298 HISTORY OF ROMAN LAW 



in his notes on Fortescue he contrasts the " issue " of English with 

 the litis contestatio of Roman procedure. Selden's case would alone 

 suffice to show that the civil law was in his time no terra incognita 

 to learned English lawyers, though it may well* be admitted that 

 few were so learned as he. 



Of early international law as such there is not much to be noted 

 beyond the fact already mentioned that it was founded and built on 

 Roman law. If, for instance, we wish to know where Grotius got his 

 idea of postliminium, we turn to the Digest, and similarly with his 

 conception of ius gentium and ius naturae. Neither of these was to 

 him an abstract system founded on pure moral reasoning, witness 

 his inclusion of rules on lying and deceit among the rules of the law 

 of nature, but he thought with Gains that ius gentium was that 

 law "which is observed among all mankind equally on principles 

 of natural reason"; and he based his law of nature not on abstract 

 ideas but on the necessities of social intercourse. 



For our present purpose the most interesting point to notice in 

 the classical writings on international law is the way in which the 

 texts of the Roman jurists are there treated as repositories of ius 

 gentium and of ius naturae. Roman law seems in fact to have been 

 regarded, even by men like Selden, as a sort of universal common 

 law, the principles of which should prevail wherever they were not 

 superseded by some local system. As there is obviously no such sys- 

 tem applicable to international relations, the supremacy of Roman 

 law in that sphere was everywhere admitted. Such a view had two 

 important results. The connection of international law with a com- 

 pact and well-understood mass of written law has caused it to be 

 treated, except by strict analysts like Austin, as something very 

 different from international morality. And on the other hand the 

 recourse to the Roman jurists for the settlement of international 

 questions still further increased the tendency to regard Roman law 

 as embodying principles of universal validity. 



While the classical jurists are even now by no means obsolete, as 

 was shown in the Behring Sea arbitration, yet most of the unsettled 

 questions of the present day, such as the definition of contraband or 

 the control of wireless telegraphy, will not be determined by reference 

 to Roman texts, but by the common assent of nations. The service 

 rendered by the Roman jurists to early international law lay precisely 

 in the fact that they were regarded as voicing this common assent, 

 and that their writings commanded obedience, although nobody 

 perhaps could clearly have explained why. 



We have thus seen that while Roman law has influenced the law 

 of England, and has virtually originated that of Continental Europe, 

 its chief triumph has been the creation of a system of world-wide law, 

 such as would have delighted the heart of the philosophic Ulpian. 



