ON SOME INTERNATIONAL REGULATIONS IN GAIUS’S INSTITUTES

The subject matter of the article concerns international regulations mentioned by Gaius in his Institutes. The work under discussion, which is also a textbook for students of law, refers in several fragments to the institutions respected at the international level – the status of the Latins, peregrini dediticii and sponsio, contracted at the international arena. The references made by Gaius to the above institutions was aimed at comparing them to private-law solutions, which was intended to facilitate understanding of the norms relating to individuals that were comprised in his work.


INTRODUCTION
The work entitled Institutionum commentarii quattuor 1 by the jurist Gaius 2 , living in the 2nd century AD, is one of the most important works * Izabela Leraczyk, Associate Professor in the Department of Roman Law, The John Paul II Catholic University of Lublin, e-mail: izabela.leraczyk@kul.pl, ORCID: 0000-0003- 4723-8545. providing the grounds for research on the Roman law of the classical period 3 . Throughout the centuries it was believed that this work was lost and its fragments could be recreated only on the basis of other sources, among others the compilation of Emperor Justinian 4 . The ruler expressed his appreciation of Gaius's achievements, emphasizing that the work of the jurist was the most important source 5 on which the imperial Institutes were based, which is demonstrated for instance in the use of the same systematization 6 . Fragments of Gaius's Institutes are also to be found in the 5th-cen-M. Honoré, Gaius. A Biography, Cambridge: Clarendon Press, 1962, 12−17;Tomasz Giaro, "Gaius", In: Der Neue Pauly. Enzyklopädie der Antike, vol. 4, ed. H. Cancik, H. Schneider, Stuttgart: Metzler, 1998, 737. 3 It is assumed that the classical period of Roman law lasted from the establishment of the principate by Octavian Augustus and ended with the end of the rule of the Severan dynasty. Max Kaser, Das römische Privatsrecht, vol. 1, ed. 2, Munich: CH BECK, 1955, 159−168. 4 Gaius commented, among others, on the Law of the Twelve Tables, leges Iulia et Pappia Poppea, senatus consultus Tertulianum and s.c. Orfitianum, as well as on the edict of the municipal and provincial praetor. Their fragments were also found in the compilation of Justinian. Tony Honoré, Justinian's Digest: Character and Compilation, Oxford: Oxford University Press, 2010, 24. Although his contemporaries rarely referred to his opinions, he was appreciated in the era of post-classical law. The law on citation included in the Theodosian Code, issued in 426 AD by Valentinian III and Theodosius II, sanctioned a long-standing practice in accordance with which the opinions of Gaius, together with the writings of Papinianus, Paulus, Ulpian and Modestinus, had binding force so that their authority could be summoned before the court. C.Th. 1.4.3: Impp. Theod. et Valentin ad senatum urbis Romae: Papiniani, Pauli, Gai, Ulpiani atque Modestini scripta universa firmamus ita, ut Gaium quae Paulum, Ulpianum et ceteros comitetur auctoritas lectionesque ex omni eius corpore recitentur. 5 Prooem. Inst. 6: Quas ex omnibus antiquorum institutionibus et praecipue ex commentariis Gaii nostri tam institutionum quam rerum cottidianarum aliisque multis commentariis compositas […] et plenissimum nostrarum constitutionum robur eis accommodavimus. 6 The systematization personae-res-actiones created by Gaius was recreated by Justinian. The systematics had a great impact on the later fate of the systematization of law. A similar division was used for the content of the French Civil Code of 1804 (Code civil des Français) and the Austrian Civil Code of 1811 (ABGB). Also, the Canon Law Code of 1917 was based on this scheme. Andrzej Sacher, "Personae-res-actiones", In: Leksykon tradycji rzymskiego prawa prywatnego. Podstawowe pojęcia, ed. Antoni Dębiński, Maciej Jońca, Warsaw: CH BECK, 2016, 285−286. See also: Max Kaser, Das römische Privatsrecht, vol. 1, Munich: CH BECK, 1955 tury Collection of Moses and Roman law (Mosaicarum et Romanarum legum collatio), being a collection juxtaposing fragments of the Old Testament, the writings of the jurists from the classical period and the imperial constitutions 7 . Only in the year 1816, the German historian Barthold Georg Niebuhr announced that one of the manuscripts located in the collection of the Library of Verona is precisely Gaius's Institutes 8 , unknown until then as a complete text. The text and its author have been therefore the subject of analysis for "merely" two hundred years and numerous articles and studies have already been devoted to it 9 .
The discussed work is a textbook for studying law 10 . Written in a very communicative language, the work is divided into four commentaries. The first book, entitled De personis, concerns introductory knowledge -the division of law and its sources, the division of people into freemen, slaves, as well as the division into the freeborn and freed persons. Further, the text concentrates on the division of persons into the sui iuris and alieni iuris, and those remaining under care or guardianships. Book Two and Three entitled De rebus focus on property law -the division of property, its acquisition, types of ownership, as well as types of inheritance -and, finally, the law of obligations and its categories. The last book of the series, Book Four, is entitled De actionibus and includes an elaboration on the subject of complaints, together with a description of issues related to the conducting of legal trials. 10 Renato Quadrato, Le Institutiones nell'insegnamento di Gaio: omissioni e rinvii, Naples: Jovene, 1979, 3. The very term "institutes" derives from the verb "to instruct", "to train up", "to teach", "to educate" (instituere). Charlton T. Lewis, Charles Short, A Latin Dictionary, Oxford: The Clarendon Press, 1956, s.v. instituo, 969. Even though the structure and content of the Institutes concern Roman law, some of the fragments include references to other legal orders 11 . The analysis below aims to establish whether they include international regulations.

IUS GENTIUM
In the first fragment of Book One Gaius remarks that "So the laws of the people of Rome are partly peculiar to itself, partly common to all nation" 12 . The "ius common to all men" is a law which natural reason establishes among all men and is observed by all peoples alike. It is called the ius gentium, as being the ius which all nations employ 13 .
In Gaius's understanding, repeated by Justinian, ius gentium was juxtaposed with ius civile 14 . Thus, it referred to the provisions of private law applied by all the people, whose roots the Romans located in the natural law (ius naturale) 15 . It should not be forgotten that under the term ius gentium one could also find the effects of the law-making activity of the praetors, especially those made by the magistrate for foreigners (praetor peregrinus) 16 . This activity was based on introducing legal solutions applied in other legal 11 In his Institutes Gaius makes references to other legal systems, even though those are very laconic remarks. Still, he emphasizes that "although if we ascertain what the law is among aliens by searching the records of other states we might come to a different conclusion" (Gai 3.96: nam apud peregrinos quid iuris sit, singularum civitatium iura requirentes aliud intellegere poterimus). Transl. Francis de Zulueta. 12  systems 17 to the annual edicts, which facilitated the resolution of disputes in which one of the sides did not have Roman citizenship 18 . At the same time, the ancient Romans used this term to denote, among others, the laws applied by parties being in a state of war with one another, regulations regarding the parliamentary immunity or the norms regulating the rights and obligations of the contracting parties 19 . Such an opinion was expressed not only by the historians but also by some jurists 20 . 17 At the beginning of the annual office, the newly-chosen praetor would issue an edict in which he announced the principles he was going to follow during his term of office. In issuing such edicts, the praetors often relied on the solutions worked out by their predecessors, as well as on the regulations and institutions known in other legal orders. Theodor Mommsen, Römisches Staatsrecht, vol. 2.1, Basel 1888, reprint Cambridge: Cambridge University Press, 2009 19 For instance, Livy emphasized that the violation of the bodily integrity of a foreign legate is a violation under the ius gentium. See: Izabela Leraczyk, "The Consequences of Violating the Immunity of Carthaginian Envoys in the Light of Liv. 38.42.7 And Val. Max. 6.6.3", Review of European and Comparative Law 32(2018): 19−40. At the same time, the ancient authors with regard to the international legal institutions also used some other expressions. Livy himself, in the first words of Book One Ab urbe condita indicates that the defeated Trojans were treated in accordance with the law of war (ius belli), which he considered to be cruel. Liv. 1.1.1. Describing the sacking of Capsa after the capturing of the city, Sallust wrote that the Roman deed was a violation of the law of war (ius belli). Sall. Iug. 91.7−8. Further, in Cicero's writings, one can find the ius belli atque pacis or ius bellicum. Cic. de off. 3.29. 20 A fragment of the thirty-seventh book of Pomponius's commentary to the writings of Quintus Mucius Scaevola was added to the Digests, in which it was pointed out that hitting an emissary of the enemy country is a deed contrary to the ius gentium. (D. 50.7.18.1). Pomponius lived in the times of Emperor Hadrian and Antonius Pius. He was the author of treatises on civil law, including commentaries on the works of his predecessors. Adolf Berger, Encyclopedic Dictionary of Roman Law, s.v. Pomponius, Sextus, 635. Scaevola, on the other hand, lived in the times of the late Republic, in the 1st century BC. Adolf Berger, Gaius did not explain what the ius gentium was for him and his contemporaries. A sentence taken out of the context might indeed indicate that the jurist could have had in mind not only the regulations applied between individuals but also the norms in force on the international arena, applied by such entities as states or peoples 21 . Therefore, in order to understand fully the discussed passus, we should reach to other fragments of the Institutes and analyze them in accordance with the layout of the content of the textbook.
Analyzing "the law which regards persons" (ius, quod ad personas pertinet) the jurist indicated that "Slaves are in the power of their proprietors a power recognized by ius gentium" 22 . He further explained that the rights of the owners with regard to slaves are similar to all people. For instance, slave owners had the power over life and death (ius vitae necisque), which meant that the owner could kill his slave but it did not incur civil liability 23 . The law was modified under the rule of Emperor Antoninus, who, as quoted by Gaius, issued a constitution stating that "neither Roman citizens nor any other persons who are under the empire of the Roman people are permitted to indulge in excessive or causeless harshness towards their slaves" 24 . The jurist presented a modification of the ius gentium, refer-Encyclopedic Dictionary of Roman Law, s.v. Mucius, 588. A closer look at the chronology of the life of the above jurists makes it possible to claim that the concept of the ius gentium, as also covering international relations, was well-established since the times of the Republic until the Justinian era. 21 On the international arena, subjectivity was enjoyed by the entities described in the sources as civitas, which could be translated as "cities", "states", or "communes", but also as "peoples" or "population", with regard to whom the word populus was used. The above terms might include inter-city relations. ring simultaneously to one of the regulations applied on the international stage -the acknowledgment of the authority of the Roman people (imperium populi Romani). The acknowledgment of the superior role of Rome in international relations was guaranteed under the peace treaty regulations. The laws which in literature are referred to as the maiestas-Klausel appeared in international agreements in the period of the mature Republic when Rome with its conquests established its position of hegemony with regard to other nations 25 .
The selected issues with regard to the acquisition of ownership were connected by Gaius with the natural law (ius naturale) 26 or the natural criterion (naturalis ratio) 27 . Taking into account the fragment opening the first book of the Institutes, it should be assumed that Gaius understood the concepts of the ius gentium and ius naturale as certainly synonymous terms, if not entirely identical 28 . According to the jurist, this group included the specific primary methods of acquiring property 29 . However, from the perspective of international regulations, only one fragment is especially significant, the one discussing the ownership of the spoils of war: "Capture from an enemy is another title of property by natural law" 30 . The property of the enemy (res hostiles) acquired as part of war activities be- came the property of the Romans 31 . Those goods which were acquired on the territory of the enemy were sold and the income would go to the state treasury. The spoils of war acquired during an assault on a town (direptio) were left at the disposal of the soldiers 32 .
Moving beyond the dichotomy ius gentium and ius civile, Gaius remarks that "if anything should be done to violate a treaty, an action is not brought under the stipulation, but the property is claimed by the law of war" 33 . The jurist thus literally points out to the fact that the consequences resulting from the breach of the provisions of the peace treaty are drawn under the laws of war, without referring to any other legal orders. Unfortunately, the lack of any references to ius belli in the textbook makes it impossible to determine whether this law was for Gaius a part of ius gentium.

PEREGRINI DEDITICII AND THE LATINS
While discussing the division into freemen and slaves, Gaius indicated that there are three classes of freedmen, namely, Roman citizens, Latins, and dediticii 34 . The jurist referred to the freedmen as Junian Latins. The fragment in which he was describing this group did not survive until the present times, however, from the preserved text it transpires that he derived that name from the colonial Latins, who enjoyed the privilege of the ius Latii. The origins of the privilege go back to the archaic times. In the times when the Roman Kingdom was ruled by the Kings and during 31 With regard to the property acquired from the enemy Roman jurists used descriptive terms, such as ex hostibus capiuntur or res hostiles, whereas in the literary sources the term praeda bellica appeared, denoting the spoils of war. Ferdinando Bona, "Preda di guerra e occupazione privata di res hostium", Studia the period of the early Republic, Rome was connected with Latin communities by way of treaties, which gave rise to the Latin League. The latter made international agreements guaranteeing the participating parties entitlements such as the right to enter into marriage (ius conubii), the right to conduct noble activities -in the light of Roman law (ius commerci), the right to free movement (ius migrandi), which allowed the adoption of the citizenship of a different commune by simple starting to live in it 35 38 Lex Aelia Sentia was established in year 4 AD and its aim was to limit the emancipation of slaves. The law established age restrictions both for the owners and slaves. It also modified the very procedure of granting freedom to slaves. Adam Wiliński, "Zur Frage manumitted by the same, or by another proprietor" shall become free, and belong to the same class as that of enemies who have surrendered at discretion 39 . Such status was given to freedmen, who when still as slaves were punished by their owners by being tied up or by burning out a stigma on them. Slaves who during torture admitted to having committed an offense (noxa) were treated in a similar way. Similarly, the same fate awaited those who were sent to fight in combat or with wild animals, who were placed in a school for gladiators or prison and were later freed 40 . In the further part of his argumentation, Gaius points out that "Those enemies are called dediticii who, having formerly taken up arms and fought against the Roman people afterward have been conquered and have surrendered at discretion" 41 . Surrender (deditio) was known by the Romans already in the times of the Kings and the early Republic 42 . It was understood as a voluntary submission to the power of Rome or as surrender as a result of the end of military activity and losing the war 43 . Livy in his account says that this act consisted of asking questions and receiving answers in an alternating way and their content had been unaffected for centuries 44 . The procedure was aimed to establish several issues. The first one was to verify whether the legates from the other side had a sufficient mandate from their people von Latinern ex lege Aelia Sentia", Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung, 80(1963): 378-392. It was a second act, next to Lex Fufia Caninia of the year 2 AD, regulating those issues. Maria Zabłocka, "Polityka dynastii julijsko-klaudyjskiej wobec wyzwoleń i wyzwoleńców", Prawo kanoniczne 27. to conduct surrender 45 . Further, they were asked whether the surrendering peoples were sovereign. Next, the main part of the submission took place, that is, a question was asked whether the legates submit themselves, their peoples and all the property belonging to them to the authority of Rome 46 .
In the times of the Kings, the act of surrender was received by a ruler, and since the times of the Republic this role belonged to the chief commanders of the army, which is mostly consuls, in possession of the imperium 47 . The consequence of deditio was primarily the loss of sovereignty. The peoples who submitted to Rome lost their sovereignty on the international scene, becoming an entity entirely dependent on Rome. Free people, who so far had enjoyed privileges to which they were entitled by virtue of having specific citizenship, became dediticii. What is significant, their status libertatis did not change and they remained free people. However, it should be remembered that the Romans followed the rule of the subjectivity of the law, which meant that with regard to the people belonging to a specific civitas, they applied the laws of their people. Following their surrender, peregrini dediticii forfeited their right to rely on their civil rights. Therefore, the only order they were then subject to was the ius gentium 48 .
With regard to the situation of the freedmen equalled in status with peregrini dediticii, Gaius refers to them descriptively as "belonging to 45 The verification whether the legates held the appropriate mandate took place in an oral form. However, Livy pointed out that after the capturing of Heraclea, the Aetolian emissaries arrived to the Roman consul and produced written authority stating that they were authorized to carry out the surrender.  Both Livy and Polybius indicate that in the formula of surrender there are questions concerning very specific issues: borders, temples, and tombs, as the things belonging to the triad res sacrae-sanctae-religiosae, private and public property, as well as questions about freemen and slaves. Liv. 1.38.1-2; Pol. 36.2.2-4. Henryk Insadowski, Opera selecta, Lublin: Wydawnictwo KUL, 2014, 32−33. 47 As opposed to the solemn conclusion of the peace treaty (foedus) or the formal declaration of the just war (bellum iustum), the college of fetiales did not participate in the act of surrender. Alan Watson, International Law in Archaic Rome, Baltimore: John Hopkins University Press, 1993, 49−50. 48 According to Max Kaser, Das römische Privatrecht, vol. 1, Munich: CH BECK, 1955, 179−181, dediticii could resort to the protections guaranteed to them by pretor peregrinus. the category of the conquered" (dediticiorum numero sunt) 49 , adding that "the lowest degree of freedom is possessed by those who belong to the class of dediticii nor is any way afforded them of obtaining Roman citizenship either by a law, by a Decree of the Senate, or by an Imperial Constitution" 50 . He also indicates that on the grounds of lex Aelia Sentia the freedmen could lose their freedom, staying or living in Rome or within 100 miles from the town 51 . Those regulations were implemented in a statutory procedure; thus, it is assumed that the freedom of foreigners who subjected themselves to surrender was not threatened in the same way. Gaius himself emphasizes that In conclusion, it should be noted that, as it is provided by the Lex Aelia, Sentia that slaves who have been manumitted for the purpose of defrauding a patron, or creditors, do not become free; for the Senate, at the suggestion of the Divine Hadrian, decreed that this rule should also apply to foreigners, while the other provisions of the same law do not apply to them 52 .
Apart from the threat of losing freedom, the status of freedmen falling into the category of the subjugated differed in one more aspect from the status of the foreigners who were the dediticii. On the international stage, the lack of legal personality was most often a temporary state 53 . The Romans endeavored to establish a form of government and for this reason, they conducted restitution, consisting in the return to the state of previous freedom and property of the whole community 54 . Further, a peace treaty was concluded, regulating mutual relations 55 .

THE PROMISE OF PEACE
The fragment of the Institutes, which undoubtedly refers to the international law is a passus from Book Three, located in the section on stipulations 56 : Therefore, it is said that there is one instance in which an alien may be bound by this phrase, that is to say, when our Emperor interrogates the ruler of a foreign people with reference to concluding peace, as follows: "Do you solemnly agree that peace shall exist?" or where the Emperor himself is interrogated in the same manner. This, however, is said to be too subtle a refinement, for if anything should be done to violate a treaty, an action is not brought under the stipulation, but the property is claimed by the law of war 57 . Gaius indicates that peace (pax) is a factual state, guaranteed by the contracting of an agreement (pactum) 58 by the parties. It is confirmed by Ulpian: an agreement (pactum) is named so from the word "to make an agreement" (pactio), which is also a root word for "peace" (pax) 59 . The provisions of such an agreement could pertain to all areas of life, including economic, political or religious issues, but the most important part were the common guarantees of refraining from conducting war activities.
In the republican times, sponsio was, next to truce (indutiae) 60 , a temporary treaty aimed to suspend the actual military activity. It was a personal commitment of a military commander who promised that the authorities of his state would honour the negotiated agreement. In the case of the lack of approval from relevant authorities, the responsibility with regard to the second party was borne by the general who had made the promise 61  The international agreement mentioned by Gaius would be concluded on behalf of Rome by the imperator, which in the translation by Francis de Zulueta appears as the "Emperor". In the times of the Kings and of the Republic this concept was used with regard to higher magistrates and military commanders in possession of the imperium militiae 65 . Since the times of Octavian Augustus, the term imperator was used in the official imperial titular 66 . This is the meaning that appears in German or English translations 67 . Thus, if we assume that it was the Emperor who acted on behalf of Rome, the sponsio had to be of a perpetual character 68 .
Next to the similarities to the private-law stipulation contract, the form of concluding sponsio is compared to the above-mentioned republican procedure of accepting submission (deditio). Even though known from the archaic times, surrender began to be applied by the Romans on a broader scale around the 2nd century BC, that is in the times when they established their dominant position in the Mediterranean region. Due to that, they could impose their policies and strike agreements in which the other party would accept the superior position of Rome and its authority. It is visible in the very form of accepting surrender or the form of sponsio mentioned by Gaius. It was the "acquiring" party that asked the questions and the other party could merely voice confirmation or contradiction, using the specifically determined verbs (in the first person singular or plural). Therefore, the ceremony itself excluded the equivalence of the two sides 69 .
And even though the jurist emphasized that the emperor could also be "asked" about peace, it does not mean that during one ceremony both sides would make such mutual assertions. The use of the conjunction vel suggests that the jurist had in mind a different act.
At the end of his account, Gaius points out to the penalties which might be incurred should the provisions of the agreement be violated. He emphasized that there was no possibility of pursuing claims by way of legal procedure as was the case in private law agreements. The banality of this statement might be surprising, but it should be remembered that the Institutes was intended as a textbook for studying law and matters which, otherwise might seem fairly obvious, did not have to be so straightforward for the adepts of the legal science. The jurist indicates that the pursuit of one's rights is possible only on the grounds of the war laws (sed iure belli res vindicatur). In such understanding, the concept of ius belli refers to the international custom well-established in the antique world and the concept of the just war (bellum iustum) observed by the Romans 70 .
The breaking of the provisions of the peace agreement was treated as sufficient condition for the declaration of war (iusta causa belli) 71 . However, in order to pursue one's claims by way of military action, the injured party had to first seek reparation for the sustained damage. Should that course of action fail, the affected side was allowed to initiate military action 72 . Thus, war was one of the methods of seeking solution to international disputes, but the declaration of war was subject to specific conditions.

CONCLUSION
In Gaius's Institutes one can find traces of international regulations, even though they are not exactly where we might want to see them in the first place. The ius gentium is for the jurist, at least for his textbook, the law regulating the relations between various entities, but not between the subjects recognized on the international stage. He mentions them mostly in the fragments in which he wanted to emphasize the origins of specific institutions applied by the Romans, especially their antique nature and the fact that they were shared by various peoples. As if on a side note, he points out to the custom of accepting the superiority of Rome on the international arena, as well as to the problem concerning the property belonging to the enemy.
References to the Latins and foreigners having the status of the dediticii point to the reminiscences of archaic institutions, raised to describe the legal situation of the freedmen. The very peregrinin dediticii are referred to only in the fragment in which Gaius explains that those were the peoples who "once" (quondam) remained in a state of war with Rome.
The institution of international law is the sponsio, even though on the basis of the available sources it is not possible to determine its legal status. The difficulties result primarily from the fact that in the times of the principate, after the conquests of Octavian Augustus, his successors significantly limited their military ambitions and abandoned the policy of conquests 73 . This period, lasting also during Gaius's lifetime, is referred to as the Pax Romana 74 and a significant decrease in the number of ongoing wars necessarily resulted in a diminished need for resorting to the international institutions and customs.
Gaius created a textbook for studying the law sciences, containing knowledge on the subject of then contemporary regulations in private law. It is from this perspective that the content of the Institutes is reconstructed and analyzed. The above conclusions prove, therefore, that this text provides ample material for research on antique, international custom. 73 Adam Ziółkowski, Historia powszechna. Starożytność, Warsaw: PWN, 2009, 800. 74 The Pax Romana refers to the period of relative peace within the Imperium Romanum and the decrease in the number of external conflicts. This phenomenon is broadly accounted for in historical literature, See: Adrian Goldsworthy, Pax Romana: War, Peace and Conquest in the Roman World, New Haven: Yale University Press, 2016, together with the cited literature.