by no means cease, while his work has a permanent and independent value in cases for which a code is unsuitable. International Law, for instance, will never receive that universal enactment which would turn it into a true statute, and at the same time probably check its gradual improvement". For case-law, it equally lacks a common tribunal and an authoritative record. Therefore, to compile virtual precedents of humanity and general utility has been the work of text-book writers on this subject from Grotius downwards. To tabulate the admission, by nation after nation, of certain general principles, is to bring those principles nearer every year to a binding authority. The reduction of International Law to the form of a code, by the late Dr Bluntschli, has been somewhat severely criticised, on practical grounds; but it may be questioned whether this is not the best shape into which writers on the subject can throw their work. It should at least be free from any odium attaching to claims of binding authority or statutory fixity. All that is proposed is to set forth clearly the present feeling of the civilised world. On points where this feeling is not unanimous, there will doubtless be contradictory maxims; but the very exhibition of these contradictions, by such a system as Bluntschli's, must tend to their reconciliation, and to the nearest practical attainment of an International Code. For statements of that custom, again, which obtains as Constitutional Law, we have to rely mainly on text-books. Judicial decisions may, doubtless, from time to time evidence this or that individual point: the entire scheme may be statutorily enacted by the sovereign. But since by Constitu 47 Above, p. 186. 48 See Calvo, Droit International, t. 1, p. 90. 49 Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch (not Gesetzbuch) dargestellt. See particularly the end of § 1 in the Introduction (pp. 6, 7). C. J. 22 tional Law proper we mean the rules which determine the powers and the constitution of that sovereign's self, it is clear that such statutes are mere expressions of the will of the majority, which may change the next day. That will has changed, though slowly, in our own very conservative nation. Of the elements, which go to make up our composite sovereign, two certainly do not now exercise, nor would be tolerated by the opinion of the nation in exercising, the powers which, according to old constitutional theory, they still possess: on the other hand, the Cabinet, or rather the prime minister, does exercise very great power totally unknown to that theory. Such changes, which are going on in our own time, come to pass through incidents of parliamentary practice; through the expression of opinion by the electors to the House of Commons, on a dissolution; in very rare cases, like that of the Reform bill, through the expression of what can only be called the will of the nation. They are recorded by text-book writers, who also furnish the historical connecting links which make them intelligible. With regard to Magisterial law a convenient phrase to express the law of a state, other than Constitutional 50-the province of the text-book writer is manifold. Of ancient custom he gives the history and raison d'être; he records and preserves so much as has not become obsolete. In the former function he can never be entirely replaced: the latter might with great advantage be discharged by well-drawn statutes11. To court practice, as to the authoritative precedents of English law, he renders, or ought to render, the inestimable services of digestion, harmonisation, reduction to general principles, and, here again, the omission of what is obsolete. To the great merits of our English case-law I hope I have not done injustice in a former chapter. But our report books can 50 Above, p. 167. Also my Analysis of Criminal Liability, p. 1. scarcely be considered desirable as a permanence. It is not long since some of them deserved no name so well as that of rubbish-heaps: even now they are rapidly accumulating masses of matter of very different qualities. This matter, according to our theory, the text-book writer cannot supersede by his own generalisation: but he can put it in the power of a judge to do so; he can facilitate the periodic digestion which it is to be hoped will improve our present system; and he can suggest that logical or scientific supplementation which a system based on practice may, even after codification, still require 5. 52 Below, ch. 16, p. 393. CHAPTER XIII. JUS GENTIUM AND EQUITY: THE PRAETOR'S EDICT. THE Jus Gentium of the Romans has been spoken of above' as a "philosophical idea." Another, and supposed earlier, meaning has been attached to this phrase by high authorities. Both deserve consideration here as bearing more upon the question of "sources" and "modes" than upon any other aspect in which law can be viewed, or classification by which it can be divided. And the particular view taken by Austin of the "earlier jus gentium" leads directly, as I conceive, to an erroneous conception of our own very fundamental juristic idea equity. Savigny, whom I cannot help regarding as the "remote cause" if not the "source" of Austin's theory on this subject, says, "The early commerce of the Romans with neighbouring foreign peoples made it necessary to apply before the Roman tribunals the law of peregrini, besides the indigenous law-therefore, also, to know it by study; and not merely the law of some particular foreign state, but also that which was common to several of them. The more the Roman dominion spread, and consequently the dealing with foreign states became more manifold, by so much the more must the scope of vision on this matter have widenedand in this way they came imperceptibly to the abstract conception of a law common to the Romans and all foreign 1 P. 180. states; therefore common to them and all men." Much, he adds, of the general element embraced in this jus gentium passed over into the jus civile, and the jus honorarium served as the intermediate organ of this passage'. Peregrini. This word, literally meaning foreigners, has in its regular opposition to cives, different meanings at different times of Roman history. Originally it included, according to Savigny3, all persons who were not full citizens of Rome, and therefore the members of all other Italian states down to the third year of the Social war, B.C. 89. During that earlier period there were, however, variable friendly relations of a temporary character with these states, particularly with those of the Latin race or "name." But whether the "Latins" of this period-a partly national and not yet purely legal denomination— formed a sort of middle class, or stood, in their legal relations at Rome, on the same footing with the other peregrini, is a question which I cannot satisfactorily answer. Savigny is rather in favour of the former alternative". Whatever was the position of these Latini was probably also that of the "Latin" colonists, although originally Roman citizens. During the Social war, Roman citizenship was given to all Italy south of the Po, the part between the Po and the Alps being allowed the half citizenship known as Latinitas, 2 System 1, § 22, pp. 109, 110, 118. 3 Ib. 2, § 66, p. 38. 4 The whole section should be read. 5 He is not very clear on the subject. The alternative Latino peregrinove in the Lex Agraria of 110 B.c. (Rudorff, c. 14, par. 29), while it fixes the Italians as peregrini, is in favour of some distinction between the latter and the Latini. I take Mommsen (Römisches Staatsrecht 2, p. 200) to include these older Latini, for purposes of jurisdiction, under the general class of peregrini, and am inclined to agree with him. See, apparently to that effect, Gaius 1. 79, Sed ad alios Latinos pertinet, qui proprios populos propriasque civitates habebant et erant (and yet were) peregrinorum numero. • Apparently referred to by Cicero, pro domo, 30. 78. For the similar position of the nomen Latinum and the coloniarii see Rivier, § 20, p. 139. |