3. Ius Commercii and International Law
Among the first policies enacted by the republican state after the revolution of 509 BC, an important step was to establish and define commercial contacts with neighbours, both immediate (Latins and other Italic people in the region) and further afield (Etruscans, Greeks, and Carthaginians, to name only the most important ones).
Polybius records the content of a series of treaties between the Romans and Carthaginians.21 In the first treaty (c. 509-507 BC), it was agreed that trade carried on by the Romans in Sardinia, Sicily, and Africa - all Carthaginian territories at the time - should be strictly controlled and guaranteed by the state. Transactions were to be concluded through an auctioneer (kerux) and a scribe (grammateus), both of whom engaged the Carthaginian state’s good faith (pistis) towards sellers. There is no mention of reciprocity. This sounds like protection against piracy, ransom, or extortion, as the distinction between such practices and trade is sometimes blurred. The second treaty (c. 348 BC)22 explicitly forbade piracy and opened up trade in Sicily and Africa for the Romans and at Rome for the Carthaginians: traders of each nation had the same rights as the natives.23 This meant that the exchange of goods between Romans and Carthaginians had the same legal validity in either place as between fellow countrymen. A third (or fourth?)24 treaty of c. 278 BC reasserted these provisions. Subsequent treaties, while redefining areas of respective power and insize=1 face=Arial>fluence, did not question the basic trade agreement, the text of which, interestingly, was engraved on bronze tablets and preserved in the aediles’ office.25Whereas Polybius does not enter into detail on the legal aspects of arrangements for international trade, Dionysius of Halicarnassus26 reports in the context of the so-called foedus Cassianum (a treaty concluded in about 493 BC with neighbouring Latin communities) that contracts between Romans and Latins would be enforced in court within ten days, wherever they had been concluded. This provision implies that in any court of law Romans and Latins would enjoy identical legal standing, with equal protection by the law recognized and enforced by the respective courts.
This would have excluded the potential conflicts arising from competing legal systems and inaugurated a form of international (or supranational) law (ius gentium).27 In addition, plaintiffs are guaranteed a speedy trial, facilitated by the fact that discrepancies between legal systems should be irrelevant. This arrangement would be known subsequently to the Romans as commercium/ius commercii,28 namely the right to make formal contracts, to acquire property, and to resort to courts according to Roman law and procedure.29 It was, or became, part of a larger package (isopoliteia) including the right to intermarry (conubium) and to participate in civic life (suffragium). This interpretation is based on the terms of the settlement of 338 BC, by which Latins were deprived of various rights they had previously enjoyed.30 It is quite possible that commercium allowing Latins to benefit from the protection of Roman law went beyond the rights secured through the Romano-Carthaginian treaties.31 It is also likely that the scope of commercium was limited in comparison with Roman citizenship and did not come close to extending to these privileged foreigners (peregrini) a legal protection equal to that enjoyed by Roman citizens.324.
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