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PROGRESS OF THE LAW OF NATIONS.
The Law of Nations, in its present extent and with its present comparative excellence, did not spring into being at once. On the contrary, it was gradual and slow in its growth, having every where expanded and purified itself, in a greater or less degree of conformity with the expansion, purification, and elevation of the human intellect. As far back as the flourishing periods of Greece and Rome, we discover the seeds, the beginnings of this law. It is right to presume, that even then its principles were in some degree recognized and put in practice, although, with the single exception of a Treatise of Aristotle on the laws of war, now lost, there seems to be no evidence of their having been embodied in the form of a science.* It is pleasing to observe, that during the Peloponessian war, a convention was formed between Athens and Sparta, by which they agreed upon a mutual surrender and exchange of prisoners; a measure honorable to its authors and far above the prevalent maxims and policy of the age. In general, the nations of antiquity, even those that were most enlightened, seem to have had but a feeble conviction, that the principles of truth, justice, and humanity, which were
* Grotius, Preliminary Discourse, $ 37 :-Discourse of Sir James Mackintosh on the Law of Nature and Nations, p. 16. 2d Ed.
acknowledged to be obligatory on individuals, are equally obligatory on nations. It was undoubtedly difficult for men in their situation, constantly contending either for empire or existence, and environed by a multitude of adverse influences, to elevate their thoughts to the comprehension and belief of the sublime doctrine of Christianity, that all mankind are brethren ; that no distinctions of clime, country, or language can sunder the ties of brotherhood, and annul its beneficent requisitions. It is here we discover the great defect of their position; they restricted not only their sympathies and kindness, but the exercise of justice to their own nation, and were led to look upon a stranger, nearly in the same light as an enemy. It was in consequence of this undue restriction of the better principles of our nature to their own people, and this perversion of the moral sentiment in relation to strangers, that the civilized and polished Greeks were induced to approve and practice the odious crime of piracy. “There were powerful Grecian states, says Chancellor Kent, that avowed the practice of piracy; and the fleets of Athens, the best disciplined and most respectable naval force in all antiquity, were exceedingly addicted to piratical excursions. It was the received opinion, that Greeks were bound to no duties, nor by any moral law without compact, and that prisoners taken in war had no rights, and might lawfully be put to death, or sold into perpetual slavery, with their wives and children."*—The Romans appear to have exhibited a more determinate and correct sense of what was due to other nations than the Greeks ; and yet it cannot be denied that their history discloses abundant instances of cunning and prevarication, of pride and cruelty, altogether inconsistent with that rectitude, magnanimity, and benevolence, which enlightened conscience, as *Kent's Commentaries, Lect. I, -Potter's Antiquities, Book III, Chap. 10,12.
well as Christianity, teaches us ought to characterize the dealings of man with man, and of nation with nation. Their historians make mention of the jus belli and the jus gentium ; but the code, which they designated by such appellations, if such it may be called, was abundantly imperfect in some of its requisitions, impolitic and cruel in others, and would at once be rejected at the present day, as discordant with the rights and the well-being of man.
If we examine the history of the human race at later periods, during the first ages of the Christian era, and down through the days of chivalry, we shall find renewed proofs, how little the duties, owed by one nation to another, were understood and practised. At some periods since the commencement of the Christian era, international law seems to have been thrown back to a point of depression below its position, previous to the annunciation of Christianity among Gentile nations.
But on the whole, it may be looked upon as slowly progressive. While it has remained stationary in some respects, it has proceeded from step to step in others, and has attempted, with a partial success at least, to complete what was deficient, and correct what was erroneous.
A few facts will more fully illustrate what we mean. It was originally an established principle, that, if a merchant vessel were wrecked upon a foreign coast, the wreck became the property of the occupants of the coast, although the real owners were living. It was an established principle also, equally characterized by injustice, that, if a person resident in a foreign country died there, his property, instead of descending to those, whom he designed and wished to be his heirs, was taken for the use and benefit of the country, where he happened to be resident at the time of his death. In both of these particulars, a great improvement has been made in the law
of nations. It was originally one of the laws of war, that the prisoners, taken in the progress of a contest, might be put to death. The conqueror was supposed to possess complete power over the captured ; and but little hesitation was manifested in taking their lives, if their preservation would not answer the conqueror's purposes better.* And in point of fact, this was not unfrequently the case, especially among nations but a little removed from the savage state. Even the high-minded Romans are not altogether free from this charge. A recent writer, after remarking that their captives were led behind the chariot wheels of the victorious Roman general, adds, that death itself by the executioner in prison was sometimes the closing scene of this inhuman spectacle.t In process of time less cruel sentiments were entertained, and it seems to have become the settled practice to retain prisoners of war as slaves, and to employ them as such. But when it was considered, that a permanent detention from one's native country is but a little more favorable than immediate death, a further change took place, and the laws, which regulate the state of hostility among nations, now require an exchange of prisoners; a change of principles and practice, which cannot be regarded otherwise than an improvement. According to the modern law of nations, prisoners are treated in every respect much more favorably than they were formerly; but it is exceedingly humiliating to observe, how slow and hesitating mankind were in arriving at these results. We find instances of the reduction of prisoners to slavery, in the history of Europe, as far down as the fourteenth century, and it is only at a period somewhat later, that we find the practice branded with the published and practised disapprobation of the whole civilized world.
• Grotius, Book III, Chap. 7.- Ward's Law of Nations, Vol. I. pp. 190. 251, 298.