Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 31

I now proceed to consider the jus gentium of the earlier Roman lawyers, and the distinction between jus gentium and civile, as understood by them and by the classical jurists. My chief motive for this inquiry is the intimate connexion of the Roman jus gentium with equity, when equity means a department of positive law, and not some standard to which, in the opinion of the writer or speaker, positive law should conform, nor the arbitrary pleasure of judges, deciding against law, nor the species of judicial legislation in the guise of interpretation or construction, by which the precepts of some positive law are extended or restricted. The equity of which I am now speaking includes as well the Roman jus prætorium as our own equity; the one introduced by the edicts of the Prætors in the way of direct legislation: the other by English Chancellors, as judges exercising their extraordinary jurisdiction. As I shall hereafter shew, neither of these is a law of a distinct class. The jus prætorium is statute law, or law in the direct form, emanating from a subordinate legislature: our own equity is partly Acts of Parliament, partly law introduced in the judicial manner by decrees of exception, or decisions of an extraordinary tribunal. All the cant and jargon by which the subject has been obscured, arises from the name. This portion of the law is called equity; and equity, as denoting prætorian and chancery law, is frequently understood by talkers and writers on the subject in one of the other and numerous meanings which are attached to that slippery expression. By stating the history of the phrase, I shall be 551enabled to dispel the darkness in which it is involved; but in order to state the history of the term equity, I must explain the original meaning of jus gentium, and the meanings which may afterwards be annexed to that term and to the partly corresponding, partly disparate expression, jus naturale. I shall accordingly deal with these subjects in the following order.

First; I shall endeavour to explain the meaning of the term jus gentium, as understood by the Roman lawyers, before they imported into their own system of positive law, notions or principles borrowed from the philosophy of the Greeks.

Secondly; Having explained the meaning of the term as understood by the earlier Roman Lawyers, I shall state its meaning as used by Justinian in the Institutes and Pandects, or rather as used by the jurists styled classical, of whose writings, or excerpts from whose writings, the Institutes and Pandects are principally composed.

To these lawyers, who lived between the birth of Cicero, or of his friend Servius Sulpicius, and the reign of Alexander Severus in the beginning of the third century, the Roman law owes the regularity and symmetry of its form and the matchless consistency of its parts. But in spite of their manly sense and admirable logic, they unluckily introduced into their expositions of their own positive system, notions or principles drawn from the Greek philosophers, with which empty declaimers have been hugely taken, but which have no connexion with the system on which they are injudiciously struck, and which we must detach from the fabric before we can perceive the beauty of its proportions, and feel a due admiration for the scientific correctness and elegance of its structure. Among these notions I am compelled to rank the jus gentium, or as it is often termed jus naturale, as understood by the classical jurists, and as it appears in the Institutes and Pandects. Jus gentium, otherwise jus naturale, differs from the jus gentium of the earlier Roman law, and tallies with the natural law of the moderns. Accordingly, the phrase, as used by the classical jurists, is ambiguous. It sometimes denotes that portion of positive law which forms a constituent part of every body of law; which obtains as law in every independent society that has ascended to a state of government, But, instead of denoting a portion of positive law, it sometimes denotes the standard to which, in the opinion of the writer or speaker, positive law ought to conform.

Thirdly; From the jus gentium of the older Roman law, and from the jus gentium or naturale of the Classical Jurists, I 552shall advert to a jus naturale (a mirum jus naturale!) which I take the liberty of styling ‘Ulpian’s Law of Nature.’

In two or three excerpts from Ulpian which are given in the beginning of the Pandects, and one of which also occurs at the beginning of Justinian’s Institutes, he opposes to that jus gentium which tallies with the law natural of the moderns, a certain jus naturale common to man and beast:—‘Jus quod natura omnia animalia docuit.’

This last-mentioned jus naturale (which, as I shall shew hereafter, accords with an admired conceit of Hooker and Montesquieu) seems to have been taken by the good Ulpian from certain inept speculations of certain Stoic philosophers. Since it is peculiar to Ulpian, and since no attempt to apply it occurs in the Pandects or Institutes, it can scarcely be considered the natural Law of the Romans, nor can it be fairly imputed to the body of the Classical Jurists; who (heaven knows) have enough to answer for, in that they adopted from the Greeks the other jus naturale, and were thus the remote authors of that modern Law of Nature which has so thoroughly perplexed and obscured the sciences of Jurisprudence and Ethics.

Having premised these brief explanations, I proceed to the jus gentium of Roman origin, or of the Roman lawyers who preceded the Classical Jurists.

According to the Roman Law, a member of an independent nation, not in alliance with the Roman people, had no rights as against Romans, or as between himself and other foreigners or aliens. And even a member of an independent nation, the ally of the Roman People, had no rights (as against Romans or foreigners), except the rights conferred on members of that nation by the provisions of the fœdus or alliance.

When I say that the members of an independent nation, not in alliance with the Roman People, had no rights as against Romans or foreigners, I understand the proposition with limitations.

When a member of any such nation was residing in the Roman territory, it is probable that his person was protected from violence and insult: And, although he was incapable of acquiring by transfer or succession, or of suing upon any contract into which he had affected to enter, goods actually in his possession were probably his goods, as against all who could shew no title whatever. Unless we understand the proposition with these limitations, a peregrinus or alien, not a socius or ally of the Roman people, was obnoxious to murder and spoliation at every instant, when dwelling on Roman soil.

553In short, the condition of such an alien, when residing on the Roman territory, probably resembled the condition of an alien enemy, living within the ligeance of our own King. The latter is protected from bodily harm and spoliation, although he is generally incapable of suing in the Courts of Justice, and although it is said (in loose language) that he has no rights.

I believe it is now usual, on the breaking out of a war, for the King to grant a special permission to the enemy’s subjects to reside in the country; and under this permission they have the same rights as alien friends. But Lord Coke lays it down positively, that an alien enemy has no rights; by which it can only be meant that he has not the right of suing in our courts, just as a person outlawed is commonly said to carry caput lupinum, although there is no doubt that to kill him intentionally would be murder.

But, taking the proposition with the limitations which I have just suggested, the members of an independent nation, not in positive alliance with the Roman people, had no rights, which the Roman Tribunals would enforce. For although they were not positively enemies of the Roman People, neither were they positively its allies or friends. And, agreeably to the maxim which prevailed in every nation of antiquity, they were therefore considered by the Roman Law as not existing.

This unsocial maxim (of which there are vestiges even in Modem Europe) obtained in the Roman Law from the very foundation of the city to the age of Justinian. It is laid down broadly in an excerpt in the Pandects, ‘that every people, not in alliance with us, keep everything of ours which they can contrive to take; whilst we, in return, appropriate everything of theirs which happens to fall into our hands.’ ‘Si cum gente aliquâ neque amicitiam, neque hospitium, neque fœdus amicitiæ causâ factum habemus, hi hostes quidem non sunt. Quod autem ex nostro ad eos pervenit, illorum fit; et liber homo noster ab eis captus servus fit eorum. Idemque est, si ab illis ad nos aliquid perveniat.’

It may therefore be affirmed generally, that, according to the Roman Law (and according to the law of every nation of antiquity), the members of a foreign and independent community had no Rights: Rights which they might have acquired by virtue of any positive alliance, being created specially by the provisions of the particular treaty, and by way of exception from the exclusive and general maxim.

From the purè peregrini or aliens (or from members of 554foreign and independent nations), I turn to the members of the communities which formerly had been independent, but which had been subdued by the Roman arms, and brought into a state of subjection to the Roman Commonwealth.

The members of an independent community subdued by the Roman arms, were placed in a peculiar position. They were not admitted to the rights of Roman Citizens, nor were they reduced to the servile condition and stripped of all rights. Generally speaking, they retained their ancient government and their ancient laws, so far as the continuance of those institutions consisted with a state of subjection to the Roman Commonwealth.

It is clearly laid down in the Digests, that, unless the sovereign legislature has specifically directed the contrary, the judge shall consult, in the first instance, the law peculiar to the particular region: And that the Law of Rome itself (‘jus quo urbs Roma utitur’) shall not be applied to the case which awaits decision, unless the law peculiar to the particular region shall afford no solution of the legal difficulty.

Such being the condition of the conquered and subject nations, the following difficulties inevitably arose.

Inasmuch as those conquered and subject nations were not incorporated with the conquering and sovereign community, their members had no rights as against Roman Citizens, according to the ancient and strict law obtaining in Rome itself. For, during the period in which that law arose, those conquered and subject nations were foreign and independent societies; and agreeably to the unsocial maxim which I have already explained, their members had no rights which the Roman tribunals would enforce.

And, agreeably to the same maxim, members of one of those nations had no rights as against members of another. For, although those nations were now subject to their common sovereign, Rome, they had been foreign and independent nations, with reference to one another, as well as with reference to the dominant nation which had beaten and subdued them all. In consequence, therefore, of the maxim to which I have alluded, the law peculiar to any of those subject nations imparted no rights to the members of another community.

Consequently, whenever a controversy arose between a Roman and a Provincial, or between a provincial of one and a provincial of another Province, there was no law applicable to the case, and the party who had suffered the damage was left 555without redress. As between Romans and provincials, or as between provincials of one and provincials of another Province, the Roman Law afforded no remedy. For the Roman Law acknowledged no rights in any but Roman Citizens.

In either of the same cases, the particular law of any particular Province was equally inefficacious. For the people of that Province had been an independent community; whose law (like that of Rome) acknowledged no rights in any but its own members.

Creation of Prætor Peregrinus, to administer justice in Italy, between Romans and members of Italian States, and between members of any of those States and members of any other.

To meet such cases, there was a manifest necessity for a system of rules which should embrace all the nations composing the Roman Empire: which should serve as a supplement or subsidium to the Law of Rome itself, and to each of the various systems of provincial law obtaining in the conquered territory.

In the earlier ages of Rome, and before she had extended her empire beyond the bounds of Italy, the inconvenience which I have tried to explain inevitably arose, in consequence of the unsocial character of the old Roman Law, and of the equally exclusive character of the various systems of law obtaining in the Italian States which the Roman people had subdued. Accordingly, in addition to the ancient Prætor (who judged in civil questions between Roman Citizens, and agreeably to the law peculiar to the Urbs Roma), a Prætor was appointed to determine the civil cases which arose from the relations between the victorious republic and the subject or dependent communities.

This new Magistrate (who resided in Rome itself, but who seems to have made periodical circuits through the conquered States of Italy) exercised civil jurisdiction in the following cases: namely—1st, in all questions of controversies between Roman citizens and members of the Italian States which were vassals and dependents of the Roman people; 2ndly, between members of any one of these vassal states and members of any other; 3rdly, between members of subject states when residing in Rome itself; which might be considered as a distinct class of questions, because, if the parties were members of the same community, the dispute was properly decided by the law of that community.

This new magistrate was styled ‘Prætor Peregrinus:’ Not because his jurisdiction was restricted to questions between foreigners; but because the questions, over which his juris556diction extended, arose more frequently between foreigners and foreigners than between foreigners and Roman Citizens: ‘Quod plerumque inter peregrinos jus dicebat.’

In the strict sense of the term Peregrinus, the parties, whose causes he commonly determined, were not peregrini, or foreigners, but friends and vassals of Rome. But since they had been foreigners before their subjection to Rome, and had not been admitted afterwards to the rights of Romans, they were still entitled peregrini or foreigners (as distinguished from Cives or Roman Citizens).

As I have remarked already, it is not probable that a foreigner (in the strict acceptation of the term) could regularly maintain a civil action before any of the Roman Tribunals.

After the appointment of the Prætor Peregrinus, the ancient and ordinary Prætor was styled (by way of distinction) Prætor Urbanus: Partly because his tribunal was immovably fixed at Rome, and partly because he decided between Romans and Romans, agreeably to the peculiar law of their own pre-eminent City.

From the appointment of the Prætor Peregrinus, and the causes which led to the creation of his new and extraordinary office, I proceed to the law which he administered.

In questions between foreigners and Romans, and between foreigners of different dependent States, the first Prætor Peregrinus must have begun with judging arbitrarily. For neither the law of Rome herself, nor the law obtaining in any of the vassal nations, afforded a body of rules by which such questions could be solved.

But a body of subsidiary law, applicable to such questions, was gradually established by the successive Edicts which he and his successors (imitating the Prætores Urbani) emitted on their accession to office. This subsidiary law, thus established by the Foreign Prætors, was probably framed, in part, upon general considerations of general utility. But, in the main, it seems to have been an abstractum (gathered by comparison and induction) from the peculiar Law of Rome herself, and the various peculiar systems of the subject or dependent nations.

Perpetually engaged in judging between foreigners and citizens of Rome, and between foreigners of different dependent States, these magistrates were led to compare the several systems of law which obtained in the several communities composing the Roman Empire. And, comparing the several systems obtaining 557in those several communities, they naturally extracted from those several systems a system of a liberal character; free from the narrow peculiarities of each particular system, and meeting the common necessities of the entire Roman World.

This body of law, thus introduced by successive edicts, acquired the name of jus gentium, and this was the meaning originally annexed to that ambiguous and obscure expression.

It probably acquired this name for one of the following reasons:—First, as extending to all communities (including Rome itself) which formed part of the Roman Empire, it was properly jus gentium or jus omnium gentium, as opposed to the law peculiar to Rome and contradistinguished from the law of a single dependent State. This is the likeliest origin of the expression. Secondly, though applied between Romans and foreigners, as well as between members of different foreign States, the questions or controversies, which it was framed to meet, naturally arose plerumque inter peregrinos; but peregrini or foreigners when contradistinguished from Romani cives, are frequently styled gentes. Thus, Cives and gentes,—Jews and gentiles,—Ἕλληνες καὶ Βάρβαροι,—expess distinctions precisely similar; they denote persons other than the countrymen of the person employing them, as opposed to his own countrymen. Jus gentium, therefore, does not denote law obtaining universally or generally, but law conversant about gentes or foreigners—namely, those foreigners who were subjects of the Roman People and with whom it was most concemed.

Extending to all the nations, which composed the Roman Empire, and not being peculiar to one community, it was also entitled jus æquabile, jus æquum or æguitas, that is, universal or general law as opposed to partial or particular. Nothing can be homelier than the origin of the term equity, or less related to the jargon in which it has subsequently been involved. But instead of denoting this universal or equable law, æquitas sometimes denoted conformity to that law; as justitia denoted conformity to jus. Since the law denoted by the term equity, or the law conformity to which was denoted by the term equity, was a law of an impartial or liberal character, equity came by a natural transference of signification, to mean fairness. It was consequently used by every innovating judge, who sought to cover his innovations by a specious and imposing name; and by this obvious and effectual artifice, the term was extended from the law established by the prætores peregrini, to the law created by the ordinary prætors, and by our own chancellors.

Extension of the jus gentium treated by the Prætores peregrini to the outlying provinces.

558After the dominion of Rome had extended beyond Italy, the subsidiary Law introduced into Italy by the edicts of the Prætores peregrini, was adopted and improved by the Edicts of the various Roman Governors, who (under the various names of Proconsuls, Prætors, Proprætors, or Presidents) represented the Roman People in the outlying Provinces.

For the governors of these outlying provinces (like the Prætor Peregrinus, whose jurisdiction was confined to Italy, and like the proper magistrates of the Roman People) were tacitly or expressly authorised to legislate, as well as to judge; ‘jus edicere’ as well as ‘dicere.’

As between Provincials of his own province, the governor of an outlying province regularly administered the law which had obtained in the province before its subjection to Rome. As between Romans and Romans residing within his province, he regularly administered the law peculiar to Rome herself. But neither the peculiar law of his own province, nor the peculiar law of Rome (in its old and unsocial form), would apply to civil cases between Romans and Provincials or between Provincials of different provinces.

In questions, therefore, between Roman Citizens and Provincials, or between Provincials residing in his province (but belonging to different provinces), he administered the subsidiary law created by the Prætores Peregrini, or a similar subsidiary law created by himself or his predecessors.

Since the want which led to the creation of this subsidiary law was the same in Italy and the outlying Provinces, and since all its immediate authors were representatives of the same sovereign, it naturally was nearly uniform throughout the Roman World, notwithstanding the multiplicity of its sources. The 559Presidents of the outlying provinces naturally borrowed from the Edicts of Prætores Peregrini; and the Prætores Peregrini as naturally adopted the improvements which the Edicts of those Presidents introduced.

This subsidiary law was styled jus gentium, jus æquum, etc.; and was the jus gentium of the earlier Roman Lawyers.

As distinguished from the system of law which was peculiar to Rome herself, and also from the systems of law which were respectively peculiar to the subject or dependent communities, this subsidiary law was styled jus gentium, or jus omnium gentium: the law of all the nations (including the conquering and sovereign nation) which composed the Roman World. As being the law common to these various nations, or administered equally or universally to members of these various nations, it was also styled jus æquum, jus æquabile, æquitas: Though the term, ‘æquitas’ seems to have denoted properly, not this common or equal law, but conformity or consonance to this common or equal law; as the more extensive but analogous term justitia signifies conformity or consonance to any jus or law of any kind or sort. And the jus gentium which I have now attempted to describe, was the only jus gentium that was known to the Roman Law, till the jus gentium or naturale, which occurs in Justinian’s compilations, was imported into it, by the jurists who are styled Classical, from speculations of Greek Philosophers on Law and Morals.

Originally, the jus gentium which I have attempted to describe, was not parcel of the proper Roman Law, or the law peculiar to Rome herself.

But the first arose in an age comparatively enlightened, and was a product of large experience; whilst the last had arisen in an age comparatively barbarous, and was a product of narrow experience. The jus gentium, therefore, was so conspicuously better than the proper Roman Law that naturally it gradually passed into the latter; or became incorporated with the latter.

It influenced the legislation of the Populus, Plebs, and Senate; it influenced the opinions held and emitted by the Prudentes; and (above all) it served as a pattern to the Prætores Urbani, in the large and frequent innovations which they made by their general edicts, upon the old, rude, and incommodious law peculiar to the Urbs Roma.

So much indeed of the jus gentium passed into the jus prætorium (or the law which the Prætores Urbani created by their general edicts), that one of the names given to the latter was probably transferred to it from the former. It probably was named æquitas (or jus æquum) after that æqual or common 560law, from which it had borrowed the bulk or a large portion of its provisions.

The law formed by the Edicts of the Prætores Urbani (or the Prætors who sat immovably in the Urbs Roma, and administered justice between Roman Citizens) was commonly called jus prætorium. But having borrowed largely from the jus gentium, it was also styled, like the jus gentium, ‘æquitas:’ A name which was extended to it the rather, for this reason:—that æquitas had become synonymous with general utility; and that the jus prætorium (when contrasted with the old law, to which it was a corrective and supplement) was distinguished by a spirit of impartiality or fairness, or by its regard for the interests of the weak as well as for the interests of the strong: e.g., It enlarged the rights of women: gave to the filius familias rights against the father; to the members of the subject States rights against Roman Citizens.

Jus Civile as opposed to Jus Gentium of Roman origin. Near equivalence of that distinction to ‘jus civile et jus prætorium.’

Now after the incorporation of the jus gentium with the proper Law of the Urbs Roma, the latter was distinguishable, and was often distinguished, into two portions—namely, the jus gentium which had been incorporated with it, and that remnant of the older law which the jus gentium had not superseded. As being proper or peculiar to the City of Rome, this remnant of the older law (when contradistinguished from the jus gentium) was styled jus civile: that is to say, the proper or peculiar Law of that Civitas or Independent State. Though (as I shall shew hereafter) jus civile (taken in a larger meaning) included the whole of the Roman Law: the jus gentium which it had borrowed, as well as the jus civile (taking the expression in the narrower meaning) upon which the jus gentium had been superinduced.

This distinction between jus civile et gentium (as denoting different portions of the more recent Roman Law) nearly tallied with the distinction between jus civile et prætorium. For first; Though much of the jus Prætorium (or the law introduced by the edicts of the Prætores Urbani) was not suggested to its authors by the jus gentium, most of it was naturally formed upon the model or pattern which that jus æquum presented to imitation.

Secondly; although the incorporation of the latter with the Law of the Urbs Roma, was partly accomplished by acts of the Populus, Plebs, and Senate, still it was principally effected through the edicts of the Urban Prætors: By whom (as I shall shew in a future Lecture) the business of Civil Legislation was mainly carried on.

561Now as most of the jus prætorium consisted of jus gentium, and as most of the jus gentium (imported into the Roman law) was imported by the edicts of those Prætors, it is not wonderful or remarkable (considering the clumsy manner in which language is usually constructed) that jus Prætorium and jus gentium were considered synonymous expressions:—that the distinction between jus civile et jus gentium, and the distinction between jus civile et jus prætorium, were considered as equivalent distinctions (although, in truth, they were disparate).

And (for the same reason) the extension of the term ‘æquitas’ was restricted to the jus prætorium; though the term might have been extended to a lex, or a Senatus-consultum which had borrowed its provisions or principle from the jus gentium.

The jus gentium therefore of the earlier Roman Lawyers, was the common law of the community composing the Roman world, as contradistinguished to the particular systems which were respectively peculiar to those several communities or gentes.

But in consequence of this incorporation of the jus gentium with the law peculiar to the Urbs Roma, the jus gentium, as a separate system, eventually disappeared. For the proper Roman Law, having adopted and absorbed it, became applicable to the cases which it had been made to meet: That is to say, to civil questions between Citizens of Rome and members of the communities which Rome had subdued, or between members of any of those communities and members of any other. And, by consequence, the office of the Prætor Peregrinus thereafter fell into disuse; and the Edicts of the Presidents in the various provinces were thereafter exclusively occupied with purely provincial interests.

The Roman Law having absorbed the jus gentium, and tending in every direction to universality, had now put off much of its exclusive character. Although that older portion of it, which was marked with the distinctive name of jus civile, was still the peculiar law of Roman Citizens, much of the later law introduced by the people and Senate, and more of the law established by the Urban Prætors, was adapted to the common necessities of the entire Roman world. Hence the Law of the Urbs Roma (though originally the peculiar law of the dominant City) was applied (in subsidium) to cases between Provincials, although the contending parties were members of the same province, and were actually within the jurisdiction of its peculiar tribunal. Owing to the character of universality which it thus 562acquired, and which was afterwards heightened by the labours of the Classical Jurists, the Roman Law (though the law of a single people living in a remote age) has obtained as auxiliary law in the nations of Modern Europe, or has been incorporated with their own peculiar systems.

And here I would remark that a common law or jus æquum, nearly resembling the jus gentium in question, has obtained in almost every nation with which we are acquainted.⁴¹ For every system which is common to a limited number of nations, or to all the members of a single nation, is a jus gentium (as the phrase was understood by the earlier Roman Lawyers) when opposed to the particular systems of those several communities, or to the particular bodies of law obtaining in that one community.

⁴¹ (E.g.) Roman Law as subsidiary law of a limited number of modem nations. General Feudal Law (or abstractum contained in Libri Feudorum) as subsidiary law of a limited number of modern (or middle age) nations.

Jus commune Germanicum, since the dissolution of the Empire.

Law Mercantile.

Canon Law.

Jus commune Gemanicum, before dissolution of Empire.

Law contained in General Prussian Code.

Common Law of United States of America, which is applied by Federal Courts in cases over which the Constitution has given them jurisdiction, in default of law made or specified by the Constitution or by Congress.

Common Law of England, as originally understood: though original idea now cut down to Law judiciary—not made on statutes—administered by Courts of Common Law, and obtaining as Law throughout the Realm.

Falck, § 124. Blackstone, vol. ii. 44; vol. iv. 67.

Du Ponceau’s Jurisdiction of Federal Courts.

Wherever, in short, there coexist various systems of particular law, and a general system, there is a jus gentium (in the sense of the older Roman Lawyers).

From the jus gentium of the older Roman Law I pass to the jus gentium, otherwise jus naturale, of the Institutes and Pandects.

The jus gentium or naturale of the Institutes and Pandects compiled by Justinian, has little or no connexion with the jus gentium explained above. The jus gentium of the Institutes and Pandects was imported into the Roman Law from the systems of the Grecian philosophers by the jurists styled classical: that is, the jurists who lived and wrote during the period intervening between the birth of Cicero, and the reign or death of the Emperor Alexander Severus, and of whose writings the Institutes and Pandects are almost entirely composed. Servius Sulpicius, the friend of Cicero, is generally, I believe, considered the first of the classical jurists; Ulpian, who held 563the post of Præfectus annonæ and other offices under Alexander Severus, closed the series. They are esteemed classical probably because many of them lived in the time of Augustus or in the classical ages which immediately succeeded him, and those who lived at a later period retained the classical manner. The latin of Ulpian, though too declamatory for my taste, is by many esteemed the best latin in the Pandects.

The distinction of jus civile into jus civile et jus gentium which was made by the classical jurists, and occurs in Justinian’s compilations.

It is said in the Pandects and Institutes of Justinian, and also in the Institutes of Gaius (from which Justinian’s Institutes were principally copied), that every independent nation has a positive law and morality (‘leges et mores’), which are peculiar to itself, of which the given community is the source or immediate author, and which, as being peculiar to that given community or civitas, may be styled aptly jus civile: But that every nation, moreover, has a positive law and morality which it shares with every other nation; of which a natural reason is the source or immediate author; and which, as being observed by all nations, may be styled aptly ‘jus gentium,’ or ‘jus omnium gentium.’

‘Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur. Nam quod quisque populus ipse sibi jus constituit, id ipsius proprium est, vocaturque jus civile; quasi jus proprium ipsius civitatis. Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peræque custoditur, vocaturque jus gentium; quasi quo jure omnes gentes utuntur.’

And the jus gentium described in the foregoing passage is described in other passages in the Pandects and Institutes as the ‘commune omnium hominum (sive civitatum) jus:’ the ‘antiquius jus quod cum ipso genere humano proditum est:’ the ‘naturale jus quod vocatur jus gentium; quod divinâ quâdam providentiâ constitutum, semper firmum atque immutabile permanet.’

It is manifest, moreover, from the language of these passages that the jus gentium occurring in Justinian’s compilations is the natural or divinum jus which occurs in the writings of Cicero; and which Cicero himself, as well as the Classical Jurists, who probably were influenced by his example, borrowed from the φυσικὸν δίκαιον, or natural rule of right, conceived by Greek speculators on Law and Morals.

I remarked just now, that the jus prætorium, or the Law created by the general edicts of the Prætores Urbani, borrowed the bulk, or a large portion of its provisions, from the jus gentium (or jus æquum or commune), which was properly of Roman origin. 564And it is not unworthy of observation, that Cicero’s jus naturale is opposed to the jus prætorium, and therefore, to the jus gentium which was properly of Roman origin, as well as to the law which the jus prætorium modified, and which was strictly peculiar to the Urbs Roma.

‘Non a duodecim tabulis (says Cicero,) neque a Prætoris edicto, sed penitus, ex intimâ philosophiâ, haurienda juris disciplina.’

The distinction between jus civile and jus gentium which occurs in Justinian’s compilations, is speculative rather than practical.

It seems to follow from the foregoing statement, that the distinction between jus civile and jus gentium, which occurs in Justinian’s compilations, is speculative rather than practical; and that the Classical Jurists introduced it into their treatises on the Roman Law, rather to display their acquaintance with the ethical philosophy of the Greeks, than because it was a fit basis for a superstructure of legal conclusions.

Accordingly, a legal inference drawn from the distinction is scarcely to be met with in any of Justinian’s compilations; though, since the distinction is placed at the beginning of the Pandects and Institutes, and is there announced to the reader with a deal of formality and pother, one might naturally think it the forerunner to a host of important consequences.

In the Institutes, indeed, of Justinian (following the Institutes of Gaius), titles, or modes of acquisition, are divided into civil and natural, or modes of acquisition ex jure civili and modes of acquisition ex jure gentium: the former, it is said, being a peculiar offspring of the system of positive law peculiar to the Roman Civitas; and the latter, it is said, being sanctioned legally in all political societies, and sanctioned morally or by custom in all societies whatever. But this division of modes of acquisition is not followed by a single inference. And (what is equally remarkable) the modes of acquiring obligationes, or jura in personam, are not divided in the same manner; though of these also, some are common to all or most systems of law, and others (such as stipulatio) strictly peculiar to the Roman law: while if the classification had been important legally, it would have been found in both classes of modes of acquisition. In truth the distinction between jus gentium and jus civile, as thus understood, is of no consequence at all in the Roman law. Certain obligations, the Roman jurists do style natural, but the word has here a singular and peculiar meaning it denotes certain obligations which are imperfect, which the law will not enforce. In certain cases the law is said to reprobate a particular transaction, but will not set aside 565the transaction if done against the law; and though the party may be morally bound to make restitution of any advantage which he may acquire by the transaction which the law reprobates, the law will not enforce the obligation. It is then styled a natural obligation. For instance, a gambling transaction is said to be void, and to be reprobated by the law; but if the party has paid a gambling debt, he cannot afterwards recover it.

The only instance occurring to me, in which a consequence is built upon the distinction between the jus civile and jus gentium, is the difference which I have formerly mentioned between crimes with reference to the cases in which ignorantia juris is an excuse. Persons belonging to the classes quibus permissum est jura ignorare, are not excused if they have committed an offence against jus gentium or naturale; for jus gentium being known naturali ratione, or by a moral sense or instinct, the party must have known that he was violating the law of nature, and must have surmised that he was violating the law of the State, and the plea of ignorance therefore must be false. In this case a set of inferences are deduced from the distinction, but this is the only instance which I can find.

The distinction between jus civile and jus prætorium, is just as penetrating and as pregnant with consequences as our distinction between law and equity. But, as a legal distinction, that of jus civile and jus gentium is nearly barren.

The jus naturale or gentium of the classical jurists, like the law natural of their modem imitators, is ambiguous. It sometimes means that portion of positive law which is a constituent part of all positive systems, and sometimes the standard to which, in the opinion of the writer or speaker, law should conform. For example, slavery in certain passages of the classical jurists, is said to exist jure naturali or jure gentium; for the institution of slavery was common to all nations with which the Romans were acquainted. But, in other passages, it is asserted that all men are naturally free, and that the institution of slavery: repugnant to the law of nature. Now, the law of nature which authorized slavery and that which repugns it cannot be the same law of nature, but must be set or established by hostile natures. In the one case, the writers were speaking of that which is actually an integral portion of all positive law; in the other, they were probably speaking of law as it should be, and styled the standard to which it ought to conform, the law of nature. Again, jus civile is defined by Ulpian and others as ‘quod neque in totum a naturali vel gentium recedit, nec per 566omnia ei servit: Quod itaque efficimus, cum aliquid addimus vel detrahimus juri communi?’ Now, the jus naturale or gentium as meaning an actual part of all systems of positive law, is not susceptible of detraction or abrogation. It is jus naturale or jus quo omnes gentes utuntur; precisely, because it is in force everywhere. If it were abrogated in any system, it would lose the universality which is essential to its existence. The phrase, therefore, must here mean something else; probably the standard, the law of God, as indicated naturali ratione.

Before I conclude, I shall advert to certain meanings of jus gentium different from those which I have explained. It sometimes seems to include positive morality, as well as positive law, especially that part of positive morality which is styled international law, and which is supposed to be a constituent portion of all positive morality. As including all law, and all morality supposed to be general or universal, the phrase jus gentium necessarily includes that morality which exists inter gentes. It is not certain that the phrase is ever used in this sense by the Roman Jurists, but certainly Livy and Sallust so employ it International law is styled by Gaius, as by Grotius and others of the moderns, jus belli; by other Roman jurists it is termed jus feciale; and even by Livy and Sallust jus gentium is not applied specially to international law, though it includes that with many other objects.

In some modern treatises, almost any system of law which enters into many positive systems, is styled jus gentium. Spelman, for example, styles the feudal law the jus gentium or law of nature of this western world. The same notion which the Roman Jurists expressed by the term is here applied on a different scale. In the same manner the name jus gentium might be given to the Roman Law as applied in the states of modern Europe, since it forms a part of almost all their systems of law.

Agreeably to the plan which I have sketched in the outset of this lecture, I should next examine the jus naturale, which I style, for the sake of distinction, Ulpian’s law of nature—a law which, according to him, is common to man and beast; and which he contradistinguishes from that jus gentium or naturale, which tallies with the law natural of modem jurists and moralists.

But since Ulpian’s law natural is peculiar to himself, since it only occurs in two or three passages of Justinian’s Institutes and Pandects, and has no influence upon the matter, or even 567upon the form, of the Roman Law, I shall not occupy your time with it.

Did it not stand at the beginning of the Institutes and Pandects, and were it not the source of certain conceits which have gotten good success, I should have dismissed it without examination. But since it occupies the foremost place in Justinian’s Institutes and Pandects, and since it is manifestly the groundwork of more imposing nonsense, it possesses an extrinsic or accidental importance which demands a passing and brief notice.