Ancient Law
by Henry Maine
1861
 
Preface

 
    The chief object of the following pages is to indicate some
of the earliest ideas of mankind, as they are reflected in
Ancient Law, and to point out the relation of those ideas to
modern thought. Much of the inquiry attempted could not have been
prosecuted with the slightest hope of a useful result if there
had not existed a body of law, like that of the Romans, bearing
in its earliest portions the traces of the most remote antiquity
and supplying from its later rules the staple of the civil
institutions by which modern society is even now controlled. The
necessity of taking the Roman law as a typical system has
compelled the author to draw from it what may appear a
disproportionate number of his illustrations; but it has not been
his intention to write a treatise on Roman jurisprudence, and he
has as much as possible avoided all discussions which might give
that appearance to his work. The space allotted in the third and
fourth chapter to certain philosophical theories of the Roman
Jurisconsults has been appropriated to them for two reasons. In
the first place, those theories appear to the author to have had
a wider and more permanent influence on the thought and action of
the world than is usually supposed. Secondly, they are believed
to be the ultimate source of most of the views which have been
prevalent, till quite recently, on the subjects treated of in
this volume. It was impossible for the author to proceed far with
his undertaking without stating his opinion on the origin,
meaning, and value of those speculations. 

 
                H.S.M.  London, January, 1861.

 

 
Chapter 1

 
Ancient Codes

 
    The most celebrated system of jurisprudence known to the
world begins, as it ends, with a Code. From the commencement to
the close of its history, the expositors of Roman Law
consistently employed language which implied that the body of
their system rested on the Twelve Decemviral Tables, and
therefore on a basis of written law. Except in one particular, no
institutions anterior to the Twelve Tables were recognised at
Rome. The theoretical descent of Roman jurisprudence from a code,
the theoretical ascription of English law to immemorial unwritten
tradition, were the chief reasons why the development of their
system differed from the development of ours. Neither theory
corresponded exactly with the facts, but each produced
consequences of the utmost importance. 
    I need hardly say that the publication of the Twelve Tables
is not the earliest point at which we can take up the history of
law. The ancient Roman code belongs to a class of which almost
every civilised nation in the world can show a sample, and which,
so far as the Roman and Hellenic worlds were concerned, were
largely diffused over them at epochs not widely distant from one
another. They appeared under exceedingly similar circumstances,
and were produced, to our knowledge, by very similar causes.
Unquestionably, many jural phenomena lie behind these codes and
preceded them in point of time. Not a few documentary records
exist which profess to give us information concerning the early
phenomena of law; but, until philology has effected a complete
analysis of the Sanskrit literature, our best sources of
knowledge are undoubtedly the Greek Homeric poems, considered of
course not as a history of actual occurrences, but as a
description, not wholly idealised, of a state of society known to
the writer. However the fancy of the poet may have exaggerated
certain features of the heroic age, the prowess of warrior and
the potency of gods, there is no reason to believe that it has
tampered with moral or metaphysical conceptions which were not
yet the subjects of conscious observation; and in this respect
the Homeric literature is far more trustworthy than those
relatively later documents which pretend to give an account of
times similarly early, but which were compiled under
philosophical or theological influences. If by any means we can
determine the early forms of jural conceptions, they will be
invaluable to us. These rudimentary ideas are to the jurist what
the primary crusts of the earth are to the geologist. They
contain, potentially all the forms in which law has subsequently
exhibited itself. The haste or the prejudice which has generally
refused them all but the most superficial examination, must bear
the blame of the unsatisfactory condition in which we find the
science of jurisprudence. The inquiries of the jurist are in
truth prosecuted much as inquiry in physic and physiology was
prosecuted before observation had taken the place of assumption.
Theories, plausible and comprehensive, but absolutely unverified,
such as the Law of Nature or the Social Compact, enjoy a
universal preference over sober research into the primitive
history of society and law; and they obscure the truth not only
by diverting attention from the only quarter in which it can be
found, but by that most real and most important influence which,
when once entertained and believed in, they are enabled to
exercise on the later stages of jurisprudence. 
    The earliest notions connected with the conception, now so
fully developed, of a law or rule of life, are those contained in
the Homeric words "Themis" and "Themistes." "Themis," it is well
known, appears in the later Greek pantheon as the Goddess of
Justice, but this is a modern and much developed idea, and it is
in a very different sense that Themis is described in the Iliad
as the assessor of Zeus. It is now clearly seen by all
trustworthy observer of the primitive condition of mankind that,
in the infancy of the race, men could only account for sustained
or periodically recurring action by supposing a personal agent.
Thus, the wind blowing was a person and of course a divine
person; the sun rising, culminating, and setting was a person and
a divine person; the earth yielding her increase was a person and
divine. As, then, in the physical world, so in the moral. When a
king decided a dispute by a sentence, the judgment was assumed to
be the result of direct inspiration. The divine agent, suggesting
judicial awards to kings or to gods, the greatest of kings, was
Themis. The peculiarity of the conception is brought out by the
use of the plural. Themistes, Themises, the plural of Themis, are
the awards themselves, divinely dictated to the judge. Kings are
spoken of as if they had a store of "Themistes" ready to hand for
use; but it must be distinctly understood that they are not laws,
but judgments. "Zeus, or the human king on earth," says Mr.
Grote, in his History of Greece, "is not a lawmaker, but a
judge." He is provided with Themistes, but, consistently with the
belief in their emanation from above, they cannot be supposed to
be connected by any thread of principle; they are separate,
isolated judgments. 
    Even in the Homeric poems, we can see that these ideas are
transient. Parities of circumstance were probably commoner in the
simple mechanism of ancient society than they are now, and in the
succession of similar cases awards are likely to follow and
resemble each other. Here we have the germ or rudiment of a
Custom, a conception posterior to that of Themistes or judgments.
However strongly we, with our modern associations, may be
inclined to lay down a priori that the notion of a Custom must
precede that of a judicial sentence, and that a judgment must
affirm a Custom or punish its breach, it seems quite certain that
the historical order of the ideas is that in which I have placed
them. The Homeric word for a custom in the embryo is sometimes
"Themis" in the singular-more often "Dike," the meaning of which
visibly fluctuates between a "judgment" and a "custom" or
"usage." Nomos, a Law, so great and famous a term in the
political vocabulary of the later Greek society, does not occur
in Homer. 
    This notion of a divine agency, suggesting the Themistes, and
itself impersonated in Themis, must be kept apart from other
primitive beliefs with which a superficial inquirer might
confound it. The conception of the Deity dictating an entire code
or body of law, as in the case of the Hindoo laws of Menu, seems
to belong to a range of ideas more recent and more advanced.
"Themis" and "Themistes" are much less remotely linked with that
persuasion which clung so long and so tenaciously to the human
mind, of a divine influence underlying and supporting every
relation of life, every social institution. In early law, and
amid the rudiments of political thought, symptoms of this belief
meet us on all sides. A supernatural presidency is supposed to
consecrate and keep together all the cardinal institutions of
those times, the State, the Race, and the Family. Men, grouped
together in the different relations which those institutions
imply, are bound to celebrate periodically common rites and to
offer common sacrifices; and every now and then the same duty is
even more significantly recognised in the purifications and
expiations which they perform, and which appear intended to
deprecate punishment for involuntary or neglectful disrespect.
Everybody acquainted with ordinary classical literature will
remember the sacra gentilicia, which exercised so important an
influence on the early Roman law of adoption and of wills. And to
this hour the Hindoo Customary Law, in which some of the most
curious features of primitive society are stereotyped, makes
almost all the rights of persons and all the rules of succession
hinge on the due solemnisation of fixed ceremonies at the dead
man's funeral, that is, at every point where a breach occur in
the continuity of the family. 
    Before we quit this stage of jurisprudence, a caution may be
usefully given to the English student. Bentham, in his Fragment
on Government, and Austin, in his Province of Jurisprudence
Determined, resolve every law into a command of the lawgiver, an
obligation imposed thereby on the citizen, and a sanction
threatened in the event of disobedience; and it is further
predicated of the command, which is the first element in a law,
that it must prescribe, not a single act, but a series or number
of acts of the same class or kind. The results of this separation
of ingredients tally exactly with the facts of mature
jurisprudence; and, by a little straining of language, they may
be made to correspond in form with all law, of all kinds, at all
epochs. It is not, however, asserted that the notion of law
entertained by the generality is even now quite in conformity
with this dissection; and it is curious that, the farther we
penetrate into the primitive history of thought, the farther we
find ourselves from a conception of law which at all resembles a
compound of the elements which Bentham determined. It is certain
that, in the infancy of mankind, no sort of legislature, not even
a distinct author of law, is contemplated or conceived of. Law
has scarcely reached the footing of custom; it is rather a habit.
It is, to use a French phrase, "in the air." The only
authoritative statement of right and wrong is a judicial sentence
after the facts, not one presupposing a law which has been
violated, but one which is breathed for the first time by a
higher power into the judge's mind at the moment of adjudication.
It is of course extremely difficult for us to realise a view so
far removed from us in point both of time and of association, but
it will become more credible when we dwell more at length on the
constitution of ancient Society, in which every man, living
during the greater part of his life under the patriarchal
despotism, was practically controlled in all his actions by a
regimen not of law but of caprice. I may add that an Englishman
should be better able than a foreigner to appreciate the
historical fact that the "Themistes" preceded any conception of
law, because, amid the many inconsistent theories which prevail
concerning the character of English jurisprudence, the most
popular, or at all events the one which most affects practice, is
certainly a theory which assumes that adjudged cases and
precedents exist antecedently to rules, principles, and
distinctions. The "Themistes" have too, it should be remarked,
the characteristic which, in the view of Bentham and Austin,
distinguishes single or mere commands from laws. A true law
enjoins on all the citizens indifferently a number of acts
similar in class or kind; and this is exactly the feature of a
law which has most deeply impressed itself on the popular mind,
Causing the term "law" to be applied to mere uniformities,
successions, and similitudes. A command prescribes only a single
act, and it is to commands, therefore, that "Themistes" are more
akin than to laws. They are simply adjudications on insulated
states of fact, and do not necessarily follow each other in any
orderly sequence. 
    The literature of the heroic age discloses to us law in the
germ under the "Themistes" and a little more developed in the
conception of "Dike." The next stage which we reach in the
history of jurisprudence is strongly marked and surrounded by the
utmost interest. Mr. Grote, in the second part and second chapter
of his History, has fully described the mode in which society
gradually clothed itself with a different character from that
delineated by Homer. Heroic kingship depended partly on divinely
given prerogative, and partly on the possession of supereminent
strength, courage, and wisdom. Gradually, as the impression of
the monarch's sacredness became weakened, and feeble members
occurred in the series of hereditary kings, the royal power
decayed, and at last gave way to the dominion of aristocracies.
If language so precise can be used of the revolution, we might
say that the office of the king was usurped by that council of
chiefs which Homer repeatedly alludes to and depicts. At all
events from an epoch of kingly rule we come everywhere in Europe
to an era of oligarchies; and even where the name of the
monarchical functions does not absolutely disappear, the
authority of the king is reduced to a mere shadow. He becomes a
mere hereditary general; as in Lacedaemon, a mere functionary, as
the King Archon at Athens, or a mere formal hierophant, like the
Rex Sacrificulus at Rome. In Greece, Italy, and Asia Minor, the
dominant orders seem to have univerally consisted of a number of
families united by an assumed relationship in blood, and, though
they all appear at first to have laid claim to a quasi-sacred
character, their strength does not seem to have resided in their
pretended sanctity. Unless they were prematurely overthrown by
the popular party, they all ultimately approached very closely to
what we should now understand by a political aristocracy. The
changes which society underwent in the communities of the further
Asia occurred of course at periods long anterior in point of time
to these revolutions of the Italian and Hellenic worlds; but
their relative place in civilisation appear to have been the
same, and they seem to have been exceedingly similar in general
character. There is some evidence that the races which were
subsequently united under the Persian monarchy, and those which
peopled the peninsula of India, had all their heroic age and
their era of aristocracies; but a military and a religious
oligarchy appear to have grown up separately, nor was the
authority of the king generally superseded. Contrary, too, to the
course of events in the West, the religious element in the East
tended to get the better of the military and political. Military
and civil aristocracies disappear, annihilated or crushed into
insignificance between the kings and the sacerdotal order; and
the ultimate result at which we arrive is, a monarch enjoying
great power, but circumscribed by the privileges of a caste of
priests. With these differences, however, that in the East
aristocracies became religious, in the West civil or political,
the proposition that a historical era of aristocracies succeeded
a historical era of heroic kings may be considered as true, if
not of all mankind, at all events of all branches of the
Indo-European family of nations. 
    The important point for the jurist is that these
aristocracies were universally the depositaries and
administrators of law. They seem to have succeeded to the
prerogatives of the king, with the important difference, however,
that they do not appear to have pretended to direct inspiration
for each sentence. The connection of ideas which caused the
judgments of the patriarchal chieftain to be attributed to
superhuman dictation still shows itself here and there in the
claim of a divine origin for the entire body of rules, or for
certain parts of it, but the progress of thought no longer
permits the solution of particular disputes to be explained by
supposing an extra-human interposition. What the juristical
oligarchy now claims is to monopolise the knowledge of the laws,
to have the exclusive possession of the principles by which
quarrels are decided. We have in fact arrived at the epoch of
Customary Law. Customs or Observances now exist as a substantive
aggregate, and are assumed to be precisely known to the
aristocratic order or caste. Our authorities leave us no doubt
that the trust lodged with the oligarchy was sometimes abused,
but it certainly ought not to be regarded as a mere usurpation or
engine of tyranny. Before the invention of writing, and during
the infancy of the art, an aristocracy invested with judicial
privileges formed the only expedient by which accurate
preservation of the customs of the race or tribe could be at all
approximated to. Their genuineness was, so far as possible,
insured by confiding them to the recollection of a limited
portion of the community. 
    The epoch of Customary Law, and of its custody by a
privileged order, is a very remarkable one. The condition of the
jurisprudence which it implies has left traces which may still be
detected in legal and popular phraseology. The law, thus known
exclusively to a privileged minority, whether a caste, an
aristocracy, a priestly tribe, or a sacerdotal college, is true
unwritten law. Except this, there is no such thing as unwritten
law in the world. English case-law is sometimes spoken of as
unwritten, and there are some English theorists who assure us
that if a code of English jurisprudence were prepared we should
be turning unwritten law into written -- conversion, as they
insist, if not of doubtful policy, at all events of the greatest
seriousness. Now, it is quite true that there was once a period
at which the English common law might reasonably have been termed
unwritten. The elder English judges did really pretend to
knowledge of rules, principles, and distinctions which were not
entirely revealed to the bar and to the lay-public. Whether all
the law which they claimed to monopolise was really unwritten, is
exceedingly questionable; but at all events, on the assumption
that there was once a large mass of civil and criminal rules
known exclusively to the judges, it presently ceased to be
unwritten law. As soon as the Courts at Westminster Hall began to
base their judgments on cases recorded, whether in the year books
or elsewhere, the law which they administered became written law.
At the present moment a rule of English law has first to be
disentangled from the recorded facts of adjudged printed
precedents, then thrown into a form of words varying with the
taste, precision, and knowledge of the particular judge, and then
applied to the circumstances of the case for adjudication. But at
no stage of this process has it any characteristic which
distinguishes it from written law. It is written case-law, and
only different from code-law because it is written in a different
way. 
    From the period of Customary Law we come to another sharply
defined epoch in the history of jurisprudence. We arrive at the
era of Codes, those ancient codes of which the Twelve Tables of
Rome were the most famous specimen. In Greece, in Italy, on the
Hellenised sea-board of Western Asia, these codes all made their
appearance at periods much the same everywhere, not, I mean, at
periods identical in point of time, but similar in point of the
relative progress of each community. Everywhere, in the countries
I have named, laws engraven on tablets and published to the
people take the place of usages deposited with the recollection
of a privileged oligarchy. It must not for a moment be supposed
that the refined considerations now urged in favour of what is
called codification had any part or place in the change I have
described. The ancient codes were doubtless originally suggested
by the discovery and diffusion of the art of writing. It is true
that the aristocracies seem to have abused their monopoly of
legal knowledge; and at all events their exclusive possession of
the law was a formidable impediment to the success of those
popular movements which began to be universal in the western
world. But, though democratic sentiment may have added to their
popularity, the codes were certainly in the main a direct result
of the invention of writing. Inscribed tablets were seen to be a
better depositary of law, and a better security for its accurate
preservation, than the memory of a number of persons however
strengthened by habitual exercise. 
    The Roman code belongs to the class of codes I have been
describing. Their value did not consist in any approach to
symmetrical classifications, or to terseness and clearness of
expression, but in their publicity, and in the knowledge which
they furnished to everybody, as to what he was to do, and what
not to do. It is, indeed, true that the Twelve Tables of Rome do
exhibit some traces of systematic arrangement, but this is
probably explained by the tradition that the framers of that body
of law called in the assistance of Greeks who enjoyed the later
Greek experience in the art of law-making. The fragments of the
Attic Code of Solon show, however, that it had but little order,
and probably the laws of Draco had even less. Quite enough too
remains of these collections, both in the East and in the West,
to show that they mingled up religious, civil, and merely moral
ordinances, without any regard to differences in their essential
character and this is consistent with all we know of early
thought from other sources, the severance of law from morality,
and of religion from law, belonging very distinctly to the later
stages of mental progress. 
    But, whatever to a modern eye are the singularities of these
Codes, their importance to ancient societies was unspeakable. The
question -- and it was one which affected the whole future of
each community -- was not so much whether there should be a code
at all, for the majority of ancient societies seem to have
obtained them sooner or later, and, but for the great
interruption in the history of jurisprudence created by
feudalism, it is likely that all modern law would be distinctly
traceable to one or more of these fountain-heads. But the point
on which turned the history of the race was, at what period, at
what stage of their social progress, they should have their laws
put into writing. In the western world the plebeian or popular
element in each state successfully assailed the oligarchical
monopoly; and a code was nearly universally obtained early in the
history of the Commonwealth. But in the East, as I have before
mentioned, the ruling aristocracies tended to become religious
rather than military or political, and gained, therefore, rather
than lost in power; while in some instances the physical
conformation of Asiatic countries had the effect of making
individual communities larger and more numerous than in the West;
and it is a known social law that the larger the space over which
a particular set of institutions is diffused, the greater is its
tenacity and vitality. From whatever cause, the codes obtained by
Eastern societies were obtained, relatively, much later than by
Western, and wore a very different character. The religious
oligarchies of Asia, either for their own guidance, or for the
relief of their memory, or for the instruction of their
disciples, seem in all cases to have ultimately embodied their
legal learning in a code; but the opportunity of increasing and
consolidating their influence was probably too tempting to be
resisted. Their complete monopoly of legal knowledge appears to
have enabled them to put off on the world collections, not so
much of the rules actually observed as of the rules which the
priestly order considered proper to be observed. The Hindoo code,
called the Laws of Menu, which is certainly a Brahmin
compilation, undoubtedly enshrines many genuine observances of
the Hindoo race, but the opinion of the best contemporary
orientalists is, that it does not, as a whole, represent a set of
rules ever actually administered in Hindostan. It is, in great
part, an ideal picture of that which, in the view of the
Brahmins, ought to be the law. It is consistent with human nature
and with the special motives of their author, that codes like
that of Menu should pretend to the highest antiquity and claim to
have emanated in their complete form from the Deity. Menu,
according to Hindoo mythology, is an emanation from the supreme
God; but the compilation which bears his name, though its exact
date is not easily discovered, is, in point of the relative
progress of Hindoo jurisprudence, a recent production. 
    Among the chief advantages which the Twelve Tables and
similar codes conferred on the societies which obtained them, was
the protection which they afforded against the frauds of the
privileged oligarchy and also against the spontaneous depravation
and debasement of the national institutions. The Roman Code was
merely an enunciation in words of the existing customs of the
Roman people. Relatively to the progress of the Romans in
civilisation, it was a remarkably early code, and it was
published at a time when Roman society had barely emerged from
that intellectual condition in which civil obligation and
religious duty are inevitably confounded. Now a barbarous society
practising a body of customs, is exposed to some especial dangers
which may be absolutely fatal to its progress in civilisation.
The usages which a particular community is found to have adopted
in its infancy and in its primitive seats are generally those
which are on the whole best suited to promote its physical and
moral well-being; and, if they are retained in their integrity
until new social wants have taught new practices, the upward
march of society is almost certain. But unhappily there is a law
of development which ever threatens to operate upon unwritten
usage. The customs are of course obeyed by multitudes who are
incapable of understanding the true ground of their expediency,
and who are therefore left inevitably to invent superstitious
reasons for their permanence. A process then commences which may
be shortly described by saying that usage which is reasonable
generates usage which is unreasonable. Analog, the most valuable
of instruments in the maturity of jurisprudence, is the most
dangerous of snares in its infancy. Prohibitions and ordinances,
originally confined, for good reasons, to a single description of
acts, are made to apply to all acts of the same class, because a
man menaced with the anger of the gods for doing one thing, feels
a natural terror in doing any other thing which is remotely like
it. After one kind of food has interdicted for sanitary reasons,
the prohibition is extended to all food resembling it, though the
resemblance occasionally depends on analogies the most fanciful.
So, again, a wise provision for insuring general cleanliness
dictates in time long routines of ceremonial ablution; and that
division into classes which at a particular crisis of social
history is necessary for the maintenance of the national
existence degenerates into the most disastrous and blighting of
all human institutions -- Caste. The fate of the Hindoo law is,
in fact, the measure of the value of the Roman code. Ethnology
shows us that the Romans and the Hindoos sprang from the same
original stock, and there is indeed a striking resemblance
between what appear to have been their original customs. Even
now, Hindoo jurisprudence has a substratum of forethought and
sound judgment, but irrational imitation has engrafted in it an
immense apparatus of cruel absurdities. From these corruptions
the Romans were protected by their code. It was compiled while
the usage was still wholesome, and a hundred years afterwards it
might have been too late. The Hindoo law has been to a great
extent embodied in writing, but, ancient as in one sense are the
compendia which still exist in Sanskrit, they contain ample
evidence that they were drawn up after the mischief had been
done. We are not of course entitled to say that if the Twelve
Tables had not been published the Romans would have been
condemned to a civilisation as feeble and perverted as that of
the Hindoos, but thus much at least is certain, that with their
code they were exempt from the very chance of so unhappy a
destiny.


Chapter 2

 
Legal Fictions

 
    When primitive law has once been embodied in a Code, there is
an end to what may be called its spontaneous development.
Henceforward the changes effected in it, if effected at all, are
effected deliberately and from without. It is impossible to
suppose that the customs of any race or tribe remained unaltered
during the whole of the long -- in some instances the immense --
interval between their declaration by a patriarchal monarch and
their publication in writing. It would be unsafe too to affirm
that no part of the alteration was effected deliberately. But
from the little we know of the progress of law during this
period, we are justified in assuming that set purpose had the
very smallest share in producing change. Such innovations on the
earliest usages as disclose themselves appear to have been
dictated by feelings and modes of thought which, under our
present mental conditions, we are unable to comprehend. A new era
begins, however, with the Codes. Wherever, after this epoch, we
trace the course of legal modification we are able to attribute
it to the conscious desire of improvement, or at all events of
compassing objects other than those which were aimed at in the
primitive times.
    It may seem at first sight that no general propositions worth
trusting can be elicited from the history of legal systems
subsequent to the codes. The field is too vast. We cannot be sure
that we have included a sufficient number of phenomena in our
observations, or that we accurately understand those which we
have observed. But the undertaking will be seen to be more
feasible, if we consider that after the epoch of codes the
distinction between stationary and progressive societies begins
to make itself felt. It is only with the progressive that we are
concerned, and nothing is more remarkable than their extreme
fewness. In spite of overwhelming evidence, it is most difficult
for a citizen of western Europe to bring thoroughly home to
himself the truth that the civilisation which surrounds him is a
rare exception in the history of the world. The tone of thought
common among us, all our hopes, fears, and speculations, would be
materially affected, if we had vividly before us the relation of
the progressive races to the totality of human life. It is
indisputable that much the greatest part of mankind has never
shown a particle of desire that its civil institutions should be
improved since the moment when external completeness was first
given to them by their embodiment in some permanent record. One
set of usages has occasionally been violently overthrown and
superseded by another; here and there a primitive code,
pretending to a supernatural origin, has been greatly extended,
and distorted into the most surprising forms, by the perversity
of sacerdotal commentators; but, except in a small section of the
world, there has been nothing like the gradual amelioration of a
legal system. There has been material civilisation, but, instead
of the civilisation expanding the law, the law has limited the
civilisation. The study of races in their primitive condition
affords us some clue to the point at which the development of
certain societies has stopped. We can see that Brahminical India
has not passed beyond a stage which occurs in the history of all
the families of mankind, the stage at which a rule of law is not
yet discriminated from a rule of religion. The members of such a
society consider that the transgression of a religious ordinance
should be punished by civil penalties, and that the violation of
a civil duty exposes the delinquent to divine correction. In
China this point has been passed, but progress seems to have been
there arrested, because the civil laws are coextensive with all
the ideas of which the race is capable. The difference between
the stationary and progressive societies is, however, one of the
great secrets which inquiry has yet to penetrate. Among partial
explanations of it I venture to place the considerations urged at
the end of the last chapter. It may further be remarked that no
one is likely to succeed in the investigation who does not
clearly realise that the stationary condition of the human race
is the rule, the progressive the exception. And another
indispensable condition of success is an accurate knowledge of
Roman law in all its principal stages. The Roman jurisprudence
has the longest known history of any set of human institutions.
The character of all the changes which it underwent is tolerably
well ascertained. From its commencement to its close, it was
progressively modified for the better, or for what the author of
the modification conceived to be the better, and the course of
improvement was continued through periods at which all the rest
of human thought and action materially slackened its pace, and
repeatedly threatened to settle down into stagnation. 
    I confine myself in what follows to the progressive
societies. With respect to them it may be laid down that social
necessities and social opinion are always more or less in advance
of Law. We may come indefinitely near to the closing of the gap
between them, but it has a perpetual tendency to reopen. Law is
stable; the societies we are speaking of are progressive. The
greater or less happiness of a people depends on the degree of
promptitude with which the gulf is narrowed. 
    A general proposition of some value may be advanced with
respect to the agencies by which Law is brought into harmony with
society These instrumentalities seem to me to be three in number,
Legal Fictions, Equity, and Legislation. Their historical order
is that in which I have placed them. Sometimes two of them will
be seen operating together, and there are legal systems which
have escaped the influence of one or other of them. But I know of
no instance in which the order of their appearance has been
changed or inverted. The early history of one of them, Equity, is
universally obscure, and hence it may be thought by some that
certain isolated statutes, reformatory of the civil law, are
older than any equitable jurisdiction. My own belief is that
remedial Equity is everywhere older than remedial Legislation;
but, should this be not strictly true, it would only be necessary
to limit the proposition respecting their order of sequence to
the periods at which they exercise a sustained and substantial
influence in trans forming the original law. 
    I employ the word "fiction" in a sense considerably wider
than that in which English lawyer are accustomed to use it, and
with a meaning much more extensive than that which belonged to
the Roman "fictiones." Fictio, in old Roman law, is properly a
term of pleading, and signifies a false averment on the part of
the plaintiff which the defendant was not allowed to traverse;
such, for example, as an averment that the plaintiff was a Roman
citizen, when in truth he was a foreigner. The object of these
"fictiones" was, of course, to give jurisdiction, and they
therefore strongly resembled the allegations in the writs of the
English Queen's Bench, and Exchequer, by which those Courts
contrived to usurp the jurisdiction of the Common Pleas: -- the
allegation that the defendant was in custody of the king's
marshal, or that the plaintiff was the king's debtor, and could
not pay his debt by reason of the defendant's default. But I now
employ the expression "Legal Fiction" to signify any assumption
which conceals, or affects to conceal, the fact that a rule of
law has undergone alteration, its letter remaining unchanged, its
operation being modified. The words, therefore, include the
instances of fictions which I have cited from the English and
Roman law, but they embrace much more, for I should speak both of
the English Case-law and of the Roman Responsa Prudentum as
resting on fictions. Both these examples will be examined
presently. The fact is in both cases that the law has been wholly
changed; the fiction is that it remains what it always was. It is
not difficult to understand why fictions in all their forms are
particularly congenial to the infancy of society. They satisfy
the desire for improvement, which is not quite wanting, at the
same time that they do not offend the superstitious disrelish for
change which is always present. At a particular stage of social
progress they are invaluable expedients for overcoming the
rigidity of law, and, indeed, without one of them, the Fiction of
Adoption which permits the family tie to be artificially created,
it is difficult to understand how society would ever have escaped
from its swaddling clothes, and taken its first steps towards
civilisation. We must, therefore, not suffer ourselves to be
affected by the ridicule which Bentham pours on legal fictions
wherever he meets them. To revile them as merely fraudulent is to
betray ignorance of their peculiar office in the historical
development of law. But at the same time it would be equally
foolish to agree with those theorists, who, discerning that
fictions have had their uses, argue that they ought to be
stereotyped in our system. They have had their day, but it has
long since gone by. It is unworthy of us to effect an admittedly
beneficial object by so rude a device as a legal fiction. I
cannot admit any anomaly to be innocent, which makes the law
either more difficult to understand or harder to arrange in
harmonious order. Now legal fictions are the greatest of
obstacles to symmetrical classification. The rule of law remains
sticking in the system, but it is a mere shell. It has been long
ago undermined, and a new rule hides itself under its cover.
Hence there is at once a difficulty in knowing whether the rule
which is actually operative should be classed in its true or in
its apparent place, and minds of different casts will differ as
to the branch of the alternative which ought to be selected. If
the English law is ever to assume an orderly distribution, it
will be necessary to prune away the legal fictions which, in
spite of some recent legislative improvements, are still abundant
in it. 
    The next instrumentality by which the adaptation of law to
social wants is carried on I call Equity, meaning by that word
any body of rules existing by the side of the original civil law,
founded on distinct principles and claiming incidentally to
supersede the civil law in virtue of a superior sanctity inherent
in those principles. The Equity whether of the Roman Praetors or
of the English Chancellors, differs from the Fictions which in
each case preceded it, in that the interference with law is open
and avowed. On the other hand, it differs from Legislation, the
agent of legal improvement which comes after it, in that its
claim to authority is grounded, not on the prerogative of any
external person or body, not even on that of the magistrate who
enunciates it, but on the special nature of its principles, to
which it is alleged that all law ought to conform. The very
conception of a set of principles, invested with a higher
sacredness than those of the original law and demanding
application independently of the consent of any external body
belongs to a much more advanced stage of thought than that to
which legal fictions originally suggested themselves. 
    Legislation, the enactments of a legislature which, whether
it take the form of an autocratic prince or of a parliamentary
assembly, is the assumed organ of the entire society, is the last
of the ameliorating instrumentalities. It differs from Legal
Fictions just as Equity differs from them, and it is also
distinguished from Equity, as deriving its authority from an
external body or person. Its obligatory force is independent of
its principles. The legislature, whatever be the actual
restraints imposed on it by public opinion, is in theory
empowered to impose what obligations it pleases on the members of
the community. There is nothing to prevent its legislating in the
wantonness of caprice. Legislation may be dictated by equity, if
that last word be used to indicate some standard of right and
wrong to which its enactments happen to be adjusted; but then
these enactments are indebted for their binding force to the
authority of the legislature and not to that of the principles on
which the legislature acted; and thus they differ from rules of
Equity, in the technical sense of the word, which pretend to a
paramount sacredness entitling them at once to the recognition of
the courts even without the concurrence of prince or
parliamentary assembly. It is the more necessary to note these
differences, because a student of Bentham would be apt to
confound Fictions, Equity, and Statute law under the single head
of legislation. They all, he would say, involve law-making; they
differ only in respect of the machinery by which the new law is
produced. That is perfectly true, and we must never forget it;
but it furnishes no reason why we should deprive ourselves of so
convenient a term as Legislation in the special sense.
Legislation and Equity are disjoined in the popular mind and in
the minds of most lawyers; and it will never do to neglect the
distinction between them, however conventional, when important
practical consequences follow from it. 
    It would be easy to select from almost any regularly
developed body of rules examples of legal fictions, which at once
betray their true character to the modern observer. In the two
instances which I proceed to consider, the nature of the
expedient employed is not so readily detected. The first authors
of these fictions did not perhaps intend to innovate, certainly
did not wish to be suspected of innovating. There are, moreover,
and always have been, persons who refuse to see any fiction in
the process, and conventional language bear out their refusal. No
examples, therefore, can be better calculated to illustrate the
wide diffusion of legal fictions, and the efficiency with which
they perform their two-fold office of transforming a system of
laws and of concealing the transformation. 
    We in England are well accustomed to the extension,
modification, and improvement of law by a machinery which, in
theory, is incapable of altering one jot or one line of existing
jurisprudence. The process by which this virtual legislation is
effected is not so much insensible as unacknowledged. With
respect to that great portion of our legal system which is
enshrined in cases and recorded in law reports, we habitually
employ a double language and entertain, as it would appear, a
double and inconsistent set of ideas. When a group of facts come
before an English Court for adjudication, the whole course of the
discussion between the judge and the advocate assumes that no
question is, or can be, raised which will call for the
application of any principles but old ones, or any distinctions
but such as have long since been allowed. It is taken absolutely
for granted that there is somewhere a rule of known law which
will cover the facts of the dispute now litigated, and that, if
such a rule be not discovered, it is only that the necessary
patience, knowledge, or acumen is not forthcoming to detect it.
Yet the moment the judgment has been rendered and reported, we
slide unconsciously or unavowedly into a new language and a new
train of thought. We now admit that the new decision has modified
the law. The rules applicable have, to use the very inaccurate
expression sometimes employed, become more elastic. In fact they
have been changed. A clear addition has been made to the
precedents, and the canon of law elicited by comparing the
precedents is not the same with that which would have been
obtained if the series of cases had been curtailed by a single
example. The fact that the old rule has been repealed, and that a
new one has replaced it, eludes us, because we are not in the
habit of throwing into precise language the legal formulas which
we derive from the precedents, so that a change in their tenor is
not easily detected unless it is violent and glaring. I shall not
now pause to consider at length the causes which have led English
lawyers to acquiesce in these curious anomalies. Probably it will
be found that originally it was the received doctrine that
somewhere, in nubibus or in gremio magistratuum, there existed a
complete, coherent, symmetrical body of English law, of an
amplitude sufficient to furnish principles which would apply to
any conceivable combination of circumstances. The theory was at
first much more thoroughly believed in than it is now, and indeed
it may have had a better foundation. The judges of the thirteenth
century may have really had at their command a mine of law
unrevealed to the bar and to the lay-public, for there is some
reason for suspecting that in secret they borrowed freely, though
not always wisely, from current compendia of the Roman and Canon
laws. But that storehouse was closed so soon as the points
decided at Westminster Hall became numerous enough to supply a
basis for a substantive system of jurisprudence; and now for
centuries English practitioner have so expressed themselves as to
convey the paradoxical proposition that, except by Equity and
Statute law, nothing has been added to the basis since it was
first constituted. We do not admit that our tribunals legislate;
we imply that they have never legislated; and yet we maintain
that the rules of the English common law, with some assistance
from the Court of Chancery and from Parliament, are coextensive
with the complicated interests of modern society. 
    A body of law bearing a very close and very instructive
resemblance to our case-law in those particulars which I have
noticed, was known to the Romans under the name of the Responsa
Prudentum, the "answers of the learned in the law." The form of
these Responses varied a good deal at different periods of the
Roman jurisprudence, but throughout its whole course they
consisted of explanatory glosses on authoritative written
documents, and at first they were exclusively collections of
opinions interpretative of the Twelve Tables. As with us, all
legal language adjusted itself to the assumption that the text of
the old Code remained unchanged. There was the express rule. It
overrode all glosses and comments, and no one openly admitted
that any interpretation of it, however eminent the interpreter,
was safe from revision on appeal to the venerable texts. Yet in
point of fact, Books of Responses bearing the names of leading
jurisconsults obtained an authority at least equal to that of our
reported cases, and constantly modified, extended, limited or
practically overruled the provisions of the Decemviral law. The
authors of the new jurisprudence during the whole progress of its
formation professed the most sedulous respect for the letter of
the Code. They were merely explaining it, deciphering it,
bringing out its full meaning; but then, in the result, by
piecing texts together, by adjusting the law to states of fact
which actually presented themselves and by speculating on its
possible application to others which might occur, by introducing
principles of interpretation derived from the exegesis of other
written documents which fell under their observation, they educed
a vast variety of canons which had never been dreamed of by the
compilers of the Twelve Tables and which were in truth rarely or
never to be found there. All these treatises of the jurisconsults
claimed respect on the ground of their assumed conformity with
the Code, but their comparative authority depended on the
reputation of the particular jurisconsults who gave them to the
world. Any name of universally acknowledged greatness clothed a
Book of responses with a binding force hardly less than that
which belonged to enactments of the legislature; and such a book
in its turn constituted a new foundation on which a further body
of jurisprudence might rest. The responses of the early lawyers
were not however published, in the modern sense, by their author.
They were recorded and edited by his pupils, and were not
therefore in all probability arranged according to any scheme of
classification. The part of the students in these publications
must be carefully noted, because the service they rendered to
their teacher seems to have been generally repaid by his sedulous
attention to the pupils' education. The educational treatises
called Institutes or Commentaries, which are a later fruit of the
duty then recognised, are among the most remarkable features of
the Roman system. It was apparently in these Institutional works,
and not in the books intended for trained lawyers, that the
jurisconsults gave to the public their classifications and their
proposals for modifying and improving the technical phraseology.
    In comparing the Roman Responsa Prudentum with their nearest
English counterpart, it must be carefully borne in mind that the
authority by which this part of the Roman jurisprudence was
expounded was not the bench, but the bar. The decision of a Roman
tribunal, though conclusive in the particular case, had no
ulterior authority except such as was given by the professional
repute of the magistrate who happened to be in office for the
time. Properly speaking, there was no institution at Rome during
the republic analogous to the English Bench, the Chambers of
imperial Germany, or the Parliaments of Monarchical France. There
were magistrates indeed, invested with momentous judicial
functions in their several departments, but the tenure of the
magistracies was but for a single year, so that they are much
less aptly compared to a permanent judicature than to a cycle of
offices briskly circulating among the leaders of the bar. Much
might be said on the origin of a condition of things which looks
to us like a startling anomaly, but which was in fact much more
congenial than our own system to the spirit of ancient societies,
tending, as they always did, to split into distinct orders which,
however exclusive themselves, tolerated no professional hierarchy
above them. 
    It is remarkable that this system did not produce certain
effects which might on the whole have been expected from it. It
did not, for example, popularise the Roman law -- it did not, as
in some of the Greek republics, lessen the effort of intellect
required for the mastery of the science, although its diffusion
and authoritative exposition were opposed by no artificial
barriers. On the contrary, if it had not been for the operation
of a separate set of causes, there were strong probabilities that
the Roman jurisprudence would have become as minute, technical,
and difficult as any system which has since prevailed. Again, a
consequence which might still more naturally have been looked
for, does not appear at any time to have exhibited itself. The
jurisconsults, until the liberties of Rome were overthrown,
formed a class which was quite undefined and must have fluctuated
greatly in numbers; nevertheless, there does not seem to have
existed a doubt as to the particular individuals whose opinion,
in their generation, was conclusive on the cases submitted to
them. The vivid pictures of a leading jurisconsult's daily
practice which abound in Latin literature -- the clients from the
country flocking to his antechamber in the early morning, and the
students standing round with their note-books to record the great
lawyer's replies -- are seldom or never identified at any given
period with more than one or two conspicuous names. Owing too to
the direct contact of the client and the advocate, the Roman
people itself seems to have been always alive to the rise and
fall of professional reputation, and there is abundance of proof,
more particularly in the well-known oration of Cicero, Pro
Muraena, that the reverence of the commons for forensic success
was apt to be excessive rather than deficient.
    We cannot doubt that the peculiarities which have been noted
in the instrumentality by which the development of the Roman law
was first effected, were the source of its characteristic
excellence, its early wealth in principles. The growth and
exuberance of principle was fostered, in part, by the competition
among the expositors of the law, an influence wholly unknown
where there exists a Bench, the depositaries intrusted by king or
commonwealth with the prerogative of justice. But the chief
agency, no doubt, was the uncontrolled multiplication of cases
for legal decision. The state of facts which caused genuine
perplexity to a country client was not a whit more entitled to
form the basis of the jurisconsult's Response, or legal decision,
than a set of hypothetical circumstances propounded by an
ingenious pupil. All combinations of fact were on precisely the
same footing, whether they were real or imaginary. It was nothing
to the jurisconsult that his opinion was overruled for the moment
by the magistrate who adjudicated on his client's case, unless
that magistrate happened to rank above him in legal knowledge or
the esteem of his profession. I do not, indeed, mean it to be
inferred that he would wholly omit to consider his client's
advantage, for the client was in earlier times the great lawyer's
constituent and at a later period his paymaster, but the main
road to the rewards of ambition lay through the good opinion of
his order, and it is obvious that under such a system as I have
been describing this was much more likely to be secured by
viewing each case as an illustration of a great principle, or an
exemplification of a broad rule, than by merely shaping it for an
insulated forensic triumph. A still more powerful influence must
have been exercised by the want of any distinct check on the
suggestion or invention of possible questions. Where the data can
be multiplied at pleasure, the facilities for evolving a general
rule are immensely increased. As the law is administered among
ourselves, the judge cannot travel out of the sets of facts
exhibited before him or before his predecessors. Accordingly each
group of circumstances which is adjudicated upon receives, to
employ a Gallicism, a sort of consecration. It acquires certain
qualities which distinguish it from every other case genuine or
hypothetical. But at Rome, as I have attempted to explain, there
was nothing resembling a Bench or Chamber of judges; and
therefore no combination of facts possessed any particular value
more than another. When a difficulty came for opinion before the
jurisconsult, there was nothing to prevent a person endowed with
a nice perception of analogy from at once proceeding to adduce
and consider an entire class of supposed questions with which a
particular feature connected it. Whatever were the practical
advice given to the client, the responsum treasured up in the
notebooks of listening pupils would doubtless contemplate the
circumstances as governed by a great principle, or included in a
sweeping rule. Nothing like this has ever been possible among
ourselves, and it should be acknowledged that in many criticisms
passed on the English law the manner in which it has been
enunciated seems to have been lost sight of. The hesitation of
our courts in declaring principles may be much more reasonably
attributed to the comparative scantiness of our precedents,
voluminous as they appear to him who is acquainted with no other
system, than to the temper of our judges. It is true that in the
wealth of legal principle we are considerably poorer than several
modern European nations. But they, it must be remembered, took
the Roman jurisprudence for the foundation of their civil
institutions. They built the debris of the Roman law into their
walls; but in the materials and workmanship of the residue there
is not much which distinguishes it favourably from the structure
erected by the English judicature. 
    The period of Roman freedom was the period during which the
stamp of a distinctive character was impressed on the Roman
jurisprudence; and through all the earlier part of it, it was by
the Responses of the jurisconsults that the development of the
law was mainly carried on. But as we approach the fall of the
republic there are signs that the Responses are assuming a form
which must have been fatal to their farther expansion. They are
becoming systematised and reduced into compendia. Q. Mucius
Scaevola, the Pontifex, is said to have published a manual of the
entire Civil Law, and there are traces in the writings of Cicero
of growing disrelish for the old methods, as compared with the
more active instruments of legal innovation. Other agencies had
in fact by this time been brought to bear on the law. The Edict,
or annual proclamation of the Praetor, had risen into credit as
the principal engine of law reform, and L. Cornelius Sylla, by
causing to be enacted the great group of statutes called the
Leges Corneliae, had shown what rapid and speedy improvements can
be effected by direct legislation. The final blow to the
Responses was dealt by Augustus, who limited to a few leading
jurisconsults the right of giving binding opinions on cases
submitted to them, a change which, though it brings us nearer the
ideas of the modern world, must obviously have altered
fundamentally the characteristics of the legal profession and the
nature of its influence on Roman law. At a later period another
school of jurisconsults arose, the great lights of jurisprudence
for all time. But Ulpian and Paulus, Gaius and Papinian, were not
authors of Responses. Their works were regular treatises on
particular departments of the law, more especially on the
Praetor's Edict. 
    The Equity of the Romans and the Praetorian Edict by which it
was worked into their system, will be considered in the next
chapter. Of the Statute Law it is only necessary to say that it
was scanty during the republic, but became very voluminous under
the empire. In the youth and infancy of a nation it is a rare
thing for the legislature to be called into action for the
general reform of private law. The cry of the people is not for
change in the laws, which are usually valued above their real
worth, but solely for their pure, complete, and easy
administration; and recourse to the legislative body is generally
directed to the removal of some great abuse, or the decision of
some incurable quarrel between classes and dynasties. There seems
in the minds of the Romans to have been some association between
the enactment of a large body of statutes and the settlement of
society after a great civil commotion. Sylla signalised his
reconstitution of the republic by the Leges Corneliae; Julius
Caesar contemplated vast additions to the Statute Law. Augustus
caused to be passed the all-important group of Leges Juliae; and
among later emperors the most active promulgators of
constitutions are princes who, like Constantine, have the
concerns of the world to readjust. The true period of Roman
Statute Law does not begin till the establishment of the empire.
The enactments of the emperors, clothed at first in the pretence
of popular sanction, but afterwards emanating undisguisedly from
the imperial prerogative, extend in increasing massiveness from
the consolidation of Augustus's power to the publication of the
Code of Justinian. It will be seen that even in the reign of the
second emperor a considerable approximation is made to that
condition of the law and that mode of administering it with which
we are all familiar. A statute law and a limited board of
expositors have risen into being; a permanent court of appeal and
a collection of approved commentaries will very shortly be added;
and thus we are brought close on the ideas of our own day. 

 
Chapter 3

 
Law of Nature and Equity

 
    The theory of a set of legal principles, entitled by their
intrinsic superiority to supersede the older law, very early
obtained currency both in the Roman state and in England. Such a
body of principles, existing in any system, has in the foregoing
chapters been denominated Equity, a term which, as will presently
be seen, was one (though only one) of the designations by which
this agent of legal change was known to the Roman jurisconsults.
The jurisprudence of the Court of Chancery, which bears the name
of Equity in England, could only be adequately discussed in a
separate treatise. It is extremely complex in its texture and
derives its materials from several heterogeneous sources. The
early ecclesiastical chancellors contributed to it, from the
Canon Law, many of the principles which lie deepest in its
structure. The Roman law, more fertile than the Canon Law in
rules applicable to secular disputes, was not seldom resorted to
by a later generation of Chancery judges, amid whose recorded
dicta we often find entire texts from the Corpus Juris Civilis
imbedded, with their terms unaltered, though their origin is
never acknowledged. Still more recently, and particularly at the
middle and during the latter half of the eighteenth century, the
mixed systems of jurisprudence and morals constructed by the
publicists of the Low Countries appear to have been much studied
by English lawyers, and from the chancellorship of Lord Talbot to
the commencement of Lord Eldon's chancellorship these works had
considerable effect on the rulings of the Court of Chancery. The
system, which obtained its ingredients from these various
quarters, was greatly controlled in its growth by the necessity
imposed on it of conforming itself to the analogies of the common
law, but it has always answered the description of a body of
comparatively novel legal principles claiming to override the
older jurisprudence of the country on the strength of an
intrinsic ethical superiority. 
    The Equity of Rome was a much simpler structure, and its
development from its first appearance can be much more easily
traced. Both its character and its history deserve attentive
examination. It is the root of several conceptions which have
exercised profound influence on human thought, and through human
thought have seriously affected the destinies of mankind. 
    The Romans described their legal system as consisting of two
ingredients. "All nations," says the Institutional Treatise
published under the authority of the Emperor Justinian, "who are
ruled by laws and customs, are governed partly by their own
particular laws, and partly by those laws which are common to all
mankind. The law which a people enacts is called the Civil Law of
that people, but that which natural reason appoints for all
mankind is called the Law of Nations, because all nations use
it." The part of the law "which natural reason appoints for all
mankind" was the element which the Edict of the Praetor was
supposed to have worked into Roman jurisprudence. Elsewhere it is
styled more simply Jus Naturale, or the Law of Nature; and its
ordinances are said to be dictated by Natural Equity (naturalis
aequitas) as well as by natural reason. I shall attempt to
discover the origin of these famous phrases, Law of Nations, Law
of Nature, Equity, and to determine how the conceptions which
they indicate are related to one another. 
    The most superficial student of Roman history must be struck
by the extraordinary degree in which the fortunes of the republic
were affected by the presence of foreigners, under different
names, on her soil. The causes of this immigration are
discernible enough at a later period, for we can readily
understand why men of all races should flock to the mistress of
the world; but the same phenomenon of a large population of
foreigners and denizens meets us in the very earliest records of
the Roman State. No doubt, the instability of society in ancient
Italy, composed as it was in great measure of robber tribes, gave
men considerable inducement to locate themselves in the territory
of any community strong enough to protect itself and them from
external attack, even though protection should be purchased at
the cost of heavy taxation, political disfranchisement, and much
social humiliation. It is probable, however, that this
explanation is imperfect, and that it could only be completed by
taking into account those active commercial relations which,
though they are little reflected in the military traditions of
the republic, Rome appears certainly to have had with Carthage
and with the interior of Italy in pre-historic times. Whatever
were the circumstances to which it was attributable, the foreign
element in the commonwealth determined the whole course of its
history, which, at all its stages, is little more than a
narrative of conflicts between a stubborn nationality and an
alien population. Nothing like this has been seen in modern
times; on the one hand, because modern European communities have
seldom or never received any accession of foreign immigrants
which was large enough to make itself felt by the bulk of the
native citizens, and on the other, because modern states, being
held together by allegiance to a king or political superior,
absorb considerable bodies of immigrant settlers with a quickness
unknown to the ancient world, where the original citizens of a
commonwealth always believed themselves to be united by kinship
in blood, and resented a claim to equality of privilege as a
usurpation of their birthright. In the early Roman republic the
principle of the absolute exclusion of foreigners pervaded the
Civil Law no less than the Constitution. The alien or denizen
could have no share in any institution supposed to be coeval with
the State. He could not have the benefit of Quiritarian law. He
could not be a party to the nexum which was at once the
conveyance and the contract of the primitive Romans. He could not
sue by the Sacramental Action, a mode of litigation of which the
origin mounts up to the very infancy of civilisation. Still,
neither the interest nor the security of Rome permitted him to be
quite outlawed. All ancient communities ran the risk of being
overthrown by a very slight disturbance of equilibrium, and the
mere instinct of self-preservation would force the Romans to
devise some method of adjusting the rights and duties of
foreigners, who might otherwise-and this was a danger of real
importance in the ancient world -- have decided their
controversies by armed strife. Moreover, at no period of Roman
history was foreign trade entirely neglected. It was therefore
probably half as a measure of police and half in furtherance of
commerce that jurisdiction was first assumed in disputes to which
the parties were either foreigners or a native and a foreigner.
The assumption of such a jurisdiction brought with it the
immediate necessity of discovering some principles on which the
questions to be adjudicated upon could be settled, and the
principles applied to this object by the Roman lawyers were
eminently characteristic of the time. They refused, as I have
said before, to decide the new Cases by pure Roman Civil Law.
They refused, no doubt because it seemed to involve some kind of
degradation, to apply the law of the particular State from which
the foreign litigant came. The expedient to which they resorted
was that of selecting the rules of law common to Rome and to the
different Italian communities in which the immigrants were born.
In other words, they set themselves to form a system answering to
the primitive and literal meaning of Jus Gentium, that is, Law
common to all Nations. Jus Gentium was, in fact, the sum of the
common ingredients in the customs of the old Italian tribes, for
they were all the nations whom the Romans had the means of
observing, and who sent successive swarms of immigrants to Roman
soil. Whenever a particular usage was seen to be practised by a
large number of separate races in common it was set down as part
of the Law common to all Nations, or Jus Gentium. Thus, although
the conveyance of property was certainly accompanied by very
different forms in the different commonwealths surrounding Rome,
the actual transfer, tradition, or delivery of the article
intended to be conveyed was a part of the ceremonial in all of
them. It was, for instance, a part, though a subordinate part, in
the Mancipation or conveyance peculiar to Rome. Tradition,
therefore, being in all probability the only common ingredient in
the modes of conveyance which the jurisconsults had the means of
observing, was set down as an institution Juris Gentium, or rule
of the Law common to all Nations. A vast number of other
observances were scrutinised with the same result. Some common
characteristic was discovered in all of them, which had a common
object, and this characteristic was classed in the Jus Gentium.
The Jus Gentium was accordingly a collection of rules and
principles, determined by observation to be common to the
institutions which prevailed among the various Italian tribes. 
    The circumstances of the origin of the Jus Gentium are
probably a sufficient safeguard against the mistake of supposing
that the Roman lawyers had any special respect for it. It was the
fruit in part of their disdain for all foreign law, and in part
of their disinclination to give the foreigner the advantage of
their own indigenous Jus Civile. It is true that we, at the
present day, should probably take a very different view of the
Jus Gentium, if we were performing the operation which was
effected by the Roman jurisconsults. We should attach some vague
superiority or precedence to the element which we had thus
discerned underlying and pervading so great a variety of usage.
We should have a sort of respect for rules and principles so
universal. Perhaps we should speak of the common ingredient as
being of the essence of the transaction into which it entered,
and should stigmatise the remaining apparatus of ceremony, which
varied in different communities, as adventitious and accidental.
Or it may be, we should infer that the races which we were
comparing had once obeyed a great system of common institutions
of which the Jus Gentium was the reproduction, and that the
complicated usages of separate commonwealths were only
corruptions and depravations of the simpler ordinances which had
once regulated their primitive state. But the results to which
modern ideas conduct the observer are, as nearly as possible, the
reverse of those which were instinctively brought home to the
primitive Roman. What we respect or admire, he disliked or
regarded with jealous dread. The parts of jurisprudence which he
looked upon with affection were exactly those which a modern
theorist leaves out of consideration as accidental and
transitory. The solemn gestures of the mancipation; the nicely
adjusted questions and answers of the verbal contract; the
endless formalities of pleading and procedure. The Jus Gentium
was merely a system forced on his attention by a political
necessity. He loved it as little as he loved the foreigners from
whose institutions it was derived and for whose benefit it was
intended. A complete revolution in his ideas was required before
it could challenge his respect, but so complete was it when it
did occur, that the true reason why our modern estimate of the
Jus Gentium differs from that which has just been described, is
that both modern jurisprudence and modern philosophy have
inherited the matured views of the later jurisconsults on this
subject. There did come a time, when from an ignoble appendage of
the Jus Civile, the Jus Gentium came to be considered a great
though as yet imperfectly developed model to which all law ought
as far as possible to conform. This crisis arrived when the Greek
theory of a Law of Nature was applied to the practical Roman
administration of the Law common to all Nations. 
    The Jus Naturale, or Law of Nature, is simply the Jus Gentium
or Law of Nations seen in the light of a peculiar theory. An
unfortunate attempt to discriminate them was made by the
jurisconsult Ulpian, with the propensity to distinguish
characteristic of a lawyer, but the language of Gaius, a much
higher authority, and the passage quoted before from the
Institutes leave no room for doubt, that the expressions were
practically convertible. The difference between them was entirely
historical, and no distinction in essence could ever be
established between them. It is almost unnecessary to add that
the confusion between Jus Gentium, or Law common to all Nations,
and international law is entirely modern. The classical
expression for international law is Jus Feciale or the law of
negotiation and diplomacy. It is, however, unquestionable that
indistinct impressions as to the meaning of Jus Gentium had
considerable share in producing the modern theory that the
relations of independent states are governed by the Law of
Nature. 
    It becomes necessary to investigate the Greek conceptions of
nature and her law. The word *@@@@, which was rendered in the
Latin natura and our nature, denoted beyond all doubt originally
the material universe, but it was the material universe
contemplated under an aspect which -- such is our intellectual
distance from those times -- it is not very easy to delineate in
modern language. Nature signified the physical world regarded as
the result of some primordial element or law. The oldest Greek
philosophers had been accustomed to explain the fabric of
creation as the manifestation of some single principle which they
variously asserted to be movement, force, fire, moisture, or
generation. In its simplest and most ancient sense, Nature is
precisely the physical universe looked upon in this way as the
manifestation of a principle. Afterwards, the later Greek sects,
returning to a path from which the greatest intellects of Greece
had meanwhile strayed, added the moral to the physical world in
the conception of Nature. They extended the term till it embraced
not merely the visible creation, but the thoughts, observances,
and aspirations of mankind. Still, as before, it was not solely
the moral phenomena of human society which they understood by
Nature, but these phenomena considered as resolvable into some
general and simple laws. 
    Now, just as the oldest Greek theorists supposed that the
sports of chance had changed the material universe from its
simple primitive form into its present heterogeneous condition,
so their intellectual descendants imagined that but for untoward
accident the human race would have conformed itself to simpler
rules of conduct and a less tempestuous life. To live according
to nature came to be considered as the end for which man was
created, and which the best men were bound to compass. To live
according to nature was to rise above the disorderly habits and
gross indulgences of the vulgar to higher laws of action which
nothing but self-denial and self-command would enable the
aspirant to observe. It is notorious that this proposition --
live according to nature -- was the sum of the tenets of the
famous Stoic philosophy. Now on the subjugation of Greece that
philosophy made instantaneous progress in Roman society. It
possessed natural fascinations for the powerful class who, in
theory at least, adhered to the simple habits of the ancient
Italian race, and disdained to surrender themselves to the
innovations of foreign fashions. Such persons began immediately
to affect the Stoic precepts of life according to nature -- an
affectation all the more grateful, and, I may add, all the more
noble, from its contrast with the unbounded profligacy which was
being diffused through the imperial city by the pillage of the
world and by the example of its most luxurious races. In the
front of the disciples of the new Greek school, we might be sure,
even if we did not know it historically, that the Roman lawyers
figured. We have abundant proof that, there being substantially
but two professions in the Roman republic, the military men were
generally identified with the party of movement, but the lawyers
were universally at the head of the party of resistance. 
    The alliance of the lawyers with the Stoic philosophers
lasted through many centuries. Some of the earliest names in the
series of renowned jurisconsults are associated with Stoicism,
and ultimately we have the golden age of Roman jurisprudence
fixed by general consent at the era of the Antonine Caesars, the
most famous disciples to whom that philosophy has given a rule of
life. The long diffusion of these doctrines among the members of
a particular profession was sure to affect the art which they
practised and influenced. Several positions which we find in the
remains of the Roman jurisconsults are scarcely intelligible,
unless we use the Stoic tenets as our key; but at the same time
it is a serious, though a very common, error to measure the
influence of Stoicism on Roman law by counting up the number of
legal rules which can be confidently affiliated on Stoical
dogmas. It has often been observed that the strength of Stoicism
resided not in its canons of conduct, which were often repulsive
or ridiculous, but in the great though vague principle which it
inculcated of resistance to passion. Just in the same way the
influence on jurisprudence of the Greek theories, which had their
most distinct expression in Stoicism, consisted not in the number
of specific positions which they contributed to Roman law, but in
the single fundamental assumption which they lent to it. After
nature had become a household word in the mouths of the Romans,
the belief gradually prevailed among the Roman lawyers that the
old Jus Gentium was in fact the lost code of Nature, and that the
Praetor in framing an Edictal jurisprudence on the principles of
the Jus Gentium was gradually restoring a type from which law had
only departed to deteriorate. The inference from this belief was
immediate, that it was the Praetor's duty to supersede the Civil
Law as much as possible by the Edict, to revive as far as might
be the institutions by which Nature had governed man in the
primitive state. Of course, there were many impediments to the
amelioration of law by this agency. There may have been
prejudices to overcome even in the legal profession itself, and
Roman habits were far too tenacious to give way at once to mere
philosophical theory. The indirect methods by which the Edict
combated certain technical anomalies, show the caution which its
authors were compelled to observe, and down to the very days of
Justinian there was some part of the old law which had
obstinately resisted its influence. But, on the whole, the
progress of the Romans in legal improvement was astonishingly
rapid as soon as stimulus was applied to it by the theory of
Natural Law. The ideas of simplification and generalisation had
always been associated with the conception of Nature; simplicity,
symmetry, and intelligibility came therefore to be regarded as
the characteristics of a good legal system, and the taste for
involved language, multiplied ceremonials, and useless
difficulties disappeared altogether. The strong will, and unusual
opportunities of Justinian were needed to bring the Roman law to
its existing shape, but the ground plan of the system had been
sketched long before the imperial reforms were effected. 
    What was the exact point of contact between the old Jus
Gentium and the Law of Nature? I think that they touch and blend
through AEquitas, or Equity in its original sense; and here we
seem to come to the first appearance in jurisprudence of this
famous term, Equity In examining an expression which has so
remote an origin and so long a history as this, it is always
safest to penetrate, if possible, to the simple metaphor or
figure which at first shadowed forth the conception. It has
generally been supposed that AEquitas is the equivalent of the
Greek @@@@@@, i.e. the principle of equal or proportionate
distribution. The equal division of numbers or physical
magnitudes is doubtless closely entwined with our perceptions of
justice; there are few associations which keep their ground in
the mind so stubbornly or are dismissed from it with such
difficulty by the deepest thinkers. Yet in tracing the history of
this association, it certainly does not seem to have suggested
itself to very early thought, but is rather the offspring of a
comparatively late philosophy It is remarkable too that the
"equality" of laws on which the Greek democracies prided
themselves -- that equality which, in the beautiful drinking song
of Callistratus, Harmodius and Aristogiton are said to have given
to Athens-had little in common with the "equity" of the Romans.
The first was an equal administration of civil laws among the
citizens, however limited the class of citizens might be; the
last implied the applicability of a law, which was not civil law,
to a class which did not necessarily consist of citizens. The
first excluded a despot. the last included foreigners, and for
some purposes slaves. On the whole, I should be disposed to look
in another direction for the germ of the Roman "Equity." The
Latin word "aequus" carries with it more distinctly than the
Greek "@@@@" the sense of levelling. Now its levelling tendency
was exactly the characteristic of the Jus Gentium, which would be
most striking to a primitive Roman. The pure Quiritarian law
recognised a multitude of arbitrary distinctions between classes
of men and kinds of property; the Jus Gentium, generalised from a
comparison of various customs, neglected the Quiritarian
divisions. The old Roman law established, for example, a
fundamental difference between "Agnatic" and "Cognatic"
relationship, that is, between the Family considered as based
upon common subjection to patriarchal authority and the Family
considered (in conformity with modern ideas) as united through
the mere fact of a common descent. This distinction disappears in
the "law common to all nations," as also does the difference
between the archaic forms of property, Things "Mancipi" and
Things "nec Mancipi." The neglect of demarcations and boundaries
seems to me, therefore, the feature of the Jus Gentium which was
depicted in AEquitas. I imagine that the word was at first a mere
description of that constant levelling or removal of
irregularities which went on wherever the praetorian system was
applied to the cases of foreign litigants. Probably no colour of
ethical meaning belonged at first to the expression; nor is there
any reason to believe that the process which it indicated was
otherwise than extremely distasteful to the primitive Roman mind.

 
    On the other hand, the feature of the Jus Gentium which was
presented to the apprehension of a Roman by the word Equity, was
exactly the first and most vividly realised characteristic of the
hypothetical state of nature. Nature implied symmetrical order,
first in the physical world, and next in the moral, and the
earliest notion of order doubtless involved straight lines, even
surfaces, and measured distances. The same sort of picture or
figure would be unconsciously before the mind's eye, whether it
strove to form the outlines of the supposed natural state, or
whether it took in at a glance the actual administration of the
"law common to all nations"; and all we know of primitive thought
would lead us to conclude that this ideal similarity would do
much to encourage the belief in an identity of the two
conceptions. But then, while the Jus Gentium had little or no
antecedent credit at Rome, the theory of a Law of Nature came in
surrounded with all the prestige of philosophical authority, and
invested with the charms of association with an elder and more
blissful condition of the race. It is easy to understand how the
difference in the point of view would affect the dignity of the
term which at once described the operation of the old principles
and the results of the new theory. Even to modern ears it is not
at all the same thing to describe a process as one of "levelling"
and to call it the "correction of anomalies," though the metaphor
is precisely the same. Nor do I doubt that, when once AEquitas
was understood to convey an allusion to the Greek theory,
associations which grew out of the Greek notion of @@@@@@ began
to cluster round it. The language of Cicero renders it more than
likely that this was so, and it was the first stage of a
transmutation of the conception of Equity, which almost every
ethical system which has appeared since those days has more or
less helped to carry on. 
    Something must be said of the formal instrumentality by which
the principles and distinctions associated, first with the Law
common to all Nations, and afterwards with the Law of Nature,
were gradually incorporated with the Roman law. At the crisis of
primitive Roman history which is marked by the expulsion of the
Tarquins, a change occurred which has its parallel in the early
annals of many ancient states, but which had little in common
with those passages of political affairs which we now term
revolutions. It may best be described by saying that the monarchy
was put into commission. The powers heretofore accumulated in the
hands of a single person were parcelled out among a number of
elective functionaries, the very name of the kingly office being
retained and imposed on a personage known subsequently as the Rex
Sacrorum or Rex Sacrificulus. As part of the change, the settled
duties of the Supreme judicial office devolved on the Praetor, at
the time the first functionary in the commonwealth, and together
with these duties was transferred the undefined supremacy over
law and legislation which always attached to ancient sovereigns
and which is not obscurely related to the patriarchal and heroic
authority they had once enjoyed. The circumstances of Rome gave
great importance to the more indefinite portion of the functions
thus transferred, as with the establishment of the republic began
that series of recurrent trials which overtook the state, in the
difficulty of dealing with a multitude of persons who, not coming
within the technical description of indigenous Romans, were
nevertheless permanently located within Roman jurisdiction.
Controversies between such persons, or between such persons and
native-born citizens, would have remained without the pale of the
remedies provided by Roman law, if the Praetor had not undertaken
to decide them, and he must soon have addressed himself to the
more critical disputes which in the extension of commerce arose
between Roman subjects and avowed foreigners. The great increase
of such cases in the Roman Courts about the period of the first
Punic War is marked by the appointment of a special Praetor,
known subsequently as the Praetor Peregrinus, who gave them his
undivided attention. Meantime, one precaution of the Roman people
against the revival of oppression, had consisted in obliging
every magistrate whose duties had any tendency to expand their
sphere, to publish, on commencing his year of office, an Edict or
proclamation, in which he declared the manner in which he
intended to administer his department. The Praetor fell under the
rule with other magistrates; but as it was necessarily impossible
to construct each year a separate system of principles, he seems
to have regularly republished his predecessor's Edict with such
additions and changes as the exigency of the moment or his own
views of the law compelled him to introduce. The Praetor's
proclamation, thus lengthened by a new portion every year,
obtained the name of the Edictum Perpetuum, that is, the
continuous or unbroken edict. The immense length to which it
extended, together perhaps with some distaste for its necessarily
disorderly texture, caused the practice of increasing it to be
stopped in the year of Salvius Julianus, who occupied the
magistracy in the reign of the Emperor Hadrian. The edict of that
Praetor embraced therefore the whole body of equity
jurisprudence, which it probably disposed in new and symmetrical
order, and the perpetual edict is therefore often cited in Roman
law merely as the Edict of Julianus. 
    Perhaps the first inquiry which occurs to an Englishman who
considers the peculiar mechanism of the Edict is, what were the
limitations by which these extensive powers of the Praetor were
restrained? How was authority so little definite reconciled with
a settled condition of society and of law? The answer can only be
supplied by careful observation of the conditions under which our
own English law is administered. The Praetor, it should be
recollected, was a jurisconsult himself, or a person entirely in
the hands of advisers who were jurisconsults, and it is probable
that every Roman lawyer waited impatiently for the time when he
should fill or control the great judicial magistracy. In the
interval, his tastes, feelings, prejudices, and degree of
enlightenment were inevitably those of his own order, and the
qualifications which he ultimately brought to office were those
which he had acquired in the practice and study of his
profession. An English Chancellor goes through precisely the same
training, and carries to the woolsack the same qualifications. It
is certain when he assumes office that he will have, to some
extent, modified the law before he leaves it; but until he has
quitted his seat, and the series of his decisions in the Law
Reports has been completed, we cannot discover how far he has
elucidated or added to the principles which his predecessors
bequeathed to him. The influence of the Praetor on Roman
jurisprudence differed only in respect of the period at which its
amount was ascertained. As was before stated, he was in office
but for a year, and his decisions rendered during his year,
though of course irreversible as regarded the litigants, were of
no ulterior value. The most natural moment for declaring the
changes he proposed to effect occurred therefore at his entrance
on the praetorship, and hence, when commencing his duties, he did
openly and avowedly that which in the end his English
representative does insensibly and sometimes unconsciously. The
checks on this apparent liberty are precisely those imposed on an
English judge. Theoretically there seems to be hardly any limit
to the powers of either of them, but practically the Roman
Praetor, no less than the English Chancellor, was kept within the
narrowest bounds by the prepossessions imbibed from early
training and by the strong restraints of professional opinion,
restraints of which the stringency can only be appreciated by
those who have personally experienced them. It may be added that
the lines within which movement is permitted, and beyond which
there is to be no travelling, were chalked with as much
distinctness in the one case as in the other. In England the
judge follows the analogies of reported decisions on insulated
groups of facts. At Rome, as the intervention of the Praetor was
at first dictated by simple concern for the safety of the state,
it is likely that in the earliest times it was proportioned to
the difficulty which it attempted to get rid of. Afterwards, when
the taste for principle had been diffused by the Responses, he no
doubt used the Edict as the means of giving a wider application
to those fundamental principles, which he and the other
practising jurisconsults, his contemporaries, believed themselves
to have detected underlying the law. Latterly he acted wholly
under the influence of Greek philosophical theories, which at
once tempted him to advance and confined him to a particular
course of progress. 
    The nature of the measures attributed to Salvius Julianus has
been much disputed. Whatever they were, their effects on the
Edict are sufficiently plain. It ceased to be extended by annual
additions, and henceforward the equity jurisprudence of Rome was
developed by the labours of a succession of great jurisconsults
who fill with their writings the interval between the reign of
Hadrian and the reign of Alexander Severus. A fragment of the
wonderful system which they built up survives in the Pandects of
Justinian, and supplies evidence that their works took the form
of treatises on all parts of Roman Law, but chiefly that of
commentaries on the Edict. Indeed, whatever be the immediate
subject of a jurisconsult of this epoch, he may always be called
an expositor of Equity. The principles of the Edict had, before
the epoch of its cessation, made their way into every part of
Roman jurisprudence. The Equity of Rome, it should be understood,
even when most distinct from the Civil Law, was always
administered by the same tribunals. The Praetor was the chief
equity judge as well as the great common law magistrate, and as
soon as the Edict had evolved an equitable rule the Praetor's
court began to apply it in place of or by the side of the old
rule of the Civil Law, which was thus directly or indirectly
repealed without any express enactment of the legislature. The
result, of course, fell considerably short of a complete fusion
of law and equity, which was not carried out till the reforms of
Justinian. The technical severance of the two elements of
jurisprudence entailed some confusion and some inconvenience, and
there were certain of the stubborner doctrines of the Civil Law
with which neither the authors nor the expositors of the Edict
had ventured to interfere. But at the same time there was no
comer of the field of jurisprudence which was not more or less
swept over by the influence of Equity. It supplied the jurist
with all his materials for generalisation, with all his methods
of interpretation, with his elucidations of first principles, and
with that great mass of limiting rules which are rarely
interfered with by the legislator, but which seriously control
the application of every legislative act. 
    The period of jurists ends with Alexander Severus. From
Hadrian to that emperor the improvement of law was carried on, as
it is at the present moment in most continental countries, partly
by approved commentaries and partly by direct legislation. But in
the reign of Alexander Severus the power of growth in Roman
Equity seems to be exhausted, and the succession of jurisconsults
comes to a close. The remaining history of the Roman law is the
history of the imperial constitutions, and, at the last, of
attempts to codify what had now become the unwieldy body of Roman
jurisprudence. We have the latest and most celebrated experiment
of this kind in the Corpus Juris of Justinian. 
    It would be wearisome to enter on a detailed comparison or
contrast of English and Roman Equity but it may be worth while to
mention two features which they have in common. The first may be
stated as follows. Each of them tended, and all such systems
tend, to exactly the same state in which the old common law was
when Equity first interfered with it. A time always comes at
which the moral principles originally adopted have been carried
out to all their legitimate consequences, and then the system
founded on them becomes as rigid, as unexpansive, and as liable
to fall behind moral progress as the sternest code of rules
avowedly legal. Such an epoch was reached at Rome in the reign of
Alexander Severus; after which, though the whole Roman world was
undergoing a moral revolution, the Equity of Rome ceased to
expand. The same point of legal history was attained in England
under the chancellorship of Lord Eldon, the first of our equity
judges who, instead of enlarging the jurisprudence of his court
by indirect legislation, devoted himself through life to
explaining and harmonising it. If the philosophy of legal history
were better understood in England, Lord Eldon's services would be
less exaggerated on the one hand and better appreciated on the
other than they appear to be among contemporary lawyers. Other
misapprehensions too, which bear some practical fruit, would
perhaps be avoided. It is easily seen by English lawyers that
English Equity is a system founded on moral rules; but it is
forgotten that these rules are the morality of past centuries --
not of the present-that they have received nearly as much
application as they are capable of, and that though of course
they do not differ largely from the ethical creed of our own day,
they are not necessarily on a level with it. The imperfect
theories of the subject which are commonly adopted have generated
errors of opposite sorts. Many writers of treatises on Equity,
struck with the completeness of the system in its present state,
commit themselves expressly or implicitly to the paradoxical
assertion that the founders of the chancery jurisprudence
contemplated its present fixity of form when they were settling
its first bases. Others, again, complain and this is a grievance
frequently observed upon in forensic arguments -- that the moral
rules enforced by the Court of Chancery fall short of the ethical
standard of the present day. They would have each Lord Chancellor
perform precisely the same office for the jurisprudence which he
finds ready to his hand, which was performed for the old common
law by the fathers of English equity. But this is to invert the
order of the agencies by which the improvement of the law is
carried on. Equity has its place and its time; but I have pointed
out that another instrumentality is ready to succeed it when its
energies are spent. 
    Another remarkable characteristic of both English and Roman
Equity is the falsehood of the assumptions upon which the claim
of the equitable to superiority over the legal rule is originally
defended. Nothing is more distasteful to men, either as
individuals or as masses, than the admission of their moral
progress as a substantive reality. This unwillingness shows
itself, as regards individuals, in the exaggerated respect which
is ordinarily paid to the doubtful virtue of consistency. The
movement of the collective opinion of a whole society is too
palpable to be ignored, and is generally too visible for the
better to be decried; but there is the greatest disinclination to
accept it as a primary phenomenon, and it is commonly explained
as the recovery of a lost perfection -- the gradual return to a
state from which the race has lapsed. This tendency to look
backward instead of forward for the goal of moral progress
produced anciently, as we have seen, on Roman jurisprudence
effects the most serious and permanent. The Roman jurisconsults,
in order to account for the improvement of their jurisprudence by
the Praetor, borrowed from Greece the doctrine of a Natural state
of man -- a Natural society -- anterior to the organisation of
commonwealths governed by positive laws. In England, on the other
hand, a range of ideas especially congenial to Englishmen of that
day, explained the claim of Equity to override the common law by
supposing a general right to superintend the administration of
justice which was assumed to be vested in the king as a natural
result of his paternal authority. The same view appears in a
different and a quainter form in the old doctrine that Equity
flowed from the king's conscience -- the improvement which had in
fact taken place in the moral standard of the community being
thus referred to an inherent elevation in the moral sense of the
sovereign. The growth of the English constitution rendered such a
theory unpalatable after a time; but, as the jurisdiction of the
Chancery was then firmly established, it was not worth while to
devise any formal substitute for it. The theories found in modern
manuals of Equity are very various, but all are alike in their
untenability. Most of them are modifications of the Roman
doctrine of a natural law, which is indeed adopted in tenour by
those writers who begin a discussion of the jurisdiction of the
Court of Chancery by laying down a distinction between natural
justice and civil. 

 


Chapter 4

 
The Modern History of the Law of Nature

 
    It will be inferred from what has been said that the theory
which transformed the Roman jurisprudence 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 practical purposes, was
something belonging to the present, something entwined with
existing institutions, 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 disciples 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 ultimate 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 nobility 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 commonplaces
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 jurisprudence 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 impression 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 serviceableness 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 important too to observe that this
model system, unlike many of those which have mocked men's hopes
in later days, was not entirely the product 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 ancient. 
    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 tenour.
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
improvement. 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 commonplace 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
maintained 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 overshadowing 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 themselves. 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 controversies 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 house of Capet,
and it was as much through their assertions of royal prerogative,
and through their interpretations of the rules of feudal
succession, as by the power of the sword, that the French
monarchy at last grew together out of the agglomeration 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 consequently, 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 objections. 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 w ould 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 intelligible 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 experiment 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 comprehend 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 derived. 
    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-Angouleme 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
throughout Europe. Their juridical 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 du
Droit Ecrit and Pays du Droit Coutumier; the first acknowledging
the written Roman law as the basis of their jurisprudence, the
last admitting it only so far as it supplied general forms of
expression, and courses of juridical reasoning which were
reconcileable with the local usages. The sections thus formed
were again variously subdivided. In the Pays du Droit Coutumier

province differed from province, county from county, municipality
from municipality, in the nature of its customs. In the Pays du
Droit Ecrit the stratum of feudal rules which overlay the Roman
law was of the most miscellaneous composition. 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 peculiarity 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 administrative
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 lawyer. 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
infested 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 contradictions. 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 remarkable 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 professed an exclusive respect for
the Digest and the Code. Dumoulin, the highest of all authorities
on old French Customary Law, has some extravagant passages on the
Law of Nature; and his panegyrics have a peculiar rhetorical turn
which indicated 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
transformation 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, vet 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
signatory 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 circumstances 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
observation 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
relation 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. Perhaps 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
cosmogonies. 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 speculative 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 lawyer. 
    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, other 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
Revolution 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 is 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. They are comparatively rare in the Constituent Assembly;
they are much more frequent in the Legislative; in the
Convention, amid the din of debate on conspiracy and war, they
are perpetual. 
    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 considerable
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 apparently 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 "aequales
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 conceding the origin, composition, 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
conceding the birthstate 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, everybody 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 acquired 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-juridical, semipopular 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 equality 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 grandest 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
consideration very unequal to its importance. 
    Among the postulates which form the foundation 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 successor 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 manageable
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 ethic
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 characteristic 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 jurisconsult 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 actual 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 acknowledged 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
civilisation, 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
hesitation 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 engagement. 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 displacement 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 predecessors 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 unknown 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 absolutely 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 tendencies 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 Grotius'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 ambition, 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 congruity
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 "sovereignty is
territorial," i.e. that it is always associated 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 irreconcileable 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 chiefest postulates of
International Law could be universally conceded. 
    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 pretending 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
"tribe-sovereignty." The Franks, the Burgundians, the Vandals,
the Lombards, and Visigoths were masters, of course, of the
territories which they occupied, and to which some of them have
given a geographical appellation; 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. The alternative to this
peculiar notion of sovereignty appears to have been  -- and this
is the important point -- the idea of universal dominion. The
moment 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 only
precedent which suggested itself for his adoption was the
domination of the Emperors of Rome. To parody a common quotation,
he became "aut Caesar aut nullus." Either he pretended to the
full prerogative of the Byzantine Emperor, or he had no political
status whatever. 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 Kings of the Franks, a
title which belonged to the displaced Merovings; but they could
not style themselves Kings of France, for such a designation,
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 theory. 
    These singularities of view were not altered on the partition
of the inheritance of Charlemagne among his three grandsons.
Charles the Bald, Lewis, and Lothair were still theoretically --
if it be proper to use the word -- Emperors of Rome. Just as the
Caesars of the Eastern and Western Empires had each been de jure
emperor of the whole world, with defacto control over half of it,
so the three Carlovingians appear to have considered their power
as limited, but their title as unqualified. The same speculative
universality of sovereignty continued to be associated with the
Imperial throne after the second division on the death of Charles
the Fat, and, indeed, was never thoroughly dissociated 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 distinctly an
offshoot, though a tardy one, of feudalism. 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 conception 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. When
the feudal prince of a limited territory surrounding Paris began,
from the accident of his uniting an unusual number of
suzerainties in his own person, to call himself King of France,
he became king in quite a new sense, a sovereign standing in the
same relation to the soil of France as the baron to his estate,
the tenant to his freehold. The precedent, however, was as
influential as it was novel, and 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 sovereignty. 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
republic 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 AEgean. 
    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 constitution; 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 jurisprudence, 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 substitute 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 influences 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 differences 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
reformer; the Pope was, as a matter of course, in the same
predicament; and thus the two authorities to whom belonged the
office of mediation between combatants became themselves the
chiefs of one great faction in the schism of the nations.
Feudalism, already enfeebled and discredited as a principle of
public relations, furnished no bond whatever which was stable
enough to countervail the alliances of religion. In a condition,
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 Pacis,"
was its rapid, complete, and universal success. The horrors of
the Thirty Years' War, the boundless terror and pity which the
unbridled license 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 component atoms of a
natural society must, by the fundamental assumption, be insulated
and independent of each other. If there be a higher power
connecting them, however slightly and occasionally 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 associated 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. 
return to Literature of general philosophical and sociological interest