Chapter III: The Roman ‘law of the Nations.’

Long before the time when the city on the Tiber had become the undisputed mistress of Italy, Rome began to be the resort of many strangers who did not possess even that qualified kind of citizenship (summed up in the words _connubium_ and _commercium_) which included the capacity for forming family ties, and for entering into business relations according to Roman rules. These strangers or aliens (_peregrini_) had originally no civil rights, public or private, but they nevertheless dealt with Roman citizens, sold to them, bought from them, lent and borrowed money, entered into partnership, acted as factors or supercargoes, made wills, gave or received legacies. Similarly, some of them contracted marriages with Roman citizens, and became connected by various family bonds. It was necessary for the Roman courts to deal with the relations, and especially of course with the business relations, which were thus created. Yet the courts could not apply the rules of pure Roman law to them, because it was a precondition to the doing of certain formal acts under that law, to the holding certain legal relations, and (in some kinds of suits) to the use of the appropriate forms of procedure, that the doer or holder should be a full citizen. Accordingly the Roman courts, when they had to administer justice between these strangers, or between them and citizens, were obliged to find certain principles and rules which could guide their action in the same way as the principles and rules of the pure Roman law guided them when dealing with citizens.

The phenomenon of having a different law for strangers and for citizens is one which at first sight seems strange to us moderns, because in modern civilized countries ordinary private law is administered with little regard to the nationality or allegiance of the persons concerned, the law of the country being regularly applied, except where it can be shown that the domicil of a party to a suit, or the fact that a contract was made with reference to another law than that of the court exercising jurisdiction, or the situation of the property dealt with, requires the application of some other (_i.e._ foreign) law[37]. But in the ancient world foreigners everywhere stood on a different level from citizens, as regards not only political, but also private civil rights; the sense of citizenship being much more intense in small communities, and there being no such bond of fellowship as the Christian Church subsequently formed for the Middle Ages and the modern world[38]. Indeed it was the Roman Empire and the Church taken together which first created the idea of a law common to all subjects and (later) to all Christians, a law embodying rights enforceable in the courts of every civilized country.

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Footnote 37:

In the days after the fall of the Roman Empire, however, different
laws were applied to different sets of persons in the extra-European
dominions of European States, _e.g._ the Roman law to the clergy and
the provincial subjects, the barbarian law to barbarians. And the same
thing happens now in countries where Europeans and Musulmans or
semi-civilized tribes dwell side by side.

Footnote 38:

Among some of the Greek cities, however, before they were engulfed in
the Roman dominion, there had grown up a practice by which friendly
commonwealths reciprocally extended certain civil rights to one
another’s citizens.

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How then did the Roman magistrates find the law which they needed for the above-mentioned purpose? As they could not apply their own law, so neither could they select the law of any one of the States which surrounded Rome, because the persons between whom justice had to be done came from a great number of States and tribes, each of which had a law of its own. Being unable therefore to borrow, they were forced to create. They would appear to have created—I say ‘appear,’ because our knowledge of the matter is far from complete—by taking those general principles of justice, fair dealing, and common sense, which they found recognized by other peoples as well as their own, and by giving effect to those mercantile and other similar usages which they found prevailing among the strangers resident at Rome. Thus by degrees they built up a body of rules and a system of legal procedure which, while it resembled their own system in many of its general features, was less technical and more consonant to the practical convenience and general understanding of mankind. They called it the Law of the Nations or of Mankind (_ius gentium_)[39], not in the sense of law valid as between nations (what we should call International Law[40]), but as being the common or general law, just as the expression _nusquam gentium_ means ‘nowhere at all[41].’ It is the law which nations in general used and could comprehend. Each of these nations, or communities—Tuscans, Umbrians, Greek cities of Southern Italy, Carthaginians, and so forth—had a law of its own, with certain peculiarities which no other people could be expected to know or perhaps to relish. But the principles of good faith and equity underlay, and were recognized in, the laws of all, so that this Law of the Nations represented the common element which all shared, and by which all might be content to be judged. Thus it comes near to what the Greeks had called the ‘common law of mankind.’ Yet it is not to be identified with that law, for it is conceived of as something concrete, resting entirely on the fact that men observe it, and possibly not always in accordance with abstract justice.

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Footnote 39:

The word _gens_, though we commonly translate it ‘nation,’ was
originally used to denote a clan or sept (e.g. Fabii, Julii), and
always retained this as one of its meanings. Can this original sense
have had anything to do with the earliest legal meaning of the term?
One is tempted to conjecture that there might have been a sort of
common law of the _gentes_, recognized in contradistinction to the law
of each _gens_, but when we find the term in the time of Cicero, it
has the sense mentioned in the text, and I do not know of any facts
supporting such a conjecture. So far back as one can go _ius
quiritium_ is the term applied to the law of the city as a whole.

Footnote 40:

Though _ius gentium_ is sometimes the term used to describe those
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.

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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].

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Footnote 42:

See Essay II, vol. i. pp. 113-118.

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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.

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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.

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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.