I grew up among the Romans and was understood by them. have therefore postponed my consideration of so much of Austin's theory of the edict as appears to me to belong more properly to jus gentium. Up to the present point, I would sum up the results of my enquiry thus. The original appointment of the second judicial Praetor does not appear to have been connected with any distinction of jurisdiction: and the special title of the first (urbanus) was certainly not due to any such distinction. An assignment of one of the courts to business in which peregrini were concerned doubtless took place; but cannot be certainly dated much before the introduction of the formulary system, sixty-five years (242-177) after the appointment of a second Praetor. The formation of an edict, embodying the changes introduced by the Praetors in Roman law, cannot have begun until after the same introduction, and was not placed under statutory sanction for more than a hundred years after it (177—67). When the apportionment of a special jurisdiction to the peregrini first took place, they would probably be, in the main, Italians, and some of the principal modifications in the old law, which was strict and exclusive, would have to be made with a view to them. But both probability and testimony point to this result having been attained by the admission rather of the men themselves into the Roman courts, through legal fictions, than of their law into the Roman law. If there were a special edict for the peregrini, its difference merely consisted in certain further modifications of the old law, not in the collection of extraneous matter or the formation of a logical abstractum from Roman and other law. CHAPTER XIV. THE ROMAN JUS GENTIUM. Lateness of the idea. The body or bodies of law of which I spoke in the last chapter were known to the Romans by clear and significant names derived from the form in which they appeared or from their source in the sense of immediate author. They were either the Notices (edicta), the Praetor's Law (jus praetorium), or the Magisterial Law (jus honorarium) as based upon the magistracy of the Praetor. No such clear explanation can be given of the term jus gentium; but certain explanations which have been given may at least be cleared away. When Austin speaks of a meaning attached to this phrase by the "early Roman lawyers" I do not know to what extant writer he refers, as he expressly excludes the jurists from the birth of Cicero to Ulpian2. I can only date the origin of the phrase conjecturally. Cicero speaks of a separation between jus civile and jus gentium by majores nostri but I know no older Latin authority for the latter idea than himself. Neither have I found mention of a jus gentium in the Auctor ad Herennium, nor in Cicero's early work de Inventione (about 80 B.C.) based upon that author. It is hazardous to assert a negative which a single overlooked passage may falsify, but I believe that the phrase : 1 Digest 1. 1. 7. Papinian: 1. 2. 10. Pomponius. C. J. 3 Cicero de Officiis 3. 17. 69. jus gentium does not occur in these works, while the idea is expressed by natura, jus naturae, jus commune, &c. which are opposed to "this national law of ours" hoc civile jus1. I shall return to the meaning of jus gentium with Cicero a little further on. Meaning of Gentium. Gentes, in the strict sense, would signify not the Italian tribes so much as the old family or quasi-family associations of Rome. But, as early as Plautus we find the expression omnes gentes clearly meaning all nations and the genitive gentium, without omnium, in con-nexion with such words as unde, ubi, &c. answering almost exactly to our English expressions "whence, where &c. in the world." Austin attributes to gentes a meaning similar to that borne by "Gentiles" in the antithesis "Jews and Gentiles." Apart from its special theological application®, gentes in this antithesis means simply foreign nations. There are a few but not very clear instances of this use in classical Latinity. That gentes could mean the individuals belonging to foreign nations is entirely out of the question. gentium is, idiomatically rendered, the law of the world. 8 Jus Jus civile. I can no more date with certainty the introduction of this term jus civile than I can that of jus gentium; but I believe it to be the earlier of the two. The meanings of the phrase are various, and, though pretty clearly ascertained, by no means easy to account for. In the passages from Cicero quoted above, and in others, it means the whole law of a particular state and, where a state is not specified, 4 Auctor ad Herennium 2. 10. 14: 2. 13. 19. Cicero de Inventione 2. 53. 160-162. Cf. de Inventione 2. 22. 67. Naturae quidem jura quaeruntur ad hanc controversiam, quod neque in hoc civili jure versantur, &c. 5 E.g. Rudens Prol. 1. 6 As in Latin fathers of the Church, e.g. Arnobius adversus Gentes. 7 Tacitus Germ. 33. See too Horace Ode 1. 2. 5. 8 Austin 31. p. 575. the law of the Roman state. This meaning of jus civile is clearly stated at the beginning of Gaius, and the specialised form of it "the national law," i.e. the Roman, so familiar to us in modern times, is deduced from it by Justinian 10. The other significations of this troublesome phrase do not concern my present enquiry, but I cannot pass them over without remark. The undoubted use of it, in the time of Cicero, which I have stated, can scarcely have been the original one. Etymologically, jus civile is the law of the citizens and points, not to a distinction of states, but of classes within the same state. Two explanations of the original phrase may be given, between which I fear we cannot decide, without information which we are never likely to obtain, e.g. as to the subjectmatter of the lost works of Scaevola the pontiff11, and Varro the antiquarian12. The first jus civile may have meant the older or specially Roman law, called, in earlier times, jus Quiritium or simply jus, the rights and remedies of which were competent to citizens alone. Opposed to jus civile in this sense might well be the jus Praetorium which was introduced by way of improvement on the older law, and to some considerable extent, though not of course entirely, for the sake of the increasing class who were not full Roman citizens". This original meaning of jus civile is quite consistent with the 9 Above, notes 3, 4. See too Cicero de Oratore 1. 44. 197. Omne jus civile praeter hoc nostrum. Id. de Legibus 1. 5. 18. Jura et jussa populorum quae vocantur jura civilia. In De Legibus 1. 4. 14 "jus civile" and " "jus civitatis" are clearly convertible terms. 10 Gaius 1. 1. Just. Instt. 1. 1. 2. 11 Dig. 1. 2. 2. 41. Pomponius. Jus civile primus composuit. Gellius 6. 15. 2. speaks of the books quos Q. Scaevola de jure civili composuit. The title was therefore possibly de jure civili. Scaevola was murdered 82 B.C. 12 See Teuffel 1 § 154d (p. 246 trans.). Varro died 28 B.C. 13 Gaius 2. 104: 4. 16, &c. 14 See last chapter, pp. 348, 352. 15 special application of that term to the text-book law which was considered to be based upon the Twelve Tables and the older customary law which probably accompanied it. The distinction of this special jus civile from the statute itself1, however old, is due simply to the distinction of lex, statute, and jus, in this antithesis unenacted law17. So Gaius and Ulpian exclude later enactments, whether on the ground of their modern or their statutory character I cannot say, from jus civile 18. Papinian, from the opposition to jus praetorium, includes under jus civile all Roman law but the edict1o. Another explanation, which can also be reconciled, though not so well, with some of the uses of the phrase, is that jus civile originally meant the law of private citizens, in fact private as opposed to public law. The opposition of jus civile to judicia by the Auctor ad Herennium, and of "civil action and private law" to proceedings under the lex de pecuniis repetundis by Cicero 20 point in this direction. I cannot here enter into the very unsatisfactory division of law into public and private, except so far as to say that this division is better explained by reference to procedure than, as Justinian following Ulpian explains it, by reference to object or purpose". The jus civile of the early prudentes and Scaevola was in all probability confined to the subject-matter of actions inter cives. The distinction of these from the criminal proceedings before the populus was, I believe, the origin of the clearer antithesis civil and 15 See above, ch. 9, pp. 285, 286. 16 See Cicero de Officiis 3. 17. 69. Neque aut lege sanciri aut jure civili. 17 See too Pomponius Dig. 1. 2. 2. 5, 6, 12. 18 Gaius 2. 197, 206. Ulpian Tit. 24. 12. 19 Digest 1. 1. 7. 20 Auctor ad Herennium 1. 12. 22. Cicero in Q. Caecilium Divinatio 5. 18. In the speech pro Caecina Civili ac publica lege" (26. 74) is very difficult to explain satisfactorily. It may after all mean little but "the law of the land." 21 Digest 1. 1. 1. 2: Instt. 1. 1. 4. See also Austin 44. pp. 778, 9. |