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Home -> Henry Sumner Maine, Sir -> Ancient Law -> CHAPTER IV

Ancient Law - CHAPTER IV






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IT will be inferred from what has been said that
the theory which transformed the Roman juris-
prudence had no claim to philosophical precision.
It involved, in fact, one of those " mixed modes
of thought " which are now acknowledged to have
characterised all but the highest minds during
the infancy of speculation, and which are far
from undiscoverable even in the mental efforts of
our own day. The Law of Nature confused the
Past and the Present. Logically, it implied a
state of Nature which had once been regulated by
natural law ; yet the jurisconsults do not speak
clearly or confidently of the existence of such a
state, which indeed is little noticed by the ancients
except where it finds a poetical expression in the
fancy of a golden age. Natural law, for all prac-
tical purposes, was something belonging to the
present, something entwined with existing insti-
tutions, something which could be distinguished
from them by a competent observer. The test
which separated the ordinances of Nature from
the gross ingredients with which they were mingled
was a sense of simplicity and harmony ; yet it was
not on account of their simplicity and harmony
that these finer elements were primarily respected,
but on the score of their descent from the aboriginal


reign of Nature. This confusion has not been
successfully explained away by the modern dis-
ciples of the jurisconsults, and in truth modern
speculations on the Law of Nature betray much
more indistinctness of perception and are vitiated
by much more hopeless ambiguity of language
than the Roman lawyers can be justly charged
with. There are some writers on the subject who
attempt to evade the fundamental difficulty by
contending that the code of Nature exists in the
future and is the goal to which all civil laws are
moving, but this is to reverse the assumptions on
which the old theory rested, or rather perhaps
to mix together two inconsistent theories. The
tendency to look not to the past but to the future
for types of perfection was brought into the world
by Christianity. Ancient literature gives few or
no hints of a belief that the progress of society is
necessarily from worse to better.

But the importance of this theory to mankind
has been very much greater than its philosophical
deficiencies would lead us to expect. Indeed, it
is not easy to say what turn the history of thought,
and therefore of the human race, would have
taken, if the belief in a law natural had not become
universal in the ancient world.

There are two special dangers to which law,
and society which is held together by law, appear
to be liable in their infancy. One of them is that
law may be too rapidly developed. This occurred
with the codes of the more progressive Greek
communities, which disembarrassed themselves
with astonishing facility from cumbrous forms of
procedure and needless terms of art, and soon


ceased to attach any superstitious value to rigid
rules and prescriptions. It was not for the ulti-
mate advantage of mankind that they did so,
though the immediate benefit conferred on their
citizens may have been considerable. One of the
rarest qualities of national character is the capacity
for applying and working out the law, as such,
at the cost of constant miscarriages of abstract
justice, without at the same time losing the hope
or the wish that law may be conformed to a higher
ideal. The Greek intellect, with all its mobility
and elasticity, was quite unable to confine itself
within the strait waistcoat of a legal formula ;
and, if we may judge them by the popular courts
of Athens, of whose working we possess accurate
knowledge, the Greek tribunals exhibited the
strongest tendency to confound law and fact.
The remains of the Orators and the forensic com-
monplaces preserved by Aristotle in his Treatise
on Rhetoric, show that questions of pure law
were constantly argued on every consideration
which could possibly influence the mind of the
judges. No durable system of jurisprudence could
be produced in this way. A community which
never hesitated to relax rules of written law
whenever they stood in the way of an ideally
perfect decision on the facts of particular cases,
would only, if it bequeathed any body of judicial
principles to posterity, bequeath one consisting
of the ideas of right and wrong which happened
to be prevalent at the time. Such a jurisprudence
would contain no framework to which the more
advanced conceptions of subsequent ages could be
fitted. It would amount at best to a philosophy,


marked with the imperfections of the civilisation
under which it grew up.

Few national societies have had their juris-
prudence menaced by this peculiar danger of
precocious maturity and untimely disintegration.
It is certainly doubtful whether the Romans
were ever seriously threatened by it, but at any
rate they had adequate protection in their theory
of Natural Law. For the Natural Law of the
jurisconsults was distinctly conceived by them as
a system which ought gradually to absorb civil
laws, without superseding them so long as they
remained unrepealed. There was no such im-
pression of its sanctity abroad, that an appeal
to it would be likely to overpower the mind of a
judge who was charged with the superintendence
of a particular litigation. The value and service-
ableness of the conception arose from its keeping
before the mental vision a type of perfect law,
and from its inspiring the hope of an indefinite
approximation to it, at the same time that it
never tempted the practitioner or the citizen
to deny the obligation of existing laws which had
not yet been adjusted to the theory. It is im-
portant too to observe that this model system,
unlike many of those which have mocked men's
hopes in later days, was not entirely the pro-
duct of imagination. It was never thought of
as founded on quite untested principles. The
notion was that it underlay existing law and
must be looked for through it. Its functions
were in short remedial, not revolutionary or
anarchical. And this, unfortunately, is the
exact point at which the modern view of a


Law of Nature has often ceased to resemble the

The other liability to which the infancy of
society is exposed has prevented or arrested the
progress of far the greater part of mankind.
The rigidity of primitive law, arising chiefly from
its early association and identification with religion,
has chained down the mass of the human race
to those views of life and conduct which they
entertained at the time when their usages were
first consolidated into a systematic form. There
were one or two races exempted by a marvellous
fate from this calamity, and grafts from these
stocks have fertilised a few modern societies ;
but it is still true that, over the larger part of the
world, the perfection of law has always been
considered as consisting in adherence to the
ground-plan supposed to have been marked out
by the original legislator. If intellect has in such
cases been exercised on jurisprudence, it has
uniformly prided itself on the subtle perversity
of the conclusions it could build on ancient
texts, without discoverable departure from their
literal tenor. I know no reason why the law
of the Romans should be superior to the laws of
the Hindoos, unless the theory of Natural Law
had given it a type of excellence different from
the usual one. In this one exceptional instance,
simplicity and symmetry were kept before the
eyes of a society whose influence on mankind
was destined to be prodigious from other causes,
as the characteristics of an ideal and absolutely
perfect law. It is impossible to overrate the
importance to a nation or profession of having a


distinct object to aim at in the pursuit of improve-
ment. The secret of Bentham's immense influence
in England during the past thirty years is his
success in placing such an object before the
country. He gave us a clear rule of reform.
English lawyers of the last century were probably
too acute to be blinded by the paradoxical com-
monplace that English law was the perfection of
human reason, but they acted as if they believed
it for want of any other principle to proceed upon.
Bentham made the good of the community take
precedence of every other object, and thus gave
escape to a current which had long been trying
to find its way outwards.

It is not an altogether fanciful comparison if
we call the assumptions we have been describing
the ancient counterpart of Benthamism. The
Roman theory guided men's efforts in the same
direction as the theory put into shape by the
Englishman ; its practical results were not widely
different from those which would have been
attained by a sect of law-reformers who main-
tained a steady pursuit of the general good of
the community. It would be a mistake, however,
to suppose it a conscious anticipation of Bentham's
principles. The happiness of mankind is, no
doubt, sometimes assigned, both in the popular
and in the legal literature of the Romans, as the
proper object of remedial legislation, but it is
very remarkable how few and faint are the
testimonies to this principle compared with the
tributes which are constantly offered to the over-
shadowing claims of the Law of Nature. It was
not to anything resembling philanthropy but to


their sense of simplicity and harmony of what
they significantly termed " elegance " that the
Roman jurisconsults freely surrendered them-
selves. The coincidence of their labours with
those which a more precise philosophy would
have counselled has been part of the good fortune
of mankind.

Turning to the modern history of the law of
nature, we find it easier to convince ourselves
of the vastness of its influence than to pronounce
confidently whether that influence has been
exerted for good or for evil. The doctrines and
institutions which may be attributed to it are
the material of some of the most violent con-
troversies debated in our time, as will be seen
when it is stated that the theory of Natural Law
is the source of almost all the special ideas as to
law, politics, and society which France during
the last hundred years has been the instrument
of diffusing over the western world. The part
played by jurists in French history, and the
sphere of jural conceptions in French thought,
have always been remarkably large. It was not
indeed in France, but in Italy, that the juridical
science of modern Europe took its rise, but of
the schools founded by emissaries of the Italian
universities in all parts of the Continent, and
attempted (though vainly) to be set up in our
island, that established in France produced the
greatest effect on the fortunes of the country.
The lawyers of France immediately formed a
strict alliance with the kings of the houses of
Capet and Valois, and it was as much through
their assertions of royal prerogative, and through


their interpretations of the rules of feudal succes-
sion, as by the power of the sword that the French
monarchy at last grew together out of the agglo-
meration of provinces and dependencies. The
enormous advantage which their understanding
with the lawyers conferred on the French kings
in the prosecution of their struggle with the great
feudatories, the aristocracy and the Church, can
only be appreciated if we take into account the
ideas which prevailed in Europe far down into
the middle ages. There was, in the first place, a
great enthusiasm for generalisation and a curious
admiration for all general propositions, and con-
sequently, in the field of law, an involuntary
reverence for every general formula which seemed
to embrace and sum up a number of the insulated
rules which were practised as usages in various
localities. Such general formulas it was, of
course, not difficult for practitioners familiar
with the Corpus Juris or the Glosses to supply
in almost any quantity. There was, however,
another cause which added yet more considerably
to the lawyers' power. At the period of which
we are speaking, there was universal vagueness of
ideas as to the degree and nature of the authority
residing in written texts of law. For the most
part the peremptory preface, Ita scriptum est,
seems to have been sufficient to silence all objec-
tions. Where a mind of our own day would
jealously scrutinise the formula which had been
quoted, would inquire its source, and would (if
necessary) deny that the body of law to which
it belonged had any authority to supersede local
customs, the elder jurist would not probably


have ventured to do more than question the
applicability of the rule, or at best cite some
counter-proposition from the Pandects or the
Canon Law. It is extremely necessary to bear
in mind the uncertainty of men's notions on
this most important side of juridical controversies,
not only because it helps to explain the weight
which the lawyers threw into the monarchical
scale, but on account of the light which it sheds
on several curious historical problems. The
motives of the author of the Forged Decretals and
his extraordinary success are rendered more in-
telligible by it. And to take a phenomenon of
smaller interest, it assists us, though only partially,
to understand the plagiarisms of Bracton. That
an English writer of the time of Henry III. should
have been able to put off on his countrymen as
a compendium of pure English law a treatise of
which the entire form and a third of the contents
were directly borrowed from the Corpus Juris,
and that he should have ventured on this experi-
ment in a country where the systematic study
of the Roman Law was formally proscribed, will
always be among the most hopeless enigmas
in the history of jurisprudence ; but still it is
something to lessen our surprise when we com-
prehend the state of opinion at the period as to
the obligatory force of written texts, apart from
all consideration of the source whence they were

When the kings of France had brought their
long struggle for supremacy to a successful close,
an epoch which may be placed roughly at the
accession of the branch of Valois-AngoulSme to


the throne, the situation of the French jurists
was peculiar, and continued to be so down to the
outbreak of the Revolution. On the one hand,
they formed the best instructed and nearly the
most powerful class in the nation. They had
made good their footing as a privileged order by
the side of the feudal aristocracy, and they had
assured their influence by an organisation which
distributed their profession over France in great
chartered corporations possessing large defined
powers and still larger indefinite claims. In all
the qualities of the advocate, the judge, and the
legislator, they far excelled their compeers through-
out Europe. Their judicial tact, their ease of
expression, their fine sense of analogy and harmony,
and (if they may be judged by the highest names
among them) their passionate devotion to their
conceptions of justice, were as remarkable as
the singular variety of talent which they included,
a variety covering the whole ground between the
opposite poles of Cujas and Montesquieu, of
D'Aguesseau and Dumoulin. But, on the other
hand, the system of laws which they had to
administer stood in striking contrast with the
habits of mind which they had cultivated. The
France which had been in great part constituted
by their efforts was smitten with the curse of an
anomalous and dissonant jurisprudence beyond
every other country in Europe. One great division
ran through the country and separated it into
Pays de Droit Ecrit and Pays de Droit Coutumicr,
the first acknowledging the written Roman law
as the basis of their jurisprudence, the last ad-
mitting it only so far as it supplied general forms


of expression, and courses of juridical reasoning,
which were reconcilable with the local usages.
The sections thus formed were again variously
subdivided. In the Pays de Droit Coutumier
province differed from province, county from
county, municipality from municipality, in the
nature of its customs. In the Pays de Droit tcrit
the stratum of feudal rules which overlay the
Roman law was of the most miscellaneous com-
position. No such confusion as this ever existed
in England. In Germany it did exist, but was
too much in harmony with the deep political
and religious divisions of the country to be
lamented or even felt. It was the special pecu-
liarity of France that an extraordinary diversity
of laws continued without sensible alteration
while the central authority of the monarchy
was constantly strengthening itself, while rapid
approaches were being made to complete adminis-
trative unity, and while a fervid national spirit
had been developed among the people. The
contrast was one which fructified in many serious
results, and among them we must rank the effect
which it produced on the minds of the French
lawyers. Their speculative opinions and their
intellectual bias were in the strongest opposition
to their interests and professional habits. With
the keenest sense and the fullest recognition of
those perfections of jurisprudence which consist
in simplicity and uniformity, they believed, or
seemed to believe, that the vices which actually
invested French law were ineradicable ; and in
practice they often resisted the reformation of
abuses with an obstinacy which was not shown


by many among their less enlightened countrymen.
But there was a way to reconcile these contra-
dictions. They became passionate enthusiasts
for Natural Law. The Law of Nature overleapt
all provincial and municipal boundaries ; it
disregarded all distinctions between noble and
burgess, between burgess and peasant ; it gave
the most exalted place to lucidity, simplicity,
and system ; but it committed its devotees to no
specific improvement, and did not directly threaten
any venerable or lucrative technicality. Natural
law may be said to have become the common
law of France, or, at all events, the admission
of its dignity and claims was the one tenet which
all French practitioners alike subscribed to. The
language of the prae-revolutionary jurists in its
eulogy is singularly unqualified, and it is remark-
able that the writers on the Customs, who often
made it their duty to speak disparagingly of the
pure Roman law, speak even more fervidly of
Nature and her rules than the civilians who pro-
fessed an exclusive respect for the Digest and the
Code. Dumoulin, the highest of all authorities
on old French Customary Law, has some extrava-
gant passages on the Law of Nature ; and his
panegyrics have a peculiar rhetorical turn which
indicates a considerable departure from the caution
of the Roman jurisconsults. The hypothesis of
a Natural Law had become not so much a theory
guiding practice as an article of speculative faith,
and accordingly we shall find that, in the trans-
formation which it more recently underwent, its
weakest parts rose to the level of its strongest
in the esteem of its supporters.


The eighteenth century was half over when
the most critical period in the history of Natural
Law was reached. Had the discussion of the
theory and of its consequences continued to be
exclusively the employment of the legal profession,
there would possibly have been an abatement
of the respect which it commanded ; for by this
time the Esprit des Lois had appeared. Bearing
in some exaggerations the marks of the excessive
violence with which its author's mind had recoiled
from assumptions usually suffered to pass without
scrutiny, yet showing in some ambiguities the
traces of a desire to compromise with existing
prejudice, the book of Montesquieu, with all
its defects, still proceeded on that Historical
Method before which the Law of Nature has never
maintained its footing for an instant. Its influence
on thought ought to have been as great as its
general popularity; but, in fact, it was never
allowed time to put it forth, for the counter-
hypothesis which it seemed destined to destroy
passed suddenly from the forum to the street,
and became the key-note of controversies far
more exciting than are ever agitated in the courts
or the schools. The person who launched it on
its new career was that remarkable man who,
without learning, with few virtues, and with no
strength of character, has nevertheless stamped
himself ineffaceably on history by the force of a
vivid imagination, and by the help of a genuine
and burning love for his fellow-men, for which
much will always have to be forgiven him. We
have never seen in our own generation indeed
the world has not seen more than once or twice


in all the course of history a literature which
has exercised such prodigious influence over the
minds of men, over every cast and shade of
intellect, as that which emanated from Rousseau
between 1749 and 1762. It was the first attempt
to re-erect the edifice of human belief after the
purely iconoclastic efforts commenced by Bayle,
and in part by our own Locke, and consummated
by Voltaire ; and besides the superiority which
every constructive effort will always enjoy over
one that is merely destructive, it possessed the
immense advantage of appearing amid an all
but universal scepticism as to the soundness of
all foregone knowledge in matters speculative.
Now, in all the speculations of Rousseau, the
central figure, whether arrayed in an English
dress as the signatary of a social compact, or
simply stripped naked of all historical qualities,
is uniformly Man, in a supposed state of nature.
Every law or institution which would misbeseem
this imaginary being under these ideal circum-
stances is to be condemned as having lapsed
from an original perfection ; every transformation
of society which would give it a closer resemblance
to the world over which the creature of Nature
reigned, is admirable and worthy to be effected
at any apparent cost. The theory is still that of
the Roman lawyers, for in the phantasmagoria
with which the Natural Condition is peopled,
every feature and characteristic eludes the mind
except the simplicity and harmony which possessed
such charms for the jurisconsult ; but the theory
is, as it were, turned upside down. It is not
the Law of Nature, but the State of Nature, which


is now the primary subject of contemplation.
The Roman had conceived that by careful obser-
vation of existing institutions parts of them could
be singled out which either exhibited already,
or could by judicious purification be made to
exhibit, the vestiges of that reign of nature whose
reality he faintly affirmed. Rousseau's belief was
that a perfect social order could be evolved from
the unassisted consideration of the natural state,
a social order wholly irrespective of the actual
condition of the world and wholly unlike it.
The great difference between the views is that
one bitterly and broadly condemns the present
for its unlikeness to the ideal past ; while the
other, assuming the present to be as necessary
as the past, does not affect to disregard or censure
it. It is not worth our while to analyse with
any particularity that philosophy of politics, art,
education, ethics, and social relations which was
constructed on the basis of a state of nature.
It still possesses singular fascination for the
looser thinkers of every country, and is no doubt
the parent, more or less remote, of almost all the
prepossessions which impede the employment of
the Historical Method of inquiry, but its discredit
with the higher minds of our day is deep enough
to astonish those who are familiar with the
extraordinary vitality of speculative error. Per-
haps the question most frequently asked nowadays
is not what is the value of these opinions, but
what were the causes which gave them such
overshadowing prominence a hundred years ago.
The answer is, I conceive, a simple one. The
study which in the last century would best have


corrected the misapprehensions into which an
exclusive attention to legal antiquities is apt to
betray was the study of religion. But Greek
religion, as then understood, was dissipated in
imaginative myths. The Oriental religions, if
noticed at all, appeared to be lost in vain cosmo-
gonies. There was but one body of primitive
records which was worth studying the early
history of the Jews. But resort to this was
prevented by the prejudices of the time. One
of the few characteristics which the school of
Rousseau had in common with the school of
Voltaire was an utter disdain of all religious
antiquities ; and, more than all, of those of the
Hebrew race. It is well known that it was a
point of honour with the reasoners of that day to
assume not merely that the institutions called
after Moses were not divinely dictated, nor even
that they were codified at a later date than that
attributed to them, but that they and the entire
Pentateuch were a gratuitous forgery, executed
after the return from the Captivity. Debarred,
therefore, from one chief security against specu-
lative delusion, the philosophers of France, in
their eagerness to escape from what they deemed
a superstition of the priests, flung themselves
headlong into a superstition of the lawyers.

But though the philosophy founded on the
hypothesis of a state of nature has fallen low in
general esteem, in so far as it is looked upon under
its coarser and more palpable aspect, it does not
follow that in its subtler disguises it has lost
plausibility, popularity, or power. I believe, as
I have said, that it is still the great antagonist


of the Historical Method ; and whenever (religious
objections apart) any mind is seen to resist or
contemn that mode of investigation, it will
generally be found under the influence of a
prejudice or vicious bias traceable to a conscious
or unconscious reliance on a non-historic, natural
condition of society or the individual. It is
chiefly, however, by allying themselves with
political and social tendencies that the doctrines
of Nature and her law have preserved their
energy. Some of these tendencies they have
stimulated, others they have actually created, to
a great number they have given expression and
form. They visibly enter largely into the ideas
which constantly radiate from France over the
civilised world, and thus become part of the
general body of thought by which its civilisation
is modified. The value of the influence which
they thus exercise over the fortunes of the race
is of course one of the points which our age debates
most warmly, and it is beside the purpose of this
treatise to discuss it. Looking back, however,
to the period at which the theory of the state
of nature acquired the maximum of political
importance, there are few who will deny that it
helped most powerfully to bring about the grosser
disappointments of which the first French Re-
volution was fertile. It gave birth, or intense
stimulus, to the vices of mental habit all but
universal at the time, disdain of positive law,
impatience of experience, and the preference of
a priori to all other reasoning. In proportion
too as this philosophy fixes its grasp on minds
which have thought less than others and fortified


themselves with smaller observation, its tendency
it to become distinctly anarchical. It is surprising
to note how many of the Sophismes Anarchiques
which Dumont published for Bentham, and which
embody Bentham's exposure of errors distinctively
French, are derived from the Roman hypothesis
in its French transformation, and are unintelligible
unless referred to it. On this point too it is a
curious exercise to consult the Moniteur during
the principal eras of the Revolution. The appeals
to the Law and State of Nature become thicker
as the times grow darker.

There is a single example which very strikingly
illustrates the effects of the theory of natural law
on modern society, and indicates how very far are
those effects from being exhausted. There cannot,
I conceive, be any question that to the assumption
of a Law Natural we owe the doctrine of the
fundamental equality of human beings. That " all
men are equal " is one of a large number of legal
propositions which in progress of time have
become political. The Roman jurisconsults of
the Antonine era lay down that " omnes homines
natura aequales sunt," but in their eyes this is a
strictly juridical axiom. They intend to affirm
that, under the hypothetical Law of Nature, and
in so far as positive law approximates to it, the
arbitrary distinctions which the Roman Civil Law
maintained between classes of persons cease to
have a legal existence. The rule was one of con-
siderable importance to the Roman practitioner,
who required to be reminded that, wherever
Roman jurisprudence was assumed to conform
itself exactly to the code of Nature, there was no



difference in the contemplation of the Roman
tribunals between citizen and foreigner, between
freeman and slave, between Agnate and Cognate.
The jurisconsults who thus expressed themselves
most certainly never intended to censure the social
arrangements under which civil law fell somewhat
short of its speculative type ; nor did they appar-
ently believe that the world would ever see human
society completely assimilated to the economy of
nature. But when the doctrine of human equality
makes its appearance in a modern dress it has
evidently clothed itself with a new shade of
meaning. Where the Roman jurisconsult had
written " sequales sunt," meaning exactly what
he said, the modern civilian wrote " all men are
equal " in the sense of " all men ought to be equal/'
The peculiar Roman idea that natural law coexisted
with civil law and gradually absorbed it, had
evidently been lost sight of, or had become
unintelligible, and the words which had at most
conveyed a theory concerning the origin, com-
position, and development of human institutions,
were beginning to express the sense of a great
standing wrong suffered by mankind. As early
as the beginning of the fourteenth century, the
current language concerning the birth-state of
men, though visibly intended to be identical with
that of Ulpian and his contemporaries, has
assumed an altogether different form and meaning.
The preamble to the celebrated ordinance of King
Louis Hutin, enfranchising the serfs of the royal
domains, would have sounded strangely to Roman
ears. " Whereas, according to natural law, every-
body ought to be born free ; and by some usages


and customs which, from long antiquity, have
been introduced and kept until now in our realm,
and peradventure by reason of the misdeeds of
their predecessors, many persons of our common
people have fallen into servitude, therefore, We/'
etc. This is the enunciation not of a legal rule but
of a political dogma ; and from this time the
equality of men is spoken of by the French lawyers
just as if it were a political truth which happened
to have been preserved among the archives of
their science. Like all other deductions from the
hypothesis of a Law Natural, and like the belief
itself in a Law of Nature, it was languidly assented
to and suffered to have little influence on opinion
and practice until it passed out of the possession
of the lawyers into that of the literary men of the
eighteenth century and of the public which sat
at their feet. With them it became the most
distinct tenet of their creed, and was even regarded
as a summary of all the others. It is probable,
however, that the power which it ultimately ac-
quired over the events of 1789 was not entirely
owing to its popularity in France, for in the middle
of the century it passed over to America. The
American lawyers of the time, and particularly
those of Virginia, appear to have possessed a stock
of knowledge which differed chiefly from that of
their English contemporaries in including much
which could only have been derived from the legal
literature of continental Europe. A very few
glances at the writings of Jefferson will show how
strongly his mind was affected by the semi-juri-
dical, semi-popular opinions which were fashionable
in France, and we cannot doubt that it was


sympathy with the peculiar ideas of the French
jurists which led him and the other colonial
lawyers who guided the course of events in America
to join the specially French assumption that " all
men are born equal " with the assumption, more
familiar to Englishmen, that all men are born
free, in the very first lines of their Declaration of
Independence. The passage was one of great
importance to the history of the doctrine before
us. The American lawyers, in thus prominently
and emphatically affirming the fundamental equal-
ity of human beings, gave an impulse to political
movements in their own country, and in a less
degree in Great Britain, which is far from having
yet spent itself ; but besides this they returned
the dogma they had adopted to its home in France,
endowed with vastly greater energy and enjoying
much greater claims on general reception and
respect. Even the more cautious politicians of
the first Constituent Assembly repeated Ulpian's
proposition as if it at once commended itself to the
instincts and intuitions of mankind ; and of all
the " principles of 1789 " it is the one which has
been least strenuously assailed, which has most
thoroughly leavened modern opinion, and which
promises to modify most deeply the constitution
of societies and the politics of states.

The greatest function of the Law of Nature was
discharged in giving birth to modern International
Law and to the modern Law of War, but this part
of its effects must here be dismissed with considera-
tion very unequal to its importance.

Among the postulates which form the founda-
tion of International Law, or of so much of it


as retains the figure which it received from its
original architects, there are two or three of pre-
eminent importance. The first of all is expressed
in the position that there is a determinable Law
of Nature. Grotius and his successors took the
assumption directly from the Romans, but they
differed widely from the Roman jurisconsults and
from each other in their ideas as to the mode of
determination. The ambition of almost every
Publicist who has flourished since the revival of
letters has been to provide new and more manage-
able definitions of Nature and of her law, and it
is indisputable that the conception in passing
through the long series of writers on Public Law
has gathered round it a large accretion, consisting
of fragments of ideas derived from nearly every
theory of ethics which has in its turn taken
possession of the schools. Yet it is a remarkable
proof of the essentially historical character of the
conception that, after all the efforts which have
been made to evolve the code of Nature from the
necessary characteristics of the natural state, so
much of the result is just what it would have been
if men had been satisfied to adopt the dicta of the
Roman lawyers without questioning or reviewing
them. Setting aside the Conventional or Treaty
Law of Nations, it is surprising how large a part
of the system is made up of pure Roman law.
Wherever there is a doctrine of the jurisconsults
affirmed by them to be in harmony with the Jus
Gentium, the Publicists have found a reason for
borrowing it, however plainly it may bear the
marks of a distinctively Roman origin. We may
observe too that the derivative theories are afflicted


with the weakness of the primary notion. In the
majority of the Publicists, the mode of thought
is still " mixed." In studying these writers, the
great difficulty is always to discover whether they
are discussing law or morality whether the state
of international relations they describe is acti^al
or ideal whether they lay down that which is,
or that which, in their opinion, ought to be.

The assumption that Natural Law is binding
on states inter se is the next in rank of those which
underlie International Law. A series of assertions
or admissions of this principle may be traced up
to the very infancy of modern juridical science,
and at first sight it seems a direct inference from
the teaching of the Romans. The civil condition
of society being distinguished from the natural
by the fact that in the first there is a distinct author
of law, while in the last there is none, it appears
as if the moment a number of units were acknow-
ledged to obey no common sovereign or political
superior they were thrown back on the ulterior
behests of the Law Natural. States are such
units ; the hypothesis of their independence
excludes the notion of a common lawgiver, and
draws with it, therefore, according to a certain
range of ideas, the notion of subjection to the
primeval order of nature. The alternative is to
consider independent communities as not related
to each other by any law, but this condition of
lawlessness is exactly the vacuum which the
Nature of the jurisconsults abhorred. There is
certainly apparent reason for thinking that if the
mind of a Roman lawyer rested on any sphere
from which civil law was banished, it would


instantly fill the void with the ordinances of
Nature. It is never safe, however, to assume that
conclusions, however certain and immediate in our
own eyes, were actually drawn at any period of
history. No passage has ever been adduced from
the remains of Roman law which, in my judgment,
proves the jurisconsults to have believed natural
law to have obligatory force between independent
commonwealths ; and we cannot but see that to
citizens of the Roman empire, who regarded their
sovereign's dominions as conterminous with civili-
sation, the equal subjection of states to the Law
of Nature, if contemplated at all, must have
seemed at most an extreme result of curious
speculation. The truth appears to be that modern
International Law, undoubted as is its descent
from Roman law, is only connected with it by an
irregular filiation. The early modern interpreters
of the jurisprudence of Rome, misconceiving the
meaning of Jus Gentium, assumed without hesita-
tion that the Romans had bequeathed to them a
system of rules for the adjustment of international
transactions. This " Law of Nations " was at first
an authority which had formidable competitors
to strive with, and the condition of Europe was
long such as to preclude its universal reception.
Gradually, however, the western world arranged
itself in a form more favourable to the theory of
the civilians ; circumstances destroyed the credit
of rival doctrines ; and at last, at a peculiarly
felicitous conjuncture, Ayala and Grotius were
able to obtain for it the enthusiastic assent of
Europe, an assent which has been over and over
again renewed in every variety of solemn engage-


ment. The great men to whom its triumph is
chiefly owing attempted, it need scarcely be said,
to place it on an entirely new basis, and it is
unquestionable that in the course of this displace-
ment they altered much of its structure, though
far less of it than is commonly supposed. Having
adopted from the Antonine jurisconsults the
position that the Jus Gentium and the Jus Naturae
were identical, Grotius, with his immediate prede-
cessors and his immediate successors, attributed
to the Law of Nature an authority which would
never perhaps have been claimed for it, if " Law
of Nations " had not in that age been an ambiguous
expression. They laid down unreservedly that
Natural Law is the code of states, and thus put in
operation a process which has continued almost
down to our own day, the process of engrafting
on the international system rules which are
supposed to have been evolved from the unassisted
contemplation of the conception of Nature. There
is, too, one consequence of immense practical
importance to mankind which, though not un-
known during the early modern history of Europe,
was never clearly or universally acknowledged till
the doctrines of the Grotian school had prevailed.
If the society of nations is governed by Natural
Law, the atoms which compose it must be abso-
lutely equal. Men under the sceptre of Nature
are all equal, and accordingly commonwealths are
equal if the international state be one of nature.
The proposition that independent communities,
however different in size and power, are all equal
in the view of the law of nations, has largely
contributed to the happiness of mankind, though


it is constantly threatened by the political ten-
dencies of each successive age. It is a doctrine
which probably would never have obtained a
secure footing at all if International Law had not
been entirely derived from the majestic claims of
Nature by the Publicists who wrote after the
revival of letters.

On the whole, however, it is astonishing, as I
have observed before, how small a proportion the
additions made to International Law since Gro-
tius's day bear to the ingredients which have been
simply taken from the most ancient stratum of
the Roman Jus Gentium. Acquisition of territory
has always been the great spur of national am-
bition, and the rules which govern this acquisition,
together with the rules which moderate the wars
in which it too frequently results, are merely
transcribed from the part of the Roman Law
which treats of the modes of acquiring property
jure gentium. These modes of acquisition were
obtained by the elder jurisconsults, as I have
attempted to explain, by abstracting a common
ingredient from the usages observed to prevail
among the various tribes surrounding Rome ; and,
having been classed on account of their origin
in the " law common to all nations/' they were
thought by the later lawyers to fit in, on the score
of their simplicity, with the more recent conception
of a Law Natural. They thus made their way
into the modern Law of Nations, and the result
is that those parts of the international system
which refer to dominion, its nature, its limitations,
the modes of acquiring and securing it, are pure
Roman Property Law so much, that is to say,


of the Roman Law of Property as the Antonine
jurisconsults imagined to exhibit a certain con-
gruity with the natural state. In order that these
chapters of International Law may be capable of
application, it is necessary that sovereigns should
be related to each other like the members of a
group of Roman proprietors. This is another of
the postulates which lie at the threshold of the
International Code, and it is also one which could
not possibly have been subscribed to during the
first centuries of modern European history. It is
resolvable into the double proposition that " sove-
reignty is territorial/' i.e., that it is always associ-
ated with the proprietorship of a limited portion
of the earth's surface, and that " sovereigns inter
se are to be deemed not paramount, but absolute,
owners of the state's territory."

Many contemporary writers on International
Law tacitly assume that the doctrines of their
system, founded on principles of equity and
common sense, were capable of being* readily
reasoned out in every stage of modern civilisation.
But this assumption, while it conceals some real
defects of the international theory, is altogether
untenable so far as regards a large part of modern
history. It is not true that the authority of the
Jus Gentium in the concerns of nations was
always uncontradicted ; on the contrary, it had
to struggle long against the claims of several
competing systems. It is again not true that the
territorial character of sovereignty was always
recognised, for long after the dissolution of the
Roman dominion the minds of men were under
the empire of ideas irreconcilable with such a


conception. An old order of things, and of views
founded on it, had to decay a new Europe, and
an apparatus of new notions congenial to it, had
to spring up before two of the chief est postulates
of International Law could be universally con-

It is a consideration well worthy to be kept in
view, that during a large part of what we usually
term modern history no such conception was
entertained as that of " territorial sovereignty''
Sovereignty was not associated with dominion
over a portion or subdivision of the earth. The
world had lain for so many centuries under the
shadow of Imperial Rome as to have forgotten that
distribution of the vast spaces comprised in the
Empire which had once parcelled them out into
a number of independent commonwealths, claiming
immunity from extrinsic interference, and pre-
tending to equality of national rights. After the
subsidence of the barbarian irruptions, the notion
of sovereignty that prevailed seems to have been
twofold. On the one hand it assumed the form
of what may be called " tfn'fo-sovereignty." The
Franks, the Burgundians, the Vandals, the Lom-
bards, and Visigoths were masters, of course, of
the territories which they occupied, and to which
some of them have given a geographical appella-
tion ; but they based no claim of right upon the
fact of territorial possession, and indeed attached
no importance to it whatever. They appear to
have retained the traditions which they brought
with them from the forest and the steppe, and to
have still been in their own view a patriarchal
society, a nomad horde, merely encamped for, the


time upon the soil which afforded them sustenance.
Part of Transalpine Gaul, with part of Germany,
had now become the country de facto occupied by
the Franks it was France ; but the Merovingian
line of chieftains, the descendants of Clovis, were
not Kings of France, they were Kings of the
Franks. Territorial titles were not unknown, but
they seem at first to have come into use only as a
convenient mode of designating the ruler of a por-
tion of the tribe's possessions ; the king of a whole
tribe was king of his people, not of his people's
lands. The alternative to this peculiar notion of
sovereignty appears to have been and this is the
important point the idea of universal dominion.
When a monarch departed from the special
relation of chief to clansmen, and became solicitous,
for purposes of his own, to invest himself with a
novel form of sovereignty, the precedent which
suggested itself for his adoption was the domina-
tion of the Emperors of Rome. To parody a
common quotation, he became " aut Ccesar aut
nullus." Either he pretended to the full pre-
rogative of the Byzantine Emperor, or he had no
political status. In our own age, when a new
dynasty is desirous of obliterating the prescriptive
title of a deposed line of sovereigns, it takes its
designation from the people, instead of the territory.
Thus we have Emperors and Kings of the French,
and a King of the Belgians. At the period of
which we have been speaking, under similar
circumstances, a different alternative presented
itself. The Chieftain who would no longer call
himself King of the tribe must claim to be Emperor
of the world. Thus, when the hereditary Mayors


of the Palace had ceased to compromise with the
monarchs they had long since virtually dethroned,
they soon became unwilling to call themselves
merely Kings of the Franks, a title which belonged
to the displaced Merovings ; but they could not
style themselves Kings of France, for such a de-
signation, though apparently not unknown, was
not a title of dignity. Accordingly they came
forward as aspirants to universal empire. Their
motive has been greatly misapprehended. It has
been taken for granted by recent French writers
that Charlemagne was far before his age, quite as
much in the character of his designs as in the
energy with which he prosecuted them. Whether
it be true or not that anybody is at any time before
his age, it is certainly true that Charlemagne, in
aiming at an unlimited dominion, was emphatically
taking the only course which the characteristic
ideas of his age permitted him to follow. Of his
intellectual eminence there cannot be a question,
but it is proved by his acts and not by his

The speculative universality of sovereignty
long continued to be associated with the Imperial
throne, and indeed was never thoroughly disso-
ciated from it so long as the empire of Germany
lasted. Territorial sovereignty the view which
connects sovereignty with the possession of a
limited portion of the earth's surface was dis-
tinctly an offshoot, though a tardy one, of feudal-
ism. This might have been expected a priori,
for it was feudalism which for the first time linked
personal duties, and by consequence personal
rights, to the ownership of land. Whatever be


the proper view of its origin and legal nature, the
best mode of vividly picturing to ourselves the
feudal organisation is to begin with the basis ;
to consider the relation of the tenant to the patch
of soil which created and limited his services and
then to mount up, through narrowing circles of
super-feudation, till we approximate to the apex
of the system. Where that summit exactly was
during the later portion of the dark ages it is not
easy to decide. Probably, wherever the concep-
tion of tribe sovereignty had really decayed, the
topmost point was always assigned to the supposed
successor of the Caesars of the West. But before
long, when the actual sphere of Imperial authority
had immensely contracted, and when the emperors
had concentrated the scanty remains of their
power upon Germany and North Italy, the highest
feudal superiors in all the outlying portions of
the former Carlovingian empire found themselves
practically without a supreme head. Gradually
they habituated themselves to the new situation,
and the fact of immunity put at last out of sight
the theory of dependence ; but there are many
symptoms that this change was not quite easily
accomplished; and, indeed, to the impression that
in the nature of things there must necessarily be
a culminating domination somewhere, we may,
no doubt, refer the increasing tendency to attribute
secular superiority to the See of Rome. The
completion of the first stage in the revolution of
opinion is marked, of course, by the accession of
the Capetian dynasty in France. Before that
epoch arrived, several of the holders of the great
territorial fiefs into which the Carlovingian empire


was now split up, had begun to call themselves
Kings, instead of Dukes or Counts ; but the
important change occurred when the feudal prince
of a limited territory surrounding Paris, usurped
from the earlier house their dynastic title of Kings
of the French. Hugues Capet and his descendants
were kings in quite a new sense, sovereigns standing
in the same relation to the soil of France as the
baron to his estate, the tenant to his freehold ;
and the old tribal appellation, though long retained
in the official Latin style of the reigning house,
passed rapidly, in the vernacular, into Kings of
France. The form of the monarchy in France
had visible effects in hastening changes which
were elsewhere proceeding in the same direction.
The kingship of our Anglo-Saxon regal houses was
midway between the chieftainship of a tribe and
a territorial supremacy ; but the superiority of
the Norman monarchs, imitated from that of the
King of France, was distinctly a territorial sove-
reignty. Every subsequent dominion which was
established or consolidated was formed on the
later model. Spain, Naples, and the principalities
founded on the ruins of municipal freedom in
Italy, were all under rulers whose sovereignty
was territorial. Few things, I may add, are
more curious than the gradual lapse of the
Venetians from one view to the other. At the
commencement of its foreign conquests, the re-
public regarded itself as an antitype of the
Roman commonwealth, governing a number of
subject provinces. Move a century onwards,
and you find that it wishes to be looked upon
as a corporate sovereign, claiming the rights of


a feudal suzerain over its possessions in Italy and
the ^Egean.

During the period through which the popular
ideas on the subject of sovereignty were undergoing
this remarkable change, the system which stood
in the place of what we now call International
Law was heterogeneous in form and inconsistent
in the principles to which it appealed. Over so
much of Europe as was comprised in the Romano-
German empire, the connection of the confederate
states was regulated by the complex and as yet
incomplete mechanism of the Imperial constitu-
tion ; and, surprising as it may seem to us, it was
a favourite notion of German lawyers that the
relations of commonwealths, whether inside or
outside the empire, ought to be regulated not by
the Jus Gentium, but by the pure Roman jurispru-
dence of which Caesar was still the centre. This
doctrine was less confidently repudiated in the
outlying countries than we might have supposed
antecedently ; but substantially, through the rest
of Europe feudal subordinations furnished a sub-
stitute for a public law ; and when those were
undetermined or ambiguous, there lay behind, in
theory at least, a supreme regulating force in the
authority of the head of the Church. It is certain,
however, that both feudal and ecclesiastical influ-
ences were rapidly decaying during the fifteenth
and even the fourteenth century ; and if we
closely examine the current pretexts of wars, and
the avowed motives of alliances, it will be seen
that, step by step with the displacement of the
old principles, the views afterwards harmonised
and consolidated by Ayala and Grotius were


making considerable progress, though it was silent
and but slow. Whether the fusion of all the
sources of authority would ultimately have evolved
a system of international relations, and whether
that system would have exhibited material differ-
ences from the fabric of Grotius, is not now possible
to decide, for as a matter of fact the Reformation
annihilated all its potential elements except one.
Beginning in Germany, it divided the princes of
the empire by a gulf too broad to be bridged over
by the Imperial supremacy, even if the Imperial
superior had stood neutral. He, however, was
forced to take colour with the Church against the
reformers ; the Pope was, as a matter of course,
in the same predicament ; and thus the two
authorities to whom belonged the office of media-
tion between combatants became themselves the
chiefs of one great faction in the schism of the
nations. Feudalism, already enfeebled and dis-
credited as a principle of public relations, furnished
no bond whatever which was stable enough to
countervail the alliances of religion. In a condi-
tion, therefore, of public law which was little less
than chaotic, those views of a state system to
which the Roman jurisconsults were supposed to
have given their sanction alone remained standing.
The shape, the symmetry, and the prominence
which they assumed in the hands of Grotius are
known to every educated man ; but the great
marvel of the treatise " De Jure Belli et Pads/'
was its rapid, complete, and universal success.
The horrors of the Thirty Years' War, the bound-
less terror and pity which the unbridled licence
of the soldiery was exciting, must, no doubt, be



taken to explain that success in some measure,
but they do not wholly account for it. Very
little penetration into the ideas of that age is
required to convince one that, if the ground-plan
of the international edifice which was sketched
in the great book of Grotius had not appeared
to be theoretically perfect, it would have been
discarded by jurists and neglected by statesmen
and soldiers.

It is obvious that the speculative perfection of
the Grotian system is intimately connected with
that conception of territorial sovereignty which we
have been discussing. The theory of International
Law assumes that commonwealths are, relatively
to each other, in a state of nature ; but the com-
ponent atoms of a natural society must, by the
fundamental assumption, be insulated and inde-
pendent of each other. If there be a higher power
connecting them, however slightly and occasion-
ally, by the claim of common supremacy, the very
conception of a common superior introduces the
notion of positive Law, and excludes the idea of
a law natural. It follows, therefore, that if the
universal suzerainty of an Imperial head had been
admitted even in bare theory, the labours of
Grotius would have been idle. Nor is this the
only point of junction between modern public law
and those views of sovereignty of which I have
endeavoured to describe the development. I
have said that there are entire departments of
international jurisprudence which consist of the
Roman Law of Property. What then is the
inference ? It is, that if there had been no such
change as I have described in the estimate of
sovereignty if sovereignty had not been asso-
ciated with the proprietorship of a limited portion
of the earth, had not, in other words, become
territorial three parts of the Grotian theory
would have been incapable of application.

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