The passage was one of great importance to the history of the doctrine before us. The American lawyers， in thus prominently and emphatically affirming the fundamental equality of human beings， gave an impulse to political movements in their own country， and in a less degree in Great Britain， which is far from having yet spent itself； but besides this they returned the dogma they had adopted to its home in France， endowed with vastly greater energy and enjoying much greater claims on general reception and respect. Even the more cautious politicians of the first Constituent Assembly repeated Ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind； and of all the "principles of 1789" it is the one which has been least strenuously assailed， which has most thoroughly leavened modern opinion， and which promises to modify most deeply the constitution of societies and the politics of states.
The grandest function of the Law of Nature was discharged in giving birth to modern International Law and to the modern Law of War， but this part of its effects must here be dismissed with consideration very unequal to its importance.
Among the postulates which form the foundation of International Law， or of so much of it as retains the figure which it received from its original architects， there are two or three of pre-eminent importance. The first of all is expressed in the position that there is a determinable Law of Nature. Grotius and his successor took the assumption directly from the Romans， but they differed widely from the Roman jurisconsults and from each other in their ideas as to the mode of determination. The ambition of almost every Publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of Nature and of her law， and it is indisputable that the conception in passing through the long series of writers on Public Law has gathered round it a large accretion， consisting of fragments of ideas derived from nearly every theory of ethic which has in its turn taken possession of the schools. Yet it is a remarkable proof of the essentially historical character of the conception that， after all the efforts which have been made to evolve the code of nature from the necessary characteristic of the natural state， so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the Roman lawyers without questioning or reviewing them. Setting aside the Conventional or Treaty Law of Nations， it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the jurisconsult affirmed by them to be in harmony with the Jus Gentium， the publicists have found a reason for borrowing it， however plainly it may bear the marks of a distinctively Roman origin. We may observe too that the derivative theories are afflicted with the weakness of the primary notion. In the majority of the Publicists， the mode of thought is still "mixed." In studying these writers， the great difficulty is always to discover whether they are discussing law or morality —— whether the state of international relations they describe is actual or ideal —— whether they lay down that which is， or that which， in their opinion， ought to be.
The assumption that Natural Law is binding on states inter se is the next in rank of those which underlie International Law. A series of assertions or admissions of this principle may be traced up to the very infancy of modern juridical science， and at first sight it seems a direct inference from the teaching of the Romans. The civil condition of society being distinguished from the natural by the fact that in the first there is a distinct author of law， while in the last there is none， it appears as if the moment a number of units were acknowledged to obey no common sovereign or political superior they were thrown back on the ulterior behests of the Law Natural. States are such units； the hypothesis of their independence excludes the notion of a common lawgiver， and draws with it， therefore， according to a certain range of ideas， the notion of subjection to the primeval order of nature. The alternative is to consider independent communities as not related to each other by any law， but this condition of lawlessness is exactly the vacuum which the Nature of the jurisconsults abhorred. There is certainly apparent reason for thinking that if the mind of a Roman lawyer rested on any sphere from which civil law was banished， it would instantly fill the void with the ordinances of Nature. It is never safe， however， to assume that conclusions， however certain and immediate in our own eyes， were actually drawn at any period of history. No passage has ever been adduced from the remains of Roman law which， in my judgment， proves the jurisconsults to have believed natural law to have obligatory force between independent commonwealths； and we cannot but see that to citizens of the Roman empire who regarded their sovereign's dominions as conterminous with civilisation， the equal subjection of states to the Law of Nature， if contemplated at all， must have seemed at most an extreme result of curious speculation. The truth appears to be that modern International Law， undoubted as is its descent from Roman law， is only connected with it by an irregular filiation. The early modern interpreters of the jurisprudence of Rome， misconceiving the meaning of Jus Gentium， assumed without hesitation that the Romans had bequeathed to them a system of rules for the adjustment of international transactions. This "Law of Nations" was at first an authority which had formidable competitors to strive with， and the condition of Europe was long such as to preclude its universal reception. Gradually， however， the western world arranged itself in a form more favourable to the theory of the civilians； circumstances destroyed the credit of rival doctrines； and at last， at a peculiarly felicitous conjuncture， Ayala and Grotius were able to obtain for it the enthusiastic assent of Europe， an assent which has been over and over again renewed in every variety of solemn engagement. The great men to whom its triumph is chiefly owing attempted， it need scarcely be said， to place it on an entirely new basis， and it is unquestionable that in the course of this displacement they altered much of its structure， though far less of it than is commonly supposed. Having adopted from the Antonine jurisconsults the position that the Jus Gentium and the Jus Naturae 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.
On the whole， however， it is astonishing， as I have observed before， how small a proportion the additions made to international Law since Grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the Roman Jus Gentium. Acquisition of territory has always been the great spur of national ambition， and the rules which govern this acquisition， together with the rules which moderate the wars in which it too frequently results， are merely transcribed from the part of the Roman law which treats of the modes of acquiring property jure gentium. These modes of acquisition were obtained by the elder jurisconsults， as I have attempted to explain， by abstracting a common ingredient from the usages observed to prevail among the various tribes surrounding Rome； and， having been classed on account of their origin in the "law common to all nations，" they were thought by the later lawyers to fit in， on the score of their simplicity， with the more recent conception of a Law Natural. They thus made their way into the modern Law of Nations， and the result is that those parts of the international system which refer to dominion， its nature， its limitations， the modes of acquiring and securing it， are pure Roman Property Law —— so much， that is to say， of the Roman Law of Property as the Antonine jurisconsults imagined to exhibit a certain congruity with the natural state. In order that these chapters of International Law may be capable of application， it is necessary that sovereigns should be related to each other like the members of a group of Roman proprietors. This is another of the postulates which lie at the threshold of the International Code， and it is also one which could not possibly have been subscribed to during the first centuries of modern European history…… It is resolvable into the double proposition that "sovereignty is territorial，" i.e. that it is always associated with the proprietorship of a limited portion of the earth's surface， and that "sovereigns inter se are to be deemed not paramount， but absolute， owners of the state's territory."
Many contemporary writers on International Law tacitly assume that the doctrines of their system， founded on principles of equity and common sense， were capable of being readily reasoned out in every stage of modern civilisation. But this assumption， while it conceals some real defects of the international theory， is altogether untenable， so far as regards a large part of modern history. It is not true that the authority of the Jus Gentium in the concerns of nations was always uncontradicted； on the contrary， it had to struggle long against the claims of several competing systems. It is again not true that the territorial character of sovereignty was always recognised， for long after the dissolution of the Roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. An old order of things， and of views founded on it， had to decay —— a new Europe， and an apparatus of new notions congenial to it， had to spring up before two of the chiefest postulates of International Law could be universally conceded.
It is a consideration well worthy to be kept in view that during a large part of what we usually term modern history no such conception was entertained as that of "territorial sovereignty." Sovereignty was not associated with dominion over a portion or subdivision of the earth. The world had lain for so many centuries under the shadow of Imperial Rome as to have forgotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths， claiming immunity from extrinsic interference， and pretending to equality of national rights. After the subsidence of the barbarian irruptions， the notion of sovereignty that prevailed seems to have been twofold. On the one hand it assumed the form of what may be called "tribe-sovereignty." The Franks， the Burgundians， the Vandals， the Lombards， and Visigoths were masters， of course， of the territories which they occupied， and to which some of them have given a geographical appellation； but they based no claim of right upon the fact of territorial possession， and indeed attached no importance to it whatever. They appear to have retained the traditions which they brought with them from the forest and the steppe， and to have still been in their own view a patriarchal society a nomad horde， merely encamped for the time upon the soil which afforded them sustenance. Part of Transalpine Gaul， with part of Germany， had now become the country de facto occupied by the Franks —— it was France； but the Merovingian line of chieftains， the descendants of Clovis， were not Kings of France， they were Kings of the Franks. The alternative to this peculiar notion of sovereignty appears to have been —— and this is the important point —— the idea of universal dominion. The moment a monarch departed from the special relation of chief to clansmen， and became solicitous， for purposes of his Own， to invest himself with a novel form of sovereignty， the only precedent which suggested itself for his adoption was the domination of the Emperors of Rome. To parody a common quotation， he became "aut Caesar aut nullus." Either he pretended to the full prerogative of the Byzantine Emperor， or he had no political status whatever. In our own age， when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns， it takes its designation from the people， instead of the territory. Thus we have Emperors and Kings of the French， and a King of the Belgians. At the period of which we have been speaking， under similar circumstances a different alternative presented itself. The Chieftain who would no longer call himself King of the tribe must claim to be Emperor of the world. Thus， when the hereditary Mayors of the Palace had ceased to compromise with the monarchs they had long since virtually dethroned， they soon became unwilling to call themselves Kings of the Franks， a title which belonged to the displaced Merovings； but they could not style themselves Kings of France， for such a designation， though apparently not unknown， was not a title of dignity. Accordingly they came forward as aspirants to universal empire. Their motive has been greatly misapprehended. It has been taken for granted by recent French writers that Charlemagne was far before his age， quite as much in the character of his designs as in the energy with which he prosecuted them. Whether it be true or not that anybody is at any time before his age， it is certainly true that Charlemagne， in aiming at an unlimited dominion， was emphatically taking the only course which the characteristic ideas of his age permitted him to follow. Of his intellectual eminence there cannot be a question， but it is proved by his acts and not by his theory.
These singularities of view were not altered on the partition of the inheritance of Charlemagne among his three grandsons. Charles the Bald， Lewis， and Lothair were still theoretically —— if it be proper to use the word —— Emperors of Rome. Just as the Caesars of the Eastern and Western Empires had each been de jure emperor of the whole world， with defacto control over half of it， so the three Carlovingians appear to have considered their power as limited， but their title as unqualified. The same speculative universality of sovereignty continued to be associated with the Imperial throne after the second division on the death of Charles the Fat， and， indeed， was never thoroughly dissociated from it so long as the empire of Germany lasted. Territorial sovereignty —— the view which connects sovereignty with the possession of a limited portion of the earth's surface —— was distinctly an offshoot， though a tardy one， of feudalism. This might have been expected a priori， for it was feudalism which for the first time linked personal duties， and by consequence personal rights， to the ownership of land. Whatever be the proper view of its origin and legal nature， the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis， to consider the relation of the tenant to the patch of soil which created and limited his services —— and then to mount up， through narrowing circles of super-feudation， till we approximate to the apex of the system. Where that summit exactly was during the later portion of the dark ages it is not easy to decide. Probably， wherever the conception of tribe sovereignty had really decayed， the topmost point was always assigned to the supposed successor of the Caesars of the West. But before long， when the actual sphere of Imperial authority had immensely contracted， and when the emperors had concentrated the scanty remains of their power upon Germany and North Italy， the highest feudal superiors in all the outlying portions of the former Carlovingian empire found themselves practically without a supreme head. Gradually they habituated themselves to the new situation， and the fact of immunity put at last out of sight the theory of dependence； but there are many symptoms that this change was not quite easily accomplished； and， indeed， to the impression that in the nature of things there must necessarily be a culminating domination somewhere， we may， no doubt， refer the increasing tendency to attribute secular superiority to the See of Rome. The completion of the first stage in the revolution of opinion is marked， of course， by the accession of the Capetian dynasty in France. When the feudal prince of a limited territory surrounding Paris began， from the accident of his uniting an unusual number of suzerainties in his own person， to call himself King of France， he became king in quite a new sense， a sovereign standing in the same relation to the soil of France as the baron to his estate， the tenant to his freehold. The precedent， however， was as influential as it was novel， and the form of the monarchy in France had visible effects in hastening changes which were elsewhere proceeding in the same direction. The kingship of our Anglo-Saxon regal houses was midway between the chieftainship of a tribe and a territorial supremacy，。 but the superiority of the Norman monarchs， imitated from that of the King of France， was distinctly a territorial sovereignty. Every subsequent dominion which was established or consolidated was formed on the later model. Spain， Naples， and the principalities founded on the ruins of municipal freedom in Italy， were all under rulers whose sovereignty was territorial. Few things， I may add， are more curious than the gradual lapse of the Venetians from one view to the other. At the commencement of its foreign conquests， the republic regarded itself as an antitype of the Roman commonwealth， governing a number of subject provinces. Move a century onwards， and you find that it wishes to be looked upon as a corporate sovereign， claiming the rights of a feudal suzerain over its possessions in Italy and the AEgean.
During the period through which the popular ideas on the subject of sovereignty were undergoing this remarkable change， the system which stood in the place of what we now call International Law was heterogeneous in form and inconsistent in the principles to which it appealed. Over so much of Europe as was comprised in the Romano-German empire， the connection of the confederate states was regulated by the complex and as yet incomplete mechanism of the Imperial constitution； and， surprising as it may seem to us， it was a favourite notion of German lawyers that the relations of commonwealths， whether inside or outside the empire， ought to be regulated not by the Jus Gentium， but by the pure Roman jurisprudence， of which Caesar was still the centre. This doctrine was less confidently repudiated in the outlying countries than we might have supposed antecedently； but， substantially， through the rest of Europe feudal subordinations furnished a substitute for a public law； and when those were undetermined or ambiguous， there lay behind， in theory at least， a supreme regulating force in the authority of the head of the Church. It is certain， however， that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth， and even the fourteenth century，。 and if we closely examine the current pretexts of wars， and the avowed motives of alliances， it will be seen that， step by step with the displacement of the old principles， the views afterwards harmonised and consolidated by Ayala and Grotius were making considerable progress， though it was silent and but slow. Whether the fusion of all the sources of authority would ultimately have evolved a system of international relations， and whether that system would have exhibited material differences from the fabric of Grotius， is not now possible to decide， for as a matter of fact the Reformation annihilated all its potential elements except one. Beginning in Germany it divided the princes of the empire by a gulf too broad to be bridged over by the Imperial supremacy， even if the Imperial superior had stood neutral. He， however， was forced to take colour with the church against the reformer； the Pope was， as a matter of course， in the same predicament； and thus the two authorities to whom belonged the office of mediation between combatants became themselves the chiefs of one great faction in the schism of the nations. Feudalism， already enfeebled and discredited as a principle of public relations， furnished no bond whatever which was stable enough to countervail the alliances of religion. In a condition， therefore， of public law which was little less than chaotic， those views of a state system to which the Roman jurisconsults were supposed to have given their sanction alone remained standing. The shape， the symmetry and the prominence which they assumed in the hands of Grotius are known to every educated man； but the great marvel of the Treatise "De Jure Belli et Pacis，" was its rapid， complete， and universal success. The horrors of the Thirty Years' War， the boundless terror and pity which the unbridled license of the soldiery was exciting， must， no doubt， be taken to explain that success in some measure， but they do not wholly account for it. Very little penetration into the ideas of that age is required to convince one that if the ground plan of the international edifice which was sketched in the great book of Grotius had not appeared to be theoretically perfect， it would have been discarded by jurists and neglected by statesmen and soldiers.
It is obvious that the speculative perfection of the Grotian system is intimately connected with that conception of territorial sovereignty which we have been discussing. The theory of International Law assumes that commonwealths are， relatively to each other， in a state of nature； but the component atoms of a natural society must， by the fundamental assumption， be insulated and independent of each other. If there be a higher power connecting them， however slightly and occasionally by the claim of common supremacy， the very conception of a common superior introduces the notion of positive law， and excludes the idea of a law natural. It follows， therefore， that if the universal suzerainty of an Imperial head had been admitted even in bare theory， the labours of Grotius would have been idle. Nor is this the only point of junction between modern public law and those views of sovereignty of which I have endeavoured to describe the development. I have said that there are entire departments of international jurisprudence which consist of the Roman Law of Property. What then is the inference？ It is， that if there had been no such change as I have described in the estimate of sovereignty —— if sovereignty had not been associated with the proprietorship of a limited portion of the earth， had not， in other words， become territorial —— three parts of the Grotian theory would have been incapable of application. 1861
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