« AnteriorContinuar »
commercial transactions the old actiones of the strict civil law of the city had long failed to meet the demands of modern commerce, both among the citizens proper as well as amid the throngs of aliens (peregrini) who in ever-increasing numbers invaded Rome from Italy and more distant lands as well.
Precisely what force Cicero intended to attach to the expression jure gentium in this passage may be difficult to determine, but it is more than probable that his practical legal experience would lead him to regard the slowly formed and long familiar praetorian system of law in the light of the universality which, as above noted, he attached to the philosophic conception derived by him from Greece. As we shall see in a moment, there were other significations which might be attached to the expression as found a few years later in Livy and other authors, but for our purposes it may be safely assumed that the great jurisconsult and philosopher was thinking of the many modifications of the ancient and rigid Roman forms of action which had been developed by judicial usage in the interests of even-handed justice. That this is the correct view also seems quite certain when we have regard to the meaning attached to the term jus gentium as employed by the jurists of the second and succeeding centuries A.D. Thus used, it is synonymous with a modification of the jus civile. What, then, was this modification? Pomponius, writing late in the second century A.D., tells us in his celebrated account of the ancient Roman constitution (Digest, 1, 2, 1-47) that a praetorian office was created when the consuls were called away by war, the magistrate being designated praetor urbanus; he adds that later a second praetor was appointed by reason of the many peregrini who had congregated in Rome (Digest, 1, 2, 27, 28). By this term peregrini we are to understand all persons in Rome who were other than Roman citizens in the strict sense of the word. The first praetor to fill this office, Pomponius tells us, was called city praetor, since his judicial activities lay within the city (in urbe jus redderet); the second praetor was called peregrinus, since, adds Pomponius, his jurisdiction was concerned chiefly with other than Romans (quod plerumque inter peregrinos jus dicebat).
We learn from various sources, nevertheless, that both these jurisdictions were at times administered by a single magistrate, the other
being sent abroad in command of an army or in charge of a provincial administration. The number of these magistrates, too, was gradually increased, but there seems to be no proof that the system of law which they administered was different nor that the terms "city" and "foreign" praetor were intended to convey the impression that the one jurisdiction concerned Roman citizens exclusively, while the other comprised suits in which aliens or aliens and Romans only were engaged, and engaged, furthermore, in a differing system of jurisprudence from the ancient civil law applicable only to actions between Romans. In fact the marvelous influx of persons other than Romans did not create distinctively jural needs, but rather emphasized needs already found to have existed in a growing community where the originally simple forms of commercial intercourse necessitated an appeal to equitable principles (bona fides) as opposed to the stricter forms of a code derived from primitive days. Thus, to meet the requirements in actions between Roman citizens inevitably arising through sale (emptio venditio), letting and hiring (locatio conductio), partnership (societas), agency (mandatum), etc., it would become essential for the magistrate to shape the course of an actio upon principles suggestive of fair dealing (ex bona fide) and in forms suited to each occasion as it arose; and such a procedure must have been found indispensable between Roman citizens from earliest times. The process, in short, would be a slow crystallization of Roman legal custom; and when, subsequent to the first appointment of a city praetor, it was found necessary to institute a second, it was doubtless perceived that the formulae ex bona fide were in striking agreement with rules of action derived from similar needs found to exist among peoples wholly alien to Rome. There were thus increasingly in evidence two legal systems: the one being a continuation of the narrow and inflexible jus civile, and the other a praetorian equity derived through the granting of actions by authority of the praetorian imperium and in harmony with the needs of an expanding commercial center. The first and ancient system would still be known as jus civile, while the second, borrowing an appellation created by an apprehension of the necessary universality of conceptions based on justice and good faith, would be termed jus gentium — the law common to all peoples, the law universal. It is to be especially
emphasized, however, that this jus gentium was developed from Roman usage among Romans and did not have its rise, as many jurists have thought, when the praetor, confronted with increasing alien affairs, found himself obliged to draw inspiration from foreign fountains, although it seems probable that the presence of Greek merchants might have led to the direct adoption in the praetorian system of a distinctively Grecian conception of juristic principles. Jus gentium is thus seen as a creature of primitive barter and industry; its prescriptions are in force, nevertheless, on strictly legal lines, – actiones in jus conceptae, - to be carefully distinguished from the original forms fixed by Roman legal tradition.
Slowly, with the progress of time, the newer or praetorian system gained ground amid the ordinary legal contests of commercial life. Of course it should not be forgotten that it was not every class of aliens (peregrini) who were excluded from the strict actions of the ancient system, since by treaty Rome received many peoples into the benefits of the commercium and of the arbitral system enforced through recuperatores.
In the sixth century of the city peregrini seem to have been admitted to the benefit of some ancient actions, and in the long run even the regulations and forms of the jus gentium must have become modified through the penetrative influence of foreign jurisprudence. When Caracalla granted Roman citizenship to all within the empire, the distinctions of the two systems would tend to disappear, while the constant influence on Roman legal thought of juristic conceptions once wholly foreign would not only modify Roman law itself but would facilitate its spread throughout the world.
We are, then, to understand by the term jus gentium, in the light of the facts enumerated, a system of law gradually arising through the efforts of the Roman praetor to promote a sense of equity and fair dealing by so modifying the jus civile as to allow a broader practice in granting forms of action than had been possible under the stricter ancient law, for it must not be forgotten that ancient Roman jurisprudence realized itself most strikingly in the theory of formal actions. It was the privilege of the praetorian office through the exercise, as has been already indicated, of the imperium, to modify ancient rigidity
by granting actions bona fide in the cases we have already mentioned as well as others, of all of which Gaius gives us a careful enumeration in the passage (IV, 62) beginning: sunt autem bonae fidei iudicia haec; et empto vendito, locato conducto, negotiorum gestorum, mandati, depositae, etc.
In the next generation and in the pages of Livy we find the term jus gentium employed with significations of quite a different character from those familiar to the law courts. With Livy the term is more consonant to a description of public than of private affairs; for example (IV, 1, 2), when speaking of the reluctance of the patricians to entertain the project proposed by Canuleius of granting the jus conubium to the plebeians, he makes the patricians allude to the privileges of their order as the rights of the ancient gentes, – jura gentium. But for the most part Livy recognizes in our term jus gentium the conduct of embassies, the declaring of war, or conclusion of peace, as well as treaties. The terms jus belli or jus belli et pacis, the law of war and peace,
is also a familiar expression to him. Thus, in the instance of the traitorous Tarquinian ambassadors (II, 2, 7), he represents the immunity given by jus gentium as saving the envoys from punishment well merited by their treachery. Again (II, 12, 14) Porsenna spares Mucius really by reason of his bravery and devotion to Rome, though Livy makes Porsenna declare that he frees him by the custom of peoples or law of nations (jure belli liberum te intactum inviolatumque hinc dimitto). Again, when describing the celebrated incident at the Caudine Forks, Livy makes Postumius attempt a fictitious injury to the herald in order that war may be again declared between Rome and Samnium; and Postumius is made to declare, illum legatum fetialem a se contra ius gentium violatum.
Many other instances might be cited, but enough, we think, has been said to indicate the clear apprehension in the Roman mind of a system of at least formal international principles which tended to safeguard envoys and imposed upon nations certain formalities in the declaration of war or conclusion of peace. Such ceremonies were in the special charge of the collegium of fetiales, whose members exercised both priestly and diplomatic functions.
To this system the terms jus belli and jus gentium were readily applied. They are picturesquely described by Livy (I, 32). There was in them beyond doubt a suggestion of the universal, and this certainly constituted at least a foreshadowing of what we now term international law. In any event, as many passages in Livy and not a few in contemporary Roman authors well indicate, the phrase jus gentium connoted in the thought of the early empire a usage between peoples based on a clear apprehension of fundamental moral principles; nor is this supposition invalidated through the savage war usages so prevalent both in the early and later history of Rome. In fact, it is perhaps not too much to suppose that had Rome not won universal empire, the ancient world might well have witnessed the development of a rational system of international intercourse springing from clearly defined legal principles. Hence it was that the celebrated Isidore, Archbishop of Seville, in a famous passage of his encyclopædic work (Origines), alludes to the jus naturale as basis of a jus civile and a jus gentium, having, perhaps, in mind both of the systems to which the Romans applied this term and which we have noticed above.
It was not, however, until the period of the general awakening of the sixteenth century, signalized in legal literature by a series of works on the laws of war and diplomacy, that we find a conception not of a system of law binding individuals of different nationalities in their private rights, but rather aimed in the first instance at softening the rigors of war and upon this path arriving at outlines of a system of interstate relations governing peoples as such. We first find such a conception in the work of Ferdinand Velasquez, who died in 1566 at the age of fifty-five. His book was published at Venice in 1564, and found an echo in the work De Jure et Officiis Bellicis of Ayala, Judge Advocate of Spain in the Netherlands, who wrote apparently during actual experience of camp life and with a wide knowledge of Roman and Canon law. His successor in point of time was Albericus Gentilis, an Italian who found a home and professional vocation in Oxford, and who exhibited, in the famous work which to some extent inspired Grotius, every evidence of classical scholarship and a profound moral sense as well. The experience of Gentilis was of such varied character that his works (Jus Legationis and De Jure Belli)