Ancient Law Chapter 3

a sort of respect for rules and principles so universal. Perhaps we should speak of the common ingredient as being of the essence of the transaction into which it entered， and should stigmatise the remaining apparatus of ceremony， which varied in different communities， as adventitious and accidental. Or it may be， we should infer that the races which we were comparing had once obeyed a great system of common institutions of which the Jus Gentium was the reproduction， and that the complicated usages of separate commonwealths were only corruptions and depravations of the simpler ordinances which had once regulated their primitive state. But the results to which modern ideas conduct the observer are， as nearly as possible， the reverse of those which were instinctively brought home to the primitive Roman. What we respect or admire， he disliked or regarded with jealous dread. The parts of jurisprudence which he looked upon with affection were exactly those which a modern theorist leaves out of consideration as accidental and transitory. The solemn gestures of the mancipation； the nicely adjusted questions and answers of the verbal contract； the endless formalities of pleading and procedure. The Jus Gentium was merely a system forced on his attention by a political necessity. He loved it as little as he loved the foreigners from whose institutions it was derived and for whose benefit it was intended. A complete revolution in his ideas was required before it could challenge his respect， but so complete was it when it did occur， that the true reason why our modern estimate of the Jus Gentium differs from that which has just been described， is that both modern jurisprudence and modern philosophy have inherited the matured views of the later jurisconsults on this subject. There did come a time， when from an ignoble appendage of the Jus Civile， the Jus Gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible to conform. This crisis arrived when the Greek theory of a Law of Nature was applied to the pra

ctical Roman administration of the Law common to all Nations.

　　The Jus Naturale， or Law of Nature， is simply the Jus Gentium or Law of Nations seen in the light of a peculiar theory. An unfortunate attempt to discriminate them was made by the jurisconsult Ulpian， with the propensity to distinguish characteristic of a lawyer， but the language of Gaius， a much higher authority， and the passage quoted before from the Institutes leave no room for doubt， that the expressions were practically convertible. The difference between them was entirely historical， and no distinction in essence could ever be established between them. It is almost unnecessary to add that the confusion between Jus Gentium， or Law common to all Nations， and international law is entirely modern. The classical expression for international law is Jus Feciale or the law of negotiation and diplomacy. It is， however， unquestionable that indistinct impressions as to the meaning of Jus Gentium had considerable share in producing the modern theory that the relations of independent states are governed by the Law of Nature.

　　It becomes necessary to investigate the Greek conceptions of nature and her law. The word *@@@@， which was rendered in the Latin natura and our nature， denoted beyond all doubt originally the material universe， but it was the material universe contemplated under an aspect which —— such is our intellectual distance from those times —— it is not very easy to delineate in modern language. Nature signified the physical world regarded as the result of some primordial element or law. The oldest Greek philosophers had been accustomed to explain the fabric of creation as the manifestation of some single principle which they variously asserted to be movement， force， fire， moisture， or generation. In its simplest and most ancient sense， Nature is precisely the physical universe looked upon in this way as the manifestation of a principle. Afterwards， the later Greek sects， returning to a path from which the greatest intellects of Greece had meanwhile strayed， added the moral to the physical world in the conception of Nature. They extended the term till it embraced not merely the visible creation， but the thoughts， observances， and aspirations of mankind. Still， as before， it was not solely the moral phenomena of human society which they understood by Nature， but these phenomena considered as resolvable into some general and simple laws.

　　Now， just as the oldest Greek theorists supposed that the sports of chance had changed the material universe from its simple primitive form into its present heterogeneous condition， so their intellectual descendants imagined that but for untoward accident the human race would have conformed itself to simpler rules of conduct and a less tempestuous life. To live according to nature came to be considered as the end for which man was created， and which the best men were bound to compass. To live according to nature was to rise above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but self-denial and self-command would enable the aspirant to observe. It is notorious that this proposition —— live according to nature —— was the sum of the tenets of the famous Stoic philosophy. Now on the subjugation of Greece that philosophy made instantaneous progress in Roman society. It possessed natural fascinations for the powerful class who， in theory at least， adhered to the simple habits of the ancient Italian race， and disdained to surrender themselves to the innovations of foreign fashions. Such persons began immediately to affect the Stoic precepts of life according to nature —— an affectation all the more grateful， and， I may add， all the more noble， from its contrast with the unbounded profligacy which was being diffused through the imperial city by the pillage of the world and by the example of its most luxurious races. In the front of the disciples of the new G

reek school， we might be sure， even if we did not know it historically， that the Roman lawyers figured. We have abundant proof that， there being substantially but two professions in the Roman republic， the military men were generally identified with the party of movement， but the lawyers were universally at the head of the party of resistance.

　　The alliance of the lawyers with the Stoic philosophers lasted through many centuries. Some of the earliest names in the series of renowned jurisconsults are associated with Stoicism， and ultimately we have the golden age of Roman jurisprudence fixed by general consent at the era of the Antonine Caesars， the most famous disciples to whom that philosophy has given a rule of life. The long diffusion of these doctrines among the members of a particular profession was sure to affect the art which they practised and influenced. Several positions which we find in the remains of the Roman jurisconsults are scarcely intelligible， unless we use the Stoic tenets as our key； but at the same time it is a serious， though a very common， error to measure the influence of Stoicism on Roman law by counting up the number of legal rules which can be confidently affiliated on Stoical dogmas. It has often been observed that the strength of Stoicism resided not in its canons of conduct， which were often repulsive or ridiculous， but in the great though vague principle which it inculcated of resistance to passion. Just in the same way the influence on jurisprudence of the Greek theories， which had their most distinct expression in Stoicism， consisted not in the number of specific positions which they contributed to Roman law， but in the single fundamental assumption which they lent to it. After nature had become a household word in the mouths of the Romans， the belief gradually prevailed among the Roman lawyers that the old Jus Gentium was in fact the lost code of Nature， and that the Praetor in framing an Edictal jurisprudence on the principles of the Jus Gentium was gradually restoring a type from which law had only departed to deteriorate. The inference from this belief was immediate， that it was the Praetor's duty to supersede the Civil Law as much as possible by the Edict， to revive as far as might be the institutions by which Nature had governed man in the primitive state. Of course， there were many impediments to the amelioration of law by this agency. There may have been prejudices to overcome even in the legal profession itself， and Roman habits were far too tenacious to give way at once to mere philosophical theory. The indirect methods by which the Edict combated certain technical anomalies， show the caution which its authors were compelled to observe， and down to the very days of Justinian there was some part of the old law which had obstinately resisted its influence. But， on the whole， the progress of the Romans in legal improvement was astonishingly rapid as soon as stimulus was applied to it by the theory of Natural Law. The ideas of simplification and generalisation had always been associated with the conception of Nature； simplicity， symmetry， and intelligibility came therefore to be regarded as the characteristics of a good legal system， and the taste for involved language， multiplied ceremonials， and useless difficulties disappeared altogether. The strong will， and unusual opportunities of Justinian were needed to bring the Roman law to its existing shape， but the ground plan of the system had been sketched long before the imperial reforms were effected.

　　What was the exact point of contact between the old Jus Gentium and the Law of Nature？ I think that they touch and blend through AEquitas， or Equity in its original sense； and here we seem to come to the first appearance in jurisprudence of this famous term， Equi

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