Skip to main content

Full text of "The international law and custom of ancient Greece and Rome"

See other formats


THE INTERNATIONAL LAW AND CUSTOM 
OF ANCIENT GREECE AND ROME 



MACMILLAN AND CO., LIMITED 

LONDON BOMBAY CALCUTTA 
MELBOURNE 

THE MACMILLAN COMPANY 

NEW YORK BOSTON CHICAGO 
ATLANTA SAN FRANCISCO 

THE MACMILLAN CO. OF CANADA, LTD. 

TORONTO 



THE INTERNATIONAL 
LAW AND CUSTOM OF 
ANCIENT GREECE 
AND ROME 



BY 

COLEMAN PHILLIPSON 

M.A., LL.D., LITT.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 




MACMILLAN AND CO., LIMITED 

ST. MARTIN'S STREET, LONDON 

191 1 




GLASGOW : PRINTED AT THE UNIVERSITY 
BY ROBERT MACI.EHOSE AND CO. LTD. 



DEDICATED 
TO 

THE MEMORY OF MY MOTHER 



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. 1 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 



viii 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 I 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 
Qjuellen^ 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 resume 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 



xii 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, I 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 $ist, 1910. 



CONTENTS OF VOL. I 

BIBLIOGRAPHY 

PAGE 

I. Ancient writings - I 

II. Other ancient documents inscriptions, etc. 4 

III. Modern writers dealing with several matters con- 

sidered in the present work - 5 

IV. Modern writers dealing with fewer questions, or 

with special topics 12 

V. Other writers referred to - 24 

CHAPTER I 
THE GREEK CITY-STATE SYSTEM 

Ancient law of nations denied 27 

Modern and ancient law 27 

Autonomous city-states - 28 

City-states and Hellenic circle 30 

Autonomous States and sovereignty - 32 

Exclusiveness and rivalry - 34 

Leagues and associations - 36 

External policy of the Greeks - 39 

Attitude towards foreigners - 40 
State interest --------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 Greeceland 

Rome - 50 

Juridical nature of rules - 51 

Public and private law - 52 

' Universal* and * particular' law 53 

Written law and law of mankind - 54 

Natural and conventional law - 54 

Moral law and positive law - 55 

Moral law and divine law 56 

Positive law and natural law - 57 

General or common law 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. I US NATUR4LE, 
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 

lus civile and ius gentium 69 

lus privatum and ius honorarium 69 

Law public, private, sacred - 7 

The ius gentium origin and meaning 7 

Ius gentium used in various ways - 77 

Ius gentium, ius naturale, ius naturae jS 

Influence of Greek philosophy 79 

Ius gentium and natural justice 79 

Naturalis ratio - "'- - - - - 80 

Ius gentium and natural equity - 8 1 

Ius naturale and ius commune - 8 1 

Ius naturale and ius civile 82 

Naturalis ratio and lex naturae 83 
Ius gentium and ius naturale submitted explanation - 83 

Ius and dike significance 85 

Lex and nomos 86 

Fas, themis, ratio, mos - 87 

Fas, ius, bona fides, ethos, bom mores - 88 
Post- mediaeval writers on ius naturale and ius gentium 89 

Origin and development of ius gentium - 91 

Ius gentium and ius honorarium 91 
Ius gentium and ius naturale submitted explanation - 92 

Ius gentium ius fetiale and ius belli - - 94 

Ius gentium as private international law - 94 

Ius 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 



PAGE 



Roman international law progressive - 106 

Practices and institutions juridical basis - 107 
To distinguish modern point of view from ancient - 109 
Civitas gentium juridical consciousness reciprocity - no 

Juridical personality - in 

Sovereignty and reciprocity - 113 

Juridical basis of various rules- - 114 

International juridical consciousness - - 116 

Fides as basis of relationships - -117 

Oath, bona fides^ and aequitas - -119 

CHAPTER V 
GREECE AND FOREIGNERS 

Citizenship, religion, and alienage - 122 

Relaxations as to aliens - 125 

Aliens not necessarily enemies- - 127 

Concessions to aliens - 128 

Sparta and strangers - 129 

Various relaxations - 131 

Passports - 132 

Hostelries for strangers - 133 

Athenian hospitality and humaneness 134 

CHAPTER VI 

GREECE AND FOREIGNERS. DIFFERENT CLASSES 

AND PRIVILEGES. RUDIMENTS OF A CONSULAR 
SYSTEM (PROXENU) 

Admission of strangers special authorization - - 136 

Restrictions and exemptions - 137 

Conventions to secure rights - 139 

Interchange of rights isopolity - 141 



CONTENTS xvii 



I'AGE 



Isopolitic treaties - 142 

Privileges of isopolity - - 143 

Sympolity - 144 

Classes of aliens in Athens - 145 

Institution of proxenia - 147 

Proxenla and hospitality - 148 

Proxenia and modern consular system - 149 
International position and functions of proxenoi - - 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 - 159 

Patrons necessary - 160 

Authorization by decree - 161 

Duration of period of settlement - . - 161 

The patron prostates - 162 

Relations of patron and metoec - 163 

Duties of metoecs towards patron - - 164 

Rights withheld from metoecs - 165 

Special burdens imposed on them - 167 

Foreigners and practice of their religion - 169 

Treatment of metoecs - 170 

Jurisdiction as to aliens - 171 

Rewards and privileges to metoecs - 172 

Isoteles their position - 173 

hoteleia how conferred - . ' 175 

Inferior classes of Athenian population - - 176 

Relation of metoecs to the State - - 177 

b 



xviii CONTENTS 

PAGE 

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 - 1 8 1 

Athens most liberal 181 

Twofold citizenship 182 

Conditions of naturalization - 183 

Abuses - 185 

Naturalization en masse - 187 

Formal procedure - 188 

Effects of naturalization - 190 

Elements of private international law in Greece 192 

Citizenship and domicile- 192 

Jurisdiction as to aliens - 192 

Conclusion of c law-treaties ' - 198 

Personal law and territorial law - 2OO 

Commercial cases - 201 

Examples of 'law-treaties' 203 

General conclusions 208 

CHAPTER IX 
ROME AND FOREIGNERS 

Civitas Romana and ius ^ulrltium - 210 

How citizenship lost 2 1 1 

Attitude towards aliens - 213 

The peregrim - - 214 



CONTENTS xix 



PAGE 



The term hostis - 21$ 

Amid - - 21 6 

Hospitium - 217 

Public hospitality - - -"221 

Amicttia and hospitium - - 222 

Clientela and hospitium - - 223 

Patronage of entire peoples - 224 

Hospitium pub li cum - 225 

Hospitium and treaties - - 226 

Position of aliens generally in Rome - 227 

CHAPTER X 

ROME AND FOREIGNERS. DIFFERENT CLASSES, AND 
THEIR JURIDICAL POSITION 

The ' barbarians ' - - 230 

The dediticii - - 232 

The peregrini - - 233 

lus gentium and peregrin law - - 235 

Latin peregrins - 240 

CHAPTER XI 

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 - 257 

Of all Latins - ^- 259 

Of ordinary peregrins -- 260 

Effects of naturalization - - - - - - 264 



xx CONTENTS 

CHAPTER XII 

ROME AND FOREIGNERS. JURISDICTION. PERSONAL 
AND TERRITORIAL LAW. CONFLICTS OF LAWS 

PAGE 

Relaxations in policy as to aliens - 267 

The praetor peregrinus origin, position - - 268 

Various duties - - 269 

Proceedings before him - - 270 

The praetor and the ius gentium - 271 

His decline - 271 

Peregrin law different systems - 272 

Peregrin law and Roman law - 273 

How conflicts of laws were obviated - 275 

The ius gentium and lex peregrinorum - 277 

Law of origin and law of domicile - 278 

Certain modern views objections thereto- 281 

Examples of conflicts of laws - 285 

Territorial sovereignty of the law - 295 

Doctrine of public order - 299 

Why few cases of conflicts - 300 

CHAPTER XIII 

AMBASSADORS THEIR FUNCTIONS; THEIR RIGHTS 
AND DUTIES 

Rise of diplomacy - - 302 

Kinds of envoys and ambassadors - 304 
Right to despatch embassies, and sovereignty - - 309 

Obligation to receive them - 311 

Reception by commanders in the field - 312 

Roman practices at different periods - 313 

Reception of ambassadors in Greece 314 

Reception of ambassadors in Rome - 315 



CONTENTS xxi 

PAGE 

Friendly envoys and right of hospitality - - 318 

Ambassadors of enemy States - 319 

For what purposes despatched - 321 

Powers and instructions credentials- 322 

What persons appointed - 324 

Ambassadors' suites - 327 

Rights and duties - 328 

Position of third States - 333 

Punishment of offences against ambassadors - 335 

Principle of exterritoriality - 337 

Neutrality of ambassadors - 341 

Reward and punishment of ambassadors - 342 

CHAPTER XIV 
RIGHT OF ASYLUM. EXTRADITION (DEDITIO) 

Divine sanction 347 

In oriental antiquity 348 

Asylum in Greek temples * 349 

Inviolability of suppliants 351 

Practices during war - 353 

Certain elements of neutralization - - 354 

Right of asylum in Rome - 354 

The practice of extradition - 358 

Homicides and fugitive slaves - 361 

The Roman dedltio - 362 

Procedure in deditio - 364 

Decline of extradition - - 366 

Cases involving extradition - 367 

Surrender of sponsores - 369 



xxii CONTENTS 

CHAPTER XV 
NEGOTIATION AND TREATIES 

PAGE 

Different kinds of treaties and pacts 375 

Roman treaties only with organized States - 378 

Kinds of Roman treaties 380 

Binding force of conventions - 380 

Various subjects in treaties - 381 

Functionaries and procedure - 383 

Earlier forms of ceremonial in Greece - 385 

Similar ritual in antiquity in general 387 

Force of the oath - 388 

Foedus, fides, sponsio - 391 

Roman symbolic formalities - 394 

Later procedure - 396 

Use of hostages - 398 

Religious formula in promise - - 406 

When treaties might be repudiated - 408 

Treaties amending previous conventions - 409 

Compromise clauses 410 

Attitude of Rome towards conventions - 411 

Proceedings in later Greek treaties - 413 

Proceedings in later Roman treaties- 415 



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. 
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 Pads. 

With one remark by Dr. Phillipson I would desire 
to emphasize my agreement. <c 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. 



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 TJiebes. 
Ammianus (Marcellinus) : History. 
Andocides : C. Alcibiad. ; De mysteriis ; De reditu suo. 
Antiphon : De caede Herodis. 
Appian : De bell. civ. ; De rebus Gallicis. 
Aristophanes : Ly si strata ; Acharn. ; Birds ; Peace ; Clouds ; 

Wasps. 

Aristophanes of Byzantium, (Ed. Nauck). 
Aristotle: Politics; O economics ; Rhetoric; Ethics; On the 

Athenian Constitution. 
Asconius : Commentarii. 
Athenaeus : Deipnosophistae. 
Ausonius : Idyllia. 

Caesar : De bello Galileo. 

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. htaest. ; 

Divin. in Caecil. ; Philipp. : 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 : Ad prolog. Hecyr. (Terent.). 



Empedocles : De natura (ILepl 

Euripides : Androm. ; Hecub. ; Phoeniss. ; Med. ; Heracl. ; 

Hippol. ; Suppl. ; Ipbig. in Taur. ; Ion ; Fragm. 
Eustathius : Ad Iliad. 
Eutropius : Brev. hist. Rom. 

Festus : De verborum signification. 
Florus : Epitome de gestis Romanorum. 

Gaius : Institutions juris chilis. (With trans, and commentary 

by E. Poste, Oxford, 1890.) 
Gellius (Aulus) : Nodes Atticae. 

Harpocration : Lexicon. 

Heracleides (Ponticus) : De rebus publicis. 

Herodotus : History. 

Hesiod : Theogony. 

Hesychius : Lexicon. 

Homer : Iliad ; 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 libri tres. 

Josephus : Bell. jud. 

Julian (Emperor) : Mhopogon. (In Opera, ed. Spanheim, Leip- 

zig, 1696.) 
Justin : History. 
(Justinian) : Corpus juris civilis (Digest and Codex) ; Institu- 

tiones. 

Livy : History of Rome. 
Lucan : Pharsalia. 
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. 



ANCIENT WRITINGS 3 

Macrobius : Saturnal. Conviv. 

Marcellus (Nonius) : De compendiosa doctrina. 

Maximus (Valerius) : De factis dictisque^ etc. 

Nepos (Cornelius) : Chronica ; De vir. illust. 

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 : Satyr icon. 

Philemon : Fragmenta. 

Philostratus : Vita Apoll. 

Pindar : Olymp. ; Nem. Od. 

Plato : Repub. ; Laws ; Protag. ; Crito ; Charm. ; Hipp. Mai., 

Alcib. 

Plautus : Captivi ; Poen. ; Afenaech. 
Pliny (the Elder) : Historia naturalis. 
Pliny (the Younger) : Epist. 
Plutarch : Lives , Instit. Lacon. ; De unius in rep. dom. ; De 

Stoic, repug. ; De solert. anim. ; >uaest. Grace. ; Quaest. 

Rom. 

Pollux : Onomasticon. 
Polybius : History. 

Quinctilian : Institutes of Oratory. 

Sallust : Jugurtha. 

Seneca : De benef. ; De consol. ; Epist. ; Hercul. Fur. 

Servius : Ad Aen. (Commentarii). 

Sophocles : Antig. ; Philoc. ; Oedip. Col. ; Oedip. 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 : Idylls. 

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 Latino. 
Victor (Aurelius) : De Caesaribus. 
Virgil : Aeneld ; 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 traites, 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 hellenique (Paris, 1877, etc.). 

P. Cauer : Delectus inscriptionum Graecarum . . . (Lipsiae, 1883). 

D. Comparetti : Le leggi di Gortyna e le altre iscrixioni arcaiche 

cretesi. 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 : Melanges d'fyigraphie grecque (Paris, 1878). 
P. F. Girard : Textes de droit romain (Paris, 1890). 

E. L. Hicks and G. F. Hill : A Manual of Greek historical 

inscriptions (Oxford, 1901). 

A. Kirchoff, U. Kohler and W. Dittenberger : Corpus inscrip- 
tionum Atticarum (Berlin, 1873, etc.). 

C. Michel : Recueil d* inscriptions grecques (Paris, 1900). 



MODERN WORKS ON VARIOUS TOPICS 5 

T. Mommsen and other editors : Corpus inscriptionum Latin- 
arum (Berlin, 1863, etc.). 

C. T. Newton : Collection of ancient Greek inscriptions in the 
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 lois mar i times ant/rieures au 
XV111* siecle, 6 torn. (Paris, 1828-45). 

Philopatris (Athens, 1859). 

A. R. Rangabe : Antiquitts helltniques, ou r/pertoire ^inscrip- 
tions et cTautres antiquit/s d/couvertes depuis Faffranchissement 
de la Grke, 2 vols. (Athenes, 1842-55). 

L. Renier : Recueil de diplomes militaires (Paris, 1876). 

H. Roehl : Inscriptions Graecae antiquissimae praeter Atticas in 
Attica repertas . . . (Berlin, 1882). 

R. von Scala : Die Staatsvertrage 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 Attici (Leipzig, 1868). 

W. H. Waddington : Inscriptions d*Asie Mineure (Paris). 



III. MODERN WRITERS DEALING WITH SEVERAL 
MATTERS CONSIDERED IN THE PRESENT WORK. 

G. Baviera : // diritto internazionale del Romani. (In Archivio 
giuridico, Modena ; Nuova serie, t. i. (1898), pp. 266-281 ; 
pp. 463-506 ; t. ii. pp. 243-278 ; 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 V'dlkerrecht vornehmlich im Zeita/ter 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 romischen Konigszeit im 

Verhaltniss zu verwandten Rechten (Stuttgart, 1882). 

[Passim, esp. sect. 6, pp. 208 seq. : fetials ; also pp. 

133, 22O seq.~\ 

J. Beyssac : Des conflits de lots a Rome (Bordeaux, 1888). 
C. de Boeck : Le prfteur peregrin (Paris, 1882). 

J. Bortolucci : De jure gentium criminali apud Graecos. (In 
Rivista di storia antica, Padova, 1905, pp. 421-435.) 

A. Bouche-Leclercq : Manuel des institutions romaines (Paris, 
1886). 

[Pp. 343 seq. : ius gentium; pp. 350 seq. : on citizen- 
ship and its acquisition ; pp. 541 seq. : fetials.] 

G. Busolt : Die griechischen Staats- und Recht s alter turner 
(being vol. iv. pt. i. of Handbuch der klassischen Alter- 
tums-flfissenschaft, ed. I. von Mtiller, 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 private 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 feziali in rapporto a I diritto 

pubblico romano (Catania, 1886). 
E. Catellani : Diritto inter nazwnale privato nelP antica Grecia. 

(In Studi e documenti di storia e diritto, Roma 1892, pp. 

245-297.) 
E. L. Catellani : // diritto inter nazionale privato e i suoi recenti 

progressi (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 I'antiquite. (In Nouvelle Revue historique de 
droit franfais et stranger, Paris, 1891, pp. 393-445.) 

E. Chenon : La lot plrlgrine a Rome. (In Bulletin du comite 
des travaux historiques et scientifiques, Paris, 1 890.) 



MODERN WORKS ON VARIOUS TOPICS 7 

E. Ciccotti : La guerra e la pace nel mondo antico (Torino, 

1901). 

E. Comba : 11 diritto internazionale in Roma (Torino, 1870). 
C. V. Daremberg et E. Saglio (eel.) : Dictionnaire des antiquitts 

grecques et romaines (Paris, 1884, etc.). 
A. E. Egger : Etudes historiques sur les trait/s publics chez les 

Grecs et les Remains (Paris, 1866). 
Feltin : Le droit des gens a Rome (1893). 
G. Fusinato : Dei feziali e del diritto feziale. (In Atti della 

Reale Accademia del Lincei, seVie iii. vol. xiii. 1883-4.) 
G. Fusinato : Le droit international de la rtpublique romaine. 

(In Revue de droit international et de legislation compar/e, 

Bruxelles, vol. xvii. 1885, pp. 278 seq.) 
P. Gardner and F. B. Jevons : Manual of Greek antiquities 

(London, 1898). 

[Pp. 454 seq.\ metoecs, citizens, etc.; pp. 597-610: 

Greek States in their relations to each other.] 
G. Gilbert : Handbuch der griechischen Staatsalterthumer, 2 

Bde. (Leipzig, 1881-85). 

(English trans. : Constitutional antiquities of Sparta and 

Athens, London, 1895.) 

[Vol. i. 2nd German edition, 1893, pp. 195 seq. : 

metoecs ; pp. 203 seq. : naturalisation ; pp. 468 seq. : 

Athenian hegemony ; relationship of Athens to her allies.] 
P. F. Girard : Manuel tUmentalre de droit romain (Paris, 

1901). 

[Passim, esp. pp. 109-115, on peregrins in Rome, etc.] 
A. H. J. Greenidge : Handbook of Greek constitutional history 

(London, 1896). 

[Esp. c. iii. 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 pads (Amstelaedami, 1650). 

(With trans, by W. Whewell, 4 vols., Cambridge, 1853.) 
K. Gtiterbock : Byzanz und Persien in ihren diplomatischvolker- 

rechtlichen Beziehungen im Zeitalter Justinians (Berlin, 1906). 
[International relationships between Byzantium and 

Persia in the time of Justinian ; e.g. 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 orientis 
(Hake, 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, 
i860). 

\_Passim, esp. pp. 6 1 1 seq. : on ius gentium.] 
F. von Holtzendorff, etc. : Handbuch des Folkerrechts, 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. iii. 57-64 : international law in Rome.] 
R. von Ihering : Geist des romischen Rechts auf den verschiedenen 
Stufen seiner Entwicklung y 3 Bde. (Leipzig, 1852-78). 

[Passim, esp. vol. i. pp. 225 seq. : on international 
relationships.] 

P. Jors : Romische Rechtswissenschaft zur Zeit der Republik 
(Berlin, 1888). 

[Teil i. sections xii.-xiv. pp. 113-156 : Ius gentium und 
"Weltrecht."] 

O. Karlowa : R'dmische Rechtsgeschichte, 2 Bde. (Leipzig, 
1855-1901). 

[Esp. vol. i. 44, 45, pp. 279-295 : "Internationale 
Verhaltnisse " ; 59, pp. 451-458: ius civile and ius 
gentium.] 

F. H. R. Kleen : Lois et usages de la neutrality 2 torn. 
(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 , et des relations Inter- 
nationales (later additional title : Etudes sur rhistoire de 
rhumanit/\ 18 torn. (Gand, 1850-70). 

[Vol. i. : Oriental antiquity ; vol. ii. : Greece ; vol. 
iii. : 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 Strangers d'apres le droit 
remain" (by P. van Wetter).] 



MODERN WORKS ON VARIOUS TOPICS 9 

H. B. Leech : Ancient international law. (In Contemporary 
Review, London, 1883, vol. xliii. pp. 260-274; vol. xliv. 
pp. 890-904. The articles have been separately re-issued.) 

B. W. Leist : Alt-arisches Jus Civile, 2 pt. (Jena, 1892-1896). 
[Pt. i. pp. 1 6 seq. : ius gentium and ius civile ; pp. 88 
seq. : fas, and religious element in ancient law ; pp. 
354 seq. : hospitality ; pp. 420 seq. : fides ; pt. ii. pp. 
I seq. : naturalis and civilis ratio ; pp. 83 seq. : ius 
divinum.] 

B. W. Leist : Alt-arisches Jus Gentium (Jena, 1889). 

[Esp. pp. 545 seq. : " Das weltliche Particularrecht und 
das neuere ius gentium."] 

B. W. Leist : Graco-Italische Rechtsgeschichte (Jena, 1884). 

[Passim, esp. 55-63 : international relationships 
in Rome.] 

J. N. Madvig : Die Verfassung des r'dmischen 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 T. Mommsen : Handbuch der rdmischen 
Alterthumer, J Bde. (Leipzig, 1881-88). 

[The first three vols. the third in two parts are by 
Mommsen, under the title of Romisches Staatstrecht 
(1887-8), vol. i. pp. 246-257 : foedus, sponsio, fetials, 
etc. ; vol. iii. pt i. pp. 340 seq. : foreign relations 
(declaration of war, treaties, etc.) ; pp. 590 seq. : treaties, 
hospitium, pax, ambassadors, relation of private to inter- 
national law, ius gentium-, vol. iii. pt. ii. pp. 1147 
seq. : foreign relations. 

The other four volumes are by Marquardt, iv. v.. 
and vi. under the title of Rb'mische Staatsverwaltung 
(1881-5), vol. iv. pp. 44 seq. : treaties, etc. ; vol. vi. 
pp. 416 seq.: fetials; vol. vii. is entitled Das Privat- 
lebender Romer (1886).] 

L. Mitteis : Romisches Privatrecht bis auf die T^eit Diokletians y 
vol. i. (Leipzig, 1908). 

[Pp. 22-37 : conception and relationships of ius, fas, lex ; 
pp. 62-72: ius civile and ius gentium; pp. 125-135: on 
the loss of the rights conferred by the law of origin 
( u Heimatrecht "), postliminium.] 

T. Mommsen : Rb'mische Geschichte, 5 Bde. (Berlin, 1888-94). 

(English trans, by W. P. Dickson, 5 vols. London,. 
1894.) 



io MODERN WORKS ON VARIOUS TOPICS 

J. Muirhead : Historical introduction to the private law of Rome y 

ed. H. Goudy (London, 1899). 

[Pp. 103 seq. : citizen and non-citizen; pp. 210-212 : 

international recuperatio ; pp. 225-232 : ius gentium ; 

pp. 279-283 : ius naturale.~\ 
C. F. W. Miiller : De ritibus et ceremoniis quibus Graeci commercia 

publica, foedera belli pacisque sanxerunt deque vocabulis 

iuris fetialis propriis, quoad ex Herodoti et Thucydidis et 

Xenophontis libris cognosci possunt (Regimont. 1854). 
M. Muller-Jochmus : Geschichte des Polkerrechts im Altertum 

(Leipzig, 1848). 
B. G. Niebuhr : Romische Geschichte^ 3 Bde. (Berlin, 1873-4). 

(English trans. London, 1847-51.) 
E. Osenbrueggen : De jure belli et pads Romanorum (Leipzig, 

1836). 

O. Padelletti : Storia del diritto romano. Con note di P. Cogliolo 

(Firenze, 1886). 

[Chaps, v. and vi. : " Lo stato e suoi rapporti esteriori " 

(the foreign relationships of Rome).] 
A. Pauly : Real-Encyclopadie der classischen Alterthums-Whsen- 

schaft (Stuttgart, 1844-1852). Vols. i. to vi. new edition, 

by G. Wissowa (Stuttgart, 1894-1905). 
A. Pernice : Parerga. Beziehungen des offentlichen romischen 

Rechts zum Privatrechte. (In Zeitschrift der Savigny- 

Stiftungfur Rechtsgeschichte, vol. v. 1884, pp. 1-135.) 
A. Pierantoni : Trattato di diritto Internationale. Vol. i. 

Prolegomena Storia dalPantichita al 14.00 (Roma, 1881). 
[Pp. 71-348 : on the international law of the ancient 

peoples.] 

<j. F. Puchta: Cursus der Institutionem, 2 Bde. (Leipzig, 1875). 

K. T. Ptitter : Beitrage zur Folkerrechtsgeschichte und Wissen- 
schaft (Leipzig, 1843). 

[Pp. 21-44 : outlines of ancient law of nations.] 

M. Revon : De P existence du droit international sous la republique 
romaine. (In Revue g/nerale du droit , de la legislation, et de 
la jurisprudence, Paris, vol. xv. 1891, pp. 394 seq. ; 
pp. 504 seq.) 

A. F. Rudorff: Romische 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."] 



MODERN WORKS ON VARIOUS TOPICS n 

F. C. von Savigny : System des heutigen rtimischen Rechts, 9 
Bde. (Berlin, 1840-51). 

[Vol. i. app. i. : Jus naturale, gentium, civile ; vol. 
viii. 341 seq. : various matters relating to private 
international law in Rome.] 

(French trans, by C. Guenoux, 8 torn. Paris, 1840-51 ; 
English trans, of vol. viii. by A. Guthrie.) 

F. C. von Savigny : Geschichte des rSmischen Rechts im Mitt el- 

alter, 7 Bde. (Heidelberg, 1834-51). 

[Esp. vol. i. chap, iii.] 

(French trans, by C. Guenoux, 4 torn. Paris, 1839.) 
R. von Scala : Die Studien des Polybios, vol. i. (Stuttgart, 1890). 

[Esp. pp. 156-158; Anlage VI. pp. 299-324: "Das 
Volkerrecht bei Polybios" (The law of nations in the 
time of Polybius, and a consideration of his opinions and 
pronouncements thereon).] 

A. Schmidt : Zum inter nationalen Rechtsverkehr der R'omer. 
(In Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte. 
Romantische Abtheilung, Bd. IX. 1888, pp. 122-143.) 

G. F. Schoemann : Antiquitates 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 lus naturale aequum et bonum und lus gentium 
der Rsmer, 4 Bde. (Leipzig, 1856-76). 

[Vol. i. 13 seq. : lus gentium-, vol. ii. 5: "Das 
romisch-antike Volkerrecht " ; lus gentium ; and in many 
places throughout the entire work.] 

M. Voigt : Rtimische Rechtsgeschichte, 3 Bde. (Leipzig, 1892- 
1902). 

[Vol. i. 15: "Das privatrechtliche ius gentium"; 
vol. ii. 77: "Das ius gentium"; vol. iii. 141: Ius 
gentium, etc.] 

E. W. G. Wachsmuth : Jus gentium quale obtinuerit apud 
Graecos ante bellorum cum Persis gestorum initium (Kiliae, 
1822). 



12 WORKS ON PARTICULAR TOPICS 

T. A. Walker : History of the law of nations (Cambridge, 



[Vol. i. pp. 37-42 : in Greece ; pp. 44-74 : in Rome.] 
F. Walter : Geschichte des rdmischen Rechts, 2 Thle. (Bonn, 

1860-1). 
A. Weiss : Le droit fetial et les fitiaux. (In France judiciaire, 

Paris, 1882-3. Re-issued, Paris, 1883.) 

A. Weiss : Trait/ theorique et pratique de droit international 
priv^ 5 vols. (Paris, 1892-1905). 

[Vol. I. pp. 32-38: "Jus sanguinis et jus soli"; pp. 
283-295: "acquisition du droit de cite par la naturalisa- 
tion " ; vol. ii. pp. 14-44 : "k condition des Strangers" ; 
vol. iii. pp. 117-126: "1'etranger en droit remain"; 
vol. v. pp. 1-30 : "Tetranger et la justice."] 
H. Wheaton : History of the law of nations (New York, 1845). 

[Pp. i -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 s/nat de la rfyublique romaine, 3 torn. (Paris, 

1885). 

[Esp. vol. ii. liv. iii. chap. v. pp 465-521 : " Le 
departement des affaires etrangeres."] 



IV. MODERN WRITERS DEALING WITH FEWER 
QUESTIONS, OR WITH SPECIAL TOPICS. 

C. Accarias : Precis de droit remain, 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. 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 

J. J. Barthelemy : Voyage du jeune Anacharsis en Grece vers le 
milieu du 4"" siecle avant rere vulgaire, J torn. (Paris, 

X 799)- 

[English trans., London, 1816-18, 8 vols.] 

A. Baumstarck : De cur a tor thus emporii et nautodicis apud 

Athenienses disputatio (Friburgi, 1828). 
L. Beauchet : Histoire du droit privl de la rtpublique athtnienne, 

4 vols. (Paris,^i897). 
E. Beaudouin : Etude sur le jus italicum. (In Nouvelle revue 

historique de droit fran^ais et Stranger, Paris, vol. v. pp. 

146 seq. ; pp. 592 seq.) 
E. Beaudouin : Le majus et le minus Latium. (In Nouvelle 

revue historique de droit fran^ais et Stranger, 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. Berard : De arbitrio inter liber as Graecorum civitates 

(Paris, 1894). 
C. Betant : An 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 seq. : piracy, prize, and booty in ancient times.] 
G. Bockmann : Recht und Jus Gentium der R'dmer (Darm- 
stadt, 1862). 
A. Boeckh : Die Staatshaushaltung der Athener, 2 Bde (Berlin, 

1886). 

[English trans, of an earlier edition, by A. Lamb : The 

Public Economy of the Athenians, Boston, 1857.] 
A. Boeckh : Urkunden uber das Seewesen des attischen Staates, 3 

Bde. (Berlin, 1840-51). 
O. Bohn : jua condicione juris reges socii populi Romani fuerint 

(Berlin, 1878). 

[Questions relating to the foedus sociale, or treaty of 

alliance.] 

A. Bonucci : La legge comune nel pensiero greco (Perugia, 1903). 
[On the conception of 'general law,' vo/mos KOIVOS, in 

Greece.] 
J. P. Bougainville : )uels /taient les droits des mttropoles grecques 

sur les colonies, les devoirs des colonies envers les mttropoles, et les 

engagemens rtciproques des unes et des autres ? (Paris, 1 745). 



i 4 WORKS ON PARTICULAR TOPICS 

P. van Limburg Brouwer : Histoire de la civilisation morale et 
religieuse des Grecs, 8 torn. (Groningue, 1833-42). 

G. Brini : Jus naturale (Bologna, 1889). 

H. M. de Bruyn de Neve Moll : De peregrinorum apud Athenienses 
conditions (Dordraci, 1839). 

J. Bryce : Law of Nature. (In Studies in history and juris- 
prudence^ 2 vols. Oxford, 1901 ; vol. ii. pp. 1 12 seq.) 

A. B. Biichsenschiitz : Besitz und Erwerb im griechischen Alter- 
thume (Halle, 1869). 

H. Buermann : Animadversiones de titulis atticis quibus civ it as 
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 fluchtiger 
Verbrecher. Eine Abhandlung aus dem Gebiete der univer- 
se/ten Rechtsgeschichte und des positiven Volkerrechts (Dorpat, 

1853). 

[Chap. ii. 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 pylaeisch-delphische Amphiktyonie (Mlinchen, 

i8 77 ). 

[Esp. pp. 197 seq. : the function of the Amphictyonic 
council in regard to interstatal relationships.] 

E. Burle : Essai historique sur le developpement de la notion de 
droit naturel dans Fantiquitie grecque (Trevoux, 1908). 

G. Busolt : Der zweite atheniscbe Bund. (In Jahrbuch fur 
classiscbe Philologie y Suppl. vii. 1873-5, pp. 641-846.) 

G. Busolt : Die Lakedaimonier und ihre Bundesgenossen (Leip- 
zig, 1878). 

E. Caillemer : La naturalisation a Athenes. Etudes sur les 
antiquites juridiques d* Athenes (Paris, 1880). 

E. Chdnon : Etudes sur les controverses entre Proculeiens et 
Sabiniens (Paris, 1881). 

E. Ciccotti : // tramonto della Schiavitu nel mondo antico (Torino, 

i8 99 ). 

E. C. Clark : Practical jurisprudence (Cambridge, 1883). 
[Chap. xiii. : on lus gentium.'] 

M. Clerc : Les mlteques atheniens. Etude sur la condition legale, 
la situation morale et le role social et fconomique des Grangers 
domicilils a Athenes. (Bibliotheque des /coles fran^aises 



WORKS ON PARTICULAR TOPICS 15 

cT Athene* et de Rome. Fascicule soixante-quatrieme, Paris, 

1893-) 

[A detailed 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 la condition des Strangers domicilie's dam les 

diff/rentes citls grecques. (In Revue des universit/s du midiy. 

Bordeaux, tome iv. (1898), pp. 1-32 ; pp. 153-180 ; pp. 249- 

274.) 
J. A. Collmann : De Romanorum judicio recuperatorio (Berlin^ 

1835). 

F. C. Conradi : De fecialibus et jure feciali populi Romani. 

(In Scripta minora, vol. i. Halis, 1823, pp. 259-384.) 
F. P. Contuzzi : La istituzione del comolati ed II diritto inter- 

nazionale europeo nella sua applicabilita in Oriente (Napoli, 

1885). 

[Pp. 1-26 : on ancient institutions analogous to the 
modern consular system.] 

H. A. A. Danz : Der sacrale Schutz in rdmischen Rechtsverkehr. 
Beitrage zur Geschichte der Entwickelung des Rechts bei 
den Rdmern (Jena, 1857). 

[Influence of religion on law in various relationships - 9 
kinship of sacred and juridical conceptions.] 
R. Dareste : Nouvelles Etudes d'histoire du drolt (Paris, 1902). 

[Pp. 305-321 : "Droit de repr&ailles chez les Grecs," 
reprinted from Revue des Etudes grecques, vol. ii. (1889).] 

A. Desjardins : Introduction historique a Fttude du droit com- 
mercial maritime (Paris, 1890). 

H. E. Dirksen : Uber die Eigenthumlichkeit des Jus Gentium 
nach den Vorstellungen der Rb'mer. (In Vermischte Schriften> 
Berlin, 1841, vol. i. pp. 200-252.) 

M. Dubois : Les ligues etolienne et ach/enne. Leur histoire et 
leurs institutions. Nature et durte de leur antagonisme* 
(Bibliotheque des holes francaises d'Athenes et de Rome^ 

1885.) 

Dumont : Des colonies romaines. (In Annales des universit/s de 
Belgique, Bruxelles, 1843, pp. 557 seq.) 

A. J. Bureau de la Malle : Economie politique des Romains y 2 
torn. (Paris, 1840). 

W. Eisendecher : Ueber die Entstehung, Entwickelung und 
Ausbildung des Bilrgerrechts im alien Rom (Hamburg, 

1829). 



16 WORKS ON PARTICULAR TOPICS 

E. Engelhardt : Les protectorate remains . (In Revue gen/ra/e de 

droit international public, Paris, 1895, pp. 489-509.) 

J. Fallati : Die Genesis der V'dlkergesellschaft. (In Zeitschrift fur 
Staatswissenschaft, Tiibingen, 1884.) 

F. Faure : Essai historique sur le preteur romain (Paris, 1878). 

V. Ferrenbach : Die amid populi romani in der republikanischt 
Zeit (Strassburg, 1895). 

P. Foucart : Des associations religieuses chez les Grecs . . . 
(Paris, 1873). 

P. Foucart : Memoirs sur les colonies ath/niennes au cinquieme et 
au quatrieme siecles. (In Memoires de r Academie des 
Inscriptions et Belles Lettres, Paris 1878, I e serie, t. iv. 
pp. 322-413.) 

A. Frankel : De condicione, jure, jurisdiction 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. iii. pp. 95-111 : on the Amphic- 
tyonic council. Several chapters on leagues, etc., from a 
political rather than juridical point of view.] 

G. Frenoy : Condition des peregrins a Rome en droit romain 

(Paris, 1879). 

N. D. Fustel de Coulanges : La cite antique (Paris, 1900). 

[Esp. chap. xv. pp. 241-248: "Relations entre les 
cits ; la guerre ; la paix ; 1'alliance des dieux " ; chap, 
xvi. pp. 248-254 : "Les confederations; les colonies."] 

N. D. Fustel de Coulanges : Le colonat romain. (In Recherches 
sur quelques problemes d'histoire, Paris, 1885, pp. 1-186.) 

X. Gar not : Aperc^u sur la condition des etr angers a Rome 
(Paris, 1884). 

S. Gianzana : Lo straniero nel diritto civile italiano (Torino, 
1884). 

[Esp. vol. i. pp. 66-86 : " La condizione giuridica dello 
straniero presso i Romani."] 

J. Gilson : I? etude du droit romain compare* aux autres droit s de 

Tantiquitt (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.] 
P. F. Girard : Histoire de F organisation judiciaire des Romains 

(Paris, 1901). 



WORKS ON PARTICULAR TOPICS 17 



W. W. Goodwin : A//tcu OLTTO (rv/m/^oXcov and SIKOU <rv[jL/3d\aiai. 
(In American Journal of Philology, Baltimore, vol. i. 1880, 
pp. 4- 1 6.) 

P. Graetzl : De pactionum inter Graecas civitates appellationibus, 
formulis, ratione (Halle, 1885). 

P. Grenouillet : De la condition des personnes au point de vue de 
la cite . . . en droit romain (Paris, 1882). 

P. Guiraud : De la condition des rJ/t/s pendant la premiere con- 
fldfratitn ath/nienne. (In Annuaire de la facultl des lettres 
de Bordeaux^ torn. v. pp. 1 68 seq.) 

P. Guiraud : Les assemblies provinciates dans r empire romain 
(Paris, 1887). 

L. Halkin : Les esclaves publics chez les Romains (Bruxelles, 



A. W. Heffter : Die Athenaische Gerichtsverfassung . . . (Coin, 
1822). 

J. Helfrecht: Historische Abhandlung von den Asylen (Hof, 1801). 

K. F. Hermann : Lehrbuch der griechischen Antiquitaten, 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 seq. ; t. iii. pp. 39-78, on first 

treaty between Rome and Carthage.) 

Heyse : De legationibus Atticis (Gottingen, 1882). 

R. Hirzel : "Ay/oa009 vo/mos* (In Abhandlungen der philologisch- 
historischen Classe der koniglich sachsischen Gesellschaft der 
H^issenschaften^ Bd. xx. No. I, Leipzig, 1900, pp. 23 seq.) 

[A study on ancient especially Greek unwritten law, 
its force and significance.] 

R. Hirzel : Der Bid. Bin Beitrag zu 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 y Dike, und Verwandtes. Ein Beitrag zur 
Geschichte der Rechtsidee bei den Griechen (Leipzig, 1907). 

[On the significance of themis^ dike^ fas^ nomos y and 
cognate conceptions in Greek legal development ; the 
interpenetration of divine law and positive law.] 

B 



1 8 WORKS ON PARTICULAR TOPICS 

H. F. Hitzig : Altgriechische Staatsvertrage uber Rechtshilfe. 
(In Festgabe Ferdinand Regelsberger ... (Zurich, 1907), 
pp. i-yoO 

[Treaties between Greek States with regard to disputes 
arising between them or between subjects of one and 
those of the other ; agreement as to jurisdiction and pro- 
cedure relating thereto.] 

B. Hubert : De arbitris atticis et privatis et pub lids (Leipzig, 

1885). 

M. H. Hudtwalcker : Uber die offentlichen und privat-S chieds- 
richter (Diateten) in Athen y und den Process vor denselben 
(Jena, 1812). 

P. D. Huet : Histoire du commerce et de la navigation des anciens 
(Lyon, 1763). 

[Pp. 74-200 : Some chapters on the commercial rela- 
tionships of the Greeks and of the Romans.] 

G. Humbert : Mtmoire sur la condition des peregrins chez les 
Romains. (In Recueil de VAcadtmie de legislation de Toulouse, 
1870.) 

W. A. Hunter : A systematic and historical exposition of Roman 
law (London, 1903). 

[Esp. the historical introduction by A. H. G. Greenidge.] 

E. Huschke : De recuperatoribus. (In Analecta litteraria y 

Lipsiae, 1826, Excursus ii. pp. 208-2530 
R. von Ihering : Die Gastfreundschaft im Alterthum. (In 

Deutsche Rundschau^ Berlin, June, 1887, pp. 357~3970 
[On the ancient institution of hospitality traced as far 

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 S. de Westman, Paris, 1887.) 

[Esp. 111-123 : on cases f international arbitration in 

Greece and Rome.] 

F. Klipffel : Etude sur le regime municipal gallo-romain. (In Nou- 

velle revue historique de droit fran^ais et Stranger, Paris, 
1878, pp. 554 seq. ; 1879, pp. 171 seq. 2J$ seq. 571 seq.] 

Koellner : De clientela (Gottingen, 1831). 

J. E. Kuntze : Der Parallelismus des Jus publicum und privatum 
bei den Rb'mern (Leipzig, 1889). 

L. F. J. Laferriere : De Vinfluence du stotcisme sur la doctrine des 
jurisconsultes romains (Paris, 1860). 



WORKS ON PARTICULAR TOPICS 19 

Larivier : Les traitfs conclus par Rome avec les rots Grangers 
(Paris, 1882). 

C. Ldcrivain : Le droit de se fair e justice soi-m$me et les reprlsailles 
dans les relations inter nationales de la Grece. (In Mlmoires 
de FAcadtmie des sciences, inscriptions, et belles-lettres de 
Toulouse. Neuvieme srie. Tome ix (1897), pp. 277- 
290.) 

C. Lcrivain : Une cat/gone de trait/s internationaux grecs, les 
Symbola. (In Bulletin de FAcadtmie des sciences, inscriptions, 
et belles-lettres de Toulouse, vol. ii. (1898-1899), no. 3, 
pp. 150-159-) 

E. Leotard : Essai sur la condition des barbares Itablis dans 

? empire romain au quatrieme siec/e (Paris, 1873). 
H. Lesterpt de Bauvais : Du droit de citl a Rome (Paris, 

1882). 
G. de Letourville : Etude sur le droit de citl a Rome (Paris, 

1883). 

F. Lindet : De r acquisition et de la perte du droit de citl romaine 

(Paris, 1879). 
J. H. Lipsius : Das attische Recht und Rechtsverfahren, 2 Bde. 

(Leipzig, 1905-8). 

Lu : II diritto internazionale pubblico nei libri tfQmero (1897). 
Sir Henry Maine : Ancient law (ed. Sir F. Pollock, London, 

1908). 

A. Martin : Quomodo 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- 6 3-77-) 

B. Matthiass : Das griechische Schiedsgericht. (In Juristische 

Festgaben fiir Rudolph von Ihering, Stuttgart, 1892, pp. 

[Mainly private arbitration in Greece.] 

B. Matthiass : Die Entwicklung des rtimischen Schiedsgerichts 
(Rostock, 1888). 

[The practice of private arbitration in Rome.] 
A. Maury : Histoire des religions de la Grece antique, 3 torn. 

(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 offentliche 
Diateten Athens so wie die Austrdgalgerichte in den griechischen 
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 : V application de la loi peregrine a Rome (Paris, 

'893)- 

L. Mitteis : Reichsrecht und Volksrecht in den ostlichen Provinzen 
des r'dmischen 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 uber 
die stadtischen Fester der Athener (Leipzig, 1864). 

T. Mommsen : Burgerlicher und peregrinischer Freiheitschutz 
im r'dmischen Staat. (In Festgabe fur Bese/er y Berlin, 1885, 
pp. 255 seq.) 

T. Mommsen : Geschichte des r'dmischen Miinzwesens (Berlin, 
1860). (French trans, by the Due de Blacas, 4 torn. 
Paris, 1865-75.) 

T. Mommsen : Das romische Gastrecht und die romische ClienteL 
(In Romische Forschungen, Berlin, 1864-79, vol. i. pp. 

3 I 9-390 

T. Mommsen: Das r'dmische Strafrecht (Leipzig, 1899). 
P. Monceaux : Les proxenies grecques (Paris, 1886). 

C. D. Morris : The jurisdiction of the Athenians over their allies. 
(In American Journal of Philology, Baltimore, vol. v. 1884, 
pp. 298-317.) 

C. D. Morris : The relation of a Greek colony to its mother-city. 

(Ibid. pp. 479-4870 
E. Miiller : Ueber das dlteste r'dmisch-karthagische Bundniss. 

(In Verhandlungen der Versammlung der deutschen Philologen, 

Frankfurt-am-Main, 1861, pp. 79-92.) 

K. O. Miiller : Die Dorter (being vols. ii. and iii. of Geschichten 
hellenischer Stdmme und Stadte, 3 Bde. Breslau, 1844.) 

J. Naudet : De Pltat de personnes et des peuples sous les empereurs 
romains. (In Journal des Savants, Paris, 1877, pp. 290- 

301 ; PP- 337-351.) 

L. de la Nauze : Mfmoire sur la xentlasie. (In Mtmoires de 
P Acadtmie des Inscriptions, t. xii. pp. 159-176.) 



WORKS ON PARTICULAR TOPICS 21 

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 c ius 
gentium,' as exemplified in numerous Latin authors.] 

A. Nissen : Der caudinische Friede. (In Rheinisches Museum 
fur Philologie, Frankfurt-am-Main, 1870, vol. xxv.) 

C. Ostermann : De praeconibus Graecorum (Marburg, 1845). 

L. Ott : BeitrSge zur Kenntnis des griechischen Eides (Leipzig, 
1896). 

[The function of the solemn oath in Greece in inter- 
national and other relationships.] 

G. Padelletti : / giudici nel processo romano. (In Archivio 
Giuridico, Pisa, vol. xv. (1875) pp. 523-560.) 
[Pp. 543-560 : on the recuperatoresj\ 

J. M. Pardessus : Us et coutumes des peuples de FantiquitS et du 
moyen age, 2 torn. (Paris, 1847). 

G. Perrot : Le droit public de la rfpublique athtnienne (Paris, 

1867). 

A. Philippi : Beitrage zu einer Geschichte des attischen Burger- 
rechts (Berlin, 1870). 

Piccioni : Des concessions du connubium (Paris, 1891). 

A. Pischinger : De arbitris Atheniensium publicis (Mtinchen, 

"893)- 

F. J. F. Poland : De legationibus Graecorum publicis (Leipzig, 

1885). 

Sir F. Pollock : History of the law of nature. (In Journal of the 
Society of Comparative Legislation, London, 1900, pp. 418- 

4330 

D. Raoul-Rochette : Histoire critique de Fttablissement des 
colonies grecques, 4 torn. (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 commer dales de 1 J empire 
romain avec P Asie orientale (Paris, 1863). 

M. Revon : U arbitrage international (Paris, 1892). 

[Chap i. pp. 62-105: "Parbitrage international dans 
Pantiquite."] 

W. Richter : Die Sklaverei in griechischen Alter turner (Breslau, 
1886). 



22 WORKS ON PARTICULAR TOPICS 

V. Rivalta : Diritto naturale e positive. Saggio storico (Bologna, 
1898). 

[Pp. 1-135 : on the development of the conception of 
law in antiquity.] 

A. Rodiere : Du prlteur peregrin et de ^existence plus ou moins 
latente (Tune institution analogue a la sienne chez tous les 
peuples. (In Recueil de I* Academic de legislation de Toulouse^ 
1868, t. xviii. pp. 339-351.) 

M. I. G. Rogery : De la condition des etrangers en droit romain 
(Montpellier, 1886). 

F. Roth : Ueber Sinn und Gebrauch des Wortes Bar bar (N urn- 

berg, 1814). 
J. Roulez : Considerations stir la condition politique des clients dans 

Pancienne Rome. (In Bulletins de FAcadtmie Royale de 

Bruxel/eSy t. vi. pt. i. pp. 304 seq.) 
J. Rubino : Untersuchungen uber romische Verfassung und 

Geschichte (Cassel, 1 839). 
E. de Ruggiero : U arbitrate pubblico in relazione col privato 

presso i Romani. Studio di epigrafia giuridica (Roma, 

'893)- 

G. de Sainte-Croix : Des anciens gouvernemens federatifs (Paris, 



[Esp. pp. 1-270 : on the Amphictyons and their 
authority, juridical and otherwise ; and on other leagues.] 

G. de Sainte-Croix: Mfmoire sur les meteques. (In Memoires 
de litterature tire's des r/gistres de F Academic Royale des 
Inscriptions et Belles Lettres y t. xlviii. 1808, pp. 176-207.) 

V. Saverot : Les recuperateurs (Dijon, 1885). 

F. C. von Savigny : Vermischte Schriften, 5 vols. (Berlin, 1 849, 

etc.). 

H. Schenkl : De metoecis atticis. (In Wiener Studien, t. ii. 
1880, pp. 161-225.) 

L. Schmidt : Die Ethik der alien Griechen, 2 Bde. (Berlin, 
1882). 

[For 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 Verhaltniss der Gastfreundschaft."] 

G. F. Schoemann : Opuscula academica, 3 vols. (Berolini, 

1856-8). 

Schubert: De proxenia attica (Leipzig, 1881). 
C. Sell : Die Recuperatio der Rb'mer (Braunschweig, 1837). 



WORKS ON PARTICULAR TOPICS 23 

Simon : Des asyles. (In Histoire de PAcadlmie des Inscriptions et 
Belles Lettres, Paris, 1 746.) 

W. Soltau : Die Gliltigkeit der Plebiscite (Berlin, 1884). 

E. Sonne : De arbitris externis quos Graeci adhibuerunt ad lites 
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.] 

T. Sorgenfrey : De vestigiis juris gentium Homerici (Lipsiae, 

1871). 

[On 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 Burgerrecht (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 uber die attischen Met'dken. (In 

Wiener Studien^ t. vii. pp. 45-68.) 
A. Thurm : De Romanorum legationibus ad exteras nationes 

missis (Lipsiae, 1883). 
C. Tissot : Les prox/nies grecques et de leur analogie avec les 

institutions consulaires modernes (Dijon, 1863). 

F. W. Tittmann : Uber den Bund der Amphiktyonen . . . (Berlin, 

1810). 

G. F. Tomasini : De tesseris hospitalitatis (Amstelodami Frisii, 

1670). 
A. E. Turrettini : De legationibus publicis apud Athenienses 

(Geneva, 1840). 
C. A. von Vangerow : Uber die Latini Juniani. Eine rechts- 

geschichtliche Abhandlung (Marburg, 1833). 
A. Vaunois : De la notion du droit nature/ chez les Romains 

(Paris, 1884). 

M. Voigt : Die XII. Tafeln (Leipzig, 1883). 
M. Voigt : Ueber Clientel und Liber tinit at. (In Kdniglich 

Sachsischen Gesellschaft der Wissenschaften^ Berlin, 1878.) 
H. A. Wallon : Histoire de Pesclavage dans f antiquity 3 torn. 

(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 fur classische Philologic, 
Berlin, 1899, Bd. xxxiv.) 

E. W. Weber : Demosthenis oratio in Aristocratem (Jena, 1845). 

H. Weil : De tragoediarum graecarum cum rebus publicis con- 
junctions (Paris, 1844). 

C. A. Weiske : Considerations historiques et diplomatique* sur les 
ambassades des Romains comparees aux modernes (Zwickau, 

1834). 

C. Welsing : De inquilinorum et peregrinorum apud Athenienses 

judiciis (Miinster, 1887). 

[Mainly a commentary on various texts relating to 

questions of jurisdiction as to non-citizens in Athens, and 

to litigation in which they were involved.] 
P. van Wetter : La condition civile des Strangers d'apres le droit 

romain. (Appendix to Laurent's Droit civil international, 

ut sup. vol. i. pp. 667-678.) 
U. von Wilamowitz-Mollendorff : Demotika der Metoeken. (In 

Hermes. Zeitschrift fiir classische Philologie, Berlin, Bd. 

xxii. 1887, pp. 107-128 ; pp. 211-259.) 

M. Wlassak : Romische Processgesetze, 2 Pt. (Leipzig, 1888-91). 
G. Wolff : De primo inter Romanos et Carthaginienses foedere 

(Neubrandenburg, 1843). 



V. OTHER WRITERS REFERRED TO. 

A. de Barthelemy : Manuel de numismatique ancienne (Paris, 

1851). 

I. Becker : Anecdota Graeca^ 3 vols. (Berolini, 1814-1821). 

J. Bodin : Les six livres de la rfyublique (Lyon, 1580). 

G. Boissier : La religion romaine tfAuguste aux Antonins, 2 torn. 

(Paris, 1874). 

H. Bonfils : Manuel de droit international public (Paris, 1 905). 
J. B. Bossuet : Discours sur Fhistoire universelle (Paris, 1873). 
J. B. Bossuet : Sermon sur la justice. (In (Euvres.) 
M. Breal and A. Bailly : Dictionnaire etymologique latin Lemons 

des mots (Paris 1882). 
M. Breal : Sur Porigine des mots dtsignant le droit et la hi en 

latin. (In Nouvelle revue historique de droit fran^ais et 

etranger, Paris, vol. vii. 1883, pp. 603-612.) 



OTHER WRITINGS REFERRED TO 25 

P. C. Buttmann : Lexilogus, oder Beitrlige zur griechischen 
Wort-erklarung ... 2 Bde. (Berlin, 1837-60). 

C. Calvo : Le drolt international^ 6 vols. (Paris, 1888-1896). 
C. Carapanos : Dodone et ses ruines (Paris, 1878). 

W. Corssen : Kritische Beitrage zur lateinischen Formenlehre, 
(Leipzig, 1865). 

J. de Cujas (Cujacius) : Observatlonum et emendationum libri 
xxviii. (Coloniae Agrippinae, 1598). 

R. Dareste : Plaidoyers civils de Dtmosthene, 2 vols. (Paris, 

i8 75 ). 

L. Duguit : Des conflits de legislation relatifs a la forme des actes 
civils (Bordeaux, 1882). 

J. Dumont : Corps universe! 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). 

P. Guiraud : La propriM fonciere en Grece, jusqu'a la conquete 
romaine (Paris, 1893). 

P. Guiraud : Uimpot sur le capital a Athenes. (In Revue des 
deux mondes, Paris, Oct. 15, 1888.) 

F. P. G. Guizot : Ueglise et la soci/t/ chr/ttennes en 1861 (Paris, 

1861). 

J. A. Hartung : Die Religion der Romer (Erlangen, 1836). 

E. Helwing : Geschichte des achdischen Bundes nach den )uellen 
dargestellt (Lemgo, 1829). 

A. W. Heffter : Das europdische Volkerrecht der Gegenwart, ed. 
F. H. Geffcken (Berlin, 1881). 

G. W. F. Hegel: Religionsphilosophie. (In Werke, 18 Bde. 

Berlin, 1832-40.) 

J. G. Herder : Ideen zur Philosophic der Geschichte der Afensch- 
heit, 2 Bde. (Leipzig, 1841). 

U. Huber : Praelectionum juris civilis tomi tres secundum Institu- 
tiones et Digesta Justiniani (Lovanii, 1766). 

Sir R. 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 Rb'mern. 

(In Studien des classischen Alterthums, Regensburg, 1854.) 



26 OTHER WRITINGS REFERRED TO 

F. von Liszt : Das Volkerrecht systematisch dargestellt (Berlin, 

1906). 

N. Machiavelli : Discorsi (Vinegia, 1532). 
Sir Henry Maine : Pillage communities in the East and West 

(London, 1871). 

F. de Martens : Trait/ de droit international^ 3 vols. (Trad. 

du russe par A. Leo, Paris, 1883.) 

G. F. de Martens : Precis du droit des gens moderne, ed. C. 

Verge (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 P esprit des lois, 5 torn. (Paris, 1816). 
S. Petitus : Leges Atticae (1635). 
Sir R. Phillimore : Commentaries upon international /aw, 4 vols. 

(London, 1885, etc.). 
F. Ratzel : Volkerkunde (Leipzig, 1885). 
A. Rivier : Principes du droit des gens, 2 vols. (Paris, 1896). 
N. F. Rosellini : / monumenti del? Egitto e della Nubia ... 8 

torn. (Pisa, 1832-44). 
A. Schaefer : Demosthenes und seine Zeit^ 3 Bde. (Leipzig, 

1885-7). 

O. Schrader : Sprachvergleichung und Urgeschichte (Naumburg 

a. S. 1883). 

(English trans, by F. B. 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 5 parts. 

(Leipzig, 1901-1906.) 

[Detailed information relating to many matters arising 

out of the commercial relationships of ancient States.] 
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 I 
THE GREEK CITY-STATE SYSTEM 

IT has not infrequently been said that international law, Denial of th< 
public as well as private, that is, international law usually andenUaw . 
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 m 
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, likeness! 611 
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 



28 



THE AUTONOMOUS CITY-STATE 



Difference be- 
tween them. 



principle of consensus were implicit, just as the less is 
contained in the greater. Thus our modern conceptions 
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 
jj TTO'XI?. The city-state was an organized community 
enjoying independence, autonomy, avrovoiuua, 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. 



In Greece 



city-common- 
wealth. 



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. 1 

Such organization is undoubtedly derived from the Tribal group- 

... -11 11 i 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 
association a-vvoiKia-tg 2 or o-vvoucurfjios 3 of 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 a Double 
twofold allegiance primarily and predominantly to his ^e Greek. f 
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- j 
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. *Cf. Thucydides, ii. 15. 

3 Cf. Polybius, iv. 33. 7. 



30 CITY-STATES AND GREEK CIRCLE 

The Hellenic Perfection within the circle, rather than extension of 
empire or territorial aggrandisement, was the Greek 
ideal. " Les Grecs n'ont jamais eu la pense d'tendre 
leur domination sur le monde : leur ideal n'est pas la 
The Greek monarchic universelle, mais la citeV' 1 This is a remark- 
fhf Roma d n able 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. 

Heiienicrace The Greek race, like many other races in antiquity, 

superiority 1 ! f in their turn, assumed its superiority to all other peoples, 

who were looked upon as barbarians, 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 assumed, justifiable in 

Hellenic the eyes of the gods. 2 To be within the Hellenic 

common lty circle was to share in the common religion ; and to share 

religion. j n ^he Greek religion was if so 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 

evolution t ^ ^.i ^ c 

possible. between them in their capacity or 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 

y 

1 F. Laurent, Etudes sur Phistoire de rhumanlte. Histoire du droit 
des gens et des relations Internationales (Gand, 1850-1870), vol. ii. p. 3. 
2 Cf. the opinion of Aristotle, in his Politics, 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 
race, language, religion, or anything else. The Greek ^unities. 
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- 
ing their mutual relationships the epithet intermunicipal i 
law is not in reality tantamount to disclaiming the true 
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 tey ndThl ns 
not to barbarians ; but it will be shown below in detail Greek P ale - 
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. Was the law 

It has been asserted and frequently repeated by applied only to 

, . . ' . , * those bound by 

various writers, and, it is not too much to say, without treaty? 



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 evanrovSoi, that is, practically, the 
signatories to the treaty, were alone to benefit by the 
provisions of the law, whilst the e/co-7roi/&><, those not 
parties thereto, were virtually outlaws. 1 But it will be 
abundantly shown in the following pages that this is far 
from being true. 

Existence of The Greek state-system offers many examples of 

autonomous , <rr v-i T r 

states; marks different political constitutions. In one city-state, for 
rf sovereignty. ms ^ ance) 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, e.g. 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. 2 

Exciusiveness. Patriotism and keen jealousy of foreign interference 
occasioned mutual distrust and an unbending spirit of 

1 E.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. 

2 Cf. E. A. Freeman, History of federal Government In Greece and 
Italy (London, 1893), pp. 35-6. 



THEORY AND PRACTICE 33 

opposition, which frequently led to keen strife and 
obstinate wars. Thus, a rigid exclusiveness prevailed. 
Citizenship was at first very rarely bestowed on subjects 
Df 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- 
ence and self-sufficiency. It was regarded as possessing 
an adequate number of citizens capable of satisfying all 
their national needs, and of attaining to the city's ideal, 
whether from the political or from the economic point 
of view. 1 

The distinction, however, between the theory of the Buttheorytobe 
speculative thinker and the actual facts must be care- frofJTactuaf 11 
fully recognized. " To regard the political speculations P ractice - 
of Plato and Aristotle as fully representing the tone of 
political thought in Greece is like regarding the odes of 
1 Pindar as a fair expression of the waves of emotion that 
swayed the mixed rabble at the Olympian and Isthmian 
games." 2 Yet the philosopher, the theorizer, influenced 
the statesman and the legislator more in Greece than 
elsewhere. It could scarcely have been otherwise, as 
the Hellenic temperament was marked by an untiring 
curiosity and yearning to experience the unknown, to 
apply at once in practice the abstract constructions of 
the 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 
necessity of being supplemented by a mass of conven- 
tions and fictions. No actual code of laws has been characteristics 
left to us by Greece. This was scarcely possible in view of 
of the revolutionary spirit of her people, their uncom- 
promising disposition, their obstinate unwillingness to 

1 Cf. Plato, Repub. ii. p. 369 B ; Aristotle, Oecon. i. I ; Polit. iii. 
5. 14; viii. 4. 7. 

2 A. H. J. Greenidge, Handbook of Greek Constitutional History 
(London, 1896), pp. I, 2. 



34 



EXCLUSIVENESS AND RIVALRY 



Political unity 
in Greece 
impossible. 



The Greek's 
b'fe bound to 
his city. 



Causes of the 
spirit of 
exclusiveness. 



make allowances and concessions, a spirit born of, and 
fostered by, a devotion to strict logical consistency, a 
spirit that was ultimately to prove their undoing. 

The intense patriotism of the Greeks promoted an 
attitude of civic seclusion. The spirit of separateness, 
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 almost 
indissoluble tie ; he was ready to give up his life for 
it, since he was indebted to it for his privileges, for 
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 underlying 
conceptions were retained even at the latest stages of 
Greek history. Even in regard to the colonial system, 
the desire for autonomy and separateness was every- 
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, 1 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, 2 the democratic republics 

1 " La nature physique a sans nul doute quelque action sur 1'histoire des 
peuples, mais les croyances de 1'homme en ont une bien plus puissante" 
(Fustel de Coulanges, La cite antique, Paris, 1900, pp. 238, 239). 

2 Pro Rhod. 8 : II/oos /xv yap eXtvOtpovs 6Was ov 
OLV eiprjvrjv vficis iroir)<ra.(r6ai vo/xtu), OTTOTC fio 

rryv <iAiav d<r<aA.TJ vo/xtfw. 



DIFFERENCES AMONGST GREEKS 35 

contend with each other for power, for glory, but 
igainst the oligarchies they struggle for liberty, for 
:heir very existence ; with free peoples peace and 
equality are attainable, with oligarchic governments 
^veil-nigh impossible, so that there can never be 
narmony between the passion for equality and the 
passion to predominate. Thus we get a constant and Constant 
uncompromising hostility between Athens and Sparta, 
the one the most powerful and frequently chosen leader 
of 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, 1 legitimate marriage (eiriya^la) between 
citizens of different States is impossible, in the absence 
of a special convention ; 2 the issue of such forbidden 
marriage would be regarded as illegitimate, and as 
possessing no rights of citizenship. 3 

In this unceasing rivalry, ties of kinship were dis- Differences 
regarded, and minor differences in character or tempera- a^f^S 
ment became intensified. Theophrastus emphasizes the Greeks - 
existence of such differences among the Greeks. 4 
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 

1 Cf. Ovid, Me tarn. xv. 29 : 

"... prohibent discedere leges, 
Poenaque mors posita est patriam mutare volenti." 

- Cf. Lysias, De antlqua reipubllcae forma, 3 ; Isocrates, Plataicus, 
51 ; Demosth. Pro Corona, 91. As to similar provisions relating 
to the Roman ius connubii, cf. Gaius, Ins fit. i. 67 ; Ulpian, Reg. v. 4 ; 
Livy, xxxviii. 36 ; xliii. 3. 

3 Cf. Pollux, Qnomasticon, iii. 21 : vo@o<s 6 K fvr)s f) TraAAcuaSos 
. . . 6's av e atrTTjs yevr/Ttu voOov ?vcu (a law cited by Athenaeus, 
c Deipnosophistae 1 xiii. 38); Demosth. In Neaeram, 16 ; Plutarch, 
Pericles, 37. 

4 See the preface to his Characters : . . . o-v/x/Se/J^Kev ^/xiv oi5 ri)v 
avryv TOL^LV rCtv T/OOTTWV 



Frequent 
attempts at 
effecting a 
union. 



The Amphic- 
tyonic league. 



Other 
associations. 



LEAGUES AND ASSOCIATIONS 






gluttony. 1 Sometimes a city was elated with such 
great pride and vanity as to become blind to th 
excellent qualities of others ; as, for example, wher 
Pindar was fined by his Theban countrymen foi 
designating the Athenians "the ornament and ramparl 
of Greece," 2 but Athens repaid him a double sum 
erected a statue to him, and declared him the guesl 
of the Republic. 3 

From time to time, however, a longing for union 
was felt. It showed itself first in the interests o; 
religion, when leagues and associations were established 
between neighbouring cities for the protection or 
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. 4 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 



1 Cf. Eubul. ap. Athen. x. 1 1 : . . . ov 7rA?j/>i /3porun>, ov/c 

dyaBov j and again, . . . oXovs Tpa\^\ov<s. 

2 Pindar, Olymp. vi. 147 j^. 

3 Aeschines, Eput. 4. ; Isocrates, De permut. 166. 
4 See G. de Sainte-Croix, <Des anciens gouvernements federates 
(Paris, 1798), c. vii. 



ASSOCIATIONS AND HEGEMONY 37 

destroyed by the barbarians, on the sacrifices vowed 
to 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- 

C j L ^.u /\*U ' tions and 

of Athens, and her apprehension that an Athenian hegemony, 
hegemony might result. 1 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 ; ^Gr^kTas 
and the claims of citizenship invariably triumphed over Jj^!^ t 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 TO 
<*Ao,ua0e9 2 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. 3 

The mission of Athens, as conceived by ancient The mission 
writers, is not merely to open men's eyes to light and of Athens - 

1 Plut. Pericl. 17. 2 Plato, Repub. iv. 435 E. 

3 Cf. F. Laurent, op. cit. vol. ii. p. 18 : "Si 1'unitl politique 
leur a manque, ils ont eu 1'unite intellectuelle qui constitue la civilisa- 
tion d'un peuple." 



HELLENIC INSTABILITY 



Hellenic 
temperament 
its capri- 
ciousness. 



Ancient view 
as to Spartan 
duplicity. 



beauty, but to disseminate amongst wretched humanit 
the nourishing fruit of the earth, 1 to teach them o 
the bounteous gifts of Ceres. " . . . Athens showe 
such love for men as well as for the gods that when sh 
became the mistress of these great blessings [i.e. the gift 
of the Earth, and also mystic rites] she did not grudg 
them to the rest of the world, but shared her advantage 
with all." 2 She is further represented as having show 
the Greeks high examples of charity and consideratioi 
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." 3 

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 . . . Sia 
rtjv ava)/ma\iav rtjg (pva-eco^. For the Athenian demus, 
continues Polybius, is always in the position of a 
ship without a commander, aei ydp 

Srj/uiov 7rapa7r\^(7iov elvai crvjuL/Saivei TOI$ a< 

its discord and quarrels present a sorry 
spectacle to observers ; for in Athens, as in Thebes, 
a mob manages everything on its own unfettered 
impulse. 4 

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 . . . aXXa (fipoveovTow KOI aXXa Xeyovrcov ; 5 and 
Euripides puts into the mouth of Andromache, in her 

1 Lucretius, De rerum nat. vi. I seq. 

2 Isocrat. Panegyr. 29 : OVTO>? 17 ?roA,ts ^/zwv ov povov 
d\Xa KCU <f>L\av6pu>7ros ecr^cv, wore Kvpca yevofjievrj Tcxrovrdiv 

OVK <f>@6vr}(T TOLS CtAAotS, dAA' <OV 



TTOTC rov 



3 Plut. Cimon, 10. 



4 Polyb. vi. 44. 



ix. 53. 



EXTERNAL POLICY OF GREEKS 39 

denunciation of Menelaus, expressions of severe cen- 
sure : " O ye inhabitants of Sparta, most hated of 
mortals 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 
speaking ever one thing with the tongue but thinking 
another ?" * 

The external policy of the Greeks in general was ex- External policy 
tremely variable. In the democracies, the foreign policy 
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 

J i f 9 i 11 o aliens in the 

intercourse with foreigners, but navigation generally ; 3 aristocracies, 
foreigners were expelled, 4 and Spartans were forbidden e -& s P arta - 
to go abroad. Later, the foreign trade was mainly 
in the hands of the perioed. Sparta's military ideal was 
inconsistent with foreign commercial relationships. As 
Montesquieu remarks : " Lacdmone 6tait une arme"e 
entretenue par des paysans " 5 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." 6 

1 Eurip. Androm. 466 seq. (445 seq. t ed. Nauck) : 

(5 TTOCTtV dvOptoTTOKTlV t\6l(TTQl fipOTlOV 

ei/oiKoi, SoAta /JovAeirnJ/oia, 
a.voiKT<s y {Jir}-)^avoppd(f)Oi KOLKIOV, 
KovStv vyus, aAAa Trav 



ov Aeyovres aAAa fj.v 

' CtAA' 



2 Plut. Lycurg. 9. 8 Plut. Ins fit, Lacon. 42. 

4 Plut. Lycurg. 27 ; lustit. Lacon. 19. 

5 De ? esprit des his, ixiii. 1 7. 

6 Laws, ii. 666 E : . . . a-rparoTrcSov yap TroXirtiav CXCTC, aAA 5 OVK 



40 ATTITUDE TO FOREIGNERS 

Antipathy There was everywhere and at all times a greater or 

general? 1161 ~ lesser antipathy to foreigners, to dwellers outside the 
Greek circle. 1 The citizens of one city regarded those 
of another as aliens in the narrower political sense ; but 
"Barbarians." 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 
Hellenes ra iepa TO. KOLVOL r^? "EXXa^o?, 2 Oeovs TOV? 
o/xo/3ft>/u/ov9 Kal KOIVOVS TWV 'EXX?ji'a>v ; 3 and when Aristo- 
phanes urges his countrymen to cease their intestine 
struggles, he makes use of such phraseology as this : 

. o? /xias ye xpvi/3o<s 



When the Persians offered the Athenians their 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." 5 

Barbarians Thus Aristotle held that barbarians were destined by 

for e Savery. 0n * nature to be the slaves of the Greeks : A> tyaviv ol 

TroirjTcu : " fiappdpwv ' "EXX^i/a? ap-^eiv CMOS" a>? rauro 

(pva-ei /3dp/3apov KOI $ov\ov ov. Q And originally (not to 

enter here into any distinctions which will be later set 

J Cf. Dion. Hal. i. 31 ; iv. 25. 2 iii. 58. 3 iii. 59; v. 18. 
*Lysistrata, 1130-1. 

5 Herodot. viii. 144 : on ovre. \pwos lorn y>}s ovSapoOt TOO-OVTOS, 
KOL 



'EXXryvt/cov tbv o/xat/xov re /cat 6/xoyXaxrcro^, KCU Oewv ISpvfiard 
KOIVOL KOI Ovcricu, ijOfd T ojUOT/ooTra. TWV Trpoooras yi>(r&aL ' 
OVK av v \OL. Cf. Plut. Amtld. IO. 
i. i. 5. 



ALIENS AND HOSTILITY THEORY 41 

forth) with the Romans as well as with the Greeks, the 
expressions for stranger, barbarian, and enemy were 
sometimes used as synonymous. At the assembly of 
the Aetolians (called the Panaetolium) one of Philip's 
ambassadors, in the course of a speech directed against 
foreigners 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." 1 

But different sentiments were not infrequently ex- Aspirations 
pressed as to the virtue and desirability of equality. to equallty - 
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." 2 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, f^yond^he 
Thus in China there was a bond of sympathy between 
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.'" 3 

1 Livy, xxxi. 27 : " cum alienigenis, cum barbaris aeternum omnibus 
Graecis bellum est eritque ; natura enim quae perpetua est, non 
mutabilibus causis hostes sunt." 

2 Eurip. Phoeniss. 536 seq. : 



KLVO KaiOV, T6KVOV, 



aet 



TO yap urov v6fj.ifj.ov av#/>a>7rots 
Cf. Eurip. Fragm. 60 ; Thespis, Fragm. 6. 

8 W. A. P. Martin, "Traces of international law in Ancient China" 
in International Review, New York, vol. xiv. (1883), p. 69. 



42 THE STATE AND THE INDIVIDUAL 



Interest of 
the State 
the supreme 
consideration. 



The interest of the State was everywhere the supreme 
consideration. The theory was that the citizens existed 
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 ancient 
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." 1 



1 Philemon, Fragm. ed. Didot : 
7roit, (rv 8' vyeviei<$ TYJV TTO\LV 



y TroAis erou TO yci/os 



CHAPTER II 

- 

GREEK CONCEPTION OF LAW. TO WHAT EXTENT 
THE GREEKS RECOGNIZED AN INTERNATIONAL 
LAW 

ANCIENT law is an embodiment of categorical commands General nature 
without assigning reasons therefor. It is an imposition of ancient law - 
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 
difficult 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 re lglon ' 
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 fons S istu. wa ' 
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 



44 



RELIGION AND LAW 



Mere addition 
of new laws 
rather than 
abrogation. 



dispositions. Complete nullification would be a stigma, 
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. 1 

In every case to serve the laws is, as Plato insists, to 
serve the gods. 2 In the Crito^ Socrates is represented 
as laying down his life because the laws demand it of 
him ; disobedience would be sacrilege. Ihering, 3 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 iiberall, 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 : 4 



1 Cf. Andocides, De my sterns, 83 : "ESo^e TW &j/xa>, Twra/uvbs 
7roAiTevT0ai 'AOvjvaiov? /card ra Trar/ota, vo/xots Se xPW^ aL 
SoAwvos, . . . \pfj(r6ai Se KOL rots A/XXKOVTOS #oyAO?s, oT&irep e^/aw/xe^a 
ev T<> irpoo-Otv XP V( P* See also Pollux, ix. 6 1 ; Demosth. In Leptinem y 
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. 1 8). 

2 Laws, vi. 762 E. 

3 Geist des romischen Rechts, vol. i. pp. 256 seq.\ cf. Fustel de 
Coulanges, La cite antique, passim. 

4 ix. 41 : rots /xf <j>paTpiCLKa<s \pir)<$>o<f>opi(L<s e'Set Trpoj3ov\V(rafj,vr)s 
TT}S /?ovA^s K<xi TOV irXiijOovs Kara (ftpdrpas ras 



ATHENIAN RELIGIOUSNESS 45 

4C In 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 
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" 1 
one occasion when the tribunes of the plebs proposed asp^ctfends 
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?" 1 Fustel Relation 
de Coulanges thus sums up the relationship between anSenUaw 
ancient law and religion : " Chez les Grecs et chez les and reli g ion - 
Remains, comme chez les Hindous, la loi fut d'abord 
une partie de la religion. Les anciens codes des cits 
etaient un ensemble de rites, de prescriptions liturgiques, 
de prires, en meme temps que de dispositions legisla- 
tives. Les regies du droit de propriete et du droit de 
succession y Etaient ^parses au milieu des regies relatives 
aux sacrifices, a la sepulture et au culte des morts." 2 

Religion everywhere permeated the public and private Athenian 
lives both of the Greeks and of the Romans, at least reli s iousness - 
in their earlier history. The religiousness of the 
Athenians was particularly notable. Xenophon says 
they had more religious festivals than any other Greek 
people, 3 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. 4 Plato often refers to the 

KCU p.T J a//,<oT/)a Tavra TWV Trapa TOV Saipoviov cr?7/xetwi/ re KCU 

OlWVWl/ /AT/Sci/ tVCLVT 1(1)6 VT(i)V, TOT KU/OtaS flvOLL. 

1 Dion. Hal. x. 4 : TIVOS o&> vp.lv ert jueTco-rt ruy icpuv KOL 
<r/?ao-/Aov Seo/Aeyeof, &v ei/ TI KCU 6 vo/xos r)v. . . . Livy likewise refers 
to the incapacity of the plebs and the tribunes to establish a law 
" . . . nee plebem nee tribunes legem ferre posse" (ii. 41). 

2 Op. cit. p. 218. 3 Resp. Ath. iii. 2 ; cf. Pausanias, i. 24. 
*Oedip. Col. 1007-8: 

. . . t TIS f OtOVS 7TlCTTaTat 



SANCTION OF ANCIENT LAW 



Ancient 
sanction of 
positive law. 



Was there 
international 
law among the 
ancients ? 
Denied by 
many writers : 
Kent. 



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 to 
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 : 
u The silent worship of the Lacedaemonians pleaseth 
me better than all the offerings of the other Hellenes." : 
In early times the raison d'etre of a law was for the 
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. 2 

Had the ancients international law ? Various modern 
writers have expressed very disparaging opinions con- 
cerning ancient international law. Thus Kent, in his 



j ii. 148, 149: . . . ot TrAciVras, <aVcu, fAtv Qvcrtas /cat 
KaAAwrras rtov 'EAA^van/ ayo/xev, ai/a&y/xacri re KCKOoy/^/ca/xcv TO, 
tepa avTiav a>s ovSei/es aAAoi, 7ro//,7ras TC TroAvrcAco-TaYas /cat cre/xvo- 
raras e8<apovfj,e6a TOL<S OCOLS av CKCKTTOI/ ITOS KCU t 
6Va ovS' ot aAAot v/i,7ravTs"EAA?7i/9 . . . 

. . . <f>r)<rlv av j3ov\eo-6ai avrtp TTJV AaKcSat 
/xaAAov YI TO, vfJLTravra TWI> *EAA^V(ov iepa. 

2 Cf. M. Muller- 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 iiberhaupt 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. 1 
Verge, in his Introduction to the French edition of v e rg6. 
Martens' Pricis, 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 
rights ; 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 
through religious sentiment. 3 According to Laurent : 4 Laurent. 
" Les Grecs bien que freres [referring to an expression 
of Plato], ne se croyaient lies ni par le droit ni 
par 1'humanite; ils ne se reconnaissaient d'obligations 

*P. II. 

2 G. F. de Martens, Precis du droit des gens moderne (Paris, 1864), 
vol. i., Introd. by C. Verge, p. viii : "C'est que 1'idee-mere du droit des 
gens ne s'etait pas encore manifestee dans le monde. . . . Quant au 
respect pour la qualite d'homme, pour Tinviolabilite des territoires, il 
n'en etait pas question : Pexclusivisme religieux et politique, tel etait 
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 ; 1'etranger etait un ennemi, ou tout au moins, un 
espion. En temps de guerre chacun se croyait tout permis ; injuste 
dans ses origines, barbare dans ses precedes, la guerre etait Tetat 
normal des populations anciennes, comme la paix semble devoir etre 
l'6tat normal des nations modernes." 

3 Ibid. p. 60 : "... Les traites n'etaient point respected, et Tin- 
violabilite des ambassadeurs tenait moins au respect du droit qu'4 
un sentiment religieux fortifie par des serments et des sacrifices." 

4 Op. cit. vol. ii. p. 117. 



48 MODERN OBJECTIONS 

reciproques que lorsqu'un traite les avait stipulees. La 
notion de devoirs decoulant de la nature de rhomme 
reconnue par les philosophes n'entra pas dans le domaine 
des relations Internationales." This statement is cited 
without question or discussion or personal investigation 
Maury. by Maury, 1 and the same conception is entertained by 
Guizot. Guizot : 2 " Dans 1'antiquite paienne, meme sur ses plus 
beaux theatres et dans ses plus beaux jours, les etran- 
gers etaient des ennemis. A moins que des conventions 
particulieres et precises n'eussent ete conclues entre 
deux nations, elles se consideraient comme absolument 
etrangeres Tune a 1'autre et naturellement hostiles. La 
force presidait seule a leurs rapports ; le droit des gens 
n'existait pas. A peine les plus grands esprits de 
Fantiquite, Aristote et Ciceron, en ont-ils con9u quelque 
idee ; a peine rencontre-t-on dans I'histoire entre les 
Etats divers quelques instincts vagues et passagers de 
wheaton. 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 Hva-irovSoi, 
the parties to the contract, alone benefited by the rights 
and obligations thus agreed upon, and that the eKo-TrovSoi, 
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 3 and Plutarch 4 ) 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 5 ) was guided by State interest rather than by 
justice ; 6 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 

1 A. Maury, Histoire des religions de la Grece antique, 3 torn. (Paris, 
1856-9), t. iii. pp. 401-2. 

^Veglise et la societe chretiennes en 1861 (Paris, 1861), c. xiv. p. 101. 
*DeRepub. iii. 9. 4 Alcib. 15. . 5 Plut. Aristid. 25. Q lbid. 



THEIR UNTENABILITY 49 

rthis narrow attitude of State interest, irrespective of all 
other considerations, represents "le dernier mot de 
1'antiquite sur la justice internationale." 1 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 
always based on the sacred law, and formed an integral 
portion of it, so that a body of rules resting on such 
" geringe Stufe," 2 as a German writer slightingly puts it, Heffter. 
can scarcely be considered the " law of nations.'* 

Now all this criticism is largely untenable. It is objections to 
extreme and one-sided. It fails to take due account of 
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 part 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. at. t. ii. p. 1 90. 

2 A. W. Heffter, Das Europaische Volkerrecht der Gegenwart, ed. 
F. H. Geffcken (Berlin, 1881), p. 12 : "Will man nun dieses das 
Vslkerrecht der alten Welt nennen, so la"sst sich nicht widersprechen ; 
gewiss stand es auf sehr geringer Stufe ; es war ein Teil des Religions- 
rechts aller oder doch bestimmter Nationen." 

D 



Difficulty 
in making 
generaliza- 
tions. 



Existence 
of elements of 
international 
law in Greece 
and Rome. 



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 obser- 
vations of the above-mentioned and similar writers. 

Where human beings and human affairs are concerned, 
generalizations of an extreme character are never true. 
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 unchanging. 
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. 

Ample evidence will, it is hoped, be adduced in the 
following pages to prove that more than mere rudiments 
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, 



JURIDICAL NATURE OF RULES 51 

unless this refers to the assumption of a certain hos- 
tile attitude towards the barbarian. But such attitude 
was not in reality (apart from utterances of a merely 
theoretical description) any more hostile than that of the 
modern civilized States with respect to the uncivilized 
.peoples. Further, it will be seen that the eKanrovSoi Real 
were not deemed outlaws, that liberty to break treaties 



'was no more admitted than it is now. The modern and 
misapplication of the terms evo-irovSoi and cKo-TrovSot is 
generally due to disregard of the fact that u peace " with 
the Greeks, as with the Romans, meant two things : in 
ithe first place, a formal treaty of peace, a peace by 
covenant, concluded with solemn ceremonial, with the 
indispensable oaths and libations ; and secondly, it 
implied the natural and ordinary condition of civilized 
! human beings and regularly organized communities. 

And as to the argument that because a certain code Does 
of conduct in international relations draws its sanction ^religion 
from religion, it cannot therefore be described as pos- ^stroy the 

p .77 i r character of 

sessmg the character of international law, the answer is international 
that it is of no consequence at all where the sanction la 
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 
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 juri- juridical 
dical nature of ancient rules obtaining between States is anSruies. 
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, 



PUBLIC AND PRIVATE LAW 



Usage as a 
source of the 
law of nations. 



Is Laurent's 

criticism 

valid? 



The 



No sharp 
distinction 
between 
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 rules 
established by usage, " les regies que Tusage a etablies 
pour les relations des peuples," as not being of sufficient 
importance, and not deserving of being raised to the 
"dignite 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 actual 
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 the 
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 ; 



UNIVERSAL AND PARTICULAR LAW 53 

but in so far as they were communities of civilized 
human beings, certain laws would be common to all, as 
their applicability is inevitably determined by universal 
nature. Hence the distinction between private or par- 
ticular law, "Sios j/o/xo?, and common or universal law, 
KOIVO? vo^ ; and it is this KOIVOS vo/j.o? which is the great 
source of the law between nations. 1 

Aristotle, in his Rhetoric, thus notes the difference : Aristotle on 
" I regard law as either particular or universal, meaning and" lv 
by * particular' the law ordained by a particular people for ^ P articular ' 
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 
less, a natural and universal principle of right and wrong, 
independent of any mutual intercourse or compact." 2 
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 right in accordance with the law of nature : 

ov ydp TI vvv ye Ka^Oes, aAA' aet TTOTC 
fj Tairra, KovSeis otofv c OTOV' <j>dvrj. s 

(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 : 

dAAa TO /AV TravTCov vo/w/xwv 8id T' ev/ov/xeSovTOS 
aWtpos rjvKd)? reraTat Sta T' (XTrAeTov cu; yijs. 4 
(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 (jiSioi)^ and uni- 

1 On the conception of the Hellenic KOIVOS VO/AOS, see A. Bonucci, 
La legge comune net pensiero greco (Perugia, 1903). 

2 Rhet. i.13: Acyw 8 v6fj.ov TOV /ACV TSiov TOV <$e KOIVOV, tSiov /xcv 
TOV eKcurrois wpi<rfj.vov irpus airrovs, KCU TOVTOV TOV />tV aypa.<f>ov TOV 
8 yeypafj.fj.tvov, icotvbv 8e TOV KaTa <vcriv. IcrTt ydp, o /ActvTevovTat 

Tt 7TaVTS, <f>VCTl KOtVOV StKCUOV Kttt ttStKOV, KttV (JLTJOefllO. KOtVWVltt 7T/)OS 

aAA^Aoi's TI fj,rjO o"vv&rjKr). . . . 

8 Soph. Antig. 11. 456-7. 4 IIcpi ^>iVco>s, 11. 380-1, ed. Sturz. 






54 NATURAL AND CONVENTIONAL LAW 



The written 
law, and the 
common law of 
mankind. 

Natural and 
conventional 
justice. 



versal (JMMI/O?), defines particular law as the written law, 
the statutes of any given State, and universal law as the 
unwritten (aypa(f)o$\ 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, rov 
VOJULOV, with the law common to all men, TOV 



KOLVOV 



Force of 
custom. 



The same distinction is drawn elsewhere: 3 "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. 4 

The well-known maxim of Pindar, which is quoted 

1 Rhet. i. IO : vojaos 8' rrtv, 6 i*kv tStos, 6 8e KOLVOS. Aeyto Se 
iSiov fjxv Kad* ov yypafj,fj.vov TroAiTevovTai* KOLVOV oe oo~a aypafya 
Trapa TTOOTLV 6/AoAoyto-0cu SoKt. 

2 Cf. for example, c . Anstoc. 6 1 . 

3 Nic. Eth. v. IO : TOV Se TroAiTtKov oiKaiov TO pzv <f>vo~LKov ecm TO 
8c VO/AIKOI/, <f>vcriKov fj,V TO Tcavra^ov TT))' avrrjv e^ov SvvafjLtv, /cat 

OV TO) 8o/ClV f) jJLTf], VOfJLLKOV 8t O l PX^ S P* V vQ*V 8ta^>/)6 OUTCOS ^ 

aAAws, 6Vav 8e 0tai/Tai, 8ia</oet, oibv rb [JLvas XvrpovvOai. . . . 

4 Pol. iii. 1 6. 9: Tt Kvpiwrepoi /cat TTC/OI KVpi<j)Tpwv TWV KaTa 
ypdpfjiara v6p,<DV ol Kara ra tOv) eio-iv, WO*T' et TWV KaTa ypappaTa 
avOpwros apx<v ao-^aAecrTe/oos, aAA' ov TWI/ KaTa T^ c6o<s. 



MORAL AND POSITIVE LAW 55 

by Herodotus, 1 that ct custom is the king of all things," 
TTOLVTWV /3curi\a, 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. 

Thus, in the Digest it is stated that the philosopher 
Chrysippus began his book entitled Trepl VO/ULOV (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." 2 

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 
replied that those laws were not ordained by Zeus, 
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 ? 

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." 3 

Mii. 38. 

2 Cf. Dig. i. 3 (De legibus senatusque consultis et longa con- 



suetudine), 2 : 6 VO/AOS Trai/rwv rrt /JacnAevs Oeiw re /cat 
TTpayftaTW Set Sc avrov Trpoarra.Tf]v T eTvai TU>V /caA.c3y /cat TWV 
aurxptov /cat apxovra /cat ^ye/AoVa, /cat /caret TOVTO /cavoVa re eti/ai 
St/cat'cov /cat d8i/ca>v /cat TWV <^ucrct 7roA,iTt/cwi/ ^wv, 7r/3OO"Ta/cTt/cbv fj.V 
<5v TTot^reov, aVayo/aevriKoi/ Se (5v ov Trotryreov. 
3 Soph. Antlg. 450 seq.i 

KR. (TV 8' t7T jMOl fir) pfjKOS, d\\a (TUVTO/ZW?, 



AN. y8r)' TI 8' ov/c fj.e\\ov fj,<f>avr) yap 
KR. /cat &JT' croA/xas rova-8' VTTepfiaivtiv 



56 MORAL AND DIVINE LAW 

Different interpretations have been given of the action 
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 of 
the natural or divine law, the other by disobedience of 
the conventional law ; and both are ultimately punished 
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. 2 

Moral law and 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." 



AN. ov yap ri /xoi Zevs 

ov& rj VVOIKOS TWV Kara) ^ewv 
crS' 4v ai/0/oawroicriv wpto-cv 
<r6evLv TOCTOVTOV wo/x^i/ TO. era 

', OXTT' dypairra Kaar<j>a\fj 0t5i> 
vo/u/xa SvvacrOcu Ovrjrov 6v6' V 
ov yap TL vvv yc Ka^dcs aAA' act 
77 rcurra, KOvSets otScv e OTOV 

1 Religionsphtlosophie, ii. 1 1 4. 

2 See the Introduction, p. xxii, and notes, passim, in Jebb's edition 
and translation of the Antigone. 

3 Oedip. Tyr. 863 seq. : 

XO. et jtxot 



fiolpa TOLV evarerrrov ayvciav Aoywv 



e/oywv T TTCIVTWV, (v 
^^tVoSes, ovpaviav 
Si' aWepa, TeKi/a>$VT?, 
Trarrjp /AOVOS, ovSe viv 
6avra <J)V<ri<s avepwi/ 

TtKTV, ovSe pav TTOTC XaOa KaTaKOifjidcrei+ 
kv rovrots ^eos, ovSe 



GENERAL OR COMMON LAW 57 

This idea is of frequent recurrence in Greek literature, 
La conspicuous instance being Plato's Apologia. In 
HHomer and elsewhere the duty of vouchsafing hospi- 
tality to suppliants is regarded as being directly en- 
joined by Zeus. 1 

The expression ' natural law ' is liable to misinterpre- The term 
tation. Briefly it may be said that c natural ' is to be often 1 
.understood in the sense of ' rational/ Law is reason misinter preted. 
unaffected by desire, 2 as Aristotle emphasizes Stoirep 
avev ope^ew vov<s 6 i/o/xo? earTtv. 

One often speaks of an individual's * nature ' in the 
sense of his desires, his peculiarities, which may, 
indeed, defeat or obscure his real fundamental nature. 
Thus positive law is essential as a corrective. " The Relation of 
-whole life of men, O Athenians, whether they inhabit SSSSftew. l 
a 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 
regular, 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 
desire 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." 3 

A certain application of these conceptions and distinc- Expressions 

. i , r i /" i i c for general or 

tions is seen in the sphere or the Greek law or nations, common law. 
We find writers frequently referring to " the laws of 

1 Cf. the article by J. Bryce on the Law of Nature, in his Studies 
in History and Jurisprudence, Oxford, 1901, vol. ii. pp. 112 seq. 

*Po/if. iii. 1 6. 5. 

3 [Demosth.] c . Aristogiton, i. 1 6 : ... S6y/*a <$' avtf/owrrcoi/ <j>povifj,<ov, 
tTravopBufJia 3e TU>V CJCOOTICDV KCU aKOVonW d/xaprrj/A 
<rvv6i']Kr) Kotvrj, KO.& rjv Tracrt TrpocrrjKti f?ji> rots cv ry 



58 INTERSTATAL LAW UNWRITTEN 

Hellenes," " the common laws of Hellas," " the laws 
of mankind," " the laws common to men," etc. Hence 
expressions such as the following are constantly used 

TOL TWV 'EXX>/I/ft)J/ VOjULljULa ; l TO. TTOLVTCDV CtvOpCOTTCOV 
TCI KOLVOL TWV 'EXA^I/Wl/ VOJULl/ULCL \ KOLVOl VOJULOl ' y KOLVOL 

TV? ' EXXa^o? ; ra KOLVOL TWV avOpcoTrwv 0tj (KOI. VO/ULI/ULCL) ; 3 o 

KOtVol TU)V OLvOpWTTWV VO/ULOl ; 4 TOL KCLTCL KOLVOV O)pl<TIULVa OLKaia 

'Trap av6pu>7TOLS ; 5 ra irpos rot'? avOpu>7rov$ oiKaia (KOLL ra 
TTjOO? roy? 6eov$ OQ-LCL) ; 6 VOJULIJULCL Trda-rjs (<ru'y^eoj/Ta9) f E\Xa^09 > 7 
and the like. 

Presence of Though a large number of important rules and 
do a es y not em ts practices of international law are implied in these 
necessarily expressions, one must not expect to find, as Schoemann 

imply a perfect r . riiriji 

system. point s out, an entire system or clearly formulated legal 

dispositions. " Darunter sind aber keine bestimmt 
formulirte und ausdriicklich verabredete Satzungen 
zu verstehn denn dergleichen gab es nur einige wenige 
zwischen verschiedenen Staaten." 8 

Unwritten law The underlying principles belong mainly to the 
"^o^ law of class of unwritten laws VO/ULOL aypafyoi deriving their 
force and juridical validity from the regular insistence 
of tradition and inveterate custom, and having for their 
sanction the will of the gods. " Sie gehSren sammtlich 
zur Classe der ungeschriebenen Gesetze (VO/JLOI aypoxpoi) 
die als Sitte und Herkommen gelten, und zu deren 
Beobachtung man sich durch eine sittliche Scheu oder 
durch religiose Verehrung der Getter verpflichtet fiihlt, 
von denen sie herruhren und den Menschen ins Herz 
geschrieben sind." 9 

1 Thuc. iv. 97 ; Diod. Sic. xix. 63. 

2 Thuc. i. 3 ; i. 118 ; Plut. Pericl. 17 ; etc. 

3 Polyb. i. 70. 6 ; iv. 67. 4. 4 Ibid. ii. 58. ^Ibid. iv. 6. ii. 

Q lbid. xxii. 13. 8 ; ii. 8. 12. 7 Eurip. Suppl. 311. 

8 G. F. Schoemann, Griechische dlterthlimer, 2 vols., 4th ed. by 
J. H. Lipsius (Berlin, 1897-1902), vol. ii. p. 2. 

9 Hid. On the force and significance of the unwritten law gener- 
ally in antiquity, and especially in Greece, see R. Hirzel, "Ay/Da<f>o? 
vo/xos, in Jtbhandlungen der philologisch-historischen Classe der koniglich 
s'dchmchen Gesellschaft der Wiutnsckaften, Bd. xx. No. i (Leipzig, 
1900), pp. 23 seq. 



LAWS OF GREEKS AND LAWS OF MEN 59 

Further, a certain distinction was drawn between the Distinction 
'Maws of the Hellenes," and the "laws of all men," 

I based on the broader distinction between Greeks and 
barbarians. The ito/uupa rw 'EXA>/i/a>i/, consisting partly ail men." 

! -of 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 
were sometimes also adopted, as a special concession 
or as a recognition of a broader reciprocity, in relation- 
ships with non-Hellenic communities. The vdjuuima. ru>v 
avOpwTTcov, 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, 
a 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, 1 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 VOJUUJULO. TWV avOpwircov, are frequently 
employed with varying contents ; for example, the 
VO/ULI/ULO. T&v avOpcoTTtov 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 

1 E.g. in his Medea, 536 seq., 133 seq. ; Hecuba, 1199 seq* ; 
Heraclid. 130 seq. ; lphig> in Tauris, 1399 seq. ; Androm. 173 seq. 



6o 



ANCIENT INTERNATIONAL LAW 



Ancient 
elements of 
international 
law. 



Difference 
between the 
ancient and 
the modern 
conceptions. 



to relationships with the barbarians. Thus, th 
slaughter of the Persian envoys by the Athenian 
and Spartans was confessedly a transgression of th 
VO/JUJULCL TWV avOpwTrwv, as a law of the human race gener- 
ally, and not merely as a law applicable exclusively to 
the barbarians. And Xerxes recognized and submitted 
to such general law, when he answered, on suggestions 
being made to him that he should resort to similar 
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. 1 



That the ancients possessed a complete system of 
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 enlightened 
times ? To deny the existence of ancient international 
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 



1 Herodot. vii. 136 : ... ov/c ec^ry O/AOIOS ecrccr&zi 
Ktvov$ jLiev yap crvy^eat ra TravTcoi/ avdputirw vo/u/za, aT 

avros 8e, TO, /cetvoMri eTriTrA^crcra, TO.VTO. ov Troirja'civ. . 



ANCIENT AND MODERN VIEWS 61 

as firmly established as they are now. To admit this is 
not to imply the admission that international law then 
was a non-entity, but simply to concede that it had 
not the breadth, the completeness, the firm basis, 
the scientific co-ordination of the modern law. Natur- 
ally the ancients had not yet arrived at the modern 
conception which, as Fusinato remarks, presupposes 
the voluntary recognition of law on the part of 
organized States in free co-existence, equal and autono- 
mous, 1 and, it may be added, such unreserved recog- 
nition of law being related to the insistence on a strictly 
positive sanction. Various writers urge that the law of Notion of 
nations is, on the one hand, inconsistent with the notion of ^ chosen r 
of a u chosen race," based on the grounds either of f^ofnaSons 
religion or of culture, and, on the other, with the notion 
of 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 Volker- 
recht ist unvertra"glich mit dem Gedanken eines, sei 
es durch einem besonderen Bund mit der Gottheit, sei 
es durch eine iiberlegene 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 gait, konnte 
ein Volkerrecht sich nicht entwickeln. Das Volkerrecht 
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 

1 G. Fusinato, Dei feziali e del diritto fezlale (in Attl delta Reale 
Accademia del Lincei, 1883-4. ^er'ie Terza. Memorie della C fosse dl 
.scienze morali, storiche e filologiche, vol. xiii.), p. 455 : " Certamente 
i Romani, come tutti gli altri popoli delP antichita, non ebbero ne 
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." 

2 F. von Liszt, Das Volkerrecht systematisch dargettellt (Berlin, 
1906), p. 15. 



62 



INTERMUNICIPAL LAW 



and scientifically systematized body of law does not 
in itself, render juridically inapplicable the element 
that do exist; and that the denial of equality wa 
based on a speculative theory, which was more o 
the nature of a phantasm than of an effective guid< 
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- 



"inter- 

iaw" C and 

international mun i c ip a l l aw> i O n the ground of the admitted natural 

bonds between the Hellenic States, based on the com- 



KOI 
re 



munity of origin, customs, language, religion, as 
Herodotus says : TO 'EXA^w/coy eov oju.aiju.6v re 
. ojuLoyXcocrcrov KCU Oewv iSujmard re KOIVGL KOLL Ova-iai %6ed 
6fj.6rpo7ra. 2 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 c 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 3 that the 
universal' Hellenic law of nations was rather 'universal' than 
international ' international/ the answer immediately follows that the 
law. 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- 

1 Cf. T. A. Walker, History of the Law of Nations (Cambridge, 1 899), 
p. 38. 



viii. 144. 



8 Walker, op. cit. p. 43. 



MAIN ELEMENTS THEREOF 63 

rly insisted on and such practices regularly applied 
ween independent and sovereign nations. 
Apart from the pride of race and the hostile attitude to Patriotism 
reigners (which have been so much misrepresented by 
odern writers who have made their own exaggerated 
estimate testify to the very impossibility of ancient inter- 
lational law), ineradicable patriotism and ceaseless rivalry 
pf the Greeks prevented to a large extent the more rapid 
ind complete development of the law of nations. The 
accessary condition of political equilibrium was absent Political 
for the most part. The Corinthians' reproach that r^ 1 
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 
especially so when in the ascendant. Confederacies were 
often established for the protection of common interests, 
sometimes even for self-preservation, the most powerful 
member assuming of its own accord, or being conceded 
by the remaining members, the hegemony which invari- 
ably tended to develop into sovereignty. Hence a 
continual conflict between the necessity of alliances and 
the spirit of independence. Athens and Sparta were 
the 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 
servation of political equilibrium was the existence of so of 
many States, and of such small States, in comparative 
proximity to each other ; and, as a consequence of this, 
the fact that the citizens of the respective States were 
:the 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, in any case, 
shows a decided advance on antecedent law both in nations an 
theory and in practice. The main matters it comprised ^^^^ 
are as follows : various questions of private international Main sub j ect . 
law, 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 tc 
the modern consular system) ; questions of public inter 
national law in time of peace, such as hospitality, right 
of asylum, extradition, position of ambassadors, and char- 
acter of diplomatic negotiations, treaties and alliances, 
colonies, balance of power and right of intervention, in- 
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 of 
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 the 
treatment of the shipwrecked, nautodikai and jurisdiction 
of the admiralty court, embargo, blockade, piracy, etc. 

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 
or marble tablets, of which a large number of texts are 
extant, 1 and partly in the works of contemporary histori 
cal and other writers. Though a great many docu- 
mentary records have been lost, as, for example, that of 
the famous peace of Antalcidas concluded with Persia in 
387 B.C., the science of epigraphy has been a veritable 
revelation of ancient international law, and an invaluable 
supplement to and corrective of the historical writings. 
On the other hand, many of the documents which are 
preserved regulate the differences only of obscure and 
unimportant cities ; nevertheless they throw light on 
the negotiations that probably took place between the 
more considerable States. Further, various public and 
interstatal transactions are inferred from the legends on 
medals and coins. 2 A more fugitive index, as Egger 

1 Some useful collections, as well as the great Corpus inscriptionum 
Graecarum, are given in the bibliography. 

2 Cf. A. de Barthelemy, Manuel de numismatique ancienne (Paris, 
i8;i), passim; and, more particularly in the case of Rome, T. 
Mommsen, Geschichte des romischen Munzzvesens (Berlin, 1860), passim. 



RECORDS OF ANCIENT PRACTICES 65 

points out, 1 is found in the reported names of galleys, 
e.g. Jtiprivrj (peace) ; Eiprjvt) Kaiirf (new or recent peace) ; 
Etp^vrj TWV aix/uLaXcoTtov (relating to prisoners of war, or 
booty) ; 2 'Ojmovoia (harmony, or unity) ; 3 ^u/m/uLa^ia 
(alliance), 4 etc. 

As to the historical and other writers we have the Historical 
testimony of Herodotus, Thucydides, Demosthenes, writin s s - 
Xenophon, Polybius, Diodorus Siculus, Dionysius, 
[Plutarch, Livy, Cicero, Aulus Gellius, certain texts in 
Gaius and the Digest, and many others. 6 Of the prin- 
ciples and practices more especially relating to the 
second century before the Christian era, Polybius is an 
invaluable authority. He is, on the one hand, far more 
reliable than writers like Livy in respect of the narration 
of facts and events, and, on the other, is more profound 
and has a much greater historical grasp and a more 
accurate notion of the historical method. He indicates 
the outlines of a " family of nations," comprising the 
Great Powers of Rome, Carthage, Macedonia, Syria and 
Egypt, and Parthia and Bactria ; States of secondary 
rank like the commonwealths of Hellas, the kingdoms 
of 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 
a structure of a philosophic law of nations " Gebaude 
des philosophischen Volkerrechts." 6 He not only 
acted as a historical reporter of events and rules, but 
examined the significance and applicability of the same, 

1 Op. '/., in the Introduction. 

2 A. Boeckh, Seewesen der Athener (Berlin, 1.840-51), p. 86. 
*lbid. p. 90. *lbid. p. 92. 

5 See bibliography as to the ancient writers consulted. 

6 R. von Scala, Die Studien des Polybios (Stuttgart, 1890), vol. i. 
p. 323 : " Auf dem Grunde peripatetischer Gelehrsamkeit aufgebaut, 
fester gegrttndet durch die an der Bekanntschaft mit Rom gewon- 
nenen Gesichtspunkte, das noch ganz anders als die orientalischen 
Vclker eine Kulturmacht darstellt, erhebt sich das polybianische 
Gebaude des philosophischen Volkerrechts." 

E 



66 RECORDS OF ANCIENT PRACTICES 



No ancient 
works on 
international 
law. 



Grotius' 
mistake. 



and made critical suggestions in favour of such an 
international policy as would have redounded to th 
greater harmony and honour of the States concerned. 

Of Greek or Roman works dealing specially witl 
international law we have scarcely a trace. Demetriu 
Phalereus (c. 345 B.C.-283 B.C.) is said to have writtei 
a treatise, and Varro (166 B.C.-27 B.C.) is reportec 
by Aulus Gellius l (and also cited by him on the questioi 
of truces) to have written a contribution on war anc 
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 Diges 
and Codex of Justinian certain scattered texts apper 
taining to the law of nations as recognized in the Romar 
civil law. 

By a curious inadvertence, Grotius says that Aristotl 
wrote a treatise on the laws of war : " Veterum philo- 
sophorum nihil exstat huius generis neque Graecorum, 
quos inter Aristoteles librum fecerat cui nomen 
Ai/cafw/xara iroXefuov . . ." ; 2 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. The 
mistake is explained by a phrase of Ammonius the 
Alexandrian grammarian (fl. c. 400 A.D.), and by the 
substitution of the word TroXewv for TroAeV^" in the titl 
of one of Aristotle's works Awccuw/xara TCOV TroXewv (th 
" laws of States," not, as Grotius had read, the " law 
of war "), of which some fragments have reached us. 



1 Nocf. Att. i. 25. 

2 Dejure belli et pacts, Proleg. 



36. 



CHAPTER III 

THE JURISTIC GENIUS OF ROME. I US NATUR4LE 
1US GENTIUM, AND KINDRED CONCEPTIONS 

AMONGST the ancient nations, the Romans possessed Difference 
the greatest juristic and political genius. The Greeks 
theorized, experimented, made tentative provisions; the 
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 l ; 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 

1 Cf. Laurent, op. dt. vol. iii. p. 3 : " La Grece represente les 
facultes brillantes de 1'imagination, pour elle la vie est un banquet 
auquel elle assiste, couronnee de fleurs et chantant des hymnes a la 
joie." 

2 Cf. 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 Ubertrafen die ROmer ihre alteren 
Vorbilder und Lehrer, furs erste durch ihre juristic he Begabung und 
inbesondere ihre grossere Fahigkeit, scharfe und klare Rechtsformen 
auszubilden, fllrs zweite durch ihren grosfarfigeren politischen Giist und 
eine Staatspraxis, die entschlossen war, sich der Welt zu bema"chtigen " 
(J. C. Bluntschli, Dat Beuterecht im Kneg und das Seebeutencht 
inbesondere, Nftrdlingen, 1878). 



68 RELIGION AND EONA 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 all 
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 and 
constantly applied. The Romans were the first people 
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 other 
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 
The principle attachment to bona fides, and constantly held up to 
Qibona fides. scorn ^ ' m con trast to her own laudable attitude, the 
infidelity, the dissimulation, the duplicity of foreign 
nations. c Punica fides,' c graeca fides/ and the like, 
became proverbial expressions of reproach. Bona fides 
was closely allied to religiousness, piety, respect for the 



IUS CIVILE AND IUS GENTIUM 69 

gods. Though for many centuries Rome was inspired 
with the " fear of God," to use Machiavelli's ex- 
pression u per piu secoli non fu mai tanto timore di 
Dio quanto in quella republica," l 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 VOJULIJULO. 'EXX^ftji/ are closely allied to the The ius civile, 
VO/ULIUJLO, avOpooTTcw, so has the Roman ius civile many n # 
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 Institutes 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. 2 
It is, again, used as synonymous with ius privatum? 
Then it is employed in contradistinction to the ius i 
honorarium, the law introduced by the edicts of the 
magistrates ; 4 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). 5 Further, ius civile is sometimes used Further 
to signify that portion of the law which is the work of 

the jurisconsults. 6 

1 Discorsi sopra la prlma deca di Tito Livio, lib. i. cap. 1 1 (della 
Religione de' Romani), in init. 

2 i. 2. i : "Nam quod quisque populus ipse sibi ius constituit, id 
ipsius civitatis proprium est, vocaturque ius civile." 

8 Just. Inst. i. z. 10. 

4 Dig. i. i (de justitia et jure), 7 : "Ius autem civile est, quod ex 
legibus, plebis scitis, senatus consultis, decretis principum, auctoritate 
prudentium venit." 

5 " 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 
a praetore adiuvabatur ; sed hie e nostra constitutione hodie recte 
heres instituitur, quasi et iure civili non incognitus " (Inst. iii. 9). 

6 Dig. i. 2 (de origine juris et omnium magistratuum et successione 
prudentium), 2.5: " His legibus latis coepit (ut naturaliter evenire 



70 THE IUS GENTIUM 

Division of Jurisconsults, historians, and other writers, including 
prfrate?and hc ' poets, frequently emphasize a tripartite division of law 
sacred. j nto public, private, and sacred ; thus, in Ausonius we 

find: 
,. 

" lus triplex, tabulae quod ter sanxere quaternae ; 
Sacrum, privatum, et populi commune quod usquam est." * 

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. 2 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. 

The ius There is a great difference of opinion as to the origin 

origin tnd' ts of the ius gentium and as to its meaning. 3 According to 
meaning. sj r Henry Maine, the ius gentium represents the totality 

Maine s view. _ i r i i i 

or common elements round 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.), z. 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), Edyll. xi. (336), p. 203, 
11. 61-62. 

2 De offic. iii. 17 :" Itaque maiores aliud ius gentium, aliud ius civile 
voluerunt ; quod civile, non idem continue 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, i%y 2), passim. 



VARIOUS MODERN VIEWS 71 

of the ancient Italian tribes, which constituted all the 
nations that the Romans had opportunities of coming 
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 
ius 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." l 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." 2 

In a subsequent work, 3 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 a $ 
private international law. As more and more aliens 

1 Ancient Law, ed. Sir F. Pollock (London, 1 906), pp. 5 2 seq. 

2 Ibid. 

3 Village Communities in the East and West, pp. 193-4 (published in 
1871, the Ancient Law having been first issued in 1861). 



72 THE IUS 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 of 
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 
formed the body of ius gentium. They were based on 
the principle of personality, that is, on considerations 
of the nature and applicability of the personal law of 
the stranger ; in other words, the origo of the individual, 
not his domicilium, was usually adopted as the deter- 
mining factor in the solution of legal difficulties. 1 Thus 
the ius gentium, which was instituted in favour of non- 
citizens, served as a supplement to the ius civile, the 
ancient national law, which was reserved for citizens 
exclusively. 2 

Karlowa 3 agrees with Savigny as to origin, but denies 
the application of the principle of personality, namely, 
the ius originis. 

A somewhat different explanation is advanced by 
Puchta. 4 He begins with a consideration of the ius 
fetiale, as embodying the rules and principles governing 
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 

1 As to origo and domicilium and their respective applications in 
regard to conflicts of laws, see Infra. (See contents table and index.) 

2 F. C. von Savigny, System des heutlgen romischen Rechts, 9 Bde. 
(Berlin, 1840-1851), Bd. i. lib. i, c. iii. s. 22; and Geschuhte des 
romischen Rechts im Mittelalter, 7 Bde. (Heidelberg, 1834-1851), Bd. i. 
c. i. s. i. 

3 O. }Htt\ovfz,RomischeRechtsgeschichte, 2 Bde. (Leipzig, 1885-1901); 
cf. Bd. i. 59. 

4 G. F. Puchta, Cursus der Institutionen, ^ Bde. (Leipzig, 1875), 
Bd. i. 83, pp. 304 seq. ', and cf. Nettleship, he. cit. 



VARIOUS MODERN VIEWS 73 

he refers to the institution of the recuperatores and that 
of the praetor inter peregrines, 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 thegentes, to the various nations besides the Roman. 
" Das romische ius gentium ist das Recht welches Rom 
den Gentes, also den Volkern ausser dem romischen, in 
ihren Gliedern, die vor den romischen Behftrden Recht 
suchen, gewahrt." 1 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 fur ein 
einzelnes Volk bestimmter Recht ist." 2 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 laws, 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, loc. cit. It is to be noted in this connection, however, 
that the word gentes, when used in the sense of foreign nations, in 
contradistinction to the Romans, is of very rare occurrence, and 

post-Augustan. 



74 



THE IUS GENTIUM 






analysis and speculation, but as issuing spontaneously 
and imperceptibly from the progressive spirit of the 
Romans, from their broadening juridical sense. " Das 
ius gentium hat zwei Seiten : einmal ist es das allge- 
meine Peregrinenrecht, nach welchem die Romer die 
Rechtsverhaltnisse von Personen beurtheilten, fur die 
das jus civile keine Anwendung fand ; die Grundlage 
dieses Rechtes, waren wirkliche Peregrinenrechte, nur 
nach dem Bedu'rfniss allgemeiner Anwendbarkeit und 
unter dem Einfluss romischer Auffassung mannigfaltig 
modificirt und erweitert. Dann aber ist es das Recht, 
welches in den erweiternten allgemeinen Rechtsansichten 
des romischen Volks seinen Ursprung hat, das also 
nicht auf eine kiinstliche Art, durch Speculation oder 
gelehrte Forschung, gemacht, sondern durch die innere 
Macht des in seiner Bildung fortschreitenden Volksgeistes 
hervorgetrieben ist." 1 
viewofjors. Jors 2 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 Romischen Burger geworden ist." J 

The same opinion is held by Wlassak, 4 who sees in 
international relationships the source of the ius gentium? 
which, with certain exceptions, became embodied in the 
Roman civil law. 6 

Mommsen, 7 again, regards the ius gentium as private 
international law, 8 gradually developed in Rome by the 
side of the municipal law. 

Its international character is also emphasized by 



Of Wlassak. 



Of Mommsen. 



Of Rudorff. 



1 Puchta, /of. cit. 

2 P. J6rs, Romische Rechtsmssemchaft zur Zeit der Republik (Berlin, 
1888), pp. 134, 139, 151, Anm. i. 

*Ibid. p. 147. 4 Romische Processgesetze (Leipzig, 1888-91), 2 Pt. 
5 Ibid, ii. p. 145. *lbid. p. 131, Anm. 15. 

7 Cf. Romisches Staatsrecht (Leipzig, 1887-88), Bd. iii. pp. 603-6. 
8 For fuller treatment of this question, see infra. 



VARIOUS MODERN VIEWS 75 

Rudorff, 1 who even goes so far as to maintain that it 
represents, on the one hand, public international law 
is regulating the relationships between States qua States, 
and, as such, is a veritable ius belli et pads, and, on the 
other hand, private international law as adjusting the 
differences between individual members of the various 
States. " Zwischen und iiber diesen nationalen Rechten 
steht das internationale Ius Gentium. Es enthalt die 
gemeinsamen 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 (i) der Staaten gegen einander, das Jus belli 
et pacts, (2) der einzelnen Glieder verschiedener Staaten, 
also das internationale Privatrecht, z. B. das Recht der 
Wechselheirathen und obligatorischen Vertrage, soweit 
sie wie das mutuum (/xorro*/), die emptio, locatio, u.s.w. 
international sind, den Schutz des Besitzes und des 
Rechtsfriedens." 2 

Dirksen 3 had already advanced an opinion to this Dirksen. 
effect before Rudorff, and, more recently, Willems 4 wuiems. 
held the same point of view. 

Voigt, 5 who, as Baron says, 6 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 

1 A. F. Rudorff, Romisehe Rechtsgeschichte, 2 Bde. (Leipzig, 1857). 

^Ibid. vol. i. p. 3. 

3 H. E. Dirksen, Uber die Eigenthlimluhkeit des Jus Gentium nach den 
Vorstellungen der Romer (in Vermuchte Schrlften, vol. i. pp. 200-252, 
Berlin, 1841); cf. esp. pp. 215 seq. 

4 P. Willems, Le droit public romain (Louvain, 1883), p. 128, 
note 5. 

5 M. Voigt, Romisehe Rechtsgeschichte, 3 Bde. (Leipzig, 1892-1902). 
6 O/. /. p. 38. 



76 THE IUS GENTIUM 

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 ius civile. " . . . Gleichwie man in 
dem neu eingefiihrten Silbergelde und Sextantarasse 
eine Miinze schuf, die dem internationalen Geschafts- 
verkehr zu dienen berufen war, so ward auch das iu 
gentium als Rechtsordnung fur den Verkehr mit ode 
zwischen Peregrinen, nicht dagegen zwischen Gives in 
Leben gerufen, vielmehr geschah es erst im Lauf 
weiterer Entwicklung, dass ein dem edictum urbanum 
und peregrinum gemeinsamer Stock von Satzungen sic 
bildete, sei es dass der praetor urbanus aus dem edictum 
peregrinum oder der praetor peregrinus aus dem iu 
civile entlehnte." * The same writer, in another work, 
says that the ius gentium in its earlier stages was an 
independent international private law which, as such 
regulated the various relationships between peregrins, o 
between citizens and peregrins, on the basis of thei 
common libertas. " Nach Alle dem aber haben wir im 
Sinne des Alterthumes die Wesenbestimmung des ius 
gentium fur die fruheste 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 Grund 
der den verkehrenden beiwohnenden libertas normirte."- 
During the Republic this libertas was merely of an 
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 jurisprudence 
brought about an extension of such libertas.* 

l Romische Rechtsgeschichte, vol. i. p. 154. 

2 Das ius naturale aequum et bonum und Ius gentium der Rbmer, 4 Bde. 
(Leipzig, 1856-1876). 

3 Ibid. vol. ii. p. 66 1. 

4 Voigt, ibid. vol. i. pp. 399, 400. 



DIFFERENT USES OF THE TERM 77 

Now the difficulty in determining the origin of the Difficult to 
ius gentium is greatly enhanced by the fact that Roman fhe'originof 
writers use this expression in different ways. 1 Some- s gentium. 

. . . . r t/i The expression 

times it is used in a popular sense, much in the same used in a large 
way as we would say "public opinion, " or the " sense vanetyofways * 
of nations," etc. As derivatives from such usage we 
find the adverbial phrases ubi gentium (where in the 
iworld), 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 <c 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 
ownership, of actions ; 2 for example, questions as to 
the position and treatment of ambassadors (also very 
often mentioned by the historians) ; 3 questions as to 
transactions between individuals, of which Gaius and the 
Digest give many examples relating to the obligationes 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 reference to the 
sea, the shore, alluvial deposit, booty taken in war, etc. 

In a passage already quoted, 4 which is a passage of 

1 C. Nettleship, be. cit. *lbid. p. 175. 

3 Sallust, lug. xxxv. 6 ; Livy, i. 14. I ; ii. 4. 7 ; viii. 5. 2 ; xxi. 
10. 6; Tacit. Ann. i. 42 (all quoted by Nettleship). Cf. infra, the 
chapter on ambassadors. 

4 " Itaque maiores aliud ius gentium, aliud ius civile voluerunt; quod 
civile non idem continue gentium ; quod autem gentium, idem civile 
esse debet" (De offic. iii. 17). 



78 IUS GENTIUM AND IUS NATURALE 



Cicero's great importance owing to certain inferences drawn 
th^Sstinction therefrom by modern writers, Cicero stated that his 
^ntium and ancest ors drew a distinction between the ius gentium and 
ius civile. the ius civile to the effect that the former was universal 
unwritten law, the latter special or particular written 
law. The statement of Gaius l corresponds substan- 
tially with Cicero's. Now with regard to this passage, 
Nettleship asserts that the ancestors (maiores) Cicero 
speaks of probably refer to the theoretical lawyers 
of the second century before the Christian era. But, 
validity of it may well be asked, why limit the origin of this 
such reference, 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 improbable 
hypothesis), and particularly through the Aristotelian 
distinction 2 between vojmo? 'IStos (the particular law), and 
the VOJULOS KOIVOS (the universal, the unwritten law, 
aypcupos), the Romans, earlier than the second century 
B.C., discriminated clearly between the ius gentium and 
the ius civile, although, of course, that distinction was 
never a hard-and-fast one. 

ius gentium Again, ius gentium is frequently taken by the juris- 
natttraie, consults as synonymous with ius naturale? ius naturae ', 
ius naturae, though there are also many cases where they are 

1 Inst. i. i ; cf. Just. Inst. i. 2, i. 

2 Cf. supra, p. 53. 

3 On ius naturale generally, see B. W. Leist, Graco-Italische 
Rechtsgeschichte (Jena, 1884), 32, pp. 199 seq. ; the same author's 
Civ. Stud. i. (1854), p. 33; iii. (1859), pp. 3 seq. \ Naturalis ratio 
undNatur der Sache (1860); Civ. Stud. iv. (1877) pp. i seq. ; Voigt, 
Das jus naturale . . . vol. i. pp. 244 seq. ; K. Hildenbrand, Geschlchte 
und System der Rechts- und Staatsphilosophie, Bd. i. Das Klassische 
Alterthum (Leipzig, 1860), pp. 566 seq. ; G. Brini, Jus naturale 
(Bologna, 1889); Sir F. Pollock, History of the law of nature (in 
Journal of the Society of Comparative Legislation (London, 1 900) pp. 
4^-433). 



IUS GENTIUM AND NATURAL JUSTICE 79 

distinguished from each other. In the Nicomachean 
Ethics, 1 political justice is divided by Aristotle into 
natural, TO /mev ipvariKov, and conventional, TO Se vofUKov. 
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 
rules 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. 2 
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- influence 
sequent schools of Greek philosophers, particularly so phfios^h^ 
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." 3 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. 4 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 
actually applied in practice, was seen to harmonize, for ^notion* 

of natural 

1 v. 10 (quoted supra, p. 54). justice ' 

2 As Bossuet says (in Sermon sur la justice} : "La creature raisonnable 
a ses lois dont les unes sont naturelles; et les autres, que nous 
appelons positives, sont faites ou pour con firmer, ou pour expliquer 
ou pour perfectionner les lumieres de la nature." 

8 Sir F. Pollock, ibid. p. 419. 

4 Cf. Leist, Graco-Italische Rechtsgetchichte, p. 187 ; and see, passim, 
the same writer's Alt-Arisches Jus Gentium (Jena, 1889). 



8o THE NATURALIS RATIO 

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 th,e jurisconsults regarded the ius gentium as 
equivalent to ius naturale, the Latin expression for the 
Greek (pva-ucov SiKalov. Thus Gaius refers to the rules 
prescribed by ' natural reason ' for all, and observed by 
all nations alike, "... quod vero naturalis ratio inter 
omnes homines constituit, id apud omnes populos 
peraeque custoditur vocaturque ius gentium, quasi quo 
iure omnes gentes utuntur." l This naturalis ratio was 
conceived to be the self-evident principle of the 
universe, and essentially unchangeable and immutable, 
representing perfect justice, and 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. 2 Cicero, whilst insisting that true law must be 
derived from philosophy "penitus ex intima philo- 
sophia hauriendam disciplinam putat" 3 does not, 
nevertheless, overlook the fact that it is and must be 
made for man " hominum causa omne ius constitutum 

l lnst. i. I. 

2 De offic. iii. 5. 23 : "Neque vero hoc solum natura, id est, iure 
gentium, sed etiam legibus populorum, quibus in singulis civitatibus 
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 ibid. iii. 
17. 69. 



JUS NATURALE AND IUS COMMUNE 81 

est." 1 The Romans with their practical spirit, and 
their general incapacity if not unwillingness or in- 
difference 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. 2 

Occasionally we find that the ius gentium, in the sense /us gentium 
of universal usage, is considered to be in conflict with 
natural equity aequum bonumque. For example, Sallust wilj ? 
referring 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 " ; 3 that is, in this 
case, equity aequum bonumque was made to over- 
ride the claims of fides pubhca? which appertained to the 
ius gentium. 

During the maturity of the Roman jurisprudence, that influence 
is, during the Empire until the days of Diocletian, the 
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- 
sarily implies aequitas, it is of the nature of aequum et 
bonum, as differentiated from the ius civile, which repre- 

1 De fnibus, iii. 20 ; cf. Gaius and Hermogenes in Dig. i. 5. 2. 
2 Cf. Publilius Syrus (fl. c. 45 B.C.), Sententiae : 

" Honesta lex est temporis necessitas. 
Necessitas dat legem, non ipsa accipit." 

3 Jug. xxxv. 6. 

4 On the conception of 'fides and its force in the law of nations, see 
infra. (Consult the index for various references thereto.) 

F 



82 



IUS NATURALE AND IUS CIVILE 



/us strictum. 



Possible 
conflicts 
between the 
ius naturale 
and the ius 
civile. 



The ius 
respondendi 
of the juris- 
consults. 



sents the ius strictum. 1 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 kinship 
(" sanguinis vel cognationis ratio ") ; a necessary obliga- 
tion of fidelity to engagements (" is 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 aequum ; 
and, generally, a predominance of the spirit, the 
intention " ratio voluntatis," over the letter or out- 
ward form. 2 

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 aequum 
bonumque introduced by them were endowed, ip so facto, 
with the force of law. These jurists were, as Voigt 



1 Voigt, Das ius naturale . . . , vol. i. p. 304 : " Die potentielle 
Gemeingultigkeit des jus naturale fur alle Menschen, bei alien Vslkern 
und zu alien Zeiten bedingt, dass dem jus naturale der Anspruch 
zukOmmt, durch das jus civile nicht aufgehoben zu werden ; 

Die potentielle Gemeingiiltigkeit des jus naturale fur alle Menschen 
und bei alien Nationen resultirt, dass das jus naturale in potentia ein 
jus gentium, d. h. 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 Anforderungen 
der aequitas bedingt, dass das Erste ein bonum et aequum ist, wogegen 
das jus civile als das strictum jus sich darstellt." 

2 Voigt, Ibid. pp. 321-3. 



NATURALIS RATIO LEX NATURAE 83 

says, 1 " 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 ^atio"*" 1 " 
law of Gaius and Paul, " . . . mit diesem Begriffe 
beginnen fur uns die rechtsphilosophischen Systeme des 
Gaius und Paulus." 2 This naturalis ratio is that which 
represents the total and essential significance of each thing, 
" its ordinative energy and determinative rule." The lex u x naturae. 
naturae is the product of such naturales rationes ; and the 
substance of the lex naturae constitutes a ius naturale? 

It is here worthy of note that Ulpian in a passage, uipian's 
adopted both in the Digest and in Justinian's Institutes, aeration of 
defines ius naturale as the law which is common to ius nat * ral *. 
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." 4 But, it is submitted, it is not submitted 
necessary to refer to a supposed lost Greek source this explana 
particular definition of Ulpian. And it is scarcely to be 
designated a tc conceit," unless it be necessarily a conceit 
to adopt a modified sense, or rather to emphasize some 



vol. i. p. 341: "... Sie sind Philosophen auf dem 
Gebiete des Rechtes, Erforscher letzter und hochster Wahrheit, allein 
indem sie, meist im Hinblick auf den concreten Fall, das Wahre 
erfbrschen 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." 



id. vol. i. p. 274. 3 Cf. Voigt, ibid. vol. i. pp. 270-274. 

4 Note (E) to Maine's dncient Law, pp. 75-6. 



84 THE IUS NATURALE OF ULPIAN 

particular element of the denotation of a term which had 
ever been used by writers with marked elasticity, and the 
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 ius 
naturale to denote what Cicero had intended to convey 
by vis naturae^ and Seneca by lex naturae. Thus Cicero, 
speaking of the reproduction and nurture of the lower 
animals, makes use of these words : " atque etiam in 
bestiis vis naturae inspici potest ; quarum in foetu, in 
educatione laborem quum cernimus, naturae ipsius 
vocem videmur audire." 1 Seneca uses lex natura in 
reference to the physical sensations of hunger, thirst, 
cold : " Lex naturae non esurire, non sitire, non 
algere." 2 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 denser!*"' Here 
we see that, as Cicero and Seneca had done before him, 
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, 4 though elsewhere he adopts ius gentium in 
reference to the same right. 5 

l DeJinibus, iii. 19. 2 Epist. iv. 8 Dig. \. \. i. 

4 "Exstincto in Sicilia Dionysio tyranno in locum eius milites 
maximum natu ex filiis eius, nomine Dionysium, suffecere, et 
naturae ius secuti, et quod firmius futurum esse regnum, si penes 
unum remansisset, quam si portionibus inter plures filios divideretur, 
arbitrabantur " (xxi. I. 2). 

5 For further illustrations of the elastic character of the word 
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. 60-6 1). 



IUS AND DIKE 85 

In modern times, with all the ripeness of our Ian- Use of 
guage and our vaunted habits of scientific precision, we K^ 
do not always use words strictly and in the same sense, world - 
regardless of context. Nor did the ancients always do 
so. 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, u x , etc. 
deal ; in this connection, 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. Ius mainly represents justice in its^ lheword 
human aspect. Some of its derivatives are Justus, index, 
iurgo, iniuria, iuro, in the last of which a religious con- 
nection is obvious. Ius has been derived by some 
etymologists from iubeo ( u quod iussum est a populo"). 
But this is, as Breal says, 1 to explain the antecedent by 
the consequent, in view of the fact that iubeo is a com- 
pound of ius and habeo. The wordjaus is found as a 
neuter substantive both in ancient Sanscrit and in Zend. 
In the Vedas,yw is used with a religious meaning, such 
as 'salvation,' or 'divine protection' ; 2 and in the Avesta 
the compound jaos-dd means to purify.' In such 
words as iudex, iudicare, iudicium we get ius associated 
with dico, which is found in dido (as, for example, in the 
phrase u in dicione populi Romani"), and condido. The 
Latin dico, it is usually held, corresponds to the Greek 
ieucwfu, whence we get SIKJJ, and its various derivatives. 3 
It is, however, not improbable that the substantive 
is related to the verb Sucetv, just as TV-^I is akin to 
fy, TrdOq to iraBeiv, and so on with various other 
similar words. In this case SIKTJ might not unreasonably 



1 M. Breal, Stir t'origine des mots de'signant le droit et la lot en latin (in 
Nouvelle Revue historique de droit fran fats et etr anger, Paris, vol. vii. 
(1883), pp. 603-612). 

*lbid. p. 606. *lbul. p. 612. 



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 
(lOeia Siiaj) 1 . 

Meaning Lex is, of course, clearly connected with legere. Its 

origin is, however, a matter of dispute. As Breal says : 2 
" Lex est la Lecture, comme chez les peuples semitiques 
la loi c'est 1'Ecriture." Greek words corresponding to 
lex are Oea-juLog, fnjrpa, VO/ULOS* The ordinances of Lycur- 
gus were called prjTpat 4 (in the sense of unwritten laws). 
At Athens, Solon's laws were generally described as 
vofjLoi* Draco's as 0r/*o/ 6 (connected with 0e/xi?). 

use of lex The Roman jurisconsults employed the word lex in 

by the Roman , i / i 

jurisconsults, two senses : in the first place, as meaning an enactment 
of the comitia? and hence sometimes lex publica ; 8 and 
secondly, as meaning a declaration, condition, or re- 
striction, expressly incorporated in a private deed (lex 
private)^ as in the phrases, lex mancipii, lex contractus, lex 
testamenti, etc. 9 Later, lex acquired further meanings, 
as, for example, an imperial constitution. 10 

!Cf. R. Hirzel, Themis, Dike, und Verwandtes. Ein Beitrag zur 
Geschichte der Rechtsidee bei den Griechen (Leipzig, 1907), pp. 94. seq. 

^Ibid. p. 610. 

3 The underlying sense of this word is thus expressed by Aristotle : 
*0 vo/xos rais Tts e(TTt KOI TTjv evvofjiiav aj/ayKcuov cvra^tai/ etvai 
(cf. Pofit. iv. 8. 6). No/xos is evidently related to ve/zccrts. 

4 Tyrtaeus, ii. 8 ; Plut. Lycurg. 13. 

5 Andocid. De Mysteriis, 82 ; Aelian. viii. 10. 

6 Because each began with the word flcor/xos ; and hence the revisers 
of the law were termed 0oyio0eTcu. 

7 Gaius, i. 3. *Ibid. ii. 104; iii. 174. Cf. Aul. Gell. x. 20. 2. 

9 Cf. J. Muirhead, Historical Introduction to the private late of Rome 
(London, 1899); note ^X t ^ ie ec ^i tor > Prof. Goudy, pp. 18 seq. 
See also Voigt, Rom. Rechtsgeschichte, i. p. 21 ; Mommsen, Rom. 
Staatsrecht, iii. pp. 308-10. 

10 Cf. W. Soltau, Giiltigkeit der Plebiscite (Berlin, 1884). Cf. further 
as to ius and lex, the lines of Ausonius, Qpuscula, ed. Peiper (Lipsiae, 
1886), EdylL xii. (339), p. 157, 11. 12-13 : 

" Lex naturali quam condidit imperio ius, 

Ius genitum pietate hominum, ius certa Dei mens." 
On ius, lex, dike, themis, etc., see E. C. Clark, Practical Jurisprudence 



FAS, THEMIS, AND RATIO 87 

Fas corresponds to the Greek Oe/uns, hence fas tus to 
&?/>u<7T09, and nefas to ov 0e/x*9 ; so that the Latin ' fas 
est ' is equivalent to the Greek 6e/j.t$ e<rn (" it is meet 
and right "). 1 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 6ejuu? are frequently personified in be- Personification 
ginning solemn invocations to the gods. 2 Festus points 
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." 3 

Leist states that to the fundamental conception of 
rita 4 (the Latin ratio] of the ancient Aryans other 
notions are related, which are thus expressed : vrata y to 
which corresponds the fas and the ratum of the Latins ; 
dhdma, analogous to the Greek $eV*9 \ svadha, answering 
to e#o9 or ?&>9 of the Greeks, and to mos of the Latins ; 
whilst dharma approaches the meaning of lex. 5 It may 
be said briefly that ratio signifies the fundamental 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 lex in Roman jurisprudence, cf. 
L. Mitteis, R'dmisches Prlvatrecht . . . (Leipzig, 1908), vol. i. pp. 22-37. 

l IRad, xi. 779 ; xiv. 386 ; Odyss. x. 73 ; xiv. 56 ; etc. 

2 Cf. Seneca: "Fas omne mundi " (Hercul. Fur. 658); and the 
invocation of the fetials (Livy, i. 32). See infra on fetials. 

3 s.v. Themin, in C. E. G. Bruns, Fontes juris Romani antiqui, ed. 
T. Mommsen (Freiburg, 1887), p. 372. The same conception is 
found in Ausonius, Edyll. xii. (343), p. 161, 11. 44-45. 

"... prima deum Fas 

Quae Themis est Graiis ..." 
Cf. Voigt, Die XII. Tafeln (1883), vol. i. p. 102. 

4 See supra, p. 79. 

5 Graco-Ifa/. Rechtsgeschichte, p. 187; cf. also the same author's 
Alt-Arlsches Jus Gentium (passim}. 



88 



FAS, EON A FIDES, AND ETHOS 



Fas and ius 
contrast. 



divine and human, whilst ius, fas, and mos are the various 
aspects of this operating force. 1 

Non-legal writers very often contrast fas and ius. z 
Both, indeed, represent the will of the gods ; in fas it 
is declared by inspired agency, for example, by augurs, 
oracles, etc. ; in ius, by ordinary human agency. The 
ius was the product of traditional and inveterate custom, 
or of statute (lex), or of both. Fas sometimes per- 
mitted certain things expressly prohibited by ius, thus : 
"transire per alienum fas est, ius non est." 3 In the 
sphere of relationships between nations, fas forbade war 
if it was not prosecuted in accordance with the due 
formalities of fetial procedure, 4 it insisted on bona fides, 
e.g. in promises made even to the enemy, it protected 
hospitality to strangers ; 5 and in civil relationships, it 
forbade murder, the sale of a wife by her husband, filial 
impiety, etc. 6 A violation of fas rendered the offender 
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 order, 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 
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 $09 or ?$o?. Festus, in his 

1 As tofas\ and mos in early Italy, see G. Carle, Le origini del diritto 
romano (Torino, 1888), pp. 98-104 ; origin of ius, pp. 104-116. 
2 E.g. Livy, vii. 31 ; Virg. Aen. ii. 157. 

3 Isidore of Seville, Origins, v. 2. 2. As to fas and lex, cf. the verse 
of Persius, Sat. 5 : " Publica lex hominum, naturaque continet hoc fas." 

4 See infra. 5 See infra. Cf. Muirhead. op. cit. pp. 1 5 seq. 



IUS NATURALE AND IUS GENTIUM 89 

definition of mosj- points out its religious character, and 
also defines ritus as " mos comprobatus in administrandis 
sacrificiis." 2 

It is to be noted that the post-mediaeval writers on Post- 
international law, so devoted to the Roman juris- 
prudence and so desirous of introducing by all means na '* ra/ ' and 

L. . . . . . > ius gentium. 

Roman notions into the consideration or 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 
observes, " vague and unsatisfactory." 3 Isidore of Isidore of 
Seville, writing in the early part of the seventh cen- & 
tury, uses ius gentium to represent approximately the 
modern c 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 : " Ius gentium est sedium occu- 
patio, aedificatio, munitio, bella, captivitates, servitutes, 
postliminia, foedera, paces, induciae, legatorum non 
violandorum religio, connubia inter alienigenas pro- 
hibita." 4 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 
same extent. Writers like Suarez emphasized the force Suarez. 
and significance of custom. Ayala held that ius gentium Ayaia. 
was added to the law of nations by general consent. 
Gentilis, again, laid stress on the principle of common Gentiiis. 
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." s.v. mos in 
Bruns, Fontes juris Romani antiqui, op. cit. p. 343. 



3 Note to Muirhead, op. cit. p. 283. Cf. also J. Westlake, Chap- 
ters on International Law (Cambridge, 1894), pp. 17 seq. 

4 Orig. lib. v. cc. 4-7. 



PRECISE DISTINCTION DIFFICULT 



Puffendorf. 



Hobbes. 



Difficult to 
give strict 
definitions 
of the various 
expressions. 



In the ancient 
Italian 
institutions 
distinction 
between ius 
gentilicium , 
ius gentilitatis , 
and ius 
gentium. 



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 naturae ; 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 (fleju*?, ?0o?, Slxy, 
i/o'/xo?) 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. 

In the institutions of the Italic tribes long before the 
Roman ascendency we find, as an Italian writer 1 points 
out, that a distinction was made between the ius 
1 G. Carle, op. cit. 



ORIGIN OF I US GENTIUM 91 

gentilicium, the ius gentilitatis, and the ius gentium. The 
ius gentilicium l governed the relationships between the 
superior class of gentiles and the dependent class of 
gentilicii ; the ius gentilitatis comprised the body of laws 
regarding 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 lus s enttum - 
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 ius 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 ius gentium 
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 l merum ius gentium.' 3 Again, the ius gentium 
already contained a comparatively elaborate body of 
principles before the ius honorarium was even established. 

1 As to ius gentilicium, see Karlowa, op. cit. vol. i. p. 35 ; Muir- 
head, op. cit. p. 7 ; Willerns, Le droit public romain, pp. 40, 69. 

2 Carle, op. cit. p. 45, note 3 : "... II jus gentilicium, che 
comprende anche i rapporti fra la classe superiore dei gentiles e quella 
dei dipendenti da essi o gentilicii, il jus ge ntilitatis che significa il com- 
plesso dei diritti spettanti ai membri di una stessa gente (gentiles}, e i 

jura gentium, che governano i rapporti fra le varie gentes." 

*Dig. xvi. 3. 31. 



IUS GENTIUM AND I US NATURALE 






Submitted 
explanation 
of the relation 
between the 
ius gentium 
and the ius 
naturale. 



Difficult to 
determine 
which came 
first in legal 
evolution. 



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 natura, with their ius 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 have a very large 
portion of their respective contents in common and 
converge towards the same goal, there is a tendency, 
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'etre 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 F. Pollock, 2 
" 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 ; 
but, it must with all respect be said, no sufficient 

1 Cicero, as a rule, uses the expression lex naturae when he argues 
his subject from a philosophical point of view, as, for example, in 
Tusc. Quaesf. i. 30 ; De Invention, ii. 67 and 161 ; De Leg. (passim). 

2 Op. At. p. 75- 



THEIR RELATIONSHIP 93 

ground or cogent reason has been advanced in any case. 
The counterpart to this question of terminology is 
the more important problem relating to the priority 
of the respective underlying conceptions. Can one say 
with an adequate degree of definiteness which of these 
conceptions that or the more concrete ius gentium 
or that of the more abstract ius naturale became 
crystallized first ? To point to this or that as the earlier, Fallacious 
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 a 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 The analytic 
processes necessarily accompany each other, and are synthetic 
as inseparable, if the comparison may be made, as ment ai 

J -J C r\C processes 

the convex and concave sides or a curve. Or course, accompany 
for certain purposes now this now that aspect is empha- GS 
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 



Simultaneous 
development 
of the notions 
contained in 
ius gentium 
and ius 
naturale. 



Ius gentium 
ius fetiale and 
ius bellicum. 



Ius gentium 
and private 
international 
law. 



Twofold 
character of 
ius gentium. 



94 IUS 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- 
national law and the public international law of Rome. 1 
No clear distinction appears to have been made between 
the two. Sometimes the expression ius gentium is also 
used in connection with ius fetiale or ius bellicum, 
in some cases to point to a comparison, in others to 
point to a contrast. 

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 
duiritium 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 
this respect more of the nature of a territorial 



in 



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 pads, 
and, on the other, the legal relationships between 

1 Cf. G. Baviera, // dmtto internazwnale del Romanl (in Archivio 
giurid'uo, Modena, 1898 ; Nuova Serie, vol. i. and ii.), pp. 446 seq^ 
the greater portion of chap. vii. 



AS PRIVATE INTERNATIONAL LAW 95 

individual members of different States, e.g. the law 
of intermarriage and various contractual obligations, 
such as mutuum (loan for consumption), amongst uni- 
lateral conventions, emptio (purchase and sale), locatio 
(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 
protection of property. 1 

This ius gentium^ as a code of private international ius gentiu 
law, cannot be strictly considered merely a national law, 
as writers such as Fusinato 2 have done. It was neither law - 
strictly 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.'* 3 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 

1 A. F. Rudorff, Romische Rechtsgeschichte, z 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 (i) der Staaten gegen einander, das Jus belli et pacts, 
(z) der einzelnen Glieder verschiedener Staaten, also das inter- 
nationale Privatrecht, z. B. das Recht der Wechselheirathen und 
obligatorischen VertrSge, soweit sie wie das mutuum (/xotrov), die 
emptio, locatio, u.s.w. international sind, den Schutz des Besitzes 
und des Rechtsfriedens." 

2 G. Fusinato, Le drolt international de la republique romaine (in 
Revue de droit international et de legislation compare'e, Bruxelles, 1885, 
vol. xvii. pp. 278 sey.). 

8 A. H. J. Greenidge, Roman Public Life (London, 1901), p. 294. 



I US GENTIUM AND I US FETIALE 



Roman 

national policy 
and imperial 
expansion. 



Roman 
relationships 
with foreign 
nations. 



The iusfetiale, 
and the ius 
gentium. 



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 politica 
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 pads, 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 naturalis ratio. 
Thus, Gaius, speaking of the capture of enemy property 
which thereby becomes vested in the captor, says in the 
Digest : 1 " Quae ex hostibus capiuntur, iure gentium 
statim capientium fiunt," whilst in his Institutes the 
same rule is thus formulated : <c . . . Quae ex hostibus 
capiuntur naturali ratione nostra fiunt/' 

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 ius fetiale was a special system of principles and 

1 Dig. v. 41. i. 7. 2 ii. 69. 



IUS FETIALE AND IUS 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 
ius 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 religion 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 belli 2 of the Roman 
jurists, the ius bellicum of Cicero, 3 the fas armorum of 
Tacitus, 4 the assuelus belli mos, of Silius Italicus. 6 But 
it is to be observed, as Poste points out, 6 that (in 

1 The view in the text differs somewhat from the opinion of 
Fusinato, op. cif., and agrees in a sense with that of Chauveau, who 
holds that the ius fetiale is "la partie du droit des gens, du jus 
gentium, rentrant dans les attributions exclusives des fetiaux ; quant 
au jus gentium, qui a pour equivalent jus belli ac pacis, c'est, dans son 
acception primitive, 1'ensemble des regies applicables aux rapports 
entre les peuples et presentant un caractere jundique international." 
(A. Chauveau, Le droit des gens dans les rapports de Rome avec let 
peuples de rantiquit'e, in Nouvelle Revue historique de droit fran^ais et 
Granger, 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 y 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 pacis. See, 
further, above text. 

2 Cf. also "Nil belli iura poposcit" (Lucan, vii.). 

3 De offic. iii. 29. *Hist. iv. 58. 5 Born c. 25 A.D. 

6 E. Poste, Gaii Institutiones juris civilis (Oxford, 1890), p. 358. 

G 






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 
c 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 : 
<c Nam desunt vires ad me mihi iusque regendi." x 

Strictly speaking ius bellicum z is not synonymous with 
ale ' iusfetiale, 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 respects, 
allied to the ius gentium. 

Another portion of public international law, viz. that 

relating to the rights and duties of ambassadors, is often 

ius legatomm. specifically described as the 'ius legatorum? This is part 

of the ius gentium^ but it is also connected with the ius 

fetiale. 

ius fetiaie 2,n& A good many writers seem to have confused also the 
coX^bT" ius f etiale witn the ius g^tium. Thus Zouche uses the 
many modem expression de iurc feciali^ as synonymous with ius inter 

wri'torc I 1_ 1 11 1 f 

gentes, that is, he makes it cover the whole sphere or 
international law. 5 More recently Wheaton, 6 Calvo, 7 
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 

1 Amor. ii. 4. 7. 

2 Cf. Cic. De offic. iii. 29. In De offic. i. u, he speaks of iura 
belli with the same meaning. 

*Dig. 1. 7. 17- 

4 As to the spelling of this word, see infra^ on the fetials. 

5 Cf. the present writer's contribution on Zouche in the Journal of 
the Society of Comparative Legislation, New Series, No. xx. April, 1909, 
pp. 281-304 ; p. 282. 

6 Op. fit. 

7 C. Calvo, Le drolt international, 6 vols. (Paris, 1888-1896), 
vol. i. p. 4. 



writers. 



IUS FETIALE AND IUS GENTIUM 99 

an underlying relationship to the ius naturale, and 
sometimes the actual substance of the law, the ius fetia/e 
indicates rather the jurisdiction which takes cognizance 
of certain matters of the ius gentium (which, conse- 
quently, possesses wider extent), though, by a natural 
synecdochical process, the term (ius fetiale) is also 
applied to the body itself of these matters. 



CHAPTER IV 



Rome's foreign 
policy and 
position of 
international 
law. 



Roman 

diplomatic 

methods 

frequently 

rigorous 

but many 

relaxations. 



THE POLICY OF ROME. TO WHAT EXTENT SHE 
RECOGNIZED AN INTERNATIONAL LAW 

IT has very often been maintained that Rome's foreign 
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, 1 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., 2 a recognition which by no means con- 
duced to her selfish interests. By concentrating their 

^August. 22; cf. Paulus Orosius, Hist. vi. 20,21,22 ; Ovid, Fasti, 
i. 121-124. 

2 See on this subject infra. 



STATE INTEREST AND POLICY 101 

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 mpris des nationalits 
n'aveuglait pas la nation conqu6rante, et les plus petits 
peuples 1'ont trouve souvent attentive a leur honneur 
comme a leur int^ret." 1 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. 2 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. 4 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 and 
even towards the weakest and meanest " meminerimus 



nations. 



autem etiam ad versus infimos justitiam esse servan- 
dam," 5 and he could have readily cited in support 
of this principle numerous examples from Roman 
history. The Roman writers all celebrate the justice, p ra ise of 
the equity, the nobility of their fatherland. Rome 
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. 10. 

8 Val. Max. vii. 2-6. 

4 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 l 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. 2 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 r6publique des Remains a 
fleuri en justice et surpasse celle de Lacedemone, parce 
que les Remains n'avaient pas seulement la magna- 
nimite, mais aussi la vraie justice leur etait comme 
un sujet auquel ils adressaient toutes leurs actions." ; 
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. 4 Bossuet is also 
high in his praise : " Je ne sais s'il y cut jamais, dans 
un grand empire, un gouvernement plus sage et 
plus modere qu'a 6te celui des Romains dans les 

ixliv. i. 

2 Cf. Diod. Sic. xxxii. 4, 5 ; Dion. Hal. ii. 72 ; Polyb. xviii. 
20 ; Plut. Numa, 16. 

8 Les six livres de la Republique (1576), i. i. 

4 De jure naturati, gentium, etc. (in Originet 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 ; nee 
servitute premebant, nisi qui rationis legibus repugnarent, et civili 
vitae immanem vivendi ritum anteponerent " 



DIFFERENT EPOCHS AND PRACTICES 103 

provinces." 1 Herder was among the first to assume 
a contrary attitude. 2 

It is necessary, however, to distinguish between important 
the earlier and the later period of Roman history. 
In the earlier period, say to the conclusion of 
Second Punic War, there obtained a readier recognition of Roman 
of rules of international conduct, to which Rome hl 
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. 3 

But a gradual transformation was already perceptible Decline of 
at the time of the conflict with Pyrrhus. After 
victory at Zama (B.C. 202) the law of nations suffered e P ch 
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, 

1 V* avertissement aux Protestants ; cf. his Discours sur Fhistoire 
universelle, 3 par tie, chap. vi. 

2 Cf. Ideen zur Philosophic der Geschichte, xiv. 3. 

8 Tacit. Hist. iii. 72 ; Dion. Hal. v. 34 ; Pliny, Hist. Nat. 
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. 



io 4 DIFFERENT EPOCHS AND PRACTICES 



Roman 



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." 1 

Indeed, in the period after the Second Punic War, 
after^esecond Rome's supremacy was not only established in fact, but 
Punic war. 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. 2 

Proud boasts 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 



period. 



1 Liv. xlii. 47. 



2 Cf. Chauveau, op. cif., inlt, 



DIFFERENT EPOCHS AND PRACTICES 105 

also deplore the manifest decline from former greatness. 
Thus Tibullus writes : 

" Roma, tuum nomen terris fatale regendis, 
Qua sua de caelo prospicit arva Ceres, 
Quaque patent ortus et qua fluitantibus undis 

Soils anhelantes abluit amnis equos." 1 

(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." 3 
(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 f^der cos- and 
the influence of Greek philosophical doctrines, asserts m P litanism ~ 
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. 6 Ovid, enthusiastic 

Mi. 5. 57-60. 

2 Saturae, c. 119 ; ed. F. Buecheler (Berolini, 1904). Cf. also Cic. 
Pro Muraena ; Marcellinus, xix. ; xxiii. 

s De bello rivi/i, vii. 419-422. 4 Tusc. v. 37 ; Pro Mi/one, 37. 
*Epist. iv, 7. Cf. Pro Mi/one, 38. 



io6 ROMAN INTERNATIONAL LAW 

over a Greek maxim, says all the world is a land for 
the brave man, 1 but his Roman spirit betrays itself else- 
where. 2 Seneca, when banished to Corsica by Claudius, 
makes use of Stoic arguments as to exile, 3 but after- 
wards he avows a secret anguish. 4 

Roman And yet when all is said, when every possible detrac- 

iaw r sh a ows na tion is made, Roman international law shows a great 
progress. 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 5 show a 
broader outlook than the rigorous doctrines of Plato 
and Aristotle in regard, for example, to the treatment of 
Roman law of foreigners. And not only is Roman international law 
progressive ; it furnishes, indeed (it is not amiss to 



modern 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 

Erroneous 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 is 
made to say), 6 the tc 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 
(FlonlegLum, xl. 7) : 'AvSpt <ro<<> Tracra yyj j3ar^' \ta>X*?s 7^-P dyaOrjs 
irarpls 6 fvpra? /coayio?. (For the wise man every country is habit- 
able ; since to the virtuous soul all the world is a fatherland.) 

2 Tristia, i. 3. 3 Comol ad Helv. vi. viii. etc. 
^Epigramm. i. ; Comol. ad Poly b. 32. 

5 De offic. i. 7 and 13 ; ii. 8. 6 Tacit. Agrlc. 30. 

- 



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 resclusivismo dei Romani, 
tanto da assimilarlo . . . ai selvaggi." l 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 : u le pretendu droit des 
gens des Remains n'est qu'une chimere." 2 Others for 
example, Bonfils insist on the perfect reciprocity of 
obligations as the indispensable criterion, and finding 
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. 3 

If the law of force was the only dispensation, how is Roman 
it possible to explain the formation of alliances between 
Rome and less powerful cities, and the agreement on showing 

. \ , t adherence to 

reciprocal concessions and mutual treatment, the resort i aw . 
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. clt. vol. i. fasc. 2, p. 271. 

2 M. Revon, V arbitrage international (Paris, 1892), p. 101. 

3 H. Bonfils, Manuel de droit international public (Paris, 1905), p. 35 : 
" Mais ces faits, dieted par la politique, ne peuvent e"tre interpreters 
comme constituant des actes juridiques, comme des manifestations et 
des applications d'un droit international." 



io8 JURIDICAL BASIS OF PRACTICES 

torates, the notion of territory from an international 
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 pads," 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 
iure belli," " pignus facere," " ius persolvere, adipisci," 
and the like. 1 Do not all these matters, even on merely 
superficial examination, show clearly that a system of 
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 ? 
Attributing to Further, to attribute what rules there were to the 
sanftion does sanction of religion is not at all tantamount to a denial 
not necessarily of their validity and applicability, and hence their relation 

destroy ... t .. f C 

juridical to juridical economy. The fas prepares the way for and 
significance. mer g es ' m ^ o { us . custom makes law ; and religion 

makes custom. 

Conformity of Again, it is not an indispensable condition in the case 
relationships ^ ancient international law that there should be a 
to a certain universal recognition of the autonomy of States, of their 

body of rules. . . c . > 

sovereign power to the extent of imparting to them an 
objective juridical personality. It suffices, it is sub- 
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. dt t p. 272. 



JURIDICAL BASIS OF PRACTICES 109 

Of course, there was not a complete system elaborately imperfect 

organized and scientifically constructed, so as to point to S 

a solution of all possible difficulties beforehand. To s y stem - 

judge entirely and exclusively from the modern point of criticism and 

view is to be hopelessly blind to the elemental phe- }^ mod 

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- ^rpetuai 

pares the process of its evolution to the monotonous chan s e - 

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 developpe sans 

cesse, il change eternellement de formes ; tour a tour il 

avance et il recule, selon les vicissitudes de 1'histoire et 

suivant un rhythme monotone qui est comme le flux 

et le reflux d'une mer." 1 The same author, who 

curiously enough elsewhere said that the Roman inter- 

national law was nothing but a chimera, 2 asks whether 

we are now really more advanced in international law 

than the Romans. 3 In certain matters it is clear we in various 

have made substantial progress, but in other points, he Roman law of 



maintains, we have retrograded ; for example, in the 
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 
too strongly emphasized. M. Fusinato well points out 
the danger of judging the legal relationships of ancient the ancient 

1 M. Revon, De r existence du droit international sous la repubhque 
romaine (in Revue gtnerale du droit, de la legislation, et de la jurispru- 
dence, Paris, 1891, t. xv. pp. 394-4<>5 5 54-5 IO ) P- 59- 

2 See supra, p. 107. 8 De ? existence, etc. loc. cit. pp. 509, 510. 



no 



NOTION OF CI7ITAS GENTIUM 



Recognition of 
a true law of 
nations by 
Rome in her 
first period. 



Ci-uitas 

gentium. 

Juridical 

consciousness. 

Reciprocity. 



Such 

recognition in 
the case of 
sovereign 
States. 



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 
e 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 
considerate, con la forma particolare che esso puo 
assumere in un determinate momento storico, e se ne 
dedusse la negazione della esistenza di quelle relazioni 
medesime." * 

One may go further than merely assert the existence 
of a body of rules to which foreign relationships con- 
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 
her own, that she had clear notions of a civitas gentium^ 
and possessed an international juridical consciousness, 
and admitted the principle of reciprocity. 2 Such recog- 
nition of international law depends, of course, on the 
fact that other States to which its provisions may apply 
are properly constituted. Juridical capacity was not 
admitted in the absence of a duly established political 
organization. The principle of reciprocity was not enter- 
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 
group of individuals, in Cicero's phrase : " omnis 
hominum coetus quoque modo congregatus sed coetus 

1 Deifeziali . . . he. clt. p. 454. 

2 C Baviera, he. fit. vol. i. fasc. 3, pp. 463 seq. 



JURIDICAL PERSONALITY in 

multitudinis iuris consensu, et utilitatis commune con- 
sociatus." 1 Only with States as political organisms, as 
" free nations," 2 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 jSidkaHmd 
treaty could not be entered into with a people not pos- p htical 

..,.. , i i j- -J 1- personality. 

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. 3 

Other arguments, well emphasized by M. Baviera, 4 
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 exilii 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 sovereignty! 
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 Mu'nz- 
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 

l De Rep. i. 25 ; cf. PhiRpp. iv. 5. 6. 

2 On meaning of " free nations," see infra, as to when declaration 
of war is essential, and when it may be dispensed with. 

3 See 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. 474 seq. 



ii2 POLITICAL INDEPENDENCE 

gegolten." l 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. 2 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. 3 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. 4 

1 Geschichte des romischen Munzwescns, p. 309. 

2 Mommsen, ibid. p. 182: " Es liegt danach nahe, diese ganze 
Klasse von Munzen auf die durch Italien zerstreuten Gemeinden 
latinischen Rechts, also ausser dem wenigen in Latium iibrig geblieb- 
enen altlatinischen und den diesen spater 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 Circulationsverhaltnisse es gestatteten, im 
Allgemeinen nach dem Muster Roms." 

3 Examples in Mommsen, ibid., passim. 

*lbid. p. 309: "Aehnliches diirfen wir auch in der rOmisch- 
italischen Symmachie zu finden erwarten ; wir werden das Miinzrecht 
zunachst und am vollsta"ndigsten bei den Gemeinden vorauszusetzen 
haben, die ihre staatliche Selbstandigkeit am vollstandigsten gewahrt 
hatten. Dies sind die mit Rom foderirten Staaten iiberhaupt, vor 



SOVEREIGNTY AND RECIPROCITY 113 

Further, the adoption of the ius exilii and of the /# j /j */ and 
postliminii indicates the enjoyment of full sovereignty. l^rSoTtT 
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. 1 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." : 

In war relationships, again, the principle of reciprocity Reciprocity 
is also attested in the proceedings and formulae of the relationships, 
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 Postuminy. 
is similarly admitted in the conclusion of sponsiones, that sponsions. 
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- s&k - conducts - 
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 
juridical personality at least in the first period of 
Rome's history both in pacific and in belligerent 
relationships : ct 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 

alien Dingen also die bedeutendste und bestgestellte Klasse derselben, 
die latinischen Colonien." 

1 Cf. Cic. Pro ISalbo, 1 1 . 2 On postliminium, see infra. 

3 Dig. xlix. 15. 15. 2. 

H 



ii4 JURIDICAL BASIS OF RULES 

della sovranita di tali popoli coi quali Roma venne in 
rapporti sia pacifichi che belligeri, essendo inconcepibile 
il contrario." l The contrary, indeed, is inconceivable, 
notwithstanding the assertions of detractors and the 
carpings of the prejudiced. 



juridical Moreover, these principles rested on a truly mndical 

basis of these t ^ i_ i i j i i j i 

principles. 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 commerdum and connu- 
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 in 
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 
promisee, that there should be, in the language of the 

! Loc. cif. p. 478. 

2 R. von Ihering, Geist des romlschen Rechts auf den venchiedenen 
Stufen seiner Entwicklung, 3 Bde. (Leipzig, 1852-1878), vol. iii 
p. 187. 



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 ?' 2 relating to States 
imposes an obligation marked by the same legal character 
as that in the case of the civil formula * Dari spondes ? 
spondeo ' relating to private citizens. 

When a treaty was broken a reason was generally violation of 
advanced for such conduct, a reason which was con- 
sidered by the infringing party to be of juridical force. 
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 
less, 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. 3 

Belligerent relationships, too, were deemed to possess Legal basis 
a juridical foundation. The imputation that the fetials relationships, 
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 

1 Dig. ii. 14. i. 2 ; cf. Dig. 1. 12. 3. 

2 Gaius, Imt. iii. 94. 

8 Baviera, loc. cit. p. 485 : "... La rottura e rappresentata sempre 
da un motive 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 
diritto. II primo trattato annullato e quello delle forche Caudine 
. nel 434. Nessuno nega la mala fede Romana. Ma una teoria 
giuridica sta a giustificarla : e nullo, si disse, quel trattato concluso 
senza 1'approvazione del popolo, da quella persona che non ha il 
potere di farlo." 



u6 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 toto 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 all 
things. For the Romans warfare must be regular, 
iustum ; x the idea of war, more latronum, was repugnant 
to them. Just as the interpellate was indispensable in 
private law, so was it necessary in international relation- 
ships duly to set forth one's claim, to make a formal 
demand for satisfaction, repetitio rerum, or clarigatioi 
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, 2 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. 

Existence of That this juridical basis of international relationships 
juridiad 0n proceeded from an international juridical consciousness 
consciousness. cannot be doubted. And here, again, it is necessar 

1 For the juridical basis of the various causes of war, see infra 
and for iustum helium, see more fully below. 

2 Loc. cit. p. 492. 

3 On the significance and content of the notion of internatiom 
juridical consciousness, see (as cited by Baviera) Fallati, Die Genes 
der Volkergesellschaft (in Zeitschrift fur Staatswissenschaft, 1884] 
F. de Martens, Traite de droit international, 3 vols. (Trad, du russ 
par A. Leo, Paris, 1883), vol. i. 45-52 (on "droit de la com 
munaute internationale ") ; A. Rivier, Principes du droit des gens 
2 vols. (Paris, 1896), vol. i. pp. 7 seq. ; F. von Holtzendorff, Hand 
buck des Volkerrechts, 4 Bde. (Hamburg, 1885-1889), vol. i. 10. 



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 leges, iura, indicia, 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 ; x 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 noxae datio, noxal surrender of the de- 
linquent), 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 International 
mala 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; xxxi. 10, n. 



n8 



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 
y a solemn oath ; more frequently it was implicit. The 
Force of oath, violation of the oath was universally considered a de- 
?anction ne 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 
still exist, but it cannot exist without good faith.' ' 
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 ; e.g. a counterfeit coin was termed a 
1 Thessalian coin,' an act of treachery was stigmatized 
as a * Thessalian trick.' Crete was reproached by 
poets and historians for her faithlessness, K/^re? 
\J/-ei/(rraf, writes Callimachus, 3 the Alexandrian poet and 
grammarian, in the third century before the Christian 
era Plutarch reports that her people were treacherous 



in war ; 4 her name furnished the verb 
meant " to lie," 717)09 Kpfjra 



, which 
meaning " to 

1 W. A. P. Martin, Traces of international law in ancient China, loc. tit. 
p. 74. 

2 Cf. Heudot. vi. 86. * Hymn, in Jov. 8. 

*Philop. 1 3 ; Lysand. 20'; AemiL 23. 5 Plut. A emit. 23 ; Lysand. 20. 



BO NA FIDES AND AEQUIT4S 119 

outwit a knave." Similarly the Parians were pro- 
verbial for their apostasy ; avairaptdQiv meant to change 
sides like the Parians. 1 

With the Romans, as Polybius, though a n on- The oath in 
Roman, says, 2 the oath received greater respect. In Rome - 
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 
pure respect to their oath Kara rov opKov Tr/crreo)? 
rrjpova-t TO Ka6>JKov. 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 ; 3 and in the thirty-second 
book 4 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 
averse from all such viciousness. 

However, in the international transactions of Rome, Bona fides and 
especially in her earlier period, bona fides was taken to ae t ultas - 
be the fundamental principle of aequitas ; it ever 
served as a criterion and guide in the interpretation 
and execution of undertakings. 5 It was at the bottom 
of the praetorian edicts. It was the fundamental prin- 
ciple of the ius legationis, for ambassadors were placed 
under the protection of public faith, of which, says 
Varro, 6 the fetials were the ministers " fidei publicae 
inter populos praeerant." More particularly was fides or 

1 Ephorus (fl. 375 B.C.), Fragm. 107. 

2 vi. 56. 8 xviii. 35. 4 xxxii. II. 

5 Cic. De offic. iii. 29 ; Dig. xlviii. 4 (ad leg. lul. mai.), 24 pr. 

6 De Ling. Lat. v. 15. 



120 



INFLUENCE OF FIDES 



l the very basis of foedera and or-TrovSai (sponsiones). 
Festus 2 says foedus was so called " quia in foedere 
interponatur fides," and Livy frequently makes use of 
terminology to indicate the same conception : " in 
fidem venerunt . . . foedere ergo in amicitiam ac- 
cepti;" 3 "eo anno societas coepta est; in fidem populi 
Romani venisse." 4 Fides was the indispensable condi- 
tion in the case of a truce or armistice " indutiarum 
fides," 5 "indutiarum fidem ruperat"; 6 as also in the 
case of deditio u deditionis quam societatis fides sanctior 
erat," 7 "in fidem consulis dicionemque populi Romani 
sese tradebant," 8 " non in servitutem sed in fidem 
tuam nos tradidimus." 9 

The Romans had their Jupiter Fidius as the Greeks 
had their Zeus- ILWto?. 10 Fides was deified by the 
Romans and provided with a temple and a cult. 
Horace, in an ode to Virgil, thus writes of this numen, 
as of other deified virtues : 

"... cui Pudor et Justitiae soror 
Incorruptae Fides, nudaque Veritas 
Quando ullum inveniet parem ? " u 

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 

1 On the significance of fides generally, see Leist, Graco-Italische 
Rechtsgeschichte, pp. 470 seq. ; and H. A. A. Danz, Der sacrale Schutz 
in romischen Rechtsverkehr (Jena, 1857), passim. 

2 De verborum significatione, 84 (an alphabetical epitome of the lost 
work under this title of Verrius Flaccus). 

3 viii. 25. 4 viii. 27 ; cf. viii. 21 ; ix. 6 ; x. 45. 

5 Liv. i. 30. 6 Liv. ix. 40. 

7 Liv. vi. 9 ; cf. xxxii. 2 ; xxxvii. 32. 8 Liv. xxxvii. 45. 

9 Liv. xxxvi. 28 ; cf. vii. 19 ; vii. 31 ; x. 43 ; xxxiv. 35 ; xxxvii. 
6 ; xxxix. 54. (Most of the foregoing references to Livy are cited by 
Leist, ibid.) 

10 Dion. Hal. iv. 58, etc. ; cf. Danz, op. df. pp. 127 seq. 

11 i. 24; 11. 6-8. Cf. also his Carm. Sec. 57 ; Virg. Aen. i. 292. 



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 ; 1 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 
Punka,* as Laurent seems to think. tc Le peuple," 
he remarks in a highly moralizing tone, " qui n'avait 
pas rougi de s'allier aux Mamertins n'etait pas en droit 
de parler de foi et de justice." 3 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 
most of the contemporary peoples, at all events with 
that of the Carthaginians, was immaculate ; wherefor 
they were, without shame or hypocrisy, entitled to 
complain of Punic treachery. 

1 iii. 26. 2 Cf. Florus, ii. 2. 3 Op. cit. vol. iii. p. 114. 



CHAPTER V 

GREECE AND FOREIGNERS 

Greek notion THE Greek idea of citizenship was, from one point 
of citizenship. Q f y | ew ^ c | ose jy 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 ((frpdrpa or (bparpn) was, in the 
heroic age, a group of individuals of kindred race, 1 and 
in more historical times became a political division of 
people, originating from ties of blood and kinship. At 
Athens the (frpdrptj was a subdivision of the (puX^ 
just as at Rome the curia 2 was of the tribus? Each 
<f)v\rj comprised three (ppdrpac or (frparpiai, the members 
of which were called <ppdrepe<s 4 (as those of a <pv\ri were 
termed (pvXercu, and those of a curia were termed 
curiales\ and were bound together by various religious 
Link between rites peculiar to each. This organization suggests an 
thelttef and inevitable connecting link between the family and the 
State. Exclusion from the city's worship was equivalent 
to a deprivation of citizenship. " Renon9ait-on au 

1 Cf. Iliad, ii. 362. 

2 The Roman word curiae exactly corresponds to the Attic 



; cf. Dion. Hal. ii. 7 ; Plut. Pop fie. J. 

8 Plato, Laws, 746 D, 785 A ; Isoc. De pace, 88. Cf. Arist. Polit. ii. 
5. 17 ; v. 8. 19. 

4 It may be interesting to note the etymological relationships 
of this word. In the Sanscrit we get bhrata, the form in Zend being 
bhratar, with which the Latin frater is associated ; the Gothic form 
is brothar, brothrahans (cf. brother, brethren), the Old High German 
is bruodar (which gives bruder), the Slavonic bratru. In Greek 
the word curiously assumes an exclusively political signification. 



RELIGION AND ALIENAGE 123 

culte, on renonsait aux droits," as Fustel de Coulanges 
says. 1 The conferring of citizenship involved the Citizenship- 
taking of a solemn oath to worship the gods and fight SJfcSJJT 10 
for them KOI ra iepa TO. Trdrpia Tiw<ru> . . . ajjLvi>a> Se rel '8 lon - 
virep lepwv? Demosthenes describes admission to civic 
privileges as a concession to take part in the sacred 
affairs of the city peretvai TWV iepw* to share in the 
religious festivals and sacrifices reXerwi/ KOI iepwv KCU 
Ti/mwv /uLere-^eiv.* 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. 5 Similarly in Rome the enjoyment of 
political rights implied presence at the sacred ceremony 
of lustration, 6 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 ai 
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 cite antique (Paris, 1900), p. 226. 

2 Cf. the entire formula as given by Pollux, viii. 105-6. 

3 Demosth. In Neaeram, 104; in connection with the decree 
.relating to the Plataeans. 

4 Ibid. 113. Cf. also Isoc. Panegyr. 43 ; and Strabo, ix. 3. 5. 

5 Corpus imcriptionum Graecarum, No. 3641 B, vol. ii. p. 1131. 

6 Dion. Hal. iv. 15; Cic. Pro Caecina, 34. 



I2 4 



RELIGIOUS EXCLUSIVENESS 



Jealousy of 
sacred rites. 



Religious 
exclusiveness 
in antiquity. 



free from pollution from the hearth at Delphi, which 
is common to all Greece. 1 

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 
TOrient tout homme qui ne fait pas partie de la 
communion religieuse est impur ; sa presence souille les 
fideles." Herodotus reports that the Greek priests 
refused to make use of vessels and other objects that 
had been brought from abroad. 3 Again, in the case 
of the Romans, Livy reports that after the defeat of the 
Gauls by Camillus, in 390 B.C., the Senate decreed that 
such temples as had been in 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." 4 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. 5 

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 

1 Plut. Aristld. 20 : He/at Se dv<ria.<$ tpopevois OLVTOLS a.vti\ev o 
TivOtos Atos 'EAeuflep'ov fiajfjLov i8pv(ra(r6ai } Bvarai Se p.rj Trporepov 
rj TO Kara TYJV yj&pav irvp ciTrocr/^ecrai/Tas <os VTTO TWV /3ap/3a/xuv 
/ze^uaoyxevov lvavcra.(rdai, Kadapov IK AcA<a)V aTrb rfjs KOtvfjs etrrias. 

2 Laurent, op. cit. ii. p. 104. 

3 Herodot. v. 88; cf. Athenaeus, iv. 14. 

4 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 ; 
quod si ab hac calamitate fuerint liberata, quasi quodam postliminio 
reversa pristine statui restituuntur." 

6 Cf. F. Laurent, Drolt civil international (Bruxelles, 1880), vol. i. 
p. 114. 



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 
universe was deemed polluted. 1 Aliens were criminals 
and savages. An inscription of Sesostris was to the 
effect that he governed Egypt and chastised foreign 
territory. 2 Though in course of time certain com- 
mercial privileges were conferred on foreigners, and 
mainly on the Greeks, 3 the Egyptians, in the time 
of 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." 4 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. 5 

In spite of the antagonism to foreigners, an antagon- Relaxations in 
ism resting partly on religious motives and on pride of^s 63 
culture, and partly on the desire to preserve civic 
exclusiveness, the Greeks gradually introduced con- 
siderable relaxations with regard to strangers. And it 
must be remembered in this connection, that aliens 

1 N. F. Rosellini, / monumenti del? Egitto e della Nubia. ... 8 torn. 
(Pisa, 1832-44), vol. iii. pt. i. pp. 37, 39, 51, 351 ; vol. iv. pp. 89, 
90, 230. 

2 Rosellini, op. cit. vol. iv. p. 1 8 ; vol. iii. pt. i. p. 350; pt. ii. pp. 
54, 163, 215. (The references in this and in the preceding note are 
cited by Laurent, ibid?) 

S J. M. Pardessus, Collection de lois maritime* anterieures au xviii* 
tilde (Paris, 1828-45), vol. i. p. 52; cf. Herodot. ii. 178. 

4 Herodot. ii. 41 : TWV ei've/ca oiV dvrjp AiyvTrrtos, ovre yvvrj avSpa 
"EAAvjva c^tA^creie ai> T< o-ro/icm, ovSf fjLa^acprj avSpos "EAAr/i/os 
Xpija-fraLj ovS' o^eAoto-t, ovSe Ae/^n, ovSrj K/OCCUS KaOapov /?o5s Sia- 
rfTjj.rnj.fvov 'EAATjviKy fj.a.^aiprj ytvcrfTai. 

5 Holtzendorff, Handbuch . . . vol. i. 45. 



126 



ATTITUDE TO ALIENS 



Exigencies of 
commerce. 



Effect of war 
in breaking 
down barriers. 



Exaggerated 
statement as to 
attitude to 
aliens. 



Wrong 

methods on the 
part of writers. 



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. In a 
striking passage, Isocrates said : " So 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." l 

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, "guerit des prejuges 
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 " B 
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- 



TO(TOVTOV 6 aTToAeAotTTCV rj TToAfcS 17/U.WV TTpl TO <f>pOVLV KOI XejCLV 

aAAovs di/0pw7rovs, wo-0' ol Tavrrjs (JLaOr^ral TO>I/ aAA<oi/ StSacncaAoi 
ycyovacri, KOU TO TO>I> 'EAA^vcov 6Vo/xa 7r7ron7/c /Z^KCTI rov ycvovs, 
aAAa T^S Stavota? SOKCIV ctVcu, /ecu /xaAAov "EAA^vas KaAcicr^ou TOVS 

TITJS 7TaiSVCT(OS TTJS f)fJ.Tpa.S rj TOVS TJS KOIV>JS <v(Ta>S fJLT%OVTa<S. 

(Panegyr. 50). 

2 Esprit des lois, liv. xx. chap. i. 

3 H. Wheaton, History of the Law of Nations (New York, 1 845), p. I. 



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 Fallacious 
among the Argives as though he were some ' worthless cc 
sojourner ' wa-el TIV aTijuLrjrov jULeravda-Triv ; l 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 
exfyo? (enemy) that foreigners were assimilated to ^mies!" 
enemies. But such argument is based on what is most wrong 
probably, if not indubitably, a false etymology. The 
word is cognate with e/cro? (outside), ol e/cro? being 
used by Plato with the meaning of strangers ; 2 and in 
certain Locrian and Epidaurian inscriptions the forms 
6^009 and C^ODI are found for e/cro?. Similarly, from a 
passage in Herodotus, 3 who says the Spartans called 
strangers barbarians, 4 j*civow, it is 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 



1 ///W, ix. 648 ; cf. xvi. 59. 

2 Laws, 629 D. 8 ix. ii. 55. 

4 On the meaning of * barbarian,' /3dp/3apos, see F. Roth, Ueber 
Sinn und Gebrauch des Wortes Barbar (Ndrnberg, 1814). 



128 CONCESSIONS TO ALIENS 

means at the same time a guest-friend, under the 
protection of Zev? eYfo?, and a stranger, an alien refugee, 
clearly point to a conception which is the very antithesis 
to notions of hostility ? 

The Greeks not In point of fact the Greeks liked foreigners, and they 

fOTdgners" 1 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. Herodotus states there were 

even certain ties of hospitality between such sovereigns 

as Polycrates, the tyrant of Samos, and Amasis, king of 

Egypt. 1 

Athens offered The extent of the privileges of access varied, of course, 
fredom't? m 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- 
Greek'stat"! 116 cultural States on the other. The Doric States were 
most anxious to safeguard themselves against alien 
influences. Thus Epidamnus appointed a special officer, 
TrwXrJTw 2 (literally c 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, 3 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, 4 as was 

Argos. also the case in Argos, 5 and foreigners were not allowed 

1 Herodot. iii. 39. 

2 Plut. Quaesf. Gr. 29. This is not to be confused with the 
Athenian TruA^Tou, ten officers who, like the Roman censors, let out 
(locabanf) the taxes and other revenues to the highest bidders, and 
sold confiscated property. 

3 Cf. G. F. Schoemann, Grlechlsche Alterthumer. Vierte Auflage. 
Neu bearbeitet von J. H. Lipsius, 2 Bde. (Berlin, 1897-1902) vol i. 
p. 385. 

*Plut. Ins fit. Lacon. 19 ; cf. Plato, Protag. 342 D. 
5 Cf. Ovid, Metam. xv. 29 : 

"... prohibent discedere leges, 
Poenaque mors posita est patriam mutare volenti." 



ATTITUDE OF SPARTA TO ALIENS 129 

to reside within her precincts, 1 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, . . . TO) . . . 'AOyvatwv ro> /3oiAoyttei/ft> . . . e^eivai 
\a/36vra ra avrov ctTrievai OTTOI av /3ov\rjTai* Herodotus 
reports that in his time Sparta had conferred citizenship spartan 
on only one individual, and that even then the sanction J^ 10 ^ 
of the oracle had to be obtained. 4 The aim of the 
Lacedaemonians was to preserve the purity of their 
religion, and the valour, simplicity and frugality of their 
national character. 5 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. 6 

Aristophanes refers, on more than one occasion, to Spartan alien 
the unsociable spirit of the Lacedaemonians ; 7 and they laws ' 
also incurred, on account of their ^evrjXcurla (alien acts), 
the hatred of many other Greek nations. But many But many 
exceptions were made even at the most rigorous epoch. 
Lycurgus himself made use of the poet and musician 
Thales, a native of Gortyna in Crete, who came to 
appease 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; 
Thuc. i. 144. 

2 Cf. Arist. Polit. vii. 5. 3 ; Plato, Laws, viii. 849. 
8 Plat. Crito, 510. 

4 Herodot. ix. 33-35. See infra, p. 181, as to naturalization in 
Sparta. 

5 Plut. Ages. 10. 

6 Cf. Nauze, Memoire sur la Xtnelasie (in Memoires de F Academie des 
Inscriptions, t. xii. pp. 159-176). 

7 Ave^ 1013 seq. ; Pax, 623. 

I 



130 



MORE LIBERAL POLICY 



Restrictions 
gradually 
removed in 
Greece in 
general. 



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. 2 During the celebration of the 
public games foreigners were allowed access to the terri- 
tory. Proxenia 3 was established ; and many citizens 
obtained hospitality abroad. 4 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 : 
" I know that for this reason [i.e. degeneration through 
contact with foreigners and possible imitation of osten- 
tation in wealth, etc.] 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." 5 

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, loc cit. pp. 162 seq. 

2 Ibid. pp. 169 seq. 

3 On this institution see Infra, pp. 147 seq. 

4 Cf. G. F. Schoemann, dntiquitates juris publici Graecorum (Gryphis- 
waldiae, 1838), p. 142. 

5 Resp. Laced, xiv. 4 : 'En-tcrra/Acii <5e KGU TrpovOev TOVTOV 
^ev^Acwnas ytyvoptvas KCU aTro&y/Aetv OVK ^oi/, 6Va>s (J.YJ 

Ol TToAlTOU (X7TO TWV v<>)V /A7Tt7rAatl/TO' VVV 8' 7TWTTajUat TOU? 

SoKOiWas TT/OWTOVS cu/cu T7nn;SaKOTas ws /zrjSeTrore Travoji/rat appo- 
bi/Tes 7ri ^ev^s. (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 
Englishmen, in the Elizabethan epoch, through their assumption of 
foreign airs and use of foreign language. 



VARIOUS RELAXATIONS 131 

friends who would value and protect him, and that no 
Thessalian would in any way molest him. 1 

In most of the Greek States, but in Athens above concessions 
all, strangers received protection and large concessions. esp^uuyTn" 
Not only were the persons and property of free Athens - 
foreigners safeguarded, but even prisoners of war who 
had been ransomed (Sopv^evoi) 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 Tie of 
stranger and host was held to be a sacred bond, and was hosplt 
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 
a Lacedaemonian name. 3 Homer often says that 
strangers and the poor came from Zeus, 4 that suppliants Zeus the 
were under his special protection. 5 When Ulysses, stra'ngeS 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 : 



an I KCKriyv^Tov eivos & IKCT^S re TCTVKTCU 
di>e/3fc, 6s T' dXiyov irtp ^VLi^avy 7r/3awi'6Wo~t. 6 



Only the Cyclopes and the Laestrygonians attack 



1 Plato, CrifOy 45 c : eicrti/ e/xot e/cei i>oi, 01 ae TTC/OI TroAAov 
O-OVTCU Kott ao-<a/UidV (rot Trapcfoi/Tcu, axrre ere /zrjSeva Avrmi/. 

2 ///W, vi. 119-236; Odyss. i. 187; xv. 197; and see G. F. 
Tomasini, <> tesseris hospitalitatu (Amstelodami Frisii, 1670), 
esp. chap, xxiii. pp. 159-164. 

8 Thuc. viii. 6. 4 : ... i>i>7r/ooo-o- yap avrois KOI 'AA/a/^iaoSys, 

EvSuj) </>0/DeVOVT4 TTttT/aiKOS S TO, /AttAtCTTa ^VO<5 WV, odtV KOL TOVVOfJM 

AO.KOVIKOV f) oi/a'a avrtav Kara Trjv ^ei/tav cr\V. 

4 Odyss. vi. 207 seq. ; xiv. 508. 

5 Odyss. vii. 165, 181 ; ix. 270. 6 Odyst. viii. 546. 



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." 



iv', OV fJLOL 

aTiftdcrarai' Tr/sbs yap Atos ewrtv a?ravTs 



Consideration Amongst the Lucanians there was a law which imposed 
strangers. a fine on any citizen who refused to receive a foreigner 
asking for shelter after sunset. 2 Charondas urged his 
citizens to fulfil the obligation of hospitality as being of 
a sacred character. 3 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. 4 Anyone who refused to show strayed travellers 
the way was liable to public imprecations. 5 In Theo- 
critus 6 this duty is enjoined in the name of Hermes 
'Ei/o<W. 7 

Passports. The practice of conceding passports was also known 

in Greece. There was the artypayls (so called because 
of the official seal), which was really a form of 
contract, (rvyypacjyri. Sometimes passports were term< 

1 Odyss. xiv. 55 seq. 2 Aelianus, Variae historiae, iv. i. 

8 Stobaeus, Florilegium, xliv. 40 : Mc/^vrj/x-ei/ovs Aib? eviov ws 
iraxriv iSvpwov KOIVOV Oeov, KOI OVTOS 7ri<rKO7rov faXogwias re KOL 



4 Athen. Deip. iv. 22; cf. Sainte-Croix, Legislation de la Crefe, 
pp. 39 6 ' 8 - 

5 Cic. De offic. iii. 13. 

6 Idyll, xxv. 3-6: 

IK rot, ^?v, Trp6(f)p(ov fJt.vOr)(TOfj.a.i ocrcr' 
'Ep/xcca a^o/xcvos SewrjV OTTIV tvo8toto' 
TOV yap <^curi fieyto-roi/ irovpavt<av 
t Kev 6Sov faxpeiov dvrjvrjTat TIS otTTjv. 

7 From 6Sos, road, highway. An epithet of certain gods who had 
their statues by the way-side or at cross-roads. 



HOSTELRIES FOR ALIENS 133 

a designation which applied in general to 
all marks or signs of legalization. 1 The distinction, 
however, between the two terms is not very clear. 
Probably artypayh applied to a sealed passport granted Difference 
to a person, whereas the <rv]UL/3o\ov was frequently 0^" 
(especially as used by Aristophanes) an official label for ai ? d 
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 hostelries 
were hostelries of various kinds ; we hear of the 
Trav<$OKia (inns), the Karaywyia (halting-places), the 
KCLTa\vjuiaTa (lodgings, guest-chambers), the KaraXva-eis 
(resting-places), and the like. 

In the Laws Plato laid down that arbitrary offences wrong to 
committed against strangers were liable to the ven- su 
geance of the gods, that the foreigner having no kindred 
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. 2 

Athens frequently boasted that of all States she Freedom 
conferred the largest measure of privileges and evinced Athens 1 b; 
the greatest liberality to foreigners. In this respect the Difference 
Athenian foreign policy offers a striking contrast to the Athenian and 
Spartan. Solon, unlike Lycurgus the Lacedaemonian SP*"* P lic y- 

1 Plautus, Captivij ii. 3. 90 (447) ; Aristoph. Aves, 1213 '*? 

2 v. 729 E : <r^c8ov yap TTOU'T' ecrrt ra T<OV ei/a)v KOI ct? TOVS 
cvov<s dfjLaprrjfJMTa Trapa TO. TWV TroAtrwv is deov dvr)pTr)fj.vo. 
/iaAAov* fprjfjios yap o>v 6 evo<s kraiptov T KOI ^vyyevwv e 

dv6plOTTOlS KOL dOl<S. . . . 

7 30 A: ^eviKwy 8' av /cat kiriyjapiov a.fj,apTrjfj.dT(av TO rrc/oi TOVS 
iKTas fieyicrTov ytyvcTat d/xa/my/Aa 



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. 
TT/I/ Te yap 7TO\iv Koivtjv TrajOe^Oywei/, ical OVK <TTIV ore 
evrjXa(rlai$ aTrelpyojULev TWO. q ^a&yyuaro? rj 6ea/u.aTO$, o ju.rj 
KovcbOev CLV Tt? TWV TToXe/micov iocov wcbeXrjOeLrj. . . . 1 
Sophocles 2 refers to the right of hospitality. Euripides 



terms Athens the 'hospitable port' X^eW rov 



oTaTov vavrats 3 and says she is ever ready to aid 
the unfortunate ; 4 and similarly Xenophon claims that 
she is always disposed to extend a helping hand to those 
who appeal to her as victims of injustice 5 TraVra? 
KCU rou? aSiKOvjmevovs KOI row (f)o/3ovju.evov$ evOdSe - 



. 

Athens a place During the intestine conflicts in the Greek States, 

fntesthfe 6 in everybody could find in Athens a place of refuge. 6 

conflicts. Diodorus speaks of the right of asylum and of the 

generous laws in favour of suppliants. 7 It was the 

constant policy of Athens, says Demosthenes, to deliver 

the oppressed 8 TOW aSiKovjuievovg a-w(eiv and to take 

the part of the unfortunate. 9 Indeed, she practised this 

policy to such an extent that she was often reproachec 

for allying herself with the feeble. 10 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 

Athenians regarded mercy not as a mere affection 



1 Thuc. ii. 39. 2 CW/>. Co!. 562-568. 3 Hippol. 157 

^Heraclid. 329 seq. 5 Xenoph. Hellen. vi. 5. 45. 

6 Thuc. i. 2, 7 xiii. 26. 8 Pro Megalop. 14 seq 

9 Demosth. Pro Rhod. 2 z ; De Cforson. 4 1 . 

10 Isocrat. Panegyr. 53. 



ATHENIAN HUMANENESS 135 

of the mind but as a deity ? " l " 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." 5 When under the 
Roman empire it was proposed to the Athenians to 
adopt gladiatorial shows, Demonax, a philosopher, 
strongly protested. " First of all," cried he, " pull 
down the altar which our fathers have raised to 
Mercy." 3 Plutarch relates also that the Athenians 
were considerate to animals. 4 Even in the time of 
Plutarch Athens gained the esteem and admiration 
of other peoples for her conspicuous examples of 
kindness and humanity ; 5 later, Lucian (a native of 
Syria) commended the Athenians' humane conduct 
towards their guests ; 6 and the Roman Emperor Julian 
added the same testimony. 7 

1 Inst. orat. v. n. 38: "Aut si misericordiam commendabo iudici, 
nihil proderit, quod prudentissima civitas Atheniensium non earn pro 
aftectu sed pro numine accepit ? " 



OV KOI /ATa/3oAas Tr/oay/xarcDV OVTL <o<eAi/>iu>, [j,6voi 
ve/xowiv 'A&patot. Cf. Apollod. Bibl. ii. 8, with 
the note of Heyne. 

3 Lucian, Demon. 57. 

4 Cat. Maj. 5 ; De solert. anlm. 1 3 ; Cf. Aelian. De natur. anim. 
vi. 49. Cf. the note by W. H. S. Jones, The Attitude of the Greeks 
towards Animals (in Classical Review, London, 1908, vol. xxiii. 
pp. 209-210). 

5 Plut. Aristid. 27. 6 Scytha. 10. 

7 Misopogon. in Opera, ed. Spanheim, p. 348 c. 



CHAPTER VI 



Admission of 
strangers by 
special 
authorization. 



Foreigners 
enjoyed 
freedom of 
speech. 



Taxes in case 
they engaged 
in Athenian 
commerce. 



GREECE AND FOREIGNERS. DIFFERENT CLASSES 
AND PRIVILEGES. RUDIMENTS OF A CONSULAR 
SYSTEM (PROXENI4) 



THE 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 1 
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." 2 

In case they should engage in commercial transactions 
of any kind in Athens, special taxes were imposed. 
There was a law of Solon to this effect : OVK 






Cf. 



1 TOV oLTroSrjfJMVvra Set 

2<paytSa f) orv^/^oAoi/ Set e^etv TOV evov, CTTI 
Ovjvai iraptXOdv (Schol. ad Aristoph. dves, 1213, 1214). 
Corpus juris JLtticij 25, 1247. 

2 c. Philipp. iii. 3 : ty/,ets Tt\v irappr)<riav eVt fJLtv T0)v aAAwi/ OUTQ> 
KOivrjv ofearOe Stiv eii/ai Trcuri rots ev ry TroXet, worre /cat rots 

KCU rots SovAots avrfjs /AeraSeSw/caTe. . . . 



RESTRICTIONS AND EXEMPTIONS 137 



Til ayopa epydQ&Oai, el /u.tj feviKu. reAeF. 1 Certain restric- Certain 
tive measures were applied to their trading, not through 
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, 2 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 
non-citizens. 

Demosthenes addressing the Athenian jury reminds But restrictions 
them of the seventy of the law in respect of such delin- Athenians. 
quencies 3 tcrre yap Stfirov . . . TOV vo^ov o>? ^u\7ro9 <TTIV, 
cdv r*9 'A.6tjval(ii)V aXXoare TTOI artTtiyrfa'fl 37 'AOrfvalc, t] 



e(V aXXo TI c/uLTTopiov rj TO ' A.6tjval(jov ("For, of course, 
you know, men of the jury, how severe the law is if any 
Athenian convey corn to any place other than Athens, 
or 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" ; 4 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 restrictions, few as they were, Certain 
there were some instances of exemption from taxes, as, 
for example, in the case of fishermen and sellers of eels, 
and dyers and importers of purple. The foreigners not 

1 Given in Corp.jur. Att. 874. 

^Corp.jur. Att. 1546: ran/ yi I/O/AC vwv SidOc&iv irpbs ^cvovs eAxxtov 
/lovov emu, aAAa 8' ayav /XT) rT<o. See the note to this article 
and compare Schol. ad Pindar, Nem. Od. x. 64 : OVK crrri 8e eay<oyr) 
eAatov e 'A077i/(ov t /XT) TOIS vt/cwcrt. 

8 f. Laerit. 51. 

4 Ibid. : 'Apyv/otov <$ /XT) c^civat K($ovi/cu ' A.6irjvat<DV /cat rwv 
/XCTOI'KOOI' TW> 'ASrjvrjcri /XCTOCKOVVTCOV /x^Sei/t, /xrrSe tuv oSrot Kvpioi 
L<TIV, ets vavv T^rts a.v /XT) /xcXX^ a^ctv arirov } A$T^vae Kat raAAa 
Ta ycypa/x/xeva TTC/M e/cacrrov O.VT(DV. 



138 



WRONG CONCLUSIONS 



Foreign 
influence in 
Athens. 



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 they 
observed. 2 



False 

inferences 

from 



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 
ancient writers, 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, 3 
that he preferred the salt of the city to that of the 
guest's table TOL/? r^9 TroXeco? a'Aa? Tre^o* TrAe/oyo? TroujcracrOai 
TJ/C; evLK.w TjoaTre^c;. 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- 
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 

1 De vectig. iv. 12: Ao/ct 8e /not /cat TroAts irpoTcpa e/xov ravra 
Vi/o)Kvat. Ilape^et yovv ITTI to~OTeAtci /cat Ttoy ^cVtoy TW pouAo- 
ixevo) cpyd^ecrOdL tv rots /xeraAAots. 

2 Xenoph. Resp. Athen. ii. 8 : "ETreira <wv?)v Tracrai/ 

teAe^avro TOVTO /xci/ l/c rfjs TOVTO 8e 4/c T^5. /cat ot /ACI 
ta fj.a\Xov /cat <f>iovy KCU StatT^ Kat cr^/xaTt x/owvTat, 'A^^vatot 
KKpafj,vy e^ cbrai/Ttoi/ TWV e EAA-^i/<ov Kat 
3 c. Ctesiph. 224. 



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 not necessarily enemies. 1 

To obtain greater security for foreigners, in the sense Conventions 
of explicit recognition by the State, and to render their 
position more precise and their rights more clearly 
defined, international conventions (<nV/3oAa) were entered 
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 
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. 3 These o-v/ui/SoXa regulated Settlement of 
the procedure for the trial of actions (Swat a-rro o-^oXwi/), 4 
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. c . Alcibiad. 1 8 : KOU Trpos IJLCV rots aAAas TroAeis ev rots 
<rvfjif36\ois (TUVTi0/Ae0a fir) eetvai jJ.v)0' ijp<u, yu^re Srjo-ai roi/ eAeu- 
Otpov. eav Se rts 7rapa/3y, /AcyaAr/v jjr)pia.v CTTI TOVTOIS @fj,v. 

3 Cf. A. E. Egger, Etudes historiques stir les traites publics chez les 
Grecs et les Romains (Paris, 1866), p. 90. 

4 See M. H. E. Meier and G. F. Schoemann, Der attache Process. Neu 
bearbeitet von J. H. Lipsius (Berlin, 1883-7), PP- 994 *'? See further, 
infra, the second part of chap. viii. 



140 



MEASURES OF REPRISAL 



The 



of laws. 



Where no 
convention 
measures of 
reprisal. 



may be, or even, sometimes, by previous or express 
arrangement, to the arbitration of a third city. Such 
city was called 7r6\is eWXiyro? (literally, a city * called 
out* or chosen to decide a certain matter in dispute), 
and the trial itself SIKJJ e/c/cXj/ro?. 1 

Commercial treaties in the strict modern sense were 
practically unknown. 2 But, at least, the <nV/3oXa 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. 3 

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 



1 As to TroXis 
arbitration. 



see infra, p. 206, and chap. xx. on Greek 



2 Cf. A. B. Buchsenschiitz, Besitz und Erwerb im griechischen 



Alterthume (Halle, 1869), pp. 516 seq. : "Es scheint allerdings, als 
ob es gewisse, allgemein anerkannte Bestimmungen gegeben hatte, 
durch welche die Freiheit des gegenseitigen Verkehrs zwischen den 
Angeh5rigen 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 iiber 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 : Mcya/aeis 
aiTta>/Ai>oi Traces //,!/ ayopas TTOLVTIDV 6e At/ieveov, 8>v 'A.0rjvaioi 
/cparoixrtv, ?/>yeo-$ai /cat aVcAavvccr^cu Trapa ra /coiva Si/cata /cat 

3 See further the latter part of chap. viii. as to the question of 
aliens and jurisdiction. 



INTERCHANGE OF RIGHTS 141 

reprisal avXcu or o-OXa. This involved strictly a seizure 
of the defaulting party's goods only, as opposed to the 
proceeding of avSpoXytya, which permitted, under certain 
circumstances, the seizure of his person. Such goods 
constituted a pvviov, or pledge, by means of which satis- 
faction for the wrong could be obtained, if the verdict 
eventually went against the said defaulter. 1 



Apart from these specific a-up/SoXa there was occasion- interchange of 
ally an interchange by two (and sometimes more) States 
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 (*Vo7roA*Te/a), and carried with it 
eTTfyayu/a, the right of intermarriage (corresponding to the 
ius connubii of the Roman law), and the right to hold 
land and houses yw KOI otKias eyKTtjans in each other's 
dominions. Xenophon remarks that it was, indeed, a 
great privilege to be allowed to acquire houses, etc., in 
the city. 2 On many occasions, it is to be observed, 
isopolity was established not mutually but simply on a 
unilateral basis. 

To proceed to the exercise of these privileges usually Renunciation 
involved a renunciation of former citizenship. 3 In this cUiwnshiR if 
connection it may be mentioned that there was a law of ' hatof another 

. , ri-11' i 11 i State accepted. 

Athens forbidding citizens to cultivate land outside 
Attica. Ot 'AOrjitaioi . . . VO/ULOV eOevro jmtjSeva TCOV 'AOijvaiuv 
yecopyeiv e/cro? r>/9 'ArTf/ciy?. 4 

Niebuhr 5 believes that isopolity did not include isopolity and 
political rights, but the extant texts of the conventions P htlcal "* hts - 

1 See infra, chap, xxvii., on reprisals and androkpsia. 

2 De vectig. ii. 6. 

3 Cf. Egger, op. ctt. p. 86. 

4 Diod. Sic. xv. 29 : and see Corp.jur. Att. 1295. 
5 B. G. Niebuhr, R'omische Geschichte, 3 Bde. (Berlin, 1873-4) ; vol. 
ii. note 101. 



142 



ISOPOLITY 



relating to it are couched in the most general terms, and 
speak of the participation in all things divine and 
human. 1 Such a comprehensive 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 /VoTroXtre/a as the equivalent of 
full citizenship. Before then it was not employed in 
that sense, TroXirela having been used instead. 

Some decrees state that it was granted to citizens of 
another town en 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 3 belongs to the epoch of Greek decadence, 
as Laurent says. 4 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 
1'idee que Tisopolitie renfermait ne resta pas sterile; elle 
produisit ses fruits sur un sol plus favorable. Nous 
trouverons les conventions isopolitiques chez les 
Remains, nous en verrons naltre les municipes qui ont 
joue un r61e considerable dans la formation de Tunite 
romaine." 5 

1 Compare Corp. inscrip. Graec. t. i. nos. 2254. 26; 2256. 13; 
2257. 16. 

2 See Corp. inscrip. Graec. t. ii. nos. 2554, 2556, 2557 ; cf. Sainte- 
Croix, Legislation de Crete, pp. 357-360. 

3 Polyb. xvi. 26; Livy, xxxi. 15. 

4 Histoire du droit des gens . . ., vol. ii. p. 115. 

5 Laurent, ibid. 



PRIVILEGES CONCEDED 143 

Isopoiity was sometimes given specifically and alone ; isopoiity often 
though generally it was comprised in a more general ISSfT 1 1 
treaty, either of aa-vXia 1 (inviolability of person and treaties - 
property in the stricter sense) ; or of simple alliance for 
defensive purposes 67n/xax/a, as between Hierapytna of 
Crete and Magnesia, 2 when the word ia-oTroXtreia is 
replaced by the expressions, indicating the regular 
constituent rights, are'Aem, immunity from certain Rights and 
public burdens, eTriyaimia, right of intermarriage, eyjrnycny, SmpiieT 5 
capacity to hold real property, TrpoeSpla, right to occupy 
front seats at public games, etc., in a word, participation 
in all civil and religious affairs, ^Toyf! Oeiwi/ KCU 
avOpcoTTivtw ; 3 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 ; 
or, again, isopoiity was sometimes included in a treaty 
establishing a symmachy, o-fyu/xa^m, an alliance both 
offensive and defensive (as between the Cretan towns 
Lato and Olus, 4 and between Hierapytna and Lyttos, 
etc.). Though the rights conferred were of so extensive 
. a character, yet the two States concerned preserved their 
respective identity and independence. 5 

Apart from establishing isopoiity by means of a treaty, isopoiitic 
certain rights, more or less comprehensive, were granted 
by decree as a recompense for services rendered to the 
State. Thus the memorable Byzantine decree conferred 
large privileges on the Athenians for having offered 
assistance especially in the struggles with Philip of 

1 Cf. the treaty between Allaria of Crete and Paros, in Corp. inscrip. 
Grace. 2557. 

2 P. Cauer, Delectus inscriptionum Graecarum (Lipsiae, 1883), no. 1 18. 

8 Cf. in the following paragraph the Byzantine decree in favour of 
the Athenians. 

*Corp. inscrip. Graec. no. 2554. 

5 On isopoiity, see C. V. Daremberg and E. Saglio (Ed.), 
. Dictionnaire des antiquites grecques et romaines (Paris, 1884, etc.), s.v. 
hopoliteia, pp. 180, 181. And on treaties and alliances generally, 
see infra, chaps, xvi. and xvii. 



conventions. 



144 



STMPOLITT 



Sympolity. 



Double or 
treble 
citizenship 
possible. 



Special 
privileges and 
exemptions. 



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, rsri-yaju/o, TroXrre/a, ey/cr^cn?, and TrpoeSpla. 1 Be- 
sides these concessions, three statues were erected in 
their honour. 

Hence, the isopolitic decrees were of a unilateral 
nature, whilst the isopolitic conventions established a 
reciprocity of civic rights. 

An enlargement of reciprocal isopolity is found in 
a rarer institution, arvjULTroXireia, which is practically a 
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 ma 
be, and was susceptible of dissolution at the pleasure o 
any of the allied communities. An example is found 
in the case where the people of Magnesia are made full 
citizens of Smyrna. 2 

Special privileges of lesser extent were also occa- 



1 Demosth. De corona, 91 : SfSo^Oai TO> 8a/zo) T$ Bvfai/Tian/ KOI 
TlepivOtwv } A.Or)vaiois SO/ACV eTriya/uav, TroA-tretav, ey/crcurti/ yas /cai 
ot/aaV, TrpoeSpiav kv rots ayoxrt, TroOoSov TTOTI rav ySwXai/ /cat TOI 
8a.fJi.ov TT/oarots /xera TO, ic/>a, /cat rots /caroi/ceiy eOfXovcri rav TroAti 
aXeirovpyriTois >}/xei/ iracrav rav Xtirovpyiav. ... Cf. Xenoph. 
Hellen. i. i. 26. 

2 E. L. Hicks and G. F. Hill, A Manual of Greek Historical Inscriptions 
(Oxford, 1901), no. 176, 11. 35 seq. See infra, on examples of G 
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 
because 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 areXeta (which has 
already been referred to), of which numerous instances 
are preserved in inscriptions. 1 Again in time of war 
certain enemy aliens were for the same reasons protected 
both in regard to their persons and their property; such 
guaranteed inviolability was termed ao-uX/a (as was before a<rv\ia. 
mentioned). Many inscriptions speak of such inviola- 
bility on land and sea, in peace and war, avvXla KCU 
a<r(pd\ta Kara yfjv Kal Kara 6d\a<r(rav TrdXe/uiov KOI ei 



Apart from all these occasional concessions, granted classes of 
for special reasons, various rights were permanently j^^nem &I 
extended to foreigners, in accordance with their rank ^ r s din 
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, 
these were (enumerating in descending order as to 
the extent of rights enjoyed), the naturalized aliens Classes of 

/yuo7rofVof), the ' public guests/ so specifically legalized, Athens. 11 
constituting largely the 7rp6j~evoi, the isoteles (*VoreX?); 
the metoecs, or domiciled aliens (/ULGTOIKOI), and non- 
domiciled aliens. 

The naturalized alien held the title of citizen by Naturalized 
virtue of a decree of the people in his favour. He ahen * 
enjoyed the general rights of citizenship, but with 
certain restrictions. 2 

1 Cf. H. H. Meier, De proxenia she de publico Graecorum hospttio 
(Halle, 1843), PP 2I Mf- > V. Thumser, De civium Athenieniium 
muneribus (Wien, 1880), pp. no seq. 

2 See G. Gilbert, Handbuch der griechischen Staatsalterthiimer, 2 Bde. 
(Leipzig, 1 881-85), vol. i. p. 177. And see further infra, on naturali- 
zation in Greece, chap. viii. 

K 



146 NON-DOMICILED ALIENS 

The pToxenoi 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. 1 

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. 2 

Metoecs. The metoecs were domiciled aliens who enjoyed the 

protection of the Athenian laws through the agency 
of a patron (TrpoorTcm/?), 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 
which Athens 4 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 

aliens " 1 :iled these non-domiciled aliens were almost assimilated to 
the metoecs, being like them under the jurisdiction o 
the xenodikai, or the polemarch, as the case may be. 
There are no specific texts extant indicating th< 
legal status of this class of inhabitants ; but there is 
no doubt that their persons and property were ade- 
quately protected, as is shown to some extent in 
the speeches of the Attic orators discussing commercial 

1 For a full treatment of the proxenoi see infra, pp. 147 seq. 

2 Cf. infra, the latter portion of chap. vii. 

8 For preciser definition of metoecs and detailed treatment see infra, 
pp. I57*f. 

4 Of course these distinctions and practices do not apply exclusively 
to Athens ; but here the Athenian system is more particularly con- 
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 
being initiated in the mysteries j 1 and very probably 
certain other private rights given to metoecs were with- 
held from them. To conclude, as Schenkl 2 does, that 
they were wholly deprived of the benefit of the law 
fts an entirely unwarrantable assumption. If this were 
[.so the institution of the proxenoi officials purposely 
appointed to see to the interests of aliens, their fellow- 
:ountrymen 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 
niomiciled alien, and the mode, conditions, and effects 
f naturalization. 



. 3 This institution was by no means peculiar Proxenia. 
the Hellenic nations. More or less similar practices 
Dtained amongst many peoples of antiquity, as, for Amongst 
xample, the Egyptians. There are definite inscriptions h?g l e 
hich indicate that a system of this kind was known 
o the Phoenicians and to the Carthaginians ; there is, 
loreover, epigraphic evidence that the Carthaginians 
rere also fully acquainted with the use of the tessera 
ospitalis (or tessera hospitalitatis) so well known to the 
lomans. The system was most largely in force in Thei institution 
Greece, and dated from the time of the Trojan war. 4 m Greece " 
or practical purposes, the history of the institution 
lay be said to commence at about the end of the 
sventh century before the Christian era ; the oldest 
xtant epigraphic texts relating thereto are from 
)lympia, 5 Locris, 6 Corcyra, 7 and Petilia. 8 As regards 

1 Corp. jur. Att. 34. 

2 H. Schenkl, De metoecis Atticis (Wiener Studien, t. ii. (1880), pp. 
51-225), P- 213- 

8 Cf. P. Monceaux, Les Proxenies grecques (Paris, 1886) ; Schubert, 
t Proxenia Attica (Leipzig, 1886). 

4 Eustathius, Ad Iliad, iii. 204 ; iv. 377; cf. Liv. i. I ; and Plin. 
(st. nat. xxxv. 9. 

5 H. Roehl, Inscriptions Graecae antiquissimae (Berlin, 1882), 113, 
7, 1 1 8. *lbid. 322. i Ibid. 342. *Ibid. 544. 



148 



PROXENIA AND HOSPITALITY 



Proxenia 
and public 
hospitality. 



Private and 
public ties of 
hospitality 
hereditary. 



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 cos- 
mopolitan tendencies. " La proxenie est un grand 
pas fait par la Grece hors de I'isolement oriental." 1 It 
also tended to foster pacific relationships, and to 
mitigate the horrors of war. 

Proxenia, in the stricter sense, is not to be con- 
founded with the institution of public hospitality (ew'a, 
the guest-tie) ; but the distinction between them was 
not always a hard and fast one. Thus, certain treaties 
of proxenia amounted to scarcely more than treaties of 
public hospitality, e.g. the treaties concluded between 
Agrigentum and the Molossi, 3 between Delphi and the, 
towns of Sardes and Ciphaera. 4 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 rea- 
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. 

In early times, individuals and whole families o 
different States frequently established a bond of hospi- 1 
tality between them, a bond which became hereditary 
as is depicted in the episode of Glaucus. 5 In proces i 
of time the extent of such relationships was enlarged S( j 
as to include entire States as well as families am j 
individuals, as, for example, where the Pisistratida 

1 Bulletin de correspondence hellenique (Paris), vol. i. p. 303 ; Corpi 
inseriptionum Attlcarum (1873, etc.), i. 27 ; Suppl. p. 9. 

2 Laurent, op. clt. vol. ii. p. 113. 

3 Cf. C. Carapanos, Dodone et ses mines (Paris, 1878), p. 52. 
4 5a//. de corr. hell. (1881), p. 400. 5 Cf. Iliad, vi. 215 seq. 



PROXENIA AND MODERN SYSTEM 149 

became the proxenoi of Sparta. Similarly, Romans of 
distinction became the protectors of foreign cities. 1 

Proxenia is, in many respects, the prototype of our Proxenia and 
modern consular system. In modern Greek the word consular* 
Trpo^evos 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 o f simllar ' 
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 
government 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 between them - 
and modern States. The appointment of the proxenoi 
really arose from the fact that the system of regular 
and 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 
of the State thus represented. Secondly, the appoint- 
ment did not necessarily confer on the proxenus any 
official status in his own country ; but in the country 
he represented he received various honours and such 
privileges as almost amounted to citizenship. Thirdly, 
the 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 proxenou 
right of legal action against them in case of default, 

1 See infra, chap, ix., on hospitium publicum. 



150 



EXAMPLES OF PROXENOI 



Appointment 
of proxenoi. 



Notable 
examples of 
proxenoi. 



nevertheless we find from the numerous examples 
reported that they were generally assiduous in their 
duties and faithful to their trust. The office tended to 
become hereditary, 1 in the same way as the private 
institution (the evld) had done, a fact which supplies 
additional testimony to good faith. Most of the decrees 
respecting proxenoi embodied the formula, avrw KOU 
e/c-yoVof?, 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 2 or 
the people 3 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 of 
orphans. 4 

As examples of Athenian proxenoi may be mentioned 
Pindar at Thebes, Thucydides at Pharsalos, Doxander 
at Mitylene ; 6 as Spartan proxenoi at Athens, Cimon, 
Alcibiades, and Callias. 6 Similarly, Nicias represented 
Syracuse at Athens, 7 where also Demosthenes and 

1 Thuc. iii. 2 ; v. 43 ; Xenoph. Symp. ix. 39 ; and cf. Corp. 
Imcrlp. Att. i. suppl. 6ia ; ii. 3, 36, 380 and others. 

2 Cf. Herodot. vi. 57: KCU irpo^eivovs aTroSeiKvvvai TOVTOLTI 
7r/oo(7Ker$at TOVS av 0eA,a><rt TO)I/ dwrTwv . . . (But here the proxenia 
took rather the form of a Acirov/yyia, a public charge or burden.) 

3 Diog. Laert. ii. 51 ; Corp. inscrip. Graec. 1335. 

4 ZV vectig. ii. 7, where Xenophon speaks of the fteroiKo^JAa^, 
overseer and guardian of the (J.CTOIKOI, and of the d/><a]'o<vA.af, 
guardian of orphans, who had lost their fathers in war. 

5 Isocrat. Antid. 166 ; Thuc. viii. 92 ; Arist. Pollt. v. 4. 6 ; cf. 
Thuc. ii. 29 ; iii. 2. 85 ; Xenoph. Hell. i. i. 35, etc. 

6 Andocid. De pace cum Laced. 3 ; Thuc. v. 43 ; vi. 89 ; Xenoph. 
Hell. v. 4. 22 ; cf. vi. i. 4. 

7 Diodor. xiii. 26. 



THEIR PRIVILEGES 151 

Thraso represented Thebes. 1 At Sparta, Lichas repre- 
sented Argos, 2 and Pharax Boeotia. 3 At Delphi there 
appears to have been a set of official proxenoi. 4 Tyrants 
also and * barbarian ' countries had their proxenoi. 5 

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- P roxenou 
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. 6 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. 7 

It is not known definitely whether proxenoi received Doubtful 
any payment for their work. In any case, no general received * 
rule can be laid down. There is no doubt that some, P a y raent - 
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 eOeXo- 
TTpofyvoi, one of whom, as mentioned by Thucydides, 
was a certain Peithias, who voluntarily acted as the 

1 Aeschin. De kgat. 143 ; c. Ctesiph. 138, 

2 Thuc. v. 76. sXenoph. Hell, iv, 5. 6. 

4 Eurip. Jon, 551, 1039 ; Androm. 1103 ; cf. Pindar, Nem. Od. vii. 
63, where he speaks of AeX^ot ^ci/ayerai, though this phrase refers 
rather to the hospitality of the Delphians than to any specific official 
institution. 

5 Cf. Xenoph. Anab. v. 4. 2 ; vi. n ; Corp. inscrip* Graec< no. 87, 

6 Corp. inscrip. Graec. no. 1542: ... rots o//,>j/9ois TWV BOCWTWV 
Kat <&a>KU)v irpo^tvtav Sojuev. . . . 

KCU e?/Ai/ avrots areAeiav KCU dcrvXtai/ KCU TroXc/xov KCU elprjv^ /cat 
Kara yrjv KCU Kara OdXarrav KCU raXAa Travra oVa KCU rots aAAois 
ts [/<a]t evepyerats StSorat. . . . 

7 C0/A inscrip. Att. i, suppl. 6ia 



152 THEIR FUNCTIONS 

proxenus of the Athenians and was the popular leader. 1 
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. 

international Obviously the proxenus occupied an important posi- 
prTxenus f tion in international relationships of all kinds. He was 
the intermediary between the two cities. He was the 
protector (^poo-Tar*]?) z of foreigners in general, and 
Protector of espoused their cause. 3 He acted in their favour, as 
fnterfsts and Cimon the Athenian did for Sparta, and Timosthenes of 
subjects Carystus for Athens, before the political assemblies, and 
also before the local tribunals, in order to ensure their 
financial, judicial, and religious interests. 4 If the foreign 
Large variety city which he represented was in any way involved in 
functions. legal proceedings, he introduced to the court the 
(TvvtiiKoi, or advocates, who had been despatched to plead 
its cause. 5 He was present, as a witness, at certain civil 
transactions of his proteges, and particularly at the making 
of their wills. 6 He determined the succession of deceased 
foreigners, who died without heirs. 7 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. 8 Only occasion- 
ally, however, did he sell the goods in his own name 



1 iii. 70 : /cat fy yap TleiQias IfeAoirpo^evos re TO>V ' 
TOV BrjfJLOV 7T/ooet(TT^/cet. . . . 

2 As to the Trpoo-rdrrjs in connection with the special class of 
metoecs, see infra, p. 160. 

*Corp.jur. Att. p. 585, note to art. 1257 (Schol. ad Demosth. 
Leptin. 475. 5) : ILpogevoi Aeyoi/rat ot kv rots S/otots TOVS iTrt&^oui'Tas 
Se^o/Avot, <iAot Tvy\dvovTa<s /cat Koivy /cat tSta. Cf. Schol. in 
Aristoph. Aves, 1021 : Ilpofevoi etcrtv ot rcray/ievot ts TO vn-o8e\(r6(u 
TOVS ^ci/ovs e aAAtov TroXeiav ^/coi/ras. 

4 See Suidas, s.v. 7rpo^i/os ; Schol. ad Herodot. vi. 57 ; Eustathius, 
Ad Iliad, ii. 204 ; iv. 377 : ... Tr/ao^ci/os pkv 6 UTTO TrdAcws ?} 

V TQ ax^erepa TrpOLorraardaL f ei/wv. 

5 Corp. inscrip. Grace . 2353. 

6 Ibid. 4 ; Roehl, Inter. Gr. antlq. 544. 

7 Demosth. c. Calipp. 5 seq. . 8 Pollux, t iii. 59; vii. 4,. 






in 
atic 



DIPLOMATIC INTERMEDIARIES 153 

) ; he was, more frequently, the mere inter- 
mediary between seller and purchaser (ir/oofnTmfe). He 
was for a State what the private patron (Tr^oo-rcm??, 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 Trpoo-Tarw. 
At times, if they had no private TTJOOO-TCIT^?, he became 
theirs by virtue of his office of irp6evos. Apart from 
these functions, which were usual and understood, 
Athens often gave her proxenoi special instructions. 1 

Further, the proxenus received the foreign ambas- His part i 

111-1 rr i i r i diplomats 

sadors and other diplomatic officials, procured for them affairs, 
admission to the assemblies, to the temples, 2 and to the 
theatres, 3 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. 4 

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. 6 Along with soothsayers, they occasionally 
pronounced imprecations against those who would break 
treaties that had been concluded. 6 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. 7 At the time of the 

1 Corp. imcrip. Att. ii. 1 86. 2 Bull. corr. hell. v. p. 400. 

3 Pollux, viii. 59 ; Eustath. Ad Iliad, iv. 207. 
4 Thuc. v. 59. 5 Thuc. iii. 70. 

6 Roehl, fnscr. Gr. antiq. 1 18. 7 Xenoph. Hell. vi. 3. 3-5. 



154 PRIVILEGES OF PROXENOI 

conflict with Philip, Athens sent to Thebes Thraso of 
Erchiaand Demosthenes, proxenoi of Thebes, as ambas- 
sadors to negotiate for an alliance. 1 In the Pelopon- 
nesian war Lichas, proxenus of Argos at Sparta, was 
several times chosen to negotiate between the two cities. 2 
Proxenoi, again, often acted as arbitrators in contro- 
versies between cities or between private individuals. 
Thus, Cimon of Athens, the proxenus of Sparta, was 
nominated as arbitrator between Athens and Sparta. 3 
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. 4 

The character In reference to the different functions of the proxenoi 
vlned^n nia above mentioned, it is to be remembered that the institu- 
different parts tion varied greatly in different parts of Greece. As M. 

of Greece. & . J -11 v 

Monceaux says, it assumed more particularly a religious, 
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 representait la ville etrangere en tout, la 
proxenie est devenue naturellement une institution sur- 
tout religieuse dans les cites sacerdotales, commerciale 
dans les cit6s commer^antes, politique et diplomatique 
dans les grands Etats qui ont aspir6 a un r61e politique."' 

Privileges In recognition of their important position and the 

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 ; amongst 
the Aetolians and Dorians both kinds were usually 

1 Aeschin. De legat. 141-3 ; De coron. 138. 
2 Thuc. v. 76. 3 Plut. Cimon, 14. 

4 Corp. inscrip. Graec. 22640 add., 2671 ; Bull. corr. helL vi. p. 139. 

5 In Daremberg-Saglio, op. at., 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, ao-uX/a ; some inscriptions 
speak of their enjoying c peace in war,' tipfav ev TroXe/mu) ; 1 
in a word, they received the general protection (aa-cfrdXeia) 
of the States concerned. 2 Thus Cleonicus of Naupactus, 
the proxenus of the Achaeans, having been made prisoner, 
was not sold, but was liberated even without ransom, 
e\a/3e <$e KOI JLXeovtKOv TOV NavTrcwcTfoy, o? Sia TO trpd^evos 

'.V TU)V 'A^atWl/ TTCtpaVTO, JULV OVK eTTpdOr], /U.TCL Sc TIVOL 

GLTrelOrj ^w pis XvTpcov? 

Further, they shared the privileges of areXem and 
x, 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 (eyKT^ov?). These immuni- 
ties and concessions are clearly expressed in the following 
inscription : TO?? irpoevoi<s eivcu yw KCU oma? fyrnftw KCU 
i&OTeXetav KOI dcrcpdXeiav KCU dcrvXiav KCU 7ro\eju.ov KCU eipYivrjs 
ouvw, Kctt Kara, yfjv KCU Kara OaXaTTai/. 4 

Again, they had the right to have their official cases 
tried before others (the privilege itself being termed 

a Cf., for example, Corp. imcrip. Graec. 2330. 

2 See Corp. Inscrlp. Att. i. suppl. 1 16 a ; ii., add. i c ; iv. 54 b ; and 
cf. Demosth. c. Aristoc. 89 ; De Halon. 38 ; Lysias, c. Ergocl. i ; 
c. Philocr. 2. 

8 Polyb. v. 95. 

*Corp.jur. Att. 1239; Corp. inscrip. Graec. 1562-7. Cf. the pas- 
sage of an inscription (Corp. inscrlp. Graec. 1542) quoted supra, in 
note 6, p. 151. 



156 THEIR IMPORTANCE 

irpoiiida, and the causes enjoying such priority, 
TTpoSiKoi). They possessed the right of access to the 
public assemblies, which they were entitled to address 
immediately after the completion of the sacrifices, 
irpocroSos Trpos rrjv fiov\t]v KOI TOV Sfj/mov 7rpd)T(p JULCTO. TO. 
lepd. They were permitted to use a special seal 1 in their 
official transactions. They were exempted from the 
obligation to have a patron (-Tr^oo-rar^). They enjoyed 
6-TTLj/ofj.ia (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, TrpojuLavreia ; burial at the expense 
of the State. 2 In several Dorian States they received 
/a, in some Ionian cities complete citizenship, 



importance of Thus it is obvious that owing to the multiplicity and 
international importance of their functions as permanent intermedi- 
reiations. ar i es 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 resume, 
comme intermediaires permanents entre deux cites, 
comme patrons d'une ville etrangere devant les 
tribunaux et les assemblies de leur patrie, comme 
diplomates ^et negociateurs des trait6s, comme arbitres 
entre les Etats, les proxenes ont joue un role con- 
sid6rable dans la vie Internationale de la Grece 

" 3 



ancienne. 



1 Pardessus, op. cit. i. p. 52. 

2 For a fuller enumeration of the minor privileges, see P. Monceaux 
in Daremberg-Saglio, op. cit. p. 738, s.v. Proxenia. 

3 Monceaux, loc. cit. p. 740. 



CHAPTER VII 

THE METOEC. RIGHTS AND DUTIES OF THE 
DOMICILED ALIEN 1 

THE position of the metoec has given rise to much The position of 
controversy, and writers are by no means yet agreed on controversial 
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- rigVtf^n'to 
national law, public and private alike. The gradual metoecs - 

1 The present chapter is much indebted to M. Clerc, Les meteques 
atheniens. Etude sur la condition legale, la situation morale et le role social 
et economique des etrangers domicilies a Athene* (Paris, 1893). Other 
works maybe consulted as follows: E. Catellani, Diritto intemazionale 
privato nell' antica Grecia (in Studi e documenti di sforia e diritto, Roma, 
1892), sect. iv. ; G. Gilbert, op. clt. vol. i. pp. 195 seq. ; U. von 
Wilamowitz-Mollendorff, Demotika der Metoeken (in Hermes. Zeit- 
schrift fur classische Philologie^ Berlin, vol. xxii. (1887), pp. 107-128, 
211-259) ; G. de Sainte-Croix, Memoire sur les Meteques (in Memoires 
de litterature tires des Registres de V "Academic Royale des Inscriptions et 
Belles Lettres^ t. xlviii. (1808), pp. 176-207) ; H. Schenkl, De metoecls 
Atticis (Wiener Studien, t. 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 la condition 
des etrangers domicilies dans les differentes cites grecques. In Revue des 
universites du midi, Bordeaux, tome iv. (1898), pp. 1-32, 153-180, 
249-274. 



158 DOMICILED ALIENS 

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 of the The word /meroiKos is derived from /*era, owce'w, and 
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 : " A citizen is not a citizen simply because he lives 
in a certain place, for resident aliens and slaves share in 
the place." 1 The term, to which the Latin inquilinus, 
incola, and peregrinus more or less approximate, is 
opposed to (Wo?, TroXn-^? (countryman, citizen) on the 
one hand, and to eVo? (stranger, foreigner) on the 
other. In the case of the latter, however, the dis- 
crimination was not always sharp and precise ; and 
eVo? was also generally distinguished from /3dp/3apo?, 
barbarian, non-Hellene. 2 Perhaps the best English 
expression corresponding to yaerowco? is * resident alien/ 
or * domiciled alien.' In German the Teutonized word 
Schutzverwandtc 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 

1 Pollt. iii. I, 3 : o Se TroAt-n/s ov TU> OLKCIV irov iroXiTrjs IcrriV. 

KCU jap /ATOlKOt Kttt 8OV\OI KOWtoVOVfTL T 

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 
Aristophanes of Byzantium (born c. 260 B.C.) one of 
the most eminent Greek grammarians at Alexandria : 

JULCTOIKOS $' eVTLV, OTTOTGLV Tt? OL7TO ^Vt]^ \6u)V VOtKtj Tfl 

7ro\t, reXo? T\u)v e/9 aTTOTrra'y/xei/a? r/i/a? 
TToXew?. "Eft>? yuet/ ovv 7TO(7Wi> fijuicpatv Trap7rirjfjio$ 
KCU CLT\t]9 <TTIV eav, Se virepflfl TOV copiorjmevov 
/meroiKO? fjStj yiyvtTai KCU UTroreX^?. 1 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 Gred?cities he 
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 
population of about half a million, 2 of which some 
hundred thousand were freemen. At Agrigentum they 
formed the greater part of the population. 3 No doubt influence of 
Athens was largely indebted to them for her commerce 
and industry ; and, on this account, Xenophon thought 
it would be well if suitable honours and distinctions 

1 A. Nauck, Arittophanis Byzantii . . .fragmenta (1848), frag. 38. 

2 Schoemann, Gnechische Alterthtimer, 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.) 

3 Diodor. xiii. 84. 4 : K<ZT' e/ceivov yap TOV \povov 'AfcpayavTivoi 
/xv fjo-av TrXetovs TWI> Sto-vpiuv, <rvv 8k TOIS /carot/covtrt ei>ois OVK 
\drrois TCOI/ 



i6o 



PATRONS NECESSARY 



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 

Obligation to Taking Athenian practice as the most enlightened, 
on< 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 (wjooo-TaT^), 
thus establishing a relationship which somewhat re- 
sembled that between the Roman patronus and diem. 

was public Probably public authorization, as is conjectured by 
Schoemann, 2 was first required ; and in Athens this was 
effected by the Areopagus. But, it must be admitted, 
this supposition appears to be based on a passage of 
Sophocles, which is not quite conclusive, though it 
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." 



necessary 
for their 
admission ? 



TOIOVTOV ctuTois *A/>eos 
lya> vvjj8r) \66viov ovd' o? OVK let 
' ctA^Tas ryS' ofiov vaUiv 



TTt'cmv 



apyav. 



Creon here refers to the polluted Oedipus who was in 
Attica, and assumes that if this came to the knowledge 

1 Xenoph. De vectig. in. 4 : 'AyaObv Se KCU KaXov KCU 7r/>oeS/n'ais 
TifAacrBai l^owropovs KCU vavKXrjpovs, Kal ITTI ^vici y' ecrrtv ore Ka- 
Aeicr^ai, ot av SoKwcrtv d^toAoyots Kai TrAcuois Kai e/zTropevyaao'tv 
(oo^eAetv T^V TroAiv. Tavra ya/o rt/xw/xevot ov povov TOV KepSovs 
ciAAa Kai TT^S TI/A^S cVeKev Trpbs ^>iAov? cTrto-TrevSoiev av. 

2 O/. /. vol. ii. p. 3, note 2. 8 CW//. Co/. 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 : rov SJJJULOV Trpoa-rdj-avTo? fyrtjcrcu rrjv 
6ov\iiv, . . . KGU ^tjTijcracrav a,7ro(p>jvai irpos it/mas, a7r(f)t]vev 17 
SovX>/ . . . l 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 decr^TvTas 
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 . . . row 

Ken TOf? Te^wTa? aT\t$ TTOirjcrai O7T6D9 0^X09 

ev e*V Trjv TTO\IV /careXOfl, KOI TrXe/ov? 

ev^epw^. 2 But in treaties there were Exemption 
frequently special stipulations to exempt the subjects of {j^ s ^ y 
the contracting parties from this formality : e.g. in the formalities by 

. & C T . i -r i treaties. 

treaty between riierapytna and Pnansos, 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 

a Dinarchus, c. Demosth. 58. Cf. Plut. Sol. 22 : KCU r)v e 'Apciov 
irayov ftov\r)v erafci/ en-uTKOTre.lv, oOtv c'/ccwrros \t rot cTriTijScia /cat 
rovs d/oyovs KoAa^ctv. Cf. also Isocr. Areopag. 36-55. See Jebb's 
lote on the passage in question in his edition and translation of 
Oedp. Col. 

2 Diodor. xi. 43. 

L 



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. . . . But when the twenty years 
have expired, he shall take his property with him and 
depart." 1 

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. 2 
An action, ypa<prj ew'a?, lay against metoecs who neglected 
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 
ypa(pt] ctTrpoarTaa-tovf which applied also in case they 
neglected to choose a patron. If found guilty of wilful 
infringement of this law, they could be sold as slaves. 4 

The prostates was their intermediary in most of their 
their patron. j uridical and p O ii t i ca i relationships with the State. It is 

probable that in a good many miscellaneous matters 
metoecs could act on their own behalf without this 
customary intervention. For example, a prostates was 
usually necessary for the commencement of a suit by them 
before the tribunals, but when it was once set in motion 

1 viii. 8508: tevat 8e rbi> f3ovX6fj,Vov ts TTJV /jerouc^crti/ ITTI pi]Tol 
ovcnrjs rwv evwv TO> /?ouAoyu,ei/<) KCU Svi/a/*ev<p /caroi 

/cat iriSrj[j,ovvTt, p.r) TrAcoi/ ITWI/ ciKOcrtv a<' 
orav 8' e^Kwcrtv ot xpovoi, T^V avrov \af36vra ovcria 



mo ra? 
TTOO- 



Names of the 
metoecs 
enrolled in 
special 
registers. 



Liability for 

fraudulent 

entry. 



The prostates 



cos 



2 Cf, Plato, Laws, viii. 8500: o Se diriw 
diroypa(f>a.Sj amves a.v avrtp irapa rots ap\ovan 
repov totriv. 

3 See Meier and Schoemann, cp. cit. p. 390. 
p. 391. 



METOEC AND PATRON RELATIONS 163 

they were allowed to continue the proceedings indepen- 
dently. Thus in one of the orations of Demosthenes 1 we 
find a metoec making an independent appearance in court; 
and in a Greek poet 2 of the third century, B.C., we read 
of a keeper of a disorderly house (TTO^I/O/SOOVCO?) 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 
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, 3 in- 
deed, makes use of the word Tr^oo-rcm;?, 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, 4 
Hyperides, 5 Isocrates, 6 and Aristotle, who says : "Even 
resident aliens in many places possess such rights [i.e. 
the right of appearing before the tribunals either as 
plaintiff or as defendant], though in an imperfect form ; 
for they are obliged to have a ' patron/ " 7 All these 

1 c. T>ionysodorum. 2 Herondas, Mimiami, 2. 

*Pax, 683-684: 

'A7ro(TTp^)Tat Toy SrjfMov ax$o~$r' OTI 
ovrcu Trovrjpbv TT/ooo-Tarryv 7rcy/oa^aTo. 

4 <r. Arutog. 58. 5 c. Ar'utog. in Orat. Att. ii. 385, frag. 26. 

6 De pace, 58. 

7 Polit. iii. 1.4: IIoAA.axov p*v ovv ovSe TOVTWK rcAews oi 
, aAAa ve/xtv di/a-y/oj 



1 6 4 



DUTIES OF METOECS 



Intervention of 
prostates 

most private 
relationships. 



Duties of 

towards their 
prostates. 



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 /ULCTOIKIOV) was paid to the State, 
but all their public and private transactions with the 
citizens were carried on. 1 

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 2 reminds us, the polemarch, by virtue 
of his specially constituted juridical capacity, was 
already an official intermediary (using this word, of 
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, 3 without the intervention of 
a TTjOoo-Tcrn/s 1 , 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 obliged 
to render certain services to their patron in return for 
his assistance and protection ; but as there is no infor- 



1 Cf. Suidas, s.v. aTT/ooo-rao-tov (Corp. jur. Att. 28) : TWI> 
IKCKTTOS irpo<rTdrr)V e^ct, Kara vo/xov Iva TWI/ cwrTWi', KCU 6V avrou 7 

T fJLTOlKLOV TlOtTOLl KCITO, TOS Kttl TO, CtXAa SiOlKClTCU. 

2 Demotika der Metoeken, he. cit. pp. 225 seq. 
3 Arist. Pofit. iii. I. 



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 m^toecs. 
the obligations imposed on them. 

As to the rights withheld from metoecs residing in Rights 
Athens, they were, in the first place, debarred from t w ^ held 
eTriyafjiia, that is, the right to marry an Athenian citizen. 1 NO right of 
The penalty for violating this provision was the seizure m 
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 2 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 
right, 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. 

1 Demosth. In Neaer. 16 : 'Eai> Sc ^vos a&rfj crvvoiKy T\vy r} 
/x?7X ai/ ?? ^Ttviovv ypa<eo~$a> Trpds TOVS Oca-fj-odtTas } A6rfva.i<DV 6 

/?OvA,0/XVOS, OtS t^&TTW. ttl/ & dAto* 7T7rpacr#0> KCU ttUTOS KCU T! 

ovcrta avrov, KCU TO TOLTOV uepos IO-TW TOV eAoVros. "Eo-r<o Se /cai, 

\<*' >' ~''\ ,, xt 

eav i ~w> T<> ao~T(j> (TWOLKYJ, Kara ravra. KCU o 



2 In Neaer. 1 6, as cited in the last note. 



i66 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." 

NO right to Metoecs were not entitled to hold property in the 
iifplibScfundis, public funds, nor in lands and houses, eyicnjo-is 7*7? KCU 
h a ouses nd oiKias. The holding of such property was considered 
an element of sovereignty, so that citizens alone could 
own immovables, JUL*] elvai eW? yrjs KOI oucias eyKTqviv. 1 
To obtain this right a special decree of the people was 
necessary. They were likewise debarred from all mort- 
gage transactions. 2 

if exiled, their If they were exiled for any reason their property was 
!ra*tri Confiscated TMV (bewyovTCOV al ovo-ial Snuevovrai.* 

LUilJloLctlcU. / / 

Could own They were, however, permitted to possess slaves and 

emancipate to emancipate them, under the same conditions as 

them. citizens exercised this right.* 

NO right of They had no right of pasturage on the public lands, 

pasturage on > t 5 

the commons. TTlvO^ia. 

Could not They could not bring public actions, ypa<pal, except 

act?<?ns. ubh such as directly concerned their own persons, and not a 

third party or the State. 

Excluded from They were excluded from certain public functions ; 
offices! put : for example, they were not permitted to serve as public 

arbitrators, or umpires, Siamrrai, nor as ambassadors. 
But exceptions Certain exceptions, however, were sometimes made in 

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 that 
Pasion had lent on land and lodging-houses. 

2 Demosth. Pro Phormio, 6. * Corp.jur. Att. 1016. 

4 It is thus related of one Apollodorus, who was an Athenian 
metoec from Samos ; cf. Isaeus, De Apollod. hered. and cf. Harpocra- 
tion, s.v. noAc/ia/o^os. See also Corp. inscrip. Att. ii. 2. 768, 772, 
and 773. 

5 Corp. inscrip. Graec. 1385 ; A. R. Rangabe, Antiquites helleniques, 
ou repertoire d 1 inscriptions et d'autres antiquites decouvertes depuis fajfran- 
chissement de la Grece, ^ vols, (Athenes, 1842-1855), no. 704. 



CHARGES IMPOSED ON THEM 167 

of the philosopher Xenocrates 1 of Chalcedon in 322 B.C., 
and in that of the Theban philosopher Crates. 2 They 
were forbidden to speak at the assemblies of the people, 
v XP*1 vov v KK\vj(Ti(tiv ywere^efy ayopevovra ; 3 and 
they were also excluded from competing in the public 
games, aywv TIS evavSpias TOIS Tlava6rjvaloi9 ayerai, 0$ 
Koivwveiv OVK cj-ea-Ti TO*? ^evois j 4 though not from taking 
part in the dramatic performances and competitions, 
where sometimes, as in the Lenaean festivals in honour 
of Dionysus, 6 certain more or less onerous charges special charges 
(\eirovpyiai) were imposed on them, e.g. the 
the equipping and bringing out of a chorus. 

As to taxes, metoecs had to pay through their TO pay an 
patrons 6 a fixed annual sum, the /ULCTOIKIOV, amounting ar 
to twelve drachmas in the case of men, and six in the 
case of women, 7 when living in independence, that is, 
not in the house of their husbands or sons. Some 
writers, e.g. Schoemann, 8 have asserted that an additional 
smaller tax of three obols, Tpia>/3o\ov (i.e. 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 /meToiKtov, and an additional rpiwfioXov. 
And so because the additional half-drachma accompanied 
the njLeroiKiov in the case of the freedman, it was unwar- 
rantably assumed to accompany it in the case of the 
metoec. 9 At all events, besides the ordinary charges 
of citizens and the distinctive veroiKiov, they had to pay 
a special tax when trading in the market-place, and were 
further subject to extraordinary imposts, levied to meet 

1 Plut. Phoc. 27 ; Diog. Laert. iv. 2. 8-9. 2 Plut. Demetr. 46. 

3 Corp.jur. Att. 33. 4 Corp. jur. Att. 440. 

5 Schol. ad Aristoph. Plut. 953. 6 Cf. note 7, page 163, supra. 

1 Corp. jur. Att. 871 (Suidas, s.v. ftcrot/ctov) : Twv /xcrot/cwv 6 /xei> 
avr)p SwSeKa 8/Dax/Aa? rcXti joieTotKtov, ^ 8e yvvr) e. KCU TOV vtov 
reXoui/TOS, 17 M^p ov reAet, p) reAoiWos Sc avrr) rcAet. Cf. Corf, 
jur. Att. 27 (Harpocration, s.v. ^TOLKLOV) : Ai8oi/rat <$ VTT' aurwv 
Ka0' eK-ao-rov eras Spaxpal SwSeKa oircp 6vo/xaeTcu /XCTOIKIOV. 

8 Gr. Alt. vol. ii. p. 53. 9 Cf. Clerc, op. cit. p. 21. 



168 MILITARY SERVICE 

the exigencies of war or defence, 1 or to meet the ex- 
penditure incurred in the public feasts, 2 e.g. the elvfyopd, a 
property-tax 3 levied on citizens also, but the burden of 
the metoecs was greater, and the eTmWt?, an ostensibly 
voluntary contribution, sometimes in money, sometimes 
in kind. 4 

All metoecs were liable to compulsory military 
service, 5 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, 6 as military command abroad was allowed by the 
Spartans to their TrepWot. 7 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, "of 
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." 8 Whilst Athens employed her metoecs 






1 Thuc. ii. 13; iv. 90. 2 Schoemann, op. tit. vol. ii. p. 53. 

3 See P. Guiraud, Uimpot sur le capital a Athene^ in Revue des deux 
mondes, Paris, Oct. 15, 1888. 

4 Cf. Gilbert, op. tit. vol. i. p. 345 ; and C. Lecrivain, s.v . Epidosis y 
in Daremberg-Saglio, op. tit. 

5 See Clerc, op. tit. pp. 46 seq. 6 Thuc. v. 90. 

7 Thuc. viii. 22. On theperioeci, see infra, p. 178. 

8 De vectig. ii. 5 : Kcu fteraStSovTes 8' av /AOI SoKovpev rots ^erot KOI? 
TWV aXXitiv &v /caAov yaeraStSovcu KOI TOV ITTTTLKOV evvova-repovs av 
7roiwr$ai /cat a/xa icr\vpoTepa.v av KOI ^et^to rr)v TTO\IV 

Cf. Hipparch. ix. 6. 



FOREIGNERS AND THEIR RELIGION 169 

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 regular m 



service. 1 



As to religion, foreigners in general enjoyed the free Foreigners and 
exercise of their national worship a favour usually con- 
ceded by special authorization. 2 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) TOV evov 
KCU IJLGTOIKOV OUT otyo^a? ap^eiv ou6' tepaxrvvqv KXtjpovcrdcu . . . ; 3 
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 4 and processions of the Bendideia and of 
the Panathenaea. 5 u Le meteque a le droit d'invoquer 
pour lui les dieux de la cite, il ne peut les invoquer au 
nom de la cit6 et pour elle." 6 Probably they were 
allowed in some cases to be initiated into the mysteries ; 
as a general rule, strangers were prohibited therefrom, 
wSeva evov fjLvetv* but in this phrase the word ei/o? 
is perhaps used in reference to non-domiciled aliens, 
a supposition which seems to be supported by many 
texts (of which examples have already been given) 
containing the word /ue'rcu/co? as well as eVo? when it 
is intended that the application should extend also to 

1 Cf. Clerc, op. cit. p. 71. 

2 See P. Foucart, T>es associations religieuses chez les Grecs . . . 
(Paris, 1873), and Clerc, op. cit. pp. 1 18 seq. 

8 Demosth. c. Eubulid. 48. 4 Demosth. In Neaer. 85. 

5 Cf. Schenkl, De metoecis Atticis, loc. cit. pp. 204 seq. 

6 Clerc, op. cit. p. 150. 7 Corp.jur. Att. 34. 



1 70 TREATMENT OF METOECS 

the former class. In any case, this is submitted merely 
as a conjecture, especially so as eVo9 is often used to 
include the 



metoecs. 



whether It has been held by several writers that certain 

functionswere humiliating functions were imposed on metoecs in the 
n city's religious feasts and processions. " Rien ne pretait 
davantage," says Sainte-Croix, 1 " a de pareils sarcasmes 
que les fonctions auxquelles, dans les fetes religieuses, 
on avait voue ces etrangers." In the Panathenaic pro- 
cessions they acted as a-Kacpijcpopoi 2 (i.e. carrying for their 
patrons certain skiff-shaped sacrificial vessels filled with 
cakes), their wives as vSpiacpopoi (carrying pitchers for 
the wives of the citizens), and their daughters as 
(TKiarj(p6poL (carrying parasols over the heads of the 
Athenian women). About the middle of the third 
century, A. D., Aelianus 3 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 ehrenrtthrige Dienste," 
by Hermann, who makes use of a similar expression 
" die erniedrigenden Gebrauche," 5 by A. Mommsen, who 
says the metoecs, clad in red livery as required by 
law, were also compelled to wait on the Athenians 
at their common meals. 6 But in spite of these adverse 

1 Memoir e sur les meteques, he. cit. p. 182. 

2 Harpocration, s.v. dKa^^opoi ; Pollux, iii. 55. 

3 Variae historlae, vi. i : 'AOrjvaioi 8e vj3pia-av KCU eKeivrjv 
vftpw . . . ras yovv irapOevovs TWV fieroiKtov (rKiaSrjffropeiv cv rats 
TTO/WTCUS r)vdyKaov rats Javrtov KO^CUS rots Be yvvcuKas rats yvvmm 
TOVS Se avSpOLS cri<a<f>r)(f)opiv. 

4 A. Boeckh, Die Staatshaushaltungder Athener, ^ Bde. (Berlin, 1 886] 
vol. i. p. 624. 

5 K. F. Hermann, Lehrbuch der griechischen Antiquitaten. Ed. by 
Bliimner and W. Dittenberger (Freiburg i. B. 1889, etc.), vol. i. 

"5- 

Q Heortologle Antiquarische Untersuchungen ttber die st'ddtischen Feste 
der Athener (Leipzig, 1864), p. 180 : " Die MetSken n2mlich mussten, 
gekleidet in Roth als der gesetzlich bestimmten Livree, hinter ihren 
Patronen, den Biirgern, Gefasse hertragen, gefiillt mit Kuchen und 



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-Mollendorff 1 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. 

Metoecs and other foreigners were under the juris- Foreigners and 
diction of a special magistrate, the polemarch, TroXejmapxos, Jun 
who tried only private suits, Swat idtai, and not public 
actions, iuccu Stjfio(riai. He also heard appeals from the 
decisions of the arbitrators, SiainjTcu. In a good many 
cases, metoecs could appear in person, and address the 
court. They were liable to give security in private 2 as 
well as in public 3 actions, from which liability citizens 
were exempt, excepting a few cases of the Skat Srj/moo-iai. 
; In regard to commercial cases (apart from specific con- Commercial 
ventions arranging otherwise) the domiciled aliens were ca 
practically assimilated to Athenian citizens. Thus, they 
were subject to the jurisdiction of the vavroSucai, judges 

Opferbrot und bald aus Erz bald aus Silber gearbeitet" ; and p. 196 : 
" Das souvera"ne Volk sass zu Tisch und Hess sich von seinen Beisassen 
das Brot und den Kuchen reichen." 

cif. p. 220. 2 Isocrat. Trapezlt. 12. 8 Lysias, c. Agor. 23. 



i/2 TREATMENT OF METOECS 

of the Admiralty Court, the Bea-jULoOerai, the six junior 
archons who heard causes assigned to no special court, 
and the etcraywyeis, the magistrates who received infor- 
Criminai cases, mations and brought the case into court. 1 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, << 
aKova-ios, and wilful, premeditated murder, 0oVo9 e/c irpo- 

' * l J i 

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. ^ metoecs were pl ace d under the official protection of 
the Athenian people. 2 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 their 
persons and their property, were safeguarded by the 
Athenian government. 3 

Rewards and From time to time they received various rewards 
metoef s est< an d privileges. Some of these were of the nature of 
distinguished honours, e.g. a formal official eulogy and 
bestowal of a laurel wreath, as in the case of Phidias of 
Rhodes, a public physician, 4 decrees in favour of Zeno of 
Citium, the founder of the Stoic philosophy, the right to 
appear before the public assembly (TT^OO-O^O?), granted, 
for example, to Eucles, a herald, 5 and to Nicandros and 
Polyzelos, exemption from the polemarch's jurisdiction 
and permission to institute public actions, as extended to 

1 Cf. Demosth. Exceptio adv. Pantaenetum, 33 : ot Se vo/xot /cat TOVTW 
SiSocwri ras Trapaypa^ds avriXay \dveiv, ire.pl 8>v OVK tlcrlv etcraycuyeis. 
2 C Clerc, op. cit. pp. 188 seq. 

3 Corp. inscrip. Att. iv. 27 a ; P. Foucart, Melanges d'epigraphie grecq ue 
(Paris, 1878), 5 ; and cf. W. Dittenberger, Sylloge inscriptionum 
Graecarum, 3 vols. (Leipzig, 1898-1901), 348. 

4 Corp. inscrip. Att t ii. add. nov. 256 b. 

5 Corp. inscrip. Att. ii. 73. 



POSITION OF ISOTELES 173 

the Acharnians who took refuge in Athens after the 
battle of Chaeronea, SiSovat SIKCIS KCU \aju./3dviv KaOdircp 
'AOrjvatoi. 1 Amongst the positive privileges conferred 
(which never included eiriyania) were w-oreXeto,* equality 
with citizens as to taxes and tributes, thus raising the 
status of metoecs to that of iororeXei?, and 7r/ooew'a, 8 
raising their status to that of irpogevot ; and generally 
accompanying these privileges was the right to acquire 
property in land and houses, a right, moreover, which 
might be made hereditary. 4 Further, metoecs, in some 
rare cases (and proxenoi, more often) were exempted from 
the public burdens (are'Xeia), for example, from the 
/xerotVtoi/, 5 or from the Xeirovpyiaif or from the ela-^opa} 
Hence, it would appear that occasionally metoecs were 
actually treated, in regard to certain matters, with 
greater favour than citizens themselves. 8 

As to the more privileged class of w-oreAe??, we find isoteks their 
no information in the classical texts on the exact nature pos tlon * 
of their position, and there is no agreement on the 
subject amongst the old lexicographers. Some of these 9 
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, 10 
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 e 



l Corp. inscrip. Att. ii. 121, 11. 26 seq.,znd cf. the restoration of the 
;text suggested by Schubert, De proxenia Attica, (1886), p. 55. 
2 See infra, pp. 173 seq. 3 See supra, pp. 147 seq. 

4 Corp. Inscrip. Att. ii. 41. 5 Corp. Inscrip. Att. ii. 27. 

6 Demosth. c. Leptin. 18. 

7 Ibid. 1 9 seq. ; and cf. P. Monceaux, Les proxenies grecques (Paris, 
1886), p. 99. 
8 Cf. Clerc, op. cit. pp. 198, 199. 

9 E.g. Schol. ad Demosth. c. Leptin. 466. 6 ; Suidas, s.v. 'lo-oTeAeis. 

10 E.g. Ammonius, Ptolemaeus, Chemnus, and others. 

11 This is also the view of R. Dareste, Plaidoyers civih de Demosthtne 
(Paris, 1875), i. p. 311, though it must be admitted that there are 
no definite texts in support of the statement. 



POSITION OF ISOTELES 






(apart from specific decrees, which were very rare indeed, 
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. 1 This was a special 
honour, 2 and it was possible, by means of a specific decree, 
to make it hereditary. 3 

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." 4 

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 

The honour and privileges of la-oreXeia were some- 
times granted to foreigners, other than metoecs, who 
consented to work in the mines, 6 sometimes also to 
proxenoi, 7 and probably even to cities and entire peoples, 8 

1 Cf. Hesychius, s.v . 'LroTeAtis : Merot/cot wra rots acrrois reXry 
SiSdvres ; Harpocration, citing Lysias as to exemption from the 
metoikion, rov ptroiKiov a^eo-ts ; and Theophrastus as to exemption from 
other taxes of metoecs, KOU TWV aAAwv &v ITT/XXTTOV ot jueroi/coi 
a<eo-iv tlyov. See also the decree, 363-2 B.C., in favour of Astycrates 
who, having been expelled from Delphi by the Amphictyons, took 
refuge in Athens, Corp. inscrip. Att. ii. 54. 

2 As shown in funeral inscriptions and in official documents, cf_ 
Corp. Inscrip. Att. ii. 616 ; ii. 3. 1333 ; ii. 3. 2723-2734; ii. 279, 
334- 

3 Ibid. ii. 3. 2724. 

4 8tK<xi 8f Xay\dvovTai irpos avrbv iSiai /xi> at TC rots /MerotKOi? 
KCU TOIS to-oTcXccrt KCU rot? 7r/oof wots yiyvofj.tva.1 (Athenian Constitution, 
58) ; cf. Pollux, viii. 91. 

5 Cf. Clerc, op. cit. p. 210. 6 Xenoph. De vectig. iv. 12. 

7 Corp. inscrip. Att. ii. 48. 

8 Corp. inscrip. Att. ii. add. 97 c; and cf. Schenkl, op. cit. p. 222. 



ISOTELEIAHOW 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, 1 
was fundamentally the same as that of the metoecs. 
" Ni les avantages confrs de plein droit par 1'isotelie, 
ni ceux qui s'y ajoutaient souvent, ne changeaient au 
fond la condition 16gale des isoteles, qui, a vrai dire, ne 
-cessaient pas d'etre des meteques." Boeckh distin- 
guishes them from metoecs in consideration of the fact, 
.amongst other reasons, that they were not under the 
'necessity of having a prostates. " Da sie gewiss keinen 
iPatron (TT poo-rani?) brauchten, welches ohne Zeugniss 
sich vom selbst versteht, so konnten sie unmittelbar 
imit dem Volke und den Behflrden verhandeln, ohne 
jjedoch desshalb in der Volksversammlung stimmen zu 
IkOnnen." No authorities are given for this statement, 
Ibut probably that was the case. 

Isoteleia was conferred only by a decree of the people. HOW it was 
iln the case of Euxenides of Phaselis, for example, it runs confer 
tto this effect : " Whereas Euxenides has shown himself 
^well-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 
rtwelve sailors, that recently he gratuitously supplied 
-cords for the catapults, that he zealously fulfilled all that 
he was ordered by the strategoi and the taxiarchi, and 
that in everything he has shown himself the friend of 
the Council and of the Athenian people . . . " 3 

1 Op. cit. p. 209. 

2 Die Staatshaushaltung der Athener, vol. i. p. 627. 

3 Corp. inscrip. Att. ii. 413 ; Rangabe, Antiq. hellen. 479. (From 
ian inscription of about 200 B.C.) 



cjVlct&f Erf | evi'S^s SiareAct [cjwovs 
TW 'A077v[a]uoi> KCU ra|s re ur<opas aTrfacrlas oVas 
8f)fj.os e[t](rcvcyKt j v rovs /jterot/cov? [c] VTCIKTCDS 

Kttt !/ T^5 7roX[/x] j <) T^> 7T/3OT/OOV C^cAoVT^S 

StoSe/ca VJ3ij3cuTV, KO. \ t vvv is TOI^S KaraTraAras 

v[e|v]/3aS 7T8(UKV Kttl WTO. 7TTa | \6r) ttVT^) V7TO TCUV 

crrparrjyajv \ KOI TCOV Taidp\<i>v avravra 



176 INFERIOR CLASSES OF POPULATION 



Inferior classes 
of Athenian 
population. 



Cleruchi. 



Slaves. 
Freedmen. 



Relation of 
raetoecs to 
these classes. 



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 /cA^ot^oi, 1 the natives of the regions 
where the cleruchi were established, and the allies, 2 of 
whom there were allies proper, ^yu/xa^ot, and subject 
allies, v-jnjKooi. Of servile origin were slaves, public 
(oruuLocrioi) 3 and private (x^P 19 of/cowre?), 4 and freedmen. 5 

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 greater 
or lesser resemblance. Thus, like the cleruchi, many 
metoecs were members of two communities at once ; 
both are often described as ' being settled in ' (otWi/, 
OIKOVVTCS) Athens, in opposition to living in their own 

</ ' A J[ O 

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 ; 
they resembled the slaves, in that certain duties were 



ra a[A,] | A.a 
/cat rov 



] \ s 



and cf. Corp. inscrip. Att. ii. 360, for a similar example in the case of 
Hermaeos. 

1 Plutarch (Flamin. 2) uses the word KXripovyiai to translate 
"coloniae civium Romanorum." On the cleruchi, see P. Foucart, 
Memoire sur les colonies atheniennes au cinquieme et au quatneme sticks 
(in Memoires de F academic des inscriptions et belles-lettres, Paris, 1878, 
i e Serie, t. iv. pp. 360 seq.). 

2 Cf. P. Guiraud, De la condition des allies pendant la premiere 
confederation athenienne (in Ann. fac. des lettres de Bordeaux, t. v. 
1 68 seq.). 

3 See E. Caillemer, in Daremberg-Saglio, op. cit. s.v. Demosioi. 

4 Cf. Meier and Schoemann, op. cit. p. 751. 

5 See Daremberg-Saglio, op. cit. s.v. Apeleutheroi. 



THEIR RELATION TO THE STATE 177 

imposed on them from which citizens were exempt ; and 
their position was analogous to that of the freedmen l 
(aireXevOepos, emancipated slave, corresponding to the 
Latin libertus] in respect of taxation and the necessity to 
have patrons (who, in the case of the freedmen, were 
their former masters). 2 

In reference to the Roman institutions, the metoecs Relation of 
resembled the freedmen, the ordo libertinorum, rather %% to the 
than the peregrini^ or the incolae, at least, from the #**** 
point of view of their juridical position. The libertini 
had not connubium (till Augustus), as the metoecs had 
not eTrtya/uLia. 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, as a rule, 
from access to the senate, or /3ov\ri, as the case may be. 

Differences of opinion have been expressed as to the Relationship of 
exact relationship of metoecs to the State. Thus state* 08 10 the 
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 
der Athener, als Mitbewohner Athens Mitpfleglinge 
Athenas, Quasibiirger." 3 This statement is founded on 
a passage from Aeschylus, 4 where Pelasgos, King of 
Argos, receiving the Danaides, says he will be their 
prostates, 

. . . 7zy>o<TTaT?7S 8' eyw, 



acrrot re 



whence the Danaides are considered metoecs by the 
German writer. But it is extremely doubtful whether 
the tragedian here uses the word Trpoa-rdr^ in its technical 
sense. It is more probable that it is employed in this 

1 In Plato's Laws, xi. 915 there is a curious provision that freedmen, 
like metoecs, are not to remain in the city more than twenty years. 

2 Cf. A. W. Heffter, Athen'dische Gerichtsverfassung (Coin, 1822), 
p. 8. 

8 O/. cit. p. 246. *$///. 964. 

M 



i;8 CLASSES OF SPARTAN POPULATION 



passage in the sense of protector or champion, 1 as is 
done elsewhere. 2 

Final definition On the whole the most exact definition of metoecs 
ecs - is that given by Clerc : 3 " Les m6teques etaient des 
etrangers, les uns d'origine servile, les autres d'origine 
libre, fixes a Athenes, soit pour un temps, soit definitive- 
ment, que la cite faisait participer a ses charges, leur 
octroyant en retour des droits positifs, et a qui elle 
ouvrait meme, dans une certaine mesure, ses cadres ; de 
sorte que, sans etre citoyens, ils faisaient partie inte- 
grante de la cit6." 



classes of the 
population. 



Helots. 



Perioeci. 



As to Sparta we find three different classes constituting 
^ ts population, full citizens, the dependent perioeci, 
(TreploiKoi), and the serfs or helots (ciXurrei). 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 (i/eo^a/xw^ef?, 4 from i/eo?, new, 
recent, ^09, &7/uo?, the people ; hence, c newly enfran- 
chised'), who did not, however, obtain full citizenship. 
The sons of Spartans and helot women were designated 
fjLoOaices or juo'0fc>i/e?, 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 



1 Cf. Clerc, op. cit. p. 297. 

2 Cf. Aeschyl. Theb. 408, where he speaks of the 'defender of the 
gateway,' 

. . . avTiTct^w irpo(TTa.Tr)v 
and cf. similar usage, ibid. 797-8 

. . . /ecu TrvAa 

<f>padfj,ecr6a /Aovo/xa^otcrt Tr/aocrraTais. 
Similarly, Sophocles uses the word as 'protector,' Oed. Tyr. 303 ; 
and cf. 'ATToAAwi/a Tr/oocrTarav (Track. 209), in reference to Apollo. 

3 Op. cit. p. 297. 

4 Pollux, iii. 83.- Cf. Thuc. vii. 58 ; Xenoph. Helkn. iii. 3. 6 ; 
v. 2. 24. 






THE PERIOECI 179 

special taxes and dues, 1 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. 2 They engaged in various arts and crafts, and in 
commercial and trading pursuits, which the Lycurgan 
legislation had forbidden Spartans to follow. 3 Though 
politically inferior they were not subjected to oppressive 
measures. As in 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. 

1 Strabo, viii. p. 365 ; Plato, Alcib. 123 A. 
2 Herodot. vii. 234; cf. Strabo, viii. p. 362. 
* Plut. Lycurg. 4. 



CHAPTER VIII 

NATURALIZATION IN ATHENS 1 CERTAIN IMPOR- 
TANT ELEMENTS OF PRIVATE INTERNATIONAL 
LAW IN GREECE 

in earlier times OWING to the close relationships between the religion 
difficult. of the ancient State and citizenship, and to the exclusive- 
ness of such religion, and owing also to the deeply rooted 
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 long 
domicile of an alien was not regarded as carrying with it 
any legal rights and civic privileges ; they were not even 
thought to have been bestowed gratuitously. Subject 
to the restrictions already indicated, a resident foreigner 
on commission of an offence was, according to the 
earlier theory of the municipal law, punishable summarily 
and without proper trial ; the State did not admit any 
obligation on its part to mete out strict justice to him, 
Modifications nor any right in him to claim it. But there is no doubt 
"*" that actual practice very rarely followed the principles of 
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- 

1 On this subject see especially E. Caillemer, La naturalisation a 
Athlnes (Paris, 1880); the same writer's article in Daremberg-Saglio, 
op. cit. s.v. Demopoietos practically a reproduction of the first (to 
which writings a portion of the present chapter is much indebted) ; 
E. Szanto, Das griechische BUrgerrecht (Freiburg i. B. 1892) ; Clerc, 
op. cit. pp. 221 seq. ; A. Philippi, Beitrage zu einer Geschichte des 



NATURALIZATION IN ATHENS 181 

sented the spirit and conduct of his age. 1 " 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 ; relaxatlons - 
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, 2 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 s y mo P olitan 
hand, Sparta was one of the most exclusive States, and Spartan 
conceded it very rarely. It is stated by Herodotus 8 that exclusiveness - 
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 ' (yeo&z/xa>(W). 4 Even then 
admission was not so rare. Herodotus himself says 5 

attuc hen Bttrgerrechts (Berlin, 1870); H. Buermann, Animadversiones de 
titulis Atticis, quibus civitas alicui confertur vel redintegratur (Leipzig, 
1879). 

1 ix. 879 D : evov 8e a.v da-eXyaivovra KCU Opacrvvoptvov kavrbv 
TVTTTOVTO, OI^TCU Seti/ KoAdcr^vcu, \a/3o)v 7r/)bs Trjv dpfflv T<3v 
ao-TWo/Ltwv aTrayera), rov TVTTTCLV <$ t/>y<T#oo . . . ot 8' acrrvvo/tot 
TrapaAa/^ovres re KCU dra/</otvavTS, rbv CVIKOV a$ debv V\afiov- 

(MVOL. . . . 



. I. 3. 

8 ix. 35 (as to Tisamenus the Elean and his brother): Movi/ot 
TrdvTuv avfycuTrcuv eykvovro OVTOI 'ZTrapTL^rrj 
4 Thuc. vii. 58. 5 iv. 145. 



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. 1 Tyrtaeus, as 
reported by Plutarch, was awarded Spartan citizenship. 
Foreign slaves, too, brought up as foster-children 
(TpocpifjLoi) in the house of a Spartan seem sometimes to 
have attained the citizen rank. 2 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. 3 
Naturalization The Megarians boasted that they extended this privi- 

inMegararare. j ege Qn]y . tQ thg ^^ ^heil 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. 4 The same claim is referred by Seneca to 
the Corinthians. 5 



Sometimes 
twofold 
citizenship 
allowed. 



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. 16. 2 Xenoph. Helkn. v. 3. 9. 

3 Po/it. ii. 9. 17: Aeyowi 6" o>s ITTI fjikv rwy 



*Plut. De unius in rep. dom. 2. 

5< De benef. i. 13: "Alexandra Macedoni, cum victor orientis 
animos supra humana tolleret, Corinthii per legates gratulati sunt et 
civitate ilium sua donaverunt. Cum risisset Alexander hoc officii 
genus, unus ex legatis, nulli, inquit, civitatem umquam dedimus alii 
quam tibi et Herculi." 



CONDITIONS OF NATURALIZATION 183 

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, Trape^ei S' aTropiav KOI 

6 TWV StJjULOTTOUTTWV l/o'/XO?, OTl yV(r6ai TToAtTCU? OU SlSdXTl 7T\rjV 

rot? <pevyov(Tiv aeKpvyla TJV cavTwv t] Travea-Tiois ' AO^va^e 
peToiKify/uievois eiri T^fl. 1 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 
a 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. 2 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. 
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. 3 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 ; 4 on the other hand, Chrysippus 
of Soli in Cilicia accepted it, 5 though he made no use 
of it. 

As to the conditions of naturalization, and the reasons conditions of 
for which citizenship was bestowed on aliens (though it naturalization - 
must be remembered that very often the main reason 



1 Solon, 24. 

3 Corn. Nep. Atticus, iii. I : " Quo factum est ut huic omnes honores 
quos possent publice haberent civemque facere studerent ; quo bene- 
ficio ille uti noluit." 

4 Plut. De Stoic, repug. iv. 1-2. 5 Ibid. ii. I. 



184 CONDITIONS OF NATURALIZATION 

from the point of view of the State was scantiness 
population, oXiyavOpwTrla, or oXiyavSplcL), the decrees 
Bestowed for usually speak of the grantee's good offices towards Athens 
fervdces ffices (avSpayaOla, manly virtue/ ew/oia, good-will), his bene- 
volence, his devotion and generosity to her ; 1 and in some 
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, 2 on Meno of Pharsalus for giving 
twelve talents and other assistance to make war against 
Eion. 3 Elsewhere, 4 however, Demosthenes says that 
neither of them received full citizenship, TroXirela, but 
only immunity from the various charges (areXeia) im- 
posed on non-citizens. Again, Andoleon, King of the 
Peonians, was admitted in recognition of his having 
supplied wheat to the Athenians at a time of crisis, 6 
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: 6 " 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) ... let 
him and his descendants be Athenians, and let him be 

1 Cf. Demosth. c. Neaer. 89 (before cited). 

2 c. Aristocr. 200. 3 Ibid. 199. 4 Z)<? rep. ord. 23. 

5 Corp. inscrip. Att. ii. no. 312, p. 136. 

6 Corp. inscrip. Att. ii. no. 187, p. 87; cf. Rangabe, op. cit. ii. 
p. 35, no. 378: 

. . . tTrtiSr) 'Kv^vojp 6 t]ar/)os rrporcpov TC [- 
vvovs /xei/ r\v ry TroJAet /cat T< 6^/x<^ /cat f^- 
prjartfjiov eairrov Trajpeor^^/cev Kara ryv T6^[v- 
tjv t TroAXovs Se taro] TWV TroAtrwi/ KCU TWV aA[A- 

0)1> TWV VOLKOVVT(i)]v Trj 7r6\l . . . 

. . . iva.L 8k OLVTOV 'A^l^vaiwv /cat l/cyo- 

vovs, /cat e^ctyat avTcpj ypd\j;a.o'6a.i <f>v\- 

fj<S, 8yjfj,ov /cat ^>paT/)ias -^s av] f3ovX.rjrai o [tar- 

pos. 



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, 1 in spite of 
his being a ' barbarian,' ra reXcvraia KOI c/muriOrj /xoVo? 
pappdpcov 'A.vd-^apa-1?, SrjjULOTrolrjTO? yevojULevos. . . . 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, 
'AOrjvaioi Se KOI TroXiTela OLVTOV eri/uLrjirav KaOd (f>rj(ri A:o/cX$9, 
eTTf TO) Korvy TOV QpctKa Sia^pjj^ao-Oai. 2 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 : 



vr]cu pv Aioi/vcrtov TO[V] 

ovrja K[CI]C TOVS vets TOVS [At]ovv[criov . . . 



. . . OTl t[cT6l> ai/8/0- 

5] aya$ot [vrjept TO 



Many other similar instances can be found. 4 

From time to time there were serious abuses in the Abuses in 
bestowal of these privileges. About the middle of the naturalizati 
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, . . . Scopea TTjOOTreTr^Xa/cfcrrai KCU (f)av\rj yeyovev. . . . 5 

1 Lucian, Scytfia, 8. 2 Diog. Laert. ix. 65. 

8 See Hicks, Gr. Insert^, no. 108. 

4 For additional examples, see H. M. de Bruyn de Neve Moll, De 
peregrinorum apud Athenieme* conditlone (Dordraci, 1839), PP* Z 9 se 4' 
5 f. Aristocr. 201. 



1 86 ABUSES OF NATURALIZATION 

At about the same period Isocrates complained of the 

freat prodigality in giving to aliens the title of Athenian. 1 
ut 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 ; 2 in other 
instances, for trifling reasons, as in the case of Aristonicus 
of Carystus, 3 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. 4 The comic poets taunted the Athenians that they 
had shown such great generosity on account of their 
love of salt-fish, 5 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. 6 

Athenian Later, under the Roman empire, the Athenian 

R?man e em n p d ire. 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 citizenship, 

.... GLTrrjyopevcre <T<pi<Ti /ULijoeva 7TO\iTr]V apyvplov TTOieio'Oai j 7 

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. c. Aristocr. 200 seq. 

3 Athenaeus, ( D(ipnosophistae J i. 34 : ort 'Apto-roviKov rov Kapvcrrioi/, 
rbv 'AA.eai/fy>ov OX^CU/OKTT^V, 'A^vatoi iroX.irrjv tTrotrjo'avTO Sia rrjv 



4 Dinarchus, i. 43 ; cf. Hyperides, frag. 222 in Orat. Att. ii. 427. 
5 Fragm. com. Graec. iii. 385, 413, 482. 

6 See A. Schaefer, Demosthenes und seine ZV, 3 Bde. (Leipzig, 1885-7), 
vol. iii. p. 296, note 4. 

7 Dion Cassius, liv. 7. 8 Tacit. Ann. ii. 55. 



NATURALIZATION EN MASSE 187 

There were also cases of naturalizing entire bodies of Naturalization 
individuals. Thus, in the Peloponnesian war, after the en 
destruction of Plataea, the Athenians offered its inhabi- 
tants citizenship, on the conditions that they accepted it 
at 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. 3 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. 4 Andocides asking the Athenians 
to confirm the decree, voted on the proposition of 
Menippus, which granted him a pardon, said : " I see 
you often give citizenship and considerable sums of 
money to slaves, and to foreigners of all kinds, when it 

1 Demosth. c. Neaer. 89 seq., 104 seq. ; cf. Isocrat. Panathenaicus, 
94, and Plataicus, $2. 

2 Thuc. v. 32 ; Isocrat. Panegyr. 109. 

3 Aristotle, discussing the essential meaning of citizenship, and 
coming to the question whether a citizen de facto is also a citizen de 
iure, says it is difficult to settle it in the case of those who have been 
made citizens after a revolution, dAA' Taxus Keu>o /-taAAoy l^et 
aTTopiav, CXTOI p,tTt<r\pv fj.Ta/3o\fj<s ycvo/iey^s TroAireias, olov 

'A.6r)Vr)(TlV 7TOt^(7 KA.ICT$V77S //,T<X Tt]V TtoV TVpOLVVUV KJ3oX.r)V. 

iroAAoiJS yap <vAe/cTV(7 evov<i KCU SouAous /xcTOi/coi's (Polit. iii. 
2. 3). 

4 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 
over to the Plataeans. 



i88 



FORMAL PROCEDURE 



Resolution by 
thepeopie. 



is shown they have done you a service. And you are 
wise in giving these rewards/' * 

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 votes, 
given by ballot, in order to render it valid (/o^o?), 

jf j ^\ /\~ f &/> \ fl ^ \ K t ? 

7TIT 7Tldai> TTeKTUfl O Otl/ULOS Kdl 060 TY\V OWpeaV. OUK OL 

Kvpiav yevea-Oai T^V Troirjcriv, eav /u.rj T# XJ/T/^XW eiV Trjv eTriovarav 
virep e^aKia"^i\Loi 'A.0tjvai(0v ^l/rjcpicrcovraL Kpv/3Sr]v 
. . 2 Even after this proceeding the 
naturalized subject was liable to be deprived of his 
newly acquired right by the indictment ypa<prj 
Trapavo/uLwv directed against the mover of the decree, 
for bringing about the proposition of an unconsti- 
tutional measure. Thus the /8ouXr/, a tribunal of five 
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 cases 
of taking away citizenship after granting it on account 
of certain illegality or unworthiness ; and amongst the 
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. 3 

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. 4 

In the first place the people resolved as to whether 
there was a just cause for granting naturalization : 

f.lva.1 8'avrov /cat 'AOijvaiov KOL e/cyovovs KCU 



1 De reditu suo, 23 : 6/ow Sc v/xas rroAAa/as KCU SovXois 
KCU ei/ois Tra^ToSaTrots TroAireiav SiSoVras re KCU ets x/ar^ia 
Sco/oeas, o? av ryuas (au/(ovTai TTOIO^VTCS TL dyaOov. KCU ravra 



3 Ibid. 9 1 . 

5 Corp. inscrip. Att. ii. 309. 



2 Demosth. c. Neaer. 90. 

4 Cf. Buermann, op. cit. (passim). 



FORMAL PROCEDURE 189 

After this the formal proposition is put to the vote : 

TOVS Se Tr/jvrdVet? TOI>S TTJV tcriov<rai/ 
TT/ovravevovras Sovvai ircpl avrov rr)v 
T<j> Sri/Ay eis TTJV Trpurrjv KK\r)<riav. 1 



About 320 B.C., if we may judge from the testimony judicial 
of inscriptions, judicial examination was customary. At mvesti s atlon - 
the time of Demosthenes* speech just referred to (c. 
Neaeram), viz. 340 B.C. approximately, the action ypaty 
-jrapav6fj.wv^ 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 
procedure : 






. . . i(rayayiv 8e rrjv So/ct/xao-tai/ TOVS $eoy>io#Tas i? TO 

7T/OWTOV SiKO.O'TriplOV KCITO, TOL'S 



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 (SoKijuLaa-la) was still in force. Hence, the 
usual formula for naturalization at the middle of the 
third century is to this effect : 



Se avr^ . . . TroXireiav . . . Kara rbv vopov, TOVS 8e 
orav . . . 7rA?//>wcriy SiKao-rry/otov t? c'ra KOL Trevra- 
KOO-LOVS SiKao-ras, fla-ayayelv avrw T^V SoKi/iacrtav . . . Kai cii/at 
avT$ ^OKLjjLaa-devTL ypd\f;a.<r6a.i tfrvXfjs /cat 8r}fj.ov KOL <jfyoaT/Has 
^S av /3ov\r)Tai. B 

A century later we find that a new condition was Special 
required, namely, an express application by the candidate 
for the favour. The decrees speak of granting citizen- 
ship to the petitioner in pursuance of the law : 

SeSocr&xi Se avrQ /cat TroAirei'ai/ Kara TOV i/o/xov atTTycra/Aei/y. 4 

It may be pointed out that the last words of this phrase 
are a conjectural restoration effected by analogy with the 

1 Cf. Corp. inscrip. Att. ii. 309. 2 Cf. ibid. 

3 Cf. Corp. inscrip. Att. ii. 395. 

4 Corp. inscrip. Att. ii. no. 455, p. 234. 






190 EFFECTS OF NATURALIZATION 

tenour of inscriptions relative to the granting, on 
petition being duly made, of the rights of proxenia, and 
of acquiring property in land and houses in the city : 

SeSocr0cu Se aura) KCU irpo^tVLav KCU yrys KCU oiKtas 
Kara TOV i/ouov, 1 



from which it is not unreasonably inferred that a similar 
condition was required in the case of the greater 
privileges of citizenship. 2 

Depositor The official texts of all such decrees were placed in 

5es - the metroon (Mi/rpyoi/), the temple of Cybele, which 
was near the council-chamber (fiovXevrripiov^ and served 
as a depository for the Athenian State-archives. 

Effects of The individual thus naturalized /xoTro/^ro? 3 was 



entitled to inscribe himself in whatever tribe, deme, and 
phratry he might choose; ypd^aa-Oai (f>v\rj? KOI (%uov 
KCU <f>parplas 779 av /3ov\rjTai came to be the stereotyped 
formula in this respect. But there were probably certain 
restrictions as to the extent of choice permitted. 4 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. 6 

Hereditary For a long time the privileges conferred by naturali- 

zation were not confined to the person of the ^/UOTTO/^TO?, 

1 Corp. inscrip. Att. ii. no. 423, p. 206 ; cf. no. 438, p. 214. 
2 Cf. Buermann, op. cit. p. 348. 

3 With regard to the Athenian citizen population, a distinction was 
often specifically drawn between the naturalized citizens, 8rjfj.oiroirjToi., 
iroi-rjToi, (Arist. To/if, iii. I. 3), or Soope^ TroAtrai (by gift), and the 
natural-born citizens, <vcrei or yevei. iroXircu. Cf. Demosth. c. Steph. 

7 8. 

4 As to the political status of the new citizens, especially with regard 
to their relation to the phratries, see the various theories stated by 
Philippi, op. cit. pp. 107 seq. 

5 Cf. Corp. inscrip. Att. i. 59 (410-9 B.C.); ii. 54 (363-2 B.C.); 
ii. 121 (338-7 B.C.); ii. 300 (295 B.C.). Apart from epigraphic 
evidence, see Buermann, in Jahrbuchftirclassische Philologie, 9th suppl. 
pp. 597 seq 



EFFECTS OF NATURALIZATION 191 

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: 



tlvai 8' avToy KCU ' A-Oyvaiov KOI TOVS l/cyoi/ovs avrov, 

thus making no mention of the wife of the naturalized 
subject. 1 

Children born before the act of naturalization became Children 
citizens along with their father, irrespective of their 
mother remaining alien or not. 2 

If born after naturalization and by an Athenian if bom after 
mother they were certainly citizens by the common naturalization - 
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 subject ralized 
and a naturalized Athenian. The main difference was 
that the naturalized citizen was debarred from the 
archonship and from priesthood. 3 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 ; 4 but in the previous century, 
this exemption applied equally to the children. 5 

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 (icvpioi), 
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, 6 
seeing that Pasion was debarred from marital authority, 
not by virtue of his being only a Stj/uLOTrohros, but 

1 Cf. Demosth. c. Steph. ii. 13. 2 Demosth. Pro Phorm. 32. 

3 Demosth. c. Neaer. 92, 104, 106. 4 Ibid. 

5 Pollux, viii. 85, 86. 6 Op. tit. pp. 36 seq. 



192 JURISDICTION AS TO ALIENS 



simply because she was an heiress, eV/KA^o?; 1 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 ( 



Elements of It will have already appeared from various considera- 
mternationai ti ns m tne foregoing chapters that certain rudiments 
law. of private international law were recognized in Greece. 

Fuller development was impossible, on account of the 
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. 
citizenship and 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- 
qualification. Allegiance at a distance was considered 
inadmissible. The nationality of origin depended on 
the principle of #w sanguinis, and ius sanguinis was the 
veritable basis of citizenship. In order to belong to a 
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. 

jurisdiction as There are distinct traces of such provisions amongst 
to aliens in the most ancient peoples. In the case of the Hebrews, 

antiquity. 

1 On Epiclerusj see Smith's 'Dictionary of Greek and Roman Antiquities 
(London, 1890), vol. i. p. 746. 



MAGISTRATES FOR FOREIGNERS 193 

for example, we find certain applications of the Mosaic 
law extended to incoming strangers. 1 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. 2 The Ptolemies had established 
the office of fyviKol ayopavd/moi, foreign ' secretaries of 
the market/ 3 And analogous institutions are found 
amongst many other nations of antiquity. 4 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 16gislateurs modernes pourraient, sur plus d'un 
point, chercher d'utiles Ie9ons." 5 

In Greece special magistrates, ei/o&'/eat (a general term, in Greece, 
for which special names were substituted in different xenodtkat - 
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 
were arranged to that effect by means of special con- 
ventions between States. In some cases these judges 
exercised full judicial power in pronouncing decisions 
as to the matters in dispute, in others they appear to 

1 Cf. }. Selden, <De synedriis et praefecturis veterum Ebraeorum libri 
duo (London, 1653), esp. vol. ii. pp. 79, 81. 

2 Cf. Pardessus, op. cit. i. 52. See Herodot. ii. 178. 

3 See G. Lumbroso, Recherches sur riconomie politique de rJzgypte sous 
les Lagides (Turin, 1870), p. 248. 

4 See Rodiere, Du preteur peregrin et de r existence plus ou moins latente 
fune institution analogue a la sienne chcz tous les peuples (in Recueil de 
Pacademie de legislation de Toulouse, 1868, t. xviii. pp. 339-351). 

5 A. Weiss, Traite theorique et pratique de droit international prive, 
5 vols. (Paris, 1892-1905), vol. v. p. 3. 



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, ^evoSiKat at Ephesus, 1 
at Stiria 2 in Attica, at Mylasa 3 in Caria, at Medeon, 4 
Treaty between and also in pursuance of the convention between 
d th e two Locrian towns of Oeantheia and Chalaeum. 5 
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 appointed 
^evoSiKai at Chalaeum, and he was empowered to choose 
from among the leading residents of the town a jury o 
nine or fifteen citizens according to the importance o 
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 (Stjfuovpyol), th< 
principal magistrates of the town, and the matter ii 
litigation was to be decided by the majority. 6 

1 Dittenberger, Sylloge inscriptionum . . . 344. 

2 Ibid. 294. 3 Bull, de corr. hellen. vol. v. p. 102, 1. 4. 
*Ibid. vol. v. p. 46,1. 38. 

5 C. Michel, Recueil d' inscriptions grecque* (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 : 

Obverse. 

\ Tov evov fj,rj h ayetv e' ras XaAetSos TOV Olavdza JJL- 
rj8e rbv XaActea 4' ras Oiai/$t6\)s, jJLtjSe xp^ara at rC crv- 
Awf rbv Se crvXcovra ai/aVa/ (rvXfjv ra ^eviKa, e' Oa\ajcra<s 
acrvXov, TrAav e' At//,evos T<3 /caret 7roA.ii/ ai K d8tKii> } crvAcoi, j TC- 
ropcs 8/oax/x.at* at 8e irAeoi/ SCK' afj.apav ^ot rb crvAov, 



MAGISTRATES FOR FOREIGNERS 195 

Again, amongst communities in Crete, and notably The magistrate 
in Gortyna (respecting whose municipal jurisprudence 
some remarkable documents, the " laws of Gortyna," 
are now available), we find the foreign magistrate 
described in several inscriptions as the /coV/xo? Ko-e'wo?, 1 
and sometimes more briefly as the Ka-evios 2 (who corre- 
sponded practically to the Athenian polemarch). Not 
only were aliens under his jurisdiction, but also freed- 
men, aTreXevOepoi, 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 /coV/xo? /co-eV/o? did not 
directly decide foreign cases referred to him without 
sending them to the national tribunals ; " tres pro- 
bablement il jugeait directement, sans renvoi a un juge 
((Wto-rd?), toutes les affaires concernant les Grangers." 3 

These Cretan foreign courts are mentioned frequently 
in contradistinction to the regular municipal courts, 
which were, of course, reserved (in the absence of 



/udAtov d^Aero) /-o TL <rv\a.arai. At /xTa/-otKOt TrAcov prjvbs r\ 
6 XaAetevs ev Otaf&tat r} OiavOevs V XaAetau, rat eTTtSa/uat Si Kat \- 
prjvTH). Tov Trpo^evov, : at ^cvSea Trpo^fveot, : 8ar\- 

1(06 6li)tlj(TT(D. 

Reverse. 

At K dvSt^a^ituvTt rot ^evoSiKat, : eTrco/xoras '"eAca- 
Tw 6 evos : wTrd-ywi' : rav StKai/ : t\do<$ Trpoev<j> 
Kat A8ta> ^vo> : dpiCTTivSav, : e?rt /xev rats /xvaia- 
tats : Kat TrAeoi/, : TreWc Kat SCK' avS/oas, : eVt rat? 

: ei/vc' avS/oas* : at K* 6 /-acrcrrbs TTOI rbv / r - 
StKa^rat Ka' ra? <rw/3oAas, : Sa/xtto/oyov? 
: TOV? l "o/3K(o//,oTas dpio-rivSav rav TTC- 
dxocrai/Tas' : TOVS ^oaKCD/xora? TC>I> avrb- 



v l "d/)Kov 



1 See D. Comparetti, Le leggl di Gortyna e le altre iscrizioni arcaiche 
cretesi. In Monumenti antichi (Milano, 1893), vol. iii. p. 73, no. 148. 
The fourth line here speaks of . . . T&V turkviov KOCT/AOV p.r) Aayaiv. . . . 
The same document is given in Dareste, Haussoullier, and Reinach, 
Recueil des inscrip. jurid. gr. pt. iii. p. 403. 

2 Comparetti, he. clt. no. 150, 1. 15. 
3 Dareste, etc. Recueil . . . , p. 430. 



196 



MAGISTRATES FOR FOREIGNERS 



specific favours to aliens) for suits between citizens, 
currucal SiKai. 1 And elsewhere these foreign jurisdictions 
are contrasted with the eiriSafuai Swat, the causes between 

in Oeantheia. natives, as in the case of the Oeantheian law, 2 or with 
the aarriKov SiKavTripiov, the court for citizens, as in the 
case of a fourth century inscription from Amorgos 3 
(an island of the Sporades group, in the Aegean Sea). 

inEphesus. Similarly in Ephesus, amongst other municipalities 
(some of which have already been referred to), we 
find the fyvucov StKao-Tripiov* 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- 

in Miietos. ality of the litigants. 5 Again, in Miletos, whose interests 
were mainly commercial, the judges were the five 
commissioners of the market, TOV ejmTroplov cTrifjLeXtjTai ; 
and in Priene (as well as in some other places), they 
were the regular a-rpar^oi 6 Courts of this description 
existed in most Greek towns, and more conspicuously, 
of course, in the larger commercial cities. Thus Aristotle 



1 The expression in the Gortynaean inscription is aorta SIKCL. 
Cf. Comparetti, he. at. no. 32, 1. 2 ; no. 149, 1. 4. 

2 Cf. the text of the treaty between Oeantheia and Chalaeum, 
supra, p. 195, 1. 7 of the obverse portion. 

3 'Bull. <& corr. fallen, vol. xii. (1888), p. 232, 11. 32-33 : 

...... Set TO,? SlKCLS Tt TO (MTTtKO 



Similarly, 11. 49-50. 

4 Dittenberger, Sylloge, 344 (an inscription of the early part of the 
first century B.C.). 

5 Cf. Dareste, etc. Recueil, pt. i. p. 45 : " C'est une jurisdiction 
ordinaire et permanente, analogue au praetor peregrinus remain ; son 
nom lui vient sans doute de ce qu'elle a ete instituee primitivement 
pour juger les contestations entre etrangers ou entre citoyens et 
etrangers ; par extension, on finit par lui attribuer la plupart des 
affaires de commerce." 

6 Cf. the fragment of the treaty between Miletos and Priene, in 
Newton, Greek Inscriptions, pt. iii. no. 414. 






MAGISTRATES FOR FOREIGNERS 197 

speaks of them as normal institutions, called into 
operation when matters of aliens were concerned, 
rov Se ^eviKOv eV /xev eVo/9 TTjOO? eVov9, a\\o ^evois irpos 
aa-Tovs. 1 Their presiding judges were designated by 
the general appellation of ^evodlicai, or by such special 
names as have already been mentioned above. 

Sometimes it is difficult to discriminate between the 
eviKov $iKa(rTripioi>, the permanent court for foreign cases, 
and special courts of arbitration (referred to by the 
same name) consisting of foreign judges. Thus, it 
has been contended by one or two recent writers 2 that 
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 %evoSiicai presented the 
elements of an international jurisdiction exercised in 
local territory, "une 6bauche locale de jurisdiction 
internationale " ; 3 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 
and more clearly defined magistracy, exercised by the 
polemarch (TroXe/xa^o?). 4 " Le polmarque," says a 



l Pol. iv. 13. 2. Pollux refers (viii. 63) to the geviK^v 8iKa(TTtjpiov t 
but he gives no information on the subject. 

2 C. Lecrivain, Une categoric de traites internationaux grecs, les Symbola. 
In 'Bulletin de r Academie 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 Jtvi/cSv SiKaa-Tijpiov 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 
agitation when sufficient confidence could not be placed in the im- 
partiality of the national courts ; " einen Gerichtshof aus Fremden 
gebildet, den man sich namentlich in aufgeregten Zeiten erbat, weil 
man einheimischen Richtern die notige Unparteilichkeit nicht 
zutraute" (in Pauly-Wissowa, Real-Encyclop. vol. v. pt. I, p. 573). 

3 Weiss, op. cit. vol. v. p. 4. 

4 See G. Perrot, Le droit public de la republique athenienne (Paris, 
1867), pp. 258 seq. 



198 SPECIAL LAW-TREATIES 

recent writer already referred to, " fut pour les isoteles, 
pour les proxenes, pour les meteques, meme pour les 
Strangers de passage, et d'une maniere generale pour tous 
ceux a qui le droit de cite tait refuse, ce que 1'archonte 
6ponyme etait pour les citoyens." J This magistrate was 
particularly active in the trial of suits arising out of 
The symboia. conventions (<ri//A/3oAa, in earlier language, u/u/3oAa/), 2 
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 (pvoria, a-v\a or o-Acu), 3 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 thesmo- 
thetaet The relationship thus established was cnro 



Koivwvelv, 5 conventional ' communion/ and the 
suits issuing therefrom were called at OLTTO 



1 Weiss, op. cit. vol. v. p. 5. 

2 Corp. inscrip. Att. vol. ii.no. n, 11. 13 seq. Harpocration gives 
the following definition : crvvOfJKai as av aAArjAats at TroAets ^e 
TaTTOxrt TCHS TroAtrats akrre StSovat Kat \a/j,/3a.veiv ra 8t/cata. Cf. 
Arist. Pol. iii. I. 3. Probably the word criy*/3oA,a, as a recent French 
writer points out, came to designate a treaty from the fact of the 
word (rvfji/3oXov 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 o~u/x/5oAa 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. Lecrivain, Une categorle de traites internationaux greet, les Symboia. 
In 'Bulletin de PAcademle des sciences, Inscriptions, et belles-lettres de 
Toulouse, vol. ii. (1898-1899), no. 3, pp. 150-159.) 

3 As to such relationships in the case of the Athenian league, cf. 
Stahl, De sociorum Athemenslum iudiciis (Mtinster, 1 88 1 ),and see also*'/r<7, 
chap, xvi., as to Athens and her allies. 

4 Demosth. De Halon. 9 ; Arist. Ath. Pol. 59 ; Pollux, viii. 88 : 
ra cru/Aj8oA,a TO, 7iy>os ras wdXcts KV/oovcrt, /cat StKaaTas a? 



5 Aristot. Polit. iii. i. 4. 



SPECIAL LAW-TREATIES 199 

c, Or SiKat crujUL^oXatai. 1 Thus in a treaty between Treaty between 

Athens and Phaselis made about 395 B.C.-385 B.C., p^eHs- d 
it was stipulated that any controversy relating to9 uestion . of 

i j i A , ' jurisdiction. 

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 

1 Thuc. i. 77. One or two writers (e.g. Boeckh; Goodwin, in 
Amer. Journ. of Philology, 1880) have drawn a distinction between the 
8iKo.L (TVjujSoXaiaL and the St/cat aVo o r v/x/:?oAa>i>, 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 a 
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. 
note to Thuc. i. 77, and the introductory note, pp. Ixxxv-lxxxviii. 
M. Lecrivain emphasizes (in Daremberg-Saglio, s.v. Ephesis, p. 643) 
that there never was any essential difference in meaning between the 
words <rv/x/3oAa and <rv/>i/3oAai ; and that the St/cat dirb <rv/*/3oAa)i> 
were not "les proces issus de contrats commerciaux privet, mais les 
proces juges en vertu des traites diplomatiques des 

2 Corp. inscrip. Att. ii. 1 1 ; Hicks, op. tit. 36. 
TOtJs ^acr^Airais ' 
>a^ai, o rt a/A 
]v[/x/3o]Aatov yevrjrai 

JtKas yiyvtarOai 7ra[/>- 
a TOH 7rojAe/xapx<oi Ka8a.7Tp X- 
tois /cat] aAAo^t /ATjSe a/iou. TW- 
v Sc aAAwy] oVo v/Aj8oAwj/ Kar- 
at T<XS Xttov 




rag t/cas 



200 PERSONAL AND TERRITORIAL LAW 



The lex loci 
contractus, 
and the lex 
domicilii. 



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 in 
Athens but in Hellenic States generally, that in commer- 
cial cases, the defendant's lex domicilii was applicable, 1 
though sometimes a departure therefrom was made by 
the adoption of the lex loci 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 contract 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 lex loci contractus, rather than to 
the defendant's lex domicilii^ or to his ius originis. 



Personal law 



A striking passage of Demosthenes emphasizes the 
hTvv. tei ! 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 
of dispute then existing in reference to Amphipolis, 
Potidaea, and the affairs of the Chersonese. " That 



1 See Gilbert, op. dt. vol. i. pp. 487-8; Wilamowitz-Msllendorff, 
in Hermes (Berlin), vol. xx. p. 240 ; Goodwin, 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. 



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 
a 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." 1 

In actual practice, however, the great majority of Activity of the 
suits of this nature would find their way into the quirts- "com- 
Athenian tribunals, when the conventions relating thereto mercial suits - 
were concluded with allies forming part of the confeder- 
ation, of which Athens assumed the hegemony. In 
the first place, the lex 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 (8Uai e/x7ro/>uca/) of maritime 
traders and wholesale merchants involved therein were 
to be laid before the courts at Athens : 01 VO/ULOI 
ovanv . . . TCC? SIKCIS etvat TOI 9 vavKXrjpoi? /ecu TO?? 

KOI irepl 8>v 



1 De Ha/onneso, 11-13, *3 : ^AA' o/xcos ovSei/os TOLOVTOV OI/TO? TOTC 
OVK eAwireA.61 (rvfjL/Soka Troi^cra/zevovs ovr' K MaKcSoi/ia? TT\LV 
'A^va^e St/cas \r]\f/o[j.VovSj ovO' rjfuv ets MaKe&may, aXX' r}p.i<s re 
TOIS fKL vo/u/zois Ketvot re rots Trap rjfj.iv Tas 8t/cas e 



202 COMMERCIAL CASES 

av wai a-vyypacfial. 1 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 thesmothetae 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 

l c. Zenothem. I. Cf. Demosth. In Midiam, 176. 

2 Demosth. c. Apatur. \ : rots yaev Ipropois . . . /cat TCHS 
KcA-euct 6 vo/xos eivat ras St/cas Trpos TOVS ^eoyio^eTa?. Cf. Demosth. 
Pro Phorm. 45 ; Arist. Ath. Pol. 59. 






EXAMPLES OF LAW-TREATIES 203 

without any formal infraction of the reciprocity implied 
by the existence of <rv/uL8o\a, 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 
<Tv/jL/3o\a y the commercial suits of their subjects." 1 

It appears that though the ilxcu OLTTO a-v/mpdXdov and the 
e/uLTToptKai (commercial cases, in the strict sense) 
extended much over the same ground, yet there were 
certain distinctions between them. For example, the 
Swat /uL7ropiKal (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 <nV/3oXa. 2 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, Tro'Af? KK\T]TOS, to officiate as a special court of 
arbitration ; as to give here only one or two instances 
in the treaty between Hierapytna and Priansos ; 3 
between Athens and the Boeotian league ; 4 between 
Naxos and Arcesine (in the island of Amorgos). 6 

In order to supplement and to illustrate further the Examples of f 
foregoing considerations, it will be of advantage to' 1 
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- 

1 Morris, in American Journal of Philology, 1884, p. 306. 

2 Cf. the article in Smith's Dictionary of Greek and Rom. Antiq. s.v. 
Symbolon, p. 734. 

8 See infra, p. 207, and chap. xvii. 4 See Infra, p. 207. 

5 Bull, de corr. hellen. vol. viii. p. 25, 11. 28-29 : KaOairep SiKrjv 
to<t>Xr)KOTtav cv rrji e/CKXrjrwt Kara TO <rv/K/?oAov TO Na(t'|ou)i' KCU 

'A/OK(riVU>l/. . . . 



204 



EXAMPLES OF LAW-TREATIES 



Between 
Sparta and 
Argos. 



Between 
Athens and 
Selymbria. 



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 of 
this nature might perhaps be conveniently designated 
a ' law treaty,' by analogy with the German term Rechts- 
verfrag as used, for example, by a recent German writer. 
The Rechtsvertrag 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 Angehorigen ordnen." l 

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, 2 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 c ancestral customs ' (which would be 
tantamount to their ius originis] should as far as possible 
be permitted to operate. 3 

The convention between Athens and Selymbria 4 (a 
Thracian town), concluded about 408-407 B.C., provided 
that in disputes arising out of treaties, either those that 
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 

1 H. F. Hitzig, Altgriechische Staatsvertrage liber l^echtshilfe. In 
Festgabe Ferdinand Regelsberger (Zurich, 1907), p. 7. 

2 Thuc. v. 79 : ... rt rots tcrots /cat 6/xotots Si'/cas StSovras Karra 
Trar/Ha. 

8 Ibid. : at Se nvi rav iroXiuv rj aft^tXoya, *} raV II/TOS f) rav 
IleXoTrovi/acrou, cure ire/at op<uv cure TTC/H aAAov Ttvos, 
at 8 rts TWV ^v/x/xa^o>v TroAts TroAet epifai, 4s TTO\LV eA.$etv, av TWO. 
urav dfjufroiv rats TroAtecri SOKOLTJ. For the full treaty, see Infra^ 
chap. xvii. 

4 Von Scala, Staatwertr'dge, no. 93. 



EXAMPLES OF LAW-TREATIES 205 

agreement (of which nothing is here stated) relating to 
judicial procedure. 



[raxri Si'/cas] (?)i/ai aVo 

Treaty between Athens and Samos, 2 405-403 B.C. Between 
After the battle of Aegospotamoi, Samos having 
remained faithful to Athens, and having offered them 
assistance in the prosecution of the war, the Athenian 
ecclesia passed a decree (\|/-7J<^crjua) 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 : 



KCU irepl riov ey/cA^arwi/ a ay ytyv^rai \ irpb 

t KCU Se^ecr^at ras SiKas Kara ras crv/j/3oA.as ra? ovcras. 3 



In reference to the affairs between Athens and Naxos Between 
(c. 378 B.C.) there is an inscription 4 embodying an $[! and 
Athenian decree which concerns the competence of the 
Naxian tribunals, and draws a distinction between the 
SiKCKmiptov ev Nao> and the SiKacrr^piov 'AO^vrja-i. 

Treaty between Athens and lulis, together with other Between 
Cean towns, 363-362 B.C. 5 In 376-375 B.C. Ceos had fuu,, etc. 
joined the new Athenian confederation, 6 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 lulis within thirty days, or at Athens, 
the KK\rjTo$ TTO'A*?, where certain cases had to be tried. 

. . . f^eivai avrois evyvry- 

TCIS KaTcuTTrjcrao-i 7iy>os [T]OV[S] o-[r/)laT7;yoi>s TOVS 'lovAnyTwi/ T/D- 
[7r]o[creu' Kara TOVS oKOVS KCU rots 



taKovra 7j/i/)cui/ StKafs] v[7r]o[crx]eu' [Kajra T[OV]S opKOVS KCU 
(rvv6if)Ka<s kv Kecut /cat [ei/ rfji KK]A^TO>t [7ro]Act 'A^rji/r;crt. 7 



. 11. 20-21. 

2 Corp. inscrip. Att. iv. 2. ib ; Michel, 80; Hicks, 81. 

3 Hicks, he. tit. 11. 1 8-20. 

4 Corp. inscrip. Att. iv. 2. 88 d. 

5 Corp. Inscrip. Att. iv. 2. 54 b; Michel, 95 ; Hicks, 118. 

6 On the Athenian leagues, see infra, chap. xvi. 

7 Hicks, ibid. 11. 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 



. . . ras Se St/cas /cat [T- 

as ypa(/>as ras /car' 'A$r/i/atwv Trot^cro/jat] Tracras KK\ijrov<s [K- 
ara ras (rvvOrjKas, OTroarat av &(riv vTrep e/carov 



This example, amongst various other instances, shows 
clearly that the expression IATCX^TO? TTO'X*?, 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 agreed 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 in the case of certain crimes, 
we have another inscription 2 setting forth an Athenian 

Decreeastothe decree (c. 445 B.C.) -relative to the Chalcidians of 
]7 u boea which was passed when the hegemony of 
Athens was developing into dominance over the con- 
federates of the first league. It was there decided that 
such of the more serious offences as entailed the penalty 
of death, banishment, or disfranchisement were to be 
tried in Athens. 

Between In the treaty of isopolity between Messene and 

and Phigalia, 3 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. 

Se /cat (rvfj.j3o\dv oi\[v /ca 8o/ct] dp.(f>OTpa.is rats 



1 Hicks, ibid. 11. 73-75. 

2 Corp. inscrip. Att. supp. 27 a. Cf. Antiphon, De caede Herodis, 47- 

3 Dittenberger, 181 ; Michel, 187. 

4 Michel, ibid. 11. 12-13. 



EXAMPLES OF LAW-TREATIES 207 

In the convention between Athens and the Boeotian Between 
league, 1 concluded in the second half of the third 
century B.C., for the settlement of their differences, the league 
city of Lamia was agreed upon to act as the e/c/c\)/T09 

7TOX<9. 

The alliance between Hierapytna and Priansos 2 Between 
(about the end of the third century B.C.) provided for 
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 lex loci contractus, 
that a common tribunal, KOIVOV Sucao-rypiov, 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, 
KK\I]TO$ 7roX(9, 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 
of the proceedings. 

As to the affairs of the Achaean league and Rhodes, 3 Between 
we find in the second century B.C. that the Rhodians theAchaean 
despatched an embassy to the Achaeans to negotiate lea -s^ e - 
for the renewal of a previous convention, SidpOwaris TOV 
o-v]UL/36\ov, by which their grievances might be judicially 
settled. 

In the treaty between Lato and Olus 4 (two Cretan Between Lato 
towns), in the latter half of the second century B.C., and Olus> 
certain 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. 
8 Bull, de corr. he lien. vol. xxvii. p. 243. 

4 Corp. inscrip. Graec. 2554 (esp. 11. 56-76) ; Egger, Traites publics, 
p. 125 ; Michel, 28. 



208 



GENERAL CONCLUSIONS 



and Chios. 



Difficulty of 
the subject. 



transactions and to enter into contracts in each other's 
country, in accordance with the laws of the two con- 
tracting parties. 1 Some stipulations of a similar character 
Between Rome are embodied in the more recent convention between 
Rome and Chios. 2 

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 international 
comity. 

Generally speaking, in time of peace freedom of 
intercourse, and especially of engaging in mercantile 
transactions, e-TrijuLi^la (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- 

l Corp. inscrip. Graec. 2554 : 

. . . Kvpiov 8' tffj,v rov re Adnov kv 'QXovri TTOTI rov 'OAoVriov, 
Kal 'OXovnov v Aarw TTOTI rov Aartov, /cat TrwAeovTa 8ia TO. 
X/oao^ta Kal <ivo/ii/oi>, Kal Saveifovra Kal Saveifcouevov Kal ra a\\a 
Trdvra crwaAAaTTovra Kara TWS ravra vo//,a>s TWS eKartpr) Ki/xei/o>s. 
See infra, chap. xvii. 

2 Corp. Inscrlp. Graec. 2222, 11. 15-20: 

/r\T SPOT >/"n/ 



General 
conclusions 




aVrap)(oi>Ta)v, ot re Trap 1 avrol<s ovres 'Poof/Aaiojt rots 
Kovaxrtv vo/xots. 



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' eviKov SiKacnrriptov (a general name for the foreign 
court), the ei>o<$iKai (a general name for the presiding 
judges), the TroXejmapxo? (the Athenian archon, who took 
special cognizance of the affairs of metoecs), the /coV/xo? 
gevtos (of Cretan towns), and the like. These institu- 
tions and magistracies usually existed apart from express 
provision in international conventions (a-v/uL/3o\a or 
Bv/tjSoXo/) ; 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 KOIVOV SiKaa"rripiov y and, at the same time, 
nominate a third city, 7r6\i<? e/c/cX^To?, as a c 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- 
times the lex loci contractus (the prevailing law of the 
place where the engagement in question was entered 
into) operated, at other times the lex 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- 
cerned, 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 
ithe agency of the proxenus or his patron, as the case 
may be ; but with the expansion of commerce and 
: general intercourse, the increase of litigation, and the 
more generous attitude that came to be manifested 
'towards non-citizens, the foreigner was, in actual practice, 
and despite strict theory, commonly allowed to appear 
in person and address the court, and to instruct advocates 
to plead for him. Finally, provision was usually made 
for the hearing of suits within a certain fixed period, 
so as to prevent an undue delay of justice. 



CHAPTER IX 



Roman 
citizenship. 2 



Civitas 



ROME AND FOREIGNERS i 

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. 3 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 Shiiritium 
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, 

1 The following, amongst other writings, may be mentioned : 
M. I. G. Rogery, De la condition des etrangers en droit romain (Montpellier, 
1886) ; E. Chenon, La loi peregrine a Rome, loc. cit. ; G. Humbert, 
Memoire sur la condition des peregrins chez les Romains (in Recueil de 
I'Acadtmie de legislation de Toulouse, 1870) ; P. van Wetter, La condition 
civile des etrangers d'apres le droit romain (Appendix to Laurent's Droit 
civil international, vol. i. pp. 667-678). Further works on special 
points are indicated in the Bibliography. 

2 On Roman citizenship, see the following : W. Eisendecher, Ueber 
die Entstehung, Entwickelung und Ausbildung des TSiirgerrechts im alten 
Rom (Hamburg, 1829) ; F. Lindet, De I 'acquisition et de la perte du 
droit de citt romaine (Paris, 1879) ; H. Lesterpt de Beauvais, 1>u droit 
de cite a Rome . . . (Paris, 1882) ; G. Grenouillet, De la condition des 
personnes au point de vue de la cite . . . en droit romain (Paris, 1882) ; 
G. de Letourville, Etude sur le droit de cite a Rome . . . (Paris, 1883). 

8 Dion. Hal. iv. 15 ; Cic. Pro Caec. 34. 



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, 2 
whilst the term ins >uiritium was used when the same 
was granted to a Latinus lunianus. 3 

The mode and conditions of acquiring Roman citizen- HOW Roman 
ship will be considered below. 4 The civitas Romana ffi"** v 
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 ; 6 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. 6 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. 7 The same loss was incurred 
by those who were condemned to exile with c aquae et 
ignis interdictio ' ; and, further, under the Empire, by 
those who were sentenced to deportation, 5 or consigned 

1 Gait Inst. p. 54. 

2 Cf. Gaius, Inst. i. 28. 

8 Cf. 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. 

5 Cic. Pro Caec. 34: ". . .ex nostro iure duarum civitatum nemo 
esse possit. . . ." See note 2, infra, p. 246. 

8 Cf. Corn. Nep. Atticus, 3 ; Cic. Pro Balbo, 12. 

7 Cic. Pro Caec. 34; Dion. Hal. iv. 15. 

8 Gaius, i. 128 ; Ulpian, x. 3 ; Dig. xlviii. 19. 17 ; ibid. 22. 6. 



212 LOSS OF ROMAN CITIZENSHIP 

to the wild beasts (' ad bestias '), or sent to the mines 
(' in metalla '), or to hard labour ( c servi poenae ')* and 
also by those who were delivered (deditio) to the enemy 
by fetial procedure, 2 and those who were publicly 
declared enemies of the commonwealth. 3 

Cicero on the Cicero is at pains to show that citizenship was lost 
citizenship, 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 
lost ; they went either voluntarily, or fled to escape 
the penalty of the law ; whereas, had they submitted to 
it, they would have remained in Rome and retained 
their citizenship. 4 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. 5 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. 6 

l Dig. (ibid.). 

2 Cic. De orat. i. 40; Pro Caec. 34. 3 Dig. iv. 5. 5. 

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, turn 
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 ex 
nostro iure duarum civitatum nemo esse possit, turn amittitur haec 
civitas denique, quum is, qui profugit, receptus est in exsilium, hoc 
est, in aliam civitatem." 

6 Pro Balbo, ii. : "lure 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 ar ^ ument> 
a 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, c 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 inquilinus? (sojourner). 

The Romans had less national vanity than the Greeks, Roman 
whether in regard to religion or in regard to intellectual 
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 

1 J. 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, II, de Domo, 20), keiner verliere das 
Bilrgerrecht 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 konne. Der Verbannte verlor das Btirgerrecht durch 
die romische aquae et ignis interdictioj durch die Erkterung, iustum 
id ei exsilium esse, nicht durch die Aufnahme in den fremden Staat, 
die den RSmern gar nicht notificiert ward, oft gar nicht eintrat, 
indem der Verbannte in der fremden Stadt als inquilinus lebte." 



2I 4 



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, in the other, a rigorous disparagement 
which would assimilate the Romans to savages, " . . . 
gli scrittori hanno spesso esagerato o per un idealismo 
eccessivo o per un rigorismo che avrebbe assimilati i 
Romani a selvaggi." 1 

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 2 has strictly no precise equiva- 
lent in English. Such terms as ' alien ' and ' foreigner ' 
are only approximate renderings. It has a larger denota- 
tion than c 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 
aTroXtfe, individuals actually without a country, State, or 
city, those who could not be called cives at all, such as 
the deditidi, 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- 

1 G. Padelletti, Storia del diritto romano. Con note dl P. Cogliolo 
(Firenze, 1886), p. 69, note (a). 

2 On peregrinus, see further infra, latter part of the present chapter. 



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 
luniani, who were not cives, and yet were not regarded 
as peregrini. 1 

The word hostis? like the Greek <=Vo?, presents greater The term 
difficulty, and has been the cause of much misunder- hostts ' 
standing and error on the part of most modern writers. 
Just as the word eVo? meant both * stranger ' and 
' guest,* so hostis had this twofold signification. Indeed 
the word hostis etymologically corresponds to the Gothic 
gast(f)s y German Cast, English guest. 3 And further, 
among the Romans hostis came to signify c 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 ' 
vocaretur, lenitate verbi rei tristitiam mitigatam. Hostis 
enim apud maiores nostros is dicebatur, quern nunc 
' peregrinum * dicimus." 4 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 hostis y 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 

1 Cf. Muirhead, op. dt. p. 105, and note. 

2 On its etymology, cf. Mommsen, Das Romische Gastrecht und die 
Romische Clientel (in Romische Forschungen, Berlin, 1864-1879), vol. i. 
pp. 326 seq.j notes 1-3 ; W. Corssen, Kritische Beitrage zur Lateinischen 
Formenlehre (Leipzig, 1865), pp. 217 seq. On the ancient conception, 
see Ihering, op. cit. i. p. 227 ; C. Sell, Die Recuperatio der Rb'mer 
(Braunschweig, 1837), PP- 2 se< l* 

8 Cf. M. Breal and A. Bailly, Dictionnaire etymologique latin 
Lefons des mots (Paris, 1882) ; O. Schrader, Sprachvergkichung und 
Urgcschichte (Naumburg a. S. 1883) (English translation, Prehistoric 
Antiquities, p. 350). 
offic. i. 12. 



216 THE A MIC I 

being made. 1 Virgil uses the phrase hostilis fades with 
the meaning of the 'face of a foreigner.' Hence, 
because at one 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 
error of imagining that in antiquity ' foreigner * was 
necessarily synonymous with ' enemy/ a conclusion 
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 2 
(or, at least, appears to have been so regarded by the 
earlier writers), and also because hostis meant an 
c enemy/ therefore enemies were treated in war on the 
same footing as guests, or that guests were assimilated 
to the belligerent enemy. Whatever may be the 
favourite notions of a 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 below 
when the different classes of peregrins in Rome are 
considered. One must guard against confusing aliens, 
peregrini, with barbarians, in the sense almost of pirates 
or marauders, belonging to no definitely organized 
State. 

Amid. Amid were distinguished from hostes much in the 

same way as modern international law discriminates 
between States forming part of the family of nations, and 
peoples held to be outside it. The latter have not 

1 2)^ ling. Lat. v. 3 : " . . . hostis, nam turn eo verbo dicebant pere- 
grinum, qui suis legibus uteretur, nunc dicunt eum, quern turn 
dicebant perduellem." 

2 According to Servius, certain ancient authors assimilated the word 
hospes to hostis. Ad Aen. ii. 424 : " Nonnulli autem juxta veteres 
hostem pro hospite dictum accipiunt. . . . Inde nostri hostes pro 
hospitibus dixerunt." 



HOSPITIUM 21 7 

strictly the right to claim the benefits conferred by this 
law, just as the hostes were originally conceived by the 
Romans to be outside law, extrarii. " Extrarius est 
qui extra forum, sacramentum iusque est." l 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 
guest-tie 2 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. 8 
Certain laws of hospitality were, no doubt, common to 
all the peoples of Italy, 4 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 
was the bond of hospitium between Scipio Africanus and P ublic - 
Syphax, King of the Massaesylians, a tribe of the 
Numidians, as between Hasdrubal the Carthaginian and 
Syphax. 5 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. 

2 On hospitium, see Mommsen, Das Romische Gastrecht, he. cit., pp. 
3 1 9-390 ; s.v. hospitium, in Daremberg-Saglio, op. dt. On the commer- 
cial origin of the institution of hospitality, cf. Ihering, Die Gastfreund- 
schaft im Alterthum (in Deutsche Rundschau, Berlin, June, 1887, pp. 
357-397). 

8 Cf. J. B. Mispoulet, Les institutions politiques des Remains, 2 vols. 
(Paris, 1882-83), vol. ii. p. 10. 

4 Aelian. Par. hist. iv. i ; Liv. i. i. 
5 Liv. xxvii. 54; xxix. 23, 29 ; xxx. 13. 



2i 8 OBLIGATIONS OF HOSPITIUM 

with the inhabitants of the most distant towns. 1 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 

Private Hospitium privatum assured the foreigner, with whom 

itTobilgaUons. 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." 3 
It involved a certain obligation on the part of the pro- 
tector to tend him during illness, and even to superintend 
his obsequies, 4 it was also his duty to give him advice 
and assistance in case of legal proceedings 5 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. 6 

Tessera This undertaking was a purely voluntary one, and was 

hospitaiis. usua lly recorded on a tablet (tessera}? of which a copy or a 

fragment thereof was retained by each of the parties. 8 

The customary formulae of hospitium are preserved in 

numerous inscriptions. 9 In one of these inscriptions 

iDion. Hal. viii. 3. 30. 2 Sallust, Catil. 41. 

3 Liv. xlii. i ; cf. Liv. i. 58 ; Plaut. Mil. Glor. 674 : "In bono 
hospite atque amico quaestus est quod sumitur. ..." 

4 Corpus inscriptionum Latinarum (1863, etc.), ed. Mommsen and 
others, vol. ii. 5556. 

5 Cic. Divin. in Caecil. 20. 6 Cf. Hor. Carm. ii. 13, 11. 5-8. 

7 See Daremberg-Saglio, op. cit. vol. iii. pt. i. p. 298, where 
illustrations of different forms are shown. 

8 Cf. Plautus, Poen. 958: "Ad eum hospitalem hanc tesseram 
mecum fero" ; and cf. 11. 1042 seq. On tesserae generally, see G. F. 
Tomasini, T>e tesseris hospitalitatis (Amstelodami Frisii, 1670). 

9 Cf. J. C. von Orelli and G. Henzen, Inscriptionum Latinarum 
selectarum amplissima collectio . . . . , 3 vols. (Turici, 1828-1856), nos. 
156, 1079, 3056-9, 3693, 4037; suppl. nos. 6413, 6416; Corp. 
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 II eius . sibi . liberis posterisque suis . tes- 
seram hospitalem II cum eo fecerunt. Uti se in fidem 
II atque clientelam vel suam II vel posterorum suorum II 
reciperet. Atque ita in hac II re. . . ." l 

It is true that the arrangement did not rest entirely under divine 
on a juridical basis; but it was universally recognized protectlon< 
to be under the protection of the gods, especially of 
* lupiter hospitalis' ; 2 and the sanction of religion was 
no less effective in practice than that of the law. A 
deliberate violation of the engagement was deemed to 
subject the offender to divine retribution, as well as to 
infamia, a censure involving disqualification as to certain 
public and private rights. 

The hospitium privatum was usually a reciprocal obligation on 
undertaking, involving rights and duties of mutual P 05 
assistance and protection, whether in peace or in war, 3 
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 
King 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, <c . . . legati a Perseo rege vene- 
runt, privati maxime hospitii fiducia, quod ei paternum 
:um Marcio erat." 4 

To sever such hereditary bond an express renunciation TO sever the 
(renuntiatid) was necessary, 6 a proceeding which was ^nuncCSon 
sometimes resorted to in the case of a dangerous con- necessary, 
diet between these obligations and that of patriotism. 
iLivy 6 gives a striking account of such a renunciation 

1 No. 1079, ut supra. 

2 Cf. Virg. Aen. i. 731 : " luppiter, hospitibus nam te dare iura 
ocuntur. . . ." 
8 Liv. xxv. 18 ; xl. 13 ; Plut. Sy//. 32. 4 Liv. xlii. 38. 

5 Dion. Hal. v. 34 ; Liv. xxv. 18 ; Cic. In Verr. ii. 6. 79 ; Sueton. 
<*Rg. 3- 

6 xxv. 1 8 : cf. Cic. In 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 c guest ' of Badius, a Campanian. 
Badius sent for Crispinus, who thought his host desired 
merely a friendly interview, seeing that their private 
bond, as he assumed, would continue even amidst the 
disruption of public ties. 1 But Badius challenged him 
to a combat, to which Crispinus replied that each of 
them had enemies enough to display his valour upon ; 
" for his own part, even if he should meet him in the 
field, he would turn aside lest he should pollute his 
right hand with the blood of a host." 2 Thereupon 
Badius taunted him with cowardice, and stigmatized 
him as an enemy sheltering himself under the title of a 
guest, and so he made a formal renunciation of the tie. 
u If he considered," he exclaimed, " that when public 
treaties were broken, the ties of private relationship 
were not severed with them, then Badius the Campanian 
openly and in the hearing of both armies renounced his 
tie of hospitality with Titus Quinctius Crispinus, the 
Roman. He said that there could exist no fellowship 
or alliance between him and an enemy, whose country 
and tutelary gods, both public and private, he had come 
to fight against. If he was a man he would meet him." 1 
Crispinus thereupon obtained permission of his generals, 
met Badius, and defeated him. This contention on 
the part of Crispinus that the tie survived even an out- 
break of hostilities between their respective States was 

1 Liv. ibid. : " . . . ratus colloquium amicum ac familiare quaeri, 
manente memoria etiam in discidio publicorum foederum privati 
iuris. . . ." 

2 Ibid. : " . . . se, etiamsi in acie occurrerit, declinaturum, ne 
hospitali caede dextram violet. . . ." 

3 Ibid. : " . . . Si parum, publicis foederibus ruptis, dirempta simul 
et privata iura esse putet, Badium Campanum T. Quinctio Crispinc 
Romano palam, duobus exercitibus audientibus, renuntiare hospitium, 
Nihil sibi cum eo consociatum, nihil foederatum, hosti cum hoste. 
cuius patriam ac penates publicos privatosque oppugnatum venisset 
Si vir esset, congrederetur." 



PUBLIC HOSPITALITY 221 

by no means a novelty ; for it was even in such serious 
emergencies usually admitted and respected. 1 

The hospitium publicum was an extension of the private Public 
form. It assured the hospitality of the Roman com- hos P italit y- 
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 
people ; as, for example, in the case of Timasitheus ** 
(394 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 
hospitality should be formed with him, and presents 
also sent to him. 2 And, in this connection, Livy 
cannot refrain from adding that Timasitheus was a man 
more like the Romans than his own countrymen, ". . . 
iRomanis vir similior quam suis." 3 

The honour of public hospes was at times granted 
also by a foreign State to distinguished Roman citizens. 
Thus in the third century B.C., Sparta conferred the 
honour on a Roman, and the inscription recording 
this concession speaks of eW ra jueywra e/c T[WI/ 

VO/UL(*)V . . .].* 

With regard to a whole State a like public relation- Such bond with 
ship was established, when all its subjects were granted er 
the privileges in question, in return for similar rights 
given to Romans visiting or residing in the territory of 
that State. 

Of the exact nature of the rights and privileges Privileges of 
incidental to hospilium publicum it is difficult to state hospitality, 
details with certainty. The few texts we have which 
relate to the subject are far from explicit, and have been 
f interpreted differently by different investigators. Thus, 

^al. Max. v. i. 3. 

2 Liv. v. 28 : "Hospitium cum eo senatus consulto est factum 
lonaque publice data." Cf. Plut. Cam'ilL 8. 

*Corp. inscrip. Graec. i. no. 1331. 



222 AMICITIA AND HOSPITIUM 



in most of the citations given by Mommsen 1 the real 
implication, as Willems has pointed out 2 following 
Walter, 3 concerns the ius legatorum rather than the 
hospitium publicum ; and the two institutions, though 
involving certain common elements, are by no means 
identical. Mommsen particularly lays stress on the 
senatusconsultum de Asclepiade Polystrato 4 (78 B.C.); 
but this senatusconsult relates to provincials, 5 and 
confers on them privileges, such as the immunitas, which 
cannot, from the very nature of the conditions, be 
extended to subjects of autonomous and independent 
States. 6 This senatusconsult appears to indicate that 
there existed a certain specific formula which precisely 
defined the privileges contained in the hospitium ; but 
there is no extant text giving such formula. 

d There was a certain resemblance, and there was an 
important difference, between hospitium and amicitia. But 
the word amicitia^ or rather its content, was somewhat 
of an elastic character. Sometimes the term was applied 
to the closest federal relationships, sometimes it indi- 
cated more or less vague and undefined associations, 
suggesting good feeling and comity rather than political 
or legal adjustments. Thus, it was alike applied to the 
relationship existing between those cities which con- 
stituted the military symmachy in Italy, and to that 

1 Das Rom. Gastrecht, loc. cit. p. 344, notes 35, 36, 37; p. 345, 
note 39 ; p. 346. Cf. F. Walter, Geschichte des romischen Recht^ 
2 Thle. (Bonn, 1860-1) ; 83, note 31. 

2 Le droit public romain, p. 392. 

3 Op. cit. 83, note 31, p. 1 18, where he thus writes, and, to a large 
extent, justifiably, of Mommsen's conclusions : " Allein alle von ihm 
angefuhrten Beweisstellen, mit Ausnahme des SC. de Asclepiade, reden 
von Legaten und fremden KSnigen und das SC. redet von einem 
besonders begilnstigten Falle. Ein Schluss auf die gewohnlichen 
hospltes publici ist unzutessig ; dawider spricht schon deren grosse 
Zahl." 

4 Corp. inscrip. Lat. i. pp. 110-112. 

5 Cf. Walter, ibid, in the preceding note. 

6 See Orelli and Henzen, Inscrip. Lat. no. 784. 



CLIENTELE AND HOSPITIUM 223 

with the distant Carthaginians, 1 with whom there was 
naturally much less real kinship. As a rule, amid were 
considered to be under the public guardianship, in pub- 
lica 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 fas * if not of a positive /ex, to treat the 
hospes on terms of equality, whereas the client (cliens) 
occupied a more subordinate position. 

Clientela^ implied rather a unilateral relationship, 
The cliens was in a condition of dependence and tutela 
which subjected him to the authority of his patron 
"ad quern se applicaverit "; so that his position bore 
a certain analogy to that of the filius familias, or to 
the relationship of ' pupil ' to ' tutor/ On the other 
hand, hospitium was for the most part of a bilateral 
nature. Again, clientele* 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- 
panied him to war ; 4 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 
be inflicted on him, and to the expenses in magistracies 
. 

1 Polyb. iii. 22. 2 On fas and lex, see supra, pp. 86 seq. 

8 On clientela, see Koellner, <De clientela (Gottingen, 1831); J. 
Roulez, Considerations sur la condition politique des clients dans Fancienne 
Rome (in Bulletins de I'Academie Roy ale de Bruxellcs, t. vi. pt. i. 
pp. 304 sea.) ; Mommsen, Das Rom. Gastrecht . . . loc. cit. ; M. Voigt, 
Uber Clientel und Libertinitftt (in Koniglich sfichsischen Gesellschaft dtr 
Wissenschaften, Berlin, 1878); Ihering, op. cit. vol. i. pp. 236-245; 
G. Humbert in Daremberg-Saglio, s.v. cliens (and see bibliography 
Ithere). 

4 Dion. Hal. vi. 47; vii. 19 ; ix. 15 ; x. 43. 



224 EXTENSION OF HOSPITIUM 

or other honours conferred on him. 1 Mutual obliga- 
tions of fidelity existed between them, so that neither 
could bring an action or bear testimony against the 
other. 2 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. 3 
Sacred 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 
client against his patronus. The XII. Tables enforced 
the good faith of the patron towards the client, and had 
specifically said as to its violation : " Patronus si clienti 
fraudem fecerit, sacer esto." 4 

Patronage of In time at the end of the Republic and under the 
re peoples. ear jj er em pire this private institution assumed a wider 
form, so that entire cities sought similar protection of 
influential or distinguished Romans. 5 Thus, Sicily 
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 Gracchi, 
of Spanish peoples ; among Cato's clients were the 
Cappadocians and the inhabitants of Cyprus. 6 

Allegation as There are, no doubt, shortcomings and abuses in 
every ancient regulative system, no matter how theo- 

1 Dion. Hal. ii. 10; Liv. v. 32; xxxviii. 60. 

2 Plut. Mar. 5 ; Aul. Gell. v. 13 ; xx. I. 

8 Dion. Hal. ii. 10 : . . . SIKCLS 0' vjrep TWI> TreAarwi 
Aayxai/etv, et TIS /?Aa7TTotTo irfpl ra (rv/x/3oAata, KCU rots e 
vjre^tiv. Cf. Cic. De oraf. iii. 33; Horat. Epist. ii. i. 104: 
clienti promere iura . . . "; Plut. Cato. 23 ; Plaut. Menaech. 475. 

4 Cf. Serv. Ad Aen. vi. 609 ; Festus, s.v. safer. 

5 Tacit. Ann, iii. 55. 

Cf. W. A. Becker, Callus (Berlin, 1883), Sc. I, Excursus 4. 



HOSPITIUM PUBLICUM 225 

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 : u Le patronage des 
clients fut trop souvent, comme la suzerainete feodale, 
une oppression mal deguisee . . .,"* 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. 



Now to return to the question of public hospitality, H 
as distinguished from this relationship of clientele*. Hos- 
pitium publicum, as Mommsen says, 2 assured to the ;n s obliga 
individual hospes, 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 locus, aedes liberaef 
a gratuitous lodging ; secondly, lautiaf strictly the 
various utensils necessary for the bath, but ordinarily 
including also those used in the kitchen ; and thirdly, 

1 Hist, du droit des gens, vol iii. p. 78. 

2 Das rom. Gastrecht, loc. cit. pp. 343-4. 

3 Liv. xxx. 17 ; xxxv. 23 ; xlii. 6. Cf. Liv. xxx. 21 ; xxxiii. 24 ; 
Val. Max. v. i, la, E. Sometimes a private house was taken, Liv. 
xlv. 44. 

4 In Greek, Trapox?}, Polyb. xxii. I; xxv. 6; xxxii. 19; cf. Cic. 
Ad Att. xiii. 2. 2. Charisius describes it as supellex (furniture), and 
the glossators speak of ei/So/Acvta (Mommsen's note to pp. 345-4 * 
Das rom. Gastrecht, loc. cit.). The word lautia appears originally to 
have been daufia ; cf. Festus, Ep. p. 68 : " Dautia quae lautia dicimus 
dantur legatis hospitii gratia"; explained by a glossator as evSo/xevtcu, 

evry ra Kara rr/v OIKIOLV, that is, certain household furniture which 
a traveller could not carry about with him, e.g. lectl (beds), as men- 
tioned by Cicero (Ad Att. vi. 1 6. 3). Mommsen insists that the relation 
with lautus, lavare is inadmissible, in view of the alleged ancient 
form dautia, which, he thinks, is perhaps cognate with daps, Scnravrj 
(outgoings, expenditure). But all this yet remains mere conjecture. 
(Cf. Mommsen, Rb'm. Staatsrecht, vol. iii. pt. ii. p. 1152, note 2.) 

p 



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 fur die befreun- 
deten Individuen selbst wie fur 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 Ausriistung, welche der Gast braucht urn 
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. . . ," 2 

This public hospitality formed the basis of the 

inte?nat!onai nd 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- 

Objections to ship was not essentially distinguishable from that of 
amicitia. But to his conclusion there are several 
objections, which are well urged by Willems. 3 In the 
first place the sources draw a certain distinction between 
them ; for example, in the Digest, where postliminy 
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, quo 

1 Hence the word munlceps which, as is suggested by Rudorff, 
derived from munus capere, in the sense of receiving presents 
individuals in the capacity of hospites. 

2 Das rom. Gastrecht . . . loc. cit. pp. 343-4. 

3 Le droit pub. rom. p. 391, note. 



Public 



conventions. 



Mommsen's 
opinion. 



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." 1 Secondly, 
the historical examples of hospitium publicum are rare, 
especially between Rome and a foreign State. 2 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," 8 
and Tacitus : " Soli Gallorum fraternitatis nomen cum 
populo Romano usurpant." 4 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 ? <c Comprend-on, sans 
cela, un hospitium publicum entre tout le peuple remain 
et un seul etranger ?" 5 Lastly, it is hardly possible to 
admit that all the amid and socii 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 6 in Position of 
Rome, the different periods of her history must be care- aliensin R< 

1 Dig. xlix. 1 5 (de captivis et de postliminio et redemptis ab 
hostibus), 5. 2. 

2 Liv. v. 28 and 50. 8 De bell. Gall. i. 33. 

4 Ann. xi. 25. 5 Droit pub. rom. p. 392, note. 

6 On the development of the conception of peregrinus, cf. Puchta, 
Cunus der Institutionen, vol. ii. p. 105 ; Madvig, op. 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, 1 
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,"- 
ayaOoi yap el KOI rives erepot imeTaXapeiv eOtj, KOI fyXuxrai TO 
fieXriov KOI 'Pwjuiaioi. 2 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 tc 
harmonize the better with a broader system o 
jurisprudence, and with the conception of the juridica 
personality of foreign sovereign communities, 
find the rise of political and j uridical, or quasi-juridical 
institutions like clientela, amicitia^ hospitium, alliance! 
of different kinds, treaties on a basis of equality witf 
their usual provisions for ensuring a reciprocal lega. 

pp. 58 seq. ; S. Gianzana, Lo straniero neldmtto civile italiano (Torino 
1884), vol. i. pp. 68-86 : "La condizione giuridica dello straniero 
presso i Romani " ; Voigt, Das ius naturale . . . vols. i. and ii. passim. 
. Catil. 51. 2 vi. 25. 



POSITION OF ALIENS IN ROME 229 

protection, and for the enjoyment by the contracting 
parties of certain civil rights in each other's country. 

The municipal law was more and more extended for Modification 
the benefit of friendly aliens, in the first place by municipal law. 
conceding recuperatio, connubium and commercium, then 
by granting the ius nexi mancipiique^ until we get 
the evolution of the elaborate body of the law 
of nations, the ius gentium?- We find distinct germs 
of 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 (VoTroXn-e/a 2 
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 
lex loci contractus. Thus, in the foedus Cassianum (493 
B.C.), 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 
was concluded : T>V re iStayriKosv <rv/j,/3d\aiu)v at Kpiveis ei/ 
yiyvearOwcrav Sexa, Trap' of? av yevtjrai TO <rvfjL/36\aiov. 3 



1 Cf. Voigt, Das ius naturale . . . vol. ii. 5, 13 seq. 65 seq. 

2 See supra, pp. 141 seq. 

3 Dion. Hal. vi. 95. For the full treaty as reported by Dionysius, 
see infra, the latter part of chap. xvi. 



CHAPTER X 



Classes of 
aliens. 



The 
barbarians. 



ROME AND FOREIGNERS. DIFFERENT CLASSES, AND 
THEIR JURIDICAL POSITION 

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, and 
Latin peregrins. 

The barbarians l (frequently referred to as alienigeni) 
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 c bar- 
barian ' was applied by the Romans, as by the Greeks, 
to persons speaking a foreign language, then to such as 
were outside the limits of Graeco-Roman civilization. 
Much later, under the Empire, a distinction was drawn 
between the gentes ex ferae non foederatae^ and peregrini or 
provinciates. They were not admitted on Roman terri- 
tory, except by an extraordinary concession granted but 
rarely, and only in individual cases ; and, occasionally, 
by special compacts some of them were prohibited from 
settling in certain districts, even when these were beyond 

1 On the condition of the barbarians, especially those residing within 
the territory of the later Roman Empire, cf. E. Leotard, Essai sur la 
condition des barbares etablis dans V empire romaln au quatrleme siecle 
(Paris, 1873). 



THE BARBARIANS 231 

the bounds of the Roman Empire. 1 Large restrictions 
were, under the later emperors, placed on the com- 
mercial relationships of Romans with the barbarians. 2 
In theory, Roman jurisprudence granted them no rights 
whatever ; they were even held to be incapable of 
enjoying the provisions of the im 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. 3 When 
conquered, they might be reduced to slavery. 4 Their 
graves were less protected than those of slaves, 6 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. 6 In 365 A.D., a constitution was issued by 
the Emperors Valens and Valentinian to the effect that 
marriage between Romans and barbarians was a capital 
offence. 7 Indeed, as Ortolan expressed it, barbarians 
were in theory regarded by the Romans as existing out- 
side civilization and geography, " hors de la civilisation 
et de la geographic." 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. II, 15, 16, 19 ; Ixii. 13. 

2 Cod. Just. iv. 40. 2 ; iv. 41. I and 2 ; iv. 63. 2. 
8 Dig. xlix. 15 (de captiv. et de postlim.), 5. 2. 

l lbid. : ". . . et liber homo noster ab eis captus servus fit et 
eorum. . . ." 

5 Dig. xi. 7 (de religiosis et sumptib. fun.), 2. pr. : "Locum in 
quo servus sepultus est religiosum esse Aristo ait." 

6 Dig. xlvii. 1 2 (de sepulchre violate), 4, where Paulus says that 
no action would lie against anyone who removed stones from 
enemies' tombs : "Sepulchra hostium religiosa nobis non sunt : 
ideoque lapides inde sublatos in quemlibet usum convertere pos- 
sumus ; non sepulchri violati actio competit." 

1 Cod. Theod. iii. 14. i. 



232 THE DEDITICH 

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 conquerors 
were pleased to concede to them. 2 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, divina 
humanaque omnia." 3 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 to 
broader conceptions and more accommodating practice. 
Sometimes the Roman conquerors allowed their dediticii 
a certain measure of autonomy, leaving them all or 
part of their former laws, hence designated the ius 
dediticiorum ; 4 and on some occasions even granted them 
a iusprivatum, as, for example, in the case of Capua. 5 

It is to be noted that the term dediticii denotes also 
the lowest class of freedmen, which had been established 
by the lex Aelia Sentia (4 A.D.), "pessima libertas eorum 
et qui dediticiorum numero sunt." ( Their position 
was assimilated to that of slaves. They differed from 
ordinary peregrins, inasmuch as they did not belong to 
any city, whose laws they might otherwise be capable of 

1 Cf. Voigt, Das jus naturale . . . vol. ii. pp. 255-302 ; pp. 884-91 1 ; 
Karlowa, op. cit. pp. 282 seq. ; pp. 292 seq.\ and see infra, chap, xxiv., 
as to the Roman practices in war with regard to the peregrini dediticii 

2 Gaius, i. 14. 

3 Liv. i. 38 ; iv. 30 ; vi. 8 ; viii. i ; xxviii. 34 ; xxxvii. 45 ; xl 
41 ; Caes. Bell. Gall. i. 27 ; ii. 32 ; Polyb. xx. 9. 10; xxvi. 2. 

4 Liv. xxxiii. 5, 9. 5 Liv. ix. 20. 6 Gaius, i. 26, 



THE PEREGRINl 233 

enjoying. 1 They could never acquire Roman citizen- 
ship, or even the rights of latinity ius latinitatis. 

As to the peregrins, 2 it is important to recollect that Peregrin*. 
the term peregrini, as used by the Roman jurists, 
includes various classes of individuals : (i) 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 ; 3 (4) 
freedmen who were dediticiorum numeral 

Ordinary peregrins (comprising mainly those of the Ordinary 
second class above) were, apart from special concessions P* 1 **" 115 - 
by convention or otherwise, and apart from subsequent 
extensions, also deemed to be outside the sphere of the 
Roman civil jurisprudence. The ius civile was regarded Rights 
as a system of law reserved for citizens alone. Its politi- ^eSll eId fr m 
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, 
they 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 
Ulpian says : " Connubium habent cives Romani cum 
civibus Romanis; cum Latinis autem et peregrinis ita 
si concessum est." 6 Absence of connubium naturally 

1 Ulpian, Regulae, xx. 14. 

2 Cf. Voigt, op. cit. vol. ii. pp. 8 seq. ; Voigt, XII. Tafeln, vol. i. 
24, 28 ; Van Wetter : " La condition civile des etrangers d'apres 
le droit remain " (appendix to Laurent's Droit civil international 
(Brussels, 1880), vol. i. pp. 667 seq.); G. Humbert, Memoire sur 
la condition des peregrins chez, ks Remains (in Recueil de F Academic de 
legislation de Toulouse, 1870). 

8 On the deprivation of civic rights and its varying degrees, see 
Dig. iv. 5. ii ; Just. Inst. i. 16 ; Cic. De Orat. i. 40 ; Brut. 36 ; 
Verr. ii. 2. 40 ; Top. 4. 

4 Ulpian, Regulae, xx. 14 ; Gaius, i. 13. 

5 Reg. v. 4 cf. Gaius, i. 57. As to such formal concessions, see 
the Trivilegia militum veteranorumque de civitate et connubio in Corp. 



234 THE PEREGRINI 

implied the absence of the corollary rights of manus 
(marital power), patria potestas (power over the films- 
familias\ adoption, agnation, inheritance ab intestato. 
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 mandpatio (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), andjinium 
regundorum. If a peregrin was granted commercium, he 
thus obtained an express right to enter into bilateral 
engagements (mancipatio, nexum, usucapio\ to acquire, 
hold, and transfer property of all kinds in accordance 
with the provisions of the civil law ; and it included 
also the testamenti factio, the capacity to institute or be 
instituted an heir. But it is important to remember 
that absence of commercium did not necessarily mean 
absence of daily intercourse, commercial or otherwise, 
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 provincial 
land, for which purpose the possession of the ius italicum 1 
sufficed ; Italic soil being acquirable and transferable 
by mancipation and usucapion. Finally, tutelage of 
minors was denied to them, as well as the different 
modes of emancipating slaves, the use of the form 
spondesne spondeo 2 in entering into engagements, the u 



inscrip. Lat. vol. iii. 843-919 ; L. Renier, Recueil de diplomes mili- 
talres (Paris, 1876), passim ; and cf. Piccioni, Des concessions du 
connubium (Paris, 1891). 

1 As to the ius italicum^ cf. Savigny, Vermischte Schriften, 5 vols. (Berlin, 
1849, etc.) vol. i. pp. 29-80 ; E. Beaudouin, Etude sur le jus italicum 
(in Nouvelle revue historique du droitfranfais et etr anger, t. v. pp. 146 j<?f., 
pp. 592 seq.}\ R. Beaudant, Le jus italicum (Paris, 1889); J. Mar- 
quardt, Romische Staatsverwaltung (Leipzig, 1881), vol. i. pp. 89 seq. 

2 Gaius, iii. 93-4. 



1US GENTIUM AND PEREGRIN LAW 235 

of nomina transcriptitia (transcriptive entries of debit or 
credit in a journal), at least or the form a persona in 
personam (that is, the substitution or exchange of a debt 
owed by C to B, in discharge of a debt owed by B 
to A). 1 

But with the development of the ius gentium, the posi- Rights allowed 
tion of peregrins became ameliorated. The praetorian 
jurisprudence, as the greatest of Roman jurisconsults, 
Papinian, said, arose out of the necessity to assist, 
supplement, or rectify the civil law, in view of public 
utility : u Ius praetorium est quod praetores intro- 
duxerunt, adiuvandi vel supplendi, vel corrigendi iuris 
civilis gratia, propter utilitatem publicam." 3 (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 philosophic "; 4 and through its instrumen- 
tality an increasing number of principles continued to be 
embodied in the ius gentium, recognizing, on the basis of 
natural 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 
the rights and duties of peregrins, and for the settle- 
ment of conflicts that might arise amongst them, an 
application of their law of origin (lex peregrinorum) was 
not infrequently made, and the principle involved 
therein was, if not detrimental to public interest, 
materialized in the ius gentium. Thus the law relating Nature of 
to peregrins consists, as Girard has pointed out, partly P 61 " 6 ^"" law - 
of certain Roman civil provisions expressly extended 

1 Ibid. iii. 130. 

2 Cf. Weiss, Droit inter, prive, vol. ii. pp. 26 seq. On the general 
inapplicability of Roman laws to peregrins, cf. M. Wlassak, Romische 
Processgesetze (Leipzig, 1888-91), part ii. pp. 141-182. 

3 Dig. i. i (de iust. et iure), 7. I. 

4 Weiss, op. cit. vol. ii. p. 27. 



236 JUS GENTIUM AND PEREGRIN LAW 

to them (as where a decree of the senate rendered 
applicable to them the rule in the lex Aelia Sentia, 
making void such manumissions as were effected in 
fraud of creditors 1 ), partly of their own national laws, 
and partly of the law of nations. " Leur droit est 
constitue, en dehors des rares lois romaines dont 
1'application leur a et expressement etendue . . . par 
leurs lois nationales et par le droit des gens. Les 
peregrins vivent sous 1'empire de leurs lois nationales, 
dans la mesure ou 1'exercice leur en a ete laisse apres leur 
soumission, notamment au moment de 1'organisation de 
la province." 2 

Marriage Peregrins could contract marriage taking the form 

f matrimonium non iustum, non legitimum to which 
many provisions of the civil law were applicable. They 
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 tutela* 
(guardianship), and of curatela* (curatorship of a minor 
after release from wardship). They were allowec 
dominica potestas with regard to their slaves, and its 
corollary rights, viz. acquisition per seruum, the power 
of life and death (ius vitae necisque\ and the right o 
manumission by their respective national laws. 5 They 
were permitted to acquire property by the various 

Acquisition of modes of the ius gentium^ e.g. by traditio (delivery o: 

. possession), occupatio (of things which previously had no 

owner) ; as a substitute for the civil usucapio, the 

1 Gains, i. 47 : "... lege aelia sentia cautum sit, ut creditorum 
fraudandorum causa manumissi liberi non fiant, hoc etiam ad pere- 
grines pertinere (senatus ita censuit ex auctoritate Hadriani. . . .) " 

2 P. F. Girard, Manuel elementalre de droit romain (Paris, 1901), 
p. no. 

3 Gaius, i. 189, 193. Cf. Humbert, Memoire sur la condition des 
peregrins chez Its Remains, loc. cit. p. 19. 

4 Gaius, i. 197, 198. 

5 See Corp. imcrip. Graec. vol. ii. p. 1005, no. 211-j.bb; Plin. 
Epist. x. 4 ; and cf. Dosithaeus, Disputatio forensis de manumiuionibui 
(in P. F. Girard, Textes de droit romain, 12). 



IUS 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 
mo do}. 

On provincial territory, peregrins were able to Rights ot 
exercise the rights of personal or predial servitude, jovfndai 
emphyteusis (grant of land in perpetuity, or for a term territory. 
of years, for an annual rent), superficies (right to per- 
petual enjoyment of anything built upon land, on 
payment of an annual rent), hypotheca 1 (mortgage). 
They were admitted to successions ab 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." 2 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), andjideiussio (suretyship by stipulation, attach- 
able to any contract) ; and also of novatio (transvestitive 
facts), and acceptilatio (release of stipulation). As regards 
the contracts litteris^ they could enter into chirographa and 
syngraphae* (detached written affirmations and acknow- 
ledgments of debts), and probably transcriptio a re in 
personam (" . . . when the sum which you owe me on a 
contract of sale, or letting, or partnership is debited to 
you in my journal as if you had received it as a loan" 4 ). 
Thus Gaius says : " Whether transcriptive debits 

1 Gaius, ii. 31 ; cf. Dig. xlviii. 22 (de interd. et releg.), 15,/r. 

2 i. 2 : "Ex hoc iure gentium et omnes paene contractus introducti 
sunt, ut emptio venditio, locatio conductio, societas, depositum, 
mutuum et alii innumerabiles." 

3 Gaius, iii. 134. 4 Gaius, iii. 129. 



Extinction of 



Rights of 
actions. 8 



238 IUS GENTIUM AND PEREGRIN LAW 

constitute a binding obligation in the case of aliens ha 
been doubted with some reason, for this contract is an 
institution of civil law, as Nerva held. Sabinus anc 
Cassius, however, held that transcription from thing t( 
person forms a contract binding on aliens, though no 
transcription from person to person." * They wen 
allowed the cautio damni infecti 2 (giving security agains 
apprehended damage), and also to enter into pacts anc 
innominate contracts, sanctioned by the action praescripti 
verbis (an equitable action to recover not merely th 
value conveyed, but also compensation for the los 
suffered through the defendant's default of specifi 
performance). 

Respecting the extinction of obligations, the variou 
modes thereof were likewise related to the ius gentium 
so that apart from novatio and acceptilatio, the peregrin 
could resort to actual performance (solutio), to mutuu 
dissensus, to compensation, to prescription, according t( 
the circumstances of the particular case. The imaginary 
payment per aes et libram was never allowed to them. 3 

As to the right of bringing actions, the institution o 
recuperatio* was at first organized for the benefit o 
peregrins. But when this had disappeared (as it hac 
done by the time of Gaius), the praetorian jurisprudenc 
introduced modified actions (actiones utiles, or jicticiae 
which, by a legal fiction considering the peregrins fo 
the time being as Roman citizens, enabled them t< 
bring penal actions of the civil law, such as the actiofurt 
(for theft), the actio iniuriarum^ and actio de lege Aquilu 

1 iii. 133: " Transscripticiis vero nominibus an obligentur pere 
grini, merito quaeritur, quia quodammodo iuris civilis est tali 
obligatio ; quod Nervae placuit. Sabino autem et Cassio visum est 
si a re in personam fiat nomen transscripticium, etiam peregrine 
obligari ; si vero a persona in personam, non obligari." Cf. E. Chenon 
fatudes stir les con traverses entre Proculeiens et Sabiniens (Paris, 1881) 
no. 19. 

2 Cf. Corp. inscrip. Lat. i. p. 116 ; and see Voigt, Das jus nat. vol. i 
pp. 732 seq. 

3 Gaius, iii. 173, 174. 4 See infra, chap, xvii., latter part. 



IUS GENTIUM AND PEREGRIN LAW 239 

(for damage to property). As Gaius states : " An alien 
is feigned to be a Roman citizen if he sue or be sued in 
an action which may justly be extended to aliens. . . . If an 
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." 1 

It has been held by writers, like Keller, Mommsen, 
Van Wetter, and certain others, that the concession of 
commercium to peregrins carried with it the right to 
resort to the legis actiones (statute-process), by means of 
the actiones ficticiae^ or the intervention of a procurator. 
But there are certain difficulties involved in this view. 
In opposition it may be urged, as Muirhead has argued, 2 
that the fictitious actions were first introduced by the 
praetors, when the legis actiones were already becoming 
obsolete, that the system of legis actiones recognized no 
such general institution as the procuratory 3 (because it 

1 iv. 37 : "Item civitas Romana peregrine fingitur, si eo nomine 
agat aut cum eo agatur, quo nomine nostris legibus actio constituta 

est, si modo iustum sit earn actionem etiam ad peregrinum extendi 

Item si peregrinus furti agat, civitas ei Romana fingitur. Similiter si 
ex lege Aquilia peregrinus damni iniuriae agat aut cum eo agatur, 
ficta civitate Romana iudicium datur." In 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 
fictitious actions of the later period. " Als Beispiele werden die 
Diebstahls- und die Sachbeschiidigungsklage activ und passiv angefdhrt. 
Daraus folgt, dass die Privatdelictsklagen an sich nicht von einem 
oder gegen einem Peregrinen haben angestellt werden kOnnen, 
aber keineswegs, dass bis zu der verhaltnissmMssig wohl spaten 
Epoche, wo sie durch Fiction ihnen eroffhet wurden, es fllr Falle 
dieser Art keine Rechtsverfolgung gegeben hat. Vielmehr finden 
wir schon im sechsten Jahrhundert die Diebstahlklagen von Peregrinen 
gegen R5mer durch Recuperatoren entschieden . . . ohne Zweifel gab 
es dafttr in alterer Zeit besondere Klagen, die nachher durch das 
Eintreten jener Fiction Uberfltissig wurden" (Dat romische Staatsrecht, 
vol. iii. p. 606 note). 

2 Note 3, pp. 103-4, op. cit. 

3 Gaius, iv. 82. Cf. Just. Inst. iv. 10 pr., where cases are mentioned 
in which representation was allowed in statute-process : " Cum olim 
in usu fuisset alterius nomine agere, non posse, nisi pro populo, pro 



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 indicia legitima of which the legis actiones in 
personam were the earliest forms required both parties 
and judge to be Roman citizens, 1 and finally, that if the 
legis actiones had been applicable, recuperatio would have 
been superfluous. 

Rights allowed By treaties between Rome and foreign countries, a 
peregrins. reciprocity of recuperatio and ius commercii, and some- 
times even ius connubii, was secured for the subjects of 
the contracting parties. In the alliances with the Latin 
cities usually all the three rights were stipulated ex- 
pressly or conceded impliedly. Thus in the case of the 
foedus Cassianum 2 of the year 493 B.C., no mention was 
specifically made of connubium, on the grounds that it was 
clearly understood. Similarly wide rights and privi- 
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.C 
and in some cases with the Samnites, as, for example, ii 
290 B.C. In the majority of cases, however, connubiun 
(the most important private right), was not included ii 
treaties, recuperatio and commercium being alone agreec 
upon. In other instances, only amicitia formed th 
basis of treaty relationships securing for the most par 
certain privileges of commercial intercourse. 

The Latin peregrins 3 occupied an intermediate juridi 
cal position between the Roman citizens and peregrin 
proper. From the point of view of their origin, the 
Classification may be divided into three classes, the Latini veteres (o 
prisci\ the Latini coloniarii y and the Latini luniani. 



Judicial 
position of 
Latin 
peregrins. 



of Latin 
peregrins. 
The Latini 

vetercs. 



The Latini veteres were the inhabitants of Latium 

libertate, pro tutela." That is, in public actions it was permissible, as 
well as in actions by an assertor libertatis, and those on behalf of a 
ward. 

1 Gaius, iv. 104, 109. 

2 As to the foedus Cassianum, see infra, chap. xvi. 
3 Cf. Weiss, Droit inter, prive, vol. ii. pp. 38 seq. 






THE LATINI VETERES 241 

the members of the league of the thirty Latin towns 
(nomen latinum) with whom, at the time of the second 
consulship of Spurius Cassius, and after the battle of 
Lake Regillus, a treaty of alliance was concluded by 
Rome. At the end of the Latin war, in 338 B.C., 
this confederation was destroyed. Thus their history 
presents two phases, firstly, their alliance with Rome 
on a footing of equality, more or less, and secondly, 
their subjection. 

In the earlier epoch, special conventions secured them 
important civil rights, both public and private. These 
Latin i were not necessarily debarred from the ius suffragii, 
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. 1 They had access to the 
Roman legions. 2 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 
a 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, 
remaining a peregrina, made it impossible to adopt 
the modes of confarreatio or coemptio ; his children by 

1 Appian, De bell. civ. i. 23 ; Dion. Hal. viii. 72 : KCU /AT7r//,7rTo 

aru'wv TC /ecu 'E/aviKWj/ ocrovs e8vi>a,TO TrAetCTTOVs orl rrjv \f/rj<f>o- 
<o/Hav. Cf. Liv. xxv. 3. 

2 Liv. xl. 1 8 ; cf. C. Accarias, Precis de droit romain, ^ vols. (Paris, 
11879, etc.), vol. i. p. 93, note 2. 

8 Cf. Voigt, Das jus nat. vol. i. pp. 140 seq.\ J. Marquardt, Rb'mische 
Staatsverwaltung, vol. i. p. 24; Walter, op. cit. 227 ; E. Beaudouin, 
Le majus et le minus Latium (in Nouvelk Revue historique de droit 
franfais et 'etranger, 1879). It * s denied by C. A. von Vangerow 
(Uber die Latini Juniani. Eine rechtsgeschichtliche Abhandlung, Marburg, 
1833, pp. 1 8, 21), relying on the text of Gaius, i. 79, from which 
it appears the lex Minicia was applicable to them. But cf. Weiss, 0/. 
cit. vol. i. p. 35. 

4 Muirhead, op. cit. p. 107. 

Q 



242 THE LATINI COLONIARII 

her, however, were in his potestas. 1 They enjoyed 
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 extended 
were regarded as conquered peoples. They had no 
political rights, and no connubium, and at first no 
commercium. " Caeteris Latinis populis connubia com- 
merciaque et concilia inter se ademerunt." 3 But they 
soon acquired the ius commerciif which, henceforth 
characterizing the ius Latii, pointed to the distinction 
between the Latin peregrins and the ordinary peregrins. 
The Latini The Latini 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 a 
fine avoided payment by expatriating themselves, anc 
thirdly, the filiifamilias^ who by their father's orders 
enrolled their names in a colony. 5 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 debarrec 
from all political rights, and from connubiumf but 
enjoyed commercium? including testamentifactio ; hence, 

1 See Karlowa, R'om. Rechtsg. vol. ii. p. 70. 

2 Liv. xxxv. 7. 8 Liv. viii. 14 ; cf. also Liv. ix. 24, 43. 

4 Liv. xli. 8. Cf. Marquardt, op. cit. p. 53, note 5, who, relying on 
this passage of Livy, says : " Dies geht namentlich daraus hervor, dass 
ein Latiner seine Kinder einem Romer mancipiren konnte." 

5 Cic. Pro Caecina, 33 ; Gaius, i. 131 : " Olim quoque quo tempore 
populus Romanus in Latinas regiones colonias deducebat, qui iussu 
parentis in coloniam Latinam nomen dedissent, desinebant in potestate 
parentis esse, quia efficerentur alterius civitatis cives." 

6 Ulpian, v. 4. 7 Ibid. xix. 4. 



THE LATINI COLONIARII 243 

their position was somewhat above that of ordinary 
peregrins. Girard points out that their family relation- 
ships were regulated by their national laws, varying 
somewhat according to local legislations, and that, owing 
to their common origin, they bore a great resemblance 
to the Roman institutions. " Leurs rapports de 
famille sont re"gis par leur droit national, qui peut 
varier suivant les statuts locaux, mais qui, par suite de 
la communaut d'origine, prsente, sauf un caractere 
d'archa'isme plus prononce", une similitude a peu pres 
complete avec les institutions romaines." * 

It has, however, been maintained by Savigny 2 that Had the Latini 
the Latini coloniarii had no commercium. He bases his 
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, xnx) 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, 
and that they can inherit from Roman citizens?" 3 
Nothing is here said or even implied as to a new 
concession of ius commercii ; 4 the passage simply states 
that Sulla deprived Volaterra (as well as other municipia) 
of many of the rights and privileges of citizenship, and 
allowed them to retain only commercium, thus placing 

1 Man. elem. de dr. rom. p. 108. Ibid. p. 108, note I : "La 
table de Salpensa cc. 21, 22, 23 prouve par exemple un regime 
tres analogue a celui de Rome pour la patria potestas, la manus, le 
mancipium, 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 
discovered in 1851 ; cf. Corp. inscrip. Lat. 1963. 

2 Vermuchte Schriften^ vol. i. pp. 20-26 ; vol. iii. pp. 301, 302. 

8 Pro Caec. 35: " lubet enim eodem iure esse, quo fuermt 
Ariminenses, quos quis ignorat duodecim coloniarum fuisse, et a 
civibus Romanis hereditates capere potuisse ? " 

4 Cf. Weiss, op. cit. vol. ii. p. 40. 



244 THE LATINI IUNIANI 

them on the same basis as the twelve Latin colonies, to 
whose condition that of Ariminium was assimilated. 1 
Besides, it appears from Ulpian 2 that the Latini pos- 
sessed commercium : " Mancipatio locum habet inter 
cives Romanos et Latinos coloniarios, Latinosque 
iunianos eosque peregrines quibus commercium datum 
est." And, further, the right was enjoyed by the 
Latini luniani, whose position, as Gaius says, 3 was based 
on that of the Latini coloniarii. 

The Latini The Latini luniani obtained their name in the first 
pj ace f rom ^ ^ j un ^ a N or bana (c. 1 8 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 had 
given liberty in a manner outside the solemn forms of 
emancipation, or conditions imposed by the lex Aelia 
Sentia (A.D. 4). Their position resembled that of the 
Latini coloniarii, inasmuch as they had commercium 
and not the ius suffragii and connubium ; and also 
differed from it in that the Latini coloniarii had by their 
commercium certain privileges from which the Latin 
luniani were debarred. Thus the latter could not make 
wills or benefit under another's will, and could no 
be appointed guardians under a testament. 5 Hence 
having neither sui heredes (i.e. immediate lineal sue 
cessors) nor agnates (i.e. collateral relatives, as eventua 
successors), their property went to their patrons u iure 
quodammodo peculii," by the title of quasi peculium? 

1 As to the inequality of rights of Latin colonies, cf. Mommsen, 
Geschichte des rom. Mtinzwesens, pp. 182, 309, etc., where he deals 
with the relationship between independence and the right of 
coinage ; Marquardt, op. cit. vol. i. p. 55; Rudorff, op. cit, vol. 

p. 30 ; and the other works, previously referred to, on the Latini. 

2 xix. 4. 3 i. 22. 4 Ulpian, xix. 4. 
5 Gaius, i. 22, 24 ; Ulpian, xx. 8. 

Gaius, iii. 56 ; Just. Inst. iii. 7. 4. 



CHAPTER XI 

ROME AND FOREIGNERS. DOMICILE. NATIONALITY. 
NATURALIZATION 

TOWARDS the end of the Republic, and in the earlier Parts of the 
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 
civitates (apart from Rome), municipia, 1 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. 2 

It was possible at this time (as it is in our own age) The ties of 
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. 3 Individuals became 
cives by birth, adoption, emancipation, admission ; they 
became incolae by domicile. " Cives quidem origo, 

J Aulus Gellius (xvi. 13) thus defines mtmidpesi " Municipes . . . 
sunt cives Roman! 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." 

2 Cf. Savigny, System des heutigen romischen Rechts, 9 Bde. (Berlin, 
1840-1851), vol. viii. 351 seq. 

*&g. 1. i. 5. 



246 



ACQUISITION OF DOMICILE 



Double 
citizenship. 



Acquisition of 
domicile. 
Factum and 
animus. 



Married 
woman. 



manumissio, allectio, vel adoptio, incolas vero . . . 
domicilium facit." 1 The Roman jurisprudence did not 
recognize the capacity in an individual to be a elms or 
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." 2 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 Incola in another. " Cum te Byblium 
origine, incolam autem apud Berytios esse proponis, 
merito apud utrasque civitates muneribus fungi com- 
pelleris." 3 So that in the latter case a peregrin could 
avail himself of two different systems of law, viz. that 
of the city of which he is a civis , and that of the city 
in which he is merely domiciled. Hence conflicts of 
legislations would naturally arise ; and it will be con- 
sidered later whether such conflicts were adjusted by the 
ius originisy or by the lex domicilii, in those cases where 
the Roman law admitted the application of the peregrin 
law. 

An independent individual could acquire a domicile 
of choice by the actual fact of residence (factum), 
combined with the intention of permanent (or at least 
indefinite) residence (animus manendt). These two 
elements were insisted on by the Roman law, as much 
as they are in the modern legislations. Thus the Digest 
states : " Domicilium re et facto transfertur, non nuda 
contestatione ; sicut in his exigitur, qui negant se posse 
ad munera, ut incolas vocari." 4 

A married woman generally acquired the same 

' 4 .* 

1 Cod. Just. x. 30 (de incolis), 7. 

2 Pro Balbo, 1 1 ; cf. Pro Caec. 34. See the present writer's article 
on Zouche ("The Great Jurists of the World," in Journal of the 
Society of Comparative Legislation, London, April, 1 909, New Series, 
no. xx. pp. 281-304, at pp. 291-2). 

3 Just. Cod. x. 39 (de municipibus et originariis), I, (Imp. Antonius 
A. Silvano) ; cf. Ulpian, in Dig. 1. 4. 3. i. 

4 1. i (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." * 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. 3 Natural children assumed the domicile 
of their mother. 

A similar provision applied in the case of manumitted Emancipated 
slaves. At first they had the domicile of their patron ; 4 slaves ' 
and later they were at liberty to acquire a different 
one. 5 

An individual could have more than one domicile at Plurality of 
the same time, a fact which is also possible in modern dc 
times. 6 The law of nations regarding warfare has for a 
long time recognized a trade or war domicile, in addition 
to the domicile of origin ; though, it must be admitted, 
a < commercial domicile/ or a c forensic domicile ' does 
not fully amount to domicile in the proper sense of the 

1 Dig. 1. i. 38. 3. Cf. ibid. v. i (de iud.), 65 ; xxiii. 2 (de ritu 
nu pt') 5 : " deductione enim opus esse in mariti, non in 
uxoris domum, quasi in domicilium matrimonii." See also Just. Cod. 
x. 38 (de incolis), 9 ; ibid. xii. i (de dignit.), 13. 

2 Dig. 1. i (ad mun.), 22. i. 

3 Dig. \. i (ad mun.), 3, 4, 6 i, 17 1 1. 

4 Dig. 1. i (ad mun.), 6. 3 ; and ibid. 22, pr. 

5 Dig. 1. i (ad mun.), 22 2, 27, pr. ; 37 I. 

8 " I 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 " (In 
re Capdevielle (1864), 33 L.J., Ex. 306, 316. Cf. Somerville v. Somer- 
ville (1801), 5 Ves. 7493, 786 ; 5 R.R. 161, per Arden, M.R.). 



248 ABSENCE OF DOMICILE 

word. In any case, probably in Rome, as certainly in 
the view, say, of the British courts, no individual could 
have more than one domicile for the same purpose, that 
is, for the determination of one and the same class of 
rights. 1 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. 2 

NO domicile. In modern legislations it is not possible to be without 
a domicile altogether ; 3 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 and 
the acquisition of another (as, for example, when ser- 
vants and workmen go in search of new employers), in 
the case also of such travellers as, having abandoned 
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 difficulty of determining the 

1 " The facts and circumstances which might be deemed sufficient 
to establish a commercial domicile in time of war, and a matrimonial, 
or forensic, or political domicile in time of peace, might be such as, 
according to English law, would fail to establish a testamentary or 
principal domicile. * There is a wide difference,' it was observed in 
a judgment delivered in a recent case before the Judicial Committee 
of the Privy Council, ' in applying the law of domicile to contracts 
and to wills'" (Sir R. Phillimore, Commentaries upon International Law, 
4 vols. (London, 1885) sect. 54; and referring to Croker v. Marquis of 
Hertford (1844), 4 Moore, P.C. 339). 

2 Dig. 1. I (ad mun.), 5 : " Labeo indicat eum, qui pluribus locis 
ex aequo negotietur, nusquam domicilium habere ; quosdam autem 
dicere refert pluribus locis eum incolam esse aut domicilium habere ; 
quod verius est." 

Cf. Dig. 1. i (ad mun.), 6. 2 : " Viris prudentibus placuit duobus 
locis posse aliquem habere domicilium, si utrubique ita se instruxit, 
ut non ideo minus apud alteros se collocasse videatur." See also ibid. 
1. i. 27. 2 ; and Just. Cod. iii. 12 (de sepult.), 2,/r. 

3 E.g. as to the English tribunals, cf. Bell v. Kennedy (1868), L.R. 
i Sc. App. 307 ; Udny v. Udny (1869), L.R. i Sc. App. 441, 453, 
457, where the rule is clearly laid down by Hatherley, C., Lord 
Westbury, and Lord Chelmsford. 



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 
locis aequaliter neque hie 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- 
quam. 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." 1 

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- 01 
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." 2 At Athens, the child was a citizen if 
both the father and the mother were citizens. In Rome 
the theory of the ius sanguinis and the ius soli was 
applied with less stringency. With the Romans, legis- 
lation as well as politics possessed that elasticity which 
rendered rules and prescriptions adaptable to the varying 
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. i (ad mun.), 27. 2. 

2 Weiss, op. cit. vol. i. p. 33 (to which work this portion of the 
present chapter is indebted). 



250 



NATIONALITY OF ORIGIN 



notatur origo paterna, 
solum." l 



As to issue ex 
iustis nuptiis. 



Marriage of 
Roman with 
Latin or alien 
woman. 



Soldiers of the 
praetorian and 
urban cohorts. 



non origo propria et natale 



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. 

In the first case, when the child is born ex iustis nuptiis, 
of a marriage sanctioned by the civil law, he assumes his 
father's nationality, as Gaius says : " Semper connubium 
efBcit, ut qui nascitur patris conditioni accedat." 2 As a 
rule this nationality will be the same as that of the 
mother also, inasmuch as the iustae nuptiae usually 
obtains between Roman citizens. The exceptional cases 
occur where the conferring of the connubium to Latins, 
and even to peregrins proper (though much more 
rarely), renders their union a regular and legitimate 
marriage, iustae nuptiae. 

If a Roman enter into legal marriage with a Latin or 
alien woman, the issue will, according to the general 
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 his 
son is born a Roman citizen and subject to his power." 

The right was generally conceded to soldiers of the 
praetorian and urban cohorts, after the expiration of 
their service, to enter into a iustum matrimonium with 
Latin or peregrin women. "... Veterans often obtain 
by imperial constitution a power of civil wedlock with 
the first Latin or alien woman they take to wife after 
the discharge from service, and the children of such 

1 J. de Cujas (Cujacius), Observationum et emcndatimum libri xxviii. 
(Coloniae Agrippinae, 1598). 

2 i. 80 ; cf. Ulpian, v. 8 : " Connubio interveniente, liberi semper 
patrem sequuntur"; Dig. i. 5 (de statu hominum), 19: "Cum 
legitimae nuptiae factae sunt, patrem liberi sequuntur." 

3 i. 76 : "... Si civis Romanus peregrinam cum qua ei connubium 
est, uxorem duxerit . . . iustum matrimonium contrahitur ; et tune ex 
his qui nascitur, civis Romanus est et in potestate patris erit." Cf. 
Gaius, i. 56, which is to the same effect. 



NATIONALITY OF ORIGIN 251 

marriages are born citizens of Rome and subject to 
paternal power." l In such cases a formula to the 
following effect was commonly found in the official 
permission given to them : " Nomina speculatorum, 
Qui in praetorio meo militaverunt . . . subieci ; quibus 
fortiter 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 
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, u 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." 3 

In the second case, if a child is born of any union AS to issue of 
which is not ius foe nuptiae, the rule is that he assumes 
his mother's nationality, " partus ventrem sequitur." 
<c . . . 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." 

2 Corp.inscrip.Lat. t. iii. no. 10 ; t. ix. nos. 261, 2995. On military 
and kindred concessions in general, see Renier, op. cit. and Piccioni, 
op. ctf. 

8 i. 77 : " Item si civis Romana peregrino cum quo ei connubium 
est, 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, 
iustus patris filius est." 



252 NATIONALITY OF ORIGIN 

between parents, their offspring follows the mother's 
status by the law of nations." 1 And Cicero says that if 
a 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. 2 
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. 3 

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 quern habere non licet." 4 
The principle According to the general principle of the law of 
nations, viz. c partus ventrem sequitur,' it would follow 
^at 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 should 
also be of that condition. 5 This lex 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 woman 

1 Gaius, i. 78 : "... Ex eis inter quos non est connubium, qui 
nascitur iure gentium matris conditioni accedit." Similarly Ulpian 
v. 8 : " Non interveniente connubio matris conditioni accedunt." 

2 Topic. 4 : " Si mulier, cum fuisset nupta cum eo quicum connubium 
non esset, nuntium remisit, quoniam qui nati sunt patrem non 
sequuntur." 

3 Dig. i. 5 (de statu hominum), 24 : " Lex naturae haec est, ut qui 
nascitur sine legitimo matrimonio, matrem sequatur, nisi lex specialis 
aliud inducit." 

4 Dig. i. 5 (de statu hominum), 23. 

5 Gaius, i. 78 : "... Qua lege effectum est ut si matrimonium inter 
cives Romanes peregrinosque non interveniente connubio contrahatur 
is qui nascitur peregrin! parentis conditionem sequatur." (According 
to Krueger's restoration of the text.) Cf. Ulpian, v. 8. 



NATIONALITY OF ORIGIN 253 

and of a Latinus coloniarius or of a Latinus lunianus 
was probably Roman at birth in conformity with the 
general rule. " Cest tout au moins ce qui ressort, 
croyons-nous, en de"pit d'une lacune et de quelques 
obscurits, des 79 et s. de Gaius." l 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) : 2 " By the law of nations the offspring 
of a 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." u 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 lex 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 amendment - 
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, op. cit. vol. i. p. 35. 

2 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 
nationes et gentes, sed etiam qui Latini nominantur ; sed ad alios 
Latinos pertinet, qui proprios populos propriasque civitates habebant 
et erant peregrinorum numero " (Mommsen's restoration in the 
earlier part of the section), i. 80 : " Eadem ratione ex contrario ex 
Latino et cive Romana, sive ex lege Aelia Sentia sive aliter contractum 
fuerit matrimonium, civis Romanus nascitur . . . sed hoc iure utimur 
ex senatusconsulto, quo auctore divo Hadriano significatur, ut quo- 
que modo ex Latino et cive Romana natus civis Romanus nascatur." 
i. 8 1 : "His convenienter etiam illud senatusconsultum divo 
Hadriano auctore significavit, ut (qui) ex Latino et peregrina, item 
contra (qui) ex peregrine et Latina nascitur, is matris condicionem 
sequatur." 



254 



NATURALIZATION IN ROME 



alien with a Latin freedwoman, follows his mother's 
condition." 

issue of union A special case of the second category is where the child 
womanaad a was issue of the cohabitation (contubernium) of a Roman 
woman and a slave. If the general rule c 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. 1 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. 2 



Naturaiiza- 
tion in Rome, 



Conquered 
nations. 



Municipia. 



As in Greece, citizenship was granted by Rome 
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. 

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. 

It seems that the earliest municipia received full 
citizenship, * civitas cum suffragio,' the political as well 

1 Paulus, Sententiae,n. 21, i, 13, 17. Cf. Tacit. Ann. xii. 53. 

2 Gaius, i. 82, 83, 84 ; cf. Just. Cod. vii. 24 ; Just. Inst. iii. 12. i. 
For other less important provisions on this subject, see Gaius, i. 85, 86 ; 
and cf. Weiss, op. cit. vol. i. p. 37. 



NATURALIZATION IN ROME 255 

as the private privileges of the ius civile* Later munidpia 
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. 2 Among the first examples of this 
policy was Caere in Etruria. 3 But by the sixth century 
the munidpia sine suffragio had almost disappeared. 

In 90 B.C. the lex lulia* granted citizenship to all the Allies and 
Latin allies who had remained faithful to Rome, pro- 
vided they adopted the Roman jurisprudence ; 6 and in 
the following year a plebiscite, the lex Papiria Plautia, Lex 
carried by Carbo and M. Plautius Silvanus, extended Pla 
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 
civitas required the prior fulfilment of certain conditions, 
e.g. to be a 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. 6 

In the later period of the Republic grants of citizen- Later period of 
ship became still more frequent. The privilege w 
: given to the inhabitants of Gallia Transpadana, and to g rants - 
'the Veneti 7 (49 B.C.), to the people of Gades, of Sicily, 
and other countries. Sometimes it was capriciously 
given or sold to entire peoples, "data cunctis promis- 
cue civitas romana." 8 

1 Liv. vi. 26 ; viii. 14; Cic. Pro Plancto, 8. 

2 Cf. Weiss, op. cit. vol i. p. 286. 

3 Aul. Gell. xvi. 13:" Primes autem municipes sine suffragii iure 
Caerites esse factos accipimus concessumque illis, ut civitatis Romanae 
honorem quidem caperent. ..." 

4 On the political situation of the Italian towns after the lex lulia, 
;ee Marquardt, op. cit. vol. i. pp. 58 seq. 

5 Cic. Pro Balbo, 8. 

6 Pro Archia, 4 : " Data est civitas Silvani lege et Carbonis : si qui 
"oederatis civitatibus adscript! fuissent, si turn, cum lex ferebatur, in 

talia domicilium habuissent et si sexaginta diebus apud praetorem 
:ssent professi." 

7 Dion Cassius, xli. 36. 8 Aurel. Viet. De Caesaribus, 16. 






256 



NATURALIZATION IN ROME 



Lavish 



caracaiia's 
on< 



Similarly, the less comprehensive but important privi- 
le g es of Latinity (Latinitas, or Latium) were lavishly 
early 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 

Finally, the growth of Roman cosmopolitanism, the 
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. 4 
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 had 
been to give the Roman franchise to the Latins and the 
Socii). " L'esprit fiscal etait devenu le serviteur incon- 
scient du progres. Un despote avait realise paisiblement 
et avec plus d'etendue la pensee democratique qui avait 
valu une mort violente aux deux Gracchus et au tribun 
Drusus." 5 

It must be noted, in view of the seemingly lavish and 
f careless bestowal of these rights, that at no time did the 
Romans consider the gift of small consequence. Even 
during their most universalizing tendencies they care- 
fully discriminated between the citizen and the non- 
citizen, between the individuals who had duly acquired 
citizenship, and those who had not done so, or those who 

l Hist. iii. 55. 

2 Spartian, Had. 21. 3 Cf. Plin. Hist. nat. iii. 4. 

4 Dig. i. 5, 17 : "In orbe Romano qui sunt ex constitutione im- 
peratoris Antonini cives Romani effecti sunt." Cf. Dion Cass. Ixxvii. 9. 

5 Accarias, op. tit. vol. i. p. 94. 



Roman 






LATIN PEREGRINS' CITIZENSHIP 257 

had fraudulently exercised its rights. Thus Claudius 1 
prohibited foreigners from adopting Roman names, 
especially the nomina gentilicia ; and those who falsely 
pretended 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- ^quK 5 
ship, the Latin peregrins could obtain it in various citizenship, 
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 : 3 " Latins 
obtain Roman citizenship in the following ways : by 
grant of the emperor, by children, by iteration (or 
remanumission), by military service, by a ship, by 
a building, by the trade of baking ; and, besides, 
in virtue of a senatusconsult, a woman obtains it 
iby bearing three children." (" Latini ius Quiritium 
consequuntur his modis : beneficio principal}, liberis, 
iteratione, militia, nave, aedificio, pistrino ; praeterea 
ex senatusconsulto, mulier quae sit ter enixa.") 

Eeneficio principali* This method applied more to 
Latini coloniarii than to Latini luniani (that is, irre- 
*ularly manumitted slaves, or those emancipated by a 
naster deprived of quiritary property). 

In the case of the Latini coloniarii succession de- 
ll ^olved according to the civil law ; but as to the 
l^atini luniani, naturalized by imperial grant, citizen- 
Khip became extinct with their death, so that their 
3 property went to their patrons, iure peculii y unless the 
fatter had consented to their previous naturalization. 

1 Sueton. Claud. 25 : " Peregrinae conditionis homines vetuit usur- 
I tare Romana nomina dumtaxat gentilicia. Civitatem Romanam 
* surpantes in campo Esquilino securi percussit." 

2 In Gaius, i. 32 b, for example, civitas is used in reference to Latins. 

3 Reg. iii. I. Cf. Gaius, i. 28. 

4 Ulpian, iii. 2. 

R 



258 LATIN PEREGRINS' CITIZENSHIP 

" Sometimes a freedman," says Gaius, 1 u who has 
enjoyed the full citizenship dies in the condition of a 
Latinus lunianus : as, for example, a Latinus lunianus 
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 lunianus 
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 lunianus, having no children who can 
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 lex Aelia Sentia or the senatusconsult 2 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 knowledge 
or consent of his patron, on subsequently acquiring 
the title to which the lex Aelia Sentia or the senatus- 
consult, if he had remained a Latinus iunianus, would 
have annexed the rights of citizenship, should be 
deemed to have originally acquired citizenship, by the 
title of the lex Aelia Sentia or the senatusconsult." 5 

1 iii. 72 : " Aliquando tamen civis Romanus libertus tamquam 
Latinus moritur, velut si Latinus salvo iure patroni ab imperatore ius 
Quiritium consecutus fuerit. nam, ut divus Traianus constituit, si 
Latinus, invito vel ignorante patrono ius Quiritium ab imperatore 
consecutus sit [quibus casibus] dum vivit iste libertus, ceteris civibus 
Romanis libertis similis est et iustos liberos procreat, moritur autern 
Latini iure, nee ei liberi eius heredes esse possunt ; et in hoc tantum 
habet testamenti factionem, ad patronum heredem instituat eique, si 
heres esse noluerit, alium substituere possit." 

2 The senatusconsult passed in the reign of Vespasian. Cf. i. 31. 
3 "Et quia hac constitutione videbatur effectum, ut ne umquam 



HOW LATINS BECAME CITIZENS 259 

Liberis. Junian Latins could obtain the status of Li 
Romans by the procedure * erroris causae probatio,' 
which Gaius 1 attributes to the lex Aelia Sentia y and 
Ulpian 2 to the lex lunia Norbana. It was incumbent 
on the Junian Latin to prove that he had married 
" uxorem liberorum quaerendorum causa ducere " 
a 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. 

Iteration i.e. by remanumission, which, of course, also 
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 in bonis (i.e. in 
bonitary or natural ownership as distinguished from 
statutory, civil, or quiritary ownership), or effected 
by any of the solemn modes vindicta (fictitious vin- 
dication), censu (registry by the censor), or testamento 
(testamentary disposition). 3 

By the following methods every Latin could obtain HOW an Latins 
the franchise: SSSi""" 

Militia. In virtue of the lex Visellia, introduced by Militia. 
1L. Visellius Varro in the time of Claudius, a Latin 
was awarded citizenship if he had served six years in 

isti homines tamquam cives Romani morerentur, quamvis eo iure 

"postea usi essent, quo vel ex lege Aelia Sentia vel ex senatusconsulto 

:ives Romani essent, divus Hadrianus iniquitate rei motus auctor fuit 

;enatusconsulti faciendi, ut qui ignorante vel recusante patrono ab 

mperatore ius Quiritium consecuti essent, si eo iure postea usi essent, 

}uo ex lege Aelia Sentia vel ex senatusconsulto, si Latini mansissent, 

:ivitatem Romanam consequerentur, proinde ipsi haberentur ac si 

ege Aelia Sentia vel senatusconsulto ad civitatem Romanam per- 

'enissent." 

1 i. 29. 2 Reg. iii. 3. 8 Cf. Gaius, i. 35 ; Ulpian, iii. 4. 



26o 



ACQUISITION OF CITIZENSHIP 



Nave. 



Aediftcio. 



Pistrino. 



Mulier ter 
enixa. 



Magistratibus 
gestis. 



How ordinary 
peregrins 
acquired 
citizenship. 



the Roman guards ; later, this term was by a senatus- 
consult reduced to three years. 1 

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. 2 

AedificiO) when a Latin possessed 20,000 sesterces, 
and devoted half to building a house in Rome or its 
suburbs. 3 

Pistrino by building a mill and a bakehouse, and 
supplying Rome with their produce for three years.* 

Mulier ter enixa. By a senatusconsultum, a Latin 
mother who had given birth to three children acquired 
the franchise. 5 

Magistratibus gestis. By the lex lulia, Latins who 
had exercised magistracies in their own communities 
( c magistratibus in sua civitate gestis ') acquired the 
rights of citizenship. 6 

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,' and 
secondly, by an act of a properly constituted Roman 
authority. 

1 Ulpian, iii. 5 : " Militia ius Quiritium accipit Latinus, (si) inter 
vigiles Romae sex annis militaverit, ex lege Visellia. Praeterea ex 
senatusconsulto concessum est ei ut, si triennio inter vigiles mili- 
taverit, ius Quiritium consequatur." Cf. the statute, 13 Geo. II. 
c. 3, by which it was provided that every foreign seaman who in 
time of war had served for two years on board an English vessel, as 
well as all foreign protestants having served two years in a military 
capacity in the American colonies, were naturalized. 

2 Ulpian, iii. 6 : " nave Latinus civitatem Romanam accipit, si 
non minorem quam decem milium modiorum navem fabricaverit, et 
Romam sex annis frumentum portaverit ex edicto divi Claudii."- 
Cf. the English law by which all foreign protestants who had been 
engaged for three years in whale-fishing were naturalized, except as to 
the capacity for holding public office. 

3 Gaius, i. 33 ; Ulpian, iii. i. 4 Gaius, i. 34 ; Ulpian, iii. i. 

5 Ulpian, iii. i. 6 Gaius, i. 95. 



BY ORDINARY PEREGRINS 261 

Erroris causae probatio. This procedure dates from Erroris causae 
the lex Aelia Sentia (4 A.D.), according to Ulpian, 1/>r ^ a 
though Gaius 2 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 c iustae 
nuptiae,' and thus acquire citizenship for his wife and 
children. 

This provision was not extended, however, to peregrini 
dediticii. 

Act of Roman authority. At the time of the kings, By Act of 
the Roman people voted as to the admission of new 
citizens proposed by the king. After the reforms of 
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, Re P ubhc - 
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. 4 

On certain occasions, however, this power was dele- DeiegationW 
gated to magistrates, as, for example, to the triumvirs in authom y- 
the founding of colonies ('tresviri coloniae deducendae'), 
and also, at times, to the military commanders. Thus, 
Q. Fulvius Nobilior, founder of the colonies of 
Pisaurum and Potentia, inscribed in one of them 
(184 B.C.) in order to confer citizenship on him, the 

Mii. 4. 2 i. 67. 

Cic. Pro Balboj 24; Liv. viii. i 
leius Paterculus, ii. 16. 

4 Cf. Weiss, op. cit. vol i. pp. 290, 291, who denies it in each case. 



3 Cic. Pro Balboj 24; Liv. viii. 17, 21 ; xxiii. 31 ; xxvii. 5 ; 
Velleius Paterculus, ii. 16. 



262 ACQUISITION OF CITIZENSHIP 

poet Ennius, a native of Calabria. 1 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. 2 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 ii, quos Cn. Pompeius de consilii sententia singillatim 
civitate donaverit." 3 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 family 
name (nomen gentilicium)* Again, later when sent 
against Mithridates he conferred citizenship on the 
historian Theophanes of Lesbos. Cicero mentions other 
cases of generals who exercised the same functions, but 
these go back to the time of the Social War. 5 When 
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 in 
the case of the people of Gades. 6 

under the Under the Empire, the will of the emperors was 

Empire. all-powerful in this as in other respects. They became 

practically the sole legislative organ. By virtue of the 

1 Cic. Brut. 20, 79. 

2 Cic. Pro Balbo, 20, 2 1 : ". . . qua lege Saturninus C. Mario tulerat, 
ut in singulas colonias ternos cives Romanes facere posset. . . ." 
Cf. Plut. Mar. 28. 

3 Cic. Pro Balboy 8. 4 Cic. In Verr. ii. 8, 42 ; iv. 1 1, 22. 
b Pro Balbo, 22 ; cf. Pro Archly 10. 6 Dion Cass. xli. 24. 



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. 1 

From time to time additional methods were adopted Further means 
for securing the admission of peregrins. Thus by ftStftJSBL 10 
disposition of the lex 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 lex Servilia (in B.C.). 

Women, equally with men, could in certain cases Grants to 
receive citizenship, apart from marriage relationships. won 
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. 3 

Emancipated dediticii (that is, those who had been Emancipated 
slaves and had taken up arms against Rome, and had debarred, 
been defeated and surrendered 4 ) were entirely debarred 
from the privilege of Roman citizenship, as well as 
from Latinity, " nunquam aut cives Romanos aut 
Latinos fieri dicemus. . . ." 5 

Certain classes of foreigners were sometimes subject Special rules as 
to special regulations. Thus, the Gauls were admitted 
to citizenship on the condition (apart from the other 
necessary qualifications) that they renounced their 
national religion, the druidical worship ; and the 

1 See supra, p. 232, and infra, chap. xxiv. ad Jin. 

2 As to the lex Acilia,tf. Girard, Textes de droitromam (Paris, 1890), 
pp. 40, 41. 

8 Pro 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 
esset, tulisse." Cf. Orelli, op. cit. no. 3038 : "Valeria C. L. Lycisca || 
XII. annorum nata || Romam veni || quae mihi iura dedit civis. 
dedit et || mihi vivae . quo inferrer . turn || cum parvola facta 
ceinis." 

4 Cf. Gaius, i. 14, 15, 1 6. 5 Gaius, i. 15. Cf. Ulpian, i. 14. 



26 4 



EFFECT OF NATURALIZATION 



Records. 



Effect of 



Full 
citizenship. 



Egyptians, only after previously being enrolled citizens 
of Alexandria. 1 

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. 2 

The naturalized alien was placed, with regard to both 
lon * private and public rights, practically on the same footing 
as natural-born citizens. He was capable of the same 
regular marriage (iustae nuptiae) as that of the Romans, 
of quiritary ownership (dominium ex iure Quiritium\ 
the right to vote in the comitia (ins suffragii), 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." 3 And, again, speaking of the 
degeneration of Rome in the year 22 A.D., Tacitus 

1 Plin. Epist. x. 6 : " Sed cum annos eius et censum, sicut prae- 
ceperas, ederem, admonitus sum a peritoribus debuisse me ante ei 
Alexandrinam civitatem impetrare, deinde Romanam, quoniam 
esset Aegyptius." 

2 Liv. viii. n : " Equitibus Campanis civitas Romana data, monu- 
mentoque ut esset, aeneam tabulam in aede Castoris Romae fixerunt. 

3 Ann. xi. 24 : " Et ne vetera scrutemur, Etruria Lucaniaque et 
omni Italia in senatum accitos." 



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." l 

Even those who had obtained citizenship without the citizenship 
political privileges (cimtas sine suffragio) shared many ^SJS rights . 
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 (jus provocationis), the power of escaping 
from penalties inflicted upon them by voluntary exile 
(jus exsilifyy and they also received the protection of the 
lex Portia, which enacted that a Roman citizen must 
not be beaten to death, and that of the lex 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 p^S 
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, 2 and especially so in certificates conferring 
citizenship on peregrin soldiers at the expiration of their 
term of service. 3 

The present chapter has shown that certain important 
elements of private international law were clearly recog- 
nized by Rome, and that these elements, moreover, 
furnished the fundamental basis of the law and practice 
<of modern States with regard to questions of domicile, 
nationality, and naturalization. We have seen that the 

1 Ann. iii. 55:" Simul novi homines e municipiis et coloniis atque 
p etiam provinciis in senatum crebro adsumpti." 

2 Cf. Plin. Epist. x. 6 (C. Plinius Traiano Imperatori) : " Ago 
gratias, domine, quod et ius Quiritium libertis necessariae mihi 

tfeminae et civitatem Romanam Harpocrati, iatraliptae meo, sine 
mnora indulsisti." 

3 Cf. Orelli, op. dt. vol. i. no. 2652; Renier, op. tit. 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, 

pontifex maxim(us), trib(unicia) pot(estate) XII, imp(erator) XXVII, 

pater patriae, censor, co(n)s(ul) V, 
Trierarchis et remigibus, qui militave- 

runt in classe, quae est Miseni sub Ti. 

lulio, Aug(usti) lib(erto), optato, et sunt dimissi 

honesta missione, quorum nomina sub- 

scripta sunt, ipsis, liberis posterisque 

eorum civitatem dedit, et connubium 

cum uxoribus, quas tune habuissent 

cum est civitas iis data, aut, si qui 

caelibes essent, cum iis quas postea 

duxissent, dum taxat singuli singulas, . . ." 

. . etc. 



CHAPTER XII 

ROME AND FOREIGNERS. JURISDICTION. PERSONAL 
AND TERRITORIAL LAW. CONFLICTS OF LAWS 

THE development and the applicability in general of the Gradual 
ius gentium and the legal position of the different jJ^J 
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 recuperator es^ 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 
the time of Trajan (98-117 A.D.). In the older laws 

1 On recuperatores, see infra, chap. xvii. adfn. 



268 THE PEREGRIN PRAETOR 

the alien praetor is more fully designated c praetor qui 
inter peregrines (as also inter cives et peregrines) ius 
dicit,' and the urban praetor is likewise described as 
' praetor qui inter cives ius dicit.' 
Origin of The date of the origin of the praetor peregrinus 1 is 

not certain ; but it would seem from a passage in 
Lydus 2 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." ; 

Appointment Like the praetor urbanus, whose province became 

peregrin 410 ** practically confined to affairs between citizens, the 

praetor. 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. 4 He enjoyed 

the same rank as the urban praetor, save that the latter 

had the prior right to discharge the functions of consuls 

1 On the praetor peregrinus and his influence on the development 
of the ius gentium, see F. C. Conradi, De praetore peregrino ; Rodiere, 
loc. dt. ; C. de Boeck, Le preteur peregrin (Paris, 1882); F. Faure, 
Essai historique sur le preteur romain (Paris, 1878), pp. 92 seq. 

2 De magistratibus populi romani libri tres. 
B Dig. i. 2. 2. 28. 

4 Liv. xxii. 35; xxiii. 30; xxxii. 28. Cf. Mommsen, Rom. 
Staafsr. vol. ii. pt. i. pp. 208 seq. 



HIS JURISDICTION 269 

in their absence, 1 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 hTm. n 
of Roman legions was occasionally entrusted to him ; 2 
and, as Livy tells us, he was sometimes engaged in the 
raising of troops, 8 in the equipping of ships, 4 in the 
quelling of servile insurrections. 6 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. 6 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; 7 in 172 B.C. he took charge of the 
installation of the son of the king of Cappadocia, 
Ariarathes, and of his suite ; 8 in 179 B.C. he conveyed 
to the Ligurians the ambiguous pronouncement of the 
senate in reply to their request for perpetual peace ; 9 
he was sent to Numidia to bring Jugurtha back to 
Rome. 10 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, 11 and 
decided as to the expulsion of foreigners whose presence 
was deemed to be detrimental to public safety. 12 On 

1 Cf. Girard, Histoire de F organisation judiciaire des Remains (Paris, 
1901), t. i. p. 210, n. 3. 

2 Liv. xxi. 26. 43 ; xxvii. 7 ; xxviii. 10. 

3 Liv. xl. 18 ; xlii. 27 ; xliii. 9. 4 Liv. xxvii. 22 ; xlii. 27. 

5 Liv. xxxiii. 26. 6 Cic. In Verrem, ii. i. 50. 7 Liv. xxxix. 54. 

8 Liv. xlii. 19. 9 Liv. xl. 18. 10 Sail. lug. 32. n Liv. xl. 37 seq. 

12 Liv. xxxix. 3. Cf. Aul. Gell. vii. 19; xv. n : "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." 



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, iam turn multitudine alienigenarum urbem 
onerante." 1 

The jurisdictions of 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 praetor peregrinus extended to ordinary 
peregrins, as well as to Latins or munidpes when in 
Rome. When the Latin peregrins remained in their 
own towns they were amenable to their local tribunals, 
or to the praefecti iure dicundo appointed by the 
praetor urbanus to administer civil justice in a certain 
number of towns. 2 

It was possible to proceed before the praetor pere- 
grinus by the sacramentum (which was at first an actual 
stake or deposit liable to forfeiture, afterwards security 
offered by the litigants). Thus Gaius in his section on 
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. <c 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 urbanum 
vel peregrinum (praetorem)." 3 On this passage mainly 
Mommsen bases his conclusion that peregrins had the 
right to resort to the legls actiones in general : " Sacra- 
mento actum esse etiam apud praetorem peregrinum, id 
est lege agere potuisse peregrinos quoque confirmat 
Gaius." 4 It is questionable, however, whether the 

1 Liv. xxxix. 3. 2 Cf. Mommsen, Rom. Staatsr. vol. ii. p. 218, 

3 Gaius, iv. 3 1 (certain minor restorations of text have been made 
in this passage). 

4 In his commentary on Corp. inscrip. Lat. vol. i. p. 66, no. 23. 



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, 
" he>itiers des juges internationaux de la Rome 
primitive. " l 

He applied the provisions of the ius gentium ; and The praetor 
by means of his edicts gradually expanded this c gentile ' 
law till it attained to a fully-developed system, which, 
constantly enlarging its applicability and furnishing 
equitable solutions ultimately assumed a predominating 
position. As a 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 
" Stranger aux rapports des citoyens entre eux, puis 
devenu le droit commun a tous les hommes libres qui 
ont acces aux tribunaux romains, envahit le domaine 
originairement rgi par le jus civile, engage avec lui un 
combat victorieux, le supplante et 1'absorbe, et constitue, 
sous le nom de jus romanum ce droit, a la fois humain 
et universel, qui a travers les siecles." 2 

But under the emperors, with their subtle and Decline of 
rigorous invasions into established institutions, with praJto^und 
their all-transforming policy, the importance of the the Em P ire - 
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, 
it has practically sunk into insignificance ; so that what 
was formerly a magistracy of great power had (to use 
an expression of Boethius) declined to an empty name, 
" atque praefectura magna olim potestas, nunc inane 
nomen. . . . " 3 

In the application of the peregrin law in the classical 

1 Weiss, op. cit. vol. v. p. 29. 

2 C. de Boeck, op. cit. p. 210. 8 De consolatione, iii. 4. 



272 PEREGRIN LAW 

Application of 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 regime, but also people who 
were in alliance with Rome liberi et foe derail and pre- 
served their autonomy, and who therefore were, in regard 
to the Romans, aliens (extern?). As Proculus says in 
the Digest : " non dubito quin foederati et liberi 
nobis externi sint." x Again, sometimes communities 
without being strictly liberi were permitted, in virtue 
of a formal concession by the lex 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, 2 
a district in the south-east of Thessaly. From about 
the same date also the Chalcidians, 3 somewhat later 
(167 B.C.) the Macedonians, 4 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 Roman 
generals who had secured their submission. 5 As to the 
Gauls, amongst the civitates foederatae were the Carnuti, 
the Aedui, the Remi, the Lingones, the Vocontii ; and 
amongst the civitates liberae were the Santones, the 
Turones, the Bituriges Cubi and Bituriges Vivisci (or 

l Dlg. xlix. 15,/r. 

2 Liv. xxxiii. 32. 3 Liv. xxxv. 46. 

4 Liv. xlv. 29 : " omnium primum liberos esse iubere Macedonas, 
habentes urbes easdem agrosque, utentes legibus suis, annuos creantes 
magistratus." 

5 For a full account of this organization, see Marquardt, Organisa- 
tion des fdmmhen Reichs (in Romische Staatsverwaltung). 



PEREGRIN LAW 273 

Ubisci), the Arverni, the Viducassi, etc. 1 And to these 
must be added the numerous cities which received the 
ius latii, thus forming a privileged class amongst foreign 
cities. The Roman colonies are to be excepted from 
this category, as the Roman law was almost entirely 
applied to them. 2 

It will be evident from these considerations that there Peregrin law 
were bound to be different systems and rules in force f a n ^_ oman 
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 
differences, greater or lesser, between the Roman law 
and peregrin law, 3 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. 4 Paternal authority was no- 
where 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 
obtained. There were differences in the methods of 
adoption and succession. Conceptions of property and 
possession varied considerably. The Roman distinction 
between dominium and in bonis was hardly anywhere 
adopted. 5 The provisions relating to wills varied from 
place to place. 6 There were differences in contracts, in 
the conception of their binding force, in the obligations 
imposed by them. Some contractual obligations were 
enforced in peregrin countries, and not admitted in 
Rome. And so on with other differences in the several 
branches of private jurisprudence. 

1 For more detailed information, see Klipffel, fitude sur le regime 
municipal gallo-romain (in Nouvelle Revue his tori que de droit fraitfais el 
efranger, Paris, 1878 and 1879, PP- 2 ^3 "?) 

2 Cf. Chenon, be. cit. p. 216. 3 Cf. Chenon, op. at. p. 217. 

4 Aul. Cell. iv. 4. 5 Gaius, ii. 40. 6 Ulpian, xx. 4. 

S 



274 



PEREGRIN LAW 



Law applied 
to peregrins 
resident in 
Rome. 



Peregrin law 
in Rome. 



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 ius civile, and those conferred on them 
by the ius 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 this 
special system there could scarcely arise conflicts of 
laws. But Laurent goes too far when he says in his 
usual manner of rapid generalization : u Les Remains, 
pas plus que les Grecs, n'avaient aucune idee d'un 
droit personnel. . . . Quant au droit des gens, c'etait un 
droit commun a 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." 2 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 laws, 
aliens were enabled to contract marriages, to exercise 
paternal and dominical authority, to avail themselves of 
the rights of adoption, tutelage, of testamentary rights, 
intestate succession, and so forth. " En un mot, ils 
avaient eux aussi, leur jus civile peregrin, correspondant 
au jus civile remain." 3 As Gaius says in a passage 
where, however, a wider application is intended, the 
different people were governed partly by their own 

1 See supra, pp. 233 seq. 

2 Le droit civil international, vol. i. 102, 104. 
3 Chenon, loc. cit. p. 225. 



POSSIBLE CONFLICTS OF LAW 275 

particular laws, partly by those common to all men : 
u Omnes populi, qui legibus et moribus reguntur, 
partim suo proprio, partim communi omnium hominum 
iure utuntur." And Justinian repeating the statement 
adds, in order to be more explicit, that civil law derives 
its name from the State where it prevails, as, for example, 
the civil law of Athens, it being quite correct thus to 
designate Solon's or Draco's legislation. 2 

We therefore get a peregrin civil law existing side by Possible 
side with the Roman civil law. The two systems could JUJ2J the 
regulate common institutions ; and, if it may be so peregrin law 

j , ,. r i r i and the 

expressed, the totality or their points or coincidence Roman, 
represents the sphere of the ius gentium. But as there 
was not, and under the circumstances there could not 
possibly have been, a perfect analogy between the two 
systems and corresponding provisions relating to all 
departments of civic and private life, a conflict of legis- 
lations would necessarily occur when there arose such 
i dispute, as to matters recognized in the Roman civil 
((law only, or exclusively in the peregrin civil law, that 
:he existing ius gentium was incapable of application. 
Thus we find in Rome questions of the nature of private 
nternational law, 3 and deliberate attempts to provide a 
iolution to the difficulties involved. 

In some cases conflicts were obviated by special HOW conflicts 
>rovisions in anticipation of the possibility of such 
lifficulties arising, as, for example, when a treaty of 
lliance was entered into with Rome, or when the lex 
lata was imposed by the Roman conqueror ; so that in 
ome cases more or less of the native law of the peoples 
oncerned was swept away, in other cases it was less 
laborately modified or supplemented by dispositions 
!>t>f the Roman jurisprudence. Occasionally provincial 

l Dig. i. i. 9. 

2 Inst. i. 2. 2 : " Sed ius quidem civile ex unaquaque civitate 
ppellatur, veluti Atheniensium ; nam si quis velit Solonis vel 
>raconis leges appellare ius civile Atheniensium, non erraverit." 

8 Cf. Chenon, he. 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 : x "... 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 dialpevtv quod de duobus 
generibus edicendum putavi, quorum unum est pro- 
vinciale, in quo est de rationibus civitatum, de acre 
alieno, de usura, de syngraphis, in eodem omnia de 
publicanis. . . ." Again, Cicero relates, with regard to 
the Sicilian towns, for instance, that if a dispute arose 
between two citizens of the same town, it was triec 
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 betweei 
a private individual and an entire community, tl 
senate of a third city was to be chosen as judges 
arbitrators, in case the senates of the towns in questioi 
are objected to. In any action by a Roman citizen again* 
a Sicilian, the judge was to be a Sicilian ; if the action 
is 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 
iure sunt, ut, quod civis cum cive agat, domi certet suis 
legibus ; quod Siculus cum Siculo non eiusdem civitatis, 
ut de eo praetor iudices ex P. Rupilii decreto, quod is 
de decem legatorum sententia statuit, quam legem illi 
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 iudex datur; 

1 Ad Attic, vi. i. 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) 
overthrown under the praetorship of Verres. 

Again, in the case of aliens in Rome, the ius gentium, The 
where found inadequate or inoperative, was frequently 
supplemented or replaced by the lex peregrinorum, the 
law of origin (ius originis) of the peregrins in question. 
This concession to foreigners was due to the desire on 
the part of the Romans to grant them justice and equit- 
able treatment, as well as to political reasons. It was 
often bestowed on people who were subjugated and 
brought 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 
omni acre alieno liberatae, multae valde levatae sunt ; 
omnes suis legibus et iudiciis usae avrovojULiav adeptae, 
revixerunt " ; 2 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: 
lAmisinorum civitas et libera et foederata . . . suis legi- 
bus utitur" ; 4 and Livy enumerates many communities 5 
(already mentioned above) treated on the same footing. 
This policy explains the active coexistence within the 
Empire of Roman law and divers peregrin bodies of 
law, 6 and their application in accordance with the vary- 
ing needs and changing conditions. 

1 In Verrem, ii. z. 1 3. 2 Ad Att. vi. 2. 4. 

3 Ibid. vi. i. 15. ^Epist. x. 93. 

5 xxxiii. 32 : " . . . Senatus Romanus et T. Quinctius imperator 
Philippe rege Macedonibusque devictis liberos, immunes, suis legibus 
esse iubet Corinthios Phocenses Locrensesque omnis et insulam 
Euboeam et Magnetas, Thessalos, Perrhaebos, Achaeos Phthiotas." 

6 Cf. L. von Bar, Theorie und Praxis des internatlonakn Privatrechts, 
2 Bde. (Hannover, 1889-1890)^0!. ii. p. 20. 



278 LAW OF ORIGIN AND OF DOMICILE 



When an 

individual 

belonged to 

different 

communities 

by origin and 

domicile. 



Savigny's view 
as to 

application of 
the law of 
origin. 



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. As a 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 in 
different towns, the law of his own city governed the 
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 Stadten das Biirgerrecht und den Wohn- 
sitz hatte, durch das Biirgerrecht bestimmt wurde, nicht 
durch den Wohnsitz." 1 The reason for this is, as the 
same eminent writer points out, that origo 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 
hoher stehende Band, verglichen mit dem von Willkiir 
und Laune abhangenden Wohnsitz. Zweitens war es 
das friihere Band, da es durch die Geburt gekntlpft 



^System des heut. rom. Rechts, vol. viii. 357, p, 87, 



LAW OF ORIGIN AND OF DOMICILE 279 

wurde, der anderwarts vorhandene Wohnsitz erst spater 
durch eine freie Handlung entstanden sein konnte, 
weshalb das fur die Person einmal begriindete territoriale 
Recht hatte umgewandelt werden sollen." l 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 ; 2 in 
Ulpian ". . . ut secundum leges civitatis suae testetur," 3 
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." 4 

If this rule be admitted to be true, certain cases, as Exceptional 
Savigny observes, present themselves which do not a^pilc^ti^n* 
appear to be covered by it. When an individual where 

...... J , , . plurality of 

enjoyed citizenship in several towns at the same time, citizenship 
t.g. in one by virtue of his birth, in another by adoption e> 
or admission, his oldest citizenship, that is, the one 
resulting from origo, was regarded as pre-eminent (" In 
einem solchen Falle wurde ohne Zweifel das friihere 
Borgerrecht, also das durch Geburt entstandene (die 
origo) als vorherrschend behandelt . . ," 5 ). Again, if an where there is 
individual had no citizenship at all in any town, and n< 
possessed only a domicile in some country, then his 
ius domkilii was the determining factor (" Zweitens 
konnte Jemand ganz ohne stadtisches Biirgerrecht sein, 
wahrend er einen Wohnsitz hatte. In diesem Fall 

* Ibid. 

2 Hi. 1 20 : "... Sponsoris et fidepromissoris heres non tenetur nisi 
si de peregrine fidepromissore quaeramus, et alio iure civitas eius 
utatur." 

3 xx. 15. Cf. infra, p. 292, note 3. 4 Cod. Just. vi. 23. 9. 

5 Op. cit. 357, p. 88. 



280 APPLICATION OF PERSONAL LAW 

musste der Wohnsitz als Bestimmungsgrund fur das 
auf ihn anwendbare personliche 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 ( u Wie die Romer solche, 
bei ihnen gewiss seltene Falle beurtheilt haben mogen r 
lasst sich aus unsern Rechtsquellen nicht durch unmit- 
telbare Zeugnisse nachweisen " 2 ). 
Applicability This personal or national law 3 was mainly applicable 
to tnose peregrins invested with the same origo ; 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, 4 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, 5 nor in the case of those who 
were condemned to deportation at the time of the 
Emperors. 6 

1 Savigny, op. tit. 357, p. 88. 2 Ibid. 

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 ostlichen Provinzen des romlschen Kaiserreichs (Leipzig,. 
1891). 

4 Manuel elem. de dr. rom. p. in : " Elle etait surtout relative 
aux rapports des peregrins de meme cite ou tout au moins de meme 
nationalite. Elle etait a peu pres sterile pour ceux des peregrins de 
race differente, pour ceux des peregrins et des citoyens. Elle 1'etait 
tout a fait pour les p6regrins qui ne faisaient partie d'aucune cite,, 
c'est-a-dire pour les etrangers annexes qui, apres leur capitulation 
(dediticii) n'avaient pas re9u de statut local et qui etaient assez rares 
pratiquement, dont il n'y a pas d'exemple sous 1'Empire, sauf peut- 
etre les Juifs depuis la prise de Jerusalem, et pour les citoyens qui 
avaient perdu la cite a titre de peine sans en acquerir une autre r 
comme c'est le cas des deportes de TEmpire." 

5 On the condition of the Jews, cf. Mommsen, in Historischf 
Zeitschrift (Munich, 1890), p. 424, n. i. 

6 Dig. xlviii. 19 (de poenis), 17. i. On loss of citizenship, see 
supra, pp. 211 seq. 



CARACALLA'S CONSTITUTION 281 

With the Antonine constitution 1 the application of Effect of the 
the local systems of law was naturally to a large extent camSia ^ 
diminished, but they can by no means be said to have the application 

i-ij i 'TM i ^ of the local 

been abolished entirely. The question whether Cara-iaw. 

calla's gift of the Roman franchise changed the personal 

law is a subject of controversy. Savigny, 2 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 view ' 

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, 

in the first place, by the fact that a prominent meaning 

was attached to Roman citizenship in relation to private 

rights towards the end of the Empire, and, secondly, by 

the fact that the real object of the Antonine constitution 

was to extract succession duties from aliens as well as 

from Roman citizens. And how could the Roman law 

of succession, asks Von Bar, have been extended to 

the citizens of the municipia y if the laws of the family 

and of legal and commercial capacity were not also 

regulated by Roman jurisprudence ? (" Dieser Ansicht 

widerstreitet in der spateren Kaiserzeit, wo feste 

politische Rechte des Einzelnen wenig in Frage kamen, 

die vorherrschend privatrechtliche Bedeutung der Civitat, 

und vollends der bekannte Zweck der Constitution von 

Caracalla, welcher namentlich die von rftmischen Erb- 

schaften bezahlten Steuern auch von denen der Pere- 

grinen beziehen wollte. Wie hatte aber das romische 

Erbrecht auf die Burger der Municipien angewendet 

werden konnen, wenn nicht auch ihr Familienrecht 

und ihre pers6nliche Rechts- und Handlungs-fahigkeit 

nach romischen Rechte beurtheilt ware ?" 8 ) The same 

writer urges, as an additional argument against Savigny, 

1 On the rights allowed to peregrins before Caracalla, see supra, 
pp. 230 sej. 

2 System des heut. rom. Rec/its, vol. viii. 357. 

8 L. von Bar, Thccr. u. Prax> d. int. Privatr. n, p. 21, n. 1 6. 



282 



CRITICISM OF MODERN VIEWS 



Criticism of 

Savigny's 

opinion. 



Von Bar's 
-opinion 



the fact, recorded by Aulus Gellius, 1 that when Roman 
citizenship was conferred on Latin towns they lost their 
marriage laws at the same time. 

In reference to these two opposed views there is little 
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- 

Von Rar's /- i T-< r i 

portant facts to the contrary. rLven 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 a 
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 alteration 
throughout. The practical necessity of time and place 
pays but little homage to strict logical consistency, or to 
the theoretical demands of an abstract system. It is 
submitted, therefore, that the more correct view is that 
between these two extremes. Further, it may be urged 
that even if Caracalla's extension of the franchise 
changed entirely the ius originis of the people then 



l Noct. A '//. iv. 4. C r . infra, p. 285. 



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 regime 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. 1 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. 2 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 ne quid contra 
longam consuetudinem fiat, ad sollicitudinem suam 
revocabit praeses provinciae " ; 3 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 
legum " 4 tried to destroy the juridical validity of 
custom (319 A.D.); 5 but the theory of Julian was 
antagonistic to this revolutionary measure. 6 Justinian 
also recognized the legal importance of custom, and, in 

1 Cf. Mommsen, Ostgotische Studien, in Wattenbach's Neue Archiv, 
xiv. pp. 526 seq. 

2 Just. Cod. xi. 32. i. 
*Just. Cod. viii. 52. I. 
4 Amm. Marcell. xxi. 10. 8. 

b Just. Cod. viii. 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), 
32. 



284 RISE OF CONFLICTS OF LAWS 

his time, inveterate usage was frequently allowed to 
override the Roman civil law. 1 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, 

Gnaws. ts 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. 2 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 in the same territory, yet 
enjoyed their respective national laws. 3 

Nevertheless this later and more systematic evolution 
of private international law was an outcome of the 

1 Cf. J. Gilson, V etude du drolt romain compare aux autres droits de 
Fantiquite (Paris, 1899), pp. 182 seq. 

2 Cf. U. Huber, Praelectionum juris chilis tomi tres secundum Insfifu- 
tiones et Digesta Justiniani (Lovanii, 1766), vol. ii. lib. I, tit. 3, p. 25 : 
" Notum est porro, leges et statuta singulorum populorum multis 
partibus discrepare, posteaquam dissipatis Imperii Romani provinces, 
divisus est orbis Christianus in populos ferme innumeros, sibi mutuo 
non subjectos nee ejusdem ordinis imperandi parendique consortes. 
In jure Romano non est mirum nihil hac de re extare, cum populi 
Rom. per omnes orbis partes diffusum et aequabili jure gubernatum 
Imperium conflictui diversarum legum non aeque potuerit esse 
subjectum." 

3 See Savigny, Geschlchte des romischen Rechts im Mittelalter, 7 Bde. 
(Heidelberg, 1834-1851), vol. i. chap. 3. 



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 
that scientific cogency which characterizes the modern. 
When, by comparison with our modern conceptions, 
the ancient ideas and practices are found to be deficient 
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- 
judgements or with their interpretation of the conditions 
prevailing in their own epoch. Such an attitude is 
perhaps even worse than the contrary tendency to 
apotheosize indiscriminately and uncritically all that is 
found in the past. 

Before the lex Inlia (90 B.C.) conferred on the Latin Examples of 
towns and on the Socii full citizenship, they had already i c a wj cts of 
observed certain special rules in regard to contracting Manage, 
marriages. Thus Aulus Gellius writes : " Sponsalia in 
ea parte Italiae, quae Latium appellatur, hoc more atque 
iure solita fieri, scripsit Servius Sulpitius. . . . Hoc ius 
sponsaliorum observatum dicit Servius ad id tempus, 
quo civitas universe Latio lege lulia data est." 1 

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 
iniusium ; but peregrins of the same city or of different Peregrins 
cities, between which there was connubium, could marry 
according to their own civil law and custom, as Gaius 

l Nocf. Att. iv. 4. 



286 EXAMPLES OF 

says : <c secundum leges moresque peregrinorum " ; l 
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 
Justus 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 ; nee 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." 5 ) 
Nevertheless, it would appear probable that, when the 
husband and the wife were of different nationality, 
their property was regulated by the lex domicilii, 
since their iura originis might present provisions of 
an incompatible nature. 

Judging from a decision of the year 124 we find 



1 i. 92. 



2 Gaius, i. 28 seq. (dealing with the rules relating to the status of 
the offspring of parents of unequal status), and 65 seq. (on the modes 
by which Latin freedmen could become Roman citizens) ; see supra> 
pp. 257 seq. 

3 Gaius, i. 77. 4 See supra, pp. 251 seq. 

5 Dig. vi. i. 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 
between written and unwritten marriage contracts. 1 At 
the end of the second century marriage between brothers 
and sisters does not seem there to have been considered 
illegal. 2 

Amongst the Galatians, a paternal power existed in Paternal power 
somewhat different form from that of the Roman SliafSIs! e 
f atria potestas. (" Fere enim nulli alii sunt homines, 
qui talem in filios suos habent potestatem, qualem 
nos habemus ; . . . nee me praeterit Galatarum gentem 
credere, in potestate parentum liberos esse." 3 ) 

Most of the peregrin communities had institutions Tuteia and 

. , ? A i* curatela of 

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 u sed 
impuberes quidem in tutela esse omnium civitatum iure 
contingit." 4 

By the law of Bithynia a wife was not permitted wife's con- 

' . . ' ,1 ^i r tract by law of 

to enter into a contract without the concurrence or Kthynk 
her husband or her son above the age of puberty, as 
the case may be. ( u Apud peregrines non similiter 
ut apud nos in tutela sunt feminae ; sed tamen plerum- 
que quasi in tutela sunt : ut ecce lex Bithynorum, si 
quid mulier contrahat, maritum auctorem esse iubet, 
aut filium eius puberem." 6 ) 

After release from wardship a minor's estate was Minor's estate, 
managed by a curator until he reached the age at 
which he was competent to administer his own affairs, 
and, adds Gaius, the same rule is found amongst other 

1 See Girard, Textet ... p. 784. 

2 Cf. Wilcken, Benchte (Berlin, 1883), p. 903 ; and, in the same 
:onnection, as to marriage in Athens, see Mommsen, Rtimisches 
Itrafrecht (Leipzig, 1899), p. 1 1 6, n. 3, where he refers to Seneca, 
r *tulus de morte Claudii, 8, and quotes Wilamowitz-Mollendorff to the 
ame effect. 

8 Gaius, i. 55. 4 i. 189. 5 Gaius, i. 193. 



288 EXAMPLES OF 

peoples, " . . . sicuti apud peregrinas gentes custo- 
diri. . . ," 1 

Adoption by a 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, I 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, quern C. Maenius 
Gemellus, cliens meus, quum in calamitate exsilii sui 
Patrensis civis factus esset, Patrensium legibus adoptavit, 
ut eius ipsius hereditatis ius causamque tueare." 2 

Emancipation In the emancipation of a slave by a peregrin the laws 
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? 

Emancipation It has sometimes been held that there is a case of 
conflict of laws recognized in the following passage 
of the Codex : " Si 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." * 

Baviera, 5 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 

1 i. 1 97. 2 Cic. Ad Fam. xiii. 19. 2. 

3 Dosithaeus, Disputatio de manumlsslonibusj 12 (in Girard, Textei), 
" Praetor [tamen vel proconsul] non permittet manumissum servire, 
nisi aliter lege peregrina caveatur." 

*Just. Cod. viii. 48 (49) (de emancipationibus liberorum), i. 

6 Loc. cit. sect. vi. 



CONFLICTS OF LAWS 289 

question was whether such act was valid, as the 
municipal magistrates had ordinarily had no competence 
in respect of legis actio y 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 legis actio to the 
duumviri, and allows them to extend it to strangers. 
Hence this case does not afford an instance of conflict- 
ing legislations, as Savigny remarks : " Von einer 
Collision ortlicher Rechte ist hier keine Spur." l 

It would seem that peregrin fathers in certain 
countries could sell their sons as slaves. 2 

With regard to the law of property the rules obtain- Examples 
ing in the provinces were in many respects different faw of g to 
from those prevailing amongst citizens in Rome. For property. 
example, the Roman distinction between dominium ex 
lure Quiritium and in bonis, between quiritary owner- Quintary and 
ship and bonitary, as has already been pointed out, ^Sip. 
was not there recognized. As Gaius says, for aliens 
there was only one dominium and only one definition 
of a proprietor, "... apud peregrines 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* that the different questions property ' 
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, 

1 System des heut. rom. Rechts, vol. viii. 382, p. 362. Cf. to the 
same effect L. von Bar, op. c'tt. 1 2, no. 6. 

2 Cf. Mommsen, BUrgerlicher und peregnnucher Freiheitschutz Im 
romischen Staat (in Festgabe fir Beseler, Berlin, 1885, pp. 255 seq.). 

8 ii. 40. 

4 E.g. Dig. xx. I (de pignor.), 32 ; xxviii. 5 (de hered. instit.), 35. 

T 



290 



EXAMPLES OF 



in the first of the passages referred to in the last foot- 
note, 1 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 provinciates, both of 
which kinds of property belonged to the deceased. 2 

Before hypothec had been adopted in Roman law, 
it was customary on provincial territory, e.g. in Greece, 
and was admitted by the praetor. 3 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, 4 
though valid also between them and Roman citizens. 5 
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 ius peregrinorum and not 
the ius gentium. 6 

It would seem that in regard to the interpretation of 
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. 

3 Cf. Cic. Ad Fam. xiii. 56 : " Praeterea Philocles Alabandensis 
vTToB-rJKas Cluvio debit." Pro Flacco, 2 1 . 

4 Gaius, iii. 134: "Praeterea litterarum obligatio fieri videtur 
chirographis et syngraphis ; . . . quod genus obligationis proprium 
peregrinorum est." 

5 For examples, cf. Cic. De harusp. resp. 13. 16; Pro Rabirio, 
iii. 6; Ad Att. v. I, 2, 3 ; v. 21. For further particulars as to 
syngraphae, see Voigt, Das jus nat. vol. iv. pp. 326-332. 

6 M. Duguit (Des conflits de legislation relatifs a la forme des actes 
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. 



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, 
quod actum est ; aut, si non pareat quid actum est, 
erit consequens, ut id sequamur, quod in regione in 
qua actum est frequentatur. quid ergo, si neque 
regionis mos appareat, quia varius fuit ? ad id, quod 
minimum est, redigenda summa est." 1 

There were special provisions amongst aliens as to Obligations by 
the establishment of obligations by oath alone. Gaius, oath ' 
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 
is the promise of a freedman to his patron, but that 
other cases could be found in the particular laws of 
foreign communities. 2 

In various provincial territories there were also special 
rules relating to the bona vacantia of persons dying 
intestate, 3 as also in reference to liens and other matters. Liens. 
Thus at the time of Trajan several towns of Bithynia 
and Pontus could exercise certain rights over their 
debtors' property, as provided by their respective laws.* 

1 Dig. 1. 1 7 (de div. reg. iur.), 34. Cf. Savigny, System des heut. 
rSm. Rechts, vol. viii. 372, 374. 

2 iii. 96 : " Sane ex alia nulla causa iureiurando homines obligantur 
iitique cum quaeritur de iure Romanorum. nam apud peregrines quid 
iuris sit, singularum civitatium iura requirentes aliud intellegere 
poterimus." 

3 Plin. Epist. x. 88 : " Nicensibus, qui intestatorum civium suorum 
:oncessam vindicationem bonorum a divo Augusto affirmant." 

4 Plin. Epist. x. 109-110: "Quo iure uti debeant bithynae vel 
oonticae civitates in iis pecuniis, quae ex quaque causa reipublicae 
lebebuntur ex lege cuiusque animadvertendum est." See also Dig. 
ilii. 5 (de reb. auct. iud.), 37 : " Antiochensium Coelae Syriae civitati, 
juod lege sua privilegium in bonis defuncti debitoris accepit, ius 
>ersequendi pignoris durare constitit." 



292 EXAMPLES OF 

In the case of fidepromissw, 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 peregrine 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 lex loci gave way to the ius 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. 2 

Testamentary Again the rules concerning wills varied more or less 
provisions. 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 dediticii, 
says that in the case of the first the disability was 
imposed by the lex lunia^ and in the case of the second 
it was due to the fact that the dedilicius 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. 3 

1 Gaius, iii. 120. 

2 Gesch. des rom. Rechts,vo\. i. 1 15, p. 162. As to the relationship, 
in this respect, between Ius chile, or ius provinciate, 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 Rechts- 
satze auf. Dieser Fall kommt regelmassig nicht vor, da, wo zwischen 
ius gentium und ius civile ein solcher Widerstreit entstand, alsbald die 
Rechtstheorie zu Gunsten des einen oder anderen entschied und den 
Widerspruch vermittelte, wahrend in den iura provincialia in gleicher 
Weise die dem ius gentium direct widerstreitenden Rechtssatzungen 
wahrscheinlich sehr friih zu Gunsten des Letzteren beseitigt wurden." 

5 Reg. xx. 14, 15: "Latinus lunianus, item is qui dediticiorum 
numero est, testamentum facere non potest [cf. Gaius, i. 22-25]. 



CONFLICTS OF LAWS 293 

It may be here noted that the rescript of Diocletian, 1 Diocletian's 
already referred to, 2 does not, strictly speaking, supply ^"raflict 
a solution to conflicts of legislation respecting the form ** to wUk - 
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." 3 So that the rule ' locus 
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 5 that wills Wllls ' 

Latinus quidem, quoniam nominatim lege lunia prohibitus est ; is 
autem qui dediticiorum numero est, quoniam nee quasi civis 
Romanus testari potest, cum sit peregrinus, nee 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. 

3 System des heut. rom. Rechts, 382, p. 361. ^Ibid. 

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, 
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." 



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, 1 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 ; at all events it shows 
a recognition on their part of the necessity to limit the 
application of the principle of personality, inasmuch as 
the ius originh was not infrequently superseded by the 
lex loci, 

Further, in reference to intestate succession the 
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. 2 

And it has been claimed by some writers that a certain 
text in the Digest* shows that where a question involv- 
ing conflicting laws of succession should arise, it was to 
be settled by applying the law of the domicile of the 
deceased. The passage, however, does not really bear 

1 Cf, Von Bar, op. cit. 1 2, no. 6. 

2 / Verrem, ii. 2. 22 : "Bidis oppidum est tenue sane non longe 
a Syracusis. Huius longe primus civitatis est Epicrates quidem. Ei 
hereditas HS quingentorum millium venerat a muliere quadam 
propinqua, atqui ita propinqua ut, ea etiamsi intestata esset mortua, 
Epicratem Bidinorum legibus heredem esse oporteret." Cf. Cic. Ad 
Fam. xiii. 30. As to intestate succession in Egypt, cf. a decision of the 
year 135, in Girard, Textes, p. 787. 

8 Dig. v. i (de iud.), 19, pr. : " Heres absens ibi defendendas est, 
ubi defunctus debuit, et conveniendus, si ibi inveniatur, nulloque suo 
proprio privilegio excusatur." 



SOVEREIGNTY OF LOCAL LAW 295 

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; 1 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 AS to 
jurisdiction mentioned in the Digest! Paulus says ju 
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. 2 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 
goes beyond the bounds of the city his authority does 
not hold, though he can appoint a index outside the 
bounds. 8 And elsewhere the same jurist says that as soon 
as the proconsul passes the gate on entering Rome, he 
lays aside his imperium. 4 

Did Rome recognize the territorial sovereignty of the AS to Rome's 
law ? It cannot be claimed that the Romans systemati- JJfSS 1111 
cally emphasized this principle and invariably acted in 2J^Sgj| ty 
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 ip so facto avoided. 5 In comparison with the legis- 
lative policy of modern nations, Rome undoubtedly 
concerned herself but little with the task of effecting a 

1 Cf. Von Bar, op. cit. 12. 

2 Dig. ii. i (de iuris.), 20 : " Extra territorium ius dicenti impune 
non paretur. idem est et si supra iurisdictionem suam velit ius 
dicere." 

3 Dig. i. 12. 3: " Praefectus urbi cum terminos urbis exierit, 
potestatem non habet ; extra urbem potest iubere iudicare." 

*Dig. i. 1 6. 1 6 : "Proconsul portam Romae ingressus deponit 
imperium." Cf. Von Bar, op. cit. 12, no. 3. 
5 See Weiss, op. cit. vol. in. p. 126. 



1 Locus regit 
actum.' 



Local custom 
and conflicts, 



Local custom 



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 c 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 seat 1 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* 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." 

Again, in connection with the usury laws it was laid 
down that a judge in a bona-fide action must decide 
according to the custom of the locality where the 



1 Savigny, System des heut. rom. Rechts, 381. 

2 Dig. xxv. 4. 1.15: " Quod autem praetor ait causa cognita se 
possessionem non daturum vel actiones denegaturum, eo pertinet, ut, 
si per rusticitatem aliquid fuerit omissum ex his quae praetor servari 
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." 



FORCE OF LOCAL CUSTOMS 297 

contract in dispute was entered into (lex loci contractus\ 
but on condition that this custom is not contrary to the 
law. " Cum iudicio bonae fidei disceptatur arbitrio 
iudicis usurarum modus ex more regionis, ubi con- 
tractum est, constituitur ; ita tamen ut legi non 
offendat." 1 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 summoning of 
twenty-second book of the Digest^ 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 consuetude 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. 2 

A further case is furnished in the sixth book of Local custom 
Justinian's Code, where it is provided that in those ShriSi** 
regions where there are illiterate inhabitants incapable requirements. 
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 



xx. i, i,/r. 

2 Dig. xxii. 5 (de testibus), 3. 6: " Testes non temere evocandi 
sunt per longum her 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, consuetude 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 necessaries in ipsa cognitione deprehenderit 
qui iudicat." 



298 



LOCUS REGIT ACTUM 



The 

principle of 
territoriality 
in treaties. 

Between 
Rome and 
Carthage. 



Between Rome 
and Chios. 



The Romans 
recognized 
the rule 
' locus regit 
actum.' 



legem rusticanis concedimus antiquam eorum consue- 
tudinem legis vicem obtinere." 1 

Again, to return to an earlier age in the first treaty 
between Rome and Carthage (c. 509-8 B.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." 2 

And in the treaty between Rome and Chios 3 (as in 
the Greek treaty between Lato and Olus) 4 the existence 
of a similar conception is apparent. 

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 ; 5 but it is equally 

l Jusf. Cod. vi. 23 (de testamentis : quemadmodum testamenta 
ordinantur), 31. 

2 Polyb. iii. 22 : rots Se KO.T tpiropiav Trapayii/o^ci/ot? ftrjBtv Icrrw 
rcAos TrXrjV rt KrjpvKi r) y/oa/i/xarei* oVa 8' av TOVTIDV Trapovrwv 
TrpaOfj, 8r)fj.o(ri<jt. 7rto~Tt o<eiXe<70a> T< airoSofJitvo), ocra av ry kv A.i/3wj 
r) ev 2a/oSovt TrpaQrj. For the entire treaty, see infra, chap. xvii. 

3 Corp. Inscrip. Graec. 2222, 11. 15-20. Cf. supra, latter part of 
chap. viii. 

*Corp. inscrip. Graec. 2554, 11. 56-76. See supra, chap. viii. in fin. , 
and Infra, chap. xvii. 

5 Cf. Baviera, loc. cit. vol. ii. fasc. 3, p. 439 : "Non Tavranno con- 
cepito in tutta la sua estensione datale ai nostri giorni, ma ne ebbero 
per6 una nozione chiara." Chenon, loc. 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 is 
submitted, sufficient refutation of this view. 



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 doctrine of 
in view of the fact that the principle appears to be P ublic 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. 1 ) In the application of com- 
peting laws, the ius peregrinorum was frequently 
displaced by the Roman ius civile, and also by the 
ius gentium, when the interest of State or public 
morality was endangered. 2 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 3 (the lex 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. 
the lex Didia de sumptu extended to peregrins, in the Lex Didia & 
interests of public morality, the provisions of the lex sum 
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 consult. 
to manumit slaves, under cover of good faith, in fraud 
of their creditors. 4 The laws relating to theft, as also 

1 On the significance and applicability of this principle, cf. Von 
Bar, op. cit. 30. 

2 Cf. Ch6non, he. cit. pp. 241 seq. 

8 Liv. 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." 

4 Gaius, i. 47 : " . . . ut creditorum fraudandorum causa manu- 
missi liberi non fiant, hoc etiam ad peregrinos pertinere (senatus ita 
censuit ex auctoritate Hadriani) . . ." 



300 



FEW CASES OF CONFLICTS 



Lex Aquilia. 



Restrictions 
as to the 
ius gentium. 

Lex Minicia. 



Sc. 

Claudianum. 



Restrictions 
as lofidei- 
commissa. 



Few cases of 
conflicts of 
laws. 

Reasons for 
this. 



the lex Aquilia (287 B.C.) were, by legal fictions, 
likewise made to apply to aliens. 1 

Again, public interest in some cases necessitated 
certain restrictions in the application of the ius 
gentium. 2 Thus the lex Minicia provided that the 
issue of a peregrin husband and Roman wife should be 
peregrins, 3 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. 4 

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- 
sultum factum est ut ea fideicommissa vindicarentur." 5 

It cannot be denied that in the very large mass of 
Justinianian compilations we find comparatively few 
direct references to conflicts of laws. One reason for 
this is, as Von Bar points out and at the same time 
suggests an additional argument against his own con- 
tention, at least so far as the earlier Roman praetors 
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. 2 Chenon, loc. cit. pp. 243 seq. 

3 Gaius, i. 78 ; Ulpian, Reg. v. 8 ; and see supra, p. 252. 

4 Gaius, i. 84 ; see supra, p. 253. 

5 Gaius, ii. 285. Not long ago in England land purchased by or 
devised to an alien was forfeited to the Crown. And similarly in ! 
France, an alien formerly did not possess testamentary capacity, his 
property at his death escheating to the Crown by the * droit ; 
d'aubaine.' 



REASONS THEREFOR 301 

course, 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. 1 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. 2 

Now this contention of Von Bar is, it is submitted, Von Bar's 
of too extreme a nature, in view of the considerations 
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. 

1 Von Bar, op. at. 12, p. 22 : "Die von Justinian veranstalteten 
Rechtsbttcher konnten ihrem ganzen praktischen Zweck nach, wenn 
etwa tiber die Collision der verschiedenen Gesetze in den Schriften 
der classischen Juristen sich noch ErOrterungen fanden, diesen bereits 
lange veralteten Stoffum so weniger aufnehmen, als sicher im romischen 
Reiche der grossen Centralisation wegen, und weil das romische 
Privatrecht als Vorrecht der Biirger gegeniiber den unvollkommenen 
Freien, den dediticus 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 bona fides in spaterer Zeit erlangte, 
im Einzelnen leicht geholfen werden." 

* Ibid. I 12, fin. 



CHAPTER XIII 

AMBASSADORS THEIR FUNCTIONS; THEIR RIGHTS 
AND DUTIES 

AMONGST 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 1 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- 
matic est vieille comme le monde," says a modern 
French writer, " et ne perira qu'avec lui. La Bible, 
les Egyptiens, les Grecs ont un droit international et 
diplomatique. II sufBt que deux socites coexistent 
pour qu'elles aient des interets a regler : elles font 
la guerre, par consequent la paix, et meme les insti- 

1 Lettres penanes, xcvi. : "... la voix de la nature qui reclame 
ses droits." 



UNIVERSALITY OF AMBASSADORS 303 

tutions Internationales reprsentent, malgr leurs fragi- 
lits apparentes, ce qu'il y a de moms variable et de 
plus indelebile." 1 

In the ancient States of China we hear of the inter- Exchange of 
change of embassies accompanied by established cere- 
monies and formalities indicating a consciousness of 
the importance of the proceedings, which were always 
characterized by extreme courtesy. Questions of pre- 
cedence regarding envoys were determined by settled 
principles. The ancient Hindoos had a similar system, i n ancient 
and also employed special officials, in addition to the India - 
usual heralds, for any necessary relationships with 
enemy countries. 2 The Mdnava Dharmdsdtras (the 
Institutes of Manu), the origin of which has been 
ascribed to different dates varying between 1200 B.C. 
and 200 B.C., contained a code of diplomatic regulations. 
[The 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 
in the Fiji Islands intercourse between group and group, Amongst 
whether in peace or in war, is conducted through the 
nedium of heralds, who are considered inviolable at all 
iimes; 3 similarly, amongst the Australian tribes. 4 

In Greece and Rome diplomatic relationships, though in Greece and 
lot based on the institution of permanent embassies in R 
he 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 
uestions arising out of war or relating to extradition 
nd demands for satisfaction in general, as permanent 

1 R. de Maulde-la-Claviere, La diplomatic au temps de Machiavel 
D aris, 1892), t. i., avant-propos, p. I. 

2 Cf. Haelschner, De lure gentium quale fuerit apud gentes Orienfes 
tfalae, 1842), p. 37. 

S F. Ratzel, Volkerkunde (Leipzig, 1885), vol. ii. p. 283: "Der 
erkehr von Stamm zu Stamm ist in Fidschi Herolden tlbertragen, 
elche auch da, wo sie als Kriegsanktlndiger auftreten, unverletzlich 
id." 

4 Cf. G. C. Wheeler, The tribe and Intertribal relations In Australia 
x>ndon, 1910). 



304 



KINDS OF ENVOYS 



embassies. 



Richness of 

diplomatic 

terminology. 



ambassadors, though rather potential than actual. 1 The 
impermanent 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. 

Kinds of In Homer and Herodotus the word ayyeXos is used 

Ambassadors, with the general meaning of messenger or envoy, 3 much 

ar/eXos. j n t h e same way as legatus is used in Latin ; and so we 

get the phrase ayyeXirjv \9eiv* (as also ee<rtV eXOelv) 5 

as equivalent to the Latin ' legationem obire.' 6 In 

Polybius 7 ayyeXo? is used also like the Latin nuncius 

for the message itself. In Pausanias 8 is found again 

Legatus. a trace of the older meaning of ayyeXo? as legatus. In 

the later usage, a frequently employed term for ambas- 

1 On the fetials, see infra, chap. xxvi. 

2 Cf. Pollux, viii. II. 137 as to the terminology respecting 
ambassadors and other envoys and their functions ; and see the 
copious notes on the passage in the Amsterdam folio edition, 1 706. 
Pollux there mentions, amongst other kindred words and expressions, 
7iy>r/3eis, Trpecr/StvTai, also SKXKOVOS (in Latin minister), servant, at- 
tendant, ayyeAos, rfpv, a-7rov8o<j>6po<s (a term used by Dionysius of 
Halicarnassus for fetialis], and also a large number of expressions to 
indicate their functions. 

3 Cf. Iliad, v. 804 ; xi. 286, etc. 

4 //zW,xi. 140 ; cf. Odyss. xxi. 20. 5 lRad, xxiv. 235. 

6 Cf. P. C. Buttmann, Lexilogus . . . (Berlin, 1837, 1860), ii. p. 202. 

7 E.g. i. 72. 4. 8 vii. i. 2. 



KINDS OF ENVOYS 305 



sadors is 7rpe<r/3et$, its singular form Trpea-fivs being v ^ ff 
more usual in the poets, 1 whilst Trpeo-favTw 2 is more 
common in the prose writers ; the plural TrpearfievTal 
is also found in prose writings. 3 And so we have 
the corresponding verb Trpea-ftevetvS signifying to go 
on an embassy, to negotiate (as an ambassador). 

Sometimes orator is used as synonymous with legatus? orator 
though generally orator suggests rather an envoy sent 
to beseech, to pray for certain things or conditions ; 
so that, in this respect, Festus says : " Ora tores ex 
graeco apavOai dicti, quod missi ad reges nationesque, 
decs solerent testari " 6 ; and Livy 7 and Virgil 8 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 avTOKpdropc? especially so when 
charged with the conclusion of a treaty. (The adjective 
avTOKparcop means one's own master in the same way 
as the Latin sui iuris ; as applied to States, it means 
free and independent. 10 ) 

1 Cf. Aeschylus, Suppl. 728 : 

ticrcos yap 7} Ktfpv Tts rj Trp(r/3vs /xoAot 
(where he speaks of the arrival of some herald, Kijpv, or ambassador). 

2 E.g. Thuc. v. 4, etc.; and cf. Corp. inscrip. Grace, i. 1237, 1239, 
1240, etc. 

3 Thuc. viii. 77 ; Andoc. De pace, 41. 

4 Andoc. De pace, 34 ; Plato, Hippias Major, 281 B ; Charm. 
1 58 A; Xenoph, Cyr. v. I. 2 ; Eurip. Heracl. 479; and similar 
usage by Demosthenes, Dinarchus, Isocrates, etc. 

5 Ulpian, in Dig. xlviii. 6 (ad leg. lul. de vi publ.), 7. 

6 Cf. Terence, Pro!. Hecyr. 9 : 

" Orator ad vos venio ornatu prologi ; 
Sinite, exorator sim . . ." 

7 i. 15: " Veientes pacem petitum oratores Romam mittunt." 

8 Aen. xi. 331 : 

" Centum oratores prima de gente Latinos 

Ire placet pacisque manu praetendere ramos." 

9 Cf. Aristoph. Pax, 359: avro/c/oaro/oa Tiva eAccrflat ; Aristoph. 
Aves, 1595, where it is used with 7r/oeo-/3eis. 
10 Thuc. iv. 63 ; Xenoph. Memor. ii. i. 21. 

U 



306 KINDS OF ENVOYS 

The head of an embassy is, in the later Greek writers, 
described as ap^nrpeG-pevTw, the corresponding Latin 
^Prmcep* being 'princeps legationis.' But this Greek term, used 
legatioms.' by such writers as Diodorus l and Strabo, 2 was unknown 
in more classical times, and is not found in inscriptions. 
On the other hand, apx/iQeoopos* is frequently used as 
the head of a sacred embassy (Oewpia), the Oecopos 4 (and 
o-wOecopos, 5 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 TrpearpevTw 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. 6 

The more preliminary proceedings relating to specific 
embassies were usually in the hands of heralds or 
marshals (/o/p/ce?), to whom the Roman praecones or 
Caduceatores. caduceatores^ more or less correspond. Legati 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. 9 From the 
earliest heroic times they were conceived to be under 
the immediate protection of Zeus. In Homer they are 
frequently spoken of as Oeioi, A (piXoi, 10 and Ato? 
ayyeXoi ^e KOI avSpwv, 11 the messengers of God and 
men ; and accordingly they were employed to convey 

messages between enemies. 12 Later their functions were 
, 

1 xii. 53. 2 ; xiii. 52. 2 ; xiv. 25. i. 2 p. 7960. 

3 Arist. Eth. Nic. iv. 2. 2 ; Andoc. De myst. 132 ; Corp. inscrip. 
Grace. 3656 (decree of the Rhodians). 

^Corp. inscrip. Grace. 1693. Cf., however, no. 2271, a case where 
a 7r/>e<r/?vnjs was charged with a religious as well as a political 
mission. 

5 Corp. inscrip. Grace, vol. ii. p. 226. 6 Plut.Demefr. 1 1. 

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.) 

8 See infra, chap. xxvi. 9 Dig. i. 8 (de rer. divis.), 8. I. 

10 "Iliad, iv. 192; viii. 517. ll Iliad, i. 334, etc. 

12 Iliad, ix. 170 ; xxiv. 149, 178 ; Odyss. x. 59, 102. 



KINDS OF ENVOYS 307 

of a somewhat similar character, and they were 
distinguished from Trpearfieis in that the KijpvKe? were 
sacrosanct by virtue of their having been merely 
appointed to the office, and without any further 
formalities, whilst the 7rpea-/3et$ enjoyed a recognized 
security, so far as this was indispensable to the purposes 
for which they were despatched. The icqpvices, 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. 2 
The Romans did not make such a distinction between 
heralds and ambassadors proper. 

An ambassador who was sent to a congress as 
select commissioner sitting in council took the special 

title of arvveSpo?. 

If the envoy was sent specially with the object of 
demanding satisfaction for an offence, and to expound 
the necessary representations for that purpose, he was 
sometimes termed KSuco? y and his function was &cSuda 



Again, in reference to the Roman legatio, this word 
is sometimes used in the abstract sense of mission, 
and sometimes in the sense of envoy (' mittere lega- 
tionem ad aliquem' 4 ), or legation, comprising all the 
persons attached thereto, as when Cicero speaks of 
'orba legatio' ('orphaned legation'), owing to the death 
of the head. 6 

It is important to distinguish the legato who accotn- 

j^i ./ . . / . . , N distinction. 

panied the praestaes provinciae (provincial governors), 
from the legati Augusti who from the time of the 
Empire were sent to the provinciae Caesareae vested 
with proconsular power in their respective provinces, 

1 Cf. Schol. ad Thuc. i. 29. 

2 Cf. C. Ostermann, De praeconibus Graecorum (Marburg, 1845), 
passim, esp. pp. 16 seq. 9 p. 93. 

3 See Cic. Ad Fam. xiii. 56; Plin. Epist. x. in; Corp. inscrip. 
Graec. no. 356. 

4 Quinctil. Insf. x. i. 5 Phil. ix. i. 



308 KINDS OF ENVOYS 

and from the legati legionum who were commanders in 
the field. 

libera. Legatio libera^ c 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 legatio 
lib era 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. 2 

Legatio vofiva was a c free legation * assumed for the 
purpose, which was frequently a mere pretext, of paying 
a vow in a province. 3 

Legati municipiorum (or nuntii) were merely mes- 

municipiorum. j j* j i v i 

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 legatm ; firstly, as indicating 
<c an 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." 4 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 

x Cic. Ad Fam. xii. 21 : "C. Anicius . . . negotiorum suorum causa 
legatus est in Africam, legatione libera." Cf. Ad Attic, xv. 1 1 . 
Ulpian, in Dig. \. 7 (de legationib.), 14 : " . . . qui libera legatione 
abest, non videtur rei publicae causa abesse, hie enim non publici 
commodi causa, sed sui abest." 

2 Cic. Ad Att. xv. 11.4; De leg. iii. 8. 18 ; iii. 3. 9. 

3 Cic. Ad Att. iv. 2 ; xv. 8 ; xv. 1 1 . 

4 Sir William Smith (ed.), Dictionary of Greek and Roman Antiquities 
(London, 1891), vol. ii. p. 23. 



RIGHT TO DESPATCH 309 

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. 

The right to send ambassadors was conceived both Right to send 
in Greece and in Rome to be a right inherent only in am^Ssadors 
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 any 
infringement even, in some cases, of a technical char- 
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 J^etve envoys, 
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, sociis 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. *E(5oe r# a-vy/cA^ro) row Trepi 
Mei/iAAoi/ ev irevO' rjfjLepais CLTTOT pencil/ e/c rfjs 'Pco/xi;? /ecu TIJV 



avaipeiv. 2 



in Rome right In Rome, more than in any other ancient community, 
aiiieTto n ^e strict right of legation was indissolubly associated 



caTcTt gn w **k tne possession of sovereign capacity. In the later 
epoch, when the Roman constitution was elaborately 
developed, there was express legislation on this matter. 3 
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 obtain 

1 Liv. xlv. 20. 2 Polyb. xxxii. I ; cf. Diod. xxxi. 23. 

3 Dig. 1. 7 (de legation.), 2, pr. : " Legatus contra rempublicam, j 
cuius legatus est, per alium a principe quid postulare potest " ; ibid, j 
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 I 
honor.), 1 8. 12; lust. Cod. x. 63 (de legat.), I. 

4 ix. 42. Cf. A. Thurm, De Romanorum legationibus ad exteras 
nationes missis (Lipsiae, 1883), pp. 92 seq. 



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, . . . ore ycrav avrwv Kvpiot, Tore Setv SidTrpea-- 
fievecrOai . . . M vvv 3ov\ovs yeyovoras. 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 . . . cirei TOUTO 
Trap' avrois eQos evTLv 

The right to send implied the right, as well as the The right to 
obligation, to receive ; and this obligation rested on the the^bHgaTioi 
sanction of the law of nations. Thus Hannibal, as Livy to receive - 
reports, was reproached for acting in contravention of 
the ius gentium in refusing to receive ambassadors from 
the allied States (220 B.C.) : " . . . legates 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, u 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- refusal 
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.). 3 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 

1 xxi. 10. 2 Donatus, Ad prolog. Hecyrae, Terent. i. 

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. ..." 



3 I2 



RECEPTION BY GENERALS 



Cases of 
refusal by 
Rome. 



Ambassadors 
sometimes 
received by 
generals. 



should they venture into Samnium, war was declared by 
Rome. 1 

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.); 2 as also in the case of the Cartha- 
ginian envoys, on the ground that the Carthaginian 
army was in Italy. 3 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. 4 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 legates lugurthae recipi 
moenibus ; iique decrevere, ... uti diebus proximis 
decem Italia decederent." 5 

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 legates." 6 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 plenary 
power in negotiations in general with the enemy, apart 
from express recognition thereof by the senate. When 

1 Liv. x. 12: "... si quod adissent in Samnio concilium, haud 
inviolatos abituros" ; cf. ibid, xxxvii. 12. 

2 Liv. xlii. 36: "Per idem tempus legati ab rege Perseo venerunt. 
eos in oppidum intromitti non placuit, cum iam bellum regi eorum 
et Macedonibus et senatus decresset et populus iussisset. in aedem 
Bellonae in senatum introducti . . ." 

3 Cf. Servius, Ad Virg. Aen. vii. 168. 

4 Cf. Grotius, Dejure belli et pads, lib. ii. 18. 3. 

5 Sallust, lug. 28. 6 Liv. xlii. 36. 



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.). 1 
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 
purpose. 2 

The commencement and, sometimes, the discon- Herald in 
tinuance of ambassadorial relationships were usually 
announced by a herald ; as when the leaders of the 
Libyans in the mercenary war, 238 B.C., sent a herald to 
Hamilcar to obtain permission for the despatch of an 
embassy, TreV^avre? ovv KripvKO. KOI Xa/3oWe? crvy^coprjfjia 

Trepl 7rpecr/3eias . . . 3 And after the defeat of Antiochus 
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 (aa-<pd\ia) should be given them, . . . /3ov\ea-0ai 
7rpe(r/3evTa$ TOV$ StaXe^Orjorojuievov^ VTrep 



In this department of international law, as in so many TO distinguish 
others, it is necessary to distinguish between the prac- jS^fn first 
tices of Rome in the first period of her history and those 
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 

1 Liv. 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." 

2 Polyb. xviii. IO : Aovs yap a.vo\as Si/x^vous avT<j> T 
/?iav TT)V eis rrjv 'Pw/uryv ev TOVTW r<2 xpovcp crvvrtXtiv eT 

3 Poly b. i. 85. 4 Polyb. xxi. 16 (13). 



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. 1 

Reception of In Greece envoys were received and despatched by the 
i^Greece. r assembly of the people. 2 They were, as a rule, intro- 
duced in the first instance by the proxenoi 3 of their 
respective cities. The Oewpol, the envoys on a sacred 
mission, were received first by the OeapoSoicoi (or Oecopo- 
SOKOI), officials specially appointed for the purpose ; the 
reception itself was termed OeapoSoKta or OewpoSoKia* 
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 by 
the magistrates, as Livy states, through the herald, in 
accordance with the customs of the Greeks. 5 During 
the debates arising out of the mission the foreign ambas- 
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 the 
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 their 
alliance, and those who took the opposite side." 6 In 
in Sparta. Sparta, on the the arrival of ambassadors, they were 






1 Polyb. xxii. 15 ; Liv. xxxix. 33. 

2 Liv. xxxii. 19. 3 See supra, p. 153. 
4 Cf. Corp. inscrip. Grace, nos. 1193, 1693, 2670. 

5 Liv. xxxii. 20 : "... postero die advocatur concilium ; ubi quum 
per praeconem, sicut Graecis mos est, suadendi, si quis vellet, potestas 
a magistratibus facta esset nee quisquam prodiret, diu silentium aliorum 
alios intuentium fuit." 

6 Polyb. iv. 34: /ACTouTTavTos Se TOVTOV TroAA^s afJi^io-^ri^ 
ervyx ave T0 irpa-yp -' rives {J^v yap arvvrjyopovv TOIS AiroAois 
<rw/Ti0(T0ai TT/OOS avTOV<s Traprjvovv TTJV crv/A/Aa^iav, wot Se TOVTOH 
avreAcyov. 



RECEPTION OF ENVOYS IN ROME 315 

obliged to report themselves immediately to the ephors. 1 

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, ol 



TO u.ev irtoTOV i$ Ttv crvKtTOV 



jj.Ta $ TavTO, TraXw eirl TOV$ iroXXovs T 
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 B.C. 3 

With regard to Rome, 4 foreign envoys were obliged Reception of 
to announce their arrival to the senate, through a prior 
notification to the praetor or quaestor 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 eW (Lat. 
munera) or Xai/re/o (Lat. /autia). 5 In this way they 
obtained permission to be received in audience. Some- Lautia - 
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, 



2 Polyb. xv. i. 
3 Polyb. iii. 20, 23 ; cf. Liv. xxviii. 7. 
4 Cf. Mommsen, Rom. Staatsr. vol. iii. pt. 2, pp. 1148-1158. 

5 Quaest. Rom. 43 : Ata ri 8e ol Tr/occr/^evovTcs ets 'Pw/^i/ OTTO&I/OUV, 
ri rov TOV Kpovov vabi/ /3aStbvTs, a7roypa<ovTcu TT/OOS TOVS 7rdp\ov<s 
rov Tafiuov. See supra, p. 225, as to lautia, etc. 

6 Sail. lug. 104. 



316 FOREIGN ENVOYS AND SPIES 

that an audience of the consuls would be granted 
to them. 1 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. 3 In 183 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. 

in the later In the later days of the Republic, as a rule, oral 
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, . . . TWV 'jrapayevoiJievwv el<s 'Pco/myv Trpea-jBeicov, o> 
Seov GOTTLV e/cacrrot? ^prjirOai, KOI cog Seov cnroKpiOfjvai, Trdvra 
ravra ^eipt^erai Sia rifc a-vy/cA^rou. 5 Written communica- 
tions were addressed to the magistrates who were then 
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, and 
even as guests of the senate, " . . . vorzugsweise als 
Sendboten an den Senat und also auch als Gaste des 
Senats." 6 

Foreign envoys If, however, the ambassadors did not duly obtain the 
p a ermfssion et necessary permission to be received in audience, they 
liable to be were li a ble to be considered as spies (speculatores\ 

treated as i V i / 

spies. and treated accordingly ; or, at the least, they might 

be entirely disregarded in respect of their diplomatic 
capacity. Thus, Illyrian legates having arrived in Rome, 

1 Liv. xxx. 40 : " legatis Carthaginiensium et Philippi regis nam ii 
quoque venerant petentibus, ut senatus sibi daretur responsum iussu 
patrum a dictatore est, consules novos eis senatum daturos esse." Cf. 
Liv. xlv. 20 : "... cum Rhodii, gratulatum se de victoria purgatumque 
civitatis crimina, dicentes venisse, petiissent, ut senatus sibi daretur.' 

2 Liv. xxix. 1 6 ; cf. Plin. Hist. nat. xxxiv. 24. 

8 Liv. xlii. 6 ; xliii. 6. 4 Liv. xxxix. 54. 5 Polyb. vi. 13. 

6 Mommsen, Rom. Staatsr. vol. iii. 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 
non postulassent, dari non placuit." 1 Similarly when 
Carthaginian envoys had arrived to treat for peace, 
05 B.C., M. Valerius Laevinus endeavoured to convince 
tie senate that they were really spies, and not am- 
assadors, and urged that they ought to be ordered to 
.epart from Italy, and that guards should accompany 
hem to their very ships, <c . . . speculatores non legates 
enisse arguebat, iubendosque Italia excedere et custodes 
um iis usque ad naves mittendos . . ." 2 

When the negotiations were completed, or for any when nego- 
eason broken off, the foreign envoys were obliged ^f^ or m " 

leave Rome or Italy, as the case may be, within broken off. 
given time. Thus ambassadors from Perseus of 

^lacedon (171 B.C.) were ordered to leave Rome 
[nmediately, and Italy within ten days ; and they were 
p uarded till the moment of their embarkation. 3 
imilarly, Aetolian ambassadors were notified to quit 
talian territory within fifteen days. 4 

A Roman law of 166 B.C., forbidding the kings of Kings of allied 
Hied States to come in person to Rome, operated ^bfcicien to 
s a great inducement to foreign States to establish ? ome to Rome 

jji j*i i-i 11 m person. 

nd develop diplomatic relationships through the 
nedium of ambassadors. 5 But at times the senate 

J Liv. xlii. 26. 2 Liv. xxx. 23. 

8 Liv. xlii. 36 : " Ita dimissis, P. Licinio consuli mandatum, intra 

1 diem iuberet eos Italia excedere et Sp. Carvilium mitteret qui, 
onec navem, conscendissent, custodiret." 

4 Liv. xxxvii. I. 

5 Liv. Ep. xlvi. : " Eumenes rex Romam venit . . . ne aut hostis 
-idicatus videretur, si exclusus esset, aut liberatus crimine, si admit- 
rretur, in commune lex lata est, ne cui regi Romam venire liceret." 
-Cf. Polyb. xxx. 20. 



HOSPITALITY TO ENVOYS 



How envoys 
of friendly 
States were 
received. 
' Locus. 1 

' Lautia.' 



1 Aedes 
liberae.' 



General 
hospitality. 



' Comitas 
gentium.' 
Admitted to 
best Roman 
families. 

Honours at 
public feasts. 



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." l Thus, shortly after- 
wards (164 B.C.), both Ptolemaeus Philometor and 
Ptolemaeus Euergetes of Egypt were received in 
Rome. 2 

Ambassadors of friendly States were received by 
the Romans with great respect, and obtained in the 
city furnished houses, ' hospitia publica ' 3 (' locus ' 4 or 
' loca ' 5 ), free quarters mraXu/xa, as Polybius terms 
it, 6 board and gifts of various kinds, Trapo-xt ( c 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 quae 
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 great 
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 Rom. Staatsr. p. 1150, n. I. 

2 Polyb. xxi. 1 8 ; Val. Max. v. I. I. 

3 Liv. xlv. 22 ; Val. Max. v. I. I. 

4 Liv. xxviii. 39. 5 Liv. xlii. 26. 

6 xxxii. 19. Cf. Diod. Sic. xiv. 93, where he speaks of 



7 Polyb. xxxii. 19. Cf. supra, pp. 225 seq., as to the treatment of 
public guests ; and see V. Ferrenbach, Die Amid Populi Romani 
republikanlscher Zelt (Strassburg, 1895), pp. 65 seq. 

8 Liv. xlv. 44 ; cf. Liv. xlii. 19 ; Val. Max. v. I. i. 



ENVOYS OF ENEMY STATES 319 

senators, and therefore had access to the senaculum. 1 
iUnder the principate similar honours were bestowed 
ion the ambassadors of kings or of independent com- 
munities. 2 Occasionally foreign ambassadors also courted 
public favour in other directions. Thus the Athenian 
^envoys Carneades, Diogenes, and Critolaus, despatched 
to Rome in 155 B.C. for the purpose of deprecating 
J the fine of five hundred talents which had been imposed 
on 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 questioned by 
DC questioned thereon by the senators individually. the senators. 
' Cum more tradito a patribus potestatem interrogandi, 
;i quis quid vellet..." 3 Pending the deliberations 
-:hat ensued, the ambassadors (as in the case of Greece) 
etired. Varro says they were conducted to a platform, 
:alled the Graecostasis, which was outside the Curia. 4 
When the reply of the senate was ready, either they 
pere recalled and received it from the presiding senator 
n person, or it was conveyed to them by a magistrate 
pecially appointed for the purpose. 5 

Ambassadors of enemy States, however, were usually Ambassadors 
ound to get the previous permission of the nearest states 7 
Loman general to proceed to Rome ; otherwise they 
rere liable to be treated as enemies. 6 They were not 
jived 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 
:taculorum in senatu datus." 

2 Sueton. Claud. 21 : "Germanorum legatis in orchestra sedere 
:rmisit." 

8 Liv. xxx. 22. * De ling. Lat. v. 155. Cf. supra, n. i. 

5 Liv. xlv. 20. 

6 Thus Livy, xxxvii. 49, says in reference to the Aetolian am- 
idors, 191 B.C. : "... Denuntiatumque si qua deinde legatio ex 

itolis nisi permissu imperatoris qui earn provinciam obtineret et 
legato Romano venisset Romam, pro hostibus omnes futures." 



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 tune demum senatus extra 
pomeria postulata noscebat et ita, si visum fuisset, 
admittebantur." l 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. 2 

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 hospitium in the villa publica, 
and obtained an audience of the senate only in the 
temple of Bellona or of Apollo, u . . . quibus vetitis 
ingredi urbem, hospitium in villa publica, senatus ad 
aedem Bellonae datus est." 3 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 the 
inns allotted to them were an insult to their office and 
position. 4 In this respect, however, reciprocal treatment 

1 Servius, Ad Aen. vii. 168. 

2 Liv. xxxiii. 24: "Macedones deduct! extra urbem in villan 
publicam ; ibique iis locus et lautia praebita ; et ad aedem Bellona 
senatus datus." 

3 Liv. xxx. 21. And cf. the last note in the case of the Macedonia 
ambassadors. 

4 Liv. xlv. 22 : "... Ex sordido deversorio, vix mercede recepti, a 
prope hostium more extra urbem manere iussi, in hoc squalor 
venimus . . 






FOR WHAT PURPOSES DESPATCHED 321 

obtained. Roman envoys despatched to foreign States, Reciprocal 
with which amicable relationships had not been estab- tri 
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. 1 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, per 
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 Macedonian! missi 
sunt, renunciarunt, sibi conveniendi regis Persei potes- 
tatem non factam." 2 

Greek and Roman ambassadors were employed for For what 
a large variety of purposes. 3 Some of these were, in despatched. 
time of peace, as follows : (i) the conclusion of treaties in time of 
of friendship, alliance, commerce, etc. ; (2) mediation ; P 6 * 06 * 
(3) a PP ea l f r help (4) conveyance of grateful acknow- 
ledgments and delivery of gifts for services rendered or 
for good disposition towards the State ; (5) effecting 
a 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. 
( i ) the conclusion of peace and negotiation as to terms ; 
(2) delivery of prisoners, demanded or offered ; (3) 



1 Polyb. xxxii. 19 : ... tacrre ovSe Aoyov eiribkyowro KaOoXov Trap' 
avruv, Aeyovrcs, ovSw avrots eivcu /cat l Pw/>taiots KOIVOV. wpbs 8e 



2 Liv. xlii. 2. Cf. Liv. iv. 52. 

3 See supra, pp. 304 seq., as to the different names given to envoys in 
virtue of their special functions. Cf. Thurm, De Rom. leg. pp. 38-72. 

X 



322 



THEIR CREDENTIALS 



Number of 
envoys sent. 



Powers and 
instructions. 



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 relating 
to the work of pacification. This was the usual 
number after the second Punic war. 1 A number less 
than three was very rarely found. 

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 </x/3o\a (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 cn/^oXa mentioned in 
connection with the conferring of honours on Straton, 
King of Sidon, Troirja-dvQw Se KGU (rvfji/3o\a r\ /3ov\tj TTpo? 
/3ao-*Aea. . . . 2 A similar use of the word is found in 



1 Liv. xxxiii. 24 ; xxxvii. 55 ; xlv. 17. 
2 Corp. Imcrlp. Att. ii. 86 ; Corp. inscrlp. Grace. 87 ; Michel, Recueil, 
93 ; Hicks, Gr. Imcrip. no. in, 11. 18 seq.\ 



<$ KCU o~vfi.j3o\a ^ f3ov\rj irp- 
5s TO v f3a<ri\a TOV StSwvtwv 6V MS 
av o 8f)[j.os o 'AOrfvaitov elSfJL eai> n 

S 7ToA.WS, KCU 6 ^8cMTlA,t'S O 2- 

t8r)i oVa//, TTCfj/rrrji nva OH 
S avrov 6 Srjuos o '^ 



POWERS AND INSTRUCTIONS 323 

an oration of Lysias delivered about the same period 
(387 B.c.). 1 This application of the term arv/uL/3o\oi> 
appears to have been overlooked by the majority of 
lexicographers. 

In Rome, though we find several examples of envoys' verbal 
mandates being merely verbal, 2 they were generally in mandates - 
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. 3 And so Suetonius says that 
after the tribunitian authority was conferred upon 
Tiberius a special commission was also entrusted to 
him to settle the affairs of Germany (A.D. 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 
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 ; 5 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 specified - 



1 Lysias, De boms Aristophanis, 2 5 : A^os ya/o 6 

s Kwr/oov, 8e>7#7 fj.ov Trpoa-eXOciv avT<p, Xcywv on A.a/? 
Trapa. /?ao-iA.ea>s TOV pcyaiXov <f>ia.\r)v \pvarr)V. . . . 
2 Cf. Cic. Ad Alt. i. 12 ; Liv. xxiii. 33. 

8 Liv. xlii. 46 : " Perseus, cum ab conloquio Romanorum in 
Macedonian! recepisset sese, legates Romam de incohatis cum Marcio 
condicionibus pacis misit ; et Byzantium et Rhodum litteras legatis 
ferendas dedit." 

4 Tiber. 1 6 : ". . . data rursus potestas tribunicia in quinquennium, 
delegatus pacandae Germaniae status . . ." Cf. Liv. xxvii. 5 I ; xxxiii. 
II ; xlv. 25 ; Tacit. Ann. i. 57. 

5 Polyb. xviii. 44 : . . . ^KOV *K Trj<s 'Pto/xTjs ot Sc/ca 6V <5i> 
\ipiccr6ai TO. Kara TOVS "E>\\r)va<s /co/u'ovTs TO T/S 

TO TTCpl T7JS 7T/OOS ^lAlTTTTOV tp7JV7/S. 



324 



WHAT PERSONS APPOINTED 



' Mandata 
libera 'full 
powers. 



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 c 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." l 



who chosen 
' 



the admiral. 



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. 

in Rhodes 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 TrpecrftevTrjv a/ma 
KOI vavapxov to propitiate the senate. 2 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. 3 In some Hellenic 
communities wide experience of affairs was so much 
insisted on as an essential qualification for taking part 

Minimum age 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- 



Proxenoi. 



fixed. 



a Liv. xxxvii. 55, 56. Cf. Liv. xxxiii. 24. 
2 Polyb. xxx. 5. 3 See supra, pp. 153 seq. 






WHAT PERSONS APPOINTED 325 



trate) VOIJLOS <$e yv XaXKiSevari fj.rj ap^at nySe 7rpecr/3ev<rai 
vewrepov CTU>V Trevr^KOin-a. 1 

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 despatched. 
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 (aAe/Tm/?) ; 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, . . . owe 
TOVTO TTOieiv 'PajyUdiW, aXXa KCLI \iav /uera TroAAi?? 
Kctl TTjOoo-racr/a? &a7rey(X7rojueVa>i> VTrep T<OV TOIOVTWV* 
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. 3 

Under the Republic, when the religious element Under the 
in public life was declining, the senate selected senators?" 
ambassadors from among its number. 4 Thus, in 
205 B.C. ten senators were appointed envoys by the 



1 Heraclides (Ponticus), Tre/n TroAiTciwv (De rebus publicis), c. 3 1 ; 
(in Historic. Graec.fragmenta, ed. C. Miiller, t. ii. p. 222). 

2 Polyb. xxvii. 7. 

3 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 . . ." 

4 Cf. Mommsen, Rom. Staatsr. vol. iii. pt. ii. p. 1158 : "Aber in 
Folge der Zurtickdriingung des sacralen Elements im Staatswesen, 
welche einen der wichtigsten Gegensa*tze der republikanischen 
Entwickelung gegeniiber dem koniglichen Rom bildet, bleibt den 
Fetialen in historischer Zeit nur das religiose Ceremoniell und werden 
mit der eigentlichen Verhandlung anfangs vorzugsweise, bald aus- 
schliesslich Mitglieder des Senats beauftragt." 



326 WHAT PERSONS APPOINTED 

consuls, " . . . consules decem legates, 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- 
in later junction with Flamininus. 3 In the later period of the 
often chosen by 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 y etc. Cicero, writ- 
ing in 60 B.C., gives an account of this procedure 
in the case of the appointment of legati to proceed 
to Gaul ; 4 and Tacitus writes, indeed, as though this 
method had once been common, " vetera exempla, 
quae sortem legationibus posuissent." 5 

Members of In certain cases of urgency, or through the insuffi- 
Sde e r questrian 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." 6 As in the case 
Abie ex- 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. 

2 Liv. xxxiii. 24 : " Decem legati more maiorum, quorum ex 
consilio T. Quinctius imperator leges pacis Philippo daret, decreti." 

3 Polyb. xviii. 42 : ... 17 (ruy/cAi/ros ai/8/oas Sc/ca /caracrT^cratra TO>V 

CTTK^aVWl/ ^7T/X7T TOV? \lpLOVVTaS . . . 

4 Ad Att. i. 19. 2-3. 5 Hist, iv. 6. 8. 
6 Liv. iv. 52. Cf. Liv. xxxi. 8. 



AMBASSADORS 1 SUITES 327 

consulships had held the province of Macedonia, should 
be included in the number. 1 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 praetorianiy and three quacstorii.* 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, 
c princeps legationis.' 3 

In the earlier history of Rome, when religion played Later 
a more prominent part in public life and was more 
closely in touch with her jurisprudence, members of the 
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," 4 Henceforth, legato 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 legato 
or oratores. 5 

Both in Greece and in Rome ambassadors were suites 
accompanied by suites, aicoXovOoi. Thus Thucydides 
speaks of negotiations in which heralds took part (that 
is, of course, in the preliminary proceedings), and 
plenipotentiaries accompanied by their suites xypvici 
KOI Trpeo-flela KOI aKO\ov9oi<f. 6 Cicero calls these O 



1 Liv. xxxiii. 24. 2 Liv. xxxvii. 55. 

8 Cf. Sail. lug. 16. 4 Liv. iii. 25. 

5 Varro, ap. Nonium, p. 529 : "... priusquam indicerent bellum 
iis a quibus iniurias factas sciebant fetiales, legates res repetitum 
mittebant quattuor, quos oratores vocabant." 

Thuc. iv. 1 1 8. 



328 



THEIR RIGHTS AND DUTIES 



asseclae (or asseculae). 1 In an epigraphic document 
we find also the secretary of an ambassador mentioned. 2 

In Roman embassies there were attaches, 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 c legati ' : " item quod ad 
legatos, oratores, comitesve attinebit, si quis eorum 
quern pulsasse et sive iniuriam fecisse arguetur." 3 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 attaches or attendants : " Facisne me tu regium 
nuntium populi Romani Quiritium, vasa comitesque 
meos ? " 4 The same historian also mentions elsewhere 
the c comites legatorum ' of a foreign State. 5 These 
* comites ' were also appointed by the Government. 

The suite attached to Roman embassies comprised a 
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 attaches, the minor members of the suite bore a 
public character. 6 

Rights and Everywhere in antiquity ambassadors were considered 

ambassadors, inviolable. Even among primitive races the persons 
of envoys are deemed to be sacred. 7 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. I. 25, where Cicero speaks of * legatorum asseclae.* 
-Corp. inscrip. Graec. no. 1837, in addendis. 

3 Dig. xlviii. 6 (de vi publica), 7 ; cf. Ibid, xlviii. 1 1 (de leg. JuL 
repet.), 5. *Liv. i. 24. 

5 Liv. i. 30; xlii. 19. 6 Liv. xxvii. 5 1 . r See/^r^,p. 303. 



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. KripvKi Se 
KCU 7rp(r3eia KOU aKoXovOoi? OTrotro*? ay (Ww, Treoi KaraXva-ews 

I ' i ** * I 

rov TToXe/uiov KCU StKwv e? IIeXo7roj/i/>7<TOJ/ KOI 'AOrjvcu^e (TTrovSas 
eivcu lovcrt KCU aTriovcri, KCU Kara yrjv KCU Kara 6d\a(rcrav. 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. 2 

Herodotus gives a striking account of the remorse Maltreatment 
and expiation of the Spartans for having maltreated the expired 5 1 b 
Persian envoys of Darius. 3 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 be 
guilty of it himself. 4 This shows a clear recognition of 

1 Thuc. iv. 1 1 8. 

2 xvii. 19 : Kal rov<s Ilepcras 8e Ka/cajs ^yto-#cu TOI? irp&rfit&t, ras 



l Bia 

3 Herodot. vi. 48. 

4 Herodot. vii. 136 : ... OVK tyrf 6/xotos ecr<r$ai Aa/ccSat/xovioicri* 

fjiev yap (rvy^eat ra TTO.VTWV dvOpwTrwv vo/Mi//,a, aTroKruvavra.^ 
, avros Bf TO. e/ceti/oicrt ri7rA^or<ri, ravra ov 7roir/(Ttv . . . 



330 LOCAL JURISDICTION 

an obligation, sanctioned by religion and law alike, even 
towards those who were considered barbarians and out- 
side the pale. 1 

There are, indeed, very few instances recorded o 
violence offered to the persons of ambassadors, even in 
case of offences committed by them in the territory o] 
the foreign State to which they were accredited. For it 
was an established rule that the representatives of foreign 
Not amenable sovereigns and communities were not amenable to the 
jurisdiction, 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- 
tuted an infringement of the law of nations. 2 
Envoy In Rome the ambassador was recognized as, in a 

personality of . .~ . r , & . 

the state. certain sense, a personification or the sovereignty an< 
majesty of the State he represented. When the Roman 
ambassadors were senators, there was no question o: 

Precedence, 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 popul 
Romani professus est." 3 Of Popilius, a Roman envoy, 
Cicero says he bore with him, as it were, the personality 
of the senate, the authority of the republic, " Senatus 
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 Polybii 
ix. 39 ; Pausanias, iii. 12. 6 ; and Stobaeus, vii. 70. 

2 Corn. Nep. Pelop. 5 : "Cum Thessaliam in potestatem Thet 
norum cuperet redigere, legationisque iure satis tectum se arbitraretur, 
quod apud omnes gentes sanctum esse consuesset ..." 

3 Sueton. Galba, 10. ^Phllipp. viii. 8. 



FORCE OF IUS GENTIUM 331 

people. 1 Hence any offence against an envoy was an 

offence against the State, against the sovereign Power. 

" . . . Item quod ad legates oratores comitesve attinebit, 

si quis eorum pulsasse et sive iniuriam fecisse arguetur." 5 

Unless due reparation was made, an offence of this kind offence against 

furnishe^i a just ground for declaring war. If during 

the existence of an armistice between two States pre- war - 

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. 3 

Any injury to envoys or heradls was considered a Sanction of the 
deliberate infraction of the ius gentium* All ancient ius f en ' ium ' 
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.' 5 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 TOUT' e/c Te A.a/3iviov Trpearfieis a(piKO/ui.voi KOI 
e a A Aw y iroXeutv crv^ywv KaTqyopovv T^? TrapavojULia?, KOI 
TroXejuLov TrapqyyeXov, el /JL*] rev^ovTai T^9 SiKtjs. 6 Tatius was 
afterwards killed in a tumult at Lavinium, whereupon 
Livy observes that he suffered the punishment which 
was due to his relatives, " illorum poenam in se 

1 Cf. Liv. i. 24 (previously referred to) : " Rex, facisne me tu regium 
nuntium populi Roman! Quiritium ? " 

2 Dig. xlviii. 6 (ad legem luliam de vi publica), 7. Cf. Just. Imt. 
iv. 1 8 (de pub. iudic.), 8. 

3 Polyb. xv. 2. 

4 Cf. Liv. i. 14 ; ii. 4 ; iv. 17, 19, 32 ; vi. 19 ; ix. IO ; xxi. 25 ; 
xxxix. 25. 

5 Liv. i. 14. G Dion. Hal. ii. 51. 



332 



RIGHTS OF ENEMY ENVOYS 



Consensus as to 
inviolability. 



Privilege of 
attaches. 



Accessories to 
legations. 



The privilege 
extended 
equally to 
enemy envoys. 



vertit." l 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.). 
Amongst the many other pronouncements of the Roman 
writers as to the inviolability of diplomatic agents, the 
following may be referred to : " Annius, tanquam victor 
arm is Capitolium cepisset, non legatus, iure gentium 
tutus . . . " 2 " 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." 5 "Violavit 
legationes, rupto gentium iure." 6 

The same privilege was extended to the attaches 
(comites) of ambassadors, 7 but probably not so to their 
suite and family. Correspondence and all things essen- 
tial to the regular performance of their duties were 
likewise considered inviolable. In the earlier times the 
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 formula 
uttered by the nominee was: "Rex, facisne me tu 
regium nuntium populi Romani Quiritium ? Vasa 
comitesque meos ? " 8 

Enemy envoys were just as inviolable as those of 
a friendly State. Thus Cicero says : " Legatorum ius 
divino humanoque vallatum praesidio, cuius tarn sanctum 
et venerabile nomen esse debet, ut non modo inte 
sociorum iura, sed et hostium tela incolume versetur " ; 
and Tacitus : " Hostium ius, sacra legationis et fa 
gentium." 10 Further there is found a specific provisio 

1 Liv. i. 14. 2 Liv. viii. 5. 

3 Liv. xxxix. 25. 4 Tacit. Hist. iii. 80. 

5 (Previously referred to) Corn. Nep. Pelop. 5. 

6 Seneca, De ira, iii. ^. 7 Cf. supra, p. 328. 8 Liv. i. 24. 

9 In Verr. iii. Cf. In Verr. i. 33 : "Nonne legati inter hoste 
incolumes esse debent ? " 

10 Ann. i. 42. 



POSITION OF THIRD STATES 333 

to this effect in the Digest : " Si quis legatum hostium 
pulsasset, contra ius gentium id commissum esse 
existimatur, quia sancti habentur legati." l 

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 
is indictum sit ? responsum est, liberos esse manere ; 
id enim iuri gentium conveniens esse." 2 

During the second Punic war, Scipio's envoys had scipio's respect 
been subjected to ill-treatment at the hands of the d f ur?n e g P thI ilese 
Carthaginians, those violators of alliances ' Poeni ^ nd Punic 
foedifragi ' as Cicero called them. 3 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. 4 

Strictly speaking, the privilege of inviolability was Position of 
valid only for the Government to which the legation 
was accredited, and not necessarily at least, in its of 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 
during the time of their official residence within the Duration of 
territory, but also during their journey to the 

1 Dig. 1. 7 (de legationib.), 17. 

2 Dig. 1. 7 (de legationib.), 17. Cf. Liv. xxiv. 33 : "Legatis in 
periculum adductis ne belli quidem iura relicta erant." 

*Deoff.\. 12. 

4 Diod. Sic. xxvii. 12 : Ot yap ets 'Po>/7i> aTroo-raXevrc? Trpeo-^evTai 
TWV Kapxr)8ovL<Dv avao-T/3e<ovTes v?rb ^ei/xwvos KaTrjvf^Orjcrav ts TQV 
vav<TTa@fj.ov. *ftv dva^Ocvrwv CTTI rbv 2/a7ri<oi/a, KCU 
/3oaWa>v a/Awatr&u TOVS acre/Jets, 6 2/ct7rtwv OVK <f>ij Seiv 
a TOIS K.ap^rj8ovioLS eyfcaAovcrtv. Ovrot pev ovv dfaOevres 
ets TTJV Kap^rjSova, ^av/Aafovres TI)V TWV 'PcD/iaccov 



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. ( l< 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, donee in urbem revertatur." l 
It is added that this rule applies to proconsuls and their 
legates, to imperial procurators, to military officers 
(tribuni mi/itum), to comites legatorum (assessors of 
legates), etc. This particular provision does not 
mention ambassadors proper, but there is no doubt 
that the rule applied equally to them. 

Thus, when in 189 B.C. Aetolian envoys were, on 
their way to Rome, intercepted by the Epirotes who 
demanded a ransom, an immediate despatch from 
Rome insisted on their release. 2 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 inviolable ; 
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 directly 
concerned in the embassy or not. 4 
Usual to obtain But the obligation to observe this privilege was not 
^"through* necessarily imposed on States through whose territory 
enemy ambassadors, or those of doubtful character, 

l Dig. iv. 6. 32. 2 Polyb. xxi. 26. 

3 Liv. xxxix. 25 : "lam ne a legatis quidem, qui iure gentium 
sancti sint, violandis abstinere ; insidias positas euntibus ad T. 
Quinctium." 

4 Diod. Sic. xiv. 93 ; cf. ibid. xvi. 57. 



Sacred 
embassies. 



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. 1 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. 2 

Similar rules obtained, in this respect, amongst other in ancient 
nations of antiquity ; as, for example, in China, ^ I s n po7t s . 
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. 3 

Punishment for offences committed against foreign Punishment 
ambassadors was very severe. Any complaints that agahS n eJ 
were made, for example, to Rome were submitted ambassadors. 
to the college of fetials for investigation. " Fetiales Judicial 

. . . . , * . * . ,. function of 

qui vigmti, qui de his rebus cognoscerent, mdicarent et the college of 



fetials. 



1 Liv. xxiii. 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." 

2 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, kc. cit. p. 7 1 . 



336 



PUNISHMENT OF OFFENCES 



Delivery of 
offender by 
fetials. 



Examples. 



Provisions in 
the Digest. 



statuerent, constituerunt." x 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 3 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 B.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. 4 " 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." 5 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. 

8 Liv. xxxviii. 42 : " L. Minucius Myrtilus et L. Manlius, quod 
legates Carthaginienses pulsasse dicebantur, iussu M. Claudii praetoris 
urbani per fetiales traditi sunt legatis et Carthaginem evecti." Cf. 
Liv. ix. 10. 

4 Val. Max. vi. 6.5:" Legatos ab urbe Apollonia Romam missos 
Q. Fabius, Cn. Apronius aedilicii orta contentione pulsaverunt, quod 
ubi comperit, continuo eos per fetiales legatis dedidit quaestoremque 
cum his Brundisium 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, 1 according to the gravity of the offence. 

Not infrequently the foreign government to which Roman 
Roman offenders were surrendered immediately liberated "* 
them. In such cases they were seldom regarded in jyo-e ofte n 

. /Y i i i i i "berated. 

Rome as having sufficiently cleared themselves, and 
were, on the contrary, often deprived of citizenship 
on their return to the city. "Quia quern populus 
semel iussisset dedi, ex civitate expulsisse videretur, 
sicut faceret cum aqua et igni interdiceret." ; 

The principle of exterritoriality follows naturally Extemtori- 
from that of inviolability. The latter represents the ahty * 
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 legati 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 

,. n r L i ..,..,.*'. from local 

diction as well as from the criminal jurisdiction, civil and 
Their houses, however, were not held to possess ? 
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 
" interposita fide publica " by extending to him and 

equity. 

1 Dig. xlviii. 6, 7 (quoted supra, p. 331). Cf. Paulus, Sentttttiae, v. 
26. i, 2. 

2 Dig. 1. 7 (legationib.), 17. 



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 
Mommsen's aequo bonoque quam ex iure gentium." 2 Mommsen 
observes that the question of ambassadors' immunity 
from the local criminal jurisdiction is an uncertain 
one " bedenkliche Frage " 3 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 
objections 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- 
Eariy example stances. An earlier example may here be recalled. 
envoy's dmg After the expulsion of Tarquin, certain envoys of 
iocS unity fr m ^ e ex ^ ec ^ monarch were despatched to negotiate for his 
jurisdiction, 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." 4 Livy also mentions a case that 
at first sight appears to be in contradiction to the 
principle of exemption from the local tribunals, 

1 Sail. lug. xxxii. 33. z lug. xxxv. 7. 

z Rom. Staatsr. vol. iii. pt. 2, p. 1153. 4 Liv. ii. 4. 






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. 1 

Should any litigation arise out of the civil transactions civil 
of diplomatic functionaries, the Roman law afforded S 
them to a large extent the privilege of resorting to officials 
the home tribunals, the * ius revocandi domum.' The 
Digest says 2 that ambassadors (as well as certain law * 
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. 3 The privilege had no 
reference to contractual transactions which took place 
both during the continuance of the embassy and at 
Rome. 4 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 
obtaining redress ; and, further, it would be in any 

1 Liv. xxv. 7. 

2 Dig. v. i (de iudiciis), 2. 3 : "Legatis in eo quod ante legationem 
contraxerunt . . . revocandi domum suam ius datur." 

3 Dig. v. i. 2. 4 : " . . . . Exceptis legatis, qui licet ibi contraxerunt, 
dummodo ante legationem contraxerunt, non compelluntur se Romae 
.defendere, quamdiu legationis causa hie demorantur." 

4 Dig. v. i. 2. 5. Cf. iv. 8 (de recept. arbit.), 32.9, as to certain 
similar 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 B.C., deprived all persons who advanced 
loans to them of the right of action thereon. 2 This 
preliminary measure was followed up more decisively 
in 67 B.C. by the lex 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 pn 
visions in the Digest relating to the principle oi 
exterritoriality, but it is doubtful if they are applicabl< 
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. i. 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 lulianus eleganter ait, 
aut impune contumeliis et damnis adficientur aut erit in potestate 
cuiusque pulsando eos subicere ipsos iurisdictioni, dum se vindicant." 

2 Cf. Asconius, p. 57 : " Rettulerat ad senatum ut, quoniai 
exterarum nationum legatis pecunia magna daretur usura turpiaque ( 
famosa lucra ex ea fierent, ne quis legatis exterarum nationun 
pecuniam expensam ferret." 

3 Cf. Cic. Ad Att. v. 21. 12: " Salaminii cum Romae versurai 
facere vellent, non poterant, quod lex Gabinia vetabat." And se 
ibid. vi. 2. 7. 



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. 1 

It was a universally recognized rule that ambassadors Neutrality of 
as such were to be strictly neutral. Their functions ambassac * ors - 
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 
Brennus, were marching against Clusium, when the war - 
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." 2 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, d>? S' eTn/c^cmJcra? 777 MX# K 
TOV CLvSpci, yvo)pi(ra$ 6 BjOei/z/0? avrov e 



l Dig. v. I. 24. i : "Legati ex delictis in legatione commissis 
coguntur iudicium Romae pati, sive ipsi admiserunt sive servi eorum." 
Ibid. v. i. 24. 2: "...lulianus sine distinctione denegandam 
actionem : merito ; ideo enim non datur actio, ne ab officio suscepto 
legationis avocetur." 

2 Liv. v. 36. 



342 REWARD AND PUNISHMENT 

Oeov$ t ft>? Trapa TO. KOIVOL KCU yevo JULIO- jmeva. Tracriv av6pu)Troi$ 
ocna KCU SIKCUO. Trpe<r/3evTOV jnev rJKOVTO?, TroiXe JULIO. Se eipyaar- 
/jLevov. 1 He then demanded the surrender of the Fabii, 
unless the Romans were prepared to regard the crime 
as a public act 2 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 Se 'Yaw rfc 
/SouXi;? (rvva-^Oeia-rjs aXXot re TroXXo* TOV <&a/3iov KctTrjyopovv 
KCU TU>V lepewv ol KoXovjacvoi <&t]Tia\ei$ evfjyov eTriOeid^ovreg 
KOI K\evoi>T$ Tcov TreTrpaynevwv ayo$ Ttjv orvyKXyrov et? eva 
TOV amoi/ rptyacrav virep rcov aXXcov a(j)O(riw(ra(r6ai. z 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. 

Reward and 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. 

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 B.C. Demetrius was appointed governor 
of Athens by Cassander, and the document probably 

iplut. Camill 17. 

2 Appian, Z> rebus Gallicis, 3 : atTo/A6vos TOVS 4>a^tovs, OTL, 

7T/00-/3VOl/TS, TTtt/Ott TOV? KOll/OVS VO/XOVS TTO\fJir](raV. rJTl T TOVS 

av8/oas es SIKTJV c/cSorous ol ytvecrOai, ei firj OkXovtri 'Pco/xatot KOLVOV 
avrwi/ ivai r5 epyov. Cf. Diod. Sic. xiv. 113: Ew/fie/^o-avTos Se 
Oarepov r(av TrpecrfievTiov K.OJL riva TWV cvSo^ore/owv 7rdp^v aTTOKTft- 
vavros, yi/ovres ot KcA.Tot TO yeyovos, ts *P(o/ir^j/ 7r/3r/?ets aTrecrretAav 
efatT^o-ovras TOV 7rpo-/3vrrjv TOV dSinov iroXtpov 7r/oo/cara/>^a- 



Pint. Camill. 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 
him one of the three hundred and sixty statues. 1 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. . . ." 2 

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. 3 

1 Cf. Diog. Laert. v. 75 ; Cic. Rep. ii. i ; Corn. Nep. Milt. 6. 

(e- 



O~TIV ay)a#os irtpi TOV orjfjiov TWV 

/cat TOV 8)fj(jLov Ttov Ata>Vwv, /cat 7roAe/x(ta)- 

v evdvTcav) kv TQ xwpa, /cat 

Atu>vecov) /cat TOV "Acrrews Sia TOV 

ov, TT/OOS <rc/>)as StcAwe ' A6r)vaiov(<s 

...... a)yr? (?) cts TO avTo /cat 

7ra/oor^TO 'A) patois, *at Trj X^PV *' 

TrtfteA^T^s at)p^cis VTTO TOV 8rjfj.ov. . . . 

(Rangabe : Antiquites helleniques, vol. ii. no. 422. The last two lines 
are inserted according to Rangabe's conjecture, based on the passage 
of Diodorus, xviii. 74.) 

3 Rangabe, Antiq. hell. no. 2298 (marble stele found in 1853 near 
the banks of the Ilissus) : 7rciS^ ot Tr/oeo-^ets, ot aTroo-TaAei/Tes TT/OOS 
TOV jSao-tAca Kdcro-avSpov, d7roc/)atVovo-i, IIoo-ctStTnrov a'VvaTroSrjfi'tj- 
o*avTa, fjL0' lavrwi' ^/)7ycrijOtov /at cairrots, dzroSet/ci/vfievov TTJV vvotav 
fy l)(t Trpos TOV of}p.ov Twv 'A 
II. KOI o"T<^avwo~ai avTbv OaX.Xov 



344 PUNISHMENT OF AMBASSADORS 

Punishment for On the other hand, severe punishment overtook 
misconduct. Suc j 1 envO y S as were found guilty of any acts of 

treachery, malversation, prevarication, or other miscon- 
duct. Plato provides in his Laws l 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, . . . 
ypa<pai /caret TOVTCOV CCTTWV o>? T&p/mov KCLI A*o? a*yyeXiap 
Kal 7riTdet$ irapa VOJULOV a<Te/3t]ardvTcov . . . , and if found 
guilty he was to suffer a penalty determined by the 
Ambassadors State. Ambassadors were forbidden to receive presents 

forbidden to ...... .. 1*1 11 

receive gifts. 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 : "I am sure you will all agree that to accept a 
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 
who is once bribed and corrupted ceases to be even a 
safe judge of what is useful for the State." 2 Xenophon 3 
and Plutarch 4 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, el v.ev 
em TW 7r\ij6ei Ttov Soopewv, 6p6u)$ KOL SiKaiti)?. Philocrates 



1 xii. 941 A. 

2 T>e Falsa Legat. 7 : 'AAAa p?i/ vir'ep yc rov 7r/ootKa, *} py, TO per 
IK TOVTWV Aa/z/3aveiv, 4 &v fj TroAis /2A.a7TTTai, TravTes otS' ort 

T ) av ctvat Setvov KCU TroAArjs opy^ acov. 6 /xevrot rov 
ov 8tw/ot(T TOUTO, aAA' cbrAws wr 

a>s e/AOt 8o/<et, TOV a7ra 
ovSe KpiTrjv en rutv o~vfj.(f)p6vT<DV ao~(^aA7j /xeveiv ry 

*Heflen.vi\. I. 33-38. *Pekp. 30. 



PUNISHMENT OF AMBASSADORS 345 

was impeached by Hyperides before the Athenians 
and condemned for corruption, amongst other traitorous 
dealings. 1 Epicrates accused of corruption on the 
occasion of his embassy to Artaxerxes escaped death 
by voluntary exile. 2 

For a false assumption of the title of ambassador, or False 
for acting in that capacity without due authority, the wf tioa 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, 

~ * \ \ f d/l' \ / / 

OVKOVV o>X eTO M ei/ irapa rov VOJULOV, 09 uavarov KeXevet TOVTMV 



etvai. 



In the trial of offences committed by ambassadors, special 
a special procedure before the tribunals was adopted, t P riaT?f U envoys' 
ISiw Se, rj Kara ru>v 7rpea-/3evTU)v ypacj)*!, Trapcnrpea-Pelas offences. 



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. 5 In this connection Quinctilian 
mentions the case of Heius, who was at the head of 

1 Hyperides, Pro Euxenippo, 30 ; cf. Demosth. De Falsa Leg. 116 ; 
Aeschines, c. Ctenph. 79. 

2 Demosth. T)e Falsa Leg. 315; Lysias, c. Epicrat. 

3 Demosth. T>e Falsa Leg. 126, 131. 

4 Pollux, viii. 46 ; and cf. Ibid. vi. 154 ; viii. 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. 



346 



PUNISHMENT OF AMBASSADORS 



in Rome, 



the legation despatched by the Sicilians to Rome ; l 
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 legati were liable to an impeachment for 
anv serious infringement of their * auctoritas,' on the 
of auctoritas.' 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 



Quaestio 

txtraordi- 

naria. 

The law de 
repetundis. 



of manners, " veteres et moris antiqui memores, 



" 2 

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 passed 
a vote in approval of the conduct of the envoys, 
" vicit tamen ea pars senatus, cui potior utilis quam 
honesti curat." Sallust 3 gives a case of a successful 
impeachment (no B.C.) of legato by means of a lex 
which established a quaestio extraordinaria (an extra- 
ordinary inquisition) to try them ; but these legato 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 legato and other public 
officials, chiefly in respect of acts of corruption or 
extortion. " Lex lulia 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." 4 



i Cf. Cic. In Verr. iv. 8. 
3 lug. 40. 



2 Liv. xlii. 47. 

4 Dig. xlviii. u. I. 



CHAPTER XIV 

RIGHT OF ASYLUM. EXTRADITION 

FOLLOWING 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 o 
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- sa 
tension. It was a tutelary right of the ancient peoples, 
and manifested itself with comparative conspicuousness 
even in the very earliest development of society. As a 
French writer says : " Ce droit plac au-dessus du droit 
commun, non pour le combattre, mais pour le garder, 
pour le suppleer quand il fait defaut et le redresser 
quand il devie ; droit tutelaire des societs naissantes, 
et qui semble meme avoir presid a leur formation. . . ." l 
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. 

1 Wallon, <Du droit tfasile (Paris, 1837). 



Right of 



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 
o f 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 Konig Assyrophernes habe seinem Sohn 
eine Bildsaule errichtet, die den zu ihr fliehenden 
Verbrechern Schutz gewahrt." * Some writers 2 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. 3 

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. 4 Certain cities of the Levites 
were places of refuge 5 for involuntary homicides. 6 It is 
noteworthy that these provisions applied equally to 
aliens 7 and to slaves. 8 

1 A. Bulmerincq, Das Asylrecht und die Auslleferung fliichtiger 
Verbrecher. Eine Abhandlung aus dem Gebiete der unwersellen Rechts- 
geschlchte und des positiven Volkerrechts (Dorpat, 1853), p. 12. 

2 E.g. Simon, Des asy/es (in Hist, de Facad. des inscrip. et belles 
lettres, Paris, 1746, p. 36) ; cf. Otto von Gerlach, Das alte Testament 
(Berlin, 1847), p. 199. 

3 Cf. Helfrecht, Hlstonsche Abhandlung von den Asylen (Hof, 1801), 
p. 9 ; Simon, loc. cit. (These references are given by Bulmerincq, op. cit.) 
*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 Deuf. xxiii. 15, 16. 



ASYLUM IN GREEK TEMPLES 349 

Coming to Greece we find that suppliants were there in Greece, 
likewise considered to enjoy inviolability, oon/X/a, and to enfo^ed" 15 
be under the direct protection of Zeus. There were <^v\ia. 
express legislative measures in their favour. 1 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 as a sanctuar y- 
afterwards erected ; and his tomb served as a place of 
sanctuary for slaves, and for all who were poor and 
oppressed, KOI KCITOU jmev ev /mea-jj ry Tro'Xet Trapa TO vvv 
yv/u.vd<riov' ea-n Se <pvfyov oucerai? KCU Tra<n TO?? 



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, 
TO TJ?? 'AjOreytu^o? iepov, o Keirai /ULCV fj.Tay 



And Livy refers to these asyla and to the Delian temple 
of Apollo in particular, "... templum est Apollinis 
Delium . . . ubi et in fano lucoque ea religione et eo 
iure sancto quo sunt templa, quae asyla Graeci ap- 
pellant. . . ." 4 Polybius, again, speaking of the impious 
nature (jrpay/uLa TTOLVTWV aar/3(TTaTov^ 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, Kairoi Traa-t rot? 
KCLTGKfiwyovcri TVJV a<r(f)d\iav Trape&Keval^e TO iepdv, *av 
Qa.vd.Tov Tig ft KaTaKeKptjuLevos. The sanction of this obliga- 



1 Diod. Sic. xiii. 26 : ofrrot Trpcurot TOV? Karcu^vyoiras 

TOV9 7T6/01 TWV IKTWV VO/XOVS TTtt/Ja TTaCTLV aV^/3(U7TO4S i<r\V<TO.l TTO.pt- 



36. 3 iv. 18. *xxxv. 51. 



350 ASYLUM IN GREEK TEMPLES 

tion was imposed by the "common laws of the Greeks/' 
KOiva TWV EXXrJi/ow v6/unjj.a. 1 

It would seem that strangers and slaves, as well as 
other fugitives, had access only to the public temples, 
TO. St]jmoT\fj } and not to the temples consecrated for the 
use of a particular community, ra SWOTIKOL ; 2 and, 
further, those who were an/moi (corresponding to the 
' capite deminuti ' of the Roman law), that is, deprived 
of civic rights, were excluded. 

intentional 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. 3 

Temples and Very frequently, however, temples in Greece gave 
security even to robbers, besides rendering inviolable 
fugitive slaves, and those flying from the enemy, ecm 
SovXw (J)VI/ULO$ /3ft>jUO9, 6(777 KOI Xt](rrai$ a/3e/3tj\a TroXXa TWV 

lepCOV KOi TToXcfJUOVS (pl>yOVT<5, OLV ayoXyUttTO? \d/3(i)VTCll J 

vaov, Oappova-iv* 

1 Diod. Sic. xix. 63. 

2 Cf. S. Petitus, Leges Atticae (1635), p. 77: "Peregrinis 
servisque licere publica Atheniensis populi templa adire, vel videndi 
causa, ibidemque supplicibus sedere " ; cf. ibid. p. 84. 

3 Thuc. iv. 98 : /cat yap TWV a/cowttui/ d^a/oT^/jtarcuv Kara<j>vyrjv 
etvat TOV? /3a>/xoT;s, irapavofiiav re tirl rots prj dvdyKy Kaxots 

KCU OVK irl TOtS (XTTO T0)l> iyA(o/XOV TL ToA/Z^CrCKTll'. 

4 Plut. De superst. 4. 



SUPPLIANTS INVIOLABLE 351 

Oracles often pronounced suppliants to be inviolable, suppliants 
row t/cera? JULOV e/c TOV vrjov Kepaifyt? ;* and any breach ^2-ciwi by 
of this established rule was punished both by sacred law lheoraclw - 
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 Sfnon- 011 
their protection. 2 " For about the time of Aphidas, f sr j? l cc f 
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 
sore pressed in war. Put them not to the sword, nor 
wrong the suppliants, for suppliants are sacred and 
hallowed/ ' 



TOV? fj,rj crv 
fj.r)S' iKcras dSiKeiv' IKCTCU 8' te/ooi re /ecu ayvoi.' 8 

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, kvayels 
r^9 Oeov* 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. 6 
Earlier in his work Pausanias mentions that the Lace- 
daemonians, heedful of the warning of the Pythian 

1 Herodot. i. 159; cf. ibid. i. 157-159. 

2 Pausan. vii. 25. I : Tb Sc TOV c lfcc<rtov fJLi/jvifia. 7ra/5<rri fj.lv rot? 
e<? TT)V 'EAtKr^v, Trapecm Se /cat dAAots 8i8a\0fjvai TroXXoi? a>? crnv 



<cu'vT(u Sc KCU 6 0os 7ra/oouvwi> 6 V 

*lbid. * Ibid. 

5 Pausan. vii. 25. 2 : . . . f) TroAis (rvv\fi re 6/iov KOL ur\vp$ T<j> 
OXTTC oiKiav /xTySe/xtav TWV tv AaKcSai/xon dvTi(r\iv. 



352 



SUPPLIANTS INVIOLABLE 



Offences to be 



priestess that vengeance would overtake them if they 
maltreated the suppliants of Zeus of Ithome, allowed 
the Messenians to leave Peloponnesus under a truce, 
V7r6a"7rovSoi /ULCV CK TLe\O7COwri<TOv TOVTGW eveKCt a(pi6rj<rav. 1 

All offences against the right of asylum had to be 
ted> 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. 2 
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 O'ileus. 3 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 himself 
was killed by Athena with a flash of lightning, and his 
body was washed upon the rocks. 4 

Sometimes in diplomatic negotiations, or in the special 
by 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 of 
Antipater's cruel and wrongful treatment of Greeks, 
and of his going so far as to drag some from the temples 
and others from the altars, &v ol jmev e/c TWV lepwv 
ayoimevoi JJ.CTOL j3ia$, ol o a^ro TWV /3a)/u.u)v a.7ro<T7ru>]u.voi. . . . ; 

The protection thus afforded to suppliants, whether 

1 iv. 24. 7 ; and cf. Thuc. i. 103. 2 Thuc. i. 126. 

3 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. Troad. 70 seq. 
4 Cf. Virg. Aen. i. 40 seq. ; xi. 259-260 : 

"... scit triste Minervae 
Sidus et Euboicae cautes ultorque Caphereus." 

5 Polyb. ix. 29. 



infractions 



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 ^erdotai 
voice of humanity re-echoed through the oracles, privilege. 
". . . Le droit d'asile n'est pas un privilege sacerdotal, 
c'est la voix de I'humanit6 qui parle par la bouche des 
prtresses de Delphes." l 

Further, apart from the sacred sanction, positive law Sanction of 
dealt severely with those who were found guilty o f P smvelaw - 
this sacrilege, iepocrv\ia y 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, 2 
who were torn away from the altar in the Acropolis. 

In the case of belligerent relationships, 3 however, the Different 
practices of States as to the treatment of suppliants and 
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, 
oiKiav IJLCV avew-^Oai Travav KOI iroXiv ev Botoma TOI? 
<$eo/ULvoi$ 'AOrjvaicov, TOV Se TOJ ayo/mev(p (pvydSi 
6(j)i\eiv 



1 Hist, du dr. des gens, vol. ii. p. 135. 

2 Thuc. i. 126: KCU aVo rovrov tvaycis KOL aXi.Tijpi.oi rrj<s OQV 

KtVOt TC KO.\OVVTO Kttl TO l>OS TO am' 6/CCtVOJV. 



3 On this see more fully infra, chap. xxv. 

4 Plut. Lysand. 27. 

z 



354 



NEUTRALIZATION 



Conventions as 



Those who, for any reason, fled from their country 
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. 1 

Not infrequently cities entered into special con- 
ventions with regard to the right of asylum in their 
respective territories. Thus there is preserved a 
document embodying the note that was exchanged 
between the lonians of Paros and the Allarians of 
Crete on the subject of this right. 2 

Sometimes, again, a number of States agreed to regard 
certain temples and, indeed, entire towns, as enjoying a 
permanent privilege of affording protection to fugitives, 
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 3 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. 4 

In Rome the privilege 5 was not so emphatically 
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 

1 Plut. Lysand. 30. 

z Corp. imcrlp. Grace, no. 2557 ; J. Barbeyrac, Histoire des anclens 
traifes, 2 vols. (Amsterdam, 1739), no. 338; Michel, Tt^ecuell d ^ Imcrlp. 
gr. no. 47. 

3 Corp. Imcrlp. Grace, nos. 3045 seq. ; Michel, ^ecueil d'lmcrlp. gr. 
nos. 51 seq. ; cf. Egger, Traifes publics, p. 157. 

^Ibld. no. 3045 : . . . Kpivopev en/at TTJV 7rdA.ii/ /cat TTJV \copav tepdv, 

KO,0d)S KCU VVV CO-TtV, KOI OCTvXoV KCU a(f)OpO\6yr)TOV ttTTO TOV 8qfJLOV 

TOV 'Peo/xouwv. . . . 

5 See also, on right of sanctuary in war, chap. xxv. 



RIGHT OF ASYLUM IN ROME 355 

Greek term aa-vXla. A remark of Livy 1 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. 2 

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 fa 
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. He 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 jmera^v -^wpiov TOU re 
KaTnrwA/ov KOI T/9 a/Cjoa? . . . lepov aveis aarv\ov ucerac? . . . 
KOL el fiovXoivro Trap' avrw juieveiv, TroXire/a? jULereSiSov KOI 
yn<S /uiolpav, iji> KTT/CTGUTO TToXejULtous a<pe\6ju.vo$. s 

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 

1 xxxv. 51. 

2 Cf. G. F. Schoemann, Opuscula academua y vol. i. pp. 19 seq. ; 
Jaenisch, De Grace . asy/is, pp. 6 seq . (References given by E. Caillemer, 
in Daremberg-Saglio, 2)/V/. de$ Antiq. s.v. Asylia.) 

3 Dion. Hal. ii. 15; cf. Liv. i. 8 ; Strabo, v. 3. 2; Plut. 1(omul. 9 ; 
Dion Cassius, xlvii. 19. 



356 RIGHT OF ASYLUM IN ROME 

wood. 1 But, as Caillemer points out, 2 the statement 
of Dion Cassius 3 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, 4 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/ lepov aa-vXov. 5 
There are no conclusive reasons for inferring that the 
temple was merely a venerated and respected sanctuary, 
u un sanctuaire venire et respecte." 6 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. 

in later Roman 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 flags of the legions, and the Roman eagle afforded 
shelter to those seeking protection. 7 Tacitus tells how 
Munatius Plancus was compelled 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. 8 Another writer speaks 

1 Cf. J. A. Hartung, !D/> 3(eligion der ^mer (Erlangen, 1836), 
vol. ii. p. 57. 

2 In Daremberg-Saglio, Diet, des Antiq. s.v. dsy/ia, vol. i. p. 51 o. 
3 xlvii. 19. 4 Loc. cit. 5 iv. 26. 

6 Caillemer, ibid. p. 510. 

7 Cf. Simon, Des asyles, loc. cit. p. 40 ; Helfrecht, H istor. Abh. von 
den Asyl, p. 5, 

*Annal. i. 39 : "... neque aliud Munatio Planco periclitanti sub- 
sidium, quam castra primae legionis \ illic signa et aquilam amplexus, 
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." 1 Similarly, the statues of statues of the 
the emperors gave protection. Tacitus, writing of the ^P** "- 
beginning of the first century A.D., 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, P rmle e 
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. 2 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, JettSTvirgin. 
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 intendantur, neque ipse audeat ius experiri ob effigiera im- 
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 of a purpose. 1 Likewise the house of a flamen Dialis (priest 

lhs * of Jupiter) was regarded as furnishing a safe refuge. 2 
Conception of With the Romans, as with the Greeks and other 
vengeance for ancient peoples, there was a prevailing belief that viola- 
o f the gements ti ns f 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 iepo<Tv\la (or lepocrvXrjcrii) 
Punishment by by their municipal law, so the Romans fixed a punish- 
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 ad 
bestias,' (exposure to wild beasts), and even ' vivi- 
comburium,' (burning alive), and c furca,' (scourging 
followed by crucifixion). 3 



The practice of There were from time to time, in all the countries 

extradition. Q f ant iq u j t y ) man y 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 

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 



1 Plut. Numa, 10 : ... K&V dyopevy nvl TT/SOS Odvarov 
<rvvTv\(ixrw, OVK ai/cupctTcu 8fi 8e aTro/Aoorai TTJV TrapQevov OLKOVVIOV 
KCU rv^atav KCU OVK cgcmTrjfcs yeyovevat r)i/ d.7rdvnja-iv. 

2 Aul. Gell. x. 15. 

3 Cf. W. Rein, Criminalrecht der Corner (Leipzig, 1844), p. 694; 
and see especially T. Mommsen, <Das romische Strafrecht (Leipzig, 1 899). 



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 fSf^to 
the Christian era, and contemporary with the age of cxtradition - 
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. 1 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 treaty ' 
provision for the extradition of fugitives from justice. 2 

In the time of Cyrus, it appears, the lawfulness of Doubts as to 
extradition was still doubtful. Pactyas, the Lydian, its legality ' 
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, 

1 See P. Foucart, in Daremberg-Saglio, 'Diet, des Antiq. s.v. Asylia ; 
and Egger, Traites publics, pp. 243 seq. 

2 Cf. Art. IV. of the outline of a Chinese treaty given by Martin 
(in Inter. Review, New York, vol. xiv. (1883) p. 72). 



3 6o THE PRACTICE OF EXTRADITION 

realized the wrongfulness of their conduct, and duly 
expiated it. 

State interest Later, political considerations generally, and State 
prevrii<S y over interest more particularly outweighed religious scruples 
religious 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 
enabled to demand the extradition of its own fugitive 
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. 

Extradition was always demanded for offences against 
the majesty of a State, such as instigating insurrection, 
or against individuals performing public functions. In 
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 

1 Liv. xxxviii. 33: "... legates deinde misit ad deposcendos 
auctores defectionis, et civitatem in pace futuram, si id fecisset> 
pollicentis, et illos nUiil 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. 1 

If both surrender of the criminal and his due indict- if surrender 
ment were refused, then, in some cases, the retributive 
measure of androlepsia (o^poX^ta) 1 was sanctioned by 
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 homlcldes * 
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, oi /mev yap (fiovov <pevyovTe$ ei$ eTepav TroAtj/ 
/xeracTTaJTe? owe e^ovcriv e^Opou? TOL>? UTroSe^a/mevov?. . . . 8 
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. On a 
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. 4 

1 Liv. 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. 3 Demosth. c. Ar'utocr. 137. 
4 Rangabe, Antiq. hellen. no. 47 2 : 

.......... crov 



<rw/>iaT)a>i/ ev Xiy, a7rrrtAev T< KV/otw, (7rAoioi> 
Auxr)a/Mvos eis ravra. 



362 



THE ROMAN DEDITIO 



International 
deditio in 
Rome. 



Relation to 
the civil 
noxae datio. 



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 lex Aquilia ; for outrage and rapine, 
by the edict. 1 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. 2 Similarly the 
Twelve Tables provided that compensation could be 
made for damage (fauperies) caused by an animal by 
means of the same process of* noxae deditio/ 3 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 wir 
ihn kennen, kann leichter auf die Gewissenhaftigkeit 

1 Gaius, Imt. iv. 76 : " Constitutae sunt autem noxales actiones 
aut legibus aut edicto praetoris ; legibus, velut furti lege XII. tabu- 
larum, damni iniuriae lege Aquilia ; edicto praetoris, velut iniuriarum 
et vi bonorum raptorum." 

^Ibid. iv. 75 : "Ex maleficiis filiorum familias servorumque, veluti 
si furtum fecerint aut iniuriam commiserint, noxales actiones proditae 
sunt, uti liceret patri dominove aut litis aestimationem sufferre aut 
noxae dedere. erat enim iniquum nequitiam eorum ultra ipsorum 
corpora parentibus dominisve damnosam esse." 

8 Just. ///. iv. 9. 



THE ROMAN DEDITIO 363 

des rechtschaffenen Marines als auf religiose Motive 
zuruckgefuhrt werden." l 

And so in international relationships it was univer- Delivery of 
sally conceived in antiquity, especially in the earlier efojipation by 
ages, that the delivery of an offender to the offended the Slate - 
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 : <c 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 ?" 2 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. i. 

2 Liv. ix. I : " 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 tarn 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 goo 
surrendered to the Romans, in order that no trace o 
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 

fnsSions. offender against an ally should be tried in the country 
and by the tribunals of the latter ; and institutions 
analogous to the Roman c deditio ' also existed amongst 
them. 1 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 

deditio. v /? *. J . i j i 

if injured party an application to the praetor who charged the recu- 
a Roman. perators to conduct a preliminary examination of the 
recuperators, 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 
indicium 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 private 
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 
Roman senate and the Roman people, to the foreign 
sovereign to demand satisfaction, ' res repetere,' or, if 
adequate reparation were refused, to declare war. 3 
if injured On the other hand, if the injured party was a foreign 

party an alien 

subject. T^. TT . 

1 Liv. i. 24, 32 ; vin. 39 ; ix. I ; Dion. Hal. n. 72. 

2 G. Fusinato, Le droit international de la re'publique romaine (in 
Rev. de dr. int. et de leg. comp. vol. xvii. (1885), pp. 290 seq.}. 

8 These proceedings are considered infra, chap. xxvi. on the fetials. 



PROCEDURE IN DEDITIO 365 

subject, 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 1 as ' oratores ') to demand the surrender of the Foreign 
culprit. They were presented, as a rule, by the consul demand 
to the senate (as has already been shown in the case of surrender - 
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 h] 
it involved wide issues, when a special commission of 
Roman citizens was charged to investigate thoroughly 
the affair, and facilitate the functions of the fetial 
magistrates. 2 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. 3 When the extradited Roman 

1 Cf. 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. Aen. xi. 331 ; and see supra, pp. 305, 327, 328. 

2 Liv. iv. 30. 

3 Dion. Hal. ii. 72: av Sofaxrt TO, irpoa-^Kovr' cyKaXetv, TOVS 
TCUS am'ais (rvAAa/JoVras K8orovs TOIS dSiKijOcuri. Tra/oaoV 



366 



DECLINE OF EXTRADITION 



Decline of the 



Usually 
retained for 
offences of a 
public 
character. 



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 ' 
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. 1 

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- 

1 C. Sell, Die Recuperatlo der Rb'mer, p. 154: "Denn die jedes- 
malige Sendung der Fetialen war, als die RQmer immer mehr mit den 
verschiedensten VQlkern in Beriihrung kamen, und also auch die 
wechselseitig vertibten Verbrechen haufiger wurden, zu weitlaufig. 
Uberdies war aber auch der Grund im Laufe der Zeit weggefallen, 
der jener Verfahrungsart das Dasein gegeben, und die MOglichkeit 
verschwunden, den frUheren Gang der Procedur fortwahrend beizu- 
behalten." 



CASES INVOLVING EXTRADITION 367 

cipal law. Extradition in the first case was preceded 
by a preliminary cognitio extraordinaria, (extraordinary cogniti* extr 
judicial inquiry), and then by a regular trial cu \. ordinaria 
minating in a precise sentence accompanied by a 
statement of the grounds therefor. Extradition in the 
second case presupposed an already established treaty 
between the countries involved, stipulating the mutual 
resort to the procedure, and furnishing a juridical 
sanction for it. Again, extradition for offences against 
private individuals was effected c ad iudicandum * ; but 
for a breach of the law of nations, it was effected c 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 1 ) the 
4 receptor noxae' (the injured person to whom the 
offending individual was surrendered) of private law 
acquired over the c deditus ' an unlimited * potestas 
statuendi ' (power to determine his fate). 

The commonest cases which involved offences against Cases 
the law of nations, and in which extradition was allowed extraction, 
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 ambassadors, 
.ambassadors, and secondly, breach by the ambassadors 
themselves of their obligation to observe neutrality and Breach of 
not take up arms. These two cases have already been ambassadors. 
;considered. 2 

Thirdly, extradition was resorted to in the case of conspirators, 
conspirators or instigators of war or rebellion, even if S 
ithe offending individuals were subjects of the State 
.effecting their surrender. Thus, the Caeritians delivered 
(351 B.C.) to Rome the Tarquinians, as the instigators 
of their revolt. The Caeritians pleaded that the Tar- 
'.quinians 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 
ttheir depredation ; and that they were therefore prepared 

l Loc. cit. 2 See supra, pp. 335 seq., 341 scq. 



368 CASES INVOLVING EXTRADITION 



Incursions in 
absence of 
regular war. 



Violation of 
treaty. . 



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. 2 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 Roman colonists, " infandae 
colonorum caedis et defectionis auctores." 3 They were 
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. 4 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. 5 And, again, a few 
years later (193 B.C.) the Aetolians surrendered to the 
Romans certain of their number for having instigated 
the inhabitants of Naupactum to defection. 6 

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- 
bassadors from the injured Laurentes came to Rome 
to demand justice, TO. SIKCUO. airairelv^ for an attack on 
their territories by some friends of Tatius; and 
Romulus was of opinion that the offenders ought 
to be delivered up to the sufferers. 'AfpiKo/mev^ $e 
7rpe<T/3elas Trapa TWV tjSiKijfJievcav Kcii TO. SIKGII aTraiTova"^ 
6 /J.ev 'PatyxuAo? e$//cata><7e TrapaSovvai TOVS Spd<ravTa$ Toft 
aSucrjOetoriv awdyetv. 7 

Further, violation by a citizen of any provision in a 
treaty rendered him liable to surrender to the offended 



1 Liv. vii. 20. 2 Liv. viii. 19 ; viii. 39. 

4 Liv. xxix. 3. 5 Liv. xxxiii. 29. 

7 Dion. Hal. ii. 51. 



3 Liv. ix. 24. 
6 Liv. xxxvi. 28. 



SURRENDER OF SPONSORES 369 

government, apart from his having committed an act 
for which, in any case, deditio could be lawfully 
demanded. 1 

Sometimes, also, at the conclusion of a war, in which At conclusion 
the defeated side had been the first to commence u 
hostilities, those who had been responsible for the 
war were ordered to be delivered up to the victors, sometimes 
Thus, after the defeat of the Samnites (330 B.C.) conquerors. U 
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 agreeable to justice 
and equity, "quaque res per fetiales 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. 2 

Again, when a Roman general concluded with the Sponsors 
enemy a sponsio, the terms of which were subsequently ^Sfnot ' ' 
repudiated by Rome as being detrimental to State ratlfied 
interest or inconsistent with any aspect of public 
policy, the Romans surrendered him and his c con- 
sponsores,' his colleagues in the engagement, to the 
enemy, as a compensation for their refusal to ratify 
the sponsio in question. 3 This international procedure 
obviously bears some analogy to that of the noxae 
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. viii. 39. 2 Liv. viii. 39. 

3 Liv. ix. 8, 9, 10 ; Plut. Tib. Gracch. 7 ; Cic. De off. Hi. 30 ; 
De orat. i. 40 ; ii. 32. 

2 A 



370 SURRENDER OF SPONSORES 

('ex contractu ') against the sponsor; " sponsio . . , 
neminem praeter sponsorem obligat." 1 Rubino 2 is of 
the opinion that the practice of annulling such spon- 
siones 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 sponsio^ 
and partly to appease the gods, " ad 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." 

striking A striking instance of this kind of surrender was that 

S^TJfthe the arising out of the Caudine peace. In the war between 
Caudine peace. 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." 3 "When 
the customary decrees of the senate were passed," says 

1 Liv. ix. 9. 

2 J. Rubino, Untersuchungen fiber romische V erf as sung und Geschichte 
(Cassel, 1839), pp. 264 seq. 

3 Cic. De off. iii. 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."' 1 Accordingly, Postumius and the 

1 Liv. ix. 8 : " Quo creati sunt die, eo (sic enim placuerat patribus) 
magistratum inierunt, solemnibusque senatus consultis perfectis, de 
pace Caudina rettulerunt ; et Publilius, penes quern fasces erant, 
* Die, Sp. Postumi,' inquit. Qui ubi surrexit, eodem 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 



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 
earn rem noxam nocuerunt, ob earn rem, quo populus 
Romanus scelere impio sit solutus, hosce homines vobis 
dedo" 1 ). 

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 2 (137 B.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 a 
public violation of faith ought not to be expiated by the 
blood of a single individual. 4 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, nee quicquam ex ea 
praeterquam corpora nostra chbentur Samnitibus. Dedamur per 
fetiales nudi vinctique ; exsolvamus religione populum, si qua obli- 
gavimus, ne quid divini humanive obstet, quo minus iustum piurnque 
de integro ineatur bellum.' " 

1 Liv. ix. 10. 

2 Cic. De orat. i. 40 ; ii. 32 ; Pro Caec. 34 ; cf. Cic. De of iii. 30. 

3 Cic. De off. iii. 30. 

4 Velleius, ii. i : "... ilium 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. 2 

Owing to the annulment of the sponsio concluded The sponsio 
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, a>? avTOKpciTCDp, as it has been expressed 8 
the sponsor was delivered by the fetials to the enemy; 
but his surrender, too, was not accepted. 4 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 sponsionesTte sponsions 
entered into with Jugurtha (in and no B.C.) by the with )ugurtha - 
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 sponsio that no conven- 
tion could bind the people without their authority, 6 
and, secondly, that in the opinion of some writers 6 
Jugurtha was considered outside the law of nations ; 
or that in the opinion of others 7 Rome did not 

1 Cic. De oraf. i. 40 : " Memoria proditum est quern 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. 

3 Zonaras, viii. 18. 4 Val. Max. vi. 3. 3. 

5 Sail. lug. 39: ". . . suo atque populi iniussu nullum potuisse 
foedus fieri." 

6 E.g. Nissen, Der caudiniscke Friede (in Rheinisches Museum fir 
Philologie, 1870, vol. xxv. p. 49). 

7 E.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 bundbruchigen Jugurtha keine religiOsen 
Rticksichten zu beobachten hatte." 



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 religio, the Romans 
at that epoch did not trouble themselves too much 
about it. 1 

1 Rom. Sfaafsr. vol. i. pt. i. note 2 : "In den Jahre 643 und 644 un- 
terblieb sie ebenfalls, wohl nicht well man Jugurtha als ausserhalb des 
Volkerrechts stehend betrachtete, sondern well die Cassirung des 
Vertrages an sich auch ohne die Auslieferung mOglieh war und man 
es mit der retigio nicht mehr genau nahm." 



CHAPTER XV 
NEGOTIATION AND TREATIES 

As was shown in the chapter dealing with ambassadors, Different kinds 
international or interstatal negotiations had attained in 
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 1 : 

The (rwOrJKr]* a general term for convention, covenant, 
treaty ; the term is sometimes used in the plural to 
denote the articles of agreement. 3 

Occasionally avvOeo-is* or a-wOea-lai 5 is used (especially 
by the poets) with the same meaning as crvvOjiaj. 

'0/xoAo'y/a, agreement or compact ; frequently em- 
ployed in reference to terms of surrender. 6 

AiaXXayri, a truce ; terms of reconciliation on the 
cessation of hostilities. 7 

2iWa*?, 8 a covenant, contract. 

1 Cf. Egger, Etudes hut. sur let (r. pub. . . . , chap. i. 

2 Thuc. v. 3 1 , etc. Aristotle discussing the meanings of law (VO/AOS) 
and contract (crwftjKij), says that the law itself is a kind of contract, 
so that anyone who violates a contract violates the law, Kat oAtus 
auros 6 vo/xos (rvvdrJKrj TIS TTM/, ware ooris aTrwrret >} dvatpti crvv- 
BrjKrjv, TOVS vofjiovs avcupct (Rhet. i. 15). 

3 Thuc. viii. 37 ; cf. Plato, Crito, 54C. 

4 Pindar, Pyth. iv. 299. 6 Hom. Iliad, ii. 339. 

6 Herodot. vii. 156; viii. 52; cf. Thuc. vi. 10; Plato, Theaet. 
I45c;etc. 

7 Herodot. i. 22; Aristoph. Ach. 989. 8 Demosth. c. Tfoocr. 37. 



376 



KINDS OF TREATIES 



A treaty of peace in the strict sense was termed 
elprivri? the Latin pax. 

A treaty of peace or pacification concluded on the 
cessation of civil discord was usually called a &aAvW?, 2 
which, as a rule, included a proclamation of amnesty, 



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, eKe-^eipia 3 (literally, holding 
of hands, x ef '/)5 or aj/0 X at ' (in the plural, like the 
corresponding Latin induciae) ; and the solemn truce, 
(nrovSai, 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 'OXv/xTn/ca* o-Trov^a/. 4 In this respect it 
practically amounted, therefore, to a general treaty of 
neutrality for the time being. 5 This word is sometimes 
also used with the meaning of formal document, or 
treaty, elp^rai ev TOLLS (TTrovSais. 6 

Andocides draws a certain distinction between eipyvq 
(not a-vvOrjKrj, as Egger 7 says, which, of course, is a 
mere oversight) and a-TrovSai 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 (eipqwi) and treaty (o-7roi/<W) 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. Defals. legat. 77 ; Andoc. De pace, 8. 17. 

2 Demosth. In Midiam, 119 : ... ijfiov Se KOU TT/SOS e/xe avr<p . . . 



ras 



3 Thuc. iv. 58, 117 ; v. 26, 32 ; Xenoph. Hellen. iv. 2, 16. 
4 Thuc. v. 49. 5 Plut. Lycurg. i. 6 Thuc. i. 35. 

7 Op. cit. p. 1 2, footnote. 



KINDS OF TREATIES 377 

of such a treaty ' that the Lacedaemonian conquerors 
had made terms with the Athenians. 1 

The words cnrovial and sponsio seem to be cognate, vrovkd 
Egger 2 says Gaius denies their kinship either in respect ar 
of their meaning or of their etymology. In point of 
fact, Gaius speaking of the formula 4 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." 1 

In the treaty between Argos and Lacedaemon, 
according to the text given by Thucydides, we find the 
words (nrovSat and cruyu/xa^/a (symmachy) used as prac- 
tically synonymous. 4 

A treaty supplementing, modifying, or rectifying a 
previous treaty or peace was described as eiravopQuxri 
TW eipqvijs (or (n/i/ft}/o^). 

A convention between two or more States establishing 
a reciprocity of civic rights, on the basis of a greater or 
lesser equality, was an tVoTroAn-e/a, 5 a term which has /<roTo\t 
a somewhat wider significance than the Latin foedus. 
(The confederacy or league with interchange of civic 
rights was called oru/xTroXtTe/a.) 6 

There were also the o-u/x/xa/a 7 offensive and defensive 



1 T)e pace, 1 1 : OTTOCTOL ovv ravra Aeyowti/, OVK opOus yiyixo- 
(TKOIXTLV flp-^vrj yap /cat anrovSal 7roA.v Stat^epoi ' 
eipijvrjv p,v yap 4 torov Trotorvrat TT/OOS aAA^A.oi 

7T/Di wv av Sitt^epcovraf crrrovSas 8', orav Kpar^o-axri Kara rbv 
/xoi/, ot KpetTTOvs rots ^TO(T(riv ^ 7rtTay/xaT(ov iroiovvrai. 

2 Of. cit. p. 12, footnote : "Quant A la sponsio des Latins, Gai'us 
lui-meme nous avertit qu'elle ne se rattache, ni pour le sens ni pour 
Tetymologie, au grec o-TrofSr}." 

3 Gaius, iii. 93. 4 v. 78. 

5 Corp. inscrip. Graec. ii. p. 410; Polyb. xvi. 26. Cf. supra, 
pp. 141 seq. 

6 Cf. Polyb. ii. 41. 12 ; iii. 5. 6. Cf. supra, p. 144. 
7 Herodot. v. 63, 73. 



3/8 



ROMAN TREATIES CONCLUDED 



alliance for war and peace ; and the en-i/ia^/a, 1 military 
alliance mainly for defensive purposes. The crv/uL/uLa^la 
was a designation of lesser extent than the crvvOfati, which 
is shown by an epigraphic passage [ev TOM?] 
(rvvOrjKdis <rv/j,iuLa-)(iav Trpo$. . . . 2 Sometimes the 
was a separate engagement supplementary to the treaty 
of peace. 3 

The <nV/3oAa 4 (used in the plural form, the singular 
a-vjULpoXov 5 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 period 
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 
acc a ord^gas s 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 usual 

1 Thuc. i. 44. 2 Cor/>. inscrip. Graec. no. 127. 

3 Plut. Nidas, 10 : 1$ eiprjvy TYJV (rv^a^iav WOTTC/) K/oaro? /cat 



Kinds of 
treaties, etc. 
in Rome. 



International 
relationships 



these were 
treaties or not. 



4 Cf. supra, pp. 198 seq. 

6 Polyb. xxiv. I. 2; xxxii. 17. 3. ^vfj./SoX'rj is also found, but 
more rarely (cf. Arist. Rhet. i. 4, 1 1), and likewise o-v/A^oAa, which 
appears in a Doric fragment published in Philopatris, Athens, July, 
1859. 



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, u hi hostes 
quidem non sunt." 1 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 
Romans to be possible only with communities properly | 
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. 8 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 

l Dig. xlix. 15 (de captiv.), 5. 2, *lbid. 

8 Cf. supra, p. no. 

*De Rep. i. 25 ; cf. Philipp. \\. 5, 6 ; Dig. xiix. 15 (de captiv.), 24. 



treatment. 



3 8o 



KINDS OF ROMAN TREATIES 



Pacific 
relationships 
of Rome, 
kinds. 



Foedus and 
pax. 



Indutiae. 



Sponsio. 



Binding force 
of international 
conventions. 



perveniat." So that, for example, where a 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. 2 

The pacific relationships of Rome, in her later history, 
may be arranged under a twofold classification, thus : 

(a) Relationships of alliance : in reference to states 
with which there existed c amicitia,' 3 ' hospitium pub- 
licum,' 4 ' societas,' or a 'foedus.' 5 

() Relationships of dependence : in reference to 
' municipia,' 6 e coloniae,' 7 ' provinciae.' 

Thefoedus, as a solemn treaty of peace (pax), adjusted 
the future relationships of belligerent states on the 
termination of hostilities ; that is to say, when the 
immediate consequence of the war was not merely a 
' 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. 8 

The sponsio was a covenant entered into by a general, 
usually on his own authority, engaging to secure a 
ratification by his government of the terms to which he 
has consented. 9 

International agreements relating to war (other than 
the sponsionts) will be more fully considered later. 10 

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. no. 

3 Cf. supra, p. 222. 4 Cf. supra, p. 221. 

5 Cf. supra, p. 240, as to rights allowed to Latin peregrins by treaties. 
6 Cf. supra, p. 254. 7 See Infra, chap. xix. ad Jin. 

8 Cf. lust. Cod. vii. 71 (qui bonis cedere possunt), 8, where the 
law speaks of " quinquennales indutias." 

9 Cf. supra, pp. 369 seq. 10 See chap. xxv. 



BINDING FORCE OF TREATIES 381 

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,' 1 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 nl 
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, VICWC5( 
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 tr< 
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: "... Nuda pactio obligationem non parit." 



382 SUBJECTS IN TREATIES 

list, but simply to indicate the most usual substance 
of diplomatic relationships and the extremely varied 
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 ; 
right of asylum ; protection and restoration of temples ; 
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 ; 
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 ; 
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 
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. 1 

1 Cf. Dumont, Corps diplomatique, suppl. t. i. pt. i. pref. pp. x-xii ; 
Barbeyrac, op. cit. vol. i. passim. 



FUNCTIONARIES AND PROCEDURE 383 

In Greece most of the diplomatic functionaries already Functionaries 
mentioned 1 took part in one or other stage of the ir^e1 ludinR 
negotiations relating to the conclusion of treaties, in Greece. 
the heralds (m^wice?, who had played an especially 
important part in the heroic and early age) in the 
preliminary proceedings, and the plenipotentiaries 
(avroKpa.ro pe<s) in the main transactions. The consent 
of the council and of the assembly of the people was 
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, c subject to the 
ratification of the Roman people/ thus, in Polybius' 
phrase, eav Kai T(p S^/ULW TWV 'Poojmaitov crvvSoKfl. 2 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 242 1 
war. According to the text of Polybius, it runs to this 
effect : u Friendship is established between the Car- 
thaginians and the Romans on the following terms, 
provided always they are ratified by the Roman people. 
The 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" 3 [i.e. about half a million sterling]. When, Sanction of 
however, the treaty was sent to Rome, the people 
refused to ratify it, but despatched ten commissioners 
to investigate the affair. On their arrival they made 

1 See supra, pp. 304 seq. 2 Cf. i. 62. 

3 Polyb. i. 62 : eirl rowrSe <iA.iai> tfi/ai KapxySovtois KOI < P<o/xatot$, 



, KOI fj, 
/xr/Se TWJ/ ^lyxzKocrtW <rv/xyLta^ots. cwroSovvai 

Xvrp<DV aTravras TOVS al\fj.a\(arov^. dpyvpov 
vryKf.lv Kapx^Sovtov? 'Pw/tcuois tv tTtcriv tKO(ri 8r^tA.ia Kat 
TaAavra Ev/3oi'/ca. 



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. 1 

in Carthage In Carthage also the sanction of the people was 
peop" tyo1 indispensable in the case of treaties entered into by 
required. ner 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 : u Passing 
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," 2 etc. 
in Rhodes, the I n Rhodes the admiral was vested with the full 

admiral usually . , . /^ i i- 

obtained full power to conclude conventions. On the astute policy 
of the Rhodians who tried to excuse themselves for 
their conduct towards Rome by sending a compli- 



1 Polyb. i. 63 : TOVTWV 8 } ciravve\@VT(av is rrjv 'Pw/ATjv ov Tiyxxre- 

Tas <rvv6iqKa<s o o^/xos, uAA' !a7rrTeiAev avSpas Se/ca rovs 
o/Xi/ovs wrp T(3i/ 7rpayfj,aT(j)V o? KGU Trapayevo/tei/oi TWV /xev 
ovSev CTL fj,T6r)Ka.i> t j3pa^a Se TrpocreTreretvav TOVS 
' TOV re yap \povov TWI> <opa)v, 7rot^crai/ ^jaio-i 
raXavra TT/JOCT Sevres, TWI/ re vrjcrwv K\dtpLv Kapx^Son'ov 
7TTaav oorai /iT<xv T^S 'IraA-tas Kti/rcu Kat -njs 2tKeA.tas. 

2 Polyb. iii. 21 : ras ptv ovv Trpbs 'AcrSpovfiav 6/AoXoy4a 

TTCUV. ws ovre yeyei/^/xcyas, t re yyoj/ao~tv, ovSev oiKras TT/OOS avrovs 
Sta TO XW/QIS T^S (T(f>Tpa<s TreTrpa^Oai yviofJLrjs. \pwvro S' e 
e Pa)/xato)V ts TOVTO TrapaSciyjuarf ras yap rt Aovran'ov 
v T 



VTTO Aoirrartov /xera ravra TOV Srjpov TWV t 
8ta TO 103 ' 5 ^ avrov 



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. 1 
Similarly, in 198 B.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. 2 In matters of a serious nature, 
however, the sanction of the people was essential to 
impart validity to the transaction of the navarch. 3 

An early account of the conclusion of a compact and Ceremonial in 
of the ceremonial indispensable thereto is given in the ** 
Iliad. It 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 
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." 

. . . drap KirjpVKfS dyavoi 

o/o/aa TTMTTa faaiv (rvvayov, Kprjrrjpi & olvov 
fucryov, dra/o /3curiA,evcrii> v8<ap ITTI \ttpas \evav. 4 

Then Atreides cut off the hair from the heads of the 
lambs, which was distributed by the heralds amongst 
the chiefs of the Trojans and Achaeans. Atreides invocation to 
raising his hands then offered up this prayer : " Father lh 

1 Polyb. xxx. 5 : . . . rr)v yap tgowiav ?\ Tavrrjv vavapxo? <* 
T<3i> vo/xwv. Cf. Liv. xlv. 25. 

2 Polyb. xviii. I. 3 Polyb. xxx. I ; Liv. xlv. 5. 
4 7//W, iii. 268-270. 

2 B 



386 



EARLIER CEREMONIAL 



Zeus, that rulest from Ida, most glorious, most mighty 
and thou Sun that beholdest all things, and hearest al 
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." 

Zeu Trarep, "ISrjOcv /xeSetoi/, /cv8to~Te, 

'HIA-tOS 0\ OS TTO.VT <f>Opa<S KOI TTOLVr' 

/cat Ilora^ot /cat Fata, Kai ot VTrevepOe /ca/AoVras 
dvOptoirovs rivixrOov, orts /c' iTTtop/cov d/xoo-o-y, 
v/xcts fjidprvpOL fcrre, <f>v\dorcreTe 8' o/a/aa Trtcrra. 1 

Next, the conditions of the combat were stated, 2 the 
throats of the lambs were cut, followed by a libation 
of wine, and an imprecation recited by many on both 
imprecation, sides : <c 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." 

ZeG KvSto-re, /zeyto~T, /cat aOdvaroi dtoi aXXoi, 
irpoTtpoi VTrep opKia 



Recital of 
conditions. 



avnov, /cat T/cea>v, 



8' aAAoto-i 



In the following book of the 7//W, Agamemnon is 
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." 

^>tA, KturtyVTjTC, Odvarov vv TOL opKL era/xvoi/, 
otov 7r/ooo-T^Vas irpo 'A^atwv Tpaxrt />ta^eo-^at. 
<5s cr' ffiaXov T/awes, Kara 8' op/aa Trto-ra Trarr/crav. 

OV fJLV 7TO>S aAlOV TTcAet O/)KIOV, alfJLoi TC d/OI/Wl' 

o-TTOi/Sat T' a/c/OT^TOt /cat Se^tat, ^ 



1 Iliad, iii. 276-280 
3 ///W, iii. 298-301. 



2 Iliad, iii. 281-291. 
^ Iliad, iv. 155-159. 



EARLIER CEREMONIAL 387 

Later, Agamemnon, urging on the Argives, says : " Ye zi*-oo 
Argives, relax not in any wise your impetuous ardour ;^J^ of 
for father Zeus will be no protector of liars ; but as 
they were the first to transgress against the oaths, so 
shall their own tender flesh be devoured by the 
vultures." 

'Apycioi, /xrJTro) TI peOUre QovptSos aXic^?' 
ov yap 7Tt \f/v8e<ro-i irarrjp Zevs nrr' a/woyor 
a AX' oiiTfp TrpoTfpot wrcp opKia 8rj\tj(ravro t 
TMV rjToi avrwv T/oei>a xpoa, yvTTts eSoyTCu. 1 

From the above it is seen that in the Greek heroic Main 
age the main proceedings of the ceremonial adopted in 85Sl!i!5. 
the conclusion of a treaty were : (i) 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 alSt^peopies 
Israelites, for example, the solemn imprecation of divine in R eneral 
vengeance on violators of covenants formed the most fs^St^ 05 
important part of the procedure. The Carthaginians Carthaginians, 
also swore by the gods of their fathers, . . . TOW 
Ocovs row irarpwovs. 2 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 
of 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 

l IRad, iv. 234-237. 2 Polyb. iii. 15. 



388 



FORCE OF THE OATH 



Modern 

uncivilized 

races. 



In historic 
Greece. 



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." 1 

It is worthy of note that amongst the uncivilized 
races of to-day the formal oath, imprecation, and sacri- 
fice sometimes of human victims are the invariable 
accompaniments of the conclusion of treaties. 2 

In more historic times in Greece there were, apart 
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 (585 B,C.), and the territory consecrated to the 
importance of god, by a c 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 
suffer confusion in war, and trials and councils, may 
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/' 3 

1 Martin, loc. cit. p. 73. 

2 Cf. Ratzel, Vtlkerkunde, vol. ii. pp. 448, 451. 
3 Aeschines, c. Ctesiph. no: KCU OUK aVx/7<rei/ avrots TOVTOV 
TOV opKov o/Aoo-at, aAAa Kat irpocrTpOTrrjv KGU dpav icrxv/oav virep 
TOVTWI/ Isrot^crai/TO. yeypaTrrat yap OUTWS ev rfj apa, ct rts 
r) TroAts f) tSteimys r} !0i/os, !ray>)s TTCO TOV 'A^roA- 
' ' 



the oath. 



KCU T/S 
avrois 



yrjv napirovs <f>piv y 



yvvalKas reKi/a TIKTCIV yovevcriv 



DIVINE GUARDIANSHIP 389 

In Herodotus 1 we find the formula of the oath that 
was taken by the united Greeks in view of the Persian 

invasion. 

Treaties and contracts in general were in Greece, as Treaties and 
in other ancient countries, conceived to be under the Sd^fvmc 
protection of the gods. The divine sanction was guardianship. 
explicitly recognized in the solemn oath. Treaties In Greecc 
usually contained provisions for the reciprocal adminis- 
tration of the oath, and often indicated the personages 
who were to take it and those who were to witness it. 
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. 2 Indeed, the gods them- 
selves were punished for any perjury they committed. 8 

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 j^ nt f u h w of 
ancient law of nations. And this will be further nalions - 
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 Jupit 
had her Jupiter Fidius, as Greece had her Zev? ILWios. 4 Zei> * 



toi/cora, aAAa Tepara, fiyr* /2o<rK^/*aTa Kara <v<rii/ yovas TroturOai, 
ffrrav 8e avrot<s fTvai TroAcfiov /cat SIKWV KCU dyo/xov, KCU e<oA.cis (.Tvcu 
KCU O.VTOVS KCU oiKtas Kat yei/os rb IKCIVWV. KCU /AiyrroTe ooriws Qwrtiav 
T< 'ATToAAaw />t^8e ry 'Apre/xiSi /x^8c ry Arjrol [j.r)8 } 'AOrjvy. Ilpovotp, 
p/Se (Se^cuvTo avrois TO, tepa. (In this passage the constantly recurring 
word <T?CTI has been omitted for convenience' sake.) Cf. 'De fait. 
legat. 115, as to the oath taken by the members of the Amphictyonic 
league. 



132 : rb Se opKiov o>Se ?x 

cr^ei/TS, KaracrravTiov (r<f>t cu 
ev AeA<^>ot(ri #$. 

2 Herodot. vi. 86. 8 Hesiod, Theog. 784-795. 

4 Dion. Hal. iv. 58. 



390 



FOEDVS AND FETIALS 



Janus is said to have been the protector of alliances, his 
double face symbolizing the two peoples united by the 
treaty of peace. 1 

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 ( c suspiciens caelum tenditque ad sidera 
dextram '), says : " By these same I swear, O 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 dissolve land into water in turmoil of 
deluge, or melt heaven in hell. . . ." 2 

After this solemn declaration the consecrated beasts 
were slain over the flames, their entrails torn out, and 
the altars piled with laden chargers. 3 

The religious aspect of the Roman foedus is manifest 
through its necessary connection with the fetial magis- 
trates, who were functionaries of a certain sacred 
character. In fact, as Fusinato maintains, foedus and 

1 Servius, Ad Aen. xii. 198. 

2 Trans, by J. W. Mackail (London, 1908), p. 278. 

Aeneld, xii. 197-205 : 

" ' haec eadem, Aenea, terram mare sidera iuro 
Latonaeque genus duplex lanumque 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 nee foedera rumpet, 
[quo res cumque cadent ; nee me vis ulla volentem 
avertet, non si tellurem effundat in undas 
diluvio miscens caelumque in Tartara solvat ;] ' ' 
*Ibid. 213-215 : 

" turn rite sacratas 

in flammam iugulant pecudes et viscera vivis 
eripiunt cumulantque oneratis lancibus aras." 



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, 
a quanto io credo, separatamente concepire." 1 Hence 
this writer's definition of foedus, based on that of Osen- 
brueggen, 2 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^ 1 "' 
populum Romanum et alium populum de bello finiendo 
et pacis conditionibus constituendis auctoritate et iussu 
S.P.Q.R. cum fetialibus ceremoniaque solemni facta." 8 
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 offoedera. 

The fundamental notions of the Greeks and of the Greek and 
Romans regarding the significance of treaties and their Inceptions 
sacred character are very closely allied. Thus, in allicd - 
Greek, the word mem? has, in an abstract sense, the 
meaning of honesty, good faith, 4 thus corresponding to 
the Latin fides ; secondly (like TO THO-TOI/), 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 TTIVTIS frequently associated with o^o/co?, an oath, 6 
and also with o^/aa, in the sense, on the one hand, of 
the offerings and other rites used at the making of a 

1 Del feziali e del dlritto fezlale, loc. tit. p. 547. 
2 E. Osenbrueggen, De jure belfi et pacts Romanorum (Leipzig, 
1836), p. 75. 

3 Del feziali e del diritto feziale, loc. cit. p. 547. 

4 Cf. Soph. Oed. Col. 6 1 1 : QV^VKU 8c TTMTTIS, /?Acurravi 8' a/rior/a ; 
Herodot. viii. 105. 

5 Thus, Aristoph. Lysist. 1 1 85 : O/SKOVS KCU TTMTTIV Sovvat. 



392 FOEDUS AND SPONSIO 

solemn oath or treaty, and, on the other, the solemn 
compact itself. So that opKia Tria-Ta ra/aetv 1 (to conclude 
a treaty) answers to the Latin expression c foedus ferire,' 
whilst opKia SrjXijo-aa-Oai 2 means to violate a solemn 
treaty ; and, indeed, opKia is sometimes used in the 
sense of the victims sacrificed when the oaths are 
taken. 3 The gods invoked at the taking of an oath, 
who guard its observance and punish its infraction, are 
described as, optcioi Oeoi ; 4 and so we have Zev$ 0^09, 5 
involving a conception which is thus closely related to 

that of Zeu? IL'<7Tf09. 

Again, the Latin spondeo is the Greek a-TrevSco, to 
pour a Cation (the Latin 'libare'), hence (on account 
of this formality) to make peace, to conclude a treaty. 6 
Likewise, the sponsio is the a-TrovS^ (drink-offering, 
c libatio '), of which the plural, o-TrovSal means a solemn 
treaty, a truce, 8 being a later development of the opxta. 
Thus, just as there is a kinship between the c foedus ' 
and the c fetiales,' so there is a connection between the 
' sponsio ' and the oath. As Danz observes : " Es 
werde sich der Beweis fiihren lassen, dass die Sponsio 
der friihesten Zeit der formulirte promissorische Eid 



war."" 



In reference to the c spondesne ? spondeo ' of the 

1 Cf. Herodot. ix. 92 : ITUTTIV KOI opKia 7roietcr0ai (to enter into a 
treaty by exchanging assurances and oaths). 

2 Iliad, iii. 107 ; iv. 67 ; cf. iv. 155, 157 quoted supra, p. 386, n. 4. 

3 Cf. Iliad, iii. 245, 269. 4 Thuc. i. 71, 78 ; Eurip. Phoen. 481. 

5 Soph. Phil. 1324; Pausan. v. 24. 9. 

6 Cf. Herodot. iii. 144; Aristoph. Ach. 199; Thuc. i. 18 : rot 
fj.v cnrevSofJievoi rot Se TroAe/AOvi/res ; and so cnrevSearQcu ry Trpfarfitia. 
(to give assurances of safe-conduct to ambassadors). 

7 Diod. 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 
o-TTovSas interpositis rebus divinis faciant." 

8 Cf. Iliad, iv. 159 : o-irovSat, T aKprjroi (quoted above). 

9 Der sacrale S chute,, p. 105 ; cf. ibid. pp. 102-106 on the subject 
generally. Cf. the comment of Leist, Gr.-Ital. Rechtsg. p. 465, 
note q. 



FORCE OF FIDES 393 

private law, Gaius 1 mentions as an approximate Greek 
equivalent c op.o\oyel<; ; o/xoAoya),' 2 which indicates a 
transformation, to a large extent, of the significance of 
the terminology. 

We find, then, on further analysis, that the concep- 
tions of * fides* (as embodied in the c foedus ') and andyW "' 
TTIO-TIS and opKta (as embodied in the o-Troi/^at), 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. appllc 
Festus ascribes the intrinsic significance of 'foedus' 
to its all-important factor, ' fides ' ; " foedus . . . quia 
in foedere interponatur fides " ; 3 and Livy likewise 
emphasizes its relationship to ' foedus,' as well as to 
4 amicitia ' and ' societas ' ; " in fidem venerunt . . . 
foedere ergo in amicitiam accepti " ; 4 " eo anno societas 
coepta est ; in fidem populi Romani venisse." 6 Further 
applications of c fides ' and tnroviai are found in refer- 
ence to other institutions and transactions; for 
example, in the case of armistices and truces, " fides 
indutiarum "; 6 assurances of safe-conduct 7 (as was 
pointed out in a footnote above), o-jrevSeo-Oai T# 
Trpea-Peia ; 8 engagements for the burial of those fallen 
in war, u per indutias sepeliendi caesos potestas est 
facta," 9 or a-TrovSal ek veicpwv avaipevtv, 10 or TOW veicpovs 
aveipeia-Oai ; n the release of prisoners, 
cLTrlevcu TOV? ai^/uLaXooTov^ ; 12 agreements for 



1 Inst. iii. 93 ; cf. supra, p. 377. 

2 Cf. Demosth. <De corona, 32: w/AoAoyTjo-c rrjv i/o7Ji/r;v (he agreed 
to peace); Herodot. vii. 172: 7rMrrao-0 ij/xeas 



3 84. 

4 Liv. viii. 25. 5 Liv. viii. 27; cf. Liv. viii. 21 ; ix. 6 ; x. 45. 

6 Liv. i. 30 ; ix. 40 ; xxx. 16, 25. 7 Liv. xxxviii. 9 ; xl. 49 ; etc. 

8 Aeschin. c. Ctesiph. 63. 9 Liv. xxxviii. 2. 

10 Cf. Thuc. iii. 24, 109; iv. 114: oWo-acr&u . . . i}fJLpav TOUS 



11 Thuc. iv. 44. 

12 Cf. Plut. Solon. 9 : Travras VTToa-irovSoix; d<f>vJKv. 



394 INVOCATIONS IN ROMAN TREATIES 



Similarity of 
outward 
ceremonial of 
Greece and 
Rome. 



First treaty 
between Rome 
and Carthage. 



Treaty between 
Hannibal and 
Philip. 



Formulas to 
invoke the 
gods. 



Imprecation. 



extradition, for capitulation, "in fidem consulis dicio- 
nemque populi Romani sese tradebant " ; l " deditionis 
quam societatis fides sanctior erat " ; 2 " non in servi- 
tutem sed in fidem tuam nos tradidimus " ; 3 and so 
on in various other cases. 

Besides this analogy in the fundamental conceptions 
of Greece and Rome, there is also a similarity between 
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. 

Thus, in the first treaty between Rome and Carthage 
(509-8 B.C.), the Romans, as Polybius 4 states, invoked 
Jupiter Lapis; and in a subsequent treaty Mars and 
Quirinus. Similarly, in the treaty between Hannibal 
and Philip V. of Macedon, 215 B.C., the oath was 
taken, says Polybius, 5 in the presence of Zeus, Here, 
and Apollo ; of the god of the Carthaginians, Hercules, 
and lolaus ; 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. 

In Livy we find several formulas which were used to 
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." 6 

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. 45 ; cf. xxxii. 2 ; xxxvii. 32. 

2 Liv. vi. 9. 3 Liv. xxxvi. 28. 4 iii. 25. 5 vii. 9. 

6 Liv. vi. 29 ; cf. ibid. viii. 6 : " crebram implorationem deum, 
quos testes foederum saepius invocabant consules." 



SYMBOLIC FORMALITIES 395 

functionary, -rroioiVei/o?, referring to the officiating 
fetial, the c 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. 1 

Here there appears a certain difference between the Difference 
Homeric ritual and the old Italic. The hurling of the ^Scrituai 
stone symbolizes Jupiter's striking down of perjurers. ^ * he old 
Very frequently a pig was thus struck down, or 
sacrificed, by the fetial magistrate. 2 The gods, it was Symbolism. 
conceived, would strike down violators of oaths, just as 
the pig was there and then struck down (* ferire,' or 
c icere,' or 'percutere'). Hence the expressions * foedus 
ferire/ c foedus ictum,' c foedus percutere ' ; and Festus 
draws attention to the kinship between c ferire ' and the 
fetials, " fetiales a feriendo dicti ; apud hos enim belli 
pacisque faciendae ius est." The Homeric opxta rafjiveiv 
(Attic rejuiveiv, 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 



1 Polyb. iii. 25 : ... A.a/3on> ets ry 

opKia. Tre/ot TWV (TvvOrjKiov 7rSai> d/xocr^ Sriftoariy iri<rTt t Aryet 

* evopKovvTL fJiv TTOif.lv To.ya&d' el 8' aAA(us SiavorjOcirjv ri r/ 7rpacu/*i. 

TTOLVTW TWV a\XiDV (rwfo/Aei/a>i> ei> rats tSuus Trarpuriv ev TOIS t&'ot? 

J/O/AOIS 3Tfc TWV tSlWV fti<l>V tp(UV Ttt^tOV, yO) flOVO<5 K7TTOl/U OVTtU? U>9 

oSc XiOos vvv.' KCU ravr t7rwv pirrrei T&V \L6ov K T^S \fipos. 

2 Cf. Virgil, Aeneldy viii. 641 : " Et caesa iungebant focdcra porca." 

3 p. 91. 



396 



LATER PROCEDURE 



Later 

development 
of treaties 
their 

formalities. 
In Greece. 



Heralds. 
Ambassadors. 



Definite 
language in 
treaties. 



be a sacred animal ; and, again, that the figure of a pig 
was amongst the military standards. 1 

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 2 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. 3 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. 4 

Besides the numerous references to contemporary 
treaties in historians, like Thucydides, there are many 
in the orators, dramatic poets, and others. 5 

1 Festus, s.v . Porci : " Porci effigies inter militaria signa quintum 
locum obtinebat, quia confecto bello, inter quos pax fiebat, ex caesa 
porca foedere firmari solet." 

2 ii. i 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 seq. ; Birds, 1031 seq., 1550 seq., 1582 seq. ; 
Acharn. 54, 186 seq. Cf. H. Weil, De tragoedlarum graecarum cum 
rebus publlcls conjunctlone (Paris, 1844), passim. 



LATER PROCEDURE 397 

Unlike our modern diplomatic methods, negotiations Negotiations 
were conducted publicly. Foreign ambassadors were mput 
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 sometime*, 
conference, to which the leading statesmen were ISnrerenoes. 
delegated, was agreed upon instead of holding public 
deliberations. Secret treaties were not unknown in the secret treaties. 
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, SiaTre/uL^dimevoi XdOpa irpos 
TOW A.ITO>\OVS <pi\iav Si airopp^Twv eOcvro KOI o-uyu/xa^/ai/. 1 

We find in the extant texts of treaties, whether given The panics 
by the historians and orators, or contained in epigraphic l^^^-S^ 
documents, that various dialects were used by the people dialects - 
of Greece in drawing them up. When the contracting 
parties spoke different dialects, each kept a copy drafted 
in its own dialect. 2 

Independent States enjoyed the use of a public seal, i>ubiic seal. 
^tj/uLoa-ia <rcf)payi9, which is frequently referred to in 
inscriptions with regard to the execution of public acts. 3 
Livy likewise speaks of c signatis tabulis publicis,' and 
other ancient writers make mention of forged seals, 
<signa adulterina,' (but mainly in reference to private 
transactions). 4 

The full signatures of the delegates or other officials signatures of 
taking part in the transactions are also found appended d< 



. iv. 1 6. 2 Cf. Egger, op. cit. pp. 61, 62. 

3 Cf. Corp. Imcrip. Graec. nos. 2329, 2332, 2847, 3053, etc. 

4 Cf. Cic. Pro Cluent. 14: " testamentum signis adulterinis 
obsignare." 



398 USE OF HOSTAGES 



to the documents ; eypa^ra. KCU eV^dywa, says an 
inscription. 1 

Record of 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 (eTrw-Tcm??) 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 . . . KOU pera ravra 
(TTriXw TTpoypafalcnis. 2 At a council at Clitor, in Arcadia, 
1 84 B.C., Lycortas, the representative of the Achaeans, 
thus addressed the Roman commissioners : ct 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." 3 

In China also documents of this kind were carefully 
deposited in a sacred place called Meng-fu y the * palace 
of treaties/ 4 Most ancient States had similar provisions. 

Hostages. To ensure the performance of the conditions of 

treaties, especially so in important or doubtful cases, 
hostages 5 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. 
2 xxiii. 18. 

3 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." 

4 Martin, Traces of int. law in Ancient China, loc. cit. p. 72. 

5 Cf. Bender, Antikes Volkerrecht, pp. 39 seq. 



USE OF HOSTAGES 399 

Prince of Tsin demanded the mother of the Prince of 
Chi as a guarantee of the latter 's submission and good 
faith. 1 The practice continued down to comparatively 
recent times ; we hear of it in Europe even as kte 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 *by 
established on a basis of equality, or when other kinds givco * 
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. 2 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. 8 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. 4 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- 

1 Martin, loc. cit. 2 Polyb. xxix. 3. Cf. Liv. xliv. 23. 

3Caes. 'Bell. gall. i. 9 ; cf. iii. 23. 4 Polyb. v. 77. 



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. 1 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. 2 
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. 3 

Number 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. 4 After the battle of Zama, the 
Carthaginians were obliged to give the Romans a 
hundred. 5 On the surrender of the Carthaginians to 

1 Liv. xlii. 39 : "Nee tarn in pignus fidei obsides desiderati erant, 
quam ut appareret sociis, nequaquam ex dignitate pari congredi regem 
cum iegatis." 

2 Liv. xxxvii. 45 : " Haec quum pepigerimus, facturos vos ut pro 
certo habeamus, erit quidem aliquod pignus, si obsides viginti nostro 
arbitratu dabitis " Cf. Polyb. xxi. 17. 

3 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." 

4 Polyb. xxi. 45. 5 Polyb. xv. 18. 



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. 1 When Carthagena capitu- 
lated to Scipio, the hostages numbered over three 
hundred. 2 In later times a still greater number was 
insisted on, as in the case of six hundred demanded 
by Caesar. 8 

All classes of inhabitants men, women, or children who chosen 
could be hostages. Among the Carthaginian hostages hosla s et - 
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. 4 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. 5 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. 6 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. 7 



xxxvi. 4. 2 Polyb. x. 18. 

8 Caes. Bell. gall. ii. 15 ; vii. ii. 

4 Polyb. X. 1 8 : KCU TOVS fj-ev TrcuSas Ka6' li/a Tr/ooo-ayayd/x^vos Kai 
Oappdv e/ceAeve, SIOTI /ACT' dAiyas rjfJ-cpas tVoi/'OVTCu TOU? 
yovets. 

5 Tacit. G^rw. 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." 

7 Sueton. 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 peacfe 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. 1 

The State receiving the hostages usually specified 
who were to be sent, and sometimes limited their 
age. Members of the royal family, 2 or senators and 
other high functionaries 3 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. 4 In the treaty with Antiochus, 

1 Liv. ii. 13: " . . . Et Cloelia virgo una ex obsidibus, quum castra 
Etruscorum forte baud procul ripa Tiberis locata essent, fmstrata 
custodes, dux agminis virginum inter tela hostium Tiberim tranavit 
sospitesque omnes Romam ad propinquos restituit." Cf. Virg. 
A en. viii. 651. 

2 Polyb. xviii. 39. 3 Polyb. xxxvi. 4. 

4 Polyb. xxi. 32 : Soroxrav AmoAot 6fj,r)pov<s T< crr/oaT^y<J) r^rrapd- 
/covra, fjirj vttortpovs Irwi/ SwSe/ca fJirjSe 7r/oo-/3vT/oovs 



cts en/ e, ovs av 'Po^atoi TTyoo/c/aivaxri, x w /^S vrpaTrjyov Kal 

Kal 8^fj.ocrLov ypafjifJLaTti)<s KOI TOJV wfj.TjpevKOTWv kv 'Pw/iy. Kal ra 

ofJirjpa KadicrTdT(o(rav eis 'Pwfj.rjv. kav 8e TIS aTroOdvy T<3i> o{j.rjpa)v t 

aAAov 



USE OF HOSTAGES 403 

1 88 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. 1 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. 2 

Sometimes their delivery was to be effected immedi-Ttmcof 
ately on the ratification of a treaty ; in other cases, at a d< 
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. 8 When Opimius was in Gaul, 1 54 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. 4 

When the specified conditions were fulfilled, or good Return of 
faith clearly vindicated, the hostages were returned c 
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. 5 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. 6 

1 Polyb. xxi. 45. 

2 Polyb. xv. 1 8 : o^povs Sovvai TTIO-TCWS X^P LV KaT " l/ ^> * v 
TWV vetoi/ 6 crr/HXTTjy&s TOJv'Pco/x.aiW, /AT) v<ore/oovs Trrapr- 
eriov /xi/Sc Trpea-fivTepovs T/naKoi/Ta. 

3 Polyb. xxxvi. 4. 4 Polyb. xxxiii. n. 

5 Polyb. xxi. 2. Cf. Liv. xxxvi. 35. Polyb. x. 18. 

2 C2 



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. If a 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. 1 Suetonius states that 
Augustus always gave ample opportunities to foreign 
States of getting back their hostages whenever they 
desired it. 2 

When hostages were received by a commander in 
reference to the negotiation for a truce or a sponsio y 
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. 3 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 

1 Polyb. xxxi. 12: SoQfjvcu -yap wrb 2eAev/cov TOV Trarpos r?s 
l/cetvov Trio-Tews eVe/cei/, 'Avrtoxov Se ftereiA^OTOs rrjv ^acriXctai/ OVK 

TWV KIVOV TKV(l)V 



2 Sueton. Aug. 21 : "... potestatem semper omnibus fecit, quotiens 
vellent obsides recipiendi." 

3 Polyb. xviii. 39. 






USE OF HOSTAGES 405 

been given to guarantee the compact. In the Caudinc 
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." l 

If a formal undertaking was violated, hostages that Treatment of 
had been given as security were regarded as prisoners hostagcs * 
of war, and sometimes subjected to measures of an 
extreme and merciless character. 2 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 B.C. 3 

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. 4 

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. 5 Scipio's conduct 

1 Liv. ix. 5. 2 Cf. Caes. Bell gall. i. 31. 

3 Liv. xxxiv. 52 : " . . . et ante currum multi nobiles captivi obsides- 
que, inter quos Demetrius, regis Philippi filius, fuit et Armenes, 
Nabidis tyranni filius, Lacedaemonius." 

4 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 



406 RELIGIOUS FORMULA IN PROMISE 

towards his hostages offered a striking contrast to their 
brutal treatment by the Carthaginians, 1 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. 2 

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 of 
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. 3 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. 4 

A mere promise without being supplemented and 
confirmed by a fitting religious formula was not con- 

been made with his father) : " Ea merita in se senatus fuisse, cum 
Romae esset, earn 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.) 

1 Polyb. x. 1 8. 2 Caes. Bell. gall. v. 27. 

3 Dion. Hal. v. 33 : "Ei/0a 8rj TroAvs o Ta/>/cwios ty tinopKiav re 
/cat aVtcrriav rots 'Poj/xatots ey/caAwv. . . . 'ATroAoyov/Aevor; Se TOV 
VTTOLTOV /cat TO epyov ! avrwv AeyovTOS yeyoveVat TWI/ 7ra/30eVwv, 
rfjs IrriTaT^s TWV TraTe/xov, /cat TO TTKTTOV OVK ts px/c/aav 
AeyovTOS virlp rov prjStv e eVi/^ovArjs vcf>* e 



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.) 



intention. 



RELIGIOUS FORMULA IN PROMISE 407 

sidered to be necessarily binding. Thus, after the 
defeat of the Thebans by the Plataeans, 43 1 B.C., the 
former complained of the slaughter of prisoners; but 
the Plataeans did not admit they ever promised to 
restore the captives at once, but only if they could 
come to an agreement after due negotiations; and, 
moreover, they denied that they took an oath. 1 

The literal fulfilment of an engagement or oath was Th letter 
sometimes made to override the spirit and implied 
objects of an agreement. For example, Paches, after 

i /* A i i / \ i 1 1 -VT 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 P: 
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." 2 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 N 
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 
object of breaking the power of Macedonia, it was pro- 
vided that all the movable property taken as booty 

1 Thuc. ii. 5 : IIA.aTairjs 5* oi>x 6/z.oXoyovo-t rows avSpas evflvs 
V7roo-xr0at aTToSakrctv, aAAa A.oya>i> Trpwrov ycvopcvwv ij n V/A- 
/Jau/axriv, KCU CTTO/AOCTCU ov (fraonv. 

2 Thuc. iii. 34 : KCU T&V 'Iinria.v wrrepov ecraya-ywi/ axnrcp <nrci- 
craTO, circtoV} cvSov fy, vXXafjL/3dvt. KCU KaTdToevi. 



4 o8 



WHEN TREATIES REPUDIABLE 



should go to the Romans, the lands and conquered 
towns to the Aetolians, " ut belli praeda rerum, quae 
ferri agique possent, Romanes, ager urbesque captae 
Aetolos sequerentur." l 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. 2 Commenting on 
this reply of Quinctius, Laurent observes : " Un 
disciple de Machiavel n'aurait pas mieux dit," s as 
though forensic arguments of a subtle and evasive 
character were unknown in more modern and more 
enlightened times. 

when a treaty Both in Greece and in Rome it was held that there 

broke^ were certain circumstances under which it was per- 

wheretwo missible to break a treaty. If, for example, there were 

amagonts^c two treaties relating to the same or similar objects, 

to each other. an j 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 : KOI TroTepa Seivorepov av Troi^arere ; ra /car' 

ISiav TTjOO? AiT(i)\ov? vjuuv (rvyKelfjLeva SUaia TrapiSovres ; rj 



1 Liv. xxxiii. 13. 

2 Liv. xxxiii. 13: "Vos, inquit, ipsi, Quinctius, societatis istius 
leges rupistis, quo tempore relictis nobis cum Philippe pacem fecistis. 
Quae si maneret, captarum tamen urbium ilia lex foret. Thessaliae 
civitates sua voluntate in dicionem nostram venerunt." 

8 Hist, du dr. des gens, vol. iii. p. 195. 



TREATIES AMENDING OTHERS 409 



TO. TTCIVTCDV TU>V EAA?}i/a>i/ evavrlov ev <m/Af; yeyovoTa /ecu 
KaOiepco/meva ; * 

Again, if a treaty entered into should afterwards be Treaty 
discovered to exact or involve a hostile attitude to jJU& ng 
friendly or confederate States, it could be cancelled, attitude to 
" Do you consider it a duty," argued Lyciscus, the r 
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/' Kai >j ovx OVTCOS ocriov tern TO ra? eyypaTTTOvs TrtVrei? 
/3e/3aiovv, a>9 avoariov TO TOIS craxracn TroAeyueiV, 2 and 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 circumstances, 
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." ' M^ o/xoia eii; ra 
Tr/oay/uara vvv KOI KaO' ovg Kaipovs eiroieia-Oe Tr\v TTpo? TOVTOV? 

<TV/UL/JLCLXiaV> SlOTl Sei fJLVlV KOI TtJV V/JLCTCpdV aip(TtV TTl TWV 

VTroKeifjLevwv. TavTa yap ev apx<*i$ etvai. et 8* oXoo-xepw 

q\\Ol(OTai, StOTl SlKdlOV 6<TTl KOI VVV VfJLCtS e OKepdlOV /3oV\V~ 

earOai Trepl TWV Tra/oa/ceAevojueVew. 3 

On some occasions, in order to avoid deliberate Treaties for 
infraction of a treaty by one of the contracting parties, p^ous g 

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. tf/V.ix. 32. 



4 io 



COMPROMISE CLAUSES 



Athens and 
Sparta. 



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 
signatories. Thus, in the treaty of peace between 
Athens and Lacedaemon (42 1 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, el Se n ajULvrj/uovovcriv OTrorepoiovv KCU orov 
wept, Xoyotf SiKaioi? xpcojmwois euopicov etvai aiu.(f)OTepois ravTfl 
/meTaOeivai OTry av $OKfl a/m(j)OTepoi9. 1 

In the alliance between the same States (421 B.C.) it 
is stipulated in the fifth clause that if the parties agree 
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. *Hi> <$e n doic 



Alliance 
between 
Athens and 
Sparta. 



KOI 



7rpo<r6eivai KCU 

o TL av <$OKy t euopicov d/u.(f)OTepoi9 

Alliance Again, in the alliance between Athens, Argos, Elis, and 

Argos, Mantinea (420 B.C.), it is provided that these cities may 
make any amendment in the treaty that they may think 

i i i 7 -111 - ' J 

desirable, provided there is common agreement thereon. 
'Eai/ Se TL SoKy a/UL6ivov elvcti rai9 TroXeav raJrai? TrpocrQeivai 
TTpo? TOI? vyKeiiu.voi$' 6 TI S' av Sor] Tat? TToXecTLV a7ra'crcu9 
KOivy /3ov\ev(ra/ULvcu$, TOVTO Kvpiov elvai? 

Not infrequently do we find in treaties certain clauses 
which are somewhat of the nature of our modern com- 
promise clauses ('clauses compromissoires'), e.g. for 
the seemingly compulsory determination of disputes 
by pacific means. Thus the fourth article of the treaty 



Eiis, and 

Mantmea. 



Compromise 



1 Thuc. v. 1 8. 



2 Thuc. v. 23. 



3 Thuc. v. 47. 



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. 1 

The attitude of Rome to international treaties varied Attitude of 
according as they were concluded in the first period of intSSukmai 
her history or in the second. In the case of the first lr< iies. 
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. 2 

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 H* y 
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 er 
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 

. 

1 Thuc. v. 18: "Hi/ 5c n 8ia<f>opov fl ir/oos aXAr/Aovs, Si/ccuy 
Had' o TL av 



2 Rom. Staatsr. vol. iii. pt. i. p. 666. 



4 I2 



JURIDICAL BASIS 



Cases of non- 
observance. 

Juridical 
subtlety. 



of Antium, when an impartial division of the conquest 
was made between the Romans, the Latins, and the 
Hernicans (493 B.C.). 1 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 
advanced for 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 ; 2 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 

l Cf. Dion. Hal. vi. 95. 

2 Cf. A. Rivier, Introduction an droit des gens (Hamburg, 1891), 
p. 251 : "Les recits des historians qui portent aux nues la fidelite des 
Remains sont sujets a caution." . . 



Reasons 
usually 



breach. 






PROCEEDINGS IN LATER TREATIES 413 

pretext, perhaps, or cavil if one prefers to say so 
but 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 e rappresentata semprc 
da un motivo giuridico, un pretesto, un cavillo se 
vogliamo, ma poggiato sul conflitto di interpetrazionc 
di una clausola ambigua, sulla mancanza di una for- 
malita, sulla violazione di un principio di diritto." 1 
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- 
nized legal principle of dedltlo was put into operation, 
so 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 
Rome, it will be well to state briefly the usual order of the later 

r . . .... , J . treaties. 

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. h< 
Then there were the preliminary proposals, the over- overtures by 
tures, <rvjui/3a<n? or o-vjmparripio? Aoyo? 2 conveyed by cc 
the ambassadors. In case of war a truce or armistice 
Avas agreed upon. Deliberations in the public assem- Deliberations, 
blies, sometimes (as has already been pointed out) in 

1 Archivio Giuridico (1898), p. 485. 

2 Thuc. v. 76 ; cf. Egger, Traitts publics^ p. n. 



4H PROCEEDINGS IN LATER TREATIES 



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. 



private committees, followed. Frequently, letters were 
exchanged between the parties (eTrwToAcu, ypd/uLjULara, 
epistolae, litter ae), especially official declarations, 
decrees (^^/cryuara) of the assemblies of the people, 
e.g. in Athens, of the e/c/cX^o-/a, or elsewhere of princes 
(<$taypafjL/uLara). 1 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, o^oKoyiai. 
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 (o-r^Xai) 
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. 2 
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 ypdpfMa and the SiaypaftfjLa is by no 
means always observed. On the use of the word ypa/x/xa, cf. Diod. 
xviii. 58. ( T H/ce Se /cat Trap' 'OAi'/>t7rtaSos avro) ypa/^ara, 8eo/>ti/^s 
KCU Xnrapovo'rjs /3orj6eiv TCHS /^acrtAeixri /cat eavry.) 

2 Antidosis, no: . . . wo-0' ^/xas pxv aV e/cetVr/s rrjs ^/xe/xxs dvecv 
avrrj Ka$' CKacrrov TOV fviavrov a>s ov<$e/uas aAAry? ouro) r 



PROCEEDINGS IN LATER TREATIES 415 

enter into treaties with one another, to reconcile the 
hostile feelings that may exist amongst us, and to 
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." 1 

We hear also of decrees passed in honour of those 
who had faithfully fulfilled their obligations. 

In reference to the record of treaties, we very often Additional 
find legends on coins as an additional form or official [Sui. o( 
attestation of alliances and other treaties concluded 
between States. There are numerous extant medals of 
Asiatic cities bearing inscriptions to this effect : * Alliance 
(ofwvota) of the inhabitants of ... and those of . . . ,' 
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 ; etc. 2 

Now as to the treaties of Rome concluded in the Later Roman 
time of the Republic. 3 First there was a vote by the y^'"' 
senate which was followed by a ratification by the people, senate. 
Sometimes the first step in the proceedings was taken ^|S~ Uon by 



1 Isoc. Panegyr. 43 : Twv roivvv ras Travrjyvpeis 

SIKCUWS rcuvov//,va>i/, on TOIOVTOV f#os rjfjuv irape&ocrav axrre <T7T- 
(rafjievovs Kal ras ^6pa^ ras tvco-TVjKvias SiaAwa/wvovs 
is ravTov, /cat //.era ravr \>\a<s Kal $wias /coivas 
dvajj.vr)<j-0r)vai. /xcv TTJS crvyyeveias T)S TT/)OS aAA>yAov 
cv/xevea-Tepws 8' cis Tov AoiTTov \povov StaTe^vat 7jy>&s Tafias avrov9, 
Kal ras re TraAcuas eaas avai/io<ra(r0ai Kal Keuvas Tpas TTOII}- 
<raa-6at. . . . Cf. Plut. Lycurg. I. 

2 Cf. A. Maury, Hisfoire des religion* de la Grlce antique, 3 torn. 
(Paris, 1856-9), vol. ii. p. II, note i. 

3 Cf. A. Weiss, Le droit filial et les fetlaux (in France judiciaire, 
Paris, 1882-3), on tne 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 
earn pacem servandam censuit, et paucos post dies 
populus iussit." 1 

Usually the ratification was made by the people, and 
the treaty voted, by a plebiscite, in the c comitia tributa.' 2 
After the ratification by the people, the senate 
Commissioners appointed ten commissioners, especially so in more 
for P the tec difficult cases, to assist the general in the negotiations, 
negotiations. anc j to d raw U p 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 c 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 Philippe 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 ; xxxiii. 25. 

3 Liv. xxxiii. 24.. Cf. xxxvii. 55. 



PROCEEDINGS IN LATER TREATIES 417 

As in the case of other nations, the conclusion of Religious 
treaties was celebrated by religious ceremonies, the * 
other contracting party or parties being represented in 
Rome by ambassadors. 1 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 2 (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 ' 5 given by Livy. 4 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 : 
c Hear, O Jupiter ; hear, O pater patratus of the Alban 
people, and ye, Alban people, hear. As those condi- 

1 Liv. xxxvii. 55. 

2 Liv. i. 24 ; 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.). 

8 Sueton. Claud. 25. 

4 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 ilia palam prima postrema ex illis tabulis cerave recitata 
sunt sine dolo malo, utique ea hie hodie rectissime intellecta sunt, 
illis legibus populus Romanus prior non deficiet. si prior defexit 
publico consilio dolo malo, turn tu, ille Diespiter, populum Romanum 
sic ferito, ut ego hunc porcum hie hodie feriam, tantoque magis fcrito, 
quanto magis potes pollesque/ " 



4 i8 PROCEEDINGS IN LATER TREATIES 



Sacrifice. 



Fetials in 
concluding 
treaties under 
the Empire. 



Oath as to 
fulfilment of 
conditions. 



Signatures. 



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." l 

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 per suum dictatorem 
suosque sacerdotes peregerunt." 2 

Then the fetials who presided over this ceremonial 
signed the document embodying the treaty, 3 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. 4 

1 Sueton. Claud. 25. 2 Liv. i. 24. Cf. Cic. Ad Fam. vii. 12. 

3 Liv. ix. 5. 

4 Dion. Hal. ii. 72 : KCU TO, TTC/H ras <rvvOr)Ka<$ ocrta <f>vXa.TTiv. 



PROCEEDINGS IN LATER TREATIES 419 

Finally, the dispositions of the treaty were engraved Record* 
on a bronze or marble tablet, which was deposited in depos 
the Capitol (or in certain temples) in the * aedes fidei 
populi Romani.' l 

1 Cf. Polyb. iii. 26 : TOVTUV 81) TOIOVTIDV \nra.p\Qvr<DV, KCU rrjpov~ 
fjLevtoV TWI> vvvOrjKWi' TL vvv fv ^aX.K^fj.ajori Trupa rbv Aia rbv 
KaTTtTwXtoi/, kv T<o T<3i> dyopavofUDV Ta/xtiy. Dion. Hal. iii. 33 : 
Kai TWV 6/xoAoytwv (rr^Aa? avTiypa</>ot)S ^VT? ci' rots iepot** ^in 
the treaty with the Sabines, the tablets were deposited in temples) ; 
cf. Dion. Hal. iv. 26. 



END OF VOL. I. 



GLASGOW : PRINTED AT THE UNIVERSITY PRESS BY ROBERT MACLEHOSB AND CO. LTD. 



/ 



I 271980 



PLEASE DO NOT REMOVE 
CARDS OR SUPS FROM THIS POCKET 

UNIVERSITY OF TORONTO LIBRARY 



Phillipson t Coleman 

International law and 
custom of ancient Greece 
and Rome