The circumstances of the origin of the Jus Gentium areprobably a sufficient safeguard against the mistake of supposingthat the Roman lawyers had any special respect for it. It was thefruit in part of their disdain for all foreign law, and in partof their disinclination to give the foreigner the advantage oftheir own indigenous Jus Civile. It is true that we, at thepresent day, should probably take a very different view of theJus Gentium, if we were performing the operation which waseffected by the Roman jurisconsults. We should attach some vaguesuperiority or precedence to the element which we had thusdiscerned underlying and pervading so great a variety of usage.
We should have a sort of respect for rules and principles souniversal. Perhaps we should speak of the common ingredient asbeing of the essence of the transaction into which it entered,and should stigmatise the remaining apparatus of ceremony, whichvaried in different communities, as adventitious and accidental.
Or it may be, we should infer that the races which we werecomparing had once obeyed a great system of common institutionsof which the Jus Gentium was the reproduction, and that thecomplicated usages of separate commonwealths were onlycorruptions and depravations of the ******r ordinances which hadonce regulated their primitive state. But the results to whichmodern ideas conduct the observer are, as nearly as possible, thereverse of those which were instinctively brought home to theprimitive Roman. What we respect or admire, he disliked orregarded with jealous dread. The parts of jurisprudence which helooked upon with affection were exactly those which a moderntheorist leaves out of consideration as accidental andtransitory. The solemn gestures of the mancipation; the nicelyadjusted questions and answers of the verbal contract; theendless formalities of pleading and procedure. The Jus Gentiumwas merely a system forced on his attention by a politicalnecessity. He loved it as little as he loved the foreigners fromwhose institutions it was derived and for whose benefit it wasintended. A complete revolution in his ideas was required beforeit could challenge his respect, but so complete was it when itdid occur, that the true reason why our modern estimate of theJus Gentium differs from that which has just been described, isthat both modern jurisprudence and modern philosophy haveinherited the matured views of the later jurisconsults on thissubject. There did come a time, when from an ignoble appendage ofthe Jus Civile, the Jus Gentium came to be considered a greatthough as yet imperfectly developed model to which all law oughtas far as possible to conform. This crisis arrived when the Greektheory of a Law of Nature was applied to the practical Romanadministration of the Law common to all Nations.
The Jus Naturale, or Law of Nature, is simply the Jus Gentiumor Law of Nations seen in the light of a peculiar theory. Anunfortunate attempt to discriminate them was made by thejurisconsult Ulpian, with the propensity to distinguishcharacteristic of a lawyer, but the language of Gaius, a muchhigher authority, and the passage quoted before from theInstitutes leave no room for doubt, that the expressions werepractically convertible. The difference between them was entirelyhistorical, and no distinction in essence could ever beestablished between them. It is almost unnecessary to add thatthe confusion between Jus Gentium, or Law common to all Nations,and international law is entirely modern. The classicalexpression for international law is Jus Feciale or the law ofnegotiation and diplomacy. It is, however, unquestionable thatindistinct impressions as to the meaning of Jus Gentium hadconsiderable share in producing the modern theory that therelations of independent states are governed by the Law ofNature.
It becomes necessary to investigate the Greek conceptions ofnature and her law. The word *@@@@, which was rendered in theLatin natura and our nature, denoted beyond all doubt originallythe material universe, but it was the material universecontemplated under an aspect which -- such is our intellectualdistance from those times -- it is not very easy to delineate inmodern language. Nature signified the physical world regarded asthe result of some primordial element or law. The oldest Greekphilosophers had been accustomed to explain the fabric ofcreation as the manifestation of some single principle which theyvariously asserted to be movement, force, fire, moisture, orgeneration. In its ******st and most ancient sense, Nature isprecisely the physical universe looked upon in this way as themanifestation of a principle. Afterwards, the later Greek sects,returning to a path from which the greatest intellects of Greecehad meanwhile strayed, added the moral to the physical world inthe conception of Nature. They extended the term till it embracednot merely the visible creation, but the thoughts, observances,and aspirations of mankind. Still, as before, it was not solelythe moral phenomena of human society which they understood byNature, but these phenomena considered as resolvable into somegeneral and ****** laws.
