« PreviousContinue »
of the ius gentium, partly of the indigenous law of the provincial population; though, on the analogy of the edict of the praetor urbanus, the latter would have been excluded. Mr. Long1 says, however, that they were founded on the edictum urbanum, though they likewise comprehended rules applicable only to the administration of justice in the provinces. They are often mentioned by Cicero, who says (e. g. in his letters to Atticus vi. 1) that he promulgated in his province two edicta, one provinciale, which, among other matters, contained everything that related to the publicani, and another, to which he gives no name, relating to matters of which he says, 'ex edicto et postulan et fieri solent.' As to all the rest he made no edict, but declared that he would frame all his decreta on the edicta urbana. The provincial edicts may thus perhaps be regarded as in some way serving the purposes which, for the generalisations of modern social science, are obtained by collections of statistics in various parts of the world. The edict of the praetor peregrinus was a collection of legal rules which were found to be observed in common by all the peoples with whom Rome was acquainted; and the formulation of such rules would be facilitated, and their number largely increased, by a comparison of the various provincial edicts. The institution of the provinces, and, with them, of the edictum provinciale, must have given a great impulse to the development of the edict of the praetor peregrinus; through the medium of the latter they were brought into relation with the edictum urbanum. We do not know whether the work of Ofilius, referred to by Pomponius in Dig. 1. 2. 2, was an attempt to collect and arrange the various edicta; but we shall see that when the edict was systematised by Salvius Julianus, in the reign of Hadrian, he probably incorporated in it some portion of the provincial legislation (see p. 43 inf.).
The activity of the praetor urbanus in this mode of indirect legislation was due, to a very large extent, to the lex Aebutia, which had cast upon him the task of devising and elaborating a new code of procedure, and thereby enormously increased his power of altering and extending the substantive law. But it was also due in no small degree to the exclusiveness of the Roman legal system, and to the consequent necessity of discovering some rules, other than the rules of the ius civile, by which the commercial relations between Romans and peregrini
1 Smith's Dictionary of Greek and Roman Antiquities, article 'Edictum ;' from which much of this information respecting the provincial edict has been obtained.
should be governed. In some cases these were settled by treaty 1, by which it was agreed that legal disputes between members of the respective states should be decided by a special tribunal, the judges of which were called recuperatores, though they seem always to have been citizens of the state in which the court lay*. So far the arrangement was satisfactory, and in many respects more complete than might have been expected in so rude an age; the difficulty was as to the law which the recuperatores were to apply. This could not, ex vi termini, be the ius civile; and we may suppose that the trading peregrini partly adapted themselves to Roman legal habits, partly introduced a conventional code based on their own mercantile usages, and that the recuperatores decided each case as it came before them on evidence of the terms upon which the contract was concluded, and with reference to the generally accepted commercial custom. The trade of Rome, however, expanded so much with her conquests, and the dealings between citizens and allies of Rome on the one hand, and peregrini on the other, increased so largely in number and importance, that, if only to relieve the praetor urbanus of the duty of appointing recuperatores upon so many occasions, it was found necessary to establish a praetor peregrinus in the mode already described: 'Post aliquot deinde annos, non sufficiente eo Praetore, quod multa turba etiam peregrinorum in civitatem venirent, creatus est et alius Praetor, qui peregrinus appellatus est ab eo, quod plerumque inter peregrinos ius dicebat' (Pomponius in Dig. 1. 2. 2. 27 and 28). In addition to cases which had to be tried by recuperatores, the new praetor thus dealt with suits to which both parties were peregrini, and for the hearing and decision of which apparently no machinery had existed at Rome. The procedure which he applied was probably of the same nature as that which, somewhat later, the praetor urbanus introduced under the lex Aebutia. Gaius tells us that the action rested on his imperium as distinct from statutory form (iv. 103 sqq.), and we may
1 The oldest example of such a treaty is that concluded between Rome and Latium, H.c. 493, which provided that actions on contract between Romans and Latins should be decided, after ten days' interval, in the locus contractus, by recuperatores appointed by the local magistrate. The term was connected with reciperatio, the treaty: 'reciperatio est, ut ait Gallus Aelius, cum inter populum et reges nationesque et civitatis peregrinas lex convenit, quomodo per reciperatores reddantur res reciperenturque, resque privatas inter se persequantur' (Festus).
* Many writers (e. g. Huschke and Rudorff) maintain that the recuperatores were a mixed court composed of citizens of both states. Keller (Civil Proiess, p. 31) is unable to come to any conclusion, but Bethmann Hollweg (Civil Prozess, J 2 j) denies that there is any evidence in favour of their view.
suppose that he first heard the allegations of the parties, and then fixed the issue to be tried in written instructions, which were delivered to the recuperatores or to the single iudex whom he appointed, and to whom the decision of the case was committed.
The law which, under the superintendence of the praetor peregrinus, these judges administered, was of course, in origin, the same which the recuperatores had always applied in the decision of actions which were brought before them. But it now assumed a more consistent and permanent character by being embodied in the new praetor's edict. Its steady growth was thus assured, no less than through the activity of leading citizens themselves, who became connected with foreign towns or districts in the Roman dominions by the tie of patron and client, and who, in this relation, took a lively interest in the development of this new branch of law. The mode in which the praetor peregrinus gradually elaborated a tolerably complete body of rules by which actions between citizens and foreigners, or foreigners only, should be decided, has been variously represented. Sir Henry Maine (Ancient Law p. 48 sq.) seems to adopt the view of those who hold that he compared the usages of the various Italian nations with whom Rome was acquainted, and by this conscious and deliberate process collected a system of principles which the majority of peregrini engaged in commerce on Roman territory with citizens or with one another, would recognise as binding: 'naturalia iura quae apud omnes gentes peraeque servantur' (Inst. i. 2.11). But this seems an instance of the common error of ascribing scientific habits to a prescientific period, and the eclectic process implies a mental constitution which was not common among the Romans. It is true that this view is not unsupported by some dicta of the Roman jurists themselves; but these, we must remember, wrote at a time when the treatment of law had passed from the empirical to the scientific stage, and their evidence is therefore the less trustworthy. It would seem more probable that this body of law originated in a practical necessity1, which, though slight at first, became gradually more and more pressing, and that it grew with that necessity, its development being accidental and due to circumstances, though effected under the fostering care of the praetor peregrinus; rather than that it sprang into existence, so to speak, uno ictu, as the result of a conscious comparison of Italian usages. This body of law, however, whatever may have been its precise origin, was what the Romans knew as the ius gentium; a
1 So too Mr. Long, Cicero's Orations vol. i. p. 168.
collection of rules, embodied in the edict of the praetor peregrinus, for the regulation of commercial transactions of peregrini at Rome, either inter se, or with the citizens and allies of the Roman state. In its original signification it is the law which Rome applied in favour of the 'gentes,' the non-Roman peoples, whose members sought justice at the hands of Roman magistrates; a law not binding any people in particular, but supposed to bind all peoples in general, in their private dealings with one another. As such, it had no validity for Roman citizens inter se; their rights and obligations were determined, in relation to one another, by the ius civile: 'Nam quod quisque populus ipse sibi ius constituit, id ipsius civitatis proprium est, vocaturque ius civile, quasi ius proprium ipsius civitatis' (Gaius i. 1, Inst, i. 2. 1): and we have already seen that the ius civile was a law based on the religion and customs of the race, which we may perhaps believe was at first considered far higher and more precious than the ius gentium or any other law whatsoever, and which accordingly the Romans persistently refused to extend to anyone who was not himself a citizen.
There can be little doubt that in the course of time a very great .» change came over the feelings with which the Romans, and especially the lawyer class, regarded the law of all nations in contrast with their own indigenous law. Sir Henry Maine (Ancient Law p. 52 sq.) has fixed the date of this change as contemporaneous with the conquest of Greece, and the importation of the Stoic philosophy to Rome. He has described the revolution which ensued upon the wide acceptance of that philosophy in the West, and more particularly from the ardour with which the lawyer class threw themselves into its study. He has shown how its leading principle was life according to the law which nature had once, in a far-off age, laid down for the governance of human relations, when states, and therefore civil law, had not begun to exist, and which had become lost and forgotten in the artificial society of nations w hich prided themselves on their civilisation; how the Roman lawyers leapt to the conclusion that the ius gentium, with its universal validity, was no less than this lost code of nature, and how, as was only consistent, they transferred to it all the affection and veneration which hitherto they had bestowed on their own narrow and exclusive municipal law. Attractive as this theory is, it is submitted that it cannot be received without some qualification. Greece became a Roman province in the middle of the second century before Christ: but her philosophies were as yet regarded at Rome with dislike and suspicion, and in B.c. 161 their teachers had been expelled from the
city. Stoicism was first raised to full influence in the higher ranks of Roman society by means of the group which gathered round Scipio Aemilianus, who died B.c. 129; and Quintus Scaevola, consul B c. 95, and the founder of scientific jurisprudence, was one of its earliest eminent disciples. We may believe that from the last-mentioned date onward its doctrines were applied to the development of law with consistency and success; but it still remains to be proved that the Romans did not begin to regard the ius gentium with feelings othcr than of disdain until this period. The edict of the praetor peregrinus had been in existence, and applied to citizens in their relations with foreigners, for more than a century and a half, and edicta provincialia had been issued for considerably more than a century; and we cannot believe, on the one hand, that the praetor urbanus could have witnessed the continuous growth of this liberal and reasonable system of law without having adopted portions of it in his own edict during the second century B.c., while, on the other, it is impossible that this could have been done without the approval of the profession and of the nation. Stoicism then, it would seem, cannot be credited with * having been the original and entire cause of the change in the feelings with which the Romans regarded the ius gentium. On the other hand, it is probably true that, after the time of Scaevola, the improvements in the law, in respect not only of internal development, but also of scientific treatment, were due in a very large degree to the alliancf between the lawyers and the Stoa. The identification of the ius gentium with the law of nature was not universally admitted till the age of the classical jurists, among whom we find one so eminent even as Ulpian attempting to distinguish themBut we cannot overestimate
1 The position of ius naturale in the legal system, as compared with ius gentium, is not precisely determined in the passages of the Corpus Inris which relate to it. Sometimes, and indeed most frequently, they are used as synonymous (e. g Inst. ii. j. 11, where they are identified); and where this is so, the expression ius naturale refers to its assumed origin, and to the accord of certain legal principles with the needs and requirements of thc reasonable nature of man. It is this 'naturalis ratio' which furnishes the raw material of the ius naturale, and from which the latter derives its universal validity; as reason is man's ' differentia,' ius naturale must be valid wherever man is to be found, and therefore is coextensive with ius gentium. Sometimes, however, a narrower signification is given to ius naturale, and it is used to indicate the aggregate of those institutions of Roman law which were deemed to be based not so much on the intellectual as on the moral side of human nature, or to a certain extent on an instinct shared with man by the lower animals. This is the sense which the expression bears in Inst, i 2. pr. (on which see note), where it is distinguished from ius gentium, and in Ulpian in Dig. 1. 1. 1. 4 'ius gentium est quo gentes humanae utuntur. Quod a naturali recedere, facile in