naturæ et Gentium_, was published in 1672.

[32] _Le Droit des Gens_ was published in 1758 and translated into English by Joseph Chitty in 1797, (2nd ed., 1834).

They are, in the first place, a friendly conciliatory attitude; and secondly, such means of settlement as mediation, arbitration and Peace Congresses. These are the refuges of a peace-loving nation, in cases where vital interests are not at stake. “Nature gives us no right to use force, except where mild and conciliatory measures are useless.” (_Law of Nations_, II. Ch. xviii. § 331.) “Every power owes it in this matter to the happiness of human society to show itself ready for every means of reconciliation, in cases where the interests at stake are neither vital nor important.” (_ibid._ § 332.) At the same time, it is never advisable that a nation should forgive an insult which it has not the power to resent.

_The Dream of a Perpetual Peace._

But side by side with this development and gradual popularisation of the new science of International Law, ideas of a less practical, but not less fruitful kind had been steadily making their way and obtaining a strong hold upon the popular mind. The Decree of Eternal Pacification of 1495 had abolished private war, one of the heavy curses of the Middle Ages. Why should it not be extended to banish warfare between states as well? Gradually one proposal after another was made to attain this end, or, at least, to smooth the way for its future realisation. The first of these in point of time is to be found in a somewhat bare, vague form in Sully’s _Memoirs_,[33] said to have been published in 1634. Half a century later the Quaker William Penn suggested an international tribunal of arbitration in the interests of peace.[34] But it was by the French Abbé St. Pierre that the problem of perpetual peace was fairly introduced into political literature: and this, in an age of cabinet and dynastic wars, while the dreary cost of the war of the Spanish succession was yet unpaid. St. Pierre was the first who really clearly realised and endeavoured to prove that the establishment of a permanent state of peace is not only in the interest of the weaker, but is required by the European society of nations and by the reason of man. From the beginning of the history of humanity, poets and prophets had cherished the “sweet dream” of a peaceful civilisation: it is in the form of a practical project that this idea is new.

[33] _Mémoires ou Œconomies Royales D’Estat, Domestiques, Politiques et Militaires de Henri le Grand, par Maximilian de Bethune, Duc de Sully._

[34] See _International Tribunals_ (1899), p. 20 _seq._ Penn’s _Essay towards the Present and Future Peace of Europe_ was written about 1693, but is not included in all editions of his works.

The ancient world actually represented a state of what was almost perpetual war. This was the reality which confronted man, his inevitable doom, it seemed, as it had been pronounced to the fallen sinners of Eden. Peace was something which man had enjoyed once, but forfeited. The myth- and poetry-loving Greeks, and, later, the poets of Rome delighted to paint a state of eternal peace, not as something to whose coming they could look forward in the future, but as a golden age of purity whose records lay buried in the past, a paradise which had been, but which was no more. Voices, more scientific, were raised even in Greece in attempts, such as Aristotle’s, to show that the evolution of man had been not a course of degeneration from perfection, but of continual progress upwards from barbarism to civilisation and culture. But the change in popular thinking on this matter was due less to the arguments of philosophy than to a practical experience of the causes which operate in the interests of peace. The foundation of a universal empire under Alexander the Great gave temporary rest to nations heretofore incessantly at war. Here was a proof that the Divine Will had not decreed that man was to work out his punishment under unchanging conditions of perpetual warfare. This idea of a universal empire became the Greek ideal of a perpetual peace. Such an empire was, in the language of the Stoics, a world-state in which all men had rights of citizenship, in which all other nations were absorbed.

Parallel to this ideal among the Greeks, we find the hope in Israel of a Messiah whose coming was to bring peace, not only to the Jewish race, but to all the nations of the earth. This idea stands out in the sharpest contrast to the early nationalism of the Hebrew people, who regarded every stranger as an idolater and an enemy. The prophecies of Judaism, combined with the cosmopolitan ideas of Greece, were the source of the idea, which is expressed in the teaching of Christ, of a spiritual world-empire, an empire held together solely by the tie of a common religion.

This hope of peace did not actually die during the first thousand years of our era, nor even under the morally stagnating influences of the Middle Ages. When feudalism and private war were abolished in Europe, it wakened to a new life. Not merely in the mouths of poets and religious enthusiasts was the cry raised against war, but by scholars like Thomas More and Erasmus, jurists like Gentilis and Grotius, men high in the state and in the eyes of Europe like Henry IV. of France and the Duc de Sully or the Abbé de St. Pierre whose _Projet de Paix Perpétuelle_ (1713)[35] obtained immediate popularity and wide-spread fame. The first half of the eighteenth century was already prepared to receive and mature a plan of this kind.

[35] _Projet de traité pour rendre la paix perpétuelle entre les souverains chrétiens._ The first two volumes of this work were published in 1713 (trans. London, 1714); a third volume followed in 1717.

_Henry IV. and St. Pierre._

The _Grand Dessein_ of Henry IV. is supposed to have been formed by that monarch and reproduced in Sully’s _Memoirs_, written in 1634 and discovered nearly a century later by St. Pierre. The story goes that the Abbé found the book buried in an old garden. It has been shewn, however, that there is little likelihood that this project actually originated with the king, who probably corresponded fairly well to Voltaire’s picture of him as war hero of the _Henriade_. The plan was more likely conceived by Sully, and ascribed to the popular king for the sake of the better hearing and greater influence it might in this way be likely to have, and also because, thereby, it might be less likely to create offence in political circles. St. Pierre himself may or may not have been acquainted with the facts.

The so-called _Grand Dessein_ of Henry IV. was, shortly, as follows.[36] It proposed to divide Europe between fifteen Powers,[37] in such a manner that the balance of power should be established and preserved. These were to form a Christian republic on the basis of the freedom and equality of its members, the armed forces of the federation being supported by fixed contribution. A general council, consisting of representatives from the fifteen states, was to make all laws necessary for cementing the union thus formed and for maintaining the order once established. It would also be the business of this senate to “deliberate on questions that might arise, to occupy themselves with discussing different interests, to settle quarrels amicably, to throw light upon and arrange all the civil, political and religious affairs of Europe, whether internal or foreign.” (_Mémoires_, vol. VI., p. 129 _seq._)

[36] The main articles of this and other peace projects are to be found in _International Tribunals_, published by the Peace Society.

[37] Professor Lorimer points out that Prussia, then the Duchy of Brandenburg, is not mentioned. (_Institutes of the Law of Nations_, II. Ch. VII., p. 219.)

This scheme of the king or his minister was expanded with great thoroughness and clear-sightedness by the Abbé St. Pierre: none of the many later plans for a perpetual peace has been so perfect in details. He proposes that there should be a permanent and perpetual union between, if possible, all Christian sovereigns—of whom he suggests nineteen, excluding the Czar—“to preserve unbroken peace in Europe,” and that a permanent Congress or senate should be formed by deputies of the federated states. The union should protect weak sovereigns, minors during a regency, and so on, and should banish civil as well as international war—it should “render prompt and adequate assistance to rulers and chief magistrates against seditious persons and rebels.” All warfare henceforth is to be waged between the troops of the federation—each nation contributing an equal number—and the enemies of European security, whether outsiders or rebellious members of the union. Otherwise, where it is possible, all disputes occurring within the union are to be settled by the arbitration of the senate, and the combined military force of the federation is to be applied to drive the Turks out of Europe. There is to be a rational rearrangement of boundaries, but after this no change is to be permitted in the map of Europe. The union should bind itself to tolerate the different forms of faith.

The objections to St. Pierre’s scheme are, many of them, obvious. He himself produces sixty-two arguments likely to be raised against his plan, and he examines these in turn with acuteness and eloquence. But there are other criticisms which he was less likely to be able to forestall. Of the nineteen states he names as a basis of the federation, some have disappeared and the governments of others have completely changed. Indeed St. Pierre’s scheme did not look far beyond the present. But it has besides a too strongly political character.[38] From this point of view, the Abbé’s plan amounts practically to a European coalition against the Ottoman Empire. Moreover, we notice with a smile that the French statesman and patriot is not lost in the cosmopolitan political reformer. “The kingdom of Spain shall not go out of the House of Bourbon!”[39] France is to enjoy more than the privileges of honour; she is to reap distinct material and political advantages from the union. Humanity is to be a brotherhood, but, in the federation of nations, France is to stand first.[40] We see that these “rêves d’un homme de bien,” as Cardinal Dubois called them, are not without their practical element. But the great mistake of St. Pierre is this: he actually thought that his plan could be put into execution in the near future, that an ideal of this kind was realisable at once.[41] “I, myself, form’d it,” he says in the preface, “in full expectation to see it one Day executed.” As Hobbes, says, “there can be nothing so absurd, but may be found in the books of philosophers.”[42] St. Pierre was not content to make his influence felt on the statesmen of his time and prepare the way for the abolition of all arbitrary forms of government. This was the flaw which drew down upon the good Abbé Voltaire’s sneering epigram[43] and the irony of Leibniz.[44] Here, above all, in this unpractical enthusiasm his scheme differs from that of Kant.

[38] The same objection was raised by Leibniz (see his _Observations_ on St. Pierre’s _Projet_) to the scheme of Henry IV., who, says Leibniz, thought more of overthrowing the house of Austria than of establishing a society of sovereigns.

[39] _Project_, Art. VI., Eng. trans. (1714), p. 119.

[40] St. Pierre was not blind to this aspect of the question. Among the critical objections which he anticipates to his plan is this,—that it promises too great an increase of strength to the house of France, and that therefore the author would have been wiser to conceal his nationality.

[41] St. Pierre, in what may be called an apology for the wording of the title of his book (above, p. 32, _note_), justifies his confidence in these words:—“The Pilot who himself seems uncertain of the Success of his Voyage is not likely to persuade the Passenger to embark.... I am persuaded, that it is not impossible to find out Means sufficient and practicable to settle an Everlasting Peace among Christians; and even believe, that the Means which I have thought of are of that Nature.” (Preface to _Project_, Eng. trans., 1714.)

[42] _Leviathan_, I. Ch. V.

[43] See too Voltaire’s allusion to St. Pierre in his _Dictionary_, under “Religion.”

[44] Leibniz regarded the project of St. Pierre with an indifference, somewhat tinged with contempt. In a letter to Grimarest, (_Leibnit. Opera_, Dutens’ ed., 1768, Vol. V., pp. 65, 66: in _Epist._, ed. Kortholt., Vol. III., p. 327) he writes:—“I have seen something of M. de St. Pierre’s plan for maintaining perpetual peace in Europe. It reminds me of an inscription outside of a churchyard which ran, ‘_Pax Perpetua_. For the dead, it is true, fight no more. But the living, are of another mind, and the mightiest among them have little respect for tribunals.’” This is followed by the ironical suggestion that a court of arbitration should be established at Rome of which the Pope should be made president; while at the same time the old spiritual authority should be restored to the Church, and excommunication be the punishment of non-compliance with the arbitral decree. “Such plans,” he adds, “are as likely to succeed as that of M. de St. Pierre. But as we are allowed to write novels, why should we find fault with fiction which would bring back the golden age?” But see also _Observations sur le Projet d’une Paix Perpétuelle de M. l’Abbé de St. Pierre_ (Dutens, V., esp. p. 56) and the letter to Remond de Montmort (_ibid._ pp. 20, 21) where Leibniz considers this project rather more seriously.

_Rousseau’s Criticism of St. Pierre._