ness. It would, however, be erroneous to suppose that the Romans § 13. attempted to introduce a code of nature such as the philosophers had devised. The jus gentium was, and never had been anything else but a portion of positive Roman law which commercial usage and other sources of law, more especially the praetorian edict (§ 14), had clothed in a concrete form. Nor again must it be imagined that the Romans simply transferred a portion of foreign (Hellenic) law bodily into their own system. In the few quite exceptional cases where they did so (as e. g. in the case of hypotheca), they did not fail to impress their institutions with a national Roman character. The antithesis between jus civile and jus gentium was merely the outward expression of the growing consciousness that Roman law, in absorbing the element of greater freedom, was commencing to discard its national peculiarities and transform itself from the special local law of a city into a general law for the civilized world. jus gentium was that part of the private law of Rome which was essentially in accordance with the private law of other nations, more especially with that of the Greeks which would naturally predominate along the sea-board of the Mediterranean. In other words, jus gentium was that portion of the positive law of Rome which appeared to the Romans themselves in the light of a 'ratio scripta,' of a law which obtains among all nations and is common to all mankind. The The value of the division of Roman law into jus civile and jus gentium was not merely theoretical, but also eminently practical. The law which now governed the intercourse of foreigners-Greeks, Phoenicians, Jews-in Rome was, of course, Roman law, but it was Roman jus gentium, and the Roman jus civile, in the new and narrower sense of the term, was confined on principle to the mutual dealings of Roman citizens (cp. § 22). The jus gentium was thus, at the same time, the Roman law for foreigners, i. e. the law which governed the transactions of the peregrini. And it was but natural that such should be the case, since it was the influence of foreign intercourse that had given the jus gentium its shape. There is a moment in the history of every nation when the claims of a natural sense of justice assert themselves and revolt against the § 13. hard and fast austerities of ancient traditional forms. The Romans had now arrived at this stage. The jus gentium was in its nature the equitable law whose growth and expansion, in opposition to the jus strictum of ancient tradition, proceeds henceforward with ever increasing volume. The whole tendency of the history of Roman law pointed to the suppression of the jus strictum by this new equitable law, and to the consequent destruction of the ancient jus civile by the jus gentium. But it must not be imagined that the development was a very sudden one. Such a course would have been entirely alien to the legal instinct of the Romans. The jus gentium did not come down like a hurricane and sweep away the jus civile. The slow and gradual elaboration of a system of equity alongside the older and stricter law, was rather the work of a patient and uninterrupted development extending over a period of more than five hundred years. When, in the natural course of things, the vitality that once filled the forms of the jus civile had passed from them, leaving them but hollow relics of a bygone age, then, but not till then, were they finally discarded. Slowly, cautiously, and, as it were, bit by bit, portions of a freer and more equitable law were worked out and tested, first one, then another, and finally incorporated in the organism of Roman law. The reform of Roman law was the result of a vast series of small changes of detail. And it was only by painstaking care of this description, by scorning all appeals to vague general principles of equity, that the Romans, aided by that keen sense of form, moderation, and legality, which with them was hereditary, could succeed in reducing the jus aequum to a body of principles lucidly conceived, minutely elaborated, and carefully weighed in all their details. By such a method alone could Roman law, while its contents were freely developing over so vast a field, preserve intact throughout that artistic power which moulds and subdues its materials, and erects them into a firm harmonious structure. It is this power which has made Roman law, and more especially Roman private law, what it is: a model for all times to come such as has never since been equalled. In working out the jus gentium, i. e. those rules of natural equity which regulate the dealings between man and man, and in reducing these rules to a system of marvellous transparency and lucidity, § 13. which carries irresistible conviction by its form as well as its matter to the mind of every observer, in doing this, Roman law has performed its mission in the world's history. And it was this achievement, successfully performed for all times to come, that not only fitted Roman law for becoming the general law of the Roman empire, but also endowed it with the power, when once it had emerged from the oblivion of centuries, to conquer the modern world. There were three agencies whose influence in working simultaneously and successively at this identical task, viz. the developing and importing of the jus gentium, was decisive of the ultimate result. These were the praetorian edict, Roman scientific jurisprudence, and imperial legislation. CICERO de offic. III. 17: Societas enim est, latissime quae pateat, hominum inter homines, interior eorum, qui ejusdem gentis sunt, propior eorum, qui ejusdem civitatis. Itaque majores aliud jus gentium, aliud jus civile esse voluerunt: quod civile, non idem continuo gentium, quod autem gentium, idem civile esse debet 2. Cic. de off. III. 5: Illud natura non patitur, ut aliorum spoliis nostras facultates, copias, opes augeamus. Neque vero hoc solum natura, id est jure gentium, sed etiam legibus populorum, quibus in singulis civitatibus res publica continetur, eodem modo constitutum est, ut non liceat sui commodi causa nocere alteri. GAJ. Inst. I. § 1: Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure 2 In the last sentence Cicero is not criticising the jus civile and conveying an opinion that it ought to accommodate itself to the jus gentium. He is simply expressing the fact that that only can be jus gentium which actually obtains everywhere in the separate systems of positive municipal law, more particularly in Roman municipal law, or jus civile, in this sense of the term. Jus civile is not necessarily jus gentium, i. e. it does not necessarily obtain everywhere, but jus gentium is necessarily jus civile, because law which obtains everywhere must necessarily obtain with us, failing which it would not be jus gentium, i. e. law $13. utuntur: nam quod quisque populus ipse sibi jus constituit, id ipsius proprium est vocaturque jus civile, quasi jus proprium civitatis ; quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utuntur. Populus itaque Romanus partim suo proprio, partim communi omnium hominum jure utitur. In the year 367 B. C. the judicial functions were separated from the consular power, and a special officer, the praetor urbanus, was appointed to administer justice in the city. Subsequently (about 242 B. C.) the increase of commerce necessitated the appointment of a second praetor, the praetor peregrinus, to whom all disputes were assigned where one or both of the parties were peregrini. The jurisdiction of the praetor urbanus was henceforth confined to matters in dispute between Roman citizens themselves. During his year of office, the praetor, like the consuls before him, was invested with the ancient judicial power of the king'. That is to say, in administering justice he was authorized to exercise his sovereign judicial discretion, being, formally, only bound by the letter of the leges or popular enactments, and by such customs as ancient tradition had endowed with the force of laws (sup. p. 28). It is important to bear this fact in mind in order to appreciate the peculiar importance of the praetorian 'edict.' An edict is an order promulgated by a magistratus populi Romani. A praetorian edict, therefore, is an order promulgated by the praetor. It deals with the principles by which the praetor intends to be guided in his administration of justice, in other words, in the exercise of his free judicial discretion. It is not likely that the praetor began to 1 The word 'praetor' means literally a general, and is a title of honour accorded to the consuls in the first centuries of the Republic (Mommsen, Röm. Staatsrecht, vol. ii. p. 71 ff., 2nd ed. 1877). The praetor was really a third consul who was specially entrusted, not with the military command, but with the administration of justice. This is the reason why, in point of rank (and in the number of his lictors), he was inferior to the consul, though, on principle, his power was consular (Mommsen, ib. p. 185 ff.). proclaim such edicts from the very outset. He would, of course, in § 14. the first instance consider the administration of the existing law his sole task, so that it was naturally a very gradual process by which definite principles peculiar to the praetorian jurisdiction were developed-principles which, when developed, tended more and more to constitute the praetorian power the organ of reaction against the principles of civil law. It was thus but gradually that an occasion arose for the praetor to promulgate any orders in regard to the granting of legal assistance. It would seem, however, that, even at an early period, it was usual to post up in the praetor's court a list of legal formulae for the better information of the parties to an action, e. g. of formulae for the interdicts for which application had to be made to the praetor-interdicts being commands by means of which the praetor, in the exercise of his executive powers, granted an extraordinary remedy (inf. § 43)—and, again, of formulae for the processual sponsiones (processual agreements) which the praetor, under certain circumstances, compelled the parties to enter on 2. 2 At the end of the Edictum Hadrianum there is an appendix consisting, for the most part, of nothing but formulae,-formulae, namely, for the interdicts, exceptiones and stipulationes (processual sponsiones). There is no internal reason whatever to justify the grouping together, at the end of the edict, of these formulae, more especially of the formulae for the exceptiones and stipulationes. And the arrangement seems all the more unreasonable, because the edicts which deal with the praetorian stipulationes (i. e. which direct their conclusion) and the stipulationes themselves are placed in entirely different parts of the Edictum and are thus completely detached from one another; and, further, because the exceptiones and the subject-matters to which they respectively belong are, in like manner, totally disconnected. It seems most natural to look to history for an explanation of so strange an anomaly, to the fact, namely, that this appendix contains the beginnings of the praetorian album,' the tablet of formulae, with, of course, a number of subsequent additions, which was left in E the very order in which, in the course |