rights granted by the Charters of the different provinces (Leges Provinciarum). It is obvious that, where much was granted by Charter, little was left to the discretion of the governor. Where the Charter granted only a few elementary rights, he had a much freer hand.
One important point in which the governor of a province differed from a Praetor at Rome, was that he was an administrative as well as a judicial official. Hence the Provincial Edict had to contain a good many rules of administrative law which were not to be found in its counterpart at Rome. This portion of the edict spoke about the financial relations of the states of the province to the Roman government and to its agents, and stated the rules which regulated the relations of the tax-gatherers (Publicani) to the tax-payers. The rest of the edict which took a definite shape, covered the procedure which the governor promised to apply for the recovery of certain rights by individuals—rights such as those entailed in inheritance or the seizure of a debtor’s goods. These rules were based on those of Roman law; but they were mere outlines capable of adaptation to the local customs of the subject states. But there was, at least in certain provinces, a portion of the edict, still dealing with the rights of individuals, which assumed no definite shape. There were points on which the governor did not care to frame rules until he knew the emergencies which he would have to meet. He was content (at least Cicero was, when governor of Cilicia) with promising that, in issuing decrees on such points, he would conform to the principles of the urban edicts Ref. 099.
§ 12.: The debts which this development of law owed to the Italian and provincial world.
If we ask what was the great motive power which lay behind this development of law through interpretation by the magistrate, we shall find it to consist, partly in contact with foreign peoples; partly (although probably in a less degree) in the new educational influences which were moulding the lives of the Roman nobles. The tendency to experiment and adaptation, to a disbelief in anything fixed and rigid, is thoroughly Roman; but external circumstances were very largely responsible for the particular lines on which this tendency was to move. The legal consequence of contact with foreign races is summed up in the phrase Jus Gentium. The word ‘Gentes’ in this collocation means ‘the world Ref. 100’; and it is possible that, when the expression Jus Gentium was first formed, Rome regarded herself as rather outside this world whose customs she was contemplating, although even her earliest practice showed an inner conviction that she was a very integral part of it indeed. The moment that she began to trade with the foreigner, whether in Italy, Sicily, or Africa, she must have seen that her own Jus Civile was an impossible basis for trading relations. If the Roman had no liking to submit to the intricacies of the law of some other state, the foreign trader had equally little inclination to conform to the tedious formalities of Roman law. Some common ground had to be discovered as the basis for a common court, which might adjudicate on the claims of Private International Law. This common ground was found in the Jus Gentium; the common court was that of the Recuperatores of early times Ref. 101. The history of the Praetorship leads us to think that the Jus Gentium must have begun to exercise a modifying influence on Roman law long before the middle of the third century b. c.; for we have seen that for more than 120 years a single Praetor administered justice both to Cives and Peregrini Ref. 102. A single magistrate therefore published and dealt with two distinct systems of law. But it would seem to be impossible that he could have kept the two absolutely distinct, especially when the simplicity and universality of the Jus Gentium stood in marked contrast to the complexity and singularity of the Jus Civile. The rigidity of the forms of Roman law may have been shaken even at this early period. But when a second Praetor was appointed to frame a special edict for Peregrini, the Jus Gentium must have found a still more complete and systematic expression. The procedure by which the legal claims of aliens were asserted must have been more fully elaborated. This was the procedure by Formula, which was to furnish the prototype for the method adopted by the Praetor Urbanus, and to replace the older procedure by Legis Actio in most of the Roman courts of law. Nor can we ignore the influence of the Edictum Provinciale, although this came later and at a time when the typical elements in Roman procedure had been fixed. Rome gained some ideas from the Hellenised East, as in early days she had gained some from Magna Graecia. It was probably from contact with the East that she gained the knowledge of such simple forms of written agreement as Syngrapha and Chirographa, and that she acquired her theory of Mortgage (Hypotheca).
§ 13.: The idea of the Law of Nature; its influence on Slavery.
The Jus Gentium could not pass from being a mere fact to being an ideal without gaining some theoretical justification for its existence and acceptance. This justification was found in the idea that it was a product of the Law of Nature. It is not improbable that the superior ‘naturalness’ of the Jus Gentium to the Jus Civile had begun to appeal to the Romans long before they had begun to be affected by Greek philosophic thought; for we know the effect which was produced on the minds of the Greeks themselves by their early contact with foreign civilizations. They rapidly drew the conclusion that what was common to various countries existed by nature (ϕύσει), what was peculiar to a country existed by convention (νόμῳ); and the κοινὸς νόμος Ref. 103 or τὸ ϕυσικὸν δίκαιον Ref. 104 of the Greeks is practically identical with the Jus Gentium of the Romans. Even to the primitive mind the universality of an institution implies its naturalness. But it is very probable that the Stoic conception of Nature did, to the Roman mind, complete the train of thought and give a scientific stability to a vague impression. It was not, indeed, possible to identify the Jus Gentium with the Lex Naturae; for a Jus cannot be the same as a Lex. But it might be regarded as the product of that Lex, as its concrete expression in human society. The immediate product, however, of the Lex Naturae is the Jus Naturale. The Jus Gentium tended, therefore, to be identified with the Jus Naturale; and the identification seems to be complete except in one important point. According to the view finally adopted by the jurists, the Jus Naturale implies personal freedom; for all men are born free in a state of nature Ref. 105. But the Jus Gentium (the law of the civilized world) admits the institution of Slavery. In this point, therefore, the two are in conflict, and the Jus Naturale presents an even higher ideal of society than the Jus Gentium. The relation between the three types of Jus, known to the theory of Roman jurisprudence, may be expressed by saying that the Jus Civile is the Right of man as a member of a state, the Jus Gentium the Right of the free man, the Jus Naturale the Right of man Ref. 106.
The appeal to Nature on behalf of the slave is an index of the part which he was to play in the development of Roman law. Roman slavery cannot be judged solely either by the dismal picture presented by the plantation system, or by the legal theory that the slave was a mere Thing (Res), a chattel, not a person. We must remember that the slave, often of an intelligence and culture superior to those of his master, and gifted with the practical genius and the capacity for detail characteristic of the Greek, was frequently an active man of business. We must remember too that the very fact that he was a chattel might be employed by the law as the basis for the theory that he was, for this very reason, an excellent Instrument of Acquisition. So essential was he to his master in his capacity of agent that the law was forced to recognize that he could be a party to an obligation. The obligation, it is true, could not be called legal; it was only natural (Naturalis obligatio) Ref. 107; but still it was an obligation that could benefit the master, without making that master’s condition worse Ref. 108. It was necessary, however, to protect other parties to these contracts; and the Praetor gradually created a series of quasi-liabilities for the master of the trading slave. Such liabilities are expressed in the actions Quod Jussu, Tributoria, De Peculio, De in Rem Verso Ref. 109. They were created in the interest of the master as well as in that of the other party to the contract; for without these guarantees slave-agency would have become impossible. In the history of agency the slave plays a distinguished part; and the part that he plays is formally justified by the view that he is the possessor of Natural Rights.
§ 14.: Interpretation by the jurisconsults.