that this intercourse was in time of peace as well as of war and, to a limited extent, was of a friendly nature. The relations and intercourse between communities and peoples were, however, largely dominated by force. War was then the habitual method of arranging disputes between communities and for obtaining desired advantages. Peace was conventional in more senses than one. It existed from special agreements and conventions. The foreigner was normally an enemy and, as a stranger, at least a subject of suspicion and avoidance, if not of open enmity and savage cruelty. In most histories of the international relations of the peoples of the world in early times the accounts begin with the Greeks and Romans and their times, as showing the beginning of the rules of international law. But more recent investigation and archæological discoveries develop the fact that though, as intimated, war was the habitual intercourse between the larger groups of men and communities before the Greeks and Romans, it was not always the case. Sir Henry Maine says: "Man has never been so ferocious or so stupid as to submit to such an evil as war without some effort to prevent it. It is not always easy to read the tokens of his desire and endeavor to obviate war or to diminish its cruelties; it takes some time. to interpret these signs; but when attention is directed to them they are quite unmistakable. The number of ancient institutions which bear the marks of a design to stand in the way of war, and to provide an alternative to it, is exceedingly great. There are numerous old forms of trial discoverable in a great number of countries and in a great number of races in which, among the ceremonial acts of the parties, you can see evidences of a mimic combat. The Roman sacramentum is the best and most familiar instance of this. What we call a judicial proceeding is obviously taking the place of a fight."1 "The history of the international relations of antiquity," says Hershey, "is by no means one of unrestrained conquest 1 1 Maine, "Int. Law," pp. 11, 12. and slaughter, as too often represented by the older historians. The ancient Egyptians, the Babylonians or Chaldeans, the East Indians, and the Chinese were in the main peaceful, agricultural, and industrial peoples, averse to bloodshed and conquest except when driven thereto by great warriors or conquerors. The Assyrians, the Hebrews, the Phoenicians and Carthaginians, and the Greeks and Romans appear, on the other hand, to have been more warlike and bloodthirsty."1 15. Code of Manu.-In India there existed the code or ordinances of Manu, probably compiled about 500 B. C., in which we find a humane set of instructions or recommendations for warfare that are creditable alike to the author and to the probable war practices of the times. In these ordinances it is required that "one should not, fighting in battles, slay enemies by concealed weapons nor with barbed or poisoned (weapons) nor with fire-kindled arrows. Nor should one (mounted) slay an enemy down on the ground, a suppliant one with loosened hair, one seated, one who says 'I am thy prisoner'; nor one asleep, one without armor, one naked, one without weapons, one not fighting, a looker-on, one engaged with another; nor one who has his arm broken, a distressed man, one badly hit, one afraid, one who has fled; remembering virtue (one should not slay them)." 16. The Hebrews. So far as the Hebrews were concerned, their action and the policy enjoined upon them by Moses, the Jewish lawgiver, was drastic and at times very cruel. Especially is this found to be the case in the chapters of the book of Deuteronomy toward the seven nations who were the original inhabitants of the promised land of the Hebrews. In the initial verses of the seventh chapter of this book it reads that "When the Lord thy God shall bring thee into the land whither thou goest to possess it, and hath cast out many 1 Hershey, "Essentials," pp. 28, 29. 2 "Ordinances of Manu," Burnell and Hopkins, London, 1891 (quoted by Hershey, pp. 30, 31), lect. VII, nos. 90–93. nations before thee, the Hittites, the Gergashites, and the Amorites and the Canaanites and the Perizzites, and the Hivites and Jebusites, seven nations greater and mightier than thou; and when the Lord thy God shall deliver them before thee; thou shalt smite them, and utterly destroy them; thou shalt make no covenant with them, nor shew mercy upon them; neither shalt thou make marriages with them; thy daughter thou shalt not give unto his son, nor his daughter shalt thou take unto thy son. For they will turn away thy son from following me, that they may serve other gods; so will the anger of the Lord be kindled against you, and destroy thee suddenly." Although during war the Hebrews were, as has been quoted, savage in their instructions and practice, with the nations concerned, still with other peoples than the seven nations their conduct was directed to be less severe. In the twentieth chapter of the same book of Deuteronomy (tenth verse, etc.), it is enjoined that "When thou comest nigh unto a city to fight against it, then proclaim peace unto it. And it shall be, if it make thee answer of peace, and open unto thee, then shall it be, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee. And if it will make no peace with thee, but will make war with thee then thou shalt besiege it; and when the Lord thy God hath delivered it unto thine hands, thou shalt smite every male thereof with the edge of the sword; but the women and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee." Savage as were the Hebrews in their wars, they were no worse than the surrounding nations while in times of peace they entered into friendly relations with others and protected the strangers within their gates." Hiram of Tyre was an ally of David, and under Solomon Jewish merchant vessels visited and traded in safety with distant countries. 66 17. Other Intercourse of the Ancients. The earliest treaty whose text has been transmitted to our times is said to be that between Rameses II (the Pharaoh who knew not Joseph) and the King of the Hittites, dated about 1272 B. C. In this treaty is recognized full reciprocity and equality between the two kings and provision is made for the mutual extradition of political refugees and humane treatment of immigrants. As to foreign commerce, however, it may be said that its conduct in these times approached if it did not quite reach plunder and piracy. Besides being cruel and barbaric in their warfare, the Phoenicians were said by the Greek writers to be practised pirates, while Montesquieu, a French writer, says that "Carthage had a peculiar law of nations. She caused all strangers who traded in Sardinia and toward the pillars of Hercules to be drowned." 1 Laurent, a Belgian writer, mentions, as a relieving feature of these times, that the Persians, ever barbarous in their warfare, had at their court a minister whose duty it was to care for and entertain foreign guests. He goes on to say that "it is a beautiful symbol of the mission which belongs to the department of foreign affairs. The diplomacy of the future, ceasing to be inspired with hate, will have no more important function than that of cultivating relations of friendship between nations." 2 18. International Laws and Usages of the Greeks. In times of peace the mutual relations of the Greek cities were characterized by exclusiveness. Throughout Greece the state of citizenship was a privilege that was jealously guarded against the foreigner. The Athenians were reputed to be the most hospitable of the Greeks, but even at Athens the domiciled aliens, while they enjoyed the protection of the local laws through the agency of their patron, were subjected to special taxation and were liable to compulsory service in the rank of hoplites or in the galleys. 1 Montesquieu, "Esprit des Lois," book XXI, chap. II. Sparta, in her early days, refused on the one hand to permit strangers to reside within her limits, and on the other hand forbade her citizens to live abroad. Greek care for the stranger was at its best in the treaties agreed upon for the mutual administration of justice to the stranger.1 As to war practice it may be said that the herald and trophy were inviolate and that truces were fairly observed. Otherwise it was cruel and severe. No mercy was expected or given to the defenders of a city taken by assault. Prisoners were held as slaves or killed in cold blood. Captives were maimed or branded. The water-supply of a city under siege was poisoned by Solon and the inhabitants of a peaceful country town were massacred by directions of an Athenian. The rude outlines of the public laws of war observed by the Grecian states are given by Wheaton as follows:2 (1) The rights of sepulture were not to be denied to those slain in battle. (2) After a victory no durable trophy was to be erected. (3) When a city was taken, those who took refuge in the temples could not lawfully be put to death. (4) Those guilty of sacrilege were denied the rights of sepulture. (5) All the Greeks were allowed in time of war, as well as of peace, to consult the oracles, to resort to the public games and temples, and to sacrifice there without molestation. These limitations of the extreme rights of war were enforced by the Amphyctional Council, which, as a religious institution, had jurisdiction over international violations of religious laws and customs. 19. International Intercourse and Laws of the Romans.As to the Romans-in the first period of her history, when Rome was one of several petty states on the Italian peninsula, the practice of Rome in her external relations shows customs 1 Walker, "History of the Law of Nations," pp. 40, 41. |