“Deinceps in lege est, ut de ritibus patriis coluntur optimi, de quo cum consulerent Athenienses Apollinem Pythium, quas potissimum religiones tenerent, oraculum editum est eas quæ essent in more majorum. Quo cum iterum venissent, majorumque morem dixissent, sæpe esse mutatum, quæsivissentque quem morem potissimum sequerentur, e variis respondit, optimum. Et perfecto ita est ut id habendum sit antiquissimum et a Deo proximum quod sit optimum.”[308]—Cicero de Legibus, ii. 16.
But this sentiment and tradition was not only common to the people of Greece and Rome, but to the yet uncivilised tribes of Germany.
“Or les dispositions, où la coutume barbare et la loi romaine s’accordent, sont encore celles qui semblent faire le fond des législations grèques: non que les douze tables aient été copiées, comme on l’a cru, sur les lois de Solon, mais à cause de l’étroite parenté des peuples de la Grèce et du Latium. A travers l’obscurité des siècles héroïques, on découvre un sacerdoce puissant qui a ses premiers établissements en Thrace, en Samothrace, à Dodone, et qui perpétuera son autorité par l’institution des mystères. On voit aussi la resistance d’une race belliqueuse.”—Ozanam, “Les Germains avant le Christianisme,” vol. i. chap. “Les Lois.”
“Au premier abord rien ne semble plus contraire aux mœurs barbares que la loi romaine, si subtile, si précise, si bien obéie. Cependant si l’on en considère les origines, on n’y trouve pas d’autres principes que ceux dont la trace subsistait dans les vieilles coutumes de la Germanie. Le droit primitif du Rome, comme celui du Nord, est un droit sacré.”—Ib. p. 148.
“Il existait chez les Germains une autorité religieuse, dépositaire de la tradition, et qui y trouvait l’idéal et le principe de tout l’ordre civil. Cette autorité avait créé la propriété immobilière en la rendant respectable par des rites et des symboles, ... elle l’engageait dans les liens de la famille légitime, consacrée par la sainteté du mariage, par le culte des ancêtres, par la solidarité du sang: elle l’enveloppait dans le corps de la nation sédentaire, ou elle avait établi une hierarchie de caste et de pouvoir, à l’exemple de la hierarchie divine de la création” (p. 147). “Dans cette suite de scènes dont se compose pour ainsi dire le drame judiciaire, on reconnaît un pouvoir religieux, qui cherche à sauver la paix, à désarmer la guerre et qui s’y prend de trois façons différentes” (p. 142).
Now, if we are agreed that fitting channels for the diffusion of the tradition existed; if, further, we find that all law seems to trace itself back to a common source of supernatural revelation; if the resemblances in the traditions concerning the lawgivers of antiquity—and, with the exception of Lycurgus, the agreement in the fundamentals of their codes—in the great lines of the family, property, and the external relations of life, seems to require the supposition of some common fountain-head at which they all filled the pitcher—we shall, I think, when we come to the question of public law, only require further some evidence of a tradition of maxims, rules, and precedents of procedure in war, founded on and appealing to natural right, and claiming the sanction of the gods, to establish the existence of a law common to all nations different from that which would have arisen from the judgment of the prætors, merely applying the rules and maxims common to the Romans and the adjoining nations, in case of conflict where the law of the State was not allowed to be applied (supra, Maine).
I shall, doubtless, be reminded that this was only part of Sir H. Maine’s argument, and that it was this, taken in connection with the influence of the Stoics on Roman law, and the stoical conception of nature,[309] which created the fiction of a law of nature, and of a law common to all nations.
Let it then be granted that the theories and maxims of the Stoics had their influence on Roman society and Roman law. It was only part of the influence which stole over and everywhere impregnated the field of primitive tradition. Sir H. Maine shows us how it at once seized upon the element of law, which, be it in fiction only, was said to be common to all nations. Would it the less have seized upon it if, instead of being a fiction, it had been a reality?—à fortiori, it would have done so. Therefore Sir H. Maine leaves the question as to the belief among the ancients in a “law common to all nations” still open, or rather, so far as there is an argument, it is only with the previous part of his theory that it is necessary to deal; for all that Sir H. Maine’s finely-drawn reasoning and subtle detection of the influence of Grecian stoicism on Roman law accounts for—so far as the present argument is concerned—is the greater attention and respect which was henceforward paid to the fiction, supposing that it had not heretofore and always been paid to the fact, that there was a traditional law common to all nations.
I have previously ([p. 3]) pointed out the distinction between the law of nations and international law, and I am under the impression that I made the distinction before the publication of Sir H. Maine’s work—certainly before I had become acquainted with it. The manner in which Sir H. Maine makes the distinction does not appear to me to be quite accurate. He says:—“It is almost unnecessary to add that the confusion between jus gentium, or law common to all nations, and international law, is entirely modern. The classical expression for international law is jus feciale, or the law of negotiation and diplomacy” (p. 53). The Fecial College was very far from corresponding with our Corps Diplomatique, neither was its law a law of negotiation and diplomacy; and the distinction between the law of nations and international law was made in modern times, precisely because in antiquity treaty law was subordinate to, and identified with, the traditional law. The Fecial College corresponded much more nearly to what our Heralds’ College would be, supposing the Heralds’ College invested with the authority of our Admiralty Courts, and also made the trustees of the foundation for the study of international law, which Dr Whewell’s bequest had the intention of instituting at Cambridge. We should then have, as in ancient times, a body of men who would be at once the depositaries, the interpreters, and the heralds of a tradition, though, to complete the picture, we should have to invest them with a sacred character, and in some way to give to their decisions the sanction of religion. Dionysius of Halicarnassus tells us that they were priests chosen from the best families at Rome, and that their special intention was to see that the Romans never made an unjust war. “The seventh part of the Sacred Laws was devoted to the college of the Fecials, whom the Greeks call εἰρηνοδικαι.[310] They are men selected from the most illustrious families, and are dedicated during their whole life to this priesthood.... It would take long to enumerate all the various duties of the Fecials, which were multifarious, ... but in the main they are these,—to take heed lest the Romans should ever undertake an unjust war with a city with which they were in league” (Lib. ii.); it was their duty to demand reparation, and, failing, to declare war; in case of differences with allies, they acted as mediators, and they adjudicated in case of disputes. It was for them to decide what constituted an injury to the person of an ambassador, and whether or not the generals had acted according to their oaths; to draw up the articles of treaties, truces, and the like; and to decide as to their nullity and validity, and to communicate accordingly with the Senate, which deliberated upon their report.
What Cicero tells us is not less to the point:—