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THE INTERNATIONAL LAW AND CUSTOM
OF ANCIENT GREECE AND ROME
MACMILLAN AND CO., Limitep
LONDON + BOMBAY - CALCUTTA
MELBOURNE
THE MACMILLAN COMPANY
NEW YORK - BOSTON - CHICAGO
ATLANTA - SAN FRANCISCO
THE MACMILLAN CO, OF CANADA, Ltp,
TORONTO
HE INTERNATIONAL
LAW AND CUSTOM OF
_ ANCIENT GREECE
| AND ROME
BY
COLEMAN PHILLIPSON
M.A., LL.D., Lirt.D.
OF THE INNER TEMPLE, BARRISTER-AT-LAW
AUTHOR OF “‘STUDIES IN INTERNATIONAL LAW,” ‘‘ THE EFFECT OF WAR ON CONTRACTS
AND ON TRADING ASSOCIATIONS IN TERRITORIES OF BELLIGERENTS,” ETC.
IN TWO VOLUMES .
VOLUME I |
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MACMILLAN AND CO. LIMITED
ST. MARTIN’S STREET, LONDON
IQII
GLASGOW : PRINTED AT THE UNIVERSITY PRESS
BY ROBERT MACLEHOSE AND CO. LTD.
_ DEDICATED :
THE MEMORY OF MY MOTHER) ©
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PREFACE
THE present work, it is believed, offers to the reader
the first comprehensive and systematic account of the
subject (namely, the international law, public and
private, of ancient Greece and Rome) that has appeared
in any language. I am by no means unmindful of such
writings as the two volumes of Laurent devoted to
Greece and Rome. But his exposition, so readable,
clear, and interesting as it is in many ways, suffers
through irrelevance and discursiveness, through expa-
tiation on generalities, entire neglect of the most vital
questions, superficial examination of many quoted
authorities, and a most lamentable disregard of much
documentary evidence which was accessible at the time
he wrote. More fundamental drawbacks are his un-
reasoning preconceptions and his inadequate grasp of
the legal point of view. I have reluctantly taken the
liberty thus to refer to this author, not at all in a
captious or obtrusively disparaging spirit, but chiefly
because of his pernicious influence on subsequent writers
who, still more blameworthy than himself, followed him
unwarily, accepted his conclusions (charmingly as they
are couched) without question, and failed to realize his
numerous errors and pronounced bias.
All these faults, whether of substance or of method,
I have tried to avoid. It has, moreover, been my
constant aim, in conformity with my prearranged
general plan, to bring out the juridical side of the
subject, rather than to trace elaborately its historical
development ; for it is the former aspect which has
hitherto been well-nigh neglected, or imperfectly
viil PREFACE
examined, and which has, therefore, given rise to mis-
conceptions and oft-repeated blunders on the part of
modern writers. Almost invariably have modern writers
on international law when referring—or, rather, con-
descending to refer—to Greece and Rome, dismissed
their international institutions as never having existed
at all, or as having been merely sporadic negligible
phenomena, or, at most, as presumably answering to a
few vague generalizations, copied and recopied from
preceding writers who, in turn, had paid but little heed
to the original sources of evidence. Although it is
avowedly my desire to show the existence of a con-
siderable body of ancient international law (and to term
it, in the case of Greece, ‘intermunicipal’ law, is not
the least detraction, as 1 have shown in an early
chapter), I have taken care not to belittle anything that
militated against a doubtful thesis, or to exaggerate
what supported it. |
In recent times a larger mass of material, in the form
of epigraphic and other historical documents, has
become available ; and, what is of cardinal import-
ance, a more scientific method is, in consequence,
demanded of investigators. I have been at pains to
go through a wide field, comprising most of the ancient
authors, large collections of Greek and Latin inscrip-
tions, and the contributions of modern writers. In
reference to the ancient sources, it will be seen that
I have here set forth, if not extensive regions, at least,
numerous byways, which had hitherto remained un-
explored, in so far as the subject-matter of this book
is concerned. I have refrained from discussing ques-
tions of dubious authorship, arising in certain cases,
or those of controverted readings, in others. The
solution of nice literary or bibliographical problems
scarcely falls within my chosen sphere. I have simply
investigated the statements usually attributed to this
or that author, with a view to extracting their intrinsic
testimony, when it was relevant to my purpose. Here
and there I have referred to legends and traditions,
PREFACE ix
as recounted by classical authors. In doing so I did not
assume that such evidence possesses the same degree of
cogency and validity as that of actually recorded facts,
with respect to any particular institution at any given
time; I introduced such legendary reports merely to re-
inforce the conclusions derived from more historical and
more reliable data, and—what is of especial significance
—to indicate the existence of an inveterate juridical
consciousness, whose manifestations are perceived in
subsequent regularized systems and actual interstatal
practice. For similar reasons—and not by way of
urging incontrovertible proof of specific details—have
I cited passages from historians and annalists, whose
narratives were not infrequently inspired by an over-
weening desire to panegyrize their own respective States
to the disadvantage of others.
I have invariably given the original texts, epigraphic
or other, as the indispensable documentary sources (the
Quellen, as German writers say), which exhibit the
grounds whereupon my conclusions are based. I have
in many cases in the course of the book carefully
examined the opinions of modern writers on various
relative matters, advanced reasons for any disagreement
with them, and ventured to submit reconstructions of
divers views respecting certain important questions.
On the other hand, where I have not been able to
discover adequate and relevant testimony, I have not
allowed unjustifiable conjecture or random excursions
of the imagination to serve instead,—for, in this respect,
the sanction of scientific method has operated through-
out as the governing factor.
In the development of my argument, and in the
formulation of the propositions issuing therefrom, I
have always endeavoured to be concise and to the
point. A large proportion of the text could easily
have been expanded by additional materials in my
possession ; but, to avoid the overburdening of the
essential principles and conclusions with too much
detail, I have refrained—in certain cases somewhat
x PREFACE
regretfully—from diverging into many tempting
‘deverticula amoena.’
I may point out that such readers as are un-
acquainted with the ancient or modern languages will
be able to follow the main substance of the work,
inasmuch as the citations are either translated, or their
purport briefly embodied in the text, according as
circumstances required. In the case of the longer
passages from Thucydides and Polybius, I have grate-
fully availed myself of the fine translations of Jowett
and Dr. Shuckburgh respectively.
I had intended to give here a résumé of the subjects
of public and private international law that I have
considered, to indicate my reasons for their present
arrangement, to show the connection of the chapters
and their logical sequence, and to draw attention to
the methods of exposition I have generally adopted;
but, I think, all this will clearly enough appear partly
in the analytical contents, and partly in various places
in the course of the earlier chapters. I may say,
however, that Greece and Rome have been consistently
treated side by side, and, for the most part, compara-
tively; so that their respective acceptance of and
insistence on juridical principles, and their application
of a regularized procedure and legal methods to inter-
national relationships will thus be the more forcibly
emphasized.
As to the bibliography, I have arranged in five
classes the works which have been consulted to a
greater or lesser extent. Nothing need be said about
the first and second divisions, as their purport is
obvious. With regard to the others, however, it is
not to be understood that my intention was to place
them in order of merit. The main consideration—the
principium divisionis—was the amount of the subject
covered by the writings in those classes ; so that whilst
class III. contains works dealing with several of the
topics I have considered, class IV. includes such as treat
almost exclusively of certain limited portions of the
PREFACE xi
subject-matter ; and, finally, the fifth section comprises
miscellaneous writers, whose testimony has been invoked
in the case of some or other particular point. I have
abstained from characterizing this or that work by
epithets of praise or condemnation ;—my foregoing
reference to Laurent was actuated solely by the desire
to combat the fallacious modern tradition which is
largely due to his treatment, though his work is, indeed,
more valuable, in many respects, than a good many
others I have included. The discerning reader will, no
doubt, readily discover which of the tabulated writings
will be the most useful for the further investigation
of any of the subjects constituting or relating to the
substance of this book ; and to facilitate such inquiry
I have, where it was thought desirable, added notes to
the titles of many works in order to indicate the nature
of such of their contents as have a direct bearing on my
scope. No claim is, of course, made to perfect com-
pleteness of the bibliography, though the reader will,
no doubt, allow that it is the fullest that has ever been
presented. The majority of the books I have consulted
at the British Museum ; but I may, in this connection,
take the opportunity to say that the establishment in
London of a thoroughly equipped library of compara-
tive law, systematized on a practical and rational basis,
would prove a veritable treasure-house to legislators and
publicists, to professional writers and researchers, and
would also stimulate fresh investigators to enter a field
of work to which Englishmen (who are by no means
fundamentally inferior to the best foreign students in
the task of original research) have so far contributed too
little.
It may be worth while to point out that I have not had
any assistance whatever in the composition of the work,
or even in seeing it through the press; I have myself
transcribed the ancient texts and the passages from
modern continental authors, revised the proofs, prepared
the index, etc., and in all this trying labour (considerably
lightened, however, through the care and intelligence of
ΧΙ PREFACE
the printers and their readers), I have done my best
to avoid inaccuracies. But having regard to the com-
prehensiveness of the matter and the multiplicity of
details, the experienced and learned reader will, 1 am
confident, overlook any small errors, typographical or
other, which his keen eye may detect.
May I, in conclusion, express the hope that the work
will be found of some use not only to students of
ancient law and of comparative law in general, but also
to students of the classics and ancient history, as well
as to those interested in comparative politics and in the
evolution of public and private international law in
particular. If the book finds favour with such readers,
I may possibly continue, on somewhat similar lines,
with the preparation of further volumes on the
development of international law in the middle ages
and in modern times.
I cannot conclude my prefatory observations without
expressing my sincere thanks to my esteemed friend
Sir John Macdonell, C.B., M.A., LL.D. (Master of
the Supreme Court and Quain Professor of Compara-
tive Law in the University of London), for his kindness
in writing the introductory note.
COLEMAN PHILLIPSON.
InnER TEMPLE,
October 31st, 1910.
> WE’ ger
CONTENTS OF VOL. I
BIBLIOGRAPHY
I, Ancient writings - - - - - P
II. Other ancient documents—inscriptions, etc. -
III. Modern writers dealing with several matters con-
sidered in the present work - - - -
IV. Modern writers dealing with fewer questions, or
with special topics - ζ . ω Ἶ
V. Other writers referred to - ᾿ Ἂ Ἢ ‘
CHAPTER I
THE GREEK CITY-STATE SYSTEM
Ancient law of nations denied ἐς ΣΝ ose ἐξ ᾿
Modern and ancient law τ 3 : Z
Autonomous city-states - * ‘ Σ he ὡ
City-states and Hellenic circle - - Ἂ 7
Autonomous States and sovereignty - - % δ:
Exclusiveness and rivalry - : ᾧ ἢ * Η
Leagues and associations - - . s 5 R
External policy of the Greeks - - ehh “
Attitude towards foreigners - ὦ τ δ ὃ
State interest - ὡ ws ¥: 2 τ τὶ δ
12
24
27
27
28
30
32
34
36
39
40
42
XiV CONTENTS
CHAPTER II
GREEK CONCEPTION OF LAW.—TO WHAT EXTENT
THE GREEKS RECOGNIZED AN INTERNATIONAL
LAW
PAGE
Law and religion - - - - - - - 43
Ancient sanction of positive law - - - - 46
Had the ancients international law? - - - 46
Existence of important elements thereof in Greecejand
Rome - - - - - - - - 50
Juridical nature of rules - - - - - - 51
Public and private law - Ngee - - - 52
‘Universal’ and ‘particular’ law - - - - 53
Written law and law of mankind - - - - 54
Natural and conventional law - - - - ΗΝ 54
Moral law and positive law - - - - - 55
Moral law and divine law_ - - - - - 56
Positive law and natural law - - - - - 57
General or common law - - i e 57
Interstatal law—as unwritten - - - - - 58
‘Laws of Greeks’ and ‘laws of mankind’ - - 59
Elements of ancient international law - - - 60
‘Intermunicipal’ law and international law ~ - - 62
Universal’ law and international law = - - - 62
Greek law and practices progressive - - = 63
Records of ancient practices - - - - - 64
CHAPTER III
THE JURISTIC GENIUS OF ROME.—JUS NATURALE,
IUS GENTIUM, AND KINDRED CONCEPTIONS
Difference between Greek and Roman genius - - 67
Roman law and religion - - - - - 68
CONTENTS XV
- PAGE
Principle of bona fides - - - - - - 68
Mus civile and ius gentium ὁ a ν = % 69
\ lus privatum and ius honorarium - - - - 69
~ Law—public, private, sacred - - - - - 70
: The ius gentium—origin and meaning - - - 70
_ Tus gentium—used in various ways - - - - 77
Ὶ Tus gentium, ius naturale, ius naturae - - - 78
Influence of Greek philosophy ee ae ene a τ,
: lus gentium and natural justice Bie ee > eee 80
4 Naturalis ratio ξ ς “ = 5, δ Ξ 80
_ Ius gentium and natural equity - - - τ = 81
Tus naturale and ius commune - - = δ Ζ 81
: lus naturale and ius civile ἃ “ . & : 82
Naturalis ratio and lex naturae - - - - 83
lus gentium and ius naturale—submitted explanation - 83
᾿ Jus and dike—significance - - - . = 85
: _ Lex and nomos ᾿ς es Ἢ ᾿ n i : 86
Fas, themis, ratio, γιὸς - - - - ὡ - 87
_ Fas, ius, bona fides, ethos, boni mores - - - - 88
: Post-mediaeval writers on ius naturale and ius gentium 89
_ Origin and development of ius gentium - - - ΟΙ
᾿ 1: gentium and ius honorarium - - - - ΟΙ
Tus gentium and ius naturale—submitted explanation - 92
Tus gentium—ius fetiale and ius belli - - - - 94
_ Ius gentium—as private international law, - eee 94
lus gentium—ius fetiale, ius belli - - - - 96
CHAPTER IV
THE POLICY OF ROME.—TO WHAT EXTENT SHE
RECOGNIZED AN INTERNATIONAL LAW
Rome’s foreign policy—State interest - - - 100
Earlier and later epochs to be distinguished - - 103
xvi CONTENTS
Roman international law progressive
Practices and institutions—juridical basis -
To distinguish modern point of view from ancient
Civitas gentium—juridical consciousness—reciprocity
Juridical personality -
Sovereignty and reciprocity
Juridical basis of various rules -
International juridical consciousness
Fides—as basis of relationships -
Oath, bona fides, and aequitas -
CHAPTER V
GREECE AND FOREIGNERS
Citizenship, religion, and alienage
Relaxations as to aliens -
Aliens not necessarily enemies -
Concessions to aliens -
Sparta and strangers -
Various relaxations - -
Passports - - -
Hostelries for strangers -
Athenian hospitality and humaneness
CHAPTER VI
PAGE
106
107
109
[10
111
113
es gee ee ee
eet
4
[16
aed
119
122
125
127
128
129
131
132
133
134
GREECE AND FOREIGNERS.—DIFFERENT CLASSES
AND PRIVILEGES.—RUDIMENTS OF A CONSULAR
SYSTEM (PROXENIA)
Admission of strangers—special authorization
Restrictions and exemptions
Conventions to secure rights
Interchange of rights—isopolity
er ee Wee | mA σανοιν
πὰ awe ep 94> ese eR
an
“inde
CONTENTS XVii
Isopolitic treaties - - - - - - - εὰ
Privileges of isopolity - ae 8) at a oe ἈΜΜῈ
TE ee
Classes of aliens in Athens” - - - - - 145
Institution of proxenia - - PCy Ase) Ve. - 147
Proxenia and hospitality - - - - - - 148
Proxenia and modern consular system - - - 149
International position and functions of ῤγοχεποὶ - - 152
Their privileges - - - - - - - 154
CHAPTER VII
THE METOEC.—RIGHTS AND DUTIES OF THE
DOMICILED ALIEN
Importance of the systematic rights accorded to metoecs 157
Meaning of word metoec - - - - - - 158
Influence of domiciled aliens on Greek commerce -ὀ 159
Patrons necessary - - - - - - - 160
Authorization by decree - - - - - - 161
Duration of period of settlement - - - =" δὶ
The patron—prostates - - - - - - 162
Relations of patron and metoec ae - - 163
Duties of metoecs towards patron - - - - 164
Rights withheld from metoecs - - - - 165
Special burdens imposed on {πε - - - was {ἐν
Foreigners and practice of their religion - - - 169
Treatment of metoecs” - - - - - = 170
Jurisdiction as to aliens - - - - - - 171
Rewards and privileges to metoecs - - - =. ' 592
Isoteles—their position - - - aa Ἀν ΡΥ fe
Isoteleia—how conferred - - - - - a
Inferior classes of Athenian population - - - 176
Relation of metoecs to the State - - - ΚΝ τὰ
b
XVili CONTENTS
Final definition of metoecs - - : - - 178
Classes of Spartan population - - - - - 178
CHAPTER VIII
NATURALIZATION IN ATHENS—CERTAIN IMPORTANT
ELEMENTS OF PRIVATE INTERNATIONAL LAW IN
GREECE
In earlier times naturalization difficult - - - 180
Gradual relaxations - - - - - - - 48a
Athens—most liberal - - - - - - 181
Twofold citizenship - πο οτος - - - 182
Conditions of naturalization - 5 - - - | 482
Abuses - - - - - - : - - δὰ
Naturalization en masse - - - - - οὐκ ee
Formal procedure - - - - - - - 188
Effects of naturalization - - - - - - 190
Elements of private international law in Greece - 192
Citizenship and domicile - - - - : - 192
Jurisdiction as to aliens - - - - - 7" >» ie
Conclusion of ‘law-treaties’ - - - - - χοῦ
Personal law and territorial law - - - - 200
Commercial cases - - - - - - - 201
Examples of ‘law-treaties’ - - - - - “203
General conclusions - - - - - - 208
CHAPTER IX
ROME AND FOREIGNERS
Civitas Romana and ius Quiritium - - - - ὙΠ Ὁ
How citizenship lost - - - - - - 4211:
Attitude towards aliens - - - - - “ΩΝ
The peregrini - - - - - - - τ
"ὦ χὰ λιν ων μου... mma ir i el νν
The term hastis
CONTENTS Xix
PAGE
ἱ Pd ἘΝ νας ἐν ate fh ests hin ΧΕ
BE see ee τῆνος a a oa
Hospitium - - - - - - - =: EY
Renee Deenitality 2.0 oe eg
Amicitia and hospitium - - - - - νυν.
Clientela and hospitium - - - - - ~ ΤΑ ἢ
Patronage of entire peoples - - - - τς Bae
Hospitium publicum - - - - - - a τὶ
Hospitium and treaties - - - - - “ἰς 226
Position of aliens generally in Rome - - ας ἢ
CHAPTER X
ROME AND FOREIGNERS.—DIFFERENT CLASSES, AND
THEIR JURIDICAL POSITION
The ‘barbarians’ - - - - - - - 230
The dediticii - - - - - - - - 232
The peregrini - - - - - - - “0 233
lus gentium and peregrin law - - - - τον F235
Latin peregrins - - - - - - - 240
CHAPTER ΧΙ
ROME AND FOREIGNERS.—DOMICILE. NATIONALITY.
NATURALIZATION
Origo and domicilium - - - - - - 245
Acquisition of domicile - - - - - - 246
Nationality of origin - - - - - - 249
Naturalization in Rome - - - - - - 254
Of Latin peregrins - - - : of δ΄ θα
Of all Latins - - - - - - & 259
Of ordinary peregrins - - - - - 260
Effects of naturalization - ᾿ - : - - 264
Xx CONTENTS
CHAPTER XII
ROME AND FOREIGNERS.—JURISDICTION.
AND TERRITORIAL LAW.—CONFLICTS
Relaxations in policy as to aliens’ -
The praetor peregrinus—origin, position
Various duties - - - -
Proceedings before him - -
The praetor and the zus gentium
His decline - - - -
Peregrin law—different systems -
Peregrin law and Roman law-_ -
How conflicts of laws were obviated
The ius gentium and lex peregrinorum
Law of origin and law of domicile -
Certain modern views—objections thereto -
Examples of conflicts of laws - -
Territorial sovereignty of the law -
Doctrine of public order - -
Why few cases of conflicts - a
CHAPTER XII
PERSONAL
OF LAWS
PAGE
267
268
269
270
271
271
Pe Oe a a es om «ἴα
a Sabine
“ἀν
272 1
273
275
277
278
281
285
295
299
300
AMBASSADORS—THEIR FUNCTIONS; THEIR RIGHTS
AND DUTIES
Rise of diplomacy - - ᾿
Kinds of envoys and ambassadors -
Right to despatch embassies, and sovereignty
Obligation to receive them - -
Reception by commanders in the field.
Roman practices at different periods
Reception of ambassadors in Greece
Reception of ambassadors in Rome -
302
304
309
211
212
313
314
315
_ What persons appointed
ἔ Ambassadors’ suites -
ἦ Rights and duties -
: Position of third States
_ Principle of exterritoriality
Neutrality of ambassadors
Divine sanction ‘
In oriental antiquity
Asylum in Greek temples
! Inviolability of suppliants
Practices during war
Certain elements of neutralization
Right of asylum in Rome
The practice of extradition
Homicides and fugitive slaves
The Roman deditio
Procedure in deditio
Decline of extradition
Cases involving extradition
Surrender of sponsores
] ΐ Ambassadors of enemy States -
_ For what purposes despatched -
‘
CONTENTS
Ε Powers and instructions—credentials -
CHAPTER XIV
tg Friendly envoys and right of hospitality -
_ Punishment of offences against ambassadors
_ Reward and punishment of ambassadors -
ΧΧΙ
PAGE
318
319
321
322
324
327
328
333
335
337
341
342
RIGHT OF ASYLUM.—EXTRADITION (DEDITIO)
347
348
349
351
353
354
354
358
361
362
364
366
367
369
XXii CONTENTS
CHAPTER XV
NEGOTIATION AND TREATIES
Different kinds of treaties and pacts -
Roman treaties only with organized States -
Kinds of Roman treaties - - - -
Binding force of conventions - - -
Various subjects in treaties - - - :
Functionaries and procedure - - : e
Earlier forms of ceremonial in Greece - :
Similar ritual in antiquity in general - -
Force of the oath - - fie ᾧ
Foedus, fides, sponsio - . ‘ 5 Ξ :
Roman symbolic formalities - 2 3 if
Later procedure - - ᾿ : - Ξ
Use of hostages’ - - - _ ᾿ "
Religious formula in promise - - ᾿
When treaties might be repudiated - Ξ "
Treaties amending previous conventions
Compromise clauses - - Ὁ : Ξ
Attitude of Rome towards conventions
Proceedings in later Greek treaties - - -
Proceedings in later Roman treaties - : 3
PAGE ©
3754
378 |
380 —
380.
381
383
385.
387
488
391
394
396
398
406 .
408
409
410
411
413
415
ai Ὁ ἀν Ὁ σι
INTRODUCTORY NOTE
My friend, Dr. Phillipson, has asked me to add an
introductory note to these volumes. They need no
recommendation. But I gladly make use of the
opportunity to say, with some knowledge of English
and foreign literature on the subject, that they give
that which is to be found nowhere else. There is a
multitude of essays, papers and monographs (rarely
written by lawyers) relating to parts or isolated
points. Many of them are of great value. None
deal fully and systematically with the whole subject.
Dr. Phillipson rightly claims that ‘the present work
offers to the reader the first comprehensive and
systematic account of the subject that has appeared
in any language.” I have sought for such a work,
and have hitherto not found it.
These volumes, with their copious and convincing
details, will help to dispel the fiction, still sometimes
repeated, that in the sixteenth and seventeenth centuries
a group of writers, notably Albericus Gentilis and
Grotius, “founded” international law. When stable
communities—whether tribes, or City-States, or States
of a modern type—are permanently contiguous,
customs hardening in time into law never fail to
regulate their intercourse. Ubi societas, ibi ius; where-
ever developed communities are brought in contact
with each other, juridical relations must sooner or later
be formed not mainly by agreement, tacit or express,
but by the very necessity of the case, and partly from
the same causes as those which working internally
create States.
XXiV INTRODUCTORY NOTE
These volumes reveal not only the existence of a
system of international law in the ancient world, but
one in some respects much more akin to that of to-day
than international law as it was in the time of Grotius.
aa mee eee τὰ inp a IR
In the number and variety of autonomous States; in —
the many different forms of their constitutions ; in the —
existence of autonomous democratic States; in the
conception of the State itself, wholly different from —
the feudal or patrimonial conception ; in the number —
and variety of dependent communities ; in the existence ~
of federations ; in the unstable balance of power}; in
|
the relations of the mother countries to autonomous —
colonies; in the multitude of treaties dealing with
many subjects besides peace and war ; in the developed —
use of arbitration, as a mode of settling differences ; in
the practice as to passports,—in these and many other
matters there is more likeness between the international —
law in ancient Greece and that of to-day than there is ©
between the latter and international law as described in
De Jure Belli ac Pacis. ὁ.
With one remark by Dr. Phillipson I would desire
to emphasize my agreement. ‘ The establishment of a
thoroughly equipped library of comparative law, syste-
matized on a practical and rational basis, would prove a
veritable treasure-house.” Every student of compara-
tive law will agree with this. Perhaps the establish-
ment one day of an Institute of Comparative Law, so
much needed, may help to create such a “ treasure-
house.”
JOHN MACDONELL.
a a ae
OO OE EMO Fe
PENT ΤΣ
BIBLIOGRAPHY
COMPRISING WRITINGS REFERRED TO IN
THE PRESENT WORK
I. ANCIENT WRITINGS
Aelianus: De natura animalium; Variae historiae.
Aeschines: De falsa legat.; De corona; Epist.; C. Timarch. ;
C. Ctesiph.
Aeschylus: Seven against Thebes.
Ammianus (Marcellinus) : History.
Andocides: C. Alcibiad. ; De mysteriis; De reditu suo.
Antiphon: De caede Herodis.
Appian: De bell. civ.; De rebus Gallicis.
Aristophanes: Lysistrata; Acharn.; Birds; Peace; Clouds;
Wasps.
Aristophanes of Byzantium,—(Ed. Nauck).
Aristotle: Politics; Ocvconomics; Rhetoric; Ethics; On the
Athenian Constitution.
Asconius : Commentarit.
Athenaeus: Deipnosophistae.
Ausonius: Jdylha.
Caesar: De bello Gallico,
Callimachus : Hymns.
Cato: De re rustica.
Cicero: De repub.; De offic.; De leg.; De fin.; De invent. ;
De orat. ; De harusp. resp. ; Brut. ; Topica; Tusc. Quaest. ;
Divin. in Caecil.; Phiipp.: In Verr.; Pro Archia; Pro
Flacco; Pro Plancio; Pro Mur.; Pro Mil.; Pro Balbo;
Pro Caec.; Pro Rabir.; Epist.
Curtius (Quintus): De rebus gestis Alexandri magni.
Deinarchus: C. Demosth.
Demosthenes: De Cherson.; De Corona; De rep. ord.; De
falsa legat.; De Halon.; C. Neaer.; C. Lept.; C. Everg. ;
C. Aristocr.; C. Lacrit.; C. Ctesiph.; [C. Aristog.]; C.
Calipp.; C. Eubulid.; C. Dionysod ; C. Steph. ; Pro Rhod. ;
Pro Megalop.; Pro Phorm. ; C. Zenothem.; C. Midiam ;
C. Apatur. ; Exceptio adv. Pantaenet.
A
2 ANCIENT WRITINGS
Diodorus Siculus: History.
Diogenes Laertius: Lives of the Philosophers.
Dion Cassius: Hist. Rom.
Dionysius Halicarnassensis : Archaeologia.
Donatus: 4d prolog. Hecyr. (Terent.).
Empedocles: De natura (Περὶ Φύσεως).
Euripides: Androm.; Hecub.; Phoeniss.; Med.; Heracl.;
Hippol.; Suppl. ; Iphig. in Taur.; Ion; Fragm.
Eustathius: 4d Lhad.
Eutropius: Brev. hist. Rom.
Festus : De verborum significatione.
Florus : Epitome de gestis Romanorum.
Gaius: Institutiones juris civilis. (With trans. and commentary
by E. Poste, Oxford, 1890.) .
Gellius (Aulus) : Noctes tticae.
Harpocration : Lexicon.
Heracleides (Ponticus): De rebus publicts.
Herodotus : History.
Hesiod : Theogony.
Hesychius: Lexicon.
Homer: Lhad ; Odyssey.
Horace: Odes; Carm. Sec.
Hyperides: Pro Euxenippo.
Isidore of Seville : Origins.
Isocrates: De pace; De permut.; Panegyr.; Antid.; Plataic. ;
Trapezit.; Panathen.
Joannes (Lydus) : De magistratibus populi Romani hori tres.
Josephus: Bell. jud. |
Julian (Emperor) : AZisapogon. (In Opera, ed. Spanheim, Leip-
zig, 1696.)
Justin : History.
(Justinian): Corpus juris civilis (Digest and Codex); Institu-
tiones.
Livy : History of Rome.
Lucan: Pharsala.
Lucian : Demon. ; Scytha.
Lucretius: De rerum natura.
Lysias: De antiq. reipub. forma; De bonis Aristoph.; C.
Ergocl.; C. Philocr.; C. Agor.; C. Epicrat. ; C. Nicom.
NM seer tah
ames SSO
es
ANCIENT WRITINGS 3
Macrobius: Saturnal. Conviv.
Marcellus (Nonius): De compendiosa doctrina.
Maximus (Valerius): De factis dictisque, etc.
Nepos (Cornelius): Chronica ; De vir. tllust.
Orosius (Paulus): Historiarum adversos paganos libri VII.
Ovid: Fasti ; Metam.; Amor. ; Trist.
Paterculus (Velleius): Hist. Rom.
Paulus: Sententiae receptae.
Pausanias : Periegesis (Itinerary).
Persius: Satires.
Petronius: Satyricon.
Philemon: Fragmenta.
Philostratus : Vita Apoll.
Pindar : Olymp. ; Nem. Od.
Plato: Repub. ; Laws ; 3 Protag. ; Crito ; Charm. ; Hipp. Mai.,
Alcib.
Plautus: Captivi ; Poen. ; Menaech.
Pliny (the Elder): Historia naturals.
Pliny (the Younger) : Epist.
Plutarch : Lives; Instit. Lacon. ; 3 De unius in rep. dom.; De
Stoic. repug.; De solert. anim.; Quaest. Graec.; Quaest.
Rom.
Pollux : Onomasticon.
Polybius : History.
Quinctilian : Institutes of Oratory.
Sallust : Jugurtha.
Seneca: De benef. ; De consol. ; Epist.3 Hercul. Fur.
Servius: 4d Aen. ( Commentarii py
Sophocles: “πέρ. ; Philoc. ; Ocedip. Col. ; Ocedip. Tyr.
Spartian : Hadrian.
Stobaeus: Florilegium.
Strabo: Geography.
Suetonius : Lives of the Caesars.
Suidas: Lexicon Graecum. (For reasons of convenience this
work is here included in the ancient : authors.)
Syrus (Publius): Sententiae.
Tacitus : Agricola ; Annals ; History.
Terence: Hecyra.
Theocritus : Jdylls.
Theodosius, and Valentinian III. (during their reign): Codex
Theodosianus.
4 ANCIENT INSCRIPTIONS
Theophrastus : Characters.
Thespis : Fragmenta.
Thucydides: History.
Tibullus: Poems.
Tyrtaeus: Elegies.
Ulpian: Regulae.
Varro: De Lingua Latina.
Victor (Aurelius): De Caesaribus.
Virgil : Aeneid ; Georgics.
Xenophon: Anab. ; Cyrop.; Memorab.; Hellen. ; De Vectig. ;
Symp. ; Resp. Ath. ; Resp. Laced.
Zonaras: Annals ; Lexicon.
II. OTHER ANCIENT DOCUMENTS—INSCRIPTIONS,
ETC, |
J. Barbeyrac : Histoire des anciens traités, 2 pt. (Amsterdam,
1739). |
A. Boeckh, E. Curtius, A. Kirchoff, and H. Roehl : Corpus
inscriptionum Graecarum (Berlin, 1828-1877).
C. E. G. Bruns: Fontes juris Romani antiqui, ed. T.
Mommsen (Freiburg, 1887).
Bulletin de correspondance hellénique (Paris, 1877, etc.).
P. Cauer: Delectus inscriptionum Graecarum . ..(Lipsiae, 1883).
D. Comparetti: Le leggi di Gortyna e le altre iscrizioni arcaiche
cretest. In Monumenti antichi...(Milano, 1893).
R. Dareste, P. Haussoullier, and T. Reinach: Recueil des
inscriptions juridiques grecques (Paris, 1891, etc.).
W. Dittenberger: Sylloge inscriptionum Graecarum, 3 vols.
(Leipzig, 1898-1901).
P. Foucart: Adélanges d’épigraphie grecque (Paris, 1878).
P, F. Girard : Textes de droit romain (Paris, 1890).
E. L. Hicks and G. F. Hill: 4 Manual of Greek historical
inscriptions (Oxford, 1901].
A. Kirchoff, U. Kéhler and W. Dittenberger : Corpus inscrip-
tionum Atticarum (Berlin, 1873, etc.).
C. Michel : Recueil d’inscriptions grecques (Paris, 1900).
ee -.-
MODERN WORKS ON VARIOUS TOPICS ς
| T. Mommsen and other editors : Corpus inscriptionum Latin-
ἣν arum (Berlin, 1863, etc.).
] _ C. T. Newton: Collection of ancient Greek inscriptions in the
4 British Museum, 3 pts. (Oxford, 1874-1890).
J. C. von Orelli and G. Henzen: Inscriptionum Latinarum
selectarum amplissima collectio. . . 3 vols. (Turici, 1828-56).
_ J. M. Pardessus: Collection de his maritimes antérieures au
XVIITI* sidcle, 6 tom. (Paris, 1828-45).
Philopatris (Athens, 1859).
A. R. Rangabé: Antiquités helléniques, ou répertoire a’inscrip-
tions et d'autres antiquités découvertes depuis Paffranchissement
de la Gréce, 2 vols. (Athénes, 1842-55).
L. Renier: Recueil de diplimes militaires (Paris, 1876).
H. Roehl: IJnscriptiones Graecae antiquissimae praeter Atticas in
Attica repertas ... (Berlin, 1882).
R. von Scala: Die Staatsvertrdge des Altertums (Leipzig, 1898,
—in progress).
[Vol. i. contains 218 texts of ancient treaties, alliances,
etc., to B.C. 338; taken from inscriptions and from
reports of historians and other writers. Contains
references to other works and articles where these are
treated more fully.]
J. B. Telfy: Corpus juris Attict (Leipzig, 1868).
W. H. Waddington: Jnscriptions d’ Asie Mineure (Paris).
III MODERN WRITERS DEALING WITH SEVERAL
MATTERS CONSIDERED IN THE PRESENT WORK.
G. Baviera: J/ diritto internazionale dei Romani. (In Archivio
giuridico, Modena ; Nuova serie, t. i. (1898), pp. 266-281 ;
pp. 463-506 ; τ. ii. pp. 243-278 5 pp. 433-459.)
[A consideration of various principles in support of
the argument that the Romans had an _ international
law in the true sense of the term. ]
F. Bender: Antikes Violkerrecht vornehmlich im Zeitalter des
Polybios (Bonn, 1901).
[A brief statement of the practices and principles of
ancient international law prevailing or advocated in the age
of Polybius, on the basis of whose history and opinions
the conclusions are, for the most part, drawn. ]
6 MODERN WORKS ON VARIOUS TOPICS
F. Bernhoft: Staat und Recht der rémischen Kénigszeit im
Verhaltniss zu verwandten Rechten (Stuttgart, 1882).
[Passim, esp. sect. 6, pp. 208 seq.: fetials ; also pp.
133, 220 seq.]
J. Beyssac : Des conflits de lois ἃ Rome (Bordeaux, 1888).
C. de Boeck: Le préteur pérégrin (Paris, 1882).
J. Bortolucci: De jure gentium criminali apud Graecos. (In
Rivista di storia antica, Padova, 1905, pp. 421-435.)
A. Bouché-Leclercq: Manuel des institutions. romaines (Paris,
1886).
[Pp. 343 seq.: ius gentium; pp. 350 seg.: on citizen-
ship and its acquisition ; pp. 541 seg. : fetials.]
G. Busolt: Die griechischen Staats- und Rechtsaltertiimer
(being vol. iv. pt. i. of Handbuch der klassischen Alter-
tums-W issenschaft, ed. I. von Miller, Miinchen, 1892).
[ Passim, esp. sect. 3, pp. 52-90: (various international
relationships)—“ Die Beziehungen der Staaten unterein-
ander.” |
G. Carle: Le origini del diritto romano.—Ricostruzione storica
dei concetti che stanno a base del diritto pubblico e privato di
Roma (Torino, 1888).
[Passim, esp. c. vii. pp. 139-165; ‘La formazione
di un jus pacis ac belli durante il periodo gentilizio.”’]
M. A. Carnazza: La istituzione dei feziah in rapporto al diritto
pubblico romano (Catania, 1886).
E. Catellani: Diritto internazionale privato nell’ antica Grecia.
(In Studi e documenti di storia e diritto, Roma 1892, pp.
245-297.)
E. L. Catellani: 11] diritto internazionale privato e i suoi recenti
progresst (Torino, 1895).—Vol. i. Storia del diritto inter-
nazionale privato.
[Pp. 46-107 : elements of private international law in
Greece ; pp. 108-196: the same in Rome, ]
E. Cauchy: Le droit maritime international, 2 vols (Paris,
1862).
[Passim, esp. vol. i, pp. 87-190, on various practices in
Greece and Rome relating to maritime law.]
A. Chauveau: Le droit des gens dans les rapports de Rome avec
les peuples de l’antiquité. (In Nouvelle Revue historique de
droit francais et étranger, Paris, 1891, pp. 393-445.)
E. Chénon: La li pérégrine ἃ Rome. (In Bulletin du comité
des travaux historiques et scientifiques, Paris, 1890.)
χὰ fie Nee ee |
MODERN WORKS ON VARIOUS TOPICS 7
E. Ciccotti: La guerra e la pace nel mondo antico (Torino,
1901).
_E. Comba: J/ diritto internazionale in Roma (Torino, 1870).
ΟΝ. Daremberg et E. Saglio (ed.) : Dictionnaire des antiquités
grecques et romaines (Paris, 1884, etc.).
A, E. Egger : Etudes historiques sur les traités publics chez les
Grecs et les Romains (Paris, 1866).
Feltin : Le droit des gens ἃ Rome (1893).
G. Fusinato: Dei fexial e del diritto fexiale. (In Atti della
Reale Accademia dei Lincei, série iii. vol. xiii. 1883-4.)
G. Fusinato: Le droit international de la république romaine.
(In Revue de droit international et de législation comparée,
Bruxelles, vol. xvii. 1885, pp. 278 seq.)
P, Gardner and F. B. Jevons: Manual of Greek antiquities
(London, 1898).
[Pp. 454 seg.: metoecs, citizens, etc.; pp. 597-610:
Greek States in their relations to each cher
G. Gilbert: Handbuch der griechischen Staatsalterthiimer, 2
Bde. (Leipzig, 1881-85).
(English trans. : Constitutional antiquities of Sparta and
Athens, London, 189 5.)
[Vol. i. ond German edition, 1893, pp. 195 seq.:
metoecs ; pp. 203 .seg.: naturalisation; pp. 468 seg.:
Athenian hegemony; relationship of Athens to her allies.]
P. F. Girard: Manuel élémentaire de droit romain (Paris,
1901).
+ ee esp. pp. 100-11 5, on peregrins in Rome, etc.]
A. H. J. Greenidge: Handbook of Greek constitutional ΠΝ
(London, 1896). ;
[Esp. c. ili. pp. 36-55: colonisation ; c. vii. pp. 220-
243 : international relationships and law. ]
A. H. J. Greenidge: Roman public life (London, 1901).
[Esp. pp. 289-315: International relations of Rome,
etc. |
G. Grote: History of Greece, 10 vols. (London, 1872).
H. Grotius: De jure belli ac pacis (Amstelaedami, 1650).
(With trans. by W. Whewell, 4 vols., Cambridge, 1853.)
K. Giterbock: Byzanz und Persien in ihren diplomatischvilker-
rechtlichen Beziehungen im Zeitalter Justinians (Berlin, 1906).
[International relationships between Byzantium and
Persia in the time of Justinian; 6.9. interchange of em-
bassies, as to prisoners of war, fugitives, conclusion of
treaties of peace, etc.]
8 MODERN WORKS ON VARIOUS TOPICS
H. Haelschner: De jure gentium quale fuerit apud gentes ortentis
(Halae, 1842).
[Examples of rules and practices regarding the inter- |
national relationships of oriental nations. ]
A. W. Heffter : De antiquo jure gentium prolusio (Bonn, 1823).
K. Hildenbrand : Geschichte und System der Rechts- und Staats-
philosophie—Bd. i. Das klassische Alterthum (Leipzig,
1860).
[Passim, esp. pp. 611 seg. : on ius gentium.|
F. von Holtzendorff, etc.: Handbuch des V ΜΉΚΩΝΟΣ τος 4 Bde.
(Berlin, 1885-1890).
(French edition of vol. i. by F. von Holtzendorff and
A. Rivier: Introduction au droit des gens, Hamburg, 1891.)
[Vol. i. c. ii. $$ 49-56: international law in Greece ;
c. ili. §§ 57-64: international law in Rome.]
R. von Ihering : Geist des rémischen Rechts auf den verschiedenen
Stufen seiner Entwicklung, 3 Bde. (Leipzig, 1852-78).
[Passim, esp. vol. i. pp. 225 seg.: on international
relationships. |
P. Jors: Rémische Rechtswissenschaft zur Zeit der Republik
(Berlin, 1888).
[Teil i. sections xii.-xiv. pp. 113-156: Jus gentium und
“ Weltrecht.”]
O. Karlowa: Rémische Rechtagechichte, 2 Bde. (Leipzig,
1855-1901).
[Esp. vol. i. $§ 44, 45, pp. 279-295 : “ Internationale
Verhiltnisse ” Bes pp. 451-458: zus civile and ius
gentium. |
F. Η. R. Kleen: Lois et usages de la neutralité, 2 tom.
(Paris, 1898-1900).
[Occasional observations as to ancient law and custom
in the historical treatment of the various subjects con-
sidered. |
F. Laurent: Histoire du droit des gens οἱ des relations inter-
nationales (later additional title: Etudes sur [histoire de
Phumanité), 18 tom. (Gand, 1850-70).
[Vol. i.: Oriental antiquity ; vol. ii.: Greece; vol.
1:1. : Rome.]
F, Laurent : Le droit civil international (Bruxelles, 1880).
[Vol. i. pp. 121-134: private international law in
Greece; pp. 134-178: in Rome; annexe, pp. 667-678 :
“De la condition civile des étrangers d’apres le droit
romain” (by P. van Wetter).]
is id bases ieee ee ant a ΙΝ
a Ύ“ψᾳ{υν»ο-
i
__ MODERN WORKS ON VARIOUS TOPICS 9
t
i
Ἢ, B. Leech: Ancient international law. (In Contemporary
7 Review, London, 1883, vol. xliii. pp. 260-274; vol. xliv.
᾿ pp. 890-904.—The articles have been separately re-issued.)
8. W. Leist : A/t-arisches Jus Civile, 2 pt. (Jena, 1892-1896).
[Pr. i. pp. 16 seg.: ius gentium and ius civile; pp. 88
564. 1 fas, and religious element in ancient law; pp.
354 seq.: hospitality; pp. 420 seg.: fides; pt. il. pp.
I seqg.: naturalis and civilis ratio; pp. 83 seqg.: ius
| divinum. |
ἢ. W. Leist: Alt-arisches Jus Gentium (Jena, 1889).
[Esp. pp. 545 seg.: “ Das weltliche Particularrecht und
das neuere ius gentium.’’]
B. W. Leist : Gréco-Italische Rechtsgeschichte (Jena, 1884).
[Passim, esp. §§ 55-63: international relationships
in Rome. ]
Jj. N. Madvig: Die Verfassung des rtmischen Staates, 2 Bde.
| (Leipzig, 1881-2).
[Vol. i. chap. i. pp. 21-72: citizens and peregrins ;
vol. ii. chap. viii. § 28: law of nature.]
J. Marquardt and IT. Mommsen: Handbuch der rémischen
Alterthiimer, 7 Bde. (Leipzig, 1881-88).
[The first three vols.—the third in two parts—are by
Mommsen, under the title of Rémisches Staatstrecht
(1887-8),—-vol. i. pp. 246-257: foedus, sponsio, fetials,
εἴς. ; vol. iii, pt i. pp. 340 seg.: foreign relations
(declaration of war, treaties, etc.); pp. 590 seg.: treaties,
hospitium, pax, ambassadors, relation of private to inter-
national law, ius gentium; vol. ili. pt. ii. pp. 1147
564. : foreign relations. ;
The other four volumes are by Marquardt,—iv. v.
and vi. under the title of Rdmische Staatsverwaltung
(1881-5),—vol. iv. Pp. 44 seg.: treaties, etc.; vol. vi.
pp. 416 seq.: fetials; vol. vii. is entitled Das Privat-
leben der Rémer (1886). ]
L. Mitteis: Rémisches Privatrecht bis auf die Zeit Diokletians,
vol. i. (Leipzig, 1908).
[Pp. 22-37: conception and relationships of ius, fas, ΤῊ 3
pp. 62-72: ius civile and ius gentium; pp. 125-135:
the loss of the rights conferred by the law of otiotts
(“‘ Heimatrecht”’),—post/iminium. |
T. Mommsen : Rémische Geschichte, 5 Bde. (Berlin, 1888-94).
(English trans. by W. P. Dickson, 5 vols. London,
1894.)
|
10 MODERN WORKS ON VARIOUS TOPICS
J. Muirhead : Historical introduction to the private law of Rome, ὦ
ed. H. Goudy (London, 1899). :
[Pp. 103 seg.: citizen and non-citizen; pp. 210-212 :
international recuperatio; pp. 225-232: ius gentium;
pp. 279-283 : ius naturale. |
C. F. W. Miller: De ritibus et ceremoniis quibus Graeci commercia —
publica, foedera belli pactsque sanxerunt deque vocabulis
iuris fetialis propriis, quoad ex Herodoti et Thucydidis et ~
Xenophontis libris cognosci possunt (Regimont. 1854).
M. Miller-Jochmus: Geschichte des Vilkerrechts im Altertum —
(Leipzig, 1848).
B. G. Niebuhr : Rémische Geschichte, 3 Bde. (Berlin, 1873-4).
(English trans. London, 1847-51.)
E. Osenbrueggen: De jure belli et pacis Romanorum (Leipzig, —
1836).
Ὁ. Padelletti: Storia del diritto romano. Con note di P. Cogliola
(Firenze, 1886).
[Chaps. v. and vi.: ‘ Lo stato e suoi rapporti esteriori ”
(the foreign relationships of Rome).]
A. Pauly: Real-Encyclopidie der classischen Alterthums-Wissen-
schaft (Stuttgart, 1844-1852).—Vols. i. to vi. new edition,
by G. Wissowa (Stuttgart, 1894-1905).
A. Pernice: Parerga.—Beziehungen des iffentlichen rémischen
Rechts zum Privatrechte. (In Zeitschrift der Savigny-
Stiftung fiir Rechtsgeschichte, vol. v. 1884, pp. 1-135.)
A. Pierantoni: Trattato di diritto internazionale.—Vol. i.
Prolegomena—Storia dal? antichita al 1400 (Roma, 1881).
[Pp. 71-348: on the international law of the ancient
peoples. ]
G. F. Puchta: Cursus der Institutionem, 2 Bde. (Leipzig, 1875).
K. T. Pitter: Beitrdége zur Vélkerrechtsgeschichte und Waissen-
schaft (Leipzig, 1843).
[Pp. 21-44: outlines of ancient law of nations. ]
M. Revon: De l’existence du droit international sous la république
romaine. (In Revue générale du droit, de la législation, et de
la jurisprudence, Paris, vol. xv. 1891, pp. 394 seg. ;
ΡΡ- 504 seg.)
A. F. Rudorff: Rimische Rechtsgeschichte, 2 Bde. (Leipzig, 1857).
G. Saredo: Saggio sulla storia del diritto internazionale privato
(Firenze, 1873).
[Sect. i. pp. 1-44: “Relazioni di diritto internazionale
privato presso gli antichi e specialmente presso i Romani.” ]
eee eee
= ἀπὰς νυ
F. C. von Savigny: System des heutigen rimischen Rechts, 9
Bde. (Berlin, 1840-51).
[Vol. i. app. i.: Jus naturale, gentium, civile; vol.
vill. §§341 seg.: various matters relating to private
international law in Rome. |
(French trans. by C. Guenoux, 8 tom. Paris, 1840-51 ;
English trans, of vol. viii. by A. Guthrie.)
F. C. von Savigny : Geschichte des rémischen Rechts im Mittel-
| alter, 7 Bde. (Heidelberg, 1834-51).
[Esp. vol. i. chap. iii. ]
(French trans. by C. Guenoux, 4 tom. Paris, 1839.)
R. von Scala: Die Studien des Polybios, vol. i. (Stuttgart, 1890).
[Esp. pp. 156-158; Anlage VI. pp. 299-324: “ Das
Vilkerrecht bei Polybios” (The law of nations in the
time of Polybius, and a consideration of his opinions and
pronouncements thereon). ]
A. Schmidt: Zum internationalen Rechtsverkehr der Romer.
(In Zeitschrift der Savigny-Stiftung fiir Rechtsgeschichte.
—Romantische Abtheilung, Bd. [X. 1888, pp. 122-143.)
G. F. Schoemann: Antiguitates juris publici Graecorum
(Gryphiswaldiae, 1838).
[Esp. pp. 364-377 : on the Greek law of nations.]
G. F. Schoemann : Griechische Alterthiimer.—Vierte Auflage.—
Neu bearbeitet von J. H. Lipsius, 2 Bde. (Berlin, 1897-1902).
(English trans. of vol. i. London, 1880; French trans.
of earlier edition, Paris, 1884-7.)
[Esp. vol. ii. pp. 1-132: “Die internationalen
Verhaltnisse.”’]
Sir William Smith (ed.): Dictionary of Greek and Roman
antiquities, 2 vols. (London, 1891).
M. Voigt: Das Ius naturale aequum et bonum und Ius gentium
der Romer, 4 Bde. (Leipzig, 1856-76).
[Vol. i. §§$13 seg.: Ius gentium; vol. ii. §5: “ Das
romisch-antike Vélkerrecht”; Jus gentium; and in many
places throughout the entire work.]
M. Voigt: Rémische Rechtsgeschichte, 3 Bde. (Leipzig, 1892-
1902).
[Vol. i. $15: “ Das privatrechtliche ius gentium”;
vol. ii. §77: “Das ius gentium”; vol. iii $141: Jus
gentium, εἴς.
E. W. G. Wachsmuth: Jus gentium quale obtinuerit apud
Ra ante bellorum cum Persis gestorum initium (Kiliae,
1822).
MODERN WORKS ON VARIOUS TOPICS 11
12 WORKS ON PARTICULAR TOPICS
if es Walker: History of the law of nations (Cambridge,
I . a
FoI i. pp. 37-42: in Greece; pp. 44-74: in Rome.]
F. Walter: Geschichte des rémischen Rechts, 2 Thle. (Bonn, |
1860-1).
A. Weiss: Le droit fétial et les fétiaux. (In France judiciaire,
Paris, 1882-3. Re-issued, Paris, 1883.)
iy
A. Weiss: Traité theorique et pratique de droit international
privé, 5 vols. (Paris, 1892-1905). ;
[Vol. 1. pp. 32-38: “Jus sanguinis et jus soli”; pp.
283-295 : “acquisition du droit de cité par la naturalisa—
tion”; vol. ii. pp. 14-44: “la condition des étrangers” ;
vol. iii, pp. 117-126: “Tétranger en droit romain” ;
vol. v. pp. 1-30: “]’étranger et la justice.”]
Η. Wheaton: History of the law of nations (New York, 1845).
[Pp. 1-20: in Greece ; Pp- 20-30: in Rome.]
P. Willems: Le droit public romain (Louvain, 1883).
[Esp. sect. iv. chap. i. pp. 389-397: “ Des relations _
internationales” ; pp. 410-415.]
P. Willems: Le sénat de la république romaine, 3 tom. (Paris, —
1885). |
re, vol. ii. liv. iii, chap. v. pp 465-521: “Le
département des affaires étrangéres,”’] |
των lsee_titt atlas a sted
IV. MODERN WRITERS DEALING WITH FEWER
QUESTIONS, OR WITH SPECIAL TOPICS.
C. Accarias: Précis de droit romain, 2 vols. (Paris, 1879, etc.).
C. I. Ansaldi: De diis multarum gentium Romam evocatis ; sive
de obtinente olim apud Romanos deorum praesidum in oppugna-
tionibus urbium evocatione (Brixiae, 1743).
L. von Bar: Theorie und Praxis des internationalen Privat-—
rechts, 2 Bde. (Hannover, 1889-90). |
[Vol. i. δ 8-12, pp. 17-25: on private international —
law in Rome.
J. Baron: Peregrinenrecht und Jus Gentium (Leipzig, 1892).
[Relationship of the jus gentium to the personal law of
aliens in Rome. ]
B. Barth : De Graecorum asylis (Strassburg, 1887).
[Greek law and customs relating to asylum and the
right of sanctuary. |
WORKS ON PARTICULAR TOPICS 13
ey. is Barthelemy : Voyage du jeune Anacharsis en Gréce vers le
milieu du 4™ siecle avant T’ére vulgaire, 7 tom. (Paris,
1799). )
7 enelish trans., London, 1816-18, 8 vols.]
A. Baumstarck: De curatoribus emporii et nautodicis apud
Athenienses disputatio (Friburgi, 1828).
L. Beauchet: Histoire du droit privé de la république athéntenne,
4 vols. (Paris, 1897).
E. Beaudouin : Etude sur le jus italicum. (In Nouvelle revue
historique de droit francais et étranger, Paris, vol. v. pp.
146 seq. 3 pp. 592 s¢q-)
E. Beaudouin: Le majus et le minus Latium. (In Nouvelle
revue historique de droit frangais et étranger, Paris, 1879.)
W. A. Becker: Gallus (ed. H. Goll, Berlin, 1883).
_ J. Beloch : Der italische Bund unter Roms Hegemonie (Leipzig,
1880).
A. Benedix: De praeda (Breslau, 1876).
V. Bérard: De arbitrio inter liberas Graecorum civitates
(Paris, 1894).
C. Bétant: 4n fuerint apud Graecos judices certi litibus inter
civitates componendis (Berlin, 1862),
J. C. Bluntschli: Das Beuterecht im Krieg und das Seebeuterecht
inbesondere (Nordlingen, 1878),
[Pp. 15 seg. : piracy, prize, and booty in ancient times. ]
G. Béckmann: Recht und Jus Gentium der Rimer (Darm-
stadt, 1862).
A. vase). Die Staatshaushaltung der Athener, 2 Bde (Berlin,
I
[English trans. of an earlier edition, by A. Lamb: The
Public Economy of the Athenians, Boston, 1857.]
A. Boeckh : Urkunden iiber das Seewesen des attischen Staates, 3
Bde. (Berlin, 1840-51).
O. Bohn : Qua condicione juris reges socii populi Romani fuerint
(Berlin, 1878).
[Questions relating to the foedus sociale, or treaty ot
alliance. ]
A. Bonucci: La legge comune nel pensiero greco (Perugia, 1903).
[On the conception of ‘general law,’ νόμος κοινός, in
Greece. ]
J. P. Bougainville: Quels étaient les droits des métropoles grecques
sur les colonies, les devoirs des colonies envers les métropoles, et les
engagemens réciproques des unes et des autres? (Paris, 1745).
14 WORKS ON PARTICULAR TOPICS
P. van Limburg Brouwer: Histoire de la civilisation morale et
religieuse des Grecs, 8 tom. (Groningue, 1833-42).
G. Brini: Jus naturale (Bologna, 1880). ;
Η. M. de Bruyn de Neve Moll: De peregrinorum apud Athenienses
conditione (Dordraci, 1839).
J. Bryce: Law of Nature. (In Studies in history and juris-—
prudence, 2 vols. Oxford, 1901 ; vol. ii. pp. 112 seq.) E
A. B. Biichsenschiitz : Besitz und Erwerb im griechischen Alter-—
thume (Halle, 1869).
H. Buermann: Animadversiones de titulis atticis quibus civitas
alicui confertur vel redintegratur (Leipzig, 1879).
T. Buettner-Wobst: De legationibus reipublicae liberae tempori-—
bus Romam missis (Leipzig, 1879). .
A. Bulmerincq: Das Asylrecht und die Auslieferung flichtiger
{
Verbrecher.—Eine Abhandlung aus dem Gebiete der univer=-—
sellen Rechtsgeschichte und des positiven Vilkerrechts (Dorpat,
1853). |
[Chap. il. pp. 17-29: law of asylum among the —
Israelites; chap. iii. pp. 29-51 : among the Greeks; chap. —
iv. pp. 51-73: among the Romans. ] .
H. Biirgel: Die pylacisch-delphische Amphiktyonie (Miinchen, —
1877). :
[Esp. pp. 197 seg.: the function of the Amphictyonic —
council in regard to interstatal relationships. | |
E. Burle: Essai historique sur le développement de la notion de
droit naturel dans l’antiquitié grecque (Trévoux, 1908).
G. Busolt: Der zweite athenische Bund. (In Jahrbuch fir
classische Philologie, Suppl. vii. 1873-5, pp. 641-846.)
G. Busolt: Die Lakedaimonier und ihre Bundesgenossen (Leip- —
zig, 1878).
E. Caillemer: La naturalisation ἃ Athénes.—Etudes sur les
antiquités juridiques d’ Athénes (Paris, 1880).
E. Chénon: Etudes sur les controverses entre Proculéiens et
Sabiniens (Paris, 1881).
E. Ciccotti: J/ tramonto della Schiaviti nel mondo antico (Torino,
1899).
E. C. Clark: Practical jurisprudence (Cambridge, 1883).
[Chap. xiii.: on Jus gentium.]
M. Clerc: Les méteques athéniens—Etude sur la condition légale,
la situation morale et le réle social et économique des étrangers
domiciliés a Athénes. (Bibliotheque des écoles frangaises
-
WORKS ON PARTICULAR TOPICS 15
a’ Athénes et de Rome. Fascicule soixante-quatri¢me, Paris,
1893.
°F” setailed account, based largely on original sources, of
the rights and duties, and of the position in general, of
aliens domiciled in Athens. ]
M. Clerc: De Ja condition des étrangers domiciliés dans les
différentes cités grecques. (In Revue des universités du midi,
Bordeaux, tome iv. (1898), pp. I-32; pp. 153-180; pp. 249-
274.)
J. A. Collmann : De Romanorum judicio recuperatorio (Berlin,
1835).
Ἐς. C. Conradi: De fecialibus et jure feciah populi Romani.
(In Scripta minora, vol. i. Halis, 1823, pp. 259-384.)
F, P. Contuzzi: La istituzione dei consolati ed il diritto inter-
nazionale europeo nella sua applicabilita in Oriente (Napoli,
1885).
[Pp. 1-26: on ancient institutions analogous to the
modern consular system. ] ?
Η. A. A. Danz: Der sacrale Schutz in rémischen Rechtsverkehr.
—Beitriige zur Geschichte der Entwickelung des Rechts bei
den Rimern (Jena, 1857).
[Influence of religion on law in various relationships ;
kinship of sacred and juridical conceptions. ]
R. Dareste : Nouvelles études @ histoire du droit (Paris, 1902).
[Pp. 305-321 : “ Droit de représailles chez les Grecs,”
—reprinted from Revue des études grecques, vol. ii. (1889).]
A. Desjardins: Introduction historique a I’étude du droit com-
mercial maritime (Paris, 1890). _
H. E. Dirksen: Uber die Eigenthiimlichkeit des Jus Gentium
nach den Vorstellungen der Rimer. (In Vermischte Schriften,
Berlin, 1841, vol. i. pp. 200-252.)
M. Dubois: Les ligues étolienne et achéenne. Leur histoire et
leurs institutions. Nature et durée de leur antagonisme.
(Bibliotheque des éoles frangaises αἱ Athénes et de Rome,
1885.) :
Dumont: Des colonies romaines. (In Annales des universités de
Belgique, Bruxelles, 1843, pp. 557 seq.)
A. J. Dureau de la Malle: Economie politique des Romains, 2
tom. (Paris, 1840).
W. Eisendecher: Ueber die Entstehung, Entwickelung und
ene des Biirgerrechts im alten Rom (Hamburg,
1820).
16 WORKS ON PARTICULAR TOPICS
E. Engelhardt: Les protectorats romains. (In Revue générale d.
droit international public, Paris, 1895, pp. 489-509.)
J. Fallati: Die Genesis der Vilkergesellschaft. (In Zeitschrift fur
Staatswissenschaft, Tiibingen, 1884.)
Ἐς Faure: Essai historique sur le préteur romain (Paris, 1878).
V. Ferrenbach: Die amici populi romani in der republikanischer”
Zeit (Strassburg, 1895).
P. Foucart: Des associations religteuses chex les Grees .
(Paris, 1873).
P, Foucart: 4émoire sur les colonies athéniennes au cinguiéme et —
au quatrieme siécles. (In Mémoires de lI’ Académie des
Inscriptions et Belles Lettres, Paris 1878, 1° série, τ, iv. —
Pp. 322-413.) |
A. Frankel: De condicione, jure, jurisdictione sociorum Athenien- —
sium (Leipzig, 1878).
E. A. Freeman (ed. J. B. Bury): History of federal government —
in Greece and Italy (London, 1893).
[Passim, esp. chap. ili. pp. 95-111: on the Amphic-
tyonic council. Several chapters on leagues, etc., from a
political rather than juridical point of view.]
Pewee. 7:
G. Frenoy: Condition des pérégrins a Rome en droit romain
(Paris, 1879).
N. D. Fustel de Coulanges: La cité antique (Paris, 1900).
[Esp. chap. xv. pp. 241-248: “Relations entre les
cités; la guerre; la paix; l’alliance des dieux”; chap.
xvi. pp. 248-254: “ Les confédérations ; les colonies.” }
N. D. Fustel de Coulanges: Le colonat romain. (In Recherches
sur quelques problemes d'histoire, Paris, 1885, pp. 1-186.)
X. Garnot: Apergu sur la condition des étrangers a Rome
(Paris, 1884).
§. Gianzana: Lo straniero nel diritto civile italiano (Torino,
1884). |
[Esp. vol. i. pp. 66-86: “La condizione giuridica dello
straniero presso 1 Romani.” ]
J. Gilson: L’étude du droit romain comparé aux autres droits de
Pantiquité (Paris, 1899).
[Esp. pp. 175-202: local juridical usages; relation of
peregrin law to Roman law; persistence of ancient
national laws under the Roman Empire. ]
Ρ, F. Girard: Histoire de lorganisation judiciaire des Romains
(Paris, 1901).
:
=
=
WORKS ON PARTICULAR TOPICS 17
Ww. W. Goodwin: Δίκαι ἀπὸ συμβόλων and δίκαι συμβόλαιαι.
Ξ (In American Journal of Philology, Baltimore, vol. i, 1880,
pp- 4-16.)
iP. Graetzl : De pactionum inter Graecas civitates appellationibus,
formulis, ratione (Halle, 1885).
P. Grenouillet : De Ja condition des personnes au point de vue de
la cité... en droit romain (Paris, 1882).
Ῥ, Guiraud: De Ja condition des alliés pendant la premiére con-
fédération athénienne. (In Annuaire de la faculté des lettres
de Bordeaux, tom. v. pp. 168 seq.)
P. Guiraud: Les assemblées provinciales dans l’empire romain
(Paris, 1887).
L. Halkin: Les esclaves publics chez les Romains (Bruxelles,
1897). :
A. W. Heffter: Die Athendische Gerichtsverfassung .. . (Coln,
1822).
J. Helfrecht: Historische Abhandlung von den Asylen (Hof, 1801).
K. F. Hermann: Lehrbuch der griechischen Antiquitéten, ed.
H. Bltimner and W. Dittenberger (Freiburg i. B. 1899,
etc.).
C. G. Heyne: De veterum coloniarum jure. (In Opuscula
academica collecta et animadversionibus locupletata, Gottingae,
1785-1812, t. i. pp. 299 seg.; t. iii, pp. 39-78, on first
treaty between Rome and Carthage.)
Heyse: De legationibus Atticis (Gottingen, 1882).
R. Hirzel: "Αγραφος νόμος. (In Abhandlungen der philologisch-
historischen Classe der kiniglich sdchsischen Gesellschaft der
Wissenschaften, Bd. xx. No. 1, Leipzig, 1900, pp. 23 seq.)
[A study on ancient—especially Greek—unwritten law,
its force and significance. ]
R. Hirzel: Der Eid.—Ein Beitrag xu seiner Geschichte (Leipzig,
1902).
[A treatise on the oath,—its connection with religion
and sacred law, and its function in human relationships in
general, particularly in the conclusion of treaties, alliances,
and other conventions. |
R. Hirzel: Themis, Dike, und Verwandtes.—Ein Beitrag zur
Geschichte der Rechtsidee bei den Griechen (Leipzig, 1907).
[On the significance of themis, dike, fas, nomos, and
cognate conceptions in Greek legal development; the
interpenetration of divine law and positive law. ]
B
18 WORKS ON PARTICULAR TOPICS
H. F. Hitzig: Altgriechische Staatsvertrdge iiber Rechtshil
(In Festgabe Ferdinand Regelsberger...(Zurich, 1907
pp. 1-70.) .
[Treaties between Greek States with regard to disputes
arising between them or between subjects of one an
those of the other ; agreement as to jurisdiction and pro-
cedure relating thereto. |
B. Hubert: De arbitris atticis et privatis et publicis (Leipzi
1885).
M. H. Hudtwalcker : Uber die offentlichen und privat-Schiedia
richter (Didteten) in Athen, und den Process vor denselben
(Jena, 1812).
P. D. Huet: Histoire du commerce et de la navigation des anciens”
(Lyon, 1763).
Ἷ
[Pp. 74-200: Some chapters on the commercial rela~
tionships of the Greeks and of the Romans. ]
G. Humbert: Mémoire sur la condition des pérégrins chez les
Romains, (In Recueil de ? Académie de peas de Toulouse,
1870.)
W. A. Hunter: 4 systematic and historical ἜΝ, of Roman |
law (London, 1903).
[Esp. the historical introduction by A. H. G. Greenidge.] _
E. Huschke: De recuperatoribus. (In Analecta Iitteraria,
Lipsiae, 1826, Excursus ii. pp. 208-253.)
R. von Ihering: Die Gastfreundschaft im Alterthum. (π΄
Deutsche Rundschau, Berlin, June, 1887, pp. 357-397.)
[On the ancient institution of hospitality traced as
as possible to its sources, and attributed merely to the
exigencies of commercial intercourse. ]
Jaenisch : De Graecorum asylis (Gottingen, 1868).
L. Kamarowsky : Le tribunal international. (Trans. from the
Russian by 8. de Westman, Paris, 1887.)
[Esp. 111-123: on cases of international arbitration in
Greece and Rome. ]
F, Klipffel : Etude sur le régime municipal gallo-romain. (In Nou-
velle revue historique de droit francais et étranger, Paris,
1878, pp. 554 seq.5 1879, pp. 171 seg. 275 seg. 571 seq.]
Koellner : De clentela (Gottingen, 1831).
J. E. Kuntze: Der Parallelismus des Jus publicum und pee
bei den Rimern (Leipzig, 1889).
L. F. J. Laferri¢re: De P’influence du stotcisme sur la doctrine is
jurisconsultes romains (Paris, 1860). |
WORKS ON PARTICULAR TOPICS 19
rivier: Les traités conclus par Rome avec les rois étrangers
(Paris, 1882).
. Lécrivain : Le droit de se faire justice soi-méme et les représailles
dans les relations internationales de la Gréce. (In Mémoires
de Il’Académie des sciences, inscriptions, et belles-lettres de
Toulouse. Neuviéme série. Tome ix (1897), pp. 277-
290.)
C. Lécrivain: Une catégorie de traités internationaux grecs, les
Symbola. (In Bulletin del’ Académie des sciences, inscriptions,
mf belles-lettres de Toulouse, vol. ii. (1898-1899), no. 3,
ΡΡ. 150-159.)
-E. Léotard: Essai sur la condition des barbares établis dans
Pempire romain au quatriéme siecle (Paris, 1873).
aH. ar de Bauvais: Du droit de cité a Rome (Paris,
1882).
τ. τε: Etude sur le droit de cité ἃ Rome (Paris,
1883)
F. Lindet : De Pacquisition et de la perte du droit de cité romaine
(Paris, 1879).
J. H. Lipsius: Das attische Recht und Rechtsverfahren, 2 Bde.
(Leipzig, 1905-8).
Lué : 1] diritto internazionale pubblico nei libri d’Omero (1897).
Sir Henr a Maine: Ancient law (ed. Sir F. Pollock, London,
190
A. nba Quomedo Graeci foedera publica sunxerint (Paris,
1886).
W. A. P. Martin ; Traces of international law in ancient China.
(In International Review, New York, vol. xiv. (1883)
pp: 63-77.)
B. Matthiass: Das griechische Schiedsgericht. (In Juristische
ey a fiir Rudolph von Ihering, Stuttgart, 1892, pp.
1-58.
+ Mainly private arbitration in Greece. ]
B. Matthiass: Die Entwicklung des rémischen Schiedsgerichts
(Rostock, 1888).
[The practice of private arbitration in Rome. ]
A. Maury: Histoire des religions de la Gréce antique, 3 tom.
(Paris, 1856-9).
H. H. Meier: De proxenia sive de publico Graecorum hospitio.
(Halle, 1843).
[The relation of public hospitality in Greece to the
rudimentary consular system which obtained. ]
20 WORKS ON PARTICULAR TOPICS
M. H. E. Meier: Die Privatschiedsrichter und die bffentle |
Didteten Athens so wie die Austrégalgerichte in den griechischer
Staaten des Alterthums (Halle, 1846).
M. H. E. Meier and G. F. Schoemann: Der attische Process.
(Neu bearbeitet von J. H. Lipsius, Berlin, 1883-7.)
Milhaud: L’application de la loi pérégrine ἃ Rome (Paris,
1893).
L. Mitteis : Reichsrecht und Volksrecht in den ostlichen Provinzen
des rémischen Kaiserreichs (Leipzig, 1891).
[The question of the applicability, under the Empire,
of peregrin law in several of the Roman provinces, and its
relationship to the civil jurisprudence. ]
A. Mommsen: Heortologie.—Antiquarische Untersuchungen iiber
die stddtischen Fester der Athener (Leipzig, 1864).
T. Mommsen: Birgerlicher und peregrinischer Fretheitschutz
im rémischen Staat. (In Festgabe fiir Beseler, Berlin, 1885,
ΡΡ. 255 564.)
T. Mommsen: Geschichte des rémischen Miinzwesens (Berlin,
1860). (French trans. by the Duc de Blacas, 4 tom.
Paris, 1865-75.)
T. Mommsen: Das rémische Gastrecht und die rémische Chentel.
(In Rémische Forschungen, Berlin, 1864-79, vol. i. pp.
319-390.)
T. Mommsen : Das rémische Strafrecht (Leipzig, 1899).
P. Monceaux : Les proxénies grecques (Paris, 1886).
C. D. Morris: The jurisdiction of the Athenians over their allies.
(In American Journal of Philology, Baltimore, vol. ν, 1884,
ΡΡ. 298-317.)
C. Ὁ. Morris: The relation of a Greek colony to its mother-city.
(114. pp. 479-487.)
E. Miller: Ueber das dilteste rémisch-karthagische Biindniss.
(In Verhandlungen der Versammlung der deutschen Philologen,
Frankfurt-am-Main, 1861, pp. 79-92.)
K. O. Miller : Die Dorier (being vols. ii. and iii. of Geschichten
hellenischer Stimme und Stddte, 3 Bde. Breslau, 1844.)
J. Naudet : De Pétat de personnes et des peuples sous les empereurs
romains. (In Journal des Savants, Paris, 1877, pp. 290-
301 5 PP. 337-351.)
L. de la Nauze: Adémoire sur la xénélasie. (In Mémoires de
P Académie des Inscriptions, τ, xii. pp. 159-176.)
WORKS ON PARTICULAR TOPICS 21
i H. Nettleship: Jus gentium. (In Journal of Philology, London,
vol. xiii. 1885, pp. 169-181.—Reprinted in Contributions
to Latin lexicography, Oxford, 1889, pp. 500-510.)
[On the various meanings of the expression ‘ ius
gentium,’ as exemplified in numerous Latin authors. ]
A. Nissen: Der caudinische Friede. (In Rheinisches Museum
: fiir P hilologie, Frankfurt-am-Main, 1870, vol. xxv.)
Ὁ; Ostermann: De praeconibus Graecorum (Marburg, 1845).
LL. Ott: Beitrage zur Kenntnis des griechischen Eides (Leipzig,
1896).
[The function of the solemn oath in Greece in inter-
national and other relationships. ]
Ὁ. Padelletti: J giudici nel processo romano. (In Archivio
Giuridico, Pisa, vol. xv. (1875) pp. 523-560.)
[Pp. 543-560: on the recuperatores. |
J. M. Pardessus: Us et coutumes des peuples de Pantiquité et du
moyen age, 2 tom. (Paris, 1847).
G. Perrot: Le droit public de la république athénienne (Paris,
1867).
A. Philippi: Bettrdge zu einer Geschichte des attischen Birger-
| rechts (Berlin, 1870).
Piccioni: Des concessions du connubium (Paris, 1891).
A. Pischinger: De arbitris Atheniensium publicis (Mitnchen,
1893).
F. J. F. Poland: De legationibus Graecorum publicis (Leipzig,
1885).
Sir Ἐς, Pollock : History of the law of nature. (In Journal of the
Society of Comparative Legislation, London, 1900, pp. 418-
433-)
D. Raoul-Rochette: Histoire critique de Pétablissement des
colonies grecques, 4. tom. (Paris, 1815).
[Relationships, political and juridical, between the metro-
polis and the colonies,—reciprocal rights and obligations. |
W. Rein: Criminalrecht der Romer (Leipzig, 1844).
J. T. Reinaud: Relations politiques et commerciales de Tempire
romain avec |’ Asie orientale (Paris, 1863).
M. Revon: L’arbitrage international (Paris, 1892).
[Chap i. pp. 62-105: “arbitrage international dans
Vantiquité.”’]
W. Richter: Die Sklaverei in griechischen Altertiimer (Breslau,
1886).
22 WORKS ON PARTICULAR TOPICS
V. cen aes Diritto naturale e positivo.—Saggio storico (Bolo
I
ἮΝ I-135 : on the development of the conception
law in antiquity. ]
A. Rodiére: Du préteur pérégrin et de Pexistence plus ou moins
latente d’une institution analogue a la sienne chez tous les
peuples. (In Recueil de 1’ Académie de législation de Toulouse,
1868, τ. xviii. pp. 339-351.)
M. I. G. Rogéry : De la condition des étrangers en droit romain
(Montpellier, 1886).
F. Roth: Ueber Sinn und Gebrauch des Wortes Barbar (Nir
berg, 1814). |
J. Roulez : Considérations sur la condition politique des chents dans
Pancienne Rome. (In Bulletins de Académie Royale de
Bruxelles, τ. vi. pt. 1. pp. 304 seq.)
J. Rubino: Untersuchungen tiber riémische Verfassung und
Geschichte (Cassel, 1839).
E. de Ruggiero: L’arbitrato pubblico in relazione col private
ik 1 Romani.—Studio di epigrafia giuridica (Roma,
1693
G. de See Des anctens gouvernemens fédératifs (Paris,
I
fe pp. 1-270: on the Amphictyons and their
authority, juridical and otherwise ; and on other leagues. ]
G. de Sainte-Croix: AZémoire sur les méteques. (In Mémoires
de littérature tirés des régistres de Académie Royale des
Inscriptions et Belles Lettres, τ. xlviii. 1808, pp. 176-207.)
V. Saverot: Les récupérateurs (Dijon, 1885).
F. C. von Savigny : Vermischte Schriften, 5 vols. (Berlin, 1849,
etc.).
H. Schenkl: De metoecis atticis. (In Wiener Studien, τ, ii.
1880, pp. 161-225.)
L. Bue Die Ethik der alten Griechen, 2 Bde. (Berlin,
1062
Poe the connection of juridical notions with ethical,
—esp. vol. ii. chap. vi. pp. 275-324: “Der Mensch im
Verhaltniss zu den Mitmenschen”; chap. vii. pp. 325-
336: “ Das Verhdltniss der Gastfreundschaft.”] ᾿
G. F. Schoemann: Ofuscula academica, 3 vols. (Berolini,
1856-8).
Schubert : De proxenia attica (Leipzig, 1881).
C. Sell: Die Recuperatio der Rtmer (Braunschweig, 1837).
WORKS ON PARTICULAR TOPICS 23
"Simon : Des asyles. (In Histoire de P? Académie des Inscriptions et
| Belles Lettres, Paris, 1746.)
Ww. Soltau: Die Giiltigkeit der Plebiscite (Berlin, 1884).
Ἐς Sonne: De arbitris externis quos Graeci adhibuerunt ad lites
Ι intestinas et peregrinas componendas quaestiones epigraphicae
(Gottingen, 1888).
[A critical study of a number of Greek inscriptions
recording cases of arbitration, some of which relate to the
settling of disputes in which aliens were involved. ]
eel. ahi De vestigiis juris gentium Homerici (Lipsiae,
1871
ἴδ, certain elements of the law of nations as it appears
in Homer ; but the evidence advanced is more of a philo-
logical than of a juridical nature.]
Stahl: De sociorum Atheniensium iudiciis (Miinster, 1881).
E. Szanto: Das griechische Birgerrecht (Freiburg i. B. 1892).
[Grant and loss of Greek citizenship ; relationships of
isopolity ; federal unions, and interchange of civic rights. ]
V. Thumser: De civium Atheniensium muneribus (Wien, 1880).
V. Thumser: Untersuchungen iiber die attischen Mettken. (In
Wiener Studien, t. vii. pp. 45-68.)
A. Thurm: De Romanorum legationibus ad exteras nationes
missis (Lipsiae, 1883).
Ὁ. Tissot: Les proxénies grecques et de leur analogie avec les
institutions consulaires modernes (Dijon, 1863).
F. en : Uber den Bund der Amphiktyonen . . . (Berlin,
1810).
σ. F. i : De tesseris hospitalitatis (Amstelodami Frisii,
1670).
A. E. Turrettini: De Jlegationibus publicis apud Athenienses
(Geneva, 1840).
C. A. von Vangerow: Uber die Latini Juniani—Eine rechts-
geschichtliche Abhandlung (Marburg, 1833).
A. Vaunois: De /a notion du droit naturel chez les Romains
(Paris, 1884).
M. Voigt: Die XII. Tafeln (Leipzig, 1883).
M. Voigt: Ueber Clientel und Libertinitat. (In Koniglich
Sdchsischen Gesellschaft der Wissenschaften, Berlin, 1878.)
H. A. Wallon: Histoire de Pesclavage dans lantiquité, 3 tom.
(Paris, 1879).
S. Waszynski: De servis Atheniensium publicis (Berlin, 1898).
24 OTHER WRITINGS REFERRED TO
S. Waszynski: Uber die rechtliche Stellung der Staatssklaven in
Athen. (In Hermes.—Zeitschrift fiir classische Philologie, |
Berlin, 1899, Bd. xxxiv.)
E. W. Weber : Demosthenis oratio in Aristocratem (Jena, 1845).
H. Weil: De tragoediarum graecarum cum rebus publicis con-
junctione (Paris, 1844).
C. A. Weiske : Considérations historiques et diplomatiques sur les
ambassades des Romains comparées aux modernes (Zwickau, ©
1834).
C. Welsing: De inquilinorum et peregrinorum apud Athenienses
judiciis (Minster, 1887).
)
by
i
7
᾿
‘
᾿
[Mainly a commentary on various texts relating .
questions of jurisdiction as to non-citizens in Athens, and —
to litigation in which they were involved.]
P. van Wetter: La condition civile des &trangers d’aprés le droit
romain. (Appendix to Laurent’s Droit civil international,
ut sup. vol. i. pp. 667-678.)
U. von Wilamowitz-Méllendorff: Demotika der Metoeken. (In
Hermes.—Zeitschrift fir classische Philologie, Berlin, Bd.
xxii. 1887, pp. 107-128 ; pp. 211-259.)
M. Wlassak: Rémische Processgesetze, 2 Pt. (Leipzig, 1888-91).
G. Wolff: De primo inter Romanos et Carthaginienses foedere
(Neubrandenburg, 1843).
V. OTHER WRITERS REFERRED TO.
A. ae aes Manuel de numismatique ancienne (Paris,
1851
I. Becker: Anecdota Graeca, 3 vols. (Berolini, 1814-1821).
J. Bodin: Les six lures de la république (Lyon, 1580).
G. Boissier: La religion romaine d’ Auguste aux Antonins, 2 tom.
(Paris, 1874).
H. Bonfils: AZanuel de droit international public (Paris, 1905).
J. B. Bossuet : Discours sur Phistoire universelle (Paris, 1872).
J.B. Bossuet : Sermon sur la justice. (In Guvres.) |
M. Bréal and A. Bailly : Dictionnaire étymologique latin—Legons
des mots (Paris 1882).
M. Bréal: Sur Porigine des mots désignant le droit et la loi en
latin. (In Nouvelle revue historique de droit Frags et
étranger, Paris, vol. vii. 1883, pp. 603-612.)
OTHER WRITINGS REFERRED TO 25
: P. C. Buttmann: Lexilogus, oder Beitrdge zur griechischen
W ort-erklirung ... 2 Bde. (Berlin, 1837-60).
Ὁ, Calvo: Le droit international, 6 vols. (Paris, 1888-1896).
Ὁ. Carapanos : Dodone et ses ruines (Paris, 1878).
_W. Corssen: Kritische Beitrage zur lateinischen Formenlehre,
(Leipzig, 1865).
= J. de Cujas (Cujacius): Observationum et emendationum libri
: xxvii. (Coloniae Agrippinae, 1598).
R. Ee Plaidoyers civils de Démosthéne, 2 vols. (Paris,
1875).
LL. Duguit: Des conflits de législation relatifs ἃ la forme des actes
civils (Bordeaux, 1882).
J. Dumont: Corps universel diplomatique du droit des gens, 8 vols.
(La Haye, 1726-1731).
O. von Gerlach: Das alte Testament (Berlin, 1847).
G. V. Gravina : Origines juris civilis (Lipsiae, 1708).
Ρ, Guiraud: La propriété foncitre en Gréce, jusqu’a la conquéte
romaine (Paris, 1893).
P. Guiraud: L’impét sur le capital ἃ Athéenes. (In Revue des
_ deux mondes, Paris, Oct. 15, 1888.)
F, P. G. Guizot: L’église et la société chrétiennes en 1861 (Paris,
1861).
J. A. Hartung: Die Religion der Rimer (Erlangen, 1836).
E. Helwing: Geschichte des achdischen Bundes nach den Quellen
dargestellt (Lemgo, 1829).
A. W. Heffter: Das europdische Vilkerrecht der Gegenwart, ed.
F. H. Geffcken (Berlin, 1881).
G. W. F. Hegel: Religionsphilosophie. (In Werke, 18 Bde.
Berlin, 1832-40.)
J. G. Herder: deen zur Philosophie der Geschichte der Mensch-
heit, 2 Bde. (Leipzig, 1841).
U. Huber: Praelectionum juris civilis tomi tres secundum Institu-
tiones et Digesta Justiniani (Lovanii, 1766).
Sir ΚΕ. Jebb: Antigone ;—text, translation, and commentary
(Cambridge, 1888).
J. Kent: Commentary on international law, ed. J. T. Abdy
(London, 1866).
P. E. von Lasaulx : Ueber den Fluch bei Griechen und Réimern.
(In Studien des classischen Alterthums, Regensburg, 1854.)
26 OTHER WRITINGS REFERRED TO
F. von cia Das Vilkerrecht systematisch dargestellt (Berlin,
1906). |
N. Machiavelli: Dzscorsi (Vinegia, 1532).
Sir Henry Maine: Village communities in the East and West
(London, 1871).
F, de Martens: Traité de droit international, 3 vols. (Trad.
du russe par A. Léo, Paris, 1883.)
G. F. de Martens: Précis du droit des gens moderne, ed. C.
Vergé (Paris, 1864).
R. de Maulde-la-Claviere : La diplomatie au temps de Machiavel
(Paris, 1892).
M. H. E. Meier: Opuscula academica (Halis Saxonum, 1863).
J. B. Mispoulet: Les institutions politiques des Romains...2
vols. (Paris, 1882-3).
C. de Montesquieu: De Pesprit des lois, 5 tom. (Paris, 1816).
S. Petitus: Leges Atticae (1635).
Sir R. Phillimore : Commentaries upon international law, 4 vols,
(London, 1885, etc.).
F. Ratzel : Valkerkunde (Leipzig, 1885).
A. Rivier : Principes du droit des gens, 2 vols. (Paris, 1896).
N. F. Rosellini: Z monumenti dell Egitto e della Nubia...8
tom. (Pisa, 1832-44).
A. Schaefer: Demosthenes und seine Zeit, 3 Bde. (Leipzig,
1885-7).
O. Schrader: Sprachvergleichung und Urgeschichte (Naumburg
a. 8. 1883).
ΑΗ trans. by F. Β. Jevons: Prehistoric antiquities,
London, 1890.)
J. Selden: De synedriis et praefecturis veterum Ebraeorum libri
duo (London, 1653).
E. Speck: Handelsgeschichte des Altertums. 3 vols. in § parts.
(Leipzig, 1901-1906.)
[ Detailed information relating to many matters arising
out of the commercial relationships of ancient States.] .ὄ
J. Westlake : Chapters on international law (Cambridge, 1894).
R. Zouche: Juris et judicii fecialis sive juris inter gentes et
quaestionum de eodem explicatio (Oxford, 1650). |
CHAPTER |
THE GREEK CITY-STATE SYSTEM
Ir has not infrequently been said that international law, Denial of tm
public as well as private, that is, international law usually S<ss"°1,9°
ancient law |
recognized, admitted, or insisted on as such in the strict nations.
sense of the term, is a creation of the modern States,
and of the modern States alone; and that the ancient
peoples, including the Hellenic and the Italic races, had
no clear conception of a true law of nations.
But such an attitude implies erroneous preconceptions, The errors
and indicates a blindness to historic perspective. In the ™’°’*
comparison or contrast of races at different epochs in the
world’s history, or at different stages of development,
generalities prove only too seductive to the unthinking
and careless mind. That which exists now has its roots
somewhere in the distant past ; sometimes, indeed, the
past presents to the investigator more than mere roots
of rudimentary development ; in truth, it occasionally
offers a rich efflorescence of complex organisms, whose
significance may perhaps not be at once obvious owing
to the different nature of the later stages of evolution,
and the different point of view fostered by constant
contact therewith.
Nowadays, law, whether international or municipal, Modern law
is universally regarded as possessing a positive character, finenes
and as established by the general agreement of States or
citizens, as the case may be. In the past the rules of
the law of nations as then existing were closely allied
with religious and moral codes, and regarded as inevit-
able consequences thereof. The positive aspect and the
Difference be-
tween them.
In Greece—
the State as a
city-common-
wealth.
28 THE AUTONOMOUS CITY-STATE
principle of consensus were implicit, just as the less is
contained in the greater. Thus our modern conception
substantially obtained then ; modern principles and con-
clusions were then just as forcibly insisted on,—the main”
difference being that now our rules mostly flow from
explicit agreement as representing the major premise,
whereas in antiquity rules of law were not only referred
to the act of agreement as their source, but largely to”
religion and morality as necessarily dictating an implicit |
acceptance or agreement; that is, the source of the
sanction implied was sought merely further back. ‘
In spite of such fundamental likenesses, however,
there are, of course, many important differences between ©
the old and the new systems, and entire conceptions of
law, inasmuch as there are differences in the character of
the times, in the general outlook on life, in the ideals”
entertained, in the circumstances of private and civic
life, in the conception of State, in the notions of the
relationship between the individual and the State, and,
what is of extreme importance, the difference in the view
entertained as to human equality and brotherhood.
The specific details of evidence showing the existence
of a true international law in Greece and Rome will be
dealt with later. At present it will be of advantage to
refer briefly to some of the differences just indicated.
What is particularly ascribed to Greece or to Rome may
be regarded as concerning the other to a greater or
lesser extent, unless the contrary distinctly appears.
In the Hellenic world, where the science of politics
advanced so rapidly, we have a remarkable illustration
of the ancient conception of the State as a city-
commonwealth. The State was co-extensive with the city
- “ἡ πόλις. The city-state was an organized community
enjoying independence, autonomy,— avrovouia, and
dwelling usually within a walled town. Each city had its
surrounding territory, large enough—but not unneces-
sarily extensive—to allow of the convenient assembly of
its free citizens, for the purpose of exercising the rights
and discharging the obligations incidental to citizenship.
CITY-STATES AND GREEK CIRCLE 29
Thus Aristotle insisted that a State should not be so
large as to make it impossible or difficult for its free
citizens to have ready access to each other, and be
acquainted with one another.?
Such organization is undoubtedly derived from the Tribal group.
: Pe BE ; . ings and village
more primitive tribal groupings common to all the communities
_ peoples constituting the Aryan family. Indeed, group-
_ ings of this kind are not strictly confined to members of
_ this family. Amongst the Hellenic States, Athens in
particular was wont to trace her greatness to the early
᾿ς association—cvvoikiots? or συνοικισμός 8. οὗ small village
communities. In the first place, a citizen was a member
of, and closely associated with, his city-commonwealth,
_ the interests of which were supreme as regards other
Greek city-commonwealths. Secondly, he was a mem-
ber of the Hellenic race, constituting, as regards non-
Hellenes, an exclusive circle. Accordingly he had ἃ Double
twofold allegiance—primarily and predominantly to his 393225" οὗ
city, secondarily and always in subservience to the first,
to the various other members of the Greek stock. Thus
in its great days and to the time of the Macedonian
conquest when, after the battle of Chaeronea, 338 B.c.,
Philip became master of Greece, it consisted of a large
number of independent and sovereign cities, jealous of
each other’s advancement in power and dominion, and
constantly astir with dissension. But sovereignty and
independence seemed at times ready to sacrifice them- |
selves in greater or lesser measure by the formation of
leagues and combinations to repel the non-Hellenic/
invader. It must, however, be admitted that such
readiness was generally of momentary duration. What-
ever efforts were made to effect a real union were
invariably defeated either by the natural tendency of the
several constituent States to revert to a condition of
exclusiveness, or, in some cases relating to the more
powerful members, to attain a position of predominance.
1 Politics, vii. 4. 13. 2 Cf, Thucydides, ii. 15.
8 Cf. Polybius, iv. 33. 7.
\
30 CITY-STATES AND GREEK CIRCLE
The Hellenic | Perfection within the circle, rather than extension of _
ae ’ empire or territorial aggrandisement, was the Greek
ideal. ‘ Les Grecs n’ont jamais eu la pensée d’étendre ©
leur domination sur le monde: leur idéal n’est pas la
The Greek | monarchie universelle, mais la cité.”! This is a remark- ©
Βοος Δ6]6 contrast to the Roman policy. To the Greek the
difference. mother-country was self-sufficient, it was considered an ©
adequate sphere for the realization of his ideals, for the —
cherishing of metaphysical abstractions, for the worship of ©
the beautiful, for the attainment of philosophic culture. —
The Roman, no less patriotic, chafed against territorial” :
limitations, and thirsted for constant expansion of power —
and rule. For the Greek, intensity of the inner life and —
development was the aim ; for the Roman, extension of ©
the outer circle of life and material supremacy (of which —
aspiration towards universal dominion is an inevitable —
corollary) formed the object to be attained.
Hellenicrace— The Greek race, like many other races in antiquity,
assumption of - : . ἀπο τς
superiority. [Π their turn, assumed its superiority to all other peoples,
who were looked upon as darbarians, and were regarded
as having been ordained and intended by nature to be
the slaves of the Greeks; and the adoption of any
method to carry out this intention, be it of a forcible or
of a deceitful nature, was, it was ‘seamed justifiable in
Hellenic the eyes of the gods.? To be within the Hellenic
common circle was to share in the common religion ; and to share
religion. in the Greek religion was ipso facto to be placed within
the Greek pale. Though the Greeks spoke a common
language, took part in the common games, consulted the
same oracles, and worshipped the gods in common, yet
their separation into independent city-states rendered
Law of nations possible the evolution of law governing the relationships
possible. between them in their capacity of sovereign powers.
The position of such autonomous communities cannot
be said to be fundamentally different from that, say, of
the European States from the point of view of the
1F, Laurent, Etudes sur Phistoire de Vhumanité.—Histoire du droit
des gens et des relations internationales (Gand, 1850-1870), vol. ii. p. 3.
2Cf, the opinion of Aristotle, in his Pofiics, c. viii.
THE CIRCLE AND PEOPLES OUTSIDE 31
operativeness and applicability of an international law.
It is true that the intrinsic kinship of the Greeks stamps
them as practically one nation, even though subdivided
into different municipalities. But international law re-
quires for its development the existence of independent Existence of
| political communities, and not necessarily difference in atlitnal cans
- race, language, religion, or anything else. The Greek munities.
States were in close proximity to each other ; but that
_ only stimulated each to guard the more assiduously and
᾿ jealously its sovereignty. To apply to the law regulat-
ΟΠ ing their mutual relationships the epithet intermunicipal tntermunicipal
- law is not in reality tantamount to disclaiming the true [2¥53nginter
international character of such law. There are those
who, being so obsessed by ‘‘ modernism,” neglect, or
even fail to see, the great indebtedness of modern
nations to the ancient. To insist, for example, that
international law is entirely of modern growth, whilst
relegating Greek interstatal relationships to the category
of ‘“‘intermunicipal” law is to allow ourselves to be
stultified by mere terminology and become slaves to
mere formalism.
No doubt the Greeks sometimes acted or spoke as Extension of
though the law was applicable only to themselves and bed νυ
not to barbarians ; but it will be shown below in detail Greek pale.
what a large body of the law was extended to all alike.
And even if it were not so extended and applied to the
Hellenes alone, its international character would still
remain. We do not regard our modern law of nations
to be divested of its international character simply
because we do not include uncivilized races—savages,
barbarians—in the family of nations. Further, then as
now, the conduct of a people indicating a refusal to
avail itself of the rights conferred by such law and
perform the corresponding obligations thereby imposed,
was ipso facto a deliberate self-elimination from the civitas
gentium; so that other nations recognized no duties
towards it, either in time of peace or in time of war. sw. the law
It has been asserted and frequently repeated by applied only to
: ᾽ν ene . those bound Ὁ
various writers,—and, it is not too much to say, without treaty?
Existence of
autonomous
States; marks
of sovereignty.
Exclusiveness,
32 SOVEREIGNTY AND EXCLUSIVENESS
their having thoroughly investigated the facts—that only
those bound by an express compact owed duties towards
each other, that the ἔνσπονδοι, that is, practically, the
signatories to the treaty, were alone to benefit by the
provisions of the law, whilst the ἔκσπονδοι, those not
parties thereto, were virtually outlaws.t But it will be”
abundantly shown in the following pages that this is far
from being true. j
The Greek state-system offers many examples of
different political constitutions. In one city-state, for
instance, sovereignty was vested in a sole individual, a
tyrant, whose functions and attributes varied at different
times, in different places, and according to the exigency
of circumstances ; in another, it was vested in constitu-
tional monarchy ; in a third, the supreme power was
exercised by an oligarchy ; whilst in a fourth it was in
the hands of a democracy, in the strict sense of the
term, where every free citizen had the right to an equal
vote in the assembly, in all transactions relating either
to the executive or to. the legislative aspects of the
government, 6.9. in the election of magistrates, in the
enactment of laws, in the ratification of treaties, in
the declaration of war, or the conclusion of peace.
Notwithstanding these wide differences in the internal
political constitution, and the marked preference for,
and devotion to, this or that polity, it was universally
recognized in Hellas that each State, regardless of size
or power, had, by virtue of its being a regularly
organized community, the right of absolute autonomy,
and of regulating its diplomatic relationships with the
other independent States by means of its own ambas-
sadors.”
Patriotism and keen jealousy of foreign interference
occasioned mutual distrust and an unbending spirit of.
1 .g. H. Wheaton, History of the Law of Nations (New York, 1845),
p. 5, referring to Mitford, History of Greece, vol. i. c, 15, § 7.
2Cf. E. A. Freeman, History of Federal Government in Greece and
Italy (London, 1893), pp. 35-6.
THEORY AND PRACTICE 33
\pposition, which frequently led to keen strife and
mobstinate wars. Thus, a rigid exclusiveness prevailed.
‘Citizenship was at first very rarely bestowed on subjects
of other States, who, though fellow-Greeks, were con-
sidered aliens in the full legal and political sense of the
term. ‘The characteristic note of each city was compet-
sence and self-sufficiency. It was regarded as possessing
jan adequate number of citizens capable of satisfying all
itheir national needs, and of attaining to the city’s ideal,
‘whether from the political or from the economic point
τοῦ view.’
speculative thinker and the actual facts must be care-
‘of Plato and Aristotle as fully representing the tone of
jpolitical thought in Greece is like regarding the odes of
. Pindar as a fair expression of the waves of emotion that
iswayed the mixed rabble at the Olympian and Isthmian
\games.”? Yet the philosopher, the theorizer, influenced
ithe statesman and the legislator more in Greece than
jelsewhere. It could scarcely have been otherwise, as
‘the Hellenic temperament was marked by an untiring
jeuriosity and yearning to experience the unknown, to
japply at once in practice the abstract constructions of
ithe intellect.—so that we find in Greece, despite the
‘comparatively brief period of time, a~body of coherent
doctrine in almost every department of knowledge, —
“Successive complete bodies of legislation, if not fully
‘developed systems of law, which, unlike the Roman
and the English, for example, can dispense with the
Η͂
“necessity of being supplemented by a mass of conven-
The distinction, however, between the theory of the Buttheorytobe
ifully recognized. ‘To regard the political speculations Prctce.
tions and fictions. No actual code of laws has been Characteristics
left to us by Greece. This was scarcely possible in view
of the revolutionary spirit of her people, their uncom-
promising disposition, their obstinate unwillingness to
ΟΕ Plato, Repub. ii. p. 36983 Aristotle, Oecon. i. 1 ; Polit. iii.
δ. 143 viii. 4. 7.
7A. H. J. Greenidge, Handbook of Greek Constitutional History
(London, 1896), pp. 1, 2.
ς
Political unity
in Greece
impossible.
The Greek’s
life bound to
his city.
Causes of the
Spirit of
exclusiveness,
24 EXCLUSIVENESS AND RIVALRY
make allowances and concessions,—a spirit born of, an
fostered by, a devotion to strict logical consistency, ;
spirit that was ultimately to prove their undoing.
The intense patriotism of the Greeks promoted at
attitude of civic seclusion. The spirit of separatenes
of isolation made political unity impossible. To the
Greek, his State, his fatherland was no vapid abstraction
but a living reality. He was bound to it by an almos
indissoluble tie; he was ready to give up his life fo
it, since he was indebted to it for his privileges, fo
his dignity, for his very existence ; so that, as self
devotion to his city’s welfare was the supreme virtue
banishment was the extreme penalty. To be dis
inherited by the city was to be disowned by his gods.
In time, no doubt, there was manifested a certain relaxa-
tion in these stringent beliefs ; but the main underlyi
conceptions were retained even at the latest stages o
Greek history. Even in regard to the colonia] syste
the desire for autonomy and separateness was en
where manifested. Though a colony, established by a
city, was regarded as standing in the relation of child
to parent, yet the colonizing group, whilst usually recog-
nizing certain moral obligations due to the mother-state,
at once asserted its political independence. |
Many causes contributed to produce this spirit of
exclusiveness: the physical configuration of the country,
making intercourse difficult; the existence of certain
differences operating strongly in spite of the common
foundations of Greek life,—for example, differences in
religion,’ festivals, and gods, in legal codes, in currency,
in weights and measures, in the calendar, and, most
significant of all causes, differences in political consti-
tution. As Demosthenes says,” the democratic republics
1¢T ἃ nature physique a sans nul doute quelque action sur l’histoire des
peuples, mais les croyances de "homme en ont une bien plus puissante”
(Fustel de Coulanges, La cité antique, Paris, 1900, pp. 238, 239).
2Pro Rhod. 8: Ilpds μὲν γὰρ ἐλευθέρους ὄντας οὐ χαλεπῶς
ἂν εἰρήνην ὑμᾶς ποιήσασθαι νομίζω, ὁπότε βουληθείητε, πρὸς δὲ
ὀλιγαρχουμένους οὐδὲ τὴν φιλίαν ἀσφαλῆ νομίζω.
DIFFERENCES AMONGST GREEKS 35
sontend with each other for power, for glory, but
inst the oligarchies they struggle for liberty, for
Ree very existence; with free peoples peace and
ee are attainable, with oligarchic governments
well-nigh impossible, so that there can never be
harmony between the passion for equality and the
passion to predominate. Thus we get a constant and Constant
Νηρ hostility between Athens and Sparta,— ae
the one the most powerful and frequently chosen leader Petween “ithens
f the democracies, the other that of the aristocracies.
Even in the face of the common enemy, Philip of
‘Macedon, they were actually unable to effect an amicable
union. Just as expatriation is usually prohibited, often
under pain of death, not only in Sparta, but in republics
like Argos,! legitimate marriage (ἐπιγαμία) between
citizens of different States is impossible, in the absence
of a special convention ;? the issue of such forbidden
marriage would be regarded as illegitimate, and as
possessing no rights of citizenship.*
In this unceasing rivalry, ties of kinship were dis- Differences
regarded, and minor differences in character or tempera- pooper τε.
ment became intensified. Theophrastus emphasizes the Greeks.
existence of such differences among the Greeks.‘
Sometimes the general failings or peculiarities of the
citizens of this or that city are held up to scorn by
writers or orators, as, for example, when the Boeotians
are mocked by the comic poets for their dulness and
1Cf. Ovid, Metam. xv. 29 :
“. . . prohibent discedere leges,
Poenaque mors posita est patriam mutare volenti.”
2Cf. Lysias, De antiqua reipublicae forma, 3; Isocrates, Plataicus,
51; Demosth. Pro Corona, 91.—As to similar provisions relating
to the Roman ius connudii, cf. Gaius, Instit. i. 67; Ulpian, Reg. v. 43
Livy, xxxviii. 36; xliii. 3.
3Cf. Pollux, Onomasticon, iii. 21 : νόθος ὁ ἐκ ξένης ἢ παλλάκιδος
«.. ὅς ἂν ἐξ ἀστῆς γένηται νόθον εἶναι (a law cited by Athenaeus,
Deipnosophistae, xiii. 38); Demosth. In Neaeram, 16; Plutarch,
Pericles, 37.
*See the preface to his Characters: ... συμβέβηκεν ἡμῖν οὐ τὴν
αὐτὴν τάξιν τῶν τρόπων ἔχειν.
Frequent
attempts at
effecting a
union.
The Amphic-
tyonic league,
Other
associations,
36 LEAGUES AND ASSOCIATIONS
gluttony.1 Sometimes a city. was elated with such
great pride and vanity as to ~become blind to the
excellent qualities of others; as, for example, when
Pindar was fined by his Theban countrymen for
designating the Athenians ‘the ornament and rampar
of Greece,” *—but Athens repaid him a double sum,
erected a statue to him, and declared him the guest
of the Republic.’ Ι
From time to time, however, a longing for union
was felt. It showed itself first in the interests of
religion, when leagues and associations were established
between neighbouring cities for the protection of
enrichment of some famous shrine lying in their midst.
Of such associations the Amphictyonic league was
the most notable. It grouped itself in turn about
the temple of Apollo at Delphi, and about that of
Demeter Amphictyonis at Thermopylae, and comprised,
at one time, most of the States of Central Greece, and,
in its later epoch, several of the Dorian States of the
Peloponnesus.* The fulfilment of the various obliga-
tions was enforced by the Amphictyonic Council, which
incidentally established rules prescribing rights and
duties of a non-religious character. Other associations
of cities for mutual profit and defence were occasionally
established, but they were imperfect and transitory.
Thus the idea of Themistocles to consolidate Greece
came to nothing; and a similar project of Pericles,
on the eve of the Peloponnesian war, had it been
realized, might have altered the course of Greek
history. He had issued a decree to the effect that
all Greek towns, whether in Europe or in Asia, should
be invited to send representatives to a general assembly
at Athens, to deliberate on the restoration of temples
1Cf, Eubul. ap. Athen. x. 11: ... οὗ πλήρει βροτῶν, οὐκ ἐστὶ
μεῖζον ἀγαθόν ; and again, . . . ὅλους τραχήλους.
2 Pindar, O/ymp. vi. 147 seg.
8 Aeschines, Epist. 4; Isocrates, De permut. 166.
4See G. de Sainte-Croix, Des anciens gouvernements fedératiys
(Paris, 1798), c. vii.
1 ASSOCIATIONS AND HEGEMONY 37
jdestroyed by the barbarians, on the sacrifices vowed
ito the gods in connection with the Persian wars, and on
‘the best means of assuring to all freedom and security
‘of navigation, and of establishing general peace. But
this proposal came to nothing owing to Sparta’s jealousy Confedera-
of Athens, and her apprehension that an Athenian esas.
api might result... Indeed the temporary con-
‘federations that were set up proceeded under the leader-
ship, if not virtual supremacy, of one or other of
‘the more powerful States. Aristocracies and demo-
‘cracies found it impossible to be allied on a footing
‘of real equality; the diversity occasioned by the
Dorian and Ionian elements in Hellas could not be
eliminated. It was, in truth, easier to subjugate a city
and occupy its territory, than to retain it in friendly
union.
The Greeks as Greeks cherished aspirations for unity, The Greeks as
but as citizens their constant aim was decentralization 3 ἧς Greas,
. we Mirae i ‘ > the Greeks as
and the claims of citizenship invariably triumphed over citizens of
those of kinship. Although their genius was so versa- states
tile, and, in a sense, cosmopolitan, they found free scope
for its exercise within the circumscribed limits of their
respective city-states. They constructed no great
works of engineering skill, as the Romans had done.
Their concern was with the conquest of the intellectual
dominions, rather than with the establishment of terri-
torial empire. Their nature is characterized by τὸ
ropuabes*—the love of knowledge—as a contrast, for
example, to the love of wealth attributed to the Phoe-
nicians and Egyptians. They may have proved incapable
of political unity, but they were possessed of that
intellectual unity which marks the true civilization
of a people.®
The mission ot Athens, as conceived by ancient The mission
Writers, is not merely to open men’s eyes to light and ΝΣ
1Plut. Peric/. 17. 2 Plato, Repub. iv. 435 E.
$Cf. F. Laurent, op. cit. vol. ii. p. 18: “Si Punité politique
leur a manqué, ils ont eu l’unité intellectuelle qui constitue la civilisa-
tion d’un peuple.”
Hellenic
temperament
—its capri-
ciousness,
Ancient view
as to Spartan
duplicity.
with all.”? She is further represented as having shown
38 HELLENIC INSTABILITY
beauty, but to disseminate amongst wretched humanity
the nourishing fruit of the earth,’ to teach them of
the bounteous gifts of Ceres. “... Athens showed
such love for men as well as for the gods that when she
became the mistress of these great blessings [i.e. the gifts
of the Earth, and also mystic rites] she did not grudge
them to the rest of the world, but shared her advantage
the Greeks high examples of charity and consideration
for others, and as having taught them “not to refuse
any one the use of running water, or permission
to light his fire at the hearth of his neighbour.” ὃ 4
But the Hellenic temperament was in many respects
changeable and capricious ; and the practices of Greeks
frequently diverged far from their doctrines. Polybius,
in his comparison of the Roman Republic with other
States and constitutions, points out that Athens having
attained its highest perfection under Themistocles,
suffered a rapid decline afterwards owing to the funda-
mental instability of the Athenian disposition— .. . διὰ
τὴν ἀνωμαλίαν τῆς φύσεως. For the Athenian demus,
continues Polybius, is always in the position of a
ship without a commander,—ae yap ποτε τὸν τῶν
᾿Αθηναίων δῆμον παραπλήσιον εἶναι συμβαίνει τοῖς ἀδεσπότοις
σκάφεσι; its discord and quarrels present ἃ sorry
spectacle to observers; for in Athens, as in Thebes,
a mob manages everything on its own unfettered
impulse.*
As to Sparta, her duplicity, in the view of ancient
writers, is proverbial. Athens often accused her rival
of thinking one thing and saying another, as Herodotus
remarks—... ἄλλα φρονεόντων καὶ ἄλλα λεγόντων :5 and
Euripides puts into the mouth of Andromache, in her
1 Lucretius, De rerum nat, vi. 1 26.
2Tsocrat. Panegyr. 29: οὕτως ἡ πόλις ἡμῶν οὐ μόνον θεοφιλῶς
ἀλλὰ καὶ φιλανθρώπος ἔσχεν, ὥστε κυρία γενομένη τοσούτων ἀγαθῶν
> > ’ a“ a” > ᾽ ” Lid 7
οὐκ ἐφθόνησε τοῖς ἄλλοις, ἀλλ᾽ ὧν ἔλαβεν ἅπασι μετέδωκεν.
8 Plut. Cimon, 10. 4 Polyb. vi. 44. Six, 53.
EXTERNAL POLICY OF GREEKS 39
ide denunciation of Menelaus, expressions of severe cen-
: : “Ὁ ye inhabitants of Sparta, most hated of
= among all men, crafty in counsel, kings of
liars, concocters of evil plots, crooked and thinking
_ nothing soundly, but all things tortuously, unjustly are
ye prosperous in Greece.... Are ye not detected
pectking ὙῸΕ δηὲ thing with the tongue but thinking
"another 2”
_ The external policy of the Greeks in general was ex~ External policy
tremely variable. In the democracies, the foreign policy peerekdpgmtt
became the less stable and conscientious the greater the
power acquired by the sophists in the assemblies and the
courts. In aristocracies like Sparta, an external policy,
at least in a positive sense, can scarcely be said to exist
at all. Lycurgus had prohibited not only commercial Attitude to
intercourse with foreigners,” but navigation generally ;° ee
foreigners were expelled,‘ and Spartans were forbidden “é SP"
to go abroad. Later, the foreign trade was mainly
in the hands of the perioeci. Sparta’s military ideal was
inconsistent with foreign commercial relationships. As
_Montesquieu remarks: “ Lacédémone était une armée
entretenue par des paysans’’> Her institutions, her
poetry, her religion all conduced to promote the
military spirit. Plato thus makes an Athenian address
a Spartan: “By your institutions you resemble soldiers
in a camp rather than citizens in a city.” ®
1Eurip. Androm. 466 seg. (445 seg., ed. Nauck):
ὦ πᾶσιν ἀνθρώποισιν ἔχθιστοι βροτῶν
Σπάρτης ἔ ἔνοικοι, δόλια βουλευτήρια,
ψευδῶν ἄνακτες, μηχανοῤῥάφοι κακῶν,
ἑλικτὰ κοὐδὲν ὑγιές, ἀλλὰ πᾶν “πέρι
φρονοῦντες, ἀδίκως εὐτυχεῖτ᾽ av’ Ἑλλάδα.
ee a τέῳ 88 λέγοντες ἄλλα μὲν
γλώσσῃ, φρονοῦντες δ᾽ ἄλλ᾽ ἐφευρίσκεσθ᾽ ἀεί ;
2 Plut. Lycurg. 9. 3Plut, Instit, Lacon, 42.
*Plut. Lycurg. 27 ; Instit. Lacon. 19.
δε Pesprit des lois, xxiii. 17.
® Laws, i li. 6668: . Yak soa yap πολιτείαν ἔχετε, ἀλλ᾽ οὐκ
ἐν ἄστεσι κατῳκηκότων.
Antipathy
to foreigners—
general,
** Barbarians.”
Barbarians
deemed fit only
for slavery.
(In theory.)
40 ATTITUDE TO FOREIGNERS
There was everywhere and at all times a greater o1 ]
lesser antipathy to foreigners,—to dwellers outside the
Greek circle. The citizens of one city regarded those
of another as aliens in the narrower political sense ; but
non-Hellenes were considered barbarians —aliens not
only in the political sense, but also in the intellectual
and moral, and what is still more important, in the
ethnic and religious sense. Greek patriotism had always
the religious motive underlying it. Thucydides fre-
quently refers to the gods and temples common to the
Fellenes—ra ἱερὰ τὰ κοινὰ τῆς Ἕλλαδος, ---Θεοὺς τοὺς
ὁμοβωμίους καὶ κοινοὺς τῶν Ἑλλήνων 3? and when Aristo-
phanes urges his countrymen to cease their intestine
struggles, he makes use of such phraseology as this:
... οὗ μιᾶς ye χέρνιβος
βωμοὺς repippaivovres, ὥσπερ ξυγγενεῖς... .4
When the Persians offered the Athenians ie alliance,
the reply, as drawn up by Aristides, was to the following ©
effect: “ There is not enough gold on the earth, no
land fine or rich enough, nothing whatever which can
induce us to take the part of the Medes to reduce
Greece to slavery.... The Hellenic race being of one
blood, speaking the same language, having the same —
gods, temples, sacrifices, customs, and usages, it would —
be shameful of Athenians to betray it.”®
Thus Aristotle held that barbarians were destined by —
nature to be the slaves of the Greeks: Aw φασιν of
ποιηταὶ: “βαρβάρων δ᾽ “Ἕλληνας ἄρχειν εἰκὸς, ὡς ταὐτὸ
φύσει βάρβαρον καὶ δοῦλον ὄν And originally (not το
enter here into any distinctions which will be later set —
1Cf. Dion. Hal. i. 31; iv. 25. 2 ji, 58. Sill. 59; v. 18.
4 Lysistrata, 1130-1.
& Herodot. Vili. 144: ὅτι οὔτε χρυσός ἐστι γῆς οὐδαμόθι τοσοῦτος,
οὔτε χώρη κάλλεϊ καὶ ἀρετῇ μέγα ὑπερφέρουσα, τὰ ἡμεῖς δεξάμενοι,
ἐθέλοιμεν ἃ ἂν μηδίσαντες, καταδουλῶσαι τὴν Ἑλλάδα.. . αὖτις δὲ, τὸ
“Ἑλληνικὸν ἐὸν ὅμαιμόν τε καὶ ὁμόγλωσσον, καὶ Gedy ἱδρύματά τε
κοινὰ καὶ θυσίαι, ἤθεά τε ὁμότροπα. τῶν προδότας γενέσθαι Αθηναῖους
οὐκ ἄν εὖ ἔχοι. Cf. Plut. Aristid. 10.
§ Polit, i, 1, 5.
ALIENS AND HOSTILITY—THEORY 41
iforth) with the Romans as well as with the Greeks, the
vexpressions for stranger, barbarian, and enemy were
sometimes used as synonymous. At the assembly of
‘the Aetolians (called the Panaetolium) one of Philip’s
jambassadors, in the course of a speech directed against
Sicccrs getting a footing in the country, said:
“With foreigners, with barbarians, all Greeks have and
ever will have eternal war, which is always the same,
and not from causes which change with the times.’”
_ But different sentiments were not infrequently ex- Aspirations
‘pressed as to the virtue and desirability of equality. ‘°°%"
| Thus Jocasta, addressing her son Eteocles, says: ‘It is
nobler, my son, to honour equality, which ever links
friends with friends, and States with States, and allies
with allies; for equality is sanctioned by law among
men.”? And so there were from time to time protests
against slavery.
There is to be found a similar antagonism to people Antagonism
outside the pale, in every part of the ancient world. (P08 the
Thus in China there was a bond of sympathy between Pae—
the various constituent States, but active hostility against
the “barbarians.” For example, in the middle of the
seventh century, B.c., when “the Tartars of the north-
west presented themselves at the court of Tsin, request-
ing a treaty of peace and amity, and humbly offering to
submit to be treated as vassals of the more enlightened
Power, ‘Amity,’ exclaimed the prince, ‘what do they
know of amity? The barbarous savages! Give them
war as the portion due to our natural enemies.’ ὃ
1 Livy, xxxi. 27: “cum alienigenis, cum barbaris aeternum omnibus
Graecis bellum est eritque; natura enim quae perpetua est, non
mutabilibus causis hostes sunt.”
*Eurip. Phoeniss. 536 seq. :
... κεῖνο κάλλιον, τέκνον,
ἰσότητα τιμᾶν, ἣ φίλους ἀεὶ φίλοις
πόλεις τε πόλεσι συμμάχους τε συμμάχοις
συνδεῖ’ τὸ γὰρ ἴσον νόμιμον ἀνθρώποις ἔφυ,...
Cf. Eurip. Fragm. 60; Thespis, Fragm. 6.
8W.A. P. Martin, “Traces of international law in Ancient China”
in International Review, New York, vol. xiv. (1883), p. 69.
Interest of
the State—
the supreme
consideration.
Civic
duty—and
individual
virtue,
42 THE STATE AND THE INDIVIDUAL
The interest of the State was everywhere the supreme
consideration. The theory was that the citizens exist d
for the State ; their lives and fortunes were to be at its
absolute disposal ; ; even the incidents and concerns of
private life were not to be free from its dominance;
that citizenship entirely absorbed individuality. This
conception in its most rigorous form prevailed in
Sparta. In actual life, however, the theory was never
fully realized. The individual was never to this extent
merged in the State. He was never merely a civic
automaton. There were always relaxations in the theo-
retical relationship between the State and the individual.
There were always opposed to this abstraction a variety
of facts to which most modern writers, apparently led”
away by the speculative imaginings of the ancien se
philosphers, have failed to give adequate consideration.
State interest may be actually of supreme moment, and ~
yet not to the extent of annihilating the subject’s indi-—
viduality. The pride of nationality or citizenship was
never really set above individual virtue. “It is not”
your city which ennobles your race, it is you who
ennoble your city by good actions.’’?
ὟΥ ὡὰ
᾿ Philemon, Fragm. ed. Didot : οὐχ ἡ πόλις σοῦ τὸ γένος εὐγενὲς
ποιεῖ, σὺ δ᾽ εὐγενίζεις τὴν πόλιν πράσσων καλῶς.
witrac* se | ΔΝ οὐδὸς ἐλ δ
CHAPTER II
“GREEK CONCEPTION OF LAW.—TO WHAT EXTENT
THE GREEKS RECOGNIZED AN INTERNATIONAL
LAW
AnctenT law is an embodiment of categorical commands Genera! nature
without assigning reasons therefor. It is an imposition % 7°"! ἰανν,
of unquestioned sovereign authority which sees no
necessity for elucidation by argument or comment in
preambles or otherwise; and this sovereign authority
ultimately lies with the gods. In the early ages, law
and religion were so closely interwoven that it is
dificult to say where religion ends and law begins.
Indeed, law is religion as applied to the social, civic, Law and
and political life. To commit an infraction of the law "8"
is to commit an offence against the gods, who must be
then duly appeased. For the gods are deemed to be
themselves the originators of the laws. Thus the
Lacedaemonians regarded Apollo, not Lycurgus, as
their real law-giver ; the Cretans attributed their laws
to Jupiter, not to Minos. Again the Romans believed
that Numa had written simply at the dictation of the
goddess Egeria, whilst the Etruscans derived their legis-
lation from Tages.
But the gods are not always consistent,—they are The ancient
often given to caprice and self-contradiction. They are godsnatehent
regarded as unchanging in themselves, though their
behests often vary with the varying circumstances and
ideals of their devotees. However, their seemingly
superseded commands are not in reality abrogated ;
they remain side by side with the new or modified
Mere addition dispositions. Complete nullification would be a stigma, |
of new laws
rather than
abrogation.
Ready
obedience to
the laws.
Religion and
law—twin
companions.
44 RELIGION AND LAW
involving an acknowledgment of imperfect wisdom.
Thus, in the code of Manu the earlier law establishes
the right of primogeniture ; later, another law prescribes _
equal division amongst the sons, without necessarily —
cancelling the previous provision. Again, Solon’s code
did not of necessity abolish Draco’s; there may have ©
been in the later law a tacit assumption of the non= —
applicability of the Draconian legislation, but there was —
no formal act indicating its abrogation.’ 3
In every case to serve the laws is, as Plato insists, to ὦ
serve the gods.2 In the Crin, Socrates is represented —
as laying down his life because the laws demand it of ©
him ; disobedience would be sacrilege. Ihering,? dis-
coursing on the influence of religion on law, terms —
them twin companions, which, in their early stages of —
evolution, are in constant communion aiding and ~
supplementing one another ;—“ Recht und Religion —
sind ein- Zwillingspaar, das tberall, wohin wir in der —
Geschichte blicken, seine Kinderjahre in innigster Ge-—
meinschaft verbringt, sich gegenseitig helfend und ergan-
zend.” For a long time did laws retain their sacred
character. In Rome it was not thought sufficient for
the unanimous decision of the people to make a law; it -
was necessary for the pontiffs to give their approval,
and for the augurs to attest that the gods were propi-
tious respecting the proposed law. As Dionysius says : *
eas sin ἐσ
ne
1Cf. Andocides, De mysteriis, 83: Ἔδοξε τῷ δήμῳ, Τισαμενὸς εἶπε,
πολιτεύεσθαι ᾿Αθηναίους κατὰ τὰ πάτρια, νόμοις δὲ χρῆσθαι τοῖς
Σόλωνος, .. ‘i. - χρῆσθαι δὲ καὶ τοῖς Δράκοντος θεσμοῖς, οἷσπερ ἐχρώμεθα
ἐν τῷ ἢ. πρόσθεν xpovm,—See also Pollux, ix. 61 ; Demosth. lu Leptinem, —
158; In Evergum, 71.—Aulus Gellius thus comments on the disuse
of the Draconian code: “Draconis leges, quoniam videbantur acer-
biores, non decreto iussoque, sed tacito illiteratoque Atheniensium
consensu, obliteratae sunt” (xi. 18).
gua
2 Laws, vi. 762 Ε.
3 Geist des rimischen Rechts, vol. i. pp. 256 seg.; cf. Fustel de |
Coulanges, La cité antique, passim.
4ix. 41: τὰς μὲν φρατριακὰς ψηφοφορίας ἔδει προβουλευσαμένης
τῆς βουλῆς καὶ τοῦ πλήθους κατὰ φράτρας τὰς ψήφους ἐπενέγκαντος,
=
=
=r |
~
ATHENIAN RELIGIOUSNESS 45
-“JTn order to render the resolutions taken in the
assemblies of the curiae valid, it was necessary that
' the senate should make the previous order, and that
ae
the people voting in their curiae should confirm it, and
that, besides both these proceedings, the heavenly signs
and auspices should not oppose it.’’ Only with the During
Republic did this procedure fall into desuetude. On Republic
one occasion when the tribunes of the plebs proposed %¢ religious
aspect tends
_ the adoption of a law passed by an assembly of the tribes, to disappear.
a patrician said to them: ‘‘ What, then, is there you
can now pretend to take part in that requires sacrifices
and holy rites, to which the law appertains?”* Fustel Relation
between
de Coulanges thus sums up the relationship between ancient law
ancient law and religion: ‘“ Chez les Grecs et chez les 2"¢ religion.
~Romains, comme chez les Hindous, la Joi fut d’abord
une partie de la religion. Les anciens codes des cités
étaient un ensemble de rites, de prescriptions liturgiques,
de priéres, en méme temps que de dispositions législa-
tives. Les régles du droit de propriété et du droit de
succession y étaient éparses au milieu des régles relatives
aux sacrifices, a la sépulture et au culte des morts.”’ ”
Religion everywhere permeated the public and private Athenian
lives both of the Greeks and of the Romans,—at least ''S'us"es*
in their earlier history. The religiousness of the
Athenians was particularly notable. Xenophon says
they had more religious festivals than any other Greek
people,? and Sophocles makes one of his characters say
that Athens is the most pious of cities, and that if any
land knows how to worship the gods with due rites,
this land excels therein.* Plato often refers to the
καὶ per’ ἀμφότερα ταῦτα τῶν παρὰ Tov δαιμονίου σημείων τε Kal
οἰωνῶν μηδὲν ἐναντιωθέντων, τότε κυρίας εἶναι.
1Dion. Hal. x. 4: τίνος οὖν ὑμῖν ἔτι μέτεστι τῶν ἱερῶν καὶ
σεβασμοῦ δεομένων, ὧν ἕν τι καὶ ὁ νόμος ἦν.... Livy likewise refers
to the incapacity of the plebs and the tribunes to establish a law—
**...nec plebem nec tribunos legem ferre posse ”’ (ii. 41).
2 Op. cit. p. 218. 8 Resp. Ath. iii. 2 ; cf. Pausanias, i. 24.
4 Oedip. Col. 1007-8:
ΝΜ nw A 5 ,
. εἴ τις yn θεοὺς ἐπίσταται
τιμαῖς σεβίζειν, ἥδε τῷδ᾽ ὑπερφέρει.
ia ak eb Ν
46 SANCTION OF ANCIENT LAW
Ἢ δα, cael
w0en, of tas.) eet
numerous religious processions and sacrifices of his
fellow-citizens, and in one place gives a significant hint
as to the value of mere formalities as such. The
Lacedaemonians having gained several successive vic-_
tories over the Athenians, the latter despatched envoys —
to the shrine of Ammon to inquire why success was not ©
vouchsafed to them by the gods. ‘‘ We (they were tol
say) offer them more and finer sacrifices than any other —
Hellenic State, and adorn their temples with gifts, as_
nobody else does ; moreover we make the most solemn —
and costly processions to them every year, and spend —
more money in their service than all the rest of the —
Hellenes put together.” To which Ammon replied τὸ
‘The silent worship of the Lacedaemonians pleaseth |
me better than all the offerings of the other Hellenes.” *
Ancient In early times the raison d’étre of a law was for the
Saative oe most part associated with its divine origin ; as such the
consequences of its application were looked upon as
right and inevitable,—whereas in more modern times
the criterion of a law’s validity is in the people’s
acceptance of its imposition, and of the consequences it —
entails. The ancients judged the results by the law;
the moderns judge the law by the results. If the
expression may in this connection be applied, it may be ~
that the ancient law is subjective, the modern objective.”
mid ad
oe νυ:
Was there Had the ancients international law? Various modern —
international
lawamongthe Writers have expressed very disparaging opinions con-
ancients? cerning ancient international law. Thus Kent, in his
Denied by
it ὦ “ye ee. ε ,
ron Hi 1 Akibiades, ii. 148, 149: ... οἵ πλείστας, φάναι, μὲν θυσίας Kal
καλλίστας τῶν “EAAjvwv ἄγομεν, ἀναθήμασί τε κεκοσμήκαμεν τὰ
ἱερὰ αὐτῶν ὡς οὐδένες ἄλλοι, πομπάς τε πολυτελεστάτας καὶ σεμνο-
τάτας ἐδωρούμεθα τοῖς θεοῖς av’ ἕκαστον ἔτος καὶ ἐτελοῦμεν χρήματα,
ὅσα οὐδ᾽ οἱ ἄλλοι ὕμπαντες Ἕλληνες...
. φησὶν ἂν δούλεσθαι αὑτῷ τὴν Λακεδαιμονίων εὐφημίαν εἶναι
μξλλον ἢ ἢ τὰ ξύμπαντα τῶν “Ἑλλήνων ἱερά.
2Cf. Μ. Miiller-Jochmus, Geschichte des Volkerrechts im Altertum
(Leipzig, 1848), p. 226: “Der Unterschied zwischen dem antiken
und modernen Rechtzustande besteht darin, dass das Recht in der
alten Welt tiberhaupt subjectiv war, in der neuen zur Objectivitat
gekommen ist.”
MODERN OBJECTIONS 47
Commentary on International Law, stated that even the
most civilized States amongst the ancients seem to have
had no conception of the moral obligations of humanity
and justice between nations, and that no such thing as
| the science of international law obtained amongst them.
~ Martens’ Précis, says that the ancient world had not
"grasped the fundamental notion of the law of nations,
that it had no regard for man as man, or for territorial
tights ; that when a nation became powerful it invaded the
country of others, when it became weak it sought a treaty
of peace; that the stranger was regarded as an enemy
or, at least, as a spy ; that the normal state of nations
was war, during which everything was deemed per-
-missible; that religious and political exclusiveness
characterized all international relationships.2, The same
writer adds that even when treaties were entered into
they were not respected ; and so far as ambassadors are
concerned, the privilege of inviolability was accorded
to them not through any legal sanction, but simply
Vergé, in his Introduction to the French edition of verge.
through religious sentiment. According to Laurent : * Laurent.
** Les Grecs bien que fréres [referring to an expression
of Plato], ne se croyaient liés ni par le droit ni
par l’humanité; ils ne se reconnaissaient d’obligations
+P. 31.
_ 2G. F. de Martens, Précis du droit des gens moderne (Paris, 1864),
vol. i., Introd. by C. Vergé, p. viii : “C’est que l’idée-mére du droit des
gens ne s’était pas encore manifestée dans le monde.... Quant au
respect pour la qualité d’homme, pour I’inviolabilité des territoires, il
n’en était pas question : l’exclusivisme religieux et politique, tel était
alors le fondement des relations internationales. Quand un peuple se
croyait le plus fort, il envahissait ; quand il se sentait le plus faible, il
demandait a traiter; l’étranger était un ennemi, ou tout au moins, un
espion. En temps de guerre chacun se croyait tout permis ; injuste
dans ses origines, barbare dans ses procédés, la guerre était l’état
normal des populations anciennes, comme la paix semble devoir étre
état normal des nations modernes.”
8 Ibid. p. 60: “... Les traités n’étaient point respectés, et |’in-
violabilité des ambassadeurs tenait moins au respect du droit qu’a
un sentiment religieux fortifié par des serments et des sacrifices.”
4 Op. cit. vol. ii. p. 117.
Maury.
Guizot.
Wheaton,
48 MODERN OBJECTIONS
réciproques que lorsqu’un traité les avait stipulées.
notion de devoirs découlant de la nature de l’homme
reconnue par les philosophes n’entra pas dans le domaine
des relations internationales.” This statement is cited
without question or discussion or personal investigation
by Maury,' and the same conception is entertained by
Guizot :? “ Dans l’antiquité paienne, méme sur ses plus
beaux théatres et dans ses plus beaux jours, les étran-
gers étaient desennemis. A moins que des conventions
particulieres et précises n’eussent été conclues entre
deux nations, elles se considéraient comme absolument
étrangeres l’une a l’autre et naturellement hostiles. :
force présidait seule ἃ leurs rapports ; le droit des gens”
n’existait pas. A peine les plus grands esprits de
l’antiquité, Aristote et Cicéron, en ont-ils congu quelque
idée ; 4 peine rencontre-t-on dans histoire entre les”
Etats divers quelques instincts vagues et passagers de
droits et de devoirs mutuels.’’ Again, Wheaton, follow-
ing Mitford, asserts that the Greeks considered they
had no obligations to other States apart from those
regulated by an express compact ; that the ἔνσπονδοι,
the parties to the contract, alone benefited by the rights
and obligations thus agreed upon, and that the ἔκσπονδοι,
the States not parties thereto, were in the position of
outlaws. Further, it is urged that in the ancient world
the law of might was universal ; that (on the authority
of Cicero* and Plutarch*) the Athenians publicly con-
tended that all lands bearing wheat or olives belonged
to them of right; that even Aristides the Just (whom
Plato had placed above Themistocles, Cimon, and
Pericles ὅ) was guided by State interest rather than by
justice ;® that the genius of Plato constructed the
noblest theory of the just and the beautiful, but when he
applies his ideas to the law of nations, he draws a dis-
tinction between the Hellenes and the barbarians ; that
1A. Maury, Histoire des religions de la Gréce antique, 3 tom. (Paris,
1856-9), t. ill. pp. 401-2.
2 Léglise et la société chrétiennes en 1861 (Paris, 1861), c. xiv. p. 101.
3 De Repub. iii. 9. 4 Alib. 15. 5Plut. Aristid. 25. Ibid.
ἢ
Ι
THEIR UNTENABILITY 49
this narrow attitude of State interest, irrespective of all
other considerations, represents “le dernier mot de
Vantiquité sur la justice internationale.”? Finally, the
argument has been advanced that owing to the all-
pervading influence of religion in antiquity, whatever
rules existed to regulate international relationships were
jalways based on the sacred law, and formed an integral
} rtion of it, so that a body of rules resting on such
᾿ξ ceringe Stufe,”® as a German writer slightingly puts it, Heffter.
‘ean scarcely be considered the “law of nations.”
Now all this criticism is largely untenable. It 15 Objections to
extreme and one-sided. It fails to take due account of ‘hese, writers
the differences in ancient conditions, of the circumstances
‘surrounding earlier stages of evolution in general, and
‘of legal development in particular. It sees imperfec-
‘tions and deficiencies in a system of things, and forth-
with condemns the entire system. It sees arbitrary or
cruel acts in this or that quarter, at this or that epoch,
and the conclusions it jumps at are immediately applied
to all times and places in the ancient world. It regards
the speculative constructions of the philosophers pro-
ceeding in their tentative argument in accordance with
a given ideal and from certain postulated premises, and
lays hold of sundry implications and conclusions thereof,
which,—failing to exercise any rational discrimination,—
it immediately takes to represent the real facts and
conditions of the time. Besides adverse critics for the
most μὴ speak as though modern international law is
a perfect science, comprising a fully systematized body
of universally accepted doctrines. But, in spite of our
boasted advance of twenty centuries beyond the Greeks
and the Romans, there are those who deny that there
exists even to-day any international law at all, at least
1 Laurent, op. cit, t. ii. p. 190.
2A. W. Heffter, Das Europaische Volkerrecht der Gegenwart, ed.
F. H. Geffcken (Berlin, 1881), p. 12: “ Will man nun dieses das
Vélkerrecht der alten Welt nennen, so lasst sich nicht widersprechen ;
gewiss stand es auf sehr geringer Stufe; es war ein Teil des Religions-
rechts aller oder doch bestimmter Nationen.”
D
50 INTERNATIONAL LAW RECOGNIZED
in the strict sense of law. For example, quite recently
a member of parliament, who is also a lawyer conversant
with international law, said in the House of Commons:
“What moment had Mr. Asquith chosen to forsake.
the two-Power standard, and in Dreadnoughts barely.
to maintain a one-Power standard? He had chosen a
moment when the public law of Europe was not worth
the documents on which its precepts were inscribed,
when treaties were torn up at the dictation of armed
power, when cold and undisguised aggression pursued
its course without hindrance or correction.” If this be
true then it is, to say the least, ridiculous to assume a
censorious attitude with regard to the ancient law of
nations. In any case, this cited statement is (making
due allowance for its consisting in rhetorical flourish),
no more erroneous than the unqualified captious ais
ἢ
vations of the above-mentioned and similar writers.
Difficulty Where human beings and human affairs are concerned,
generaliza- generalizations of an extreme character are never iia
ΛΩΝ. Hyperbole hinders the arrival at truth no less effectually
than superficial investigation or traditional prejudice.
International law, if it is or can be a science at all, is, or
can be, at most, a regulative science, dealing with the
conduct of States, that is, human beings in a certain
capacity ; and its principles and prescriptions are not,
like those of science proper, final and μβε σα
The substance of science proper is already made for
man; the substance of international law is actually
made by man,—and different ages make differently.
Existence Ample evidence will, it is hoped, be adduced in the
Sees following pages to prove that more than mere rudiments
law in Greece of an international law existed in ancient Greece and
' Rome; that the ancients were by no means entirely
indifferent to the moral obligations of justice and
humanity between peoples, that they were not regard-
less of the elementary rights of the individual, that the
stranger was not necessarily looked upon as an enemy
or a spy, that the normal state of nations was not war,
δ᾿ oe
JURIDICAL NATURE OF RULES 51
-—unless this refers to the assumption of a certain hos-
‘tile attitude towards the barbarian. But such attitude
ewas not in reality (apart from utterances of a merely
theoretical description) any more hostile than that of the
smodern civilized States with respect to the uncivilized
mpeoples. Further, it will be seen that the ἔκσπονδοι Real
were not deemed outlaws, that liberty to break treaties pessoa Aa
Nwas no more admitted than it is now. The modern and
ἶ ἔνσπονδοι.
wmisapplication of the terms ἔνσπονδοι and ἔκσπονδοι 15
generally due to disregard of the fact that ““ peace” with
ithe Greeks, as with the Romans, meant two things: in
ithe first place, a formal treaty of peace, a peace by
scovenant, concluded with solemn ceremonial, with the
jindispensable oaths and libations; and secondly, it
jimplied the natural and ordinary condition of civilized
Shuman beings and regularly organized communities.
_ And as to the argument that because a certain code Does
of conduct in international relations draws its sanction crepe ον
‘from religion, it cannot therefore be described as pos- destroy the.
|sessing the character of international law, the answer is international
that it is of no consequence at all where the sanction *”’
lies ; since the fundamental question is whether there is
a generally admitted rule regulating certain international
| relationships, and whether there exists any potent sanction
whatever similarly recognized as enforcing the obser-
vance of that rule. The religious sanction did not
F impair but added force to the legal and political sanction.
Religion in antiquity was co-extensive with the whole
of life ; it did not form merely a portion of it set apart
for some small section of the week or year ; it was at the
bottom of law, because it was at the bottom of life ; and
the admitted insistence and protection of the law by the
gods, in view of its general acceptance by men, does not
necessarily deprive it of its character as law. The j juri- Juridical
'dical nature of ancient rules obtaining between States is poeple Τὰ
attested by their consciousness of being bound by the
obligations implied, by their regarding the due obser-
vance thereof as just, and violation unjust and punishable.
_And these rules are capable of international application,
Usage as a
source of the
law of nations.
Is Laurent’s
criticism
valid ?
The
νόμιμα
Ἑλλήνων.
No sharp
distinction
between
public and
private law.
52 PUBLIC AND PRIVATE LAW
as soon as there is a general recognition of the juridical,
equality and reciprocity of States. This condition was
not wanting, at least in the case of the constituent
States of the Hellenic circle, and in that of Rome during
her first period of history, that is to the end of the
second Punic war. |
Laurent, curiously enough, puts aside the ruled
established by usage, “les regles que l’usage a établies”
pour les relations des peuples,” as not being of sufficient
importance, and not deserving of being raised to the
“dignité d’une science.” Now in default of such
usages, the outstanding source of international law
would, of course, be express compacts, embodied in
documents, definitely prescribing the rights and duties”
of the parties thereto ; and, what is still more curious,
of the numerous important diplomatic instruments
which were in existence at the time he wrote (for ex-
ample, the compilation of Barbeyrac giving the actu: ϊ
text of, or otherwise indicating, some five hundred
public treaties, etc., concluded before the Christian era),
not a line is specifically quoted by him. Thus, in the
one case an attempt is made to support an argument by
means of a petitio principii, in the other by a suppression
or disregard of relevant testimony of vital significance. — :
The political constitution of the Greek States was for
them the primary object of consideration. Legislative
activity was thought to be subservient to the preserva~
tion of the fundamental elements of the constitution.
Laws, private or public, were regarded as essential not
(as the Romans mainly considered it) to adjust i
relationships of individuals, but as a means of supporting
the constitutional structure. And so, notwithstanding
certain apparent differences between private and public.
procedure in many of the Greek States, and particularly”
in Athens, there was no hard-and-fast distinction be=
tween private and public law. It was clearly perceived,
however, that different societies possessing differently
organized constitutions, would need different laws 5
UNIVERSAL AND PARTICULAR LAW 53
‘nature. Hence the distinction between private or par-
jticular law, ἴδιος νόμος, and common or universal law,
"κοινὸς νόμος ; and it is this κοινὸς νόμος which is the great
- source of the law between nations.’
Ϊ Aristotle, in his Rhetoric, thus notes the difference : Aristotle on,
41 regard law as either particular or universal, meaning ana
iby: δ ticala’ the law ordained by a particular people for | pene:
“its own requirements, and capable of being sub-divided
‘into written and unwritten law, and by ‘universal’ the law
of nature. For there exists, as all men divine more or
Tess, a natural and universal principle of right and wrong,
independent of any mutual intercourse or compact.” ?
He further alludes to the principle to which Sophocles
makes Antigone appeal when she avows that it is right
_to bury Polynices in defiance of Creon’s edict, because
it is ight 3 in accordance with the law of nature:
ov γάρ τι νῦν ὝΕ κἀχθὲς, ἀλλ᾽ ἀεί TOTE
(yn ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου᾽ φάνη.8
(Not of to-day nor yesterday is this a law, but ever hath it life,
and no man knoweth whence or how it came.)
Aristotle goes on to refer to Empedocles who, insist-
ing that it is wrong everywhere to put any living thing
to death, says:
| ἀλλὰ τὸ μὲν πάντων νόμιμων διά τ᾽ εὐρυμέδοντος
αἰθέρος ἠνεκέως τέταται διά τ᾽ ἀπλέτου αὖ γῆς."
(The law universal doth evermore pervade the omnipotent
heaven and the boundless earth.)
It is to be observed that in the tenth chapter, Aristotle
similarly dividing law into particular (ἴδιος), and uni-
|
1On the conception of the Hellenic κοινὸς νόμος, see A. Bonucci,
La legge comune nel pensiero greco (Perugia, 1903).
ἡ Riket. i. 13: Λέγω δὲ νόμον τὸν μὲν ἴδιον τὸν δὲ κοινόν, ἴδιον μὲν
τὸν ἑ ἑκάστοις ὡρισμένον πρὸς αὑτούς, καὶ τοῦτον τὸν μὲν ἄγραφον τὸν
δὲ γεγραμμένον, κοινὸν δὲ τὸν κατὰ φύσιν. ἔστι γάρ, ὅ μαντεύονταί
τι πάντες, φύσει κοινὸν δίκαιον καὶ ἄδικον, κἂν μηδεμία κοινωνία πρὸς
ἀλλήλους ἢ μηδὲ συνθήκη...
8 ϑορῇ. Aniig. ll. 456-7. Πρὸ Φύσεως, ll. 380-1, ed. Sturz.
The written
law, and the
common law of
mankind.
Natural and
conventional
justice,
Force of
custom,
54 NATURAL AND CONVENTIONAL LAW
versal (κοινός), defines particular law as the written law,
the statutes of any given State, and universal law as the |
unwritten (@ypados), but universally recognized prin=
ciples of morality.1. The universal or unwritten law of
this latter classification corresponds to the universal law
or law of nature of the former, where particular is
further subdivided into written or statutory law, and
unwritten, comprising such principles of equity, derived
from custom and usage, as possess juridical force, and.
adopted to supplement or rectify, in any manner that
appears desirable, the written law. On more than one
occasion Demosthenes compares the written law, τὸν
γεγραμμένον νόμον, with the law common to all men, τὸν.
κοινὸν ἁπάντων ἀνθρώπων.3
The same distinction is drawn elsewhere :* “ Civil
justice is partly natural, and partly conventional ; that is
natural which possesses the same validity everywhere, and
does not depend on being deliberately adopted or not
while that is conventional which in the first instance does
not matter whether it assumes one form or another, it
matters only when it has been laid down, for example,
that the ransom of a prisoner should be a mina....”
In his Politics, Aristotle states that customary laws
have intrinsically more force, and pertain to more
important matters, than written laws; and that a man
may well be a safer ruler than the written law, but not
safer than the customary law.‘
The well-known maxim of Pindar, which is quoted
1 Rhet. i. 10: νόμος δ᾽ ἐστίν, ὁ μὲν ἴδιος, 6 δὲ κοινός, λέγω δὲ
5» Ν 4“ ΄ 7 Se ” -
ἴδιον μὲν καθ᾽ ὅν γεγραμμένον πολιτεύονται" κοινὸν δὲ ὅσα ἄγραφα,
παρὰ πᾶσιν ὁμολογεῖσθαι δοκεῖ.
2 Cf. for example, ς. Aristoc. 61.
8 Nic. Eth. v. 10: τοῦ δὲ πολιτικοῦ δικαίου τὸ μὲν φυσικόν ἐστι τὸ
δὲ νομικόν, φυσικὸν μὲν τὸ πανταχοῦ τὴν αὐτὴν ἔχον δύναμιν, Kab
> ~ »“ bal [4 δὲ Ὁ » “ Ἀ θὲ ὃ 7 4 Ἢ
οὐ τῷ δοκεῖν ἢ μή, νομικὸν δὲ ὃ ἐξ ἀρχῆς μὲν οὐθὲν διαφέρει οὕτως ἢ,
ἄλλως, ὅταν δὲ θῶνται, διαφέρει, οἷον τὸ μνᾶς λύτρουσθαι..... '
4 Pol. iii, τό. 9: ἔτι κυριώτεροι καὶ περὶ κυριωτέρων τῶν κατὰ
γράμματα νόμων οἱ κατὰ τὰ ἔθη εἰσίν, ὥστ᾽ εἰ τῶν κατὰ γράμματα
ἄνθρωπος ἄρχων ἀσφαλέστερος, ἀλλ᾽ οὐ τῶν κατὰ τὸ ἔθος.
oe ὁ Te
“ὦ ἂν — ὦ.
pm
Nie Wey ’
Τα ae
MORAL AND POSITIVE LAW 55
' by Herodotus,’ that “ custom is the king of all things,”
γόμον πάντων βασιλέα, was at first taken to refer to the
_ fact that usage makes a certain thing appear right to one
' people, and wrong to another ; but afterwards was con-
ceived in the sense of the law’s sovereignty over all
| things divine and human.
Ἵ Thus, in the Digest it is stated that the philosopher
- Chrysippus began his book entitled περὶ νόμου (a treatise
‘ on law) in this manner: “ Law is the king of all things,
- both divine and human; it ought to control, rule, and
* command both the good and the bad, and hence be a
_ standard as to things just and unjust, and a director of
_ beings political by nature, enjoining what ought to be
- done and forbidding what ought not to be done.” ?
_ Natural or moral law may sometimes be found to
conflict with positive law. When Creon accused
_ Antigone of breaking the laws of the State, she Conflict of ἡ
replied that those laws were not ordained by Zeus, Chios at a
or by Justice who dwells with the gods below:
“Cr. Now, tell me thou—not in many words, but briefly—
knewest thou that an edict had forbidden this?
An. I knew it; could I help it? It was public.
Cr. And thou didst indeed dare to transgress that law ?
i An. Yes; for it was not Zeus that had published me that
edict ; not such are the laws set among men by the Justice who
dwells with the gods below; nor deemed I that thy decrees
_ were of such force, that a mortal could override the unwritten
and unfailing statutes of heaven, For their life is not of to-day
or yesterday, but from all time, and no man knows when they
- were first put forth.”
lili, 38.
2Cf_ Dig. i. 3 (De legibus senatusque consultis et longa con-
suetudine), 2: ὃ νόμος πάντων ἐστὶ βασιλεὺς θείων τε καὶ ἀνθρωπίνων
᾿ πραγμάτων' δεῖ δὲ αὐτὸν προστάτην τε εἶναι τῶν καλῶν καὶ τῶν
αἰσχρῶν καὶ ἄρχοντα καὶ ἡγεμόνα, καὶ κατὰ τοῦτο κανόνα τε εἶναι
᾿ δικαίων καὶ ἀδίκων καὶ τῶν φύσει πολιτικῶν (Gwv, προστακτικὸν μὲν
᾿ ὧν ποιητέον, ἀπαγορευτικὸν δὲ ὧν οὐ ποιητέον.
3Soph. Autig. 450 seg.:
. σὺ δ᾽ εἰπέ μοι μὴ μῆκος, ἀλλὰ συντόμως,
ἤδησθα κηρυχθέντα μὴ πράσσειν τάδε;
ΑΝ, ἤδη" τί δ᾽ οὐκ ἔμελλον : ἐμφανῆ γὰρ ἣν.
KR. καὶ δῆτ᾽ ἐτόλμας τούσδ᾽ ὑπερβαίνειν νόμους :
Moral law and
divine law
56 MORAL AND DIVINE LAW
Different interpretations have been given of the actior
and significance of the play. Thus Bockh held that
both Creon and Antigone transcended the limits of
their respective obligations, the one by an infraction οἱ
the natural or divine law, the other by disobedience 0
the conventional law ; and both are ultimately punishec
for defending principles, intrinsically sound, in a mistaken
manner. A similar opinion is that of Hegel, to the
effect that in the view of the Eternal Justice, both were
wrong because they were one-sided, but at the same
time both were right.1 The sympathies of Sophocles,
however, are wholly with Antigone; and he undoubtedly
intends to convey that she was in the right. |
Sophocles elsewhere describes the moral laws as the
offspring of the gods. ‘May destiny still find me
winning the praise of reverent purity in all words and
deeds sanctioned by those laws of range sublime, called
into life throughout the high clear heaven, whose father
is Olympus alone; their parent was of no race of mortal
men, no, nor shall oblivion ever lay them to sleep ; a
mighty god is in them, and he grows not old.”%
ati ann ate ee ae eT
AN, ov γὰρ τί μοι Ζεὺς ἣν κηρύξας τάδε,
39) ε ΄ - s “ ΄,
οὐδ᾽ ἡ ξύνοικος τῶν κάτω θεῶν Δίκη
τοιούσδ᾽ ἐν ἀνθρώποισιν ὥρισεν νόμους"
οὐδὲ σθένειν τοσοῦτον φόμην τὰ σὰ ᾿
΄ 7 > ἡ > A - ὃ
κηρύγμαθ᾽, ὥστ᾽ ἄγραπτα κἀσφαλῆ θεὼν
7 , εὐ μὴ 30 ἘῊΝ a dik -
νόμιμα δύνασθαι θνητὸν ὄνθ᾽ ὑπερδραμεῖν ;
3 ΄ a > , 3 Ose
ov γάρ τι νῦν ye κἀχθές ἀλλ᾽ ἀεί ποτε
(y ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου φάνη. ;
1 Religionsphilosophie, ii. 114. 4
2See the Introduction, p. xxii, and notes, passim, in Jebb’s edition
and translation of the Antigone.
8 Oedip. Tyr. 863 seq. :
O. ef μοι Evvein φέροντι
μοῖρα τὰν evoertov ἁγνείαν λόγων
ἔργων τε πάντων, ὧν νόμοι πρόκεινται
ὑψίποδες, οὐρανίαν
δι’ αἰθέρᾳᾳ. τεκνωθέντες, ὧν "᾽Ολυμπος
πατὴρ μόνος, οὐδέ νιν
θαντὰ φύσις ἀνέρων
4 398 ΄ ΄ [4
ἔτικτεν, οὐδὲ μάν ποτε λάθα κατακοιμάσει.
μέγας ἐν τούτοις θεός, οὐδὲ γηράσκει.
GENERAL OR COMMON LAW 57
"This idea is of frequent recurrence in Greek literature,
“Δ conspicuous instance being Plato’s Apolgia. In
HHomer and elsewhere the duty of vouchsafing hospi-
Mality to suppliants is regarded as being directly en-
Hoined by Zeus."
© The expression ‘ natural law’ is liable to misinterpre-
tation. Briefly it may be said that ‘natural’ is to be
yunderstood in the sense of ‘rational.’ Law is reason
unaffected by desire,? as Aristotle emphasizes—dv-rep
ὀρέξεως vous ὁ νόμος ἐστίν.
* One often speaks of an individual’s ‘ nature’ in the
sense of his desires, his peculiarities,—which may,
4indeed, defeat or obscure his real fundamental nature.
‘Thus positive law is essential as a corrective. ‘The
whole life of men, O Athenians, whether they inhabit
ja great city or a small one, is governed both by nature
and by laws. Of these, nature is something irregular,
‘unequal, and peculiar to the individual; laws are
jregular, common, and the same for all. Nature, if it
be depraved, has often vicious desires; therefore you
‘will find people of that sort falling into error. Laws
| dai what is just and honourable and useful ; this
‘they aim at, and when it is attained, it is set forth as a
general ordinance, the same and alike for all. And
‘that is law, which all men ought to obey for many
reasons, and especially because every law is an invention
and gift of the gods, a resolution of wise men, a
corrective of errors, intentional and unintentional, a
compact of the whole State, according to which all who
belong to the State ought to live.”
A certain application of these conceptions and distinc-
‘tions is seen in the sphere of the Greek law of nations.
We find writers frequently referring to “the laws of
1Cf. the article by J. Bryce on the Law of Nature, in his Studies
in History and Jurisprudence, Oxford, 1901, vol. ii. pp. 112 “6.
2 Polit. iii, τό. 5.
3[Demosth.] ¢. Aristogiton, i. τό... δόγμα δ᾽ ἀνθρώπων φρονίμων,
ἐπανόρθωμα δὲ τῶν ἑκουσίων καὶ ἀκουσίων ἁμαρτημάτων, πόλεως δὲ
συνθήκη κοινή, καθ᾽ ἣν πᾶσι προσήκει ζῆν τοῖς ἐν τῇ πόλει.
The term
‘natural law’
often
misinterpreted,
Relation of
positive law to
natural law.
Expressions
for general or
common law.
Presence of
many elements
does not
necessarily
imply a perfect
system.
Unwritten law
—in the law of
nations.
58 INTERSTATAL LAW—UNWRITTEN
Hellenes,” “the common laws of Hellas,” “the law
of mankind,” “the laws common to men,” etc. Hene
expressions such as the following are constantly used
τὰ τῶν Ἑλλήνων νόμιμα :1 τὰ πάντων ἀνθρώπων νόμιμα : 3
τὰ κοινὰ τῶν “Ἑλλήνων νόμιμα : κοινοὶ νόμοι ; κοινὰ δίκαις
τῆς Ἑλλάδος 3 τὰ κοινὰ τῶν ἀνθρώπων ἔθη (καὶ νόμιμα) 3° ὁ
κοινοὶ τῶν ἀνθρώπων νόμοι ; 4 τὰ κατὰ κοινὸν ὡρισμένα δίκαις
παρ᾽ ἀνθρώποις - τὰ πρὸς τοὺς ἀνθρώπους δίκαια (καὶ
πρὸς τοὺς θεοὺς ὅσια) 3° νόμιμα πάσης (συγχέοντας) Ελλάδος,
and the like. |
Though a large number of important rules anc
practices of international law are implied ἴῃ thesé
expressions, one must not expect to find, as Schoemanr
points out, an entire system of clearly formulated legal
dispositions. ‘‘Darunter sind aber keine bestimmt
formulirte und ausdrtcklich verabredete Satzunger
zwischen verschiedenen Staaten.’ 8 : j
The underlying principles belong mainly to the
class of unwritten laws—vouo aypapor—deriving their
force and juridical validity from the regular insistence
of tradition and inveterate custom, and having for theit
sanction the will of the gods. ‘Sie gehéren sammtlich
zur Classe der ungeschriebenen Gesetze (νόμοι ἄγραφοι)
die als Sitte und Herkommen gelten, und zu dere
Beobachtung man sich durch eine sittliche Scheu odet
durch religiése Verehrung der Gétter verpflichtet fuhlt,
von denen sie herruhren und den Menschen ins Herz
geschrieben sind.” ® ;
1'Thuc. iv. 97; Diod, Sic. xix. 63.
2Thuc. i. 33 i. 118; Plut. Pericl. 17; etc. '
8 Polyb. i. 70. 63 iv. 67. 4. 4 [bid. ii. 58. 5 Tbid. iv. 6, 11.
6 [bid. xxii. 13. 8; ii. 8. 12. 7 Eurip, Supp/ 311. :
8G. F. Schoemann, Griechische Alterthiimer, 2 vols., 4th ed. by
J. H. Lipsius (Berlin, 1897-1902), vol. ii, p. 2. |
9 Jbid.—On the force and significance of the unwritten law gener-
ally in antiquity, and especially in Greece, see R. Hirzel, “Aypados
νόμος, in Abhandlungen der philologisch-historischen Classe der koniglich
sachsischen Gesellschaft der Wissenschaften, Bd. xx. No. 1 (Leipzig,
1900), pp. 23 “6.
LAWS OF GREEKS AND LAWS OF MEN 59
' Further, a certain distinction was drawn between the Distinction
“Jaws of the Hellenes,” and the “laws of all men,” “inweot the
Nbased on the broader distinction between Greeks and Melcnes "and
barbarians. The νόμιμα τῶν Ἑλλήνων, consisting partly all men,”
"οὗ natural or of customary law, and partly of conven-
‘tional law, based on express compacts, were applicable
‘primarily to the members of the Hellenic circle, but
j were sometimes also adopted, as a special concession
“or as a recognition of a broader reciprocity, in relation-
iships with non-Hellenic communities. The νόμιμα τῶν
ἀνθρώπων, consisting almost exclusively of traditional
‘usages and principles spontaneously enforced by human
“conscience, were thought fit to be applied to men
as men, and irrespective of race or nationality.
{ Now the difference between these two classes was
“not necessarily a difference of kind, as a good many
‘writers seem to imagine, but a difference of extent,
ἃ difference—to borrow a term from logic—of denota-
tion. The greater portion of the latter class was also
contained in the former ; but there were many rules in
the former class which were but rarely extended to
the latter. There was never, at all events, a hard-and-
fast line of demarcation between the two. There is
manifested, no doubt, in several Greek writers, particu-
larly in Euripides, a certain antagonism between
Hellenism and ‘barbarism.’ But such contrast, involving
an opposition to and disparagement of non-Hellenic
peoples, arises mainly from sentiments of civic and
national pride, from a perception of the intellectual and
artistic pre-eminence of the Greeks, from a conviction of
a special bestowal of favours on them by the gods.
Besides, the expressions, particularly so the more
general one—vouma τῶν ἀνθρώπων͵---αῖὲ frequently
-employed with varying contents; for example, the
νόμιμα τῶν ἀνθρώπων are sometimes mentioned in the
sense of universal law, and as a criterion of the moral
validity of any law, apart from being used in reference
1E.g. in his Medea, 536 seg., 133 seg.; Hecuba, 1199 seq;
_ Heraclid. 130 seq. ; Iphig. in Tauris, 1399 seg. ; Androm. 173 seg.
Ancient
elements of
international
law.
Difference
between the
ancient and
the modern
conceptions.
60 ANCIENT INTERNATIONAL LAW
to relationships with the barbarians. Thus, th
slaughter of, the Persian envoys by the Athenians
and Spartans was confessedly a transgression of th
νόμιμα τῶν ἀνθρώπων, as a law of the human race gene
ally, and not merely as a law applicable exclusively
the barbarians. And Xerxes recognized and submitted
to such general law, when he answered, on suggestio 8
being made to him that he should resort to simila
retaliation, that he would not be like the Lacedae-
monians, for they had violated the law of all nations by
murdering his heralds, and that he would not do the
very thing which he blamed in them.! :
That the ancients possessed a complete system o}
international law no one can justifiably assert. That
they possessed important elements thereof which con-
tributed greatly to subsequent juridical evolution is
undeniable. Practice was not invariably consistent, and
was not always in accordance with recognized principles.
But is this the case even now in our more enlightene
times? To deny the existence of ancient internation
law in toto, simply because a perfectly organized system
did not obtain, is, to say the least, a gross injustice
to the ancients. International law is based on the
recognition of the principles of juridical equality and
reciprocity of nations ; and, in respect of the interstatal
relationships and practices, these principles were, as the
later chapters will amply show, in a large measure
recognized and applied, in spite of the assertion by this
or that race of its intellectual superiority, or by this
or that State of its civic and constitutional pre-
eminence. To lay claim to intellectual, material, or
other predominance does not of necessity eliminate
entirely equality before the law.
Of course the principles of equality, reciprocity, and
subservience to the law were not then as explicit and
t Herodot. vil. I 36: . οὐκ ἔφη ὁμοῖος ἔσεσθαι Λακεδαιμονίοισι"
κείνους μὲν γὰρ συγχέαι. τὰ πάντων ἀνθρώπων. νόμιμα, ἀποκτείναντας
κήρυκας" αὐτὸς δέ, τὰ κείνοισι ἐπιπλήσσει, ταῦτα οὐ ποιήσειν... ..
ANCIENT AND MODERN VIEWS 61
firmly established as they are now. To admit this is
inot to imply the admission that international law then
Mwas a non-entity, but simply to concede that it had
ποῖ the breadth, the completeness, the firm basis,
Tthe scientific co-ordination of the modern law. Natur-
ally the ancients had not yet arrived at the modern
sonception which, as Fusinato remarks, presupposes
Nthe voluntary recognition of law on the part of
ἸΟΓΡ ganized States in free co-existence, equal and autono-
inition of law being related to the insistence on a strictly
jpositive sanction. Various writers urge that the law of Notion of
jnations is, on the one hand, inconsistent with the notion ero se
sof a ‘chosen race,” based on the grounds either of face inthe —
religion or of culture, and, on the other, with the notion
ἮΝ universal dominion ; and: further, that its rational
development is impossible where a stranger is regarded
‘as an enemy, or an infidel, or a barbarian. To this
effect writes a modern German author: “ Das Vélker-
‘recht ist unvertriglich mit dem Gedanken eines, 561
658 durch einem besonderen Bund mit der Gottheit, sei
es durch eine wberlegene und eigenartige Kultur
auserwahlten Volkes.’ So lange im Sinne des judi-
schen wie des klassischen Altertums der Staatsfremde
als Feind, als Unglaubiger oder als Barbar galt, konnte
ein Voélkerrecht sich nicht entwickeln. Das Vélkerrecht
ist aber auch unvertraglich mit dem Gedanken einer
Weltherrschaft....”2 The answer to this contention
has already been suggested in general terms. It has
already been pointed out that the absence of a complete
_ 16. Fusinato, Dei feziali e del diritto feziale (in Atti della Reale
Accademia dei Lincei, 1883-4. Serie Terza. Memorie della Classe di
Scienze morali, storiche e filologiche, vol. xiii.), p. 455: ‘*Certamente
1 Romani, come tutti gli altri popoli dell’ antichita, non ebbero πὲ
potevano possedere un diritto delle genti secondo il concetto
moderno, il quale presuppone il volontario riconoscimento del diritto
da parte degli Stati organizzati in libera coesistenza uguale ed
autonoma.’
_ #F, von Liszt, Das Volkerrecht systematisch dargestellt (Berlin,
1906), p. 15.
phe 53
hae rss
“* Tnter-
municipal
law”’ and
international
law.
‘ Universal’
law and
international
law.
, 4 ΄ 4 ,
OmoyAwacov καὶ θεῶν ἱδυματά τε κοινὰ καὶ θυσίαι ἤθεα
62 INTERMUNICIPAL LAW
and scientifically systematized body of law does not
in itself, render juridically inapplicable the elements
that do exist; and that the denial of equality wa
based on a speculative theory, which was more Ο
the nature of a phantasm than of an effective guide
to practice. More specific answers will be given in the
succeeding chapters which will present such a compre-
hensive body of material as will suffice, it is hoped,
to disprove traditional and oft-repeated, undiscriminat:
ing opinions. ;
Again, it has been said with regard to Greece that her
international law was more of the character of an inter=
municipal law,! on the ground of the admitted natural
bonds between the Hellenic States, based on the com-
munity of origin, customs, language, religion,—as
Herodotus says: τὸ (Ἑλληνικὸν ἐὸν ὅμαιμόν τε κι
ὁμότροπα.Σ But the Greek municipalities being autono-
mous and equal before the law, they present an adequate
correspondence to the modern civilized States, consti-
tuting the family of nations ; and their ‘intermunicipal
law’ offers a sufficiently valid counterpart to modern
international law. The Roman ius gentium and lex
naturae furnished a more secular basis for the law of
nations, but the religious element in the Greek law
cannot per se invalidate its juridical significance and
application. Further, when it is contended* that the
Hellenic law of nations was rather ‘ universal’ than
‘international,’ the answer immediately follows that the
greater part of international law, even of the most ideal
code as constructed by modern theorizers, either is sub-
stantially such ‘ universal’ law, or is based on it; the
contrary is, indeed, inconceivable. Neither universality
nor particularity (nor, in truth, anything else) obliterates
or even diminishes the international character of rules
and practices when, in point of fact, such rules are regu-
1Cf. T. A. Walker, History of the Law of Nations (Cambridge, 1899),
p- 38.
2 vill. 144. 8 Walker, of. cit. p. 43.
MAIN ELEMENTS THEREOF 63
arly insisted on and such practices regularly applied
metween independent and sovereign nations.
© Apart from the pride of race and the hostile attitude to Patriotism
Woreigners (which have been so much misrepresented by jn > Nea!
modern writers who have made their own exaggerated developmen
estimate testify to the very impossibility of ancient inter-
mational law), ineradicable patriotism and ceaseless rivalry
jof the Greeks prevented to a large extent the more rapid
and complete development of the law of nations. The
mecessary condition of political equilibrium was absent Political
for the most part. The Corinthians’ reproach that ne
“Athens would neither remain at rest herself nor allow
tranquillity to others was equally applicable to other
peoples among the more powerful city-states, and
ὧν ecially so when in the ascendant. Confederacies were
: Sn established for the protection of common interests,
sometimes even for self-preservation, the most powerful
member assuming of its own accord, or being conceded
ty the remaining members, the hegemony which invart-
ably tended to develop into sovereignty. Hence a
‘continual conflict between the necessity of alliances and
a spirit of independence. Athens and Sparta were
ithe arch-rivals. ‘To obtain supremacy they constantly
fomented discords, and so the balance of power in Hellas
was ever in a state of oscillation.
_ The fundamental cause militating against the pre- Main causes
Bevation of political equilibrium was the existence of so ® “"*
many States, and of such small States, in comparative
)proximity to each other ; and, as a consequence of this,
ithe fact that the citizens of the respective States were
ithe soldiers, and the soldiers were the citizens,—the
same individuals fighting in the wars and voting in the
assemblies.
However, Greek international law, such as it was, Ip any case,
. . reek law O
Shows a decided advance on antecedent law both in nations an
‘theory and in practice. The main matters it comprised *0yarnc αν.
are as follows : various questions of private international 44.5. abject.
Jaw, naturalization, position of aliens and especially matter
Preservation
of records
of ancient
practices,
Inscriptions,
64 RECORDS OF ANCIENT PRACTICES
of metoecs (domiciled aliens), proxenia (analogous ¢
the modern consular system); questions of public inte
national law in time of peace, such as hospitality, righ
of asylum, extradition, position of ambassadors, and chats
acter of diplomatic negotiations, treaties and alliances,
colonies, balance of power and right of intervention, im
ternational arbitration; in time of war, questions relating
to sufficient cause of war, declaration, truce and armistice
ransom of prisoners, spies, hostages, reprisals and andro-
lepsia, a certain neutralization, and various mitigations
warfare, including regulations as to burial of the dead,
treatment of temples and graves, and those who took
refuge in temples, as also priests, erection of trophies,
neutrality ; ; some maritime provisions concerning t
treatment of the shipwrecked, nautodikai and jurisdiction
of the admiralty court, embargo, blockade, piracy, ete” 4
The records of the practices relating to the above
matters, as well as to those of Roman international law
are to some extent preserved in inscriptions on bronze 78
or marble tablets, of which a large number of texts 8
extant,!and partly in the works of contemporary hist ὃ
cal and other writers. Though a great many doct
mentary records have been lost, as, for example, that οἱ f
the famous peace of Antalcidas concluded with Persia i in
387 B.c., the science of epigraphy has been a veritabh
revelation of ancient international law, and an invaluabl
supplement to and corrective of the historical writin
On the other hand, many of the documents which 8
preserved regulate the differences only of obscure an
unimportant cities; nevertheless they throw light o:
the negotiations that probably took place between thi
more considerable States. Further, various public an
interstatal transactions are inferred from the fwends a ΟἹ
medals and coins.2. A more fugitive index, as ee ει
aoe --τττ᾿---
1 Some useful collections, as well as the great Corpus inscription
Graecarum, are given in the bibliography.
2Cf. A. de Barthélemy, Manuel de numismatique ancienne (Par
1851), passim; and, more particularly in the case of προς.
Monimsen, Geschichte des romischen Minzwesens (Berlin, 1860), passim ;
RECORDS OF ANCIENT PRACTICES 65
Mpoints out, is found in the reported names of galleys,
2.8 - Εἰρήνη (peace) ; Eipijyy καινή (new or recent peace) ;
1E ρήνη τῶν αἰχμαλώτων (relating to prisoners of war, or
booty) ;" “Oudvoa (harmony, or unity);? Συμμαχία
f alliance), etc.
ftestimony of Herodotus, Thucydides, Demosthenes,
Xenophon, Polybius, Diodorus Siculus, Dionysius,
Plutarch, Livy, Cicero, Aulus Gellius, certain texts in
| aius and the Digest, and many others.’ Of the prin-
«ciples and practices more especially relating to the
ssecond century before the Christian era, Polybius is an
‘invaluable authority. He is, on the one hand, far more
sliable than writers like Livy in respect of the narration
τοῦ facts and events, and, on the other, is more profound
vand has a much greater historical grasp and a more
accurate notion of the historical method. He indicates
tthe outlines of a “family of nations,” comprising the
reat Powers of Rome, Carthage, Macedonia, Syria and
‘Egypt, and Parthia and Bactria ; ; States of secondary
rank like the commonwealths of Hellas, the kingdoms
τοῦ Asia Minor, Pergamos, Bithynia, Cappadocia, Pontus,
and Paphlagonia; and finally, semi-barbarous_princi-
palities in Illyria and Numidia. The contribution of
!Polybius has not incorrectly been described as presenting
oa of a philosophic law of nations—‘‘ Gebaude
es philosophischen Volkerrechts.”® He not only
acted as a historical reporter of events and rules, but
‘examined the significance and applicability of the same,
| 1 Op. cit., in the Introduction.
_ A. Boeckh, Seewesen der Athener (Berlin, 1840-51), p. 86.
8 Ibid. p. go. 4 Ibid. p. 92.
5 See bibliography as to the ancient writers consulted.
_ ®R. von Scala, Die Studien des Polybios (Stuttgart, 1890), vol. i.
i 323 : “ Auf dem Grunde peripatetischer Gelehrsamkeit aufgebaut,
ter gegriindet durch die an der Bekanntschaft mit Rom gewon-
menen Gesichtspunkte, das noch ganz anders als die orientalischen
(Volker eine Kulturmacht darstellt, erhebt sich das poly bianische
‘Gebiude des philosophischen Volkerrechts.”
E
| As to the historical and other writers we have the Historical
No ancient
works on
international
law.
Grotius’
mistake.
66 RECORDS OF ANCIENT PRACTICES
and made critical suggestions in favour of such ai
international policy as would have redounded to the
greater harmony and honour of the States concerned. —
Ot Greek or Roman works dealing specially with
international law we have scarcely a trace. Demetrius
Phalereus (c. 345 B.c.-283 B.c.) is said to have written
a treatise, and Varro (166 38.c.-27 B.c.) is reported
by Aulus Gellius+ (and also cited by him on the questiot
of truces) to have written a contribution on war and
peace (De bello et pace) as a part of his principal work,
Antiquitates rerum humanarum et divinarum. We have,
of course, in the Institutes of Gaius, and in the Digest
and Codex of Justinian certain scattered texts apper-
taining to the law of nations as recognized in the Roman
civil law. !
By a curious inadvertence, Grotius says that Aristotle
wrote a treatise on the laws of war: ‘“ Veterum philo-
sophorum nihil exstat huius generis neque Graecorum,
quos inter Aristoteles librum fecerat cui nomen
Δικαιώματα πολέμων... .᾽ 3% and, although the error was
pointed out by Barbeyrac, in his edition of Grotius’
work, Sir James Mackintosh repeated it in his Discourse
on the study of the law of nature and of nations, originally
delivered as lectures at Lincoln’s Inn, 1799.
mistake is explained by a phrase of Ammonius the
Alexandrian grammarian (fl. c. 400 a.p.), and by the
substitution of the word πόλεων for πολέμων in the title
of one of Aristotle’s γογκϑ---Δικαιώατα τῶν πόλεων (the
‘“‘laws of States,” not, as Grotius had read, the “laws
of war’’), of which some fragments have reached us. ~
1 Noct, Att. i. 25.
2 De jure belli et pacis, Proleg, § 36.
CHAPTER III
IUS GENTIUM, AND KINDRED CONCEPTIONS
AmoncstT the ancient nations, the Romans possessed Difference
the greatest juristic and political genius. The Greeks Qimna
_ theorized, experimented, made tentative provisions; the the Soman
Romans observed the issues clearly, and adopted
_ measures according to the immediate needs of time and
place. The Greeks were visionaries in comparison
with the Romans, who were of a positive and calculating
spirit, and prudent men of affairs. The Greek was
_ carried away by, and was almost a slave to, his imagin-
ation’; the Roman was guided by, and was master of,
a sound, practical, hard-headed common-sense. Hence
the supreme philosophy and poetry and art of the
Greeks, and their preference for territorial exclusiveness :
hence the supreme juristic work of the Romans, and
their unsatiable longing for territorial expansion and
conquest of the material world.2 The Greek jealousy
οὐδ be
rk. τὶ
ahh
eye wer eh Ae
ἢ : haut
1Cf Laurent, op. cit. vol. iii. p. 3: “La Gréce représente les
facultés brillantes de imagination, pour elle la vie est un banquet
auquel elle assiste, couronnée de fleurs et chantant des hymnes ἃ la
_ joie.
2Cf. Bluntschli’s statement in which he sums up in what respects
_ lay the superiority of the Romans over their predecessors and teachers :
_ “Aber in zwei Beziehungen ibertrafen die Rémer ihre 4lteren
_ Vorbilder und Lehrer, firs erste durch ihre juristiche Begabung und
inbesondere ihre gréssere Fahigkeit, scharfe und klare Rechtsformen
_auszubilden, fiirs zweite durch ihren grossartigeren politischen Geist und
eine Staatspraxis, die entschlossen war, sich der Welt zu bemichtigen ἢ
(Jj. C. Bluntschli, Das Beuterecht im Krieg und das Seebeuterecht
__ inbesondere, Nordlingen, 1878).
TO A, her ιν ADS Bel 1
Influence of
religion on
Roman law.
The principle
of dona fides.
68 RELIGION AND BONA FIDES
of citizenship is contrasted with the Roman policy of
incorporation, realized gradually and surely by the
extension of the franchise first to Italy, then to Gaul
and Spain, and ultimately to the entire Roman empire.
The great skill of the Romans in the sphere of practical _
jurisprudence was manifested alike in the assemblies of
the people, in the legislative comitia, in the institution of -
the tribunes, and in that of the praetor. To meet 2 ‘
possible emergencies, elasticity in the law was aimed
at ; to supplement or modify generally or supply the
deficiencies of the statutory provisions, a system of
legal fictions and rules of equity was devised anc 3
constantly applied. The Romans were the first ee |
in the world clearly and firmly to grasp the fact that
law is a living organism.
As with the law of the Hellenes and that of all others
nations of antiquity, the influence of religion on the™
law of Rome was likewise great, notably during the
first half of her history. The Roman ritual was some-
what simpler than the Greek, which, presenting certain —
heterogeneous elements of oriental origin, was thereby ©
rendered less stable, both in respect of its form and of ©
its significance. The sacred formula was the governing ~
element and the indispensable condition in the adjust-—
ments of all kinds of legal relationships, whether they ~
possessed a municipal or an international character.
Rome was apparently dominated by an absolute for-—
malism in all things, divine and human; in reality, —
however, this formalism was made to subserve the
underlying purpose and all-important substance of this”
or that transaction. The basis of all relationships, of
all obligations was conceived to be sincerity and good ©
faith ; and Rome always prided herself on her invincible ~
attachment to bona fides, and constantly held up to”
scorn, in contrast to her own laudable attitude, the
infidelity, the dissimulation, the duplicity of foreign —
nations. ‘Punica fides,’ ‘graeca fides,’ and the like, ~
became proverbial expressions of reproach. Bona fides
was closely allied to religiousness, piety, respect for the —
ie
IUS CIVILE AND IUS GENTIUM 69
_ gods. Though for many centuries Rome was inspired
with the “ fea of God,” to use Machiavelli’s ex-
| pression—‘ per piu secoli non fu mai tanto timore di
' Dio quanto in quella republica,”’—nevertheless her
| international law contains a large body of rules which
' are not directly drawn from religion, but issue from
her international juridical consciousness.
» Just as the νόμιμα Ἑλλήνων are closely allied to the The ius civile,
ΠΕ... ? , ἢ rom and the zus
γόμιμα ἀνθρώπων, so has the Roman ius civile many pentium.
᾿ points of contact, in reference to its origin and essential
᾿ nature, with the ius gentium.
The expression ius civile has been used in various
senses. At the beginning of the Justitutes of Justinian,
we find ius civile defined as those laws which are enacted
by a State for its own subjects, and are peculiar to itself.?
It is, again, used as synonymous with ius privatum.® tus privatum.
Then it is employed in contradistinction to the ius lus |
honorarium, the law introduced by the edicts of the“
| magistrates ;* for example, where the institution as heir
of a stranger’s posthumous child would, according to
the civil law, be invalid, he could nevertheless be put
| in possession of the property by the praetorian law
(though this praetorian provision was later embodied
: in the civil law).° Further, ius civile is sometimes used Further
_ to signify that portion of the law which is the work of ius civil.
᾿ the jurisconsults.°
δὰ Ae Mek εἰ OOM Pca oe
1 Discorsi sopra la prima deca di Tito Livio, lib. i. cap. 11 (della
Religione de’ Romani), in init.
21.2. 1: “Nam quod quisque populus ipse sibi ius constituit, id
ipsius civitatis proprium est, vocaturque ius civile.”
8 Just. Inst. i. 2. 10.
4 Dig. i. 1 (de justitia et jure), 7: “Ius autem civile est, quod ex
legibus, plebis scitis, senatus consultis, decretis principum, auctoritate
prudentium venit.”
®°“Nam si alienus postumus heres fuerit institutus, quamvis
hereditatem iure civili adire non poterat, cum institutio non valebat,
honorario tamen iure bonorum possessor efficiebatur, videlicet cum
ἃ praetore adiuvabatur; sed hic e nostra constitutione hodie recte
heres instituitur, quasi et iure civili non incognitus” (mst. iii. 9).
6 Dig. i. 2 (de origine juris et omnium magistratuum et successione
prudentium), 2.5: “His legibus latis coepit (ut naturaliter evenire
ee ;
70 THE JUS GENTIUM
Division of Jurisconsults, historians, and other writers, including
t . , Γ . Γ᾿ ν,
private, and.’ poets, frequently emphasize a tripartite division of law
sacred. into public, private, and sacred; thus, in Ausonius we
find
ω; ᾿ a a “ ν
ΜΠ Υ eee
“Tus triplex, tabulae quod ter sanxere quaternae ;
Sacrum, privatum, et populi commune quod usquam est.” τ΄
And Cicero points out the relationship between the ~
civil law and the law of nations, in so far as their
content is concerned, and insists that whatever distinc-
tion may have been made between them the civil law
ought always to comprise the law of nations, though the ©
law of nations obviously cannot be co-extensive with
the civil law.” Indeed, the Romans never did really
recognize the existence of any marked difference in the ©
fundamental principles of private law, public law, and ©
international law, either as regards their cogent applica- —
bility, or as regards the force of their respective sanctions. —
QS Trt, FF Fee Se
The ius There is a great difference of opinion as to the origin ©
isin aad Of the ius gentium and as to its meaning.® According to —
meaning. Sir Henry Maine, the ius gentium represents the totality ~
Wlaine’s view.
of common elements found in the customs and usages %
solet, ut interpretatio desideraret prudentium auctoritatem) neces- —
sariam esse disputationem fori. haec disputatio et hoc ius, quod sine ~
scripto venit compositum a prudentibus, propria parte aliqua non ©
appellatur, ut ceterae partes iuris suis nominibus designantur, datis —
propriis nominibus ceteris partibus, sed communi nomine appellatur
ius civile.”
Cf, Dig. i. 2 (de orig., etc.), 2. 12 : “Ita in civitate nostra aut iure, ©
id est lege, constituitur, aut est proprium ius civile, quod sine scripto ~
in sola prudentium interpretatione consistit....”
1 Opuscula, ed. R. Peiper (Lipsiae, 1886), Edyl/. xi. (336), p. 203, —
ll. 61-62.
2 De offic. iii. 17 : “ Itaque maiores aliud ius gentium, aliud ius civile ©
voluerunt ; quod civile, non idem continuo gentium; quod autem
gentium, idem civile esse debet.” |
8 As to the different meanings attributed to the phrase ius gentium, —
see the article by H. Nettleship, in The Journal of Philology, vol. xiii. —
(1885), pp. 169-181 ; reprinted in his Contributions to Lexicography —
(Oxford, 1889), pp. 500-510. Cf. also J. Baron, Peregrinenrecht und —
Jus Gentium (Leipzig, 1892), passim. 7
VARIOUS MODERN VIEWS 71
‘of the ancient Italian tribes, which constituted a// the
"mations that the Romans had opportunities of coming
3 in contact with and observing. Whenever a particular
“usage was seen to be practised by a large number of
“Separate races in common, it was set down as part of
the law common to all nations, or ius gentium.... The
jus gentium was accordingly a collection of rules and
principles, determined by observation to be common
to the institutions which prevailed among the various
‘Italian tribes.”1 The ius gentium, the same writer goes
on to say, was a system of which the Roman was com-
“pelled to take cognizance in consequence of political
exigencies. ‘‘ He loved it as little as he loved the
foreigners from whose institutions it was derived, and
for whose benefit it was intended. A complete revolu-
tion in his ideas was required before it could challenge
his respect, but so complete was it when it did occur,
that the true reason why our modern estimate of the
ius gentium differs from that which has just been de-
scribed, is that both modern jurisprudence and modern
philosophy have inherited the matured views of the
later jurisconsults on this subject. There did come
a time when, from an ignoble appendage to the ius
civile, the ius gentium came to be considered a great
though as yet imperfectly developed model to which
all law ought as far as possible to conform.””
In a subsequent work,*® Maine incidentally points
out that originally the ius gentium was also to some
extent a kind of market law, owing its existence to
the necessity of commercial relationships. In this
respect it would bear a certain resemblance to our own
law-merchant.
The view of Savigny inclines to the conception of view of
the close relationship between the ius gentium and ἃ ΕΣ
private international law. As more and more aliens
1 Ancient Law, ed. Sir F. Pollock (London, 1906), pp. 52 seg.
2 [bid.
8 Village Communities in the East and West, pp. 193-4 (published in
1871, the Ancient Law having been first issued in 1861).
Of Karlowa.
Of Puchta.
72 THE JUS GENTIUM
were admitted, and as Rome extended her dominion,
and assimilated conquered peoples, it became necessary!
to apply other or modified provisions in the case B/
aliens residing temporarily or more permanently on
Roman territory, so as to meet the interests and de-
mands of justice, “ The rules thus admitted gradually 3
formed the body of ius gentium. They were based on
the principle of personality, that is, on consideration
of the nature and applicability of the personal law |
the stranger; in other words, the ovigo of the individual,
not his domicilium, was usually adopted as the deter-
mining factor in the solution of legal difficulties.* Thus ©
the ius gentium, which was instituted in favour of μου
citizens, served as a supplement to the ius civile, the |
ancient national law, which was reserved for citizens —
exclusively.” |
Karlowa® agrees with Savigny as to origin, but denies”
the application of the principle of personality, namely,
the ius originis. i
A somewhat different explanation is advanced by —
Puchta.t| He begins with a consideration of the bus
fetiale, as embodying the rules and principles governing ὶ
the relationships which arise out of the declaration of ©
war and the conclusion of peace, and prescribing the —
necessary formalities thereof. He assumes that in —
the ancient treaties—matters within the scope of the
fetial law—as, for example, in the earlier treaties”
between Rome and Carthage, there must have been
clauses regulating the various relationships arising from
the intercourse of the subjects of the allied States. Then —
ay
ee
1 As to origo and domicilium and their respective applications in ~
regard to conflicts of laws, see infra. (See contents table and index.)
2F. C. von Savigny, System des heutigen romischen Rechts, 9 Bde.
(Berlin, 1840-1851), Bd. 1. lib. i. c. ili, 8. 22; and Geschichte des
romischen Rechts im Mittelalter, 7 Bde. (Heidelberg, 1834-1851), Bd, i.
ray τῶν ἣὲ
80, Karlowa, Romische Rechtsgeschichte, 2 Bde. (Leipzig, 1885-1901); __
cf. Bd. i. § 59.
4G, F. Puchta, Cursus der Institutionen, 2 Bde. (Leipzig, 1875), F
Bd. i. ὃ 83, pp. 304 seg.; and cf. Nettleship, oc. cit.
i
a τ
᾿'
,- "
a
.“
ἶ VARIOUS MODERN VIEWS 73
he refers to the institution of the recuperatores and that
of the praetor inter peregrinos, whose jurisdictions respec-
tively were determined to meet the new and constantly
growing needs. Thus a general Roman peregrin-law
—‘“ein allgemeines romisches Peregrinenrecht ’’—was
the result. The claims of peregrins, who were neces-
sarily debarred from availing themselves of the ius civile,
were settled, as Savigny held, by the adoption of the
peregrins’ national law, or, where this was not possible,
by resorting to principles which were more or less
universally recognized ;—(provided, it may be safely
added, that in both cases the adoption of such measures
was not in any way prejudicial to the Roman common-
wealth). Hence the ius gentium was the law applied
to the gentes,—to the various nations besides the Roman.
“Das rdémische ius gentium ist das Recht welches Rom
den Gentes, also den Vélkern ausser dem rémischen, in
ihren Gliedern, die vor den rémischen Behdrden Recht
suchen, gewahrt.”* And the expression indicates law
determined not merely in view of any individual nation,
but for foreign peoples in general. ‘“ Zugleich liegt in
dem Wort, dass es ein allgemeines, nicht bloss ftir ein
einzelnes Volk bestimmter Recht ist.”* Puchta’s con-
clusion is that the ius gentium presents two aspects
which may be designated the objective and the sub-
jective (though, strangely enough, he does not here
make use of these expressions so beloved of German
writers). In the first place it represents the ‘ general
peregrin law’ applied to individuals to whom the civil
law was not extended, and consisting substantially of
the peregrins’ own Jaws, adapted to’ render them
universally applicable, and modified and enlarged under
the influence of Roman conceptions. Secondly, it repre-
sents the law not deliberately arrived at by scientific
1 Puchta, doc. cit. It is to be noted in this connection, however,
that the word gemtes, when used in the sense of foreign nations, in
contradistinction to the Romans, is of very rare occurrence, and
post-A ugustan.
2 Ibid,
View of Jors.
Of Wlassak.
Of Mommsen,
Of Rudorff.
74 THE IUS GENTIUM
analysis and speculation, but as issuing spontaneousl y
and imperceptibly from the progressive spirit of the
Romans, from their broadening juridical sense. “ Dé Ss
lus gentium hat zwei Seiten: einmal ist es das 7
meine Peregrinenrecht, nach welchem die Romer αἴ
Rechtsverhaltnisse von Personen beurtheilten, ftir die.
das jus civile keine Anwendung fand; die Grundlage
dieses Rechtes, waren wirkliche Peregrinenrechte, nur
nach dem Bediirfniss allgemeiner Anwendbarkeit und
unter dem Einfluss rémischer Auftassung mannigfaltig |
modificirt und erweitert. Dann aber ist es das Recht,
welches in den erweiternten allzemeinen Rechtsansichten
des rémischen Volks seinen Ursprung hat, das also
nicht auf eine kunstliche Art, durch Speculation oder
gelehrte Forschung, gemacht, sondern durch die innere
Macht des in seiner Bildung fortschreitenden Volksgeistes
hervorgetrieben ist.’”* 4
Jors? follows Puchta, and insists that the ius gentium
consists of peregrin rules which have gradually passed
into the Roman civil law, until at last the entire sub-
stance of the Weltrecht became the law of Roman
citizens,—“ bis schliesslich die ganze Masse des Welt-
rechts ein recht der Rémischen Birger geworden ist.””* —
The same opinion is held by Wlassak,* who sees in
international relationships the source of the ius gentium?
which, with certain exceptions, became embodied in
Roman civil law.® ᾷ
Mommsen,’ again, regards the ius gentium as private
international lew, 8 sradually developed in Rome by th :
side of the municipal law. 4
Its international character is also emphasized by
1 Puchta, Joc. cit. a
2P. Jors, Romische Rechtswissenschaft zur Zeit der Republik (Berlin,
1888), pp. 134, 139, 151, Anm. I. :
3Ibid. p. 147. Ἅ Romische Processgesetze (Leipzig, 1888-91), 2 Pt.
5 Tbid. ii. p. 145. 6 Jbid. p. 131, Anm. 15. "
7 Cf. Romisches Staatsrecht (Leipzig, 1887-88), Bd. ili. pp. 603-6,
8 For fuller treatment of this question, see infra,
F VARIOUS MODERN VIEWS 75
Rudorff who even goes so far as to maintain that it
represents, on the one hand, public international law
is regulating the relationships between States gua States,
ἢ as such, is a veritable ius belli et pacis, and, on the
other hand, private international law as adjusting the
ifferences between individual members of the various
States. ‘* Zwischen und uber diesen nationalen Rechten
steht das internationale Ius Gentium. Es enthalt die
yemeinsamen Grundlagen des Verkehrs, nach welchen
zu entscheiden ist, wo das eigene oder fremde Civilrecht
nicht massgebend sein kann. Als gemeines Recht der
Staaten seines Rechtskreises beherrscht es die Rechts-
verhaltnisse (1) der Staaten gegen einander, das Jus belli
et pacis, (2) der einzelnen Glieder verschiedener Staaten,
also das internationale Privatrecht, z.B. das Recht der
Wechselheirathen und obligatorischen Vertrage, soweit
sie wie das mutuum (μοῖτον), die emptio, locatio, u.s.w.
international sind, den Schutz des Besitzes und des
Rechtsfriedens.” ἢ
Dirksen? had already advanced an opinion to this Dirksen.
effect before Rudorff, and, more recently, Willems * witems.
held the same point of view.
_ Voigt,® who, as Baron says,’ likes to go his own way— Voigt.
“der doch seine eigenen Wege zu gehen liebt ’’—asserts
that with the introduction of a silver currency, and the
adoption of a more fixed coinage system, demanded by
the necessities of international commercial relationships,
the ius gentium was gradually called into being for the
purpose of determining the rights and obligations arising
in transactions between citizens and peregrins, or
1A. F. Rudorff, Romische Rechtsgeschichte, 2 Bde. (Leipzig, 1857).
2 Ibid. vol. i. p. 3.
8H. E. Dirksen, Uber die Eigenthimlichkeit des Jus Gentium nach den
Vorstellungen der Romer (in Vermischte Schriften, vol. i. pp. 200-252,
Berlin, 1841); cf. esp. pp. 215 seg.
4P. Willems, Le droit public romain (Louvain, 1883), p. 128,
note 5.
5M. Voigt, Romische Rechtsgeschichte, 3 Bde. (Leipzig, 1892-1902).
mB * Op. cit. p. 38.
76 THE IUS GENTIUM
τ al eal
between peregrins themselves ; and the growth of this
body of rules was facilitated on the one side by the
borrowings of the praetor urbanus from the edictum
peregrinum, and on the other by those of the praetoi
peregrinus from the tus civile. “. . . Gleichwie man i
dem neu eingeftihrten Silbergelde und Sextantarasse
eine Miinze schuf, die dem internationalen Geschafts-
verkehr zu dienen berufen war, so ward auch das ius
gentium als Rechtsordnung ftir den Verkehr mit oder
zwischen Peregrinen, nicht dagegen zwischen Cives ins
Leben gerufen, vielmehr geschah es erst im Laufe
weiterer Entwicklung, dass ein dem edictum urbanun
und peregrinum gemeinsamer Stock von Satzungen sich
bildete, sei es dass der praetor urbanus aus dem edictun
peregrinum oder der praetor peregrinus aus dem ius
civile entlehnte.”’! The same writer, in another work,
says that the ius gentium in its earlier stages was af
independent international private law which, as such,
regulated the various relationships between peregrins, OF
between citizens and peregrins, on the basis of their
common /ibertas. ‘Nach Alle dem aber haben wir im
Sinne des Alterthumes die Wesenbestimmung des ius
gentium ftir die friiheste Periode seines Bestehens dahin
Zu geben, ein selbststandiges, internationales Privatrecht
zu sein, welches als solches den Verkehr zwischen
Peregrinen unter sich, wie mit cives romani auf Grun¢
der den verkehrenden beiwohnenden libertas normirte.”8
During the Republic this /bertas was merely of at
empirical nature, and practically free from the influence
of scientific or philosophical speculation, which, however,
with the jurists of the early Empire, co-operating with
their construction of a comparative jurispruden
brought about an extension of such /dertas.4
1 Rimische Rechisgeschichte, vol. 1. p. 154.
2 Das ius naturale aequum et bonum und ius gentium der Romer, 4 Bd
(Leipzig, 1856-1876).
8 Ibid. vol, ii. p. 661.
4 Voigt, idid. vol. i. pp. 399, 400.
Sir habe tr
oer
=f Raat
DIFFERENT USES OF THE TERM 77
fe
i
_ Now the difficulty in determining the origin of the Difficult to
dus gentium is greatly enhanced by the fact that Roman fx Precisely
1 es τ ; yi : the origin of
Bes use this expression in different ways.! Some- is sentium.
eRe ἃ : The expression
mes it is used in a popular sense, much in the same used in a large
ay as we would say “public opinion,” or the “sense “"Y%¥**
of nations,” etc. As derivatives from such usage we
find the adverbial phrases ui gentium (where in the
world), minime gentium, nusquam gentium. It is, again,
employed in a somewhat quasi-legal sense, with refer-
ence to common customs or usages of the world. Then
its legal significance emerges when it is recognized that
in the relationships between peoples such usages, when
applicable, will be spontaneously adopted or expected on
the ground of their universal, or seemingly universal,
acceptance by “‘ tacit consent,” —a presumption or fiction
introduced in the earliest times to impart a juridical
character to transactions based on such common usages ;
so that, in this connection, ius gentium is now used to
signify a public international law, now a private inter-
national law.
The jurisconsults frequently make use of the expres- Use of the
sion in reference to certain simple cases of contract, of (rR .o%sults,
ownership, of actions ;? for example, questions as to
the position and treatment of ambassadors (also very
often mentioned by the historians) ;* questions as to
transactions between individuals, of which Gaius and the
Digest give many examples relating to the ob/igationes of
traditio, acceptilatio, etc., and the implied actiones ; ques-
tions as to the ownership of certain things and places,
of which the Digest makes frequent vehi reties to the
sea, the shore, alluvial deposit, booty taken in war, etc.
In a passage already quoted,* which is a passage of
1Cf. Nettleship, dc. cit. 2 Ibid. p. 175.
8Sallust, Jag. xxxv. 6; Livy, i. 14. 13 ii. 4. 73 viii. 5. 25 xxi.
10.6; Tacit. dun. 1. 42 (all quoted by Nettleship). Cf. infra, the
chapter on ambassadors.
#¢ Ttaque maiores aliud ius gentium, aliud ius civile voluerunt; quod
civile non idem continuo gentium ; quod autem gentium, idem civile
esse debet” (De offic. iii. 17).
Cicero’s
reference to
the distinction
between zus
gentium and
zus civile,
Validity of
such reference.
lus gentium
and zus
naturale,
Zus naturae.
78 IUS GENTIUM AND JUS NATURALE
great importance owing to certain inferences drawn
therefrom by modern writers, Cicero stated that his
ancestors drew a distinction between the ius gentinm and)
the ius civile to the effect that the former was universal!
unwritten law, the latter special or particular written)
law. The statement of Gaius! corresponds substan=
tially with Cicero’s. Now with regard to this passage
Nettleship asserts that the ancestors (maiores) Cicere
Ι
speaks of probably refer to the theoretical lawye |
of the second century before the Christian era. But,
it may well be asked, why limit the origin of this
distinction to that date? It was then, perhaps, that
such distinction was more explicitly formulated,—a
proceeding which was, indeed, inevitable at a time when
a large variety of matters in jurisprudence were eluci=
dated and subjected to thorough analysis. There can
be no doubt that through the influence of Greek writers
if through no other cause (which is a highly improbabl
hypothesis), and particularly through the Aristotelian
distinction? between νόμος ἴδιος (the particular law), and
the νόμος κοινός (the universal, the unwritten law,
aypados), the Romans, earlier than the second century
B.c., discriminated clearly between the ius gentium anc
the zus civile, although, of course, that distinction wa
never a hard-and-fast one.
Again, ius gentium is frequently taken by the juris-
consults as synonymous with ius naturale, ius naturae,
though there are also many cases where they
1 Inst.i. 13 cf. Just. Jmst. i. 2, 1.
2 Cf. supra, p. 53.
3QOn ius naturale generally, see B. W. Leist, Graco-Italische
Rechtsgeschichte (Jena, 1884), § 32, pp. 199 seg.; the same authors
Civ. Stud. i, (1854), p. 33; iii. (1859), pp. 3 seg. 3 Naturals ratio
und Natur der Sache (1860) ; Civ. Stud. iv. (1877) pp. 1 seg. ; Voigt,
Das jus naturale...vol. i. pp. 244 seg.; K. Hildenbrand, Geschichte
und System der Rechts- und Staatsphilosophie, Bd. i. Das Kilassische
Alterthum (Leipzig, 1860), pp. 566 seg.; G. Brini, Jus naturale
(Bologna, 1889); Sir F. Pollock, History of the law of nature (im
Journal of the Society of Comparative Legislation (London, 1900) pp-
418-433). .
J
4
Ϊ
distinguished from each other. In the Nicomachean
Ethics, political justice is divided by Aristotle into
natural, τὸ μὲν φυσικόν, and conventional, τὸ de νομικόν.
‘The rules of natural justice are those which are
necessarily recognized by all civilized men, as civilized
“men, irrespective of place or nationality ; whilst the
‘tules of conventional justice are those which are
deliberately and expressly enacted by sovereign authority
for the particular individuals subject thereto, and serving
to confirm, to explain, or to complete the former.?
Aristotle’s conception of nature implies the notion of
rational design, or “‘ reason,” in the universe ; and of
this “reason” manifestations are perceptible in the
physical or material world, though its perfect realization
is there never attainable.
This theory was developed more fully by the sub- tmfuence
sequent schools of Greek philosophers, particularly so oniteouy
by the Stoics. The latter ‘‘ emphasized the teleological
and ethical aspects of the peripatetic doctrine, and fixed
on the term ‘nature’ in this connection the special
meaning of the constitution of man as a rational and
social being.”* It is noteworthy that also among the
ancient Aryans the word rita expressed the design,
principle, or order which governed the universe,—the
alternations of day and night, the various manifestations
of nature, birth, growth, decay.t..No doubt to this
corresponds the conceptions of ritus, ratio, ratum of the
Latins, as also the notion of rerum natura, and, in a
certain sense, ius naturale.
Now the substance of the Roman ius gentium, when substance of
JUS GENTIUM AND NATURAL JUSTICE 79
Φ e . e . ti
actually applied in practice, was seen to harmonize, for κυ ποιίση,
of natural
ἵν, τὸ (quoted supra, p. 54). justice.
2 As Bossuet says (in Sermon sur Ja justice) : “La créature raisonnable
a ses lois dont les unes sont naturelles; et les autres, que nous
appelons positives, sont faites ou pour confirmer, ou pour expliquer
ou pour perfectionner les lumiéres de la nature.”
8Sir Ἐν Pollock, idid. p. 4.19.
*Cf. Leist, Graco-Italische Rechtsgeschichte, p. 187 ; and see, passim,
_ the same writer’s 4/t-Arisches Jus Gentium (Jena, 1889).
Naturalis
ratio.
——-)
tp eee en re
80 THE NATURALIS RATIO a:
the most part, with the precepts of this natural justice;
so that what was first seen to be a close kinship between
them gradually developed into a notion of identity.
Hence the jurisconsults regarded the ius gentium as
equivalent to ius naturale, the Latin expression for the”
Greek preg δικαίον. ‘Thus Gaius refers to the rules
prescribed by ‘natural reason’ for all, and observed byl
all nations alike, “...quod vero naturalis ratio inter
omnes homines constituit, id apud omnes populos—
peraeque custoditur vocaturque ius gentium, quasi quo: |
lure omnes gentes utuntur.”1 This naturals ratio we
conceived to be the self-evident principle of the
universe, and essentially unchangeable and immutable,
representing perfect justice, and 1 inspiring into human
minds a moral faculty. Cicero gives various examples —
of the guidance and efficacy of the universal reason,—
natura, or naturae ratio. It is laid down, he says, not —
only by the law of nature, that is the law of nations, —
but also by the statutory law of States, that no one shall —
be allowed, for his own advantage, to inflict an injury ~
on another. Now he who obeys the behests of uni- —
versal reason, which is the law of gods and men alike,— ~
in other words, he who lives according to nature—will
never covet his neighbour’s goods, or be induced to —
appropriate for his own profit what he has wrested from
another.? Cicero, whilst insisting that true law must be ©
derived from philosophy—“ penitus ex intima philo- —
sophia hauriendam disciplinam putat”*—does ποῖ,
nevertheless, overlook the fact that it is and must be
made for man—“ hominum causa omne ius constitutum —
, 3
‘|
1 Jmst. i. 1.
2 De offic. iii. 5. 23: “ Neque vero hoc solum natura, id est, iure 4
gentium, sed etiam legibus populorum, quibus in singulis civitatibus 4
res publica continetur, eodem modo constitutum est, ut non liceat sui —
commodi causa nocere alteri....naturae ratio, quae est lex divina —
et humana; cui parere qui velit—omnes autem parebunt, qui —
secundum naturam volent vivere—numquam committet ut alienum —
appetat et id, quod alteri detraxerit, sibi adsumat.” Cf. also did. iil.
17. 69. [
8 De leg.
‘ JUS NATURALE AND IUS COMMUNE 81
est.”1 The Romans with their practical spirit, and
their general incapacity—if not unwillingness or in-
fference—to follow the metaphysical disquisitions and
subtle analysis of the Greeks, constantly emphasize that
necessity begets law, and that law is always subject
to the exigencies of some particular time and place.®
_ Occasionally we find that the ius gentium, in the sense Jus gentium
of universal usage, is considered to be in conflict with *o™ctyres
natural equity—aequum bonumque. For example, Sallust with natural
teferring to the case of Bomilcar says that the accusation
against him when he reached Rome was made rather on
considerations of equity than in accordance with the
usage of nations (ius gentium)—‘“fit reus magis ex
aequo bonoque quam ex iure gentium Bomilcar, comes
eius qui Romam fide publica venerat ” ;? that is, in this
case, equity—aeguum bonumque—was made to over-
ride the claims of fides pubiica,t which appertained to the
ius gentium.
¥ .
During the maturity of the Roman jurisprudence, that tnfiuence
is, during the Empire until the days of Diocletian, the pes
ius naturale exercised a great influence. Its characteris-
tics, as expressed by Voigt, were, from a speculative
point of view, a potential general validity or universal
applicability—for all individuals, for all nations, for all
times—in consequence of which it claimed to be free
from abrogation by the civil law. Hence the ius naturale
is potentially a ius gentium, in the sense of a ius commune Ius commune
omnium hominum ; and, further, as the ius naturale neces- 4 rinem.
sarily implies aeguitas, it is of the nature of aeguum et
Donum, as differentiated from the ius civile, which repre-
1 De finibus, iii. 20; cf. Gaius and Hermogenes in Dig. i. 5. 2.
“Cf. Publilius Syrus (fl. c. 45 B.c.), Sententiae :
“‘ Honesta lex est temporis necessitas.
Necessitas dat legem, non ipsa accipit.”
8 Jug. xxxv. 6.
*On the conception of fides and its force in the law of nations, see
infra. (Consult the index for various references thereto.)
F
Lus strictum.
Possible
conflicts
between the
tus naturale
and the zzs
civile.
The zus
respondendt
of the juris-
consults.
82 IUS NATURALE AND IUS CIVILE
sents the ius strictum.!_ From a practical point of view
the contemporary jurisconsults, by considering the actual
application of the ius naturale to everyday life, make it
clear that certain conclusions were inferred by them,—
an admission of the claims of the principle of kinshi
(“ sanguinis vel cognationis ratio ’’); a necessary obliga-
tion of fidelity to engagements (“18 natura debet . . .
cuius fidem secuti sumus,” as Paulus says in the Digest) ;
the apportionment of advantages and disadvantages,
gain and loss, in accordance with the demands of
aequitas, with the standard of the bonum et aequums
and, generally, a predominance of the spirit, the
intention—“ ratio voluntatis,’’—over the letter or out-
ward form.? ἢ
It would appear that serious difficulties would be
created in the possible antagonism between the newer
dispensations of the ius naturale and the previously
existing provisions of the ius civile. But such inconsis=
tencies, as derogatory to the civil law, were largely
avoided by the fact that the jurisconsults of the early
Empire possessed the ius respondendi which virtually
constituted them legislative organs of the State. Thus,
the new principles of the ius naturale or of aequu
bonumque introduced by them were endowed, ipso factoy
with the force of law. These jurists were, as Voigt
1Voigt, Das ius naturale..., vol. i. p. 304: “Die potentielle
Gemeingiiltigkeit des jus naturale ftir alle Menschen, bei allen Vélkern”
und zu allen Zeiten bedingt, dass dem jus naturale der Anspruch
zukémmt, durch das jus civile nicht aufgehoben zu werden ; 4
Die potentielle Gemeingiltigkeit des jus naturale fiir alle Menschen
und bei allen Nationen resultirt, dass das jus naturale in potentia ein
jus gentium, d. ἢ. ebensowohl ein jus commune omnium hominum,
wie ein jus ist, quo omnes gentes utuntur, wahrend anderseits der
rein nationale Character des aus der civilis ratio hervorgegangenen jus
civile bedingt, dass dasselbe seinem Wesen nach auch ein jus civile im
Gegensatze zum jus gentium ist ;
Die Uebereinstimmung des jus naturale mit den oe
der aequitas bedingt, dass das Erste ein bonum et aequum ist, wogegen”
das jus civile als das strictum jus sich darstellt.”
2Voigt, ibid. pp. 321-3. ;
ey te ΜῊΝ
NATURALIS RATIO—LEX NATURAE 83
‘says, “ philosophers in the region of law, investigators
of the ultimate and highest truth ; but whereas they, for
the most part in reference to a concrete case, sought out
the truth and applied what they had found, they com-
bined with the freedom of speculation the vitality and
freshness of practice, and the power of assuring the
applicability of their abstract propositions.”
It is, in fact, the naturalis ratio, observes Voigt, that Function of
is the point of departure of the philosophical systems of ‘77
law of Gaius and Paul,—‘‘... mit diesem Begriffe
beginnen fiir uns die rechtsphilosophischen Systeme des
Gaius und Paulus.”? This naturalis ratio is that which
represents the total and essential significance of each thing,
its ordinative energy and determinative rule.” The /ex Lex naturae.
naturae is the product of such naturales rationes ; and the
substance of the /ex naturae constitutes a ius naturale}
It is here worthy of note that Ulpian in a passage, vlpian's
adopted both in the Digest and in Justinian’s Justitutes, seals of
defines ius naturale as the law which is common to ™ παέμγαίε.
man and all animals,—‘ quod natura omnia animalia
docuit,’—and distinguishes it from ius gentium, which is
the rule applicable to men alone—‘*solis hominibus
inter se commune.” Of this definition Sir Frederick
Pollock says we are not obliged to believe “ that it was
current among Roman lawyers in Ulpian’s own time, or
anything but a conceit borrowed from some forgotten
Greek rhetorician.”* But, it is submitted, it is not Submitted
necessary to refer to a supposed lost Greek source this “?*™*"°™
particular definition of Ulpian. And it is scarcely to be
designated a “conceit,” unless it be necessarily a conceit
to adopt a modified sense, or rather to emphasize some
V]bid. vol. i. p. 341: “... Sie sind Philosophen auf dem
Gebiete des Rechtes, Erforscher letzter und héchster Wahrheit, allein
indem sie, meist im Hinblick auf den concreten Fall, das Wahre
erforschen und das Erkannte verwirklichen, verbinden sie mit der
Freiheit und Ungebundenheit der Speculation die Lebensfrische der
Praxis und die Macht dem abstracten Satze die Verwirklichung zu
sichern.”
2 Ibid. vol. i. p. 274. 8 Cf. Voigt, ibid. vol. i. pp. 270-274.
“Note (E) to Maine’s Ancient Law, pp. 75-6.
84 THE JUS NATURALE OF ULPIAN a
particular element of the denotation of a term which ha
ever been used by writers with marked elasticity, and
definition of which had never been finally fixed or
universally agreed upon. To lay stress on some parti=
cular aspect of a term is not necessarily to employ that
term in a far-fetched sense, foreign to the underlying
meaning. When Ulpian in his definition lays stress
on natural instinct, he simply uses the expression ims
naturale to denote what Cicero had intended to convey
by vis naturae, and Seneca by /ex naturae. Thus Cicero,
speaking of the reproduction and nurture of the lower
animals, makes use of these words: “ atque etiam i Ἶ
bestiis vis naturae inspici potest; quarum in foetu, in
educatione laborem quum cernimus, naturae ipsius
vocem videmur audire.”! Seneca uses /ex natura in
reference to the physical sensations of hunger, thirst,
cold: “Lex naturae non esurire, non sitire, non
algere.”* ‘Then followed Ulpian with : “ Hinc descen=
dit maris atque feminae conjunctio... hinc liberorum
procreatio, hinc educatio ; videmus enim caetera quoque
animalia, feras etiam istius iuris perita censeri.”* Here
we see that, as Cicero and Seneca had done before hima
Ulpian (probably not unmindful of other notions then”
current) singled out natural instinct as a fundamental
factor, providing for the propagation and preservation of
the species. Justinus, writing still later than these, uses”
naturae ius to express the right of the eldest son to the
succession,‘ though elsewhere he adopts ius gentium in
reference to the same right.°
1 De finibus, iii. 19. 2 Epist. iv. δ Dig. 1.46 ae
4«‘Exstincto in Sicilia Dionysio tyranno in locum eius milites”
maximum natu ex filiis eius, nomine Dionysium, suffecere,
naturae ius secuti, et quod firmius futurum esse regnum, si pen :
unum remansisset, quam si portionibus inter plures filios divideretur,
arbitrabantur”’ (xxi. 1. 2). |
5For further illustrations of the elastic character of the wo LE
natura, compare the following verses from Virgil : |
“Hos natura modos primum dedit...” (Georg. ii. 20).
“«. . . Has leges aeternaque foedera certis _
Imposuit natura locis...” (Georg. i. 60-61).
ese
>
IUS AND DIKE 85
———— ee a ot RL Le τὰν ee eee
πὰ Eger ii
In modern times, with all the ripeness of our lan- Use of
_ guage and our vaunted habits of scientific precision, we παῤ garaes. ἐλ
(ὁ not always use words strictly and in the same sense, world.
"regardless of context. Nor did the ancients always do
80. ‘The scientific tendency to refine conceptions, to
label them, to materialize them, as it were, is always
accompanied by the poetic tendency to widen them, to
_ apply them to somewhat different circumstances.
_ The words ius, /ex, etc., have been already used a good /us, “er, etc.
deal; in this πα ametine. therefore, it will be worth
while to say something of their meanings, and of their
implications both in private and in public law.
The word ius is in the older Latin jous, signifying significance
justice and law. Jus mainly represents justice in its ne res
human aspect. Some of its derivatives are iustus, index,
iurgo, iniuria, iuro, in the last of which a religious con-
nection is obvious. Jus has been derived by some
etymologists from iubeo (‘quod iussum est a populo’”’).
But this is, as Bréal says,’ to explain the antecedent by
the consequent, in view of the fact that iubeo is a com-
pound of ius and habeo. The word jaus is found as a
neuter substantive both in ancient Sanscrit and in Zend.
In the Vedas, 205 is used with a religious meaning, such
as ‘salvation,’ or ‘divine protection’ ;? and in the Avesta
the compound jaos-dé means ‘to purify.’ In such
words as iudex, iudicare, iudicium we get ius associated
with dico, which is found in dicio (as, for example, in the
phrase ‘‘in dicione populi Romani’’), and condicio. The
Latin dico, it is usually held, corresponds to the Greek
δείκνυμι, whence we get δίκη, ‘and its various derivatives.®
It is, however, not improbable that the substantive
δίκη is related to the verb δικεῖν, just as τύχη is akin to
τυχεῖν, πάθη to παθεῖν, and so on with various other
similar words. In this case δίκη might not unreasonably
1M. Bréal, Sur Porigine des mots désignant le droit et la loi en latin (in
Nouvelle Revue historique de droit francais et étranger, Paris, vol. vil.
(1883), pp. 603-612).
2 Ibid. p. 606. 8 Ibid. p. 612.
Meaning
of lex.
Lex and
νόμος.
Use of dex
by the Roman
jurisconsults,
86 LEX AND NOMOS
be thought to imply the idea of the stroke of the rod
of justice, in reference to the judge’s decision in the
disputes of litigants by a vertical stroke of his rod
(ἰθεῖα δίκη)".
νι {ν.. ἶἶ αὐ ὑπ ee ee ne eee
Lex is, of course, clearly connected with J/egere. Its
origin is, however, a matter of dispute. As Breal says:?
“* Lex est la Lecture, comme chez les peuples s¢mitiques —
la loi c’est l’Ecriture.” Greek words corresponding to
lex are θεσμός, ῥήτρα, νόμος. The ordinances of Lycur-
gus were called p77 par‘ (in the sense of unwritten laws),
At Athens, Solon’s laws were generally described as
νόμοι," Draco’s as Oeruol® (connected with θέμις).
The Roman jurisconsults employed the word /ex |
two senses : in the first place, as meaning an enactment
of the comitia,’ and hence sometimes /ex publica ;* and
secondly, as meaning a declaration, condition, or re-—
striction, expressly incorporated in a private deed (/ex
privata), as in the phrases, /ex mancipit, lex contractus, lex
testamenti, εἰς. Later, /ex acquired further meanings, —
as, for example, an imperial constitution.”
3 >
1Cf, R. Hirzel, Themis, Dike, und Verwandtes.—Ein Beitrag zur :
Geschichte der Rechtsidee bei den Griechen (Leipzig, 1907), pp. 94 seg.
2 Ibid. p. 610.
8 The underlying sense of this word is thus expressed by Aristotle: —
Ὃ νόμος τάξις τίς ἐστι Kal τὴν εὐνομίαν ἀναγκαῖον εὐταξίαν εἶναι
(cf. Polit. iv. 8. 6). Νόμος is evidently related to νέμεσις.
4 Tyrtaeus, ii. 8; Plut. Lycurg. 13.
5 Andocid. De Mysteriis, 82 ; Aelian. vill. 10.
6 Because each began with the word θεσμός ; and hence the revisers —
of the law were termed θεσμοθέται.
7 Gaius, i. 3. 8 [bid. ii. 1043 iii. 174. Cf. Aul. Gell. x. 20. 2.
9Cf. J. Muirhead, Historical Introduction to the private law of Rome
(London, 1899); note by the editor, Prof. Goudy, pp. 18 seg.
See also Voigt, Rom. Rechtsgeschichte, 1. p. 21; Mommsen, Rom.
Staatsrecht, 111. pp. 308-10.
10 Cf, W, Soltau, Giltigheit der Plebiscite (Berlin, 1884). Cf. further
as to zus and /x, the lines of Ausonius, Opuscula, ed. Peiper (Lipsiae, —
1886), Edy//. xii. (339), p- 157, Il. 12-13 :
“Lex naturali quam Condidit imperio ius,
Ius genitum pietate hominum, ius certa Dei mens.”
On ius, lex, dike, themis, εἴς,» see E. C. Clark, Practical Jurisprudence
;
ἢ
Μ;
:
f
"
:
ἢ
«
ἃ ἀ ee an εν τ ee ey ee “.-4ἡ
FAS, THEMIS, AND RATIO 87
_ Fas corresponds to the Greek θέμις, hence fastus to Fas and
θέμιστος, and nefas to οὐ θέμις - so that the Latin “ fas βόα.
est’ is equivalent to the Greek θέμις ἐστί (“it is meet
and right”’).. Fas refers rather to rules of an exclusively
‘religious character; for example, in relation to the
“auspices, to the art of augury, and to the various
ceremonies of worship. Similarly, fastus, the derivative
_ of fas (as iustus is derived from ius) pertains to pontifical
laws.
Both fas and θέμις are frequently personified in be- Personification
ginning solemn invocations to the gods.?_ Festus points 9/7 °"*
out that Themis was considered a goddess instructing
men as to what was fas: ‘‘ Themin deam putabant esse,
‘quae praeciperet hominibus quid fas esset, eamque id
"esse existimabant, quod et fas est.”
᾿ς Leist states that to the fundamental conception of Ratio—the
rita* (the Latin ratio) of the ancient Aryans other eeper te
notions are related, which are thus expressed : vrata, to
which corresponds the fas and the ratum of the Latins ;
dhama, analogous to the Greek θέμις ; svadhad, answering
to ἔθος or #005 of the Greeks, and to mos of the Latins ;
whilst dharma approaches the meaning of fx. It may
be said briefly that ratio signifies the F ahamental prin-
ciple of the universe governing the course of things
(Cambridge, 1883), pp. 16-58; and especially Hirzel, op. cit.—For
the relationships between ius, fas, and 4x in Roman jurisprudence, cf.
L. Mitteis, Rimisches Privatrecht ... (Leipzig, 1908), vol. 1. pp. 22-37.
1 Thad, xi. 779; xiv. 386; Odyss. x. 733; xiv. 56; etc.
2Cf. Seneca: “Fas omne mundi” (Hercu/, Fur. 658); and the
_ invocation of the fetials (Livy, i. 32). See infra on fetials.
85.0. Themin, in C. E. G. Bruns, Fontes juris Romani antiqui, ed.
T. Mommsen (Freiburg, 1887), p. 372. The same conception is
found in Ausonius, Edy//. xii. (343), p. 161, ll. 44-45.
“... prima deum Fas
Quae Themis est Graiis,..”
Cf. Voigt, Die XII. Tafeln (1883), vol. i. p. 102.
4See supra, p. 79.
5 Graco-Ital, Rechtsgeschichte, p. 1873 cf. also the same author’s
_Alt- Arisches Jus Gentium (passim).
Fas and zus—
contrast.
Fas and
bona fides.
Boni
mores, and
ἔθος.
88 FAS, BONA FIDES, AND ETHOS
divine and human, whilst ius, fas, and mos are the various
aspects of this operating force.!
ΣἸᾺ tr ae oe ne. Pe eee Ny oe ey TS
Non-legal writers very often contrast fas and ius.2
Both, indeed, represent the will of the gods ;—in fas it _
~
is declared by inspired agency, for example, by augurs,
oracles, etc. ; in zus, by ordinary human agency. The
ius was the product of traditional and inveterate custom, ©
or of statute (/ex), or of both. Fas sometimes per-
mitted certain things expressly prohibited by ius, thus :
‘“‘transire per alienum fas est, ius non est.’ In {πὸ
sphere of relationships between nations, fas forbade war
if it was not prosecuted in accordance with the due _
formalities of fetial procedure,‘ it insisted on dona fides,
Ρ ἢ
e.g. in promises made even to the enemy, it protected
hospitality to strangers ;° and in civil relationships, it —
forbade murder, the sale of a wife by her husband, filial —
impiety, etc. A violation of fas rendered the offender 3
impius ; the sin was sometimes expiable, and sometimes —
no expiation could apply. Where expiation was possible, —
a peace offering (piacularis hostia) had to be made to the
injured city, and, on some occasions, additional satisfac-_
tion had to be made to any third party involved.
Boni mores, regulating public and private morality and ~
general κόνις | is taken to be different from the ius mori- —
bus constitutum ; but part of its content was also within ©
the spheres of ius and fas. Its function was somewhat
᾿
ᾧ
ἕ
similar to that of modern ‘public opinion,’ especially —
in respect of mitigating the extreme exercise of legal —
right, where this would appear to be inequitable, and
of enforcing the observance of such moral obligations —
(officia) as were beyond the limits of legal process, e.g.
obsequium et reverentia, pudicitia, fides, etc. The Greek ©
equivalent is practically ἔθος or ἦθος. Festus, in his —
1 As to fasjand mos in early Italy, see G. Carle, Le origini del diritto |
romano (Torino, 1888), pp. 98-104; origin of ius, pp. 104-116.
2 F.g. Livy, vii. 31.3 Virg. Aen, ii. 157.
8 Isidore of Seville, Origins, v. 2. 2.—As to fas and sex, cf. the verse
of Persius, Sat.5: “ Publica lex hominum, naturaque continet hoc fas.”
* See infra. 5 See infra. 6 Cf. Muirhead. of. cit. pp. 15 ség.
|
|
i
|
,
IUS NATURALE AND 705 GENTIUM ὃο
definition of mos,! points out its religious character, and
also defines vi/us as “ mos comprobatus in administrandis
'sacrificiis.” ἢ
_ It is to be noted that the post-mediaeval writers on
‘international law, so devoted to the Roman juris-
‘prudence and so desirous of introducing by all means
Roman notions into the consideration of contemporary
“questions, have a good deal to say as to the relationships
‘between the ius naturale and the ius gentium ; but their
‘conclusions and discriminations are, as Professor Goudy
Post-
mediaeval
writers on ¢us
naturale and
ius gentium,
observes, “vague and unsatisfactory.”’ Isidore of Isidore of
Seville, writing in the early part of the seventh cen-
tury, uses ius gentium to represent approximately the
modern ‘law of nations,’ and puts under ius naturale
what had before been termed ius commune omnium
nationum. He gives a definite statement of the subject-
matter of ius gentium: ‘‘lus gentium est sedium occu-
patio, aedificatio, munitio, bella, captivitates, servitutes,
postliminia, foedera, paces, induciae, legatorum non
violandorum religio, connubia inter alienigenas pro-
hibita.”* The earlier Renaissance writers employed the
expression ius gentium to imply something more than
international law in the strict sense. Later, a distinc-
‘tion was frequently made between ius naturale, as indicat-
ing law whose necessity was manifest and unquestioned,
and ius gentium, whose necessity was-not obvious to the
Seville.
same extent. Writers like Suarez emphasized the force Suarez.
and significance of custom. Ayala held that zus gentium
was added to the law of nations by general consent.
Ayala.
Gentilis, again, laid stress on the principle of common Gentilis.
consent, as related to natural reason. Grotius’ use of Grotius.
ius gentium differs considerably from that of Roman
1“ Mos est institutum patrium, id est memoria veterum pertinens
maxime ad religiones caerimoniasque antiquorum.” 5.0. mos in
Bruns, Fontes juris Romani antiqui, op. cit. p. 343.
2 Ibid.
8Note to Muirhead, of. cit. p. 283.—Cf. also J. Westlake, Chap-
ters on International Law (Cambridge, 1894), pp. 17 “44.
4 Orig. lib. v. cc. 4-7.
Puffendorf.
Hobbes.
Difficult to
give strict
definitions
of the various
expressions.
In the ancient
Italian
institutions
distinction
between zus
gentilicium,
tus gentilitatis,
and zus
gentium.
go PRECISE DISTINCTION DIFFICULT
jurisprudence in that he excludes from it merely
municipal ordinances, applying it only to interstatal
institutions. The latter he considered to be sanctioned
by the deliberate will of the family of nations as_
exercised within limits set by reason. Puffendorf
appears to hold that they were practically identical.
The Roman ius gentium, he says, is either part of the
civil law or part of the ius maturae ; and to this effect
he also cites Hobbes. And so on with greater or lesser
modifications by other writers.
It was thought necessary to make the above observa-
tions for the purpose of showing conclusively that it is
really impossible to lay down definitions marked by
scientific precision and logical consistency, by compre-
hensiveness and exclusiveness alike, of such expressions
as ius gentium, ius naturale, ius naturae, etc. Even the
elemental conceptions of ius, fas, mos, lex (θέμις, ἦθος, δίκη,
νόμος) are by no means distinct, clearly differentiated
from each other, or mutually exclusive. Indeed, given
two notions, there is bound to be something in common,
no matter in what way they are contrasted. The
crucial point is that sometimes their likeness is empha-
sized and considered predominating, by regarding
mainly this or that attribute, at other times and under
other conditions their difference is emphasized. Philo-—
sophical speculations and abstract analyses constantly
intersected a system of rules derived from actual prac-—
tice and custom; and the result of such action and ~
reaction naturally tended to become more and more
heterogeneous. It will be of advantage, notwithstand-_
ing these difficulties, to draw a rough or working
distinction between the expressions ius gentium and —
ius naturale, as generally used by the Romans in
reference to the law of nations.
Ae =
t
In the institutions of the Italic tribes long before the —
Roman ascendency we find, as an Italian writer’ points —
out, that a distinction was made between the ius
1G, Carle, op. cit, F
ΕἾ
pe δον ΓΝ
᾿
ur
ORIGIN OF 7105 GENTIUM ΟΙ
gentilicium, the ius gentilitatis, and the ius gentium. The
es gentilicium * governed the relationships between the
‘superior class of gentiles and the dependent class of
‘gentiliciti ; the ius gentilitatis comprised the body of laws
δ arding the members of the class of gentiles; and
‘the ius gentium regulated the relationships between the
various gentes.°
And so this ius gentium, as originally an intertribal origin of
law of limited application, gradually expanded through
‘the growth of dealings with non-gentes, that is inter-
‘course not only with the Italic peoples but also with the
nations of Greece, Macedonia, Syria, Africa, etc. The
rise of Rome’s supremacy and the development of her
civil law tended to reinforce the significance and
applicability of this “χε gentium. Her municipal law
both added elements to it and borrowed principles from
it. The praetorian institution rapidly accelerated its
growth; indeed, the great bulk of the ius honorarium
(praetorium, aedilicium) was absorbed by it.
The ius honorarium was by no means identical with
the ius gentium, as some writers have carelessly imagined.
The former included certain provisions which were not
strictly recognized in the latter, e.g. the actio Publiciana
(the legal remedy applied in the case of the transference
of anything by a non-proprietor to an innocent trans-
feree—bona fide possessor—should the latter have been
‘deprived of its possession). Further, the Digest speci-
fically opposes the ‘ praecepta civilia et praetoria’ to
the ‘merum ius gentium.’? Again, the ius gentium
already contained a comparatively elaborate body of
‘principles before the ius honorarium was even established.
1As to ius gentilicium, see Karlowa, op. cit. vol. i. p. 35 3 Muir-
head, o. cit. p. 7; Willems, Le droit putlic romain, pp. 40, 69.
*Carle, op. cit. p. 45, note 3: “... Il. jus gentilicium, che
‘comprende anche i rapporti fra la classe superiore dei gentiles e quella
dei dipendenti da essi ο gentilicii, il jus gentilitatis che significa il com-
plesso dei diritti spettanti ai membri di una stessa gente (gentiles), εἰ
juta gentium, che governano i rapporti fra le varie gentes.”
"Dig. xvi. 3. 31.
tus gentium,
lus gentium
and zus
honorarium.
Submitted
explanation
of the relation
between the
ius gentium
and the Ζῶ:
naturale,
Difficult to
determine
which came
first in legal
evolution.
92 IUS GENTIUM AND IUS NATURALE
The human mind is not satisfied to remain in the
concrete alone, and ever tends to get behind phenomena
in order to discover their rationale; there is ever an
instinctive conation to search for the corresponding
noumena. And so we get speculative thinkers with
their ratio, with their zaiura, with their zus naturale, and
other kindred conceptions which, based, as they are
deemed to be, on an apprehension of cosmic unity, of a
harmony between human life and non-human, are
necessarily to be the guiding principles of all human
relationships, whether of a private or of an international
character. The theoretical ius naturale and the practical
ius gentium interact, refining and enlarging each other,—
the former representing the ideal, what ought to be
established, the latter representing the real, what is
universally established. And as the two havea very large
portion of their respective contents in common and.
converge towards the same goal, there is a ind
especially in minds of what may be called a practical
nature, to call one by the name of the other. Hence
the jurisconsults, whilst using the two expressions as
practically synonymous, generally speak of ius naturale,
ius naturae, or naturalis ratio, in order to emphasize the
raison d’étre of some particular rule ; and, on the other
hand, speak of ius gentium when they desire to point out
its practical application. In reference to the process of
juridical evolution as occasioned by the exigencies of
increasing intercourse, one may say, with Sir Εἰ, Pollock,?
“that ius gentium was presumed to follow ius naturale,
if the contrary did not appear.” :
Now to determine which of these two expressions
was used first is of the utmost difficulty ; indeed, it
is well-nigh impossible. On this subject one writer has
said one thing, another writer has said another thing 5
but, it must with all respect be said, no sufficient
1 Cicero, as a rule, uses the expression /ex naturae when he argues
his subject from a philosophical point of view, as, for example, im
Tusc. Quaest. i. 30; De Inventione, ii. 67 and 161 ; De Leg. (passim).
2 Op. cit. p. 75.
>
te
4
2
δή ipa tal:
ἐ THEIR RELATIONSHIP 93
‘of the respective underlying conceptions. Can one say
with an adequate degree of definiteness which of these
_conceptions—that οἱ the more concrete ius gentium
or that of the more abstract ius naturale—became
crystallized first ? ΤῸ point to this or that as the earlier,
“as investigators for the most part have done, is, it
is submitted, to commit that psychological fallacy
“(as it may be termed) which induces the unwary
“inquirer to infer from his own abstract detached point
of view, consequent on an elaborate self-introspection
coupled with @ priori assumptions of a false logic,
‘that certain notions which arise in his own mind
and deemed to arise in a certain order, must necessarily
have existed in the same form and evolved in the same
order at a different epoch and in different minds.
Further, and even from the point of view of a strictly
formal logic, may we warrantably say that in the
development of apperception the particular aspect (as
being related more to the ius gentium) distinctly and
_ of necessity precedes the general aspect (as being related
“more to the ius naturale)? It is again submitted,
indeed, it is self-evident,—though, strangely enough,
writers endeavouring to establish a priority have over-
looked this fact,—that in the evolution of thought,
legal or otherwise, the analytic and the synthetic
processes necessarily accompany each other, and are
as inseparable, if the comparison may be made, as
the convex and concave sides of a curve. Of course,
for certain purposes now this now that aspect is empha-
sized; the attention is directed to and concentrated
on this or that process, or this or that conception. But
if, in this way, the one is made explicit, the other
does not thereby become a non-entity, but remains
implicit; the one is in the focus of consciousness,
the other is in the margin, and they are ever ready
to exchange positions. And so, it is maintained, in
Fallacious
argument of
most writers.
The analytic
and the
synthetic
mental
processes
accompany
each other.
Simultaneous
development
of the notions
contained in
zus gentium
and zus
naturale,
Ius gentium—
tus fetiale and
tus bellicum.
lus gentium
and private
international
law.
Twofold
character of
tus gentium.
94 [δ GENTIUM—TWOFOLD NATURE
opposition to the customary determination of priority, |
that the notions underlying ius gentium and ius naturale
arose and were developed simultaneously,—and, more-_
over, were thus evolved not along independent parallel
lines but in indissoluble association, by inevitable inter-
sections and reciprocal implications.
The ius gentium represents both the private inter al
national law and the public international law of Rome.t
No clear distinction appears to have been made between
the two. Sometimes the expression ius gentinm is als
used in connection with ius fetiale or ius bellicum,—
in some cases to point to a comparison, in others tol :
point to a contrast. 4
The private international character of ius gentium
was more accentuated in the earlier stages of its”
evolution. The extension of commercial relationships
and the increasing influx of strangers necessitated
the adoption of certain common rules and principles |
which dispensed with the need of inserting in treaties
express stipulations as to recuperatio. The ius civile
Quiritium was a personal law applicable exclusively —
to the civis Romanus; the ius gentium was a law appli-
cable to all free men on Roman territory. Thus it was—
in this respect more of the nature of a territorial
law, resulting partly from the national policy, and
partly from a national juridical conscience. And
though it was not as clearly defined and systematically
set out as the modern private international law, it
yet comprised a certain body of rules for avoiding
or resolving conflicts that might arise between different:
systems of legislation.
Rudorff emphasizes the twofold character of ius
gentium as governing, on the one hand, the relation-
ships between States themselves, the ius belli et pacts,
and, on the other, the legal relationships between
1Cf. G. Baviera, 1] diritto internazionale dei Romani (in Archivio
giuridico, Modena, 1898 ; Nuova Serie, vol. i. and ii.), pp. 446 529-5
the greater portion of chap. Vii. j
3 Sie | ale Bk ie | ee
AS PRIVATE INTERNATIONAL LAW — 95
“individual members of different States, eg. the law
of intermarriage and various contractual obligations,
[ ‘such as mutuum (loan for consumption), amongst uni-
lateral conventions, emptio (purchase and sale), /ocatio
(letting and hiring), amongst bilateral conventions, and
several others, so far, of course, as these are of an
‘interstatal nature. Their application, and the obligations
clearly prescribed, thus tended to secure peace and the
pprotection of property.’
This ius gentium, as a code of private international /us gentium
“haw, cannot be strictly considered merely a national law, *2rva'e
as writers such as Fusinato” have done. It was neither !@w.
Be τον national in its application, nor even purely
‘Italian in origin. ‘A nation that borrowed its alphabet
‘from a Chalcidian city, that imitated the military
organisation of the Hellenes, that traded in the sixth
century with Sicily, Sardinia, Libya and Carthage, must
have been deeply imbued with the customs of the
Greek and Phoenician world.” Neither can it truly
be said that such law was the necessary outcome of
Rome’s political supremacy ; for many of the elements
already existed before her supremacy for the purpose of
regulating differences arising out of interstatal com-
mercial dealings.
With the territorial expansion of Rome and the
o Ὁ πες at he Pe ee ee
is» a
1A. F. Rudorff, Romische Rechisgeschichte, 2 Bde. (Leipzig, 1857),
vol. i. p. 3: “Zwischen und iiber diesen nationalen Rechten steht
das internationale jus gentium. Es enthalt die gemeinsamen Grund-
lagen des Verkehrs, nach welchen zu entscheiden ist, wo das eigene
oder fremde Civilrecht nicht massgebend sein kann. Als gemeines
Recht der Staaten seines Rechtskreises beherrscht es die Rechts-
verhaltnisse (1) der Staaten gegen einander, das Jus belli et pacis,
(2) der einzelnen Glieder verschiedener Staaten, also das inter-
nationale Privatrecht, z. B. das Recht der Wechselheirathen und
obligatorischen Vertrage, soweit sie wie das mutuum (μοῖτον), die
emptio, locatio, u.s.w. international sind, den Schutz des Besitzes
und des Rechtsfriedens.”
2G. Fusinato, Le droit international de la république romaine (in
Revue de droit international et de législation comparée, Bruxelles, 1885,
vol. xvii. pp. 278 se¢.).
SA. H. J. Greenidge, Roman Public Life (London, 1901), p. 294.
Roman
national policy
—and imperial
expansion,
Roman
relationships
with foreign
nations,
The zus fetiale,
and the zus
gentium.
96 IUS GENTIUM AND IUS FETIALE
gradual extension of her predominance, her legal
attitude with regard to non-citizens was generally made
to depend on political considerations, on State interest.
Two principles, it may be said, dominated her national
policy as to imperial expansion : firstly, to permit
the inhabitants of submitted provinces to preserve their
personal laws so far as the interests of administration
necessitated no radical change ; secondly, to concede to
foreigners coming to settle in Rome all such rights
and privileges as were in accord with the demands
of equity and not prejudicial to national political
interests. For centuries there were several inter-
mediate gradations between full Roman citizenship
and the purely private law of aliens; there was, for
example, an important distinction between Latin rights,
Italic rights, and provincial rights. '
The rules regulating Rome’s relationships with
foreign nations in their sovereign capacity are some-
times referred to under ius fetiale, sometimes ius belli.
et pacis, sometimes ius gentium. ‘These rules did not,
of course, constitute-an international law in the
modern sense of the term. The customs and usages
were not always uniformly observed ; and they scarcely
acquired the objectivity and perfection of formal law.
But modern international law is not always characterized
by this quality. The Roman jurisconsults recognized
in the ius fetiale, and in the ius civile Romanorum a
common philosophical basis, viz. the saturals ratio.
Thus, Gaius, speaking of the capture of enemy property
which thereby becomes vested in the captor, says in the
Digest:' ‘Quae ex hostibus capiuntur, iure gentium
statim capientium fiunt,” walls in his Institutes the
same rule is thus formulated : . Quae ex hostibus
capiuntur naturali ratione nostra Hae Εἶδε ;
The ius fetiale, however, is by no means identical with
the ius gentium, though the latter served to a large extent
as a guide in the development of the fetial institutions.
The zus fetzale was a special system of principles and
1 Dip. v. 41. 1.7. 211. 69.
a ek sh aK ara ΩΡ
IUS FETIALE AND 105 BELLI 97
practices under the guardianship and jurisdiction of the
college of fetials.1 It prescribed the necessary formalities
and proceedings relative to the declaration of war, to
‘the conclusion of peace and of treaties, and to extra-
dition for certain offences. In many points it coincided
with the ius gentium, in the sense that the special is
contained in the general, though certain matters of the
‘tus fetiale—rather minor matters concerned with formal
proceedings than fundamental questions relating to
‘the veritable foundation of international law—were not
found in the ius gentium, since they were provisions
inculcated more by the Roman my at than by broad
legal conceptions. Hence, an infraction of the ius
fetiale constituted an offence against religion primarily,
and sometimes against religion and the ius gentium
equally. The ius fetiale was a formal recognition, with
an added religious sanction, of customs and practices
of war, and the other questions already suggested, of
which the ius gentium took cognizance; so that it
included, more or less, the ius deli? of the Roman
jurists, the ius bellicum of Cicero,? the fas armorum of
Tacitus,‘ the assueius belli mos, of Silius Italicus.6 But
it is to be observed, as Poste points out,® that (in
_ 1T he view in the text differs somewhat from the opinion of
Fusinato, op. cit., and agrees in a sense with that of Chauveau, who
Tholds that the ius fetiale is “la partie du droit des gens, du jus
gentium, rentrant dans les attributions exclusives des fétiaux ; quant
‘au jus gentium, qui a pour équivalent jus belli ac pacis, c’est, dans son
‘acception primitive, l’ensemble des régles applicables aux rapports
entre les peuples et présentant un caractére juridique international.”
(A. Chauveau, Le droit des gens dans les rapports de Rome avec les
peuples de Pantiquité, in Nouvelle Revue historique de droit francais et
étranger, Paris, 1891, No. 4, pp. 393-445 ;—cf. p. 409, note.)
But, it must be pointed out, the ius gentium was not the equivalent
of the ius belli et pacis, in the sense of their being co-extensive ;, the
latter was subsumed under the former, which, therefore, as the wider
category, included many matters foreign to the ius belli et pacts.—See,
further, above text.
2 Cf. also “ Nil belli iura poposcit” (Lucan, vii.).
8 De offic. iii. 29. 4 Hist. iv. 58. 5 Born c. 25 A.D.
SE. Poste, Gaii Institutiones juris civilis (Oxford, 1890), p. 358.
G
lus bellicum
and zus fetiale.
lus legatorum.
lus fetiale and
zus gentium—
confused by
many modern
writers.
98 IUS FETIALE AND IUS GENTIUM
keeping with the already explained elastic use of the
expression ius gentium) the word ius in the term ius
belli sometimes designates not so much ‘right’ or
‘law,’ as sanction, or executive power, or means of
compulsion ; and Ovid in one place appears to employ
the word in the sense of self-control, or inner force :
‘“‘ Nam desunt vires ad me mihi iusque regendi.’’ ἢ |
Strictly speaking zus dellicum* is not synonymous with
ius fetiale, as has generally been held ; for it refers more
particularly to the rights and obligations resulting from
the actual state of war, and thus is, in many respec
allied to the ius gentium.
Another portion of public international law, viz. that
relating to the rights and duties of ambassadors, is often
specifically described as the ius /egatorum® This is part
of the ius gentium, but it is also connected with the ius
fetiale. 3
A good many writers seem to have confused also the
ius fetiale with the ius gentium. ‘Thus Zouche uses the
expression de iure feciali+ as synonymous with ius inter
gentes, that is, he makes it cover the whole sphere of
international law.’ More recently Wheaton,® Calvo,”
and others have failed to discriminate carefully between
ius fetiale,and ius gentium. The main difference between
the two may perhaps be very briefly stated to be that,
whereas the ius gentium represents sometimes the ideal
to be aimed at which serves as a guide—thus exhibiting
—_—
hile)
δον 4
1 Amor. 11. 4. 7.
2Cf. Cic. De offic. iii. 29.—In De offic. i. 11, he speaks of dur
belfi with the same meaning.
8 Dig. 1. 7. 17.
4 As to the spelling of this word, see infra, on the fetials.
ΞΟ ΕΛ ΤῊ tee
ὦ ὩΣ δι bi Re,
5 Cf. the present writer’s contribution on Zouche in the Journal of
the Society of Comparative Legislation, New Series, No. xx. April, 19097
pp. 281-304; p. 282.
6 Op. cit.
7C. Calvo, Le droit international, 6 vols. (Paris, 1888-1896),
vol. i. p. 4. Γ
|
‘
4
μ᾽
_ IUS FETIALE AND IUS GENTIUM 99
nderlying relationship to the ius naturale,—and
times the actual substance of the law, the ius fetiale
ates rather the jurisdiction which takes cognizance
f certain matters of the ius gentium (which, conse-
uently, possesses wider extent), though, by a natural
mecdochical process, the term (ius fetiale) is also
lied to the body itself of these matters.
CHAPTER IV
THE POLICY OF ROME,—TO WHAT EXTENT SHE —
RECOGNIZED AN INTERNATIONAL LAW
Rome's foreign IT has very often been maintained that Rome’s foreign ~
policy—and
position of
international
law.
Roman
diplomatic
methods—
frequently
rigorous
but many
relaxations.
policy, her history of war and conquest made the very ©
existence of international law impossible, and tended to —
transform her ius fetiale into a worthless formality, or a
mere cover for imparting a legal semblance to illegal ©
practices. Such an extreme assertion is far from being —
accurate. The history of Rome may have been a long
series of wars and conquests ; her temple of Janus, the -
guardian god of peace, as Suetonius says,! may have
been closed, as an indication of established peace, only
twice in seven centuries, from Rome’s foundation to
the reign of Augustus. Notwithstanding this she
evolved and practised a large body of principles which —
have furnished the basis of international law for all
time. Nations like the Hellenic excelled in art,
literature, and philosophy ; the Roman genius lay in-
conquest, imperial expansion, in the practical sphere
of political organization and juridical development.
Roman diplomatic methods were no doubt rigorous”
from time to time, but in practice various important
relaxations were frequently adopted, such as, for ex-
ample, her insistence on the right of sanctuary at Teos, ~
in 193 B.c.,~—a recognition which by no means con-
duced to her selfish interests. By concentrating their
1 August. 22; cf. Paulus Orosius, Hist. vi. 20,21, 22 ; Ovid, Fasti,
i, 121-124.
2 See on this subject infra.
ee ee ee ee eS
STATE INTEREST AND POLICY ΙΟΙ
attention on the great wars of Rome, the majority of
writers lamentably neglect her pacific proceedings.
_ The interest of State was, of course (then as now), State interest.
_the supreme consideration. Rome’s supremacy was
ever ready to assert itself; but often she protected
weaker States. Thus, after the battle of Cynoscephalae,
where she defeated Philip of Macedon, she had then
no serious rivals in the East; nevertheless, she re-
spected innocent liberty and encouraged sentiments of
local independence. ‘“Ainsi le mépris des nationalités
naveuglait pas la nation conquérante, et les plus petits
peuples l’ont trouvée souvent attentive 4 leur honneur
comme a leur intéréet.”! In some cases, however, it
must be admitted that Rome’s supremacy was affirmed
even when, animated by political interests, she pro-
claimed the liberty of certain nations ; for example, the
liberty of the Greeks of Europe and Asia was declared
by a senatusconsultum.? A similar enactment absolved
for a time Masinissa, king of the Eastern Numidians,
from the Roman imperium;* and Livy mentions another
declaration of this kind in the case of the Corinthians,
Phocians, and Locrians.t Such proceedings are con-
fessedly rather the unilateral acts of supremacy than
bilateral conventions of an international character.
Cicero often emphasizes that justice must be observed Justice ana
even towards the weakest and meanest—‘ meminerimus {27° ‘°
autem etiam adversus infimos justitiam esse servan- nations.
dam,” ° and he could have readily cited in support
of this principle numerous examples from Roman
history. The Roman writers all celebrate the justice, Praise of
the equity, the nobility of their fatherland. Rome Romay
is described as the flower of humanity, the model
of kindness and fairness. Virgil speaks of “rerum
1 Egger, op. cit. p. 160. 2 Plut. Flam. το.
8 Val. Max. vii. 2-6.
* Liv. xxxiii. 32: “Senatus Romanus liberos, immunes, suis legibus
iubet esse Corinthios Phocenses, Locriensesque omnes.”
5 De offic. i. 13.
102 ROMAN POLICY
pulcherrima Roma,”’ Livy says the Roman Empire was
the greatest after that of the gods, and that justice
and good faith conduced to the attainment of such _
a great position. The historians and other writers |
of Greece, Diodorus the Sicilian, Dionysius of Halicar-—
nassus, Polybius of Megalopolis, Plutarch the Boeotian, |
though the victims of Rome’s domination, added to the ©
glorification of their conquerors.? Bodin, writing in ©
the last quarter of the sixteenth century, attributed ©
the greatness of Rome to her magnanimity, and especi- ©
ally to her justice: “La république des Romains a
fleuri en justice et surpassé celle de Lacédémone, parce —
que les Romains n’avaient pas seulement la magna-
"θα. πιῶ δ Oh a RO
nimité, mais aussi la vraie justice leur était comme
un sujet auquel ils adressaient toutes leurs actions.” 3
The Italian jurist Gravina, going even further, holds —
that the Roman domination was the only just one, as”
it was based on reason ; the Romans considered as their —
own enemies only the enemies of humanity; their
treatment of the conquered peoples was exemplary, —
inasmuch as they were deprived only of the power
to do harm; slavery was imposed only on those who ©
preferred a savage existence to social life; civilized
peoples were permitted to enjoy their own laws; in
a word, the Roman aim was to spread civilization —
and to realize universal association.* Bossuet is also
high in his praise: “‘ Je ne sais s'il y eut jamais, dans
un grand empire, un gouvernement plus sage et
plus modéré qu’a été celui des Romains dans les /
1 xliv. de
2Cf. Diod. Sic. xxxii. 4, 5; Dion. Hal. ii. 72; Polyb. xviii.
20; Plut. Numa, 16.
8 Les six livres de la République (1576), 1. 1.
4 De jure naturali, gentium, etc. (in Origines juris civilis, Lipsiae, —
1708) p. 255: “Hinc Romanorum unice, atque undequaque justis- _
simum fuit imperium, quippe fundatum in vertice rationis humanae. ~
... Humanitatis enim hostes tantum Romani ducebant suos...
quibus victis... nihil eripiebant praeter injuriae licentiam; nec —
servitute premebant, nisi qui rationis legibus repugnarent, et civili —
vitae immanem vivendi ritum anteponerent....” q
—_—_—
DIFFERENT EPOCHS AND PRACTICES 103
provinces.” ἢ Herder was among the first to assume
a contrary attitude.”
It is necessary, however, to distinguish between Important
the earlier and the later period of Roman history. (Qavecrghe.
In the earlier period, say to the conclusion of the farlier and the
Second Punic War, there obtained a readier recognition of Roman
of rules of international conduct, to which Rome ™*°*”
considered herself as well as all other civilized nations
subject; the principles of reciprocity and juridical
equality were largely accepted ; and political and com-
mercial intercourse between Rome and other States
for the most part proceeded in accordance therewith.
This condition of things was to some extent due,
‘no doubt, to the fact that at this time Rome came
into contact with powerful Italian nations. After the
victory of Porsenna, for example, she was obliged to
submit to conditions which were by no means to her
liking.® |
But a gradual transformation was already perceptible Dectine of
at the time of the conflict with Pyrrhus. After the esi ὀγωῦ
victory at Zama (B.c. 202) the law of nations suffered ¢poch.
an indubitable declension. Carthage became the
dependent ally of the Roman Republic, and Philip
and Antiochus were obliged to submit to humiliating
terms. Barbarian invaders were quickly dispersed.
Rome regarding these peoples as uncivilized admitted
no legal obligations towards them. The principle of
reciprocity was disappearing ; though various rules, as,
1Ve agvertissement aux Protestants; cf. his Discours sur ἢ histoire
universelle, 3° partie, chap. vi.
2 Cf. Ideen zur Philosophie der Geschichte, xiv. 3.
$ Tacit. Hist. iii, 72; Dion. Hal. v. 34; Pliny, Hist. Neat.
xxxiv. 4: “ Porsenna defendit ne ferro nisi in agricultura uterentur,”
—which indicates a thorough submission on the part of the Romans,
—The story is that Porsenna offered peace to the Romans on condi-
tion of their restoring to the Veientines the land which they had
taken from them ; that these terms were accepted, and that Porsenna
then withdrew his troops from the Janiculum after receiving twenty
_ hostages, from the Romans.
Roman
supremacy
after the second
Punic war.
Proud boasts
of Roman
writers of this
period.
104 DIFFERENT EPOCHS AND PRACTICES
for example, those concerning the inviolability of
ambassadors and the fetial procedure, were always
admitted to be binding. The Senate was loth to decide
judicially between conflicting claims ; it rather imposed
its will, and arrived at conclusions based on considera- |
tions of State interest, neglecting the demands of
impartial justice. Thus, when the truce conceded
to Perseus was being discussed in the senate, the oldest”
senators, inspired by Rome’s earlier and nobler conduct, —
condemned the action of the deputies in having
deceived him, but, as Livy says, that part of the
senate prevailed in whom self-interest predominated
over fairness and justice,—“‘...vicit tamen ea pars”
senatus cui potior utilis quam honesti cura erat.” ἢ :
Indeed, in the period after the Second Punic War,
Rome’s supremacy was not only established in fact, but
was consistently insisted on or implied in political
relationships with other nations. After their defeat,
cities were ostensibly permitted to retain their independ—
ence, but in actual practice they were, as allies of
Rome, virtually under her protection and hegemony. ~
The usual clause in treaties—‘ ut eosdem amicos et
hostes haberent”—implied a complete submission to-
Rome in regard, at least, to foreign relationships.
Thus, internally these cities preserved a pseudo—
autonomy, externally they were deprived of effective”
sovereignty. In the case of their foreign conflicts”
Rome intervened as arbiter, in their intestine discords ©
she interposed as mediator; and sometimes even, ©
when public interests required it, the Senate assumed
direct control.? q
Roman writers of this period proudly insist on the ~
supremacy of the Republic; her people are designated
the “ princeps orbis terrarum populus,” and the world
is regarded as the ‘“orbis Romanus.” Similarly,
subsequent writers panegyrize the earlier exploits and
transcendent glory of Rome; but, in some cases, they ~
1 Liv. xlii. 47. 2 Cf. Chauveau, op. cit., init,
__ DIFFERENT EPOCHS AND PRACTICES τὸς
‘also deplore the manifest decline from former greatness.
Thus Tibullus writes :
“Roma, tuum nomen terris fatale regendis,
Qua sua de caelo prospicit arva Sane
Quaque patent ortus et qua fluitantibus undis
Solis anhelantes abluit amnis equos.”’!
(Rome, thy name is destined to rule the Earth, wherever Ceres
from her heaven looks down on her fields, from the regions
where the sun rises to where his panting steeds bathe in
the restless waves.)
Petronius :
“Orbem iam totum victor Romanus habebat :
qua mare, qua terrae, qua sidus currit utrumque.” 2
(Rome had now conquered the whole world, as far as earth
extends or ocean rolls, from the rising to the setting sun.)
Lucan :
“... Quo latius orbem
Possedit, citius per prospera fata cucurrit.
Omne tibi bellum gentes dedit omnibus annis :
Te geminum Titan procedere vidit in axem,” ὃ
(The poet laments the slaughter in the conflict between Pompey
and Caesar, and refers to Rome’s earlier glory and her
vanishing greatness. ‘¢’The greater her possessions have
been in the world, the more speedily have her prospering
destinies run by. ‘Throughout all ages, every war has
given thee conquered nations; thee has Titan beheld
approaching both poles.’’)
_ The cosmopolitan tendencies of the later epoch never Narrower
really displaced the intense patriotism. Cicero, under Pagzousm ans
the influence of Greek philosophical doctrines, asserts ™opolitanism.
that wisdom and virtue recognize no exile ;4 neverthe-
less, as a true Roman, he advises the exiled Marcellus
to appeal to Caesar’s clemency, adding that if death
threatened him he would certainly rather suffer it in his
Own country than in a foreign land. Ovid, enthusiastic
lil. 5. 57-60.
2 Saturae,c. 119; ed. F. Buecheler (Berolini, 1904).—Cf. also Cic,
Pro Muraena ; Marcellinus, xix. ; xxiil.
8 De bello civili, vii. 419-422. 4 Tusc. v. 37 3 Pro Milone, 37.
5 Epist, iv. 7.—Cf. Pro Milone, 38.
Roman
international
law shows
progress,
Roman law of
nations the
basis of the
modern
system.
Erroneous
inferences of
modern critics.
—o.
106 ROMAN INTERNATIONAL LAW
over a Greek maxim, says all the world is a land for
the brave man,' but his Roman spirit betrays itself else-
where.? Seneca, when banished to Corsica by Claudius, -
makes use of Stoic arguments as to exile,* but after-
wards he avows a secret anguish.‘
And yet when all is said, when every possible detrac-
tion is made, Roman international law shows a great
advance on that of Greece (as Greek international law
was an advance on that of the other nations of antiquity),
inasmuch as it eliminates ideas of religious exclusiveness,
and imparts to it a true juridical foundation. Even in
theory, the generous conceptions of Cicero® show ἃ
broader outlook than the rigorous doctrines of Plato
and Aristotle in regard, for example, to the treatment of
foreigners. And not only is Roman international law
progressive ; it furnishes, indeed (it is not amiss to”
repeat), a great part of the groundwork of our modern
system. As to the extent of Rome’s recognition of
international law, writers have expressed very different
opinions. The majority of writers,—one must in all
conscientiousness say,—have exhibited a lamentable
lack of scientific method and argumentative precision.
Often their assertions are mere undiscriminating repeti-_
tions of the dogmatic opinions of earlier writers, who
usually generalized after merely superficial inquiry, and
were often misled by a casual remark found in the
classical authors, such as, for instance, “ ubi solitudinem >
faciunt, pacem appellant” (as the Briton Calgacus 18.
made to say),° the ‘“debellare superbos”’ of Virgil, or
by such statements as, “ adversus hostem aeterna auctori-
tas esto”’ from the XII. Tables. In some of these cases, —
1 Fasti, i. 393.—Cf. the saying of Democritus, as cited by Stobaeus ἃ
(Fhrilegium, xl. 7): ᾿Ανδρὲ σοφῷ πᾶσα yn Bary ψυχῆς γὰρ ἀγαθῆς
πατρὶς 6 ξύμπας κόσμος. (For the wise man every country is habit-—
able ; since to the virtuous soul all the world is a fatherland.)
2 Tristia, i. 3. 8 Consol. ad Helv. vi. viii. etc.
4 Epigramm. i.; Consol. ad Polyb. 32.
5 De offic. i. 7 and 13; ii. 8. 6 Tacit. Agric. 30.
Ss
JURIDICAL BASIS OF PRACTICES 107
‘actual facts are carelessly inferred from rhetorical
flourishes, in others expressions are taken out of their
“context, and the real significance of the terminology is
‘lost sight of. As a recent author says, the legal
exclusiveness of Rome has been strangely exaggerated
by various writers, to the extent of assimilating it to
_barbarism,—“. . . cercarono rinforzare i loro risultati,
esagerando fantasticamente l’esclusivismo dei Romani,
‘tanto da assimilarlo ...ai selvaggi.’’! Again, occasion-
ally Rome’s time of decadence—her period of avarice,
despotism, and irreligion—is unjustly taken as represent-
ative of the whole extent of her history ; then we get
such a dogmatic utterance as: “le prétendu droit des
gens des Romains n’est qu’une chimére.” 2 Others—for
example, Bonfils—insist on the perfect reciprocity of
obligations as the indispensable criterion, and findin
that this reciprocity is not always perfect and absolute,
in conformity with modern notions, conclude that inter-
national law was a non-entity in Rome ; that the various
matters relating to the conclusion of treaties of peace
and to the international status of ambassadors were of a
political rather than of a juridical nature.®
—
If the law of force was the only dispensation, how is Roman
it possible to explain the formation of alliances between Practices and
Rome and less powerful cities, and the agreement on showing
i aj s adherence to
reciprocal concessions and mutual treatment, the resort law,
to arbitral procedure, the functions of the tribunal of
‘recuperators? How is it possible to account for the
institution of hospitium publicum, provisions for natural-
ization, the practice of extradition, the immunity of
ambassadors, the regular procedure and formalities in
the conclusion of treaties, the conception of protec-
1 Baviera, op. cit. vol. i. fasc. 2, p. 271.
2M. Revon, L’ arbitrage international (Paris, 1892), p. 101.
8H. Bonfils, Manuel de droit international public (Paris, 1905), p. 35 :
* Mais ces faits, dictés par la politique, ne peuvent étre interprétés
comme constituant des actes juridiques, comme des manifestations et
_ des applications d’un droit international.”
Attributing to
religious
sanction does
ee
108 JURIDICAL BASIS OF PRACTICES Ι
torates, the notion of territory from an internatignil
point of view? How is it, on this assumption, possible
to account for the constant insistence on the necessity
of due declaration before the actual commencement of
hostilities, and on the observation of certain regularized
proceedings preliminary thereto, and also on the right
of asylum, the sanction of pledged faith whether in
peace or war, the granting of safe-conducts, the regula-
tions as to treatment of the conquered enemy and
captured property, the burial of the dead, truces, armis—
tices, the ransom and exchange of prisoners, the doctrine
of postliminium, the position of hostages? How is it
possible to account for the use of such expressions as
“ius belli et pacis,” the adoption of phrases of municipal
law in questions of foreign relationships, e.g. “ condicere_
pater patratus, ᾿ © dare fieri solvi oportere, ” condicere
bellum,” “ ‘pacem spondere,”’ “agere” or “ vindicare ex.
lure belli,” “ pignus facere,” “ius persolvere, adipisci,’ Ἰ
and the like Do not all these matters, even on merely
superficial examination, show clearly that a system ot
law was in course of development, of which a large body |
was already recognized, for regularizing and controlling
international relationships, and for settling disputes
arising therefrom by means other than that of violence ὃ
Further, to attribute what rules there were to the
sanction of religion is not at all tantamount to a denial
not necessarily of their validity and applicability, and hence their relation”
destroy
juridical
significance.
Conformity of
foreign
relationships
to a certain
body of rules.
to juridical economy. ‘The fas prepares the way for and
merges into ius; custom makes law; and religiong
makes custom.
Again, it is not an indispensable condition in the case
of ancient international law that there should be a
universal recognition of the autonomy of States, of their
sovereign power to the extent of imparting to them an”
objective juridical personality. It suffices, it is sub- 4
mitted, that there should be simply a certain body of
rules to which foreign relationships, public or private,
conformed. And such a body of rules certainly existed.”
1 Cf. Baviera, op. cit, p. 272.
AZ
ἐπ aac
JURIDICAL BASIS OF PRACTICES 109
Of course, there was not a complete system elaborately Imperfect
organized and scientifically constructed, so as to point to ection!
a solution of all possible difficulties beforehand. To system.
judge entirely and exclusively from the modern point of Criticism and
view is to be hopelessly blind to the elemental phe- jj¢"°°*™
nomenon of growth, the changeability of human con-
ditions, and to the inherent elasticity of law as being a
reflex of, or being dependent on, those conditions. M.
Revon emphasizes the unfixed character of the law of Law of nations
nations and the perpetual change in its forms, and com- chetbel
pares the process of its evolution to the monotonous “"8*
and rhythmic movement of the ebb and flow of the sea :
“Le droit des gens, en effet, n’est point une science fixe
et immuable: bien au contraire, il se développe sans
cesse, il change éternellement de formes ; tour ἃ tour 1]
avance et il recule, selon les vicissitudes de l’histoire et
suivant un rhythme monotone qui est comme le flux
et le reflux d’une mer.”! The same author, who—
curiously enough—elsewhere said that the Roman inter-
national law was nothing but a chimera,? asks whether
we are now really more advanced in international law
than the Romans.? In certain matters it is clear we In various
have made substantial progress, but in other points, he tees ee
maintains, we have retrograded ; for example, in the ngtonsin.
‘middle ages the oath was not always respected as faith- later law.
fully as in ancient Rome ; and nearer our own times, in
the seventeenth century, Grotius proclaims the unques-
tioned right of belligerents to massacre the women and
children of the enemy ; and in our more modern age
the due declaration of war which the Romans always
conformed to has not been invariably observed.
The caution of not confounding modern conceptions, To _
modern method and scope with the ancient cannot be Sine
too strongly emphasized. M. Fusinato well points out moder point
of view and
the danger of judging the legal relationships of ancient the ancient.
1M. Revon, De Vexistence du droit international sous la republique
“romaine (in Revue générale du droit, de la législation, et de la jurispru-
dence, Paris, 1891, t. xv. pp. 394-405 ; 504-510), p. 509.
2 See supra, p. 107. 8 De Pexistence, etc. loc. cit. pp. 509, 510.
110 NOTION OF CIVITAS GENTIUM
peoples according to the comprehensive and complex
ideas fostered by our vast modern culture and know-
ledge, and of inferring the absence of juridical conditions,
through a confusion of objective law with some parti-
cular form assumed at a given historical moment. “ Gli
ἃ che troppo spesso, nel ricercare quali fossero le relazioni_
di diritto dei popoli antichi, si giudicarono quelle relazioni
con i vasti criteri che ne consente la sviluppata cultura”
dei nostri tempi; e come allora quelle relazioni si
trovarono governate dai principi talvolta in opposizione —
assoluta con i nostri, si confuse il diritto, obiettivamente
considerato, con la forma particolare che esso puo-
assumere in un determinato momento storico, e se ne
dedusse la negazione della esistenza di quelle relazioni-
77,1 Ἷ
medesime. 4
Recognition of One may go further than merely assert the existence
ations by” ΟΥ̓ a body of rules to which foreign relationships con-
Act ρα, formed. It may, in truth, be said that (at all events, in”
the first period of her history) Rome recognized the
existence of sovereign and independent States other than
Civitas her own, that she had clear notions of a civitas gentium,
eae and possessed an international Juric. consciousness,
consciousness. and admitted the principle of reciprocity. Such recog-—
eciprocity.
nition of international law depends, of course, on the
fact that other States to which its provisions may apply
Such are properly constituted. Juridical capacity was not
tho ec of admitted in the absence of a duly established political E
Sees" organization. The principle of reciprocity was not cnt
ates
tained in the case of a mere conglomeration of people,
devoid of political unity. Just as the slave was deemed
to be incapable of enjoying the provisions of the civil
law, which was reserved for cives alone, so were the
benefits conferred by the law of nations, which was
reserved for civitates alone, withheld from a disorganized _ ἢ
group of individuals,—in Cicero’s phrase: ‘omnis —
hominum coetus quoque modo congregatus sed coetus
1 Dei fexiali ... loc. cit. p. 454. )
2Cf Baviera, ἦρε. cit. vol. i. fasc. 3, pp. 463 seg. z
JURIDICAL PERSONALITY [1
-multitudinis iuris consensu, et utilitatis commune con-
sociatus.” 1 Only with States as political organisms, as
“free nations,”* did Rome negotiate her foedera, her
Sponsiones, her indutiae, or exchange ambassadors, or
make use of the indictio belli; and, likewise, in the
general relationships of war Rome invariably made a
similar distinction between “ regular” and “irregular ”’
enemies.
To the Romans the treaty-making power presented Treaty-making
two aspects: on the one hand, in a negative sense, a Pidical and
treaty could not be entered into with a people not pos- poltieal ν.
sessing autonomy, juridical and political individuality, —
on the other hand, in a positive sense, the bilateral char-
acter of a convention disappeared as soon as a contracting
people’s independent personality was lost or impaired.
For the treaty-making capacity implied then as now a
sovereign will with its power of deliberate choice to be
bound in this or that way.®
Other arguments, well emphasized by M. Baviera,‘
showing the co-existence of politically independent and
sovereign States are found in the various formalities
necessary for the conclusion of foedera, in the power and
practice of coining money independently, in the mutual
recognition of the ius exi/ii and of the ius postliminii, and
in the acceptance by belligerents of equality of treatment.
The money-coining power was universally considered Money-coining
an exclusive privilege of sovereign States. As Mommsen Bibi
points out, the recognition of the very existence of an
organized State was a corollary of the recognition of a
people’s right to coin its own money. ‘Das Minz-
recht ist, rechtlich betrachtet, ein Theil der Gesetzgebung
und hat auch im Alterthum wie heut zu Tage als Be-
standtheil und Zeichen der staatlichen Souveranitat
1De Rep. i. 25 ; cf. Philipp. iv. 5. 6.
2On meaning of “free nations,” see infra, as to when declaration
of war is essential, and when it may be dispensed with.
3See infra, for instances, such as the foedus Cassianum (261 B.c.),
where the sovereignty of the Latini was clearly recognized by Rome.
4 Loc, cit. pp. 4.74. “6.
112 POLITICAL INDEPENDENCE
gegolten.”! The Latin cities, bound to Rome either by
a pact of alliance or by nationality, were not only inde-
pendent but sovereign, and from the right of sovereignty
is derived the right of coinage. They could have
adopted, had they been so disposed, special systems of
currency ; but, in fact, they made them agree with the
Roman monetary system as far as their habits, circum-
stances, and local needs permitted them.?. On the other
hand, to deprive a people of its autonomy, or to reduce
it to political semi-independence, is ipso facto to take
away from it the right of coinage entirely in the case of
the first alternative, or, in the case of the second alterna-
tive, to impose certain restrictions on it, as, for example,
a limitation to silver coin or to bronze coin, as the case
may be.* Thus the peoples allied to Rome on the basis
of a foedus aequum, that is, on an equal footing as to
rights and obligations, had their own respective money —
systems, inasmuch as they enjoyed sovereignty. In the
confederation of Rome with the various nations of Italy,
as Mommsen reminds us, we may see that the States
which possessed the greatest measure of political inde-
pendence were precisely those that possessed the fullest
right of coinage. The confederates of Rome came
within this category, and amongst them were the Latin
colonies as the most favoured.‘ |
1 Geschichte des romischen Minzwesens, p. 309.
2Mommsen, idid. p. 182: “Es liegt danach nahe, diese ganze
Klasse von Miinzen auf die durch Italien zerstreuten Gemeinden
latinischen Rechts, also ausser dem wenigen in Latium iibrig geblieb-
enen altlatinischen und den diesen spiter gleichgestellten Bundes-
gemeinden vornamlich auf die latinischen Colonien zu beziehen ;—
diesen stand theils diejenige Souveranitat zu, welche zur Austibung
des Miinzrechts erfordert ward, theils richteten sie sich begreiflicher
Weise, wo die bestehenden Circulationsverhdltnisse es gestatteten, im
Allgemeinen nach dem Muster Roms.”
8 Examples in Mommsen, idid., passim, :
4Tbid. p. 309: “Aehnliches diirfen wir auch in der rémisch-
Sohail as
italischen Symmachie zu finden erwarten ; wir werden das Mtinzrecht
zunachst und am vollstandigsten bei den Gemeinden vorauszusetzen -
haben, die ihre staatliche Selbstandigkeit am vollstandigsten gewahrt
hatten, Dies sind die mit Rom féderirten Staaten iiberhaupt, vor
BR ee ONS μὰς gt P
SOVEREIGNTY AND RECIPROCITY 112
Further, the adoption of the ius exilii and of the ius sus exitii and
postliminii indicates the enjoyment of full sovereignty. ζοντο
Jus exilii implied a mutual recognition of political sovereignty.
autonomy, and enabled an exile of one State to be
domiciled undisturbed in another, and often to acquire
its citizenship.’ And ius postliminii was likewise granted
to independent nations, but not admitted in the case of
those not possessing sovereign power ; as Festus says,
referring to Aulus Gellius: “Cum populis liberis et
cum foederatis et cum regibus postliminium nobis est
uti cum hostibus; quae nationes in dicione sunt his
postliminium nullum est.” ἢ
In war relationships, again, the principle of reciprocity Reciprocity
is also attested in the proceedings and formulae of the (ixionships.
fetials, in various express laws, e.g. that of Pomponius
in the Digest,’ which recognizes in the enemy of Rome
the same rights and privileges and in the same measure
as are competent in the Romans, whether it be relative
to the acquisition of booty, or to the reduction of Booty.
prisoners to slavery, or to ius postliminii. ‘The principle Posttiminy.
is similarly admitted in the conclusion of sponsiones, that Sponsiones.
is, conventions entered into by generals in the field, in
indutiae (truces and armistices), in the granting of safe- Truces.
conducts and their admitted protective force, in negoti- *contucts:
ation for the release, ransom, or exchange of prisoners, Prisoners.
and in several other customs and_ institutions. M.
Baviera thus concludes as to the existence of the
‘principles of equality and reciprocity, based on the
‘recognition of political independence, sovereignty, and
| ey personality—at least in the first period of
Rome’s history—both in pacific and in belligerent
relationships: “ Reciprocita stretta eguaglianza rigorosa
vi fu, specie nel primo periodo della storia: reciprocita
ed eguaglianza che scaturivano immediamente e neces-
‘Sariamente dal riconoscimento della independenza e
allen Dingen also die bedeutendste und bestgestellte Klasse derselben,
‘die latinischen Colonien.”
«ICE. Cic, Pro Balbo, 11. 2On postliminium, see infra.
>) ® Dig. xlix. 15. 15. 2.
H
Juridical
basis of these
principles,
114 JURIDICAL BASIS OF RULES
della sovranita di tali popoli coi quali Roma venne in
rapporti sia pacifichi che belligeri, essendo inconcepibile
il contrario.”* The contrary, indeed, is inconceivable,
notwithstanding the assertions of detractors and the
carpings of the prejudiced.
i -—--e~
Moreover, these principles rested on a truly juridical
basis, established by an international juridical conscious—
ness, though (as has already been suggested) we must
here guard against judging indiscriminately from the
point of view of our modern conceptions and our
broad outlook. The regula iuris conferred a right and
imposed a corresponding obligation ; and it was con—
ceived that a recalcitrant State could be lawfully
compelled by the other States duly to fulfil its obliga—
tions,—so that, at bottom, the ancient ultimate sanction”
was not different from the modern. The juridical
basis is evidenced in the frequent clauses in treaties,
determining the relationships of commercium and cone.
bium, regulating the rights and duties of the individual
citizen of the States in- question, or of States in their
sovereign capacity, marking out the sphere of free
maritime navigation, providing for recuperatio and deditio.
It is also shown in the necessary formalities of the
established procedure, in the strict expression of the
solemn formulas. As Ihering says, form, especially
in ancient law, is in regard to juridical acts, what the
imprint is to the coin.2 The form with which the
stipulation of the foedus or of the sponsio was invested
indicated the intention on the part of the contracting
parties to set up a legal bond, a vinculum iuris. As m
the case of the private law, it is indispensable that there
should be an intention voluntarily expressed by a pro=
misor, and a corresponding expectation signified by a
promisee, that there should be, in the language of the
1 Loc, cit. p. 478.
2R. von Ihering, Geist des romischen Rechts auf den verschie
Stufen seiner Entwicklung, 3 Bde. (Leipzig, 1852-1878), vol. i
με 187.
—e
BE nell ea pS
PTR
JURIDICAL BASIS OF RULES 115
Digest, “duorum pluriumve in idem placitum con-
sensus.”1 The consensus in the case of the treaty
formula ‘Pacem futuram spondes δ᾽" relating to States
‘imposes an obligation marked by the same legal character
‘as that in the case of the civil formula ‘ Dari spondes?
Beato” relating to private citizens.
When a treaty was broken a reason was generally Violation of
anced for such conduct,—a reason which was con- "otles PY
sidered by the infringing party to be of juridical force, alleged just
‘The breaking of a treaty by Rome may sometimes»
‘seem, as M. Baviera observes, to be due to a mere
pretext, to a piece of chicanery; but it was, none the
Tess, usually averred to be consequent on the ‘conflicting
interpretations of an ambiguous clause, or on the
“omission of some essential formality, or on the violation
of some equitable principle. Thus in the case of the
annulment of the treaty of the Caudine Forks, the
mala fides of the Romans may have been undeniable ;
they, however, sought to justify their action juridically
on the ground that the treaty had been concluded
‘without the authority of the Roman people, and by
one who had not the power to do so.’
Belligerent relationships, too, were deemed to possess
ἃ juridical foundation. The imputation that the fetials τ
‘belonged entirely to a religious sphere is not really
‘valid. In the first place, as has been insisted on above,
a religious connection does not necessarily militate
\ against, at least does not destroy, juridical significance,
‘and, in the second place, the college of fetials was not
|
᾿
j
1 Dig. ii. 14. 1. 2; cf Dig. 1. 12. 3.
2 Gaius, Inst. iii. 94.
ὃ Baviera, loc. cit. p. 485: . La rottura ἃ rappresentata sempre
ida un motivo giuridico, un pretesto, un cavillo se vogliamo, ma
|Poggiato sul conflitto di interpretazione di una clausola ambigua,
sulla mancanza di una formalita, sulla violazione di un principio di
idiritto. Il primo trattato annullato é quello delle forche Caudine
imel 434. Nessuno nega la mala fede Romana. Ma una teoria
\giuridica sta a giustificarla: ἃ nullo, si disse, quel trattato concluso
senza l’approvazione del popolo, da quella persona che non ha il
i= di farlo.”
Legal basis
of war
relationships.
Existence of
international
juridical
consciousness,
116 JURIDICAL CONSCIOUSNESS
exclusively a religious body. When engaged in the
performance of ambassadorial functions they bore a
purely political or diplomatic character ; and when they
were called upon to pronounce on the validity or other-
wise of the suggested cause of war, on the legitimacy of
relative claims, they acted in a purely judicial capacity.
To find in such functions more or less distant associations
with religion does not relegate them in 2019 to the
religious sphere and deprive them of a legal nature; if
we but extend our ramifications far enough we shall
inevitably find a connection or kinship between
things. For the Romans warfare must be regular
iustum;+ the idea of war, more /atronum, was repugnant
to them. Just as the interpellatio was indispensable ir
private law, so was it necessary in international relation-
ships duly to set forth one’s claim, to make a form
demand for satisfaction, repetitio rerum, or clarigatio,
before resorting to violent measures. War was not
conceived by the Romans as a terrible struggle of
material force, to use the phraseology of the previously
quoted Italian writer,? but it assumed the juridical
position of a true actio; it operated as the ultimate
and supreme ratio for effecting a restitution (should
satisfaction have been denied) of violated rights, or
for obtaining compensation therefor. |
That this juridical basis of international relationships
proceeded from an international juridical consciousness’
cannot be doubted. And here, again, 18 15. necessz
1 For the juridical basis of the various causes of war, see infra
and for iustum bellum, see more fully below. |
2 Loc. cit. p. 492.
8 On the significance and content of the notion of international
juridical consciousness, see (as cited by Baviera) Fallati, Die Genes
der Volkergesellschaft (in Zeitschrift fir Staatswissenschaft, 1884)
F. de Martens, Traité de droit international, 3 vols. (Trad. du russ
par A. Léo, Paris, 1883), vol. i. §§ 45-52 (on “droit de la com
munauté internationale”); A. Rivier, Principes du droit des gem.
2 vols, (Paris, 1896), vol. i. pp. 7 seg.; Ε΄ von Holtzendorff, Ham
buch des Volkerrechts, 4 Bde. (Hamburg, 1885-1889), vol. i. § 10.
LS ΟΝ
FIDES AS THE BASIS 117
‘to insist that the international juridical consciousness
‘of men is not a stable, immutable entity throughout
the ages ; it is not some peculiarly inexplicable endow-
“ment by which men and nations are actuated to conduct
themselves in accordance with eternally valid prescrip-
‘tions; rather, it changes in proportion as the spirit
and the structure of society and the relationships of
“nations change. Cicero’s civitas gentium is not a mere
| metaphysical figment of the speculative imagination ;
his civitas (or societas) gentium is conceived to be com-
posed of sovereign and independent States enjoying their
own /eges, iura, iudicia, suffragia,—their own legal rights
and civic privileges. The recognition of a certain
comitas gentium is shown, amongst other incidents, in
the conferring of honours by the Romans on foreign
princes by means of titles or presents, as, for instance,
in the case of Masinissa 31 and it is shown also in the
acceptance of the decisions of foreign tribunals. The
, existence and the influence of a juridical consciousness
is clearly evidenced in the whole fabric of the law of
nations as accepted by the Romans. It is manifested
in the practice of deditio (as corresponding to the civil
' procedure of oxae datio, noxal surrender of the de-
i Moquent), which was applicable to certain prescribed
“Cases, it is indicated in a multiplicity of institutions
and doctrines, such as the hospitium-publicum and pri-
| Vatum, the ius honorarium (in reference to peregrins),
the ius legationis, the foedera, sponsiones, and indutiae,
the ius fetiale, the recuperatio, the ius postliminii, the
doctrine of balance of power, the reference to arbitration
and acceptance of the arbitral judgment, and in various
other principles and institutions.
__ It was stated above, in connection with the affair of Fides the basis
the Caudine Forks, that Rome was undeniably guilty of ee τς
tala fides, or of a violation of the spirit, if not of the relationships.
letter, of the law. Rome, in truth, conceived fides to
_be the underlying basis of all international relationships,
1 Liv. xxvii. 4 ; ΧΧΧΙ. 10, 11.
Force of oath,
and divine
sanction.
The oath in
oriental
antiquity.
The oath in
Greece.
118 FORCE OF THE OATH
the determining factor of all acts of private and public —
conduct. Sometimes the bona fides was expressly
guaranteed by a special clause or stipulation, reinforced”
by a solemn oath ; more frequently it was implicit. The
violation of the oath was universally considered a de- —
liberate offence against the gods themselves, who exacted
vengeance by pursuing to destruction not only the
malefactor, but also his family, deemed to be tainted
with his perfidy; it was likewise an offence against —
human law. All races of antiquity recognized bona
fides to be an indispensable attribute of private, of
public, and of international dealings, indeed, of all
conceivable transactions. ‘The more enlightened |
writers of Chinese antiquity condemn the practice of
exchanging hostages, as tending to keep up a state of
quasi hostility and mutual mistrust; and no writers ©
of any nation have been more emphatic in insisting on ~
good faith as a cardinal virtue in all international —
transactions.... Confucius, speaking of a State, says: —
“Of the three essentials, the greatest is good faith.
Without a revenue and without an army a State may ἡ
still exist, but it cannot exist without good ἐλ ἢ.᾿ ἦτο
In the Hellenic world the oath was deemed to possess a —
sacred binding force ; the oracles threatened with dire ~
vengeance would-be violators.2, Some of the Greek ©
peoples nevertheless became notorious for their per-~
fidiousness 3 ὁ 5. ἃ counterfeit coin was termed Bj
‘Thessalian coin,’ an act of treachery was stigmatized
as a ‘Thessalian trick.’ Crete was reproached by. a
poets and historians for her faithlessness,—Kpjres he ἦ
ψεῦσται, writes Callimachus,* the Alexandrian poet and ©
grammarian, in the third century before the Christian —
era; Plutarch reports that her people were treacherous”
in war ;* her name furnished the verb κρητίζειν, which —
meant c to lie,” πρὸς Κρῆτα κρητίζειν ὃ meaning “ to q
1W.A.P. Martin, Traces of international law in ancient China, loc.
P-.74, 5
2Cf. Herodot. vi. 86. 8 Hymn. in Jov. 8. 5
4 Philop. 13; Lysand. 20%; Aemil, 23. ὅ Plut. Aemil, 23; Lysand. 20. é
BONA FIDES AND AEQUITAS 119
outwit a knave.” Similarly the Parians were pro-
_verbial for their apostasy ; ἀναπαριάζειν meant to change
sides like the Parians.!
_ With the Romans, as Polybius, though a non- The oath in
- Roman, says,” the oath received greater respect. In ἔπι.
his time, he states, there was a rash and foolish rejection
of the gods by the Greeks, whose statesmen were
_ addicted to falsifying their accounts, “‘ though protected
_by ten checking-clerks, as many seals, and twice as
many witnesses”; whereas the Romans, in their em-
_bassies and magistracies, kept their faith intact from
7 pure respect to their oath—«ara τὸν ὅρκον πίστεως
πηροῦσι τὸ καθῆκον. But in subsequent chapters of his
history Polybius admits that there was a considerable
_ falling off by the Romans in this respect. Thus in the
eighteenth book he says the decline was becoming
_ apparent, though on the whole the Romans were com-
paratively incorruptible ;* and in the thirty-second
_ book* he points out the rampant degeneration due to
luxury and sensual excesses, fostered by the importation
of wealth after the destruction of the Macedonian
_ monarchy and acquisition of universal supremacy. But
men like Scipio, it is carefully noted, were throughout
Τρ from all such viciousness.
However, in the international transactions of Rome, Bona fides and
| especially in her earlier period, bona fides was taken to“?
_ be the fundamental principle of aequitas; it ever
served as a criterion and guide in the interpretation
_ and execution of undertakings. It was at the bottom
_ of the praetorian edicts. It was the fundamental prin-
_ ciple of the ius /egationis,—for ambassadors were placed
- under the protection of public faith, of which, says
Varro,® the fetials were the ministers—“ fidei publicae
inter populos praeerant.” More particularly was fides or
1Ephorus (fl. 375 3.c.), Fragm. 107.
2 vi. 56. 8 xviii. 35. 4xxxii, 11.
ὅ Οἷς, De offic. iii, 29 ; Dig. xlviii. 4 (ad leg. Iul. mai.), 24 pr.
ὁ De Ling. Lat. v. 15.
Ζεὺς Πίστιος
and Jupiter
Fidius.
Practice not
always ona
level with
theory.
120 INFLUENCE OF FIDES
πίστις 1 the very basis of foedera and σπονδαί (sponsiones).
Festus? says foedus was so called “quia in foedere
interponatur fides,” and Livy frequently makes use of —
terminology to indicate the same conception : “in j
fidem venerunt...foedere ergo in amicitiam ac-—
cepti;’’? “eo anno ‘societas coepta est; in fidem populi
Romani venisse.”* Fides was the indispensable condi-
tion in the case of a truce or armistice—“ indutiarum
fides,” 5 “‘indutiarum fidem ruperat’’;® as also in the
case of deditio—« deditionis quam societatis fides sanctior
erat,”” “in fidem consulis dicionemque populi Romani —
sese tradebant,”® “non in servitutem sed in fidem —
tuam nos tradidimus.”’® ;
The Romans had their Jupiter Fidius as the Greeks
had their Ζεὺς Πίστιος. Fides was deified by the
Romans and provided with a temple and a cult.
Horace, in an ode to Virgil, thus writes of this zumen,
as of other deified virtues :
«< ... cui Pudor et Justitiae soror
Incorruptae Fides, nudaque Veritas
Quando ullum inveniet parem ?” #4
Of course, practice did not always keep pace with ©
theory. In the ancient world, as well as in the modern,
rules were not infrequently applied, in view of the ~
exigencies of State interest, so as to admit of excep-—
tions ; and it is more just and profitable to infer our ©
1QOn the significance of fides generally, see Leist, Gréco-Italische
Rechtsgeschichte, pp. 470 seg.; and H. A. A. Danz, Der sacrale Schutz
in romischen Rechtsverkehr (Jena, 1857), passim. ἣ
2 De verborum significatione, § 84 (an alphabetical epitome of the ἰοβξ.
work under this title of Verrius Flaccus).
8 vill. 25. 4viii. 27; cf. viii. 21; ix.65 x. 45.
5 Liv. i. 30. 6 Liv. ix. 40.
7 Liv. vi. 9 ; cf xxxil. 2; xxxvil. 32. 8 Liv. xxxvii. 45.
9Liv. xxxvi. 28; cf. vil. 193 vii. 313 X. 433 XXXIV. 35 ; XXXViL. |
6; xxxix.54. (Most of the foregoing references to Livy are cited by |
Leist, ibid.) |
10 Dion. Hal. iv. 58, etc. ; cf. Danz, of. cit. pp. 127 seg.
11 i, 24; ll. 6-8.—Cf. also his Carm. Sec. 57 ; Virg. den. i. 292.
. . Ne
Pe
1 INFLUENCE OF FIDES 121
.
᾿
conclusions as to ancient practices from their observ-
ance of those rules than from their rarer breach.
‘Some writers animated, it would appear, by precon-
‘ceptions antagonistic to Roman policy and conduct, are
‘too prone to draw their generalizations from certain
‘particular exceptions. For example, the alliance of the
‘Romans with the Mamertines was certainly an in-
defensible act: it is duly censured by Polybius ;* it
"may, as Niebuhr says, redound to the shame of Rome.
But this or that occasional offence against the law
of nations does not necessarily debar the Romans from
the right of making complaints in regard to the fides
| Punica,? as Laurent seems to think. “Le peuple,”
he remarks in a highly moralizing tone, “qui n’avait
pas rougi de s’allier aux Mamertins n’était pas en droit
de parler de foi et de justice.” ® If comparatively
occasional infractions of the law made the whole law
non-existent, no State could at any time be said to have
_ possessed any legal system whatever. The truth is that Roman fides
the fides of the Romans in comparison with that of ft‘ si
most of the contemporary peoples, at all events with contemporary
that of the Carthaginians, was immaculate; wherefor
they were, without shame or hypocrisy, entitled to
complain of Punic treachery.
Rail. 26. 2 Cf. Florus, ii. 2. 8 Op. cit. vol. ili. p. 114.
ν᾿.
ψ'.
PO SSORRS Sila
as ae ee ee δέ “Τὰς ee
Greek notion
of citizenship.
Link between
the family and
the State.
CHAPTER V
GREECE AND FOREIGNERS
Tue Greek idea of citizenship was, from one point
of view, closely bound up with that of the national
religion, and, from another point of view, was in
close correlation with that of membership of the
phratry. The phratry (pparpa or φράτρη) was, in the
heroic age, a group of individuals of kindred race,’ and
in more historical times became a political division of
people, originating from ties of blood and kinship. At
Athens the φράτρη was a subdivision of the φυλή,
just as at Rome the curia? was of the “γίδια. Each
φυλή comprised three φράτραι or φρατρίαι, the members
of which were called φράτερες ἡ (as those of a φυλή were
termed φυλέται, and those of a curia were termed
curiales), and were bound together by various religious”
rites peculiar to each. This organization suggests an
inevitable connecting link between the family and the
State. Exclusion from the city’s worship was equivalent
to a deprivation of citizenship. ‘* Renongait-on aug
>, -
1 Cf. Ihad, ii. 362.
2'The Roman word curiae exactly corresponds to the Attic
φρατρίαι ; cf. Dion. Hal. ii. 7; Plut. Poplic. 7.
8 Plato, Laws, 746d, 7853 Isoc. De pace, 88.—Cf. Arist. Polit. ti.
5-175 v. 8. 19.
*It may be interesting to note the etymological relationsliill
of this word. In the Sanscrit we get dhraza, the form in Zend being |
bhratar, with which the Latin fraser is associated ; the Gothic form ~
is bréthar, brothrahans (cf. brother, brethren), the Old High German
is bruodar (which gives druder), the Slavonic bratru. In Greek
the word curiously assumes an exclusively political signification.
ae ne ee yt ee ay
ee ie ee en
CL BOP Το 1. OPT ak Oe Mens δ NG a ΦΡΑΣ ΓΑΙ A Σ᾽
Jide ὧδε ᾿ς Β' ἃς
IPS, oc ky
RELIGION AND ALIENAGE 123
culte, on renongait aux droits,” as Fustel de Coulanges
says! The conferring of citizenship involved the Citizenship—
_ taking of a solemn oath to worship the gods and fight thectys Ἂ
᾿ for them—k«ai τὰ ἱερὰ τὰ πάτρια τιμήσω... ἀμυνῷῶ δὲ Tligion.
ὑπὲρ ἱερῶν." Demosthenes describes admission to civic
privileges as a concession to take part in the sacred
affairs of the city—vpereivac τῶν ἱερῶν, to share in the
religious festivals and sacrifices—rederav καὶ ἱερῶν καὶ
πιμῶν μετέχειν, Presence at the common meals was
an important duty ; absence therefrom (as, for example,
in Sparta) brought about a loss of privileges. Citizens
were obliged to assist at the religious festivals of their
respective cities. Similarly in Rome the enjoyment of
_ political rights implied presence at the sacred ceremony
of lustration,® except in the case of soldiers engaged
in the field.
_ The city’s tutelary deities were considered to be Local deities
antagonistic to the alien intruder, who was deemed to eat ψεγόων
_ be incapable of participating in their worship. Should
a town be captured by the enemy, and subsequently
recaptured, an immediate purification of its temples was
essential to obliterate the alien taint. Thus, when the
Persians were defeated by the Athenians and Spartans
at Plataea, 479 B.c., messengers were sent to Delphi
to inquire what sacrifices were to be offered in
honour of the victory. The oracle, says Plutarch,
commanded them to erect an altar to Zeus, the
Protector of the free, and not to sacrifice upon it
until they had first extinguished all fires throughout
the country, because it had been defiled by the presence
of the barbarians, and had then brought a new fire
1 La cité antique (Paris, 1900), p. 226.
2 Cf. the entire formula as given by Pollux, viii. 105-6.
᾿ς *Demosth, Jn Neaeram, 104 ;—in connection with the decree
_ elating to the Plataeans.
4 Ibid. 113.—CE. also Isoc. Panegyr. 43 ; and Strabo, ix. 3. 5.
5 Corpus inscriptionum Graecarum, No. 3641 8, vol. ii. p. 1131.
ὁ Dion. Hal. iv. 15 ; Cic, Pro Caecina, 34.
Jealousy of
sacred rites.
Religious
exclusiveness
in antiquity.
124 RELIGIOUS EXCLUSIVENESS
free from pollution from the hearth at Delphi, which
is common to all Greece.!
The Greeks’ extreme jealousy of their sacred rites”
shows a certain oriental spirit. There is, of course,
in several other respects a distinct kinship between |
the Hellenic race and Oriental peoples. “ Dans"
Orient tout homme qui ne fait pas partie de i
communion religieuse est impur ; sa présence souille les
fideles.” * Herodotus reports that the Greek priests
refused to make use of vessels and other objects that
had been brought from abroad.* Again, in the case
of the Romans, Livy reports that after the defeat of the -
Gauls by Camillus, ἢ in 390 B.c., the Senate decreed that
such temples as had been ἴῃ the possession of the
enemy should be restored, their bounds traced out, and
due expiations made for them,—“ fana omnia, quod.
ea hostis possedisset, restituerentur, terminarentur
expiarenturque. ”* In the Digest there is an express _
provision for the purification by expiatory ceremonies ©
of all places and objects that had in any way been
in contact with a foreign enemy.’ q
The same spirit of exclusiveness—indeed, much more ©
rigorous—was manifested amongst the nations of
oriental antiquity generally. The Egyptians, for
example, regarded themselves as autochthonous, as the
human race par excellence,,—much in the same way
1Plut. Aristid. 20: Περὶ δὲ θυσίας ἐρομένοις αὐτοῖς. ἀνεῖλεν δ᾽
Ἠύθιος Διὸς ᾿Ελευθερίου βωμὸν ἱδρύσασθαι, θῦσαι δὲ “μὴ πρότερον
ἢ τὸ κατὰ τὴν χώραν πῦρ ἀποσβέσαντας ὡς ὑπὸ τῶν βαρβάρων
μεμιασμένον ἐναύσασθαι καθαρὸν ἐκ Δελφῶν ἀπὸ τῆς κοινῆς ἑστίας.
2 Laurent, op. cit. 11. p. 104.
8 Herodot. v. 88; cf. Athenaeus, iv. 14.
# Liv: v. 50. .
5 Dig. xi. 7 (De religiosis et sumptibus funerum et ut funus ducere!
liceat), 36: “Cum loca capta sunt ab hostibus, omnia desinunt
religiosa vel sacra esse, sicut homines liberi in servitutem perveniunt He
quod si ab hac calamitate fuerint liberata, quasi quodam postlimniaai
reversa pristino statui restituuntur.’
6 Cf. F. Laurent, Droit civil international (Bruxelles, 1880), vol. 1. 4
Ρ. 114.
3 RELAXATIONS AS TO ALIENS 125
as the Hebrews, the Greeks, and other peoples did.
The dwellers on the Nile shores were alone ‘pure’
men; their soil was sacred and pure; the rest of the
Miniverse was deemed polluted.’ Aliens were criminals
and savages. An inscription of Sesostris was to the
- effect that he governed Egypt and chastised foreign
territory.” Though in course of time certain com-
“mercial privileges were conferred on foreigners, and
Binainly on the Greeks,’ the Egyptians, in the time
ἢ οὗ Herodotus, seem to have retained a certain personal
aversion to the Greeks. ‘“...No Egyptian man or
woman,” says Herodotus, “ will kiss a Grecian on the
mouth ; or use the knife, spit, or cauldron of a Greek,
or taste of the flesh of a pure ox that has been cut by a
_ Grecian knife.”* There was far less stringency, in this
“respect, in the attitude of the Persians, who often
_ showed remarkable tolerance towards strangers. For
this reason illustrious exiles like Themistocles and
_ Alcibiades preferred the refuge of the Persian Court
to that of the Republics of Italy or of Sicily.’
: In spite of the antagonism to foreigners, —an antagon- Relaxations in
_ ism resting partly on religious motives and on pride of ae οἷς
culture, and partly on the desire to preserve Civic
exclusiveness,—the Greeks gradually introduced con-
siderable ἬΟΔΑΆΔΑΡΩΙ with regard to strangers. And it
must be remembered in this connection, that aliens
| +N. F. Rosellini, 1 monumenti dell’ Egitto e della Nubia.... 8 tom.
(Pisa, 1832-44), vol. iii. pt. i. pp. 37, 39, 51, 3513 vol. iv. pp. 89,
90, 230.
i
? Rosellini, op. cit. vol. iv. p. 18; vol. iii. pt. i. p. 3503 pt. il. pp.
54, 163,215. (The references in this and in the preceding note are
Ἐ ee by Laurent, idid.)
; M. Pardessus, Collection de lois maritimes antérieures au xviti®
Ξ seh (Paris, 1828-45), vol. i. p. 58: ; cf, Herodot. ii. 178.
* Herodot. ii. 41 : τῶν. εἵνεκα οὔτ᾽ ἀνὴρ Αἰγύπτιος, οὔτε γυνὴ ἄνδρα
bs Ἕλληνα φιλήσειε ἂν τῷ στόματι, οὐδὲ μαχαίρῃ ἀνδρὸς “EAAnvos
: χρήσεται, οὐδ᾽ ὀβελοῖσι, οὐδὲ λέβητι, οὐδὴ κρέως καθαροῦ βοὸς δια-
᾿ τετμημένου “Ἑλληνικῇ μαχαίρῃ γεύσεται.
δ Holtzendorff, Handbuch... νοὶ]. i. § 45.
Exigencies of
commerce.
Effect of war
in breaking
down barriers.
Exaggerated
statement as to
attitude to
aliens.
Wrong
methods on the
part of writers.
126 ATTITUDE TO ALIENS
included, from the point of view of any particular State,
not only ‘barbarians,’ that is non-Hellenes, but also
Greeks of other cities who had obtained a domicile in
that State, and, of course, Greek travellers or visitors
whose stay was merely temporary. In the classic epoch
of Greece, the racial distinction between Hellenes and
barbarians was not emphasized as strongly as it was in
the heroic age ; the distinction came to rest more on the
claim to superior moral and intellectual capacity. Ina
striking passage, Isocrates said: “850 far has Athens left
the rest of mankind behind in thought and expression
that her pupils have become the teachers of the world,
and she has made the name of Hellas distinctive no
longer of race but of intellect, and the title of Hellene
a badge of education rather than of common descent.” ἢ
In practice this narrow exclusiveness was constantly
being broken down, on the one hand by the exigencies
of commerce which, as Montesquieu says, necessarily
remedies destructive prejudices, “guérit des préjugés
destructeurs,” 2 and on the other by war with its sub-
sequent peaceful adjustments and alliances, which so
much promoted international relationships and amelio-
rated the condition of the foreigners of the respective
States.
Wheaton’s observation, that “nothing but some
positive compact exempted the persons of aliens from
being doomed to slavery the moment they passed the
bounds of one State and touched the confines of another” ὃ
conveys an entirely erroneous impression. There is a
tendency in some writers (especially such as are given to
glorify the present civilization to the extreme disadvan-—
1 τοσοῦτον δ᾽ ἀπολέλοιπεν ἡ πόλις ἡμῶν περὶ τὸ φρονεῖν καὶ λέγειν
τοὺς ἄλλους ἀνθρώπους, ὥσθ᾽ οἱ ταύτης μαθηταὶ τῶν ἄλλων διδάσκαλοι
γεγόνασι, καὶ τὸ τῶν Ἑλλήνων ὄνομα πεποίηκε μηκέτι τοῦ γένους,
ἀλλὰ τῆς διανοίας δοκεῖν εἶναι, καὶ μᾶλλον ἕλληνας καλεῖσθαι τοὺς
τῆς παιδεύσεως τῆς ἡμετέρας ἢ τοὺς τῆς κοινῆς φύσεως μετέχοντας
(Panegyr. 50). |
2 Esprit des lois, liv. xx. chap. 1.
8H. Wheaton, History of the Law of Nations (New York, 1845), p. 1.
ALIEN NOT NECESSARILY ENEMY 127
tage of the ancient), who have not sufficiently investigated
their subject, to regard this or that exceptional case,
particularly so if it happens to be a prominent one, as
“representative of the usual prevailing conditions; and
there is a still more injurious tendency in others who
have not even superficially examined many issues
relevant to their subject to embrace such views blindly
and unreservedly. The fame of Greek and Roman
international law has suffered from both these tendencies.
_A consideration of the institutions relating to aliens and
of the various rights and privileges extended to them,
as evidenced by the incontestable original sources (of
_which extant inscriptions are of the greatest importance)
will at once dispel such erroneous conclusions.
Achilles said that Atreides treated him arrogantly Fattacious
-among the Argives as though he were some ‘ worthless °°!"
sojourner "—woel τιν ἀτίμητον μετανάστην :1 but this
expression does not prove that the law authorized
violence to the stranger. At most it indicates that he
did not receive the same consideration as the citizen.
_ Some writers, again, have inferred from the word Aliens were not
ἐχθρός (enemy) that foreigners were assimilated to Same‘? "
enemies. But such argument is based on what is most wrong
| eae if not indubitably, a false etymology. The jiferencs from
the word
word is cognate with ἐκτός (outside),—of ἐκτός being ἐχθρός.
used by Plato with the meaning of strangers;* and in
“certain Locrian and Epidaurian inscriptions the forms
ἐχθός and ἔχθοι are found for ἐκτός. Similarly, from a
passage in Herodotus,’ who says the Spartans called
Strangers barbarians,‘ ξεινοῦς, it 1s often concluded that
foreigners were of necessity identified with enemies.
This is a strangely distorted syllogism, and is still more
untenable when applied to the Greeks in general.
Indeed, on the contrary, does not the fact that ξεῖνος
1 Thad, ix. 648 ; cf. xvi. 59.
2 Laws, 629 νυ. Tiss ἢ ΓΝ Ὁ
᾿ς 60 ῃ the meaning of ‘barbarian,’ βάρβαρος, see F. Roth, Ueber
Sinn und Gebrauch des Wortes Barbar (Nurnberg, 1814).
128 CONCESSIONS TO ALIENS
τὴν
means at the same time ἃ guest-friend, under the
protection of Ζεὺς ξένιος, and a stranger, an alien refugee, | ᾿
clearly point to a conception which 18 the very antithesis
to notions of hostility ?
TheGreeksnot In point of fact the Greeks liked foreigners, and they
Nace were themselves fond of travelling abroad. Hospitality
was practised not only through the influence of the
religious traditions of the race, but also with a view to
Hospitality. commercial advantages. Heraqotas states there were
even certain ties of hospitality between such sovereigns ©
as Polycrates, the tyrant of Samos, and Amasis, king of 7
Egypt. Γ
Athens offered [he extent of the privileges of access varied, of course,
freetan ss: in different States. Athens extended the greatest liberty, |
aliens. Sparta the least ; and the policy of these two cities indi-~
cates the attitude generally of the democratic, commercial
Different States on the one hand, and that of the aristocratic, agri-
rae Sates Cultural States on the other. The Doric States were
most anxious to safeguard themselves against alien
influences. Thus Epidam nus appointed a special officer,
πωλήτης " (literally ‘seller’) to regulate, on behalf of his
fellow-countrymen, all commercial transactions with the
In Crete. neighbouring Illyrian barbarians. The Cretan cities also’
imposed certain restrictions,’ but they were not so rigor=
ous as those of the Spartans. In the earlier history of
Sparta. Sparta her citizens were forbidden to go abroad,‘ as was
Argos. also the case in Argos,’ and foreigners were not allowed
1 Herodot. iil. 39.
2Plut. Quaest. Gr. 29.—This is not to be confused with the
Athenian πωληταί, ten officers who, like the Roman censors, let out
(Zocabant) the taxes and other revenues to the highest bidders, and
sold confiscated property.
8 Cf, G. F. Schoemann, Griechische Alterthiimer. Vierte Auflage.—
Neu bearbeitet von J. H. Lipsius, 2 Bde. (Berlin, 1897-1902)—vol i. 7
p. 385.
4Plut. Iustit. Lacon. 19; cf. Plato, Protag: 342 Ὁ.
5 Cf. Ovid, Metam, xv. 29:
“... prohibent discedere leges,
Poenaque n mors posita est patriam mutare volenti.”’
ATTITUDE OF SPARTA TO ALIENS 129
to reside within her precincts,\—a policy which found
many admirers in the conservative parties of other
States.2 The Athenian citizens, on the contrary, were
permitted to emigrate, and take their possessions with
them,— ... τῷ... ᾿Αθηναίων τῷ βουλομένῳ... ἐξεῖναι
λαβόντα τὰ αὐτοῦ ἀπιέναι ὅποι ἂν βούληταιβϑ Herodotus
reports that in his time Sparta had conferred citizenship spartan
on only one individual, and that even then the sanction Je!sy.
of the oracle had to be obtained. The aim of the
Lacedaemonians was to preserve the purity of their
religion, and the valour, simplicity and frugality of their
national character.© Thus Archilochus of Paros, a lyric
‘poet greatly esteemed by the ancients, was expelled from
‘Sparta the same hour of his arrival for having said that
it was better to flee than die on the battlefield ; a tyrant
was expelled for distributing gold and silver vessels
amongst the citizens ; likewise a sophist for claiming he
could discourse for a whole day on any subject whatever ;
and a cook for corrupting their simple taste.°
_ Aristophanes refers, on more than one occasion, to Spartan alien
‘the unsociable spirit of the Lacedaemonians;? and they *“*
jalso incurred, on account of their ξενηλασία (alien acts),
‘the hatred of many other Greek nations. But. many But many
\exceptions were made even at the most rigorous epoch. fyS¥irta.
Lycurgus himself made use of the poet and musician
‘Thales, a native of Gortyna in Crete, who came to
jappease the wrath of Apollo; Terpander, the father of
(Greek music and of lyric poetry, a native of Antissa in
Lesbos, was welcomed ; and so was Pherecydes, an early
|
__ 1 Xenoph. Resp. Laced. xiv. 4; cf. Plut. Ages. 10; Lycurg. 27;
“Thue. i. 144.
2 Cf. Arist. Polit. vii. 5. 3; Plato, Laws, viii. 849.
8 Plat. Crito, 51 v.
*Herodot. ix. 33-35.—See infra, p. 181, as to naturalization in
‘Sparta.
5Plut. Ages. 10.
6 Cf. Nauze, Mémoire sur la Xénélasie (in Mémoires de I’ Académie des
inscriptions, τ, xii. pp. 159-176).
7 Aves, 1013 seg. ; Pax, 623.
I
Restrictions
gradually
removed in
Greece in
general,
130 MORE LIBERAL POLICY
Greek philosopher of Syros, an island in the Aegean.
Tyrtaeus, the Athenian elegiac poet, whose war-songs
stimulated the Spartans in the second Messenian war,
received citizenship.1_ Foreign physicians and sooth-
sayers were admitted.? During the celebration of the
public games foreigners were allowed access to the terri-
tory. Proxenia*® was established; and many citizens
obtained hospitality abroad.* In the time of Xenophon the
barriers between Spartans and foreigners were still further
removed. Discussing the government of Lacedaemon
and her departure from the discipline of Lycurgus, he
says, as an ardent admirer of the earlier constitution :
“1 know that for this reason [2.6. degeneration through
contact with foreigners and possible imitation of osten-
tation in wealth, εἴς. strangers were formerly banished
from Sparta, and that citizens were not allowed to reside
abroad, lest they should be initiated in licentiousness by
foreigners ; but now I know that those who are thought
the leading men among them have shown the utmost
eagerness to be constantly engaged in governing some
foreign city.” ὅ
In other parts of the Hellenic world the earlier stric-
tures against strangers were more and more mitigated.
Crito tried to induce Socrates to escape from prison, and
assured him that he would be loved wherever he might
go, and not in Athens only, that in Thessaly he had
1 Nauze, oc cit. pp. 162 seq.
2 Tbid. pp. 169 seg.
3 On this institution see infra, pp. 147 seg. ἢ
4Cf. G. F.Schoemann, Antiguitates juris publici Graecorum (Gryphis-—
waldiae, 1838), p. 142. Bi
5 Resp. Laced. xiv. 4: Ἐπίσταμαι δὲ καὶ πρόσθεν τούτου ἕνεκα
ξενηλασίας γιγνομένας καὶ ἀποδημεῖν οὐκ ἐξὸν, ὅπως μὴ ῥᾳδιουργίας.
οἱ πολῖται ἀπὸ τῶν ξένων ἐμπίπλαιντο᾽ νῦν δ᾽ ἐπίσταμαι τοὺς
δοκοῦντας πρώτους εἶναι ἐσπουδακότας ὡς μηδέποτε παύωνται ἅρμό-᾿
ζοντες ἐπὶ ξένης. (There appears to be some controversy as to the |
genuineness or proper place of this chapter;—but that need not
concern us here.) Cf. the frequent denunciations of Italianized ὦ
Englishmen, in the Elizabethan epoch, through their assumption of |
foreign airs and use of foreign language.
all, strangers received protection and large concessions.
VARIOUS RELAXATIONS 121
friends who would value and protect him, and that no
Thessalian would in any way molest him.!
In most of the Greek States, but in Athens above Concessions
to strangers—
especially in
Not only were the persons and property of free Athens.
foreigners safeguarded, but even prisoners of war who
had been ransomed (δορύξενος) were afforded faithful
protection. General hospitality (not to be confused
with proxenia, which will be considered shortly)
assumed the character of a public institution. In the
heroic age the tie of hospitality contracted between Tieof —
_ stranger and host was held to bea sacred bond, and was D°sP"#lty:
transmitted from father to son.2 This institution
played an important part also in historic times; for
example, Alcibiades, as Thucydides relates, was the
intimate and hereditary friend of Endius, one of the
_ephors, and on account of this bond his family adopted
big) Avi
a Lacedaemonian name. Homer often says that
strangers and the poor came from Zeus,‘ that suppliants Zeus—the
. . e t
were under his special protection.® When Ulysses, fyangers and
as an unknown wrecked man, came to Alcinous, the suppliants.
latter said that anyone with even a moderate share
of right feeling is fully aware that it is his duty to treat
a guest and a suppliant just as though he were his
own brother : 3
ἣν ὁ, , a4 CE See, ΄
ἀντὶ κασιγνήτου ξεῖνός θ᾽ ἱκέτης τε τέτυκται
ἀνέρι, ὅς τ’ ὀλίγον περ ἐπιψαύῃ πραπίδεσσι.5
Only the Cyclopes and the Laestrygonians attack
Plato, Crito, 4ς ς : εἰσὶν ἐμοὶ ἐκεῖ ξένοι, of σε περὶ πολλοῦ ποιή-
Ν a
σονται καὶ ἀσφάλειάν σοι παρέξονται, ὥστε σε μηδένα λυπεῖν.
* Iliad, vi. 119-236; Odyss. i. 187; xv. 197; and see G. F.
Tomasini, De vesseris hospitalitatis (Amstelodami Frisii, 1670),
esp. chap. xxiii. pp. 159-164.
SThuce, viii. 6.4: ... ξυνέπρασσε yap αὐτοῖς καὶ ᾿Αλκιβιάδης,
᾿ς / >
᾿Ἐνδίῳ ἐφορεύοντι πατρικός ἐς τὰ μάλιστα ξένος ὦν, ὅθεν καὶ τοὔνομα
“Λακονικὸν ἡ οἰκία αὐτῶν κατὰ τὴν ξενίαν ἔσχεν.
* Odyss. vi. 207 “64. ; xiv. 508.
5 Odyss, vii. 165, 181 ; ix. 270, ὁ Odyss, viii 546.
Consideration
shown to
strangers.
Passports,
132 PASSPORTS
foreigners. Not only do princes offer shelter to
travellers, but.a poor swineherd like Eumaeus gladly
offers a beggar food and a lodging. “ Stranger, though
still a poorer man should come here it would not be
right for me to insult him, for all strangers and beggars
are from Jove.”
ξεῖν᾽, οὔ μοι θέμις ἔστ᾽ οὐδ᾽ εἰ κακίων σέθεν ἔλθοι,
ξεῖνον ἀτιμάσσαι" πρὸς γὰρ Διός εἰσιν ἅπαντες
ξεῖνοί τε πτωχοί Te,"
Amongst the Lucanians there was a law which imposed
a fine on any citizen who refused to receive a foreigner
asking for shelter after sunset.’ Charondas urged his
citizens to fulfil the obligation of hospitality as being of
a sacred character.2 And of Crete, conservative as
it was, it is reported by a later Greek writer that at
the common meals two tables were reserved for
strangers, who were served before the magistrates them-
selves. Anyone who refused to show Strayer travellers
the way was liable to public imprecations.° In Theo-
critus® this duty is enjoined in the name of Hermes
"Evoovos.?
The practice of conceding passports was also known
in Greece. There was the σφραγίς (so called because
of the official seal), which was really a form of
contract, συγγραφή. Sometimes passports were termed
1 Odyss. xiv. 55 “6. 2 Aelianus, Variae historiae, iv. τ.
3 Stobaeus, Fhorilegium, xliv. 40: Μεμνημένους Διὸς ξενίου ὧ ὡς παρὰ
πᾶσιν ἱδυμένου κοινοῦ θεοῦ, καὶ ὄντος ἐπισκόπου φιλοξενίας τε καὶ
κακοξενίας. |
Athen. Deip. iv. 223 cf. Sainte-Croix, Législation de la Créte,
pp. 396-8. |
5 Οἷς. De offic. iii. 13.
* Idyh. Xxv. 3-6:
ἔκ τοι, ξεῖνε, πρόφρων μυθήσομαι ὅσσ᾽ ἐρεείνεις,
ἝἙρμέω ἁζόμενος δεινὴν ὄπιν εἰνοδίοιο"
τὸν γὰρ φασὶ μέ μέγιστον ἐπουρανίων κεχολῶσθαι
εἴ κεν ὁδοῦ ζαχρεῖον ἀνήνηταί τις ὁδίτην.
ΤΈΤοπι ὅδός, road, highway. An epithet of certain gods who had
their statues by the way-side or at cross-roads,
i HOSTELRIES FOR ALIENS 133
σύμβολα, a designation which applied in general to
all marks or signs of legalization! The distinction,
however, between the two terms is not very clear.
Probably σφραγίς applied to a sealed passport granted Difference
to a person, whereas the σύμβολον was frequently sone
(especially as used by Aristophanes) an official label for 224, |
goods to indicate that they were free from contraband. “”*””
These passports were necessary for foreign travellers
‘only when the town, which was their destination,
was engaged in war. It was naturally indispensable
in such cases to exercise greater care and superinten-
dence not only with regard to those coming into the
_ town but also with regard to those leaving it. Some-
times such passports were also employed in time of
| peace to ensure greater safety.
__ There were numerous establishments in Greece in Numerous
_ which foreigners could obtain food and shelter. There et
were hostelries of various kinds; we hear of the
| πανδοκεῖα (inns), the καταγώγια (halting-places), the
_karadvpara (lodgings, guest-chambers), the καταλύσεις
BR DS VIR Ψ ΑΝ CSR TR ee
ER Tee A EAP.
_ (resting-places), and the like.
In the Laws Plato laid down that arbitrary offences Wrong to
committed against strangers were liable to the ven- Subject to
_ geance of the gods, that the foreigner having no kindred divine |
and friends is all the more an object of sympathy
both of gods and men. The greatest of such offences
_ are those committed against suppliants.?
_ Athens frequently boasted that of all States she Frecdom
conferred the largest measure of privileges and evinced Athens. Ὁ
| the greatest liberality to foreigners. In this respect the Difference
' Athenian foreign policy offers a striking contrast to the Athesian and
Spartan. Solon, unlike Lycurgus the Lacedaemonian $?P#*® Policy.
“-
u
"
1 Plautus, Captivi, ii. 3. 90 (447) ; Aristoph. Aves, 1213 seg.
Ὁ ὃν, 7298: σχεδὸν yap πάντ᾽ ἐστὶ τὰ τῶν ξένων Kal εἰς τοὺς
᾿ ξένους ἁμαρτήματα παρὰ τὰ τῶν πολιτῶν εἰς θεὸν ἀνηρτημένα τιμωρὸν
᾿ μᾶλλον" ἔρημος γὰρ dv ὁ ξένος ἑταίρων τε καὶ ξυγγενῶν ἐλεεινότερος
ἀνθρώποις καὶ θεοῖς...
᾿ς η30κα: ξενικῶν δ᾽ αὖ καὶ ἐπιχωρίον ἁμαρτημάτων τὸ περὶ τοὺς
“ἱκέτας μέγιστον γίγνεται ἁμάρτημα ἑκάστοις.
134 ALIENS WELCOMED IN ATHENS
lawgiver, encouraged commercial intercourse and
navigation and welcomed foreign merchants. It was
the proud boast of Pericles, in his famous oration on
the occasion of the public funeral at Athens of the
citizens who had fallen in the war (B.c. 431) that
his: city was thrown open to the world, that the
Athenians never expelled a foreigner or prevented him
from observing or learning anything the secret of which -
if revealed to an enemy might be profitable to him.
Τήν τε γὰρ πόλιν κοινὴν παρέχομεν, καὶ οὐκ ἔστιν ὅτε
ξενηλασίαις ἀπείργομέν τινα ἢ μαθήματος ἢ θεάματος, ὃ μὴ
κρυφθὲν ἄν τις τῶν πολεμίων ἰδών ὠφεληθείη... ἢ
Sophocles? refers to the right of hospitality. Euripides”
terms Athens the ‘hospitable port’—Améva τὸν
εὐχεινότατον ναύταις ὃ.-- Δ says she is ever ready to aid
the unfortunate ;* and similarly Xenophon claims that
she is always disposed to extend a helping hand to those”
who appeal to her as victims of injustice '—7zdyras
καὶ τοὺς ἀδικουμένους καὶ τοὺς φοβουμένους ἐνθάδε καταφεύ- δ
γοντας ἐπικουρίας ἤκουον τυγχάνειν. {
Athens a plaee During the intestine conflicts in the Grea States,
noo everybody could find in Athens a place of refuge.®
et Diodorus speaks of the right of asylum and of the
generous laws in favour of suppliants.’ It was the
constant policy of Athens, says Demosthenes, to deliver
the oppressed 8. ποὺς ἀδικουμένους σώζειν--- πὰ to take
the part of the unfortunate.? Indeed, she practised this
policy to such an extent that she was often reproached
for allying herself with the feeble.” The Athenians
Pity deified. deified pity. ‘If I recommend mercy to a judge,”
argued Quinctilian, “ will it not support my application _
to observe that the eminently wise nation of the
ἔ
Athenians regarded mercy not as a mere affection”
‘
1 Thuc. ii. 39. 2 Oedip. Col. 562-568. 3 Hippol. 157.
4 Heraclid. 329 seq. 5 Xenoph. Hellen. vi. 5. 45. |
oT hac. ας δι 7 xiii. 26, 8 Pro Megalop. 14. seq.
9 Demosth. Pro Rhod. 22; De Cherson. 41.
10 Tsocrat. Panegyr. 53.
Se ee een
PA PIERO EL Daa yO aT PON ΜΠ ante P TOE MR eae
- tae ee Ear
ATHENIAN HUMANENESS 135
_of the mind but as a deity?” 1 “In the market-place
of Athens... there is an altar to Mercy, to whom,
though he is of all gods the most helpful in human life
_and in the vicissitudes of fortune, the Athenians are
_ the only Greeks who pay honour.”® When under the
_ Roman empire it was proposed to the Athenians to
- adopt gladiatorial shows, Demonax, ἃ philosopher,
strongly protested. ‘First of all,” cried he, “ pull
Ὲ down the altar which our fathers have raised to
+ Mercy.”* Plutarch relates also that the Athenians
were considerate to animals. Even in the time of
Plutarch Athens gained the esteem and admiration
of other peoples for her conspicuous examples of
kindness and humanity ;° later, Lucian (a native of
Syria) commended the Athenians’ humane conduct
_ towards their guests ;° and the Roman Emperor Julian
- added the same testimony.’
1 [nst. orat. v. 11. 38: “ Aut si misericordiam commendabo iudici,
nihil proderit, quod prudentissima civitas Atheniensium non eam pro
- affectu sed pro numine accepit ?”
ΒΡ /
Ξ᾽Αθηναΐοις δὲ ev τῇ ayopa...’EXéov βωμός, ᾧ, μάλιστα θεῶν
᾿ ἐς ἀνθρώπινον βίον καὶ μεταβολὰς πραγμάτων ὄντι ὠφελίμω, μόνοι
τιμὰς “Ελλήνων νέμουσιν ’A@nvator.—Cf. Apollod. Bid/. ii. 8, with
the note of Heyne.
8 Lucian, Demon. 57.
Cat. Maj. 5; De solert. anim. 13; Cf. Aelian. De natur. anim.
"vi. 49.—Cf. the note by W. H. 8. Jones, The Attitude of the Greeks
towards Animals (in Classical Review, London, 1908, vol. xxiii.
pp. 209-210).
5 Plut. Aristid. 27. 6 Scytha. το.
7 Misopogon. in Opera, ed, Spanheim, p. 348 c.
Admission of
strangers—by
special
authorization,
Foreigners
enjoyed
freedom of
speech.
Taxes in case
they engaged
in Athenian
commerce.
CHAPTER VI
GREECE AND FOREIGNERS.—DIFFERENT CLASSES —
AND PRIVILEGES.—RUDIMENTS OF A CONSULAR
SYSTEM (PROXENIA)
Tue admission of strangers was in practice usually
permitted by special authorization, though in Athens
there were no particular provisions in her public law
to that effect. As has been already mentioned, passports’
were readily granted to travellers, and to foreigners
intending to stay in the country temporarily. .
They enjoyed freedom of speech and were at liberty
to move about where they pleased except, of course, in
such places as were exclusively reserved for citizens for —
the purpose of performing their sacred rites. Demos-—
thenes, protesting against the restrictions that appear to
have been imposed at certain times on the free expression —
of opinion in the Athenian Councils, exclaims: ‘* You —
hold liberty of speech in other matters to be the general —
right of all residents in Athens, insomuch that you allow ~
a measure of it to foreigners and slaves.” "
In case they should engage in commercial transactions —
of any kind in Athens, special taxes were imposed. 3
There was a law of Solon to this effect: οὐκ ἔξεστι ξένῳ ἐν
At γμῖν τ Neca τε
1 τὸν ἀποδημοῦντα δεῖ σύμβολον € ἔχειν ἐπὶ τῷ p συγχωρηθῆναι τὰ
θεῖν.---ΤὩἁ{φραγίδα ἢ σύμβολον δεῖ ἔχειν τὸν ξένον, ἐπὶ τῷ συγχωρη-
θῆναι παρελθεῖν (Schol. ad Aristoph. Aves, 1213, 1214). Cf
Corpus juris Attici, 25, 1247.
ὥς, Philipp. ill. 3: ὑμεῖς. τὴν παῤῥησίαν ἐπὶ μὲν τῶν ἄλλων οὕτω.
κοινὴν. οἴεσθε δεῖν εἶναι πᾶσι τοῖς ἐν ω πόλει, ὥστε καὶ τοῖς ξένοις
καὶ τοῖς δούλοις αὐτῆς μεταδεδώκατε,.
PMA τις, ey Ἄλυλμ βοΐραν ee eh ee
RESTRICTIONS AND EXEMPTIONS 137
“Th ἀγορᾷ ἐργάζεσθαι, εἰ μὴ ξενικὰ τελεῖ Certain restric- Certain
ἔἶνε measures were applied to their trading, not through their trading.
᾿ ill-feeling or racial antagonism, but solely on the grounds
of public economy. For example, the free exportation
) of certain commodities, and principally olive oil,’ was
| prohibited ; and they were also forbidden to lend money
on ships which did not bring corn to Athens,—a provision
} which applied, however, as much to Athenians as to
F non-citizens.
Demosthenes addressing the Athenian jury reminds But restrictions
them of the : severity of the lawi in respect of such delin- pers,
b uencies 8. στε γὰρ δήπου... τὸν νόμον ὡς χαλεπὸς ἐστιν,
ἐάν τις ᾿Αθηναίων ἄλλοσέ ποι : σιτηγήσῃ ἢ ᾿Αθήναζε, ἡ χρήματα
| δανείσῃ εἰς ἄλλο τι ἐμπόριον ἢ τὸ ᾿Αθηναίων (“Βοσ, of course,
) you know, men of the jury, how severe the law is if any
_ Athenian convey corn to any place other than Athens,
ΠΟΥ lend money to any port other than the Athenian”’).
- Then he proceeds to recite the enactment relating to the
| question: “It shall not be lawful for any Athenian, or
"any stranger domiciled in Athens, or any person under
- their control, to lend out money on a ship which is not
_ commissioned to bring corn to Athens, or anything else
which is specifically mentioned” ;* and afterwards he
| refers to the necessary legal proceedings and the penalty
involved, including a forfeiture of the lender’s right of
action.
To compensate for such Ree AS: few as they were, Certain
there were some instances of exemption from taxes, as, fumRnOn.
for example, in the case of fishermen and sellers of eels,
and dyers and importers of purple. The foreigners not
Laos κα νν
1 Οἴνεη in Corp. jur. Att. 874.
Corp. Jur. Att. 1546: τῶν γινομένων διάθεσιν πρὸς ξένους ἐλαίου
᾿ μόνον εἶναι, ἄλλα δ᾽ ἐξάγειν μὴ ἔστω. ----ϑες the note to this article
᾿ς and compare Schol. ad Pindar, Nem. Od. x. 64: οὐκ ἔστι δὲ ἐξαγωγὴ
᾿ ἐλαίου ἐξ ᾿Αθηνῶν εἰ μὴ τοῖς νικῶσι.
ὃς, Lacrit. 51.
* Ibid. : ᾿Αργύριον δὲ μὴ ἐξεῖναι ἐκδοῦναι ᾿Αθηναίων καὶ τῶν
i μετοίκων τῶν ᾿Αθήνησι μετοικούντων μηδενί, μηδὲ ὧν οὗτοι κύριοί
Ξ εἰσιν, εἰς ναῦν ἥτις ἂν μὴ μέλλῃ ἄξειν σῖτον ᾿Αθήναζε καὶ τἄλλα
᾿ πὰ γεγραμμένα περὶ ἑκάστου αὐτῶν.
2) SOMMER RESIS RE Ὁ Rel REA τ
Foreign
influence in
Athens,
False
inferences
from
occasional
remarks by
ancient writers,
138 WRONG CONCLUSIONS
lee ae eon ee ay eee ee Ἕ
only promoted the external commerce of Athens, but
brought with them various industries, and also largely
worked in the mines. Xenophon, speaking of the
Athenian revenues derived from the silver mines and of -
the probable continuance of their output, says the State
seemed to have recognized this, for it permitted any |
foreigner to work in the mines on paying the same duty
as was paid by citizens.1. To such an extent was the.
activity of foreigners manifested in Athens, so consider-
able was their number, and so marked their influences —
that the city presented an international aspect. In their
daily lives the Athenians adopted various words, customs,
and fashions from the different kinds of languages they
heard, and from the different modes of living ee
observed.”
It is not to be inferred from certain occasional
observations, found in the ancient writers, of a character
seemingly hostile to foreigners that their position was
really precarious, and that the national tolerance of them
was only ostensible. For example, Demosthenes is said
to have made the remark, which is reported by Aeschines,*
that he preferred the salt of the city to that of the
guest’ s table—rovs τῆς πόλεως ἅλας περὶ πλείονος ποιήσασθαι,
τῆς Eevixhs τραπέζης. One may, no doubt, justifiably con=—
clude from statements of this description that there was”
and always remained with the Greeks—as is obviously the
case with the so-called more enlightened modern nations
—a certain innate hostility to foreigners, a certain sub τ
conscious aversion. But, on the other hand, one cannot
legitimately infer that aliens were not granted any sub=
stantial rights at all, and that they were beyond the
* De vectig. ἵν. 12: Δοκεῖ δὲ μοι καὶ πόλις προτέρα ἐμοῦ ταῦτα
ἐγνωκέναι. Παρέχει γοῦν ἐπὶ ἰσοτελείᾳ καὶ τῶν ξένων τῷ Bovko-
μένῳ ἐργάζεσθαι ἐν τοῖς μετάλλοις.
*Xenoph. Resp. Athen. ii. 8: Ἔπειτα φωνὴν πᾶσαν ἀκούοντες
ἐξελέξαντο τοῦτο μὲν. ἐκ τῆς τοῦτο δὲ ἐκ τῆς. καὶ οἱ μὲν “EAAnves
ἰδίᾳ μᾶλλον καὶ φωνῇ καὶ διαίτῃ καὶ σχήματι χρῶνται, ᾿Αθηναῖοι δὲ
κεκραμένῃ ἐξ ἁπάντων τῶν Ἑλλήνων καὶ βαρβάρων. 4
ὃς, Cresiph. 224.
=
md
INTERNATIONAL CONVENTIONS 139
protection of the law. Absolute exclusion from and
prohibition of commerce in the national ports and markets
applied only to enemies ; and foreigners (notwithstand-
ing the careless verbal twistings of a good many modern
writers) were vot necessarily enemies.'
To obtain greater security for foreigners, in the sense
into. Andocides refers to such a convention and to its
‘violation by Alcibiades who had imprisoned one Aga-
_tharcus, a painter, in his house to compel him to execute
certain work. ‘‘ But in our conventions with the other
᾿ς cities we agree that it is forbidden to arrest or imprison
a free man, and we have imposed a large fine for any in-
᾿ fringement of this undertaking.”? Sometimes it was
also stipulated that punishment should be inflicted for
᾿ the commission of offences in the territory against the
sovereigns of other States. These σύμβολα regulated
_ the procedure for the trial of actions (δίκαι ἀπὸ συμβόλων),"
>
- brought by the individual subjects of different States
_ against one another, or by an individual against a foreign
State, or by a foreign State against an individual
subject. Usually the tribunal of the defendant’s country
_—the forum rei of Roman jurisprudence—exercised
jurisdiction over such suits; but in some instances
- Athens adopted the forum contractus. In any case we find
- many examples where such court was only a court of first
- instance, from which the plaintiff could appeal to the
_ tribunal of his own or of the defendant’s city, as the case
1 See infra, as to commerce during war.
2 Andocid. ¢. Akibiad. 18: καὶ πρὸς μὲν τὰς ἄλλας πόλεις ἐν τοῖς
Ξ συμβόλοις συντιθέμεθα μὴ ἐξεῖναι μήθ᾽ εἷρξαι, μήτε δῆσαι τὸν ἐλεύ-
Oepov. ἐὰν δέ τις παραβῇ, μεγάλην ζημίαν ἐπὶ τούτοις ἔθεμεν.
SCf. A. E. Egger, Etudes historiques sur les traités publics chez les
_ Grecs et les Romains (Paris, 1866), p. go.
*See M. H. E. Meier and Ὁ. F. Schoemann, Der attische Process. Neu
_ bearbeitet von J. H. Lipsius (Berlin, 188 3-7), ΡΡ. 994 seg. See further,
__ infra, the second part of chap. viii.
Conventions
to secure rights
to foreigners.
Settlement of
commercial
actions.
The
σύμβολα
and conflicts
of laws.
Where no
convention—
measures of
reprisal.
140 MEASURES OF REPRISAL
may be, or even, sometimes, by previous or express
arrangement, to the arbitration of a third city. Such
city was called πόλις ἔκκλητος (literally, a city ‘called
out’ or chosen to decide a certain matter in dispute),
and the trial itself δίκη &kAyrTos.1
Commercial treaties in the strict modern sense were
practically unknown.? But, at least, the σύμβολα not
only assured to the respective subjects of the States in
question personal liberty and unmolested possession of
their property in each other’s territory, and provided for
due punishment in case of any violation of these rights;
they also based the juridical solution of possible conflicts
on equitable principles. The provisions were not, of
course, everywhere the same; they varied in accordance
with the customs and practices of the contracting States.
And, no doubt, the principles adopted in these con-
ventions were modified according to the municipal
law or special legislation of each State; and the procedure
varied in like manner.? Ἵ
Should a contract be violated, when no such com-
mercial convention existed between two States, and
when satisfaction was refused in any other way not
expressly provided for by contractual stipulation, the
party wronged was entitled to avail himself of measures of
4
1 As to πόλις ἔκκλητος, see infra, p. 206, and chap. xx. on Greek |
arbitration. ὃ
2Cf. A. Β. Biichsenschiitz, Besitz und Erwerb im griechischem
Alterthume (Halle, 1869), pp. 516 seg.: “Es scheint allerdings, als —
ob es gewisse, allgemein anerkannte Bestimmungen gegeben hatte,
durch welche die Freiheit des gegenseitigen Verkehrs zwischen den ~
Angehdrigen der einzelnen Staaten garantiert war, da die Megarer, als
sie von dem Besuche des athenischen Marktes ausgeschlossen worden ©
waren, sich beklagten, dass dies gegen das allgemeine Recht und die ©
von den Hellenen beschworenen Festsetzungen geschahe, aber”
weiteres ist tiber die Sache nicht bekannt.” In reference to the”
complaints of the citizens of Megara on their having been excluded”
from the Athenian markets, cf. Plut. Pericles, 29: Μεγαρεῖς
αἰτιώμενοι πάσης μὲν ἀγορᾶς πάντων δὲ λιμένων, ὧν ᾿Αθηναῖοι
κρατοῦσιν, εἴργεσθαι καὶ ἀπελαύνεσθαι παρὰ τὰ κοινὰ δίκαια καὶ
τοὺς γεγενημένους ὅρκους τοῖς “EAAnow. Ἔ
8See further the latter part of chap, viii, as to the question οὗ
aliens and jurisdiction. Ἶ
INTERCHANGE OF RIGHTS 141
_reprisal—ovdAa or σῦλα. This involved strictly a seizure
of the defaulting party’s goods only, as opposed to the
proceeding of ἀνδροληψία, which permitted, under certain
_ circumstances, the seizure of his person. Such goods
constituted a ῥύσιον, or pledge, by means of which satis-
faction for the wrong could be obtained, if the verdict
- eventually went against the said defaulter.?
Apart from these specific σύμβολα there was occasion- Interchange of
ally an interchange by two (and sometimes more) States fséity.
of certain civic rights, an arrangement effected also by
- means of treaties. Such practices were promoted by the
conception of, at all events, a certain rudimentary
- international comity, which was fostered by close political ᾿
_and commercial relationships. A mutual exchange of
_ the private rights of citizenship established the relation-
ship of isopolity (ἰσοπολιτεία), and carried with it
| érvyapia, the right of intermarriage (corresponding to the
ius connubii of the Roman law), and the right to hold
land and houses—yijs καὶ οἰκίας éyxrnows—in each other’s
_ dominions. Xenophon remarks that it was, indeed, a
_ great privilege to be allowed to acquire houses, etc., in
{δε city.2 On many occasions, it is to be observed,
isopolity was established not mutually but simply on a
unilateral basis.
᾿ς To proceed to the exercise of these privileges usually Renunciation
᾿ involved a renunciation of former citizenship.? In this S200 is
_ connection it may be mentioned that there was a law of that of another
_ Athens forbidding citizens to cultivate land outside ΠῚ
[ Attica. Οἱ ᾿Αθηναῖοι... νόμον ἔθεντο μηδένα τῶν ᾿Αθηναίων
| γεώργειν ἐκτὸς τῆς ᾿Αττικῆς."
᾿ς Niebuhr’ believes that isopolity did not include tsopolity ana
_ political rights, but the extant texts of the conventions P°" "8h
1 See infra, chap. xxvii., on reprisals and androlepsia.
2 De vectig. ii. 6.
5Cf. Egger, op. cit. p. 86.
4 Diod, Sic. xv. 29: and see Corp. jur. Att. 1295.
5B. G. Niebuhr, Rimische Geschichte, 3 Bde. (Berlin, 1873-4); vol.
ii, note 101.
Isopolitic
treaties.
Influence of
isopolitic
grants.
142 ISOPOLITY
relating to it are couched in the most general terms, and _
speak of the participation in all things divine and
human.’ Such acomprehensive concession undoubtedly
included some rights of a political character.
Several Greek writers after the third century, for
example, Dionysius, Strabo, Diodorus, Josephus, and —
Appian, use the word ἰσοπολιτεία as the equivalent of ©
full citizenship. Before then it was not employed in —
that sense, πολιτεία having been used instead.
Some decrees state that it was granted to citizens of
another town ex masse; others show it to have been —
conferred on individuals as a reward for rendering good >
services, or for otherwise evincing a friendly disposition. -
There were various isopolitic treaties between Cretan
towns.2. But the scope and application of such treaties
were naturally different from those between more
powerful communities. The alliance between Athens
and Rhodes? belongs to the epoch of Greek decadence,
as Laurent says. Though the principle of perfect”
equality was scarcely ever, if at any time, at all applied,
yet these arrangements had, whatever scope they
possessed, certain beneficial results. They were especially -
conducive to the evolution of the idea of international
comity, of a civitas gentium, and played an important
part in the formation of Roman unity. ‘“Cependant~
l’idée que l’isopolitie renfermait ne resta pas stérile; elle
produisit ses fruits sur un sol plus favorable. Nous
trouverons les conventions isopolitiques chez les
Romains, nous en verrons naitre les municipes qui ont
joue un rdéle considérable dans la formation de unite
romaine.” ὅ
we orien ©
1Compare Corp. inscrip. Graec. t. i. nos. 2254. 26 ; 2256. τ:
2257. 16. :
2See Corp. inscrip. Graec. τ. ii. nos. 2554, 2556, 2557 ; cf. Sainte=
Croix, Législation de Créte, pp. 357-360.
8 Polyb. xvi. 26; Livy, xxxi. 15.
4 Histoire du droit des gens ..., vol. 11. p. 115.
5 Laurent, ibid.
Ct EL ae
ss
PRIVILEGES CONCEDED 143
Isopolity was sometimes given specifically and alone ; Isopolity often
though generally it was comprised in a more general phe de
‘treaty, either of ἀσυλία (inviolability of person and ‘eaties.
' property in the stricter sense) ; or of simple alliance for
‘defensive purposes—érmayia, as between Hierapytna of
“Crete and Magnesia,? when the word ἰσοπολιτεία is
‘replaced by the expressions, indicating the regular
‘constituent rights, ἀτέλεια, immunity from certain Rights and
» public burdens, ἐπιγαμία, right of intermarriage, ἔγκτησ {Sy able
Ἦ
παν to hold real property, προεδρία, right to occupy
front seats at public games, etc.,—in a word, participation
fin all civil and religious affairs, μετοχή θείων καὶ
ἀνθρωπίνων : 8 and as between Pergamum and Temnos,
‘where there is express mention of the right of reciprocal
)suffrage in the assemblies of the people,—which is a
clear refutation of Niebuhr’s view mentioned above ;
Jr, again, isopolity was sometimes included in a treaty
jestablishing a symmachy, συμμαχία, an alliance both
‘offensive and defensive (as between the Cretan towns
| Lato and Olus,‘ and between Hierapytna and Lyttos,
‘etc.). Though the rights conferred were of so extensive
ja character, yet the two States concerned preserved their
respective identity and independence.®
| Apart from establishing isopolity by means of a treaty, Isopolitic
\certain rights, more or less comprehensive, were granted Gio ished
by decree as a recompense for services rendered to the from Ὁ
‘State. Thus the memorable Byzantine decree conferred ee
large privileges on the Athenians for having offered
jassistance especially in the struggles with Philip of
“
1Cf. the treaty between Allaria of Crete and Paros, in Corp. inscrip.
Graec. 2557.
2P. Cauer, Delectus inscriptionum Graecarum (Lipsiae, 1883), no. 118.
+ 8 Cf. in the following paragraph the Byzantine decree in favour of
ithe Athenians.
* Corp. inscrip. Graec, no. 2554.
5On isopolity, see C. V. Daremberg and E. Saglio (Ed.),
\ Dictionnaire des antiquités grecques et romaines (Paris, 1884, etc.), 5.0.
i Tsopoliteia, pp. 180, 181. And on treaties and alliances generally,
1866 infra, chaps. xvi. and xvii.
Sympolity.
Double or
treble
citizenship
possible,
Special
privileges and
exemptions.
144 SY MPOLITY
Macedon, “It is resolved by the people of Byzantium.
and Perinthus to grant unto the Athenians the right of
intermarriage, citizenship, purchase of land and houses,
the first seat at the games, first admission to the Council
and People after the sacrifices, and exemption from all,
public services to such as wish to reside in the city.”
In the Greek text of the decree, as given by Demos-
thenes, will be found some of the terms considered
above, —emvyauia, πολιτεία, ἔγκτησις, and προεδρία. Βε-
sides these concessions, three statues were erected in
their honour. ᾿
Hence, the isopolitic decrees were of a unilateral
nature, whilst the isopolitic conventions established 4
reciprocity of civic rights.
An enlargement of reciprocal isopolity is found in
a rarer institution, συμπολιτεία, which is practically
federal union of States with interchange of full civic
and probably full political rights. It did not imply a
complete amalgamation of these States, in the sense of
the whole obliterating the significance of the individual ᾿
constituent members, for their respective civic and
political independence was not necessarily impaired.
It was merely a convention voluntarily established for
the purpose of giving every subject of the States in
question a double or treble citizenship, as the case may
be, and was susceptible of dissolution at the pleasure of
any of the allied communities. An example is found
in the case where the people of Magnesia are made full
citizens of Smyrna.”
Special privileges of lesser extent were also occa-
1Demosth. De corona, 91: δεδόχθαι τῷ δάμῳ τῷ Βυζαντίων “ ‘
Περινθίων ᾿Αθηναίοις δόμεν ἐπιγαμίαν, πολιτείαν, ἔγκτασιν γᾶς καὶ
οἰκιᾶν, προεδρίαν ἐν τοῖς ἀγῶσι, πόθοδον ποτὶ τὰν βωλὰν καὶ τὸν
δᾶμον πράτοις μετὰ τὰ ἱερά, καὶ τοῖς κατοικεῖν ἐθέλουσι τὰν πόλιν
ἀλειτουργήτοις ἦμεν πασᾶν τᾶν λειτουργιᾶν.. Cf. Xenop ὦ
Hellen. i. 1. 26. '
2E. L, Hicks and Ο. F. Hill, 4 Manual of Greek Historical Inscriptiom
(Oxford, 1901), no. 176, ll. 35 seg.—See infra, on examples of k
treaties and alliances ; and on naturalization in Greece, see chap. viii
CLASSES OF ALIENS IN ATHENS 145
sionally conceded. Travellers were liable to be
‘searched at the frontiers, to find whether they took
out of the country or brought in prohibited goods,
or such goods as were subject to customs duty. Now
some foreigners were exempted from this liability, either
Decause of their good offices to the State, or as a mark
of honourable recognition for other reasons. An im-
“munity of this nature was termed ἀτέλεια (which has ἀτέλεια.
Ἐν been referred to), of which numerous instances
“are preserved in inscriptions! Again in time of war
Ἐν enemy aliens were for the same reasons protected
“both in regard to their persons and their property; such
_ guaranteed inviolability was termed ἀσυλία (as was before ἀσυλία.
mentioned). Many inscriptions speak of such inviola-
: bility on land and sea, in peace and war, --ἀσυλία καὶ
| ἀσφάλεια κατὰ γῆν καὶ κατὰ θάλασσαν πολέμου καὶ εἰρήνης.
Apart from all these occasional concessions, granted Classes of
“for special reasons, various rights were permanently Ἄς Ἀκσσεψτο
extended to foreigners, in accordance with their rank tights
g to
or status—more or less clearly defined—as recognized status.
‘by the particular State concerned. In Athens several
)classes were distinguished. Occupying an intermediate
position between the full citizens and the barbarians,
jithese were (enumerating in descending order as to
ithe extent of rights enjoyed), the naturalized aliens Classes of
᾿(δημοποίητοι), the ‘ public guests,’ so specifically legalized, reser
constituting largely the πρόξενοι; the isoteles (ἰσοτελεῖς);
ithe metoecs, or domiciled aliens (μέτοικοι), and non-
sdomiciled aliens.
_ The naturalized alien held the title of citizen by Naturalizea
Wvirtue of a decree of the people in his favour. Ης
feoyed the general rights of citizenship, but with
ain restrictions.”
4Cf. H. H. Meier, De proxenia sive de publico Graecorum hospitio
(Halle, 1843), pp. 21 seg.; V. Thumser, De civium Atheniensium
wnuneribus (Wien, 1880), pp. 110 seq.
2See G. Gilbert, Handbuch der griechischen Staatsalterthiimer, 2 Bde.
a Leipzig, 1881-85), vol. i. Ρ. 177. And see further infra, on naturali-
‘zation in Greece, chap. viii.
population and
146 NON-DOMICILED ALIENS
Proxenci. The proxenoi corresponded approximately to our
consuls, agents, or residents. ‘They enjoyed their privi-
leges on condition of their entertaining and assisting
in various ways the ambassadors and private citizens of
the States they represented.’
Isoteles. The isoteles were metoecs exempt from such taxes
as were peculiar to the latter; indeed, in point of
taxation, they were practically on the same footing as
citizens.”
Metoecs. The metoecs were domiciled aliens who enjoyed the
protection of the Athenian laws through the agency
of a patron (προστάτης), and were subject to special
taxation, to compulsory military service by land and
sea, and to certain other compulsory duties and burdens.*
Non-domiciled The non-domiciled aliens were subjects of cities with
mia which Athens‘ had commercial relationships or other
intercourse, but who had not been formally authorized
by law to settle definitely on her territory. They were
not included in her regular population. According to
the theory of the law, such aliens were to be esteemed
‘enemies, but in the post-heroic period of Athens,
Position of _ this theory was virtually obsolete. In actual practice
nopcomiciled these non-domiciled aliens were almost assimilated to
the metoecs, being like them under the jurisdiction of
the xenodikai, or the polemarch, as the case may be?
There are no specific texts extant indicating the
legal status of this class of inhabitants; but there i
no doubt that their persons and property were ade-
quately protected, as is shown to some extent
the speeches of the Attic orators discussing commercia
1 For a full treatment of the proxenoi see infra, pp. 147 seg.
2 Cf. infra, the latter portion of chap. vii.
8 For preciser definition of metoecs and detailed treatment see iff 2
ῬΡ. 157 447. Ὶ
4 Of course these distinctions and practices do not apply exclusively
to Athens; but here the Athenian system is more particularly com
sidered,
5 See further infra, chap. viii. in_fin., as to the position of foreigners”
in general from the point of view of the local jurisdiction. :
ELEMENTS OF CONSULAR SYSTEM 147
transactions in which foreigners were engaged. They
were debarred from serving in the army, and also from
ing initiated in the mysteries; and very probably
ertain other private rights given to metoecs were with-
eld from them. To conclude, as Schenk]? does, that
hey were wholly deprived of the benefit of the law
$ an entirely unwarrantable assumption. If this were
so the institution of the proxenoi—officials purposely
ppointed to see to the interests of aliens, their fellow-
jountrymen—would be a mere chimera.
- It will now be well to enter a little more fully into
the system of proxenia, the rights and duties of the
domiciled alien, and the mode, conditions, and effects
»f naturalization.
_ Proxenta.'—This institution was by no means peculiar Proxenia.
to the Hellenic nations. More or less similar practices
»btained amongst many peoples of antiquity, as, for Amongst
pxample, the Egyptians. There are definite inscriptions ἴῃ pecs cig μὴν
which indicate that a system of this kind was known
Ὁ the Phoenicians and to the Carthaginians ; there is,
moreover, epigraphic evidence that the Carthaginians
vere also fully acquainted with the use of the sssera
tospitalis (or tessera hospitalitatis) so well known to the
Momans. The system was most largely in force in Thejinstitution
preece, and dated from the time of the Trojan wage Se
for practical purposes, the history of the institution
nay be said to commence at about the end of the
®venth century before the Christian era; the oldest
«xtant pereraphic texts relating thereto are from
lympia,” Locris,° Corcyra,’ and Petilia.® As regards
‘1 Corp. jur. Att. 34.
12H. Schenkl, De metoecis Atticis (Wiener Studien, t. ii. (1880), pp.
51-225), p. 213.
»®Cf. P. Monceaux, Les Proxénies grecques (Paris, 1886) ; Schubert,
ve Proxenia Attica (Leipzig, 1886).
‘4 Eustathius, Ad Iliad. iii. 204; iv. 377; cf. Liv. i. 1; and Plin.
ast. nat, XXXV. 9.
‘© H. Roehl, Luscriptiones Graecae antiquissimae (Berlin, 1882), 113,
7 118, 6 Thid. 322. 7 Ibid. 342. 8 [bid. 54.4.
Proxenia
and public
hospitality.
Private and
public ties of
hospitality—
hereditary.
x
118 PROXENIA AND HOSPITALITY ᾿
Athens the earliest document of this kind that we
possess dates from the middle of the fifth century ;?
but, no doubt, in view of the early poetic and historic
references, the institution existed in that city before
this time. The system exerted a great influence in
diminishing Greek exclusiveness and stimulating co
mopolitan tendencies. ‘‘ La proxénie est un gran
pas fait par la Gréce hors de l’isolement oriental.”* It
also tended to foster pacific relationships, and to)
mitigate the horrors of war. =F
Proxenia, in the stricter sense, is not to be con-
founded with the institution of public hospitality (fea,
the guest-tie) ; but the distinction between them |
not always a hard and fast one. Thus, certain treati
of proxenia amounted to scarcely more than treaties of
public hospitality, ¢.g. the treaties concluded between!
Agrigentum and the Molossi,® between Delphi and the:
towns of Sardes and Ciphaera.* Xenia was the more:
ancient, and represented the purely amicable relation--
ships between the host and his foreign guest. On the
other hand, the later proxenia took the form of a real
contract, explicitly entered into, and was the natural!
outcome of the vaguer guest-tie, having been necessi-)
tated by the enlargement of pacific relationships gener-
ally, and more particularly by the growth of commercia#
intercourse. a
In early times, individuals and whole families of
different States frequently established a bond of hospi
tality between them,—a bond which became hereditary
as is depicted in the episode of Glaucus.’ In process
of time the extent of such relationships was enlarged 86
as to include entire States as well as families anc
individuals, as, for example, where the Pisistratiday
|
1 Bulletin de correspondance hellénique (Paris), vol. 1. p. 3035 Cot
inscriptionum Atticarum (1873, etc.), i. 27; Suppl. p. 9. ΣῈ
2 Laurent, op. cit. vol. il. p. 113. -
8 Cf, C. Carapanos, Dodone et ses ruines (Paris, 1878), p. 52. ¢ :
4 Bull. de corr. hell. (1881), p. 400. 5 Cf. Iliad, vi. 215 seg.
ἢ
4
"ἢ PROXENIA AND MODERN SYSTEM _ 149
became the proxenoi of Sparta. Similarly, Romans of
“distinction became the protectors of foreign cities.’
_ Proxenia is, in many respects, the prototype of our Proxenia—and
modern consular system. In modern Greek the word the modern
nsular
πρόξενος is used as the equivalent of our word consul. system.
But it is not to be inferred that there is a complete
identity between the two institutions. They were alike How far
in that both were adapted to meet the demands of %™*"
“citizens trading with foreign States ; the proxenoi, like
our consuls, supplied information to the government
‘that appointed them, and also furnished advice and
‘assistance to the citizens who were subjects of that
jgovernment whilst residing temporarily or more per-
-manently in the territory of the other country. The
differences between them are due to the differences in Differences
the constitution and in the very conception of ancient weer e™
sand modern States. The appointment of the proxenoi
“really arose from the fact that the system of regular
πα permanent ambassadors or other official and diplo-
‘matic representatives was as yet impossible. In the
> first place, the modern consul is usually a native of the
) country which appoints him ; the proxenus was invari-
| ably a citizen of that country which received the subjects
14 the State thus represented. Secondly, the appoint-
ment did not necessarily confer on the proxenus any
: - status in his own country ; but in the country
“he represented he received various honours and such
Ἵ Β΄ ες: as almost amounted to citizenship. Thirdly,
πῆς government appointing him possessed no regular
means of compelling him to perform the duties he
)undertook, or of punishing him for any breach of faith.
Lastly, the modern consuls have not, as a rule, any
) political functions ; the proxenoi, on the contrary, ful-
‘filled many duties of a political description.
- In spite of the fact that the foreign countries, on Fidelity of
whose behalf the proxenoi acted, had no recognized ΟΣ
itight of legal action against them in case of default,
21 Yi
1See infra, chap. ix., on hospitium publicum.
Appointment
of proxenoi.
Notable
examples of
proxenoi.
150 EXAMPLES OF PROXENOI
i’
nevertheless we find from the numerous example
reported that they were generally assiduous in thei
duties and faithful to their trust. The office tended t
become hereditary,’ in the same way as the privat
institution (the £evia) had done,—a fact which supplic
additional testimony to good faith. Most of the decree
respecting proxenoi embodied the formula, αὐτῷ κα
ἐκγόνοις, thus referring specifically to their descendants.
Proxenoi were appointed either by the foreign govern
ment, which was the general rule and the case in Athens.
and other Greek cities, or by the protecting State, as
was the case in Sparta, for instance, where the king® or
the people * nominated such officials to take cognizance
of the affairs of foreigners in general. Xenophon, the
great admirer of Spartan polity, was inspired by this
example when, discussing the granting of privileges to
foreign merchants and the advantages of increased
traffic, he suggested the institution of a special magis
trate for foreigners,—rather a kind of guardian for
strangers after the manner of the existing guardians Ὁ
orphans.* Zi
As examples of Athenian proxenoi may be mentioned
Pindar at Thebes, Thucydides at Pharsalos, Doxander
at Mitylene ;° as Spartan proxenoi at Athens, Cimon,
Alcibiades, and Callias.6 Similarly, Nicias represented
Syracuse at Athens,’ where also Demosthenes
1Thuc. iii. 2; v. 433 Xenoph. Symp. ix. 39; and ch Comp
inscrip. Att. 1. suppl. 61a; ii. 3, 36, 380 and others. Ἔ
2Cf. Herodot. vi. 57: καὶ προξείνους ἀποδεικνύναι τούτοισι,
προσκέεσθαι τοὺς ἂν ἐθέλωσι τῶν ἀστῶν... (But here the proxenial
took rather the form of a λειτουργία, a public charge or burden.) τ
8 Diog. Laert. ii. 51; Corp. inscrip. Graec. 1335. Ε
* De vectig. ii. 7, where Xenophon speaks of the μετοικοφύλαξ,
overseer and guardian of the μέτοικοι, and of the ὀρφανοφύλαξ,
guardian of orphans, who had lost their fathers in war. g
5Tsocrat. Antid. §166; Thuc. viii. 923 Arist. Polit, v. 4.63; chi
Thuc, ii. 29 ; ili. 2. 85; Xenoph. Hel/. 1. τ. 35, etc. ss
6 Andocid. De pace cum Laced. 3; Thuc. v. 43; vi. 89 ; Xenoph,
Hell. v. 4. 223 cf. vi. 1. 4. ; i
7 Diodor, xiii. 26,
7 Jae ws δ. ἐν Geb τ
: THEIR PRIVILEGES 151
Thraso represented Thebes.!_ At Sparta, Lichas repre-
sented Argos,? and Pharax Boeotia.? At Delphi there
_ appears to have been a set of official proxenoi.t Tyrants
also and ‘barbarian’ countries had their proxenoi.°
_ The Greek cities sometimes appointed foreign
citizens, who had resided with them as hostages and
had made themselves popular and esteemed. Thus
the Achaeans nominated as proxenoi the hostages of Privileges of
various Boeotian and Phocian States, and, in this con- Pro**?
nection, an extant inscription speaks, in a formula which
had practically become stereotyped, of their being
accorded freedom from special taxation, inviolability on
land and sea, in peace and war.® Similarly Athens, in
a decree approving the treaty with Selymbria (a town
of Thrace, on the Propontis), conferred the honour of
-proxenus on Apollodorus, a liberated hostage of that
country.’
It is not known definitely whether proxenoi received Doubtful
: whether they
any payment for their work. In any case, no general received
rule can be laid down. There is no doubt that some, ΡΣ τ οι.
at all events, acted gratuitously, either after nomination
by a State, or on their own offer made voluntarily and
in the first instance to execute the necessary duties.
Hence we find some of these officials termed ἐθελο-
πρόξενοι, one of whom, as mentioned by Thucydides,
‘was a certain Peithias, who voluntarily acted as the
1 Aeschin, De legat, 143 3 ὦ Cresiphy 1386
2'Thuc. v. 76, 3 Xenoph. Hell. iv, 5. 6.
*Eurip. Jon, 551, 1039; Androm. 1103; cf. Pindar, Nem. Od. vii.
63, where he speaks of Δελφοὶ gevayérau,—though this phrase refers
rather to the hospitality of the Delphians than to any specific official
institution.
5Cf Xenoph. Auad. v. 4. 23 vi. 113 Corp. inscrip, Graec, nox 87.
6 Corp. inscrip. Graec. no. 1542: ... τοῖς ὁμήροις τῶν Βοιωτῶν
καὶ Φωκέων προξενίαν Sdpev....
XV > > A " ὌΝ ’ Ν 4, 4 > , \
καὶ εἶμεν αὑτοῖς ἀτέλειαν καὶ ἀσυλίαν καὶ πολέμου καὶ εἰρήνης καὶ
κα Ν “ \ ἈΝ θ ix Ν ” / σ΄ Ν »" ἀλλ
τὰ γὴν καὶ κατὰ θάλατταν καὶ τἄλλα πάντα ὅσα καὶ τοῖς ἄλλοις
7
προξένοις [κα]ὶ εὐεργέταις δίδοται...
7 Cort, inscrip, Att. ig suppl. 61 ἂν
International
position of the
proxenus.
Protector of
foreign
interests and
foreign
subjects.
Large variety
of his
functions.
152 THEIR FUNCTIONS
proxenus of the Athenians and was the popular leader.’
Perhaps the most that can be said on this point is that _
at first the office was an honorary one, and afterwards —
certain emoluments (apart from honours and distinc-—
tions) were attached thereto.
Obviously the proxenus occupied an important posi-—
tion in international relationships of all kinds. He was
the intermediary between the two cities. He was the
protector (προστάτης) " of foreigners in general, and
espoused their cause.2 He acted in their favour, as_
Cimon the Athenian did for Sparta, and Timosthenes of -
Carystus for Athens, before the political assemblies, and —
also before the local tribunals, in order to ensure their
financial, judicial, and religious interests. If the foreign”
city which he represented was in any way involved in —
legal proceedings, he introduced to the court the
σύνδικοι, or advocates, who had been despatched to plead
its cause.’ He was present, as a witness, at certain civil
transactions of his protégés, and particularly at the making —
of their wills. He determined the succession of deceased —
foreigners, who died without heirs.’ He obtained —
security for the loans of the strangers under his pro-—
tection, and even acted as a broker as between the
merchants of the two States in question. Only occasion=_
ally, however, did he sell the goods in his own name
lili. 70 : καὶ ἦν γὰρ ΠΝ ἐθελοπρόξενός τε τῶν Alene καὶ
τοῦ δήμου προειστήκει... |
2As to the προστάτης in connection with the special class of
metoecs, see infra, p. 160. ͵
8 Corp. jur. Ait. p. 585, note to art. 1257 (Schol. ad Demosth. :
Leptin. 475. 5): Tpégevo λέγονται « ot ἐν τοῖς δρίοις τοὺς ἐπιδημοῦντας.
δεχόμενοι, φίλοι τυγχάνοντας καὶ κοινῇ καὶ ἰδίᾳ. —Cf. Schol. ἱπ΄
Aristoph. Aves, 1021: Tpdgevor εἰσιν οἵ τεταγμένοι εἰς τὸ noha
-τοὺς ξέκους ἐξ ἄλλων πόλεων ἥκοντας.
* See Suidas, 5.0. πρόξενος 5 ; Schol. ad Herodot. vi. 573 Ἐπ ΩΣ |
Ad Liiad. ii. 204.3 iv. 377: ... πρόξενος μὲν ὃ ὑπὸ whine i la |
ἐν τῇ σφετέρᾳ προΐστασθαι ξένων.
5 Corp. inscrip. Graec. 2353.
6 bid. 4; Roehl, Zuscr. Gr. antiq. 544.
7Demosth. ¢. Calipp. 5 seg. , ® Pollux,,iii. 59.5 vil. 4.
DIPLOMATIC INTERMEDIARIES 153
_ (mporparwp) ; he was, more frequently, the mere inter-
_ mediary between seller and purchaser (προξενητής). He
was for a State what the private patron (προστάτης, in
_ the strict sense) was for an individual or a family. He
received also such aliens as were not provided with any
lodging ; and sometimes he was chosen by them (apart
_ from his already existing office) as their private προστάτης.
At times, if they had no private προστάτης, he became
theirs by virtue of his office of πρόξενος. Apart from
these functions, which were usual and understood,
_ Athens often gave her proxenoi special instructions.?
Further, the proxenus received the foreign ambas- His part in
_ sadors and other diplomatic officials, procured for them = apr
admission to the assemblies, to the temples,” and to the
_ theatres,* and assisted, to some extent, in the formulation
and conclusion of treaties. When there was a desire on
the part of a community to conclude a peace or renew a
truce, it was usual to make application or otherwise
commence overtures through its proxenus ; indeed, not
infrequently did he take the initiative by proposing the
conclusion of treaties.*
_ They played an important part in many departments
of diplomatic activity. Sometimes they intervened in
_ cases of imminent war between their own State and that
represented. At the time of the Peloponnesian war the
_ Corcyraean proxenoi at Corinth guaranteed the ransom
of a large number of Corcyraeans who had been taken
prisoners. Along with soothsayers, they occasionally
_ pronounced imprecations against those who would break
treaties that had been concluded.® In a large number
of cases they were despatched as ambassadors to cities
_ which they had represented in their own country. Thus
_ Callias, the proxenus of Sparta, was sent to Sparta on
_ more than one occasion by Athens.’ At the time of the
1 Corp. inscrip. Ait. ii. 186. 2 Bull. corr. hell. v. p. 400.
3 Pollux, viii. 59 ; Eustath. 4d Iliad. iv. 207.
* Thue. v. §9. 5 Thuc. iii. 70.
ὁ Roehl, Zuscr. Gr. antiq. 118. 7 Xenoph, εἰ, vi. 3. 3-5.
154 PRIVILEGES OF PROXENOI
conflict with Philip, Athens sent to Thebes Thraso of —
Erchia and Demosthenes, proxenoi of Thebes, as ambas-
sadors to negotiate for an alliance.! In the Pelopon-—
nesian war Lichas, proxenus of Argos at Sparta, was
several times chosen to negotiate between the two cities.? -
Proxenoi as Proxenoi, again, often acted as arbitrators in contro-—
arbirators: —_versies between cities or between private individuals.
Thus, Cimon of Athens, the proxenus of Sparta, was
nominated as arbitrator between Athens and Sparta.*
Numerous examples of proxenoi who officiated as arbi-
trators are mentioned in inscriptions found in Laconia, —
in Boeotia, in Delphi, in Thessaly, in the Cyclades, and
on the coast of Asia Minor.*
The character [}ῺΣ{ reference to the different functions of the proxenoi_
of proxenia above mentioned, it is to be remembered that the institu-
aifercot parts: eon varied greatly i in different parts of Greece. As M.-
' _Monceaux says, it assumed more particularly a rcisioul
or a commercial, or a political character in proportion as
the activity of the cities concerned was chiefly directed
to religion, commerce, or politics respectively. ‘‘ Comme
le proxene représentait la ville ¢trangére en tout, la
proxénie est devenue naturellement une institution sur-_
tout religieuse dans les cités sacerdotales, commerciale
dans les cités commergantes, politique et diplomatique -
dans les grands Etats qui ont aspiré 4 un réle politique.”® | |
Privileges In recognition of their important position and the
bestowed on
ῥέρ θης!. considerable services rendered by them, many privi- |
leges were granted to them which, however, varied |
at different times and in different localities. These
privileges were of two kinds, honorary and special.
The latter, amongst the Ionian peoples generally, |
varied according to this or that proxenus; am ong
the Aetolians and Dorians both kinds were us 4
1 Aeschin. De /egat. 141-3 ; De coron. 138.
2 Thuc. v. 76. 3Plut. Cimon, 14. Ι!
4 Corp. inscrip. Graec. 2264 add., 2671 ; Bull. corr. hell, vi. p. 139. |
5In Daremberg-Saglio, op. cit., s.v. Proxenia. |
PRIVILEGES OF PROXENOI 155
conferred as a whole on each proxenus. Of course,
the nature and extent of their civic and_ political
rights depended on whether they were or were not
citizens of the countries in which they acted. If they
had not acquired citizenship, they possessed all such
rights as could be obtained by foreigners who had not
become naturalized. In a war between their own State
and that which they represented, their persons and
property were protected. As has before been pointed
out, they enjoyed inviolability, ἀσυλία ; some inscriptions
speak of their enjoying ‘peace in war,’ ἀἰρόνην ἐν πολέμῳ 3 }
in a word, they received the general protection (Gorepidere)
of the States concerned.?, Thus Cleonicus of Naupactus,
the proxenus of the Achaeans, having been made prisoner,
was not sold, but was liberated even without ransom,—
ἔλαβε δὲ καὶ Κλεόνικον τὸν Ναυπάκτιον, ὃς διὰ τὸ πρόξενος
ὑπάρχειν τῶν ᾿Αχαιῶν παραυτὰ μὲν οὐκ ἐπράθη, μετὰ δέ τινα
χρόνον ἀπείθη χωρὶς λύτρων.
Further, they shared the privileges of ἀτέλεια and
ἰσοτέλεια, that is, exemption from certain taxes, custom
duties, or other occasional monetary burdens specially
imposed on resident foreign subjects, and thus were, in
this respect, practically assimilated to citizens. And
also, like full citizens, they were empowered to acquire
property in land and houses (ἔγκτησις). These immuni-
ties and concessions are clearly expressed in the following
inscription : τοῖς προξένοις εἶναι γῆς καὶ οἰκίας ἔγκτησιν Kat
ἰσοτέλειαν καὶ ἀσφάλειαν καὶ ἀσυλίαν καὶ πολέμου καὶ εἰρήνης
οὔσης, καὶ κατὰ γῆν καὶ κατὰ θάλατταν."
Again, they had the right to have their official cases
tried before others (the privilege itself being termed
1Cf, for example, Corp. inscrip. Graec. 2330.
2See Corp. inscrip. Att. i. suppl. 116 a3 ii., add. 1c; iv. §4b; and
cf. Demosth. ¢. Aristoc. 89; De Halon. 38; Lysias, c. Ergocl. 1;
¢. Philocr. 2.
8 Polyb. v. 95.
*Corp. jur. Att. 1239 ; Corp. inscrip. Graec. 1562-7.—Cf. the pas-
sage of an inscription (Corp. inscrip. Graec. 1542) quoted supra, in
note 6, p. 151.
Importance of
the proxenoi
in international
relations.
156 THEIR IMPORTANCE
προδικία, and the causes enjoying such priority, δίκαι
πρόδικοι).. They possessed the right of access to the
public assemblies, which they were entitled to address
immediately after the completion of the sacrifices,—
πρόσοδος πρὸς τὴν βουλὴν καὶ τὸν δῆμον πρώτῳ μετὰ τὰ
ἱερά. They were permitted to use a special seal! in their
official transactions. They were exempted from the
obligation to have a patron (προστάτης). They enjoyed
ἐπινομία (the right of pasture on the commons), the
right of importing and exporting all kinds of goods by
sea and by land, the right of free entry into port even
in time of war; also the privilege of consulting the
oracle before others, προμαντεία ; burial at the expense
of the State.2 In several Dorian States they received
ἰσοπολιτεία, in some Ionian cities complete citizenship,
πολιτεία.
Thus it is obvious that owing to the multiplicity and
importance of their functions—as permanent intermedi-
aries between their own and the foreign city, as the
latter’s patrons before their own courts and assemblies,
as diplomatic agents, and as arbitrators,—the proxenoi
exerted a profound influence on the development of
interstatal relationships in Greece. ‘“ En résumé,
comme intermédiaires permanents entre deux cités,
comme patrons d’une ville étrangere devant les —
tribunaux et les assemblées de leur patrie, comme ©
diplomates et négociateurs des traités, comme arbitres —
entre les Etats, les proxénes ont joué un rdle con- —
sidérable dans la vie internationale de la Greéce —
. 738
ancienne.
1 Pardessus, of. cit. i. p. 52.
2 For a fuller enumeration of the minor privileges, see P. Monceaux
in Daremberg-Saglio, op. cit, p. 738, 5.0. Proxenia.
3 Monceaux, Jc. cit. p. 740.
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CHAPTER VII
THE METOEC.—RIGHTS AND DUTIES OF THE
DOMICILED ALIEN !
THE position of the metoec has given rise to much The position of
controversy, and writers are by no means yet agreed on {he metorc
the subject. In the first place very few definite texts, subject.
literary or epigraphic, are available ; and secondly, some
of the older grammarians and commentators, who have
touched upon this question, are mostly inconsistent
with each other in their attempted elucidations, and
sometimes, indeed, have carelessly misrepresented an
observation or reference of the older classical writers.
The ancient laws and usages regarding metoecs are Importance of
of the utmost importance in the whole field of inter- πσηις μένος τὸ
national law, public and private alike. The gradual meteecs.
1'The present chapter is much indebted to M. Clerc, Les météques
athéniens.—Etude sur la condition légale, la situation morale et le rile social
et économique des étrangers domiciliés ἃ Athénes (Paris, 1893). Other
works may be consulted as follows:—E, Catellani, Diritto internazionale
privato nell’ antica Grecia (in Studi e documenti di storia e diritto, Roma,
1892), sect. iv.; G. Gilbert, op. cit. vol. i. pp. 195 seg.; Ὁ. von
Wilamowitz-Mollendorff, Demotika der Metoeken (in Hermes.—Zeit-
schrift fiir classische Philologie, Berlin, vol. xxii. (1887), pp. 107-128,
211-259); G. de Sainte-Croix, Mémoire sur les Météques (in Mémoires
de littérature tirés des Régistres de Académie Royale des Inscriptions et
Belles Lettres, τ. xlviii. (1808), pp. 176-207) ; H. Schenkl, De metvecis
Atticis (Wiener Studien, τ. ii. (1880), pp. 161-225).—For detailed
and classified information relating to the position of domiciled
aliens in the different Greek States, see M. Clerc, De Ja condition
des étrangers domiciliés dans les différentes cités grecques. In Revue des
universités du midi, Bordeaux, tome iv. (1898), pp. 1-32, 153-180,
᾿ 249-274.
recognition by States of specific rights and duties
conferred or imposed on non-citizens tended to break
down the barriers of a rigid national exclusiveness, to
modify the old customary attitude of, as it were, an
a priori hostility, to mitigate the severity of practices in
war. Such recognition promoted amicable international
relationships, social, commercial, or intellectual, and was
largely instrumental in fostering the conception of inter-
national comity, a conception which underlies the whole
fabric of the modern law of nations. Of course, this
notion was not then as clearly defined and as explicitly —
expressed as it is now; but even in its comparatively —
rudimentary form, it did much to transfer principles —
from the philosophical and moral to the juridical
consciousness.
Meaning ofthe The word μέτοικος is derived from μετά, οἰκέω, and —
word mefoec. hence, in its literal signification, means a person who ;
dwells with others. The mere fact of being thus —
resident or domiciled in a city did not, strictly speaking, _
carry with it, from the constitutional point of view, any —
rights whatever incidental to citizenship. As Aristotle
says: “Α citizen is not a citizen simply because he lives
in a certain place, for resident aliens and slaves share in —
the place.”* The term, to which the Latin inguiiinus,
incola, and peregrinus more or less approximate, is
opposed to ἀστός, πολίτης (countryman, citizen) on the
one hand, and to ἕένος (stranger, foreigner) on the
other. In the case of the latter, however, the dis-
crimination was not always sharp and. precise; and —
ξένος was also generally distinguished from βάρβαρος,
barbarian, non-Hellene.2 Perhaps the best English —
expression corresponding to μέτοικος is ‘ resident alien,’ —
or ‘domiciled alien.” In German the Teutonized word ~
Schutzverwandte has been frequently employed by ~
writers ; but, as it is clearly seen from its constituent
parts, it implies the idea of protection and not that of —
158 DOMICILED ALIENS
{
|
;
:
;
Ϊ
͵
Se ee eS ee en ee ee «ὦ κα il ni
* eee an - > , Ὶ
1 Polit, iii. 1, 3: 6 δὲ πολίτης οὐ τῷ οἰκεῖν που πολίτης ἐστίν. ~
καὶ γὰρ μέτοικοι καὶ δοῦλοι κοινωνοῦσι τῆς οἰκήσεως,
2 See supra, pp. 40, 127.
DIFFERENT SYSTEMS 159
domicile; hence its connotation is at once too narrow
and too wide.
The best definition that has come down to us from Definition of
the earlier writers is undoubtedly that formulated by ‘he wort
Aristophanes of Byzantium (born c. 260 B.c.) one of
the most eminent Greek grammarians at Alexandria :
μέτοικος δ᾽ ἔστιν, ὁπόταν τις ἀπὸ ἕένης ἐλθῶν ἐνοικῇ τῇ
πόλει, τέλος τελῶν εἰς ἀποτεταγμένας τινὰς χρείας τῆς
πόλεως. “Ews μὲν οὖν ποσῶν ἡμερῶν παρεπίδημος καλεῖται
καὶ ἀτελὴς ἐστιν ἐὰν, δὲ ὑπερβῇ τὸν ὡρισμένον χρόνον,
μέτοικος ἤδη γίγνεται καὶ ὑποτέληςἱ Here the three
necessary conditions are indicated, viz. a definite inten-
tion on the part of a foreigner to settle in a city (animus
manendi), coupled with his actual establishment therein
(factum), residence of a certain length of time, and
contribution to certain public charges.
The systems adopted by the different States varied to Different
a greater or lesser extent ; and, in fact, the practice of (pens
each particular city varied from time to time, in accord-
ance with the oscillations of political power, and with
the exigencies of public policy. Similarly, the number
of metoecs varied considerably in the different com-
munities. Sparta, for example, for a long time excluded
them altogether. Athens, in the days of her greatness,
probably contained some fifty thousand out of a total
— of about half a million,? of which some
undred thousand were freemen. At Agrigentum they
formed the greater part of the population. No doubt inauence of
Athens was largely indebted to them for her commerce —
and industry ; and, on this account, Xenophon thought Athenian
. . e ὁ A : ΤΌΘ,
it would be well if suitable honours and distinctions
ΤΑ, Nauck, Aristophanis Byzantii . . . fragmenta (1848), frag. 38.
*Schoemann, Griechische Alterthiimer, op. cit. vol. ii. p. 3. (It is to
‘be noted, however, that far different estimates of the Athenian popula-
tion in general have been made by other writers.)
8Diodor. xiii. 84. 4: κατ᾽ ἐκεῖνον yap τὸν χρόνον ᾿Ακραγαντῖνοι
μὲν ἦσαν πλείους τῶν δισμυρίων, σὺν δὲ τοῖς κατοικοῦσι ξένοις οὐκ
ἐλάττους τῶν εἴκοσι μυριάδων.
Obligation to
have a patron.
Was public
authorization
necessary
for their
admission ?
160 PATRONS NECESSARY
ee a hie wilted.” ine
were conferred on them. ‘It would be for our advan-
tage and credit also that such merchants and shipowners
as are found to benefit the State by bringing to it
vessels and merchandise of great account should be
honoured with seats of distinction on public occasions,
and sometimes invited to entertainments; for, being
treated with such respect, they would hasten to return
to us, as to friends, for the sake, not merely of gain,
but of honour.” 1
—
Taking Athenian practice as the most enlightened,
and as being fairly representative of that of other cities,
we find in the Hellenic world that every metoec was
obliged to select some citizen as a patron (προστάτης),
thus establishing a relationship which somewhat re-
sembled that between the Roman patronus and clea
Probably public authorization, as is conjectured by
Schoemann,’ was first required; and in Athens this was
effected by the Areopagus. But, it must be admitted,
certainly shows that the conjecture is not altogether un=
warrantable. In the passage referred to Creon says
to Theseus: ‘Such the wisdom, I knew, that dwells
on the mount of Ares in their land ; which suffers not
such wanderers to dwell within this realm. In that
faith, I sought to take this prize.”
an > es 4 4
τοιοῦτον αὐτοῖς “Apeos εὔβουλον πάγον
> ‘ *¢ ’ ” “a > 3a
ἐγὼ ξυνήδη χθόνιον ὄνθ᾽ ὃς οὐκ ἐᾷ
τοιούσδ᾽ ἀλήτας τῇδ᾽ ὁμοῦ ναίειν πόλει:
ᾧ πίστιν ἴσχων τήνδ᾽ ἐχειρούμην ἄργαν.3
Creon here refers to the polluted Oedipus who was in
Attica, and assumes that if this came to the knowledge
1Xenoph. De vectig. iii. 4: ᾿Αγαθὸν δὲ καὶ καλὸν καὶ προεδρίαις
τιμᾶσθαι ἐμπόρους καὶ ναυκλήρους, καὶ ἐπὶ ξενίᾳ γ᾽ ἔστιν ὅτε καὶ
λεῖσθαι, οἱ ἂν δοκῶσιν ἀξιολόγοις καὶ πλοίοις καὶ ἐμπορεύμασιν,
» n . nA ‘
ὠφελεῖν τὴν πόλιν. Ταῦτα yap τιμώμενοι od μόνον τοῦ κέρδους
3 Ν Ν “ ~ Ψ / > UA ”
ἀλλὰ καὶ τῆς τιμῆς ἕνεκεν πρὸς φίλους ἐπισπεύδοιεν ἄν.
2 Op. cit. vol. ii. p. 3, note 2. 8 Oedip. Col. 947-950.
AUTHORIZATION ESSENTIAL 161
of the Council of the Areopagus, it would take immediate
steps for his expulsion. Such action would, of course,
be within the jurisdiction of the Areopagus, which exer-
cised a moral censorship, particularly so in the earlier
history of the Athenian democracy. And even after the
reforms of Pericles and Ephialtes we find that court tak-
ing cognizance of similar matters, though only by special
warrant,—as, for example, where, having been instructed
by the Ecclesia, it inquired into the conduct of a suspect
and reported thereon: τοῦ δήμου προστάξαντος ζητῆσαι τὴν
βουλήν, ... καὶ ζητήσασαν ἀποφῆναι πρὸς ὑμᾶς, ἀπέφηνεν ἡ
βουλή... On the other hand it may be argued that the
authority constituted to exercise a moral censorship and
to decree the expulsion of suspected foreigners is not
necessarily the same authority which was empowered to
grant strangers permission to take up their domicile
within its jurisdiction, or to allow them to become
naturalized.
In any case, authorization by special decree was Authorization
essential. There are numerous examples where right of 92 522°"),
domicile was conceded to strangers en masse, especially so essential.
after a war in order to replenish the population. There
was a law of Themistocles to the effect that—... τοὺς
μετοίκους καὶ τοὺς τεχνίτας ἀτελεῖς ποιῆσαι ὅπως ὄχλος πολὺς
πανταχόθεν εἰς τὴν πόλιν κατέλθῃ, καὶ πλείους τέχνας
κατασκευάσωσιν εὐχερῶς. But in treaties there were Exemption
frequently special stipulations to exempt the subjects of Tomo",
the contracting parties from this formality ; e.g. in the formalities by
treaty between Hierapytna and Priansos, and in the
treaty between the Latiani and the Olontani.
With regard to the duration of the period of settle- Duration of the
ment within the territory, it was either determinate or aes
_ ?Dinarchus, ¢c. Demosth. 58.—CE£. Plut. So/, 22: καὶ τὴν ἐξ ᾿Αρείου
wayou βουλὴν ἔταξεν ἐπισκοπεῖν, ὅθεν ἕκαστος ἔχει τὰ ἐπιτήδεια Kal
τοὺς ἀργοὺς KoAd(ew.—Cf. also Isocr. Areopag. 36-55.—See Jebb’s
mote on the passage in question in his edition and translation of
Dedip. Col.
~ 2Diodor. xi. 43.
Names of the
metoecs
enrolled in
special
registers.
Liability for
fraudulent
entry.
The frostates
—their patron.
162 THE PROSTATES
indeterminate. There was no fixed rule. It is signifi-
cant, however, of the deeply rooted conception as to the
antithesis of citizenship to alienage that such a philoso-
pher as Plato is unwilling to depart from the temporary
nature of the stranger’s residence. ‘Anyone who likes,”
says he in the Laws, ‘‘may come to be a metoec on certain
conditions ; a foreigner, if he likes, and is able to settle,
may dwell in the land, but he must practise an art, and
not abide more than twenty years from the time at which
he has registered himself... . Butwhen the twenty years
have expired, he shall take his property with him and
depart. ”’! |
The names of the metoecs were inscribed in special
registers, as Plato suggests in the above passage; and
on their leaving the country again they had to appear
before the magistrate to have their names removed.
An action, γραφὴ Eevias, lay against metoecs who neglecte
to get themselves enrolled on the register ; and should
they fraudulently procure an entry of their names on the
list of citizens, they were liable to a criminal prosecution
γραφὴ ἀπροστασίου,3 which applied also in case the y
neglected to choose a patron. If found guilty of wilful
infringement of this law, they could be sold as slaves.*
The prostates was their intermediary in most of theif
juridical and political relationships with the State. It is
probable that in a good many miscellaneous matter
metoecs could act on their own behalf without this
customary intervention. For example, a prostates wa:
usually necessary for the commencement of a suit by them
before the tribunals, but when it was once set in motior
: 1 Vili. 850B: ἰέναι δὲ τὸν βουλόμενον εἰς τὴν μετοίκησιν ἐπὶ ῥητοῖς,
ὡς οἰκήσεως, οὔσης τῶν ξένων τῷ βουλομένῳ καὶ δυναμένῳ κατοικεῖν
τέχνην κεκτημένω καὶ ἐπιδημοῦντι μὴ πλέον ἐτῶν εἴκοσεν ἀφ ἱν
γράψηται ... ὅταν δ᾽ ἐξήκωσιν οἱ χρόνοι, τὴν αὑτοῦ λαβόντα οὐσίαν
ἀπιέναι. |
2Cf, Plato, Laws, viii. 850c: ὁ δὲ ἀπιὼν ἐξελειψάμενος ἴτω Tas
ἀπογραφὰς, aitives ἂν αὐτῷ παρὰ τοῖς ἄρχουσι γεγραμμέναι TPO
τερον ὦσιν. Β
8 See Meier and Schoemann, of. cit. p. 390.
4 [bid, p. 391.
METOEC AND PATRON—RELATIONS _ 163
they were allowed to continue the proceedings indepen-
dently. Thus in one of the orations of Demosthenes? we
find a metoec making an independent appearance in court;
and in a Greek poet? of the third century, B.c., we read
of a keeper of a disorderly house (zopvoSocxds)—who is
obviously a metoec—pleading in person before a Coan
court of justice. Aliens, in the strict sense, had no right
to appear in person before the polemarch, who had
special jurisdiction over them; an eligible introducer was
necessary. Proxenoi possessed this right, but only by
virtue of a special decree of the people. Registered
metoecs enjoyed this privilege, simply by virtue of their
having been received as metoecs.
The functions of the prostates and the nature of the Relations of
metoecs’ dependence on and general relationships with bese de:
him are not clearly known. The earliest references to
such a functionary are found in the fourth century texts ;
none of the writers of the previous century specifically
mentions the prostates of metoecs. Aristophanes,® in-
deed, makes use of the word προστάτης, as M. Clerc
points out, not really in reference to metoecs as such, but
in reference to Hyperbolos, the unworthy ‘ chief’ chosen
by the Athenians. The application in the more technical
Sense is made by the scholiast alone, who unjustifiably
extends the force of the text. Other passages making
mention of the prostates are found in Demosthenes,‘
Hyperides,” Isocrates,® and Aristotle, who says: ‘Even
resident aliens in many places possess such rights [1.6.
‘the right of appearing before the tribunals either as
| laintiff or as defendant], though in an imperfect form ;
for they are obliged to have a ‘patron.’”? All these
*¢. Dionysodorum, 2 Herondas, Mimiami, 2.
8 Pax, 683-684:
᾿Αποστρεφέται τὸν δῆμον ἀχθεσθεῖσ᾽ ὅτι
οὕτω πονηρὸν προστάτην ἐπεγράψατο.
4c. Aristog. 58. ὅς, Aristog. in Orat. Att. ii. 385, frag. 26.
6 De pace, 58.
—F Polit, iii. 1. 4: Πολλαχοῦ μὲν οὖν οὐδὲ τούτων τελέως οἱ μέτοικοι
"μετέχουσιν, ἀλλὰ νέμειν ἀνάγκη προστάτην.
Intervention of
prostates
improbable in
most private
relationships.
164 DUTIES OF METOECS
texts give very little information on the subject ; it is the
scholiasts and lexicographers who have attributed to the
prostates the large functions of an intermediary, through
whom, as it is averred, not only the metoecs’ special and
distinctive tribute (the μετοίκιον) was paid to the State,
but all their public and private transactions with the
citizens were carried on.
As to most public transactions this was probably
the case; but in regard to the multiplicity of private
relationships the invariable intervention of a third party
in the person of a specially appointed prostates would
seem improbable, if not impossible; and particularly
so, when we recollect that the metoecs—according
to a common calculation—formed nearly half of the
free population of Athens. Besides, as Wilamowitz-
Mollendorff? reminds us, the polemarch, by virtue
of his specially constituted juridical capacity, was
Duties of
metoecs
towards their
prostates,
already an official intermediary (using this word, of
¥
pe
g
course, in a broader sense) between the city and
foreigners. Hence there would be no effective reason,
especially in matters directly touching his province,
to interpose another individual between him and the
metoecs. In some of the Greek States, such as the
great commercial oligarchies like Corinth, there is no
doubt that metoecs were allowed to enforce their private
rights in their own names,* without the intervention of
a προστάτης, and, in many respects, were much in the
same position as the cives sine suffragio at Rome. This
was so because handicrafts were cultivated there, and
foreign artisans were welcomed to stimulate the growth
of industries in general. |
Some writers have assumed that they were obligec
to render certain services to their patron in return for
his assistance and protection ; but as there is no infor=
1Cf. Suidas, 5.7. ἀπροστασίου (Corp. jur. Att, 28): τῶν μετοίκα
ἕκαστος προστάτην ἔχει, κατὰ νόμον ἕνα τῶν ἀστῶν, καὶ δι᾽ αὐτοῦ
τε μετοίκιον τίθεται κατὰ ἔτος καὶ τὰ ἄλλα διοικεῖται.
2 Demotika der Metoeken, loc. cit. pp. 225 seq.
8 Arist. Polit, iii. 1.
ee ee eee eee
RIGHTS WITHHELD FROM THEM 165
mation to this effect in the available authorities, no
definite conclusions on this point can safely be arrived
at. The State maintained these relationships because
it derived many advantages therefrom; and the pro-
states was satisfied to exercise his duties in return for
the honours and privileges granted to him by his own
‘community and that represented. Later, in addition to
or in place of these distinctions certain emoluments were
fixed. Minor services of various kinds were perhaps
rendered to the patron by the metoecs,—but volun-
tarily, rather than under compulsion of any legal
‘provisions. It is not justifiable to assume that this
institution bore any fundamental resemblance to the
mediaeval feudal system.
It will be well now to consider briefly the various Rights and
specific rights and privileges conferred on metoecs, and pancraaly
the obligations imposed on them.
_ As to the rights withheld from metoecs residing in Rights
Athens, they were, in the first place, debarred from Withheld fom
ἐπιγαμία, that is, the right to marry an Athenian citizen.’ No right of
The penalty for violating this provision was the seizure "8°
and sale of the offender’s goods. If the offender was
an Athenian male citizen he had to pay, in addition to
this forfeiture, a fine of a thousand drachmas. Demos-
thenes* thus states the law on this question: “If an
alien shall live as husband with an Athenian woman by
any device or contrivance whatsoever, it shall be lawful
for any of the. Athenians, who are possessed of such
‘Tight, to indict him before the judges. And if he is
convicted, he shall be sold for a slave and his property
shall be confiscated, of which the third part shall be
awarded to the person who has obtained the conviction.
1Demosth, In Neaer. 16: "Hav δὲ ξένος ἀστῇ συνοικῇ τέχνῃ ἢ
᾿Μηχανῇ ἡτινιοῦν" γραφέσθω πρὸς τοὺς θεσμοθέτας ᾿Αθηναίων ὁ
βουλόμενος, οἷς ἔξεστιν. ἐὰν δὲ ἁλῷ πεπράσθω καὶ αὐτὸς καὶ
> ‘al ΄ fal
οὐσία αὐτοῦ, καὶ τὸ τρίτον μέρος ἔστω τοῦ ἑλόντος. [ἔστω δὲ καὶ,
> Ν ε ’ὔ “A lal - “- -
| ἐὰν ἡ ξένη τῷ ἀστῷ συνοικῇ, κατὰ ταὐτά, καὶ ὁ συνοικῶν τῇ ξένῃ
σῇ ἁλούσῃ ὀφειλέτω χιλίας δραχμάς.
x ραχμ
2 In Neaer, 16, as cited in the last note,
Ze
No right to
hold property
in public funds,
land, and
houses,
If exiled, their
property
confiscated.
Could own
slaves, and
emancipate
them.
No right of
pasturage on
the commons.
Could not
bring public
actions.
Excluded from
certain public
offices,
But exceptions Certain exceptions, however, were sometimes made
made,
~~ — οὐ όΣΩ
166 RIGHTS WITHHELD FROM THEM
And the like proceedings shall be taken if an alien
woman live as wife with an Athenian citizen, and the
citizen who lives as husband with an alien woman shall,
on being convicted, incur the penalty of a thousand
drachmas.”
Metoecs were not entitled to hold property in the |
public funds, nor in lands and houses,—éy«ryous γῆς καὶ
οἰκίας. ‘The holding of such property was considered
an element of sovereignty, so that citizens alone could
own immovables,—wyy εἶναι ξένοις γῆς καὶ οἰκίας ἔγκτησιν. 1
To obtain this right a special decree of the people was
necessary. They ° were likewise debarred from all mort-
gage transactions.” |
If they were exiled for any reason their property was
confiscated—rav φευγόντων ai οὐσίαι δημεύονται.ὃ
They were, however, permitted to possess slaves anil
to emancipate them, under the same conditions as
citizens exercised this right.*
They had no right of pasturage on the public landaa
ἐπινομία. . ᾿
They could not bring public actions, γραφαί, except
such as directly concerned their own persons, and not a
third party or the State. ;
They were excluded from certain public functions ;
for example, they were not permitted to serve as public
arbitrators, or umpires, διαιτηταί, nor as ambassadors.
CO i PB ee
favour of metoecs of distinction. such as in the case
1 Corp. jur. Att. 36.—Cf£. Demosth. Pro Phormio, 6, where it is stated
that Phormio, when he became lessee of a certain banking house and
received the deposits, would not be able to get in the money
Pasion had lent on land and lodging-houses.
2 Demosth. Pro Phormio, 6, 8. Corp. jur. Att. 1016,
4It is thus related of one Apollodorus, who was an Athenian
metoec from Samos; cf. Isaeus, De Apollod. hered. and cf. Harpocra=—
tion, s.v. [LoAguapxos.—See also Corp. inscrip. Att. ii. 2. 768, 7725
and 773. |
5 Corp. inscrip. Graec. 1385; A. R. Rangabé, Antiguités hellénique:
ou répertoire d’inscriptions et d’autres antiquites découvertes depuis Vaffran
chissement de la Gréce, 2 vols, (Athénes, 1842-1855), no. 704.
CHARGES IMPOSED ON THEM 167
of the philosopher Xenocrates’ of Chalcedon in 322 B.c.,
and in that of the Theban philosopher Crates.” They
were forbidden to speak at the assemblies of the people,
_—ov xpi ἕένον τῶν ἐκκλησιῶν μετέχειν ἀγορεύοντα :8 and
they were also excluded from competing in the public
“games,—aydy tis evavdpias τοῖς ἸΠαναθηναίοις ἄγεται, οὗ
κοινωνεῖν οὐκ ἔξεστι τοῖς ἕένοις ;4 though not from taking
part in the dramatic performances and competitions,
where sometimes, as in the Lenaean festivals in honour
of Dionysus,° certain more or less onerous charges Special charges
(λειτουργίαι) were imposed on them, e.g. the χορηγία, mPosed oP
the equipping and bringing out of a chorus.
As to taxes, metoecs had to pay through their To pay an
patrons® a fixed annual sum, the μετοίκιον, amounting oe
to twelve drachmas in the case of men, and six in the
case of women,’ when living in independence, that is,
not in the house of their husbands or sons. Some
writers, e.g. Schoemann,® have asserted that an additional
smaller tax of three obols, τριώβολον (1.6. half a drachma),
had to be paid. This assertion appears to be based
merely on certain texts from Menander, cited by
Harpocration. Menander refers to the emancipated
slave who paid the μετοίκιον, and an additional τριώβολον.
And so because the additional half-drachma accompanied
the μετοίκιον in the case of the freedman, it was unwar-
tantably assumed to accompany it in the case of the
‘metoec.® At all events, besides the ordinary charges
of citizens and the distinctive μετοίκιον, they had to pay
a special tax when trading in the market-place, and were
further subject to extraordinary imposts, levied to meet
1Plut. Phoc. 27; Diog. Laert. iv. 2. 8-9. 2Plut. Demetr. 46,
8 Corp. jur. Att. 33. 4 Corp. jur. Att. 440.
®Schol. ad Aristoph. Plus. 953. 6 Cf. note 7, page 163, supra,
"Corp. jur. Att. 871 (Suidas, s.v, μετοίκιον) : Τῶν μετοίκων 6 μὲν
ἀνὴρ δώδεκα δραχμὰς τελεῖ μετοίκιον, ἡ δὲ γυνὴ ἕξ. καὶ τοῦ υἱοῦ
τελοῦντος, ἡ μήτηρ οὐ τελεῖ, μὴ τελοῦντος δὲ αὐτὴ τελεῖ.---ΟΥ Corp.
jur. Att. 27 (Harpocration, s.7. μετοίκιον) : Δέίδονται δὲ ὑπ᾽ αὐτῶν
᾿ καθ᾽ ἕκαστον ἔτος δραχμαὶ δώδεκα ὅπερ ὀνομάζεται μετοίκιον.
8 Gr. Alt. vol. ii. p. 53. 9 Cf. Clerc, op. cit. p. 21.
Compulsory
military
service,
168 MILITARY SERVICE
Te Pe
the exigencies of war or defence,! or to meet the ex- —
penditure incurred in the public feasts,” e.g. the εἰσφορά, a ‘
property-tax ὃ levied on citizens also, but the burden of
the metoecs was greater, and the ἐπίδοσις, an ostensibly
voluntary contribution, sometimes in money, sometimes —
in kind.¢ .
4
All metoecs were liable to compulsory military
service,° and usually played the part of a territorial
army for the defence of the city and its ramparts.
Those who could obtain at their own expense the
necessary equipment were admitted as hoplites; the
others served in the light infantry. Some also con-_
tributed to the recruiting of mercenary archers. Military”
command seems to have been occasionally entrusted to
them,° as military command abroad was allowed by the
Spartans to their περίοικοιΪ As a rule, the metoecs
were debarred from serving in the cavalry, the main
reason for this being that Athenian horsemen had, in~
addition to their military functions, important duties —
in religious feasts, processions, and in athletic games.
There were, however, Athenians, who, like Xenophon, ~
proposed their admission into the cavalry. ‘ While
we give a share to foreigners,” argues Xenophon, “Sof
other privileges which it is proper to share with them, —
we would be likely to render them better disposed
towards us and increase the strength and greatness”
of our country if we gave them admission also into
the cavalry.”* Whilst Athens employed her metoecs ~
1'Thuc, ii. 133 iv. 90. 2 Schoemann, op. cit. vol. ii. p. 53. ὁ
8 See P. Guiraud, L’impét sur le capital a Athénes, in Revue des a
mondes, Paris, Oct. 15, 1888. 3
4 Cf, Gilbert, of. cit. vol. i. p. 345; and C. Lécrivain, ..Ὁ, Epidosis, ~
in Daremberg-Saglio, op. cit. 3
5 See Clerc, op. cit. pp. 46 seq. 6 Thuc. v. 90.
7 Thuc. viii. 22.—On the periveci, see Ae p- 178. :
8 De vectig. | ii. 5: Καὶ μεταδιδόντες δ᾽ ἄν μοι δοκοῦμεν τοῖς μετοίκοις. |
τῶν ἄλλων ὧν καλὸν μεταδιδόναι καὶ τοῦ ἱππικοῦ εὐνουστέρους ἄν
ποιεῖσθαι καὶ ἅμα ἰσχυροτέραν ἂν καὶ μείζω τὴν πόλιν ἀποδεικνύναι.
—Cf. Hipparch, ix. 6.
Qa ee,
? wad
FOREIGNERS AND THEIR RELIGION τόρ
ordinarily as a reserve force in the army, Sparta was
accustomed to place her perioeci ungenerously in the
front rank in war.
_ In the Athenian navy the position of the metoecs was Position in the
more important, as they formed part of the γεραΐαγ
service.’
_ As to religion, foreigners in general enjoyed the free Foreigners and
exercise of their national worship—a favour usually con- Puig τὴ
ceded by special authorization.’ In the fourth century,
B.c., there were numerous foreign religions and asso-
ciations in Athens. Some were allowed to exist on
sufferance, others received formal permission. In the
following century, many oriental religious systems had
obtained a footing in Greece. Metoecs were excluded
from the priesthood (as from the magistracies)—rov ξένον
“Kal μετοίκον οὔτ᾽ ἀρχὰς ἄρχειν οὔθ᾽ é ἱερωσύνην κληροῦσθαι... ἔξω
but certain privileges were extended to them in connec-
‘tion with the city’s religious practices. Subject to
Certain restrictions, they could share in the public and
‘private sacrifices, and were allowed to take part in the
public feasts * and processions of the Bendideia and of
the Panathenaea.” ‘Le météque a le droit d’invoquer
pour lui les dieux de la cité, il ne peut les invoquer au
nom de la cité et pour elle.” ° Probably they were
_—: in some cases to be initiated into the mysteries ;
ence rule, strangers were prohibited therefrom,
| ia ἕνα ξένον wvew,'—but in this phrase the word ξένος
vis perhaps used in reference to non-domiciled aliens, —
᾿ supposition which seems to be supported by many
\texts (of which examples have already been given)
‘containing the word μέτοικος as well as ξένος when it
lis intended that the application should extend also to
z 4 ΤΟΣ Clerc, op. cit. p. 71.
— 2See P, Foucart, Des associations religieuses chez les Grecs.
( (Paris, 1873), and Clerc, op. cit. pp. 118 seq.
®Demosth. c. Eubulid. 48. 4Demosth. Jn Neaer. 85.
_ ®Cf. Schenkl, De metoecis Atticis, loc. cit. pp. 204 seq.
Clerc, op. cit. p. 150. Τ Corp. jur. Att. 34.
Whether
humiliating
functions were
imposed on
metoecs.
S115.
gekleidet in Roth als der gesetzlich bestimmten Livrée, hinter ih en
170 TREATMENT OF METOECS
the former class. In any case, this is submitted merely
as a conjecture, especially so as ἕένος is often used to
include the μέτοικος.
It has been held by several writers that certain
humiliating functions were imposed on metoecs in the
city’s religious feasts and processions. “ Rien ne prétait
davantage,’’ says Sainte-Croix,’ “a de pareils sarcasmes
que les fonctions auxquelles, dans les fétes religieuses,
on avait voue ces éetrangers.”” In the Panathenaic pro-
cessions they acted as σκαφηφόροι " (i.e. carrying for their
patrons certain skiff-shaped sacrificial vessels filled with
cakes), their wives as ὑδριαφόροι (carrying pitchers for
the wives of the citizens), and their daughters as
σκιαδηφόροι (carrying parasols over the heads of t :
Athenian women). About the middle of the thir
century, a.D., Aelianus* described these functions as
servile ; and this opinion has often been adopted in
modern times, as, for example, by Boeckh, who says
these duties were “‘ geringe und ehrenrthrige Dienste,”
by Hermann, who makes use of a similar expression
« die erniedrigenden Gebrauche,”> by A. Mommsen, who
says the metoecs, clad in red livery as required by
law, were also compelled to wait on the Athenian:
at their common meals.* But in spite of these adversé
1 Mémoire sur les météques, loc. cit. p. 182.
2 Harpocration, s.v. σκαφηφόροι ; Pollux, iii. 55.
8 Variae historiae, vi. 1: ᾿Αθηναῖοι δὲ ὕβρισαν καὶ ἐκείνην
ὕβριν... τὰς γοῦν παρθένους τῶν μετοίκων σκιαδηφορεῖν ἐν ταῖς
πομπαῖς ἠνάγκαζον ταῖς ἑαυτῶν κόραις τὰς δὲ γυναῖκας ταῖς γυναιξῷ
τοὺς δὲ ἄνδρας σκαφηφορεῖν. Ε
* A. Boeckh, Die Staatshaushaltung der Athener, 2 Bde. (Berlin, 1886)
vol. i. p. 624. a
5K. F. Hermann, Lehrbuch der griechischen Antiquitaten. Ed. by Hy
Blimner and W. Dittenberger (Freiburg i. B. 1889, etc.), vol. 1
6 Heortologie—Antiquarische Untersuchungen iber die stidtischen Fe st
der Athener (Leipzig, 1864), p. 180: “‘ Die Metéken namlich mussten,
Patronen, den Birgern, Gefasse hertragen, gefiillt mit Kuchen un
JURISDICTION AS TO ALIENS 171
opinions one fails to see that such duties were of
‘so humiliating a character, especially when one remem-
bers the comparatively extensive and important privileges
‘conferred on the domiciled aliens. There is no cogent
evidence to show that they were compelled by law to
perform these functions; probably their services were
‘gratuitously offered to their patrons, in view of the
‘protection they received. Of course, aliens were not,
in any case, considered on the same footing as citizens ;
but that does not mean they were constantly subjected
to humiliation and oppression. The Athenians were
‘glad to have them in their midst, and actually held out
inducements to alien immigrants, who were always
allowed to depart again whenever they pleased. And
this condition of things is by no means consistent with
‘the views expressed above. As to the carrying of the
parasols, Wilamowitz-Méllendorff* argues that they
were carried in honour of Athena, and that Aelianus
‘was mistaken in supposing them to have been for the
‘convenience of the Athenian ladies,—an argument
‘which is not at all devoid of plausibility.
᾿ς Metoecs and other foreigners were under the juris- Foreigners and
diction of a special magistrate, the polemarch, πολέμαρχος, SN
‘who tried only private suits, δίκαι ἰδίαι, and not public
jactions, δίκαι δημοσία. He also heard appeals from the
WBecisions of the arbitrators, διαιτηταί, In a good many
icases, metoecs could appear in person, and address the
‘court. They were liable to give security in private’ as
jwell as in public ὃ actions,—from which liability citizens
wer exempt, excepting a few cases of the δίκαι δημοσίαι.
ἴῃ regard to commercial cases (apart from specific con- Commercial
jventions arranging otherwise) the domiciled aliens were “™
jpractically assimilated to Athenian citizens. Thus, they
‘were subject to the jurisdiction of the vavrodica, judges
{Opferbrot und bald aus Erz bald aus Silber gearbeitet” ; and p. 196:
“ Das souverine Volk sass zu Tisch und liess sich von seinen Beisassen
‘das Brot und den Kuchen reichen.”
1Loc. cit. p.220. *Isocrat. Trapezit, 12. % Lysias, c. Agor. 23.
172 TREATMENT OF METOECS
of the Admiralty Court, the θεσμοθέται, the six junior
archons who heard causes assigned to no special court,
and the εἰσαγωγεῖς, the magistrates who received infor-
Criminal cases. Mations and brought the case into court.* In criminal
matters also they were on the same footing as citizens,
except that in the case of metoecs, no distinction seems
to have been made between involuntary homicide, φόνος.
ἀκούσιος, and wilful, premeditated murder, φόνος ἐκ προ-
voias, and also that the penalty inflicted on them, after
having been found guilty of this crime, was usually more
severe. :
Metoecs under Both in and (what is more remarkable) out of Athens,
Protection. ~~ the metoecs were placed under the official protection of -
the Athenian people.? That the tie established between
the State and the domiciled strangers was by no means
of a precarious nature is clearly shown by the fact that
even when they left Athens temporarily to travel, or
reside abroad, their interests, both in reference to thel Ὲ
persons and their property, were safeguarded by {π6΄
Athenian government.’ | |
Rewards and From time to time they received various reward:
Pose, and privileges. Some of these were of the nature of
distinguished honours, e.g. a formal official eulogy anc
bestowal of a laurel wreath, as in the case of Phidias o
Rhodes, a public physician,‘ decrees in favour of Zeno a}
Citium, the founder of the Stoic philosophy, the right te
appear before the public assembly (πρόσοδος), granted,
for example, to Eucles, a herald,®and to Nicandros ant
Polyzelos, exemption from the polemarch’s lien
and permission to institute public actions, as extended t tC
1Cf. Demosth. Exceptio adv. Pantaenetum, 33: ob i δὲ νόμοι καὶ τού
διδόασι τὰς παραγραφὰς ἀντιλαγχάνειν, περὶ ὧν οὐκ εἰσὶν εἰσαγωγεῖ
2Cf. Clerc, op. cit. Pp. 188 seg.
8 Corp. inscrip. Att.iv.27a; P. Foucart, Mélanges 4 épigraphie ἀγέρα
(Paris, 1878), 5; and cf. W. Dittenberger, Sylloge inscriptionu
Graecarum, 3 is (Leipzig, 1898-1901), 348.
4 Corp. inscrip, Att, ii. add, nov. 256 b.
5 Corp. inscrip. Att. il. 73.
|
¥
Ξ
a
ae
POSITION OF ISOTELES 173
the Acharnians who took refuge in Athens after the
battle of Chaeronea,—didovat δίκας καὶ λαμβάνειν καθάπερ
᾿Αθηναῖοι Amongst the positive privileges conferred
(which never included ἐπιγαμία) were ἰσοτέλεια," equality
with citizens as to taxes and tributes, thus raising the
‘status of metoecs to that of ἰσοτελεῖς, and προξενία,ὃ
raising their status to that of πρόξενοι ; and generally
accompanying these privileges was the right to acquire
property in land and houses,— a right, moreover, which
‘might be made hereditary. Further, metoecs, in some
rare cases (and proxenoi, more often) were exempted from
the public burdens (ἀτέλεια), for example, from the
peroixiov,® or from the Aerovpyia,® or from the εἰσφορά.ἴ
Hence, it would appear that occasionally metoecs were
actually treated, in regard to certain matters, with
greater favour than citizens themselves.®
As to the more privileged class of ἰσοτελεῖς, we find ssoteles—their
‘no information in the classical texts on the exact nature P°*""™
of their position, and there is no agreement on the
subject amongst the old lexicographers. Some of these®
assert that they were foreigners practically made citizens ;
but then they were still subject to the polemarch’s
jurisdiction, which did not concern citizens. Others,”
again, state that they were foreigners admitted to all
rights of citizenship except those of a purely political
nature ; but they were, in fact, not allowed ἐπιγαμία 1
_ lCorp. inscrip. Att. ii. 121, ll, 26 seg.,and cf. the restoration of the
itext suggested by Schubert, De proxenia Attica (1886), p. 55.
-2See infra, pp. 173 seg. 3 See supra, pp. 147 “62.
4 Corp. inscrip. Att. il. 41. 5 Corp. inscrip. Att. ii. 27.
ὁ Demosth. c. Leptin. 18.
7 Ibid. 19 seqg.; and cf. P. Monceaux, Les proxénies grecques (Paris,
1886), p. 99.
8 Cf. Clerc, op. cit. pp. 198, 199.
® E.g. Schol. ad Demosth. c. Leptin. 466. 6 ; Suidas, s.v. ᾿Ισοτελεῖς.
10 F.g. Ammonius, Ptolemaeus, Chemnus, and others.
Ἡ This is also the view of R. Dareste, Plaidoyers civils de Démosthéne
(Paris, 1875), i. p. 311,—though it must be admitted that there are
no definite texts in support of the statement.
Limited
number of
isoteles.
Grant of
ἐσοτέλεια.
174 POSITION OF ISOTELES
(apart from specific decrees, which were very rare indee¢ }
conferring the right of intermarriage). Probably the
truth is that the isoteles were simply metoecs, free from
the special taxation incidental to the latter,—so that they
were assimilated to citizens not on the basis of the
general rights of citizenship, but on the basis of the
financial burdens arising therefrom.! This was a special
honour,? and it was possible, by means of a specific decree,
to make it hereditary.®
The isoteles are placed by Aristotle in an intermediate
position between that of the metoecs and that of the
proxenoi. Thus, discussing the functions of the pole-
march, he says: “The private suits which he gives
permission to bring are those to which the parties are
metoecs, isoteles, or proxenoi.”’ *
The number of isoteles appears to have been very
restricted. Thus out of a number of nearly 2,700
epitaphs found in Attica, only twelve were those of
isoteles.5 Ἶ
The honour and privileges of ἰσοτέλεια were some
times granted to foreigners, other than metoecs, whe
consented to work in the mines,® sometimes also to
proxenoi,’ and probably even to cities and entire peoples,’
1Cf, Hesychius, s.2, Ἰσοτελεῖς : Μέτοικοι ἴσα τοῖς ἀστοῖς τέλη
διδόντες : Harpocration, citing Lysias as to exemption from ne
metoikion, τοῦ μετοικίου ἄφεσις; and Theophrastus as to exemption ΟΠ,
other taxes of metoecs, kal τῶν ἄλλων ὧν ἔπραττον ob μέτοικοι
ἄφεσιν εἶχον.----ϑεε also the decree, 363-2 8.6.) in favour οὗ Astycrates
who, having been expelled from Delphi by the Amphictyons, tool
refuge in Athens,—Corp. inscrip. Ait. li. 54. 4
As shown in funeral inscriptions and in official documents, cf,
Corp. inscrip. Att. 11. 6163 11. 3. 13335 11. 3. 2723-27343 il. 279,
334: ,
8 Thid. ii. 3. 2724. eS
ὁ δίκαι δὲ λαγχάνονται πρὸς αὐτὸν ἴδιαι μὲν αἵ τε τοῖς μετοίκοις
καὶ τοῖς ἰσοτελέσι καὶ τοῖς προξένοις γιγνόμεναι (Athenian Constitution
58); cf. Pollux, viii. gr.
5 Cf. Clerc, op. cit. Ρ. 210. 6 Xenoph. De vectig. iv. 12.
7 Corp. inscrip. Att. ii. 48.
8 Corp. inscrip. Ait. ii. add. 97 c; and cf. Schenkl, op. cit. p. 222. g
ISOTELEIA—HOW CONFERRED 175
—though in the latter case the immunity was only
partial. However, in spite of these privileges the
juridical position of the isoteles, as M. Clerc points out,!
‘was fundamentally the same as that of the metoecs.
“Ni les avantages conférés de plein droit par l’isotélie,
ni ceux qui sy ajoutaient souvent, ne changeaient au
fond la condition légale des isotéles, qui, ἃ vrai dire, ne
cessaient pas d’étre des météques.” Boeckh distin-
guishes them from metoecs in consideration of the fact,
amongst other reasons, that they were not under the
inecessity of having a prostates. ‘Da sie gewiss keinen
[Patron (προστάτης) brauchten, welches ohne Zeugniss
isich vom selbst versteht, so konnten sie unmittelbar
imit dem Volke und den Behédrden verhandeln, ohne
eo desshalb in der Volksversammlung stimmen zu
kénnen.”? No authorities are given for this statement,
‘but probably that was the case.
᾿ς Isoteleia was conferred only by a decree of the people. How it was
In the case of Euxenides of Phaselis, for example, it runs °""*
ito this effect: ‘‘ Whereas Euxenides has shown himself
wwell-disposed towards the Athenian people, that he has
regularly paid all the eisphorai imposed on the metoecs
by the people, that in the late war he voluntarily equipped
i sailors, that recently he gratuitously supplied
ords for the catapults, that he zealously fulfilled all that
"ἢ was ordered by the strategoi and the saxiarchi, and
that in everything he has shown himself the friend of
the Council and of the Athenian people...”
| 1 Op. cit. p. 209.
_ * Die Staatshaushaltung der Athener, vol. i. p. 627.
3 Corp. inscrip. Att. ii. 4133 Rangabé, Antig. hellén. 479. (From
fan inscription of about 200 B.c.)
. ++ ἐ[π]ειδὴ Εὐξ] ενίδης διατελεῖ [e]dvous dv t1Q δήμῳ
τῷ ᾿Αθην[α)]ΐίων καὶ tals τε εἰσφορὰς ἁπ[άσ]ας ὅσας
eb [ἤφισται ὁ δῆμος εἰ ἐ]σενεγκεῖ] ν τοὺς μετοίκους ἜΣ
εἰ ἰσενήνοχεν καὶ ἐν τῷ πολέμ][ ῳ τῷ πρότερον ἐθελοντὴς
[vjavras δώδεκα ἐνεβίβασεν, κα[ὶ νῦν εἰς τοὺς καταπάλτας
ν[ε[ υἱρὰς ἐπέδωκεν καὶ ὅσα ἐπετάϊἰχθη αὐτῷ ὑπὸ τῶν
στρατηγῶν | καὶ τῶν ταξιάρχων ἅπαντα προθύμως
Inferior classes
of Athenian
population.
Cleruchi.
Slaves.
Freedmen.
Relation of
metoecs to
these classes.
ati et cnagpce
176 INFERIOR CLASSES OF POPULATION
From the above considerations it is seen that the
metoecs formed an inferior class of the stable population
of Athens, but with certain distinctly recognized rights
and obligations. The inferior section, as a whole, con-
sisted of men of free origin and those of servile origin.
The former included (in addition to the classes above
mentioned) the κληροῦχοι, the natives of the regions
where the cleruchi were established, and the allies,’ of
whom there were allies proper, ξύμμαχοι, and subject
allies, ὑπήκοοι. Of servile origin were slaves, public
(δημόσιοι) ὃ and private (χῶρις οἰκοῦντες)" and freedmen.®
Cleruchi were, from a legal point of view, still Athenian
citizens, absence from the city depriving them only of
effective citizenship, in its political aspect. ‘
To these different classes the metoecs bore a greate
or lesser resemblance. Thus, like the cleruchi, —
metoecs were members of two communities at once ;
both are often described as ‘being settled in’ (οἰκεῖν,
οἰκοῦντες) Athens, in opposition to living in their own
country ; both could sacrifice to the Athenian divinities,
and take part in the festivals of Parathenaia and Dionysia ;
but the metoecs were not entitled, as the cleruchi were,
to be present at the public meals. Further, the metoecs
resembled the allies in respect of the tribute levied 3
they resembled the slaves, in that certain duties were
ὑπηρέτηκεν, καὶ τὰ ἄ[λ] [λα διατελεῖ ἐμαγλαγονι "
εἰς τὴν βουλὴν καὶ τὸν δῆμο!ν τὸν ᾿Αθηναίων".
and cf. Corp. inscrip. Att. ii. 360, for a similar example in the case o}
Hermaeos. 4
1Plutarch (Flamin. 2) uses the word κληρουχίαι to translate
“‘coloniae civium Romanorum.”—On the cleruchi, see P. Foucart,
Mémoire sur les colonies athéniennes au cinquidme et au quatriéme siécle
(in Mémoires de Pacadémie des inscriptions et belles-lettres, Paris, 1878,
1° Série, t. iv. pp. 360 seg.). |
2Cf P. Guiraud, De Ja condition des alliés pendant la premit e
confederation athénienne (in Ann. fac. des lettres de Bordeaux, t. v. pp.
168 s¢g.).
8 See Εἰ, Caillemer, in Daremberg-Saglio, of. cit. s.v. Demosioi.
4 Cf. Meier and Schoemann, op. cit. p. 751.
5 See Daremberg-Saglio, of. cit. s.v. Apeleutherot.
THEIR RELATION TO THE STATE 177
imposed on them from which citizens were exempt ; and
their position was analogous to that of the freedmen?
(ἀπελεύθερος, emancipated slave, corresponding to the
Latin /dertus) in respect of taxation and the necessity to
have patrons (who, in the case of the freedmen, were
their former masters).”
In reference to the Roman institutions, the metoecs Relation of
resembled the freedmen, the ordo /ibertinorum, rather Roto%ss ἴο te
than the peregrini, or the incolae,—at least, from the Mertin.
int of view of their juridical position. The dbertini
; had not connubium (till Augustus), as the metoecs had
not éxvyauia. The Roman freedmen were not admitted
into the legions, whereas the metoecs were enrolled in
the ranks of the hoplites, though not in the cavalry.
Both were debarred from the ius honorum (the capacity to
hold certain public offices), from priesthood, and, asa rule,
from access to the senate, or βουλή, as the case may be.
__ Differences of opinion have been expressed as to the Relationship of
exact relationship of metoecs to the State. Thus gies‘?
Wilamowitz-Mollendorff holds that they were really
‘clients’ of the State, as distinguished from those of
individuals. * Die Metoeken Clienten sind, aber nicht
\Clienten eines einzelnen Atheners, sondern des Volkes
ider Athener, als Mitbewohner Athens Mitpfleglinge
Athenas, Quasibirger.” ἢ This statement is founded on
‘a passage from Aeschylus,‘ where Pelasgos, King of
Argos, receiving the Danaides, says he will be their
rostates,—
A αὐ σον
oe . προστάτης δ᾽ ἐγὼ,
QaoTot TE TAVTES...
whence the Danaides are considered metoecs by the
‘German writer. But it is extremely doubtful whether
‘the tragedian here uses the word προστάτης in its technical
ssense. It is more probable that it is employed in this
ΤΊ Plato’s Laws, xi. 915 there is a curious provision that freedmen,
ike metoecs, are not to remain in the city more than twenty years.
τὰ A. W. Heffter, Athendische Gerichtsverfassung (Cdln, 1822),
Ξ a cit. p. 246. 4 Suppl. 964.
178 CLASSES OF SPARTAN POPULATION
passage in the sense of protector or champion,! as is
done elsewhere.?
Final definition On the whole the most exact definition of metoecs
of metoecs.
Classes of the
Spartan
population.
Helots.
Perioeci.
is that given by Clerc :* “Les météques étaient des
étrangers, les uns d’origine servile, les autres d’origine
libre, fixés ἃ Athénes, soit pour un temps, soit définitive-
ment, que la cité faisait participer ἃ ses charges, leur
octroyant en retour des droits positifs, et ἃ qui elle
ouvrait méme, dans une certaine mesure, ses cadres ; de
sorte que, sans étre citoyens, ils faisaient partie inté-—
grante de la cité.” 7
As to Sparta we find three different classes constituting
its population,—full citizens, the dependent perioeci,
(περίοικοι), and the serfs or helots (eiAwres). As in the
case of Athenian slaves, helots were sometimes emanci-
pated in recognition of military or other services rendered
to the State; and from them or their children a new
class arose, neodamodes (νεοδαμώδεις, from νέος, new,
recent, δᾶμος, δῆμος, the people ; hence, ‘newly enfran-
chised’), who did not, however, obtain full citizenship.
The sons of Spartans and helot women were designated
μόθακες or μόθωνες, some of whom were endowed
with the entire body of civic rights. The perioeci
(largely analogous to the Athenian metoecs), whose
position to some extent resembled the Teutonic
vassalage, had to perform certain services, to pay
1Cf. Clerc, op. cit. p. 297.
2Cf. Aeschyl. Theb. 408, where he speaks of the ‘defender of the
gateway,
ες ἀντιτάξω προστάτην πυλωμάτων,
and cf. similar usage, ibid. 797 .- 8 --
... καὶ πύλας φερεγγύοις
ἐφραξάμεσθα μονομάχοισι προστάταις.
Similarly, Sophocles uses the word as ‘protector,’ Οδά, Tyr. 3093:
and cf. ᾿Απόλλωνα προστάταν (Trach. 209), in reference to Apollo.
3 Op. cit. p. 297.
4Pollux, iii. 83.—Cf. Thuc. vii. 58; Xenoph. Hellen. iii. 3. 6
V. 2. 24.
SRST Σ Sap ges te
JUNE
~
Στ nl a z
Oe ee ee i ae 2 ee -τὕὦΣἅ =
BRS hak QAO
THE PERIOECI 179
special taxes and dues,! and to serve in the army as
heavy-armed troops. They were not admitted to the
Spartan public assemblies,—in any case, attendance
would have been impracticable owing to their distance
from Sparta. But in the communities to which they
belonged, they probably exercised the rights of citizen-
ship.” They engaged in various arts and crafts, and in
‘commercial and trading pursuits, which the Lycurgan
legislation had forbidden Spartans to follow. Though
politically inferior they were not subjected to oppressive
‘measures. Asin the case of the metoecs, sometimes the
perioeci were entrusted with high functions. It has been
‘calculated that there were in Laconia over 60,000
‘members of this class ; but it would seem, from various
considerations, that the estimate is probably too high.
1Strabo, viii. p. 365; Plato, 4/id. 123 a.
2 Herodot. vii. 234; cf. Strabo, viii. p. 362.
ὃ Plut. Lycurg. 4.
In earlier times
naturalization
difficult.
Modifications
in practice,
CHAPTER VIII
NATURALIZATION IN ATHENS1—CERTAIN IMPOR-
TANT ELEMENTS OF PRIVATE INTERNATIONAL)
LAW IN GREECE
&
OwinG to the close relationships between the religion
of the ancient State and citizenship, and to the exclusiv
ness of such religion, and owing also to the deeply ρος
racial pride (which questions have already been con-
sidered), naturalization was made extremely difficult, and
for a long time was very rarely resorted to. In the
earlier epochs of ancient history, even very lo g 4
domicile of an alien was not regarded as carrying ΟΝ
any legal rights and civic privileges ; they were not eve
thought to have been bestowed oratuitously. Subject :
to the restrictions already indicated, a resident foreign ἢ
on commission of an offence was, according to the
earlier theory of the municipal law, punishable summa ily
and without proper trial; the State did not admit ¢
obligation on its part to mete out strict justice to him Ὁ
nor any right in him to claim it. But there is no doubt
that actual practice very rarely followed the yom in i
such uncompromising theory. Plato’s provision in his
Laws was not merely speculative or visionary, as being”
applicable only to a Utopian polity, but it truly repre 7
1On this subject see especially E. Caillemer, La naturalisation «
Athénes (Paris, 1880); the same writer’s article in Daremberg-Saglii |
op. cit. s.v. Demopoietos—practically a reproduction of the first (to
which writings a portion of the present chapter is much indebted) 5
E. Szanto, Das griechische Birgerrecht (Freiburg i. B. 1892); Cler , 4
op. cit, pp. 221 seg.; A. Philippi, Beitrage zu einer Geschichte de
NATURALIZATION IN ATHENS 181
sented the spirit and conduct of his age.’ “If he [the
citizen] thinks that some stranger has struck him out of
-wantonness or insolence, and ought to be punished, he
“shall take him to the wardens of the city, but let him not
‘strike him...and let the wardens of the city take the
offender and examine him, not forgetting their duty to
the God of strangers.” Later, special legal machinery
was established in Greece, as in Rome, to deal with
differences arising out of transactions of aliens. In pro- Gradual
cess of time various relaxations were further introduced ; ™***4™
economic and political interests gradually prevailed over
religious feelings, ethnic considerations, and traditional
observances. And certain formalities came to be devised
and conditions laid down, the fulfilment of which placed
the alien dwellers practically on the same footing with
‘citizens. But, as Aristotle argued,? neither residence
alone nor the possession of legal rights along with it
could suffice to constitute citizenship.
Athens was the most cosmopolitan city of Greece, and Athens—a
‘granted naturalization the most freely. On the other a aa
| Bend, Sparta was one of the most exclusive States, and Spartan
‘conceded it very rarely. It is stated by Herodotus " that “¥"*
till his time Tisamenus and Hegias were the only indi-
viduals who received Lacedaemonian citizenship ; but
“probably Herodotus here refers only to foreigners in the
‘Strict sense, for helots were often admitted to citizenship,
thus becoming ‘ new citizens’ (νεοδαμώδεις). Even then
admission was not so rare. Herodotus himself says®
Gttischen Birgerrechts (Berlin, 1870); H. Buermann, Animadversiones de
Hitulis Atticis, quibus civitas alicui confertur vel redintegratur (Leipzig,
1879).
lix. 8790: ξένον δὲ ἂν doeAyaivovta καὶ θρασυνόμενον ἑαυτὸν
, w lal ων \ \ > ~ “A
τύπτοντα οἴηται δεῖν κολασθῆναι, λαβὼν πρὸς τὴν ἀρχὴν τῶν
ἀστυνόμων ἀπαγέτω, τοῦ τύπτειν δὲ εἰργέσθω... οἱ δ᾽ ἀστυνόμοι
παραλαβόντες τε καὶ ἀνακρίναντες, τὸν ξενικὸν αὖ θεὸν εὐλαβού-
μένοι. eer
2 Polit. iii, 1. 3.
Six. 35 (as to Tisamenus the Elean and his brother): Μοῦνοι δὲ
a , 2 ΄ς-
δὴ πάντων ἀνθρώπων ἐγένοντο οὗτοι Σπαρτιήτησι πολιῆται.
: “Thuc. vii. 58. δὲν, 145.
Naturalization
in Megara rare.
Sometimes
twofold
citizenship
allowed.
182 DOUBLE CITIZENSHIP
that the Minyae of Orchomenus were received as —
citizens, —but were perhaps admitted among the perioeci. ~
With such admission may be compared the reception of —
the Sabine refugees by the Roman people.! Tyrtaeus, as _ |
reported by Plutarch, was awarded Spartan citizenship. —
Foreign slaves, too, brought up as foster-children’
(τρόφιμοι) in the house of a Spartan seem sometimes to —
have attained the citizen rank.? And according to”
Aristotle there is a tradition that the ancient kings of —
Sparta were in the habit of giving to strangers the rights —
of citizenship.? 4
The Megarians boasted that they extended this privi-
lege only to the gods. When they offered citizenship ©
to Alexander, they did so, as they alleged, on the
grounds that he was a god,—having been thus saluted —
by the oracle of Ammon ; and they pointed out to him —
that they had granted citizenship to no foreigner except
Hercules.* The same claim is referred by Seneca to —
the Corinthians.° 3
The principle is firmly established to-day that no”
individual can owe allegiance to more than one sovereign ©
power at the same time, that he cannot be a citizen of —
more than one State at one and the same moment.
This rule was also laid down in Roman law. But the
Greeks, if we judge from their practice, frequently
allowed the contrary. Cicero mentions with surprise
that the Republics of Greece very often granted citizen=
ship to individuals, who also remained citizens of their
own respective countries ; so that it became possible for
people to become citizens of many States,—“ multarum
1 Liv. ii. τό. igen ae Hellen. ν. 3. 9.
δ Polit. il. 9. 17: i Sel δ᾽ ὡς ἐπὶ μὲν τῶν προτέρων βασιλέων
μετεδίδοσαν τῆς πολιτείας...
4Plut. De unius in fe ΤΗΣ 2.
5 De benef. i. “Alexandro Macedoni, cum victor orientis
animos supra Seal tolleret, Corinthii per legatos gratulati sunt et
civitate illum sua donaverunt. Cum risisset Alexander hoc officii bd
genus, unus ex legatis, nulli, inquit, civitatem umquam dedimus alii
quam tibi et Herculi.” a
ie
CONDITIONS OF NATURALIZATION 182
᾽
Cives civitatum.” According to the legislation of Solon,
_however,—as is pointed out by Plutarch,—no foreign
individuals were permitted to become full citizens in
Athens, unless they had either been exiled for life from
their native cities, or had removed voluntarily to Athens
along with their entire families with a view to practising
there their trades and professions,—zapéye δ᾽ ἀπορίαν καὶ
ὁ τῶν δημοποιήτων νόμος, ὅτι γενέσθαι πολίταις οὐ δίδωσι πλὴν
τοῖς φεῦγουσιν ἀειφυγία τὴν ἑαυτῶν ἣ πανεστίοις ᾿Αθήναζε
μετοικιζομένοις ἐπὶ τέχνῃ. Plutarch adds that the object
of this policy was not so much to deny citizenship to
other classes of people, as to assure those mentioned of
ἃ safe refuge in Athens, since it was thought they would
become good and faithful citizens on the ground that
the former had been banished from their own country,
and the latter had deliberately abandoned it to find a
new abode.? These conditions, however, were not
always strictly observed.
_ There are several cases where Athenian citizenship Refusal of
was offered to distinguished persons, who refused it. aver τα
Thus Atticus, who removed to Athens in 85 B.c. and
lived there a long time, was very fond of the Athenians,
but did not accept the proffered honour.’ In earlier
times the Stoic philosopher Zeno of Citium in Cyprus,
and Cleanthes of Assos in Troas, to mention no
others, refused Athenian citizenship, as they thought
that acceptance would imply injustice and ingratitude
to their native countries ; * on the other hand, Chrysippus
| a Soli in Cilicia accepted it,> though he made no use
οὗ it.
__ As to the conditions of naturalization, and the reasons Conditions of
for which citizenship was bestowed on aliens (though it "to
must be remembered that very often the main reason
1 Solon, 24. 2 Tbid.
8 Corn. Nep. A/ticus, iii. 1: “ Quo factum est ut huic omnes honores
oi possent publice haberent civemque facere studerent ; quo bene-
cio ille uti noluit.”
*Plut. De Stoic. repug. iv. 1-2. δ Ibid. il. 1.
Bestowed for
good offices or
services.
184. CONDITIONS OF NATURALIZATION
from the point of view of the State was scantiness of
population, ὀλιγανθρωπία, or ὀλιγανδρία), the decrees - Ἷ
usually speak of the grantee’ 8 good officestowards Athens
(ἀνδραγαθία, ‘ manly virtue,’ εὔνοια, good-will), his bene-
volence, his devotion and generosity toher;! andinsome
cases actually specify certain particular services rendered,
especially in time of need. Thus, Demosthenes relates. |
that the honour was conferred on Peridiccas of Macedon
for consummating: the defeat of the Persians after the —
battle of Plataea,” on Meno of Pharsalus for giving ~
twelve talents and other assistance to make war against ~
Eion.2 Elsewhere,t however, Demosthenes says that —
neither of them received full citizenship, πολιτεία, but
only immunity from the various charges (ἀτέλεια) im=
posed on non-citizens. Again, Andoleon, King of the ~
Peonians, was admitted in recognition é€ his having a
supplied wheat to the Athenians at a time of crisis,®
286 B.c., and Evenor, for his medical services to the
citizens of Athens. In the case of the latter the decree
runs somewhat as follows:* ‘‘Whereas Evenor the
physician has in the past manifested a benevolent dis-
position towards the city and people, and has made —
himself useful by his art and cured several of the ©
citizens and aliens, who inhabited the city... (com=
mendation and crowning with a green branch) ... Jee
him and his descendants be Athenians, and let him be ~
1Cf. Demosth. ¢. Neaer. 89 (before cited). |
2¢, Aristocr. 200. 8 bid. 199. * De rep. ord. 23. τ
5 Corp. inscrip. Att, il. no. 312, p. 136. |
6 Corp. inscrip. Att. ii. no. 187, p. 87; cf. Rangabé, op. cit. ii
Ρ. 35, no. 378: Ἷ
εν. ἐπειδὴ Εὐήνωρ ὁ ἰατρός πρότερόν τε le
dvous μὲν ἣν τῇ πόλει καὶ τῷ δήμῳ καὶ χ-
ρήσιμον ἑαυτὸν πα ρέσχηκεν κατὰ τὴν τέχ v-
nV, πολλοὺς δὲ ἰᾶτο] τῶν πολιτῶν καὶ τῶν ἄλ[λ-
ων τῶν ἐνοικούντω]ν τῇ πόλει. = |
. εἶναι δὲ αὐτὸν ᾿Αθ ηναῖων καὶ Σ ἐκγό:
νους, καὶ ἐξεῖναι αὐτῷ] γράψασθαι φυλ- 4
ἧς, δήμου καὶ φρατρίας ἧς ἄν] βούληται ὁ [ἰατ- ἢ
ρός. a
ABUSES OF NATURALIZATION 185
‘permitted to be inscribed in the tribe, deme, and phratry
that he may choose.”’
_ Occasionally, the honour was also conferred for certain
distinctions, or for certain acts of a different nature from
‘those mentioned. Thus Anacharsis, a Scythian prince,
is said to have been made an Athenian in the time of
Solon, and was admitted to the mysteries,! in spite of
his being a ‘ barbarian, —ra τελευταῖα καὶ ἐμνήθη μόνος
βαρβάρων ᾿Ανάχαρσις, δημοποίητος γενόμενος. ... And
Pyrrho, a disciple of Plato, and the founder of the
sceptical school of philosophy, was likewise proclaimed
a citizen for having slain Cotus, tyrant of Thrace,—
᾿Αθηναῖοι δὲ καὶ πολιτείᾳ αὐτὸν ἐτίμησαν Kaba φησι Διοκλῆς,
ἐπὶ τῷ Κότυν τὸν Θρᾶκα διαχρήσασθαι.Σ A very interesting
example is the decree of B.c. 369-368, conferring certain
honours on Dionysius I. of Syracuse, who had been the
ally of Sparta. It states that the Athenians publicly
‘praise him for his zeal in maintaining the provisions of
the peace of Antalcidas, and grant him and his sons the
rights of. citizenship, on account of their good disposi-
tion towards Athens:
[ἐπαι-
oe μὲν Διονύσιον τὸ[ν] Σικελ[ίας ἄρχ-
οντἧα κ[α]ὲ τοὺς ὑεῖς τοὺς [Δι]ονυ[σίου...
πὴ > : Ν ” :
. ὅτι εἰ[σὶν ἄνδρ-
ες] ἀγαθοὶ [rept τὸν δῆμον τὸν ᾿Α[θηναίων.8
: Many other similar instances can be found.
_ From time to time there were serious abuses in the Abuses in _
_ bestowal of these privileges. About the middle of the "7%"
fourth century Demosthenes, in one of his orations,
_ exclaimed that the gift of citizenship had been deprived
_ of its ancient value, and had been dragged down to the
mud,... δωρεὰ προπεπηλάκισται καὶ φαύλη γέγονεν... .
1 Lucian, Scytha, 8. 2 Diog. Laert. ix. 65.
8See Hicks, Gr. Iuscrip. no. 108.
*For additional examples, see H. M. de Bruyn de Neve Moll, De
\ peregrinorum apud Athenienses conditione (Dordraci, 1839), pp. 29 “64.
“ὅς Aristocr. 201.
Athenian
practice under
Roman empire.
186 ABUSES OF NATURALIZATION
At about the same period Isocrates complained of the
great prodigality in giving to aliens the title of Athenian.!
But the allegations of the Athenian orators as to the
extravagance in the practice of naturalization during the
fourth century are, no doubt, rhetorically exaggerated ;
it really commenced after the time of Alexander. In
some instances citizenship was given, at the time of
Greek decadence, to many strangers, of whose good
disposition the Athenians had no assurance ;* in other
instances, for trifling reasons, as in the case of Aristonicuss
of Carystus,! because he was a skilful ball-player. It
was given to Chairephilos, a famous salt-fish merchant, —
and to his three sons, Pheidon, Pamphilos, and Pheidip-—
pos.* The comic poets taunted the Athenians that they
had shown such great generosity on account of their
love of salt-fish,> but very probably it was owing to the
fact that Chairephilos had supplied the Athenians with”
provisions at a time of scarcity, 326-5 B.c.° ᾿
Later, under the Roman empire, the Atheniafia
practice appears to have sometimes degenerated into
a traffic. Thus, a Greek historian, writing in the latter
part of the second century, A.D., says that Augustus”
prohibited the Athenians from selling their citizens ἢ
. ἀπηγόρευσε σφισι μηδένα πολίτην ἀργυρίου ποιεῖσθαι: 7 q
and Tacitus, about a century before this, stated that
when Piso entered Athens he delivered a public speech, —
declaiming against the inhabitants, saying that there
were no more Athenians, that the descendants of heroes
had been replaced by a vile, heterogeneous mass, the
scum of various nations, ““. . . conluviem illam nationum
comitate nimia coluisset.” 8
1 De pace, 50. 2 Demosth. ¢. Aristocr. 200 “64.
8 Athenaeus, Deipnosophistae, i. 34.: ὅτι ᾿Αριστόνικον τὸν Καρύστιον,
τὸν ᾿Αλεξάνδρου σφαιριστήν, ᾿Αθηναῖοι πολίτην ἐποιήσαντο διὰ τὴν
τέχνην καὶ ἀνδριάντα ἀνέστησαν. |
* Dinarchus, i. 43 ; cf Hyperides, frag. 222 in Oat. Aft. il. 427. —
5 Fragm. com. Graec. ill. 385, 413, 482. "ἢ
6 See A. Schaefer, Demosthenes und seine Zeit, 3 Bde. (Leipzig, 1885-7 ᾽ Ξ
vol, iii. p. 296, note 4. ᾿:
7 Dion Cassius, liv. 7. 8 Tacit. Ann. il. 55.
ie 0) ae Ἰὼ. κὰν eal
a ae if vee κι χ σ' τ ἣ
τ ἡδδρνολτο ρν ‘rinpidlincapamainnrwtuntndiuteh -
NATURALIZATION EN MASSE 187
There were also cases of naturalizing entire bodies of Naturalization
individuals. ‘Thus, in the Peloponnesian war, after the “ ”“"*
destruction of Plataea, the Athenians offered its inhabi-
tants citizenship, on the conditions that they accepted it
αἴ once, that they verified their nationality before a
tribunal, and that they testified to their good disposition
towards Athens.1. Many Plataeans availed themselves
of the offer and settled at Scione in the peninsula of
Pallene.2 In the last years of the war a number of
metoecs in Athens received citizenship; and on the
expulsion of the Tyrants by Thrasybulus in 403 B.c.,
following on the conclusion of the war, Cleisthenes
enrolled amongst the Athenian tribes many metoecs and
other foreigners,—but, as Aristotle points out, this was
really a revolutionary measure. After the battle of
_Chaeronea, 338 B.c., when the independence of Greece
was extinguished by Philip and Alexander, a number of
_metoecs were naturalized. Again, it is reported .that in
406 B.c., after the battle of Arginusae, even the slaves
who had served in the fleet were emancipated and
awarded citizenship.* Andocides asking the Athenians
to confirm the decree, voted on the proposition of
_Menippus, which granted him a pardon, said: “1 see
you often give citizenship and considerable sums of
money to slaves, and to foreigners of all kinds, when it
~ 1Demosth. c. Neaer. 89 seg., 104 seg.; cf. Isocrat. Panathenaicus,
94; and Plataicus, 52.
2'Thuc. v. 32 ; Isocrat. Panegyr. 109.
- Aristotle, discussing the essential meaning of citizenship, and
_ coming to the question whether a citizen de facto is also a citizen de
| dure, says it is difficult to settle it in the case of those who have been
- made citizens after a revolution,—aAJ’ ἴσως ἐκεῖνο μᾶλλον ἔχει
ἀπορίαν, ὅσοι μετέσχον μεταβολῆς γενομένης πολιτείας, οἷον
᾿Αθήνησιν ἐποίησε Κλεισθένης μετὰ τὴν τῶν τυράννων ἐκβολήν.
πολλοὺς γὰρ ἐφυλέκτευσε ξένους καὶ δούλους μετοίκους (Polit. iii.
ΠΝ, 2).
᾿ς *Hellanicus, quoted in Schol. ad Aristoph. Ran. 706. It is here
_ Stated that the slaves became Plataeans ; the real fact, however, is they
_ were granted land in the territory of Scione, which had been handed ‘
- ver to the Plataeans.
Necessary
proceedings in
naturalization.
Resolution by
the people.
188 FORMAL PROCEDURE
is shown they have done you a service. And you are
wise in giving these rewards.” ὦ
iN a tl ΣΤ
Now as to the formalities that were necessary in
naturalization. First there was a preliminary vote of —
the people. If favourable, it was necessary to obtain a —
subsequent confirmation by at least six thousand vote 3
given by ballot, in order to render it valid (κύριος),---
ἔπειτ᾽ ἐπειδὰν πεισθῇ ὁ δῆμος καὶ δῷ τὴν δωρεάν. οὐκ ἐᾷ
κυρίαν γενέσθαι τὴν ποίησιν, ἐὰν μὴ τῇ n ψήφῳ εἰς τὴν ἐπιοῦσαν —
ἐκκλησίαν ὑπὲρ ἑξακισχίλιοι ᾿Αθηναίων ψηφίσωνται κρύβδην
ψηφιζόμενοι... .2Σ Even after this proceeding the ~
naturalized subject was liable to be deprived of his —
newly acquired right by the indictment γραφὴ
παρανόμων directed against the mover of the decree,
for bringing about the proposition of an unconsti-~
tutional measure. Thus the βουλή, a tribunal of ἔνε
hundred members (later, six hundred) was empowered —
to reconsider a decree of the assembly after a twofold —
inquiry, and six thousand secret votes. Demosthenes —
says it would be tedious to enumerate all the case
of taking away citizenship after granting it on account ~
of certain illegality or unworthiness ; and amongst thell
later instances he mentions those of Pitholas the ©
Thessalian and Apollonides the Olynthian, who were”
deprived of their citizenship by a Court of Justice after it
had been granted to them by the assembly of the people.®
This account of Demosthenes, contained in a speech
dated about the middle of the fourth century, is borne ]
out by extant official texts of decrees.
In the first place the people resolved as to whether |
there was a just cause for granting naturalization :
εἶναι δ᾽ αὐτὸν καὶ ᾿Αθηναῖον καὶ ἐκγόνους καὶ γράψασθαι.
φυλῆς καὶ δήμου καὶ φρατρίας ἧς βούλεται. ὅ ἱ
1 De reditu suo, 23: ὁρῶ δὲ ὑμᾶς πολλάκις καὶ δούλοις ἀνθρώτ
καὶ ξένοις. παντοδαποῖς πολιτείαν διδόντας τε καὶ εἰς χρήματα μεγάλε
δωρεάς, οἵ ἂν ὑμᾶς φαίνωνται ποιοῦντες τι ἀγαθόν. καὶ ταῦ
μέντοι ὀρθῶς ὑμεῖς φρονοῦντες δίδοτε.
2 Demosth. c. Neaer. 90. 8 [bid. οι.
4Cf. Buermann, op. cit. (passim). 5 Corp. inscrip. Att. ii. 300.
VE Tha Yea pt
SMT E ΔΤ Nee Bae
SPAS)
a oe
ΠΕΣ πετοῦν
FORMAL PROCEDURE 189
After this the formal proposition is put to the vote :
τοὺς δὲ πρυτάνεις τοὺς τὴν εἰσιοῦσαν πρυτανείαν
πρυτανεύοντας δοῦναι περὶ αὐτοῦ τὴν ψῆφον
τῷ δήμῳ εἰς τὴν πρώτην ἐκκλησίαν.1}
About 320 B.c., if we may judge from the testimony Judicial _
of inscriptions, judicial examination was customary. At 'Y*8ation.
the time of Demosthenes’ speech just referred to (c.
Neaeram), viz. 340 B.C. approximately, the action γραφὴ
παρανόμων, instituted by any citizen who found cause
for objection, was more usual. So that we find that
the intervention of the tribunals, at the instance of the
_ thesmothetae, soon became a compulsory part of the
rns enol ae nls
procedure :
> ~ Ν ‘ ’ Ν 4 ᾽ Ν
εὐ ν εἰσαγαγεῖν δὲ τὴν δοκιμασίαν τοὺς θεσμοθέτας εἰς τὸ
πρῶτον δικαστήριον κατὰ τοὺς νόμους.3
This became a general rule by the beginning of the
third century, and a fixed rule about the year 287 B.c.
At about 250 B.c., the second vote in the assembly
appears to have been discontinued, but the judicial
examination (δοκιμασία) was still in force. Hence, the
usual formula for naturalization at the middle of the
third century is to this effect :
δεδόσθαι δὲ αὐτῷ.... πολιτείαν... κατὰ τὸν νόμον, τοὺς δὲ
, cd al / > φ Ν
θεσμοθέτας ὅταν... πληρῶσιν δικαστήριον εἰς ἕνα καὶ πεντα-
κοσίους δικαστάς, εἰσαγαγεῖν αὐτῷ τὴν δοκιμασίαν... καὶ εἶναι
αὐτῷ δοκιμασθέντι γράψασθαι φυλῆς καὶ δήμου καὶ φρατρίας
ἧς ἂν βούληται.8
A century later we find that a new condition was Special _
: eee . application by
required, namely, an express application by the candidate the candidate.
for the favour. The decrees speak of granting citizen-
_ ship to the petitioner in pursuance of the law:
8 Sh 6 Se 3A \ λ , ΣΝ , 3 ΄ 4
E000 UAL O€ αὐυτῳ KGL πολιτείαν κατὰ TOV νομον αὐτησαμενῳ.
_ It may be pointed out that the last words of this phrase
᾿ are a conjectural restoration effected by analogy with the
1Cf. Corp. inscrip. Att. ii. 309. 2Cf. ibid.
SCf. Corp. inscrip. Att. ii. 395.
4 Corp. inscrip. Att. ii. no. 455, p. 234.
Deposit of
official decrees.
Effects of
naturalization.
Hereditary
effect.
190 EFFECTS OF NATURALIZATION
tenour of inscriptions relative to the granting, on Ἵ
petition being duly made, of the rights of proxenia, and :
of acquiring property in land and houses in the city:
δεδόσθαι δὲ αὐτῷ καὶ mpogeviav Kat γῆς καὶ οἰκίας ἔγκτησιν
αἰτησαμένῳ κατὰ τὸν νόμον, }--- -
ORE EAE ce ter
from which it is not unreasonably inferred that a similar —
condition was required in the case of the greater —
privileges of citizenship.’ 4
The official texts of all such decrees were placed in ©
the metroon (Μητρῷον), the temple of Cybele, which —
was near the council-chamber (βουλευτήριον), and served —
as a depository for the Athenian State-archives. |
The individual thus naturalized (δημοποίητος)" was —
entitled to inscribe himself in whatever tribe, deme, and —
phratry he might choose;—ypavpacOa φυλῆς καὶ δήμου
καὶ φρατρίας ἧς av βούληται came to be the stereotyped —
formula in this respect. But there were probably certain ©
restrictions as to the extent of choice permitted.* There —
are various inscriptions of the fifth, fourth, and third —
centuries which show conclusively that the naturalized ©
citizens were admitted into a phyle, deme, and phratry —
by virtue of the decree which bestowed the franchise on —
them.® ;
For a long time the privileges conferred by naturali- Ἵ
zation were not confined to the person of the δημοποίητοῦα Ἢ
1 Corp. inscrip. Att. ii. no. 423, p. 206; cf. no. 438, p. 214.
2 Cf, Buermann, of. cit. p. 348.
With regard to the Athenian citizen population, a distinction was”
often specifically drawn between the naturalized citizens, δημοκοίη Ως
ποιητοί (Arist. Polit. ii. 1. 3), or δωρεᾷ πολῖται (by gift), and τῆς
natural-born citizens, φύσει or γένει toAitat.—Cf. Demosth. ς. Steph. Ὁ
78. 4
* As to the political status of the new citizens, especially with rega ; 4
to their relation to the phratries, see the various theories stated by —
Philippi, op. cit. pp. 107 seg. 4
5Cf. Corp. inscrip. Att. i. 59 (410-9 B.c.)5 il. 54 (363-2 _
ii. 121 (338-7 B.c.); ii. 300 (295 B.c.).—Apart from epigraphic”
evidence, see Buermann, in Jahrbuch fir classische Philolgie, 9th suppl. _
PP- 597 “4:
Lost TS a Wane
EFFECTS OF NATURALIZATION 1gI
but were ipso facto extended to his children and direct
descendants. Till the middle of the third century B.c.,
the decree, in this connection, was usually couched to
this effect:
εἶναι δ᾽ αὐτὸν καὶ ᾿Αθηναῖον καὶ τοὺς ἐκγόνους αὐτοῦ,
thus making no mention of the wife of the naturalized
_ subject.?
| hildren born before the act of naturalization became Children
‘citizens along with their father, irrespective of their pottraliztion.
mother remaining alien or not.?
If born after naturalization and by an Athenian If bom after
mother they were certainly citizens by the common "tom
law; but if born after naturalization and by an alien
mother, then, according to some documents, they
remained aliens; but it appears, according to others,
that they could be easily made citizens by a decree
obtainable on a merely formal proceeding.
From the point of view of political rights, there was Political status
scarcely any difference between a natural-born Athenian se κωλύσειν
and a naturalized Athenian. The main difference was
that the naturalized citizen was debarred from the
_archonship and from priesthood. In the fourth cen-
tury B.c., this incapacity was only personal, and did
not descend to the children born of an Athenian mother
in legitimate marriage;* but in the previous century,
this exemption applied equally to the children.’
_ With regard to civil rights, the naturalized citizen Civil rights.
enjoyed full juridical capacity. It has been held, how-
ever, that he had not full marital authority («ipcos),—
an inference which appears to have been drawn from
the case of Pasion who married Archippe. But in
this case the conclusion, if intended to possess general
applicability, is untenable, as Caillemer points out,®
Seeing that Pasion was debarred from marital authority,
not by virtue of his being only a δημοποίητος, but
1Cf, Demosth. ¢. Steph. ii. 13. 2 Demosth. Pro Phorm, 32.
8 Demosth, ¢. Neaer. 92, 104, 106. 4 Tbid.
5 Pollux, viii. 85, 86. 6 Op. cit. pp. 36 seg.
Elements of
private
international
law.
Citizenship and
domicile.
Jurisdiction as
to aliens in
antiquity.
192 JURISDICTION AS TO ALIENS
simply because she was an heiress, ἐπίκληρος ;\—in which
case the law specially provided that her estate should
pass into the hands of their son, who would himself”
become her legal protector (κύριος). ἶ
It will have already appeared from various considera-—
tions in the foregoing chapters that certain rudiments ©
of private international law were recognized in Greece.
Fuller development was impossible, on account of the ν
very conditions of private and public life in antiquity, the —
conception of exclusive citizenship, the imperfect notion
of comity and of balance of power, the comparatively
small international intercourse, coupled with national in-_
stability, and, subsequently, absorption of the conquered —
races by the ‘barbarous’ conquerors, and the consequent —
severance of the continuity of organic development.
Owing to some or other of these conditions and
causes, the retention of citizenship was conceived to
be dependent on the citizen’s continuance of domicile
within the territory of the State; but, of course,
temporary absence did not necessarily entail such dis-—
ualification. Allegiance at a distance was considered —
inadmissible. The nationality of origin depended on ~
the principle of ius sanguinis, and ius sanguinis was the
veritable basis of citizenship. In order to belong to ἃ
political group in Greece it was indispensable to belong .
to a family group. As the extension of the family was
the tribe, so the expansion of the tribe was the State.
Hence transitory aliens and even, for the most part,
such as were permanently resident within the territory,
were not regarded (apart from special concessions) as”
being amenable to the ordinarily established national”
juridical organizations; so that a special jurisdiction
had perforce to be introduced in the interests of justice
and State policy.
There are distinct traces of such provisions amon
the most ancient peoples, In the case of the Hebrews,
OST
1On Epiclerus, see Smith’s Dictionary of Greek and Roman Antiqutti
(London, 1890), vol. i. p. 746.
Uae ahd Soe ES 8
MAGISTRATES FOR FOREIGNERS 193
for example, we find certain applications of the Mosaic
law extended to incoming strangers... The Egyptians
often allowed foreign merchants to avail themselves of
local judges of their choice and even of their own
nationality in order to regulate questions and settle
differences arising out of mercantile transactions, in
accordance with their own foreign laws and customs ;
—the Greeks especially enjoyed these privileges on
Egyptian territory.” The Ptolemies had established
the office of ἕενικοὶ ἀγορανόμοι, foreign ‘secretaries of
the market.’* And analogous institutions are found
‘amongst many other nations of antiquity. This
‘special jurisdiction for foreigners received its most
‘systematic development in Greece and Rome; and the
results were so beneficial that, in the opinion of some
recent writers, even modern legislators could in many
‘respects derive useful lessons therefrom,—“...c’est la
que les législateurs modernes pourraient, sur plus d’un
point, chercher d’utiles legons.” °
᾿ς InGreece special magistrates, ἕξενοδίκαι (a general term, In Greece,
ifor which special names were substituted in different “”°”*”*
localities), were instituted for trying questions in which
\foreigners were involved. Sometimes such magistrates
‘were appointed on the initiative of the particular
national government in question, sometimes provisions
iwere arranged to that effect by means of special con-
ventions between States. In some cases these judges
texercised full judicial power in pronouncing decisions
jas to the matters in dispute, in others they appear to
| 1Cf, J. Selden, De synedriis et praefecturis veterum Ebraeorum libri
iduo (London, 1653), esp. vol. ii. pp. 79, 81.
0 ἢ Pardessus, op. cit, i. 52. —See Herodot. ii. 178.
8See G. Lumbroso, Recherches sur économie politique de 1’ Egypte sous
Lagides (Turin, 1870), p. 248.
_ *See Rodiére, Du préteur pérégrin et de P existence plus ou moins latente
‘@une institution analogue ἃ la sienne chez tous les peuples (in Recueil de
Vacadémie de législation de Toulouse, 1868, t. xviii. pp. 339-351).
5A. Weiss, Traité théorique et pratique de droit international privé,
%5 vols, (Paris, 1892-1905), vol. v. p. 3.
τ Ν
194 MAGISTRATES FOR FOREIGNERS
have merely investigated the points at issue, and sub-
mitted their results to the ordinary magistrates, who
were to deliver the final verdict. Thus we find, on the
testimony of epigraphic documents, ξενοδίκαι at Ephesus,
at Stiria? in Attica, at Mylasa? in Caria, at Medeon,4
Treaty between aNd also in pursuance of the convention between
Crabeia and the two Locrian towns of Oeantheia and Chalaeum.®
The latter convention was entered into in the fifth
century B.c. for the purpose of regulating the practice
of reprisals and for settling claims arising therefrom.
It provided that if the Oeantheian plaintiff was a metoec
in Chalaeum, the action was to be tried by the ordinary
tribunals of Chalaeum consisting of citizens chosen by
lot, and that he was entitled to plead through his
proxenus. But if he was not a metoec there his suit
was to be brought before the specially appoint
Eevodixac at Chalaeum, and he was empowered to choose
from among the leading residents of the town a jury of
nine or fifteen citizens according to the importance of
the case. Should the action, however, be brought by a
citizen of Chalaeum in the interests of public order, the
tribunal was then to be composed of an odd number of
jurors, nominated by the demiurgi (δημιουργοί), the
principal magistrates of the town, and the matter in
litigation was to be decided by the majority.® ‘
1 Dittenberger, Sy/oge inscriptionum ... 344.
2 Ibid. 294. 3 Bull. de corr. hellén. vol. v. p. 102, 1. 4. ᾿
4 [bid vol. v. p. 46,1. 38. ΟἿ
5C. Michel, Recueil d’inscriptions grecques (Paris, 1900), no. 3:
Hicks, op. cit. 44.—And cf. infra, chap. xvii. .
6 This treaty is inscribed on both sides of a bronze tablet, which was
found at Galaxidi (Oeantheia), and is now in the British Museum,
On account of its special interest, the text (taken from Hicks, no. 44)
is given in full:
Odbverse. ΕΙ
: Τὸν gévov μὴ ἴαγειν : ἐ᾽ τᾶς Χαλεΐδος : τὸν Οἰανθέα μ- a
nde τὸν Χαλειέα : € τᾶς Οἰανθίδος,: μηδὲ χρήματα ai ty’ ov
ou: τὸν δὲ συλῶντα ἀνάτω᾽ συλῆν" τὰ ξενικὰ €’ θαλάσας “aye:
” . \ 3) A . “Ἂ \ λ . » ᾽ LOL > AG in ἡ |
ἄσυλον, : πλὰν ἔ᾽ λιμένος : TO κατὰ πόλιν : ai κ᾽ ἀδίκω᾽ συλῶι, τε.
΄," 3 \ , ae, AS cal ” “ t - &
topes δραχμαί": αἱ δὲ πλέον δέκ᾽ ἁμαρᾶν ἔχοι τὸ σῦλον, ἴη-
SNORE ieee οι
MAGISTRATES FOR FOREIGNERS 195
Again, amongst communities in Crete, and notably The magistrate
: . ‘os oie for foreigners
‘in Gortyna (respecting whose municipal jurisprudence jn Crete.
some remarkable documents, the “laws of Gortyna,”
are now available), we find the foreign magistrate
described in several inscriptions as the κόσμος kxoénos,'
and sometimes more briefly as the κσένιος 5 (who corre-
sponded practically to the Athenian polemarch). Not
only were aliens under his jurisdiction, but also freed-
men, ἀπελεύθεροι, who were in Gortyna, as in many
other Hellenic States, assimilated in the matter of civil
capacity and privileges to the metoecs.
There are no grounds for believing, according to
the view of M. Dareste, that the κόσμος κσένιος did not
directly decide foreign cases referred to him without
sending them to the national tribunals ;—“trés pro-
bablement il jugeait directement, sans renvoi ἃ un juge
(δικαστάς), toutes les affaires concernant les étrangers.” ®
_ These Cretan foreign courts are mentioned frequently
‘in contradistinction to the regular municipal courts,
which were, of course, reserved (in the absence of
μιόλιον ὀφλέτω Fo τι συλάσαι.: Ai μεταβοικέοι πλέον μηνὸς ἢ
ὁ Χαλειεὺς ἐν Οἰανθείαι ἢ OiavOers ἐν Χαλείωι, τᾶι ἐπιδαμίαι δίκαι χ-
, . Ν / > 4 7
ρήστω. : Tov πρόξενον, : at ψευδέα προξενέοι, : διπλ-
eo θωιήστω.
: Reverse.
Ai κ᾽ ἀνδιχάζωντι : τοὶ ξενοδίκαι, : ἐπωμότας : "Γελέσ-
; tw: 6 ξένος : ὡπάγων : τὰν δίκαν : ἔχθος προξένω
καὶ Fidiw ξένω : ἀριστίνδαν, : ἐπὶ μὲν ταῖς μναϊΐα-
’ὔ A , 7 S ae ow | τ 1.8, lal
tous : καὶ πλέον, : πέντε καὶ δέκ᾽ ἄνδρας, : ἐπὶ ταῖς
’ > / ” ΝΜ > ε »
μειόνοις : evve ἄνδρας" : at κ᾿ ὁ βασστὸς ποῖ τὸν F-
᾿ αστὸν δικάζηται Ka’ τὰς συνβολάς, : δαμιωργοὺς
| Ἐελέσται : τοὺς Γορκωμότας ἀριστίνδαν τὰν πε-
| vropkiav ὀμόσαντας" : τοὺς Γορκωμότας τὸν αὐτὸ-
τ Ψ ‘opxov ὀμνύειν, : πληθὺν δὲ νικῆν.
_ +See D. Comparetti, Le ρρὶ di Gortyna e le altre iscrizioni arcaiche
\ eretesi. In Monumenti antichi (Milano, 1893), vol. iii. p. 73, no. 148.
- The fourth line here speaks οὗ... τὸν κσένιον κόσμον μὴ Aayaiev....
~ The same document is given in Dareste, Haussoullier, and Reinach,
- Recueil des inscrip. jurid. gr. pt. iii. p. 403.
2 Comparetti, oc. cit. no. 150, 1. 15.
8 Dareste, etc. Recucil..., p. 430.
In Oeantheia.
In Ephesus,
In Miletos,
196 MAGISTRATES FOR FOREIGNERS
specific favours to aliens) for suits between citizens,
ἀστικαὶ δίκαιΞλ And elsewhere these foreign jurisdictions
are contrasted with the ἐπιδαμίαι δίκαι, the causes between
natives, as in the case of the Oeantheian law,? or with
the ἀστικὸν δικαστήριον, the court for citizens, as in the
case of a fourth century inscription from Amorgos®
(an island of the Sporades group, in the Aegean Sea).
Similarly in Ephesus, amongst other municipalities”
(some of which have already been referred to), we
find the ξενικὸν δικαστήριον," which, though it was
originally and more properly a permanent tribunal
dealing with controversies between foreigners amenable
to it, or between citizens and foreigners, ultimately
developed into a general court taking cognizance also
of most commercial causes, irrespective of the nation—
ality of the litigants.6 Again, in Miletos, whose interests
were mainly commercial, the judges were the five
commissioners of the τὐκλίκος, τοῦ ἐμπορίου ἐπιμεληταί 5
and in Priene (as well as in some other places), they
were the regular στρατηγοί. Courts of this description”
existed in most Greek towns, and more conspicuously,
of course, in the larger commercial cities. Thus Aristotle
1The expression in the Gortynaean inscription is ἀστία dika,—
Cf. Comparetti, 4c. cit. no. 32, 1. 2 ; no. 149, 1. 4
2Cf. the text of the treaty between Oeantheia and Chalaeum,’
supra, p. 195, 1. 7 of the obverse portion.
8 Bull. de corr. hellén. vol. xii. (1888), p. 232, Il. 32-33:
ρα δ δεῖ τὰς δίκας ἐπὶ τὸ ἀστικδ wast,
ρίο yevérOar..
Similarly, ll. 49-50.
4Dittenberger, Sy/oge, 344 (an inscription of the early part of
first century B.c.).
5Cf. Dareste, etc. Recueil, pt. i. p. 45: “C'est une jurisdiction
ordinaire et permanente, analogue au praetor peregrinus romain ; son
nom lui vient sans doute de ce qu’elle a été instituée primitivement
pour juger les contestations entre étrangers ou entre citoyens et
étrangers ; par extension, on finit par lui attribuer la plupart des”
affaires de commerce.’ Rg:
6Cf. the fragment of the treaty between Miletos and Priene, in
Newton, Greek Inscriptions, pt. 111. no. 414. “
ae eee Σιν ee
5 i tl dol eS ene tte
seematiiditieesh athinine inset eee aneianie ee eee ©
MAGISTRATES FOR FOREIGNERS 107
speaks of them as normal institutions, called into
operation when matters of aliens were concerned,—
τοῦ δὲ ξενικοῦ ἕν μὲν ξένοις πρὸς ξένους, ἄλλο ξένοις πρὸς
᾿ἀστούς" Their presiding judges were designated by
‘the general appellation of ἕξενοδίκαι, or by such special
names as have already been mentioned above.
_ Sometimes it is difficult to discriminate between the
ξενικὸν δικαστήριον, the permanent court for foreign cases,
and special courts of arbitration (referred to by os
“same name) consisting of foreign judges. Thus,
has been contended by one or two recent writers? ἮΝ
the Ephesian court, above referred to, belonged to the
latter category ; but no conclusive reasons have been
advanced in support of this view.
_ Thus the organization of the ἕενοδίκαι presented the The xenodikai
elements of an international jurisdiction exercised in Sera
local territory,—“ une ébauche locale de jurisdiction
internationale” ;* but in regard to the importance and
extent of issues arising from the relationships between
‘citizens and non-citizens, or between non-citizens
“amongst themselves, this jurisdiction was soon superseded
in Athens by the establishment of the more stable
ind more clearly defined magistracy, exercised by the
polemarch (πολέμαρχος). ‘Le polémarque,” says a
1 Pol. iv. 13. 2.—Pollux refers (viii. 63) to the ξενικὸν δικαστήριον,
but he gives no information on the subject.
_ #C. Lécrivain, Une catégorie de traites internationaux grecs, les Symbola.
In Bulletin de Ll’ Académie des sciences, inscriptions, et belles-lettres de
| Toulouse, vol. ii. (1898-1899), no. 3, pp. 150-159; at p. 152.—
{Similarly, it is to the ξενικὸν δικαστήριον as a court of arbitration
that Thalheim refers when he describes it as a tribunal composed of
‘foreigners, which was sought to be established particularly in times of
Jagitation when sufficient confidence could not be placed in the im-
| partiality of the national courts ;—‘“‘einen Gerichtshof aus Fremden
igebildet, den man sich namentlich in aufgeregten Zeiten erbat, weil
‘man einheimischen Richtern die nétige Unparteilichkeit nicht
‘zutraute” (in Pauly-Wissowa, Real-Encychp. vol. v. pt. 1, p. 573).
8 Weiss, of. cit. vol. v. p. 4.
_ *See G. Perrot, Le droit public de la a ats que athénienne (Paris,
11867), pp. 258 seg.
ὃ.
The syméola.
198 SPECIAL LAW-TREATIES
recent writer already referred to, “fut pour les isotéles,
pour les proxénes, pour les météques, méme pour les”
étrangers de passage, et d’une maniétre générale pour tous”
ceux a qui le droit de cité était refuse, ce que l’archonte
éponyme était pour les citoyens.”’ This magistrate was
particularly active in the trial of suits arising out of
conventions (σύμβολα, in earlier language, EuuPodat),?
_—usually (but by no means exclusively) such as were
entered into for the mutual protection of commerce,
for eliminating or minimizing as far as possible the
older process of reprisal (ῥύσια, σῦλα or σῦλαι),32 and
for regulating the jurisdiction over controversies relat-
ing to commercial intercourse. In Athens, in the
fourth century B.c., they were discussed and concluded
by the heliasts, under the presidency of the sthesmo-
thetae.* The relationship thus established was ἀπὸ
συμβόλων κοινωνεῖν," conventional ‘communion,’ and the
suits issuing therefrom were called ai ἀπὸ oOo
1 Weiss, op. cit. vol. v. p. 5. ᾿
2 Corp. inscrip. Ait. vol. ii. no. 11, ll, 13 seg. Harpocration gives
the following definition : συνθῆκαι ds dv ἀλλήλαις at πόλεις θέμεναι
τάττωσι τοῖς πολίταις ὥστε διδόναι καὶ λαμβάνειν τὰ δίκαια. Cf
Arist. Pol. iii. 1. 3.—Probably the word σύμβολα, as a recent French
writer points out, came to designate a treaty from the fact of th
word σύμβολον signifying originally the signs or tallies (the tesserae
hospitalitatis) held by individuals in the case of private hospitality, and”
by cities in that of public hospitality. The same author also suggests,
with reason, that it was the word σύμβολα which was translated by
Livy as “commercium iuris praebendi repetendique” (xli. 24), in
reference to the negotiations, 174 B.c., between the Achaeans and
Perseus of Macedon, for an extradition treaty as to fugitive slaves.
(See C. Lécrivain, Une catégorie de traités internationaux grecs, les Symbolac
In Bulletin de [Académie des sciences, inscriptions, et belles-lettres d
Toulouse, vol. ii. (1898-1899), no. 3, pp. 150-159.)
3 As to such relationships in the case of the Athenian league, οἱ
Stahl, De sociorum Atheniensium iudiciis (Minster, 1881),and see alsoinfra,
chap. xvi., as to Athens and her allies,
4Demosth. De Halon. 9; Arist. Ath. Pol. 59; Pollux, viii. 88%
καὶ τὰ σύμβολα τὰ πρὸς τὰς πόλεις κυροῦσι, Kal δικαστὰς ἀπὸ
συμβόλων εἰσάγουσι...
5 Aristot. Polit. ili. 1. 4.
ie
| SPECIAL LAW-TREATIES 199
δίκαι, or δίκαι συμβόλαιαι; Thus in a treaty between Treaty between
Athens and Phaselis made about 395 B.c.-385 B.c., pinensand
it was stipulated that any controversy relating to question of
an agreement concluded at Athens between merchants’
of Athens and those of Phaselis should be brought
before the Athenian polemarch; but that actions
arising out of contracts not concluded at Athens
‘should be tried pursuant to the terms of the previous
‘treaty with Phaselis ; and, further, it provided that if
any Athenian magistrate should proceed to hear such
_ Suits in contravention of these clauses his judgment was
to be void.2 It would follow from this that under
_ the terms of the previous treaty referred to, the place
where the contract was made did not necessarily deter-
_ mine where the action was to be brought ; so that in the
1Thuc. i. 77.—One or two writers (e.g. Boeckh ; Goodwin, in
Amer. Journ. of Philology, 1880) have drawn a distinction between the
δίκαι συμβόλαιαι and the δίκαι ἀπὸ συμβόλων, to the effect that the
former were ‘commercial suits,’ or ‘suits arising out of contracts,’ ᾿
and the latter were suits brought by a citizen of one State against ἃ
citizen of another under the rights laid down specifically by a con-
vention. In answer to this, it may briefly be said that no cogent
_ reasons have been advanced in support of such a discrimination, and
_ that ancient writers have used the two expressions interchangeably.—
_ Cf. Jowett, in his translation of Thucydides (Oxford, 1881), vol. ii.
ποις το Thuc. i. 77, and the introductory note, pp. Ixxxv-lxxxviii.—
_M. Lécrivain emphasizes (in Daremberg-Saglio, s.v. Ephesis, p. 643)
_ that there never was any essential difference in meaning between the
words σύμβολα and συμβολαί ; and that the δίκαι ἀπὸ συμβόλων
- were not “les procés issus de contrats commerciaux privés, mais les
_ proces jugés en vertu des traités diplomatiques des σύμβολα.
2 Corp. inscrip. Att. ii. 11; Hicks, op. cit. 36.
... τοῖ]ς Φασηλίταις τὸ sane
bi [apa dvjaypdya, ὅ τι ἂμ μὲ[ν] ᾿Αθ-
Ξ ἤνησι ξ]υϊμβό]λαιον γένηται
: πρὸς Φ]ασ(η)λιτ[ὦ]ν τινά, ᾿Αθή[νη-
σι τὰς δ]ίκας γίγνεσθαι πα[ρ-
ἃ τῶι πο]λεμάρχωι καθάπερ X-
tous καὶ] ἄλλοθι μηδὲ ἁμοῦ, τῶ-
ν δὲ ἄλλων] ἀπὸ ξυμβολῶν κατ-
a τὰς Χίων ξ]υμβολὰς πρὸς Φα-
'΄σηλίτας] τὰς δίκας vine
τὰς [δὲ ἐκκλήτ]ου[ς] ἀφελεῖν,
PAP a Fe ao LRT BT τ δὲς,
The ex loci
contractus,
and the dex
domiciliz.
Personal law
and territorial
law.
200 PERSONAL AND TERRITORIAL LAW
fifth century (that is, prior to the above-mentioned treaty
between the two cities) a suit against a Phaselite for
violating a contract not concluded at Athens could not be
entertained by the Athenian tribunals,—he could be sued -
only in the courts of his own city. Accordingly the
general principle came to be established, not only ἴῃ
Athens but in Hellenic States generally, that in commer-_
cial cases, the defendant’s /ex domicilii was applicable,’
though sometimes a departure therefrom was made by
the adoption of the /ex /oci contractus conformably to the
exigencies of the particular case. |
With the rapid increase of commercial relationships”
between more distant localities, the latter principle, that
is, the ratio loci, frequently predominated in the absence,
of course, of treaties stipulating otherwise; so that
the tribunal of the place where the conteaee was con-—
cluded possessed jurisdiction in the case of disputes”
arising out of it. When large interests were at stake,
and it was important, by the very nature of the circum-_
stances, to effect a speedy settlement, so as not to put
an undue check on business enterprise, it was obviously |
found, for the most part, more convenient and expedi-
tious to appeal to the /ex /oct contractus, rather than to”
the defendant’s /ex domicilii, or to his ius originis. t
A striking passage of Demosthenes emphasizes the
distinction between the personal law and the territorial”
law in regard to their respective applicability. There
was a dispute between Athens and Macedonia concerning —
Halonnesus, a small island off Thessaly; and in 343
B.c., an embassy was despatched to Macedonia with a
view to adjusting this difference as well as other subjects.
1See Gilbert, op. cit. vol. i. pp. 487-8; Wilamowitz-Méllendorff,
in Hermes (Berlin), vol. xx. p. 240; Goodwin, i in American Journal of
Philology, 1880, p. 10.—That this was a regular principle in Greece
appears also from the above-stated Oeantheia~-Chalaeum convention,
and from the observation of Aeschines, c. Timarch. 158.
πον aa a ‘
—- bas: aS is 1
ly ee ἴον
ν = “
ἜΒΗ Ἢ
COMMERCIAL CASES 201
there is no need of a judicial treaty between Athens and
Macedonia,’ exclaimed Demosthenes, “past times may
suffice to show. Neither Amyntas, nor Philip’s father,
nor any other Kings of Macedon ever entered into such
ἃ convention with our State, although the intercourse
between us was formerly greater than it is; for Mace-
donia was dependent on us and paid us tribute, and
we then resorted to their ports, and they to ours more
‘frequently than now, and there were not the monthly
“sessions punctually held, as at present, for mercantile
causes, dispensing with the necessity of a law-treaty
between such distant countries.’”’ Demosthenes then
concludes with the important statement: ‘ Though
: nothing of the sort then existed, it was not requisite to
enter into a treaty, so that people should sail from Mace-
_donia to Athens for justice, or Athenians to Macedonia ;
we obtained redress by their laws and they by ours.” ἢ
In actual practice, however, the great majority of Activity of the
suits of this nature would find their way into the {ite om.
Athenian tribunals, when the conventions relating thereto ™etial suits.
were concluded with allies forming part of the confeder-
ation, of which Athens assumed the hegemony. In
| the first place, the /ex loci contractus (if the contract
was not made in Athens) was, in certain circumstances,
| dispensed with, and the Athenian courts invested with
_ full competence, irrespective of the ius originis of the
"parties ; ;—a provision which applied also to non-allied
communities. Thus Demosthenes states that in the
case of all general conventions relating to mercantile
_ expeditions from or to Athens, and where there was a
- written contract, the suits (δίκαι ἐμπορικαί) of maritime
‘traders and wholesale merchants involved therein were
to be laid before the courts at Athens: of νόμοι κελεύ-
-Ούὕσιν. . τὰς δίκας εἶναι τοῖς ναυκλήροις καὶ τοῖς ἐμπόροις
Ἡ τῶν ᾿Αθήναξε καὶ τῶν ᾿Αθήνηθεν συμβολαίων, καὶ περὶ ὧν
“
1 De Halonneso, 11-13, 13: ἀλλ᾽ ὅμως οὐδενὸς τοιούτου ὄντος τότε
οὐκ ἐλυσιτέλει σύμβολα ποιησαμένους οὔτ᾽ ἐκ Μακεδονίας πλεῖν
2 ᾿Αθήναζε δίκας ληψομένους, ou? ἡμῖν εἰς Μακεδονίαν, ἀλλ᾽ ἡμεῖς τε
" τοῖς ἐκεῖ νομίμοις ἐκεῖνοί τε τοῖς παρ᾽ ἡμῖν τὰς δίκας ἐλάμβανον.
202 COMMERCIAL CASES
ἂν ὦσι συγγραφαί! At first, these causes were decided
by the polemarch, the usual judge when either of the
parties was an alien, as we have seen in the treaty
between Athens and Phaselis, concluded at the begin-
ning of the fourth century B.c.; afterwards, at the
time of Demosthenes, the shesmothetae presided at
the trials.2 Secondly—apart from the above conditions
—the Athenian tribunals were so active in the hearing
of cases of aliens of allied States, that Athens would
seem to have arbitrarily arrogated to herself entire
jurisdiction over her confederates ; whereas, in reality,
the law of the non-Athenian defendants’ domicile might
also have ordinarily been resorted to in pursuance of
the general rule, subject to the modifications thereof
mentioned. ‘It would no: doubt practically come to
pass,” says an American writer, “that most of such
suits would, even by the terms of the treaties, have to
be tried in Athenian courts. For in most cases the
Athenians would be the defendants. The feelings with
which the dominant Athenian demos, as a whole,
regarded the subject allies, could hardly fail to exhibit
themselves in the dealings of individual Athenians with
those with whom they had commercial relations; and so
it would come to pass that in the great majority of such”
cases it would be the citizen of an allied State who was
the plaintiff, and he must necessarily, therefore, sue in
an Athenian court. We may consider also that suits
brought against Athenians by citizens of any one of the
subject cities would all be tried at Athens; whereas the
suits brought by Athenians against any citizens of their
tributary states would be tried one at Rhodes, another
at Phaselis, another at Samos, and so on. The judicial
range, therefore, of the Athenian courts must have
greatly surpassed that of the courts of any one of the
allies, perhaps of all of them together; and thus, even
1¢, Zenothem. 1.—Cf. Demosth. In Midiam, 176. ΕἸ :
2 Demosth. c. Apatur. 1: τοῖς μὲν ἐμπόροις... καὶ τοῖς ναυκλήροις
κελεύει ὁ νόμος εἶναι τὰς δίκας πρὸς τοὺς Oerpobéras.—Cf. Demos
Pro Phorm. 45; Arist. 4th. Pol. 59.
Δ Gt Ne .
EXAMPLES OF LAW-TREATIES 203
without any formal infraction of the reciprocity implied
by the existence of σύμθολα, the impression may easily
_have come to exist, which the statements quoted from
the grammarians express, that it was the Athenians who
decided, in accordance with the terms of the several
σύμβολα, the commercial suits of their subjects.” ἢ
It appears that though the δίκαι ἀπὸ συμβόλων and the
δίκαι ἐμπορικαί (commercial cases, in the strict sense)
extended much over the same ground, yet there were
certain distinctions between them. For example, the
δίκαι ἐμπορικαί (other than those, as above stated, in
_which Athenian expeditions were concerned) were heard
_ by the tribunals of the country where the contract was
entered into, and were decided in pursuance of the
general municipal law of that country, and not by
the particular, and more or less temporary stipulations
_ specially embodied in the σύμβολα.Σ In either case pro-
vision was often made for ‘appeal,’ or, more correctly,
for the purpose of renvoi, by the nomination of a third
City, πόλις ἔκκλητος, to officiate as a special court of
arbitration ; as—to give here only one or two instances
—in the treaty between Hierapytna and Priansos : ὃ
between Athens and the Boeotian league ;* between
Naxos and Arcesine (in the island of Amorgos).°
In order to supplement and to illustrate further the examples of |
foregoing considerations, it will be of advantage to ea
mention concisely a few of the treaties (in addition to
those already set forth) which were entered into between
two or more communities, not only for the purpose of
_ regulating the jurisdiction and judicial machinery with
_ regard to their subjects’ disputes arising out of com-
+ Morris, in American Journal of Philohgy, 1884, p. 306.
2Cf the article in Smith’s Dictionary of Greek and Rom, Antig. s.v.
2 Symbolon, p. 734.
8 See infra, p. 207, and chap. xvii. 4 See infra, p. 207.
5 Bull. de corr. hellén. vol. viii. p. 25, ll. 28-29: καθάπερ δίκην
15 ἰ
: ὠφληκότων ἐν τῆι ἐκκλήτωι κατὰ τὸ σύμβολον τὸ Ναξ(ί[ωὴν καὶ
᾿Αρκεσινέων.....
Between
Sparta and
Argos.
Between
Athens and
Selymbria.
204 EXAMPLES OF LAW-TREATIES
mercial contracts in particular, but also with a view
to providing such measures and procedure as would
facilitate the solution of conflicts of law consequent
on their relationships in general. A convention οὗ
this nature might perhaps be conveniently designated
a ‘law treaty,’ by analogy with the German term Rechis-
vertrag as used, for example, by a recent German writer.
The Rechisvertrag is defined by him much in the same
way as has been suggested in the present exposition,
thus: “Ein Vertrag, durch den zwei oder mehr
Gemeinwesen das Verfahren in privatrechtlichen Streitig—
keiten ihrer AngehGrigen ordnen.” }
In the second of the two treaties between Lacedaemon —
and Argos which were concluded in 418 B.c., Thucy-
dides relates that provision was made for the settlement
of international differences by arbitration, in accordance
with the ancestral customs of the parties,? and that for
this purpose an appeal should be made to some State
considered by them to be impartial; further, that so”
far as individual subjects of the signatories were con- |
cerned, their ‘ancestral customs’ (which would be
tantamount to their ius originis) should as far as possible
be permitted to operate.® [
The convention between Athens and Selymbria 5 ὠ
Thracian town), concluded about 408-407 B.c., provided
that in disputes arising out of treaties, either those tha
occurred between citizens of the two States, or those
between one of the States and citizens of the other, a
settlement was to be effected in pursuance of a previous ~
bt
1H. F. Hitzig, Algriechische Staatsvertrige uber Rechtshilfe.
Festgabe Ferdinand Regelsberger (Zurich, 1907), p. 7.
2Thuc. v. 79: ... ἐπὶ τοῖς ἴσοις καὶ ὁμοίοις δίκας διδόντας καττὰ
πάτρια. ,
8 7114.: ai δέ τινι τᾶν πολίων ἢ ἀμφίλογα, ἢ τᾶν ἐντὸς ἢ τᾶν ἐκτὸς
Πελοποννάσου, αἴτε περὶ ὅρων αἴτε περὶ ἄλλου τινὸς, διακριθῆμεν.
» 7 “ , ’, / + AVE 2 3 ’ > ay 2 f
ai δέ τις TOV ξυμμάχων πόλις πόλει ἐρίζοι, ἐς πόλιν ἐλθεῖν, ἅν τινὰ
ἴσαν ἀμφοῖν. ταῖς πολίεσι Soxoin.—For the full treaty, see injr
chap. xvii.
4Von Scala, Staatsvertrige, no. 93.
SSE Fey
EXAMPLES OF LAW-TREATIES 205
“agreement (of which nothing is here stated) relating to
πὶ procedure.
Meenas OTe δ᾽ ἃ ἂν ἀμφισβη-
[τῶσι δίκας] ε(ἶγναι ἀπὸ Boku
Treaty between Athens and Samos,’ 405-403 B.C.— Between
After the battle of Aegospotamoi, Samos having gine ra
“remained faithful to Athens, and having offered them
“assistance in the prosecution of the war, the Athenian
ecclesia passed a decree (ψήφισμα) conferring citizenship
on the Samians without thereby depriving them of their
independence, and providing for the due adjustment
of controversies between their subjects in conformity
with the prior conventions relating to judicial process :
καὶ περὶ τῶν ἐγκλημάτων ἃ ay γίγνηται | πρὸς ἀλλήλους
διδόναι καὶ δέχεσθαι τὰς δίκας κατὰ τὰς συμβολὰς τὰς οὔσας.
᾿ς In reference to the affairs between Athens and Naxos Between
(c. 378 8.0.) there is an inscription* embodying an νας δρᾶ
Rthenian decree which concerns the competence of the
- Naxian tribunals, and draws a distinction between the
| δικαστήριον ἐ ἐν Νάξῳ and the δικαστήριον ᾿Αθήνησι.
Treaty between Athens and I[ulis, together with other Between
Cean towns, 363-362 B.c.5—In 376-375 B.c. Ceos had ii se
_ joined the new Athenian confederation,® but about
363 B.c. an anti-Athenian revolution broke out in the
island. Subsequently, after the disturbance was quelled,
it was arranged that offenders were to appear before
"the strategoi in Iulis within thirty days, or at Athens,
~ the ἔκκλητος πόλις, where certain cases had to be tried.
: . ἐξεῖναι αὐτοῖς ἐνγυη-
5 τὰς καταστήσασι πρὸς [τ]οὺ[ς] σ[τρ]ατηγοὺς τοὺς ᾿Ιουλιητῶν τρ-
| udkovra ἡμερῶν δίκα[ς] (ai) ete mai τ[οὺ]ς ὅρκους καὶ τὰς
i al ἐν Κέωι καὶ [ev τῆι ἐκκ]λήτωι [πό]λει ᾿Αθήνησι.
1 Tbid. ll. 20-21.
2 Corp. inscrip. Att. iv. 2. 1b ; Michel, 80; Hicks, 81.
8 Hicks, doc. cit. 11. 18-20.
ὁ Corp. inscrip. Att. iv. 2. 88d.
5 Corp. inscrip. Att. iv. 2. 54b 3 Michel, 95 ; Hicks, 118.
6 On the Athenian leagues, see infra, chap. xvi.
7 Hicks, ibid. ll. 46-49.
206 EXAMPLES OF LAW-TREATIES
Further, apart from the criminal offences which are
in question here, the Ceans undertook to allow all cases
involving sums of more than a hundred drachmas to be
tried in the first instance at Athens, the ἔκκλητος πόλις.
. τὰς δὲ δίκας καὶ hoe
as γραφὸς τὰς κατ᾽ ᾿Αθηναίων ποιήσομαι) πάσας ἐκκλήτους [κ-
ata τὰς συνθήκας, ὁπόσαι ἂν ὦσιν ὑπὲρ ἑκατὸν δραχμάς.
This example, amongst various other instances, shows
clearly that the expression ἔκκλητος πόλις, in reference
to international conventions, does not necessarily mean
a ‘court of appeal,’ as most writers have wrongly
assumed, but simply the city—agreed upon in the
treaty in question, or subsequently to be gS upon
—which is to hear certain causes. Such city was
either one of the contracting parties (as was frequently
the case in the Athenian leagues, when Athens asserted
her predominance), or a third State, officiating prac-
tically as an arbitral tribunal.
Again, as to jurisdiction 1 in the case of certain crimes,
we have another inscription® setting forth an Athenian
Decreeastothe decree (c. 445 B.c.)—relative to the Chalcidians ὁ
Chaleidians. ~“Ruboea—which was passed when the hegemony o of
Athens was developing into dominance over the a
federates of the first league. It was there decided ha
such of the more serious offences as entailed the penalty
of death, banishment, or disfranchisement were to
tried in Athens.
Between In the treaty of isopolity between Messene ail
Phigaia. Phigalia,® entered into about the middle of the third
century B.c., there is found a reference to a prospective
convention for regulating the jurisdiction as to any
complaints of the parties.
ποιήσασθαι δὲ καὶ συμβολὰν ἃν xa δοκεῖ] ἀμφοτέραις ταῖς oan
.
1 Hicks, idid. ll. 73-75.
2 Corp. inscrip. Att. supp. 27 a.—Cf. Antiphon, De caede Herodis, 47-
8 Dittenberger, 181 ; Michel, 187.
4 Michel, iid. ll. 12-13.
a ee ee ee ee
ence
Rees
EXAMPLES OF LAW-TREATIES 207
᾿ς In the convention between Athens and the Boeotian Between
‘league,’ concluded in the second half of the third {{Dys37e.
‘century B.c., for the settlement of their differences, the leasve.
city of Lamia was agreed upon to act as the ἔκκλητος
ross,
The alliance between Hierapytna and Priansos? retween
"(about the end of the third century B.c.) provided for Hisrapytna —
' the interchange of a large number of rights and privi-
leges, and laid down that contractual obligations were
to be determined by the principle of the /ex loci contractus,
τας ὑΨ δὶ Oe De Ts διὰ a eR RU ὧν ΜΚ. EARS
that a common tribunal, κοινὸν δικαστήριον, consisting of
an equal number of judges or arbitrators from each
of the parties, was to try all offences against the terms
of the treaty, that certain other differences might, if
desired, be submitted for final decision to a third city,
ἔκκλητος πόλις, within a month after the convention was
‘ratified, that subsequent disputes should be adjusted
‘within two months after the appointment of the
common court, which was to sit in the place as
_ arranged by the annual magistrates, and that mutual
_ guarantees were to be given for the faithful despatch
“οὗ the proceedings.
[ As to the affairs of the Achaean league and Rhodes,? Between
i find in the second century 8.0. that the Rhodians ee
3 for the renewal of a previous convention, διόρθωσις τοῦ
aS
AS te ΖΑ.» are ΔῈ ΟΣ ἃ δ ὁ
_ despatched an embassy to the Achaeans to negotiate 8°
᾿ συμβόλου, by which their grievances might be judicially
- settled.
_ In the treaty between Lato and Olus* (two Cretan Between Lato
towns), in the latter half of the second century s.c., ἢ ΟΣ
| aap regulations were agreed upon with regard to
“their respective territorial jurisdictions, visits of magis-
trates to determine questions of law, and, further,
“mutual freedom was secured to engage in commercial
1 Corp. inscrip. Att. ii. 308 ; iv. 2. 308 b.
2 Corp. inscrip. Graec. 2556.—See also infra, chap. xvii.
᾿ς -* Bull. de corr. hellén. vol. xxvii. p. 243.
᾿ς *Corp. inscrip. Graec. 2554 (esp. ll. 56-76) ; Egger, Traites publics,
1p. 125; Michel, 28.
Between Rome
and Chios,
Difficulty of
the subject.
General
conclusions
208 GENERAL CONCLUSIONS
transactions and to enter into contracts in each other’s
country, in accordance with the laws of the two con-
tracting parties.’ Some stipulations of a similar character
are embodied in the more recent convention between
Rome and Chios.?
The subject which has been discussed in the latter
half of the present chapter is an extremely difficult
one ; in the first place, on account of a large measure
of indefiniteness and ambiguity in the original docu-
ments, coupled with their frequent fragmentary char-
acter, so that the safe determination of allusions and
references contained therein is rendered impossible ;
secondly, owing to the varied practices of States, and
modified policy of the same States at different epochs,
and under the stress of particular circumstances. Cer-
tain conclusions, however, may be drawn, which alone
will sufficiently indicate the efforts made in Greece to
solve conflicts of laws, and to promote in
comity. |
Generally speaking, in time of peace freedom of
intercourse, and especially of engaging in mercantile
transactions, ἐπιμιξία (corresponding approximately to
the Roman ius commercii) was permitted between the
citizens of different States, subject to the payment of
customs duties, port dues, etc., and, in some cases, to
restrictions respecting the exportation and importation
of certain commodities, such as oil, corn, etc. In most
towns, there was a permanent court exercising jurisdic=
* Corp. inscrip. Graec. 2554 : |
. κύριον δ᾽ ἦμεν τόν τε Λάτιον ἐ ἐν Ὀλόντι ποτὶ τὸν Ὀλόντιον,
Ὀλόντιον ἐν Λατῷ ποτὶ τὸν Λάτιον, καὶ πωλέοντα διὰ
vasbie καὶ @vedpevov, καὶ δανείζοντα Kat δανοιζόμενον καὶ τὰ ἄλλα
πάντα συναλλάττοντα κατὰ τὼς ταύτᾳ νόμως τὼς ἑκατέρῃ κειμέ
See infra, chap. xvii.
ee inscrip. Graec. 2222, ll. 15-20
. ἡ σύν[ κλη]τος εἰ[δ]ικῶς ἐβιβεώση, ὃ ὅπως νόμοις τε καὶ ἔθεσιν.
eat δικαίοις [χρῶνται la ἔσχον ὅτε TH “Ῥωμαίων [¢] a
προςῆ[λ]θον, ἵνα τε ὑπὸ μη 4 Φτινι[οῦν] τύπῳ ὦσιν ἀ[ρἸχόντων ἢ
ἀνταρχόντων, οἵ τε παρ᾽ αὐτοῖς ὄντες Ῥω[μαΐο]ι τοῖς Χείων ὑπα-
κούωσιν νόμοις.
GENERAL CONCLUSIONS 209
tion over causes to which aliens were parties; and
these judicial organizations, as well as the presiding
judges, were variously designated, so that we hear of
the’ ξενικὸν δικαστήριον (a general name for the foreign
court), the £evodixa: (a general name for the presiding
judges), the πολέμαρχος (the Athenian archon, who took
special cognizance of the affairs of metoecs), the κόσμος
ξένιος (of Cretan towns), and the like. These institu-
tions and magistracies usually existed apart from express
‘provision in international conventions (σύμβολα or
συμβολαϊί) ; but treaties were very frequently concluded
either to ensure the due and impartial operation of
these tribunals, or to establish a new mixed court of
judges, the κοινὸν δικαστήριον, and, at the same time,
“nominate a third city, πόλις ἔκκλητος, as a ‘court of
appeal,’ in the sense of a tribunal to which the issues were
submitted for final decision after a preliminary examina-
‘tion by the court of first instance. As to the law that
"was applied in the settlement of conflicting claims, some-
[emes the /ex loci contractus (the prevailing law of the
place where the engagement in question was entered
into) operated, at other times the /ex domicilii of the
defendant, sometimes, again, broad equitable principles
were invoked in order to effect a fair reconciliation
\between the contending legislations of the States con-
icerned, and, finally, an express judicial dispensation
| might be resorted to in virtue of an ad hoc agreement.
At first the alien suitor was obliged to plead through
jthe agency of the proxenus or his patron, as the case
jmay be; but with the expansion of commerce and
4general intercourse, the increase of litigation, and the
jmore generous attitude that came to be manifested
towards non-citizens, the foreigner was, in actual practice,
jand despite strict theory, commonly allowed to appear
jin person and address the court, and to instruct advocates
ito plead for him. Finally, provision was usually made
lfor the hearing of suits within a certain fixed period,
iso as to prevent an undue delay of justice.
[9
Roman
citizenship.?
Civitas
Romana and
tus Quiritium,
ge ea ΘΝ Το Το
CHAPTER IX
ROME AND FOREIGNERS! 7
As it has already been seen, there was in the earlier
period of Roman history a close relationship between
citizenship and the practice of the city’s religion. The
enjoyment of political rights was largely dependent on
assistance at the sacred ceremonies of lustration.* In
the later period certain modifications were gradually
introduced, which tended to emphasize the purely civic
and political aspect, and to remove to the background,
if not wholly to eliminate, the religious side. |
The expressions civitas Romana and ius Quiritium
have been taken by some writers to be equivalent in
their signification of Roman citizenship. Practically
they may for most purposes be regarded as synonymous,
though the former implies rather a condition, a status,
1The following, amongst other writings, may be mentioned:
M.I. G. Rogéry, De /a condition des étrangers en droit romain (Montpellier,
1886) ; E. Chénon, La di pérégrine ἃ Rome, loc. cit.; G. Humbert,
Mémoire sur la condition des pérégrins chez les Romains (in Recueil de
Ll’ Académie de législation de Toulouse, 1870); P. van Wetter, La condition
civile des étrangers d’aprés le droit romain (Appendix to Laurent’s Droit”
civil international, vol. i. pp. 667-678).—Further works on speci:
points are indicated in the Bibliography.
2On Roman citizenship, see the following: W. Eisendecher, Ueber
die Entstehung, Entwickelung und Ausbildung des Birgerrechts im alten”
Rom (Hamburg, 1829); F. Lindet, De /’acquisition et de la perte di
droit de cité romaine (Paris, 1879); H. Lesterpt de Beauvais, ‘Du droit
de cité ἃ Rome... (Paris, 1882); G. Grenouillet, De la condition det
personnes au point de vue de la cité...en droit romain (Paris, 1882)5_
G. de Letourville, Etude sur le droit de cité ἃ Rome... (Paris, 1883). ;
8Dion. Hal. iv. τς ; Cic. Pro Caec. 34. ἊΝ
LOSS OF ROMAN CITIZENSHIP 211
whilst the latter usually has reference to privileges
ensuing from the fact of belonging to the original
family or stock. Later the term civitas Romana was
generally adopted, as has been pointed out by Poste’
and others, in the bestowal of the franchise on a
peregrinus, and sometimes also in the case of a Latinus,?
whilst the term ius Quiritium was used when the same
was granted to a Latinus lunianus.®
The mode and conditions of acquiring Roman citizen- How Roman
ship will be considered below.t The civitas Romana toe"? γα
might be lost either by voluntary renunciation, or as a
result of the infliction of certain punishment. Roman
conceptions show an advance on Greek in that no
individual was held to be capable of enjoying the
citizenship of two or more different States ;° so that if
a Roman became a naturalized subject of a foreign
State, either through his own initiative or by honorary
conferment, he was ipso facto divested of his former
civitas.® Again, in earlier times a citizen who avoided
_ the census or escaped from military service was liable to
_ be sold into slavery,—an event which would necessarily
- entail loss of citizenship.’ The same loss was incurred
_ by those who were condemned to exile with ‘aquae et
_ ignis interdictio’ ; and, further, under the Empire, by
those who were sentenced to deportation,® or consigned
1 Gaii Inst. p. 54.
2Cf. Gaius, Inst. i. 28.
‘SCF. Pliny, Epist. x. 4 (Pliny writing to Trajan): “ Quare rogo,
_ des ei civitatem, est enim peregrinae conditionis, manumissus a
_ peregrina... Idem rogo, des ius Quiritium libertis Antoniae
| Maximillae...quod a te, petente patrona, peto”; ibid. x. 5:
_ “Ago gratias, domine, quod et ius Quiritium libertis necessariae
- mihi feminae, et civitatem Romanam Harpocrati, iatraliptae meo,
sine mora indulsisti.”
See chap. xi.
- *®Cic. Pro Caec. 34: “...ex nostro iure duarum civitatum nemo
6886 possit....” See note 2, infra, p. 246.
SCf. Corn. Nep. Afticus, 3; Cic. Pro Balbo, 12.
TCic. Pro Caec. 34; Dion. Hal. iv. 15.
SGaius, i. 128; Ulpian, x. 3; Dig. xlviii. 19. 17 ; ibid. 22. 6.
Cicero on the
loss of
citizenship.
lost ;—they went either voluntarily, or fled to escape
]
212 LOSS OF ROMAN CITIZENSHIP
to the wild beasts (‘ad bestias’), or sent to the mines |
(‘in metalla’), or to hard labour (‘ servi poenae’),! and
also by those who were delivered (deditio) to the enemy —
by fetial procedure,? and those who were publicly —
declared enemies of the commonwealth.’
Cicero is at pains to show that citizenship was lost
only through a voluntary abandonment of it. It is”
asked how, he argues, Roman citizens have frequently —
departed for Latin colonies, if citizenship cannot be
the penalty of the law ; whereas, had they submitted to”
it, they would have remained in Rome and retained ©
their citizenship. Again, if those who have been con- —
demned to exile elected rather to remain in Rome and ~
suffer the rigour of the law, they would lose citizenship —
only with loss of their life ; when, on the contrary, they
accept exile and are hence received into another city,
they themselves renounce their citizenship; it is not
really taken away from them, since by Roman law it is”
not admissible to enjoy a twofold citizenship at the
same time. A Roman, Cicero continues, cannot change.
his citizenship against his will, and cannot do so by
merely desiring such change ; it can only be effected by
actual admission into the roll of citizens of a foreign
community.® 4
1 Dig. (ibid.).
2Cic. De orat. i. 403; Pro Caec. 34. ® Dig. iv. Sas
4 Pro Caec. 33: “... quemadmodum, si civitas adimi non possit,
in colonias latinas saepe nostri cives profecti sunt. Aut sua voluntate,
aut legis multa profecti sunt ; quam multam si sufferre voluissent, t
manere in civitate potuissent.”
5 Ibid. 34: “... qui si in civitate legis vim subire vellent, non
prius civitatem, quam vitam amitterent ; quia nolunt, non adimitur”
his civitas, sed ab his relinquitur atque deponitur. Nam, quum @
nostro iure duarum civitatum nemo esse possit, tum amittitur hae
civitas denique, quum is, qui profugit, receptus est in exsilium, hoc
est, in aliam civitatem.” 4
6 Pro Balbo, ii.: ‘‘Iure enim nostro neque mutare civitatem quis-
quam invitus potest neque, si velit, mutare non potest, modo”
adsciscatur ab ea civitate, cuius esse se civitatis velit.”
ROMAN ATTITUDE TO ALIENS 213
It is obvious that Cicero is here inferring some of His specious
his conclusions on really theoretical considerations and “8™°™
4 priori principles. The law in its practical applications
did not work out on these stringent lines. Indeed,
_Madvig says with much truth that Cicero is merely
resorting to subtlety and specious argument in his
endeavour to prove that a Roman citizen could not
lose his citizenship in spite of himself, that exile did
not really entail its loss, and that only naturalization in
_ the country of his exile could bring about a deprivation
_ of his former rights. In point of fact exile, accompanied
_ by ‘aquae et ignis interdictio,’ and by a declaration that
his exile was in accordance with the law, ‘iustum ei
_ exsilium esse,’ carried with it loss of citizenship; and
such loss was not essentially the consequence of a
deliberate act of naturalization abroad, inasmuch as this
proceeding was not bound to be notified to the Roman
government, and, moreover, in view of the fact that
the exile could reside abroad as an ingqui/inus,! (sojourner).
The Romans had less national vanity than the Greeks, Roman
_ whether in regard to religion or in regard to intellectual ated:
| matters in general. Their attitude to foreigners was
_ marked by less exclusiveness and greater liberality of a
systematic character than that of the Greek race.
_ Foreign religions and foreign gods were more readily
admitted into the Roman commonwealth. Aliens were
not held to be necessarily deprived of all juridical
' Capacity. In some cases this capacity was taken to be
17. N. Madvig, Die Verfassung des romischen Staates, 2 Bde.
» (Leipzig, 1881-2), vol. i. p. 55 note: “Ciceros Behauptung (pro
- Caec. 33, 34, pro Balbo, 11, de Domo, 20), keiner verliere das
| pa wider Willen, und, wer in die Verbannung gehe, der
_ verliere erst das Biirgerrecht durch die Aufnahme in einen fremden
_ Staat, lauft auf die arge Spitzfindigkeit hinaus, dass man sich durch
᾿ Selbstmord oder Hinrichtung dem Verluste des Burgerrechtes
' entziehen kénne. Der Verbannte verlor das Biirgerrecht durch
die rémische aguae et ignis interdictio, durch die Erklarung, iustum
_ td εἰ exsilium esse, nicht durch die Aufnahme in den fremden Staat,
; _ die den Romern gar nicht notificiert ward, oft gar nicht eintrat,
_indem der Verbannte in der fremden Stadt als inguilinus \ebte.”
Extreme
statements
by writers.
Meaning of
peregrinus
214 THE PEREGRINI
independently applicable and effective, in other cases its _
potentiality was recognized, but its applicability and
operativeness had to be sanctioned and regulated by
means of explicit pacts, conventions, treaties.
In reference to the question of Rome’s relationship _
to aliens, as in a good many other questions of ancient —
international law, one must guard against extreme
assertions, or unwary exaggerations. Some writers, for
example, have claimed that the Romans regarded aliens —
as being on a footing of perfect equality, others have
peremptorily dismissed the question by asserting that
they considered strangers as possessing all the attributes —
of hostility. In the one case, as an Italian writer has
expressed it, there is an exaggeration through extrava-
gant idealism, i in the other, a rigorous disparagenieaa
which would assimilate the Romans to savages,—“...
gli scrittori hanno spesso esagerato o per un idealismo ~
eccessivo Ο per un rigorismo che avrebbe assimilati i
Romani a selvaggi.’”?
It is, first of all, desirable to say a few words about ©
the meanings of such expressions as peregrinus, hostis,
perduellis, amicus, and the like. .
The word peregrinus® has strictly no precise equiva- 4
lent in English. Such terms as ‘alien’ and ‘foreigner’
are only approximate renderings. It has a larger denota-
tion than ‘alien,’ inasmuch as it implies not only the —
nationals of foreign States or of colonies, either autono- ~
mous or dependent, but also what the Greeks called —
ἀπόλιδες, individuals actually without a country, State, or —
city, those who could not be called cives at all,—such as ©
the dediticii, subjugated by Rome and deprived of their —
civic organization, as well as exiles, outlaws. And, ~
further, before the issue of Caracalla’s constitution, the —
majority of the subjects of Rome in her provinces were —
even denominated peregrini. The expression ‘ non- ᾿
1G. Padelletti, Storia del diritto romano.—Con note di P. Cog. 0 fo ;
(Firenze, 1886), p. 69, note (2). e
2On peregrinus, see further infra, latter part of the present chapters! i
MEANING OF HOSTIS 215
‘citizen’ is still more inadequate than ‘alien’ to
indicate the position of the peregrin ; for ‘non-citizen’
would, under the earlier Empire, include the Latini
Tuniani, who were not cives, and yet were not regarded
as peregrini
_ Theword Aostis,* like the Greek ξένος, presents greater The term
difficulty, and has been the cause of much misunder- “**
standing and error on the part of most modern writers.
Just as the word ἕένος meant both ‘stranger’ and
‘guest,’ so hostis had this twofold signification. Indeed
the word hostis etymologically corresponds to the Gothic
gast(i)s, German Gast, English guest.* And further,
among the Romans Aostis came to signify ‘enemy.’
Thus Cicero says that in the earlier times an enemy,
instead of being called by the more accurate name
' perduellis, was termed hostis; and that formerly hostis
_had the same signification as the word peregrinus in his
Own time.— Equidem etiam illud animadverto, quod,
_qui proprio nomine ‘perduellis’ esset, is ‘hostis’
_yocaretur, lenitate verbi rei tristitiam mitigatam. Hostis
enim apud maiores nostros is dicebatur, quem nunc
_*peregrinum’ dicimus.”* Varro writes to the same
effect. Speaking of the obscurity of many origins of
_ words, and also of the many curious transformations in
"their meanings, he gives as an example Aostis, which, he
_ says, formerly meant a ‘ foreigner’ belonging to another
| nation, and now implies what was then conveyed by the
expression perduellis, an enemy against whom war is
ΟΠ 1Cf. Muirhead, of. cit. p. 105, and note.
᾿ς #Qn its etymology, cf. Mommsen, Das Romische Gastrecht und die
| Rémische Clientel (in Rimische Forschungen, Berlin, 1864-1879), vol. i.
ΡΡ. 326 seg., notes 1-3 ; W. Corssen, Kritische Beitrage zur Lateinischen
_ Formenlehre (Leipzig, 1865), pp. 217 seg.—On the ancient conception,
+see Ihering, of. cit. i. p. 2273; C. Sell, Die Recuperatio der Réimer
1 (Braunschweig, 1837), pp. 2 seg.
SCf. M. Bréal and A. Bailly, Dictionnaire étymologique Jlatin—
Legons des mots (Paris, 1882); O. Schrader, Sprachvergleichung und
| Urgeschichte (Naumburg a. S. 1883) (English translation, Prehistoric
| Antiquities, p. 350).
-* De offic. i. 12.
Amici.
216 THE AMICI
being made.1 Virgil uses the phrase hostilis facies wit
the meaning of the ‘face of a foreigner. Hence,
because at abs time hostis meant ‘stranger,’ and at
another time ‘enemy,’ a good many modern writers,
evincing a disposition to vilify Roman or ancient
practices and conceptions in general, especially when
impatiently contrasted with the beneficent results of
Christian doctrine and civilization, have fallen into the Ἴ
error of imagining that in antiquity ‘foreigner ’ was
necessarily synonymous with ‘enemy,’—a conclisiill
carelessly arrived at, regardless of context, time, and
place. One may just as well reason,—and certainly with
no less justification and logical cogency,—that because
hostis is structurally allied to guest and probably to hospes?
(or, at least, appears to have been so regarded by the
earlier writers), and also because hosts meant an
‘enemy,’ therefore enemies were treated in war on th e
same footing as guests, or that guests were assimilated
to the belligerent enemy. Whatever may be th
favourite notions of 4 priori dogmatists, the Romans did
not of necessity identify aliens with enemies, especially
so at the time of their more systematically developed
constitution. And this will be shown more fully be
when the different classes of peregrins in Rome are
considered. One must guard against confusing aliens,
peregrini, with barbarians, in the sense almost of pirat es :
or marauders, belonging to no definitely organized
State. 4
Amici were distinguished from Aostes much in the
same way as modern international law discriminates”
between States forming part of the family of nations, anc
peoples held to be outside it. The latter have not
1 De ling. Lat. v. 3: “... hostis, nam tum eo verbo dicebant pere="
grinum, qui suis legibus uteretur, nunc dicunt eum, quem tum
dicebant perduellem.” 3
5 According to Servius, certain ancient authors assimilated the wort
hospes to hostis. Ad Aen. ii. 424: “Nonnulli autem juxta vetere
hostem pro hospite dictum accipiunt.... Inde nostri hostes pre i)
hospitibus dixerunt.” |
~The
HOSPITIUM 217
strictly the right to claim the benefits conferred by this
law, just as the Aostes were originally conceived by the
Romans to be outside law,—extrarii. ‘“ Extrarius est
qui extra forum, sacramentum iusque est.”! But in
practice, even in the earlier times, this theoretical
_ severity was scarcely ever applied. And, moreover, the
institutions of hospitium and clientela, in addition to
"many express international conventions, were the means
_ of introducing still greater relaxations, preparing the way
for the notion (even if of a rudimentary character) of the
comity of nations.
As in Greece and other ancient communities, the Hospitium.
_ guest-tie? played an important part in Rome, where it
became more clearly defined from a juridical point of
view. It forms the basis of one of the most ancient, if
not actually the oldest, of international conventions.’
Certain laws of hospitality were, no doubt, common to
all the peoples of Italy,* but there it never assumed the
_ indiscriminate character of the like institution in the
_ Greek heroic age and even in later Greek history.
_ First it took the form of private hospitality, which Development
| later developed into the hospitium publicum. Thus there form isto the
_ was the bond of Aospitium between Scipio Africanus and Public.
Ϊ Syphax, King of the Massaesylians, a tribe of the
- Numidians, as between Hasdrubal the Carthaginian and
Syphax.® There was a similar relationship between
_Eumenes, King of Pergamum, and the Rhodians.
' Private ties of this character were made by the Romans
1 Festus, De verb. signif. s.v. Extrarius.
2On hospitium, see Mommsen, Das Rimische Gastrecht, loc. cit., pp.
~ 319-390 ; s.v. hospitium, in Daremberg-Saglio, op. cit. On the commer-
- cial origin of the institution of hospitality, cf. [hering, Die Gastfreund-
πα im Alterthum (in Deutsche Rundschau, Berlin, June, 1887, pp.
357-397).
ς 80Ε. Β. Mispoulet, Les institutions politiques des Romains, 2 vols.
) (Paris, 1882-83), vol. ii. p. 10.
4 Aelian. Var. hist. iv. 1 ; Liv. i. 1.
5 Liv. xxvii, §4; xxix. 23, 29; Xxx. 13.
Private
hospitality.
Its obligations.
Tessera
Aospitalis.
218 OBLIGATIONS OF HOSPITIUM
with the inhabitants of the most distant towns.! The
privilege of being a patron of a foreign people was
esteemed by the Roman patricians. Thus, Quintus
Fabius Sanga was the patron of the Allobroges, who
were in many ways much indebted to him,—* Q. Fabio —
Sangae, cuius patrocinio civitas plurumum utebatur. ...”2_
Hospitium privatum assured the foreigner, with whom
the relationship existed, the protection of the Roman
patron, a kindly reception, and honourable treatment
generally,—‘ . . . privata hospitia habebant ; ea benigne
comiterque colebant; domusque eorum Romae hos-
pitibus patebant, apud quos ipsis deverti mos esset.”®
It involved a certain obligation on the part of the pro-—
tector to tend him during illness, and even to superintend ~
his obsequies,* it was also his duty to give him advice
and assistance in case of legal proceedings® instituted
by him or against him,—in a word, to look after his”
interests in general. The person of the guest was held
to be sacred, and to put him to death was a crime
classed with parricide.® |
This undertaking was a purely voluntary one, and was
usually recorded on a tablet (zessera),’ of which a copy ora
fragment thereof was retained by each of the parties.®
The customary formulae of hospitium are preserved in”
numerous inscriptions.’ In one of these inscriptions
1 Dion. Hal. viii. 3. 30. 2Sallust, Cazil. 41. 1
81,1ν. xlii, x; οὗ Liv. 1. 58; Plaut. Mil, Ghr. 674: “In bono
hospite atque amico quaestus est quod sumitur....” Ε΄.
4 Corpus inscriptionum Latinarum (1863, etc.), ed. Mommsen Ἅπας
others, vol. ii. 5556.
5 Cic. Divin. in Caecil. 20. 6 Cf. Hor. Carm. ii. 13, Il. 5-8.
7See Daremberg-Saglio, of. cit. vol. iii. pt. i. p. 298, where
illustrations of different forms are shown. 4
8Cf, Plautus, Poen. 958: “Ad eum hospitalem hanc tesseram
mecum fero”; and cf. ll. 1042 seg.—On sesserae generally, see G. Fy
Tomasini, De sesseris hospitalitatis (Amstelodami Frisii, 1670). =
9Cf J. C. von Orelli and G. Henzen, IJnscriptionum Latinarui
selectarum amplissima collectio...., 3 vols. (Turici, 1828-1856), nos.
156, 1079, 3056-9, 3693, 4037; suppl. nos. 6413, 6416; Corpe
inscrip. Lat. vol. ii. no, 2633.
OBLIGATIONS OF HOSPITIUM 219
contained on a brass tablet, the obligation to the posterity
‘of the parties concerned is indicated,—*. . . cum liberis
posterisque || eius . sibi. liberis posterisque suis . tes-
‘seram hospitalem || cum eo fecerunt. Uti se in fidem
|| atque clientelam vel suam || vel posterorum suorum ||
reciperet. Atque ita in hac || re....””?
It is true that the arrangement did not rest entirely under divine
‘on a juridical basis; but it was universally recognized Protect”.
to be under the protection of the gods, especially of
‘Jupiter hospitalis’ ;? and the sanction of religion was
ino less effective in practice than that of the law. A
ideliberate violation of the engagement was deemed to
jsubject the offender to divine retribution, as well as to
jinfamia, a censure involving disqualification as to certain
ΤΠ οἰς and private rights.
The hospitium privatum was usually ἃ reciprocal obligation on
wundertaking, involving rights and duties of mutual PO"
jassistance and protection, whether in peace or in war,®
which devolved upon the sons or other heirs of the
respective parties, as has already been pointed out.
‘Thus Livy refers to ambassadors who arrived from
Hing Perseus (B.c. 171), mainly through the reliance
‘on relationships of private hospitality subsisting between
him and Marcius; which tie of hospitality had existed
‘between their fathers,—‘‘ . . . legati a Perseo rege vene-
runt, privati maxime hospitii fiducia, quod ei paternum
cum Marcio erat.”’*
_ To sever such hereditary bond an express renunciation To sever the
renuntiatio) was necessary,®—a proceeding which was {formal
sometimes resorted to in the case of a dangerous con- necessary.
ict between these obligations and that of patriotism.
“ivy ® gives a striking account of such a renunciation
_ 4No. 1079, ut supra.
βρῇ Virg. Aen. i. 731: “Iuppiter, hospitibus nam te dare iura
untur....”
ων. xxv. 18; xl. 13; Plut. Sy/. 32. 4 Liv. xlii. 38.
5 Dion. Hal. v. 34; Liv. xxv. 18 ; Cic. 71 Verr. ii. 6. 79 ; Sueton.
Galig. 3.
- Sxxv. 18: cf. Cic. Zn Verr. ii. 36. 89.
220 OBLIGATIONS OF HOSPITIUM
on the part of a Campanian. During the war between
Rome and the Campanians (212 B.c.), Titus Quinctius
Crispinus was a ‘guest’ of Badius, a Campania
Badius sent for Crispinus, who thought his host jesired
merely a friendly interview, seeing that their private
bond, as he assumed, would continue even amidst he
disruption of public ties.1 But Badius challenged him
to a combat, to which Crispinus replied that each o
them had enemies enough to display his valour upon
“ον his own part, even if he should meet him in th
field, he would turn aside lest he should pollute hi
right hand with the blood of a host.”* ‘Thereupon
Badius taunted him with cowardice, and stigmatizec
him as an enemy sheltering himself under the title of
guest, and so he made a formal renunciation of the ti
“16 he considered,” he exclaimed, ‘that when publi
treaties were broken, the ties of private relationshy
were not severed with them, then Badius the Campania
openly and in the hearing of both armies renounced hi
tie of hospitality with Titus Quinctius Crispinus, th
Roman. He said that there could exist no fellowshi
or alliance between him and an enemy, whose countt
and tutelary gods, both public and private, he had com
to fight against. If he was a man he would meet him.” ΐ
Crispinus thereupon obtained permission of his genera
met Badius, and defeated him. This contention o
the part of Crispinus that the tie survived even an ou
break of hostilities between their respective States y
LLiv. ibid. : . ratus colloguium amicum ac familiare quae
manente memoria etiam in discidio publicorum foederum priv:
ον
iuris.
ὁ Tbid. <..» 86,, etiamsi in: acie occurrerit, declinaturum, ne
hospitali caede dextram violet. . . .”
8 Tbid. : . Si parum, publicis foederibus ruptis, dirempta sim .
et privata iura esse putet, Badium Campanum T. Quinctio Crispi:
Romano palam, duobus exercitibus audientibus, renuntiare hospitiu
Nihil sibi cum eo consociatum, nihil foederatum, hosti cum hoste
cuius patriam ac penates publicos privatosque oppugnatum vent
Si vir esset, congrederetur.”
| PUBLIC HOSPITALITY 221
by no means a novelty ; for it was even in such serious
oC usually admitted and respected.
_ The hospitium publicum was an extension of the private Public
hy It assured the hospitality of the Roman com- >sPitality:
monwealth either to an individual or to the collective
body of citizens of a foreign State. As to the indi-
vidual, the distinction and privileges were conferred for
special services or good offices towards the Roman Conditions of
ple; as, for example, in the case of Timasitheus δα.
a” B.c.), the chief magistrate of Liparae, who pro-
tected the Roman ambassadors and their offering to
Apollo from attacks of pirates of the Liparenses, in
return for which the Senate decreed that a league of
ihospitality should be formed with him, and presents
τη sent to him.2 And, in this connection, Livy
nnot refrain from adding that Timasitheus was a man
imore like the Romans than his own countrymen,—“. . .
fRomanis vir similior quam suis.” ὃ
_ The honour of public hospes was at times granted
talso by a foreign State to distinguished Roman citizens.
Thus in the third century 3.c., Sparta conferred the
thonour on a Roman, and the inscription recording
‘thi is concession speaks of ξένια τὰ μέγιστα ἐκ τ[ῶν
: “1.
ἢ “With regard to a whole State a like public relation- Such bond with
jship was established, when all its subjects were granted “"* δῖος,
ithe privileges in question, in return for similar rights
sgiven to Romans visiting or residing in the territory of
; that State.
| Of the exact nature of the rights and privileges Privileges of
bacidental to hospitium publicum it is dificult to state dic:
Metails with certainty. The few texts we have which
relate to the subject are far from explicit, and have been
‘interpreted differently by different investigators. Thus,
- 1Val. Max. v. 1. 3.
: _ * Liv. v. 28: “Hospitium cum eo senatus consulto est factum
donaque publice data.”—Cf, Plut. Camii/. 8.
᾿ 8 Tbid. 4 Corp. inscrip. Graec, i. no. 1331.
Amicitia and
hospitium,
222 AMICITIA AND HOSPITIUM :
in most of the citations given by Mommsen? the real
implication, as Willems has pointed out? following
Walter,* concerns the ius /egatorum rather than thi
hospitium publicum; and the two institutions, though
involving certain common elements, are by no mean
identical Mommsen particularly lays stress on the
senatusconsultum de Asclepiade Polystrato* (78 B. ον
but this senatusconsult relates to provincials,” and
confers on them privileges, such as the immunitas, which
cannot, from the very nature of the conditions,
extended to subjects of autonomous and independent
States.° This senatusconsult appears to indicate
there existed a certain specific formula which precisely
defined the privileges contained in the hospitinum; but
there is no extant text giving such formula. :
There was a certain resemblance, and there was a
important difference, between hospitium and amicitia. Bu
the word amicitia, or rather its content, was somewh
of an elastic character. Sometimes the term was appliec
to the closest federal relationships, sometimes it indi
cated more or less vague and undefined association:
suggesting good feeling and comity rather than political
or legal adjustments. Thus, it was alike applied to th
relationship existing between those cities which cot
stituted the military symmachy in Italy, and to tha
1 Das sy Gastrecht, loc. cit. p. 344, notes 35, 36, 373 Pp. 34
note 39; Ρ. 346.—Cf. F. Walter, Geschichte des rimischen Rech
2 Thle. (Bonn, 1860-1) ; § 83, note 31. 4
2 Le droit public romain, p. 392. a:
8 Op. cit. § 83, note 31, p. 118, where he thus writes, and, to a lar
extent, justifiably, of Mommsen’s conclusions : “ Allein alle von rt
angefthrten Beweisstellen, mit Ausnahme des SC, de Asclepiade, reden
von Legaten und fremden Kénigen und das SC. redet von ein
besonders begiinstigten Falle. Ein Schluss auf die sewohaliel ᾿
hospites publici ist unzulassig; dawider spricht schon deren gros
Zahl.” *
4 Corp. inscrip. Lat. i. pp. 110-112. =
5 Cf, Walter, idid. in the preceding note.
δ See Orelli and Henzen, Jmscrip. Lat. no. 784. =
CLIENTELA AND HOSPITIUM 223
with the distant Carthaginians,’ with whom there was
naturally much less real kinship. As a rule, amici were
considered to be under the public guardianship, in pub-
ica tutela, of the State within whose territory they were
_ temporarily resident. Hospitium, whether publicum or
| privatum, was generally hereditary (as has already been
mentioned), and was to a great extent of the nature
of patronage,—the paterfamilias being bound by the
sanctions of /as,’ if not of a positive /ex, to treat the
_hospes on terms of equality, whereas the client (c/iens)
occupied a more subordinate position.
᾿ς Chientela* implied rather a unilateral relationship. ciientela—
The ¢/iens was in a condition of dependence and tutela πο αν
which subjected him to the authority of his patron
“ad quem se applicaverit”; so that his position bore
a certain analogy to that of the βίης familias, or to
the relationship of ‘ pupil’ to ‘tutor.’ On the other
hand, Aospitium was for the most part of a bilateral
mature. Again, c/ientela usually implied abandonment
by a client of his former citizenship, and establishment
in his patron’s country where, particularly in his rela-
tionships with his patron, certain elements of citizenship
/were conceded to him ; whereas hospitium appertained
to a foreigner who retained his original citizenship.
' The client gave his patron personal service ; he accom-
Ὶ hee him to war ;* he contributed to the dowry of his
daughters, to the ransom of any members of his family
from captivity, to the discharge of any fines that might
δε inflicted on him, and to the expenses in magistracies
1 Polyb. iii. 22. 2 On fas and lex, see supra, pp. 86 seg.
+ %On clientela, see Koellner, De clientela (Gédttingen, 1831); J.
Roulez, Considérations sur la condition politique des clients dans [ ancienne
\Rome (in Bulletins de 1’ Académie Royale de Bruxelles, t. vi. pt. i.
Pp- 304 seg.); Mommsen, Das Rom. Gastrecht ... loc. cit. ; M. Voigt,
[δεν Clientel und Libertinitat (in Koniglich sachsischen Gesellschaft der
Wissenschaften, Berlin, 1878); Ihering, of. cit. vol. i. pp. 236-245;
G, ea in Daremberg-Saglio, s.v. cliens (and see bibliography
_ *Dion. Hal. vi. 47; vii. 19 ; ix. 153; x. 43.
Sacred
sanction,
Patronage of
entire peoples,
Allegation as
to abuse.
Se =
224 EXTENSION OF HOSPITIUM
or other honours conferred on him. Mutual obliga
tions of fidelity existed between them, so that neither
could bring an action or bear testimony against the
other.” The client could not strictly take part in the
city’s religion, but he was permitted to share, in a
measure, the sacra privata of his patronus. In return,
the patron was obliged to assist and represent him in
legal proceedings, and generally to aid him in all cir-
cumstances where his assistance was desirable.’
The due observance of these functions was sanctioned
by religion, by fas. Violation of faith entailed the
imprecation of sacratio capitis, which put one practically
in the position of being guilty of treason (perduellio),—
though this applied rather to the crime committed by the
cliens against his patronus. ‘The XII. Tables enforced
the good faith of the patron towards the client, and hac
specifically said as to its violation: “ Patronus si clienti
fraudem fecerit, sacer esto.” * :
In time—at the end of the Republic and under the
earlier empire—this private institution assumed a wider
form, so that entire cities sought similar protection of
influential or distinguished Romans.® Thus, Sicib
obtained the patronage of the Marcelli and of Cicero,
Messina and the Lacedaemonians of the Claudii; the
Fabii became the patrons of the Allobroges; the Gracch i
of Spanish peoples ; among Cato’s clients were thi
Cappadocians and the inhabitants of Cyprus.®
There are, no doubt, shortcomings and abuses im
every PCB Re regulative system, no matter how theo-
1 Dion. Hal. ii. 10; Liv. v. 323 xxxvili. 60.
2Plut. Mar. 5 ; ἈΝ Gell. ν 133 xx. I. a
8 Dion. Hal. ii, 10: . δίκας θ᾽ ὑπὲρ τῶν πελατῶν ἀδικου ev
λαγχάνειν, εἴ τις βλάπτοιτο περὶ τὰ συμβόλαια, καὶ τοῖς ἐγκαλοῦσιν
ὑπέχειν.---Οἔ Cic. De orat. iii. 33; Horat. Epist. ii. 1. 1042 “We
clienti promere iura. ; Plut. Cato. 23; Plaut. Menaech. 475.
4Cf. Serv. 4d Aen. ἐπ 605 ; Festus, 5.0. sacer.
5 Tacit. Ann, ill. 55.
6 Cf, W. A. Becker, GadJus (Berlin, 1883), Sc. 1, Excursus 4.
+
¥
th
Y
HOSPITIUM PUBLICUM 225
shear ΟΥΑΙ ῊῊΣ
‘retically sound and well-intentioned it may be ;—but
‘are modern systems free from abuses and deficiencies ?
‘There were admittedly in Rome some cases of hardship
in the patronage of individuals as of cities; but we are
by no means warranted, on this account, in going to
‘the extent of Laurent’s assertion: ‘Le patronage des
‘clients fut trop souvent, comme la suzeraineté féodale,
“une oppression mal déguis¢e . . .,”"—a statement which
he does not prove, and in which the expression “ trop
souvent” may be taken to represent widely different
conditions amongst different people according to their
attitude.
ὧδ ΦΑς
ὧδ A OT Be ὦ
Now to return to the question of public hospitality,
as distinguished from this relationship ; of clientela. Hos-
: pitium publicum, as Mommsen says,? assured to the
individual ospes, or to the subjects in general of the
foreign community with which the tie was established,
“on any occasion when they might take up their resi-
dence in Rome, in the first place /ocus, aedes liberae,®
t a gratuitous lodging ; secondly, J/autia,* strictly the
“various utensils necessary for the bath, but ordinarily
Ἰώ: also those used in the kitchen ; ; and thirdly,
| 1 Hist. du droit des gens, vol iii. p. 78.
_ 2 Das rim. Gastrecht, loc. cit. pp. 343-4.
See Liv, Xxx. 17; xxxv. 23; xlii. 6.—Cf. Livocxxx. 215; xxxill. 24 3
a Val. Max. v. 1, 1a, E.—Sometimes a private house was taken, Liv.
aly. 44.
__*In Greek, rapox7),—Polyb. xxii. 1; xxv. 65 xxxii. 19; cf Cic.
~ Ad Att, xiii. 2. 2,—Charisius describes it as supe//ex (furniture), and
‘the glossators speak of ἐνδομενία (Mommsen’s note to pp. 343-4 of
'Das rim. Gastrecht, loc. cit.).—The word Jautia appears originally to
thave been dautia ; ‘cf. F estus, Ep. Ρ. 68: “ Dautia quae lautia dicimus
idantur legatis hospitii gratia” ; explained by a glossator as ἐνδομενίαι,
"σκεύη τὰ κατὰ τὴν οἰκίαν, that is, certain household furniture which
ta traveller could not carry about with him, e.g. ecti (beds), as men-
‘tioned by Cicero (4d Ait. vi. 16.3). Mommsen insists that the relation
swith Jeutus, lavare is inadmissible, in view of the alleged ancient
“orm dautia, which, he thinks, is perhaps cognate with daps, δαπάνη
outgoings, expenditure). —But all this yet remains mere conjecture.
(ΟΣ Mommsen, Rim. Staatsrecht, vol. iii. pt. ii. p. 1152, note 2.)
. P
pa Aste
pub licum—
its incidents
and obliga-
tions.
Locus.
Lautia,
Munera,
Public
hospitality and
international
conventions.
Objections to
Mommsen’s
opinion,
226 HOSPITIUM AND TREATIES
munera, gifts of gold or silver ware (but held usually
only whilst the residence continued), also clothing, arms,
horses, etc. ‘‘ Das offentliche Gastrecht begriindet einen
Anspruch auf Gastverpflegung sowohl ftir die befreun-
deten Individuen selbst wie flr die als deren Vertreter,
oder als Vertreter der befreundeten Gemeinde abge-
sandten Boten. Dies schliesst eine dreifache Leistung
in sich, deren Beschaffung in Rom zunachst den stad-
tischen Quastoren obliegt ; freies Quartier, wozu in der
Regel der Gemeindehof (villa publica) auf dem Mars-
feld benutzt ward; das sogenannte Badegerath (lautia),
das heisst alle Ausrtistung, welche der Gast braucht um
den Badekessel zu erwarmen und sich die Speisen
zu bereiten; endlich eine Gastgabe, nicht ein freies
Geschenk, sondern wie schon der Name sagt, eine
Leistung (munus), durchgangig in Gold- oder Silber-
gerath gewahrt....’”?
This public hospitality formed the basis of the
provisions in treaties generally, and represented the
minimum of mutual rights and obligations laid down
in an international compact. According to the con-
clusion of the eminent writer just quoted, this relation-
ship was not essentially distinguishable from that of
amicitia. But to his conclusion there are several
objections, which are well urged by Willems.’ In the
first place the sources draw a certain distinction betwee
them ; for example, in the Digest, where postliminj
in time of peace, and enemy character are considered,
the amicitia, hospitium, and foedus are specifically
enumerated, not as equivalents, but as denoting the
different degrees of alliance: “In pace quoque post
liminium datum est: nam si cum gente aliqua neque
amicitiam neque hospitium neque foedus amicitiae causa
factum habemus, hi hostes quidem non sunt, quod
1 Hence the word municeps which, as is suggested by Rudorff, is
derived from munus capere, in the sense of receiving presents Dy
individuals in the capacity of Aospites. ἢ
2 Das rim. Gastrecht... loc. cit. pp. 34.3-4.
3 Le droit pub. rom. p. 391, note.
POSITION OF ALIENS IN ROME 227
“autem ex nostro ad eos pervenit, illorum fit, et liber
homo noster ab eis captus servus fit et eorum ; idemque
est, si ab illis ad nos aliquid perveniat.”’ Secondly,
the historical examples of hospitium publicum are rare,
especially between Rome and a foreign State.? Willems
“mentions, as an additional argument, an example of
_ public hospitality between Rome and the Aedui of Gaul,
of which relationship Caesar says: ‘ Aeduos fratres
consanguineosque saepe numero a senatu appellatos,”’ ®
and Tacitus: ‘‘ Soli Gallorum fraternitatis nomen cum
_ populo Romano usurpant.”* But it is doubtful whether
his inference can be drawn from this particular case.
More probably the expressions quoted in its support
indicate a patronizing attitude on the part of the
Romans towards the barbarians; and this would be
equally applicable in the case of a tie of amicitia.
Thirdly, the hospitium publicum was not necessarily a
bilateral obligation, but was frequently a privilege
granted as a reward by the Roman people to a foreign
subject or to an entire community. If it were always
_ of a reciprocal character, are we to maintain that such
relationships existed between the whole Roman people
and a single foreign individual? ‘* Comprend-on, sans
cela, un hospitium publicum entre tout le peuple romain
et un seul étranger?”° Lastly, it is hardly possible to
admit that all the amici and socit of Rome enjoyed the
full rights and privileges of hospitium.
__ A later chapter will consider further the relationships
|between Rome and other States as established and regu-
lated by treaties and conventions.
| In the consideration of the position of foreigners ° in Position of
/Rome, the different periods of her history must be care- “"s'" Som®
1! Dig. xiix. 15 (de captivis et de postliminio et redemptis ab
hostibus), 5. 2.
* Liv. v. 28 and 50. 8 De bell. Gall. i. 33.
4 Ann. Xi. 25. 5 Droit pub. rom. p. 392, note.
- .®On the development of the conception of peregrinus, cf. Puchta,
“Cursus der Institutionen, vol, ii. p. 105; Madvig, of. cit. vol. i.
228 POSITION OF ALIENS IN ROME
fully distinguished. In her earlier times, Roman law
was marked by a spirit of comparative exclusiveness.
Juridical capacity of an individual was recognized in
ancient legislations, only in direct relation to the duly
constituted State of which he was a subject. Hostis and
peregrinus were then closely correlated terms, if not
almost synonymous, for all practical purposes. With the
development of Rome, there were gradual and continual
relaxations of the early stringent exclusiveness. In this
respect Rome was much more liberal than Greece ; and
she borrowed from the Greeks various institutions,’
when recognized to be advantageous to the community
and to the State policy. Polybius, discussing the army
of the Romans, its constitution, arms, etc., says they
copied and introduced innovations whenever they con-
sidered them to be beneficial in any way. “For no
nation,” says he, ‘‘ has ever surpassed them in readiness
to adopt new fashions from other people, and to imitate
what they see is better in others than themselves,’ —
ἀγαθοὶ yap εἰ καὶ τίνες ἕτεροι μεταλαβεῖν ἔθη, καὶ ζηλῶσαι TO
βελτιον καὶ ἱῬωμαῖοι.Σ -Rome readily assimilated con=
quered peoples, and with free independent States she
entered into various kinds of relationships. Practical
necessity prevailed over the letter of the law, as
well as over inveterate tradition, and facilitated the
recognition of the rights of peregrini. The early
notion of peregrinus ultimately disappeared ; and the
denotation of the name became modified so as to
harmonize the better with a broader system of
jurisprudence, and with the conception of the juridical
personality of foreign sovereign communities. ε
find the rise of political and juridical, or quasi-juridical,
institutions like clientela, amicitia, hospitium, alliances
of different kinds, treaties on a basis of equality with
their usual provisions for ensuring a reciprocal legal
pp. 58 seg.; S. Gianzana, Lo straniero nel diritto civile italiano (Tori
1884), vol. i. pp. 68-86: “La condizione giuridica dello straniero
presso i Romani”; Voigt, Das ius naturale ...vols. i, and 11, passim. —
1Sall. (σή, 51. 2 vi, 25.
᾿ POSITION OF ALIENS IN ROME 229
I ape and for the enjoyment by the contracting
Pr. of certain civil rights in each other’s country.
The municipal law was more and more extended for Modification
ΤᾺ benefit of friendly aliens, in the first place by Bieta
i. “conceding recuperatio, connubium and commercium, then
| 44 granting the ius mexi mancipiique, until we get
the evolution of the elaborate body of the law
of nations, the ius gentium.! We find distinct germs
Ι οἵ the profoundly important conception of a comitas
gentium. There are to be found numerous examples
of conventions securing an interchange of the rights
of private law, as in the case of the ἰσοπολιτεία "
of the Hellenic peoples, but resting more firmly than
did the Greek isopolity on specific legal dispositions.
‘There are to be found provisions regulating the com-
_petence of the tribunals, which is usually made to depend,
so far as contractual transactions are concerned, on the
Tex loci contractus. Thus, in the foedus Cassianum (493
Β.0.), a treaty stipulating perpetual peace between the
- Romans and the Latin cities, there was a provision that
- Suits arising out of private contracts should be deter-
_ mined by the Courts of the place where the engagement
: _ concluded : τῶν τε ἰδιωτικῶν συμβολαίων αἱ κρίσεις ἐν
: ἡμέραις γιγνέσθωσαν δέκα, παρ᾽ οἷς ἂν γένηται τὸ συμβόλαιον.
Sree Mem acm csc Ae ee ey = ".---΄ a
DA AP ok i BA Be ee eee
ada be
b Le ShTise e
ΤΟΙ Voigt, Das ius naturale... vol. ii. §§ 5, 13 seg. §§ 65 504.
- 2See supra, pp. 141 “6.
_ Dion. Hal. vi. 95.—For the full treaty as reported by Dionysius,
- see infra, the latter part of chap, xvi.
Classes of
aliens.
The
barbarians.
CHAPTER X
ROME AND FOREIGNERS.—DIFFERENT CLASSES, AND
THEIR JURIDICAL POSITION
4
As to the rights allowed to peregrins and those refused
to them, it is important to distinguish between the three
classes of aliens,—‘ barbarians’, ordinary peregrins, a d
Latin peregrins.
The barbarians! (frequently referred to as alienigenil
were conceived to be those people inhabiting territories
distant from the Roman world, taking no cognizance of
its laws, living in independence of Rome, and having
no regular relationships with her. They were usually
regarded as not living under a duly organized political
constitution, and consequently as being, in many respects,
outside the family of nations. At first the term ‘bar
barian’ was applied by the Romans, as by the Gre
to persons speaking a foreign language, then to auch
were outside the limits of Graeco-Roman civilizatill ne
Much later, under the Empire, a distinction was drawn
between the gentes exterae non foederatae, and peregrini Ὁ
provinciales. ‘They were not admitted on Roman terri
tory, except by an extraordinary concession granted bu
rarely, and only in individual cases ; and, occasionally
by special compacts some of them were prohibited
settling in certain districts, even when these were beyond”
om
ry
1Qn the condition of the barbarians, especially those residing within
the territory of the later Roman Empire, cf. E. Léotard, Essai sur.
condition des barbares établis dans Tempire romain au quatrieme
(Paris, 1873).
| THE BARBARIANS 231
1)
ie
the bounds of the Roman Empire.! Large restrictions
were, under the later emperors, placed on the com-
ΟΕ relationships of Romans with the barbarians.’
In theory, Roman jurisprudence granted them no rights
1 whatever ; they were even held to be incapable of
enjoying the provisions of the ius gentium. They existed
only to be subjugated. Their property, like that of
| ‘regular hostes, was considered to be res nullius, which
anyone might acquire by simple occupation. When
conquered, they might be reduced to slavery.* Their
ees were less protected than those of slaves, and
: were not res religiosa ; hence they could be violated with
- impunity, since the ‘ barbarians” were—at least, theoreti-
cally speaking—in the eyes of the Romans in the position
of enemies.’ In 365 a.p., a constitution was issued by
the Emperors Valens and ‘Valentinian to the effect that
_ marriage between Romans and barbarians was a capital
offence." Indeed, as Ortolan expressed it, barbarians
_ were in theory regarded by the Romans as existing out-
“side civilization and geography,— “hors de la civilisation
εἴ de la géographie.” In practice, however, this rigid
attitude was somewhat modified ; in most cases we find
this seemingly extreme rigour largely mitigated. Peace-
ful association between them and Romans was by no
-means uncommon. Under Marcus Aurelius, they were
even admitted into the Roman army as auxiliary forces ;
- 1 Dion Cassius, Ixxi, 11, 15, 16, 19; Ixii, 13.
- *Cod. Just, iv. 40. 23 iv. 41. 1 and 2; iv. 63. 2.
_ * Dig. xlix. 15 (de captiv. et de postlim.), 5. 2.
+ *Ibid.: “... et liber homo noster ab eis captus servus fit et
) €orum... .”
Dig. - xi. 7 (de religiosis et sumptib. fun.), 2. pr.: “Locum in
: quo servus sepultus est religiosum esse Aristo ait.”
Ξ ° Dig. xlvii. 12 (de sepulchro violato), 4,—where Paulus says that
-mO action would lie against anyone who removed stones from
/€nemies’ tombs: “Sepulchra hostium religiosa nobis non sunt :
- ideoque lapides inde sublatos in quemlibet usum convertere pos-
/ sumus ; non sepulchri violati actio competit.’
1 Cod, Theods iii, 14. τ.
Dediticii.
232 THE DEDITICII
᾿
3
under Claudius, the successor of Gallienus, we find them
in the legions ; and under Constantine actually in the
imperial body-guard. |
;
Almost on an equality with the condition of the bar-
barians was frequently that of the dediticii People
who were conquered and reduced to this condition were
necessarily regarded as having been divested of all their
former rights and privileges, and as enjoying no politi-
cal or civil capacity whatever beyond what the eat
were pleased to concede to them.” They were obliged
to surrender to their conquerors themselves, their arms,
their cities, their territory, their temples, and their
property—all things human and divine—“...urbem
agros, aquam, terminos, .delubra, utensilia, divinz
humanaque omnia.’”’* But in their case also, as in that
of the barbarians, the severe theory of the law was from
time to time considerably relaxed. In the development
of legal institutions in all countries and at all times we
constantly find the strict letter of the law giving way tc
broader conceptions and more accommodating practice
Sometimes the Roman conquerors allowed their dediucn
a certain measure of autonomy, leaving them all Οἱ
part of their former laws,—hence designated the 7,
dediticiorum ;* and on some occasions even granted then
a ius privatum, as, for example, in the case of Capua.”
It is to be noted that the term dediticii denotes als
the lowest class of freedmen, which had been establishec
by the /ex Aelia Sentia (4 a.D.),—“ pessima libertas eorun
et qui dediticiorum numero sunt.”° Their position
was assimilated to that of slaves. They differed fron
ordinary peregrins, inasmuch as they did not belong ἔ
any city, whose laws they might otherwise be capable οἵ
1Cf. Voigt, Das jus naturale... vol. ii. pp. 255-302 ; pp. 884-911
Karlowa, op. cit. pp. 282 seg. 3 pp. 292 seg.; and see infra, chap. x3 (γον.
as to the Roman practices in war with regard to the peregrini dedititth,
2 Gaius, i. 14. e |
8 Liv. 1. 385 iv. 303; vi. 85 vill, 15 xxvili. 345 xxxvil. 455 &
41; Caes. Bell, Gall, i. 27 3 ii. 32 ; Polyb. xx. 9. 10; xxvi. 2.
4 Liv. xxxiil. 5, 9. 5 Liv. ix, 20. 6 Gaius, i, 26,
THE PEREGRINI 233
enjoying.’ They could never acquire Roman citizen-
ship, or even the rights of latinity—ius /atinitatis.
As to the peregrins,” it is important to recollect that Peregrini.
the term peregrini, as used by the Roman jurists,
includes various classes of individuals: (1) Prior to
-Caracalla’s constitution, the inhabitants of most of the
Roman provinces ; (2) the subjects of foreign States
existing in friendly relationships with Rome; (3) Romans
who had lost the civitas by capitis deminutio minor ;* (4)
- freedmen who were dediticiorum numero.
_ Ordinary peregrins (comprising mainly those of the Ordinary
- second class above) were, apart from special concessions "8"
᾿ by convention or otherwise, and apart from subsequent
- extensions, also deemed to be outside the sphere of the
Ἷ Roman civil jurisprudence. The ius civile was regarded Rights
ὲ as a system of law reserved for citizens alone. _Its politi- then.
' cal rights, such as the ius suffragii, the right of voting in
_ the popular assemblies, and the ius honorum, the capacity
to occupy the praetorship, the consulship, and other
Roman magistracies, were strictly denied to peregrins,
as were also the most important private rights. Thus,
Ϊ 7 were debarred from the ius connubii; they were
' incapable of iustae nuptiae on Roman territory unless
“Specific grants to that effect were formally made. As
Ξ Ulpian says: “ Connubium habent cives Romani cum
ivibus Romanis; cum Latinis autem et peregrinis ita
i concessum est.”5 Absence of connubium naturally
- }Ulpian, Regulae, xx. 14.
᾿ς #CE. Voigt, op. cit. vol. ii. pp. 8 seg.; Voigt, XII. Tafeln, vol. i.
> $24, 28; Van Wetter: “ La condition civile des étrangers d’aprés
[δὲ droit romain” (appendix to Laurent’s Droit civil international
᾿ (Brussels, 1880), vol. 1. pp. 667 seg.); G. Humbert, Mémoire sur
οἰ condition des pérégrins chez les Romains (in Recueil de 1 Académie de
_ Wgislation de Toulouse, 1870).
On the deprivation of civic rights and its varying degrees, see
» Dig. iv. 5. 11; Just. mst. i. 163 Οἷς. De Orat. i. 40; Brut. 36;
| Ferr. ii. 2. 40 ; Top. 4.
᾿ς *Ulpian, Regulae, xx. 14; Gaius, i. 13.
_ ® Reg.v. 4; cf. Gaius, i. 57.—As to such formal concessions, see
) the Privilegia militum veteranorumgue de civitate et connubio in Corp.
withheld from
234 THE PEREGRINI
implied the absence of the corollary rights of manus
(marital power), patria potestas (power over the fiiius-
familias), adoption, agnation, inheritance ab iniestato.
Similarly, peregrins were debarred from the ius com-
mercii, and its corollaries,—dominium en iure Quiritium
(Quiritary ownership), and certain modes of acquiring
property, such as mancipatio (imaginary alienation by
means of the scale and ingot), cessio in iure (surrender
before a magistrate), usucapio, adiudicatio in one of the
actions communi dividundo and familiae erciscundae (claim-
ing partial ownership and partial succession), and | finium
regundorum. If a peregrin was granted commercium, he
thus obtained an express right to enter into bilatere
engagements (mancipatio, mexum, usucapio), to acquire,
hold, and transfer property of all kinds in accordance
with the provisions of the civil law ; and it included
also the sestamenti factio, the capacity to institute or bt
instituted an heir. But it is important to remember
that absence of commercium did not necessarily mea
absence of daily intercourse, commercial or otherwi a
with foreigners, for it proceeded in conformity with
the regulations established by the praetor peregrinus.
The incapacity as to Quiritary ownership, mentioned
above, did not apply, however, to the case of provincia
land, for which purpose the possession of the ius ttalicum
sufficed ;—Italic soil being acquirable and transferable
by mancipation and usucapion. Finally, tutelage ¢
minors was denied to them, as well as the different
modes of emantipenny slaves, the use of the form ‘
Spondesne spondeo® in entering into engagements, the
inscrip. Lat. vol. ili. 843-919; L. Renier, Recueil de diplimes milt
taires (Paris, 1876), passim; and cf. .Piccioni, Des comcessions a
connubium (Paris, 1891). 3
1 As to the ius italicum, cf. Savigny, Vermischte Schriften, 5 vols, (Berlir
1849, etc.) vol. i. pp. 29-80; E. Beaudouin, Etude sur le jus itahem
(in Nouvelle revue historique du droit frangais et étranger, t. V. Pp. ate
pp: 592 “44.): R. Beaudant, Le jus italicum (Paris, 1889) ; Ἦ
quardt, Rimische Staatsverwaltung (Leipzig, 1881), vol. i. pp. 89 “6
2 Gaius, iii. 93-4.
IUS GENTIUM AND PEREGRIN LAW 235
‘of nomina transcriptitia (transcriptive entries of debit or
‘credit in a journal), at least of the form @ persona in
ersonam (that 1 κ᾽ the substitution or exchange of a debt
ie by C to B, in discharge of a debt owed by B
4)"
1
But with the development of the ius gentium, the POSi- Rights allowed
tion of peregrins became ameliorated. The praetorian (erigrins by
ee as the greatest of Roman jurisconsults, the su
apinian, said, arose out of the necessity to assist, 3
“supplement, or rectify the civil law, in view of public
utility: ‘‘Ius praetorium est quod praetores intro-
_duxerunt, adiuvandi vel supplendi, vel corrigendi iuris
civilis gratia, propter utilitatem publicam.”* (There is
_no need to trace here the rise and development of the
praetor’s jurisdiction and legislation, which is a subject
‘treated more appropriately in works on Roman private
law.) The ius praetorium was “ docile aux enseigne-
/ments de la philosophie”;* and through its instrumen-
\tality an increasing number of principles continued to be
embodied in the ius gentium, recognizing, on the basis of
jnatural equity and public utility, various rights in alien
subjects, and even in those who were without any certa
civitas. And, further, where such new provisions were
\found in practice inadequate for the determination of
ithe rights and duties of peregrins, and for the settle-
iment of conflicts that might arise amongst them, an
japplication of their law of origin (/ex peregrinorum) was
"ποῖ infrequently made, and the principle involved
jtherein was, if not detrimental to public interest,
jmaterialized in the ius gentium. Thus the law relating Nature of
ito peregrins consists, as Girard has pointed out, partly °* peer
of certain Roman civil provisions expressly extended
Ἰ 714. iii. 130.
2Cf. Weiss, Droit inter. privé, vol. ii. ΡΡ. 26 seg.—On the general
‘imapplicability of Roman laws to peregrins, cf. M. Wlassak, Rimische
“Processgesetze (Leipzig, 1888-91), part ii. pp. 141- -182.
_ *Dig. i. 1 (de iust. et iure), 7. 1.
| *Weiss, op. cit. vol. ii. p. 27.
Marriage—
matrimoniunt
non tustum.
Acquisition of
property.
_ possession), occupatio (of things which previously had ἢ
|
236 JUS GENTIUM AND PEREGRIN LAW .
4
to them (as where a decree of the senate rendered
applicable to them the rule in the /ex Aelia Sentiag
making void such manumissions as were effected i
fraud of creditors'), partly of their own national lawsl 3
and partly of the law of nations. “ Leur droit est
constitué, en dehors des rares lois romaines dont
Papplication leur a été expressément étendue.. νὰ
leurs lois nationales et par le droit des gens. Les
pérégrins vivent sous l’empire de leurs lois nationales,
dans la mesure ou I’exercice leur en a été laissé aprés leu
soumission, notamment au moment de l’organisation de
la province.” ? ἈΝ
Peregrins could contract marriage—taking the forn
of matrimonium non iustum, non legitimum—to whict
many provisions of the civil law were applicable. The
were capable of adoption if carried out in accordance
with the formalities of their law of origin ; and, under
the same conditions, they were capable of “μία
(guardianship), and of curatela* (curatorship of a mine
after release from wardship). They were allowe
dominica potestas with regard to their slaves, and ἢ
corollary rights, viz. acquisition per servum, the (
of life and death (éus vitae necisque), and the right ¢
manumission by their respective national laws.® The
were permitted to acquire property by the vario
modes of the ius gentium, e.g. by traditio (delivery ¢
owner); as a substitute for the civil usucapio, t
1 Gaius, i. 47: “... lege aelia sentia cautum sit, ut creditor
fraudandorum causa manumissi liberi non fiant, hoc etiam ad pet
grinos pertinere (senatus ita censuit ex auctoritate Hadriani. . . 7
ΖΡ, F. Girard, Manuel élémentaire de droit romain (Paris, 19
Bo EEO.
3 Gaius, i. 189, 193.—Cf. Humbert, Mémoire sur la condition a
pérégrins chez les Romains, loc. cit. p. 19.
4 Gaius, 1. 197, 198. a
’See Corp. inscrip. Graec. vol. ii. p. 1005, no. 2114bb;
Epist. x. 43 and cf. Dosithaeus, Disputatio forensis de manumissi ri
(in P. F. Girard, Textes de droit romain, § 12).
i
a
WS GENTIUM AND PEREGRIN LAW 237
| praescriptio longi temporis (possession for ten years during
the presence of the previous owner, and for twenty
_ years during his absence) was organized in their favour ;
and, in like manner, with regard to fideicommissa Trusts,
(trusts ; dispositions in the form of entreaty, precativo
modo).
On provincial territory, peregrins were able to Rights ot
exercise the rights of personal or predial servitude, Pica
_ emphyteusis (grant of land in perpetuity, or for a term ‘ritory.
of years, for an annual rent), superficies (right to per-
/petual enjoyment of anything built upon land, on
payment of an annual rent), hypotheca’ (mortgage).
_ They were admitted to successions a intestato in Rome,
“when proceeding conformably to the laws of their
nation. The majority of the contracts of Roman
‘legislation, appertaining to the ius gentium, were open
to them, e.g. sale, hire, partnership, mandate, deposit,
-loan. “The law of nations,” we read in the Institutes
of Justinian, “is the source of almost all contracts, such
as sale, hire, partnership, deposit, loan for consumption
“and very many others.”? They could enter into con-
tracts verbis, with the exception of the formula spondesne
| Spondeo ; and hence they were capable of fidepromissio
\(suretyship by stipulation, attachable only to a verbal
\contract), and fideiussio (suretyship by stipulation, attach-
jable to any contract) ; and also of movatio (transvestitive
\facts), and acceptilatio (release of stipulation). As regards
\the contracts /itteris, they could enter into chirographa and
syngraphae*® (detached written affirmations and acknow-
JIedgments of debts), and probably stranscriptio a re in
)personam (“...when the sum which you owe me ona
‘contract of sale, or letting, or partnership is debited to
to in my journal as if you had received it as a loan’’*).
hus Gaius says: ‘Whether transcriptive debits
1 Gaius, ii. 31 ; cf. Dig. xlviii. 22 (de interd. et releg.), 15, pr.
i. 2: “Ex hoc iure gentium et omnes paene contractus introducti
‘sunt, ut emptio venditio, locatio conductio, societas, depositum,
‘mutuum et alii innumerabiles.”
8 Gaius, iii. 134. 4 Gaius, iii. 129.
Extinction of
obligations and
zus gentium.
Rights of
bringing
actions,
awe
238 JUS GENTIUM AND PEREGRIN LAW |
| j
constitute a binding obligation in the case of aliens hz
been doubted with some reason, for this contract is an
institution of civil law, as Nerva held. Sabinus ane
Cassius, however, held that transcription from thing to
person forms a contract binding on aliens, though not
transcription from person to person.”* They were
allowed the cautio damni infect? (giving security against
apprehended damage), and also to enter into pacts and
innominate contracts, sanctioned by the action praescripti,
verbis (an equitable action to recover not merely the
value conveyed, but also compensation for the loss
suffered through the defendant’s default of specific
performance). 3
Respecting the extinction of obligations, the various
modes thereof were likewise related to the ius gentium
so that apart from movatio and acceptilatio, the peregrins
could resort to actual performance (so/utio), to mutuu
dissensus, to compensation, to prescription, according to
the circumstances of the particular case. The imaginary}
payment per aes et libram was never allowed to them.’ ©
As to the right of bringing actions, the institution Ὁ
recuperatio* was at first organized for the benefit of
peregrins. But when this had disappeared (as it ha
done by the time of Gaius), the praetorian jurisprudence
introduced modified actions (actiones utiles, or ficticiae)
which, by a legal fiction considering the peregrins fa
the time being as Roman citizens, enabled them ἔ
bring penal actions of the civil law, such as the actio fur
(for theft), the actio iniuriarum, and actio de lege Aquila
liii. 133: ** Transscripticiis vero nominibus an obligentur per
grini, merito quaeritur, quia quodammodo iuris civilis est talis
obligatio ; quod Nervae placuit. Sabino autem et Cassio visum €
si a re in personam fiat nomen transscripticium, etiam peregrin
obligari ; si vero a persona in personam, non obligari.” —Cf. E. Chéno
Etudes sur les controverses entre Proculéiens et Sabiniens (Paris, 1881),
no. 19. ΕἸ
5 ΟΕ, Corp. inscrip. Lat. i. p. 116 ; and see Voigt, Das jus nat. vol.
PP. 732 seq. a
8 Gaius, 111. 173, 174. * See infra, chap. xvii., latter part.”
ξεν.
-
a
ἢ
IUS GENTIUM AND PEREGRIN LAW 239
_ is feigned to be a Roman citizen if he sue or be sued in
an action which may justly be extended toaliens.... Ifan
alien sue for theft or sue or be sued under the Aquilian
law for damage to property, he is feigned to be a
_ Roman citizen.” ἢ
Van Wetter, and certain others, that the concession of
' resort to the /egis actiones (statute-process), by means of
' the actiones ficticiae, or the intervention of a procurator.
- But there are certain difficulties involved in this view.
Tn opposition it may be urged, as Muirhead has argued,”
that the fictitious actions were first introduced by the
_ praetors, when the /egis actiones were already becoming
obsolete, that the system of /egis actiones recognized no
such general institution as the procuratory ὃ (because it
_ tiv. 37: “Item civitas Romana peregrino fingitur, si eo nomine
-agat aut cum eo agatur, quo nomine nostris legibus actio constituta
est, si modo iustum sit eam actionem etiam ad peregrinum extendi....
_Ttem si peregrinus furti agat, civitas ei Romana fingitur. Similiter si
ex lege Aquilia peregrinus damni iniuriae agat aut cum eo agatur,
civitate Romana iudicium datur.”—JIn connection with this
| passage, Mommsen refers to the earlier system of recuperatio, by which
)peregrins could take certain criminal proceedings against Roman
| citizens, and distinguishes between the special forms of delictual
‘actions by and against aliens in the earlier epoch from the substituted
Hfictitious actions of the later period. “Als ~Beispiele werden die
| Diebstahls- und die Sachbeschadigungsklage activ und passiv angefithrt.
Daraus folgt, dass die Privatdelictsklagen an sich nicht von einem
‘oder gegen einem Peregrinen haben angestellt werden kénnen,
jaber keineswegs, dass bis zu der verhiltnissmissig wohl spiten
ΙΕ he, wo sie durch Fiction ihnen eréffnet wurden, es fiir Fille
| dieser Art keine Rechtsverfolgung gegeben hat. Vielmehr finden
/wir schon im sechsten Jahrhundert die Diebstahlklagen von Peregrinen
jgegen Rémer durch Recuperatoren entschieden. . . ohne Zweifel gab
ees dafiir in alterer Zeit besondere Klagen, die nachher durch das
|Eintreten jener Fiction iiberfltissig wurden” (Das rimische Staatsrecht,
ivol. iii. p. 606 note).
᾿ς 2Note 3, pp. 103-4, op. cit.
$Gaius, iv. 82.—Cf. Just. Just. iv. 10 pr., where cases are mentioned
jin which representation was allowed in statute-process : “Cum olim
in usu fuisset alterius nomine agere, non posse, nisi pro populo, pro
It has been held by writers, like Keller, Mommsen, pia commer.
cium imply use
commercium to peregrins carried with it the right to actiones?
Rights allowed
to Latin
peregrins.
Judicial
position of
Latin
peregrins.
Classification
of Latin
peregrins,
The Latinz
veteres.
a λὲν.
240 POSITION OF LATIN PEREGRINS
stopped short at pronuntiatio, and hence was not able
to substitute the procurator’s name for the principal’ s),
that the iudicia legitima of which the J/egis actiones i
personam were the earliest forms required both partie
and judge to be Roman citizens,' and finally, that if ἊΝ
legis actiones had been applicable, recuperatio would hav
been superfluous. |
By treaties between Rome and foreign countries, a
reciprocity of recuperatio and ius commercii, and some=
times even ius connubii, was secured for the subjects ‘
the contracting parties. In the alliances with the Lat@ |
cities usually all the three rights were stipulated «
pressly or conceded impliedly. Thus in the case of the
foedus Cassianum* of the year 493 B.c., no mention wat
specifically made of connubium, on the grounds that it wa
clearly understood. Similarly wide rights and privie
leges were provided for in the treaty with the Hernici,
486 B.c., when they were admitted into the Latin
confederation, in that with the Campanians, 340 B. οι
and in some cases with the Samnites, as, for example, i
290 8.c. In the majority of cases, however, connubiut
(the most important private right), was not included i
treaties, recuperatio and commercium being alone agree
upon. In other instances, only amicitia formed th
basis of treaty relationships securing for the most pa
certain privileges of commercial intercourse. |
The Latin peregrins* occupied an intermediate j jurid
cal position between the Roman citizens and peregr
proper. From the point of view of their origin, ne |
may be divided into three classes,—the Lasini veteres (OF
prisci), the Latini coloniarii, and the Latini [uniani.
The Latini veteres were the inhabitants of Latiui : -
libertate, pro tutela.” That is, in public actions it was permissible,
well as in actions by an assertor Uibertatis, and those on behalf οἱ
ward.
1 Gaius, iv. 104, 109.
2 As to the foedus Cassianum, see infra, chap. xvi.
8 Cf. Weiss, Droit inter. privé, vol. 11. pp. 38 seg.
THE LATINI VETERES 241
‘the members of the league of the thirty Latin towns
" nomen latinum)—with whom, at the time of the second
Lake Regillus, a treaty of alliance was concluded by
tome. At the end of the Latin war, in 338 B.c.,
is confederation was destroyed. Thus their history
presents two phases,—firstly, their alliance with Rome
or a footing of equality, more or less, and secondly,
the subjection.
In the earlier epoch, special conventions secured them
important civil rights, both public and private. These
Latini were not necessarily debarred from the ius suffragit,
for those who were present in Rome at the time of
the meeting of the comitia tributa were allowed to vote
in a tribe designated by lot.! They had access to the
Roman legions.? It appears they had connubium,® but
- undoubtedly it was so with certain limitations ; for they
would not have been allowed to occupy in this respect
ἃ footing of perfect equality with Roman citizens.
Probably the privilege consisted simply of a right of
| intermarriage,‘ enabling a Roman citizen to marry an
alien woman, and vice versa, so that in the respective cities
} the union was acknowledged as iustae nuptiae. But
/the husband did not possess manus over his wife, who,
jremaining a peregrina, made it impossible to adopt
| the modes of confarreatio or coemptio; his children by
7
|
᾿ 1 Appian, De bell. civ. 1, 23 5 Dion. Hal. viii. 72 : καὶ μετεπέμπετο
Λατίνων τε καὶ ‘Epvixwy ὅσους ἐδύνατο πλείστους ἐπὶ τὴν ψηφο-
popiav.—Cf. Liv. xxv. 3.
pee Liv. xl. 18; cf. C. joni Précis de droit romain, 2 vols. (Paris,
a ee CE. Voie, Des je jus nat. vol. i. pp. 140 seg.3 J. Marquardt, Rimische
| Staatsverwaltung, vol. i. p. 24; Walter, op. cit. §227 ; E. Beaudouin,
‘Le majus et le minus Latium (in Nouvelle Revue historique de droit
Wrangais et ttranger, 1879).—It is denied by C. A. von Vangerow
4 (Uber die Latini Juniani.—Eine rechtsgeschichtliche Abhandlung, Marburg,
1833, pp. 18, 21), relying on the text of Gaius, i. 79, from which
πε appears the 4x Minicia was applicable to them.—But cf. Weiss, a.
Ἰεἶϊ. vol. i. p. 35.
‘Muirhead, op. cit. p. 107.
The Latinz
colontariz.
242 THE LATINI COLONIARII
her, however, were in his povestas.' ‘They enjoy
commercium, had the capacity to enter into contracts
litteris, and could avail themselves of the procedure of
recuperatio (which was often described as actio in the
treaties).
In the later epoch, after the dissolution of the Latin
confederation, those to whom civitas was not extend
were regarded as conquered peoples. They had n
political rights, and no connubium, and at first no
commercium. ‘‘Caeteris Latinis populis connubia com-
merciaque et concilia inter se ademerunt.”* But the
soon acquired the ius commercii,t which, hencefo
characterizing the ius Latii, pointed to the distinction
between the Latin peregrins and the ordinary peregrins.
The Lazini coloniarii were the first Latin colonists that
date back to the time of the Roman alliance with the
cities of the Latin league. They may be divided into
three classes,—firstly, those who voluntarily emigrating
of necessity renounced Roman citizenship, secondly,
those individuals who having been condemned to pay |
fine avoided payment by expatriating themselves, and
thirdly, the fiiiifamilias, who by their father’s order
enrolled their names in a colony.’ All these acquiring
the ius Latinitatis at the same time lost the ius civile.
As to their condition, it was very much similar to
that of the later Latini veteres, that is, after the breaking
up of the Latin league. So that they were debarre
from all political rights, and from connubium,® bu
enjoyed commercium,' including ‘testamentifactio ; henee ;
1See Karlowa, Rim. Rechisg. vol. ii. p. 70.
2 Liv. xxxv. 7. 8 Liv. vili. 14 ; cf. also Liv. ix. 24, 45.
4 Liv. xli. 8. Cf. Marquardt, op. cit. p. 53, note 5, who, relying om
this passage of Livy, says: “ Dies geht namentlich daraus hervor, dass
ein Latiner seine Kinder einem Rémer mancipiren konnte.” Ε΄
ὅ Οἷς. Pro Caecina, 33 ; Gaius, i. 131 : “ Olim quoque quo tem Pp
populus Romanus in Latitias regiones colonias deducebat, qui iussu
parentis in coloniam Latinam nomen dedissent, desinebant 1 in potest
parentis esse, quia efficerentur alterius civitatis cives.’ Ἧς:
6 Ulpian, v. 4. 1 [bid, xix. 4.
THE LATINI COLONIARII 243
‘their position was somewhat above that of ordinary
peregrins. Girard points out that their family relation-
ips were regulated by their national laws, varying
‘somewhat according to local legislations, and that, owing
their common origin, they bore a great resemblance
the Roman institutions. ‘“ Leurs rapports de
mille sont régis par leur droit national, qui peut
_Varier suivant les statuts locaux, mais qui, par suite de
a communauté d’origine, présente, sauf un caracttre
-@archaisme plus prononce, une similitude a peu pres
ΝᾺ avec les institutions romaines.”’ !
It has, however, been maintained by Savigny? that Had theZatini
| the Latini coloniarii had no commercium. He bases his 77 he,
contention on a passage of Cicero, according to which,
_as he interprets it, commercium was conceded only as a
reward to the twelve (or eighteen, x11x) Latin colonies
that remained faithful to Rome during the Second
Punic War. Now the passage of Cicero runs to this
effect: “ He [Sulla] wants them [viz. the Volaterrani]
to be treated on the same juridical footing as the
‘inhabitants of Ariminium ; now who is not aware that
the latter enjoy the same rights as the twelve colonies,
jand that they can inherit from Roman citizens?”®
Nothing is here said or even implied as to a new
\concession of ius commercii ;* the passage simply states
\that Sulla deprived Volaterra (as well as other municipia)
οὗ many of the rights and privileges of citizenship, and
allowed them to retain only commercium, thus placing
|
- 1Man. élém. de dr. rom. Ὁ. 108.—Ibid. p. 108, note 1: “La
ttable de Salpensa cc. 21, 22, 23 prouve par exemple un régime
}trés analogue a celui de Rome pour la patria potestas, la manus, le
#mancipiun, les affranchissements.””—The laws of Domitian organizing
‘the government of Salpensa (a Latin colony in Baetica, between
| Hispalis (Seville), and Gades (Cadiz) ), and that of Malaca were
idiscovered in 1851 ; cf. Corp. inscrip. Lat. 1963.
2 Vermischte Schriften, vol. i. pp. 20-26 ; vol. iii. pp. 301, 302.
Pro Caec. 35: “Iubet enim pian iure esse, quo fuerint
\Ariminenses, quos quis ignorat duodecim coloniarum fuisse, et a
vibus Romanis hereditates capere potuisse ?”
| 4#CF£. Weiss, op. cit. vol. ii. p. 40.
The Latinz
luniani,
244 THE LATINI IUNIANI
them on the same basis as the twelve Latin colonies, to
whose condition that of Ariminium was assimilated.
Besides, it appears from Ulpian® that the Latini pos-
sessed commercium: ‘‘ Mancipatio locum habet inter
cives Romanos et Latinos coloniarios, Latinosque
iunianos eosque peregrinos quibus commercium datum
est.” And, further, the right was enjoyed by the
Latini Iuniani, whose position, as Gaius says,® was based
on that of the Latini coloniarii.
The Latini Iuniani obtained their name in the first
place from the /ex Iunia Norbana (c. 18 A.D.) which
determined their legal character, and, secondly, from
the Latini coloniarii, to whom they were largely assimi-
lated. They were manumitted slaves, in whom their
master had not quiritary property, or to whom he hac
given liberty in a manner outside the solemn forms of
emancipation, or conditions imposed by the lex deli
Sentia (A.D. 4). Their position resembled that of thi
Latini coloniarii, inasmuch as they had commercium
and not the ius suffragii and connubium; and als
differed from it in that the Latini coloniarii had by their
commercium certain privileges from which the Latint
Iuniani were debarred. Thus the latter could not mak
wills or benefit under another’s will, and could
be appointed guardians under a testament.’ Hence
having neither sui heredes (i.e. immediate lineal suc
cessors) nor agnates (i.e. collateral relatives, as eventu
successors), their property went to their patrons “i
quodammodo peculii,” by the title of quasi peculium.® —
a
1 As to the inequality of rights of Latin colonies, cf. Mommse
Geschichte des rim. Minzwesens, pp. 182, 309, etc., where he dea
with the relationship between independence and the right Ὁ
coinage; Marquardt, of. cit. vol. i, p. 553 Rudorff, op. cit. vol:
p. 30; and the other works, previously referred to, on the Latini. ~
2 xix. 4. ὦ πὲ τὺ 4 Ulpian, xix. 4. a
5 Gaius, i. 22, 24; Ulpian, xx. 8.
ὁ Gaius, iii. 56; Just. Zmst. ili. 7. 4.
Cars 5 ee PN ae ae ha
cd
Da ΟΡ
Ἔν a ew
CHAPTER XI
5 :. - ~
_ ROME AND FOREIGNERS.—DOMICILE. NATIONALITY.
f NATURALIZATION
_ period of the Empire, when the Roman constitution had §
_ perhaps attained to its fullest development, the various
‘constituent parts of the Empire in Italy included
| civitaies (apart from Rome), municipia,! colonies, and
Various secondary communities. Each possessed its
_ Own constitution, providing for a greater or lesser
independence, its own magistrates, its own jurisdiction,
and even its special legislation.’
__ It was possible at this time (as it is in our own age)
- for an individual to be attached to a community by two
_ different ties,—origo and domicilium. Through the first
he was a civis or municeps as the case may be; by
| Virtue of the second, he was an incola, so that the
“expression ‘incola esse’ and ‘domicilium habere’ are,
for practical purposes, equivalent.’ Individuals became
) tives by birth, adoption, emancipation, admission ; they
|became incolae by domicile. ‘“Cives quidem origo,
tat Bee,
-
᾿ς ΤΑυΪὰ9 Gellius (xvi. 13) thus defines municipes: “Municipes...
/sunt cives Romani ex municipiis legibus suis et suo iure utentes,
}Muneris tantum cum populo Romano honorari participes, a quo
) munere capessendo appellati videntur, nullis aliis necessitatibus neque
ulla populi Romani lege adstricti, nisi in quam populus eorum fundus
\factus est.”
2Cf. Savigny, System des heutigen rimischen Rechts, 9 Bde. (Berlin,
1840-1851), vol. viii. §§ 351 seg.
ΕΟ. 1.1. 5.
- Towarns the end of the Republic, and in the earlier Parts of the
Double
citizenship.
Acquisition of
domicile,
Factum and
animus.
Married
woman,
246 ACQUISITION OF DOMICILE
manumissio, allectio, vel adoptio, incolas vero...
domicilium facit.”1 The Roman jurisprudence did not
recognize the capacity in an individual to be a civis o ἢ
municeps in two cities at one and the same time.
“Duarum civitatum,” as Cicero says in a passage
already referred to, “civis esse nostro iure civili nemo
potest.”"* But it was then possible, as it is by the
modern law of nations, to be a civis or municeps in one
country and an inco/a in another. “Cum te Byblium
origine, incolam autem apud Berytios esse proponis,
merito apud utrasque civitates muneribus fungi com-
pelleris.”* So that in the latter case a peregrin coul
avail himself of two different systems of law, viz. t Ν
of the city of which he is a civis, and that of the city
in which he is merely domiciled. Hence conflicts ¢
legislations would naturally arise ; and it will be con
sidered later whether such conflicts were adjusted by th
ius originis, or by the /ex domicilii, in those cases wher
the Roman law admitted the application of the peregri
law. |
An independent individual could acquire a domici
of choice by the actual fact of residence (factum)
combined with the intention of permanent (or at leas
indefinite) residence (animus manendi). These w
elements were insisted on by the Roman law, as muc
as they are in the modern legislations. Thus the Digd
states: ‘“‘ Domicilium re et facto transfertur, non nuc
contestatione ; ; sicut in his exigitur, qui negant se ΡΟ!
ad munera, ut incolas vocari.” * F.
A married woman generally acquired the
1 Cod. Just. x. 30 (de incolis), 7
2 Pro Balbo, 11; cf. Pro Caec. 34.—See the present writer’s 8 tic
on Zouche (“The Great Jurists of the World,’—in Journal of |
Society of Comparative Legislation, London, April, 1909, New
no. xX. pp. 281-304, at pp. 291-2). a
8 Just. Cod. x. 39 (de municipibus et originariis), 1, (Imp. Antoni
A. Silvano) ; cf. Ulpian, in Dig, 1. 4. 3. 1. ᾿
4], 1 (ad municipalem et de incolis), 20.
SEVERAL DOMICILES 247
domicile as her husband (domicilium matrimonii). ‘Item
_rescripserunt mulierem, quamdiu nupta est, incolam
eiusdem civitatis videri, cuius maritus eius est, et ibi,
unde originem trahit, non cogi muneribus fungi. mL A
widow preserved her domicile so long as she did not
marry again, or acquire a different one in some other
“manner. ‘“ Vidua mulier amissi mariti domicilium
retinet exemplo clarissimae personae per maritum
factae; sed utrumque aliis intervenientibus nuptiis
permutatur.” ?
_ Legitimate children took their father’s domicile ; but Children.
later they could relinquish their original domicile and
choose another.? Natural children assumed the domicile
of their mother.
_ Assimilar provision applied in the case of manumitted Emancipated
slaves. At first they had the domicile of their patron ; "ΝΣ
and later they were at liberty to acquire a different
one.”
An individual could have more than one domicile at Piurality of
_ the same time,—a fact which is also possible in modern °°""*
times.° The law of nations regarding warfare has for a
long time recognized a trade or war domicile, i in addition
to the domicile of origin ; though, it must be admitted,
a ‘commercial domicile,’ or a ‘forensic domicile’ does
not fully amount to domicile in the proper sense of the
nupt.), 5: οὐτοδκα enim opus esse in mariti, non in
uxoris a quasi in domicilium matrimonii.” See also Just. Cod.
Χ, 38 (de incolis), 9 ; idid. xii. 1 (de dignit.), 13.
if > 1 Dig. 1. 1. os .—Cf, ibid. v. 1 (de πα, ), 65; 3 xxilil. 2 (de ritu
|
* Dig. 1. 1 (ad mun.), 22. 1.
ἢ Dig. 1. 1 (ad mun.), 3, 4, 6 ὃ 1, 17 § 11.
4 Dig. 1. 1 (ad mun.), 6. 3 ; and idid. 22, pr.
5 Dig. 1. 1 (ad mun.), 22 ὃ 2, 27, pr. 3 37 § 1.
_ δ 1 apprehend,” said Pollock, C.B., “that a peer of England, who
- is also a peer of Scotland, and has estates in both countries, who comes
_to Parliament to discharge a public duty, and returns to Scotland to
_ enjoy the country, is domiciled both in England and Scotland” (J
_ re Capdevielle (1864), 33 L.J., Ex. 306, 316. Cf. Somerville v. Somer-
q ville (1801), 5 Ves. 749, 786 ; 5 R.R. 161, per Arden, M.R.).
No domicile.
}
248 ABSENCE OF DOMICILE |
word. In any case, probably in Rome, as certainly i in
the view, say, of the British courts, no individual could
have more than one domicile for the same purpose, tha i
is, for the determination of one and the same class o Σ
a In the later Roman law, however, the principle
of the simultaneous possession of two or more domiciles
was less frequently applied, and was admitted only in
exceptional cases.” a
In modern legislations it is not possible to be without
a domicile altogether ;* but in Roman legal theory this
was not impossible, though in practice the contingency
was naturally rare. It might occur in the interval
between the renunciation of an acquired domicile anc d
the acquisition of another (as, for example, when ser-
vants and workmen go in search of new em nloverai n
the case also of such travellers as, having abandonec
their original domicile, do not take up a residence of a
permanent nature, or for an indefinitely long period,
and, finally, in the case of vagabonds. Thus, the
Digest, referring to the εὐρανήμόνον, of determining tf )
δ᾽
1 'The facts and circumstances which might be deemed suffice
to establish a commercial domicile in time of war, and a matrimonia
or forensic, or political domicile in time of peace, might be such a |
according to English law, would fail to establish a testamentary Ὁ
principal domicile. ‘There is a wide difference,’ it was observed
a judgment delivered in a recent case before the Judicial Committe
of the Privy Council, ‘in applying the law of domicile to con : :
and to wills’” (Sir R. Phillimore, Commentaries upon International L
4. vols. (London, 1885) sect. 54; and referring to Croker v. Marguis
Hertford (1844), 4 Moore, P.C. 339).
2 Dig. 1. 1 (ad mun.), 5: “Labeo indicat eum, qui pluribus tod
eX aequo negotietur, nusquam domicilium habere ; quosdam autel
dicere refert pluribus locis eum incolam esse aut domicilium habe:
quod verius est.’
Cf. Dig. 1. 1 (ad mun.), 6. 2: “Viris prudentibus placuit duobt '
locis posse aliquem habere domicilium, si utrubique ita se instru: xit
ut non ideo minus apud alteros se collocasse videatur.”—See also Ἢ
1. 1. 27. 23 and Just. Cod. iii. 12 (de sepult.), 2, pr. ἌΝ
8 E.g. as to the English tribunals, cf. Be// v. Kennedy (1868), L.
1 Sc. App. 307 ; Udny v. Udny (1869), L.R. 1 Sc. App. 441, 2
457, where the rule is clearly laid down by Hatherley, C.,
Westbury, and Lord Chelmsford.
ἊΝ
NATIONALITY OF ORIGIN 249
domicile of an individual who appears to reside equally
in two places, goes on to enumerate instances where it
is possible to have no domicile at all. ‘‘ Celsus libro
‘primo digestorum tractat, si quis instructus sit duobus
Tocis aequaliter neque hic quam illic minus frequenter
commoretur; ubi domicilium habeat, ex destinatione
animi esse accipiendum. ego dubito, si utrubique
destinato sit animo, an possit quis duobus locis domi-
cilium habere. et verum est habere, licet difficile est ;
quemadmodum difficile est sine domicilio esse quem-
uam. puto autem et hoc procedere posse, si quis
domicilio relicto naviget vel iter faciat, quaerens quo se
conferat atque ubi constituat; nam hunc puto sine
domicilio esse.” !
Now as to the question of nationality, original and
acquired.
_ As has been fully explained in a previous chapter, the Nationality of
‘nations of antiquity were keenly jealous of their citizen- πο
‘ship. According to strict conceptions the ancient city
‘Was an organized association of families, where ‘“ the
nationality of the father had to answer for his children’s
patriotism.”* At Athens, the child was a citizen if
both the father and the mother were citizens. In Rome
ithe theory of the ius sanguinis and the ius sok was
japplied with less stringency. With the Romans, legis-
ΓΝ as well as politics possessed that elasticity which
rendered rules and prescriptions adaptable to the varying
i circumstances of time and place.
_ The Roman ideas as to the determination of the
‘nationality of origin, as approaching modern concep-
tions and in contradistinction to the more exclusive
‘Hellenic notions, are pointed out by a sixteenth century
‘writer in the following terms : “‘ Recte Romanum inter-
‘pretamur Roma oriundum, et in iure nostro semper
1 Dig. 1. 1 (ad mun.), 27. 2.
2 Weiss, op. cit. vol. i. p. 33 (to which work this portion of the
present chapter is indebted).
τοῖος ἂν ΘΝ δ"
250 NATIONALITY OF ORIGIN
notatur origo paterna, non origo propria et natale :
solum.’’?
Two cases are distinguished by the Roman jurists: .
firstly, if the child is issue of iustae nuptiae ; secondly, if
the child is issue of a marriage or union which is not
iustae nuptiae. {
Astoissueex In the first case, when the child is born ex iuséis nuptiis,
rusts mips. of a marriage sanctioned by the civil law, he assumes his _
father’s nationality, as Gaius says: “ Semper connubium—
efficit, ut qui nascitur patris conditioni accedat.”? As a_
rule this nationality will be the same as that of the
mother also, inasmuch as the iustae muptiae usually
obtains between Roman citizens. The exceptional cz
occur where the conferring of the connubium to Latid noe
and even to peregrins proper (though much more
rarely), renders their union a regular and legitimate
marriage, iustae nuptiae. ᾷ
Marriage of If a Roman enter into legal marriage with a Latin o 01
Tet or lien alien woman, the issue will, according to the gener
woman. rule, be of Roman nationality. Thus Gaius: “ If a
Roman citizen takes to wife an alien with whom he has”
connubium, he thus contracts a civil marriage, and nis 4
son is born a Roman citizen and subject to his Poway ἫΝ
Soldiers ofthe The right was generally conceded to soldiers of th
ἐκ μου aglnc dawn praetorian and urban cohorts, after the expiration cf :
their service, to enter into a iustum matrimonium vit
Latin or peregrin women. ‘“... Veterans often obtai
by imperial constitution a power of civil wedlock witl
the first Latin or alien woman they take to wife afte
the discharge from service, and the children of s
ΣΤ, de Cujas (Cujacius), Odservationum et emendationum libri xxv
(Coloniae Agrippinae, 1598). af
21. 80; cf. Ulpian, v. 8: “ Connubio interveniente, liberi semper
patrem sequuntur”; Dig. i. 5 (de statu hominum), 19: “Cum |
legitimae pe a factae sunt, patrem liberi sequuntur.” Ἐπ
$i. γό: “... Si civis Romanus peregrinam cum qua ei connubiam
est, uxorem aioe ... lustum matrimonium contrahitur ; et tunes } 1
his qui nascitur, civis ‘Romanus est et in potestate patris erit.” © 4
Gaius, i. 56, which is to the same effect. a
NATIONALITY OF ORIGIN 251
ea ea ee = a ΦΎΣΔ
“marriages are born citizens of Rome and subject to
paternal power.’ In such cases a formula to the
Metlowing effect was commonly found in the official
“permission given to them: “ Nomina speculatorum,
“qui in praetorio meo militaverunt...subieci; quibus
τέκον et pie militia functis ius tribuo conubii dumtaxat
cum singulis et primis uxoribus, ut etiam si peregrini
‘iuris feminas matrimonio iunxerint, proinde liberos
-tollant ac si ex duobus civibus Romanis natos.”’ 2
_ Again, if a Roman woman enter into legal marriage Marriage of
with a Latin or peregrin proper, it would appear from Roman woman
the general principle that the issue was to be Latin or peregrin.
peregrin, as the case may be, and, of course, was con-
sidered legitimate. And from the time of Hadrian, the
issue was likewise legitimate even though there was not
connubium between such parties. ‘If a Roman woman,”’.
“says Gaius, ““ marry an alien with whom she has capacity
of civil marriage, her son is an alien and a lawful son of
his father, just as if his mother had been an alien. At
the present day by a senatusconsult passed on the
proposition of the late Emperor Hadrian, even without
civil marriage the offspring of a Roman woman and an
alien is a lawful son of his father.” ὃ
In the second case, if a child is born of any union As to issue of
which is not iustae nuptiae, the rule is that he assumes 3°70» Which
; his mother’s nationality,—‘‘ partus ventrem sequitur.” "#éiae.
_“...When there is no capacity of civil marriage
—
1 Gaius, i. 57: “ Unde et veteranis quibusdam concedi solet princi-
palibus constitutionibus connubium cum his Latinis peregrinisve, quas
primas post missionem uxores duxerint; et qui ex eo matrimonio
Nascuntur, et cives Romani, et in potestate parentum fiunt.”
᾿ς * Corp. inscrip. Lat. t. iii. no. 10 ; τ. ix. nos. 261, 2995.—On military
_ and kindred concessions in general, see Renier, of. cit. and Piccioni,
- Op. cit.
41, 77: “Item si civis Romana peregrino cum quo ei connubium
_ €st, nupserit, peregrinus sane procreatur et is iustus patris filius est,
_ tamquam si ex peregrina eum procreasset. hoc tamen tempore (ex)
- Senatusconsulto quod auctore divo Hadriano factum est, etiamsi non
_ fuerit connubium inter civem Romanam et peregrinum, qui nascitur,
_ lustus patris filius est.”
RICST ATS δύω δών
The principle
of tus gentium
—‘‘ partus
ventrem
sequitur.”
252 NATIONALITY OF ORIGIN
between parents, their offspring follows the mother’s
status by the law of nations.”* And Cicero says that if
ἃ woman, married to a man when there is no connubium
between them, successfully sues for a divorce, the
husband is. not to retain the dowry for the children’s”
maintenance, since they do not follow his condition.?
Similarly, the Digest states that under these circum-
stances the issue belongs to the mother’s condition by
the ‘law of nature,’ unless there be a special legislative
measure to the contrary.® !
The same rule applies in the case of a child whose
father is unknown, and also in that of certain other
irregular unions,—“... qui patrem demonstrare non
potest, vel . . . habet quem habere non licet.”’ 4 2
According to the general principle of the law of
nations, viz. ‘ partus ventrem sequitur,’ it would follow
that the offspring of an irregular union of a Roman
woman with an alien was a Roman citizen; but by the
lex Minicia (of uncertain date) it was generally provided
that where one parent was a non-citizen, the issue shoulc
also be of that condition. This /ex Minicia appears to”
have applied in some cases—at least before Hadrian’s”
senatusconsult—even where connubium existed between
the parties ; so that the son of a Roman woman and of
a Latin belonging to the class of Latini veteres followed
his father’s condition. But the child of a Roman womar
1 Gaius, i. 78: “... Ex eis inter quos non est connubium, qu
nascitur iure gentium matris conditioni accedit.”—Similarly Ulpiar
v. 8: “Non interveniente connubio matris conditioni accedunt.”
2 Topic. 4: “ Si mulier, cum fuisset nupta cum eo quicum connubiui
non esset, nuntium remisit, quoniam qui nati sunt patrem nor
sequuntur.” 9
8 Dig. 1. 5 (de statu hominum), 24: “Lex naturae haec est, ut qu
nascitur sine legitimo matrimonio, matrem sequatur, nisi lex speciali
aliud inducit.” .
4 Dig. i. 5 (de statu hominum), 23.
5 Gaius, i. 78: “... Qua lege effectum est ut si matrimonium inte
cives Romanos peregrinosque non interveniente connubio contrahat
is qui nascitur peregrini parentis conditionem sequatur.” (According |
to Krueger’s restoration of the text.) Cf. Ulpian, v. 8. is
NATIONALITY OF ORIGIN 253
and of a Latinus coloniarius or of a Latinus Iunianus
was probably Roman at birth in conformity with the
general rule. ‘“C’est tout au moins ce qui ressort,
croyons-nous, en dépit d’une lacune et de quelques
obscurités, des δ 79 et 5. de Gaius.”’ These sections
are to the following effect (though it is to be remem-
bered they are given according to conjectural restora-
tions of the text) : " “ By the law of nations the offspring
ofa Latin woman by a Roman citizen with whom she has
no capacity of civil marriage is a Latin, though statute, the
lex Minicia, did not refer to those now termed Latins ;
for the Latins mentioned in the statute are Latins
in another sense, Latins by race and members of a
foreign State.” ‘By the same principle, conversely, the
son of a Latin and a Roman woman is by birth a
Roman citizen, whether their marriage was contracted
under the /ex Aelia Sentia or otherwise.... However,
the law on this point is now determined by the senatus- Hadrian’s
consult passed on the proposition of the late Emperor δον
Hadrian, which enacts that the son of a Latin and a
Roman woman is under every hypothesis a Roman
citizen.” ‘‘Consequently herewith Hadrian’s senatus-
consult provides that the offspring of the marriage
of a Latin freedman with an alien woman, or of an
1 Weiss, of. cit. vol. i. p. 35.
*#Gaius, i. 79: “Adeo autem hoc ita est, ut ex cive Romano et
Latina qui nascitur Latinus nascatur, quamquam ad eos qui hodie
_Latini appellantur, lex Minicia non pertinet ; nam comprehendantur
quidem peregrinorum appellatione in ea lege non solum exterae
‘Mationes et gentes, sed etiam qui Latini nominantur ; sed ad alios
_ Latinos pertinet, qui proprios populos propriasque civitates habebant
€t erant peregrinorum numero” (Mommsen’s restoration in the
earlier part of the section). i. 80: “ Eadem ratione ex contrario ex
_ Latino et εἶνε Romana, sive ex lege Aelia Sentia sive aliter contractum
_ fuerit matrimonium, civis Romanus nascitur ... sed hoc iure utimur
_ €X senatusconsulto, quo auctore divo Hadriano significatur, ut quo-
que modo ex Latino et cive Romana natus civis Romanus nascatur.”
1, 81: “His convenienter etiam illud -senatusconsultum divo
- Hadriano auctore significavit, ut (qui) ex Latino et peregrina, item
+ contra (qui) ex peregrino et Latina nascitur, is matris condicionem
‘sequatur.” .
Issue of union
of Roman
woman anda
slave.
Naturaliza-
tion in Rome,
Conquered
nations.
Municipia.
254 NATURALIZATION IN ROME
alien with a Latin freedwoman, follows his mother’s
condition.”
A special case of the second category is where the child -
was issue of the cohabitation (contubernium) of a Roman
woman and a slave. If the general rule ‘ partus sequitur —
ventrem ᾿ were allowed to operate, such offspring would
thereby become a Roman citizen; but the senatuscon-
sultum Claudianum provided that a Roman woman,
cohabiting with another’s slave, contrary to the wishes
of his master, should be herself reduced to the servile
condition ; should she, however, obtain authorization,
her liberty was preserved, but her children of such
union became slaves. Hadrian restored, in this connec-
tion, the application of the general rule, so that a child”
of a Roman woman and a slave acquired the nationality
of the mother.’ Ἵ
Ὁ]
As in Greece, citizenship was granted by Rom
either to individuals, or to greater or lesser masses of
individuals, or even to entire communities. The con=
stitution of Caracalla marks the final stage of this
extension of citizenship, a movement which synchronizes
with the expansion of the Roman Empire. Ἵ
At first conquered peoples could become naturalized
citizens on condition of their becoming permanently
established on Roman territory, that is in the city or in
its immediate vicinity. But with the increase of con-
quests and the subjugation of larger and larger bodies”
of people, this condition naturally became impossible to”
fulfil; so that towards the fourth century, after the
dissolution of the Latin League in 338 B.c., their coun=
tries were constituted municipia, and citizenship was, in
greater or lesser extent, bestowed on them. Ε΄
It seems that the earliest municipia received
1 Paulus, Sententiae, ii. 21, §§ 1, 13, 17.—Cf. Tacit. Aum. xii. 53 |
2 Gaius, i. 82, 83, 84 ; cf. Just. Cod. vii. 245 Just. Ist. iii. 12. 1ν΄
For other less important provisions on this subject, see Gaius, i. 85, 86;
and cf. Weiss, op. cit. vol. i. p. 37. sas ἢ
NATURALIZATION IN ROME 255
_as the private privileges of the ius civile1 Later municipia
were debarred from all the political privileges incidental
to citizenship, and. were thus reduced to a kind of
“passive citizenship—civitas sine suffragio’—so that
“communities of this nature were allowed to enjoy only a
partial independence.? Among the first examples of this
policy was Caere in Etruria.’ But by the sixth century
“the municipia sine suffragio had almost disappeared.
In 90 B.c. the /ex Juiia* granted citizenship to all the atties ana
‘Latin allies who had remained faithful to Rome, pro- fu7757}P-
vided they adopted the Roman jurisprudence ;° and in
‘the following year a plebiscite, the lex Papiria Plautia, Lex Papiria
carried by Carbo and M. Plautius Silvanus, extended “”““”
this concession to the people of the federate towns,
including practically all the inhabitants of Italy. Accord-
ing to Cicero’s statement of this enactment, admission to
tivitas required the prior fulfilment of certain conditions,
@g. to bea citizen of an allied town, to be domiciled in
“Italy, and to make a declaration to the praetor, within
} Sixty days, of the intention to acquire citizenship.®
_ In the later period of the Republic grants of citizen- Later period of
‘ship became still more frequent. The privilege was je Rete
jgiven to the inhabitants of Gallia Transpadana, and to grants.
ithe Veneti’ (49 B.c.), to the people of Gades, of Sicily,
jand other countries. Sometimes it was capriciously
jgiven or sold to entire peoples, —“ data cunctis promis-
cue civitas romana.” §
— tLiv. vi. 26; villi. 14; Cic. Pro Plancio, 8.
_ *Cf£. Weiss, op. cit. vol i. p. 286.
᾿ς *Aul. Gell. xvi. 13: “Primos autem municipes sine suffragii iure
jaerites esse factos accipimus concessumque illis, ut civitatis Romanae
norem quidem caperent....” ἢ
£On the political situation of the Italian towns after the 4x luda,
see Marquardt, op. cit. vol. i. pp. 58 seg.
— *Cic. Pro Balbo, 8.
_ %Pro Archia, 4: “Data est civitas Silvani lege et Carbonis: si qui
foederatis civitatibus adscripti fuissent, si tum, cum lex ferebatur, in
talia domicilium habuissent et si sexaginta diebus apud praetorem
essent professi.”
~ TDion Cassius, xli. 36. 8 Aurel. Vict. De Caesaribus, 16.
256 NATURALIZATION IN ROME
Lavish Similarly, the less comprehensive but important privi-
Conus the leges of Latinity (Latinitas, or Latium) were lavishly
carly Empire. bestowed on peoples in the early Empire, thus preparing
the way for the conferring of full citizenship. Thus
Tacitus reprovingly refers to the frequent grants made
by Vitellius,—‘“ Latium vulgo dilargiri.”1 The same
policy was pursued by Hadrian, who gave the right to
numerous cities,—“ Latium multis civitatibus dedit,”?
and also by Vespasian, who extended the concession to
the whole of Spain.® 3
Caracalla’s Finally, the growth of Roman cosmopolitanism, the
conse? development of the imperial policy, the strivings to
attain to harmony and stability of universal dominion,
and, more especially, fiscal considerations rendered pos-
sible the extension of citizenship, by the constitution of
Caracalla, to all the free subjects of the Roman Empire.*
As a French writer observes, it was the fiscal policy of
Rome which facilitated the realization by a despot of a
democratic ideal which had cost the lives of men like
the two Gracchi and Drusus (whose intention it hac
been to give the Roman franchise to the Latins and the
Soci). ‘ L’esprit fiscal était devenu le serviteur incon=
scient du progrés. Un despote avait réalisé paisiblement
et avec plus d’étendue la pensée démocratique qui avai
valu une mort violente aux deux Gracchus et au tribur
Drusus.” ἢ
Roman _ It must be noted, in view of the seemingly lavish and
oeeectin, © careless bestowal of these rights, that at no time did thi
Romans consider the gift of small consequence. Even
during their most universalizing tendencies they caré
fully discriminated between the citizen and the nor
citizen, between the individuals who had duly acquired
citizenship, and those who had not done so, or those who
1 Hist. iii. 55.
2 Spartian, Had. 21. 8 Cf, Plin. Hist. nat. iil. 4.
4 Dig. i. 5, 17: “In orbe Romano qui sunt ex constitutione ἢ
peratoris Antonini cives Romani effecti sunt.”-—Cf. Dion Cass, Ixxvil.
oy pee
we ξ αν i
ea a eo oe
Cae er Ie ot
“ ΓΨῚ Ἢ ΄ς f 2 A _ a
δι δε fii ee A Recor,
5 Accarias, op. cit. vol. i. p. 94.
;
᾿
‘
3 LATIN PEREGRINS’ CITIZENSHIP 257
had fraudulently exercised its rights. Thus Claudius!
prohibited foreigners from adopting Roman names,
especially the nomina gentilicia; and those who falsely
Αδαμ to be citizens of Rome he caused to be
Beheaded on the Esquiline.
| Apart from slaves of thirty years’ service on whom How Latin
manumission in due and proper form conferred citizen- Revs"
ship, the Latin peregrins could obtain it in various “itizensbip.
ways. (It has already been pointed out that when a
Latinus receives citizenship he is usually described as
obtaining the ius Quiritium,? and when it is conceded
‘to a peregrin proper, the term generally employed is
civitas.) Ulpian enumerates several methods :* “Latins
obtain Roman citizenship in the following ways: by
grant of the emperor, by children, by iteration (or
jremanumission), by military service, by a ship, by
ia building, by the trade of baking; and, besides,
jin virtue of a senatusconsult, a woman obtains it
ty bearing three children.” (« Latini ius Quiritium
nsequuntur his modis: beneficio principali, liberis,
‘iteratione, militia, nave, aedificio, pistrino; praeterea
fex senatusconsulto, mulier quae sit ter enixa.’’)
| Beneficio principal. ‘This method applied more to Benefcio
(Latini coloniarii than to Latini Iuniani (that is, irre?’
gularly manumitted slaves, or those emancipated by a
master deprived of quiritary property).
᾿ς In the case of the Latini coloniarii succession de-
: volved according to the civil law; but as to the
~atini Iuniani, naturalized by imperial grant, citizen-
thip became extinct with their death, so that their
roperty went to their patrons, iure pecu/ii, unless the
atter had consented to their previous naturalization.
ἕ 1Sueton. Claud. 25: “ Peregrinae conditionis homines vetuit usur-
fare Romana nomina dumtaxat gentilicia. ,Civitatem Romanam
surpantes in campo Esquilino securi percussit.”
_#In Gaius, i. 32 b, for example, civizas is used in reference to Latins.
δ Reg. iii. 1.—Cf. Gaius, i. 28.
+ * Ulpian, iii, 2.
258 LATIN PEREGRINS’ CITIZENSHIP
‘‘Sometimes a freedman,’”’ says Gaius,’ “who has
enjoyed the full citizenship dies in the condition of a
Latinus Iunianus: as, for example, a Latinus Iunianus
who has by imperial grant acquired citizenship, without
prejudice to the rights of his patron. For, by a con~
stitution of the Emperor Trajan, a Latinus Tunianus
who receives the quiritary status by imperial grant
without his patron’s consent or knowledge, resembles
during his lifetime other fully enfranchised freedmen,
and begets legitimate children, but dies in the condition
of a Latinus Iunianus, having no children who car
inherit ; and he has testamentary capacity only to the
extent of instituting his patron heir, and naming a
substitute to him in case of his renouncing the in=
heritance.” ‘But as the effect of this constitution,”
he continues, ‘‘ seemed to be that such a person could
never die in possession of the full citizenship even
though he subsequently acquired the title to which
the ἐκ Aelia Sentia or the senatusconsult? annexes the
right of Roman citizenship, the Emperor Hadrian, to
mitigate the harshness of the law, passed a senatus-
consult that a freedman who received a grant of
citizenship from the Emperor without the knowledg
or consent of his patron, on subsequently acquirin,
the title to which the /ex ela Sentia or the senatus-
consult, if he had remained a Latinus iunianus, wow
have annexed the rights of citizenship, should ft
deemed to have originally acquired citizenship, by th
title of the /ex Aelia Sentia or the senatusconsult.”*
tii, 72: “Aliquando tamen civis Romanus libertus tamqué
Latinus moritur, velut si Latinus salvo iure patroni ab imperatore 1s
Quiritium consecutus fuerit. nam, ut divus T'raianus constituit, §
Latinus, invito vel ignorante patrono ius Quiritium ab imperato
consecutus sit [quibus casibus] dum vivit iste libertus, ceteris cvg Ιϑ
Romanis libertis similis est et iustos liberos procreat, moritur autem
Latini iure, nec ei liberi eius heredes esse possunt ; et in hoc t antum
habet testamenti factionem, ad patronum heredem instituat eique, 5.
heres esse noluerit, alium substituere possit.”’ ‘
2 'The senatusconsult passed in the reign of Vespasian.—Cf. 1. 91. Ἄ
8 Ἐξ quia hac constitutione videbatur effectum, ut ne
HOW LATINS BECAME CITIZENS 259
ΜΟΥ alll |
_ Libveris. Junian Latins could obtain the status of Zideris.
‘Romans by the procedure ‘erroris causae probatio,’
which Gaius! attributes to the /ex Aelia Sentia, and
‘Ulpian”® to the /ex Iunia Norbana. It was incumbent
‘on the Junian Latin to prove that he had married—
““uxorem liberorum quaerendorum causa ducere”’”—
ἃ woman whose status was either superior or equal
to his own (that is, either a Roman woman or a
Latin), and that of this marriage, executed in accord-
‘ance with certain specified formalities, a child was born
‘and had reached the age of one year (anniculus). In
‘this way he acquired citizenship not only for him-
self, but also for his wife and children.
᾿ς Iteratio, i.e. by remanumission, which, of course, also /erasio.
applied to the Junian Latins, Should there have been
any defect inherent in the original manumission of a
slave, it could be remedied by a second emancipation,
either on the part of the quiritary owner, if the first
-manumission had held the slave only iz bonis (1.6. in
[Bonitary or natural ownership as distinguished from
(statutory, civil, or quiritary ownership), or effected
iby any of the solemn modes—vindicta (fictitious vin-
h dication), censu (registry by the censor), or ‘¢estamento
\(testamentary disposition)."
By the following methods every Latin could obtain How all Latins
ithe franchise :— eee
_ Militia. In virtue of the /ex Visellia, introduced by sititia.
1L. Visellius Varro in the time of Claudius, a Latin
twas awarded citizenship if he had served six years in
misti homines tamquam cives Romani morerentur, quamvis eo iure
ypostea usi essent, quo vel ex lege Aelia Sentia vel ex senatusconsulto
‘tives Romani essent, divus Hadrianus iniquitate rei motus auctor fuit
senatusconsulti faciendi, ut qui ignorante vel recusante patrono ab
#mperatore ius Quiritium consecuti essent, si eo iure postea usi essent,
muo ex lege Aelia Sentia vel ex senatusconsulto, si Latini mansissent,
fivitatem Romanam consequerentur, proinde ipsi haberentur ac si
ege Aelia Sentia vel senatusconsulto ad civitatem Romanam per-
yenissent.”
2 Reg. iil. 3. 8 Cf, Gaius, i. 35 3 Ulpian, iil. 4.
Nave.
Aedificio.
Pistrino,
Mulier ter
entxa.
Magistratibus
gestis.
How ordinary
peregrins
acquired
citizenship.
260 ACQUISITION OF CITIZENSHIP
the Roman guards ; later, this term was by a senatus-
consult reduced to three years.’
Nave. By an edict of the Emperor Claudius, a
Latin having built a ship of the burden of at least
10,000 modii, and imported corn in it to Rome for
six years, received Roman citizenship.’
Aedificto,—when a Latin possessed 20,000 sesterces,
and devoted half to building a house in Rome or its
suburbs.® |
Prstrino—by building a mill and a bakehouse, on
supplying Rome with their produce for three years.*
Muter ter enixa. By a senatusconsultum, a Latin
mother who had given birth to three children acquire
the franchise.® ,
Magistratibus gestis. By the J/ex Iulia, Latins who
had exercised magistracies in their own commuinitial
(‘magistratibus in sua civitate gestis”) acquired the
rights of citizenship.°
Not so well favoured as the Latins, peregrins proper
could avail themselves of only two methods for the
individual acquisition of the Roman franchise: firstly,
by the procedure of ‘erroris causae probatio,’ anc
secondly, by an act of a properly constituted Roman
authority.
1 Ulpian, iii. 5: “ Militia ius Quiritium accipit Latinus, (si) inte
vigiles Romae sex annis militaverit, ex lege Visellia. Praeterea €
senatusconsulto concessum est ei ut, si triennio inter vigiles mili
taverit, ius Quiritium consequatur.”—Cf. the statute, 13 Geo. I
c. 3, by which it was provided that every foreign seaman who |
time of war had served for two years on board an English vessel, ;
well as all foreign protestants having served two years in a milita
capacity in the American colonies, were naturalized.
2 Ulpian, iii. 6: “nave Latinus civitatem Romanam accipital |
non Minorem quam decem milium modiorum navem fabricaverit,
Romam sex annis frumentum portaverit ex edicto divi Claudii.”—=
Cf. the English law by which all foreign protestants who had be
engaged for three years in whale-fishing were naturalized, except as
the capacity for holding public office. j
8 Gaius, i. 33 3 Ulpian, iii. 1. 4 Gaius, i. 34; Ulpian, iii, 1)
. 5 Ulpian, iii. 1. 6 Gaius, i. 95.
SaaS
4 BY ORDINARY PEREGRINS 261
_ Erroris causae probatio. This procedure dates from Zrroris causae
the lex Aelia Sentia (4 Α.Ὁ.), according to Ulpian,}?’"”*
_ though Gaius? refers it to a later senatusconsult. When
at the time of his marriage a Roman citizen was mis-
_ taken as to the nationality of his wife, whom he believed
to be a citizen, when she was in reality a Latin or a
peregrin proper, he could, by proving his mistake before
a magistrate after the birth of a child, transfer his
marriage (‘iure gentium’) into the civil ‘iustae
nuptiae,’ and thus acquire citizenship for his wife and
children.
This provision was not extended, however, to peregrini
dediticii.
παν νον τ ee.
Act of Roman authority. At the time of the kings, By Act οἵ
the Roman people voted as to the admission of new pene
citizens proposed by the king. After the reforms of heh ΟΝ
Servius Tullius, the right which had before vested in ~
the comitia curiata was transferred to the comitia
| centuriata.
Under the Republic similar principles were in force. Under the
- Naturalization was granted on a vote by the people, ®¢PY>l
| in earlier times in the comitia centuriata, and later in
the comitia tributa“ It is uncertain whether the senate,
| under the Republic, shared with the people in the right
_ to grant citizenship, or whether the censors could admit
) peregrins.* |
On certain occasions, however, this power was dele- Delegation’of
ted to magistrates, as, for example, to the triumvirs in “0°
‘the founding of colonies (‘tresviri coloniae deducendae’),
and also, at times, to the military commanders. Thus,
‘QO. Fulvius Nobilior, founder of the colonies of
‘Pisaurum and Potentia, inscribed in one of them
1(184 8.0.) in order to confer citizenship on him, the
1 iii. 4. 21, 67.
Οἷς, Pro Balbo, 24; Liv. viii. 17, 21 ; xxiii. 21; XXvii. 5 5
Welleius Paterculus, ii. 16.
* Cf. Weiss, op. cit. vol i. pp. 290, 291, who denies it in each case.
Under the
Empire.
262 ACQUISITION OF CITIZENSHIP
poet Ennius, a native of Calabria." On the motion
of the tribune Appuleius Saturninus, the people passed
a decree authorizing Marius to bestow citizenship on
three individuals in each of the colonies which he was
charged to establish (101 B.c.) after the war with the
Cimbri.? A similar authorization, but of a more exten-_
sive character, was made to Pompey at the time of his
command in ‘Spain, to grant the franchise to a certain
number of individuals. In this case, however, he was
obliged to get the opinion of his council of war.
““Nascitur, iudices, causa Corneli ex ea lege, quam
L. Gellius Cn. Cornelius ex senatus sententia tulerunt |
qua lege videmus satis esse sancti, ut cives Romani _
sint 11, quos Cn. Pompeius de consilii sententia singillatim _
civitate donaverit.”* It is very probable that Pompey ©
obtained a like authority in the case of other countries ᾿
besides Spain. Thus in Sicily where he was commander
after Sulla’s return from Asia, he bestowed the privilege |
on certain people, who thereupon assumed his a
name (nomen gentilicium). Again, later when sen |
against Mithridates he conferred citizenship on th
historian Theophanes of Lesbos. Cicero mentions oom :
cases of generals who exercised the same functions, but
these go back to the time of the Social War.’ Whe
entire communities, and sometimes even provinces (as
in the case of Gallia Transpadana), were awarded the
franchise by a general, there is no doubt that such
grant had to be subsequently ratified by an appropriate
legislative measure ;—of which an example is seen im
the case of the people of Gades.®
Under the Empire, the will of the emperors
all-powerful in this as in other respects. They be
practically the sole legislative organ. By virtue off th
1Cic. Brut. 20, 79. Ὑ ἔ
2 Οἷς. Pro Balbo, 20, 21: “... qua lege Saturninus C. Mario tulerat,
ut in singulas colonias ternos cives Romanos facere posset. ..-
Cf. Plut. Mar. 28. ἫΝ
8 Cic. Pro Balbo, 8. 4Cic. In Verr. ii. 8, 42 5 iv. 11, 22.
° Pro Balbo, 22; cf. Pro Archia, το. 6 Dion Cass, xli. 24.
PIE shy eye ee To)
metic fm a, rw hn
Pena
BY ORDINARY PEREGRINS 263
_£beneficium principale’ (referred to above), they could
_ grant citizenship either to individuals or to entire cities,
except, however, to dediticii liberti.’
retical
4
Ae
4
τὰν, gv
pi a Fils i
erat
From time to time additional methods were adopted Further means
for securing the admission of peregrins. Thus by αὐ ἰο
disposition of the /ex Acilia repetundarum® (123-2 B.c.)
“citizenship was awarded to a peregrin, through whose
instrumentality a conviction was obtained of a magis-
trate accused of peculation. In like manner it was
granted to Latins by the later /ex Servilia (111 B.c.).
Women, equally with men, could in certain cases Grants to
receive citizenship, apart from marriage relationships. “°"”
_ Cicero mentions a law, carried on the proposition of
_ the praetor urbanus, conferring citizenship on a woman,
who came from the allied Greek town of Velia, in the
south of Italy, in order to permit her to become
priestess of Ceres.’
_ Emancipated dediticii (that is, those who had been Emancipated
_ slaves and had taken up arms against Rome, and had (iu,
_ been defeated and surrendered *) were entirely debarred
from the privilege of Roman citizenship, as well as
_ from Latinity,—“ nunquam aut cives Romanos aut
Latinos fieri dicemus....”®
_ Certain classes of foreigners were sometimes subject Special rules as
to special regulations. Thus, the Gauls were admitted Sicns.
_ to citizenship on the condition (apart from the other
_ necessary qualifications) that they renounced their
national religion,—the druidical worship; and the
an
το
|
ea
διὰ ELS δὲ Te UC ERAT A CTE SR a SIA
1 See supra, p. 232, and infra, chap. xxiv. ad fin.
| As to the 4x Acilia, cf. Girard, Textes de droit romain (Paris, 1890),
ῬΡ. 49, 41.
᾿ς 8Pro Balbo, 24: “... proxime dico ante civitatem Veliensibus
- datam de senatus sententia C. Valerium Flaccum praetorem urbanum
_ Nominatim ad populum de Calliphana Veliense, ut ea civis Romana
_ €sset, tulisse.”—Cf. Orelli, op. cit. no. 3038 : “ Valeria C. L. Lycisca ||
ΧΙ. annorum nata || Romam veni || quae mihi iura dedit civis.
dedit εἴ || mihi vivae . quo inferrer . tum || cum parvola facta
τ Ceinis.
*Cf. Gaius, i. 14, 15, 16. 5 Gaius, i. 15.—Cf. Ulpian, i. 14.
Records,
Effect of
naturalization,
Full
citizenship,
264 EFFECT OF NATURALIZATION
Egyptians, only after previously being enrolled citizens
Alexandria."
The acts of naturalization were usually engraved on
bronze tablets, and set up in the public place and some-
times in temples (as the Greeks did). Livy relates that
after the defeat at Trisanum (B.c. 340) of a tumultuary
army by the consul Torquatus, and the surrender of
Latins and Campanians, the Campanian horsemen were
exempted from punishment, because they had not
revolted, and the rights of citizenship were granted to
them ; and as a memorial, a brazen tablet was hung up
in the temple of Castor at Rome.?
The naturalized alien was placed, with regard to both |
private and public rights, practically on the same footing
as natural-born citizens. He was capable of the same
regular marriage (7ustae nuptiae) as that of the Romans,
of quiritary ownership (dominium ex iure Quiritium),”
the right to vote in the comitia (dus suffragit), the right”
to institute public actions before the assembly of the
people, the right to occupy the various magistracies,
with the probable exception, in earlier times, of the
position of senators. In later times, naturalized”
foreigners were, it appears, even admitted to the dignity —
of senators. Thus, Tacitus reports a speech of Claudius
in the senate, on the admission of foreigners to citizen=_
ship, to this effect : “‘ Without searching the records of ~
antiquity, we know that the nobles of Etruria, of”
Lucania, and, in short, of all Italy, have been incor-
porated into the senate.”* And, again, speaking of the
degeneration of Rome in the year 22 a.p., Tacitus
1Plin. Epist. x. 6: “Sed cum annos eius et censum, sicut prae=_
ceperas, ederem, admonitus sum a peritoribus debuisse me ante δ
Alexandrinam civitatem impetrare, deinde Romanam, quoniam
esset Aegyptius.” |
* Liv. vill. 11: “ Equitibus Campanis civitas Romana data, monu:
mentoque ut esset, aeneam tabulam in aede Castoris Romae fixerunt.’
8 Ann. xi. 24: “Et ne vetera scrutemur, Etruria Lucaniaque et
omni Italia in senatum accitos.”
ἜΜΕΝ
EFFECT OF NATURALIZATION 265
observes: ‘At the same time a new race of men from
the municipal towns, the colonies, and the provinces
found their way not only into Rome, but even into the
senate.”
_ Even those who had obtained citizenship without the Citizenship
political privileges (civztas sine suffragio) shared many wolitical righie.
‘important civil rights (apart from the positive rights
included in their grant), such as the right to appeal to
the assembly of the people from the decisions of
“magistrates (ius provocationis), the power of escaping
from penalties inflicted upon them by voluntary exile
(ius exsilii), and they also received the protection of the
lex Porcia, which enacted that a Roman citizen must
not be beaten to death, and that of the /ex Sempronia
(123 B.c.), which provided that no attempt should be
made on the life of a citizen without the permission of
the people.
_ As a general rule, the grant of the franchise was an The grant
_ exclusively personal privilege, operating only in favour aoa 4
of the individual designated in the act. To extend the
_ privilege to his wife and children, it was necessary to in-
_ sert a special clause to that effect. Such clauses, however,
are frequently found in extant documents relating to
naturalization,” and especially so in certificates conferring
citizenship on peregrin soldiers at the expiration of their
term of service.® |
i The present chapter has shown that certain important
elements of private international law were clearly recog-
“nized by Rome, and that these elements, moreover,
jfurnished the fundamental basis of the law and practice
sof modern States with regard to questions of domicile,
‘nationality, and naturalization. We have seen that the
εὐ
1 Ann. iii. §5: “Simul novi homines e municipiis et coloniis atque
tetiam provinciis in senatum crebro adsumpti.”
2Cf. Plin. Epist. x. 6 (C. Plinius Traiano Imperatori): “Ago
tias, domine, quod et ius Quiritium libertis necessariae mihi
feminae et civitatem Romanam Harpocrati, iatraliptae meo, sine
mora indulsisti.”
~ Cf. Orelli, op. cit, vol. i. no. 2652; Renier, op. cit. no. 9 (a
266 FUNDAMENTAL PRINCIPLES
Romans carefully discriminated between the ius originis
and the ius domicilii,—matters which were in and for
our own age developed with such fruitful results by the
great jurist Savigny. We have seen the extent of our
indebtedness to the Roman conception of factum and
animus in the acquisition of domicile ; to the treatment
of plurality of domiciles ; and to the regulation of the
domicile of a husband’s wife and children. We have
seen the gradual development of rules relating to the
nationality of origin, in conformity with the demands
of the ius gentium; and the establishment of a syste-
matized practice as to concessions of citizenship, and the
formalities and public authorization necessary thereto.
portion of the first outside page of such a certificate found at
Gragnano in 1750, and now at the Naples Museum) :
“Ti, Claudius Caesar Aug(ustus) Germanicus, 4
pontifex maxim(us), trib(unicia) pot(estate) XII, imp(erator) XXVII,
pater patriae, censor, co(n)s(ul) V, - E
Trierarchis et remigibus, qui militave-
runt in classe, quae est Miseni sub Ti.
Iulio, Aug(usti) lib(erto), optato, et sunt dimissi
honesta missione, quorum nomina sub-
scripta sunt, ipsis, liberis posterisque |
eorum civitatem dedit, et connubium ἝΞ
cum uxoribus, quas tunc habuissent |
cum est civitas 115 data, aut, si qui
caelibes essent, cum iis quas postea
duxissent, dum taxat singuli singulas,.. .”
e+» Εἴς,
CHAPTER XII
| ROME AND FOREIGNERS.—JURISDICTION.—PERSONAL
: AND TERRITORIAL LAW.—CONFLICTS OF LAWS
Tue development and the applicability in general of the Gradual _
ius gentium and the legal position of the different roaxstionsim
classes of peregrins have already been considered. _ It aliens.
has been pointed out that in the earlier epochs of
ancient States the attitude to foreigners was marked by
severity, that a more or less rigid exclusiveness then
usually obtained, that the ever-increasing intercourse
and communication, in warlike as well as in peaceful
_ relationships, tended to promote the adoption of various
relaxations, that the institutions of hospitium and clientela
were made possible, and soon exerted a profound
influence on the conceptions and ideals of international
conduct, so that a universal desire was fostered for
entering into formal treaties of peace, of alliance, of
“commerce; it has been pointed out that the insti-
tution of recuperatores' was established to examine the
disputes in which foreigners were involved, and thus
‘finally in the praetor peregrinus (somewhat like the
_xenodikai in Greece), a more permanent and more
‘comprehensive and efficacious jurisdiction was set up
‘to meet the growing demands of all classes of
_peregrins.
It appears, as Becker has pointed out, that the shorter The title
title, praetor peregrinus, is first found in inscriptions of ,Prcrinus,
ithe time of Trajan (98-117 a.p.). In the older laws
1QOn recuperatores, see infra, chap. xvii. ad_fin.
Origin of
praetor
peregrinus.
Appointment
and position of
peregrin
praetor.
268 THE PEREGRIN PRAETOR
the alien praetor is more fully designated ‘ praetor qui
inter peregrinos (as also inter cives et peregrinos) ius
dicit,’ and the urban praetor is likewise described as
‘praetor qui inter cives ius dicit.’ |
The date of the origin of the praetor peregrinus? is
not certain; but it would seem from a passage in
Lydus’ that the office was first instituted in 247 B.c.
In the view of Niebuhr, this came about merely
through reasons of political necessity, the main cause
being the desire to destroy or mitigate the excessive
power of many Roman citizens of aristocratic stock,
who had become the patrons of large numbers of
foreign clients. But the explanation given by Pom-
ponius is more probably correct, viz. the inadequacy
of the urban praetor to cope with the necessities of the
constantly increasing multitude of foreigners, which,
consequently, brought about the appointment of a
special official for that purpose. ‘... Non sufficiente”
eo praetore quod multa turba etiam peregrinorum in
civitatem veniret, creatus est et alius praetor qui pere=_
grinus appellatus est ab eo, quod plerumque inter
peregrinos ius dicebat.” ° 2
Like the praetor urbanus, whose province became
practically confined to affairs between citizens, the”
praetor peregrinus was nominated every year by the
comitia centuriata, on the day following the election of
the consuls. Later, at the time of the ‘sortitio pro-
vinciarum,’ he was elected by lot, and his department
and jurisdiction were specially assigned.* He enjoyed
the same rank as the urban praetor, save that the lattes
had the prior right to discharge the functions of cons 1] '
1Qn the praetor peregrinus and his influence on the development —
of the ius gentium, see F. C. Conradi, De practore peregrino; Rodiere;
loc. cit.; C. de Boeck, Le préteur pérégrin (Paris, 1882); F. Faure;
Essai historique sur le préteur romain (Paris, 1878), pp. 92 “6. 2
2 De magistratibus populi romani libri tres.
« Ε΄
8 Dig. 1. 2. 2. 28. we
4Liv. xxii. 353 xxiii. 30; xxxii. 28.—Cf. Mommsen, Rom
Staatsr. vol. 11. pt. is pp. 208 seg. By
HIS JURISDICTION 269
in their absence, and also could alone celebrate certain
games and sacrifices.
_ We find the praetor peregrinus from time to time Other duties
performing various other duties. Thus the command sega ag
of Roman legions was occasionally entrusted to him ;
and, as Livy tells us, he was sometimes engaged in ta
raising of troops,’ in the equipping of ships,‘ in the
quelling of servile insurrections.® At times he acted as
master of the mint, as superintendent of the distribu-
tions of corn (frumentationes), and as guardian of the
temples and public monuments. Again, he was, on
certain occasions, charged with diplomatic missions or
other functions of a like character. For example, in
181 B.c., he introduced to the senate deputies from
_transalpine Gaul ;‘ in 172 B.c. he took charge of the
installation of the son of the king of Cappadocia,
_ Ariarathes, and of his suite ;* in 179 B.c. he conveyed
_to the Ligurians the ambiguous pronouncement of the
senate in reply to their request for perpetual peace ;
: he was sent to Numidia to bring Jugurtha back to
Rome.” And, arising out of such duties, a certain
“international judicial function was now and again
exercised by him, as when he investigated the complaints
made against the Illyrians of acts of brigandage," and
decided as to the expulsion of foreigners whose presence
was deemed to be detrimental to public safety. On
- 1Cf. Girard, Histoire de Porganisation judiciaire des Romains (Paris,
- 1901), t. i. p. 210, n. 3.
> # Liv. xxi. 26. 43 3 xxvii. 73 xxviii. 10.
Liv. xl. 18; xlii. 27 ; xliii. 9. 4Liv. xxvii. 22; xlii. 27.
5 Liv. xxxiil, 26. 6Cic. Iu Verrem,ii. 1.50. 7 Liv. xxxix. 54.
8 Liv, xlii. 19. 9Liv. ΧΙ, 18: Sall. Jug. 32. 1 Liv. xl. 37 seg.
Liv. xxxix. 3.—Cf. Aul. Gell. vii. 19; xv. 11: “ Neque illis
solum temporibus nimis rudibus necdum Graeca disciplina expolitis
“philosophi ex urbe Roma pulsi sunt, verum etiam Domitiano
_Imperante senatusconsulto eiecti atque urbe et Italia interdicti sunt.
‘Qua tempestate Epictetus quoque philosophus propter id senatus-
)consultum Nicopolim Roma decessit.”——Val. Max. i. 3: “ Chaldaeos
igitur Cornelius Hispalus urbe expulit et intra decem dies Italia abire
‘iussit, ne peregrinam scientiam venditarent.”
Competence
of the two
praetors.
Proceedings
before the
peregrin
praetor.
270 THE PEREGRIN PRAETOR
one occasion (187 B.c.) twelve thousand Latins were
compelled to leave Rome, as a result of his decision :
“Hac conquisitione duodecim milia Latinorum domos
redierunt, 1am tum multitudine alienigenarum urbem
onerante.” ! ᾿
The jurisdictions οἱ the two praetors were never
clearly determined, at least till the time of the emperors,
and scarcely ever sharply discriminated. The com-
petence of the pracior peregrinus extended to ordinary
peregrins, as well as to Latins or municipes when in
Rome. When the Latin peregrins remained in their
own towns they were amenable to their local tribunals,
or to the pracfecti ture dicundo appointed by the
praetor urbanus to administer civil justice in a certain
number of towns.” ᾿
It was possible to οὐδεν before the praetor pere-
grinus by the sacramentum (which was at first an act
stake or deposit liable to forfeiture, afterwards securit
offered by the litigants). Thus Gaius in his section ol
fictions says that only two cases were set apart for
statute process, namely, apprehended damage and
centumviral causes, and adds that the latter were still
preceded by the statute process of sacramentum before
the urban praetor or the peregrin praetor, as the case
may be. ‘“‘Tantum ex duabus causis permissum est
lege agere ; damni infecti et si centumvirale iudicium
futurum est. sane quidem cum ad centumviros itur,
ante lege agitur sacramento apud praetorem abi 24
vel peregrinum (praetorem).”* On this passage mainly
Mommsen bases his conclusion that peregrins had thi ie
right to resort to the /egis actiones in general : “ Sacra=—
mento actum esse etiam apud praetorem peregrinum, it
est lege agere potuisse peregrinos quoque confirmat
Gaius.”* It is questionable, however, whether the
1 Liv. xxxix. 3. 2 Cf. Mommsen, Rim. Staatsr. vol. ii. p. 2 fa.
Gaius, iv. 31 (certain minor restorations of text have been made
in this passage), |
4In his commentary on Corp. inscrip. Lat. vol. i. p. 66, no. 23. 4
HIS JURISDICTION 271
‘sources referred to warrant the drawing of a generaliza-
tion to this extent.
Usually the praetor peregrinus referred the litigants Recuperators.
to the recuperators, who have been described as the
successors of the international judges of early Rome,—
‘ha heritiers cen juges internationaux de la Rome
primitive.”
He Died the provisions of the ius odateladl ; and The praetor
by means of his edicts gradually expanded this ‘ gentile’ pave nomi
law till it attained to a fully-developed system, which,
constantly enlarging its applicability and furnishing
“equitable solutions ultimately assumed a predominating
position. Asa French writer observes, in reference to
the growth of the ius gentium and its final triumph
over and absorption of the civil law, it was at first
“étranger aux rapports des citoyens entre eux, puis
_devenu le droit commun a tous les hommes libres qui
ont accés aux tribunaux romains, envahit le domaine
-originairement régi par le jus civile, engage avec lui un
: combat victorieux, le supplante et l’absorbe, et constitue,
sous le nom de jus romanum ce droit, 4 la fois humain
et universel, qui a traverse les siécles. ὩΣ
But under the emperors, with their subtle and Dectine of
"rigorous invasions into established institutions, with aoe nae
_ their all-transforming policy, the importance of the ‘he Pmpire.
praetor peregrinus began to decline, and his judicial
‘competence became more and more diminished. His
/ office was subordinated to that of the praefectus urbi,
‘instituted by Augustus; and by the time of the
_Antonine constitution with its universalized franchise,
jit has practically sunk into insignificance ; so that what
‘was formerly a magistracy of great power had (to use
jan expression of Boethius) declined to an empty name,
——_ Er praefectura magna olim potestas, nunc inane
jnomen....”8 .
In the application of the peregrin law in the classical
1 Weiss, of. cit. vol. v. p. 29.
50, de Boeck, op. cit. p. 210. | 8 De comsolatione, iii. 4.
Application of
peregrin law—
different
systems.
272 PEREGRIN LAW
period before Caracalla’s extension of the Roman
franchise, different rules and systems were more or less
involved. And in considering their application it is
important to bear in mind that not only were peregrins
proper subjected to this régime, but also people who
were in alliance with Rome—/iberi et foederati—and pre-
served their autonomy, and who therefore were, in regard”
to the Romans, aliens (externi). As Proculus says π΄
the Digest: “non dubito quin foederati et liberi
nobis externi sint.”1 Again, sometimes communities |
without being strictly “beri were permitted, in virtue
of a formal concession by the /ex provinciae, to retain
their private law. By a senatusconsultum promulgated
in 196 B.c. on the conclusion of the Macedonian war,
this was the position of the Corinthians, the Phocaeans,
the Locrians, the Euboeans, the Magnetes, the Thes-
salians, the Perrhaebi, and the Achaeans of the Phthiotis,?_
a district in the south-east of Thessaly. From about
the same date also the Chalcidians,? somewhat later”
(167 B.c.) the Macedonians,‘ in the time of Cicero”
Byzantium, Mytilene, Smyrna, Dyrrhachium (in Greek”
Illyria), Patrae (in Achaea), Thermae, and most of the
Sicilian towns, under Trajan Amisus (on the coast of
Pontus), and many other cities besides enjoyed their”
own laws, which were either their original laws, or such
as had been conferred upon them by the Romai
generals who had secured their submission.? As to the
Gauls, amongst the civitates foederatae were the Carnuti,
the Aedui, the Remi, the Lingones, the Vocontii ; anc
amongst the civitates Hberae were the Santones, tht
Turones, the Bituriges Cubi and Bituriges Vivisci (oF
we
1 Dig. xlix. 15, pr.
2 Liv. xxxiii. 32. 8 Liv. xxxv. 46.
4Liv. xlv. 29: “ omnium primum liberos esse iubere Macedonas,
habentes urbes easdem agrosque, utentes legibus suis, annuos creantes
magistratus.”” 4
5 For a full account of this organization, see Marquardt, Orgamisa=
tion des rimischen Reichs (in Rimische Staatsverwaltung). ὩΣ
ὙΕΙ͂Σ.
PEREGRIN LAW 273
SRS ETN
Ubisci), the Arverni, the Viducassi, etc.’ And to these
“must be added the numerous cities which received the
_ tus lati, thus forming a privileged class amongst foreign
I cities. The Roman colonies are to be excepted from
this category, as the Roman law was almost entirely
applied to them.’
It will be evident from these considerations that there Peregrin law
were bound to be different systems and rules in force τον
amongst the aliens in their respective countries. Under divergence.
_ the circumstances, the contrary is scarcely conceivable.
In many of the departments of private law there were
peuterences, greater or lesser, between the Roman law
_and peregrin law,” and also between the various systems
_of peregrin law themselves. Thus in the Italian towns
“special rules prevailed in regard to marriage ; but these
were, of course, abandoned when Roman citizenship
was conferred on them.‘ Paternal authority was no-
here organized exactly as the patria potestas was in
- Rome; nor was dominical power. In some communities,
tutelage of minors could not be determined by testa-
| mentary disposition. Tutelage of women, in the strict
_ sense, was generally unknown ; at most a quasi-tutelage
ee: There were differences in the methods of
adoption and succession. Conceptions of property and
a varied considerably. “Ihe Roman distinction
between dominium and in bonis was hardly anywhere
-adopted.> The provisions relating to wills varied from
"place to place.’ There were differences in contracts, in
_ the conception of their binding force, in the obligations
fpepored by them. Some contractual obligations were
enforced in peregrin countries, and not admitted in
Rome. Andso on with other differences in the several
branches of private jurisprudence.
_ 1For more detailed information, see Klipffel, Etude sur le régime
municipal gallo-romain (in Nouvelle Revue historique de droit frangais et
\ étranger, Paris, 1878 and 1879, pp. 283 seg.).
᾿ #Cf. Chénon, dic. cit. p. 216. 8 Cf. Chénon, of. cit. p. 217.
* Aul. Gell. iv. 4. 5 Gaius, ii. 40. ὁ Ulpian, xx. 4.
5
Law applied
to peregrins
resident in
Rome.
Peregrin law
in Rome.
274 PEREGRIN LAW
The important question arises, in view of the multi-
plicity of such variations and inconsistencies, what law
is applied to the peregrins when residing temporarily
or permanently in Rome? The rights refused to aliens
in Rome by the zus civile, and those conferred on them
by the zus gentium have already been mentioned.1 The
principles of the ius gentium as administered by the
praetor peregrinus were deemed to be applicable to
peregrins in general, either in disputes amongst
themselves or between themselves and Roman citizens ;
so that in regard to those matters covered by ΜΝ
special system there could scarcely arise conflicts of
laws. But Laurent goes too far when he says in his”
usual manner of rapid generalization : ‘‘ Les Romains,
pas plus que les Grecs, n’avaient aucune idée d'un
droit personnel. ... Quant au droit des gens, c’était un
droit commun ἃ toutes les nations, le meme partout.
Cela rendait tout conflit impossible entre les deux droits,
car le droit des gens faisait partie du droit civil.”? But
by his admission, made at the same time, that conflicts”
were possible between peregrins belonging to different
communities, he undermines the very basis of his theory. -
Now peregrins when in Rome enjoyed many private
rights which, though exercised in a somewhat different
manner, yet possessed the same substantial significance
as the corresponding rights of the Roman civil law,
and the same validity in respect of their legal sanction.
So that in conformity with certain determined law
aliens were enabled to contract marriages, to exerci
paternal and dominical authority, to avail themselves o
the rights of adoption, tutelage, of testamentary right
intestate succession, and so forth. “En un mot,
avaient eux aussi, leur jus civile pérégrin, corresponda
au jus civile romain.”* As Gaius says in a passag
where, however, a wider application is intended, tl
different people were governed partly by their o
1See supra, pp. 233 seg.
2 Le droit civil international, vol. i. S§ 102, 104.
8 Chénon, Mc. cit. p. 225.
POSSIBLE CONFLICTS OF LAW 275
particular laws, partly by those common to all men:
“Omnes populi, qui legibus et moribus reguntur,
)partim suo proprio, partim communi omnium hominum
ἀγα utuntur.”* And Justinian repeating the statement
sadds, in order to be more explicit, that civil law derives
tits name from the State where it prevails, as, for example,
ithe civil law of Athens, it being quite correct thus to
‘designate Solon’s or Draco’s legislation.’
_ We therefore get a peregrin civil law existing side by Possible
sside with the Roman civil law. The two systems could (onic
between the
regulate common institutions ; and, if it may be 80 Peregrin law
; ° : : eee and the
wexpressed, the totality of their points of coincidence Roman.
irepresents the sphere of the ius gentium. But as there
was not, and under the circumstances there could not
mpossibly have been, a perfect analogy between the two
's) stems and corresponding provisions relating to all
‘departments of civic and private life, a conflict of legis-
ations would necessarily occur when there arose such
ἢ dispute, as to matters recognized in the Roman civil
law only, or exclusively in the peregrin civil law, that
the existing ius gentium was incapable of application.
hus we find in Rome questions of the nature of private
international law,’ and deliberate attempts to provide a
solution to the difficulties involved.
ἴῃ some cases conflicts were obviated by special How conflicts
Provisions in anticipation of the possibility of such οἱ αν μεῖς
lifficulties arising, as, for example, when a treaty of
illiance was entered into with Rome, or when the /ex
Vata was imposed by the Roman conqueror ; so that in
tome cases more or less of the native law of the peoples
foncerned was swept away, in other cases it was less
Maborately modified or supplemented by dispositions
if the Roman jurisprudence. Occasionally provincial
- 1 Dig. ξ; 9.
2 Inst. i. 2. 2: “Sed ius quidem civile ex unaquaque civitate
ppellatur, veluti Atheniensium ; nam si quis velit Solonis vel
Praconis leges appellare ius civile Atheniensium, non erraverit.”
| §C£. Chénon, ἦε. cit. p. 225.
276 HOW CONFLICTS OBVIATED
governors were authorized to dispense with the peregrin
civil law that prevailed in their districts, and regulate
certain matters by means of special edicts intended to
apply to everybody. In this way new regulations were
laid down respecting the constitution of States, debts,
usury, contracts, and various other matters, as Cicero
mentions in one of his letters:1 “᾿ς Edicto Asiatico,
extra quam si ita negotium gestum est, ut eo stari non
oporteat ex fide bona, multaque sum secutus Scaevolae,
in iis illud, in quo sibi libertatem censent Graeci datam,
ut Graeci inter se disceptent suis legibus. Breve autem
edictum est propter hanc meam διαίρεσιν quod de duobus
generibus edicendum putavi, quorum unum est pro-
vinciale, in quo est de rationibus civitatum, de aere
alieno, de usura, de syngraphis, in eodem omnia de
publicanis. . Ἢ Again, Cicero relates, with regard to
the Sicilian towne, for instance, that if a dispute arose
between two citizens of the same town, it was tried
according to their common laws ; but if it were between
citizens of different towns, the praetor appointed judges
by lot, in virtue of the decree of P. Rupilius, viz. the
lex Rupilia. And should there be any difference between
a private individual and an entire community, the
senate of a third city was to be chosen as judges or
arbitrators, in case the senates of the towns in question
are objected to. In any action by a Roman citizen against
a Sicilian, the judge was to be a Sicilian ; if the action
18 brought by a Sicilian against a Roman, the judge was
to be a Roman; in other matters the judges were to
be selected from among the Roman citizens (“ Siculi hoc:
lure sunt, ut, quod civis cum cive agat, domi certet su
legibus ; quod Siculus cum Siculo non eiusdem civitati
ut de eo praetor iudices ex P. Rupilii decreto, quod
de decem legatorum sententia statuit, quam legem i
Rupiliam vocant, sortiatur. Quod privatus a populo
petit, aut populus a privato, senatus ex aliqua civitate,
qui iudicet, datur, quum alternae civitates reiectae sunt.
Quod civis Romanus a Siculo petit, Siculus iudes datur;
1 Ad Attic. vi. 1. 15.
1US GENTIUM AND PEREGRIN LAW 277
| quod Siculus a cive Romano, civis Romanus datur ;
ceterarum rerum selecti iudices civium Romanorum ex
conventu proponi solent”*). These provisions, based
largely on equitable considerations, were (Cicero adds)
. ο erthrown under the praetorship of Verres.
_ Again, in the case of aliens in Rome, the us gentium, The ius
“where found inadequate or inoperative, was frequently see eek
supplemented or replaced by the /ex peregrinorum, the by the ler
law of origin (tus originis) of the peregrins in question.
| os concession to foreigners was due to the desire on
the part of the Romans to grant them justice and equit-
Ely able treatment, as well as to political reasons. It was
often bestowed on people who were subjugated and
ΜΝ under the Roman dominion. The work of
assimilation proceeded the more easily and thoroughly
when such measures of tolerance were adopted, and
respect for the national customs of the conquered were
shown. Thus Cicero writes: “... Ita multae civitates
ymni aere alieno liberatae, multae valde levatae sunt ;
omnes suis legibus et iudiciis usae αὐτονομίαν adeptae,
revixerunt ” ;* and again as to the Greeks retaining
_ their own judges—« Graeci vero exsultant, quod pere-
} grinis iudicibus utuntur.” 3 Pliny refers to the city of
_ Amisus as being allowed to enjoy its own judicial system:
<* pAmisinorum civitas et libera et foederata... suis legi-
dus utitur’ ;* and Livy enumerates many communities ®
already mentioned above) treated on the same footing.
[his policy explains the active coexistence within the
Empire of Roman law and divers peregrin bodies of
Taw,® and their application in accordance with the vary-
ing needs and changing conditions.
1 In Verrem, ii. 2. 13. 2 Ad Att. vi. 2. 4.
8 Ibid. vi. τ. 15. 4 Fist. x. 93.
— 5xxxiii, 32: “...Senatus Romanus et T. Quinctius imperator
| Pk *hilippo rege Macedonibusque devictis liberos, immunes, suis legibus
iubet Corinthios Phocenses Locrensesque omnis et insulam
uboeam et Magnetas, Thessalos, Perrhaebos, Achaeos Phthiotas.”
Ἴ. Bo L. von Bar, Theorie und Praxis des internationalen Privatrechts,
When an
individual
belonged to
different
communities
by origin and
domicile,
Savigny’s view
as to
application of
the law of
origin,
278 LAW OF ORIGIN AND OF DOMICILE
It has already been explained that an individual could
be attached to a town by a twofold tie,—origo and
domicilium. ‘To belong to a town involved in general
his being subject to certain munera, to the local
jurisdiction, and to its positive law. But in case a
person belonged to several towns, in virtue of origo or
domicilium, he was liable to the munera and jurisdiction
of each; but he could not, of course, be subject at one
and the same time to the legislations of the different
communities. Asa rule, the defendant could be made
to appear before different magistrates at the election of
the plaintiff. But when brought before this or that
tribunal the question arises, in view of the coexistence
of two or more systems of law, what particular body of
rules is to be resorted to; for the ius originis and the
lex domicilii may provide different or even contrary
solutions to the particular matters in litigation. To
meet such a contingency, the territorial law adopted to”
adjust differences of this character was determined by
the law of origin and not by the domicile. Thus
Savigny held it as an indisputable fact that when an
individual possessed citizenship and a domicile
different towns, the law of his own city governed ὡς
application of the local law. ‘Ich halte es nun fur
unzweifelhaft dass das ortliche Recht, dem jede Person
unterworfen seyn sollte, wenn diese Person in zwei
verschiedenen Stidten das Birgerrecht und den Wohn=
sitz hatte, durch das Burgerrecht bestimmt wurde, nicht
durch den Wohnsitz.”! The reason for this is, as the
same eminent writer points out, that ογίρο is an older,
earlier tie, originating with the birth of the person, as
well as a stricter and superior one, since domicile is neces=
sarily subject to his arbitrary will and varying caprice.
‘‘Erstlich war das Biirgerrecht das engere, an sich
hdher stehende Band, verglichen mit dem von Willkur
und Laune abhiingenden Wohnsitz. Zweitens war €s
das friihere Band, da es durch die Geburt geknay of
ν bee des heut. rom, Rechts, vol. viii. § 357, Ρ, 87. ae
LAW OF ORIGIN AND OF DOMICILE 279
_ wurde, der anderwarts vorhandene Wohnsitz erst spater
᾿ durch eine freie Handlung entstanden sein konnte,
_ weshalb das fiir die Person einmal begrtindete territoriale
_ Recht hatte umgewandelt werden sollen.”* There are
_ several texts that confirm this view. Thus we find in
Gaius “...et alio iure civitas eius utatur,’”’ where he
_ speaks of no successor of the sponsor or fidepromissor
_ being bound, except the successor of an alien fide-
_ promissor in whose municipality such a rule prevails ;? in
y
4
_ Ulpian “...ut secundum leges civitatis suae testetur,”®
_ where he refers to the validity of wills when made in
_ conformity with the laws of the city; in Justinian’s Code,
_ we find the rescript of Diocletian pointing out the
᾿ applicability of the provisions of the municipal constitu-
tion to the execution of testaments—‘si non speciali
_ privilegio patriae tuae iuris observatio relaxata est et
_ testes non in conspectu testatoris testimoniorum officio
- functi sunt, nullo iure testamentum valet.” ἢ
If this rule be admitted to be true, certain cases, as Exceptional
_ Savigny observes, present themselves which do not Sciinsuch
: = ey application,
_ appear to be covered by it. When δὴ individual Where
| ! ae cal > iy Ἢ plurality of
- enjoyed citizenship in several towns at the same time, citizenship
" é.g. in one by virtue of his birth, in another by adoption ἢ
or admission, his oldest citizenship, that is, the one
Ἵ resulting from origo, was regarded as pre-eminent (“In
einem solchen Falle wurde ohne Zweifel das friihere
Burgerrecht, also das durch Geburt entstandene (die
- origo) als vorherrschend behandelt .. .”°). Again, if an Where there is
individual had no citizenship at all in any town, and "°°".
_ possessed only a domicile in some country, then_ his
_ tus domicilii was the determining factor (“ Zweitens
_ konnte Jemand ganz ohne stadtisches Biirgerrecht sein,
_ wahrend er einen Wohnsitz hatte. In diesem Fall
1 Tbid.
: 7iii. 120: “... Sponsoris et fidepromissoris heres non tenetur nisi
_ si de peregrino fidepromissore quaeramus, et alio iure civitas eius
ἘΞ 32
> utatur.
ὅχχ, 15.—Cf. infra, p. 292, note 3. 4 Cod. Just. vi. 23. 9.
ὅ Op. cit. § 357, p. 88.
Applicability
of personal law
to peregrins of
same origo,
280 APPLICATION OF PERSONAL LAW
musste der Wohnsitz als Bestimmungsgrund fiir das
auf ihn anwendbare persénliche Recht gelten’’?),
Further, as to an individual possessing no citizenship
at all, but having a domicile either in several towns or
in none at all, we have no direct evidence as to how the
Romans treated such a case (‘‘ Wie die Rémer solche,
bei ihnen gewiss seltene Falle beurtheilt haben mégen,
lasst sich aus unsern Rechtsquellen nicht durch unmit-
telbare Zeugnisse nachweisen ”’”).
This personal or national law* was mainly applicable
to those peregrins invested with the same ovigo; it
could scarcely be operative in the case of those of
different nationality, and in the relationships between
Roman citizens and peregrins. Further, as Girard
points out,* it had no validity in the case of such
dediticii as were exempted from the local juridical
system,—which was of rare occurrence under the Em—
pire, the only instance being that of the Jews, after the
taking of Jerusalem,°—nor in the case of those who
were condemned to deportation at the time of the
Emperors. ° | 4
1Savigny, op. cit. § 357, p. 88. 2 Ibid. ae
3 On the relationships of the various systems of national law to the
Roman civil law under the Empire, cf. L. Mitteis, Reichsrecht und
Volksrecht in den istlichen Provinzen des rimischen Kaiserreichs (Leipzig,
1891). @
4 Manuel élém. de dr. rom. p. 111: “Elle était surtout relative
aux rapports des pérégrins de méme cité ou tout au moins de méme
nationalité. Elle était 4 peu prés stérile pour ceux des pérégrins de ~
race différente, pour ceux des pérégrins et des citoyens. Elle l’était
tout ἃ (δ: pour les pérégrins qui ne faisaient partie d’aucune cité,
c’est-a-dire pour les étrangers annexés qui, aprés leur capitulation”
(dediticii) n’avaient pas regu de statut local et qui étaient assez rares
pratiquement, dont il n’y a pas d’exemple sous |’Empire, sauf peut
étre les Juifs depuis la prise de Jérusalem, et pour les citoyens qui —
avaient perdu la cité ἃ titre de peine sans en acquérir une autre,
comme c’est le cas des déportés de l’Empire.” =
5On the condition of the Jews, cf. Mommsen, in Historische
Zeitschrift (Munich, 1890), p. 424, n. I. Ἕ:
® Dig. xlviii. 19 (de poenis), 17. 1.—On loss of citizenship, see
supra, pp. 211 seg.
ont
tet πος ΠΟ
CARACALLA’S CONSTITUTION 281
With the Antonine constitution’ the application of Effect of the
"the local systems of law was naturally to a large extent @pstitition of
diminished, but they can by no means be said to have the application
_ been abolished entirely. The question whether Cara- law.
" calla’s gift of the Roman franchise changed the personal
_ law is a subject of controversy. Savigny,” for example, savigny’s view.
held that it did not, whilst Von Bar’s view is to the von Bar’s
contrary. In the opinion of the former, the personal ““™’
rights of a municeps who enjoyed Roman citizenship,
_as well as his native rights, were not determined by his
~ Roman citizenship, but by his ius originis. The later
_ writer maintains, however, that this opinion is impaired,
- the first place, by the fact that a prominent meaning
ic lh κα το νον. si ἐνῷ:
was attached to Roman citizenship in relation to private
rights towards the end of the Empire, and, secondly, by
r fact that the real object of the Antonine constitution
| AEE SDE tea pecan
eae
was to extract succession duties from aliens as well as
from Roman citizens. And how could the Roman law
Ἵ ἢ succession, asks Von Bar, have been extended to
the citizens of the municipia, if the laws of the family
- and of legal and commercial capacity were not also
regulated by Roman jurisprudence ! δ (‘Dieser Ansicht
| widerstreitet in der spateren Kaiserzeit, wo feste
politische Rechte des Einzelnen wenig in Frage kamen,
) die vorherrschend privatrechtliche Bedeutung der Civitat,
᾿ς und vollends der bekannte Zweck der Constitution von
Caracalla, welcher namentlich die von rémischen Erb-
: “schaften bezahlten Steuern auch von denen der Pere-
| grinen beziehen wollte. Wie hatte aber das rémische
Seirbrecht auf die Burger der Municipien angewendet
᾿ς werden k6énnen, wenn nicht auch ihr Familienrecht
: und ihre persdnliche Rechts- und Handlungs-fahigkeit
- nach rémischen Rechte beurtheilt ware δ᾽ *) The same
_ Writer urges, as an additional argument against Savigny,
ὦ Ὦ
ἐπ ἢ
τ ἴρῃ the rights allowed to peregrins before Caracalla, see supra,
ΟΡ. 230 59.
«System des heut. rim. Rechts, vol. viii. § 357.
51, von Bar, Theor. u. Prax. d. int. Privatr. § 11, p. 21, n. 16.
282 CRITICISM OF MODERN VIEWS
the fact, recorded by Aulus Gellius,’ that when Roman
citizenship was conferred on Latin towns they lost their
marriage laws at the same time.
Criticism of In reference to these two opposed views there is little
poi * doubt that the view of Savigny inclines too much to
the extreme. The bestowal of the Roman franchise
certainly had a great modifying influence on the appli-
cability of the ius originis of the many peoples absorbed
under the Roman dominion. A good many of their
native laws were by the Roman authorities deprived of
their operativeness, and provisions drawn from the
civil law were substituted therefor, when such native
laws were conceived to be prejudicial to the fundamental
aims of the Roman policy, and when their maintenance
would seriously interfere with the judicial organization.
And yet Von Bar’s generalization is much too wide,
Objections to and is far from being tenable in view of several im-
Sones, =» portant facts to the contrary. Even if the marriage
laws of the Latins were largely supplanted by those of
the Romans, it does not follow that every other depart-
ment of the peregrin legal systems was necessarily
swept away. It is quite possible that from a theoretical |
and more abstract point of view the law of succession
may be shown to have relationships with other depart-_
ments of private law; so that to modify one of them
would necessitate a counterbalancing modification of all
the others. But the entire body of private law is not ai
system marked by absolute unity and harmony. In
practice, its parts are not so rigidly connected that an
alteration in one would inevitably produce an a τ
thtoughout. The practical necessity of time and pla eC
pays but little homage to strict logical consistency, 7 :
the theoretical demands of an abstract system.
submitted, therefore, that the more correct view is ΕΝ
between these two extremes. Further, it may be urges
that even if Caracalla’s extension of the Franchi
changed entirely the ius originis of the people then
1 Noct. Alt, iv. 4.—C*%, infra, p. 285.
=
χὰ or ae weet
he AR:
ee δὶ τὰς. “ἡ
ee ewe! ee ee
ces
~~
OA NEY Ochre, voz em AEN MGT A Mae SE ἩΝΜΕΣ os a nen
ἢ ee εγώ ΩΣ: ποτ
τς ae
- 22.
CRITICISM OF MODERN VIEWS 283
existing, part of the new population that would sub-
sequently arise would not be, through various causes,
vested with the Roman citizenship ; so that to them, at
least, the alleged new régime could scarcely apply. In
point of fact there were large numbers of people living
in the confines of the Empire, who were not citizens, in
spite of the new constitution, but were none the less
subjects of Rome.’ Moreover, dispensations were from
time to time granted by the emperors to various cities,
permitting them to make use of their original laws.
Severus and Antoninus allowed in one case a certain
divergence from the established Roman law on questions
relating to the contract of sale.” Severus recognized
the juridical force of long-established custom (‘longa
consuetudo’), which he instructed the provincial
governors to observe (224 a.D.): ‘‘ Praeses provinciae
probatis his, quae in oppido frequenter in eodem genere
_ controversiarum servata sunt, causa cognita statuet.
nam et consuetudo praecedens et ratio quae consue-
tudinem suasit custodienda est, et nme quid contra
longam consuetudinem fiat, ad sollicitudinem suam
revocabit praeses provinciae”;* and similarly in a
᾿ rescript of the year 231 A.D.
Constantine—the disturber of old laws, as he has
/ been described, “novator turbatorque priscarum
lezum’’*—tried to destroy the juridical validity of
custom (319 a.D.);° but the theory of Julian was
antagonistic to this revolutionary measure.® Justinian
also recognized the legal importance of custom, and, in
1Cf. Mommsen, Ostgotische Studien, in Wattenbach’s Neue Archiv,
Xiv. pp. 526 seq.
2 Just. Cod. xi. 32. 1.
8 Just. Cod, viii. 52. 1.
4Amm. Marcell. xxi. ro. 8.
ὅ Just. Cod. vill. 52. 2: “ Consuetudinis ususque longaevi non vilis
auctoritas est, verum non usque adeo sui valitura memento, ut aut
rationem vincat aut legem.”
6 Dig. i. 3 (de legibus senatusque consultis et longa consuetudine),
284 RISE OF CONFLICTS OF LAWS
his time, inveterate usage was frequently allowed to
override the Roman civil law." More examples and
details to the same effect will be given below ; but the
considerations already advanced are, it is believed, quite
sufficient in themselves to show that the ius originis of
the numerous peoples under the Roman sway was not
at all demolished, nor even very largely superseded by
the ius civile.
Subsequent. It is, of course, after the fall of the Roman Empire,
oflaws and the subsequent establishment of a number of
European autonomous and independent States, charac-
terized by different local customs, actuated by different
needs, and, in consequence, originating different legis—
lations, that the more rapid development of private
international law became possible. The conflict of laws
resulted from the antagonism of personal to territorial —
law, each claiming predominance.” Thus, in the Middle ~
Ages we find in the same country, and frequently even |
in the same city, the Lombard living under the Lom- —
bardic law, and the Roman under the Roman law; and —
the same distinction applied to the different races of
Germans, Goths, Franks, Burgundians, and divers other —
peoples who, though residing ἢ in the same territory, yet
enjoyed their respective national laws.*
Modern Nevertheless this later and more systematic evolution —
inderedness of private international law was an outcome of the
4
1Cf£ J. Gilson, L’étude du droit romain comparé aux autres droits de
Vantiquité (Paris, 1899), pp. 182 seq. 4
2Cf. U. Huber, Praelectionum juris civilis tomi tres secundum Institu-— |
tiones et Digesta Justiniani (Lovanii, 1766), vol. ii. lib, 1, tit. 3, p. 25:
“Notum est porro, leges et statuta singulorum populorum multis
partibus discrepare, posteaquam dissipatis Imperii Romani provinciis, — |
divisus est orbis Christianus in populos ferme innumeros, sibi mutuo
non subjectos nec ejusdem ordinis imperandi parendique consortes. ᾿
In jure Romano non est mirum nihil hac de re extare, cum poruli :
Rom. per omnes orbis partes diffusum et aequabili jure gubernatum
Imperium conflictui diversarum legum non aeque potuerit =
subjectum.”
3 See Savigny, Geschichte des rimischen Rechts im Mittelalter, 7 Bde.
(Heidelberg, 1834-1851), vol. i. chap. 3.
2
4
“
᾿ς ἢ
με :
EXAMPLES OF CONFLICTS 285
_ more rudimentary regulative systems obtaining under
_ the Roman administration. So that it will now be well
_ to consider in what particular cases different rules and
_ legislations were applied, and how far conflicts of laws
__were involved, and solutions for them attempted. But
_ in this connection, as in many others, it is important to Wrongattitud
bear in mind that ancient methods were not marked by ° many
_ that scientific cogency which characterizes the modern, writers.
When, by comparison with our modern conceptions,
_ the ancient ideas and practices are found to be deficient
Ὶ in this or that respect it does not therefore follow that
they are of no value or that they bear no fundamental
relationships to the ideas and practices of a later age
_ or of our present time. This caution is really necessary
_ in view of the fact that so many modern writers are
_ disposed to condemn ancient systems and doctrines
_ because they do not exactly fit in with their pre-
᾿ς judgements or with their interpretation of the conditions
_ prevailing in their own epoch. Such an attitude is
I perhaps even worse than the contrary tendency to
᾿ς apotheosize indiscriminately and uncritically all that is
- found in the past.
Before the /ex Julia (90 B.c.) conferred on the Latin Examples of
’ towns and on the Socii full citizenship, they had already era
_ observed certain special rules in regard to contracting Mariage
' marriages. Thus Aulus Gellius writes: ‘“Sponsalia in
68 parte Italiae, quae Latium appellatur, hoc more atque
ture solita fieri, scripsit Servius Sulpitius.... Hoc ius
_ sponsaliorum observatum dicit Servius ad id tempus,
_ quo civitas universo Latio lege Iulia data est.’
___Peregrins in general not enjoying the ius connubii
_ with Rome, or even with peregrin cities, could enter
- with the one or the other only into a matrimonium
_ inius.um ; but peregrins of the same city or of different Peregrins
Cities, between which there was connubium, could marry Poscscaot
ξ according to their own civil law and custom,—as Gaius
1 Noct. Att. iv. 4.
Property of
husband and
wife.
286 EXAMPLES OF
says: ‘secundum leges moresque peregrinorum ”
and such marriages could, under certain circumstances,
be tranformed into iustae nuptiae.» The offspring of
a union between peregrins in conformity with their
national laws and customs was considered in Rome a
iustus filius patris® Where there was no connubium
the condition of issue was held to follow that of the
mother by the ius gentium.
A certain passage in the Digest has been considered
to have provided a solution to a possible conflict of
laws regarding the property of husband and wife. —
Whether such property was to be regulated in pur-
suance of the laws of their domicile (as held by some
writers) does not, however, distinctly appear; for
the passage says that in an action for the recovery of
the dos, the law of the husband’s domicile is applicable,
and not of the place where the dotal contract was —
concluded, as regard must be had rather to the
place which the woman herself would have naturally —
made her home in consequence of the marriage.
(“ Exigere dotem mulier debet illic, ubi maritus domi- —
cilium habuit, non ubi instrumentum dotale conscriptum
est; nec enim id genus contractus est, ut (et) eum ~
locum spectari oporteat, in quo instrumentum dotis —
factum est, quam eum, in cuius domicilium et ipsa —
mulier per condicionem matrimonii erat reditura.” δ}.
Nevertheless, it would appear probable that, when the —
husband and the wife were of different nationality, —
their property was regulated by the dex domicilti, —
since their iura originis might present provisions of
an incompatible nature. !
Judging from a decision of the year 124 we find
11, 92. :
2 Gaius, i. 28 seg. (dealing with the rules relating to the status of
the offspring of parents of unequal status), and 65 seg. (on the modes _
by which Latin freedmen could become Roman citizens) ; see supra,
PP: 257 “6. t
δ Gaius, 1. 77. 4See supra, pp. 251 seg.
5 Dig. vi. 1. 65.—Cf. Savigny, Syst. des heutig. rom. Rechts, § 370.
CONFLICTS OF LAWS 287
that in Egypt there was a system of marriage quite Marriage in
‘different from the Roman, and based on the distinction ner
“between written and unwritten marriage contracts.! At
“the end of the second century marriage between brothers
and sisters does not seem there to have been considered
illegal.
Amongst the Galatians, a paternal power existed in Paternal power
somewhat different fore from that of the Roman augnestih
patria potestas. (‘*Fere enim nulli alii sunt homines,
gui talem in filios suos habent potestatem, qualem
“nos habemus ; ...nec me praeterit Galatarum gentem
a credere, in potestate parentum liberos esse.” *)
_ Most of the peregrin communities had institutions 7w/e/a and
analogous to tutela and curatela. An alien’s testamentary peregrins.
datio tutelae for his minor children was recognized if he
was a subject of a city where the datio was allowed ;
for the wardship of children under the age of puberty,
says Gaius, is prescribed by every legislation—*‘ sed
_impuberes quidem in tutela esse omnium civitatum iure
sontingit.” 4
» By the law of Bithynia a wife was not permitted Wife's con-
PM : tract by law of
to enter into a contract without the concurrence of Bithynia.
‘her husband or her son above the age of puberty, as
(the case may be. (“ Apud peregrinos non similiter
ut apud nos in tutela sunt feminae ; sed tamen plerum-
que quasi in tutela sunt: ut ecce lex Bithynorum, si
‘guid mulier contrahat, maritum auctorem esse iubet,
aut filium eius puberem.” a)
_ After release from wardship a minor’s estate was Minor’s estate.
managed by a curator until he reached the age at
hich he was competent to administer his own affairs,
Fl sand, adds Gaius, the same rule is found amongst other
=
. ap See Girard, Textes... p. 784.
| Tea Wilcken, Berichte (Berlin, 1883), p. 903 ; and, in the same
ὧν nection, as to marriage in Athens, see Mommsen, Rémisches
Wtrafrecht (Leipzig, 1899), p. 116, n. 3, where he refers to Seneca,
wutidus de morte Claudii, 8, and quotes Wilamowitz-Mollendorff to the
ame effect.
_ 1. δὺ, 41. 189. 5 Gaius, i. 193.
ee AY TR
Adoption by a
peregrin.
Emancipation
of slaves.
Emancipation
of sons.
288 EXAMPLES OF
peoples,—‘“*...sicuti apud peregrinas gentes custo-
Gets a3
Adoption by a peregrin in accordance with the laws
of his city was recognized as valid in Rome. Thus
Cicero writing to Servius Sulpicius Rufus in reference
to Lyso, a doctor of Patrae, with whom he had a
long-standing tie of hospitality, says: ‘“ Without going
into details, 1 commend to you his entire establishment,
and among them his young son, whom my client, Cn.
Maenius Gemellus, having during his exile been made
a citizen of Patrae, adopted in accordance with the
laws of that town. I would ask you, therefore, to
support his legal claim to the inheritance.” “Quae
ne singula enumerem, totam tibi domum commendo,
in his adolescentem filium eius, quem C. Maenius
Gemellus, cliens meus, quum in calamitate exsilii sui
Patrensis civis factus esset, Patrensium legibus adopt
ut eius ipsius hereditatis ius causamque tueare.” ?
In the emancipation of a slave by a peregrin the lawl
of the manumissor were recognized as valid ; so that
should any dispute arise in this connection in Rome,
it was determined by the personal law and not by the
lex loci.
It has sometimes been held that there is a case
conflict of laws recognized in the following passagi
of the Codex: “51 lex municipii, in quo te pater
emancipavit, potestatem duumviris dedit, ut etiam)
alienigenae liberos suos emancipare possint, id quod
a patre factum est suam obtinet firmitatem.”’ ἢ ΕἾ
Baviera,’ for example, is of the opinion that this
text is an exemplification of the rule ‘locus regit actum.
The facts of the case are that a man had emancipated
his son before the duumviri of another town, and the
νι, 197. 2Cic. 4d Fam. xiii. 19. 2. S
8 Dosithaeus, Disputatio de manumissionibus, 12 (in Girard, Textes
“‘Praetor [tamen vel proconsul] non permittet manumissum
nisi aliter lege peregrina caveatur.”
4 Just. Cod. viii. 48 (49) (de emancipationibus liberorum), Σ. i αὶ
5 Loc. cit. sect. vi.
CONFLICTS OF LAWS 289
S ee ee fo
__ question was whether such act was valid, as the
municipal magistrates had ordinarily had no competence
in respect of /egis actio, statutory process. The decision
here pronounced by the Emperors Diocletian and
Maximian is that the validity of the act depends on
whether the municipal law gives the /egis actio to the
-duumviri, and allows them to extend it to strangers.
ap this case does not afford an instance of conflict-
| legislations,—as Savigny remarks: ‘Von einer
Collision Srtlicher Rechte ist hier keine Spur.”’}
It would seem that peregrin fathers in certain
countries could sell their sons as slaves,”
a
Se ee ede ee
With regard to the law of property the rules obtain- Examples
ing in the provinces were in many respects different mer ae 9
from those prevailing amongst citizens in Rome. For property.
example, the Roman distinction between dominium ex
iure Quiritium and in bonis, between quiritary owner- Quiritary and
ship and bonitary, as has already been pointed out, ri
was not there recognized. As Gaius says, for aliens
there was only one dominium and only one definition
- of a proprietor, “...apud peregrinos quidem unum
- esse dominium; nam aut dominus quisque est, aut
- dominus non intellegitur. ”3 And it is probable that
_ at first the praetor admitted this unum dominium, at
least respecting movables. As to immovables, it is
uncertain.
It has sometimes been inferred, on the basis of certain Movable
passages in the Digest,t that the different questions *°P"™
- relating to movable property were to be determined
_ by the law of the owner’s domicile. But it is doubtful
- whether this inference may justifiably be drawn, at
~ least from the data furnished in these texts. Thus,
eee a ee Loe ey tdci ite npn renin nani meh sand et Se
1 System des heut. rim. Rechts, vol. viii. § 382, p. 362.—CEF. to the
_ same effect L. von Bar, op. cit. § 12, no. 6.
_ 2Cf. Mommsen, Bérgerlicher und peregrinischer Freiheitschutz im
rimischen Staat (in Festgabe fur Beseler, Berlin, 1885, pp. 255 seg.).
S ii. 40.
4 B.g. Dig. xx. 1 (de pignor.), 32 ; xxviii. 5 (de hered. instit.), 35.
T
Hypothec.
Syngraphae.
Chirographa.
Interpretation
of contracts.
290 EXAMPLES OF
in the first of the passages referred to in the last foot-
note,t the question under consideration is simply what
are the pertinents of any subject. And in the second
passage the fundamental question is how is a testament to
be interpreted when two individuals are instituted heirs,
one for res Italicae, the other for res provinciales, both of
which kinds of property belonged to the deceased.?
Before hypothec had been adopted in Roman law,
it was customary on provincial territory, e.g. in Greece,
and was admitted by the praetor. Similarly the
contracts syngraphae and chirographa (written acknow-
ledgments of debt or promises to pay, not accompanied
by stipulation) were not valid between Roman citizens —
in the classical epoch, and were peculiar to peregrins,*
though valid also between them and Roman citizens. —
Even at the time of Gaius they constituted a literal ob-
ligation in Greece, being ground to support an action,
whatever the subject or form might be. So that in
such cases the praetor usually adopted the personal — |
law of the debtor, that is the zus peregrinorum and not
the zus gentium.®
It would seem that in regard to the interpretation of Ἢ
a contract there is to be found special provision in
1 Dig. xx. i. 32: “Debitor pactus est, ut quaecumque in praedia
pignori data inducta invecta importata ibi nata paratave essent,
pignori essent ; eorum praediorum pars sine colonis fuit eaque
actori suo colenda debitor ita tradidit adsignatis et servis culturae
necessariis. .. .”
2 Cf. Von Bar, op. cit. § 12.
8Cf. Οἷς. Ad Fam. xiii. 56: “ Praeterea Philocles Alabandensis
ὑποθήκας Cluvio debit.”—Pro Flacco, 21.
4Gaius, iii. 134: “ Praeterea litterarum obligatio fieri videtur
chirographis et syngraphis; ... quod genus obligationis proprium
peregrinorum est.”
5For examples, cf. Cic. De harusp. resp. 13. 16; Pro Rabirio,
57 ae SS να
Lond amine rg
θσυκυπιαϊβιθνϑιβλαύσαν φῳομανυψι» adit
ie
iii. 6; Ad Att. v. 1, 2, 33 v. 21.—For further particulars as to Ἄς
syngraphae, see Voigt, Das jus nat. vol. iv. pp. 326-332.
6M. Duguit (Des conflits de législation relatifs a la forme des acies
civils, Bordeaux, 1882, p. 10), maintains that the ius gentium alone
applied as between citizens and peregrins; but the cases mentioned
by Cicero in the preceding note directly contradict this contention.
1 ire Sow bd
CONFLICTS OF LAWS 291
the Digest. Thus it is laid down, in view of any
conflict of laws, that the question is ordinarily to be
"determined by considering the express intentions of the
parties, but that if they are not clearly expressed then
the custom of the locality in which the engagement was
entered into must decide the matter. “Semper in
_ Stipulationibus et in ceteris contractibus id sequimur,
= actum est; aut, si non pareat quid actum est,
a ee ΨΟΨΨ ΩΝ
‘erit consequens, ut id sequamur, quod in regione in
qua actum_ est frequentatur. quid ergo, Sl neque
_fegionis mos appareat, quia varius fuit ? ad id, quod
“minimum est, redigenda summa est.’’!
There were special provisions amongst aliens as to Obligations by
ἴῃ the establishment of obligations by oath alone. Gaius, ™ sci
᾿ speaking of the cases in which an obligation is contracted
by a declaration of one of the parties without any previous
- interrogation, says that the only instance in Roman law
Ἷ is the promise of a freedman to his patron, but that
other cases could be found in the particular laws of
j foreign communities.’
___ In various provincial territories there were also special Bonajvacantia.
irules relating to the bona vacantia of persons dying
jintestate,° as also in reference to liens and other matters. Liens.
“Thus at the time of Trajan several towns of Bithynia
jand Pontus could exercise certain rights over their
debtors’ property, as provided by their respective laws.*
a ΝΙΝ
x 1 Dig. 1. 17 (de div. reg. iur.), 34.—Cf. Savigny, System des heut.
yrim. Rechts, vol. viii. §§ 372, 374.
*ili. 96: “Sane ex alia nulla causa iureiurando homines obligantur
ἃ uti que cum quaeritur deiure Romanorum. nam apud peregrinos quid
hluris sit, singularum civitatium iura requirentes aliud intellegere
ὍΟ terimus.”
3 ὌΝ Epist. x. 88 : “ Nicensibus, qui intestatorum civium suorum
foncessam vindicationem bonorum a divo Augusto affirmant.”
Se Plin. Epist. x. 109-110: “Quo iure uti debeant bithynae vel
sponticae civitates in iis pecuniis, quae ex quaque causa reipublicae
Mebebuntur ex lege cuiusque animadvertendum est.”—See also Dig.
oii. 5 (de reb. auct. iud.), 37: “ Antiochensium Coelae Syriae civitati,
wjuod lege sua privilegium in bonis defuncti debitoris accepit, ius
Sersequendi pignoris durare constitit.”
Fidepromissio,
Testamentary
provisions,
292 EXAMPLES OF
In the case of fidepromissio, too, the peregrin law was
admitted. Thus in Roman law the obligation of a
fidepromissor was not transmissible to his heirs ; but it
was otherwise if he was an alien, and if the law of his
municipality was in that respect different from the
Roman. ‘ Praeterea sponsoris et fidepromissoris heres —
non tenetur, nisi si de peregrino fidepromissore quae- —
ramus, et alio iure civitas eius utatur,” —from which it —
appears that in Rome the personal law was in such —
cases adopted even if it differed from the local law ; in
other words. the /ex ἐρεῖ gave way to the zus originis,
There is, however, by no means unanimity of opinion as —
to such interpretation of this text. Thus Walter main-—
tains that the provisions mentioned by Gaius applied to
peregrins when residing on provincial territory.’ ᾿
Again the rules concerning wills varied more or less
according to locality, but they were deemed valid in-
Rome if executed in conformity with the personal law
of the testator. Ulpian, speaking of the testamentary
incapacity of the Junian Latins and of the dediticit,
says that in the case of the first the disability was”
imposed by the /ex Iunia, and in the case of the second”
|
.
|
|
it was due to the fact that the dediticius could not make
a will either as a Roman or as a peregrin, since he was
not a recognized subject of any ascertained State ; for
only those who were subjects of a given State could
exercise the right in accordance with its laws.® |
.
§
:
ey -
1 Gaius, iii. 120. 4
2 Gesch. des rim. Rechts, vol. i. §115, p. 162.—As to the relationship
in this respect, between ius civile, or ius provinciale, and ius gentium,
Voigt says (Das jus nat. vol. iv. p. 322): “Das ius gentium und das
ius civile oder ius provinciale stellen direct widerstreitende Recht
sitze auf. Dieser Fall kommt regelmassig nicht vor, da, wo zwischet
jus gentium und ius civile ein solcher Widerstreit entstand, alsbald di¢
Rechtstheorie zu Gunsten des einen oder anderen entschied und den
Widerspruch vermittelte, wihrend in den iura provincialia in gleiche
Weise die dem ius gentium direct widerstreitenden Rechtssatzungen |
wahrscheinlich sehr ἢ zu Gunsten des Letzteren beseitigt wurden.” |
8 Reg. xx. 14, 15: “Latinus Iunianus, item is qui dediticiorum |
numero est, testamentum facere non potest [cf Gaius, i. 22-25): |
|
ane
=e tl
CONFLICTS OF LAWS 293
It may be here noted that the rescript of Diocletian,’ Dioctetian’s
already referred to,’ does not, strictly speaking, supply Iny Gnnict
a solution to conflicts of legislation respecting the form 4s to wills.
of wills. For, as Savigny has observed, if this text
dealt with a veritable case of conflict, then the words
‘ patriae tuae’ would apply to the law of the domicile of
the heiress ; and a pronouncement to this effect could
scarcely be good law. It would accordingly follow that
the passage is to be constructed on the obvious under-
standing that the domicile of the heiress was the same
as that of the testator, and in that domicile he had
executed his testament. ‘ Allein dieser Schein [referring
- to the semblance of a conflict] verschwindet wieder,
wenn man erwagt, dass doch unmoglich die patria der
Erbin entscheidend seyn konnte ; wo das Testament
| gemacht war, wird gar nicht gesagt. Wahrscheinlich
- hatte der Verstorbene in seiner Heimath testirt, die auch
- die Heimath der Erbin war.”* So that the rule ‘ locus
᾿ς regit actum’ is not here really concerned ; the only
conflict is between the particular law and the common
law, and the former is made to prevail over the latter,—
- dass in der Collision das Particularrecht dem gemeinen
Recht vorgeht.”’ 4
Another case that has been advanced as offering a Publication of
solution to a collision of laws is the provision® that wills “"~
PAS bare Nees Meee ae mee Ty mee
~ - ~ “» ‘
MIT SBE IE Vase PRP SEL eee eee PPL BERANE TOs .5
Latinus quidem, quoniam nominatim lege Iunia prohibitus est ; is
autem qui dediticiorum numero est, quoniam nec quasi Civis
Romanus testari potest, cum sit peregrinus, nec quasi peregrinus,
quoniam nullius certae civitatis civis est, ut secundum leges civitatis
suae testetur.”
1 Just. Cod. vi. 23 (de testam.), 9. 2 Supra, p. 279.
8 System des heut. rim. Rechts, § 382, p. 361. 4 Tbid.
5 Just. Cod. vi. 32 (quemadmodum aperiantur testamenta et inspici-
antur et describantur), 2: “Impp. Valerianus et Galienus, an. 256 :
Testamenti tabulas ad hoc tibi a patre datas, ut in patria proferantur,
᾿ς adfirmans potes illic proferre, ut secundum leges moresque locorum
insinuentur, ita scilicet, ut testibus non praesentibus adire prius vel
pro tribunali vel per libellum rectorem provinciae procures ac per-
mittente eo honestos viros adesse facias, quibus praesentibus aperiantur
et ab his rursum obsignentur.”
Intestate
succession.
294 CONFLICTS OF LAWS
are opened and made public in accordance with the
custom of the place where this proceeding takes place. —
This enactment, it is true, makes no mention of different
legislations, and has little kinship with the private law
of obligations,’ but, along with several other provisions, —
it clearly indicates that the Romans were not at all
blind to the claims of different legal systems, that they
were by no means ignorant of the rule ‘locus regit
actum,’ and that they frequently attempted adjustments —
of the difficulties arising from antagonistic or inconsistent
legislations by applying this rule ; atall events it shows —
a recognition on their part of the necessity to limit the |
application of the principle of personality, inasmuch 5.
the ius originis was not infrequently superseded by the
lex loci,
Further, in reference to intestate succession thes
peregrin law was similarly applied. Cicero relates that
an inheritance of 500,000 sesterces was left to Epicrates, _
the most notable citizen of Bidis, a small town near
Syracuse ; the testatrix, he says, was so near a relative
that had she died even without having made a will,
Epicrates would have been considered her heir in
pursuance of the laws of his town.”
And it has been claimed by some writers that a certai
text in the Digest® shows that where a question invol
ing conflicting laws of succession should arise, it was te
be settled by applying the law of the domicile of th
deceased. The passage, however, does not really bea
=o ak «Bhi
1Cf, Von Bar, op. cit. §12, no. 6,
2 In Verrem, ii. 2. 22 : “ Bidis oppidum est tenue sane non long
a Syracusis. Huius longe primus civitatis est Epicrates quidem.
hereditas HS quingentorum millium venerat a muliere quadam
propinqua, atqui ita propinqua ut, ea etiamsi intestata esset mo
Epicratem Bidinorum legibus heredem esse oporteret.” Cf. Cic. .
Fam. xiii. 30.—As to intestate succession in Egypt, cf. a decision of th th
year 135, in Girard, Textes, p. 787.
8 Dig. v. 1 (de iud.), 19, 27. : “Heres absens ibi defendendus 6:
ubi defunctus debuit, et conveniendus, si ibi inveniatur, nulloque s
proprio privilegio excusatur.”
SOVEREIGNTY OF LOCAL LAW 2995
= er eae eS
ei = _—
_ this interpretation. It simply provides that actions for
the recovery of debts due by the deceased must be
brought against his heir in the place where the former
was domiciled;* for there the heir is liable, as Ulpian
_ says, if he is not protected by any special ground of
_ exemption peculiar to himself.
Again, does a conflict arise in regard to the rules of Asto _
jurisdiction mentioned in the Digest? Paulus says“
that an officer who exercises jurisdiction outside his
local limits may be disobeyed with impunity, and that
_ the same rule holds good should he affect to exercise
_ jurisdiction beyond his prescribed competence.” Here
we have merely a question relating to the jurisdiction
of the native Roman judge. With this passage may be
compared the observation of Ulpian that if a prefect
eoes beyond the bounds of the city his authority does
_ not hold, though he can appoint a iudex outside the
_ bounds.’ And elsewhere the same jurist says that as soon
as the proconsul passes the gate on entering Rome, he
| lays aside his imperium.*
Did Rome recognize the territorial sovereignty of the Asto Rome's
_ law? It cannot be claimed that the Romans systemati- fine
| cally emphasized this principle and invariably acted in former
_ conformity with it. As they usually permitted aliens of the law.
| to have recourse to their own particular legal systems
and customs, the solution of real conflicts of legislation
/ was ipso facto avoided.’ In comparison with the legis-
_ lative policy of modern nations, Rome undoubtedly
_ concerned herself but little with the task of effecting a
1Cf. Von Bar, of, cit. § 12.
3 2 Dig. ii. 1 (de iuris.), 20 : “ Extra territorium ius dicenti impune
- non paretur. idem est et si supra iurisdictionem suam velit ius
dicere.”
- Dig. i. 12. 3: “ Praefectus urbi cum terminos urbis exierit,
_ potestatem non habet ; extra urbem potest iubere iudicare.”
* Dig. i. 16. 16: “Proconsul portam Romae ingressus deponit
imperium.” Cf. Von Bar, op. cit. §12, no. 3.
5 See Weiss, of. cit. vol, iii. p. 126.
‘ Locus regit
actum,’
Local custom
and conflicts.
Local custom
in reference to
the usury laws.
296 LOCUS REGIT ACTUM
reconciliation between personal law and territorial law,
between personal sovereignty and territorial sovereignty,
by determining the limits of their respective applicability.
The rule ‘locus regit actum ’—that is, the recognition
of the form of a juridical act if it be in accordance with
the law of the place where the act was executed, even
though another form be prescribed by the law of the |
place where the legal relation has its seat1—never
obtained distinct and regular acceptance. Where there |
was any incompatibility between the ius originis and the’
ius domicilii of the parties concerned, the former, as
has been shown, was usually applied ; but, considering |
the various cases that have already been brought forward, —
it cannot be maintained that it was exclusively applied.
Considerations of State interest and public policy (which
will be further exemplified below) conduced largely to”
these somewhat irregular oscillations in practice.
In addition to the examples which have been given to
show that an effort was made by the Romans to adjust
peacefully conflicts of laws, one may recall a noteworthy
case in the twenty-fifth book of the Digest.2 This states
that the praetor will not necessarily allow the omission,
caused through ignorance or inadvertence, of certain
prescribed formalities to prove detrimental to the heir,
and emphasizes that to determine certain facts relating”
to the alleged existence of an unborn heir, it is necessary —
to follow the custom of the place,—“... mos regionis —
inspiciendus est.” | zi
Again, in connection with the usury laws it was laid”
down that a judge in a bona-fide action must decid
according to the custom of the locality where th
τινε any
arr ae
1Savigny, System des heut. rim. Rechts, § 381.
2 Dig. xxv. 4. 1. 15: “Quod autem praetor ait causa cognita 86
possessionem non daturum vel actiones denegaturum, eo pertinet, Ut —
si per rusticitatem aliquid fuerit omissum ex his quae praetor servarl
voluit, non obsit partui. Quale est enim, si quid ex his, quae leviter
observanda praetor edixit, non sit factum, partui denegari bonorum ~
possessionem ; sed mos regionis inspiciendus est, et secundum eum
et observari ventrem et partum et infantem oportet.” Σ᾿
ΦΧ Necker
a ir - Lal
νος
Soy. <a
ARS, RIERA ΓΥΡΕΗΡ RY MSP TEI EMRE eee a dD ak Bea: ΤΠ ΡΝ CQ RR SNe S ORR
\
eee TU τότ Ὁ
Ni eee te meh ena a i} Lh ἢ ious 4 ale + len ial tet ot εὖ ον, tad
FORCE OF LOCAL CUSTOMS 207
contract in dispute was entered into (/ex /oci contractus),
but on condition that this custom is not contrary to the
law. ‘Cum iudicio bonae fidei disceptatur arbitrio
judicis usurarum modus ex more regionis, ubi con-
tractum est, constituitur; ita tamen ut legi non
_offendat.”* Here it is seen that the principle of public
utility is insisted on, and even made to predominate
when in opposition to the doctrine of territoriality.
Another important instance indicating a distinct Local custom
' provision for solving a conflict of laws is found in the
twenty-second book of the Dzgest, where, after saying witnesses.
that witnesses are not to be summoned when their
homes are situated at a great distance from the court,
or under the pretext of calling away soldiers from their
flags or posts, a rescript of the Emperors Severus and
_ Antoninus laid down that in the matter of summoning
witnesses the judge must carefully examine the custom
of the place where he exercises jurisdiction,— dili-
gentiae iudicantis est explorare, quae consuetudo in ea
provincia, in quam iudicat, fuerit” ; and if it be proved
that witnesses, domiciled in another town, have often
been summoned, there is then no doubt that such as
are by him deemed necessary in the case may be called.”
A further case is furnished in the sixth book of Local custom
Justinian’s Code, where it is provided that in those
regions where there are illiterate inhabitants incapable tequirements.
of fulfilling the technical requirements of the law relating
to the making of wills, their long-established custom
may be allowed to prevail. ‘In illis vero locis, in
quibus raro inveniuntur homines litterati, per praesentem
1 Dig. xxii. 1, 1, pr. ,
2 Dig. xxii. § (de testibus), 3. 6: ‘ Testes non temere evocandi
sunt per longum iter et multo minus milites avocandi sunt a signis
vel muneribus perhibendi testimonii causa, idque divus Hadrianus
rescripsit. Sed et divi fratres rescripserunt : ‘Quod ad testes evocandos
_ pertinet, diligentiae iudicantis est explorare, quae, consuetudo in ea
provincia, in quam iudicat, fuerit.? Nam si probabitur saepe in aliam
civitatem testimonii gratia plerosque evocatos, non esse dubitandum,
quin evocandi sint, quos necessarios in ipsa cognitione deprehenderit
qui iudicat.”
The
principle of
territoriality
in treaties.
Between
Rome and
Carthage.
Between Rome
and Chios.
The Romans
᾿ recognized
the rule—
‘locus regit
actum.,’
298 LOCUS REGIT ACTUM
legem rusticanis concedimus antiquam eorum consue-
tudinem legis vicem obtinere.””* |
Again,—to return to an earlier age—in the first treaty _
between Rome and Carthage (c. 509-8 8.c.) there is a
clause which shows that even at that early date both the
Romans and the Carthaginians had some notion of the -
principle of the territoriality of the law, as a means of
reconciling conflicting legislations. This clause, as given —
by Polybius, is to the following effect: ‘“ That those
who land for traffic shall not conclude any bargain
except in the presence of a herald or town-clerk. That
whatever is sold in their presence, the price is to be
secured to the seller on the credit of the State, that is
in the case of such sales as are effected in Libya or
Sardinia.” ? 4
And in the treaty between Rome and Chios® (as in
the Greek treaty between Lato and Olus)* the existence
of a similar conception is apparent. ἢ
From these considerations, and having regard to the
totality of their significance, it is evident that the
Romans not only knew well the principle of ‘locus
regit actum,’ but that at times they deliberately applied
it in practice. No doubt their recognition of it, as in”
the case also of the Greeks, did not manifest itself to”
the same extent as in modern times ;° but it is equally
1 Just. Cod. vi. 23 (de testamentis: quemadmodum testamenta
ordinantur), 31. |
2 Polyb. iii. 22 : τοῖς δὲ κατ᾽ ἐμπορίαν παραγινομένοις μηδὲν ἔστω
τέλος πλὴν ἐπὶ κήρυκι ἢ γραμματεῖ: ὅσα δ' ἂν τούτων παρόντων
πραθῇ, δημοσίᾳ πίστει ὀφειλέσθω τῷ ἀποδομένῳ, ὅσα ἂν ἢ ἐν Λιβύῃ
ἢ ἐν Σαρδόνι πραθῇ .----ΕὌΥ the entire treaty, see infra, chap. xvii. τ
8 Corp. inscrip. Graec. 2222, ll. 15-20. Cf. supra, latter part of
chap. viii. Ἶ
4 Corp. inscrip. Graec. 2554, ll. 56-76. See supra, chap. viii. im
and infra, chap. xvii. a
5 Cf. Baviera, Joc. cit. vol. ii. fasc. 3, p. 439: “Non /’avranno con=
cepito in tutta la sua estensione datale ai nostri giorni, ma ne ebbero”
pero una nozione chiara.” Chénon, Jc. cit. pp. 239-241, and Weiss,
op. cit. vol. iii. p. 126, incline to the view that the Romans did not
recognize the principle; but the examples above set forth are, it 15.
submitted, sufficient refutation of this view. Ἢ
CTR
: DOCTRINE OF PUBLIC ORDER 299
" indubitable that our fuller, more systematic ideas on
_ the subject owe their origin to the more rudimentary
notions of the ancients.
! Similarly, the Romans had thorough cognizance of Recognition
the doctrine of public order. (This is here mentioned oft |
‘in view of the fact that the principle appears to be public order.
“insisted on by many writers, especially French and
Italian, as a necessary criterion in private international
law ; though it must be confessed that it is somewhat
vague and ambiguous.') In the application of com-
] peting laws, the ius peregrinorum was frequently
displaced by the Roman is civile, and also by the
ius gentium, when the interest of State or public
- morality was endangered.” Thus in 193 B.c. the usury Usury laws.
laws, which till then applied only to Romans, were
| extended to peregrins; and the measure proved a
salutary one in view of the growing influence of
foreigners in Rome. In this way the Sempronian
- plebiscite* (the /ex Sempronia de fenore) subordinated
the personal law of aliens to public utility. In con-
| nection with the same subject the principle is again
_ emphasized five centuries later by Papinian. In 143 B.c.
3 _ the lex Didia de sumptu extended to peregrins, in the Lex Didia de
' interests of public morality, the provisions of the lex *””””
| Fannia cibaria (161 B.c.) passed some twenty years
earlier for Roman citizens. A senatusconsult of Hadrian’s
| Hadrian extended to peregrin debtors the prohibition ἐροῖνεις πῇ
_ to manumit slaves, under cover of good faith, in fraud
_ of their creditors. The laws relating to theft, as also
' _10On the significance and applicability of this principle, cf. Von
| _ Bar, op. cit. § 30.
2Cf. Chénon, doc. cit. pp. 241 seq.
SLiv. xxxv. 7: “M. Sempronius tribunus plebis ex auctoritate
‘patrum plebem rogavit, plebesque scivit, ut cum sociis et nomine
- latino pecuniae creditae ius idem quod cum civibus Romanis esset.’
*Gaius, i. 47: “...ut creditorum fraudandorum causa manu-
“Missi liberi non ba! hoc etiam ad peregrinos pertinere (senatus ita
‘censuit ex auctoritate Hadriani)...”
Lex Aquilia.
Restrictions
as to the
tus gentium.
Lex Minicia.
Se.
Claudianum.
Restrictions
as to fidei-
commissa.
Few cases of
conflicts of
laws.
Reasons for
this,
300 FEW CASES OF CONFLICTS
the /ex Aquilia (287 8.0.) were, by legal fictions,
likewise made to apply to aliens.’
Again, public interest in some cases necessitated
certain restrictions in the application of the ius
gentium.” Thus the lex Minicia provided that the
issue of a peregrin husband and Roman wife should be
peregrins,® although the principle of the ius gentium
was ‘partus sequitur ventrem.’ The Senatusconsultum
Claudianum decided that offspring of a Roman woman
and another’s slave, in spite of his master’s assent to
the union, should be of servile condition ; but later
Hadrian reversed this provision.*
Certain restrictions in regard to fideicommissa were
also placed on peregrins proper (though not on Latins),
probably to prevent their acquiring excessive wealth,
which might prove detrimental to Roman citizens.
Thus Gaius says that by a decree of the senate, passed
on the proposition of Hadrian, property devised in
trust for the benefit of aliens was to be confiscated.
.. Nunc ex oratione divi Hadriani- senatuscon-
sta factum est ut ea fideicommissa vindicarentur.”>
It cannot be denied that in the very large mass of)
Justinianian compilations we find comparatively fey
direct references to conflicts of laws. One reason for
this is, as Von Bar points out—and at the same tims
suggests an additional argument against his own con:
tention, at least so far as the earlier Roman praetor:
are concerned—that such questions would have been)
regarded as relatively antiquated by the compilers and)
jurists of the time. Another reason—operating, of
1 Gaius, iv. 37.
8 Gaius, i. 78 ; Ulpian, Reg. v. 8 ; and see supra, p. 252.
2Chénon, do. cit. pp. 243 seg.
4 Gaius, i. 84 5 see supra, p. 253. Pf
5 Gaius, ii. 285.—Not long ago in England land purchased by or!
devised to an alien was forfeited to the Crown. And similarly im)
France, an alien formerly did not possess testamentary capacity, his’
property at his death escheating to the Crown by the “ὦ ‘Olt
d’aubaine.’ ΕΗ
Ἢ
ΜΝ
Ἀν
-
ω
5
: REASONS THEREFOR 301
4 ourse, in the later Roman law—lies in the centraliza-
tion of the Roman Empire, the gradual extension of
Citizenship and adoption of the civil law (which conse-
"quently mitigated the tendencies to establish local and
“customary laws), and the application of bona fides to
' the solution of matters where differences did actually
"exist. This being so, relationships between Roman
tribunals and those of foreign communities were mini-
mized. Under the Empire, supreme jurisdiction was
exercised by Rome over all courts on Roman and
imperial territory ; and such peoples as were not subject
to Roman dominion were of so low a grade of civiliza-
tion that the question of adjusting conflicts of laws
could scarcely arise.”
Now this contention of Von Bar is, it is submitted, Von Bars
of too extreme a nature, in view of the annnaisrationa Marino:
and examples advanced above. No one has attributed
to Rome a perfect system of private international law.
_ But it is impossible to deny that Roman jurisprudence
had rules for limiting the application of the personal
law of different peoples involved, and for regulating
the conflicts regarding the rights and duties of persons
subjected to different legislations and systems of deter-
-minate States vested with juridical personality. And
this is the vital substance of private international law.
1Von Bar, op. cit. § 12, p. 22: “ Die von Justinian veranstalteten
Rechtsbiicher konnten ihrem ganzen praktischen Zweck nach, wenn
etwa tiber die Collision der verschiedenen Gesetze in den Schriften
_ der classischen Juristen sich noch Erérterungen fanden, diesen bereits
_ lange veralteten Stoff um so weniger aufnehmen, als sicher im rémischen
Reiche der grossen Centralisation wegen, und weil das rémische
_ Privatrecht als Vorrecht der Birger gegeniiber den unvollkommenen
Freien, den dediticiis und Latinis Junianis, geachtet und bewahrt
wurde, nur unbedeutende particulare Gewohnheitsrechte, vielleicht nur
was den Inhalt der obligatorischen Rechtsgeschafte betrifft, sich
gebildet hatten. In letzterer Hinsicht aber konnte bei der grossen
Ausdehnung, welche das Princip der dona fides in spaterer Zeit erlangte,
im Einzelnen leicht geholfen werden.”
2 Ibid. § 12, fin.
Rise of
diplomacy.
CHAPTER XIII
AMBASSADORS—THEIR FUNCTIONS; THEIR RIGHTS ᾿
AND DUTIES :
AmoncsT the peoples of the most distant antiquity
there were practices, more or less systematic, relating —
to the interchange of embassies. As soon as human
beings begin definitely to arrange themselves into |
groups—families, tribes, or nations—relationships be- —
tween them become regularized ; and diplomacy and —
intertribal or. interstatal law consequently come into —
existence. At a more advanced stage of evolution,
we find regular treaties established for the deliberate _
organizing and controlling of certain clearly-defined —
relationships; and such treaties are not always—to —
use a phrase of Montesquieu'—merely the voice of —
nature claiming its rights, but are frequently the —
outcome of a spontaneous feeling, on the part of the —
respective groups, of self-insufficiency, and of a con-—
*
sequent desire, universally experienced, to promote —
intercourse, to give an impulse to national development, ;
and to define more clearly the extent of national rights ©
and obligations regarding matters that were before then —
doubtful and of precarious applicability. ‘La diplo-~
matie est vieille comme le monde,” says a modern —
French writer, “et ne périra qu’avec lui. La Bible, —
les Egyptiens, les Grecs ont un droit international et
diplomatique. [11 suffit que deux sociétés coexistent
pour qu’elles aient des intéréts ἃ régler: elles font
la guerre, par conséquent la paix, et méme les insti-—
1 Lettres persanes, xcvi.: “...la voix de la nature qui réclame —
ἦν
ses droits.”
S
ἧς ὁ
ibah heme
NG eae
UNIVERSALITY OF AMBASSADORS 303
tutions internationales représentent, malgré leurs fragi-
ités apparentes, ce qu'il y a de moins variable et de
plus indélébile.””?
In the ancient States of China we hear of the inter- Exchange of
thange of embassies accompanied by established cere- <mbassies τὰ
monies and formalities indicating a consciousness of
he importance of the proceedings, which were always
sharacterized by extreme courtesy. Questions of pre-
sdence regarding envoys were determined by settled
nciples. The ancient Hindoos had a similar system, tm ancient
and also employed special officials, in addition to the ™*
heralds, for any necessary relationships with
emy countries.” The Mdnava Dharmdsdiras (the
Institutes of Manu), the origin of which has been
ribed to different dates varying between 1200 B.c.
and 200 B.c., contained a code of diplomatic regulations.
he ancient Egyptians undoubtedly possessed something
of the same kind. And amongst the more primitive
aces of to-day we find practices of a like nature. Thus
the Fiji Islands intercourse between group and group, Amongst
hether in peace or in war, is conducted through the weiviled
edium of heralds, who are considered inviolable at all
nes ;° similarly, amongst the Australian tribes.‘
In Greece and Rome diplomatic relationships, though tn Greece and
based on the institution of permanent embassies in *°™*
modern sense, yet attained to a very high state of
development. From one point of view, however, the
oman fetials may be regarded, in reference to certain
juestions arising out of war or relating to extradition
Ἢ d demands for satisfaction in general, as permanent
if
A aR. de Maulde-la-Clavitre, La diplomatie au temps de Machiavel
Waris, 1892), t. i., avant-propos, p. 1.
-2Cf£ Haelschner, De iure gentium quale fuerit apud gentes Orientes
THalae, 1842), p. 37.
38, Ratzel, Vilkerkunde (Leipzig, 1885), vol. ii. p. 283: “ Der
serkehr von Stamm zu Stamm ist in Fidschi Herolden tbertragen,
eelche auch da, wo sie als Kriegsanktindiger auftreten, unverletzlich
i "hg .
τος σ. C. Wheeler, The tribe and intertribal relations in Australia
wondon, 1910).
No permanent
embassies.
Richness of
diplomatic
terminology.
Kinds of
envoys and
ambassadors.
ἄγγελος.
Legatus,
304 KINDS OF ENVOYS
ambassadors, though rather potential than actual.’ The
practice of permanent embassies was really introduced —
after the Peace of Westphalia (1648), which secured
the independence and autonomy of European States, —
and at the same time promoted commercial and diplo-
matic relationships between them. And yet in many
matters relating to the proceedings of ambassadors and —
to their rights and obligations, these ancient peoples had
quite as comprehensive ideas as the modern nations. —
In the language of Greek diplomacy, and to a somewhat —
less extent in that of the Roman, we find a remarkable ~
richness of terminology.2. There were some dozen
terms used to designate the different kinds of treaties —
that could be concluded, and the same number to
differentiate between the various kinds of ambassadors —
and envoys, according to the nature and purpose of |
their respective missions.
In Homer and Herodotus the word ἄγγελος is veal
with the general meaning of messenger or envoy,° much"
in the same way as legatus ἢ is used in Latin; and so we
get the phrase ἀγγελίην ἐλθεῖν ὁ (as also Lealae vo Ξ
as equivalent to the Latin ‘legationem obire.’® In-
Polybius’ ἄγγελος is used also like the Latin nuncius”
for the message itself. In Pausanias* is found again ©
a trace of the older meaning of ἄγγελος as /egatus. In
the later usage, a frequently employed term for ambas-~
1QOn the fetials, see infra, chap. xxvi.
2Cf. Pollux, viii. 11. 137 as to the terminology respectin
ambassadors and other envoys and their functions ; and see the
copious notes on the passage in the Amsterdam folio edition, 1706.—
Pollux there mentions, amongst other kindred words and expressions
πρέσβεις, πρεσβευταΐ, also διάκονος (in Latin minister), servant, ate
tendant, ἄγγελος, κῆρυξ, σπονδοφόρος (a term used by Dionysius «
Halicarnassus for /étia/is), and also a large number of expressions”
indicate their functions.
8 Cf. Iliad, v. 804 ; xi. 286, etc.
4 Iliad, xi. 140; cf. Odyss. xxi, 20. 5 Iliad, xxiv. 235.
ὁ ΟΕ, P. C. Buttmann, Lexilogus... (Berlin, 1837, 1860), ii. p. 20
ΤΕΣ Fhe 4. 5 γὴν αν
᾿
-
KINDS OF ENVOYS 305
ee IN Ee
: sadors is πρέσβεις, its singular form πρέσβυς being
_ more usual in the poets,’ whilst πρεσβευτής 5 is more
common in the prose writers ; the plural πρεσβευταί
‘is also found in prose writings.® And so we have
_ the corresponding verb zpecBevew,* signifying to go
on an embassy, to negotiate (as an ambassador).
_ Sometimes orator is used as synonymous with /egatus,°
though generally orator suggests rather an envoy sent
to beseech, to pray for certain things or conditions ;
so that, in this respect, Festus says: ‘‘Oratores ex
“graeco ἀρᾶσθαι dicti, quod missi ad reges nationesque,
4608 solerent testari”®; and Livy’ and Virgil ὃ already
use the word to signify political envoys. In French,
it appears, orateur had the meaning of ambassador until
the end of the fifteenth century.
_ In the sense of plenipotentiaries ambassadors are
sometimes termed αὐτοκράτορες, especially so when
| charged with the conclusion of atreaty. (The adjective
αὐτοκράτωρ means one’s own master in the same way
as the Latin sui iuris; as applied to States, it means
_ free and independent.)
1Cf, Aeschylus, Supp/. 728:
ἴσως yap ἢ κήρυξ τις ἢ πρέσβυς μόλοι
| {where he speaks of the arrival of some herald, κήρυξ, or ambassador),
*£.g. Thue. v. 4, εἴς. ; and cf. Corp. inscrip. Graec. i. 1237, 1239,
| 1240, etc.
3'Thuc. viii. 77; Andoc. De pace, 41.
Andoc. De pace, 344. ; Plato, Hippias Major, 28183; Charm.
58a; Xenoph. Cyr. v. 1. 2; Eurip. Herach 479; and similar
_ usage by Demosthenes, Dinarchus, Isocrates, etc.
5 Ulpian, in Dig. ἰν 6 (ad leg. Iul. de vi publ.), 7.
| °&Cf. Terence, Prol. Hecyr. 9 :
j ‘**Orator ad vos venio ornatu prologi ;
Sinite, exorator sim...”
7i, 15 : “ Veientes pacem petitum oratores Romam mittunt.”
8 Aen. Xi. 331:
‘Centum oratores prima de gente Latinos
Ire placet pacisque manu praetendere ramos.”
®Cf. Aristoph. Pax, 359: αὐτοκράτορά τινα ἑλέσθαι; Aristoph.
_ Aves, 1595, where it is used with rpeo Peis.
10'Thuc. iv. 63 ; Xenoph, Memor. ii. 1. 21.
U
Ὁ ΔΜ.
εἶ
πρέσβεις,
Ογαΐογ.
αὐτοκράτορες,
ἀρχιπρεσ-
βευτής.
‘ Princeps
legationis,’
ἀρχιθέωρος.
θεωρός.
κήρυκες.
Praecones.
Caduceatores.
Fetiales.
306 KINDS OF ENVOYS
The head of an embassy is, in the later Greek writers,
described as ἀρχιπρεσβευτής, the corresponding Latin
being ‘princeps legationis.’ But this Greek term, used
by such writers as Diodorus’ and Strabo,” was unknown
in more classical times, and is not found in inscriptions.
On the other hand, ἀρχιθέωρος ὃ is frequently used as
the head of a sacred embassy (θεωρία), the Oewpos* (and
συνθέωρος,, colleague in the mission) being an am-
bassador sent to consult an oracle, to present some
offering, or to perform some religious rite at the games ;
but exceptionally the word was used for πρεσβευτής as a
mark of distinguished regard or flattery, as in the
case of the deputies sent by the Athenians to Antigonus
and his son, Demetrius Poliorcetes.® |
The more preliminary proceedings relating to specific
embassies were usually in the hands of heralds or
marshals (κήρυκες), to whom the Roman praecones or
caduceatores’ more or less correspond. JLegat and ~
fetiales* were also employed for the same purpose, the —
latter being, in the time of the Roman Republic, —
the usual envoys in warlike relationships.? From the
earliest heroic times they were conceived to be under
the immediate protection of Zeus. In Homer they are
frequently spoken of as θεῖοι, Ad idol and Διὸς
ἄγγελοι ἠδὲ καὶ ἀνδρῶν, the messengers of God and |
men; and accordingly they were employed to convey :
messages between enemies.” Later their functions were ~
ἔ
ΣΡ π᾿
ἔχι!, 51. ὁ s°xili. $2.25 Xiv. 25. 1. 2p. 796c. 7
=
8 Arist. Eth. Nic. iv. 2. 2; Andoc. De myst. 132 ; Corp. inscrip.
Graec. 3656 (decree of the Rhodians).
4 Corp. inscrip. Graec. 1693.—Cf£., however, no. 2271, a case where
a πρεσβευτής was charged with a religious as well as a political ὦ
mission.
5 Corp. inscrip. Graec. vol. ii. p. 226. 6 Plut. Demetr. 11.
7 Quint. Curt. iv. 2: “... caduceatores, qui ad pacem eum com-
pellerent, misit.” (But here the word is used in a somewhat wider ~
sense than that of mere herald.) τ
‘8 See infra, chap. xxvi. 9 Dig. i. 8 (de rer. divis.), 8. 1.
10 [ijad, iv. 192; Vill. 517. 11 Πα, i. 334, etc.
12 Tiiad, ix. 1703 xxiv. 149, 178 3 Odyss. x. 59, 102.
FS “crac gp
KINDS OF ENVOYS 307
|
of a somewhat similar character, and they were
- distinguished from πρέσβεις in that the κήρυκες were
sacrosanct by virtue of their having been merely
} appointed to the office, and without any further
formalities, whilst the πρέσβεις enjoyed a recognized
_ security, so far as this was indispensable to the purposes
_ for which they were despatched. The κήρυκες, again,
were messengers between States only, or at all events,
usually, when a state of war existed between them ;* and
they always carried a staff, as symbol of their office.?
~The Romans did not make such a distinction between
heralds and ambassadors proper.
An ambassador who was sent to a congress as ἃ owvedpos.
select commissioner sitting in council took the special
title of σύνεδρος.
_ If the envoy was sent specially with the object of ἔκδικος.
_ demanding satisfaction for an offence, and to expound
the necessary representations for that purpose, he was
sometimes termed ἔκδικος, and his function was ἐκδικία
or ἐκδίκησις.
Again, in reference to the Roman egatio, this word Legatio—
is sometimes used in the abstract sense of mission, °°”
| and sometimes in the sense of envoy (‘ mittere lega-
_tionem ad aliquem’*), or legation, comprising all the
_ persons attached thereto,—as when Cicero speaks of
_ Sorba legatio’ (‘orphaned legation’), owing to the death
of the head.® |
_ It is important to distinguish the /ega# who accom- Legati—
_ panied the praesides provinciae (provincial governors), ae
from the /egati Augusti who from the time of the
| Empire were sent to the provinciae Caesareae vested
' with proconsular power in their respective provinces,
FOS
1Cf. Schol. ad Thue. i. 29.
_ #Cf. Ὁ, Ostermann, De praeconibus Graecorum (Marburg, 1845),
᾿ς passim, esp. pp. 16 “6.5, p. 93.
8See Οἷς. Ad Fam. xiii. 56; Plin. Epist. x. 1113; Corp. inscrip.
Graec, no. 356.
4Quinctil. Zmst, x. 1. 5 Phil, ix. 1.
Legatio libera.
Legatio votiva
308 KINDS OF ENVOYS
and from the /egati /egionum who were commanders in
the field.
Legatio libera,‘ free legation,’ was permission granted
to a senator to visit the provinces on his private affairs,
under the semblance of an ambassador, but without
taking part in any diplomatic functions.1 It was called
‘free’ because he could return to Rome and leave again
without necessitating his resignation. In the time of
Cicero there was such a scandalous abuse of the /egatio
4ibera that in his consulship he endeavoured to bring
about an entire abolition of the practice ; he succeeded,
however, only in obtaining a senatusconsult by which
such legations were limited to one year. 3
Legatio votiva was a ‘ free legation’ assumed for the ©
purpose, which was frequently a mere pretext, of paying
‘a vow in a province.®
Legati
municipriorum,
—nuntit,
Legati municipiorum (or nuntii) were merely mes- —
sengers, and did not possess any real diplomatic —
character. | :
From a practical point of view we may conveniently —
make a bipartite classification of the various uses and ©
applications of the word /egatus ;—firstly, as indicating —
‘Can envoy despatched by a magistrate, under the advice —
of the senate, for some object of diplomacy, inquiry, or
organisation”; and secondly, as signifying “‘a person
formally attached to a general-in-chief or provincial
governor, as lieutenant or staff-officer.”* But in view
of what is said below relating to the exemption from the —
local jurisdiction, and having regard to the civil pro-
visions of the Digest which in some cases are not clearly =
Mage
ikiSata eee
τοῖς, Ad Fam, xii. 21: “Ὁ, Anicius... negotiorum suorum causa
legatus est in Africam, legatione libera.” Psi Ad Attic. xv. 11.--
Ulpian, in Dig. 1. 7 (de legationib.), 14 : . qui libera legatione —
abest, non videtur rei publicae causa toh hic enim non publict
commodi causa, sed sui abest.”
2Cic. 4d Att. xv. 11. 43 De leg. ili. 8. 18 5 iil. 3. 9.
3Cic. Ad Att. iv. 23 xv. 83 xv. II.
4Sir William Smith (ed.), Dictionary of Greek and Roman Anigsities
(London, 1891), vol. ii. p. 23.
Ὑ
RIGHT TO DESPATCH 309
Sak Ἐπ
or specifically referred to the one or other, it is well to
recollect that from the point of view of Roman constitu-
tional law scarcely any discrimination is made between
them.
oar. Ree ee ee
The right to send ambassadors was conceived both right to send
in Greece and in Rome to bea right inherent only in 2nd receive |
sovereign powers. In Greece, federal States did not in Federal States.
theory possess the right, which could be exercised only
by the central authority ; in practice, however, we find
that some cities that were, for example, confederates of
the Achaean League sent ambassadors of their own to
foreign States. The principles of federalism were inevi-
tably antagonistic to the deep-rooted desire of indepen-
_ dence and political exclusiveness, so that no systematic
_ schemes of federalism, political or juridical, were ever
worked out. Besides, this right was in no sense an
absolute right ; it had to be expressly recognized in a
treaty on the basis of a bilateral obligation, or, failing
this, it was necessary to obtain a special concession from
_ the State consenting to receive representatives. In
' either case States could regulate the admission of
_ ambassadors, their residence in the city, and their
return to their country; and should there be an
infringement—even, in some cases, of a technical char-
SS oes
» ὁ lO
acter, apart from any of a substantial nature—of such
' regulations, which were considered to be accepted
_ expressly or implicitly, the envoys could be peremp-
torily treated as enemies.
In case of refusal by the competent authorities to Effect of
_ receive legations, any treaties at the time subsisting aire ee
| between the States concerned were broken off ; and this
_ rupture might, and usually did, signify preliminary
_ steps to war. Where there was no existing treaty,
- refusal implied an intention to continue hostile relation-
ships that may already have been commenced, or where
hostilities had not yet been begun, it might imply a
determination to remain without any regular system-
atic relations with the other community. Thus in
310 LEGATION AND SOVEREIGNTY
169 B.c. the Romans indicated their intention to discon-
tinue relationships with the Rhodians by refusing to
receive their ambassadors. ‘“...Consulti ab M. lunio
consule patres stantibus in comitio legatis, an locum
lautia senatumque darent, nullum hospitale ius in iis
servandum censuerunt, egressus e curia consul, cum
Rhodii gratulatum se de victoria purgatumque civitatis
crimina dicentes venisse petissent, ut senatus sibi daretur,
pronuntiat, soctis et amicis et alia comiter atque hospi-
taliter praestare Romanos et senatum dare consuesse :
Rhodios non ita meritos eo bello, ut amicorum sociorum
numero habendi sint.”* Again in 161 B.c., when
Menyllus was sent by Ptolemy Philometor to plead his
cause against his younger brother Physcon, the senate,
being in favour of the latter, refused to listen to the
envoy, and by a decree ordered the embassy to leave
Rome within five days, and cancelled the treaty of
alliance with Ptolemy. “Edoge τῇ συγκλήτῳ τοὺς περὶ |
Μένυλλον ἐν πενθ᾽ ἡμέραις ἀποτρέχειν ἐκ τῆς Ρώμης καὶ τὴν.
συμμαχίαν ἀναιρεῖν. ἢ
Ἢ
“ΕἼ:
In Rome ρὲ | In Rome, more than in any other ancient community,
oe ~=—sethe strict right of legation was indissolubly associated
sovercign with the possession of sovereign capacity. In the later’
capacity.
epoch, when the Roman constitution was elaborately’
developed, there was express legislation on this matter’ |
Interchange of ambassadors could take place only with a)
free and independent State. Thus, as Polybius relates,
after Aegina had been taken by the Romans (208 B.c.),
those inhabitants who had not effected their escape:
begged Publius, the pro-consul, to allow them to send)
ambassadors to cities of their kinsmen in order to ob rain |
x
Z
1 Liv. xlv. 20. 2 Polyb. xxxii. 1; cf. Diod. xxxi. 23. .
8 Dig. 1. 7 (de legation.), 2; pr. : “ Legatus contra rempublicam, |
cuius legatus est, per alium a principe quid postulare potest” ; ibid.
1, 7.15: “Is, qui legatione fungitur, libellum sine permissu principis|||
de aliis suis negotiis dare non potest” ; and cf. Dig. 1. 4 (de muner, et)”
honor.), 18. 12; 7151. Cod. x. 63 (de legat.), 1. 23
4ix. 42.—Cf. A. Thurm, De Romanorum Jegationibus ad exteras)
nationes missis (Lipsiae, 1883), pp. 92 seg. Ἶ
OBLIGATION TO RECEIVE ENVOYS 311
ransom. ‘The answer of Publius was at first harsh ;
the time for sending ambassadors, said he, was when
they were their own masters, not when they were slaves
or captives, ... ὅτε ἦσαν αὐτῶν κύριοι, τότε δεῖν διαπρεσ--
βεύεσθαι.... μὴ νῦν δούλους γεγονότας. The next morning,
however, he called the Aeginetans together, and gave
them leave to send ambassadors for procuring ransom,
since that was the custom of their country . . . ἐπεὶ τοῦτο
παρ᾽ αὐτοῖς ἔθος ἐστίν
The right to send implied the right, as well as the The right to
obligation, to receive; and this obligation rested on the the oblipation
sanction of the law of nations. Thus Hannibal, as Livy ‘° receive.
reports, was reproached for acting in contravention of
_ the ius gentium in refusing to receive ambassadors from
_ the allied States (220 B.c.): ‘*...legatos ab sociis et pro
sociis venientes bonus imperator vester in castra non
admisit ; ius gentium sustulit.”1 The ius gentium laid
down that a hearing was not to be lightly denied to
envoys,—‘* Oratorem audire oportere iuris gentium
est.”* In case of refusal good cause must be shown. Cause to be
Rome often claimed the right ; and sometimes notifica- per tod
tion to that effect was made beforehand by other peoples
as well as by Rome. To advance an inadequate cause or
to assume an attitude of arrogance in this respect might
provoke war. Livy states that the Veientian war was due
to an insolent answer of the Veientian senate in inform-
ing the ambassadors, who came to demand restitution,
that if they did not speedily quit the city and the territory,
they would give them what Lars Tolumnius had given
them, whereupon war was declared against the Veientians
_ by the Roman senate (406 B.c.).* Again, after the con-
clusion of the alliance with the Lucanians (300 B.c.)
fetials were despatched to the Samnites to demand the
withdrawal of their troops from Lucanian territory ; and
the envoys having been threatened as to their safety
FE Se ας ΤῊΣ ae a eee ee
ASS ND) AR a Aa ak) SS eA SLSR SS SS a an
ἀν ee te cars γγλ νι
1 xxi. τὸ. 2 Donatus, Ad prolog. Hecyrae, Terent. 1.
3 Liv. iv. 58: “*... Veiens bellum motum ob superbum responsum
Veientis senatus, qui legatis repetentibus res, ni facesserent propere
- urbe finibusque, daturos quod Lars Tolumnius dedisset. ...”
Cases of
refusal by
Rome.
Ambassadors
sometimes
received by
generals.
312 RECEPTION BY GENERALS
should they venture into Samnium, war was declared by
Rome.’
On some occasions the Roman senate offered an
absolute refusal to admit ambassadors, as, for example,
in the case of those sent by King Perseus, in view of
the fact that war had already been declared against
him (171 B.c.);7 as also in the case of the Cartha-
ginian envoys, on the ground that the Carthaginian
army was in Italy.* Similarly the Emperor Justinian
would not receive the envoys of Totila, on the ground
of the frequent violation of faith by the latter; and
those of Belisarius were rejected by the Goths for a like
reason.’ When ambassadors were thus rejected, notice
was usually given to them to leave the territory within”
a certain time; thus, the envoys of Jugurtha were
ordered to quit Italy within ten days,— Senatus a
Bestia consultus est, placeretne legatos lugurthae recipi
moenibus ;_ iique decrevere, ... uti diebus ey
decem Italia decederent.” ὅ ;
Commanders in the field were sometimes authorized
by the senate to receive enemy envoys in regard to such |
matters as were closely connected with the war. “...P.
Licinium consulem brevi cum exercitu futurum in
Macedonia esse; ad eum, si satisfacere in animo est,
mitteret legatos.”*® In cases of this kind the transactions
of the general, especially in such matters as were of an”
important character, were subject to ratification by the
senate. He was not considered to possess plenz
power in negotiations in general with the enemy, apa
from express recognition thereof by the senate. Whe
hn eee oe ee δ. να
1Liv. x. 12: “... si quod adissent in Samnio concilium, hauc
inviolatos abituros” ; cf. idid. xxxvii. 12.
2 Liv. xlii. 36: “ Per idem tempus legati ab rege Perseo venerun
eos in oppidum intromitti non placuit, cum iam bellum regi eorut
et Macedonibus et senatus decresset et populus iussisset. in aeder
Bellonae in senatum introducti.. .”
8 Cf. Servius, Ad Virg. Aen. ae 168.
4Cf. Grotius, De jure belli et pacis, lib. ii. 18. 3.
5 Sallust, Zug. 28. 6 Liv. xlii. 36.
eS een
DIFFERENT EPOCHS AND PRACTICE 313
~ the commander was not sure of his competence, in any
" particular case, to receive enemy envoys and to nego-
tiate with them, he referred them to Rome, fixing at
_ the same time a term during which the said embassy was
_ to be despatched, and the necessary business completed.
_ An example of this is seen in the action of the praetor
_T. Aemilius with regard to the Samnites (338 B.c.).}
: ‘Similarly, T. Quinctius Flamininus stipulated in the case
_ of Philip’s embassy to Rome, as a result of the congress
at Nicaea, 197 B.c., that the mission was to be finished
within the two months’ truce he had granted for the
᾿ ῬυΓροβα.5
Ἱ The commencement and, sometimes, the discon- Herald in
tinuance of ambassadorial relationships were usually ment and
ΠΝ πουποοά by a herald; as when the leaders of the discontinuance
gations
Ἰ Libyans i in the mercenary war, 238 B.c., sent a herald to
- Hamilcar to obtain permission for the despatch of an
embassy,—réunsarres οὖν κήρυκα καὶ λαβόντες συγχώρημα
: Recep! πρεσβείας... ὃ And after the defeat of Antiochus
Ϊ by the Romans (190 B.c.) he sent a messenger to the
- Scipios to announce that he desired to send envoys to
_ treat on the terms of peace, and that, therefore, a safe-
| conduct (ἀσφάλεια) should be given them, ... βούλεσθαι
.. . ἐξαποσταλῆναι πρεσβευτὰς τοὺς διαλεχθησομένους ὑπὲρ
τῶν ὅλων."
In this department of international law, as in so many To distinguish
others, it is necessary to distinguish between the prac- sleaaeaing οἷν,
tices of Rome in the first period of her history and those Period and
_ of her second period. In the former, conditions usually
obtained which were more of the nature of reciprocity,
; political and juridical. In the latter period, she often
- sent envoys rather in her supreme capacity than on a
- thLiv. viii. 2: “Foedere icto cum domum revertissent, extemplo
— inde exercitus Romanus deductus annuo stipendio et trium mensum
_ frumento accepto, quod pepigerat consul, ut tempus indutiis daret,
- quoad legati redissent.”
* Polyb. xviii. 10: Δοὺς γὰρ ἀνοχὰς διμήνους αὐτῷ τὴν μὲν πρεσ-
Belay τὴν εἰς τὴν Ῥώμην ἐν τούτῳ τῷ χρόνῳ συντελεῖν ἐπέταξε.
8 Polyb. i. 85. 4Polyb. xxi. 16 (13).
Reception of
ambassadors.
In Greece.
In Sparta.
314. RECEPTION OF ENVOYS IN GREECE
footing of equality; and on several occasions repudiated
any terms advanced for the admission of ambassadors,
as, for instance, in the case of the legation of Q.
Caecilius Metellus despatched to Philip and to the
Achaeans in 184 B.c.’ :
In Greece envoys were received and despatched by the
assembly of the people.” They were, as a rule, intro-
duced in the first instance by the proxenoi® of their
respective cities. The θεωροί, the envoys on a sacred
mission, were received first by the θεαροδόκοι (or θεωρο-.
δόκοι), officials specially appointed for the purpose ; the
reception itself was termed θεαροδοκία or cowpea
Every member of the assembly or council had the right
to make suggestions relative to the instructions given or
message brought. Such permission was announced b 7
the magistrates, as Livy states, through the herald, 1
accordance with the customs of the Greeks.® Duri a
the debates arising out of the mission the foreign ambase -
sadors retired, and reappeared at the conclusion. Thus
in 220 B.c. in Sparta, at a time of trouble and dissension
Machatas, an ambassador despatched by the Aetolians,
was allowed by the ephors to address a public assembly ;
and in a long speech urged the people to embrace tht
alliance with Aetolia. ‘ Upon his retirement there was
a long and animated debate between those who sup
ported the Aetolians and advised the adoption of cha
alliance, and those who took the opposite side.” δ΄ in
Sparta, on the the arrival of ambassadors, they were
1 Polyb. xxii. 15 5 Liv. xxxix. 33.
2 Liv, xxxil. 19. 3 See supra, p. 153.
4C£. Corp. inscrip. Graec. nos. 1193, 1693, 2670. =
5 Liv. xxxii. 20: “... postero die advocatur concilium ; ubi quuml
per praeconem, sicut Graecis mos est, suadendi, si quis vellet, potestas
a magistratibus facta esset nec quisquam prodiret, diu silentium aliorum
alios intuentium fuit.” 3
®Polyb. iv. 34: μεταστάντος δὲ τούτου πολλῆς ἀμφισβ jeu
ἐτύγχανε, τὰ πρᾶγμα' τινὲς μὲν γὰρ συνηγόρουν τοῖς Area |
συντίθεσθαι πρὸς αὐτοὺς παρήνουν τὴν συμμαχίαν, ἔνιοι δὲ TOUTE
pithy, p ρήνουν τὴν συμμαχίαν, ι
RECEPTION OF ENVOYS IN ROME - 315
_ obliged to report themselves immediately to the ephors.’
In Carthage they were, in the first place, presented to In Carthage.
_ the council, and afterwards brought before the assembly
of the people. Thus Polybius relates that some trans-
_ ports under Cn. Octavius having been wrecked in the
Bay of Carthage and taken possession of by the Car-
_thaginians in spite of a truce that had been made,
203 B.c., Scipio despatched three envoys (Lucius Sergius,
Lucius Baebius, and Lucius Fabius) to go to Carthage
_to remonstrate ; and that on their arrival in Carthage
_ they first obtained an audience of the senate, and then
/ were presented to the popular assembly,—oi de graparyevn-
θέντες εἰς THY Καρχηδόνα τὸ μὲν πρῶτον εἰς τὴν σύγκλητον,
μετὰ δὲ ταῦτα πάλιν ἐπὶ τοὺς πολλοὺς παραχθέντες... ὅ
_ Similarly we find a Rhodian legate setting forth com-
_ plaints, as to severe practices in the sacking of a city,
before an assembly of Aetolians at Heraclea, 207 8.0.8
τ᾿
With regard to Rome,‘ foreign envoys were obliged Reception of
_ to announce their arrival to the senate, through a prior {7 Rome.
notification to the praetor or guaestor urbanus at the
temple of Saturn. Plutarch suggests that they gave
in their names first of all to the quaestors, because
the latter supplied them with the necessary ἕένια (Lat.
_munera) or λαύτεια (Lat. /autia)5 In this way they sunera.
_ obtained permission to be received in audience. Some- 4¢“
times such permission was granted: by other officials.
Thus the consul Marius gave the ambassadors of
Bocchus, king of Mauretania, leave to proceed to
- Rome,—“legatis potestas Romam eundi fit a consule ” ; °
_and the envoys from Carthage and from Philip were
notified by the dictator, on the authority of the senate,
1 Tbid. 2 Polyb, xv. 1.
8 Polyb. iii. 20, 23; cf. Liv. xxviii. 7.
4Cf. Mommsen, Rim. Staatsr. vol. 111. pt. 2, pp. 1148-1158.
5 Ouaest. Rom, 43: Διὰ τί δὲ οἱ πρεσβεύοντες εἰς Ρώμην ὁποθενοῦν,
ἐπὶ τὸν τοῦ Κρόνου ναὸν βαδίζοντες, ἀπογράφονται πρὸς τοὺς ἐπάρχους
᾿ τοῦ Tapetov.—See supra, p. 225, as to ἀσμέα, etc.
ὁ 8411. Jug. 104.
316 FOREIGN ENVOYS AND SPIES
that an audience of the consuls would be granted)
to them.t Until the proper authorization was obtained)
they had to wait in a place specially appointed for’
the purpose, as in the case of the ten Locrian
envoys, 204 B.c.2 If the permission was accorded!
them there was, it would seem, a solemn introduction,
by the praetor or by the consul.? In 18 3 B.c. we find.
the praetor peregrinus presenting to the senate deputies)
from Transalpine Gaul ; ;—“‘introducti in senatum a)
C. Valerio praetore,”’ 4 Valerius having been in the)
same year elected peregrin praetor.
ΤῊ the later In the later days of the Republic, as a rule, onl
Republic. messages brought by envoys who were received in)
Rome were delivered to the consuls in the presence of
the senate, which took cognizance of the affairs in
question,— .. . τῶν παραγενομένων εἰς Ῥώμην πρεσβειῶν, ὡς
δέον ἐστὶν ἑκάστοις χρῆσθαι, καὶ ὡς δέον ἀποκριθῆναι, πά ro
ταῦτα χειρίζεται διὰ τῆς συγκλήτου Written communica-
tions were addressed to the magistrates who were thet
entitled to preside over the proceedings relating thereto
in the senate. Thus foreign envoys were at this
epoch regarded primarily as envoys to the senate, ant
even as guests of the senate,—‘... vorzugsweise als
Sendboten an den Senat und also auch als Gaste des
Senats.” ® 7
Foreign envoys If, however, the ambassadors did not duly obtain the
failing to get a
permission Necessary permission to be received in audience, the
fiable tobe were liable to be considered as spies (speculatores),
treated as
spies. and treated accordingly ; or, at the least, they
be entirely disregarded in respect of their diplom: ti |
capacity. Thus, Illyrian legates having arrived in Rome,
1 Liv. xxx. 40: “legatis Carthaginiensium et Philippi regis—nain - ;
quoque venerant—petentibus, ut senatus sibi daretur responsum 1 as
patrum a dictatore est, consules novos eis senatum daturos esse.” |
Liv. xlv. 20 : “...cum Rhodii, gratulatum se de victoria purgatumque
civitatis taianina: dicenies venisse, petiissent, ut senatus sibi daretur.”
2 Liv. xxix. 16; cf. Plin. Hist. mat. xxxiv. 24. Ἢ
8 Liv. xlii. 6; xliii. 6. 4 Liv. xxxix. 54. 5 Polyb. vi. 13+
6 Mommsen, Rim. Staatsr. vol. 111. pt. 2, p. 1149.
WHAT ENVOYS NOT RECEIVED 317
174 B.c., and having failed to report themselves and
declare their diplomatic character in the customary
manner, were subsequently denied an audience by the
senate. It was not thought fit, says Livy, to give
them any answer as delegates, on the ground that
they had not applied for an audience of the senate,—
“responsum tamquam legatis, ut qui adire senatum
mon postulassent, dari non placuit.’”’ Similarly when
{Carthaginian envoys had arrived to treat for peace,
205 8.c., M. Valerius Laevinus endeavoured to convince
f ‘the senate that they were really spies, and not am-
"bassadors, and urged that they ought to be ordered to
epart from Italy, and that guards should accompany
te em to their very ships,—“ . . . speculatores non legatos
ν mpniese arguebat, iubendosque Italia excedere et custodes
um 118 usque ad naves mittendos...” ?
' When the negotiations were completed, or for any when nego.
eason broken off, the foreign envoys were obliged serena
ἴὸ leave Rome or Italy, as the case may be, within broken off.
_ given time. Thus ambassadors from Perseus of
᾿ Macedon (171 8.0.) were ordered to leave Rome
immediately, and Italy within ten days ; and they were
wuarded till the moment of their embarkation.
Similarly, Aetolian ambassadors were notified to quit
fitalian territory within fifteen days.‘
_A Roman law of 166 B.c., forbidding the kings of Kings of allied
! ied States to come in person to Rome, operated δος θα to
ms a great inducement to foreign States to establish come to Rome
und develop diplomatic relationships through the Cas
medium of ambassadors. But at times the senate
i
+ Liv. xlii. 26. SL ν χα, 23.
~ 8 Liv. xlii. 36: “Ita dimissis, P. Licinio consuli mandatum, intra
40 . . . “415 . .
ji diem iuberet eos Italia excedere et Sp. Carvilium mitteret qui,
fonec navem, conscendissent, custodiret.”
ΞΞ 4Τ}ν. xxxvii. 1.
Liv. Ep. χὶνὶ. : “Eumenes rex Romam venit...ne aut hostis
idicatus videretur, si exclusus esset, aut liberatus crimine, si admit-
stur, in commune lex lata est, ne cui regi Romam venire liceret.”
f. Polyb. xxx. 20.
How envoys
of friendly
States were
received.
* Locus.’
* Lautia.’
* Aedes
liberae.’
General
hospitality.
‘ Comitas
gentium.’
Admitted to
best Roman
families,
Honours at
public feasts.
318 HOSPITALITY TO ENVOYS
admitted exceptions to this rule, probably, as Mommsen
observes, in virtue of its power to grant exemptions
from general laws,—“ vermuthlich durch Entbindung
von dem allgemeinen Gesetz.”* Thus, shortly after-
wards (164 B.c.), both Ptolemaeus Philometor and
Ptolemaeus Euergetes of Egypt were received in
Rome.?
Ambassadors of friendly States were received by
the Romans with great respect, and obtained in the
city furnished houses, ‘ hospitia publica’ ὃ (‘locus’* or
‘loca’5), free quarters—«xaradvua, as Polybius terms:
it,° board and gifts of various kinds, παροχή (‘lautia’).7
Livy points out that they and their attendants were
installed in the city in an ‘aedes liberae,’ that is, a
house not inhabited by any other person,—* ades i
ipsum comitesque eius benigne acciperent, conductae.” ©
The city to which they were accredited bestowed
hospitality, and all the privileges incidental thereto. In
the observance of usages of politeness and courtesy
towards them, as being the representatives of their
governments, we see the beginnings of the important
principle of ‘comitas gentium,’ which was to exert in
succeeding ages such a profound influence. They were
admitted to the households of the most aristocratic
Roman families, and sometimes were on terms of pred
intimacy with them. On the occasion of public feasts
certain additional honours were conferred on them
Thus, as public guests also, they were then treated like
1 Rim. Staatsr. p. 1150, ἢ. 1.
2 Polyb. xxi. 18; Val. Max. v. 1. 1.
3 Liv. xlv. 22; Val. Max. v. 1. 1.
4 Liv. xxviii. 39. 5 Liv. xlii. 26.
6 xxxii. 19.—Cf. Diod. Sic. xiv. 93, where he speaks of δὴ
κατάλυμα. δι.
7 Polyb. xxxii. 19.—Cf. supra, pp. 225 seg., as to the treatment
public guests; and see V. Ferrenbach, Die Amici Populi Roma
republikanischer Zeit (Strassburg, 1895), pp. 65 “ἐφ.
8 Liv. xlv. 44; cf. Liv. xlii. 19 ; Val. Max. v. 1. 1.
cm ἢ
oF
a ᾿ a
ENVOYS OF ENEMY STATES 319
senators, and therefore had access to the senaculum.!
‘Under the principate similar honours were bestowed
᾿ 0 the ambassadors of kings or of independent com-
? munities.’ Occasionally foreign ambassadors also courted
public favour in other directions. Thus the Athenian
mvoys Carneades, Diogenes, and Critolaus, despatched
Ὁ Rome in 155 B.c. for the purpose of deprecating
ithe fine of five hundred talents which had been imposed
jon their city for the destruction of Oropus, delivered
: ‘there public lectures in philosophy.
_ When the foreign envoys were introduced to the Foreign envoys
senate, they delivered their message, and were liable to ΠΝ Ge
: 2 questioned thereon by the senators individually. the senators.
ὰ “Cum more tradito a patribus potestatem interrogandi,
i quis quid vellet...”’* Pending the deliberations
hat ensued, the ambassadors (as in the case of Greece)
| retired. Varro says they were conducted to a platform,
* ed the Graecostasis, which was outside the Curia.*
When the reply of the senate was ready, either they
were recalled and received it from the presiding senator
Ἢ person, or it was conveyed to them by a magistrate
pecially appointed for the purpose.°
_ Ambassadors of enemy States, however, were usually Ambassadors
of enemy
ound to get the previous permission of the nearest States—
Roman general to proceed to Rome; otherwise they Previous
εἰ i aie" permission.
vere liable to be treated as enemies.°. They were not
seceived in the city, but outside the Pomerium (the space
= _ 1 Varro, De ling. Lat. v. 155: “ Locus substructus, ubi nationum
onsisterent legati qui ad senatum essent missi.”—Cf. Justin. xliii.
». 10: “...Immunitas illis [i.e. to the Massilians] decreta et locus
eectaculorum in senatu datus.”
— *Sueton. Claud. 21: “Germanorum legatis in orchestra sedere
eermisit.”
=P Liv. xxx. 22. * De ling. Lat. v. 155.—Cf. supra, n. τ.
τ § Liv. xlv. 20.
Εἰ ®Thus Livy, xxxvil. 49, says in reference to the Aetolian am-
assadors, ΤΟΙ B.C. . Denuntiatumque si qua deindeé legatio ex
Metolis nisi permissu imperatoris qui eam provinciam obtineret et
im legato Romano venisset Romam, pro hostibus omnes futuros,”
Received
outside the
city.
‘Treatment
generally—
distinction
between
friendly and
hostile
legations.
320 GENERAL TREATMENT OF ENVOYS
originally along the city-wall within and without which
was left vacant and regarded as sacred). “ Legati si
quando incogniti venire nuntiarentur, primo quid vellent
ab exploratoribus requirebatur, post ad eos egrediebantur
magistratus minores et tunc demum senatus extra
pomeria postulata noscebat et ita, si visum fuisset,
admittebantur.”* They were, as Servius here states,
first visited by the minor magistrates—probably the
quaestors—before they obtained an audience of the
senate. The envoys of the Macedonians, when the latter
were at war with Rome, were conducted outside
the city to a ‘villa publica’ in the Campus Martius,
and were there supplied with the customary requisites,
which amounted practically to the same as those allowed
to ambassadors of friendly countries.” i
In regard to treatment generally a certain distinction
was often made between legations that came to establish
amicable relationships and those that came to effect
a rupture of negotiations. In the case of the latter we
find that they were forbidden to enter the city, they
did not receive the full Aospitium in the villa publica,
and obtained an audience of the senate only in the
temple of Bellona or of Apollo,—. ..quibus vetitis
ingredi urbem, hospitium in villa publica, senatus ad
aedem Bellonae datus est.”? The Rhodian envoys in
167 B.c., complained that they were treated almost like
enemies, that they were ordered to remain outside the
city, and that the arrangements and conditions of t 1e
inns allotted to them were an insult to their office and
position.‘ In this respect, however, reciprocal treatment
1Servius, 4d Aen. vii. 168.
2 Liv. ΧΧΧΙΙ. 24: “ Macedones deducti extra urbem in vi a
publicam ; ibique i lis locus et lautia praebita; et ad aedem Belloni
senatus datus.”’
3 Liv. xxx. 21.—And cf. the last note in the case of the Macedo ni n
ambassadors. s
4Liv. xlv. 22: “...Ex sordido deversorio, vix mercede rece i, :
9
prope hostium more extra urbem manere iussi, in hoc squalo
venimus...”
FOR WHAT PURPOSES DESPATCHED 321
“obtained. Roman envoys despatched to foreign States, Reciprocal
with which amicable relationships had not been estab- ““*™*™
lished, were liable to receive the same brusque treatment.
Thus the Roman ambassadors sent to the Dalmatians
"reported that they refused to grant them an audience,
that they said they had nothing in common with the
Romans, and that they refused to supply the ordinary
"necessaries incidental to hospitium.! On other occasions
Roman envoys were made to wait a long time before
_ they obtained an audience ; as, for example, in the case
_ of a legation despatched to the King of Macedon,—
; *“legati Romani ... cum ad regem pervenissent, ἘΞ
- multos dies conveniendi eius potestatem non factam,”’
-and only after this long delay were they solemnly
- introduced to the king. At times, indeed, ambassadors
from Rome failed to obtain an audience altogether, as,
for example, those sent to Perseus, 173 B.c. “ Principio
huius anni legati, qui in Aetoliam et Macedoniam missi
- sunt, renunciarunt, 5101 conveniendi regis Persei potes-
_ tatem non factam.’’?
᾿ς Greek and Roman ambassadors were employed for For what
_a large variety of purposes.’ Some of these were, in FePothea.
| time of peace, as follows: (1) the conclusion of treaties In time of
οὗ friendship, alliance, commerce, etc. ; (2) mediation ; P°*
' (3) appeal for help ; (4) conveyance of grateful acknow-
_ledgments and delivery of gifts for services rendered or
for good disposition towards the State; (5) effecting
ja delivery of fugitives ; (6) conveyance of messages for
‘the adjustment of sacred affairs. Still more important
“were their functions in time of war, as, for example : In time of war,
ΙΝ the conclusion of peace and negotiation as to terms ;
(2) delivery of prisoners, demanded or offered; (3)
ἦ Polyb. ΧΧΧΙΪ. 19: ... ὥστε οὐδὲ λόγον ἐπιδέχοιντο καθόλου παρ᾽
αὐτῶν, λέγοντες, οὐδὲν αὐτοῖς εἶναι καὶ “Ῥωμαίοις κοινόν. πρὸς δὲ
τούτοις διεσάφουν, μὴ κατάλυμα δοθῆναι σφίσι, μήτε παροχήν.
Ο * Liv. ΧΙ, 2.—Cf. Liv. iv. 52.
8See supra, pp. 304 seg., as to the different names given to envoys in
wirtue of their special functions,—Cf. Thurm, De Rom. /eg. pp. 38-72.
x
Number of
envoys sent.
Powers and
instructions.
σύμβολα----
credentials.
322 THEIR CREDENTIALS
making arrangements as to the burial of those fallen in
the war ; (4) demand or offer, as the case may be, of
capitulation; (5) the adjustment of other relationships
arising in the course of the war, or out of it, between
the belligerent States.
The number of ambassadors sent varied from time
to time according to the importance and gravity of the
matter in question. In the case of Rome, when fetials
were employed for demanding redress of grievances, or
for declaring war, the number varied, five or four being”
frequent, three or two rarer. In missions other than
these, there were, in earlier times, sometimes ten envoys,
sometimes five, or three. Ten were generally sent to
assist the Roman commanders in proceedings a
to the work of pacification. This was the usual
ss
The powers and instructions of ambassadors were
sometimes consigned to writing, sometimes delivered to”
them merely in an oral form. In Greece their cre=
dentials, commonly designated σύμβολα (often corre=
sponding to the Roman ‘tesserae hospitales’), were
specifically mentioned in decrees. Thus in an extant
Athenian decree (B.c. 372-360) engraved on a marble
stele, which was found on the Acropolis, and is now
preserved at Oxford, we find the σύμβολα mentioned in
connection with the conferring of honours on Straton,
King of Sidon,—vomoacOw δὲ καὶ σύμβολα ἡ βουλὴ πρὸξ
τὸν βασιλέα... .2 A similar use of the word is found in
number after the second Punic war... A number le
than three was very rarely found.
1 Liv. xxxlil. 24 5 XxXxvil. 55; xlv. 17.
2 Corp. inscrip. Att. ii. 86 ; Corp. inscrip. Graec. 87 ; Michel, Re
933; Hicks, Gr. Iuscrip. no. 111, ll. 18 seg.:
a ie ae ΦΊΩΝΝ π-
οιησάσθω δὲ καὶ σύμβολα ἡ βουλὴ πρ-
ὃς τὸν βασιλέα τὸν Σιδωνίων ὅπως
ἂν ὁ δῆμος ὁ ᾿Αθηναίων εἰδῆι ἐάν τι
πέμπηι 6 Σιδωνίων βασιλεὺς δεόμ-
evos τῆς πόλεως, καὶ 6 βασιλεὺς 6 Σ-
ιδωνίων eon. ὅταμ πέμπηι τινὰ w-
ς αὐτὸν ὁ δῆμος ὁ ᾿Αθηναίων.
POWERS AND INSTRUCTIONS 323
an oration of Lysias delivered about the same period
(287 B.c.).1. This application of the term σύμβολον
appears to have been overlooked by the majority of
_ lexicographers.
In Rome, though we find several examples of envoys’ verbal
_ mandates being merely verbal,’ they were generally in ΚΑ δαί,
written form. The same practice obtained also in
other countries. Livy relates that when Perseus, after
the conference with the Romans (173 B.c.) had retired
into Macedon, he despatched ambassadors to Rome to
resume the negotiations for peace commenced with
Marcius, and gave them letters to be delivered at
Byzantium and Rhodes.’ And so Suetonius says that
τα the tribunitian authority was conferred upon
Tiberius a special commission was also entrusted to
him to settle the affairs of Germany (a.p. 4). There
are also cases where letters of credit were added to the
full powers conferred. On certain occasions, a docu- senatorial
ment containing a senatusconsult took the place of the Gectes instead
_ ordinary letters of credit. Thus Polybius relates that credit.
ten Roman envoys arrived in Corinth (B.c. 196), to
_ effect the settlement of Greece, and brought with them
_the decree of the senate relative to the peace with
Philip ;° and this decree at the same time determined
their competence in their mission. Roman ambassadors Powers
were obliged to adhere strictly to the terms of their °°"
' lLysias, De bonis Aristophanis, 25: Δῆμος yap ὁ Πυριλάμπους,
᾿ πριηραρχῶν εἷς Κύπρον, ἐδεήθη μου προσελθεῖν αὐτῷ, λέγων ὅτι ἔλαβε
σύμβολον παρὰ βασιλέως τοῦ μεγάλου φιάλην χρυσῆν. ....
- Cf. Οἷς. Ad Ait. i. 12 ; Liv. xxiii. 33.
Shiv. ΧΙ. 46: ‘Perseus, cum ab conloquio Romanorum in
- Macedoniam recepisset sese, legatos Romam de incohatis cum Marcio
_ condicionibus pacis misit; et Byzantium et Rhodum litteras legatis
ferendas dedit.”
4 Tiber. 16: “... data rursus potestas tribunicia in quinquennium,
| delegatus pacandae Germaniae status .. .”——Cf. Liv. xxvii. 51 ; xxxiii.
ΕΠ; xiv. 25; Tacit. Ann. 1. 57.
5 Polyb. xviii. 44 : ... ἧκον ἐκ τῆς Ῥώμης οἱ δέκα δι’ ὧν ἔμελλε
χειρίξεσθαι τὰ κατὰ τοὺς “EAAnvas κομίζοντες τὸ τῆς συγκλήτου
. δόγμα τὸ περὶ τῆς πρὸς Φίλιππον εἰρήνης.
‘ Mandata
libera '—full
powers,
Who chosen
as diplomatic
envoys,
In Rhodes—
‘ the admiral.
Proxenoi.
Minimum age
fixed.
324 WHAT PERSONS APPOINTED
commission, the extent of which was, as a rule, clearly
marked out for them ; though in certain urgent cases,
where circumstances made it difficult or impossible to
circumscribe their authority in this manner, unlimited
full powers of negotiation—‘ mandata libera’—were
conferred upon them. Thus, in connection with the
negotiations commenced with the States of Asia (191
B.c.) ten ambassadors (or commissioners) were appointed
by the senate with full powers—‘libera mandata’—to
decide as they thought necessary ; so that they acted in
the capacity of plenipotentiaries. ‘ His, quae praesentis —
disceptationis essent, libera mandata; de summa rerum —
senatus constituit.”’ 1 ᾿
Ambassadors were chosen from amongst the most
distinguished and honoured citizens. Sometimes those
who already had high civil or military appointments —
were nominated for legations, as an additional mark —
of honour and in recognition of their able services. —
Thus we find a Rhodian admiral coming to Rome as
an ambassador. A speech of the Rhodian Astymedes”
having incensed the Romans (167 B.c.), the Rhodians, —
threatened with war, despatched to Rome Theaetetus as
navarch and head of an embassy—apeoBevryy dua
καὶ vavapxov—to propitiate the senate. In Greece
proxenoi who had acquired adequate experience and
knowledge of foreign affairs were frequently sent on —
missions to countries which they had previously repre-—
sented or whose interests they had protected in their
official or quasi-official capacity.* In some Hellenic —
communities wide experience of affairs was so much —
insisted on as an essential qualification for taking part
in diplomatic negotiations that a minimum age was —
fixed for ambassadorial candidates. Thus there was a
law of the Chalcidians that no individual under the age —
of fifty could officiate as an ambassador (or as any magis=
1 Liv. xxxvil. 55, 56. Cf. Liv. xxxiii. 24.
2 Polyb. xxx. 5. 3 See supra, pp. 153 “6.
he Sg =e
TET BT eS TP RE AN ES RR τυ OA ΣΦ RRL. IE OE Oe ΣΥΝ
Dt ee ὦ ὅρος
ΣΕ ἘΣ ice ἄρον ὦ. Ὁ ὁ ἢ
sing
Ἕ-. -
WHAT PERSONS APPOINTED 325
trate)—vopuos δὲ jv Χαλκιδεῦσι μὴ ἄρξαι μηδὲ πρεσβεῦσαι
γεώτερον ἐτῶν πεντήκοντα.
In Rome at the time of the Kings envoys were Under the
_ chosen from the college of fetials in matters relating to
_ the declaration of war, to the conclusion of treaties, and ‘espatched.
to extradition (deditio); but outside these questions
other distinguished individuals could be appointed.
_ The Rhodians, as Polybius relates, considered it grossly
disrespectful on the part of the Roman commander,
Gaius Lucretius, for sending to them as an envoy one
Socrates, an athletic trainer (ἀλείπτης) ; they pointed
out that it was not customary for the Romans to
employ messengers of this character; for, on the
contrary, they were inclined to act with elaborate care
and dignity in the despatch of missives,—. . . οὐκ
εἰωθότων τοῦτο ποιεῖν Ῥωμαίων, ἀλλὰ Kat λίαν μετὰ πολλῆς
σπουδῆς καὶ προστασίας διαπεμπομένων ὑπὲρ τῶν τοιούτων.3
Such conduct on the part of the Romans (or other
ancient peoples) was exceptional ; the usual practice was
to employ only persons of birth, distinction, and ripe
age. Forty years was generally the minimum age. Minimum age
Ulpian says in the Digest that twenty-five years was the
lowest age for any public official.?
Under the Republic, when the religious element Under the
. . . . . Republic—
in public life was declining, the senate selected senators.
ambassadors from among its number.‘ Thus, in
205 B.c. ten senators were appointed envoys by the
1 Heraclides (Ponticus), wept πολιτειῶν (De rebus publicis), c. 31 5
(in Historic. Graec. fragmenta, ed. C. Miller, τ. ii. p. 222).
2 Polyb. xxvii. 7.
8 Dig. 1. 4 (de muner. et honor.), 8 : “ Ad rempublicam adminis-
_ trandam ante vicesimum-quintum annum, vel ad munera quae non
_ patrimonii sunt, vel honores, admitti minores non oportet . ..”
*Cf. Mommsen, Rém. Staatsr. vol. iii. pt. ii. p. 1158: “ Aber in
Folge der Zuriickdrangung des sacralen Elements im Staatswesen,
welche einen der wichtigsten Gegensitze der republikanischen
Entwickelung gegentiber dem kéniglichen Rom bildet, bleibt den
Fetialen in historischer Zeit nur das religidse Ceremoniell und werden
_ mit der eigentlichen Verhandlung anfangs vorzugsweise, bald aus-
_ schliesslich Mitglieder des Senats beauftragt.”
In later
Republic—
often chosen by
lot.
Members of
the equestrian
order.
Able ex-
officials.
326 WHAT PERSONS APPOINTED
consuls,—‘... consules decem legatos, quos iis vide-
retur, ex senatu legere.”1 And after Philip’s defeat
in Thessaly, 198 B.c., by Titus Quinctius, it was
decreed, says Livy, that in accordance with ancient
practice, ten ambassadors should be appointed, and
that, in council with them, the general should grant
terms of peace to Philip.2 Similarly, ten commissioners
of high rank—undoubtedly senators—were despatched, —
196 B.c., to arrange the settlement of Greece in con- ©
junction with Flamininus.’ In the later period of the —
Republic there was a departure from the earlier custom
in that the election of envoys appears to have been ~
determined by lot (sortitio) from the various senatorial —
orders, such as consulares, praetorii, etc. Cicero, writ- —
ing in 60 B.c., gives an account of this procedure ©
in the case of the appointment of /egati to proceed ©
to Gaul;* and Tacitus writes, indeed, as though this ©
method had once been common,—‘ vetera exempla, —
quae sortem legationibus posuissent.” ° | i
In certain cases of urgency, or through the insuffi- ©
ciency of senators (as, for example, in 413 B.c.),
members of the equestrian order were added to the ©
number of diplomatic agents to co-operate with or ©
take the place of the senators,—“...consules...
coacti sunt binos equites adicere.’’® As in the case ©
of Greece, such persons as had satisfactorily fulfilled —
other public duties in foreign States were frequently
sent to these States on diplomatic missions. Thus,
in connection with the appointment of the ten ~
ambassadors to discuss terms of peace with Philip, a
clause was added in the decree of the senate that
Publius Sulpicius and Publius Villius, who in their
1 Liv. xxix. 20.
2Liv, xxxill. 24: “Decem legati more maiorum, quorum ex ἃ
consilio T. Quinctius imperator leges pacis Philippo daret, decreti.”
8 Polyb. xviii. 42: ...%) σύγκλητος ἄνδρας δέκα καταστήσασα TOV
ἐπιφανῶν ἐξέπεμπε τοὺς χειριοῦντας.... 4
4 Ad Ait. i. 19. 2-3. 5 Hist. iv. 6, 8.
6 Liv. iv. 52.—Cf. Liv. xxxi. 8.
AMBASSADORS’ SUITES 327
_consulships had held the province of Macedonia, should
_ be included in the number.! Likewise ex-magistrates,
_ who had had other public experience, were chosen.
_ The embassy which negotiated terms of peace with
_ Antiochus in 189 B.c. consisted of three consulares,
_ four praetoriani, and three quaestorii2 In important
_ legations it was a general practice to include at least
one consularis; if there were more than one, then
the senior consularis was the head of the embassy,
‘ princeps legationis.’ ὃ
_ Inthe earlier history of Rome, when religion played Later _
a more prominent part in public life and was more fuween the
closely in touch with her jurisprudence, members of the ‘tials and
° gati,
college of fetials (as has already been observed above)
were sent as diplomatic envoys. The first case
mentioned by Livy of individuals chosen outside the
college occurred in 456 B.c., when three envoys were
despatched to the Aequi to complain of injuries and
demand reparation,—‘ questum iniurias et ex foedere
res repetitum.”* Henceforth, /egati seem to have
been reserved for the functions of negotiation and
diplomacy generally, whilst the fetials themselves took
part in the actual declaration of war and conclusion of
peace. It is in this sense that Varro distinguishes
_ between the offices of the fetials, and those of the /egaii
or oratores.°
Both in Greece and in Rome ambassadors were Suites.
accompanied by suites,—axdAovdo.. Thus Thucydides ἀκόλουθοι.
speaks of negotiations in which heralds took part (that
is, of course, in the preliminary proceedings), and
plenipotentiaries accompanied by their suites—«jpuee de
καὶ πρεσβείᾳ καὶ ἀκολούθοις. Cicero calls these ἀκόλουθοι,
1 Liv. xxxili. 24. 2 Liv. Xxxvil. §5.
8 Cf. Sall. Jug. τό. 4 Liv. ili. 25.
®Varro, ap. Nonium, p. 529: “... priusquam indicerent bellum
iis a quibus iniurias factas sciebant fetiales, legatos res repetitum
mittebant quattuor, quos oratores vocabant.”
®'Thuc. iv. 118.
Asseclae,
Comites.
Rights and
duties of
ambassadors.
Inviolability.
328 THEIR RIGHTS AND DUTIES
asseclae (or asseculae).1 In an epigraphic document
we find also the secretary of an ambassador mentioned.”
In Roman embassies there were attachés, comites,
legati (in the narrower sense of this word), as well
as the ordinary suite. Thus, in the Digest ‘comites’
are, in regard to the privilege of inviolability, specified
along with the ‘ oratores’ and ‘legati’: “item quod ad
legatos, oratores, comitesve attinebit, si quis eorum —
quem pulsasse et sive iniuriam fecisse arguetur.”? And
Livy, describing the solemnities incidental to the
conclusion of a treaty, refers to the formula employed —
by a fetial on his appointment as a delegate of the —
Roman people,—this formula including a reference
to the sacred vessels of the appointed envoy and —
to his attachés or attendants: “ Facisne me tu regium
nuntium populi Romani Quiritium, vasa comitesque
meos?”* The same historian also mentions elsewhere
the ‘comites legatorum’ of a foreign State. These
‘comites’ were also appointed by the Government. |
The suite attached to Roman embassies comprised α΄
larger number of individuals than that of modern lega- —
tions. This was due partly to the difficulties of the —
journey itself, necessitating more work and attendance,
and partly to the practice on a much larger scale of —
ceremonies and formalities in the actual fulfilment of the —
particular mission concerned. Like the plenipotentiaries —
and attachés, the minor members of the suite bore ἃ
public character.® 3
-
Oe ego, τυ oe Bo ον
Everywhere in antiquity ambassadors were considered ~
inviolable. Even among primitive races the persons
of envoys are deemed to be sacred.’ It is frequently —
stated by the Greek historians and other writers that —
heralds, ambassadors and their suites are sacrosanct in all —
1 In Verr. ii. 1. 25, where Cicero speaks of ‘legatorum asseclae.
3 Corp. inscrip. Graec. no. 1837, in addendis. ὋΣ
8 Dig. xlviii. 6 (de vi publica), 7; cf. ibid. xlviii. 11 (de leg. Jul”
repet.), 5. # Liv. i. 24. ἡ
5 Liv. i. 30; xlii. 19. 6 Liv. xxvii, 51. 7 See supra, p. 303.
+
ne
INVIOLABILITY 329
‘matters regarding their office, and in the execution of
their duties. They enjoyed liberty to go anywhere,
whether by land or by sea, in all proceedings concerning
“peace and justice. Thus in the truce between the
Athenians and the Lacedaemonians, according to
Thucydides, the fifth clause is to the effect that there
‘shall be,a safe-conduct both by land and sea for a herald,
and envoys, and as many attendants as may be agreed
“upon, passing to and fro between Peloponnesus and
_ Athens to arrange about the termination of the war and
about the arbitration of matters in dispute. Κήρυκι δὲ
Kal πρεσβείᾳ καὶ ἀκολούθοις ὁπόσοις ἂν δοκῇ, περὶ καταλύσεως
ποῦ πολέμου καὶ δικῶν ἐς Πελοπόννησον καὶ ᾿Αθήναζε σπονδὰς
: εἶναι ἰοῦσι καὶ ἀπιοῦσι, καὶ κατὰ γῆν καὶ κατὰ θάλασσαν.1
Four centuries later Strabo, speaking of the perfidy of
the Persians, similarly emphasizes that it is unlawful to
interfere in any way with ambassadors in the exercise of
their duties.?
_ Herodotus gives a striking account of the remorse Maltreatment
and expiation of the Spartans for having maltreated the jobs =
_ Persian envoys of Darius.’ The latter having despatched
_ heralds to Athens and Sparta ‘to demand earth and
water,’ the Athenians threw them into the barathrum
and the Spartans into a well, telling them to carry earth
and water to their king from those places. Subsequently,
_ however, two Spartan nobles offered their lives as an
"atonement to Xerxes for the violence done to the
envoys of Darius. But Xerxes replied that he would
not act like the Lacedaemonians, who, by killing the
heralds, had broken the common laws of mankind; and,
as he blamed such conduct in them, he would never δὲ
guilty of it himself This shows a clear recognition of
1'Thuc. iv. 118.
2 xvii. 19: καὶ τοὺς Πέρσας δὲ κακῶς ἡγεῖσθαι τοῖς πρέσβεσι τὰς
᾿ ὁδοὺς κύκλῳ καὶ διὰ δυσκόλων.
8 Herodot. vi. 48.
* Herodot. vil. 136: ... οὐκ ἔφη ὁμοῖος ἔσεσθαι Λακεδαιμονίοισι"
ἐκείνους μὲν γὰρ συγχέαι. τὰ πάντων ἀνθρώπων νόμιμα, ἀποκτείναντας
κήρυκας, αὐτὸς δὲ τὰ ἐκείνοισι ἐπιπλήσσει, ταῦτα οὐ ποιήσειν.
Not amenable
to the local
jurisdiction.
330 LOCAL JURISDICTION
an obligation, sanctioned by religion and law alike, even
towards those who were considered barbarians and out-
side the pale.?
There are, indeed, very few instances recorded of
violence offered to the persons of ambassadors, even in
case of offences committed by them in the territory of
the foreign State to which they were accredited. For it
was an established rule that the representatives of foreign
sovereigns and communities were not amenable to the
local jurisdiction, but that they were triable only by
their national tribunals. It is related by Cornelius
Nepos that Pelopidas and Ismenias, Theban ambassadors
accredited to Alexander, tyrant of Pherae in Thessaly
(366 B.c.), having been suspected of intrigues against
the independence of the Thessalians, were accordingly
arrested and thrown into prison. Though the evidence
against Pelopidas pointed to his guilt, yet Thebes
᾿ declared war as a reply to this outrage, which consti-
Envoy—
personality of
the State.
Precedence.
tuted an infringement of the law of nations.” i
In Rome the ambassador was recognized as, in 2
certain sense, a personification of the sovereignty and
majesty of the State he represented. When the Roma r
ambassadors were senators, there was no question 0
precedence, all being regarded as of equal rank in virtue
of their senatorial dignity. Suetonius relates that the
Emperor Galba assumed the name of ‘ legatus’: “ con=
sultatusque imperator, legatum se senatus ac populi
Romani professus est.” * Of Popilius, a Roman envoy
Cicero says he bore with him, as it were, the personality
of the senate, the authority of the republic,— Senatt
faciem secum attulerat, auctoritatem reipublicae.”* From
the earliest times the ambassador was looked upon as the
personal representative of the king, as well as of the
1'The illegal treatment of the heralds is also referred to by Polybin y
ix. 39; Pausanias, iil. 12. 6; and Stobaeus, vii. 70. ΕΞ
2Corn. Nep. Pelop. 5: “Cum Thessaliam in potestatem Theba=
norum cuperet redigere, legationisque iure satis tectum se arbitraretur,
quod apud omnes gentes sanctum esse consuesset...”
8 Sueton. Gala, το. 4 Philipp. viii. 8.
FORCE OF IUS GENTIUM 331
people. Hence any offence against an envoy was an
Bence against the State, against the sovereign Power.
“ ... Item quod ad legatos oratores comitesve attinebit,
si quis eorum pulsasse et sive iniuriam fecisse arguetur. "2
‘Unless due reparation was made, an offence of this kind offence against
furnished a just ground for declaring war. If during “peng
‘the existence of an armistice between two States pre- ¥*.
viously at war any offence should be committed by one
‘State against the ambassadors of the other, it necessarily
entailed a discontinuance of the armistice. Thus in
B.C, 202 a treacherous attempt made on the lives of
‘the Roman envoys who had been sent to Carthage to
-remonstrate on the conduct of some Carthaginians was,
says Polybius, a signal for the immediate resumption of
war with a fiercer and more determined spirit.*
_ Any injury to envoys or heradls was considered a Sanction of the
deliberate infraction of the ius gentium.s All ancient“ βλέ
‘writers are unanimous on this matter. Some relatives
of Tatius, the king of the Sabines and the colleague of
Romulus, having committed a gross outrage on the
“envoys of the Laurentes, the latter commenced proceed-
‘ings ‘iure gentium.’® Dionysius says that not only
from Lavinium but also from other States ambassadors
_arrived, who denounced this infringement of the law of
| nations, and threatened war if due satisfaction were not
‘offered. Mera τοῦτ᾽ ἔκ τε AaBwiov πρέσβεις ἀφικόμενοι καὶ
"ἐξ ἄλλων πόλεων συχνῶν κατηγόρουν τῆς παρανομίας, καὶ
iN euov παρήγγελον, εἰ μὴ τεύξονται τῆς δίκης. 5 ‘Tatius was
Αἴ ζεγιγαγάβ killed in a tumult at Lavinium,—whereupon
Livy observes that he suffered the punishment which
‘was due to his relatives,—‘illorum poenam in se
1Cf. Liv. i. 24 (previously referred to) : “ Rex, facisne me tu regium
jnuntium populi Romani Quiritium ?”
2 Dig. xlviii. 6 (ad = Iuliam de vi publica), 7.—Cf. Just. Jmst.
liv. 18 (de pub. iudic.), 8
8 Polyb. xv. 2.
*Cf. Liv. i. 143 il. 43 Iv. 17, 19, 323 Vi. 195 ΙΧ. 105 XXi. 25 ;
ἼΧΧΧΙΧ. 25.
sy © Liv, i. 14. 6 Dion. Hal. ii. 51.
332 RIGHTS OF ENEMY ENVOYS
vertit.”+ Romulus did not declare war; but in order
that the offence against the ambassadors and the murder
of the king might be expiated, the treaty was renewed
between the cities of Rome and Lavinium (c. 747 B.c.).
Consensusasto Amongst the many other pronouncements of the Roman —
inviolability. }
writers as to the inviolability of diplomatic agents, the
following may be referred to: “ Annius, tanquam victor
armis Capitolium cepisset, non legatus, iure gentium |
tutus...”? “ Legatis, qui iure gentium sancti sint...°
« Sacrum etiam in exteras gentes legatorum ius et fas.” *
“Cum legationis iure se tutum arbitraretur, quod apud
omnes gentes sanctum esse consuesset.’’> “ἢ Violavit
legationes, rupto gentium iure.’’®
Privilege of The same privilege was extended to the attachéd
oe (comites) of ambassadors,’ but probably not so to their
suite and family. Correspondence and all things essen=
tial to the regular performance of their duties were
Accessories to likewise considered inviolable. In the earlier times the
‘egations. —_ various accessories incidental to legations were referred
to specifically on the appointment and despatch of the
envoy,—such appointment practically taking the form of
a contractual transaction. Thus the customary form
uttered by the nominee was: “εχ, facisne me tu
regium nuntium μόραν Romani Quiritium δ Vasa
comitesque meos?” § ἧ
The privilege Enemy envoys were just as inviolable as those of
extended a
equally to a friendly State. Thus Cicero says: ‘ Legatorum ius”
enemy envoys: diyino humanoque vallatum praesidio, cuius tam sanctul
et venerabile nomen esse debet, ut non modo intet
sociorum iura, sed et hostium tela incolume versetur”’ ;
and Tacitus: ‘“‘Hostium ius, sacra legationis et fas
gentium.”!0 Further there is found a specific provisior
1Liv. i. 14. 2 Liv. villi. 5.
3 Liv. xxxix. 25. * Tacit. Hist. il. 80.
5 (Previously referred to) Corn. Nep. Pelop. 5. s
6 Seneca, De ira, iii. 2. ΤΟΣ supra, p. 328. 8 Liv. i. 24. Ὁ
9In Verr. iiii—Cf. In FVerr. i. 33: “ Nouné legati inter host |
incolumes esse debent ?”
10 Ann, i. 42.
POSITION OF THIRD STATES 333
to this effect in the Digest: “Si quis legatum hostium
Hipulsasect contra ius gentium id commissum esse
existimatur, quia sancti habentur legati.” 1
The principle was, of course, equally applicable in
‘the case of ambassadors remaining within the territory
of a foreign State if war should break out between
‘the latter and their own country. Thus Ulpian says
‘in the Digest that, in pursuance of the law of nations,
‘the envoys of a community against which war has
been declared were no less protected,—“...si cum
legati apud nos essent gentis alicuius, bellum cum
_ eis indictum sit? responsum est, liberos esse manere ;
- id enim iuri gentium conveniens esse.” Σ
During the second Punic war, Scipio’s envoys had Scipio's respect
been subjected to ill-treatment at the hands of the Siriag tee ce
| Carthaginians, —those violators of alliances—‘ Poeni second Punic
- foedifragi’—as Cicero called them. But when a ~
_ Carthaginian legation fell into the power of the consul,
_ he deemed it unlawful to adopt against them measures
| of reprisal or retaliation, and consequently sent them
back safe to Carthage.‘
Strictly speaking, the privilege of inviolability was Position of
valid only for the Government to which the legation so the pipes
was accredited, and not necessarily—at least, in_ its οἵ inviolability.
| full extent—to third States. But the Romans held
_ such obligation binding on even third parties ; so that
protection was afforded to ambassadors not only
Mi RETNA TEC ed --....ὄ. πτπτοσνκας tet bean wet fake wo
_ during the time of their official residence within the Duration of
. . ° . diplomatic
territory, but also during their journey to the duties,
1 Dig. 1. 7 (de legationib.), 17.
Ἐξ * Dig. Loo (de legationib.), 17.—Cf. Liv. xxiv. 33: ‘‘ Legatis in
᾿ς periculum adductis ne belli quidem iura relicta erant.”
8 De off i. 12.
4 Diod. Sic. xxvii. 12 : Οἱ γὰρ εἰς Ῥώμην ἀποσταλέντες πρεσβευταὶ
Ξ τῶν Καρχηδονίων ἀναστρέφοντες ὑπὸ χειμῶνος κατηνέχθησαν εἰς τὸν
; τῶν Ῥωμαίων ναύσταθμον. Ὧν ἀναχθέντων ἐ ἐπὶ τὸν Σκιπίωνα, καὶ
πάντων βοώντων ἀμύνασθαι τοὺς ἀσεβεῖς, ὁ Σκιπίων οὐκ ἔφη δεῖν
᾿ πράττειν ἃ τοῖς Καρχηδονίοις ἐγκαλοῦσιν. Οὗτοι μὲν οὖν ἀφεθέντες
᾿ διεσώθησαν εἰς τὴν Καρχηδόνα, θαυμάζοντες τὴν τῶν Ῥωμαίων
᾿ εὐσέβειαν.
Certain
examples.
Sacred
embassies.
Usual to obtain
permission to
pass through
territory of
third States.
334 POSITION OF THIRD STATES
country to which they were despatched, and during
their return home. The Digest states that a man-
is considered to be absent on State service as soon
as he has started from the city, though he may not
yet have reached the province ; and when he has once _
departed, he remains absent until his return to the
city. (‘‘Abesse rei publicae causa intellegitur et is,
qui ab urbe profectus est, licet nondum provinciam |
accesserit [taking this reading instead of ‘ excesserit ’],
sed et is qui excessit, donec in urbem revertatur.” 1?
It is added that this rule applies to proconsuls and their
legates, to imperial procurators, to military officers.
(tribuni milttum), to comites legatorum (assessors of
legates), etc. This particular provision does not
mention ambassadors proper, but there is no dou
that the rule applied equally to them. q
Thus, when in 189 B.c. Aetolian envoys were, on
their way to Rome, intercepted by the Epirotes von
demanded a ransom, an immediate despatch fro
Rome insisted on their release? Again, a convention
of representatives of the States that were at variance
with Philip having been summoned at Tempe, in
Thessaly, 187 B.c., the Thessalians said—amongst the
complaints laid against that sovereign—that he did
not even scruple to offer violence to ambassadors who
by the law of nations are everywhere held inviolableg
for he had laid an ambush for their envoys who were
proceeding to Titus Quinctius.® 3
Ambassadors despatched on purely sacred missions
were protected by all States, whether they were dire
concerned in the embassy or not.* F
But the obligation to observe this privilege was not
necessarily imposed on States through whose territory
enemy ambassadors, or those of doubtful character,
1 Dig. iv. 6. 32. 2 Polyb. xxi. 26.
8 Liv. xxxix. 25: “Iam ne a legatis quidem, qui iure gentium
sancti sint, violandis abstinere; insidias positas euntibus ad TP
Quinctium.”
4 Diod. Sic. xiv. 93 ; cf. ibid. xvi. 57.
PUNISHMENT OF OFFENCES 335
were passing without previously having obtained per-
‘mission. Thus, in 215 B.c., Philip sent an embassy,
with Xenophanes at the head, to Hannibal in order
to negotiate for an alliance whose object was to be
the subjugation of Italy. The king’s envoys were
descried at sea by the Roman fleet which was guarding
the coasts of Calabria, and were overtaken and captured.
They tried to make up some fictitious tale, but their
purpose was discovered, and they were conveyed as
prisoners to Rome.’ A somewhat similar example
occurred much earlier, in 495 B.c., when the Volscians
having sent ambassadors to stir up Latium, the Latins
(reports Livy), in view of their recent defeat received
at Lake Regillus, could scarcely refrain from offering
violence to the instigators, seized them and conveyed
them to Rome where they were kept as prisoners. As
a reward for this conduct the Latins obtained the
privileges of hospitality and other favours from Rome.?
Similar rules obtained, in this respect, amongst other In ancient
‘nations of antiquity; as, for example, in China, pre
where envoys, though held sacred, were nevertheless
arrested as spies if they passed through the dominions
of a third State, without having first provided them-
selves with passports.’
Punishment for offences committed against foreign Punishment
ambassadors was very severe. Any complaints that ee
were made, for example, to Rome were submitted ambassadors.
to the college of fetials for investigation. “ Fetiales Judicial
function of
qui viginti, qui de his rebus cognoscerent, iudicarent et the college of
etials,
1Liv. xxili. 33, 34.—Justin’s account (xxxix. 4) is different :
*Philippus...legatum deinde ad Hannibalem, iungendae societatis
gratia, cum epistolis mittit ; qui comprehensus, et ad senatum
_perductus, incolumis dimissus est, non in honorem regis, sed ne dubius
adhuc indubitatus hostis redderetur.”
Liv. ii, 22: “...sed recens ad Regillum lacum accepta clades
Latinos via odioque eius quicunque arma suaderet, ne ab legatis
quidem violandis abstinuit ; comprehensos Volscos Romam duxere.”
8 Martin, Traces of Int. Law in Ancient China, loc. cit. p. 71.
Delivery of
offender by
fetials.
Examples.
Provisions in
the Digest.
336 PUNISHMENT OF OFFENCES
statuerent, constituerunt.”! If the offender was found —
guilty, the fetials then decided whether there was
sufficient cause for his delivery to the outraged
State; and if the decision was in the affirmative, his
surrender was effected by the fetials themselves, both as |
satisfaction to the offended State and to appease the
gods,—‘‘ad placandos deos.” Thus Varro states: “Si |
cuius legati violati essent, qui id fecissent, quamvis
nobiles essent, ut dederentur civitati statuerunt.” 2
Livy relates* that L. Minucius Myrtilus and L. Manlius"
having committed an offence against the Carthaginian
ambassadors were surrendered by the fetials and taken
to Carthage. Again, it is reported that Q. Fabius
and Cn. Apronius, aediles, had, on account of a tumult
that occurred, assaulted certain ambassadors who
came from Apollonia to Rome, 266 8.c. Whereupon
the senate ordered them to be delivered up by the
fetials to the injured ambassadors, and sent a quaestor
to convey them to Brundisium to protect them from
any attempts that might be made on them by the
friends of the surrendered culprits. ‘Could such
a court as that,” asks the historian, “be said to be a
council of mortal men, and not rather the temple
of faith?” The Digest contains an express provision
to the same effect,—“...itaque eum qui legatum
pulsasset Quintus Mucius dedi hostibus, quorum erant
legati, solitus est respondere.”*® With respect to such
surrender there was a similar practice amongst the
other States also. When delivery was not decided on,
1 Varro, De vita pop. Rom. iii. 8. 2 Thid. |
SLiv. xxxviii. 42: “L. Minucius Myrtilus et L. Manlius, quoc
legatos Carthaginienses pulsasse dicebantur, iussu M. Claudii praetoris
urbani per fetiales traditi sunt legatis et Carthaginem evecti.’
Liv. ix. 10.
4Val. Max. vi. 6. 5 : “‘ Legatos ab urbe Apollonia Romam missos
Q. Fabius, Cn. Apronius 2edilicii orta contentione pulsaverunt, quod
ubi comperit, continuo eos per fetiales legatis dedidit quaestoremque”
cum his Brundisium i ire iussit, ne quam in itinere a cognatis deditorum
iniuriam acciperent.” ,
5 Dig. 1. 7 (de legationib.), 17.—Cf. Dig. xlix. 15. 4.
PRINCIPLE OF EXTERRITORIALITY 337
the culprit, in Rome, was sentenced to death, or to
deportation,! according to the gravity of the offence.
Not infrequently the foreign government to which Roman
Roman offenders were surrendered immediately liberated {o70e'$ Bs
them. In such cases they were seldom regarded in were often
Rome as having sufficiently cleared themselves, and
were, on the contrary, often deprived of citizenship
on their return to the city. “Quia quem populus
semel iussisset dedi, ex civitate expulsisse videretur,
sicut faceret cum aqua et igni interdiceret.” *
The principle of exterritoriality follows naturally Exterritori-
from that of inviolability. The latter represents the “"™”
positive aspect of protection; the former, implying
judicial independence in regard to the foreign State,
represents the negative aspect. It was a universally
recognized rule in antiquity, as has already been pointed
out, that delinquent ambassadors were not subject
to the tribunals of foreign countries to which they
were accredited, but only to their own national jurisdic-
tion. In the case of Rome such /egati as were
permitted to waive this privilege and submit to the
territorial jurisdiction were not ambassadors in the
proper sense, as recognized by the law of nations,
but were simply delegates despatched by the provinces
or the towns with petitions to the emperor ; they were
more of the nature of instruments of-mere communica-
tion than of diplomacy proper.
__ Ambassadors were exempt from the local civil juris- Exemption
diction as well as from the criminal jurisdiction. ae and?
Their houses, however, were not held to possess MD.
such independence, and could not, as a rule, legiti-
-mately furnish an asylum to criminal fugitives.
When Jugurtha came to Rome, at the time of his The case of
war with the Romans, a plebiscite ensured his safety— ν. κόγαν εξ:
“Ἰητεγροϑιία fide publica”—by extending to him and t% ἐς oa
4 Dig. xviii. 6, 7 (quoted supra, p. 331).—Cf. Paulus, Sententiae, v. wae
56. 1, 2.
2 Dig. 1. 7 (legationib.), 17.
Mommsen’s
view.
Objections
thereto.
Early example
of offending
envoy’s
immunity from
local
jurisdiction.
338 PRINCIPLE OF EXTERRITORIALITY
his suite the immunities of ambassadors.1 During his
stay one of his companions was accused of murder
and found guilty. The proceedings were instituted
against the offender, says Sallust, rather by reason of
equity than by the law of nations,—“ fit reus magis ex
aequo bonoque quam ex iure gentium.”? Mommsen
observes that the question of ambassadors’ immunity
from the local criminal jurisdiction is an uncertain
one—“‘ bedenkliche Frage” *—and refers, in order to
confirm his view, to the case of Jugurtha as one which
clearly negatived the claim to any exemption of this
nature. But in this connection, it must be recollected,
—as against Mommsen’s suggestion—Sallust distinctly
implies that the immunity obtained generally and
was based on the ius gentium, but that in the case
of Jugurtha’s companion an exception to this rule
was made on account of special and exigent circum-
stances. An earlier example may here be recalled.
After the expulsion of Tarquin, certain envoys of
the exiled monarch were despatched to negotiate for his”
return, or at least, for the cession of his estates; but
their efforts proving futile they entered into a conspiracy
with some of the young patricians for the restoration”
of the monarchy. The plot was discovered ; their
fellow-conspirators were thrown into chains, but the
envoys themselves, after some deliberation, were
liberated conformably to the law of nations, although
they had deliberately placed themselves in the position”
of enemies. The supremacy of the law was thus
acknowledged; the law of nations, as Livy says,
prevailed. ‘‘ Proditoribus extemplo in vincula coniectis
de legatis paullulum addubitatum est ; et quamquam
visi sunt commisisse, ut hostium loco essent, ius tamen
gentium valuit.’’"* Livy also mentions a case tha
at first sight appears to be in contradiction to the
principle of exemption from the local tribunals,—_
1Sall. Zug. xxxil. 33. 2 Tug. xxxv. γι
8 Rim. Staatsr. vol. iii. pt. 2, p. 115.3. 4 Liv, ll. 4. a
PRINCIPLE OF EXTERRITORIALITY 339
as where a foreign envoy, one Phileas of Tarentum,
was punished in Rome. But the historian adds, “ diu
iam per speciem legationis Romae quum esset,” thus
indicating that there was a strong suspicion as to
whether he was vested with ambassadorial capacity.’
_ Should any litigation arise out of the civil transactions civil
of diplomatic functionaries, the Roman law afforded §jisectons of
them to a large extent the privilege of resorting to vfticials—
‘the home tribunals,—the ‘ius revocandidomum.’ The the Roman
Digest says® that ambassadors (as well as certain ἦν
other individuals) were permitted to have cases trans-
ferred for trial to the courts of their domicile, if the
question turned upon any contract entered into by
them before their appointment was made. Other
persons could not have the cause transferred if they
made the contract where they were sued ; but
ambassadors were not compelled to defend their case
in Rome so long as they remained there in the
character of ambassadors, even though they entered
into the contract there, provided they made it before
‘the mission was undertaken.’ The privilege had no
‘reference to contractual transactions which took place
‘both during the continuance of the embassy and at
-Rome.* On the contrary if they brought an action
themselves they were obliged to defend any consequent
action brought against them. This did not, of course,
apply to their proceedings relating to some iniuria,
or theft, or damage inflicted on them where they were
‘resident for the time being; otherwise (as the Digest
says) they would have to bear insults and loss without
fpptaining redress ; and, further, it would be in any
1 Liv. xxv. 7.
2 Dig. v. 1 (de iudiciis), 2. 3: “ Legatis in eo quod ante legationem
icontraxerunt ... revocandi domum suam ius datur.”
8 Dig. v. 1.2.4: “....Exceptis legatis, qui licet ibi contraxerunt,
idummodo ante legationem contraxerunt, non compelluntur se Romae
idefendere, quamdiu legationis causa hic demorantur.”
4Dig.v. 1.2.5. Cf. iv. 8 (de recept. arbit.), 32.9,—as to certain
imilar exemptions in the case of references to arbitration.
Loans
advanced to
foreign
envoys.
Voluntary
submission.
Other
provisions in
the Digest.
340 PRINCIPLE OF EXTERRITORIALITY
individual’s power, by attaching them, to make them
amenable to the Roman jurisdiction the moment they
took action for redress.1
It is worthy of note that in consequence of acts of
corruption committed by foreign envoys when residing
in Rome, and owing also to abuses of usury, the
Senate, in 94 Β.0., deprived all persons who advanced
loans to them of the right of action thereon.2 This
preliminary measure was followed Ἢ more decisively
in 67 B.c. by the /ex Gabinia#
In the case of non-contentious matters the immunity
did not necessarily apply. And, further, the ambas-
sador could, if he chose, voluntarily submit to the
local tribunals, in which case his independence was not
deemed to be impaired.
It may be added that there are certain other pro-
visions in the Dzegest relating to the principle of
exterritoriality, but it is doubtful if they are applicable
to diplomatic envoys. Thus it is stated that legates
were amenable to the Roman jurisdiction in respect of
delicts committed during the period of their legation,
whether such delicts were committed by themselves or
by their slaves. An action in rem, founded on the
fact of prescriptive possession, against a legate was
allowed (as Cassius held), if it would deprive him of
only one slave out of a large number, but not allowed
if it would deprive him of his whole suite of attendant
slaves. But Julian’s view was that no action could be
1 Dig. v. 1. 2. 5: “Sed si agant compelluntur se adversus omnes
defendere ; non tamen si iniuriam suam persequantur vel furtum vel
damnum quod nunc passi sunt ; alioquin, ut et Iulianus eleganter ait
aut impune contumeliis et damnis adficientur aut erit in potestate
cuiusque pulsando eos subicere ipsos iurisdictioni, dum se vindicant.” ~
ΟΕ Asconius, p. 57: “Rettulerat ad senatum ut, quonian
exterarum nationum legatis pecunia magna daretur usura turpiaque €
famosa lucra ex ea fierent, ne quis legatis exterarum nationumt
pecuniam expensam ferret.” =
8Cf Οἷς. Ad Att. v. 21. 12 : “Salaminii cum Romae versuram
facere vellent, non poterant, quod lex Gabinia vetabat.”—And see
ibid. vi. 2. 7.
ee ee eee Ὁ
—Ts: ee “ὦ
ΣΤ wal tes he
NEUTRALITY OF AMBASSADORS 341
allowed at all; and this, it is stated, was the better
Opinion, as the object of disallowing the action was to
prevent the legate from being called away from the
duties of his post.!
It was a universally recognized rule that ambassadors Neutrality of
as such were to be strictly neutral. Their functions *™°**¢°™
were deemed to be purely diplomatic and not military ;
so that they were necessarily debarred from engaging
in hostilities. A violation of this obligation to preserve
neutrality was an offence against the State to which
they were accredited. As a reparation to the injured
country, the unneutral envoy had to be surrendered ;
failing this, war could be justly declared. Violation of
In 390 B.c. the Senonian Gauls, under their leader δέσαμα ie
Brennus, were marching against Clusium, when the ¥*-
Romans, foreboding the danger, despatched as envoys
three distinguished members of the Fabian gens to
arrest their advance by means of negotiation. The
Gauls, however, rejected the overtures made to them,
and pursued their attack. So that fate now pressing
hard on the Roman city, as Livy expresses it, the
ambassadors, contrary to the law of nations, took up
arms to assist the Etruscans in their defence,—<“ ibi,
iam urgentibus Romanam urbem fatis, legati contra
ius gentium arma capiunt.”* Brennus_ recognized
Quintus Ambustus, one of the sons of Fabius Ambustus,
as he slew a Gaulish warrior, and (according to the
statement of Plutarch) called the gods to witness his
Violation of the common law of all nations, in coming
to them as an ambassador and fighting against them as
an enemy,—ws δ᾽ ἐπικρατήσας τῇ μάχῃ, καὶ καταβαλὼν,
- ἐσκύλευε τὸν ἄνδρα, γνωρίσας ὁ Βρέννος αὐτὸν ἐπεμαρτύρατο
* Dig. v. 1. 24. τ: “Legati ex delictis in legatione commissis
- coguntur iudicium Romae iar sive ipsi admiserunt sive servi eorum.’
‘Ibid. v. τ. 24. 2: “...Iulianus sine distinctione denegandam
- actionem : merito ; ideo e enim non datur actio, ne ab officio suscepto
- legationis avocetur.”
2 Liv. v. 36.
Reward and
punishment of
ambassadors.
342 REWARD AND PUNISHMENT
θεοὺς, ὡς Tapa τὰ κοινὰ Kal γενομισμένα πᾶσιν ἀνθρώποις
ὅσια καὶ δίκαια πρεσβευτοῦ μὲν ἥκοντος, πολέμια δὲ εἰργασ-
μένου! ξ:ξἑἐ He then demanded the surrender of the Fabii,
unless the Romans were prepared to regard the crime
as a public act? on their part. At the meeting of the
senate to consider the question, the conduct of Fabius
was censured by many ; and the fetials, to whom the
matter was then referred, urged his delivery to the
offended people, so that the rest of the city might be
cleared from participating in his guilt,—ev de Ῥώμη τῆς
βουλῆς συναχθείσης ἄλλοι Te πολλοὶ τοῦ Φαβίου κατηγόρουν
καὶ τῶν ἱερέων οἱ καλούμενοι Φητιαλεῖς ἐνῆγον ἐπιθειάζοντες
καὶ κελεύοντες τῶν πεπραγμένων ἄγος τὴν σύγκλητον εἰς ἕνα.
τὸν αἴτιον τρέψασαν ὑπὲρ τῶν ἄλλων ἀφοσιώσασθαι.) The
senate, however, shirked the difficulty by submitting
the question to the assembly of the people, who dis-
regarded the demand. Subsequently, at the battle of
the Allia, the Roman army that was sent against the
Gauls was completely routed. ᾿
Both in Greece and in Rome ambassadors were
usually rewarded for their good services, and not
infrequently punished by their own States for the
commission of offences. a
There is an extant inscription presenting a fragment
of a decree in favour of Demetrius Phalereus (born
c. 345 B.c.) for having effected a reconciliation between
the Athenians and the inhabitants of the Attic demus
Aexone. In 317 8.0. Demetrius was appointed governor
of Athens by Cassander, and the document probably
ie
ga
1Plut. Camill. 17. F
2 Appian, De rebus Gallicis, 3: αἰτιώμενος τοὺς Φαβίους, Ori,
πρεσβεύοντες, Tapa τοὺς κοινοὺς νόμους ἐπολέμησαν. ἥτει TE τοὺς
" 2 , > a7 ε ͵΄ WN: (i ε A oa
ἄνδρας és δίκην ἐκδότους οἱ γενέσθαι, εἰ μὴ θέλουσι Ῥωμαῖοι κοινὸ
αὐτῶν εἶναι τὸ ἔργον. Cf. Diod. Sic. xiv. 113: ΕΒὐημερήσαντος δὲ
θατέρου τῶν πρεσβευτῶν καί τινα τῶν ἐνδοξοτέρων ἐπάρχων ἀποκτεῖ-
ναντος, γνόντες ot Κελτοὶ τὸ γεγονός, εἰς Ρώμην πρέσβεις ἀπέστειλαν
τοὺς ἐξαιτήσοντας τὸν πρεσβευτὴν τὸν ἀδίκου πολέμου προκαταρξά-
μενον. -
3Plut. Camil/. 18.
; OF AMBASSADORS 343
dates from about this time. The portion of the in-
scription lost perhaps stated that the Aexonians
_ bestowed certain honours upon him, and erected to
3.
_ him one of the three hundred and sixty statues.! The
_ part remaining runs somewhat to this effect: “To
the auxiliary gods! Callicrates, the son of Aristo-
-phanes, said: ‘Whereas Demetrius, the son of
-Phanostratus of Phalara, is a man devoted to the
_ Athenians and to the Aexonians, and the enemy being
in the country, and the Aexonians having severed
themselves from the town owing to the war, he re-
conciled them with the Athenians...and_ restored
peace to the Athenians; and having been chosen by
_ the people as administrator of the country... .᾿ ἢ
_ Similarly Poseidippus who had accompanied an
embassy accredited to King Cassander was, in recog-
nition of his benevolent disposition towards the
Athenians and his services rendered to them, publicly
commended in a decree and crowned with a garland
_of green branches.*
1Cf. Diog. Laert. v. 75 ; Οἷς. Rep. ii. 1; Corn. Nep. Mist. 6.
2 ᾿Ἐ(πικουρίοις) O(eois)
(Καλλικ)ράτης ᾿Αριστοφάνου εἶπεν : ᾿Ἐπειδὴ
(Anpytp)ios Φανοστράτου Φ(α)ληρ(ε)ὺς ἀνὴρ (ἔ-
στιν ἀγ)αθὸς περὶ τὸν δῆμον τῶν ᾿Αθηναίω(ν
καὶ τὸν δ)ῆμον τῶν Αἰξωνέων, καὶ πολεμ(ίω-
ν ἐνόντων) ἐν τῇ χώρᾳ, καὶ χωρισθέντ(ων
Αἰξωνέων) καὶ τοῦ ἼΑστεως διὰ τὸν (πόλεμ-
ον, πρὸς σφ)ᾶς διέλυσε ᾿Αθηναίου(ς
ae Kee ἄγγῃ (Ὁ) εἰς τὸ αὐτὸ καὶ εἰ(ρήνην
παρέσχετο ᾿Α)θηαίοις, καὶ τῇ χώ(ρᾳ ἐ:-
} πιμελητὴς αἱ)ρεθεὶς ὑπὸ τοῦ Sypov....
| (Rangabé: Antiguités helléniques, vol. ii. no. 422.—The last two lines
are inserted according to Rangabé’s conjecture, based on the passage
of Diodorus, xviii. 74.)
_ Rangabé, Antig. hell. no. 2298 (marble stele found in 1853 near
the banks of the Ilissus) : ἐπειδὴ of πρέσβεις, οἱ ἀποσταλέντες πρὸς
; A [4 / > / / ,
τὸν βασιλέα Κάσσανδρον, ἀποφαίνουσι, ἸΠοσείδιππον συναποδημή-
σαντα, μεθ᾽ ἑαυτῶν χρήσιμον εἶναι ἑαυτοῖς, ἀποδεικνύμενον τὴν εὔνοιαν
᾿ ἣν ἔχει πρὸς τὸν δῆμον τῶν ᾿Αθηναίων, δεδόχθαι τῷ δήμῳ, ἐπαινέσαι
IL. καὶ στεφανῶσαι αὐτὸν θαλλοῦ στεφάνῳ... P ‘
Punishment for
misconduct.
Ambassadors
forbidden to
receive gifts.
rw we wel
344 PUNISHMENT OF AMBASSADORS
On the other hand, severe punishment overtook
such envoys as were found guilty of any acts of ©
treachery, malversation, prevarication, or other miscon-
duct. Plato provides in his Laws for the misconduct
of heralds or ambassadors: any envoy bearing to or .
from Athens a false message was to be indicted for a
violation not only of the law but of the commands and —
duties imposed on him by Hermes and Zeus,...
γραφαὶ κατὰ τούτων ἔστων ws “Ἑρμοῦ καὶ Διὸς ἀγγελίας —
καὶ ἐπιτάξεις παρὰ νόμον ἀσεβησάντων. eey and if found
guilty he was to suffer a penalty determined by the
State. Ambassadors were forbidden to receive presents
—which might in reality amount to bribery—as clearly —
appears in a law quoted by Demosthenes, and probably
due to Solon. Thus, Demosthenes attacking Aeschines -
and Philocrates for receiving presents on their embassy
says, when he comes to discuss the question of corrupt
motive : “1 am sure you will all agree that to accept ἃ
reward for acts which are detrimental to the common-—
wealth is shocking and abominable. The legislator
indeed does not make use of such express terms,
but he absolutely prohibits the taking of bribes in any
way, considering, as it appears to me, that a person 4
who is once bribed and corrupted ceases to be even a
safe judge of what is useful for the State.”2 XKenophon®
and Plutarch‘ relate that Timagoras, an Athenian ~
ambassador accredited to Artaxerxes of Persia, was_
condemned to death and executed for having received —
presents ;—and if it was for the amount of presents, —
adds Plutarch, the sentence was right and just, εἰ μὲν
ἐπὶ τῷ πλήθει τῶν δωρεῶν, ὀρθῶς καὶ δικαίως. Philocrates
1 xii, 941 A. 3
2 De Falsa Legat. 7: ᾿Αλλὰ μὴν ὑπέρ γε τοῦ προῖκα, ἢ μὴ, τὸ μὲν
ἐκ τούτων λαμβάνειν, ἐξ ὧν ἡ πόλις βλάπτεται, πάντες οἶδ᾽ st
φήσαιτ᾽ a ἂν εἶναι δεινὸν καὶ πολλῆς ὀργῆς ἄξιον. 6 μέντοι τὸν νόμον
τιθεὶς οὐ διώρισε τοῦτο, GAN ἁπλῶς εἶπε μηδαμῶς δῶρα λαμβάνειν,
ἡγούμενος, ὡς ἐμοὶ δοκεῖ, τὸν ἅπαξ λαβόντα καὶ διαφθαρένθ᾽ ὑπὸ,
χρημάτων οὐδὲ κριτὴν ἔτι τῶν συμφερόντων ἀσφαλῆ μένειν τῇ πόλει.
8 Hellem vii. 1..33-28. 4 Pelop. 30.
Pa a es
) PUNISHMENT OF AMBASSADORS 345
i was impeached by Hyperides before the Athenians
and condemned for corruption, amongst other traitorous
‘dealings.’ Epicrates accused of corruption on the
occasion of his embassy to Artaxerxes escaped death
“by voluntary exile.’
For a false assumption of the title of ambassador, or False _
for acting in that capacity without due authority, the sumption of
capital penalty was awarded. Thus Demosthenes says ambassador.
‘in reference to Aeschines’ embassy to Philip that he
went off as ambassador without having been appointed
by either the council or the people ; and that the law
provided the penalty of death for such misconduct,—
οὐκοῦν ᾧχετο μεν παρὰ τὸν νόμον, ὃς θάνατον κελεύει τούτων
τὴν ζημίαν εἶναι..... ὃ
In the trial of offences committed by ambassadors, special
‘a special procedure before the tribunals was adopted,—
; ἰδίως δὲ, ἡ κατὰ τῶν πρεσβευτῶν γραφὴ, παραπρεσβείας
ἐλέγετο."
_ Quinctilian says that among the Greeks there were
frequent prosecutions for offences relating to diplomatic
“missions. In such indictments the question was often
raised whether it was at all permissible for an ambassador
to act otherwise than was laid down in his instructions,
and also as to the extent of the period during which
the accused retained his capacity as ambassador, since
some envoys terminated their office with the delivery
of their message.6 In this connection Quinctilian
mentions the case of Heius, who was at the head of
_ 1Hyperides, Pro Euxenippo, 30 ; cf. Demosth. De Fala Leg. 116 ;
| Aeschines, c. Cresiph. 79.
᾿ς 2Demosth. De Falsa Leg. 315; Lysias, c. Epicrat.
3 Demosth. De Fala Leg. 126, 131.
* Pollux, viii. 46 ; and cf. idid. vi. 1543 vill. 137.
‘5 Inst. Orat. vii. 4. 36: “Male gestae legationis apud Graecos et
_ Veris causis frequens; ubi iuris loco quaeri solet, an omnino aliter
agere quam mandatum sit liceat, et quousque sit legatus; quoniam
alii in renuntiando desinunt.”—Cf. Cic. De Invent. ii. 29. 42, whose
- propositions here set forth are based on Greek doctrines.
procedure in
trial of envoys”
offences.
In Rome,
impeachment
for violation
of ‘auctoritas.’
Quaestio
extraordi-
Naria;
The law de
vepetundis,
346 PUNISHMENT OF AMBASSADORS
the legation despatched by the Sicilians to Rome ;*
here the question was whether he ought not to have
returned to Sicily and reported the result of his embassy
before he proceeded to give evidence against Verres.
In Rome /egatz were liable to an impeachment for
any serious infringement of their ‘auctoritas,’ on the
occasion of their declaring in the senate the results of
their mission. Sometimes after submitting their report
severe censure was passed for departures from Roman
usage and tradition, or for any crookedness in their
proceedings ; as, for ‘example, in the case of the embassy
to Macedon (171 B.c.) of Marcius and Atilius, whose
conduct was disapproved by the older members, as
Livy says, and those who retained the ancient simplicity
of manners, “veteres et moris antiqui memores.” 5
They declared they saw nothing of the Roman genius
in the conduct of that embassy, that their ancestors did
not glory more in cunning than in real valour. Those
senators, however, who were actuated by considerations
of utility rather than of honour, prevailed and passemg
a vote in approval of the conduct of the envoys,—
“ vicit tamen δ pars senatus, cui potior utilis quam
honesti curat.” Sallust? gives a case of a successful
impeachment (110 B.c.) of /egati by means of a lex
which established a guaestio extraordinaria (an extra- :
ordinary inquisition) to try them ; but these /egat were”
not really ambassadors in the proper sense. The law
de repetundis passed in 59 B.c. provided for the punish-
ment of offences committed by /egaz and other public”
officials, chiefly in respect of acts of corruption oF
extortion. ‘‘Lex Iulia repetundarum pertinet ad eas :
pecunias, quas quis in magistratu potestate curatione
legatione vel quo alio officio munere ministeriove pub-
lico cepit, vel cum ex cohorte cuius eorum est.” * |
1Cf. Οἷς. In Verr. iv. 8. 2 Liv. xlii. 47.
3 Tug. 40. 4 Dig. xiviii. 11. 1.
CHAPTER XIV
RIGHT OF ASYLUM.—EXTRADITION (DEDITIO)
_ Fottowinc on what was said in the preceding chapter
as to the surrender (deditio) of those individuals who
committed any breach of the law of inviolability of
ambassadors, it will be convenient here to consider
briefly what other offences entailed a surrender or
delivery of delinquents, to what extent the practice of
extradition in general obtained in Greece and Rome,
and how far the right of asylum was recognized.
The right of asylum occupied a prominent place in Importance
the religious, in the political, and in the legal history of 27git °!
antiquity. Commanded by the gods who zealously
_ punished all infractions of this obligation, it was in a
sense above the common law; it was not necessarily Divine
antagonistic thereto, but was its supplement, its ex- oe
tension. It was a tutelary right of the ancient peoples,
and manifested itself with comparative conspicuousness
even in the very earliest development of society. Asa
French writer says: ‘Ce droit placé au-dessus du droit
commun, non pour le combattre, mais pour le garder,
pour le suppléer quand il fait défaut et le redresser
quand il dévie ; ; droit tutélaire des sociétés naissantes,
Εἴ qui semble méme avoir présidé a leur formation. . . .””?
_It was a universal recognition, spontaneously and un-
“consciously arrived at, of the necessity to alleviate the
rigour of the law, and ‘of the obligation to extend mercy,
under certain conditions, to those in distress, and more
particularly to suppliant fugitives.
᾿ 'Wallon, Du droit @asile (Paris, 1837).
Right of
asylum among
the ancient
Egyptians.
In Assyria.
Further
development
by the
Israelites.
348 RIGHT OF ASYLUM IN ANTIQUITY
The right of asylum existed amongst the ancient
Egyptians. Thus Bulmerincq, referring to the authority
of earlier writers such as Fulgentius, Benhardus, Sixtus
Senensis, and Alphonsus Tostatius, states that King
Assyrophernes had erected a statue of his son, and
decreed that offenders fleeing thereto should be pro-
tected. ‘‘ Der Kénig Assyrophernes habe seinem Sohn
eine Bildsaule errichtet, die den zu ihr fliehenden
Verbrechern Schutz gewahrt.”’ Some writers?® claim
that this king was the veritable founder of the institu-
tion ; but there is no doubt that its roots already existed
before his time.
Similarly, it is related that in Assyria King Ninus
erected a statue of his father Belus, which also afforded
a safe asylum under similar circumstances.’
The Israelites were the first people to develop the
institution systematically. First the sacred altar in the
temple afforded a secure protection, which was soon
extended to the priests, whose proximity conferred the
privilege, then to their dwellings. But certain distinc-
tions, and exceptions relating thereto, were made, as the
unconditional and absolute operation of the principle
was thought to be contrary to the interests of the
community. Thus, a fugitive who committed man-—
slaughter was protected at the altar, but not a deliberate”
and guileful murderer.* Certain cities of the Levites
were places of refuge’ for involuntary homicides.° It is”
noteworthy that these provisions applied equally to”
aliens’ and to slaves.® q
1A, Bulmerincg, Das Asylrecht und die Auslieferung flichtiger
Verbrecher.—Eine Abhandlung aus dem Gebiete der universellen Rechts
geschichte und des positiven Vilkerrechts (Dorpat, 1853), p. 12. 4
2E.g. Simon, Des asyles (in Hist. de Pacad. des inscrip. et belles
lettres, Paris, 1746, p. 36) ; cf. Otto von Gerlach, Das alte Testament
(Berlin, 1847), p. 199. =
8Cf. Helfrecht, Historische Abhandlung von den Asylen (Hof, 180% re
p- 9; Simon, /oc. cit. (These references are given by Bulmerincq, δ. cit.
4 Exod. xxi. 12-14. 5 Numb. xxxv. 6, and 22-25.
6 Josh. xx. 1-4; Deut. xix. 1-5. 7 Numb. xxxv. 15.
8 Deut. xxiii. 15, 16.
ASYLUM IN GREEK TEMPLES 349
Coming to Greece we find that suppliants were there In Greece,
likewise considered to enjoy inviolability, ἀσυλία, and to Sippian's
be under the direct protection of Zeus. There were ἀσυλία.
express legislative measures in their favour.'' In the
Hellenic world the right of asylum was of the utmost
importance. It exercised a particularly beneficial in-
fluence in view of the constant interstatal conflicts and
intestine party strife, together with the universal practice
_of forced or voluntary banishment.
Theseus, as Plutarch says, was buried in the midst ‘Theseus’ tomb
_ of the city, near the site where the Gymnasium was *** ΩΣ
_ afterwards erected ; and his tomb served as a place of
_ sanctuary for slaves, and for all who were poor and
_ oppressed,—xai κεῖται μὲν ἐν μέσῃ TH πόλει παρὰ TO νῦν
᾿ γυμνάσιον ἔστι δὲ φύξιον οἰκέταις καὶ πᾶσι τοῖς ταπεινυτέροις
᾿ Kat δεδιόσι κρείττονας."
Similar refuge was found in the Greek temples. Greek temples
_ Polybius mentions, for example, the temple of Artemis,
situated between Cleitor and Cynaetha, which was
_ regarded by the Greeks as offering an inviolable refuge,
᾿ς --ΟΟτὺ τῆς ᾿Αρτέμιδος ἱερὸν, ὃ κεῖται μὲν μεταξὺ Κλείτορος
᾿ χαὶ Κυναίθης, ἄσυλον δὲ νενόμισται παρὰ τοῖς “ἄλλησιν. . . .*
_ And Livy refers to these asy/a and to the Delian temple
of Apollo in particular, ‘“...templum est Apollinis
_ Delium ... ubi et in fano lucoque ea religione et eo
jure sancto quo sunt templa, quae asyla Graeci ap-
pellant....”* Polybius, again, speaking of the impious
nature (πρᾶγμα πάντων ἀσεβέστατον) of the murder of
the Ephors by the Spartans in the temple of Athene of
the Brazen-house, says that the enormity of the crime
will be realized when it is recollected that the sanctity
of this temple was such that it gave a safe asylum even
to criminals sentenced to death,—xairo:. πᾶσι τοῖς
καταφυγοῦσι τὴν ἀσφάλειαν παρεσκεύαζε τὸ ἱερόν, κἄν
θανάτου τις fj κατακεκριμένοςς. The sanction of this obliga-
gO RR Sk nen ee
ὩΣ Ὡς a aN
1 Diod. Sic. xiii. 26: οὗτοι πρῶτοι τοὺς καταφυγόντας διασώσαντες
ποὺς περὶ τῶν ἱκετῶν νόμους παρὰ πᾶσιν ἀνθρώποις ἰσχῦσαι παρε-
σκεύασαν.
2 Thes. 36. Siv. 18. 4xxxv. 51.
Intentional
crimes—
and asylum.
Temples—and
belligerent
fugitives.
350 ASYLUM IN GREEK TEMPLES
tion was imposed by the “common laws of the Greeks,”
—xowa τῶν «Ἑλλήνων νόμιμα.
It would seem that strangers and slaves, as well as
other fugitives, had access only to the public temples,
τὰ δημοτελῆ, and not to the temples consecrated for the
use of 4 particular community, τὰ dOnuotixa;? and,
further, those who were ἄτιμοι (corresponding to the
‘capite deminuti’ of the Roman law), that is, deprived
of civic rights, were excluded.
As in the case of the ancient Hebrews, it was
frequently insisted on by the Greeks that altars afforded
an asylum only for involuntary offences, and not for
intentional crimes. Thus in a dispute relating to the
temple of Delium, the Boeotians accused the Athenians
of sacrilege, and of drawing the sacred waters for
common use. The latter’s defence was based on the
ground that they could not help themselves with regard
to the water ; that its use was a necessity they had not
incurred wantonly, being due to the exigencies of self-
defence when the Boeotians attacked their territory.
Finally, the Athenians reminded their accusers that only
those who committed an involuntary offence obtained a
refuge at the altar, and that they alone were trans-—
gressors who deliberately committed a wrongful act,
and not such as presumed a little in their distress?
Very frequently, however, temples in Greece gave
security even to robbers, besides rendering inviolable
fugitive slaves, and those flying from the enemy,—€ort
δούλῳ φεύξιμος βωμὸς, ἔστι καὶ λησταῖς ἀβέβηλα πολλὰ τῶν
ἱερῶν' καὶ πολεμίους φεύγοντες, ἂν ἀγάλματος λάβωνται ἢ ἢ
ναοῦ, θαῤῥοῦσιν." :
ao
1 Diod. Sic. xix. 63. ἣ
2Cf. S. Petitus, Leges Atticae (1635), Ρ. 77: “Ῥεγερυίπῖβο.
servisque licere publica Atheniensis populi templa adire, vel videndi-
causa, ibidemque pipphicieas sedere” ; cf. ibid. p. δ. Ἔ
*'Thuc. iv. 98: καὶ γὰρ τῶν ἀκουσίων ἁμαρτημάτων καταφυγὴν, Β
εἶναι τοὺς βωμούς, παρανομίαν τε ἐπὶ τοῖς μὴ ἀνάγκῃ κακοῖς ὀνομασ-. i
θῆναι, καὶ οὐκ ἐπὶ τοῖς ἀπὸ τῶν ξυμφορῶν τι τολμήσασιν.
*Plut. De superst. 4.
SUPPLIANTS INVIOLABLE 351
Oracles often pronounced suppliants to be inviolable, suppliants
—Tovs ἱκέτας μου ἐκ τοῦ νηοῦ κεραιζεΐς .Ἶ and any breach μιλόρειυ ΣΥΝ
‘of this established rule was punished both by sacred law the oracles.
f and by municipal law. Pausanias relates that the fate
that overtook Helice was one among the many warnings
of divine retribution for offences committed against Divine
suppliants, and that the god at Dodona also enjoined fo "non
for non-
their protection.” ‘For about the time of Aphidas, observance of
6 privilege.
"verses to the following effect were sent to the Athenians
by Zeus of Dodona: ‘Take heed of the Areopagus
and the incense-laden altars of the Eumenides, where
_ the Lacedaemonians shall supplicate you when they are
ἃ;
sore pressed in war. Put them not to the sword, nor
wrong the suppliants, for suppliants are sacred and
ate ax
When the Lacedaemonians took refuge in the Areo-
-pagus, the Athenians were mindful of the counsel given
to them. But later, when Cylon and his faction took
possession of the Acropolis, the Athenian magistrates
“themselves put to death the suppliants of Athena,
wherefor, says Pausanias, the slayers and their descend-
“ants were held to be accursed of the goddess,—evaryeis
“ris θεοῦ Again, the Lacedaemonians slew men who
had sought an asylum in the temple of Poseidon at
_Taenarum, and soon afterwards their city was shaken
_by such a prolonged and severe earthquake that not a
single house in Lacedaemon withstood the shock.®°
Earlier in his work Pausanias mentions that the Lace-
_daemonians, heedful of the warning of the Pythian
?
‘rovs μὴ σὺ κτεῖνε σιδήρῳ,
μηδ᾽ ἱκέτας ἀδικεῖν" ἱκέται δ᾽ iepot τε καὶ dyvoi,’ ὃ
1 Herodot. i. 159; cf. ibid. i. 157-159.
* Pausan, Vii. 25.1: Τὸ δὲ τοῦ Ἱκεσίου μήνιμα πάρεστι μὲν τοῖς
: ἐς τὴν᾽ Ἑλίκην, πάρεστι δὲ καὶ ἄλλοις διδαχθῆναι πολλοῖς ὡς ἔστιν
: ἀπαραίτητον. φαίνεται δὲ καὶ ὁ θεὸς παραινῶν ὁ ἐν Δωδώνη νέμειν
ἐς ἱκέτας αἰδῶ.
8 7ῤ1ά. 41ῤ14.
° Pausan, Vii. (25-23 . . ἡ πόλις συνεχεῖ τε ὁμοῦ καὶ ἰσχυρῷ τῷ
᾿ σεισμῷ, ὥστε οἰκίαν μηδεμίαν τῶν ἐν Λακεδαίμονι ἀντισχεῖν.
Offences to be
duly expiated.
Infractions
denounced by
States.
352 SUPPLIANTS INVIOLABLE |
priestess that vengeance would overtake them if they
maltreated the suppliants of Zeus of Ithome, allowed -
the Messenians to leave Peloponnesus under a truce,—
ὑπόσπονδοι μὲν ἐκ Πελοποννήσου τούτων ἕνεκα ἀφείθησαν." Ἵ
All offences against the right of asylum had to be
duly expiated. The Ephors having attempted to arrest _
Pausanias, he fled to the temple of Athena; but he |
was there shut in and starved to death. The curse of
the Delphian god was therefore pronounced against
the Spartans, and they were also commanded by the —
oracle to dedicate two brazen statues as an expiation.? —
Cassandra, on the capture of Troy, fled into the
sanctuary of Athena, but was said to have been torn
away from the statue of the goddess by Ajax, the son —
of Oileus.? But Athena, according to one account, —
exacted due vengeance. When on his voyage home |
Ajax reached the Capharean rocks on the coast of .
Euboea, his ship was wrecked in a tempest, he himsel
was killed by Athena with a flash of lightning, and ἢ
body was washed upon the rocks.*
Sometimes in diplomatic negotiations, or in the specia
mission of envoys, violation of this duty was strongly
denounced. Thus in the speech of Chlaeneas, the
Aetolian, at Sparta (322 B.c.), complaint was made οἱ
Antipater’s cruel and wrongful treatment of Greeks,
and of his going so far as to drag some from the temp le ;
and others from the altars, -- ὧν οἱ μὲν ἐκ τῶν ἱερῶν
ἀγόμενοι μετὰ βίας, οἱ 0 ἀπὸ τῶν βωμῶν ἀποσπώμενοι. . . ail
The protection thus afforded to suppliants, whether
ee re >. ΙΝ ne ἡ
liv. 24. 73 and cf. Thuc. i. 103. 2'Thuc. i. 126.
8 Virg. Aen. ii. 403-5 :
“‘ Heu nihil invitis fas quemquam fidere divis !
Ecce trahebatur passis Priameia virgo
Crinibus a templo Cassandra adytisque Minervae.”
Cf. Herodot. viii. 54 ; Eurip. Toad. 70 seg. 4 :
4Cf. Virg. Aen. i. 40 “6. 3 Xi. 259-260: -
“. .. scit triste Minervae :
Sidus et Euboicae cautes ultorque Caphereus.”
5 Polyb. ix. 29. sg
PRACTICES DURING WAR 353
in time of peace or in time of war, was not merely a was more
sacerdotal privilege, as Laurent observes; it was the "4 Πα]
γοῖος of humanity re-echoed through the oracles. privilege.
. Le droit d’asile n’est pas un privilége sacerdotal,
a la voix de l’humanité qui parle par la bouche des
prétresses de Delphes.”’ ἢ
Further, apart from the sacred sanction, positive law Sanction of
dealt severely with those who were found guilty οὔ νον.
this sacrilege, ‘epoovAta,—which included violation of
asylum as well as temple robbery. Sometimes the
capital penalty was awarded, entailing burial outside
Attic territory, and confiscation of the property of the
condemned ; sometimes the sentence was banishment,
in addition to an imprecation, as, for example, in the
case of the murderers of Cylon and his companions,’
who were torn away from the altar in the Acropolis.
In the case of belligerent relationships,® however, the Different
practices of States as to the treatment of suppliants and cg
fugitives differed greatly, especially so in the absence of
express understandings on the subject. Some cities
showed a striking humaneness, others a merciless
rigour. Thus, after the taking of Athens by Lysander,
the Spartans treated Athenian fugitives with little
clemency, whilst the measures of the Thebans were
highly generous. Plutarch says that the government
of Thebes issued a decree providing that every city
and every house in Boeotia should be open to those
Athenians who required shelter, and that whoever did
not offer assistance to an Athenian exile against any-
one who tried to force him away should be fined a talent,
-- οἰκίαν μὲν ἀνεῷχθαι πᾶσαν καὶ πόλιν ἐν Βοιωτίᾳ τοῖς
δεομένοις ᾿Αθηναίων, τὸν δὲ τῷ ἀγομένῳ φυγάδι μὴ βοηθήσαντα
᾿ δημίαν ὀφείλειν τάλαντον."
1 Hist. du dr. des gens, vol. ii. Ρ: 13 5:
* Thue. i. 126: καὶ ἀπὸ τούτου ἐναγεῖς καὶ ἀλιτήριοι τῆς θεοῦ
ἐκεῖνοί τε ἐκαλοῦντο καὶ τὸ γένος τὸ ἀπ᾽ ἐκείνων.
3 On this see more fully infra, chap. xxv.
4Plut. Lysand. 27.
Ζ
354 NEUTRALIZATION
Protection of _ ‘Those who, for any reason, fled from their country
Potion: and threw themselves on the mercy of foreign States
usually received effective protection. When Pausanias
was condemned to death by Sparta for having failed to
convey timely succour to Lysander, he found a safe
refuge near his own city, in the town of Tegea.’ :
Conventionsas Not infrequently cities entered into special con-
eyitm -Ventions with regard to the right of asylum in their
respective territories. Thus there is preserved ἃ
document embodying the note that was exchanged —
between the Ionians of Paros and the Allarians of ©
Crete on the subject of this right.” 4
Certain Sometimes, again, a number of States agreed to regard ©
practi oon, certain temples and, indeed, entire towns, as enjoying a —
permanent privilege of affording protection to fugitive g
—an early form of the practice of neutralization. A
Case of Teos. remarkable instance of this is the case of Teos, con- ~
cerning which there is extant a series of important
and interesting documents® attesting the recognition
by twenty-five States of the right of asylum there; ©
and in 193 B.c. Rome associated herself in favour of —
this provision. The town and territory of Teos hence —
remained sacred, possessed the right of sanctuary, and —
enjoyed exemption from the payment of tribute to |
Rome.*
Right of In Rome the privilege’ was not so emphatically
Rome. «recognized as it was in Greece. There appears to be
no Latin word exactly conveying the sense of inviol—
ability, no word possessing the significance of the ©
1Plut. Lysand. 30.
2 Corp. inscrip. Graec. no. 25573; J. Barbeyrac, Histoire des anciems”
traités, 2 vols, (Amsterdam, 1739), no. 338; Michel, Recueil d’inscrip.
gr. το. 47. =
8 Corp. inscrip. Graec. nos. 3045 seg.; Michel, Recueil d’inscrip. gr
nos. 51 seg.; cf. Egger, Traités publics, p. 157. ef
4 [bid. no. 3045 : ... κρίνομεν εἶναι τὴν πόλιν Kal THY χώραν ἱεράν,
καθὼς καὶ viv ἐστιν, Kal ἄσυλον καὶ ἀφορολόγητον ἀπὸ τοῦ ov
τοῦ Pwyatwv....
5 See also, on right of sanctuary in war, chap. xxv.
RIGHT OF ASYLUM IN ROME 355
Greek term aovAia. A remark of Livy’ respecting
the asylum at Delos tends to indicate that this privilege
had never really become nationalized in Rome, at least
as a regular established institution.”
In the later portion of Roman history we find com-
paratively few examples of effective refuge afforded by
altars and temples. In the more ancient epochs, tem-
pered by the salutary influences of their all-pervading
religion, the practice was undoubtedly more prevalent.
To Romulus is usually attributed the innovation of the Alleged,
right of asylum in Rome. Thus, according to the or Réaniioh
account of Dionysius, Romulus finding that many
cities in Italy were ill-governed tyrannies or oligarchies
invited fugitives from those cities to his own dominion,
provided they were freemen. THe did this, says the
historian, with a view to augmenting the power of the
Romans, on the one hand, and to diminishing that of
their neighbours, on the other ; and this design he con-
cealed under the specious pretence of doing honour to
the gods. Accordingly he consecrated the wooded place
between the Capitol and the Citadel, and made it an
asylum for all suppliants; and if they agreed to
remain with him he conferred citizenship upon them,
and promised them a portion of the lands he would
take from the enemy. To yap μεταξὺ χωρίον τοῦ τε
Καπιτωλίου καὶ τῆς ἄκρας... ἱερὸν ἀνεὶς ἄσυλον ἱκέταις ...
kat εἰ βούλοιντο Tap’ αὐτῷ μένειν, πολιτείας μετεδίδου καὶ
γῆς μοῖραν, ἣν κτήσαιτο πολεμίους ἀφελόμενος ὃ
No divinity relative to this alleged consecration
appears to be mentioned by any of the ancient writers.
It has been conjectured that it was the temple of Veiovis,
a deity whose worship was of an expiatory nature,
and whose sanctuary was in the vicinity of the sacred
ASxxv. 51.
2Cf. G. F. Schoemann, Opuscula academica, vol. i. pp. 19 5€9.3
Jaenisch, De Graec. asylis, pp. 6 seg. (References given by E. Caillemer,
in Daremberg-Saglio, Dict. des Antig. s.v. Asylia.)
8 Dion. Hal. ii. 15 ; cf. Liv. i. 8; Strabo, v. 3. 2; Plut. Romul. 9;
Dion Cassius, xlvii. 19.
In later Roman
history.
Flags of the
legions,
356 RIGHT OF ASYLUM IN ROME
wood.’ But, as Caillemer points out,? the statement
of Dion Cassius® is rather inconsistent with this view.
One is not justified, however, in going to the length of
entirely discarding the story of the asylum established —
by Romulus, as Caillemer does,* simply because the
name of the tutelary divinity has not been handed down, ~
and the exact character of the religious ceremonial not
indicated. Even if the story is not true in all its
particulars, there are no clear grounds to warrant a
denial of its entire substance. Nor can we reject the -
passage in which Dionysius speaks of the temple of |
Diana on the Aventine as a ‘sacred asylum,’ ἱερὸν ἄσυλον ©
There are no conclusive reasons for inferring that the —
temple was merely a venerated and respected sanctuary, —
“‘un sanctuaire vénéré et respecté.”’® There is un-~
doubtedly some foundation for the account in the one
case, and for the historian’s designation in the other. —
Mention has already been made of Rome’s respect for —
the inviolable nature of the sanctuary at Teos. 8
In the later periods of Roman history also we find
a certain measure of refuge accorded to suppliants, in —
spite of the fact that the right of asylum had not
materialized itself into a fixed institution. Thus the
flags of the legions, and the Roman eagle afforded
shelter to those seeking protection.’ ‘Tacitus tells how
Munatius Plancus was compélled to take refuge in the —
camp of the first legion, how he embraced the colours
there and laid hold of the eagles, thinking himself pro-
tected by the gods of the army.* Another writer speaks
ee ee
1Cf. J. A. Hartung, Die Religion der Romer (Erlangen, 1836) ,
vol. ii. p. 57. Ε
2 In Daremberg-Saglio, Dict. des Antig. s.v. Asylia, vol. 1. p. 510...
3 xlvii. 19. 4 Loc. cit. 5 iv. 26. τ΄.
6 Caillemer, ἐδίά, p. 510.
7Cf. Simon, Des asyles, doc. cit. p. 403; Helfrecht, Histor. Abh.
den Asyl, p. 5. ἡ
8 Annal. i. 39: . neque aliud Munatio Planco periclitanti sub-
sidium, quam castra primae legionis ; illic signa et aquilam amplex
religione sese tutabatur.”
RIGHT OF ASYLUM IN ROME 357
of offenders of various kinds flying to the military
standards,—‘‘qui fraudum conscius et noxarum ad
militaria signa confugit.”! Similarly, the statues of Statues of the
the emperors gave protection. Tacitus, writing of the “"PT™
beginning of the first century a.p., says that a licentious
spirit of defamation then prevailed at Rome ; members Abuse of the
of the best society were attacked by the vile and profligate, τς
even freedmen and slaves committed offences against
their patrons and masters, and, adds the historian de-
ploringly, the statues of the Caesars being a sanctuary
sheltered criminals of the worst description. Caius
Cestius, a senator, insisted that princes, no doubt, re-
presented the gods, but the gods lent a favourable ear
only to the just ; and that neither the Capitol nor the
temples should be places of refuge where guilt might
find a shelter and even encouragement. He argued that
if a woman like Annia Rufilla, recently convicted of
flagrant fraud, could with impunity insult and threaten
him within the very portals of the senate, and then
find a valid protection in the Emperor’s statue, so as to
prevent his obtaining due redress, then all good order
was at an end, and the laws were no better than a dead
letter.” So that, it appears, even in the most unworthy
cases shelter was not infrequently procured. (Of course
the object here is not necessarily to defend the practice,
but merely to show its existence.)
Again, in certain cases, to meet by chance with a Chance
vestal virgin was to some extent a protection. Thus, vaste! fae
Plutarch says that when vestal virgins walked abroad
they were escorted by lictors bearing the fasces, and
that if they happened to meet any criminal who was
1 Amm. Marcell. xxv. 10. 7.
2'Tacit. Ann. iii. 36: “...Principes quidem instar deorum esse :
sed neque a dis nisi iustas supplicium preces audiri, neque quemquam
in Capitolium aliave urbis templa perfugere, ut eo subsidio ad flagitia
utatur. abolitas leges et funditas versas, ubi in foro, in limine curiae
ab Annia Rufilla, quam fraudis sub iudice damnavisset, probra sibi et
minae intehdantur, neque ipse audeat ius experiri ob effigiem im-
᾿ς peratoris oppositam.”
358 THE PRACTICE OF EXTRADITION
being conducted to his execution he was not put to
death; but in that case the vestal was obliged to take
an oath that she met him accidentally, and not on
House ofa purpose.’ Likewise the house of a flamen Dialis (priest
᾿ of Jupiter) was regarded as furnishing a safe refuge.”
Conception of With the Romans, as with the Greeks and other :
vengeance for @Mcient peoples, there was a prevailing belief that viola-
infringements tions of asylum would surely call down on the offender
privilege. the retribution of the gods. To this cause, for example,
was attributed the tragic end of the censor Fulvius —
Flaccus, and also the end of Sulla. And, as the
Greeks provided penalties for ἑεροσυλία (or fepoovAyots) —
Punishment by by their municipal law, so the Romans fixed a punish- —
ἘΝ ment for sacrilegium. At first it was ‘aquae et ignis
interdictio,’ (deprivation from water and fire), operating —
originally as voluntary exile, and later assuming the —
form of ‘ deportatio in insulam,’ (perpetual banishment, ~
transportation), which also involved the confiscation of —
the offender’s goods and loss of citizenship. Subse- —
quently the punishment was generally ‘damnatio δὰ
bestias,’ (exposure to wild beasts), and even ‘ vivi-—
comburium,’ (burning alive), and ‘furca,’ (scourging —
followed by crucifixion). ;
πὰ, ὅς... ἕω, ™“
The practiceof There were from time to time, in all the countries —
“tradition. —_ of antiquity, many abuses in the institution of asylum, —
whether in reference to their own respective citizens, —
or with regard to alien fugitives coming for protection.
Abuses of right SO that modifications were perforce gradually introduced
ofasylum. both in the municipal law of each country in order to”
mitigate the abusive practices of such as were under its”
jurisdiction, and in the law of nations in order to
1Plut. Numa, 10: ...Kdv ἀγομένῳ τινὶ πρὸς θάνατον αὐτομάτως
συντύχωσιν, οὐκ ἀναιρεῖται" δεῖ δὲ ἀπομόσαι τὴν παρθένον ἀκούσιον ο
καὶ Tvxaiav καὶ οὐκ ἐξεπίτηδες γεγονέναι τὴν ἀπάντησιν. 4
2 Aul. Gell. x. 15. 3
3Cf. W. Rein, Criminalrecht der Rimer (Leipzig, 1844), Ρ. 6945
and see especially T. Mommsen, Das romische Strafrecht (Leipzig, 1899).
THE PRACTICE OF EXTRADITION — 359
restrict the admission of foreign criminals, runaway
slaves, and others, and to provide for their delivery to
the injured State.
There is a remarkable treaty on the subject, pre- Ancient
served in a document of the fourteenth century before ;,2F"*",,
the Christian era, and contemporary with the age of «tradition.
Moses, between Rameses II. (usually identified with
the Pharaoh of the oppression) and the Prince of Cheta.
In this treaty the principle of extradition is expressly
recognized. Each sovereign bound himself, in the
first place, not to receive emigrants from the country
of the other, and to send back fugitives, and, in the
second place, to treat with clemency such as were thus
extradited. These provisions show a revolutionary
innovation in respect of the old doctrine which had
inculcated the widespread belief that it was an act of
gross impiety, subject to the inevitable punishment of
the gods, to deliver up a fugitive criminal.
In China, in a treaty between the Prince of Cheng chinese
and certain allied invading princes we find an explicit ""'
provision for the extradition of fugitives from justice.?
In the time of Cyrus, it appears, the lawfulness of Doubts as to
extradition was still doubtful. Pactyas, the Lydian, ἡ ΚΞ ον.
having instigated his countrymen to revolt against
Cyrus, fled to Cyme; whereupon Mazares, the king’s
lieutenant, demanded his surrender. The Cymaeans
therefore despatched a messenger to Branchidae to
obtain the advice of the god, who answered that extra-
dition was allowable, though he afterwards changed his
mind and reproached them for asking whether such
an act of impiety was admissible. Pactyas was then
sent to Mitylene, and afterwards was conveyed to
Chios, whose inhabitants at last surrendered him and
received the proffered reward. The Chians, however,
1See P. Foucart, in Daremberg-Saglio, Dict. des Antiq. s.v. Asylia ;
and Egger, Traités publics, pp. 243 5¢9.
2Cf. Art. IV. of the outline of a Chinese treaty given by Martin
{in Inter. Review, New York, vol. xiv. (1883) p. 72).
360 THE PRACTICE OF EXTRADITION
realized the wrongfulness of their conduct, and duly
expiated it.
State interest Later, political considerations generally, and State
trevailed over interest more particularly outweighed religious scruples
poe and the force of traditional custom. The danger so
forcibly pointed out by the Roman senator, Caius
Cestius, in regard to the indiscriminate extension of
asylum to all classes of criminals, was by no means —
confined to Roman municipal life. The practice of —
extradition was therefore indispensable, and came to be —
In what cases Exercised in two ways. In the first place, a State was ©
the demand’ enabled to demand the extradition of its own fugitive —
made. subjects for the commission of certain offences within ©
its own territory; secondly, it could demand the
surrender of the subjects of another State for having —
committed a crime whilst residing in the complainant's —
country, or for having wronged the complaining State's”
subjects when resident in the territory of the accused.
For offence Extradition was always demanded for offences against
Deces tae majesty of a State, such as instigating insurrection, -
seniors or against individuals performing public functions. [π΄
189 B.c. Philopoemen, in command of the Achaeans, —
encamped in the territory of the Lacedaemonians, and ~
thence despatched ambassadors to Lacedaemon to insist
on the surrender of the authors of the insurrection,
promising that if they complied, their State would
remain in peace, and that the surrendered individuals
would not suffer any punishment without having
obtained an opportunity of pleading their cause.1 Some
five or six years later Philopoemen led an expedition
against the Messenians for having revolted, under the”
leadership of Dinocrates, from the league. Philo-~
poemen was captured and conveyed to Messene where,
after a mock trial, he was compelled to drink hemlock. ~
The actors of this piece of cruelty, as Livy says, did”
1Liv. xxxvili. 33: “... legatos deinde misit ad deposcendos |
auctores defectionis, et civitatem in pace futuram, si id fecisset,
pollicentis, et illos nihil indicta causa passuros.” ᾿
FUGITIVE HOMICIDES AND SLAVES 361
not long rejoice at his death; for Messene having been
‘conquered surrendered the guilty individuals on the
demand of the Achaeans.'
If both surrender of the criminal and his due indict- If surrender
‘ment were refused, then, in some cases, the retributive cad etek
measure of androlepsia (ἀνδροληψία)" was sanctioned by Permitted.
the law of Greece; but when the circumstances were
of a very serious nature, such refusal might be the
ground for a justifiable declaration of war.
For a long time a certain indulgence was shown to Fugitive
fugitive homicides, and to others guilty of offences 4%
which were more of a private than of a public character.
Frequently their extradition was not even demanded;
and occasionally the country to which they fled and
whose protection they invoked took special precautions
to ensure their safety. Fugitive homicides who came
to ask for protection, said Lycurgus, are not regarded
as enemies,—oé μὲν yap φόνον φεύγοντες εἰς ἑτέραν πόλιν
μεταστάντες οὐκ ἔχουσιν ἐχθροὺς τοὺς ὑποδεξαμένους... ὃ
Thus, in the Greek States extradition was more usual
in the case of political offences than in the case of
private felonies.
With regard to runaway slaves the practice was Runaway
generally adopted of restoring them to their masters on **’*
the receipt of. a certain specified sum of money. Ona
marble tablet found on the Acropolis (1846) there is
preserved an interesting inscription which presents a
portion of an Athenian decree conferring certain
honours on a Chian who, at his own expense, had
sent back to Athens some fugitive slaves.‘
Τὴν, xxxix. 50: “non diuturnum mortis eius gaudium auctor-
ibus crudelitatis fuit. Victa namque Messene bello exposcentibus
Achaeis dedidit noxios....”
2 See infra, chap. xxvii. init. 8 Demosth. ¢. Aristocr. 137.
*Rangabé, Antig, hellén. no. 472:
iets aireveue. τὼς σου éxdot(ov...
ἀναζητήσας...) τῶν ἀποδράντων....
4 > Xi > UA λ “~ / ey e > ἰδί
σωμάτ)ων ἐν ίῳ, ἀπέστειλεν τῷ κυρίῳ, (πλοῖον ἐξ ἰδίων ναυ-
λωσ)άμενος εἰς ταῦτα. : :
International
deditio in
Rome.
Relation to
the civil
noxae datio,
362 THE ROMAN DEDITIO
The international deditio of the Romans bears a
striking analogy to the noxae datio of their private law.
Gaius, treating of noxal actions (‘noxales actiones’) in
his fourth book, says that they were introduced partly
by law, and partly by the praetorian edict,—thus, for
theft, by the law of the Twelve Tables ; for damage to
property, by the /ex dquilia; for outrage and rapine,
by the edict.t For a delict, such as theft or outrage
committed by a son or by a slave, a noxal action lay
against the father or master, who might either pay the
damages assessed or deliver up the offender. For it is
not just, argues Gaius, that the misconduct of a son or
of a slave should render the father or the master liable
to a greater loss than that of his body.? Similarly the
Twelve Tables provided that compensation could be
made for damage (pauperies) caused by an animal by
means of the same process of ‘ noxae deditio.”* A further
application of this principle in Roman private law was
in the provision relating to anticipated damage (‘damni
infecti’), by which the owner of a dilapidated house
could exonerate himself from damage that might be
caused thereby to his neighbour’s property by sur-
rendering the house. The practice of the ‘noxae
datio” was scarcely due entirely to religious concep:
tions, as several writers have suggested. No doubt,
as Mommsen observes, the obligation imposed by
the conscience of an honourable man had some
intrinsic validity. ‘Der Satz, wenigstens wie wif
ihn kennen, kann leichter auf die Gewissenhaftigkeil
1Gaius, Inst. iv. 76: “Constitutae sunt autem noxales actione:
aut legibus aut edicto praetoris ; legibus, velut furti lege XII. tabu-
larum, damni iniuriae lege Aquilia ; edicto praetoris, velut iniuriarum
et vi bonorum raptorum.”
2 [bid. iv. 75 : “Ex maleficiis filiorum familias servorumque, velutt
si furtum fecerint aut iniuriam commiserint, noxales actiones prodita
sunt, uti liceret patri dominove aut litis aestimationem sufferre aut
noxae dedere. erat enim iniquum nequitiam eorum ultra ipsorum
corpora parentibus dominisve damnosam esse.” a
8 Just. Just. iV. Qe
THE ROMAN DEDITIO 363
des rechtschaffenen Mannes als auf religiose Motive
zuruckgefuhrt werden.” ?
And so in international relationships it was univer- Delivery of
sally conceived in antiquity, especially in the earlier camination te
ages, that the delivery of an offender to the offended ‘he State.
State operated ipso facto as an exculpation on the part of
the State, of which the guilty individual was a subject.
For the presence of a tainted individual, as well as of
tainted property, was thought to pollute the whole
country, and consequently to bring down upon it the
anger of the gods. Deditio possessed, on the one
hand, the character of a religious atonement, of a
purification to appease the offended gods, “ad placandos
deos,” and, on the other hand, that of a civil exculpa-
tion to ensure the avoidance of war. Thus, Caius
Pontius, the commander of the Samnites, referred to
both aspects of the question in his reply to the Romans,
when his country’s ambassadors despatched to Rome to
make restitution returned without having succeeded in
concluding a peace: ‘“‘ Whatever degree of anger the
deities of heaven have conceived against us on account
of the infraction of the treaty has been hereby expiated.
I am confident that whatever deities they were whose
will it was that we should be reduced to the necessity
of making the restitution, which had been demanded
according to the treaty, it was not agreeable to them
that our atonement for its breach should be so haughtily
spurned by the Romans, For what more could possibly
be done to appease the gods and soften the anger of
men than we have done?”* He goes on to say that
the spoils were restored, although they became their
own by the right of war, that the authors of the war
1 Rom. Staatsr. vol. i. pt. i. p. 254, n. 1.
- 2Liv. ix. 1: “Expiatum est, quidquid ex foedere rupto irarum in
nos caelestium fuit. satis scio, quibuscunque diis cordi fuit subigi
nos ad necessitatem dedendi res, quae ab nobis ex foedere repetitae
fuerunt, is non fuisse cordi tam superbe ab Romanis foederis expia-
tionem spretam. quid enim ultra fieri ad placandos deos mitigandos-
que homines quam quod nos fecimus ?”
364 PROCEDURE IN DEDITIO
were delivered up though dead, and their goods
surrendered to the Romans, in order that no trace of
contagion might remain in their country,—ne quid
ex contagione noxae remaneret apud nos.”
Italic It was an old tradition of the Italic peoples that an
antitniors. Offender against an ally should be tried in the country
and by the tribunals of the latter; and institutions
analogous to the Roman ‘ deditio’ also existed amongst
them.’ The procedure was in earlier times, even in
Rome, applicable to offenders against foreign private
individuals, as well as to offenders against States in
their sovereign capacity. |
Procedure in If the aggrieved party was a Roman subject, he made
If injured party 22 application to the praetor who charged the recu-
aRoman. ~ perators to conduct a preliminary examination of the
ΟΝ κακὰ συλ νας complaint. Should an adequate ground therefore be
discovered, a demand for extradition was made to the
foreign government. If the delinquent was delivered
up, the case was then submitted once more to the
iudicium recuperatorium. If he was not given up, the
relationships between the States concerned were trans-
formed from a private to a public character.2 The
question then was not merely a violation of a priva
right committed by a foreign private individual against
a private subject of another community, but, partly by
virtue of the religious doctrine of contagion, partly
through the juridical recognition of State responsibility,
it became an infraction of a public right committed
against Rome by the foreign State itself. In a case of
Intervention of this kind fetials were despatched, in the name of the
the fettals. Roman senate and the Roman people, to the foreign
sovereign to demand satisfaction, ‘res repetere,’ or, i
adequate reparation were refused, to declare war.’ |
If injured On the other hand, if the injured party was a foreign
party an alien
subject.
1 Liv. i. 24, 323 Vill. 393 ix. 1; Dion. Hal. ii. 72. : Ἶ
2G. Fusinato, Le droit international de la république romaine (im
Rev. de dr. int. et de lég. comp. vol, xvii. (1885), pp. 290 seq.). 4
8 These proceedings are considered infra, chap. xxvi. on the fetials.
PROCEDURE IN DEDITIO 365
γι he laid his complaint before his own tribunals,
and an inquiry was likewise held to determine whether
there was sufficient ground for his reported grievance.
If sufficient cause appeared, the foreign government sent
envoys to Rome (these envoys being usually described
by Livy? as ‘ oratores’) to demand the surrender of the Foreign
culprit. They were presented, as a rule, by the consul femand
to the senate (as has already been shown in the case of Sutender.
ordinary embassies of a purely diplomatic character) ;
and there they submitted the complaint and the grounds
thereof as alleged by their injured countryman. The
‘usual practice was then to refer the question to the
college of fetials for final decision; unless it was of a Examination
complicated nature and presented much difficulty, or Ὁ “"*
it involved wide issues, when a special commission of
Roman citizens was charged to investigate thoroughly
the affair, and facilitate the functions of the tick
magistrates.” Dionysius briefly states the law on the
subject in the following terms (but it may be pointed
out that in practice the extent of its application was
wider than his statement appears to indicate) : If any
State in alliance with the Romans complain of having
been injured by them and demand justice, the fetials are
to inquire whether they have suffered anything in viola-
tion of their alliance, and if they find their complaints
well grounded, they are to seize the guilty and deliver
them up to the sufferers.* When the extradited Roman
1Cf. i. 38,—after the defeat of the Sabines by Tarquin, 616 B.c.,
when it was, however, rather a case of the ordinary surrender of an
entire territory and people: “estisne vos legati oratoresque missi a
populo Conlatino, ut vos populumque Conlatinum dederetis ?”
ii. 13,—where Porsena sent ambassadors to Rome to demand the
return of the escaped hostage Claelia: “... oratores Romam misit
ad Cloeliam obsidem deposcendam.”
ii. 32,—-where Menenius Agrippa is designated an ‘ orator.’—Cf.
Liv. i. 15; Virg. den. xi. 3313 and see supra, pp. 305, 327, 328.
2 Liv. iv. 30.
$Dion. Hal. ii. 72: ἐὰν δόξωσι τὰ προσήκοντ᾽ ἐγκαλεῖν, τοὺς
ἐνόχους ταῖς αἰτίαις συλλαβόντας ἐκδότους τοῖς ἀδικηθεῖσι παραδι-
᾿ δόναι.
Decline of the
institution in
case of private
crimes,
Usually
retained for
offences of a
public
character.
366 DECLINE OF EXTRADITION
subject reached the foreign country, he was there tried
by an extraordinary tribunal (usually provided for by a
treaty between the States in question), which was de-
scribed by the Romans as ‘iudicium recuperatorium ἢ
by analogy with their own institution established for a
like purpose.
In course of time, with the extension of international
intercourse and the regularizing of interstatal relation-
ships, together with the consequent diminution of
mutual distrust, various States began to claim—
especially so on the occasion of their entering into
treaties—competence for their own respective tribunals
to try the complaints of foreigners against their own!
subjects. Besides, the multiplication of cases arising
out of the enlarged commercial activity of States, and—
what was of frequent occurrence—the great distance
between plaintiff and defendant, made it impossible for
the fetials or the foreign envoys, as the case may be, to
cope with the work. So that the system of an inter-
national jurisdiction, as it may in a sense be designated,
gradually fell into desuetude.! ;
Extradition did not, of course, entirely disappear. It
continued for offences mainly, if not exclusively, of a
public character,—offences which were regarded as
crimes against the majesty of the State itself. There
were certain differences between extradition for offences
against the State, and extradition for offences against
private individuals. An offence against the State
usually amounted to an infringement of the law of
nations; an offence against private individuals usually
resolved itself into a contravention of foreign muni-
1C. Sell, Die Recuperatio der Rimer, p. 154: “ Denn die jedes-
malige Sendung der Fetialen war, als die Rémer immer mehr mit den
verschiedensten Vélkern in Beriihrung kamen, und also auch die™
wechselseitig veriibten Verbrechen haufiger wurden, zu weitlaufig.
Uberdies war aber auch der Grund im Laufe der Zeit weggefallen,
der jener Verfahrungsart das Dasein gegeben, und die Méglichkeit
verschwunden, den fritheren Gang der Procedur fortwahrend beizu-
behalten.” δ;
chee tate
CASES INVOLVING EXTRADITION 367
_ cipal law. Extradition in the first case was preceded
“by a preliminary coguitio extraordinaria, (extraordinary Cognitio extra-
judicial inquiry), and then by a regular trial cul-”“”"*"*
/Minating in a precise sentence accompanied by a
᾿ ϑαμρῇ of the grounds therefor. Extradition in the
_ second case presupposed an already established treaty
between the countries involved, stipulating the mutual
-fesort to the procedure, and furnishing a juridical
ipeceon for it. Again, extradition for offences against
"private individuals was effected ‘ad iudicandum’; but
_for a breach of the law of nations, it was effected ‘ad
“puniendum,—in which case the State to which the
offender was delivered could fix the penalty, just as
‘(in the comparison aptly made by Fusinato') the
‘receptor noxae’ (the injured person to whom the
‘offending individual was surrendered) of private law
‘acquired over the ‘deditus’ an unlimited ‘ potestas
‘statuendi’ (power to determine his fate).
The commonest cases which involved offences against Cases
ithe law of nations, and in which extradition was allowed yng,
-by Rome, and reciprocally by other States, may now be
‘briefly referred to. In the first place may be mentioned Offences
‘violation of the sacred and inviolable character of oS) essadors.
‘ambassadors, and secondly, breach by the ambassadors
\themselves of their obligation to observe neutrality and Breach of
jnot take up arms. These two cases have already been ora teas, |
considered.”
Thirdly, extradition was resorted to in the case of Conspirators,
. x ° Ξ . ῸΥ instigators
‘conspirators or instigators of war or rebellion, even if of war.
ithe offending individuals were subjects of the State
ieffecting their surrender. Thus, the Caeritians delivered
1(351 B.c.) to Rome the Tarquinians, as the instigators
sof their revolt. The Caeritians pleaded that the Tar-
iquinians passing through their territory with a hostile
‘army, after they had asked for nothing but a passage,
iforced some of their peasants to accompany them in
itheir depredation ; and that they were therefore prepared
1 Loc. cit. 2See supra, pp. 335 5€7-, 341 seg.
Incursions in
absence of
regular war.
Violation of
treaty. .
368 CASES INVOLVING EXTRADITION
either to deliver them up, or inflict due punishment on
them,—“ eos seu dedi placeat, dedere se paratos esse,
seu supplicio adfici, daturos poenas.”1 In 329 B.c. the
Fundanians surrendered to Rome three hundred and
fifty conspirators,—though the senate refused to accept
such submission, as they thought the people of Fundi
wished to go unpunished by sacrificing needy and
humble persons.?. In 314 B.c. Sora delivered up to
Rome two hundred and twenty-five men. pointed out
as the authors of a revolt, and also as being responsible
for the massacre of Romine colonists,—“ infanda
colonorum caedis et defectionis auctores.”* They “ὩΣ
brought to Rome, scourged with rods in the forum,
then beheaded. In 205 B.c. Mandonius and other
Spanish chiefs were given up to Rome for having
fomented the war.* Again, in 198 B.c. the Boeotians
delivered up to Rome certain individuals who were
guilty of massacres of Roman citizens, as they had been
unable to commence open war.*® And, again, a fel
years later (193 B.c.) the Aetolians surrendered to the
Romans certain of their number for having instigated
the inhabitants of Naupactum to defection. ὅ .
Deditio was also granted for incursions into the
territory of States, in the absence of regular war.
Thus, according to the account of Dionysius, am-
bassadove from the injured Laurentes came to Rome
to demand justice, τὰ δίκαια ἀπαιτεῖν, for an attack on
their territories by some friends of Tatius; ant
Romulus was of opinion that the offenders ough
to be delivered up to the sufferers. ᾿Αφικομένης ὃ
πρεσβείας παρὰ τῶν ἠδικημένων καὶ τὰ δίκαι᾽ ἀπαιτούο 18
ὁ μὲν “Ῥωμύλος ἐδικαίωσε παραδοῦναι τοὺς δράσαντας ι
ἀδικηθεῖσιν ἀπάγειν. ἴ
Further, violation by a citizen of any provision in
treaty rendered him liable to surrender to the offendec
1 Liv. vil. 20. 2 Liv. vill. 19 $ Vill. 39. 8 Liv. 1x, 24008
4Liv. xxix. 3. 5 Liv. xxxiil. 29. , 6 Liv, xxxvi.
7 Dion, Hal, 11. 51.
as
BERT EE G SECT a BOR. τ SUR Ne τὰ OF Ok etc SR LER Lc Ee ae
- oink 5 he oe
----
pay eA OCR IG 1... δὲ δ δὼ
and equity,—‘‘quaque res per
SURRENDER OF SPONSORES 369
| eect apart from his having committed an act
or which, in any case, deditio could be lawfully
demanded.
Sometimes, also, at the conclusion of a war, in which At conclusion
the defeated side had been the first to commence 2 yah
hostilities, those who had been responsible for the responsible for
war were ordered to be delivered up to the victors. sometimes
Thus, after the defeat of the Samnites (330 B.c.) Sinquson”
Brutulus Papius was mentioned as the principal author
of the war. The praetors having taken the opinion
of the assembly, a decree was passed to the effect
that he should be surrendered to the Romans,
««_..decretum fecerunt, ut Brutulus Papius Romanis
dederetur,” and along with him all the spoil and
prisoners taken from the Romans, and that the resti-
tution demanded by the fetials, conformably to the
treaty, should be made, as was apeeeie to justice
etiales ex foedere
repetitae essent, secundum ius fasque restituerentur.”
Thereupon, the Samnite heralds were despatched to
Rome with the dead body of Brutulus, who had in the
meantime taken his life to avoid ignominious punish-
- ment.”
Again, when a Roman general concluded with the Sponsors
: - - surrendered, if
enemy a sponsio, the terms of which were subsequently ssonsio not
repudiated by Rome as being detrimental to State ™tfe¢.
interest or inconsistent with any aspect of public
policy, the Romans surrendered him and his ‘con-
sponsores,’ his colleagues in the engagement, to the
- enemy, as a compensation for their refusal to ratify
the sponsio in question.* This international procedure
obviously bears some analogy to that of the xoxae
datio of the Roman municipal law. From the strictly
legal point of view the Romans held that such a
_ Sponsio in no way bound them as a whole nation, but
that it merely gave the other State a personal action
1 Liv. vili. 39. 2 Liv. viii. 39.
8 Liv. ix. 8, 9, 10; Plut. Tid. Gracch. 7; Οἷς, De off iil. 303
᾿ς De orat. i. 40 ; 11. 32.
2A
Striking
example in the
case of the
Caudine peace.
370 SURRENDER OF SPONSORES
(‘ex contractu’) against the sponsor ;—‘“ sponsio.. -
neminem praeter sponsorem obligat.’’* Rubino? is of
the opinion that the practice of annulling such spon-
stones Was not introduced into Rome until the time
of the Republic. No doubt it was then more
frequently practised; but the legal point of view
adopted by the Romans in their annulment of un-
desirable sponsiones was by no means peculiar to their
Republican constitution, nor inconsistent with pre- —
Republican jurisprudence. Deditio was granted in —
this case partly to satisfy the other party to the spomsio, —
and partly to appease the gods, “δά placandos deos ut —
populus religione solvatur’’; otherwise the contagion ~
of the sponsor who had thus become, through his ©
government's refusal to confirm his act, a periurus, an —
exsecratus, would, it was thought, taint the entire com-_
munity amongst which he remained. Due expiation —
must be made for an impious deed,—“ facinus impium ~
propter quod expiatio debetur.” | Ξ
A striking instance of this kind of surrender was that —
arising out of the Caudine peace. In the war between
Rome and Samnium for the conquest of central Italy,
the great mass of the Roman army was on one occasion ~
enticed into a defile at Caudium—the ‘furcae Cau- —
dinae ’,—and along with its two consuls, Postumius and —
Veturius, four legates, two quaestors, and twelve tribunes —
of the legions was compelled to pass under the yoke.
Six hundred knights were retained as hostages for the ~
resulting peace which the consuls concluded in the
name of their city (321 B.c.). The senate and the
people at once repudiated this sponsio, on the ground
that it had been entered into without their authority,—
“iniussu enim populi senatusque fecerant.”® ‘ When
the customary decrees of the senate were passed,” says”
ee ee te
1 Liv. ix. 9. |
27. Rubino, Untersuchungen iiber rimische Verfassung und Geschichte P
(Cassel, 1839), pp. 264 seg. :
8Cic. De off. ili. 30.
SURRENDER OF SPONSORES 371
Livy in his vivid account of the matter, “the considera-
tion of the Caudine peace was moved ; and Publilius,
who was in possession of the fasces, said: ‘ Spurius
_Postumius, speak.’ He arose with just the same
countenance with which he had passed under. the yoke,
and spoke in this wise: ‘Consuls I know full well that
I have been called upon first not as an honour to me,
but as a mark of ignominy ; and that I am ordered to
speak, not as a senator, but as an individual responsible
for an unsuccessful war as well as for a disgraceful peace.
However, since the question under consideration is not
that of our guilt, but of our punishment, I waive all
defence, which would not be very difficult to advance
before men who are not unacquainted with human
casualties or necessities, and shall merely state in brief
terms my opinion on the matter in question. And this
opinion will show whether I meant to spare myself or
your legions, when I engaged as surety to the con-
vention, whether it was dishonourable or necessary.
Now I hold that the Roman people are not bound
_ by it, inasmuch as it was concluded without their order ;
and that nothing is thereby liable to be forfeited to
the Samnites, except our persons. Let us therefore
_ be surrendered to them by the heralds, naked and in
chains. Let us thus liberate the people from any
religious obligation we may have been the cause of
_ imposing on them ; so that there may be no hindrance
_ to your re-entering on the war without violating either
religion or justice.’’’* Accordingly, Postumius and the
1 Liv. ix. 8: “Quo creati sunt die, eo (sic enim placuerat patribus)
magistratum inierunt, solemnibusque senatus consultis perfectis, de
ΟΠ pace Caudina rettulerunt; et Publilius, penes quem fasces erant,
“Dic, Sp. Postumi,’ inguit. Qui ubi surrexit, i, παρὰ illo vultu, quo
- sub iugum missus erat, ‘Haud sum ignarus’ inquit ‘consules, ignominiae,
- non honoris causa me primum excitatum iussumque dicere, non
tanquam senatorem, sed tanquam reum qua infelicis belli, qua
ignominiosae pacis. Ego tamen, quando neque de noxa nostra
neque de poena rettulistis, omissa defensione, quae non difficillima
esset apud haud ignaros fortunarum humanarum necessitatiumque,
~ sententiam de eo, de quo rettulistis, paucis peragam ; quae sententia
The case of
the sfonsio
Numaniina.
372 SURRENDER OF SPONSORES
other sureties at once resigned their offices and were
delivered to the fetials, whose duty it was to conduct
them to Caudium. On reaching the gate the victims
were stripped of their clothes, and their hands were tied
behind their backs. In the assembly of the Samnites
one of the fetials, viz. the pater patratus, formally
surrendered them, in pronouncing these words: “ Inas-
much as these men became sureties for a treaty, without
the sanction of the Roman people, and thus rendered
themselves criminally liable, I hereby surrender them —
into your hands, in order that the Roman people —
may thereby be absolved from the impious offence” —
(“ Quandoque hisce homines iniussu populi Romani —
Quiritium foedus ictum iri spoponderunt, atque ob —
eam rem noxam nocuerunt, ob eam rem, quo populus —
Romanus scelere impio sit solutus, hosce homines vobis —
dedo 5. Ἷ
A similar example was the surrender by the fetials, —
through the pater patratus, of C. Hostilius Mancinus ~
as a result of the rejection by Rome of the sponsio
Numantina? (137 8.c.), which the Romans likewise held —
to have been concluded without the due authority of
the senate,—“‘sine senatus auctoritate foedus fecerat.” ?
But, as the Samnites had done, the Numantians sent —
back the surrendered sponsor, on the ground that ἃ
public violation of faith ought not to be expiated by the ~
blood of a single individual. On his return to Rome, ~
testis erit, mihine an legionibus vestris pepercerim, quum me seu
turpi seu necessaria sponsione obstrinxi; qua tamen, quando iniussu —
populi facta est, non tenetur populus Romanus, nec quicquam ex €a
praeterquam corpora nostra debentur Samnitibus. Dedamur per
fetiales nudi vinctique ; exsolvamus religione populum, si qua obli-—
gavimus, ne quid divini humanive obstet, quo minus iustum piumque ©
de integro ineatur bellum.’ ”
1 Liv. ix, 10. ‘
2Cic. De orat. i. 403; ii. 32 3 Pro Caec. 34; cf. Cic. De off iii. 30.
3Cic, De off iii. 30. a
4 Velleius, ii. 1: “... illum recipere se negaverunt, sicut quon-
dam Caudini fecerunt, dicentes, publicam violationem fidei non debere”
unius lui sanguine.” :
SURRENDER OF SPONSORES 373
however, he was deprived of Roman citizenship, as the
principle of postliminium could not operate in the case
_ of those who had been surrendered by the fetials.1_ But
_ subsequently a special law was passed to restore him to
his former civic rights.?
Owing to the annulment of the sponsio concluded
i with Corsica (236 B.c.) by M. Claudius, the legate of
Varus the consul,—the non-ratification in this case
having been attributed to the fact that he was not the
commander but that he had acted only on his own re-
sponsibility, ὡς αὐτοκράτωρ, as it has been expressed®’—
the sponsor was delivered by the fetials to the enemy;
but his surrender, too, was not accepted. On his
return to Rome he suffered the penalty of proscription,
according to some authorities, that of death, according
to others.
In the case of the rejection of the two sponsiones
entered into with Jugurtha (111 and 110 B.c.) by the
consul L. Calpurnius and the legate A. Postumius,
there was no deditio at all. The Romans, in justifi-
cation of their conduct, alleged in the first place—
though more particularly with regard to the non-
ratification of the second spomsio—that no conven-
tion could bind the people without their authority,°
and, secondly, that—in the opinion of some writers °—
Jugurtha was considered outside the law of nations ;
or that—in the opinion of others’—Rome did not
1 Οἷς, De orat. i. 40 : “ Memoria proditum est quem pater patratus
dedidisset ei nullum esse postliminium.”
2 Dig. 1. 7 (de legationib.), 17: “... lex postea lata est ut esset
civis Romanus.” —Cf. Dig, xlix. 15 (de captiv.), 4.
8 Zonaras, viii. 18. 4Val. Max. vi. 3. 3.
ὅ 8411. Jug. 39: “‘. . . suo atque populi iniussu nullum potuisse
foedus fieri.”
SE.g. Nissen, Der caudinische Friede (in Rheinisches Museum fir
Philologie, 1870, vol. xxv. p. 49).
7E.g. Rubino, Untersuchungen ..., ut sup., p. 287, note 2: “Eine
Auslieferung trat in diesen zwei Fallen wahrscheinlich deshalb nicht ein,
weil man gegen den selbst bundbriichigen Jugurtha keine religidsen
τς Riicksichten zu beobachten hatte.”
The sponsio
entered into
with Corsica.
The spfonsiones
with Jugurtha.
374 SURRENDER OF SPONSORES
deem herself bound to him by the tie of religio, as
he had himself broken the alliance. Mommsen urges,
however,—and this appears to be the better opinion—
that Rome refused to grant a surrender of the sponsors
not because Jugurtha was regarded as outside the law of -
nations, but because it was held that from a juridical —
point of view the sponsio could be nullified without
deditio being a necessary consequence of such action ;
and that, as for the question of re/igio, the Romans
at that epoch did not trouble themselves too much
about it.?
1 Rim. Staatsr. vol. i. pt. i. note 2: “In den Jahre 643 und 644 un-
terblieb sie ebenfalls, wohl nicht weil man Jugurtha als ausserhalb des —
Vélkerrechts stehend betrachtete, sondern weil die Cassirung des
Vertrages an sich auch ohne die Auslieferung méglich war und man
es mit der re/igio nicht mehr genau nahm.”
CHAPTER XV
NEGOTIATION AND TREATIES
As was shown in the chapter dealing with ambassadors, pifferent kinds
international or interstatal negotiations had attained in οἱ {estes and
ancient times to a high state of development ; so that
we find a large variety of treaties and compacts, and a
consequent richness of terminology relating thereto.
The following are some of the different kinds of such
agreements which obtained amongst the Greeks* :—
The συνθήκη," a general term for convention, covenant, συνθήκη.
treaty ; the term is sometimes used in the plural to
denote the articles of agreement.®
Occasionally σύνθεσις“ or συνθεσίαιδ is used (especially σύνθεσις.
by the poets) with the same meaning as συνθήκη.
‘Opodroyia, agreement or compact; frequently em-= ὁμολογία.
ployed in reference to terms of surrender.®
Διαλλαγή, a truce; terms of reconciliation on the διαλλαγή.
cessation of hostilities.’
Luvraéis,° a covenant, contract. σύνταξις.
1Cf, Egger, Etudes hist. sur les tr. pub. ..., chap. i.
2 Thue. v. 31, etc.—Aristotle discussing the meanings of law (νόμος)
and contract (συνθήκη), says that the law itself is a kind of contract,
so that anyone who violates a contract violates the law,—xal ὅλως
αὐτὸς 6 νόμος συνθήκη τις ἐστίν, ὥστε ὅστις ἀπιστεῖ ἢ ἀναιρεῖ συν-
θήκην, τοὺς νόμους ἀναιρεῖ (Κάεϊ. i. 15).
3Thuc. viii. 37 ; cf. Plato, Crito, 54¢.
* Pindar, Pyzh. iv. 299. 5 Hom, liad, τι. 339s
SHerodot. vii. 156; viii. 523; cf. Thuc. vi. 103 Plato, Theaet,
145C; etc.
7Herodot. i. 22; Aristoph. “εὖ. 989. *Demosth, ὦ Theocr. 37.
εἰρήνη, Pax.
διαλύσεις.
ἐκεχειρία.
σπονδαί.
Difference
between
σπονδαί.
376 KINDS OF TREATIES
A treaty of peace in the strict sense was termed
εἰρήνη, the Latin pax.
A treaty of peace or pacification concluded on the
cessation of civil discord was usually called a διαλύσεις,2
which, as a rule, included a proclamation of amnesty,
ἀμνηστία.
In reference to treaties and conventions arising more
directly out of war relationships, there were, as distinct
from a definite treaty and sometimes as preliminary to
it, the suspension of arms, ἐκεχειρία (literally, holding
of hands, χείρ), or avoxat (in the plural, like the
corresponding Latin imduciae); and the solemn truce,
σπονδαί, which, apart from its application in actual
warfare, is that concluded during, or in anticipation of, —
the Olympic games or other national or international —
festivals,—at Ὀλυμπικαὶ σπονδαί In this respect it
practically amounted, therefore, to a general treaty of ©
neutrality for the time being.’ This word is sometimes —
also used with the meaning of formal document, or —
treaty,—elpyrat ἐν ταῖς σπονδαῖς.
᾿
Ξ
;
;
Andocides draws a certain distinction between εἰρήνη —
(not συνθήκη, as Egger’ says, which, of course, is a
mere oversight) and σπονδαί. Speaking of the peace
concluded with Lacedaemon, which was alleged by many
to have brought about the establishment of the Thirty,
and death and exile to many Athenians, he says that all ©
those who speak in this manner do not reason precisely ;
for peace (εἰρήνη) and treaty (σπονδαί) are very different —
terms. ‘Peace’ is made on the basis of equality ; but a
‘treaty’ is entered into when on the termination of a
war the victor concludes with the vanquished on the
terms demanded by the former. And it was by means —
1 Aeschin. De fal. legat. 77; Andoc. De pace, 8. 17.
2Demosth. In Midiam, 119: ... ἠξίου δὲ καὶ πρὸς ἐμὲ αὐτῷ...
γίγνεσθαι τὰς διαλύσεις.
3 'Thuc. iv. 58, 11 ; v. 26, 32; Xenoph. Hed/en. iv. 2, 16.
4'Thuc. v. 49. 5 Plut. Lycurg, 1. 6 Thuc. i. 35.
7 Op. cit. ps 12, footnote.
ia. ΝΝ
enti it
>= eT 2
ep
KINDS OF TREATIES 377
of such a ‘treaty’ that the Lacedaemonian conquerors
_had made terms with the Athenians.’
_ The words σπονδαί and sponsio seem to be cognate. σπονδαί
_ Egger? says Gaius denies their kinship either in respect πα
_of their meaning or of their etymology. In point of
fact, Gaius speaking of the formula ‘dari spondes?
“spondeo,’ and of its exclusive applicability to Roman
“citizens, says merely that it cannot be appropriately
expressed in Greek, though, he adds, the term is said
‘to have a Greek origin. ‘Spondeo adeo propria
‘civium Romanorum est, ut ne quidem in Graecum
_sermonem per interpretationem proprie transferri possit,
-quamvis dicatur a Graeca voce figurata esse.””*
In the treaty between Argos and Lacedaemon, σπονδαί
according to the text given by Thucydides, we find the ὅτ 4.0
words σπονδαί and συμμαχία (symmachy) used as prac-
_ tically synonymous.*
A treaty supplementing, modifying, or rectifying a
previous treaty or peace was described as ἐπανόρθωσις ἐπανόρθωσις
τῆς εἰρήνης (or συνθήκης). Tis εἰρήνης.
A convention between two or more States establishing
"a reciprocity of civic rights, on the basis of a greater or
lesser equality, was an ἰσοπολιτεία,"---α term which has ἰσοπολιτεία
a somewhat wider significance than the Latin /oedus. a
(The confederacy or league with interchange of civic
rights was called συμπολιτεία.)"
There were also the συμμαχία, offensive and defensive συμμαχία.
«De pace, 11: ὁπόσοι οὖν ταῦτα λέγουσιν, οὐκ ὀρθῶς γιγνώ-
σκουσιν" εἰρήνη γὰρ καὶ σπονδαὶ πολὺ διαφέρουσι σφῶν αὐτῶν"
᾿ εἰρήνην μὲν γὰρ ἐξ ἴσου ποιοῦνται πρὸς ἀλλήλους ὁμολογήσαντες
᾿ περὶ ὧν ἄν διαφέρωνται" σπονδὰς δ᾽, ὅταν κρατήσωσι κατὰ τὸν πόλε-
᾿ μον, οἱ κρείττους τοῖς ἥτοσσιν ἐξ ἐπιταγμάτων ποιοῦνται.
2 Op. cit. p. 12, footnote: “Quant ἃ la sponsio des Latins, Gaius
Iui-méme nous avertit qu’elle ne se rattache, ni pour le sens ni pour
᾿ς Pétymologie, au grec σπονδή.
"δ Gaius, iii. 93. ἐν, 78.
5 Corp. inscrip. Graec. ii. p. 410; Polyb. xvi. 26.—Cf supra,
pp. 141 seg.
6 Cf, Polyb. ii. 41. 12; iii, 5. 6.—Cf. supra, p. 144.
7 Herodot. v. 63, 73.
ἐπιμαχία.
σύμβολα.
Kinds of
treaties, etc.,
in Rome.
International
relationships
according as
these were
treaties or not,
378 ROMAN TREATIES CONCLUDED
alliance for war and peace; and the émmayia,} military
alliance mainly for defensive purposes. The συμμαχία
was a designation of lesser extent than the συνθήκη, which
is shown by an epigraphic passage—[ev ταῖς] γινομέναις
συνθήκαις συμμαχίαν πρὸς... .2 Sometimes the συμμαχία
was ἃ ig se engagement supplementary to the treaty
of peace.®
The σύμβολα“ (used in the plural form,—the singular
cvuPorov’ also meaning a convention or treaty) was an
international agreement by which the signatory States
engaged to ensure a mutual protection of commerce,
or otherwise regulated commercial relationships, and
frequently provided for the establishment of neutral
tribunals to hear disputes arising out of such intercourse.
‘The character of the international relationships of
Rome with other peoples, particularly in the later periog’
of her history, varied according as there existed or did not
exist express conventions between them. If there were
no treaties of any kind with any particular community,
then the Romans conceived that the law of nations, as
generally understood, or rather as they themselves
understood it, had not full applicability to that nation.
(It is well to point out again that this attitude, how-
ever, prevailed rather at the time of Rome’s political
supremacy and rapid imperial expansion.) In theory,
the rights conferred by international law would not
therefore be necessarily extended to such a community.
There could not then be strictly any diplomatic
relationships therewith by the interchange of am-
bassadors, no negotiations in peace, none of the usua
1'Thuc. i. 44. 2 Corp. inscrip. Graec. nO. 127.
8Plut. Nicias, 10: Τῇ εἰρήνῃ τὴν συμμαχίαν ὥσπερ κράτος
δεσμὸν ἐπιθεῖναι.
4Cf. supra, pp. 198 seq.
5 Polyb. xxiv. 1. 2; xxxii. 17. 3.--Συμβολή is also found, bu
more rarely (cf. Arist. Rhet. 1, 4, 11), and likewise συμβολά, whic.
appears in a Doric fragment published in Péi/pairis, Athens, July
1859. 4
‘ ONLY WITH REGULAR STATES 379
‘relaxations in war. In case of war this class of indi-
viduals were not, at least from a theoretical point of
‘view, regarded as ‘regular’ enemies,—*hi hostes
“quidem non sunt.”* Consequently they could be
enslaved, and their property seized as ‘res nullius’ ;
‘and, further, the rules of postliminium might be
extended to them even in time of peace,—‘‘in pace
“quoque postliminium datum est.”” Whatever con-
-cessions were at any time granted, whatever relaxa-
tions were made—for actual practice did not by any
means always follow the stringent theory—they were
‘granted or made as favours, induced by generous or
humane sentiments, and not necessarily through the
force of any legal obligation. The moral consciousness,
“as engendering principles of equity, was ever an in-
valuable supplement to, and correction of, the juridical
consciousness, as engendering positive systems of
legislation.
Further, the conclusion of treaties and the mainten- Treaties
ance of regular negotiations were conceived by the coy
Romans to be possible only with communities properly guly organized
_ organized, on a legal basis, and for the common good
of the respective States. Such relationships were not
thought possible with mere conglomerations of indi-
viduals, existing without a determinate polity.’ It is in
accordance with this conception that Cicero defines a
State: “Est igitur Respublica, res populi; populus
autem non omnis hominum coetus, quoquo modo con-
gregatus, sed coetus multitudinis iuris consensu et
utilitatis communione sociatus.”’ *
In all these matters, however, a strict reciprocity of Reciprocal
treatment was admitted in pursuance of the nature of ““"™™
the international relationships that prevailed at any
_ given time. ‘Quod autem ex nostro ad eas pervenit
_illorum fit.... Idemque est, si ab illis ad nos aliquid
1 Dig. xlix. 15 (de captiv.), 5. 2. 2 Ibid,
8 Cf. supra, Pp. 110.
4 De Rep. i. 25 ; cf. Philipp. iv. 5,6; Dig. xlix. 15 (de captiv.), 24.
Pacific
relationships
of Rome,—
kinds,
Foedus and
pax.
Indutiae.
Sponsio.
Binding force
of international
conventions.
380 KINDS OF ROMAN TREATIES
perveniat.”" So that, for example, where ἃ treaty
existed with a duly organized community, the ‘ius
postliminii’ had no validity in time of peace either in
the case of that community or in that of Rome.’
The pacific relationships of Rome, in her later history,
may be arranged under a twofold classification, thus :
(2) Relationships of alliance: in reference to states
with which there existed ‘ amicitia,’ δ <hospitium pub-
licum,’* ‘ societas,’ or a ‘ foedus.”*
(2) Relationships of dependence : in reference to
‘municipia, ° ‘ coloniae,’’ ‘ provinciae.’
The foedus, as a solemn treaty of peace (pax), adjusted
the future relationships of belligerent states on tue
termination of hostilities ;—that is to say, when the
immediate consequence of the war was not merely 7
‘deditio ’ (absolute surrender) of the conquered nation
The indutiae, in the strict sense, was a truce or
armistice arranged for varying periods of duration
according to the nature of the circumstances involved.
This term has a somewhat analogous meaning in Roman
private law, where it was used to express the respite
granted by creditors to their debtors.® |
The sponsio was a covenant entered into by a generz
usually on his own authority, engaging to secure a
ratification by his government of the terms to which he
has consented.°
International agreements relating to war (other than
the sponsiones) will be more fully considered later.”
It has been held by some writers that international
conventions were conceived by the Romans as possessing
1 Dig, xlix. 15 (de captiv.), 5. 2. 2 Cf. supra, p. 110.
8 Cf. supra, p. 222. 4Cf£. supra, p. 221. '
5 Cf. supra, p. 240, as to rights allowed to Latin peregrins by treati og
6CE£ supra, p. 254. 7 See infra, chap. xix. ad fin. 7
8 Cf. lust. Cod. vii. 71 (qui bonis cedere sours 8,—where
law speaks of “ quinquennales indutias,”
9Cf. supra, pp. 369 seg. 10 See chet XXV.
BINDING FORCE OF TREATIES 381
a %
no strictly legal binding force. Thus Mommsen, for
example, compares them to the ‘ pacta nuda’ (or ‘nudae
“pactiones’) of private law, which, incapable of producing
a ‘civilis obligatio,’* and imposing only a ‘naturalis
_ obligatio,’ were not directly enforceable at law. And Were treaties
_ this he does on the ground that the absence of a clearly "“** ?****’
defined sanction made their execution depend on the
option of the engaging parties. From the standpoint Mommsen’s
+ of purely positive law, private contracts, no doubt, “°¥ °**™"**
engendered superior obligations, in the sense of being
more directly and more readily enforceable by definite
“measures; but this fact did not necessarily involve a
nullification of international obligations, nor did it of
necessity even impart to international agreements a
flimsy or precarious character. In a sense it may be
said that they assumed an intermediate position between
perfect contracts and nude pacts, and were not at all
wholly deprived of a juridical significance. For if the
fundamentally legal nature of such compacts were not
really recognized by the Romans, all the provisions
relating thereto found in the Codes, all the statements
and detailed reports of the ancient writers, particularly
so with regard to the indispensable procedure and
formalities so frequently insisted on, would amount to a
“mere chimaera or to a huge hypocrisy. To assert the
one would be nothing less than a self-stultification, and
to maintain the other would be a deliberate rejection of
palpable and indefeasible evidence.
The records of ancient treaties as seen in the reports Subjects in
of historians and other writers, and also in epigraphic ““"™
documents, show an immense variety of subjects therein
dealt with. From previous considerations it is obvious
that the conclusion of treaties was a practice more
frequent among the Greeks than among the Romans ;
so that the greater portion of the subjects specified
below have reference to the former. ‘The following
matters may be mentioned, not by way of a complete
1 Dig. ii. 14. 7. 4: “νος Nuda pactio obligationem non parit.”
list, but simply to indicate the most usual substance —
of diplomatic relationships and the extremely varied Ὁ
character of international intercourse. There were
treaties relating to religion; friendship; public hos-
pitality ; alliance, either for both peace and war, or -
only for war; alliance, either on an equal or an un-_
equal footing ; confederations of various States, some-
times with the avowed intention of maintaining them
in perpetuity ; establishment of councils for the same ;_
appointment of the commander of their united armies ;
interchange of civic rights, partial or practically entire 5
right of asylum ; protection and restoration of temples; a
exchange of embassies, and inviolability of ambassadors”
and heralds and other diplomatic functionaries in peace
and in war; reception, expulsion, and surrender of
fugitive criminals or other refugees ; return of runaway
slaves; extradition generally; piracy ; treaties for ter-
minating disputes by pacific methods, such as arbitration, -
mediation, lot ; regulation as to boundaries or disputed”
territories ; treaties of commerce, stipulating freedom
of maritime intercourse ; regulation of reprisals; special”
immunities from reprisal of certain individuals in time
of war ; determination of the competence of different
jurisdictions, and regulating certain conflicts of different
legal systems ; sale, cession, or donation of territories Σ᾿
government loans ; ; balance of power; treaties as to the
liberty and independence of a people that had liberated
itself from another country’s yoke; treaties between
colonists and the mother country, or between colonists
and the original inhabitants of the colonized territory 5
treaties of peace in the strict sense, and sometimes pro-
visions for perpetual peace ; armistice, truce, and their
periods of duration ; truce for sacred festivals and athletic a
games ; capitulation ; restoration of captured territory ;
prizes ; war indemnity ; hostages ; ransom, exchange, ©
and liberation of prisoners ; burial of dead ; passage or
retreat of an army over neutral territory ; etc., etc.*
382 SUBJECTS IN TREATIES
1Cf, Dumont, Corps diplmatique, suppl. τ. i. pt. i. pref. pp. X-xil ς
Barbeyrac, op. cit. vol. i. passim.
FUNCTIONARIES AND PROCEDURE 4483
In Greece most of the diplomatic functionaries already Functionaries
_ mentioned’ took part in one or other stage of the tei”
negotiations relating to the conclusion of treaties,— tn Greece.
af , ;
᾿ the heralds (κήρυκες, who had played an especially
important part in the heroic and early age) in the
_ preliminary proceedings, and the plenipotentiaries
(αὐτοκράτορες) in the main transactions. The consent
_ of the council and of the assembly of the people was
,7
necessary.
In Rome treaties were entered into by a special in Rome.
_ embassy, or by the commander in the field (sponsio),
or by the consul (especially so in the later period).
_ Treaties usually contained the proviso, ‘subject to the
_ fatification of the Roman people,’—thus, in Polybius’
phrase, ἐὰν καὶ τῷ δήμῳ τῶν Ῥωμαίων συνδοκῇ." This is
seen, for example, in the treaty made by Barcas and Treaty of
Lutatius in 242 B.c., putting an end to the first Punic *** *“
war. According to the text of Polybius, it runs to this
effect: “Friendship is established between the Car-
thaginians and the Romans on the following terms,
rovided always they are ratified by the Roman people.
he Carthaginians shall evacuate the whole of Sicily ;
_ they shall not wage war upon Hiero, nor take up arms
against the Syracusans or their allies. The Cartha-
ginians shall restore to the Romans all prisoners without
any ransom. The Carthaginians shall pay the Romans
in twenty years an indemnity of 2,200 Euboic talents
of silver”® [i.e. about half a million sterling]. When, Sanction of
_ however, the treaty was sent to Rome, the people aor on
_ refused to ratify it, but despatched ten commissioners
_ to investigate the affair. On their arrival they made
1 See supra, pp. 304 “6. 2 Cf i. 62.
8 Polyb. i. 62: ἐπὶ τοῖσδε φιλίαν εἶναι Καρχηδονίοις καὶ Ρωμαίοις,
ἐὰν καὶ τῷ δήμῳ τῶν Ρωμαίων συνδοκῇ. ἐκχωρεῖν Σικελίας ἁπάσης
Καρχηδονίους, καὶ μὴ πολεμεῖν ἱἹέρωνι μηδ᾽ ἐπιφέρειν ὅπλα Συρα-
-κοσίοις μηδὲ τῶν Συρακοσίων συμμάχοις. ἀποδοῦναι Καρχηδονίους
Ῥωμαίοις χωρὶς λύτρων ἅπαντας τοὺς αἰχμαλώτους. ἀργυρίου κατε-
_ νεγκεῖν Καρχηδονίους Ῥωμαίοις ἐν ἔτεσιν εἴκοσι δισχίλια καὶ δικόσια
_ τάλαντα Εὐβοϊκά.
384 FUNCTIONARIES AND PROCEDURE
no radical change in the general terms of the treaty,
but merely increased the severity of the various con-
ditions. Thus the time arranged for the payment of
the money was reduced to half, a sum of a thousand ~
talents was added to the indemnity, and the evacuation —
of Sicily was extended to all the islands lying between
Sicily and Italy.’
In Carthage In Carthage also the sanction of the people was )
ΓΎΡΗ a indispensable in the case of treaties entered into by —
pequired, her ambassadors. On the fall of Saguntum envoys ᾿
were sent to the Carthaginians to demand the surrender —
of Hannibal, and, if they should refuse, to declare war.
The case for the Carthaginians, stated by their repre- —
sentatives, was grounded on various pleas, and was —
introduced by the following observation: ‘“ a ἢ
over the treaty alleged to have been made with ~
Hasdrubal, as not having ever been made, and, if it
had, as not being binding on the people because made
without their consent,—and on this point they quoted ~
the precedent of the Romans themselves who, in the ~
Sicilian war, repudiated the terms agreed upon and
accepted by Lutatius, as having been made without ~
their sanction,’ ? etc. 4
In Rhodes, the In Rhodes the admiral was vested with the full a
admiral usually Ἂ
obtained full power to conclude conventions. On the astute policy —
Agia of the Rhodians who tried to excuse themselves for —
their conduct towards Rome by sending a compli- q
3 Polyb. i. 63: τούτων δ᾽ ἐπανενεχθέντων εἰς τὴν Ῥώμην οὐ προσε-. ν
δέξατο τὰς συνθήκας 6 δῆμος, ἀλλ᾽ ἐξαπέστειλεν ἄνδρας δέκα τοὺς
ἐπισκεψομένους ὑ ὑπὲρ τῶν πραγμάτων" οἵ καὶ παραγενόμενοι τῶν μὲν
ὅλων οὐδὲν ἔτι μετέθηκαν, βραχέα δὲ προσεπέτειναν τοὺς Καρχη-
δονίους" τόν τε γὰρ χρόνον τῶν φόρων, ἐποίησαν ἥμισυν, χίλια
τάλαντα προσθέντες, τῶν τε νήσων ἐκχωρεῖν ᾿Καρχηδονίους προσε-
πέταξαν ὅσαι μεταξὺ τῆς ᾿Ιταλίας κεῖνται καὶ τῆς Σικελίας, ‘
: Polyb. ill, 21: Tas μὲν οὖν πρὸς ᾿᾿Ασδρούβαν ὁμολογίας παρεσιώ-
πων. ὡς οὔτε γεγενημένας, εἴ τε γεγόνασιν, οὐδὲν οὔσας πρὸς αὑτοὺς
διὰ τὸ χωρὶς τῆς σφετέρας πεπρᾶχθαι γνώμης. ἐχρῶντο δ᾽ ἐξ αὐτῶν $
“Ῥωμαίων εἰς τοῦτο παραδείγματι" τὰς γὰρ ἐπὶ Λουτατίου γενομένας
συνθήκας ἐν τῷ πολέμῳ τῷ περὶ Σικελίας, ταύτας ἔφασαν ἤδη συνω-
μολογημένας ὑπὸ Λουτατίου μετὰ ταῦτα τὸν δῆμον τῶν “Ῥωμαίων δ)
ἀκύρους ποιῆσαι διὰ τὸ χωρὶς τὴς αὑτοῦ γενέσθαι γνώμης.
EARLIER CEREMONIAL 385
‘mentary crown through an embassy under Theaetetes,
the navarch, charged to effect an alliance with Rome,
‘Polybius comments thus: They proceeded in this way
‘because, if the embassy failed by an adverse answer
‘at Rome, they desired the failure to take place without
a formal decree having been passed, seeing that the
‘attempt was made solely on the initiative of the
“navarch, who has a legal right to act in such a case."
Similarly, in 198 3.c., Acesimbrotus, the navarch, was
‘despatched by Rhodes as a commissioner to the con-
gress at Nicaea in Locris in order to discuss relation-
ships with Philip.” In matters of a serious nature,
however, the sanction of the people was essential to
impart validity to the transaction of the navarch.®
__ An early account of the conclusion of a compact and Ceremonial in
‘of the ceremonial indispensable thereto is given in the “™* ‘"*
Iiad. \t was a solemn agreement entered into by the In Greece.
Trojans and the Argives with regard to the combat for
Helen between Menelaus and Alexander. First of all Preliminary
‘the herald made an announcement in the city of the ty the herald.
duel, and of the preliminaries that were about to ensue,
‘and brought two lambs, some wine in a goat-skin
bottle, a bowl, and golden cups. When all’ were
assembled, “the lordly heralds brought together the
faith-ensuring pledges of the gods, and mingled the
wine in a bowl, and poured water over the hands of
the princes.”
...GTap κήρυκες ἀγανοὶ
ὅρκια πιστὰ θεῶν σύναγον, κρητῆρι δὲ οἶνον
ς μίσγον, ἀτὰρ βασιλεῦσιν ὕδωρ ἐπὶ χεῖρας ἔχευαν."
Then Atreides cut off the hair from the heads of the
lambs, which was distributed by the heralds σῶα, ἰὼ
the chiefs of the Trojans and Achaeans. ἊΑἰἴγει 65 Invocation to
raising his hands then offered up this prayer : “ Father ΒΡᾺ
ΟΠ ἼΡΡΪΥΡ. xxx. 5: ... τὴν γὰρ ἐξουσίαν εἶχε ταύτην ναύαρχος ἐκ
τῶν vopwv.—Cf, Liv. xlv. 25.
2 Polyb. xviii. 1. 8 Polyb. xxx. 1; Liv. xlv. 5.
4 Tiad, iii. 268-270.
2B
Recital of
conditions.
Imprecation.
386 EARLIER CEREMONIAL
Zeus, that rulest from Ida, most glorious, most mighty,
and thou Sun that beholdest all things, and hearest all
things, and ye Rivers and thou Earth, and ye that in
the underworld punish men deceased, whosoever has
taken a false oath; be ye witnesses, and watch over
the faith-ensuring pledges.”
Ζεῦ πάτερ, Ἴδηθεν μεδέων, κύδιστε, μέγιστε,
᾿Ηέλιος θ᾽, ὅς πάντ᾽ ἐφορᾷς καὶ πάντ᾽ ἐπακούεις,
καὶ Tlonapo? καὶ Ῥαῖα, καὶ οἱ ὑπένερθε καμόντας
ἀνθρώπους τίνυσθον, ὅτις κ᾽ ἐπίορκον ὀμόσσῃ,
ὑμεῖς μάρτυροι ἔστε, φυλάσσετε δ᾽ ὅρκια πιστά.1
Next, the conditions of the combat were stated,’ the
throats of the lambs were cut, followed by a libation
of wine, and an imprecation recited by many on both
sides: ‘*Zeus, most glorious, most mighty, and ye
other immortal gods! Whosoever shall first commit
wrong contrary to their pledges, may their brains and
their children’s be dispersed on the ground, like this
wine, and may their wives prove faithless.”
Ζεῦ κύδιστε, μέγιστε, καὶ ἀθάνατοι θεοὶ ἄλλοι,
ὁππότεροι πρότεροι ὑπὲρ ὅρκια πημήνειαν,
dy} σφ᾽ ἐγκέφαλος χαμάδις ῥέοι, ὡς ὅδε οἶνος,
αὐτων, καὶ τεκέων, ἄλοχοι δ᾽ ἄλλοισι μιγεῖεν.8
In the following book of the Jad, Agamemnon 5
represented as saying to Menelaus, holding him by the
hand: ‘ Beloved brother, to thy death, meseemeth,
pledged I these oaths, in setting thee forward alone to
fight for the Achaeans against the Trojans, since the
Trojans have wounded thee, and trampled upon the
trusty oaths. Yet in no wise is the pledge in vain, nor
the blood of the lambs, and the pure libations, and the
right hands of fellowship wherein we placed our trust. 7
Φίλε κασίγνητε, θάνατόν νύ τοι Spi’ ἔταμνον, Γ
οἷον προστήσας πρὸ ᾿Αχαιῶν Τρωσὶ μάχεσθαι. 7
Ὁ > » ~ Ν δ᾽ 7 ἈΝ 7 4
ὥς σ᾽ ἔβαλον Τρῶες, κατὰ δ᾽ ὅρκια πιστὰ πάτησαν. ;
ov μέν πως ἅλιον πέλει ὅρκιον, αἷμά τε ἀρνῶν,
’, > » Ἅ, ὃ Ν > 7 θΘ 4
σπονδαί τ᾽’ ἄκρητοι καὶ δεξιαὶ, ἧς ἐπέπιθμεν.
1 Thad, iii. 276-280 2 Thad, ili. 281-291.
ὃ Thad, iii. 298-301. 4 Thad, iv. 1§ 5-159.
EARLIER CEREMONIAL 387
Later, Agamemnon, urging on the Argives, says: “ Ye zeus—no
‘“Argives, relax not in any wise your impetuous ardour ; Provector of
for father Zeus will be no protector of liars; but as
ey were the first to transgress against the oaths, so
‘Shall their own tender flesh be devoured by the
vultures.”
| 3 ᾿Αργεῖοι, μήπω τι μεθίετε θούριδος ἀλκῆς"
LS ov yap ἐπὶ ψεύδεσσι πατὴρ Ζεὺς ἔσσετ᾽ ἀρωγός"
ῃ ἀλλ’ οἵπερ πρότεροι ὑπὲρ ὅρκια δηλήσαντο,
be TOV ἤτοι αὐτῶν Tépeva χρόα γῦπες ἔδονται.
From the above it is seen that in the Greek heroic Main
age the main proceedings of the ceremonial adopted in processees
,
7,
ὦ
7
᾿
7
the conclusion of a treaty were: (1) a preliminary
“announcement by the heralds, (2) an invocation to the
gods to bear witness to the transaction, (3) a declara-
‘tion of oath, (4) a recital of the conditions of the
“engagement, (5) the offering of a sacrifice, (6) a
libation of wine, (7) joining of hands, and (8) the
“utterance of an imprecation on those who would, con-
trary to their oaths, violate the compact.
_ This ritual is found substantially amongst the nations Similar ritual
of antiquity in general. With the Phoenicians and the oiiom peoples
Israelites, for example, the solemn imprecation of divine i= general.
vengeance on violators of covenants formed the most eae
‘important part of the procedure. The Carthaginians ©*"thasinians
also swore by the gods of their fathers, ... τοὺς
θεοὺς τοὺς πατρῴους 5 In China there were likewise The ancient
elaborate formalities in connection with the signing of “"**
a treaty, including solemn confirmation by oath,
mingling of the blood of the signatory parties in a cup
οὗ wine, laying their hands on the head of an ox to be
sacrificed, and the usual imprecation. Thus in a treaty
between the Prince of Cheng, and a coalition of princes
who invaded his territory, 544 B.c., after the preamble
and the recital of the provisions, the conclusion was
to this effect: ‘‘ We engage to maintain inviolate the
terms of the foregoing agreement. May the gods of
1 Thad, iv. 234-237. 2 Polyb. iii. 25.
Modern
uncivilized
races.
In historic
Greece,
Importance of
the oath,
_ suffer confusion in war, and trials and councils, may
καὶ τῆς ᾿Αρτέμιδος καὶ i Λητοῦς καὶ ᾿Αθηνᾶς Προνοίας... . καὶ ἐπεύχε: τὰ
388 FORCE OF THE OATH
the hills and the rivers, the spirits of former emperors
and dukes, and the ancestors of our seven tribes and
twelve States watch over its fulfilment. If anyone
prove unfaithful may the all-seeing gods smite him, so
that his people shall forsake him, his life be lost, and
his posterity cut off.” *
It is worthy of note that amongst the incivileel
races of to-day the formal oath, imprecation, and sacri-
fice—sometimes of human victims——are he invariable
accompaniments of the conclusion of treaties.’
In more historic times in Greece there were, an
from treaties, a similar oath and imprecation in
reference to the Amphictyonic proceedings. Thus the
Cirrhoeans having committed an offence against the
temple of Delphi and the Amphictyons, the latter were
commanded by the oracle to ravage the country of the
delinquents and enslave them. Solon accordingly
moved a resolution to this effect. Cirrha was then
levelled ( 58 5 B,c.), and the territory consecrated to t :
god, by a ‘ mighty oath,’ followed by a supplication and
solemn curse: “If anyone transgress this, whether city
or individual or tribe, let him be accursed of Apollo and
Artemis and Leto and Athene; ... neither may the
offenders’ land bear fruit, nor their wives bring forth
children like unto their parents, but monsters, nor their
herds yield increase after their kind; and may they
they be exterminated themselves, and their houses and
their race; and may they never sacrifice acceptably
to Apollo or Artemis, or Leto, or Athene, nor receive
their sacrifices at their hands.’’* 4
1 Martin, /oc. cit. p. 73.
2Cf. Ratzel, Volkerkunde, vol. ii. PP. 448, 45 Ι.
ὁ Aeschines, Δ Ctesiph. 1 10: καὶ οὐκ ἀπέχρησεν αὐτοῖς τοῦτο
τὸν ὅρκον ὀμόσαι, ἀλλὰ καὶ προστροπὴν καὶ ἀρὰν ἰσχυρὰν ὑπὲρ
τούτων ἐποιήσαντο. γέγραπται γὰρ οὕτως. ev τῇ ἀρᾷ, εἴ τις
παραβαΐνοι ἢ ἢ πόλις ἢ ἢ ἰδιώτης ἢ ἢ ἔθνος, ἐναγὴς ἔστω τοῦ ᾿Από
αὐτοῖς μήτε γῆν 'καρποὺς φέρειν, μήτε γυναῖκας τέκνα τίκτειν γο
DIVINE GUARDIANSHIP 389
In Herodotus! we find the formula of the oath that
_A violation of the oath was not only a ground for war,
but the culprit (frequently along with his family and
descendants) was deemed to be inevitably subject to the
dire retribution of the gods.? Indeed, the gods them-
selves were punished for any perjury they committed.®
_ It may in truth be said that the oath is, in a certain The oath—the
“sense, the underlying basis of the whole body of the δας εις |.
ancient law of nations. And this will be further *tions.
exemplified in the consideration of the sacred element
in Roman treaties.
_ As in the case of the other countries of antiquity, in In Rome.
Rome treaties were deemed to be under the vigilant
guardianship of the gods, so that any infraction thereof
was regarded not only as an offence against the law of
nations, but also an offence against divine law. Rome Jupiter Fidius.
had her Jupiter Fidius, as Greece had her Ζεὺς Πίστιος." Ζεὺς Πίστιος.
: ἐοικότα, ἀλλὰ τέρατα, μήτε βοσκήματα κατὰ φύσιν γονὰς ποιεῖσθαι,
ἧτταν δὲ αὐτοῖς εἶναι πολέμου καὶ δικῶν καὶ ἀγορῶν, καὶ ἐξώλεις εἶναι
καὶ αὐτοὺς καὶ οἰκίας καὶ γένος τὸ ἐκείνων. καὶ μήποτε ὁσίως θύσειαν
τῷ ᾿Απόλλωνι μηδὲ τῇ ᾿Αρτέμιδι μηδὲ τῇ Λητοῖ μηδ᾽ ᾿Αθηνᾷ Προνοίᾳ,
μηδὲ δέξαιντο αὐτοῖς τὰ ἱερά. (In this passage the constantly recurring
word φησί has been omitted for convenience’ sake.)—Cf. De fas.
_ legat. 115, as to the oath taken by the members of the Amphictyonic
_ league.
Ivii. 132 : τὸ δὲ ὅρκιον ὧδε εἶχε, ὅσοι τῷ Πέρσῃ ἔδοσαν σφέας
αὐτοὺς Ἕλληνες ἐόντες, μὴ ἀναγκασθέντες, καταστάντων σφι εὖ τῶν
πρηγμάτων, τούτους δεκατεῦσαι τῷ ἐν Δελφοῖσι θεῷ.
3 Herodot. vi. 86. 8 Hesiod, Theog. 784-795.
4 Dion. Hal. iv. 58.
Early Italic
ceremonial.
Foedus—and
fetials,
390 FOEDUS AND FETIALS
Janus is said to have been the protector of alliances, his
eee ue re
double face symbolizing the two peoples united by the β
treaty of peace.!
In the twelfth book of the Aeneid, we read of Aeneas —
suggesting a treaty with Latinus on a basis of equality,
and he mentions certain conditions thereof. Where-
upon Latinus, looking towards the sky and extending his
hand to heaven (‘suspiciens caelum tenditque ad sidera
dextram ’), says: “ By these same I swear, Ὁ Aeneas,
by Earth, Sea, Sky, and the twin brood of Latona and
Janus the double-facing, and the might of nether gods
and grim Pluto’s shrine; this let our Father hear, who
seals treaties with his thunderbolt. I touch the altars,
I take to witness the fires and the gods between us; no
time shall break this peace and truce in Italy, howso-
ever fortune fall; nor shall any force turn my will”
aside, not if it Hcastes land into water in turmoil οὗ
deluge, or melt heaven in hell... .”?
After this solemn declaration ‘the consecrated beasts
were slain over the flames, their entrails torn out, and
the altars piled with laden chargers.®
The religious aspect of the Roman foedus is manifest |
through its necessary connection with the fetial magis-—
ined of a certain sacred
character. In fact, as Fusinato maintains, foedus and
trates, who were
1Servius, 4d Aen. xii. 198.
2'Trans. by J. W. Mackail (London, 1908), p. 278.
Aeneid, Xil. 197-205 :
“« haec eadem, Aenea, terram mare sidera iuro
Latonaeque genus duplex Ianumque bifrontem
vimque deum infernam et duri sacraria Ditis ;
audiat haec genitor, qui foedera fulmine sancit.
tango aras, medios ignis et numina testor ;
nulla dies pacem hanc Italis nec foedera rumpet,
[quo res cumque cadent ; nec me vis ulla volentem
avertet, non si tellurem effundat in undas
diluvio miscens caelumque in Tartara solvat ;]’”
ὃ Thid. 213-215 :
“tum rite sacratas
in flammam iugulant pecudes et viscera vivis
eripiunt cumulantque oneratis lancibus aras.”
a
FOEDUS AND FIDES 391
fetial are (apart from their alleged etymological kinship)
essentially inseparable conceptions,—“ foedus e feziali
sono due concetti che nella loro purezza non si possono,
ἃ quanto io credo, separatamente concepire.”! Hence
this writer’s definition of foedus, based on that of Osen-
brueggen,” and completed by the inclusion of the
ceremonies and agency of the fetials, is formulated as a
public convention between the Roman people and
another nation respecting the conclusion of war and the
determination of the conditions of peace by the sanction
and authority of the senate and the people, and effected Definition of
by fetial solemn ceremonial ;—‘“‘conventio publica inter“
populum Romanum et alium populum de bello finiendo
et pacis conditionibus constituendis auctoritate et iussu
S.P.Q.R. cum fetialibus ceremoniaque solemni facta.” ὃ
This statement duly emphasizes the relationship between
the foedus and the fetials ; but it is a definition of only
one kind of foedus (as will appear from previous con-
siderations) since it excludes various other transactions
which were within the sphere of foedera.
The fundamental notions of the Greeks and of the Greek ana
Romans regarding the significance of treaties and their pemeeo ἡ δ
sacred character are very closely allied. Thus, in led.
Greek, the word πίστις has, in an abstract sense, the
meaning of honesty, good faith,* thus corresponding to
the Latin fides; secondly (like τὸ πιστόν), in a con-
crete sense, it signifies an assurance, a pledge of good
faith, a treaty, corresponding to the Latin foedus, as
embodying fides. In reference to the second meaning,
we find πίστις frequently associated with ὅρκος, an oath,°®
and also with dpxia, in the sense, on the one hand, of
the offerings and other rites used at the making of a
1 Dei fexiali e del diritto fexiale, loc. cit. p. 547.
ΞΕ, Osenbrueggen, De jure belli et pacis Romanorum (Leipzig,
1836), p. 75.
8 Dei feziali ὁ del diritto fexiale, loc. cit. p. 54.7.
4Cf. Soph. Oed. Col. ὅτι : θνήσκει δὲ πίστις, βλαστάνει δ᾽ ἀπιστία ;
Herodot. viii. 105.
> Thus, Aristoph, Lysist. 1185: ὅρκους καὶ πίστιν δοῦναι,
solemn oath or treaty, and, on the other, the solemn —
compact itself. So that ὅρκια πιστὰ ταμεῖν' (to conclude —
a treaty) answers to the Latin expression ‘ foedus ferire,’ Ὁ
whilst ὅρκια δηλήσασθαι3Ξ means to violate a solemn —
treaty ; and, indeed, ὅρκια is sometimes used in the -
sense of the victims sacrificed when the oaths are
taken.* The gods invoked at the taking of an oath,
who guard its observance and punish its infraction, are —
described as, ὅρκιοι θεοί ;* and so we have Ζεὺς Spxtos,®
involving a conception which is thus closely related to
that of Ζεὺς Πίστιος. Sa
σπονδαί Again, the Latin spondeo is the Greek σπένδω, to
and spondéo- your a libation (the Latin ‘libare’), hence (on account
of this formality) to make peace, to conclude a treaty.®
Likewise, the sponsio is the σπονδή (drink-offering, —
‘libatio’), of which the plural, σπονδαί means a solemn —
treaty, a truce,® being a later development of the ὅρκια.
Thus, just as there is a kinship between the ‘ foedus’ ;
and the ‘ fetiales,’ so there is a connection between the ;
‘sponsio’ and the oath. As Danz observes: “Es —
werde sich der Beweis fthren lassen, dass die Sponsio ~
der friihesten Zeit der formulirte promissorische Eid ~
war.”® |
In reference to the ‘spondesne? spondeo’” of the —
392 FOEDUS AND SPONSIO
:
|
1Cf. Herodot. ix. 92 : πίστιν καὶ ὅρκια ποιεῖσθαι (to enter into a q
treaty by exchanging assurances and oaths).
2 Iliad, iii. 107; iv. 67; cf. iv. 155, 157 quoted supra, p. 386, n. 4.
8 Cf. Lliad, iii. 245, 269. 4'Thuc. i. 71, 78; Eurip. Phoen. 481. —
5 Soph. PAil. 1324; Pausan. v. 24. 9.
6 Cf. Herodot. iii. 144; Aristoph. Ach. 199; Thuc. i. 18: τὰ ©
μὲν σπενδόμενοι τὰ δὲ πολεμοῦντες ; and so σπένδεσθαι τῇ πρεσβείᾳ
(to give assurances of safe-conduct to ambassadors). 4
7Diod. iii. 71; cf. Festus, p. 329: “Spondere Verrius putat ©
dictum, quod sponte sua, id est voluntate, promittatur, deinde oblitus ~
inferiore capite sponsum et sponsam ex Graeco dictam ait, quod ii ©
σπονδὰς interpositis rebus divinis faciant.”
8 Cf. Iliad, iv. 159: σπονδαί τ᾽ ἄκρητοι (quoted above). |
9 Der sacrale Schutz, p. 105; cf. ibid. pp. 102-106 on the subject —
generally.—Cf. the comment of Leist, Gr.-Ital. Rechtsg. p. 465, —
note q. 3
; FORCE OF FIDES 303
; private law, Gaius! mentions as an approximate Greek
-equivalent— ὁμολογεῖς ; ὁμολογῶ; *—which indicates a
transformation, to a large extent, of the significance of
the terminology.
_ We find, then, on further analysis, that the concep- πίστι
‘tions of ‘fides’ (as embodied in the ‘foedus’) and **““
πίστις and ὅρκια (as embodied in the σπονδαί), are at
the very foundation not only of ancient treaties in the
strict sense, but of the whole range of Hellenic and Numerous
Roman international relationships, in peace or war. “Pistons
Festus ascribes the intrinsic significance of ‘foedus’
to its all-important factor, ‘fides’; ‘ foedus... quia
in foedere interponatur fides” ;* and Livy likewise
emphasizes its relationship to ‘foedus,’ as well as to
famicitia’ and ‘societas’;—“in fidem venerunt...
foedere ergo in amicitiam accepti” ;* ‘eo anno societas
coepta est; in fidem populi Romani venisse.”’® Further
applications of ‘fides’ and σπονδαί are found in refer-
ence to other institutions and transactions; for
example, in the case of armistices and truces,—“ fides
indutiarum”;°® assurances of safe-conduct’ (as was
pointed out in a footnote above),—oréwerOa τῇ
πρεσβείᾳ .8 engagements for the burial of those fallen
in war,— per indutias sepeliendi caesos potestas est
facta,”® or σπονδαὶ εἰς νεκρῶν avaiperw, or τοὺς νεκροὺς
ὑποσπόνδους ἀνειρεῖσθαι "1} the release of prisoners,—
ὑποσπόνδους ἀπίεναι τοὺς αἰχμαλώτους "152 agreements for
1 Inst. iii. 93; Cf. supra, p. 377.
2Cf. Demosth. De corona, 32: ὡμολόγησε τὴν εἰρήνην (he agreed
to peace); Herodot. vii. 172: ἐπίστασθε ἡμέας ὁμολογήσειν τῷ
Πέρσῃ.
88 84.
* Liv. νὴ]. 25. 5 Liv. viii. 27; cf. Liv. viii. 21 ; ix. 63 x. 45.
6 Liv. i. 30; ix. 40; xxx. 16, 25. 7 Liv, xxxviii. 9; xl. 49; etc.
8 Aeschin. ἐς. Cresiph. 63. 9 Liv. xxxviii. 2.
10Cf, Thuc. iii. 24, 109; iv. 114: σπείσασθαι... ἡμέραν τοὺς
νεκροὺς ἀνελέσθαι.
11 'Thuc. iv. 44.
2Cf£. Plut. δοίη. 9: πάντας ὑποσπόνδους ἀφῆκεν.
304 INVOCATIONS IN ROMAN TREATIES
extradition, for capitulation,—‘“‘in fidem consulis dicio-
nemque populi Romani sese tradebant” ;! ‘ deditionis
quam societatis fides sanctior erat” ;? “non in servi-
tutem sed in fidem tuam nos tradidimus”;* and so
On in various other cases.
Similarity of Besides this analogy in the fundamental conceptions
outward : Me Pn
ceremonial of Of Greece and Rome, there is also a similarity between
Greeceand ~_ the outward formalities introduced in concluding their |
solemn engagements; for example, in the use of the
invocation to the gods to witness the proceedings and
watch over the fulfilment of the mutual promises,
in the administration of the oath, the sacrifice, the
imprecation. Ἵ
First treaty Thus, in the first treaty between Rome and Carthage
between Rome ; =
and Carthage. (509-8 B.c.), the Romans, as Polybius‘ states, invoked ©
Jupiter Lapis; and in a subsequent treaty Mars and —
Treaty between Quirinus. Similarly, in the treaty between Hannibal ©
Philip. an¢ and Philip V. of Macedon, 215 B.c., the oath was
taken, says Polybius,® in the presence of Zeus, Here, ©
and Apollo ; of the god of the Carthaginians, Hercules, —
and Iolaus; of Ares, Triton, Poseidon; of the gods
that accompany the army, and the sun, moon, and
earth; of rivers, harbours, waters ; of all the gods who -
rule Carthage ; of all the gods who rule Macedonia and ©
the rest of Greece, of all the gods of war that are
witnesses to the oath.
Formulas to In Livy we find several formulas which were used to”
mie © invoke the attestation of the gods, and their punish-
ment for any violation of oaths,—adeste dii testes
foederis et expetite poenas debitas simul vobis violatis
nobisque per vestrum numen deceptis.”’ © |
Imprecation. With regard to the imprecation, and other proceed-
ings, the first Roman treaty with Carthage affords
an interesting example. The Commissioner (or
1 Liv. xxxvii. 453 cf. ΧΧΧΙΙ. 2 ; XXXVIl. 32.
2 Liv. vi. 9. 3 Liv. xxxvi. 28. 4 iii, 25. S vii. g.
6 Liv, vi. 29; cf. ibid. viii. 6: “crebram implorationem deum,
quos testes foederum saepius invocabant consules.”
oe. ot ΟΣ Ἢ
; SYMBOLIC FORMALITIES 395
-functionary, ποιούμενος, referring to the officiating
fetial, the ‘pater patratus’), writes Polybius, took a
stone in his hand, and having taken the oath in the
name of his country, concluded with these words: ‘If
I abide by this oath may he [Jupiter] bless me; but if I
do otherwise in thought or act, may all others prosper
in their countries, under their laws, in their livelihood,
and preserve their household gods and tombs; may I
alone be cast out, even as this stone is now.’ And
having uttered these words, he threw the stone from
his hand.
Here there appears a certain difference between the Difference
Homeric ritual and the old Italic. The hurling of the ype Me μοὶ
stone τ bataate Jupiter’s striking down of perjurers, and the old
Very frequently a pig was thus struck down, or ~
sacrificed, by the fetial magistrate.” The gods, it was symbolism.
conceived, would strike down violators of oaths, just as
the pig was there and then struck down (‘ferire,’ or
‘icere, or ‘percutere’). Hence the expressions ‘foedus
ferire,’ ‘foedus ictum,’ ‘ foedus percutere’ ; and Festus
draws attention to the kinship between ‘ferire’ and the
fetials,—“‘ fetiales a feriendo dicti ; apud hos enim belli
_ pacisque faciendae ius est.” * The Homeric ὅρκια τάμνειν
(Attic τέμνειν, to cut up, to slaughter) corresponds to
‘ foedus ferire,’ but in the case of the former expression
the reference is rather to the sacrifice itself. As to the Use of the pig.
use of the pig, Pantaleoni points out that it represents
the hunting life in the woods before the pastoral age, the
stone representing the stone age,—from which con-
jecture he infers the distant antiquity of the ceremonial.
Others assert that the pig was in ancient times held to
1Polyb. iii. 25: ... λαβὼν εἰς τὴν χεῖρα λίθον ὁ ποιούμενος τὰ
ὅρκια περὶ τῶν συνθηκῶν ἐπειδὰν ὀμόσῃ δημοσίᾳ πίστει, λέγει τάδε
ἐ εὐορκοῦντι μὲν ποιεῖν τἀγαθά' εἰ δ᾽ ἄλλως διανοηθείην τι ἤ πράξαιμι,
“ Δ: Ἃ ’ a. 97
πάντων τῶν ἄλλων σῳζομένων ἐν ταῖς ἰδίαις πατρίσιν ἐν τοῖς ἰδίοις
νόμοις ἐπὶ τῶν ἰδίων βίων ἱερῶν τάφων, ἐγὼ μόνος ἐκπέσοιμι οὕτως ὡς
lel “ ’, “Ὁ ,
ὅδε λίθος viv.’ καὶ ταῦτ᾽ εἰπὼν ῥίπτει τὸν λίθον ἐκ τῆς χειρός.
2C£. Virgil, Aeneid, viii. 641: “ Et caesa iungebant foedera porca.”
3p. ΟἹ.
Later
development
of treaties—
their
formalities.
In Greece.
Heralds.
Ambassadors.
Definite [
language in
treaties.
306 LATER PROCEDURE
be a sacred animal ; and, again, that the figure of a pig
was amongst the military standards.’
In Greece the frequent negotiations between the
various States, particularly during the Peloponnesian
war, conduced to the rapid development of the art of
treaty-making. Certain formalities became a recognized
part of the procedure, and certain personages came to
be regularly employed in the conducting of the multi-
farious transactions. Thus, at the beginning of his
second book, Thucydides® says—as though the usage
had become once and for all stereotyped—that thence-
forward no overtures were inaugurated between the
parties without the preliminary employment of heralds
for the arrangement of the subsequent diplomatic inter-
communication ; and so heralds, ambassadors, and their
suites became regular functionaries.2 These were also
usually accompanied by secretaries and draftsmen.
Further, a definite and specially adapted style came to
be employed for the recording of international trans-
actions, in order to secure precision and conciseness, and
avoid all possible ambiguity and obscurity ; and some-
times a certain technical terminology appears. Elaborate
provisions were set out in an orderly and logical manner,
to regulate clearly the legal relationships established, to
secure their observance, and to provide for any infringe-
ments. This is shown in the several treaties given by
Thucydides in his fifth book.*
Besides the numerous references to contemporary
treaties in historians, like Thucydides, there are many
in the orators, dramatic poets, and others.?
1 Festus, s.v. Porct :
“Porci effigies inter militaria signa quintum —
5
locum obtinebat, quia confecto bello, inter quos pax fiebat, ex caesa
porca foedere firmari solet.”
211, ἃ and 2. 3'Thuc. iv. 118. 4 See infra, chap. xvii.
5 E.g, Eurip. Suppl.; Heracl. ; Phoen.; Aristoph. Wasps, 1268 seq. ;
Clouds, 691 ; Peace, 454 seg. ; Birds, 1031 S€9.5 1550 5€9., 1582 “6. 5
Acharn, 54, 186 seg.—Cf. H. Weil, De tragoediarum graecarum cum
rebus publicis conjunctione (Paris, 1844), passim.
᾿
4
i
Μ'
4
᾿»
ay)
af
Ὁ
rm
ὺ
4
ι.
;
Γ»
j
‘
ν᾿
᾽
:
LATER PROCEDURE 397
Unlike our modern diplomatic methods, negotiations Negotiations
were conducted publicly. Foreign ambassadors were ἡ
received by the general assembly, of which each member
had the right and the opportunity to take an active part
in the transactions, and to make what suggestion he
thought fit regarding any overtures that were made.
Sometimes in cases of difficulty or emergency a private Sometimes,
conference, to which the leading statesmen were Private
delegated, was agreed upon instead of holding public
deliberations. Secret treaties were not unknown in the Secret treaties.
conferences.
diplomatic annals of Greece. Thus, when the Achaean
league determined upon war with the Aetolians and
_ applied to their allies for assistance, the Lacedaemonians,
who had but recently been liberated by means of
_ Antigonus and the generous zeal of the Achaeans, as
_Polybius observes, sent clandestine messages to the
Aetolians, and arranged a secret treaty of alliance
and friendship with them,—d.a7reurpdpuevor λάθρᾳ πρὸς
τοὺς Αἰτωλοὺς φιλίαν Ov ἀποῤῥήτων ἔθεντο καὶ συμμαχίαν."
We find in the extant texts of treaties, whether given The parties
retained copies
_ by the historians and orators, or contained in epigraphic jy their own
_ documents, that various dialects were used by the people “i#lects.
of Greece in drawing them up. When the contracting
parties spoke different dialects, each kept a copy drafted
in its own dialect.’
Independent States enjoyed the use of a public seal,— public seal.
δημοσία spayis,—which is frequently referred to in
inscriptions with regard to the execution of public acts.°
Livy likewise speaks of ‘signatis tabulis publicis,’ and
other ancient writers make mention of forged seals,
‘signa adulterina,’ (but mainly in reference to private
transactions).* |
The full signatures of the delegates or other officials signatures of
taking part in the transactions are also found appended “°“*"*
1 Polyb. iv. τό. 2Cf. Egger, of. cit. pp. 61, 62.
8 Cf. Corp. inscrip. Graec. nos. 2329, 2332, 2847, 3053, etc.
4Cf. Οἷς, Pro Cluent. 14: “testamentum signis adulterinis
obsignare.”
Record of
treaties.
Hostages.
398 USE OF HOSTAGES
to the documents; ἔγραψα καὶ ἐσφράγισα, says an
inscription."
The texts of treaties were usually engraved on bronze
tablets or marble steles, and preserved in certain
temples, or other specially appointed public places,
under the protection of the gods. In Athens the
Metroon (the temple of the mother of the gods) was a
depository for State archives, and was entrusted to the
guardianship of the president (ἐπιστάτης) of the senate
of the Five Hundred. When a city was added to a
confederation, the agreement involved was engraved
on a tablet; thus when Sparta became a member of
the Achaean league, Polybius states . . . καὶ μετὰ ταῦτα
στήλης προγραφείσης." Atacouncil at Clitor, in Arcadia,
184 B.c., Lycortas, the representative of the Achaeans,
thus addressed the Roman commissioners: ‘ What we
have ratified by our oaths, what we have consecrated as
inviolable to eternal remembrance, by records engraved
in stone, they want to abolish, and load us with perjury.
Romans, for you we have high respect; and, if such is
your wish, dread also; but we respect and dread more
the immortal gods."* ὁ |
In China also documents of this kind were carefully
deposited in a sacred place called Meng-fu, the ‘palace
of treaties.’* Most ancient States had similar provisions.
To ensure the performance of the conditions of
treaties, especially so in important or doubtful cases,
hostages’ were frequently given or exchanged. This
was an institution which obtained universally amongst
the nations of antiquity. Thus in ancient China, the
1 Corp. inscrip. Graec. no. 6785 ; cf. nos. 3450, 3858.
2xxiii. 18.
8 Liv. xxxix. 37: “ Quae iure iurando, quae monumentis litterarum
in lapide insculptis in aeternam memoriam sancta atque sacrata sunt,
ea cum periurio nostro tollere parant. Veremur quidem vos, Romani,
et, si ita vultis, etiam timemus ; sed plus et veremur et timemus deos
immortales.”” oi
4Martin, Traces of int. law in Ancient China, loc. cit. p. 72.
5 Cf. Bender, Antikes Volkerrecht, pp. 39 “6.
USE OF HOSTAGES 3909
Prince of Tsin demanded the mother of the Prince of
_ Chi as a guarantee of the latter’s submission and good
_ faith... The practice continued down to comparatively
recent times ; we hear of it in Europe even as late as
the year 1748, when two English peers were sent to
Paris as pledges for the fulfilment of the treaty of Aix-
_ la-Chapelle.
Hostages were usually exchanged when alliances were When and why
established on a basis of equality, or when other kinds δ το.
of treaties were mutually agreed upon, and not merely
dictated by one party or the other. Thus it was agreed
between Perseus and Genthius, 168 B.c., that each of
them should send the other such hostages as were
specified in the text of the treaty. They were also
given to secure the final fulfilment of a union that had
previously been agreed upon between two States, as in
the case of the Sequani and the Helvetii.2 When
hostages were not exchanged, but given only by one of
the States to the other, this circumstance indicated the
absence of strictly equal relationships between them, and
the dependence, in greater or lesser degree, of the one
to the other. Thus at the time of Roman supremacy
and the victorious expansion of her empire, Rome
invariably demanded hostages from other States with-
out sending any in return. In the expedition of
Attalus, king of Pergamum, against the cities which
had joined Achaeus, many of them were compelled to
surrender to him ; he received them on the same terms
as they had enjoyed before, but this time he demanded
hostages.* In 173 B.c. Perseus had requested a confer-
ence with Marcius, and was desirous of being attended
by his entire retinue; but the Roman ambassador
required either that he should come only with three
attendants, or, if with so numerous a band, that he
should give hostages as a guarantee that no treachery
would be used during the conference. Perseus accord-
. Martin, loc. cit. 2 Polyb. xxix. 3.—Cf. Liv. xliv. 23.
3 Caes. Bell. gall. i. 9 ; cf. iii. 23. 4 Polyb. v. 77.
Number
required.
400 USE OF HOSTAGES
ingly sent two of his close friends, whom he had before
despatched as ambassadors. These hostages were de-
manded, says Livy, not so much to receive a pledge
of fidelity, as to make it clear to the allies that the king
did not meet the Roman ambassadors on a footing
of equality. Ambassadors from Antiochus came in
190 B.c. to Publius Scipio, and at the council that was
held various conditions were laid down by the Romans,
who further required, as a pledge of the performance
thereof, twenty hostages to be chosen by themselves.’
Sometimes Rome found herself in a less favourable
position, and was compelled to give hostages without
receiving any. Thus, in connection with the notable
capitulation of the Romans at the Caudine Forks
(321 B.c.), the subsequent ratification of the peace
entered into between the Roman consuls and Pontius,
the leader of the Samnites, was to be guaranteed by the
delivery to the latter of six hundred Roman knights;
and in default of confirmation by the Roman authorities,
the hostages were to suffer death.*
The number of hostages demanded varied consider-
ably from time to time, and naturally depended on the
importance of, and the nature of the issues involved in,
the undertaking, and on the mutual, or unilateral (as
the case may be) distrust or suspicion of the parties
thereto. In the treaty with Antiochus, 188 B.c., twenty
hostages were required.* After the battle of Zama, the
Carthaginians were obliged to give the Romans a
hundred.’ On the surrender of the Carthaginians to
1 Liv. xlii. 39: ‘‘Nec tam in pignus fidei obsides desiderati erant,
quam ut appareret sociis, nequaquam ex dignitate pari congredi regem
cum legatis.”
2Liv. xxxviil. 45: “‘Haec quum pepigerimus, facturos vos ut pro
certo habeamus, erit quidem aliquod pignus, si obsides viginti nostro
arbitratu dabitis....”—Cf. Polyb. xxi. 17.
8 Liv. ix. 5: “... Propter necessariam foederis dilationem obsides
etiam sexcenti equites imperati, qui capite luerent, si pacto non
staretur. tempus inde statutum tradendis obsidibus exercituque inermi
mittendo.”
4Polyb. xxi. 45. 5 Polyb. xv. 18.
ὦν A oe
USE OF HOSTAGES 401
Rome, 149 B.c., the senate restored to them their
liberty and territory on the condition of their sending
three hundred hostages, sons of senators or councillors,
as a guarantee that they would fulfil certain terms to
be subsequently formulated.’ When Carthagena capitu-
lated to Scipio, the hostages numbered over three
hundred.’ In later times a still greater number was
insisted on, as in the case of six hundred demanded
by Caesar.°
All classes of inhabitants—men, women, or children— who chosen as
could be hostages. Among the Carthaginian hostages "8
given to Scipio some were children. These, says Poly-
bius, the Roman general summoned to him one by one,
and, stroking their heads, told them not to be afraid,
for in a few days they would see their parents.* Tacitus
relates that to the Germans the idea of a woman led
into captivity was intolerable ; and hence when the
daughters of illustrious families were delivered as
hostages, the most effective obligation was thereby
engendered.’ Similarly, in the case of nephews de-
spatched to other countries,—for the relationship
between uncles and nephews involved a particularly
esteemed tie of consanguinity.® With the beginning
of the Empire, Rome frequently received women as
hostages. In the case of some communities, says
Suetonius, Augustus required a new kind of hostages,
namely their women ; as he had found from experience
that they cared little for their men when thus delivered.’
a OT ee Fay we. ee Ὁ.
1Polyb. xxxvi. 4. 2Polyb. x. 18.
$Caes. Bell. gall. ii. 15 3 vil. 11.
4Polyb. x. 18: καὶ τοὺς μὲν παῖδας καθ᾽ ἕνα προσαγαγόμενος Kat
καταψήσας θαρρεῖν ἐκέλευε, διότι per’ ὀλίγας ἡμέρας ἐπόψονται τοὺς
αὑτῶν γονεῖς.
5'Tacit. Germ. 8: “...Adeo ut efficacius obligentur animi civi-
tatum quibus inter obsides puellae quoque nobiles imperantur.”
6'Tacit. Germ. 20: “ Quidam sanctiorem artioremque hunc nexum
sanguinis arbitrantur, et in accipiendis obsidibus magis exigunt, tam-
quam [ii] et animum firmius et domum latius teneant.”
7Sueton. Aug. 21: “...novum genus obsidum, feminas, exigere
temptaverit, quod neglegere marum pignera sentiebat.”
2C
402 USE OF HOSTAGES
In earlier times women were in all probability likewise —
received by the Romans, as they themselves undoubtedly
gave such pledges. When Porsena withdrew his troops —
from the Janiculum, and peace was concluded, 508 B.c.,
the Romans gave him hostages, among whom were ©
many maidens. According to Livy’s story, the camp —
of the Etrurians having been pitched near the Tiber, a
young Roman lady named Cloelia, one of these hostages, —
deceiving her guards, swam over the river, amidst the
darts of the enemy, at the head of a number of virgins,
and brought them back all safe to their relations.’
The State receiving the hostages usually specified —
who were to be sent, and sometimes limited their —
age. Members of the royal family,” or senators and
other high functionaries’ thus served as hostages ;
though, occasionally, certain restrictions were made in
this respect. The arrangement with the Aetolians, ©
189 B.c., illustrates several of these points. The Romans
in this case demanded that they should deliver to the
consul forty hostages, not less than twelve or more than —
forty years old, who were to be retained six years, that —
is, during the period agreed upon for the payment of a
certain indemnity ; that the same should be freely chosen
by the Romans, excepting only the Aetolian strategus, —
the hipparch, the public secretary, and those who had —
previously served as hostages in Rome; and, further, ©
that if any died within the aforesaid time, others should —
be sent in their place. In the treaty with Antiochus, —
1Liv. ii, 13: “... Et Cloelia virgo una ex obsidibus, quum castra —
Etruscorum forte haud procul ripa Tiberis locata essent, frustrata
custodes, dux agminis virginum inter tela hostium Tiberim tranavit
sospitesque omnes Romam ad propinquos restituit.”—Cf Virg.
Aen, vill. 651.
2 Polyb. xviii. 39. 3 Polyb, xxxvi. 4.
4 Polyb. xxi. 32 : δότωσαν Αἰτωλοὶ ὁμήρους τῷ στρατηγῷ τετταρά-
κοντα, μὴ νεωτέρους ἐτῶν δώδεκα μηδὲ πρεσβυτέρους τετταράκοντα,
εἰς ἔτη ἕξ, ots ἂν Ῥωμαῖοι προκρίνωσι, χωρὶς στρατηγοῦ καὶ ἱππάρχου
καὶ δημοσίου γραμματέως καὶ τῶν ὡμηρευκότων ἐν Ῥώῃ. καὶ τὰ
ὅμηρα καθιστάτωσαν εἰς Ῥώμην. ἐὰν δέ τις ἀποθάνῃ τῶν ὁμήρων,
ἄλλον ἀντικαθιστάτωσαν.
᾽ ad _
USE OF HOSTAGES 403
| 188 B.c., the twenty hostages demanded by Rome were
to be between the ages of eighteen and forty-five, and
“were to be changed every three years.! By the con-
ditions imposed on Carthage after her defeat at Zama,
the hundred hostages were to be such young men,
_ between fourteen and thirty years of age, as were chosen
_ by the Roman general.’
_ Sometimes their delivery was to be effected immedi- Time of
ately on the ratification of a treaty ; in other cases, at a"
fixed time thereafter. Thus, thirty days was the time
allowed to the Carthaginians for the despatch of three
hundred hostages to Lilybaeum, on the south coast of
Sicily. When Opimius was in Gaul, 154 B.c., he took
Aegitna, defeated the Oxybii and the Deciatae, delivered
their territory to the people of Massilia, and imposed
on the Ligurians the future obligation of giving
hostages to the Massilians at certain fixed intervals.*
When the specified conditions were fulfilled, or good Return of
faith clearly vindicated, the hostages were returned “8°
unharmed to their country. Thus, an embassy from
Philip arrived in Rome, 190 B.c., and set forth to the
senate the loyalty and zeal shown to the Romans by
their king in the war against Antiochus ; whereupon,
apart from other concessions, Philip’s son, Demetrius,
was at once relieved of his position as hostage. Similarly,
at the request of Spartan ambassadors, the Lacedae-
‘monian hostages (except Armenes,-son of Nabis) were
released. Again, after the surrender of Carthagena to
Scipio, 209 B.c., the Roman general exhorted the
hostages to be of good cheer ; and he advised them to
write to their countrymen that they were safe and well,
and that they would all be restored unharmed to their
homes, as soon as the Roman alliance was accepted.°
1 Polyb. xxi. 45.
2Polyb. xv. 18: ὁμήρους δοῦναι πίστεως χάριν ἑκατὸν ods ἂν
προγράψῃ τῶν νέων ὁ στρατηγὸς TOV’ Ρωμαίων, μὴ νεωτέρους τετταρεσ-
᾿ καΐδεκα ἐτῶν μηδὲ πρεσβυτέρους τριάκοντα.
8 Polyb. xxxvi. 4. 4Polyb. xxxiii. 11.
5 Polyb. xxi. 2.—Cf. Liv. xxxvi. 35. ὁ Polyb. x. 18.
2C2
Hostages in
a truce or
sponsio,
404. USE OF HOSTAGES
When the time for return was not determined before-
hand, hostages might remain many years in the power
of the foreign State; as, for example, in the case of
Demetrius, the son of Seleucus IV. Philopator, who
was sent as a child to Rome, as a pledge of the king’s
good faith, and remained there till he was twenty-three
years of age. Ifa hostage was given as a guarantee of
an individual’s personal fidelity, it was held that on
the death of the latter the restitution of the hostage
should at once be effected, as he could not be detained
as a similar pledge to ensure the good faith of the
successor of the deceased. Representations to this
effect were made to the Roman senate by Demetrius
who, on the death of his father and the succession of
his uncle Antiochus Epiphanes, urged that his detention
was after that event unjust.’ Suetonius states that
Augustus always gave ample opportunities to foreign
States of getting back their hostages whenever they
desired it. | |
When hostages were received by a commander in
reference to the negotiation for a truce or a sponsio,
they were to be returned unharmed if such engage-
ment was not afterwards ratified by his government.
In the conclusion of the four months’ armistice between
Flamininus and Philip, 197 B.c., it was expressly laid
down that if the agreement was not confirmed by
Rome, both the money and the hostages delivered by
Philip were to be duly restored.* But if a sponsio was
entered into between the victor in the field and the
vanquished party on terms which were necessarily to
the advantage of the former, the repudiation of the
engagement by the government of the latter frequently
entailed the infliction of death on hostages who had ~
1Polyb. xxxi. 12: δοθῆναι γὰρ ὑπὸ Σελεύκου τοῦ πατρὸς τῆς
ἐκείνου πίστεως ἕνεκεν, ᾿Αντιόχου δὲ μετειληφότος τὴν βασιλείαν οὐκ
ὀφείλειν ὑπὲρ τῶν ἐκείνου τέκνων ὁμηρεύειν.
2Sueton. Aug. 21: “... potestatem semper omnibus fecit, quotiens —
vellent obsides recipiendi.”
3 Polyb. xviii. 39.
"»"» a 4
USE OF HOSTAGES 405
been given to guarantee the compact. In the Caudine
_peace—Pontius, the Samnite general, expressly stipulated,
in the capacity of a conqueror, that the six. hundred
Roman knights delivered to him were to forfeit their
lives if the engagement were not fulfilled,—‘ sexcenti
equites imperati, qui capite luerent, si pacto non
=staretur. ἢ
If a formal undertaking was violated, hostages that ‘Treatment of
_had been given as security were regarded as prisoners "8
οὗ war, and sometimes subjected to measures of an
extreme and merciless character.? Similarly, if they
were surrendered after they had unjustifiably escaped
_ from those who held them. When war broke out,
hostages of the enemy were considered prisoners. of
war, and afterwards classed with the ordinary captives
in triumphal processions,—as in the case of Titus
Quinctius’ triumph, 194 8.0.
Hostages of a foreign country given to a State which
_ was afterwards engaged in hostilities with a third power
were liable to be captured and treated as prisoners of
war by the latter. They did not enjoy, in this respect,
the absolute immunity of accredited ambassadors.
_ Thus, hostages of Cotys, King of Thrace, had been
sent to Perseus with whom Rome was at war; they
were taken by the Romans, and afterwards admitted to
ransom on the same footing as ordinary enemy captives.*
Generally speaking, however, in-the absence of these
circumstances, hostages were deemed inviolable, and in
Rome were treated with marked kindness and con-
sideration. If there was no fear of their escape, they
enjoyed great freedom, and even had access to the
highest ranks of Roman citizens.’ Scipio’s conduct
Oe a ae ΨΥ eS en 00} ne ae Ai.
tes a τος a
LLiv. ix. 5. 2Cf. Caes. Bell. gall. i. 31.
8 Liv. xxxiv. 52: “...et ante currum multi nobiles captivi obsides-
que, inter quos Demetrius, regis Philippi filius, fuit et Armenes,
Nabidis tyranni filius, Lacedaemonius.”
* Liv. xlv. 42.
5 Cf. Liv. xlii. 6 (on the occasion of an embassy to Rome, 173 B.C.,
despatched by Antiochus, to renew the treaty of alliance that had
Escape of
hostages,
Promise
without
religious
formula.
406 RELIGIOUS FORMULA IN PROMISE
towards his hostages offered a striking contrast to their
brutal treatment by the Carthaginians,’ and other
nations ; thus Ambiorix complained to Caesar that the
Aduatuci kept his own son and his nephew, who had
been sent as hostages, in slavery and in chains.”
If hostages escaped with the connivance of their own
government, such violation of faith was held to be a
just ground for war, or for retaliation in any other
way that was possible. But if the State was not a
party to the act, the fugitives were alone guilty, and
were liable to extradition, and extreme punishment. —
After Cloelia and the other Roman maidens had made
good their escape, Tarquinius accused the Romans οὗ
perfidy,—whereupon the Roman consul cleared his —
countrymen of the charge of treachery by proving that —
the hostages had fled on their own initiative, and not at
the instance of their parents.* Livy adds, in his version
of the story, that Lars Porsena, the King of Clusium,
demanded her surrender, and promised to return her —
and half the number of the hostages as a reward for her
valour ; and that when she was sent back, he faithfully —
carried out his promise.*
A mere promise without being supplemented and
confirmed by a fitting religious formula was not con-
been made with his father): “ΕΔ merita in se senatus fuisse, cum —
Romae esset, eam comitatem iuventutis, ut pro rege, non pro obside —
omnibus ordinibus fuerit.” (Such had been the kindness of the ©
senate towards him when he was at Rome, such the courtesy of the
young men, that he was treated, among all ranks of inhabitants, not —
as a hostage, but as a sovereign.) |
1Polyb. x. 18. 2Caes. Bell. gall. v. 27,
ὁ Dion. Hal. ν. 33: Ἔνθα δὴ πολὺς ὁ Ταρκύνιος ἦν ἐπιορκίαν τε
καὶ ἀπιστίαν τοῖς “Ῥωμαίοις ἐγκαλῶν... ; ᾿Απολογουμένου δὲ τοῦ
ὑπάτου καὶ τὸ ἔργον ἐξ αὐτῶν λέγοντος. γεγονέναι τῶν παρθένων,
δέχα τῆς ἐπιτατῆς τῶν πατέρων, καὶ τὸ πιστὸν οὐκ εἰς μακρὰν
παρέξεσθαι tana ὑπὲρ τοῦ μηδὲν ἐξ ἐπιβουλῆς ὑφ᾽ ἑαυτῶν —
πεπρᾶχθαι.. ᾿
4 Liv. ii. 13. —(We are not here concerned with the incongruities —
of the Roman annalists in reference to this story ; its substance alone —
suffices to indicate the general practice of more ancient times.)
RELIGIOUS FORMULA IN PROMISE 407
“sidered to be necessarily binding. Thus, after the
‘ defeat of the Thebans by the Plataeans, 431 B.c., the
_ moreover, they denied that they took an oath."
The literal fulfilment of an engagement or oath was The letter
| sometimes
the Plataeans did not admit they ever promised to
cme to an agreement after due negotiations; and,
5
4 . . 4 ὁ δ .
sometimes made to override the spirit and implied Prvaited over
objects of an agreement. For example, Paches, after the rea!
intention.
former complained of the slaughter of prisoners; but
restore the captives at once, but only if they could
;
i
his pursuit of Alcidas (427 B.c.), landed at Notium,
the port of Colophon, at the invitation of an anti-
Persian faction which had been driven out. Paches Action of
then proposed to Hippias, the commander of the“
_ Arcadians, that they should hold a conference, under-
taking himself, if they could not come to terms, to
_ put him back in the fort safe and sound. In the
meantime Paches took the fort, and slaughtered the
Arcadians and barbarians he found there. ‘“ He then
conducted Hippias into the fort according to the agree-
ment,” says Thucydides, “and when he was inside,
seized him and shot him dead with arrows.”* Again,
a provision in a treaty for the restoration of cities
captured during the war was not regarded as including
those cities which had voluntarily capitulated. Thus,
at the Peace of Nicias, 421 B.c., concluded on the Peace of
basis of a mutual restitution of prisoners and places ‘'**
taken during the war, Thebes retained Plataea on the
ground that it had been voluntarily surrendered, and
Athens, on a similar plea, was allowed to hold Nisaea,
Anactorium, and Sollium. In the treaty between Treaty between
Rome and the Aetolians, 197 B.c., concluded with the cae -
object of breaking the power of Macedonia, it was pro-
vided that all the movable property taken as booty
1Thuc. ii. 5: Πλαταιῆς δ᾽ οὐχ ὁμολογοῦσι τοὺς ἄνδρας εὐθὺς
ὑποσχέσθαι ἀποδώσειν, ἀλλὰ λόγων πρῶτον γενομένων ἤ τι ξυμ-
᾿ βαίνωσιν, καὶ ἐπομόσαι οὔ φασιν.
2'Thuce. iii. 24: καὶ τὸν Ἱππίαν ὕστερον ἐσαγαγὼν ὥσπερ ἐσπεί.
σατο, ἐπειδὴ ἔνδον ἦν, ξυλλαμβάνει καὶ κατατοξεύει.
When a treaty
could be
broken.
Where two
treaties are
antagonistic
to each other.
408 WHEN TREATIES REPUDIABLE
should go to the Romans, the lands and conquered
towns to the Aetolians,—* ut belli praeda rerum, quae
ferri agique possent, Romanos, ager urbesque captae
Aetolos sequerentur.”* After the defeat of Philip,
the Aetolians, through their representative Phaeneas,
claimed the Thessalian cities in accordance with the
terms of this engagement. To rebut the claim
Quinctius argued that, in the first place, the Aetolians,
on deserting the Romans, and making peace with
Philip, had themselves annulled the conditions of the
treaty; and, in the second place, even supposing that
the argument still retained some validity, the clause,
on which the claim was based, spoke only of cap-
tured cities—whereas the states of Thessaly had sur-—
rendered of their own free will.” Commenting on
this reply of Quinctius, Laurent observes: “Un
disciple de Machiavel n’aurait pas mieux dit,”*—as
though forensic arguments of a subtle and evasive
character were unknown in more modern and more
enlightened times.
Both in Greece and in Rome it was held that there
were certain circumstances under which it was per-
missible to break a treaty. If, for example, there were
two treaties relating to the same or similar objects,
and if such treaties eventually proved to be really
antagonistic to each other or substantially inconsistent
as to their manifest intentions, then the more private
one and less general in nature could be legitimately —
discarded in favour of the solemn and more general
convention: καὶ πότερα δεινότερον ἂν ποιήσετε ; τὰ κατ᾽
ἰδίαν πρὸς Αἰτωλοὺς ὑμῖν συγκείμενα δίκαια παριδόντες ; ἢ
1 Liv, xxxiil. 12.
*Liv. xxxiii. 13: “Vos, inquit, ipsi, Quinctius, societatis istius
leges rupistis, quo tempore relictis nobis cum Philippo pacem fecistis.
Quae si maneret, captarum tamen urbium illa lex foret. Thessaliae
civitates sua voluntate in dicionem nostram venerunt.”
8 Hist. du dr. des gens, vol. ill. p. 195.
TREATIES AMENDING OTHERS 409
Ta πάντων τῶν Ἑλλήνων ἐναντίον ἐν στήλῃ γεγονότα καὶ
᾿ καθιερωμένα ;*
Again, if a treaty entered into should afterwards be Treaty
_ discovered to exact or involve a hostile attitude to mplyis
_ friendly or confederate States, it could be cancelled. προ ἡ τ
«Ὁ you consider it a duty,” argued Lyciscus, the ΠΡ
_ Acarnanian envoy at Sparta, “to keep faith with
_ friends? Yet it is not so much a point of conscience
_ to confirm written pledges of a faith, as it is a violation
of conscience to make war on those who preserved
_ you,’ —xai ἡ οὐχ οὕτως ὅσιόν ἐστι TO Tas ἐγγράπτους πίστεις
᾿ βεβαιοῦν, ὡς ἀνόσιον τὸ τοῖς σώσασι πολεμεῖν, ---αὐἀ this,
he says, is what the Aetolians have actually come to
_ demand.
᾿ Thirdly, if the surrounding circumstances under If complete
which a treaty was concluded should afterwards undergo μεῖναν. τὐ δ να:
an entire change, then, if strict adherence to the engage-
ment would be obviously detrimental to the policy of
the State, the treaty might, by virtue of supreme
necessity, be annulled. “If the circumstances are the
same now,” the argument of Lyciscus continues, ‘‘as
_ at the time when you made alliance with the Aetolians,
_ then your policy ought to remain on the same lines.
That was their first proposition. But if they have been
entirely changed, then it is fair that you should now
deliberate on the demands made to you as on a matter
entirely new and unprejudiced.” εἰ μὲν ὅμοια εἴη τὰ
πράγματα νῦν καὶ καθ᾽ ods καιροὺς ἐποιεῖσθε τὴν πρὸς τούτους
συμμαχίαν, διότι δεῖ μένειν καὶ τὴν ὑμετέραν αἵρεσιν ἐπὶ τῶν
ὑποκειμένων. ταῦτα γὰρ ἐν ἀρχαῖς εἶναι. εἰ δ᾽ ὁλοσχερῶς
ἠλλοίωται, διότι δίκαιόν ἐστι καὶ νῦν ὑμᾶς ἐξ ἀκεραίου βουλεύ-
εσθαι περὶ τῶν παρακελευομένων.
On some occasions, in order to avoid deliberate Treaties for
. . . . endi
infraction of a treaty by one of the contracting parties, aesee tat
: conventions.
1 Polyb. ix. 36. (Which will be the graver breach of obligation,
argues Lyciscus, to neglect a private arrangement entered into with
the Aetolians, or a treaty that has been inscribed on a column and
‘solemnly consecrated in the eyes of the whole of Greece ?)
. Polyb. ix. 36. 8 Polyb. ix. 37.—Cf. ibid. ix. 32.
410 COMPROMISE CLAUSES
a subsequent treaty was specially entered into to supple-
ment or modify the terms of the previous one. Indeed,
we find express clauses sometimes inserted in a treaty
providing for its later amendment should the parties
thereto mutually consent. This, of course, in itself
implies a distinct recognition on the part of States that
a party to an agreement cannot liberate itself from its
obligations, or modify its stipulations without obtaining
Treaty between in a formal manner the express consent of the other
Spats" signatories. Thus, in the treaty of peace between
Athens and Lacedaemon (421 B.c.), there is a clause to
the effect that if anything whatever be forgotten on one
side or the other, either party may, without necessarily
violating their oaths, take honest counsel and alter the
provisions in such a way as may seem acceptable to
both parties,—ei dé τι ἀμνημονοῦσιν ὁποτεροιοῦν καὶ ὅτου
πέρι, λόγοις δικαίοις χρωμένοις εὔορκον εἶναι ἀμφοτέροις ταύτῃ
μεταθεῖναι ὅπῃ ἂν δοκῇ ἀμφοτέροις."
Alliance In the alliance between the same States (421 B.c.) it
te a Ὦ stipulated in the fifth clause that if the parties agree
aon that anything shall be added to or taken away from the
treaty of alliance, whatever it may be, this may be
done without violation of their oaths. “Hv dé τι δοκῇ
Λακεδαιμονίοις καὶ ᾿Αθηναίοις προσθεῖναι καὶ ἀφελεῖν περὶ
τῆς ξυμμαχίας, ὅ τι ἂν δοκῇ, εὔορκον ἀμφοτέροις εἶναι."
Alliance Again, in the alliance between Athens, Argos, Elis, and
Are, Argos, Mantinea (420 B.c.), it is provided that these cities may
τ χείβορνη make any amendment in the treaty that they may think
antinea.
desirable, provided there is common agreement thereon.
Ἐὰν δέ τι δοκῇ ἄμεινον εἶναι ταῖς πόλεσι ταύταις προσθεῖναι
πρὸς τοῖς ξυγκειμένοις" ὅ τι δ᾽ ἂν δόξῃ ταῖς πόλεσιν ἁπάσαις
κοινῇ βουλευσαμέναις, τοῦτο κύριον εἶναι.
Compromise Not infrequently do we find in treaties certain clauses
efauses in __ which are somewhat of the nature of our modern com-
promise clauses (‘clauses compromissoires’), 6.9. for
the seemingly compulsory determination of disputes
by pacific means. ‘Thus the fourth article of the treaty
1Thuc. v. 18, *Thuc, vi. 23. 3 Thuc. v. 47.
Teeny ta
ROMAN ATTITUDE TO CONVENTIONS 411
between the Lacedaemonians and their allies on the
_ one part, and the Athenians and their allies on the
_ other, 421 B.c., after stipulating that the signatories
shall not be allowed to bear arms to the injury of one
another in any way, lays down that any controversy
that may arise between them shall be settled by oaths,
and by such other legal means as they may agree on.!
The attitude of Rome to international treaties varied Attitude of
according as they were concluded in the first period of Smet?
her history or in the second. In the case of the first ‘reaties.
a greater measure of reciprocity obtained, as well as a
more effective recognition of the juridical personality
and equality of States. In her second epoch, with the
rapid extension of empire and absorption of foreign
countries, the basis of equality gave way very often
to the relationship of sovereign and dependent, strict
reciprocity of treaty stipulations being replaced by a
dictatorial insistence of stated conditions; so that
in the end, as Mommsen observes, the formal ex-
pression of the bilateral character of treaties came to
be eliminated.*
But apart from this process of deliberate subjection
of peoples—and there were numerous relationships
other than this—the preceding remark does not apply
in its full extent. The Roman treaty possessed the Roman treaty
form of a juridical act, and produced bilateral obligations κει, —
of a legal nature. No doubt divers treaties were from
time to time violated by the Romans in their unpre-
cedented position of lords and conquerors of the world, Fidelity to
but many were duly observed by them, even if they “*seme"™
operated to their own disadvantage. Thus the pro-
visions in the alliance with the Sabines respecting the
alternate election of the king were fulfilled on both
sides. ‘The treaty between Spurius Cassius and the
Latin towns was duly executed at the time of the taking
1Thuc. v. 18: Ἢν δέ τι διάφορον i πρὸς ἀλλήλους, δικαΐῳ
χρήσθων καὶ ὅρκοις, καθ᾽ ὅ τι ἂν ξυνθῶνται.
5 Rom. Staatsr. vol, iii, pt. i. p. 666.
Cases of non-
observance,
Juridical
subtlety.
Reasons
usually
advanced for
breach.
412 JURIDICAL BASIS
of Antium, when an impartial division of the conquest
was made between the Romans, the Latins, and the
Hernicans (493 B.c.).' The forty years’ truce between
Rome and Veii (473 B.c.) was not violated. And many
other examples can be quoted of the Romans’ fidelity
to engagements,—though they would for the most part
be drawn confessedly from the earlier history. On the
other hand, there are cases, it must be admitted, of
their non-observance of treaties. (But are such breaches
confined exclusively to antiquity?) The subtle spirit
of formalism in the Roman intellect, the forensic
cunning born of habits of litigation, the attachment to
and insistence on extreme refinements of expression in
legal formulae, with the consequent development of
ingenious methods of evasion,—all these factors (not to
mention a variety of other circumstances) co-operated
effectively to secure in international conventions such
provisions as were designedly made ambiguous or such
as gave rise, through any other defective or obscure
statement, to conflicting interpretations, or to seemingly
inconsistent intentions on the part of the signatories.
In such cases, therefore, the Romans found a ready
means of escape; though, by way of admitting their
subjection to the sovereignty of law and the sanction
of contractual obligations, they invariably advanced, in
support of their action, ostensibly juridical reasons. And
so we constantly get the patriotic historians’ eulogy of
the unexampled fidelity of their government ;” but this
eulogy usually results from a comparison with the
conduct of other nations ;—and in the case of such
comparison the Romans, in truth, do not suffer. The
observations of a modern Italian writer already referred
to, M. Baviera, are almost of the same tenour. He
points out how the violation of engagements by the
Romans was always based on juridical reasons, on some
1Cf. Dion, Hal. vi. 95.
2Cf. A. Rivier, Introduction au droit des gens (Hamburg, 1891),
p. 251: “Les récits des historiens qui portent aux nues la fidélité des
Romains sont sujets 4 caution.” ee
PROCEEDINGS IN LATER TREATIES 412
4
_ pretext, perhaps, or cavil—if one prefers to say so—
ΝᾺ always founded on conflicting interpretations of an
_ ambiguous clause, on the absence of a certain essential
formality, on the involved infringement of a legal
principle. “...E la rottura ἃ rappresentata sempre
da un motivo giuridico, un pretesto, un cavillo se
_ vogliamo, ma poggiato sul conflitto di interpetrazione
di una clausola ambigua, sulla mancanza di una for-
_ malita, sulla violazione di un principio di diritto.””
_ The same writer refers to the Caudine convention
_ annulled by the Romans,—an act of bad faith, be it
_ admitted; but the Roman juridical theory, he main-
tains, justified it on the ground that the conclusion
of a treaty without the approval of the people could
_ not be binding. It has already been shown, moreover,
_ that in the case of such unratified sponsiones, the recog-
᾿ς nized legal principle of deditio was put into operation,
80 that those who bound themselves as sponsors should
alone atone for their acts. And this principle, it is to
be remembered, was not invoked exclusively by the
Romans as a means of evading their responsibility ;
for such was the accepted practice of States in general
at that time.
To bring to a close the consideration of the form Order of _
and significance of the later treaties of Greece and froceedings in
Rome, it will be well to state briefly the usual order of the later
_ of proceedings adopted in their conclusion.
In the case of Greece, as, for example, in the
establishment of alliances, there was, first of all, the
intervention of the herald to get permission to hold Function of
negotiations, or to announce their commencement. somes
Then there were the preliminary proposals, the over- Overtures by
tures,—ovuBacw or συμβατήριος Aoyos*—conveyed by ΝΣ
the ambassadors. In case of war a truce or armistice
was agreed upon. Deliberations in the public assem- Deliberations.
blies, sometimes (as has already been pointed out) in
1 Archivio Giuridico (1898), p. 485.
2Thuc. v. 76; cf. Egger, Traités publics, Ῥ. 11.
Exchange of
letters.
Drafting.
Examination
by assembly.
Decree of
acceptance or
rejection,
Exchange of
ratifications.
Solemn oaths.
Invocation.
Exchange of
official copies.
Decrees
assuring
execution.
Records
deposited.
Festival to
commemorate
alliance or
peace.
414. PROCEEDINGS IN LATER TREATIES
private committees, followed. Frequently, letters were
exchanged between the parties (ἐπιστολαί, γράμματα,
epistolae, litterae), especially official declarations, —
decrees (ψηφίσματα) of the assemblies of the people,
e.g. in Athens, of the ἐκκλησία, or elsewhere of princes
(διαγράμματα). After the final drafting of the various
clauses and examination thereof by the assembly, there
was passed a decree of acceptance or rejection, as the
case might be; if the former, there followed official
promulgation, and exchange of ratifications, ὁμολογίαι.
Solemn oaths were taken to ensure the due fulfilment
of all the stipulations ; and the gods were invoked to
witness the engagement (as in the case of the earlier
treaties,—though in less elaborate form). Official copies —
were then exchanged, containing the public seals of the
States concerned, and sometimes also the private seals
of the plenipotentiaries. Decrees were, as a rule,
passed assuring the execution of the treaty by means
of certain political or military measures. Finally, the
acts were inscribed on bronze or marble tablets (στῆλαι)
and deposited in temples or public buildings set apart
for the purpose. And a copy of this was occasionally
sent to third States, by way of an additional guarantee
of the observance of the compact.
To commemorate the alliance or peace an annual
festival was not uncommonly held, as Isocrates states
in connection with a peace between Athens and Sparta.”
Such general assemblies undoubtedly had an excellent
effect in regard to the maintenance of peace, as is well
pointed out by the same orator: ‘‘ Now those who
established the great festivals are justly praised for
handing down to us a custom which induces us to
1'The difference between the γράμμα and the διάγραμμα is by no
means always observed. On the use of the word γράμμα, cf. Diod.,
xviii. 58. (“He δὲ καὶ rap’ ᾿Ολυμπιάδος αὐτῷ γράμματα, δεομένης
καὶ λιπαρούσης βοηθεῖν τοῖς βασιλεῦσι καὶ ἑαυτῃ.)
2 Antidosis, 110: ... ὥσθ᾽ ἡμᾶς μὲν ἀπ’ ἐκείνης τῆς ἡμέρας θύειν
αὐτῇ καθ᾽ ἕκαστον τὸν «ἐνιαυτὸν ὡς οὐδεμιᾶς ἄλλης οὕτω τῇ πόλει
συνενεγκούσης....
Η
So
PROCEEDINGS IN LATER TREATIES 415
_ enter into treaties with one another, to reconcile the
hostile feelings that may exist amongst us, and to
ond i
7
A
ol Se
> we
“UJ
Ἃ
_ assemble in one place ; and besides, by taking part in
_ the common prayers and sacrifices, we are reminded of
_ the original tie of kinship between us, and become more
_ kindly disposed towards each other for our future
_ relationships, and so we renew old friendships and
establish new ones.’”!
_ We hear also of decrees passed in honour of those
who had faithfully fulfilled their obligations.
In reference to the record of treaties, we ie often Additional
: find legends on coins as an additional form of official
attestation of alliances and other treaties concluded
between States. There are numerous extant medals of
Asiatic cities bearing inscriptions to this effect : ‘ Alliance
(ὁμόνοια) of the inhabitants οὗ... and those οἵ...
together with a representation of the guardian deities of
the respective communities, sometimes even extending
hands to each other ; as, for example, in the alliance
between the Milesians and the Smyrnaeans; between
Hierapolis and Ephesus; between Coliaeum and
Ephesus ; εἴς."
Now as to the treaties of Rome concluded in the Later Roman
time of the Republic. First there was a vote by the
senate which was followed by a ratification by the people. senate.
Sometimes the first step in the proceedings was taken
1Tsoc. Panegyr. 43: Τῶν τοίνυν τὰς πανηγὺρεις καταστησάντων
δικαίως ἐπαινουμένων, ὅτι τοιοῦτον ἔθος ἡμῖν παρέδοσαν ὥστε σπει-
σαμένους καὶ τὰς ἔχθρας τὰς ἐνεστηκυίας διαλυσαμένους συνελθεῖν
εἰς ταὐτὸν, καὶ μετὰ ταῦτ᾽ εὐχὰς καὶ θυσίας κοινὰς ποιησαμένους
ἀναμνησθῆναι μὲν τῆς συγγενείας τῆς πρὸς ἀλλήλους ὑπαρχούσης,
εὐμενεστέρως δ᾽ εἰς τὸν λοιπὸν χρόνον διατεθῆναι πρὸς ἡμᾶς αὐτοὺς,
καὶ τάς τε παλαιὰς ξενίας ἀνανεώσασθαι καὶ καινὰς ἐτέρας ποιή-
σασθαι.... Cf. Plut. Lycurg. 1.
2Cf. A. Maury, Histoire des religions de la Gréce antique, 3 tom.
(Paris, 1856-9), vol. ii. p. 11, note 1.
8Cf, A. Weiss, Le droit fétial et les fétiaux (in France judiciaire,
Paris, 1882-3), on the relationship of the fetial magistrates to the
conclusion of treaties,
416 PROCEEDINGS IN LATER TREATIES
by the general. Thus, in the case of the treaty
concluded with Antipater, chief of the embassy of
Antiochus, 191 B.c., Livy relates that the ambassadors
besought the conscript fathers to ratify by their
authority the peace granted by their general, Lucius.
Scipio, with the conditions on which he had given it ;
whereupon the senate voted that the peace should be
observed ; and the people, a few days later, ordered it.
*“‘Legati Antiochi, vulgato petentium veniam more,
errorem fassi regis, obtestati sunt Patres conscriptos,
ut pacem datam a L. Scipione imperatore, quibus.
legibus dedisset, confirmarent auctoritate sua. et senatus.
eam pacem servandam censuit, et paucos post dies
populus iussit.” Ὁ
Usually the ratification was made by the people, and
the treaty voted, by a plebiscite, in the ‘ comitia tributa.”® _
After the ratification by the people, the senate
Commissioners appointed ten commissioners, especially so in more
appainted difficult cases, to assist the general in the negotiations,,
negotiations. and to draw up the terms of peace. Thus, after the
defeat of Philip in Thessaly by Titus Quinctius, 197
B.c., Macedonian ambassadors arrived in Rome to
treat for peace. They were conducted out of the city
to the ‘ villa publica,’ accommodation was provided for
them, and an audience of the senate was given them in
the temple of Bellona. On the ambassadors stating
that their king would accept any conditions the senate
would prescribe, it was decreed, in accordance with long-
established practice, that ten ambassadors should be
appointed, and that in council with them the general,
Titus Quinctius, should grant terms of peace to Philip,
—‘decem legati more maiorum, quorum ex consilio T.
Quinctius imperator leges pacis Philippo daret, decreti.”*
The generals, assisted by commissioners, were, as a
rule, charged to make arrangements for the cession of
territory or for the delimitation of boundaries.
1 Liv. xxxvii. 55. 2 Liv. xxix. 12; XXX. 43 3 XXXIll. 25.
8 Liv. xxxiii, 24. Cf. xxxvii. 55.
PROCEEDINGS IN LATER TREATIES 417
treaties was celebrated by religious ceremonies, the
other contracting party or parties being represented in
_ Rome by ambassadors.’ If no foreign envoys were
_ present, a number of fetials (at least two) were de-
_ spatched by the senate to the country concerned in the
_ transaction to officiate in its name. One of these fetials
_ acted as the ‘ pater patratus,’ the other carried a rod, as
_ the symbol of peace and inviolability. They also took
with them the sacred herb, the sacred vessels, and the
_ Sceptre of Jupiter Feretrius* (this name being probably
_ derived from ferire, in reference to his guardianship of
treaties and oaths). Having arrived at the foreign
_ territory, the pater patratus recited the dispositions of
_ the treaty, and then pronounced a formula— fetialium
_ praefatio’*—given by Livy.‘ The pater patratus, states
_the Roman historian, is appointed ‘ad iusiurandum
_ patrandum,’ that is, ‘to ratify the treaty ; and he goes
through it in a great many words which, being
_ expressed in a long set form, it is not necessary to
repeat. After setting forth the conditions, he says:
_* Hear, O Jupiter; hear, O pater patratus of the Alban
_ people, and ye, Alban people, hear. As those condi-
1 Liv. Xxxvil. 55.
2 Liv. i. 243 xxx. 43: “ Fetiales cum in Africam ad foedus ferien-
dum ire iuberentur, ipsis postulantibus senatus consultum factum est
in haec verba, ut privos lapides silices privasque verbenas secum
_ferrent; uti praetor Romanus imperaret, ut foedus ferirent, illi
‘praetorem sagmina poscerent. herbae id genus ex arce sumptum
fetialibus dari solet.” (203 B.c.).
3Sueton. Claud. 25.
*Liv. i. 24: “Pater patratus ad ius iurandum patrandum, id est
sanciendum fit foedus, multisque id verbis, quae longo effata carmine
non operae est referre, peragit. legibus deinde recitatis, ‘ audi,’ inquit,
‘luppiter, audi, pater patrate populi Albani, audi tu, populus
Albanus ; ut illa palam prima postrema ex illis tabulis cerave recitata
sunt sine dolo malo, utique ea hic hodie rectissime intellecta sunt,
illis legibus populus Romanus prior non deficiet. si prior defexit
publico consilio dolo malo, tum tu, ille Diespiter, populum Romanum
sic ferito, ut ego hunc porcum hic hodie feriam, tantoque magis ferito,
quanto magis potes pollesque.’”
As in the case of other nations, the conclusion of Religious
Sacrifice.
Fetials in
concluding
treaties under
the Empire.
Oath as to
fulfilment of
conditions,
Signatures.
418 PROCEEDINGS IN LATER TREATIES
tions, from first to last, have been publicly recited from
those tablets without deliberate fraud, and as they have
been quite correctly understood here to-day, from those
conditions the Roman people will not be the first to
swerve. If they are the first to violate any of them
deliberately by public concert, then on that day, O
Jupiter, do thou strike down the Roman people, as I shall
here this day strike down this pig; and do thou strike
them all the more as thou art more powerful.’ Saying
these words the pater patratus struck down the victim,
which was usually a pig (as before mentioned), with his
consecrated stone.
Though under the Empire the college of fetials had
fallen into decay, their traditional functions were by no
means forgotten. The prominent part they had played
in the conclusion of treaties was assumed very often by
the emperors in person. Thus it is related of Claudius
that he concluded treaties with foreign princes in the
forum, by sacrificing a sow and using the formula which
in former times had been employed by the fetials,—
“cum regibus foedus in foro icit porca caesa ac vetere
fetialium praefatione adhibita.” } i
After the sacrifice, the generals and magistrates took
an oath, on the sceptre of Jupiter, that they would
strictly fulfil the conditions agreed to,—‘‘ sua carmina
Albanis suumque iusiurandum i suum dictatorem
suosque sacerdotes peregerunt.”’
Then the fetials who aie over this ceremonial
signed the document embodying the treaty,® and con-
veyed it to Rome. After this ensued the deliberations
of the senate and of the people, who, in any case,
reserved to themselves the right of definitive ratification
or rejection. In case of approval, the whole college of
fetials took a solemn vow to see to the faithful perform-
ance of the settled provisions, and to do everything
possible to prevent any infringements thereof.‘
1Sueton. Claud. 25. Τὰν. 1. 24.—Cf. Cic. Ad Fam. vil. 12.
3 Liv. 1x. 5.
4Dion. Hal. ii. 72 : καὶ τὰ περὶ τὰς συνθήκας ὅσια φυλάττειν.
PROCEEDINGS IN LATER TREATIES 419
q Finally, the dispositions of the treaty were engraved Records
‘on a bronze or marble tablet, which was deposited in “Po
the Capitol (or in certain temples) in the ‘aedes fidei
" pepe Romani.’ ἢ
ICE. Polyb. iii. 26: τούτων δὴ τοιούτων ὑπαρχόντων, καὶ τηρου-
ip νων TOV συνθηκῶν ἔτι νῦν ἐν χαλκώμασι παρὰ τὸν Δία τὸν
᾿ «απιτώλιον, ἐν τῷ τῶν ἀγορανόμων ταμιείῳ. Dion. Hal. iii. 33:
καὶ τῶν ὁμολογιῶν στήλας ἀντιγράφους θέντες ἐν τοῖς ἱεροῖς (in
‘the treaty with the Sabines, the tablets were deposited in temples) ;
ef, Dion. Hal. iv. 26.
END OF VOL. 1.
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