(b) The Mid-Republican Period, from the XII. Tables Until About the Middle of the Second Century B.C.—Apart from f rag ments of the Tables and from the historians, who are of course chiefly of use for constitutional law, our evidence is not a great deal better than for the previous period when it comes to detail, and the history of law, like the rest of Roman history, suffers still from the destruction of records when Rome was burnt by the Gauls in or about 387 B.C. However we know of some laws passed, of the existence of certain legal institutions and the names of some famous lawyers, though no professedly legal work has sur vived, and indeed few were written. The period is pre-eminently one of the ius civile, as opposed both to the ius honorarium or magisterial law and to the ins gentium, in the sense to be explained below.
(c) The Late Republican Period.—For the last century and a half of the republic the position as regards evidence is already different. A few quotations from legal writers of the time sur vive in Justinian's digest ; we have Cicero, in all of whose works there are numerous references to legal matters, and we have other non-legal literature from which information on law can be deduced. We have too the text of a few laws in inscriptions. The period is that in which magisterial edict comes to be the chief reform ing factor in Roman law and it may thus be described as the period of the earlier ius honorarium. It was also the period in which the ins gentium began to be of importance, and these two facts are not unconnected, for it was probably through the medium of the Edicts that a large part of the ius gentium found its way into the law as administered between citizens.
Ins gentium is a difficult phrase to explain, because it has two distinct, though related, meanings, the one practical, the other theoretical. In the practical sense it means that part of the Roman law which was applied by the Romans both to themselves and to foreigners, while ius civile, as opposed to it, means that part which the Romans applied only to themselves. This dichot omy can only be explained historically. Roman law like other ancient systems, adopted originally the principle of personality, i.e. that the law of the state applied only to its citizens. The for eigner was strictly rightless, and unless protected by some treaty between his state and Rome could be seized, like an ownerless piece of property, by any Roman. But from early times there were treaties with foreign states guaranteeing mutual protection, and even where there was no treaty, the increasing commercial interests of Rome made it necessary for her to protect, by some form of justice, the foreigners who came within her borders. Now
a magistrate charged with the administration of such justice could not simply apply Roman law, because that was the privilege of citizens, and even had there not been this difficulty, the foreigners, especially those coming from Greek cities and used to a more developed and freer system, would probably have objected to the cumbrous formalism which characterized the early ius civile.
What the magistrate in fact did, was to apply a system com posed of the already existing "law merchant" of the Mediter ranean peoples and a strong Roman flavouring, the Roman ele ment being, however, purged to a large extent of its formalist elements. This system was also adopted when Rome began to have provinces and her governors administered justice to the provin cial peregrini (foreigners), a word which came to mean, not so much persons living under another government (of which, with the expansion of Roman power, there came to be fewer and fewer) as Roman subjects who were not citizens. The general principle adopted seems to have been to allow disputes between members of the same (subject) state to be settled by their own courts according to their own law, while the governor's courts applied ius gentium to disputes between the provincials of different states or between provincials and Romans. The law thus developed in its turn reacted on the law as administered between Romans, espe cially by way of making it less formal, with the result that to a considerable extent the two systems were identical, and this is true particularly of the law of contract. When therefore a Roman lawyer says that the contract of sale, for instance, is iuris gen tium, he means that it is formed in the same way and has the same legal results whether the parties to it are citizens or not. This is the practical sense of ius gentium, but the idea is closely inter woven with a theoretical sense, that of a law common to all peo ples and dictated by Nature which the Romans took from Greek philosophy.
Aristotle had already divided law into that which is natural (OvacK6v) and that which is man-made (vop.LK6v) and had asserted that the natural part was in force everywhere. This conception fitted well with the Stoic ideal of a life "according to nature," and became a commonplace which was borrowed by the Roman jurists, who, like other educated Romans, were much under the influence of the Stoic system. In their works this theoretical law of nature, "common to all mankind," then becomes identified with the really practical law which the Romans administered to all free men, irrespective of citizenship, simply on the basis of their freedom.