who preached peace and goodwill on earth, in the proof which this holy institution shews of an earnest desire for peace. Whilst Ward, following Vattel, thinks that modern jurisprudence might learn a lesson of moderation. and equity from this part of Roman law, deeming the "very existence of a college of heralds, to preside over and expound rules expressly drawn up for their conduct towards foreigners, a proof that the Romans were a people far advanced in the law of nations considered as a science';" nor have some eminent writers of our own times distinguished with sufficient accuracy the true position of the Fetiales and the meaning of that Jus which has been ascribed to them; for in one place we read of the Fetiales as being really judges of the legality of a war; in another of the Jus Feciale, or the law of negotiation and diplomacy, being the classical expression for International Law; whilst one common mistake is, that the Roman law of peace and war was contained in a sort of Fecial jurisprudence3. It is unnecessary to examine the whole history of this remarkable institution. Whether the College of Fecials owed its origin to a king (Numa or Ancus Martius) as some assert, or whether it was copied by the Romans from some of the ancient tribes that surrounded them, is of little consequence here; nor does it much matter what was the precise number of its members, or what its constitution and form; it is sufficient to know that it was a college of priests charged with the duty of observing those formalities in war which ancient custom had prescribed, and that the fecial law was the collected edition (though never published) of the formal regulations which were observed in declaring war, in carrying it on, and in concluding treaties.

The functions of the Fetiales were various. First of all there can be no doubt that they were the interpreters of this Jus Fetiale, deciding all disputed points that arose out of it, and explaining its forms and ceremonies"; but the next and not the least remarkable part of the

1 Vattel, II. 14. 209. Ward, Law of Nations, Vol. 1. p. 184. 2 Rein in the Real-Encyklopädie der Classischen Alterthumswissenschaft, T. 1. p. 467.

3 See Maine, Ancient Law, p. 53.

4 Cic. de Legg. 11. 14; De Off. III. 29.

5 Cic. de Legg. II. 14; Livy, 31. 8.

The Jus

Feciale.,

The Jus
Feciale.

duties cast upon them was that of acting as advisers to the chief magistrate in the state, not on the justice or injustice of a probable war, or upon the advisability or non-advisability of commencing hostilities, but of the proper mode in which war should be declared. Their answer was given in the shape of a decree, and it is a fact which points strongly to the conclusion that they were nothing but heralds, and mere ministers, without the power of originating laws or influencing the national policy, that no instance is recorded of their having been consulted on the policy of a war, of their having dissuaded the people from a war as unjust, or of their having ever been consulted upon the policy of the rules and regulations by which foreigners were permitted to reside in Rome.

Of the Fecial daw itself, if law it can be called, so little has come down to our time that no satisfactory explanation of it can be given. One rule however has been cited by Cicero, and noticed by other writers, which as a leading principle deserves a slight notice. "No war was justum unless preceded by a formal demand of reparation, or unless regularly and solemnly declared." Now, all that seems to be meant by this phraseology is, that unless two particular forms were closely adhered to, and performed with all due ceremony, any hostilities that took place were not justa-that is legal. Those forms were first a demand upon the offending nation to do what was right, to make reparation for injuries, or restoration of property seized, called "rerum repetitio," which was done in a set speech, and with solemn ceremony, by the chief of the Fetiales, the Pater Patratus, with a time granted for deliberation-about thirty-three days. Upon the expiration of that period without a satisfactory answer, the people in the comitia tributa (who had been informed by the Fetiales of what they had done, and how their mission had been received) deliberated on peace or war; and then, if war was decided on, the second form followed, for the Fecials were instructed to declare it; which they

1 See Osenbruggen, de Jure belli et pacis Romanorum, p. 25, and Laurent, Etudes sur l'Histoire de l'Humanité, Tom. I. p. 16 et sq.

2 Cic. de Off. 1. xi. 36; De Leg. 1. ix. 21; Varro, de Ling. Lat. v. § 86; Dion. Hal. Ant. 11. 72.

did in the name of the Senate of the Roman people, The Jus hurling a spear into the enemy's territory. As far there- Feciale. fore as war is concerned, the functions of this college of priests were few and simple; to receive the commands of the Roman people; to act upon them by performing the ceremonies prescribed and hallowed by custom; to decide as Judges upon difficulties that might arise out of the rerum repetitio; and to make the war legal or just by pronouncing the consecrated formula.

But the duties of the Fecials were not confined to the declaration of hostilities or to times of war. From various passages in the classical authorities it would appear that they were entrusted with the task of drawing up in proper form the treaties or foedera that were agreed to be entered into by the Roman people, and this not only in the Kingly period of Rome, but under the Republic'; whilst a no less important business was committed to their hands, that of protecting the sanctity of ambassadors, and of seeing that such persons themselves did nothing contrary to law.

From the Fecial Law, and its absence of resemblance to anything like a system of International Law, we proceed to consider that which in name, but in name only, means a law of nations.

Gentium.

"It is almost unnecessary," says a modern writer of The Jus distinction", "to state that the confusion between Jus Gentium, or law common to all nations, and International Law is entirely modern;" but as the confusion has existed it is as well to know what was the precise meaning and what the peculiar province of the Roman Jus Gentium. Now, if we pass over the tripartite arrangement of Ulpian, and refer to Gaius as our authority, we find that the Jus Gentium was practically the same in meaning as the Jus Naturale. An obvious remark however occurs here; if such is the case, if the Jus Gentium be no other than the Jus Naturæ, (not that jus naturæ, be it noticed, which Ulpian describes as a kind of instinct common to all animals, but that set of rules which all people use in

1 Livy, 30, 43; Servius ad Virg. Æn. x. 13.

2 Dion. Hal. Ant. 11. 72; Varro, ap. Non. Marcell. 11. 12; Flutarch, Camillus, 17 and 18.

3 Maine's Ancient Law, p. 53,

The Jus
Gentium.

common, and the use of which reason has taught them',) why were two expressions employed, differing in form, and apparently intended to convey distinct meanings, especially as at the time these distinctions were grafted upon the Roman Jurisprudence; "Nature had become a household word in the mouths of the Romans, and the belief prevailed among their lawyers that there was a Code of Nature"?

The explanation of this will not only help to place this peculiar Roman conception of law in its proper aspect, but will also throw light upon its true position in later Roman Jurisprudence.

In all probability at the outset of Roman history there was but one kind of law, the collection of rules under which the lives, the property, and the contracts of the citizens were protected. Wars took place, kingdoms were established, nations grew up into life, property was held by various individuals; in short, all those institutions existed which the Roman lawyers in after days attributed to the Jus Gentium3, and yet but one law was thought of the Roman law, and to one class of people only was it applicable, the Roman citizens. Now when, in process of time, a large number of strangers were gathered within the walls of the city, and when many Italian tribes (nations so to speak) had owned the power of Rome, whose members became subject to the state, though not admitted to the right of citizenship, it frequently happened that differences arose between citizens and strangers, or between strangers themselves, to settle which law of some kind was required. What was the law to be resorted to? Not the Jus Civile, or Roman law, for that was rigidly devoted to a particular class, viz. citizens, and formed as it was out of old deep-rooted customs, was too inelastic to be adapted to new combinations and forms. Not the Jus Naturæ, for the influence of that notion was not felt till Greek philosophy had made progress in Roman society. Some device was needed to supply the want, and that was effected by the Judges of the court which took under its protection the strangers and their interests, viz. the Prætors. These officials, untrammelled by the harsh rules of the Old

1 D. I. 1. 9.

2 Maine, p. 56.

3 D. I. 1. 5.

Gentium.

Roman law, and free to notice and make use of any of The Jus the institutions, laws, and customs of the surrounding tribes, if it suited their purpose-free, that is, to mix their own Jurisprudence and court rules with a foreign element,-did so act, influenced probably by the very principle that was afterwards said to lie at the root of the Jus Gentium, that institutions and laws which bore a close resemblance to one another, though brought from foreign parts, must have had a common origin (quasi quo jure omnes gentes utuntur). Thus these new rules which at first were intended to supply a blank in the political administration of Rome, and to remedy a mischief, in time grew into a separate Jurisprudence, requiring a distinct name, and what is still more remarkable, became a stock from which were framed a large number of legal institutions and judicial notions tending to supplement and improve the old law. The Jus Gentium therefore was, as the writer above quoted says, "the sum of the common ingredients in the customs of the old Italian tribes who sent successive swarms of immigrants on to Roman soil, a system forced on the attention of the Romans by a political necessity, at first loved as little as the foreigners, from whose institutions it was derived and for whose benefit it was intended, but in process of time swelling into larger proportions and becoming a great though imperfectly-developed model to which all law ought as far as possible to conform1."

This therefore is clear, that neither in the Fecial Law, whatever that was, nor in the Jus Gentium, do we find the germs of the modern system of International Law.

Roman practice

But, lastly, the practice of war among the Romans, from the earliest to the latest period of their existence as of war. a great and warlike nation, exhibits no proof of the ameliorating influence of humanity, justice, or law upon it. It would be an easy but a valueless labour to collect instances without end of the cruel and treacherous spirit which actuated the ancient Romans in their incessant wars, and of their utter disregard for those laws of war which, if there be any meaning in the passage of Sallust presently to be referred to, they were supposed to possess. Two examples will suffice. During the second Punic War (which was waged about 200 or 220 years before

1 Maine, ch. iii. pp. 48-53.