No Law of the contests between Grecian states. The very oath that was imposed upon its members shews how narrow was the circle of interests within which the league lay'; the destruction of Crissa attests the iniquity and cruelty of its acts; and its nullity as a political institution in the best days of Greece is marked by the absence of any allusion to it in the pages of Thucydides, Xenophon, Polybius, and Aristotle. If from Greece we turn to Rome, we shall find amidst all the striking differences of habits, manners, thought and action that separate these two great nations of antiquity, none more striking than the devoted cultivation of law as a science and its influence upon all their inner life by which the Romans are marked; yet in spite of the perfection to which law thus cultivated as a science and practised as an art attained, a perfection that has resulted in its "having become the national guide to future ages," and in spite of the large debt which the jurisprudence of nearly every country of Europe owes to the Roman code-that great exemplar of modern legal systems-we may safely affirm that the jurisprudence of ancient Rome is not the nidus out of which modern Inter national Law sprung. Political history, the art of war, 2 Æschin. c. Ctesip. 125. mistress of the world, international rules appealing to justice and equity, and observant of honour and faith, had no existence; and the Jus Gentium was nothing more than a synonym for the law of nature, or a fictitious system which served as a foundation for a new set of equitable as opposed to old common law regulations. The reason for this is simple. In the first place, Inter-Reasons why. national Law rests upon two great maxims-that nations are mutually independent, and that they are equal-but the history of Rome shews the exaggerated notions of Roman superiority, as well as the constant aim of the Roman people, to destroy all other power, sovereignty and independence than their own. In the next place, the chronic state of war, and the lust of conquest, which marks the history of Rome, were unfavourable to the growth of anything like that friendly union among states which is productive not only of reciprocal rights and obligations, but of reciprocal esteem. And lastly, the entire submission of the rest of the world to the Roman empire, whether as subjects or allies, effectually extinguished every vestige of independent national life, and consequently prevented all chance of the creation of International Law. To use D'Hautefeuille's words, "there was only one nation in the world, there could be no other law than what that nation sanctioned." But it has been asserted that the proofs of the existence of a law of nations among the Romans are visible in the following facts-the institution of a college of heralds and of a fecial law; the recognition of a Jus Gentium, a jurisprudence common to all nations; and the ameliorating influence of humanity, justice and law upon their military operations: we shall examine each of these very briefly, and shew how slight foundation there is for such an assertion. ciale. What then was the Jus Feciale, what were the func- The Jus Fetions of the College of Fecials, what was the influence exerted by its members upon the foreign relations of Rome? Much error and much exaggeration have ap peared in the accounts that have been written in old and adapted in later days on this subject. According to Cicero' (in whose time the fecials and their grotesque forms had lost much of their hold upon Roman life) by the fecial law (jus feciale) was decided whether a war was equitable or inequitable; according to Plutarch and Dionysius of Halicarnassus, to the fecials was referred the question of the justice or injustice of a war, on their voice hung the question of peace or war, and it was their peculiar office to settle by arbitration if possible differences that otherwise would end in hostilities. These views have been implicitly adopted by more modern authorities. Thus Grotius has stated that the old Romans first took counsel of the college of priests called Fetiales before they declared war. Bossuet has upheld the superior merits of the godless pagan over the followers of Him who preached peace and good will on earth, in the proof which this holy institution shews of an earnest desire for peace. Whilst Ward, following Vattel, thinks that modern jurisprudence might learn a lesson of moderation and equity from this part of Roman law, deeming the "very existence of a college of heralds, to preside over and expound rules expressly drawn up for their conduct towards foreigners, a proof that the Romans were a people far advanced in the law of nations considered as a science";" nor have some eminent writers of our own times distinguished with sufficient accuracy the true position of the Fetiales and the meaning of that Jus which has been ascribed to them; for in one place we read of the Fetiales as being really judges of the legality of a war; in another of the Jus Feciale, or the law of negotiation and diplomacy, being the classical expression for Inter-3 1 De Off. 1. 2. 36. 2 Plutarch, Numa, XII. Dionys. Hal. Ant. Rom. II. 72. 3 De Jure Belli et Pacis, II. 23. 4. 4 Discours sur l'histoire Universelle, 3 partie, VI. 5 Vattel, II. 14. 209. Ward, Law of Nations, Vol. I. p. 184. 6 Rein in the Real Encyklopädie der Classischen Alterthumswissenschaft, T. 1. p. 467. national Law; whilst one common mistake is, that the Roman law of peace and war was contained in a sort of Fecial jurisprudence'. It is unnecessary to examine the whole history of this remarkable institution, whether the College of Fecials owes its origin to a king (Numa or Ancus Martius) as some assert, or whether it was copied by the Romans from some of the ancient tribes that surrounded them, is of little consequence here; nor does it much matter what was the precise number of its members, or what its constitution and form, it is sufficient to know that it was a college of priests charged with the duty of observing those formalities in war which ancient custom had prescribed, and that the fecial law was the collected edition (though never published) of the formal regulations which were observed in declaring war, in carrying it on, and in concluding treaties. The functions of the Fetiales were various. First of all there can be no doubt that they were the interpreters of this Jus Fetiale, deciding all disputed points that arose out of it, and explaining its forms and ceremonies; but the next and not the least remarkable part of the duties cast upon them was that of acting as advisers to the chief magistrate in the state, not on the justice or injustice of a probable war, or upon the advisability or non-advisability of commencing hostilities, but of the proper mode in which war should be declared. Their answer was given in the shape of a decree, and it is a fact which points strongly to the conclusion that they were nothing but heralds, and mere ministers, without the power of originating laws or influencing the national policy; that no instance is recorded of their having been consulted on the policy of a war, of their having dissuaded the people from a war as unjust, or of their having ever been consulted upon the policy of 1 Maine, Ancient Law, p. 53. 2 Cic. de Legg. II. 14; De Off. II. 29. 3 Cic. de Legg. II. 14; Livy, 31. 8. * See Osenbruggen, de Jure belli et pacis Romanorum, p. 25, and Laurent, Etudes sur l'histoire de l'humanité, Tom. III. p. 16 et sq. the rules and regulations by which foreigners were permitted to reside in Rome. Of the Fecial law itself, if law it can be called, so little has come down to our time that no satisfactory explanation of it can be given. One rule however has been cited by Cicero, and noticed by other writers, which as a leading principle deserves a slight notice. "No war was justum unless preceded by a formal demand of reparation, or unless regularly and solemnly declared'." Now, all that seems to be meant by this phraseology is, that unless two particular forms were closely adhered to, and performed with all due ceremony, any hostilities that took place were not justa that is legal. Those forms were first a demand upon the offending nation to do what was right, to make reparation for injuries, or restoration of property seized, called "rerum repetitio," which was done in a set speech, and with solemn ceremony, by the chief of the Fetiales, the Pater Patratus, with a time granted for deliberation— about thirty-three days. Upon the expiration of that period without a satisfactory answer, the people in the comitia tributa (who had been informed by the Fetiales of what they had done, and how their mission had been received) deliberated on peace or war; and then, if war was decided on, the second form followed, for the Fecials were instructed to declare it; which they did in the name of the Senate of the Roman people, hurling a spear into the enemy's territory. As far therefore as war is concerned, the functions of this college of priests were few and simple; to receive the commands of the Roman people; to act upon them by performing the ceremonies prescribed and hallowed by custom; to decide as Judges upon difficulties that might arise out of the rerum repetitio; and to make the war legal or just by pronouncing the consecrated formula. But the duties of the Fecials were not confined to the declaration of hostilities or to times of war. From various 1 Cic. de Off. I. XI. 36; De Leg. 1I. IX. 21; Varro, de ling. Lat. v. § 86; Dion. Hal. Ant. 11. 72. |