§ 13.: The idea of the Law of Nature; its influence on Slavery.

The Jus Gentium could not pass from being a mere fact to being an ideal without gaining some theoretical justification for its existence and acceptance. This justification was found in the idea that it was a product of the Law of Nature. It is not improbable that the superior ‘naturalness’ of the Jus Gentium to the Jus Civile had begun to appeal to the Romans long before they had begun to be affected by Greek philosophic thought; for we know the effect which was produced on the minds of the Greeks themselves by their early contact with foreign civilizations. They rapidly drew the conclusion that what was common to various countries existed by nature (ϕύσει), what was peculiar to a country existed by convention (νόμῳ); and the κοινὸς νόμος or τὸ ϕυσικὸν δίκαιον of the Greeks is practically identical with the Jus Gentium of the Romans. Even to the primitive mind the universality of an institution implies its naturalness. But it is very probable that the Stoic conception of Nature did, to the Roman mind, complete the train of thought and give a scientific stability to a vague impression. It was not, indeed, possible to identify the Jus Gentium with the Lex Naturae; for a Jus cannot be the same as a Lex. But it might be regarded as the product of that Lex, as its concrete expression in human society. The immediate product, however, of the Lex Naturae is the Jus Naturale. The Jus Gentium tended, therefore, to be identified with the Jus Naturale; and the identification seems to be complete except in one important point. According to the view finally adopted by the jurists, the Jus Naturale implies personal freedom; for all men are born free in a state of nature. But the Jus Gentium (the law of the civilized world) admits the institution of Slavery. In this point, therefore, the two are in conflict, and the Jus Naturale presents an even higher ideal of society than the Jus Gentium. The relation between the three types of Jus, known to the theory of Roman jurisprudence, may be expressed by saying that the Jus Civile is the Right of man as a member of a state, the Jus Gentium the Right of the free man, the Jus Naturale the Right of man.

The appeal to Nature on behalf of the slave is an index of the part which he was to play in the development of Roman law. Roman slavery cannot be judged solely either by the dismal picture Edition: current; Page: [xxxvii] presented by the plantation system, or by the legal theory that the slave was a mere Thing (Res), a chattel, not a person. We must remember that the slave, often of an intelligence and culture superior to those of his master, and gifted with the practical genius and the capacity for detail characteristic of the Greek, was frequently an active man of business. We must remember too that the very fact that he was a chattel might be employed by the law as the basis for the theory that he was, for this very reason, an excellent Instrument of Acquisition. So essential was he to his master in his capacity of agent that the law was forced to recognize that he could be a party to an obligation. The obligation, it is true, could not be called legal; it was only natural (Naturalis obligatio); but still it was an obligation that could benefit the master, without making that master’s condition worse. It was necessary, however, to protect other parties to these contracts; and the Praetor gradually created a series of quasi-liabilities for the master of the trading slave. Such liabilities are expressed in the actions Quod Jussu, Tributoria, De Peculio, De in Rem Verso. They were created in the interest of the master as well as in that of the other party to the contract; for without these guarantees slave-agency would have become impossible. In the history of agency the slave plays a distinguished part; and the part that he plays is formally justified by the view that he is the possessor of Natural Rights.