_SIR H. MAINE ON THE LAW OF NATIONS._
Dr Newman in his inaugural discourse as Rector of the Dublin
University ("On the Place held by the Faculty of Arts in the
University Course"), which I think never received the attention it
deserved, has with a few masterly touches sketched the history of
Western civilisation, which in its main lines may be considered
to run into, and be found identical with, the tradition I am now
regarding--with this difference, that Dr Newman regards Western
civilisation in its progressive, whereas we are concerned with its
traditive aspects. Dr Newman says: "I take things as I find them
on the surface of history, and am but classing phenomena (I have
nothing to do with ethnology). Looking, then, at the countries
which surround the Mediterranean seas as a whole, I see them from
time immemorial the seat of an association of intellect and mind
such as to deserve to be called the intellect and mind of human
kind. Starting and advancing from certain centres, till their
respective influences intersect and conflict, and then at length
intermingle and combine, a common thought has been generated,
and a common civilisation defined and established. Egypt is one
starting-point, Syria another, Greece a third, Italy a fourth (of
which, as time goes on, the Roman empire is the maturity, and
the most intelligible expression), North Africa a fifth, ... and
this association or social commonwealth, with whatever reverses,
changes, and momentary dissolutions, continues down to this day....
I call it, then, pre-eminently and emphatically Human Society,
and its Intellect the Human Mind, and its decisions the sense of
mankind and its humanised and cultivated states--civilisation
in the abstract; and the territory on which it lies the _orbis
terrarum_, or the world. For unless the illustration be fanciful,
the object which I am contemplating is like the impression of a
seal upon the wax; which rounds off and gives form to the greater
portion of the soft material, and presents something definite to
the eye, and pre-occupies the space against any second figure, so
that we overlook and leave out of our thoughts the jagged outline
or unmeaning lumps outside of it, intent upon the harmonious circle
which fills the imagination within it." ("There are indeed great
outlying portions of mankind, ... still they are outlying portions
and nothing else, fragmentary, &c., protesting and revolting
against the grand central formation of which I am speaking, but
not uniting with each other into a second whole.") The same _orbis
terrarum_, which has been the seat of civilisation, has been
the seat of the Christian polity. "The natural and the divine
associations are not indeed exactly coincident, nor ever have
been." "Christianity has fallen partly outside civilisation and
civilisation partly outside Christianity; but on the whole the two
have occupied one and the same _orbis terrarum_.... The centre of
the tradition is transferred from Greece to Rome.... At length the
temple of Jerusalem is rooted up by the armies of Titus, and the
effete schools of Athens are stifled by the edict of Justinian....
The grace stored in Jerusalem, and the gifts which radiate from
Athens, are made over and concentrated in Rome. This is true as
a matter of history. Rome has inherited both sacred and profane
learning; she has perpetuated and dispensed the traditions of Moses
and David in the supernatural order, and of Homer and Aristotle
in the natural. To separate these distinct teachings, human and
divine, is to retrograde; it is to rebuild the Jewish temple and
to plant anew the groves of Academus; ... and though these were
times when the old traditions seemed to be on the point of failing,
somehow it has happened that they have never failed.... Even in
the lowest state of learning the tradition was kept up;" ... and
this experience of the past we may apply to the present, "for as
there was a movement against the classics in the Middle Ages, so
has there been now.... Civilisation has its common principles, and
views, and teaching, and especially its books, which have more or
less been given from the earliest times, and are in fact in equal
esteem and respect, in equal use, now, as they were when they were
received in the beginning. In a word, the classics and the subjects
of thought and study to which they give rise, or to use the term
most to our present purpose, the arts have ever on the whole been
the instruments which the civilised _orbis terrarum_ has adopted;
just as inspired works, and the lives of saints, and the articles
of faith and the Catechism have been the instrument of education
in the case of Christianity. And this consideration you see,
gentlemen (to drop down at once upon the subject of discussion
which has brought us together), invests the opening of the schools
in arts[282] with a solemnity and moment of a peculiar kind, for
we are but engaged in reiterating an old tradition, and carrying
on those august methods of enlarging the mind, and cultivating
the intellect and ripening the feelings, in which the process of
civilisation has ever consisted."--_Dr Newman on Civilisation._
[282] _I.e._, "The teaching and government of the University
remained in the Faculty of Arts," and not in the faculty
of theology or law or modern philosophy. I have for my
own purposes of condensation been obliged to take certain
unpardonable liberties of transposition in the above abstract,
for which I can only plead my necessity. I should not in any
case have so exceeded in quotation, were this very masterly
address at all accessible, but, as far as I know, it is only
to be found in the _Catholic University Gazette_, November 16,
1854.
In order to show the full significance of these extracts
from Dr Newman, and also their bearing on points still to be
discussed, I will append the following suggestive passage
from Sir H. Maine's "Ancient Law," p. 22:--"It is only with
the progressive societies 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 particular 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.... There has been a material civilisation, but instead
of the civilisation expanding the law, the law has limited the
civilisation."
I must also express my belief that if Mr Lowe had read the
lecture of Dr Newman, he would have very much modified
the views he enunciated in his lecture on "Primary and
University Education," at the Philosophical Institution at
Edinburgh.--_Times_, November 4, 1867.
Before examining Sir H. Maine's view on the Law of Nature and the Law
of Nations, it will perhaps facilitate the inquiry if I gather up,
out of the evidence which has accumulated in the previous chapters,
such conclusions as will show how we stand in regard to Sir H. Maine's
general theory.
I. Accepting Sir H. Maine's dictum that "the family and not the
individual was the unit of ancient society;" and, in a certain sense,
the further position, that it is difficult "to know where to stop,
to say of what races of men it is _not_ allowable to lay down that
the society in which they are united was originally organised on the
patriarchal model,"[283] I venture to maintain against Sir H. Maine the
continuance of family life in a quasi state of nature, before either
the development or creation of the State.
[283] "Ancient Law," p. 123.
II. But in maintaining that there was a period in human history
anterior to the formation of governments, I am far from asserting--on
the contrary, I distinctly repudiate the notion--that there was ever an
ante-social state. Society is complete within the family circle;[284]
and society in any wider organisation is only the requirement and
consequence of imperfection and corruption within the family, or of
collision between families. Undoubtedly, there were instances in which
the State grew up imperceptibly out of the extension of the family
into the patriarchal system;[285] but these instances will probably
have occurred among the families who remained stationary, whether by
right of seniority, or by virtue of superior power, at the central
point from which the Dispersion commenced. So long, however, as family
government sufficed, there would have been nothing but the family; but
when mankind increased, and actual relationship died out, disputes must
have multiplied and become complicated--not only between individuals
but between families; hence the necessity of State government--hence
the necessity of an appeal on the part of individuals from the family
to some supreme authority. This would be the first mode in which
governments would have arisen among those who came under the action
of the Dispersion. But even here--assuming the family groups to have
descended from the same progenitor--we see first the family, first
property, then the State. The second mode would be where several
families, differing in language and race, came together and formed
States.[286] Although they would have come together on unequal and
varying conditions, yet they would necessarily have come together
on some conditions, and for the mutual protection of their rights,
their property, and their personal security. In all such cases there
would have been something of a recognition and adjustment of rights,
something of the nature of a compact more or less explicit, but much
more formal and explicit in this mode than in the former. In any case,
the end and intention of the formation of States and governments would
have been the security of rights, as Cicero tells us:--"Hanc enim ob
causam maxime _ut sua tuerentur_ respublicæ civitatesque constitutæ
sunt. Nam etsi, duce naturæ, congregabantur homines, _tamen spe
custodiæ rerum suarum_ urbium præsidia quærebant." But does not Sir H.
Maine himself supply similar testimony? Referring to the notions of
"primitive antiquity," he says:--
"How little the notion of injury to the community had to do with
the earliest interferences of the State, through its tribunals,
is shown by the curious circumstance, that in the original
administration of justice the proceedings were a close imitation
of the series of acts which were likely to be gone _through in
private life_ by persons who were disputing, but who afterwards
suffered their quarrel to be appeased. The magistrate carefully
simulated the demeanour of a _private arbitrator, casually called
in_."--Chap. x. 374; _vide_ also pp. 375, 376.
[284] It by no means follows that God does not will, and did not
foreordain society in its wider organisation, according to the
conditions and circumstances out of which it arose.
[285] Sir H. Maine says (p. 124):--"The points which lie on the
surface of history are these: the eldest male parent--the
eldest ascendant--is absolutely supreme in his household. His
dominion extends to life and death, and is as unqualified
over their children and their _houses_ as over his slaves.
The flocks and herds of the children are the flocks and herds
of the father." [This is not borne out by what we read of
Abraham and Lot, Esau and Jacob--_e.g._, "But Lot also, who
was with Abraham, _had_ flocks of sheep, and herds and tents.
Neither was the land able to bear them, that they might
dwell together" (Gen. xiii.) "And the possessions of the
parent, which he holds in a representative rather than a
proprietary character, are equally divided at his death among
his descendants in the first degree, the eldest son sometimes
receiving a double share, under the name of birthright, but
more generally endowed with no hereditary advantage beyond an
honorary precedence." The separation then commenced with the
division of the inheritance; and whether it was ever an equal
division, and not proportioned to the respective ages of the
sons, or determined by other motives, or again, a division of
different kinds of property, may be open to question; but at
any rate a division took place, and a separation of families
was consequent upon it. The division was not only the sign
and token, but the efficient cause of the separation; and so
not only the dispersion of families, but separate ownerships
commenced with the descendants in the first degree.
[286] Compare Plato, "Leges;" Grote's "Plato," iii. 337.
III. We come to the conclusion that the collation of the sentiments and
maxims, as preserved in tradition by the families who had coalesced
into States, would have formed the basis of the morality and of the
jurisprudence of the States so constituted; and that in every case
of oppression appeal would have been made to their pre-existing and
natural rights.
IV. That whilst certain traditions--the tradition of religion, for
instance--would have been perhaps more faithfully preserved in the
patriarchal governments of the East, and we find evidence of this in
the monotheism of the Persians; on the other hand, if there was a
tradition of a law common to all nations, it would be more likely to
be preserved in States formed by the amalgamation of many distinct
families and races.[287]
[287] "In that old heathenism of the Roman world, into which it
was the will of God that the Christian religion should be
introduced by the apostles, there were then diverse and often
conflicting elements. There was a good element, which came
from God; there was a thoroughly bad element, which came from
Satan; and there was a corrupt element, which was the fruit of
the workings of unregenerate human nature upon society, and
upon the objects of sense and intelligence with which man is
placed in relation. The good element we see embodied in great
part of the laws and institutions of the ancient world, as
also in much of the literature, the poetry, the philosophy of
Greece and Rome, which literature consequently--after having
been purified, and as it were baptized--has always been used
by the Christian Church in the education of her children. This
element, I say, was originally the gift of God, the Author of
nature, to man, the offspring of reason and conscience, the
tradition of a society of which God was Himself the founder.
It enshrined whatever fragments of primeval truth as to God,
the world, and man himself, still lingered, in whatever shape,
among the far-wandering children of Adam. St Paul alludes to
this element (Acts xvii. 22); ... and his words altogether
seem to imply that God watched over it, supported it and
fostered it, as far as men were worthy of it, and that it
might even have been expanded into a perfect system of natural
religion and of reasonable virtue, had men been grateful
enough to earn larger measures of grace from God, who left not
Himself without witness in His daily providence, and was not
far from 'any one of His children.'"--"_Four Sermons_," by the
Rev. Henry J. Coleridge, S. J. Burns & Oates. 1869. P. 52.
(48.)
V. That such was the origin and history of the Greeks and Romans--the
two nations which formed the nucleus of the _orbis terrarum_ within
which, as Dr Newman tells us (_supra_, p. 339), is found the centre
of Christianity and the seat of civilisation.
VI. That, whether the Roman law goes back in tradition, or, as Sir H.
Maine will say, in fiction only--the fact remains, that it does so
trace itself back to remote antiquity, and that the Roman law subsists
to this day as the foundation of most of the codes of Europe, and
has extended its ramifications to all; and that outside the circle
of its influence other nations equally retrace their codes to remote
antiquity, and, as a rule, to revelations made to their earliest
founder. That nothing is more striking in ancient times than the manner
in which their codes, which are the embodiment of laws previously in
tradition, were held as a sacred deposit. This was the reason why the
laws of the Medes and the Persians might not be altered; and that,
according to the laws of the Visigoths, no judge would decide in any
suit unless he found in their code a law applicable to the case; and
perhaps we may find trace of it in the phrases familiar to us--_nolumus
leges Angliæ mutari_, _stare super vias antiquas_, and so, too, in the
_ita scriptum est_, which, as Sir H. Maine says (p. 31), silenced all
objections in the Middle Ages.
VII. That the fact of a tradition of "a law common to all nations" and
of "a lost code of nature," is in accordance with the historical and
scriptural evidence which would render such a tradition probable.
* * * * *
Sir H. Maine, with whose argument I now propose to deal, is, as far as
I am aware, the most conspicuous opponent of the common belief in the
"Law of Nations;" and yet it appears to me that we shall find testimony
to the tradition even in the very terms in which he repudiates it. I
must at least consider this a recognition on his part of the strength
and inveteracy of the opposite view. In the following extracts I shall
suppose my readers fresh from the perusal of Sir H. Maine.
Sir H. Maine says ("Ancient Law," pp. 7, 8), that the further "we
penetrate into the primitive history of thought, the further we find
ourselves from the conception of law of any sort." And again, "It is
certain that in the infancy of mankind, no sort of legislation, not
even a distinct author of law, is contemplated or conceived of." Now if
Sir H. Maine had said nothing more, I should have felt bound to take
this assertion upon his authority; but Sir H. Maine adds:--"Law has
scarcely reached the footing of custom; it is rather a habit. It is, to
use a French phrase, 'in the air,'" [Is not Sir H. Maine here hunting
for a phrase which shall not imply that it is in tradition?] "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."
This passage may be adduced in evidence of the tradition of Noah and
his heavenly-inspired judgments, but apparently it is in contradiction
to the view of a law of nature, since it supposes the judge to decide
through direct inspiration, or in the way of _stet pro ratione
voluntas_, and not with reference to a "law which has been violated."
Now, Sir H. Maine comes to his conclusion upon the ground of the
"Themistes" of the Homeric poems. "The earliest notions connected with
the conception ... of a law or rule of life are those contained in the
Homeric words 'Themis' and 'Themistes'" (p. 4). "The literature of
the heroic ages discloses to us law in the germ under the 'Themistes,'
and a little more developed in the conception of 'Dike'" (p. 9). If
this were so, law according to the conception of "Themistes" and law
according to the conception of "Dike" were never contemporaneous, but
necessarily successive, or rather progressive; but at page 8 we read,
"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.' '[Greek:
Nomos],' a law ... does not occur in Homer."[288]
[288] The word '[Greek: nomos]' is found in the Hymn to Apollo, v.
20, attributed to Homer [the term [Greek: themistes] also, v.
391]--and in Hesiod, Op. et Dies, v. 276.--Goguet, ii. 78.
In the Hymn to Apollo it is only applied to song. The Greeks
had the same word, however--viz. [Greek: nomoi], as for laws,
songs, and pastures--that is to say, the term law, [Greek:
nomos], is applied to the instrument of its transmission, and
to what would then have been its most ordinary subject matter.
This seems to me in evidence of its primitive use.
Take, moreover, the following passage in the First Book of the
Iliad, v. 233:--
[Greek: 'All' ek toi ereô, kai epi megan horkon omoumai
nai ma tode skêptron, to men oupote phylla kai ozous
physei, epeidê prôta tomên en oressi leloipen,
oud' anathêlêsei; peri gar rha he chalkos elepse
phylla te kai phloion; nyn aute min hyies Achaiôn
en palamês phoreousi, dikaspoloi, hoite Themistas
pros Dios heiryatai; ho de toi megas essetai horkos.]
--_Heyne's Homer_, i. v. 233-239.
"But this I say, and with an oath confirm,
By this my royal staff, which never more
Shall put forth leaf nor spray since first it left
Upon the mountain side its parent stem,
Nor blossom more; since all around, the axe
Hath lopped both leaf and bark, and now 'tis borne,
_Emblem of justice_, by the sons of Greece,
_Who guard the sacred ministry of law
Before the face of Jove!_ a mighty oath.
The time shall come when all the sons of Greece
Shall mourn Achilles' loss," &c.
--_Lord Derby's Translation_, 275-285.
Here we have the term "dike" not merely in embryo, but in
the compound word "dikaspoloi," administrators of justice,
implying something akin to judges, and a condition of things
in which law was reduced to a state in which there was
something to guard and administer. Not only so, but the staff,
the "emblem of justice," is borne by them when they _guard_
the "Themistes" before the gods.
It will not only be curious to discover, but the discovery
of vestiges in modern times of the old traditional modes and
ceremonial will throw light upon the administration of justice
in ancient times. I dare say many other instances may be
indicated. I will adduce the following:--If my readers will
turn to the _Pall Mall Gazette_ (July 12, 1870), they will
find an account of "The Manx Thing," or "the ancient custom
of the Ruler, his Council, and the Commons meeting together
in the open air to proclaim the law to the people standing
around." "The Lieutenant-Governor is the representative of
the King, and takes an oath to deal truly and uprightly
between our sovereign lady the Queen and her people," "and
as indifferently betwixt party and party _as this staff now
standeth_." "He is assisted by two demesters or supreme
judges, who must deem the law truly, as they will answer to
the Lord of the Isle." Here, as in Homer, there is reference
to an emblem and a ceremonial repugnant to the notion that
(_infra_) "every man under the patriarchal despotism was
practically controlled by a regimen not of law but of caprice."
Mr Adams describes the following scene in one of the islands
in the archipelago off the mainland of Korea--"The chief, who
really has something very noble and majestic about him, as
is generally the case with men in high authority among the
natives of these islands.... The demeanour of those of his
countrymen who surrounded him was as free and independent as
his own was reserved and dignified.... In his hand he held
_his badge of office, a wand of ebony with a green silken cord
entwined about it like the serpent of Æsculapius_."--"Travels
of a Naturalist in Japan and Manchuria," by Arthur Adams,
F.L.S. 1870. Compare also with _infra_, p. 390.
Well, allow that there need not be as yet the metaphysical conception
of law, or law as a positive enactment, embracing indifferently a
variety of cases. Eliminate the word "law." Instead of the phrase "law
of nature" substitute "natural justice," and "the sense of right and
wrong;" and it suffices that we detect "usage," "custom," right; for
even if it were conceded that right is a post-Homeric rendering of
[Greek: dikê], yet "custom" and "usage" in their definition would have
been in recognition of pre-existing right. This becomes more clear if
we consider the alternative opinion. Sir H. Maine says that "under
the patriarchal despotism," "every man was practically controlled
in all his actions by a regimen not of law but of caprice" (p. 8).
The judgments, then, of the patriarchal times were mere "caprice,"
and rights were defined without reference to any sense of justice.
From "Themistes" of caprice they would proceed to legislation upon
"caprice," and, ultimately, to codes which would represent nothing
but a digest of the precedents of "caprice." It is difficult, then,
to understand in what way and at what point the sense of justice, the
conception of "dike," originated, and most of all, if this is true, it
is difficult to account for the "Themistes" being regarded as akin
to inspiration, as well as for the veneration with which, we have the
authority of Sir H. Maine (_vide infra_) for saying, that Archaic law
was held, and, moreover, for the persistent tendency to revert to the
past.[289]
[289] I feel very much supported in my argument by the following
passage from Mr Gladstone's "Homer" (ii. 420): "Mr Grote says
that 'the primitive import' of the words [Greek: hagathos],
[Greek: esthlos], and [Greek: kakos], relates to power and not
to worth; and that the ethical meaning of these is a later
growth, which 'hardly appears until the discussions raised by
Socrates, and prosecuted by his disciples.' I ask permission
to protest against whatever savours of the idea that any
Socrates whatever was the patentee of that sentiment of right
and wrong which is the most precious part of the patrimony of
mankind. The movement of Greek morality with the lapse of time
was chiefly downward and not upward.... But as to the words
[Greek: hagathos] and [Greek: kakos], the case is far more
clear; and here I ask, Can it be shown that Homer ever applies
the word [Greek: hagathos] to that which is morally bad? or
the word [Greek: kakos] to that which is morally good? If it
can, _cadit quæstio_; if it cannot, then we have advanced a
considerable way in proving the ethical signification.... In
the word [Greek: dikaios], however, we have an instance of the
epithet never employed except in order to signify a moral or
a religious idea. Like the word _righteous_ among ourselves,
it is derived from a source which would make it immediately
designate duty as between man and man, and also as it arises
out of civil relations. But it is applied in Homer to both the
great branches of duty. And surely there cannot be a stronger
proof of the existence of definite moral ideas among a people,
than the very fact that they employ a word founded on the
observance of relative rights to describe also the religious
character. It is when religion and morality are torn asunder,
that the existence of moral ideas is endangered."
If, however, we follow Sir H. Maine in his illustration taken from
English law, we shall find ourselves reinstated in our original
convictions. Sir H. Maine says (p. 8), "An Englishman should be
better able than a foreigner to appreciate the historical fact that
the 'Themistes' preceded any conception of law;" but at page 32, he
says, "Probably it will be found that _originally_ it was the received
doctrine that somewhere _in nubibus_ [Q. "in the air"], 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." If, then,
we take the analogy of the English law, we come also to the identical
conclusion for which I contend--viz. that the "Themistes," whether they
partook of the character of commands or of judgments, _were_ still in
recognition of a "law which was violated."
If the "Themistes" had no reference to a law which was violated; if
they were mere caprice, I have already asked, whence arose the regard
for ancient law among the nations of antiquity? and I may add, how came
it about that their ideas of justice were inseparably connected with
the notions of morality? Does Sir H. Maine deny either of these facts?
On the contrary, he affirms them:--
"Quite enough, too, remains of these collections ['ancient codes']
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 ancient 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"
(p. 16).
And at p. 121, "Much of the old law which has descended to us, was
preserved merely _because it was old_. Those who practised and
obeyed it did not pretend to understand it; and in some cases they
even ridiculed and despised it. _They offered no account of it
except that it had come down to them from their ancestors._"
Does Sir H. Maine dispute the persistency of tradition in general?
No. At p. 117, _vide supra_, I have quoted a passage in which he
explicitly maintains it.
I must observe further, that in the very passages in which he
repudiates the notion of a "law of nature," two things irresistibly
transpire--(1.) That there was a persistent tradition in ancient
society of a law of nature; (2.) That this tradition was invariably
associated with the golden age, _e.g._:--
"After nature had become a household word in the mouths of
the Romans, the belief gradually prevailed among the Roman
lawyers,[290] that the old _jus gentium_ was in fact _the lost
code of nature_, and that the prætors, in framing an edictal
jurisprudence on the principles of the _jus gentium_, were
gradually restoring a type from which law had only departed _to
deteriorate_" (p. 56). "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_" (p. 60). "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 juris-consults do not speak clearly or confidently of
the existence of such a state, which indeed is little noticed by
the ancients _except_ when it finds a poetical _expression in
the fancy of a golden age_" (p. 73). "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_" (p. 74). "Yet it is a remarkable proof
of the essentially _historical_ character of the conception that,
after all the efforts which have been made to evolve the code of
nature from the necessary characteristics of the natural state
[_i.e. à priori_] 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" (p. 97). [Because
the Roman law was in the main stream of the tradition.][291]
[290] Either, then, the Roman lawyers fell back upon the old
traditions, or else the lawyers introduced the superstition of
the law of nature, and then became victims to the superstition
they had invented. In any case, the "belief" in "the lost
code of nature gradually prevailed." I am presently going to
discuss with Sir H. Maine how far in the latter case such a
belief is likely to have prevailed.
[291] _Vide_ also Sir H. Maine, p. 77: "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."
I now come to what I may call the exposition of Sir H. Maine's argument
proper, and, although I feel the full difficulty of doing this, in the
case of so subtle and able a writer, I shall endeavour to condense into
as short a space as possible whatever is material to Sir H. Maine's
position. Sir H. Maine says (p. 46):--
"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.... It is probable,
however, that this explanation is imperfect, and 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.... 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 the Quiritarian Law, &c.... Still
neither the interest nor the security of Rome permitted him to
be quite outlawed.... Moreover, at no period of Roman history
was foreign trade entirely neglected. It was therefore probably
half as a measure of policy 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.... 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, i.e._ 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 the
Roman soil.... 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_ was 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 of 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_....
We should have a sort of respect for rules and principles so
universal.... 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
points 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 ... the endless
formalities, &c.... 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.... 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."--_Sir H. Maine's Ancient Law_, 46-52.
Sir H. Maine's theory may be summarised as an attempt to identify
the "Law of Nations" with the history of Roman law, leaving out of
sight the tradition of it which may be traced in other nations.
Now, although there is nothing, as Napoleon used to say, which one
nation hates more than another nation--and this certainly holds true
of the Roman people--yet it is scarcely possible to point to any
which, from the circumstances of its origin, would have been less
predisposed to look in the abstract with disdain upon the laws and
customs of surrounding nations, however much they may have hated them
as concrete nationalities; and least of all would they have had this
feeling for the institutions of the Latins, a people whom, from their
peculiar connection with themselves, they would principally have had
as residents among them. Sir H. Maine seems unable to shake off the
prepossession, which the analysis of Roman law, to the exclusion of
other evidence, would tend to lead him, viz. that the Romans were a
homogeneous people, and we have just heard him speak of their "own
indigenous _jus civile_." This indigenous _jus civile_ was compounded,
as was their nationality, of many miscellaneous elements. Whatever
truth may be attached to the legends as to the foundation of Rome,
and they are various, it cannot well be disputed that there was a
strong trace of Sabine[292] and Etruscan,[293] in addition to the
original miscellaneous Roman, or, if not miscellaneous, pure Latin
element; to which, in any case, in the subsequent reigns a large Latin
immigration must be added, when Rome, through the conquest of Alba
Longa, became the head of the Latin league, and the infusion of a Greek
in addition to an Etruscan element in the dynasty of the Tarquins. The
Latin league has its significance over and above its bearing upon the
present argument; and to this I shall presently revert. But to go no
further, does not the existence of the Latin league[294] sufficiently
account for the large influx of strangers into Rome, on account of
which Sir H. Maine sees the necessity for an extension of the Roman
jurisprudence? But, if this be so, his theory must fall to the ground;
for, if the Roman element was distinctive at all, and was a pure
Latin population, miscellaneously collected by Romulus, and not a
miscellaneous population of various tribes--it was Latin _quâ_ Roman.
How then, supposing the Roman element to have become predominant, did
it come to contemn the Latin element and the law of the Latins? That it
excluded them is another thing, or that they were kept in a subordinate
position, and not admitted to the full privileges of naturalisation,
is quite conceivable on other grounds; but that there should have
existed a feeling of contempt for the laws and customs of the people
among whom, if their legends were true (and at any rate we have nothing
else to go upon), was found the cradle of their race, is hard to
understand, yet this assumption is essential to Sir H. Maine's position.
[292] I shall consider that Dr Dyer has fairly reinstated a large
portion of early Roman history until I see his arguments
refuted. Without endorsing his opinion I may quote what Dr
Dyer says ("Hist. of the City of Rome," p. 27) in evidence
of the admixture of the Sabine element:-- "The importance of
the Sabine element at Rome has not perhaps been sufficiently
considered. The late M. Ampere has discussed the subject
with great learning and ability in his interesting work,
'L'Histoire Romaine à Rome.' He remarks that not only did the
Romans borrow from the Sabines almost all their religious
and much of their political and social organisation, their
customs, ceremonies, arms, &c., but also that the far greater
part of the primitive population of Rome was Sabine, that most
of the men who played a part in Roman history were of Sabine
extraction, and that what is called the Latin tongue contains
a strong infusion of Sabine elements."
[293] Evidences of the Etruscan element are so marked, that Niebühr,
in his first edition, asserted the Etruscan origin of the
city. He subsequently, however, came to the conclusion that
"there was so much in the Roman state that was peculiar to
Rome and Latium, as to be incompatible with the supposition of
Rome being an Etruscan colony."--_Appendix to Travers Twiss'
Epitome of Niebühr._
[294] A federal union existed between the Roman people and the
Latins in the reign of Servius Tullius (Niebühr, i. ch. xxv.)
"The old Latin towns had retained their ancient rights, and
the colonies, that together with them formed the Latin nation,
had all received the _full freedom_ of Rome, and had become
_municipia_ a full century before the Consul Junius Norbanus
introduced the franchise of the Latin freedmen.... The towns
on the north of the Po, inhabited by a mixed population of
Italians and Celts speaking Latin,... were termed the 'Lesser
Latium.'... A law which regarded Latin citizens as foreigners,
and applied to them the principle that the child follows the
condition of the baser parent, _can only have_ related to this
inferior Latium." (Niebühr, ii. ch. vi.)
Again, the Roman family and tribal system, with their principle of
agnatic relationship, was in all probability part of their organisation
for war: it was the secret of their strength. Grant that they shrank
from applying the principles of their domestic law, which in their
application would have involved in time an organisation in conformity
with it, we can at once see why they withheld the principles of
their jurisprudence without withholding it in mere scorn of an alien
nationality.
We rather see influences which would have predisposed them to look with
reverence on the laws and customs of a people among whom they must
have known that they had sprung, even if there had been no tradition
of a law common to all nations "of the lost code of nature," a notion
which the edicts of the prætors of the later period would hardly have
generated if it had had no foundation in tradition.
If you change the _venue_ to Etruria, the same arguments will apply.
In proof, I quote the following passage from a competent, if somewhat
antiquated (1837) authority--(Pastoret, "Hist. de la Legislation," xi.
355)--more especially as it mentions a circumstance to which I do not
remember that Sir H. Maine adverts, and which would make it a matter
of some difficulty for the prætors to introduce laws and principles of
their own making: "Peu amis de la guerre, Ancus Martius voulut du moins
ajouter à l'art de la faire quelques formalités _pour la declarer;
elles étoint d'usage avant lui_ chez des _peuples voisins_; ce sont les
lois féciales, lois que nous avons déjà fait connoître (c. iii. 286).
L'adoption des lois étrusques par les Romains reçoit une force nouvelle
d'un fait conservé par Dénys et Halicarnasse (Liv. ii. § 27); c'est que
_après_ l'abolition de la monarchie on exposa dans la place publique de
Rome _à la vue de tous les citoyens_ toutes _les lois et coutûmes_ de
la patrie, avec les lois étrangeres nouvellement _introduites, afin_
que le droit publie ne changeât pas en même temps que les pouvoirs du
magistrat."
Sir H. Maine says, at p. 151, "The prætors early laid hold on
_cognation_ as the _natural_ form of kinship, and spared no pains
in purifying their system from the older conception [_i.e._ older
according to Roman law]. Their ideas have descended to us, but still
traces of agnation are to be seen in many of the modern rules of
succession after death."
The reader will find (from p. 146 to 160)[295] in Sir H. Maine the
distinction between cognation and agnation very completely and lucidly
stated. I may say roughly, however, that cognation is the form of
relationship which we acknowledge and which is familiar to us,
descending in graduated degrees, including males and females alike,
from common ancestors. Agnatic relationship is rigidly confined to
the male lines, excluding the connections and descendants of females,
upon the maxim, _Mulier est finis familiæ_, though including unmarried
females on the side of the father.
[295] _Vide_ also De Fresquet, "Droit Romain," ii. 25-29.
Now, I venture to think that the argument which may be drawn from the
passage which I have quoted ought not lightly to be dismissed as a mere
_argumentum ad hominem_.
Sir H. Maine says that the prætors early laid hold on cognation as the
_natural_ form of kinship. Either, then, they did this really detecting
this principle as inhering in the natural law which was in tradition,
or as detecting it as the "law common to all the nations known to the
Romans." In the latter case, it shows that, whereas cognation was
common among the surrounding nations, agnation obtained among the
Romans. The latter was therefore their peculiar institution, which
sustains the argument which I have just put. If, on the contrary, they
detected cognation underlying the institutions of all nations, and as
part of their traditional law of nature, we cannot wish for a better
and clearer instance of the natural law cropping up. And it is an
instance, too, of the advantage at which those argue who have on their
side the authority of Scripture, indicating the landmarks. Knowing
that mankind sprang from a single pair, we can see that cognation must
have been the law from the commencement: for it stands to reason that
commencing with common ancestors the normal and natural mode would be
to include all the relations according to degrees of descent, until
there was some object in excluding them. With some political necessity
or expediency for the limitation to males and the exclusion of females
would agnation have commenced. If we require a case in point we
have it in the relationship of Laban to Jacob. According to agnatic
relationship they were second cousins, but according to cognatic
relationship Laban was his maternal uncle, and such accordingly he is
called in the sacred text (Gen. xxviii. 2). But in the seventh century
before Christ, in the thickness of Paganism, men would scarcely have
come to this conclusion, since they had apparently lost, as far as we
know, the knowledge of their origin; although, as we have already seen,
they retained dimly the tradition of many things of which they had
forgotten the specific history. From the information we derive from Sir
H. Maine, the memory of cognation, as the earliest and most natural
scheme of kinship, must somehow have subsisted in tradition. It was not
certainly in their power to verify the truth of the tradition as we can
by a reference to revelation, and yet it would seem as if, having come
to this conclusion, that it was almost within the grasp of human reason
to have inferred from it the origin from a single pair, and thus to
have recovered the knowledge they had lost from the tradition they had
preserved.[296]
[296] "The above table shows that before the separation of the
Aryan race, every one of the degrees of affinity had received
expression and sanction in language, for, although some spaces
had to be left empty, the coincidences, such as they are, are
sufficient to warrant one general conclusion."--_Vide_ table,
Max Müller's Essays, ii. p. 31.
Of course, I am speaking only of the actual affinity, not of
laws of succession founded upon it. These must be controlled
by other considerations, and by other natural rights, as,
for instance, the right of testation or by reasons of State
requiring hereditary succession and a Salic law, or by reasons
of family compelling the agnatic rule as the only mode of
preserving the ancestral domain to the family--a necessity
which applies as stringently to small freeholds as to broad
manors.
In illustration, I quote the following passage from the
Rev. W. Smith's "Pentateuch" (above referred to, ch. xiii.,
"Indirect internal evidence of Mosaic authorship," vol. i.
307)--"As the journey (Exodus) proceeds so laws originate
from the accidents of the way.... The laws regulating the
succession to property furnish an example of the same kind.
In Numbers xxvi. 32-36 it is ordained in accordance with
patriarchal usage, that the family inheritance descend by the
male line. But a case immediately turns up where there happens
to be no male issue. Zelophahad had left no sons, but only
daughters, and what was to become of the property? How was the
succession to be regulated? To meet the case, Jehovah orders
Moses to proclaim the law of Numbers xxvii. 8-11, in virtue of
which daughters, in failure of sons, are to succeed. Shortly
after, a new difficulty arises. As heiresses, the daughters
of Zelophahad were now to have property of their own. But if
they married out of their tribe, was the property to go with
them? (Num. xxxvi. 1-9.) Such a condition would at once have
upset the fundamental laws of inheritance. Hence, to avoid the
evil, they are enjoined to marry within their own tribe; and a
general law to the same effect is promulgated" (xxxvi. 8, 9).
A few points in Sir H. Maine's argument (_supra,_ p. 352) remain
to be noticed. I must take exception, for instance, to his averment
"that what we respect and admire," viz. "principles so universal,"
the Roman "regarded with jealous dread." "The parts of jurisprudence
which he looked upon with affection, and the solemn gestures, &c.,
were the parts which a modern theorist leaves out of consideration,"
for he seems to have recognised their justice, and allowed them to
operate so effectually that his whole system of jurisprudence, which
was originally based on agnatic kinship, came round to the principle
of cognation.[297] In the process, and through the action so skilfully
evolved and unfolded in Sir H. Maine's pages, two principles, equally
to our mind, were brought into gradual recollection, viz. the comity
of nations and equality before the law. The "solemn gestures," "the
nicely-adjusted questions and answers of the verbal contract," "the
endless formalities," are at least in evidence of the tradition.
[297] "We should know almost nothing about it (agnation) if we
had only the compilations of Justinian to consult; but the
discovery of the MS. of Gaius discloses it to us at a most
interesting epoch, just when it had fallen into complete
discredit, and was verging on extinction."--_Ancient Law_, p.
153.
And this suggests a reflection upon the basis of Sir H. Maine's
argument, viz. that the Romans could only draw their induction from
"the customs of the old Italian tribes, as these were all the nations
whom the Romans had the means of observing." Now, if we attach the
weight which is due to Dr Newman's remarkable view (_vide supra_) as to
the course and confines of civilisation, we shall be, I think, struck
with the fact that the two nationalities of Greece and Rome, which were
destined to form its heart and centre, had as their common substratum
a very peculiar people, whose characteristics exactly adapted them to
retain traditions, and to carry out the scriptural saying about the
people, "And they shall maintain the state of the world"--a people who
were the first occupiers of the soil of Greece and Italy, and who, if
not directly and historically, can through philology be traced back
to the most primitive times;[298] a people tenacious of customs and
traditions,[299] who were the guardians of the worship and tradition
of the Dodonæan Jupiter,[300] and in possession of his shrine when
the worship of Jupiter was only the thinly-disguised corruption of
the worship of the true God;[301] a people to whom, according to Mr
Gladstone, the Greek religion owed its sacerdotal and ceremonial
development,[302] and who also inclines to the opinion, which has a
more especial significance, and bearing on the present argument, that
the Amphictyonic Council was a Pelasgian institution.
[298] Gladstone's Homer, i. 305-372.
[299] _Id._ i. 106-108.
[300] "The Greek mythology was derived from the Pelasgians, and the
oracle of Dodona belonged to them."--_Niebühr, Hist._ i. 28.
"The Pelasgians were a different nation from the Hellenes:
their language was peculiar, and not Greek.... The Pelasgians,
as well as the Hellenes, were members of the Amphictyonic
association, the main tie of which was religion, in which
both nations agreed."--_Niebühr, Hist._ i. (_Travers Twiss'
Epitome_, ch. iii.)
"The royal laws became odious or obsolete, the mysterious
deposit was silently preserved by the priests and the nobles,
and at the end of sixty years the citizens of Rome still
complained that they were ruled by the arbitrary sentence of
the magistrate; yet the positive institutions of the kings
had blended themselves with the public and private manners of
the city; some fragments of that venerable jurisprudence were
compiled by the diligence of antiquarians, and above twenty
texts still speak the rudeness of the Pelasgic idiom of the
Latins."--_Gibbon's Decline and Fall_, vol. viii. ch. xiv.
[301] Gladstone, ii. 173, &c.; Strabo.
[302] _Id._ i. 294.
Now, let us consider this special significance of the Amphictyonic
Council. On the one hand, it is attributed to Amphictyon, the son of
Deucalion; on the other hand (as I shall presently show), we see the
almost identical institution in Italy in contact with Roman law. What,
then, was the Amphictyonic Council? Those who have written upon it
appear to me to have endeavoured to regard it too much as a federation.
Hence a double error. On the one side it was found that, instead of
being a federation of all Greece, at most it was only a federation of
twelve cities; it was further found that it had no external action,
and that on occasions, as, _e.g._ the Persian war, in which the whole
nation of Greece acted as one people, it made no appearance.[303] A
feeling of disappointment necessarily supervened, and it was asked,
if not a federation, what was it? On the other hand, although not a
federation for the purposes of government or war, it would be an equal
error to deny that it was a federation for certain purposes, more
or less invisible to the eye, and which for such purposes retained
sufficient vitality to assemble deputies twice a year, and during
several centuries, for it is certain that it subsisted to the close
of Grecian history, when, indeed, we are astonished to find that when
faith in everything else had died out, belief in the Amphictyons again
flickers into life. It is true that we know little, but the little
that has transpired implies so much more. Were it not for a casual
passage in a speech of Æschines, we should hardly have known more than
of their existence. As it is, we are thrown back upon conjecture,
and upon what we can recover indirectly from tradition. Now, if we
suppose the Amphictyonic Council to have tradited down, and to have
been a federation for the purposes of traditing down from primitive
times, even in their rudimentary form, the rules and principles of the
laws of nations, much that is strange and mysterious in its history
will disappear.[304] It will at once account for its duration and
prestige, in spite of its inactivity and merely passive existence,
even supposing that it is reduced in our estimation to a sort of
convocation, powerless for action, and merely keeping alive a tradition
of the past. From this point of view, the fact of its merely being a
federation of twelve States, which is generally adduced to reduce it
to unimportance, taken in connection with another fact which I shall
presently substantiate, really militates in favour of my argument. It
shows that instead of being the one typical institution of the sort,
it is only the one which stands out most prominently in history, and
merely handed down a tradition which was common to many others. I have
already alluded to the Latin league, through which, apparently, the
Romans recovered their tradition of the law common to all nations.
If all these isolated federations retained their tradition of a law
common to all nations--although practically limited to the members of
their own confederation--is it not at once in evidence of the action
of the Dispersion and at the same time of a tradition anterior to the
disruption? Without pretending to have gone over the ground necessary
to present an exhaustive catalogue of such federations, I may present
the following facts in evidence and illustration.
[303] _Vide_, Pastoret, "Hist. de la Legislation," v. 21.
[304] "The oath taken by the deputies bound the Amphictyons not to
destroy any of the Amphictyonic cities, or to debar them from
the use of their fountains in peace or war; to make war on any
who should transgress in these particulars ... or who should
plunder the property of the god (the Delphine Apollo).... This
is the oldest form of the Amphictyonic oath which has been
recorded, and is expressly called by Æskines the ancient oath
of the Amphictyons."--_Cyclop. of Arts and Sciences._
Outside the Amphictyonic union there were other federations, even
within the confines of Greece itself:--
"Qui avoient le même caractère, et peut-étre un caractère plus
intime d'association entre des etats voisins, pour honorer
ensemble des dieux, ou pour se prêter, dans certains cas, un appui
necessaire. Il s'en reunissoit une non loin de Trezime ou Argolide,
une autre à Corinthe, une autre à Onchiste en Beotie; on en trouve
de semblables encore dans plusieurs îles de la Grece, et dans les
colonies de l'Asie Mineure.[305] Ces associations, au reste, ne
seconderent pas moins la civilisation generale que n'auroit pu le
faire un Amphictyonat universel."--_Pastoret, Hist. de la Legis._,
v. 27.
[305] The Ionian federation, composed also of twelve cities, was
almost identical. "L'association s'etoit formée d'abord entre
les douze cités, en y comprenant les deux îles voisines de
Samos et de Chio.... On s'assembloit dans un lieu sacré du
Mont Mycale, que les Ionians avoient dediés en commun _à
Neptune_."--_Pastoret_, ix. 170. There was also a confederacy
of seven states, which met in the _temple of Neptune_, in
the island of Calauria, "and which is even called by Strabo,
viii. 374, an Amphictyonic Council."--_Cyclop. of Arts and
Sciences_, art. Amphic. Council.
We find the same federations when we come to Italy:--
"Among the other works of Servius Tullius was a temple of
Diana, which he erected on the Aventine, apparently near the
present church of Sta. Prisca. This temple, in imitation of the
Amphictyonic confederacy, was to be the common sanctuary and place
of meeting for the cities belonging to the Latin league, of which
Rome had become the chief through the conquest of Alba Longa; and
her supremacy was tacitly acknowledged by the temple being erected
with money contributed by the Latin cities. It is said to have been
an imitation of the Artemisium, or temple of Diana at Ephesus.
(Liv. i. 45; Dionys. iv. 26; Varro, L. L. v. § 43; Val. Max., vii.
3, § 1.) The brazen column containing the terms of the league, and
the names of the cities belonging to it, was preserved in the time
of Dionysius."--Dyer's _Hist. of City of Rome_, p. 51.
Compare this with Niebühr, Hist. ii. chap. ii. (Travers Twiss'
"Epitome.")
"So long as Latium had a dictator, none but he could offer
sacrifice on the Alban mount, and preside at the Latin holidays,
as the Alban dictator had done before. He sacrificed on behalf of
the Romans likewise, as they did in the temple of Diana on the
Aventine for themselves and the Latins.... The opinion that the
last Tarquinius or his father constituted the festival is quite
erroneous, as its antiquity is proved to have been far higher. It
is true that Tarquinius converted it into a Roman festival, and
probably, too, by throwing it open to a larger body, transformed
the national worship of the Latins into the means of hallowing
and cementing the union between the states. The three allied
republics had each its own place of meeting--at Rome, at the
spring of Ferentina, and at Anagnia, where the concilium of the
Hernican tribes was held in the circus; that the sittings of the
diets were connected with the Latin festival, seems to be evinced
by the usage, that the consuls never took the field till after it
was solemnised; and by its variableness, which implies that it was
regulated by special proclamation. Like the Greek festivals it
ensured a _sacred truce_."
In these extracts we come upon a federation resembling the Amphictyonic
league, whose union is also cemented at a religious festival, the
origin of which must be sought for in remote antiquity, and which
festival has a direct connection with questions of peace and war. We
also catch glimpses of similar federation among the Hernici and Marsi.
Now, let us go to quite an opposite point; and, if we find the same
stratification cropping up, may we not conjecture it to have been once
the same throughout.
"When the Europeans made their first settlements in America,
six such nations had formed a league, had their Amphictyons or
states-general, and by the firmness of their union, and the ability
of their councils, had obtained an ascendant from the mouth of
the St Lawrence to that of the Mississippi. They appeared to
understand the objects of the confederacy as well as those of
separate nations; they studied a balance of power.... They had
their alliances and treaties, which, like the nations of Europe,
they maintained or they broke upon reasons of state, and remained
at peace from a sense of necessity or expediency, and went to war
upon any emergency of provocation or jealousy."[306]
[306] Adam Fergusson, "Essay on Civil Society," 130. Whatever the
conduct of the Iroquois or Five Nations (sometimes counted as
six) may have been towards surrounding nations, the fidelity
with which they held to their compacts among themselves is
fully acknowledged.
Colden ("History of the Five Indian Nations") says, "This
union has continued so long that the Christians know nothing
of the original of it.... Each of these nations is an absolute
republick by itself, and every castle in each nation makes an
independent republick and is governed by its own 'Sachems' or
old men.... They have certain customs which they observe in
their publick transactions with other nations, and in their
private affairs among themselves; which it is scandalous for
any one among them not to observe, and these always draw after
them either publick or private resentment whenever they are
broke."
In Plato's Republic, "It is laid down that the Greeks are
natural enemies of the barbarians, but are natural friends and
_allies of one another, so that all hostilities between Greek
states_ are to be avoided--are to be conducted on principles
of mildness and forbearance, and to be considered as civil
discord rather than foreign war." "The ten kings of the
Atlantic island were never to make war on each other--there
was a sort of Congress between them." Critias, chap. 15. Sir
G. C. Lewis, "Method," &c., ii. 234. This, taken in connection
with what we know of the Amphictyonic Council, reads more like
tradition than fiction.
In Mexico also there was "that remarkable league, which indeed has no
parallel in history (?) It was agreed between the States of Mexico,
Tezcuco, and the neighbouring little kingdom of Tlascopan, that
they should mutually support each other in their wars, offensive
and defensive, and that in the distribution of the spoil one-fifth
should be assigned to Tlascopan, and the remainder be divided--in what
proportions is uncertain--between the two other powers.... What is
more extraordinary than the treaty itself, however, is the fidelity
with which it was maintained."--_Prescott's Mexico_, i. p. 17. And in
the republic of Tlascala, it is said (_id._ i. 378) "after the lapse
of years, the institutions of the nation underwent an important change
[they had previously separated into three divisions, of which Tlascala
was the largest]. The monarchy was divided, first into two, afterwards
into four separate states, bound together by a sort of federal compact,
probably not very nicely defined. Each state, however, had its lord
or superior chief, independent in his own territories, and possessed
of co-ordinate authority with the others in all matters concerning
the whole republic. The affairs of government, especially _all those
relating to peace and war_, were _settled_ in a _senate_ or _council_,
consisting of the four lords, with their inferior nobles." The
Tlascalans subsequently incorporated the Othonius, or Otomius (p. 378).
Here, as in the Greek and Latin Leagues, the primary objects of
the law of nations seem to have been secured within the limits of
their confederation, or of what they would have deemed the pale of
civilization. The requirements of their horrible worship (_i.e._ the
necessity of procuring human victims for their sacrifices) seems,
however, to have overridden every other consideration, and to have
impelled them to frequent wars with the nations outside the pale. In
the case of the Tlascalans, the traditional lines seem more clearly
defined. I have already hinted, in a note, with reference to the
Greek and Latin Leagues that the Atlantis of Plato was, as indeed it
professes to be, an embodiment of tradition, and not, as it is commonly
regarded, as a figment of the imagination; but this strikes me still
more forcibly when the League of the Ten Kings in the Atlantis is
compared with the League of the Tlascalans.
Plato says: "The particulars respecting the governors were instituted
from the beginning as follows. Each of the ten kings possessed absolute
authority, both over the men and the _greater part_ of the laws in
his own division and in his own city, punishing and putting to death
whomsoever he pleased. But the government and communion of these kings
with each other were conformable to the _mandates given by Neptune_;
and this was likewise the case with their laws. These mandates were
delivered to them by their ancestors on a pillar of orichalcum,
which was erected about the middle of the island, _in the temple of
Neptune._ These kings, therefore, assembled together every fifth,
and alternately, every sixth year, for the purpose of distributing
an equal part both of the even and the odd; and when they assembled
they deliberated on the public affairs, inquired if any one had acted
improperly ... a sacrifice of _bulls_ was made in the temple of
Neptune, at the foot of the pillar of orichalcum.... But on the pillar,
besides the laws, there was an oath, supplicating mighty imprecations
against those who were disobedient.... There were also many _other
laws_ respecting _sacred_ concerns, and such as were peculiar to
the several kings; but _the greatest_ were the following: that they
should _never wage war against each other_, and that all of them
should give assistance if any one person in some one of their cities
should endeavour to extirpate the royal race. And as they consulted in
common respecting war, and other actions, in the same manner as their
ancestors, they assigned the empire to the Atlantis family."--_Plato's
Works_, Sydenham and Taylor's tr., ii. 589.
I think it will then be conceded, that whether or not there was a
tradition "of a law common to all nations," there were at any rate
channels provided, well adapted to conduct and disseminate it, and
that these channels everywhere converge upon the most primitive
times. Before proceeding to ascertain whether anything has in fact
been transmitted, I must draw attention more particularly to the
circumstance that the tradition of all law is everywhere closely
connected with the traditions of religion, has been handed down in
a similar manner; and, so far as it retains the purity of primitive
truth, under the same sanction. From this point of view the following
passages from Cicero appears to me to be very significant:
"Hanc igitur video sapientissimorum fuisse sententiam legem
neque hominum ingeniis excogitatum, neque scitum aliquod esse
populorum, _sed æternum quiddam_ quod universum mundum regerat
imperandi, prohibendique sapientiâ.... Quæ non tum denique incipit
lex esse, cum scriptum est, sed tum cum orta est; orta autem simul
est cum mente divina." "Jam ritus familiæ patrumque servari, id
est _quoniam antiquitas proxima accedit ad Deos_, a Deis quasi
_traditam_, religionem tueri."--_Cicero de Legibus_, ii. 4, 11.
There is another curious passage which seems to prove that the
oracles originally existed simply for the preservation of the
primitive tradition; and, although mixed up with imposture, that
they seem to have had the knowledge, or at least the instinct, that
their prestige and power of influence was within the limits of the
traditions which they had corrupted or preserved.[307]
[307] The general assemblies of Greece were held at Delos, "Comme
Métropole du Culte," Pastoret ix. 13. "Ce qu'il y a d'assuré,
c'est que le Pontife exerçoit sur plusieurs objets une
véritable administration de la justice. La décision n'en
appartenoit qu' à lui. Les règles qu'il devoit suivre, le
caractère et l'étendue de ses droits, étoient pareillement
établis dans le recueil connu sous le nom de Jus Pontificum
(Macrobe parle deux fois de ce Jus Pontificum, mais comme d'un
ouvrage perdu. Saturn, vii. chap. xiii.) Un fils du pontife
romain Publius Scævola est même cité dans le livre des Lois
comme prétendant qu'on ne pouvoit exercer un si haut ministère
sans savoir le _droit civil_. Quoi, tout entier? dit Cicéron,
qui le refute; et qui font au pontife le droit des mers, le
droit des eaux, ou d'autres droits semblables?"--Pastoret ix.
203. "Torts, then, are copiously enlarged upon in primitive
jurisprudence. It must be added that _Sins_ are known to it
also. Of the Teutonic codes it is almost unnecessary to make
this assertion.... But it is also true that non-Christian
bodies of archaic law entail penal consequences on certain
classes of acts and on certain classes of omissions, as being
_violations of divine prescriptions and commands_. The law
administered at Athens by the senate of the Areopagus was
probably a _special religious code_; and at Rome, apparently
from a _very early period_, the Pontifical jurisprudence
punished adultery, sacrilege, and perhaps murder. There were,
therefore, in the Athenian and in the Roman states laws
punishing _sins_."--Sir H. Maine, pp. 371, 372.
The expression unwritten laws ([Greek: agraphoi nomoi])
first occurs in the funeral oration of Pericles (Thuc. ii.
37), when it appears to denote those laws of the state which
are corroborated by the moral sanction. It next occurs....
Xenophon, Mem. iv. 4, § 19, 25, ... the expression was
doubtless adopted by Socrates from popular usage. Thus Plato
speaks of [Greek: ta kaloumena hypo tôn pollôn agrapha nomima]
(Leg. vii. 793). _Vide_ Sir G. C. Lewis, "Method of Rea. in
Pol.," ii. 27. [The "laws called unwritten by the multitude"
must evidently imply laws known to the multitude but in
tradition.]
Cicero, "De Natura Deorum," iii., says, "Habes, Balba, quid
Cotta, quid _pontifex_ sentiat. Fac nunc, ego intelligam,
quid tu sentias: a te enim philosopho rationem accipere debes
religionis; _majoribus autem nostris etiam nulla ratione
reddita credere_." "Lex est cui homines obtemperare convenit,
cum ob alia multa, tum ab eo maxime quod lex omnis inventus
quidem, ac _dei munus est_." "Lex est sanctio sancta, jubens
_honesta_, prohibens contraria."
"Deinceps in lege est, _ut de ritibus patriis_ coluntur optimi,
de quo cum consulerent Athenienses Apollinem Pythium, quas
potissimum religiones tenerent, oraculum editum est _eas quæ essent
in more majorum_. Quo cum iterum venissent, majorumque morem
dixissent, sæpe esse mutatum, quæsivissentque quem morem potissimum
sequerentur, e variis respondit, optimum. Et perfecto ita est
ut id habendum sit antiquissimum et a _Deo proximum_ quod sit
optimum."[308]--_Cicero de Legibus,_ ii. 16.
[308] This last sentence is only a gloss of Cicero's from the
stoical point of view, since clearly the enunciation of the
oracle would compel the conclusion, that what was most ancient
and nearest the gods was the best, and not that the best, as
abstractly conceived, was to be held the most ancient, &c.
A moment's consideration will suffice to show that in this
substitution is involved the whole extent of the difference
between the principle of conservation and the principle of
change.
"Demosthène qui avait en faire tant de mauvaises lois,
prononçait que" toutes les lois sont l'ouvrage et le présent
des dieux "et c'était à ce titre qu'il réclamit pour
elles l'obéissance des hommes. Socrate professait la même
doctrine."--Ozanam, "Les Germains avant le Christianisme," i.,
159. Again, "Quand on étudie les lois indiennes on y voit tout
un grand peuple enchaîné par la terreur des dieux. Le livre de
la loi s'annonce comme une revelation.... Les prescriptions du
droit sacré enveloppent pour ainsi dire toute la vie civile,
et c'est là qu'on decouvre enfin la raison de tant de coutumes
dont les Occidentaux avaient conservé la lettre, mais non
l'esprit."--_Id._ p. 161. "If the customs and institutions of
barbarians have one characteristic more striking than another,
it is their _extreme uniformity_" (Maine's "Ancient Law," p.
366). "There are in nature certain fountains of justice whence
all civil laws are derived but as streams; and like as waters
do take tinctures and tastes from the soils through which
they run, so do civil laws vary according to the regions and
governments where they are planted, though they proceed from
the same fountains." (Bacon, "Advancement of Learning," B. ii.
W. iii. 475, ap.; D. Rowland, "On the Moral Commandments," p.
85.)
But this sentiment and tradition was not only common to the people of
Greece and Rome, but to the yet uncivilised tribes of Germany.
"Or les dispositions, où la coutume barbare et la loi romaine
s'accordent, sont encore celles qui semblent faire le fond des
législations grèques: non que les douze tables aient été copiées,
comme on l'a cru, sur les lois de Solon, mais à cause de l'étroite
parenté des peuples de la Grèce et du Latium. A travers l'obscurité
des siècles héroïques, on découvre un sacerdoce puissant qui a
ses premiers établissements en Thrace, en Samothrace, à Dodone,
et qui perpétuera son autorité par l'institution des mystères. On
voit aussi la resistance d'une race belliqueuse."--_Ozanam_, "Les
Germains avant le Christianisme,"_ vol. i. chap. "Les Lois."
"Au premier abord rien ne semble plus contraire aux moeurs
barbares que la loi romaine, si subtile, si précise, si bien
obéie. Cependant si l'on en considère les origines, on n'y trouve
pas d'autres principes que ceux dont la trace subsistait dans les
vieilles coutumes de la Germanie. Le droit primitif du Rome, comme
celui du Nord, est un droit sacré."--_Ib._ p. 148.
"Il existait chez les Germains une autorité religieuse,
_dépositaire de la tradition_, et qui y trouvait l'idéal et le
principe de tout l'ordre civil. Cette autorité avait créé la
propriété immobilière en la rendant respectable par des rites et
des symboles, ... elle l'engageait dans les liens de la famille
légitime, consacrée par la sainteté du mariage, par le culte des
ancêtres, par la solidarité du sang: elle l'enveloppait dans le
corps de la nation sédentaire, ou elle avait établi une hierarchie
de caste et de pouvoir, à l'exemple de la hierarchie divine de la
création" (p. 147). "Dans cette suite de scènes dont se compose
pour ainsi dire le drame judiciaire, on reconnaît un pouvoir
religieux, qui cherche _à sauver la paix, à désarmer la guerre_ et
qui s'y prend de trois façons différentes" (p. 142).
Now, if we are agreed that fitting channels for the diffusion of
the tradition existed; if, further, we find that all law seems to
trace itself back to a common source of supernatural revelation;
if the resemblances in the traditions concerning the lawgivers of
antiquity--and, with the exception of Lycurgus, the agreement in
the fundamentals of their codes--in the great lines of the family,
property, and the external relations of life, seems to require the
supposition of some common fountain-head at which they all filled the
pitcher--we shall, I think, when we come to the question of public
law, only require further some evidence of a tradition of maxims,
rules, and precedents of procedure in war, founded on and appealing
to natural right, and claiming the sanction of the gods, to establish
the existence of a law common to all nations different from that which
would have arisen from the judgment of the prætors, merely applying
the rules and maxims common to the Romans and the adjoining nations,
in case of conflict where the law of the State was not allowed to be
applied (_supra_, Maine).
I shall, doubtless, be reminded that this was only part of Sir H.
Maine's argument, and that it was this, taken in connection with the
influence of the Stoics on Roman law, and the stoical conception of
nature,[309] which created the fiction of a law of nature, and of a law
common to all nations.
[309] "L'erreur a été de croire qu'il n'est rien de plus facile à
l'homme que de suivre la nature, tandis que c'est au contraire
le chef-d'oeuvre de l'art que de la contenir dans les bornes
que la nature lui prescrit: c'est où peuvent à peine parvenir
les legislateurs les plus sages. Que de préjugés à éteindre!
que d'erreurs à combattre! que d'habitudes à vaincre! toutes
choses qui dans tous les temps commandent impérieusement au
genre humain."--_L'Antiquité dévoilée par ses usages_, i. 1.
ii. ch. iii. _par Boulanger_.
Let it then be granted that the theories and maxims of the Stoics had
their influence on Roman society and Roman law. It was only part of
the influence which stole over and everywhere impregnated the field of
primitive tradition. Sir H. Maine shows us how it at once seized upon
the element of law, which, be it in fiction only, was said to be common
to all nations. Would it the less have seized upon it if, instead of
being a fiction, it had been a reality?--_à fortiori_, it would have
done so. Therefore Sir H. Maine leaves the question as to the belief
among the ancients in a "law common to all nations" still open, or
rather, so far as there is an argument, it is only with the previous
part of his theory that it is necessary to deal; for all that Sir H.
Maine's finely-drawn reasoning and subtle detection of the influence
of Grecian stoicism on Roman law accounts for--so far as the present
argument is concerned--is the greater attention and respect which was
henceforward paid to the fiction, supposing that it had not heretofore
and always been paid to the fact, that there was a traditional law
common to all nations.
I have previously (p. 3) pointed out the distinction between the
law of nations and international law, and I am under the impression
that I made the distinction before the publication of Sir H. Maine's
work--certainly before I had become acquainted with it. The manner
in which Sir H. Maine makes the distinction does not appear to me to
be quite accurate. He says:--"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" (p. 53). The Fecial College was very far from corresponding
with our Corps Diplomatique, neither was its law a law of negotiation
and diplomacy; and the distinction between the law of nations and
international law was made in modern times, _precisely because_ in
antiquity treaty law was subordinate to, and identified with, the
traditional law. The Fecial College corresponded much more nearly to
what our Heralds' College would be, supposing the Heralds' College
invested with the authority of our Admiralty Courts, and also made the
trustees of the foundation for the study of international law, which
Dr Whewell's bequest had the intention of instituting at Cambridge.
We should then have, as in ancient times, a body of men who would
be at once the depositaries, the interpreters, and the heralds of
a tradition, though, to complete the picture, we should have to
invest them with a sacred character, and in some way to give to their
decisions the sanction of religion. Dionysius of Halicarnassus tells
us that they were priests chosen from the best families at Rome, and
that their special intention was to see that the Romans never made an
unjust war. "The seventh part of the Sacred Laws was devoted to the
college of the Fecials, whom the Greeks call [Greek: eirênodikai].[310]
They are men selected from the most illustrious families, and are
dedicated during their whole life to this priesthood.... It would
take long to enumerate all the various duties of the Fecials, which
were multifarious, ... but in the main they are these,--to take heed
lest the Romans should ever undertake an unjust war with a city with
which they were in league" (Lib. ii.); it was their duty to demand
reparation, and, failing, to declare war; in case of differences with
allies, they acted as mediators, and they adjudicated in case of
disputes. It was for them to decide what constituted an injury to the
person of an ambassador, and whether or not the generals had acted
according to their oaths; to draw up the articles of treaties, truces,
and the like; and to decide as to their nullity and validity, and to
communicate accordingly with the Senate, which deliberated upon their
report.
[310] [Greek: Eirênodikai]--"Feciales quia _interpretes_ et
_arbitri_ sunt pacis et belli."--_Lexicon_, Ben-Hederic,
Ernesti.
_Vide_ also Plutarch, "Numa;" Livy, lib. i. c. 34.
Vattel, iii. c. iv., says:--"It is _surprising_ to find among
the Romans such justice, such moderation and prudence, _at a
time too_ when apparently nothing but courage and ferocity was
to be expected from them."
What Cicero tells us is not less to the point:--
"There are certain peculiar laws of war also, which are of all
things most strictly to be observed.... As we are bound to be
merciful to those whom we have actually conquered, so should those
also be received into favour who have laid down their arms.... Our
good forefathers were most strictly just as to this particular, the
custom of those times making him the patron of a conquered city or
people who first received them into the faith and allegiance of
the people of Rome. In short, _the whole right and all the duties
of war_ are most rigorously set down in the _fecial laws_, out of
which it is manifest that no war can be justly undertaken _unless
satisfaction has been first demanded_, and _proclamation_ of it
made _publicly beforehand_."--Cicero, _Offices_, i. xi.; again,
also, _vide_ iii. xxxi.
Compare these passages with Mr Gladstone's account of the Homeric age:--
"In that early age, despite the prevalence of piracy, even that
idea of political justice and public right, which is the germ of
the law of nations, was not unknown to the Greeks. It would appear
that war could not be made without an appropriate cause, and that
the offer of redress made it the duty of the injured to come to
terms. Hence the offer of Paris in the third Iliad is at once
readily accepted; and hence, even after the breach of the act,
arises Agamemnon's fear, at the moment when he anticipates the
death of Menelaus, that by that event the claim to the restoration
of Helen will be practically disposed of, and the Greeks will
have to return home without reparation for a wrong, of which
the _corpus_, as it were, will have disappeared."--_Iliad_, iv.
160-62.[311]
[311] Gladstone, "Homer and the Homeric Age," iii. 4.
It is certainly not within the scope of this chapter to indicate the
multiform applications of the law of nations, which it would require a
legist's special knowledge (to which the writer can lay no claim) to
determine with any exactness. My object has been merely to sustain
the traditional belief against those who deny it. I shall indeed, for
the purposes of illustration, go into detail on one point, viz. the
declaration of war; but I may mention incidentally that the Fecial and
Amphictyonic law presumably extended to many other points, such as
treaties, trophies,[312] truces,[313] hostages, and the like. Moreover,
the maritime law of Rhodes and the islands of the Ægean, known to
the Romans long before it was embodied in their code (which was not
probably until they had extended maritime relations), presents, as
Pastoret (ix. 118) informs us, "analogies et rapprochemens multipliés"
with modern maritime legislation from the time of the Romans to the
"ordonnance de la marine" drawn up by order of Louis XIV.
[312] "To demolish a trophy was looked on as unlawful, and a
kind of sacrilege, because they were all dedicated to some
deity; nor was it _less a crime to pay crime_ to pay divine
adoration before them, or to repair them when decayed, as may
be _likewise_ observed of the Roman triumphal arches.... For
the same reason, those Grecians who introduced the custom of
erecting pillars for trophies incurred a severe censure from
the ages they lived in."--_Potters "Archæologia_," ii. c. 12.
"Before the Greeks engaged themselves in war it was usual
to publish a declaration of the injuries they had received,
and to demand satisfaction by ambassadors; which custom was
observed even in _the most early ages_.... It is therefore no
wonder what Polybius relates of the Ætolians, that they were
held for the common _outlaws_ and robbers of Greece, it being
their manner to strike without warning, and make war without
any previous or public declaration."--_Id._ ii. c. vii. p. 64.
(Compare _infra_, ch. xv.)
[313] "Omnes portas concionabundus ipse imperator circumiit, et
quibuscumque irritamentis poterat, iras militum accuebat, nunc
fraudem hostium incusans, qui, pace petita, induciis datis,
per ipsum induciarum tempus, _contra jus gentium_ ad castra
oppugnando venisset."--_P. Livius_, 1. xc.
In an article on "Belligerent Rights at Sea" (in the _Home and Foreign
Review_, July 1863), in which there will be found a nice discrimination
of these questions, Mr E. Ryley says:--
"The very largest rule of belligerent rights limits the voluntary
destruction of life and property by the necessity of the occasion
and the object of the war. Bynkershock and Wolf insist that
everything done against the enemy is lawful, and admit fraud,
poison, and the murder, as we should call it, of non-combatants,
as permissible expedients for attaining the object of the war. But
these are the writers who lay the foundations of the law of nations
in reason and custom, and ignore that perception and judgment of
right and wrong which God has communicated to man. It is true that
for the most part, and practically, we know the law of nations by
reason and usage; but this law is founded not on that by which we
know its decisions, but on justice; and reason must admit, and
usage must adopt, whatever is clearly shown to be just and right,
however this may be against precedent, and what has hitherto been
held to be sound reason. There is no law without justice, nor any
justice without conscience, nor any conscience without God. Grotius
thus admirably expresses himself:--'Jus naturale est dictatum
rectæ rationis, indicans actui aliqui, ex ejus convenientiâ
aut disconvenientiâ cum ipsa naturâ rationali, inesse moralem
turpitudinem, aut necessitatem moralem, _ac consequenter ab auctore
naturæ, Deo, talem actum vetari aut præcipi_. Actus, de quibus tale
extat dictatum, _debiti sunt aut illiciti per se, atque ideo a
Deo necessario præcepti aut vetiti intelliguntur_.'[314] And this
principle obtains greater force from the objections which have
been made to it, and the efforts to establish another foundation
for the law of nations. Thus the principle of utility is only a
feeble attempt to give another name to the law of justice which
God has implanted in His creatures; and to pretend to found a law
on general usage and tacit consent is to mistake the evidence of
justice for justice itself."
[314] "De Jure Belli ac Pacis," l. i. c. l. § x. n n, 1 et 2.
At first sight the passage quoted from Mr Ryley's article would
seem to militate against my position; in reality we merely take up
different weapons against Bynkershock and Wolf. If custom means merely
precedent, it may or may not be in accordance with "that perception of
right and wrong which God has communicated to man;" but if there is a
tradition of a law of nations, the fact creates so great a presumption
in favour of its pronouncements, that what is of usage and custom
will be the criterion of what is right until the human intellect has
shown that what has hitherto been held to be permissible was founded
in a precedent of iniquity. On the other hand, we are agreed that the
law of nations must be such as to stand the test of the "perception
and judgment of right and wrong." As this perception, however, has
never wholly died out among mankind, whatever is of general acceptance
carries with it an assurance that it has stood this test; and "general
usage and the tacit consent" is so much "the evidence of justice," that
it has practically been taken, or mistaken by mankind "for justice
itself," and the law of nations has always been discussed on the basis
of usage. This, I contend, would not have been the case if there had
not been behind usage the immemorial sanction and tradition, or if
the tacit consent had been only acquiescence in wrong. I am the more
confirmed in this view on perceiving that Mr Ryley, after stating his
own opinion as to the right of blockade, finds his conclusions, when
he has discriminated such precedents as were of an exceptional and
retaliatory character, to be in conformity with usage and the decision
of legists.
From this point of view those who contend for the basis of tradition
and those who contend for the basis of natural justice mean the same
thing. They both affirm that there are limitations to human passion
even in war. They are both opposed to precedents based on force, and
are equally hostile to "the principle of utility," for if, as Mr Ryley
puts it, "the principle of utility" is only "another name for the law
of justice which God has implanted in His creatures," the phrase is
an understatement of the truth, liable to misconstruction, and tends
to lower the standard of right; and if it means something different
or distinct from this, it means that against which the tradition of
mankind protests.
I have already said that international law, as distinguished from
the law of nations, requires to be constantly discriminated by the
intellect or the conscience of mankind, and more especially now that
diplomatists are no longer legists.
There was a certain indirect and collateral influence arising out of
the tradition of a law of nations from the fact that a body of men
existing as its interpreters, or at least as its depositaries, which
it appears to me was destined to operate powerfully in the interests
of peace. The existence of such a body of men perpetuated a public
opinion in these matters, they fostered an _esprit de corps_ stronger
even than the spirit of nationality which then reigned supreme and
dominated society. When a violation of treaties or an unjust aggression
took place there was thus found a body of men who would stigmatise or
at least recognise it as such. The sentiment thus sustained was not
all-influential for the purposes of peace, but it was operative to
the extent of arresting the attention and perturbing the consciences
of mankind. In like manner I venture to say that the diplomatic body,
although the depositaries only of a bastard tradition, subserve
this purpose also after a fashion, and I much doubt whether many
well-intentioned men, in striving to compass its abolition would not,
as matters stand, destroy the last breakwater which secures the peace
of Europe.
In ancient times the comity of nations was virtually restricted to
groups of cities or nations of kindred descent, or which had become
confederate by reason of contiguity. This circumstance has been
adduced by Sir G. C. Lewis to stop _in limine_ the theory of a law of
nations;[315] as if it was necessarily in denial of a tradition of
morality common to all nations. Yet, I think that I shall be able to
show instances of its recognition as between the groups, but it is
precisely in its restricted application within the groups, and in the
channels thus provided, that I think we shall find common features, and
dimly and obscurely, though certainly, catch glimpses of the tradition.
[315] Sir G. C. Lewis ("Method, &c., of Reasoning in Politics," ii.
35), quotes Mr Ward, "History of Law of Nations" (i. 127), to
the effect "That what is commonly called the law of nations,
is not the law of _all_ nations, but only of such sets or
classes of them as are united together by similar religions
and systems of morality." Sir G. C. Lewis' view is that "as
there are no universal principles of civil jurisprudence
which belongs to each community, so there are no universal
principles of international law which are common to all
communities."--_Id._
If I may complete my thought, these confederations were so many types
and anticipations of that Amphictyonic Council, which, if things had
not persistently gone wrong in the world, might have been formed in
mediæval times by Christendom under the presidency of the Popes,[316]
and which may yet be realised in the triumph of religion which seems
to be signified in the motto _lumen in coelo_, as attaching to the
successor of the present Pope, whose pontificate has been so singularly
prefigured in the indication _crux de cruce_.[317]
[316] Since writing the above, I have read a series of papers (which
commenced I think in August 1871) in the _Tablet_ under the
title of "Arbitration instead of War," and I perceive that the
writer arrives by a different route at a similar conclusion.
I should have had pleasure in incorporating the argument with
this chapter, but I shall do better if I induce my readers to
peruse and weigh it as it deserves.
[317] I allude to the ancient prophecy of St Malachy. Its
authenticity as the prophecy of St Malachy may be questioned;
but the antiquity of the prediction, and its existence in
print early in the sixteenth century is, I believe, fully
established. The copy which lies before me will be found in
Moreri's Dictionary of 1732, in the Pontificate of Innocent
XIII. Twelve mottoes given _in prediction_ from that date,
fits the motto "_crux de cruce_," to the 12th successor of
Innocent, viz. Pius IX. Ten other mottoes follow commencing
with "lumen in coelo."
In the _Times_, November 29, 1867, it was said, "If this theory ['the
states of Christendom constituted as a species of commonwealth'] could
be rendered effectual, international law would be furnished at once
with its greatest need, a court to enforce its behests; but nothing is
plainer than that for such arbitration _the arbitrators must be fetched
from another planet_."
But, inasmuch as Abraham Lincoln practically remarked, you cannot have
"a cabinet of angels" in this world, the thing is to discover the
arbitrator who is the furthest removed from sublunary influences. Now,
how strong soever may be our national mistrusts and prejudices, we
cannot refuse to recognise that the Papacy ostensibly satisfies these
conditions, and this irrespective of the belief of the preponderant
section of the Christian world that he is the infallible guide, and the
divinely appointed interpreter of the tradition of morals.
Its representatives being always old men naturally inclined to
peace,[318] the sovereign of a small state which a general war would
imperil--professing maxims and therefore pledged to a programme of
peace--(so that any deviation from it, as in the case of Julius II.,
would render glaring and abnormal acts which would have been unnoticed
in an ordinary sovereign), a sovereign without a family (and whatever
may be said of nepotism, it must be conceded that a man who has only
collateral relatives is _less_ tempted to found a family than one
who has sons), a sovereign, in fine, representing the oldest line of
succession in the world,[319] in the oldest city, in the centre of
tradition, and like Noah in the traditional symbols (_ante_, p. 220),
linking the new world with the old.
[318] "The pontifical power is, from its essential constitution, the
least subject to the caprices of politics. He who wields it
is, moreover, always aged, unmarried, and a priest; all which
circumstances exclude ninety-nine hundredths of all the errors
and passions which disturb states."--_De Maistre, Du Pape_, B.
II. chap. iv.
[319] "The history of that Church joins together the two great ages
of human civilisation. No other institution is left standing
which carries the mind back to the times when the smoke of
sacrifice rose from the Pantheon, and when the cameleopards
and tigers bounded in the Flavian amphitheatre. The proudest
royal houses are but of yesterday when compared with the
line of the supreme Pontiffs. That line we trace back in an
unbroken series, from the Pope who crowned Napoleon in the
nineteenth century, to the Pope who crowned Pepin in the
eighth; and far beyond the time of Pepin the august dynasty
extends, till it is lost in the twilight of fable.... The
Catholic Church is still sending forth to the farthest ends of
the world missionaries as zealous as those who landed in Kent
with Augustine, _and still confronting hostile kings with the
same spirit with which she confronted Attila."--Macaulay's
Essays, "Review of Ranke's Popes._"
This, I find (I quote from a series of important papers on "English
statesmen and the independence of Popes," _Tablet_, November 1870),
was fully recognised by our greatest minister, Mr Pitt. In 1794, "Pitt
suggested, through François de Conzié, Bishop of Arras, that the Pope
should put himself at the head of a European league." "On more than
one occasion," he wrote, "I have seen the continental courts draw back
before the divergences of opinion and of religion which separate us. I
think that a common bond ought to unite us all. _The Pope alone can be
this centre._... We are too much divided by personal interests or by
political views. Rome alone can raise an impartial voice, and one free
from all exterior preoccupations. Rome, then, ought to speak according
to the measure of her duties, and not merely of her good wishes, which
no one doubts."
There have been at different periods of the world various projects of
universal pacification;[320] but it is worthy of remark that they have
almost all, from that of Henri IV. to the one recently broached by
the Professor of Modern History at Cambridge, taken the traditional
lines of a confederation of states more or less circumscribed with an
amphictyonic council. This has its significance from the point of view
I am indicating, but I do not see that it is satisfactorily accounted
for on any other view.[321]
[320] Sir G. C. Lewis, "Method, &c.," ii. 285, enumerates several.
[321] In De Quincey's Works, xii. 140, there is a disquisition on
Kant's scheme "of a universal society founded on the empire of
political justice," where it is competent that as the result
of wars man must be inevitably brought "to quit the barbarous
condition of lawless power and to enter into a federal league
of nations, in which even the weakest number looks for its
rights and protection--not to its own power, or its own
adjudication, but to this great confederation (_foedus
amphictyonum_), to the united power, and the adjudication
of the collective will," and is said to be "the inevitable
resource and mode of escape under that pressure of evil which
nations reciprocally inflict," and which seems to contemplate
a situation like the present. "Finally war itself becomes
gradually not only so artificial a process, so uncertain in
its issue, but also is the after-pains of inextinguishable
national debts (a contrivance of modern times) so anxious and
burdensome; ... that at length those governments which have no
immediate participation in the war, under a sense of their own
danger, offer themselves as mediators, though as yet without
any sanction of law, and thus prepare all things from afar for
the formation of a great primary state-body or cosmopolitic
Areopagus, such as is wholly _unprecedented_ in all preceding
ages." I am fully aware of the divergence of this view from
that which I have indicated, but I wish to point out that it
is only "unprecedented" in so far as it is cosmopolitic and
extends to all humanity; but so extending it ought not to
include the traditional notions of an "Areopagus"--_foedus
amphictyonum_--or confederation of states. It ought rather
to talk of an interfusion of states, the only condition upon
which the cosmopolitic Areopagus would be possible; yet it
inevitably falls into the traditionary lines. Moreover, before
mankind can attain to this _inter-fusion_ of states, one
supreme difficulty, which seems always to be over-looked, must
be overcome, we must bring mankind back to be "of one lip and
one speech." The scheme, on the other hand, of a federation
cannot be pronounced impracticable until it has been tried;
yet, although it lies latent in the idea of Christendom, and
although it has had a sort of informal recognition in the
theory and policy of the balance of power, there has never
been any understanding from which we can gather what the
results would be, if the bond of federation were ever cemented
by any solemn pledge or sanction.
It would seem, then, that there has always existed in the world the
tradition, and since the triumph of Christianity, the conditions by
which, if it had so willed, it might have recovered the golden age of
peace and happiness of which it has never entirely lost the tradition.
Until this consummation we must fall back upon the law of nations,[322]
though even here it must be borne in mind that Christianity has
exercised an indirect influence, and has raised the standard of
morality for the world at large.[323] But when all is abated the law
of nations remains the _lex legum_, deeply founded in the maxims,
sentiments, and usages of mankind. These maxims in their tradition have
been concurrently interpreted, adapted, and in a certain sense moulded
by the intellect of legists, whose discriminations or conclusions have
received the tacit approbation of mankind. Rarely has the production
of any profane writer received such an unanimous ratification as the
great work of Hugo Grotius, mainly, as we have seen (_ante_, p. 4),
based on tradition. Again, the agreement and correspondence among
the legists of different nationalities is substantial, and is only
to be accounted for upon the supposition that each in his own groove
faithfully incorporated and elaborated a tradition; and if you say that
this was only an argument among the separate traditions of the Roman
law, you only put back the argument one remove, as I have attempted to
demonstrate. If conversely you say that the law of nations as we find
it is purely the work and elaboration of legists, and the conclusions
of abstract reason, put it to this test, bring all the legists of the
world into a congress--such a congress is much needed just now--with
instructions to create a new code on abstract principles, and upon the
basis of the rejection of what is of custom and tradition, and see what
they will accomplish! Do not all our difficulties begin exactly where,
owing to the complications of modern civilisation, tradition ceases?
For the rest we shall presently see what the Congress of Paris, in
1856, was able to effect in this kind.
[322] "Historicus" (Letter in the _Times_, February 12, 1868)
writes--"The system of international law professes to be a
code of rules which ought to govern, and in fact in a great
degree _does govern_, the conduct of independent nations in
their dealings with one another.... How can one doubt that
in fact such a rule exists and does operate? Let us test the
matter by an example. When the news of the affair of the
_Trent_ reached England, what was the first question that
every one asked? Was it not this, 'Is this act conformable to
the law of nations, or is it not?' Did not the English Cabinet
summon all the most distinguished jurists to advise them
what the law of nations was? Was not the decision absolutely
dependent on their advice.... The code of the law of nations,
based on all other laws, on morality, deduced by the reasoning
of jurists from well established principles, illustrated by
precedents, gathered from usage, confirmed by experience, has
become from age to age more and more respected as the arbiter
of the rights and duties of nations, ... and now, after this
system has been elaborated with so much care, and has yielded
results so beneficial to the human race, we are to be told
that the only real question in differences between nations
is, 'Whether, all things considered, it is or _is not worth
while to go to war_?' not, be it observed, _right_ or _wrong_
to go to war. This is exactly the doctrine set forth in the
celebrated Thelian controversy recorded in Thucydides." W. Oke
Manning, "Commentaries on the Law of Nations" (p. 17), says,
"Sir J. Mackintosh in his 'Hist. of the Progress of Ethical
Philosophy' (prefixed to the 'Encyclopædia Britannica,'
p. 315), speaks of _Suarez_ as the writer who first saw
that international law was composed not only of the simple
principles of justice applied to intercourse between states,
but of those _usages long observed_ in that intercourse by the
European race which have since been more exactly distinguished
as the consuetudinary law acknowledged by the Christian
nations of Europe and America. But Suarez himself speaks of
this distinction as already recognised by previous writers."
[323] "La religion Chrétienne, qui ne semble avoir d'objet que
la félicité de l'autre vie, fait encore notre bonheur dans
celle-ci.... Que d'un côté, l'on se mette devant les yeux les
massacres continuels des rois et des chefs grecs et romains,
... et nous verrons que nous devons au Christianisme, et dans
le gouvernement un certain droit politique, et dans la guerre
un certain droit des gens, que la nature humaine ne saurait
assez reconnaître."--_Montesquieu, "Esprit des Lois_," i. xxiv.
chap. 3.