JUS GENTIUM AND INTERNATIONAL LAW

AT the present moment, when the very existence of international law as a practical element in the conduct of human affairs is doubted. or derided by many and when such precepts as are claimed to be fundamental in that law itself are daily set at nought by belligerents in the world conflict, it has been thought that a brief outline of the earliest conceptions characterizing international jurisprudence will prove neither useless nor unwelcome.

The term "International Law" has, in the usage of our day, quite superseded the earlier expression "law of nations," long since adopted as a translation of the Latin phrase jus gentium. The expression "International Law," however, so familiar to us, properly denotes a wholly variant conception. In modern days it is used by the celebrated D'Aguesseau and occurs in Volume II of his works, page 337 in the edition of 1773; it is shortly afterward employed by Bentham in his "Principles of Morals and Legislation" (XVII, 326, n. 1), and has since his time come into general use. D'Aguesseau's expression (droit entre les gens) is doubtless, in its turn, an adaptation from Zouche, Professor of Civil Law at Oxford, who uses, about 1650, the term jus inter gentes in harmony with the thought of Grotius as expressed in the opening paragraph of the Prolegomena to his De Jure Belli Ac Pacis, where Grotius explains at the outset the intended subject of his great treatise, at jus illud quod inter populos plures aut populorum rectores intercedit, sire ab ipsa natura profectum, aut divinis constitutum legibus, sine moribus et pacto tacito introductum, attigerunt pauci, universim ac certo ordine tractavit hactenus nemo; cum tamen id fieri intersit humani generis.

We note here, to return to the point later, that Grotius' mind is fixed on a jus inter populos plures rather than a jus gentium, — a law valid between nations, not a law of nations. Hence where speaking in a subsequent passage (1, 1, 14) of law in its various aspects, he tells

us, after characterizing the civil law of a state, latius autem patens est jus gentium; id est quod gentium omnium aut multarum voluntate vim obligandi accepit, multarum addidi, quia vix ullum reperitur extra jus naturale, quod ipsum quoque gentium dici solet, omnibus gentibus commune. (Cf. sections X-XVI with the quotations.)

In these important passages Grotius accurately distinguishes jus civile, jus gentium, and jus naturale, that is to say, civil law, a law of nations, and a natural law, and he declares, too, that jus gentium is evidenced in the same manner as jus non scriptum civile (customary law): probatur autem hoc jus gentium pari modo quo jus non scriptum civile, usu continuo et testimonio peritorum (1, 1, XIV 2). What then is the historical development of jus gentium?

The term seems first to occur in European literature in Cicero's writings and to have been adopted by him from purely speculative aspects of Greek philosophic thought, which had developed long prior to his time the conception of a law eternal and controlling, existing independently of human permission or enactment. It is the unwritten law evidenced by custom or the conscience of mankind; the law common to all men clearly distinguished by Aristotle (Ethics, 8, 13, 5) as justice unwritten, aypapos. In his treatise on the laws, Cicero, accordingly, declares: Est enim unum ius, quo devincta est hominum societas et quod lex constituit una. Quae lex est recta ratio imperandi atque prohibendi (De Legg. I, xv, 42): and in his treatise on the commonwealth he says: Unde enim pietas? aut a quibus religio? unde ius aut gentium, aut hoc ipsum civile quod dicitur? unde justitia, fides, aequitas? (De Republica, 1, 2.)

Similarly, in the Oratorical Partitions (XXXVII), he speaks of the law, written and unwritten, again referring to the jus gentium: quae sine litteris aut gentium jure aut maiorum more retinentur.

In these two latter passages, however, Cicero, familiar in actual practice at the Roman Bar with practical legal thought and usage as well as with the philosophic speculations so dear to his own leisure, is probably speaking of something quite different from the Greek law of nature. He is referring rather to a system of praetorian jurisprudence which had slowly grown up, doubtless through many centuries, as a consequence of the actual necessities of Roman legal life, in whose

commercial transactions the old actiones of the strict civil law of the city had long failed to meet the demands of modern commerce, both among the citizens proper as well as amid the throngs of aliens (peregrini) who in ever-increasing numbers invaded Rome from Italy and more distant lands as well.

Precisely what force Cicero intended to attach to the expression jure gentium in this passage may be difficult to determine, but it is more than probable that his practical legal experience would lead him to regard the slowly formed and long familiar praetorian system of law in the light of the universality which, as above noted, he attached to the philosophic conception derived by him from Greece. As we shall see in a moment, there were other significations which might be attached to the expression as found a few years later in Livy and other authors, but for our purposes it may be safely assumed that the great jurisconsult and philosopher was thinking of the many modifications of the ancient and rigid Roman forms of action which had been developed by judicial usage in the interests of even-handed justice. That this is the correct view also seems quite certain when we have regard to the meaning attached to the term jus gentium as employed by the jurists of the second and succeeding centuries a.d. Thus used, it is synonymous with a modification of the jus civile. What, then, was this modification? Pomponius, writing late in the second century A.D., tells us in his celebrated account of the ancient Roman constitution (Digest, 1, 2, 1-47) that a praetorian office was created when the consuls were called away by war, the magistrate being designated praetor urbanus; he adds that later a second praetor was appointed by reason of the many peregrini who had congregated in Rome (Digest, 1, 2, 27, 28). By this term peregrini we are to understand all persons in Rome who were other than Roman citizens in the strict sense of the word. The first praetor to fill this office, Pomponius tells us, was called city praetor, since his judicial activities lay within the city (in urbe jus redderet); the second praetor was called peregrinus, since, adds Pomponius, his jurisdiction was concerned chiefly with other than Romans (quod plerumque inter peregrinos jus dicebat).

We learn from various sources, nevertheless, that both these jurisdictions were at times administered by a single magistrate, the other

being sent abroad in command of an army or in charge of a provincial administration. The number of these magistrates, too, was gradually increased, but there seems to be no proof that the system of law which they administered was different nor that the terms "city" and "foreign" praetor were intended to convey the impression that the one jurisdiction concerned Roman citizens exclusively, while the other comprised suits in which aliens or aliens and Romans only were engaged, and engaged, furthermore, in a differing system of jurisprudence from the ancient civil law applicable only to actions between Romans. In fact the marvelous influx of persons other than Romans did not create distinctively jural needs, but rather emphasized needs already found to have existed in a growing community where the originally simple forms of commercial intercourse necessitated an appeal to equitable principles (bona fides) as opposed to the stricter forms of a code derived from primitive days. Thus, to meet the requirements in actions between Roman citizens inevitably arising through sale (emptio venditio), letting and hiring (locatio conductio), partnership (societas), agency (mandatum), etc., it would become essential for the magistrate to shape the course of an actio upon principles suggestive of fair dealing (ex bona fide) and in forms suited to each occasion as it arose; and such a procedure must have been found indispensable between Roman citizens from earliest times. The process, in short, would be a slow crystallization of Roman legal custom; and when, subsequent to the first appointment of a city praetor, it was found necessary to institute a second, it was doubtless perceived that the formulae ex bona fide were in striking agreement with rules of action derived from similar needs found to exist among peoples wholly alien to Rome. There were thus increasingly in evidence two legal systems: the one being a continuation of the narrow and inflexible jus civile, and the other a praetorian equity derived through the granting of actions by authority of the praetorian imperium and in harmony with the needs of an expanding commercial center. The first and ancient system would still be known as jus civile, while the second, borrowing an appellation created by an apprehension of the necessary universality of conceptions based on justice and good faith, would be termed jus gentium — the law common to all peoples, the law universal. It is to be especially

emphasized, however, that this jus gentium was developed from Roman usage among Romans and did not have its rise, as many jurists have thought, when the praetor, confronted with increasing alien affairs, found himself obliged to draw inspiration from foreign fountains, although it seems probable that the presence of Greek merchants might have led to the direct adoption in the praetorian system of a distinctively Grecian conception of juristic principles. Jus gentium is thus seen as a creature of primitive barter and industry; its prescriptions are in force, nevertheless, on strictly legal lines, actiones in jus conceptae, to be carefully distinguished from the original forms fixed by Roman legal tradition.

Slowly, with the progress of time, the newer or praetorian system gained ground amid the ordinary legal contests of commercial life. Of course it should not be forgotten that it was not every class of aliens (peregrini) who were excluded from the strict actions of the ancient system, since by treaty Rome received many peoples into the benefits of the commercium and of the arbitral system enforced through recuperatores.

In the sixth century of the city peregrini seem to have been admitted to the benefit of some ancient actions, and in the long run even the regulations and forms of the jus gentium must have become modified through the penetrative influence of foreign jurisprudence. When Caracalla granted Roman citizenship to all within the empire, the distinctions of the two systems would tend to disappear, while the constant influence on Roman legal thought of juristic conceptions once wholly foreign would not only modify Roman law itself but would facilitate its spread throughout the world.

We are, then, to understand by the term jus gentium, in the light of the facts enumerated, a system of law gradually arising through the efforts of the Roman praetor to promote a sense of equity and fair dealing by so modifying the jus civile as to allow a broader practice in granting forms of action than had been possible under the stricter ancient law, for it must not be forgotten that ancient Roman jurisprudence realized itself most strikingly in the theory of formal actions. It was the privilege of the praetorian office through the exercise, as has been already indicated, of the imperium, to modify ancient rigidity