whose features logically demand that the future shall follow the leading of the past; and this is well, for were it the world's task to now initiate a wholly new order of thought and action adequate to control the intercourse of nations, the burden would be heavy, indeed.

Happily, however, such is not the case. For it is not a new creation that is required, but rather the partial reshaping of an existing science in the light of its own imprescriptible standards. The course of history in this field is clear, and not to be mistaken. Nor is the attitude which the subject claims at our hands essentially divergent from that imposed upon himself by Grotius when, as an exile, he undertook, during the desolating conflicts of the Thirty Years' War, to coördinate a system of international regulation fitted not merely for a state of war but as a guide in time of peace as well. "Such a work," says he, "is the more necessary since there are not now, nor have there been found wanting in the past, those who contemn this aspect of law and declare that it exists in name alone, nor is anything more familiar than the opposition of law and arms." Citing many classical passages in illustration of this, Grotius singles out Tertullian as a Christian author who but reflects the tendencies of his time. "Tertullian himself would not hesitate to declare deceit, cruelty and injustice to be the appropriate affair of battles." "But," concludes Grotius, "since all discussion of law is of no avail, if there is, in fact, no law, our labors will be at once commended if we briefly repel so grave an error. There is, nevertheless, a common law between nations touching war and its conduct." Nevertheless, Grotius now sees throughout the Christian world a license in war shameful to even barbarous peoples. "The sight of this excess," says he, "has led many men to think that arms should be forbidden to the Christian, although such a course would prove quite as objectionable as would the terrors of combat."

Hence the task is undertaken by him, and he proposes at the outset to distinguish (a) law expressly instituted from (b) the law of nature, this latter being ever the same, but the former being necessarily subject to change by human will. Finally, he tells us he intends to appeal touching natural law to the testimonies of philosophers, historians, poets and orators; among philosophers he accords the first place to Aristotle.2

3

Following the paths indicated by Grotius, the inquirer of to-day will turn in the first instance to the classical authors of Greece and Rome. Here law as defined by Aristotle falls into two chief classes: (a) the law of a particular state, that is to say, law ordered or acknowledged by the state and which would comprise statute law and law customary or unwritten; and (b) law general in its application, or the law of the natural order of things. Again, Aristotle divides political justice into natural and legal, the former being the law of nature, the demand of natural 2 De Jure Belli ac Pacis, I, IX, 2, and Prolegomena, 3, 4, 5, 28, 29. 8 Rhetoric, 1, 13, 2.

reason and unalterable, whereas the latter is instituted by man. And he concludes that every principle in law and custom stands in the relation of a universal to a particular,-"the things done are many, but the principle is singular and universal.""

5

The conception of natural law as the law of the eternal order meets us in Hesiod where it is "the law ordered for men by the son of Kronos"; again, it is the law by which immortals and mortals are alike guided, "the sacred spirit of Justice placed among the stars." It is the Divine Will with which Socrates tells Hippias all earthly regulation must harmonize."

These conceptions evidence a course of thought which, when in time transplanted to Rome through study of the Stoic philosophy, was destined to impress upon the practical Roman mind influences far-reaching in their results. The universal element in law becomes combined with a sense of equity in the private relations of life innate in the Roman mind, and also of public faith as witnessed in formal aspects of the initiation, the conduct, or cessation, of hostilities and the negotiation and maintenance of treaties. And there is thus reached a mode of thought from which the concept of a law not merely general and world-wide, but international, may be said to have sprung. Such a concept may well be deemed the efficient agent moulding an apprehension of universal world-relationship into an element of political cognition, and at the same time making it the foundation stone of a legal system fitted to exhibit coördinated rules controlling the mutual relations of states. This is Rome's best legacy to the modern world, and attests a beginning of public thought truly international.

To ascertain the sources of a system of legal institutions it becomes essential to grasp not merely the guiding principles whence these institutions may have sprung, but we must also picture the phases or moods shown in successive transformations whose results will thus exhibit an organic group logically evolved from the past. With these ends in view, we proceed to glance briefly at certain characteristics of the law of early Rome.

Law (jus civile) is primarily ancient Roman custom crystallized upon the bronze of the XII Tables and whose foundation is consuetudo or mos, i.e., the usages of gentes whose clan-members form the city-state: consuetudine autem ius esse putatur id, quod voluntate omnium sine lege vetustas comprobarit. Supplementing the XII Tables is lex, which designates provisions approved by the citizens in assembly (lex curiata, lex centuriata later plebiscita) on a magistrate's proposal (rogatio). None but the citizen, however, might claim the law's protection, save under treatyprovisions, although the alien is amenable to the sanctions of penal juris

Ethics, 5, 7, 1, 1134b, 19, and 1135a.

5 Works and Days, 276.

6 Orphic Hymn, No. 63, 1.

7 Xenophon, Memorabilia, 4, 4, 19. 8 Cicero, De Inventione, 2, 22.

prudence. The peregrinus is an alien friend enjoying protection in virtue of a treaty (fœdus), and so within the guardianship of Roman pax.o

In addition to consuetudo and lex, there exist as definite law-sources interpretatio, that is to say, construction and comment on the part of jurisprudentes, and the edicta of the magistrate (prætor, ædile). For while the ancient code offers a presentation of law apparently immovable, it is nevertheless not in the mind of the people that its law shall maintain absolute rigidity. A code necessarily exhibits law as it is in the present and with possible suggestions of its historical evolution. But law must respond to the changing needs of a people, and in recognition of this principle it is to jurists and magistrates that at Rome the slow remoulding of substantive and procedural law is of necessity chiefly committed, in spite of the competence of the people in assembly to exercise their power of law-making-a power seldom, in fact, at Rome, brought into action. Hence the importance of the jurisconsult's labors accorded him a place scarcely inferior to that of the magistrate, though the latter is invested with jurisdictio and imperium. Cicero terms the jurisconsult "totius oraculum civitatis." 10

In the early centuries of Roman history both knowledge and exposition of law is in the hands of the pontifices, and these alone are familiar with the practical rules governing suits. According to the tradition preserved by Livy (IX, 46), Cn. Flavius succeeded in forcibly transferring the records of the city's law from the priestly caste and laying the entire system open to the light of day in order that all might become familiar with it civile jus, repositum in penetralibus pontificum, evulgavit fastosque circa forum in albo proposuit, ut, quando lege agi posset, sciretur. The chief accomplishment of Flavius was in stripping mystery from those forms of action which constituted the most striking and difficult portion of the ancient Roman system, for it was the theory of the ancient law that the magistrate presided only at the outset and did not carry to a conclusion the actual proceedings in suits; these latter were supposed to be rigidly bound within prescribed forms (Legis Actiones), and if the responsibility attending their employment were relegated to the suitors, these would suffer the

9 "The treaty of friendship concluded between two city-states (pax, from pango) provides, in the first place, for a durable peace (pia et æterna pax-Cicero, Pro Balbo, 15, 35), and reciprocal recognition of the liberty and property of their citizens . and a declaration of the legal equality of the contracting cities. Such a treaty would provide for exchange of ambassadors lodged and paid by the city to whom they were sent. More important, however, in the Roman view, than the city's external relations was the regulation of inter-state rights of citizenship, for the non-citizen had no claim upon Roman law save under treaty. The term hostis, later peregrinus, signifies one protected by treaty: Tum eo verbo dicebant peregrinum qui suis legibus uteretur.” (Mommsen, Droit Public Romain, French translation, VI,2 214, 215; Römisches Staatsrecht, 31, p. 598.) The Romans never knew international law (VI. 216. Mommsen). 10 De Oratore, I, 45.

penalties attaching to ignorance and mistake. Since, then, all accurate knowledge of those indispensable formalities had been jealously maintained as the prerogative of a highly privileged class, the citizens at large remained practically dependent on that class for their knowledge of the procedure to be employed, and it was the abrogation of this dependence upon the pontifical college that enabled Roman law to begin a new development. From the exclusive competence of the pontiffs the knowledge of law and procedure was thus to pass to the jurisprudents and the secular magistrates, and the process was to be marked by the institution of a new procedure known as the formulary system,-Formula. The essentially revolutionary accomplishment of Flavius, placed by Livy as in A. U. C. 450, i.e., some three centuries before the Christian era, and which had reached the culmination of its effects not long before the age of Cicero, was destined to open a way to the broadening of private law and procedure, and to the recognition of principles deeply significant in the public and external life of Rome.

The Roman theory of legal process required a suit at law to be conducted under two successive aspects, known as jus and judicium; that is to say, the judicial function was not supposed to lie wholly within the hands of a single magistrate or bench of magistrates, but was divided between two individuals, or groups of individuals, the magistratus and the judex. To the magistratus there was assigned the duty of so shaping the cause as to bring it to a point where its actual final determination might be confided to another hand, that is, to the judex, who was not a public official, but who was supposed to be advised by jurisprudents, at the same time taking from the magistrate certain instructions as to the nature of the cause and the law to be applied. Under the earlier régime such instructions were oral, but in later days they assumed the shape of a formula or written presentation of the case which now passed from the stage in jure to that termed in judicio. Here there was in effect little more expected than a demand upon the magistrate for a formula and the granting or refusal of this on the magistrate's part. A suitor was himself expected to select the formula desired from among those contained on the magistrate's album, where was to be found a statement made at the beginning of his annual term of office of such general principles of law and procedure as might be expected to govern his administrations:-Sunt jura, sunt formula de omnibus rebus constituæ expressæ sunt publicæ a prætore formulæ ad quas privata lis accommodatur.11 It will be readily perceived that much depended on the magistrate's edict, as well as upon his construction of its provisions as evidenced in such formula as he might give out. It was, of course, expected that the magistrate would adhere in practice to both the letter and spirit of his edict. That Verres had signally failed in good faith touching these was one of Cicero's most serious accusations. The

11 Cicero, Pro Q. Roscio, 8.

magistrate might be an ædile or prætor, after B.C. 242, one or more prætors were specially appointed prætores peregrini for suits between aliens or between citizens and aliens.

In addition to the judex, there were also arbiters whose hearing and determination of a cause came more properly within the moral than the legal sphere. To the arbiter's award there attached indeed no strictly legal sanction, yet it was scarcely less effective than that of the judex, since the stern conception of public faith on the part of early Rome tended to invest fiduciary acts with a sanction strongly supported by public opinion and the neglect of which might open serious consequences through wide powers conferred upon the Censor. An adverse finding by this official touching the acts of any citizen brought with it the infliction of ignominia, carrying with it possible exclusion from the Senate or from the most valued rights of citizenship. Gradually the functions of the arbiter and the judex came to be identified or similar in effect, and as the offices of both were supposed to require the aid of counsellors learned in the law, the sentences given would tend to be based on broadening principles of equity rather of slavish adherence to the letter of the law, both on the part of the magistrate, the judex, the arbiter, or the recuperatores, these latter forming a species of arbitral body for the decision chiefly of suits where aliens might be concerned under treaty provisions. Pliny tells us that he has often so acted: frequenter egi, frequenter judicavi, frequenter in consilio fui.12

On the part of the suitor, assistance was to be obtained from retained jurists, while, when the cause reached the judex or arbiter, it was possible to employ an orator, who was regarded as the patron (patronus) of his client (cliens), and it was also possible to call in the assistance of outside parties (advocati) were the cause of sufficient moment to warrant this. Proceedings were of the most public character; the magistrate sat in his tribunal in the Forum with his consilium and scribe about him; the judex also sat in public with his consilium, and thus the Romans might readily become familiar with every changing phase of legal thought.

The theory of the edicts and of the formulary system presupposed that the magistrate would hold fast to applications of recognized jus civile as modified by its interpretatio at the hands of the jurists, and to such principles of customary law as were admitted an integral part of Roman jurisprudence. There existed here, plainly, a lawful opportunity for the magistrate's judgment to be guided by progressive as opposed to reactionary tendencies, and it was possible for him, aided by enlightened advice from his consilium, to indicate courses of action which, in the hands of the orator, might well invoke more theory than actual law,-more of the ideal than the practical. In the end there was forged a liberally-developed body of principles exhibiting a jurisprudence owing little to actual legislation, but the product of judicial, conciliary or oratorical effort, and into which 12 Epistolæ, I, 20.

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