usages which as being common to all men were in fact observed by
States in their relation to one another; cf. Sallust, _Jug._ c. 35;
Livy, i. 14; v. 36. Obviously the rules which all nations recognize
would be those which they would apply in their dealings with one
another.
Footnote 41:
See the article _Ius Gentium_ in Professor H. Nettleship’s
_Contributions to Latin Lexicography_ . He thinks the term had become
a popular one before the time of Cicero.
-----
We need not here examine the question, which indeed our data do not
enable us to answer, by what practical methods or processes the Roman
Courts proceeded to frame this Law of the Nations; whether, and if so
how far, they actually did inquire into the customs and rules of the
peoples with whom they came most in contact; or whether they were
content to proceed upon the general principles of justice and utility;
or whether they followed in the main their own law, stripping off its
technicalities while preserving its substance. All three methods might
be more or less used. But probably they were chiefly influenced by the
customs which they found actually recognized by traders from various
nationalities resident at Rome. Before the Courts stepped in to
administer justice among the strangers, commercial practice had
doubtless created a body of customs which were in fact observed, though
no express and binding sanction had yet been given to them. One may
illustrate this by recalling the fact that much of our own mercantile
law is based upon the customs of merchants which English Courts, seeing
them recognized by honest traders as actually binding, and seeing that
contracts were made with regard to them, and that they were in fact
understood as being conditions implied in such contracts, proceeded to
enforce, treating them as being really part of the contract. This
process of turning custom into law went on actively so late as the time
of Lord Mansfield, of whom it has been said that he and the juries at
the Guildhall in the City of London created no small part of English
commercial law. So the English officials, when they began to administer
justice among traders in India, found a number of customs actually
observed, and built up a body of law out of these rules, _plus_ their
own notions of what was fair and just, together with such recollections
as they had of the principles of English law[42].
-----
Footnote 42:
See Essay II, vol. i. pp. 113-118.
-----
What is certain is that the Romans did not formally enact any parts of
this new Law of the Nations. It was built up solely by the practice of
the courts and the action of the jurists; and it took definite shape
only in the edicts of the Praetors and Aediles[43]. By the end of the
Republic it had grown to considerable dimensions, and long before that
date had begun to exercise a potent influence upon the development of
the law which belonged to citizens only, and which was therefore called
_ius civile_. Such dicta of the professional jurists regarding _ius
gentium_ as we possess belong to a later time, and the earliest
authority who mentions it is Cicero. He says that ‘our ancestors
distinguished the law of citizens from the law of the nations, that
which is proper to citizens not being therewith part of the law of the
nations, whereas that which belongs to the law of the nations ought to
belong to the law of citizens also[44]’; and in several other passages
he contrasts the two kinds of law, observing in one place that the _ius
gentium_, like part of the _ius civile_, is unwritten, _i.e._ not
included in statutory enactments[45]. He talks of it as a body of
positive law resting on custom and agreement, but unfortunately does not
tell us how that particular part of it which the Roman Courts
administered had been formed. We may, however, safely conclude that the
procedure of the magistrates in granting actions and allowing defences
in certain cases had been the chief agency whereby it received a
definite form, and that the materials were (as already observed) chiefly
furnished by the habits of dealing which had arisen among the strangers
resident at Rome in their intercourse with Romans and with one another,
in their bargains and transfers of property, in the forms and conditions
relating to loan and pledge and selling and hiring, such conditions
being usually embodied in documents to which a specific legal effect
would be attached. Broadly speaking, the basis or source of the
underlying principles of _ius gentium_ would as respects commercial
matters be found in good faith and common sense, and as respects family
matters and inheritance in natural affection.
-----
Footnote 43:
See as to this Essay XIV, p. 292. Thus Praetor-made law, _ius
honorarium_, very largely coincides with and covers the field of _ius
gentium_, but the two are by no means identical. The _actio
Publiciana_, for instance, belonged to the former, but not (except so
far as natural equity suggested it) to the latter. So in _Digest_ xvi.
3. 31 ‘merum ius gentium’ is opposed to ‘praecepta civilia et
praetoria.’
Footnote 44:
‘Itaque maiores aliud ius gentium, aliud ius civile esse voluerunt.
Quod civile, non idem continuo gentium, quod autem gentium, idem
civile esse debet’ (_De Off._ iii. 17. 69).
Footnote 45:
_Orat. Partit._ xxxvii. 130.
-----
This sketch, slight as it is, may suffice to indicate how the Romans
were brought to deal in a concrete and practical way with the phenomenon
we were considering on its abstract side, viz. the distinction between
customs and laws which are substantially common to all (more or less
civilized) communities, and those which are peculiar to one or a few
only. That which struck a Greek thinker who reflected on the state of
the Mediterranean world in the fifth or fourth century B.C., viz.
virtual uniformity in some customs and laws, endless diversity in
others, struck every Roman magistrate who had to preside in urban or
provincial courts during the third and second centuries B.C. The Greek
formed a philosophic theory: the Roman, being a ruler, was forced to
construct a working system. But the Greek had little occasion to apply
his theory; and the Roman did not think of basing his system on any
theory at all. His _ius gentium_ grew up and spread out and bore fruit,
and was already influencing both the old law of Rome herself and the
administration of Roman courts in the provinces before (so far as we
know) anybody had thought of connecting the Law of Nature with the Law
of the Nations.
IV. CONNEXION OF THE LAW OF NATURE WITH THE LAW OF THE NATIONS.
This connexion belongs to the last days of the Roman Republic, and was
probably due to that increased interest in philosophy and ethics which
owed so much to the literary activity of Cicero, who was not only a
statesman and an orator, but an ardent student of philosophy and a
voluminous writer on philosophical, especially ethical, topics. It is
the fashion now to depreciate Marcus Tullius. He was probably also
depreciated in his own time. The learned black-letter lawyers, who had
been his fellow pupils under Q. Mucius the Augur, doubtless said of him,
as Sugden is reported to have said of Lord Chancellor Brougham, that if
only he knew a little about law he would know something about
everything. And the Greek philosophers with whom he loved to discourse
probably hinted to one another, when their eloquent patron was not by,
that, after all, no Roman would ever be a thinker. We can admit a
measure of truth in both criticisms. But Wisdom is justified of all her
children, and Cicero has outlived both the lawyers and the philosophers
of his own time. His eager and capacious intellect, playing round
political and legal, as well as metaphysical and moral inquiries, and
using a brilliant style to popularize and render attractive all that he
touched, gave a currency to the ideas of Greek speculators which made
them tell more widely than ever before upon the Roman mind, and all the
more so when, in the generation that succeeded his own, the career of
political distinction through forensic and senatorial and platform
oratory began to be closed by the growth of an absolute monarchy. Indeed
Cicero’s own philosophical treatises were due to that retirement from
active political life which the ascendency of Julius Caesar caused; and
his composition of them was prompted (as he tells us) by a wish to
stimulate the flagging public spirit of his younger contemporaries.
Now the theory of the Law of Nature, suggested by Heraclitus and
Socrates, preached more actively by Zeno and Chrysippus, had been much
discussed and widely diffused during the centuries between Aristotle and
Cicero. Its acceptance and influence were aided by the changes which had
been going on in the world, the Hellenization of Asia, the admixture of
religions and mythologies, and that more easy and frequent intercourse
between the Western and Eastern Mediterranean countries which enabled
the peoples to know more of one another. The doctrine, though not
confined to the Stoics, received among them special prominence, and
became a corner-stone of their ethical teaching. Moral duty was by them
practically deduced from, or identified with, the Law of Nature. Cicero,
though he would not have described himself as a Stoic, substantially
adopts their language on this point, and lays great stress on Nature as
the source of the highest law and morality, invoking the doctrine in his
speeches as well as expounding it in treatises[46]. With him the Law of
Nature springs from God, is inborn in all men, is older than all the
ages, is everywhere the same, cannot be in any wise altered or repealed.
It is the basis of all morality. It ought to prescribe the provisions of
positive law far more extensively than it in fact does, and to give that
law a higher and more truly moral character. We might expect Cicero to
go on, if not to identify it with the _ius gentium_ which he contrasts
with the peculiar law of Rome, at any rate to describe it as the source
and parent of _ius gentium_. This, however, he does not actually do,
though more than once he comes near it[47]. _Ius gentium_ is to him a
part of positive law, though much wider in its range than _ius civile_,
whereas the Law of Nature is altogether an ethereal thing, eternal,
unchangeable, needing no human authority to support it, in fact St.
Paul’s ‘law written on the hearts of men.’
-----
Footnote 46:
See especially the fragment of his _De Republica_ preserved by
Lactantius, _Div. Inst._ vi. 8, 7.
Footnote 47:
Many writers have, however, thought that Cicero did mean to identify
_ius gentium_ and _ius naturae_, basing themselves on _De Off._ iii.
17, 69, and iii. 5, 23. Cf. also the words ‘lege ... naturae, communi
iure gentium’ in _De Harusp. Respons._ 15, 32, and ‘consensio omnium
gentium lex naturae putanda est’ in _Tusc. Disp._ i. 13. The point is
argued, at great length, by Voigt (_op. cit._ vol. i. pp. 65-75,
213-219, and Appendix II). Nor does Cicero quite precisely define the
relation of his Laws of Nature to positive law. He writes rather as a
moralist than as a jurist.
-----
Although Cicero was the most copious and eloquent writer among those
Romans who pursued the study of philosophy in his generation, he did not
by any means stand alone. Most of the prominent statesmen, orators, and
authors occupied themselves with ethical speculation; and this was no
less true of the leading spirits of the following century. The great
jurists of the Augustan and post-Augustan age, such as Antistius Labeo,
Massurius Sabinus, and Cassius, refer to the Law of Nature as a source
of law already familiar. Two influences were indeed at work, which gave
to philosophy a greater prominence than it had perhaps ever enjoyed
before or has ever enjoyed since. Faith in the old religions having
practically vanished from the educated classes, some substitute was
needed, and the more pure and earnest minds sought this in philosophy.
The career of political life having been, in its old free form, closed
by the vesting of all real power in the hands of one person, who
presently became recognized as legally sovereign, men were more and more
led to seek solace, or enjoyment, or at any rate occupation, in the
study of metaphysics and ethics. Jurisprudence continued to be pursued
by many of the most powerful and cultivated intellects; and philosophy
was not only a main part of education which such men received, but
claimed much of their time and thought. They were so permeated by it,
that both its methods and its principles must needs influence their
treatment of legal matters, whether as writers, or as magistrates, or as
advisers of the monarch and framers of legislation. The idea of the Law
of Nature as the source of morality and the true foundation of all civil
laws, the idea of all mankind as forming one natural community of which
all are citizens, and in which all are equal in the eyes of Nature—this
idea had come to pervade the minds of thinking men, whether or no they
were professed adherents of any school of philosophy. It was taken as a
generally accepted truth, and was therefore assumed and referred to
without adducing arguments on its behalf, far removed from the actual
facts of the world as was the ideal to which it pointed.
The growth and acceptance of the doctrine may be compared with the
process whereby certain notions, now pretty generally received in nearly
all civilized countries, have made their way during the last two
centuries. Such are the doctrines known in America as those of the
Declaration of Independence, and in France as the principles of 1789.
Such is the doctrine of the freedom of the individual conscience, and
the consequent wrongfulness of religious persecution. These doctrines
began to be asserted (especially in England) during the seventeenth
century. They were diffused slowly, and constantly denied by the powers
that be, but they have been now virtually accepted in principle by all
thinking men. Few think it necessary to argue on their behalf; yet they
are very far from having secured their full effect, for in some
countries the rulers refuse to apply them, and in almost all countries
they are admitted to be subject to exceptions which render their full
application difficult. They represent rather an ideal towards which
society is held to be moving, than a positive basis on which existing
society is built.
Although, however, the Romans of the earlier imperial period saw that
their conception of the Law of Nature was a long way from being
realizable in such a world as was then present, they also discovered in
the changes that had passed upon that world much which recommended the
conception as true and sound. The extension of Roman dominion was
completing the process which the conquests of Alexander the Great had
begun. Eastern religions invaded the West; Greek and Latin became
world-languages; commerce brought all the Mediterranean peoples
together; nations and nationalities were blent and ultimately fused in a
common subjection to Rome. The provincial rose as the old Roman citizen
sank, so that equality came nearer and nearer. The old mutually
exclusive systems of citizenship and law seemed obsolete; and therewith
the traditional reverence for the ancient legal institutions of the
Quirites passed away, even from the conservative minds of lawyers[48].
In particular the idea of a community of all mankind, as opposed to the
small civic communities of earlier days, began to approach a realization
in the great empire which had gathered all civilized men under its
wings, had secured for them peace, order, and a just administration of
the laws, and had admitted every one, whatever his race, tongue, or
birthplace, to a career of honourable ambition in civil and military
office, a career whose possibilities included even the imperial dignity
itself.
-----
Footnote 48:
There does not, however, seem to be any ground for the notion that the
Roman lawyers ever despised _ius gentium_ as only fit for inferior
people; that they deemed it ‘an ignoble appendage to their civil law,’
as Sir H. Maine says. That this was ever their feeling is mere
surmise. No traces of such a view appear in our authorities.
-----
For this all-embracing commonwealth, this _societas omnium hominum_, of
which the Greek philosophers and Cicero had written, and which had taken
concrete shape in the Roman Empire, there would seem to be needed some
common law, since the ideas of law and state were correlative[49],
according to the dictum, _Quid est civitas nisi iuris societas[50]?_ Now
there was a law which could actually be applied to all Roman subjects,
non-citizens and citizens alike, and which was supposed to be the law
common to all men as being the law which all nations used, and which had
therefore been applied by Roman Courts where persons outside the pale of
Roman law proper were concerned. Just as the law of Rome drew its
authority from the will of the people, whether signified expressly by
enactments or tacitly by usage and consent, so this general law rested
on custom, on the understanding and will of collective mankind,
evidenced by their practice; and its source was therefore one which met
and satisfied the view that the community are the source of law. Now
this common law of mankind was the _ius gentium_. Though in point of
fact gathered and moulded by Roman Courts, it was deemed to represent
the essence of the law which prevailed among various neighbour peoples,
and of the usages which common sense and the needs of commerce had
sanctioned among men in general, wherever dwelling. It was conceived of
as being common to all mankind (_ius commune omnium hominum_[51]) (_omni
humano generi commune_[52]), or as the law which exists among all
peoples (_ius quod apud omnes populos peraeque custoditur_[53]) (_ius
quo gentes humanae utuntur_[54]). It was applicable to persons who had
no rights of citizens in any city (ἀπόλιδες)[55]. It was coeval with the
human race itself (_cum ipso humano genere proditum_[56]). It was in all
these respects contrasted with _ius civile_, just as the Law of Nature
(_ius naturale_) was similarly contrasted. Finally it was the law which
natural reason had created (_ius quod naturalis ratio constituit_[57]).
When this point had been reached, it became practically identical with
the Law of Nature, and the identity, implicitly suggested in Cicero’s
remark that the agreement of all nations must be deemed a law of
nature[58] was formally enounced by jurists at least as early as the
time of Hadrian. In Justinian’s _Institutes_ the identification is
complete.
-----
Footnote 49:
Not, of course, in the Austinian sense that law is only what the State
has expressly enacted, for the ancients always dwell upon custom
(_mores maiorum, consuetudo inveterata, consensus utentium_) as a
chief source of law.
Footnote 50:
Cic. _De Rep._ i. 32. 49.
Footnote 51:
Gaius, _Inst._ i. 1; _Dig._ i. 1. 9.
Footnote 52:
In _Inst. Iust._ i. 2. 2, taken from Marcian.
Footnote 53:
Gaius, _Inst._ i. 1.
Footnote 54:
Ulpian in _Dig._ i. 1. 1, 4.
Footnote 55:
Marcian in _Dig._ xlviii. 19. 17.
Footnote 56:
Gaius in _Dig._ xli. 1. 1, _pr._
Footnote 57:
Gaius, _Inst._ i. 1. The formal express and specific identification is
to be found only in some jurists, and is most explicitly stated by
Gaius. There does not, however, seem to be sufficient ground for
thinking (as Voigt, _op. cit._, argues) that there was any real
difference of opinion among them. Their language on these points is
seldom precise.
Footnote 58:
See p. 137, note 47, _supra_.
-----
A third conception, to which reference has not yet been made,
contributed to this fusion, viz. the conception of Equity (_aequum et
bonum, aequitas_). Equity means to the Romans fairness, right feeling,
the regard for substantial as opposed to formal and technical justice,
the kind of conduct which would approve itself to a man of honour and
conscience. It completes the idea of the higher kind of law by adding a
third element, or rather a third source, that which springs from the
breast of man and represents his natural sense of justice, his
sympathetic good feeling towards his fellow men. Thus we may say that
seen from the point of view of theology or metaphysics, this universal
or Natural law is prescribed by God or by Nature. Seen from that of
history and political science, it issues from the will of mankind, who,
organized as nations, have created it by custom and practice. Seen from
the side of ethics and psychology, it represents the tendencies and
habits of the typical good man, who desires to treat his neighbour as he
would wish to be himself treated. The coincidence of these three streams
of origin or lines of thought enlarges the conception, defines it, gives
to it, taken as a whole, a harmonious symmetry. Thus it becomes complete
on its theoretical as well as on its practical side.
In the Roman jurists of the best age we note three qualities not always
united in lawyers—a love for theoretical perfection, an attachment to
ancient usage, and a sense of practical convenience. The first delivered
them from the tyranny of the second, the second moderated their devotion
to the first, the third found a middle term between the other two and
guided them in the adjustment of principle to fact. The blending of the
notion of Natural Law, as the ethical standard of conduct and the ideal
of good legislation, with the notion of the law formed by the usages and
approved by the common sense of all nations as embodying what was
practically useful and convenient, satisfied both the philosophical and
the historical instincts of the jurist. Had there been a similar
combination of ideas and habits in the English jurists of the
seventeenth and eighteenth centuries, our legal progress would have been
more rapid, and, if the phrase be permissible, more ordered and
rhythmical.
V. RELATION OF NATURAL LAW TO GENERAL CUSTOMARY LAW.
There are, however, misconceptions against which we must be on our guard
in grasping and appraising this identification of Natural Law with the
sum of that which is common in the customs of mankind.
In the first place it was not a complete identification. There were some
points in which Natural Law and the Law of the Nations differed, and one
of these was of profound importance. That point was Slavery. It was
universal in the ancient world, and so must be deemed a part of _ius
gentium_. But philosophers had pointed out (even before the time of
Cicero) that it was contrary to nature[59]. Here, therefore, is a large
department in which the sanction of Nature could not be claimed for this
part of _ius gentium_ any more than it could for much of _ius civile_.
Slavery, says one jurist, is an institution of the Law of the Nations,
whereby one man is subjected to the ownership of another against
Nature[60]. And where we find the rigour of the old law of Slavery
modified, this is always said to be in deference to nature and humanity,
not to anything in _ius gentium_. And the Roman jurists indeed go so far
as to hold that by Nature all men are equal[61]. So on the other side
there were some provisions of statute law (for instance, in the rules
regarding inheritance) which, though they had been suggested by
principles ascribable to the Law of Nature, were, as resting on Roman
statutes, referred to the category of _ius civile_ rather than to that
of _ius gentium_.
-----
Footnote 59:
Ulpian in _Dig._ l. 17. 32.
Footnote 60:
_Dig._ i. 5. 4, § 1: cf. _Inst._ i. 5; Gaius, _Inst._ i. 52.
Footnote 61:
The doctrine that slavery is against nature was older than Aristotle,
who does not accept it. The orator Alcidamas (a contemporary of
Socrates) said ἐλευθέρους ἀφῆκε πάντας θεός· οὐδένα δοῦλον ἡ φύσις
πεποίηκεν. See W. L. Newman’s _Politics of Aristotle_, Introduction,
p. 141.
-----
Secondly, the Romans did not, when they referred any particular
institution to the _ius gentium_, necessarily intend to convey that it
was universally prevalent. The origin of _hypotheca_ for instance
(mortgage of immovables) and of the _syngraphe_ (written acknowledgement
of a debt) was due to Greek usage, and by no means general over the
world. These legal institutions, however, since they did not belong to
Roman law proper, were held to be part of _ius gentium_.