亨利-梅因：国际法Lecture2.docx

亨利-梅因：国际法Lecture2In the latter portion of the last lecture I endeavoured to establish three propositions， which I hold to be extremely important to the intelligent study of International Law. The first of them was that the process by which International Law obtained authority in a great part of Europe was a late st age of the process by which the Roman Law had also obtained authority over very much the saline part of the world. Next， I said that this process had little or no analogy to what is now understood by legislation， but consisted in the reception of a body of doctrine in a mass by specially constituted or trained minds. Lastly， I contended that this doctrine， so spread over Europe， consisted mainly of that part of the Roman Law which the Romans themselves had called Jus Gentium or Jus Naturae —— Law of Nations， or Law of Nature； terms which had become practicably convertible. The inquiry into the exact meaning of the phrase ”Law of Nature” belongs to a different department of juridical study， and I think it will be sufficient if I briefly summarise the views， themselves considerably condensed， which I published some years ago in a volume from which I quoted in the last lecture. Jus Gentium， or Law of Nations， had not， so I thought， much colour at first of the meaning which it afterwards acquired. It was probably， I said， half as a measure of police， and half in furtherance of commerce， that jurisdiction was first assumed in disputes in which either foreigners， or a native and a foreigner， were concerned. In order to obtain some principles upon which the questions to be adjudicated on could be settled， the Roman praetor peregrinus resorted to the expedient of selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. In other words， he set himself to form a system answering to the primitive and literal meaning of Jus Gentium， that is law common to all nations. Jus Gentium was in fact the sum of the common ingredients in the customs of the old Italian tribes. It was accordingly a collection of rules and principles determined by observation to be common to the institutions which prevailed among the various Italian races. Now， it is to be remembered that every Roman of position who followed public life was in the course of his official career not only， so far as his powers went， a statesman， but specially a general and a judge. Speculation upon legal principles manifestly became common among the Roman aristocracy， and in course of time the question suggested itself what was the essential nature of this Jus Gentium which had at first very possibly been regarded as a mere market law. The answer was shaped by the Greek philosophy， which was a favourite subject of study among the class to which the Roman lawyers belonged. Seen in the light of Stoical doctrine the Law of Nations came to be identified with the Law of Nature； that is to say， with a number of supposed principles of conduct which man in society obeys simply because he is man. Thus the Law of Nature is simply the Law of Nations seen in the light of a peculiar theory. A passage in the Roman Institutes shows that the expressions were practically convertible. The greatest function of the Law of Nature was discharged in giving birth to modern International Law and the modern Law of War. I ought to observe that in this account of the matter probably one correction has to be made. Some acute scholars have examined the authorities since I wrote， and they are inclined to think that very anciently there are some instances of the use of Jus Gentium in a wider and something like its modern sense； that is， law binding on tribes and nations as such. Granting that this is so， still the impression that the Roman Law contained a system of what would now be called International Law， and that this system was identical with the Law of Nature， had undoubtedly much influence in causing the rules of what the Romans called Natural Law to be engrafted on， and identified with， the modern law of nations. When the older Roman sense of the words died out cannot be confidently ascertained， though of course in a world which was divided between two great rival sovereigns， the Roman Emperor and the King of Persia， there was little room for Law of Nations in the true sense of the words. When， however， at what period， did this Jus Gentium or Jus Natural rise into the dignity which the Roman lawyers give to it？ There is a strong probability that this exaltation was not very ancient， but that it took place during the period， roughly about three hundred years， covered by the so-called Roman Peace. That Peace extended from the time at which the Roman Empire was settled by the success of Augustus over all his enemies to the early years of the third century. The Roman Law transformed a large number of the ideas of a great portion of the world； but i。