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636

JUS.

own law (ja?s), partly the law (Jus) that 5s com­mon to all mankind ; for the law (jus) which a state establishes for itself is peculiar to such state, and is called Jus Civile, as the peculiar law (jus) of that state. But the law (jus) which natural reason (naturalis ratio) has established among all mankind is equally observed by all people, and is called .Jus Gentium, as being that law (jus) which all nations follow. The Roman populus therefore follows partly its own peculiar law (suum proprium jus)., partly the common law (commune jus) of all mankind."

According to this view, all Law (jus) is distri­buted into two parts, Jus Gentium and Jus Civile, and the whole body of law peculiar to any state is its Jus Civile. (Cic. de Or at. i. 44.) The Roman law, therefore, which is peculiar to the Roman state, is its Jus Civile, sometimes called Jus Civile Romanorum, but more frequently designated by the term Jus Civile only, by which is meant the Jus Civile of the Romans.

The Jus Gentium is here viewed by Gaius as springing out of the Naturalis Ratio common to all mankind, which, is still more clearly expressed in an­other passage (i. 189) where he uses the expres­sion " omnium civitatium jus " as equivalent to the Jus Gentium, and as founded on the Naturalis Ratio. In other passages he founds the acquisi­tion of property, which was not regulated by Ro­man law, on the naturalis ratio and on the naturale jus indifferently, thus making naturalis ratio and naturale jus equivalent (ii. 65, 66, 69, 73, 79). He founds Cognatio on Naturalis Ratio, as being common to all mankind, and Agnatio on Civilis Ratio, as being purely a Roman institution (i. 158). In two passages in the Digest (1. tit. 8) he calls same thing Naturale Jus in s. 2, and Jus Gentium in s. 3, 5. (Compare Gaius, iii. 132.) The Natu­rale Jus and the Jus Gentium are therefore iden­tical. (Savigny, System, &c., vol. i. p. 113.) Cicero (de Off. iii. 5) opposes Natura to Leges, where he explains Natura by the term Jus Gentium, and makes Leges equivalent to Jus Civile. In the Partitiones (c* 37) he also divides Jus into Natura and Lex.

There is a threefold division of Jus made by Ulpian and others, which is as follows : Jus Civile ; Jus Gentium, or that which is common to all man­kind ; and Jus Naturale which is common to man and beasts. The foundation of this division seems to have been a theory of the progress of mankind from what is commonly termed a state of nature, first to a state of society^ and then to a condition of inde­pendent states. This division had, however, no practical application, and must be viewed merely as a curious theory. Absurd as it appears at first sight, this theory is capable of a reasonable expla­nation, and Savigny shows that it is not meant to say that beasts have laWj but only the matter of law ; that is, some of tlrose natural relations on which legal relations are founded, exist among beasts as well as men. Such natural relations are those by which the species is propagated* (See also Puchta's remarks, Instit. i. § 9, note a.) In the Institutes the two divisions are confounded (i. tit. 2. De Jure Natural], Gentium ct Civili) ; for the explanation of Jus Naturale is first taken from the threefold division of Ulpian, and then the Jus Gentium and Civile are explained accord­ing to the twofold division of Gaius already quoted, eo that we have in the same section the Jus Na-

turale explained in the sense of Ulpian, and the Jus Gentium explained in the sense of Gaius, as derived from the Naturalis Ratio. Further, in the second book (tit. 1. s. 11) the Jus Naturale is ex­plained to be the same as Jus Gentium, and the Jus Naturale is said to be coeval with the human race. Notwithstanding this confusion in the In­stitutes, there is no doubt that the two-fold divi­sion of Gaius was that which prevailed in Roman jurisprudence. (Savigny, System, &c. vol. i. p. 413.) This two-fold division appears clearly in Cicero, who says that the old Romans separated the Jus Civile from the Jus Gentium ; and he adds that the Jus Civile (of any state) is not therefore Jus Gentium, but that what is Jus Gentium ought to be Jus Civile (de Off. iii. 17).

Those rules which regulated the declaration of war and the conduct of war are comprehended under the term Jus Feciale. Some modern writers give to the term a wider signification ; and others limit it more closely. Osenbrueggen (De Jure Belli et Pads Romanorum^ p. 20. Lips. 1836) defines the Jus Feciale to be that which pre­scribed the formulae, solemnities and ceremonial observed in the declaring, carrying on, and ter­minating a war, and in the matter of treaties. The Romans often used the expression Jus Gen­tium in a sense which nearly corresponds to the modern phrase Law of Nations, or, as some call it, International Law. (Livy, ii. 14, vi. 1, quod le-gatus in Gallos, ad quos missus erat, contra jus gentium pugnasset ; xxxviii. 48 ; Sallust. Jug. 22.) The term Jus Belli (Cic. de Leg. ii. 14) is used in the same sense.

The origin of the opposition between Jus Gen­tium and Jus Civile was not a speculative notion, nor did it originate with the Jurists, though they gave it a theoretical form. The Jus Gentium in its origin was the general law of Peregrini, ac­cording to which the Romans determined the legal relations among Peregrini, a class of persons to whom the Jus Civile was not applicable. Con­sequently, the foundation of the Jus was foreign law, modified by the Romans according to their own notions, so as to be capable of general appli­cation* This is one side of the original Jus Gen­tium. The other is that Law which owed its origin to the more enlarged views of the nature of law among the Roman people, and was the development of the national character. The two notions, however, are closely connected, for the law of Peregrini was that which first presented the Romans with the notion of the Jus Gentium, and it was formed into a body of Law, independent of the Jus Civile, and not interfering with it. But the general Law of Peregrini also obtained among the Romans, as Law, and not considered merely with reference to their intercourse with Peregrini*- " The Law of Peregrini and Roman Law, disencumbered of all peculiarity of indi­vidual nations, are the two sides of the same no­tion, which the Romans express by the term Jus Gentium.'1 (Pucllta, fnstit. i. § 84). The Jus Gentium was chiefly introduced by the Edictum,— as the Law of Peregrini by the Edict of the Prae­tor Peregrinus and the Edicta Provincialia, and as Law for the Romans by the Edictum of the Prae­tor Urbanus.

The Jus Civile of the Romans is divisible into two parts, Jus Civile in the narrower sense, and Jus. Pontificium or Sacrum, or the law of religion*