Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/720

Rh 696 ROMAN LAW [JUS GENTIUM, ETC. be sregrin wtor. efonns '^Ebu- an law. Beets 'pro- ncial liniuis- ation. with perfect precision what were the doctrines and institu- tions of the jus gentium as distinguished from the jus civile. But the distinction must have been very familiar to the Romans ; otherwise we should not have had the statement of Marcian in reference to the aTroAiSes, that they en- joyed all the rights competent to a man under the former, but none of those competent to him under the latter. Institution of the Peregrin Prxtorship. The praetorship 1 was an outcome of the Licinian laws of the year 387 u.c. Down to the end of the 5th century the praetor then ap- pointed superintended single-handed the administration of justice, alike between citizens and foreigners. But with the altered condition of things in the beginning of the 6th century, and the influx of strangers which has already been alluded to, the work seems to have been found too onerous for a single magistrate, and a second praetor was appointed. The date is not absolutely certain, although generally assumed to have been about the year 512 u.c. ; but Pomponius says distinctly that the creation of the new office was rendered necessary by the increase of the peregrin population of Rome, and that the new magistrate got the name of praetor peregrinus because his principal duty was to dispense justice to this foreign element. After the submission of Sicily and Sardinia the number of the praetors was increased to four and after the conquest of Spain to six ; Sulla raised the number to eight, and Caesar eventu- ally to sixteen. But all the later creations were for special purposes ; the ordinary administration of justice within the city was left with the representatives for the time of the two earliest, who came to be distinguished as praetor urbanus (qui jus inter dves dicit) and praetor peregrinus. It would be going too far to speak of the latter as the prin- cipal author of the jus gentium for a large proportion of the actions for enforcing jus gentium rights were civil, not honorary, a fact which proves that the rights they were meant to protect and enforce had their origin in the jus civile, although moulded to meet new requirements by tacit consuetude and the agency of the jurists. But even in this view the peregrin praetor must have had a powerful influ- ence in giving shape and consistency to the rising juris- prudence, by means of the formulae he adjusted for giving it practical effect. Simplification of Procedure and Introduction of New Remedies under the sEbutian Law. The Lex Aebutia is only twice mentioned by ancient writers, and we know neither its precise date nor its specific provisions. And yet, to judge by its effects, it must have been one of the most important pieces of comitial legislation in the latter half of the republic ; for Gellius speaks of it as having given the deathblow to many of the institutions of the XII. Tables, and Gaius couples it with two Julian laws as the statutory instru- ments whereby the formular system of procedure was substituted for thztper legis actiones. The probability is that it was enacted immediately or soon after the institution of the peregrin praetor- ship. Its purpose, whatever may have been its terms, seems to have been to empower the prators to adapt existing remedies to altered circumstances, and to fashion new actions on the jus civile for the use of the peregrins to whom the procedure of the legis actiones was incompetent ; while it may possibly at the same time have expressly authorized the insertion in the styles to be devised by them of clauses that would give protection when required against claims that in law were well founded but in fact inequitable. But, whatever may have been the actual provisions of the statute, the result was the introduction of a procedure which gradually sup- planted that by the "actions of the law," which was much more pliant than the latter, and whose characteristic was this, that, instead of the issue being declared by word of mouth by the parties, and requiring in many cases to embody with perfect accuracy the statutory provision upon which it was based, it was now formulated in writing by the praetor, in the shape of an instruction to the judge to inquire and consider, with power to condemn or acquit according to his finding (see infra, p. 707). Provincial Conquests. The growth of commerce and the enormous increase of wealth, which made great capitalists and enabled them 1 See Labatut, Histoire de la frSture, Paris, 1868 ; Mommsen, Rt>m. StaatsrecM, voL ii. p. 176 sq.; Karlowa. Riim. Rechtsgeschichte, vol. i. p. 217 sq. through the agency of freedmen and slaves to carry on trade on a scale hitherto unknown, and which thus helped to foster the jus gentium, was no doubt due to a large extent to provincial conquests. But these operated also in other directions. The authorities who Eroceeded to the conquered provinces as governors found themselves ice to face with laws and institutions in many respects differing from those of Rome. Political considerations dictated how far these were to be respected, how far subverted. In some provinces, more especially the Eastern ones, it was thought unnecessary to do more than supplement the existing system by the importation of doctrines of the jus gentium and the procedure of the praetor's edicts ; while in others, in which it was deemed expedient to destroy as rapidly as possible all national feeling and every national rally- ing point, a Romanizing of all their institutions was resorted to, even to the extent of introducing some of the formal transactions which previously had been confined to citizens. But in either case there was a reflex action. The native institution had to be studied, its advantages and disadvantages balanced, the means considered of adapting it to the praetorian procedure, and the new ideas so presented as to make them harmonize as far as possible with tho old. All this was a training of no small value for those who, on their return to Rome, were to exercise an influence on legislation and the administration of the law. They brought back with them not merely an experience they could not have obtained at home, but sometimes a familiarity with foreign institutions that they were very willing to acclimatize in Italy. Rome thus enriched its law from the provinces, deriving from them its emphyteutic tenure of land, its hypothec, its Rhodian law of general average, and a variety of other features that were altogether novel. Some of them were sanctioned by tacit recognition, others by edicts of the praetors ; but, in whatever way received, they were indirectly fruits of provincial conquest. Spread of Literature and Philosophy. The effect on Roman Influen civilization of the addiction of educated men in the later republic of liten to literature and philosophy is a matter for consideration in con- ture an nexion with Rome's general history. It is not proposed to consider philo- here the question how far specific doctrines of Roman law bear the sophy. impress of the influence of the schools, especially that of the Stoics ; it is a subject much too large to be disposed of in a few lines. 2 The matter is mentioned simply for the sake of noting that the spirit of critical inquiry aroused and fostered by literary and philosophical study, seriously and conscientiously undertaken, contributed greatly to promote a new departure in jurisprudence that became very marked in the time of Cicero the desire to subordinate form to substance, the word spoken to the will it was meant to manifest, the abstract rule to the individual case to which it was proposed to apply it. This was the first effort of what then was called equity to temper and keep within bounds the rigour of the jus strictum. The praetors, the judges, and the jurisconsults all had their share in it. Although modern jurists are prone to speak of praetorian equity as if it were a thing apart, yet the same spirit was leavening the law in all directions and in the hands of all who had to deal with it, the difference being that the form and publicity of the edict gave to its applications by the praetors a more pro- minent and enduring record than was found in the decisions of private judiccs or the opinions of counselling jurisconsults. Decline of Religion and Morals. It would be equally Decline out of place to enlarge here on the causes and manifesta- f reli- tions of that decline in religious sentiment and public and glon f" private virtue which was fraught with such disastrous results in the later days of the republic. The private law was influenced by it to a considerable extent, alike in those branches which regulated the domestic relations and those which dealt with property and contract. The ever-increasing disregard of the sanctity of the marriage tie is one of those features in the history of the period which strikes even the most unobservant. While from the first the law had denounced causeless separation and visited it with penalties, in principle it maintained the perfect freedom of divorce, that it was improper to force persons to continue in the bonds of matrimony between whom matrimonial affection no longer existed. With the simple and frugal habits of the first five centuries 2 It is one that was discussed with much greater fervour a century ago than it is now. Of the later literature may be mentioned Van Vollenhoven, De exigua vi quam philosophia Grseca habuit in iffor- manda jurisprudentia Romana, Amsterdam, 1834 ; Ratjen, Hat die Stoische Phil, bedeutenden Einftuss gehabt, &c. i Kiel, 1839 ; Voigt, Jus not., &c., vol. i. 49-51 ; Laferriere, De ^influence du Stcntisme SIT la doctrine des jurisconsultes Romains, Paris, 1860 ; Hildenbraud, Gesch. -it. System d. Rechts- vnd Staats- Philosophic, Leipsic, 1860, vol. i. 141, 142. The earlier literature is given in Hildenbrand, p. 593.