THE MODERN HISTORY OF THE LAW OF NATURE
It will be inferred from what has been said that the theory which
transformed the Roman jurisprudence had no claim to philosophical
precision. It involved, in fact, one of those "mixed modes of thought"
which are now acknowledged to have characterised all but the highest
minds during the infancy of speculation, and which are far from
undiscoverable even in the mental efforts of our own day. The Law of
Nature confused the Past and the Present. Logically, it implied a
state of Nature which had once been regulated by natural law; yet the
jurisconsults do not speak clearly or confidently of the existence of
such a state, which indeed is little noticed by the ancients except
where it finds a poetical expression in the fancy of a golden age.
Natural law, for all practical purposes, was something belonging to
the present, something entwined with existing institutions, something
which could be distinguished from them by a competent observer. The
test which separated the ordinances of Nature from the gross
ingredients with which they were mingled was a sense of simplicity and
harmony; yet it was not on account of their simplicity and harmony
that these finer elements were primarily respected, but on the score
of their descent from the aboriginal reign of Nature. This confusion
has not been successfully explained away by the modern disciples of
the jurisconsults, and in truth modern speculations on the Law of
Nature betray much more indistinctness of perception and are vitiated
by much more hopeless ambiguity of language than the Roman lawyers can
be justly charged with. There are some writers on the subject who
attempt to evade the fundamental difficulty by contending that the
code of Nature exists in the future and is the goal to which all civil
laws are moving, but this is to reverse the assumptions on which the
old theory rested, or rather perhaps to mix together two inconsistent
theories. The tendency to look not to the past but to the future for
types of perfection was brought into the world by Christianity.
Ancient literature gives few or no hints of a belief that the progress
of society is necessarily from worse to better.
But the importance of this theory to mankind has been very much
greater than its philosophical deficiencies would lead us to expect.
Indeed, it is not easy to say what turn the history of thought, and
therefore, of the human race, would have taken, if the belief in a law
natural had not become universal in the ancient world.
There are two special dangers to which law, and society which is held
together by law, appear to be liable in their infancy. One of them is
that law may be too rapidly developed. This occurred with the codes of
the more progressive Greek communities, which disembarrassed
themselves with astonishing facility from cumbrous forms of procedure
and needless terms of art, and soon ceased to attach any superstitious
value to rigid rules and prescriptions. It was not for the ultimate
advantage of mankind that they did so, though the immediate benefit
conferred on their citizens may have been considerable. One of the
rarest qualities of national character is the capacity for applying
and working out the law, as such, at the cost of constant miscarriages
of abstract justice, without at the same time losing the hope or the
wish that law may be conformed to a higher ideal. The Greek intellect,
with all its nobility and elasticity, was quite unable to confine
itself within the strait waistcoat of a legal formula; and, if we may
judge them by the popular courts of Athens, of whose working we possess
accurate knowledge, the Greek tribunals exhibited the strongest
tendency to confound law and fact. The remains of the Orators and the
forensic commonplaces preserved by Aristotle in his Treatise on
Rhetoric, show that questions of pure law were constantly argued on
every consideration which could possibly influence the mind of the
judges. No durable system of jurisprudence could be produced in this
way. A community which never hesitated to relax rules of written law
whenever they stood in the way of an ideally perfect decision on the
facts of particular cases, would only, if it bequeathed any body of
judicial principles to posterity, bequeath one consisting of the ideas
of right and wrong which happened to be prevalent at the time. Such a
jurisprudence would contain no framework to which the more advanced
conceptions of subsequent ages could be fitted. It would amount at
best to a philosophy marked with the imperfections of the civilisation
under which it grew up.
Few national societies have had their jurisprudence menaced by this
peculiar danger of precocious maturity and untimely disintegration. It
is certainly doubtful whether the Romans were ever seriously
threatened by it, but at any rate they had adequate protection in
their theory of Natural Law. For the Natural Law of the jurisconsults
was distinctly conceived by them as a system which ought gradually to
absorb civil laws, without superseding them so long as they remained
unrepealed. There was no such impression of its sanctity abroad, that
an appeal to it would be likely to overpower the mind of a judge who
was charged with the superintendence of a particular litigation. The
value and serviceableness of the conception arose from its keeping
before the mental vision a type of perfect law, and from its inspiring
the hope of an indefinite approximation to it, at the same time that
it never tempted the practitioner or the citizen to deny the
obligation of existing laws which had not yet been adjusted to the
theory. It is important too to observe that this model system, unlike
many of those which have mocked men's hopes in later days, was not
entirely the product of imagination. It was never thought of as
founded on quite untested principles. The notion was that it underlay
existing law and must be looked for through it. Its functions were in
short remedial, not revolutionary or anarchical. And this,
unfortunately, is the exact point at which the modern view of a Law of
Nature has often ceased to resemble the ancient.
The other liability to which the infancy of society is exposed has
prevented or arrested the progress of far the greater part of mankind.
The rigidity of primitive law, arising chiefly from its early
association and identification with religion, has chained down the
mass of the human race to those views of life and conduct which they
entertained at the time when their usages were first consolidated into
a systematic form. There were one or two races exempted by a
marvellous fate from this calamity, and grafts from these stocks have
fertilised a few modern societies, but it is still true that, over the
larger part of the world, the perfection of law has always been
considered as consisting in adherence to the ground plan supposed to
have been marked out by the original legislator. If intellect has in
such cases been exercised on jurisprudence, it has uniformly prided
itself on the subtle perversity of the conclusions it could build on
ancient texts, without discoverable departure from their literal
tenour. I know no reason why the law of the Romans should be superior
to the laws of the Hindoos, unless the theory of Natural Law had given
it a type of excellence different from the usual one. In this one
exceptional instance, simplicity and symmetry were kept before the
eyes of a society whose influence on mankind was destined to be
prodigious from other causes, as the characteristics of an ideal and
absolutely perfect law. It is impossible to overrate the importance to
a nation or profession of having a distinct object to aim at in the
pursuit of improvement. The secret of Bentham's immense influence in
England during the past thirty years is his success in placing such an
object before the country. He gave us a clear rule of reform. English
lawyers of the last century were probably too acute to be blinded by
the paradoxical commonplace that English law was the perfection of
human reason, but they acted as if they believed it for want of any
other principle to proceed upon. Bentham made the good of the
community take precedence of every other object, and thus gave escape
to a current which had long been trying to find its way outwards.
It is not an altogether fanciful comparison if we call the assumptions
we have been describing the ancient counterpart of Benthamism. The
Roman theory guided men's efforts in the same direction as the theory
put into shape by the Englishman; its practical results were not
widely different from those which would have been attained by a sect
of law-reformers who maintained a steady pursuit of the general good
of the community. It would be a mistake, however, to suppose it a
conscious anticipation of Bentham's principles. The happiness of
mankind is, no doubt, sometimes assigned, both in the popular and in
the legal literature of the Romans, as the proper object of remedial
legislation, but it is very remarkable how few and faint are the
testimonies to this principle compared with the tributes which are
constantly offered to the overshadowing claims of the Law of Nature.
It was not to anything resembling philanthropy, but to their sense of
simplicity and harmony--of what they significantly termed
"elegance"--that the Roman jurisconsults freely surrendered
themselves. The coincidence of their labours with those which a more
precise philosophy would have counselled has been part of the good
fortune of mankind.
Turning to the modern history of the law of nature, we find it easier
to convince ourselves of the vastness of its influence than to
pronounce confidently whether that influence has been exerted for good
or for evil. The doctrines and institutions which may be attributed to
it are the material of some of the most violent controversies debated
in our time, as will be seen when it is stated that the theory of
Natural Law is the source of almost all the special ideas as to law,
politics, and society which France during the last hundred years has
been the instrument of diffusing over the western world. The part
played by jurists in French history, and the sphere of jural
conceptions in French thought, have always been remarkably large. It
was not indeed in France, but in Italy, that the juridical science of
modern Europe took its rise, but of the schools founded by emissaries
of the Italian universities in all parts of the continent, and
attempted (though vainly) to be set up in our island, that established
in France produced the greatest effect on the fortunes of the country.
The lawyers of France immediately formed a strict alliance with the
kings of the house of Capet, and it was as much through their
assertions of royal prerogative, and through their interpretations of
the rules of feudal succession, as by the power of the sword, that the
French monarchy at last grew together out of the agglomeration of
provinces and dependencies. The enormous advantage which their
understanding with the lawyers conferred on the French kings in the
prosecution of their struggle with the great feudatories, the
aristocracy, and the church, can only be appreciated if we take into
account the ideas which prevailed in Europe far down into the middle
ages. There was, in the first place, a great enthusiasm for
generalisation and a curious admiration for all general propositions,
and consequently, in the field of law, an involuntary reverence for
every general formula which seemed to embrace and sum up a number of
the insulated rules which were practised as usages in various
localities. Such general formulas it was, of course, not difficult for
practitioners familiar with the Corpus Juris or the Glosses to supply
in almost any quantity. There was, however, another cause which added
yet more considerably to the lawyers' power. At the period of which we
are speaking, there was universal vagueness of ideas as to the degree
and nature of the authority residing in written texts of law. For the
most part, the peremptory preface, _Ita scriptum est_, seems to have
been sufficient to silence all objections. Where a mind of our own day
would jealously scrutinise the formula which had been quoted, would
inquire its source, and would (if necessary) deny that the body of law
to which it belonged had any authority to supersede local customs, the
elder jurist would not probably have ventured to do more than question
the applicability of the rule, or at best cite some counter
proposition from the Pandects or the Canon Law. It is extremely
necessary to bear in mind the uncertainty of men's notions on this
most important side of juridical controversies, not only because it
helps to explain the weight which the lawyers threw into the
monarchical scale, but on account of the light which it sheds on
several curious historical problems. The motives of the author of the
Forged Decretals and his extraordinary success are rendered more
intelligible by it. And, to take a phenomenon of smaller interest, it
assists us, though only partially, to understand the plagiarisms of
Bracton. That an English writer of the time of Henry III. should have
been able to put off on his countrymen as a compendium of pure English
law a treatise of which the entire form and a third of the contents
were directly borrowed from the Corpus Juris, and that he should have
ventured on this experiment in a country where the systematic study of
the Roman law was formally proscribed, will always be among the most
hopeless enigmas in the history of jurisprudence; but still it is
something to lessen our surprise when we comprehend the state of
opinion at the period as to the obligatory force of written texts,
apart from all consideration of the source whence they were derived.
When the kings of France had brought their long struggle for supremacy
to a successful close, an epoch which may be placed roughly at the
accession of the branch of Valois-Angouleme to the throne, the
situation of the French jurists was peculiar and continued to be so
down to the outbreak of the revolution. On the one hand, they formed
the best instructed and nearly the most powerful class in the nation.
They had made good their footing as a privileged order by the side of
the feudal aristocracy, and they had assured their influence by an
organisation which distributed their profession over France in great
chartered corporations possessing large defined powers and still
larger indefinite claims. In all the qualities of the advocate, the
judge, and the legislator, they far excelled their compeers throughout
Europe. Their juridical tact, their ease of expression, their fine
sense of analogy and harmony, and (if they may be judged by the
highest names among them) their passionate devotion to their
conceptions of justice, were as remarkable as the singular variety of
talent which they included, a variety covering the whole ground
between the opposite poles of Cujas and Montesquieu, of D'Aguesseau
and Dumoulin. But, on the other hand, the system of laws which they
had to administer stood in striking contrast with the habits of mind
which they had cultivated. The France which had been in great part
constituted by their efforts was smitten with the curse of an
anomalous and dissonant jurisprudence beyond every other country in
Europe. One great division ran through the country and separated it
into _Pays du Droit Ecrit_ and _Pays du Droit Coutumier_, the first
acknowledging the written Roman law as the basis of their
jurisprudence, the last admitting it only so far as it supplied
general forms of expression, and courses of juridical reasoning which
were reconcileable with the local usages. The sections thus formed
were again variously subdivided. In the _Pays du Droit Coutumier_
province differed from province, county from county, municipality from
municipality, in the nature of its customs. In the _Pays du Droit
Ecrit_ the stratum of feudal rules which overlay the Roman law was of
the most miscellaneous composition. No such confusion as this ever
existed in England. In Germany it did exist, but was too much in
harmony with the deep political and religious divisions of the country
to be lamented or even felt. It was the special peculiarity of France
that an extraordinary diversity of laws continued without sensible
alteration while the central authority of the monarchy was constantly
strengthening itself, while rapid approaches were being made to
complete administrative unity, and while a fervid national spirit had
been developed among the people. The contrast was one which fructified
in many serious results, and among them we must rank the effect which
it produced on the minds of the French lawyers. Their speculative
opinions and their intellectual bias were in the strongest opposition
to their interests and professional habits. With the keenest sense and
the fullest recognition of those perfections of jurisprudence which
consist in simplicity and uniformity, they believed, or seemed to
believe, that the vices which actually infested French law were
ineradicable; and in practice they often resisted the reformation of
abuses with an obstinacy which was not shown by many among their less
enlightened countrymen. But there was a way to reconcile these
contradictions. They became passionate enthusiasts for Natural Law.
The Law of Nature overleapt all provincial and municipal boundaries;
it disregarded all distinctions between noble and burgess, between
burgess and peasant; it gave the most exalted place to lucidity,
simplicity and system; but it committed its devotees to no specific
improvement, and did not directly threaten any venerable or lucrative
technicality. Natural law may be said to have become the common law of
France, or, at all events, the admission of its dignity and claims was
the one tenet which all French practitioners alike subscribed to. The
language of the prae-revolutionary jurists in its eulogy is singularly
unqualified, and it is remarkable that the writers on the Customs, who
often made it their duty to speak disparagingly of the pure Roman law,
speak even more fervidly of Nature and her rules than the civilians
who professed an exclusive respect for the Digest and the Code.
Dumoulin, the highest of all authorities on old French Customary Law,
has some extravagant passages on the Law of Nature; and his panegyrics
have a peculiar rhetorical turn which indicated a considerable
departure from the caution of the Roman jurisconsults. The hypothesis
of a Natural Law had become not so much a theory guiding practice as
an article of speculative faith, and accordingly we shall find that,
in the transformation which it more recently underwent, its weakest
parts rose to the level of its strongest in the esteem of its
supporters.
The eighteenth century was half over when the most critical period in
the history of Natural Law was reached. Had the discussion of the
theory and of its consequences continued to be exclusively the
employment of the legal profession, there would possibly have been an
abatement of the respect which it commanded; for by this time the
_Esprit des Lois_ had appeared. Bearing in some exaggerations the
marks of the excessive violence with which its author's mind had
recoiled from assumptions usually suffered to pass without scrutiny,
yet showing in some ambiguities the traces of a desire to compromise
with existing prejudice, the book of Montesquieu, with all its
defects, still proceeded on that Historical Method before which the
Law of Nature has never maintained its footing for an instant. Its
influence on thought ought to have been as great as its general
popularity; but, in fact, it was never allowed time to put it forth,
for the counter-hypothesis which it seemed destined to destroy passed
suddenly from the forum to the street, and became the key-note of
controversies far more exciting than are ever agitated in the courts
or the schools. The person who launched it on its new career was that
remarkable man who, without learning, with few virtues, and with no
strength of character, has nevertheless stamped himself ineffaceably
on history by the force of a vivid imagination, and by the help of a
genuine and burning love for his fellow-men, for which much will
always have to be forgiven him. We have never seen in our own
generation--indeed the world has not seen more than once or twice in
all the course of history--a literature which has exercised such
prodigious influence over the minds of men, over every cast and shade
of intellect, as that which emanated from Rousseau between 1749 and
1762. It was the first attempt to re-erect the edifice of human belief
after the purely iconoclastic efforts commenced by Bayle, and in part
by our own Locke, and consummated by Voltaire; and besides the
superiority which every constructive effort will always enjoy over one
that is merely destructive, it possessed the immense advantage of
appearing amid an all but universal scepticism as to the soundness of
all foregone knowledge in matters speculative. Now, in all the
speculations of Rousseau, the central figure, whether arrayed in an
English dress as the signatory of a social compact, or simply stripped
naked of all historical qualities, is uniformly Man, in a supposed
state of nature. Every law or institution which would misbeseem this
imaginary being under these ideal circumstances is to be condemned as
having lapsed from an original perfection; every transformation of
society which would give it a closer resemblance to the world over
which the creature of Nature reigned, is admirable and worthy to be
effected at any apparent cost. The theory is still that of the Roman
lawyers, for in the phantasmagoria with which the Natural Condition is
peopled, every feature and characteristic eludes the mind except the
simplicity and harmony which possessed such charms for the
jurisconsult; but the theory is, as it were, turned upside down. It is
not the Law of Nature, but the State of Nature, which is now the
primary subject of contemplation. The Roman had conceived that by
careful observation of existing institutions parts of them could be
singled out which either exhibited already, or could by judicious
purification be made to exhibit, the vestiges of that reign of nature
whose reality he faintly affirmed. Rousseau's belief was that a
perfect social order could be evolved from the unassisted
consideration of the natural state, a social order wholly irrespective
of the actual condition of the world and wholly unlike it. The great
difference between the views is that one bitterly and broadly condemns
the present for its unlikeness to the ideal past; while the other,
assuming the present to be as necessary as the past, does not affect
to disregard or censure it. It is not worth our while to analyse with
any particularity that philosophy of politics, art, education, ethics,
and social relation which was constructed on the basis of a state of
nature. It still possesses singular fascination for the looser
thinkers of every country, and is no doubt the parent, more or less
remote, of almost all the prepossessions which impede the employment
of the Historical Method of inquiry, but its discredit with the higher
minds of our day is deep enough to astonish those who are familiar
with the extraordinary vitality of speculative error. Perhaps the
question most frequently asked nowadays is not what is the value of
these opinions, but what were the causes which gave them such
overshadowing prominence a hundred years ago. The answer is, I
conceive, a simple one. The study which in the last century would best
have corrected the misapprehensions into which an exclusive attention
to legal antiquities is apt to betray was the study of religion. But
Greek religion, as then understood, was dissipated in imaginative
myths. The Oriental religions, if noticed at all, appeared to be lost
in vain cosmogonies. There was but one body of primitive records which
was worth studying--the early history of the Jews. But resort to this
was prevented by the prejudices of the time. One of the few
characteristics which the school of Rousseau had in common with the
school of Voltaire was an utter disdain of all religious antiquities;
and, more than all, of those of the Hebrew race. It is well known that
it was a point of honour with the reasoners of that day to assume not
merely that the institutions called after Moses were not divinely
dictated, nor even that they were codified at a later date than that
attributed to them, but that they and the entire Pentateuch were a
gratuitous forgery, executed after the return from the Captivity.
Debarred, therefore, from one chief security against speculative
delusion, the philosophers of France, in their eagerness to escape
from what they deemed a superstition of the priests, flung themselves
headlong into a superstition of the lawyers.
But though the philosophy founded on the hypothesis of a state of
nature has fallen low in general esteem, in so far as it is looked
upon under its coarser and more palpable aspect, it does not follow
that in its subtler disguises it has lost plausibility, popularity, or
power. I believe, as I have said, that it is still the great
antagonist of the Historical Method; and whenever (religious
objections apart) any mind is seen to resist or contemn that mode of
investigation, it will generally be found under the influence of a
prejudice or vicious bias traceable to a conscious or unconscious
reliance on a non-historic, natural, condition of society or the
individual. It is chiefly, however, by allying themselves with
political and social tendencies that the doctrines of Nature and her
law have preserved their energy. Some of these tendencies they have
stimulated, others they have actually created, to a great number they
have given expression and form. They visibly enter largely into the
ideas which constantly radiate from France over the civilised world,
and thus become part of the general body of thought by which its
civilisation is modified. The value of the influence which they thus
exercise over the fortunes of the race is of course one of the points
which our age debates most warmly, and it is beside the purpose of
this treatise to discuss it. Looking back, however, to the period at
which the theory of the state of nature acquired the maximum of
political importance, there are few who will deny that it helped most
powerfully to bring about the grosser disappointments of which the
first French Revolution was fertile. It gave birth, or intense
stimulus, to the vices of mental habit all but universal at the time,
disdain of positive law, impatience of experience, and the preference
of _a priori_ to all other reasoning. In proportion too as this
philosophy fixes its grasp on minds which have thought less than
others and fortified themselves with smaller observation, its tendency
is to become distinctly anarchical. It is surprising to note how many
of the _Sophismes Anarchiques_ which Dumont published for Bentham, and
which embody Bentham's exposure of errors distinctively French, are
derived from the Roman hypothesis in its French transformation, and
are unintelligible unless referred to it. On this point too it is a
curious exercise to consult the _Moniteur_ during the principal eras
of the Revolution. The appeals to the Law and State of Nature become
thicker as the times grow darker. They are comparatively rare in the
Constituent Assembly; they are much more frequent in the Legislative;
in the Convention, amid the din of debate on conspiracy and war, they
are perpetual.
There is a single example which very strikingly illustrates the
effects of the theory of natural law on modern society, and indicates
how very far are those effects from being exhausted. There cannot, I
conceive, be any question that to the assumption of a Law Natural we
owe the doctrine of the fundamental equality of human beings. That
"all men are equal" is one of a large number of legal propositions
which, in progress of time, have become political. The Roman
jurisconsults of the Antonine era lay down that "omnes homines natura
aequales sunt," but in their eyes this is a strictly juridical axiom.
They intend to affirm that, under the hypothetical Law of Nature, and
in so far as positive law approximates to it, the arbitrary
distinctions which the Roman Civil Law maintained between classes of
persons cease to have a legal existence. The rule was one of
considerable importance to the Roman practitioner, who required to be
reminded that, wherever Roman jurisprudence was assumed to conform
itself exactly to the code of Nature, there was no difference in the
contemplation of the Roman tribunals between citizen and foreigner,
between freeman and slave, between Agnate and Cognate. The
jurisconsults who thus expressed themselves most certainly never
intended to censure the social arrangements under which civil law fell
somewhat short of its speculative type; nor did they apparently
believe that the world would ever see human society completely
assimilated to the economy of nature. But when the doctrine of human
equality makes its appearance in a modern dress it has evidently
clothed itself with a new shade of meaning. Where the Roman
jurisconsult had written "aequales sunt," meaning exactly what he said,
the modern civilian wrote "all men are equal" in the sense of "all men
ought to be equal." The peculiar Roman idea that natural law coexisted
with civil law and gradually absorbed it, had evidently been lost
sight of, or had become unintelligible, and the words which had at
most conveyed a theory concerning the origin, composition, and
development of human institutions, were beginning to express the sense
of a great standing wrong suffered by mankind. As early as the
beginning of the fourteenth century, the current language concerning
the birth-state of men, though visibly intended to be identical with
that of Ulpian and his contemporaries, has assumed an altogether
different form and meaning. The preamble to the celebrated ordinance
of King Louis Hutin enfranchising the serfs of the royal domains would
have sounded strangely to Roman ears. "Whereas, according to natural
law, everybody ought to be born free; and by some usages and customs
which, from long antiquity, have been introduced and kept until now in
our realm, and peradventure by reason of the misdeeds of their
predecessors, many persons of our common people have fallen into
servitude, therefore, We, etc." This is the enunciation not of a legal
rule but of a political dogma; and from this time the equality of men
is spoken of by the French lawyers just as if it were a political
truth which happened to have been preserved among the archives of
their science. Like all other deductions from the hypothesis of a Law
Natural, and like the belief itself in a Law of Nature, it was
languidly assented to and suffered to have little influence on opinion
and practice until it passed out of the possession of the lawyers into
that of the literary men of the eighteenth century and of the public
which sat at their feet. With them it became the most distinct tenet
of their creed, and was even regarded as a summary of all the others.
It is probable, however, that the power which it ultimately acquired
over the events of 1789 was not entirely owing to its popularity in
France, for in the middle of the century it passed over to America.
The American lawyers of the time, and particularly those of Virginia,
appear to have possessed a stock of knowledge which differed chiefly
from that of their English contemporaries in including much which
could only have been derived from the legal literature of continental
Europe. A very few glances at the writings of Jefferson will show how
strongly his mind was affected by the semi-juridical, semi-popular
opinions which were fashionable in France, and we cannot doubt that it
was sympathy with the peculiar ideas of the French jurists which led
him and the other colonial lawyers who guided the course of events in
America to join the specially French assumption that "all men are born
equal" with the assumption, more familiar to Englishmen, that "all men
are born free," in the very first lines of their Declaration of
Independence. The passage was one of great importance to the history
of the doctrine before us. The American lawyers, in thus prominently
and emphatically affirming the fundamental equality of human beings,
gave an impulse to political movements in their own country, and in a
less degree in Great Britain, which is far from having yet spent
itself; but besides this they returned the dogma they had adopted to
its home in France, endowed with vastly greater energy and enjoying
much greater claims on general reception and respect. Even the more
cautious politicians of the first Constituent Assembly repeated
Ulpian's proposition as if it at once commended itself to the
instincts and intuitions of mankind; and of all the "principles of
1789" it is the one which has been least strenuously assailed, which
has most thoroughly leavened modern opinion, and which promises to
modify most deeply the constitution of societies and the politics of
states.
The grandest function of the Law of Nature was discharged in giving
birth to modern International Law and to the modern Law of War, but
this part of its effects must here be dismissed with consideration
very unequal to its importance.
Among the postulates which form the foundation of International Law,
or of so much of it as retains the figure which it received from its
original architects, there are two or three of pre-eminent importance.
The first of all is expressed in the position that there is a
determinable Law of Nature. Grotius and his successors took the
assumption directly from the Romans, but they differed widely from the
Roman jurisconsults and from each other in their ideas as to the mode
of determination. The ambition of almost every Publicist who has
flourished since the revival of letters has been to provide new and
more manageable definitions of Nature and of her law, and it is
indisputable that the conception in passing through the long series of
writers on Public Law has gathered round it a large accretion,
consisting of fragments of ideas derived from nearly every theory of
ethics which has in its turn taken possession of the schools. Yet it
is a remarkable proof of the essentially historical character of the
conception that, after all the efforts which have been made to evolve
the code of nature from the necessary characteristics of the natural
state, so much of the result is just what it would have been if men
had been satisfied to adopt the dicta of the Roman lawyers without
questioning or reviewing them. Setting aside the Conventional or
Treaty Law of Nations, it is surprising how large a part of the system
is made up of pure Roman law. Wherever there is a doctrine of the
jurisconsults affirmed by them to be in harmony with the Jus Gentium,
the publicists have found a reason for borrowing it, however plainly
it may bear the marks of a distinctively Roman origin. We may observe
too that the derivative theories are afflicted with the weakness of
the primary notion. In the majority of the Publicists, the mode of
thought is still "mixed." In studying these writers, the great
difficulty is always to discover whether they are discussing law or
morality--whether the state of international relations they describe
is actual or ideal--whether they lay down that which is, or that
which, in their opinion, ought to be.
The assumption that Natural Law is binding on states _inter se_ is the
next in rank of those which underlie International Law. A series of
assertions or admissions of this principle may be traced up to the
very infancy of modern juridical science, and at first sight it seems
a direct inference from the teaching of the Romans. The civil
condition of society being distinguished from the natural by the fact
that in the first there is a distinct author of law, while in the last
there is none, it appears as if the moment a number of _units_ were
acknowledged to obey no common sovereign or political superior they
were thrown back on the ulterior behests of the Law Natural. States
are such units; the hypothesis of their independence excludes the
notion of a common lawgiver, and draws with it, therefore, according
to a certain range of ideas, the notion of subjection to the primeval
order of nature. The alternative is to consider independent
communities as not related to each other by any law, but this
condition of lawlessness is exactly the vacuum which the Nature of the
jurisconsults abhorred. There is certainly apparent reason for
thinking that if the mind of a Roman lawyer rested on any sphere from
which civil law was banished, it would instantly fill the void with
the ordinances of Nature. It is never safe, however, to assume that
conclusions, however certain and immediate in our own eyes, were
actually drawn at any period of history. No passage has ever been
adduced from the remains of Roman law which, in my judgment, proves
the jurisconsults to have believed natural law to have obligatory
force between independent commonwealths; and we cannot but see that to
citizens of the Roman empire who regarded their sovereign's dominions
as conterminous with civilisation, the equal subjection of states to
the Law of Nature, if contemplated at all, must have seemed at most an
extreme result of curious speculation. The truth appears to be that
modern International Law, undoubted as is its descent from Roman law,
is only connected with it by an irregular filiation. The early modern
interpreters of the jurisprudence of Rome, misconceiving the meaning
of Jus Gentium, assumed without hesitation that the Romans had
bequeathed to them a system of rules for the adjustment of
international transactions. This "Law of Nations" was at first an
authority which had formidable competitors to strive with, and the
condition of Europe was long such as to preclude its universal
reception. Gradually, however, the western world arranged itself in a
form more favourable to the theory of the civilians; circumstances
destroyed the credit of rival doctrines; and at last, at a peculiarly
felicitous conjuncture, Ayala and Grotius were able to obtain for it
the enthusiastic assent of Europe, an assent which has been over and
over again renewed in every variety of solemn engagement. The great
men to whom its triumph is chiefly owing attempted, it need scarcely
be said, to place it on an entirely new basis, and it is
unquestionable that in the course of this displacement they altered
much of its structure, though far less of it than is commonly
supposed. Having adopted from the Antonine jurisconsults the position
that the Jus Gentium and the Jus Naturae were identical, Grotius, with
his immediate predecessors and his immediate successors, attributed to
the Law of Nature an authority which would never perhaps have been
claimed for it, if "Law of Nations" had not in that age been an
ambiguous expression. They laid down unreservedly that Natural Law is
the code of states, and thus put in operation a process which has
continued almost down to our own day, the process of engrafting on the
international system rules which are supposed to have been evolved
from the unassisted contemplation of the conception of Nature. There
is too one consequence of immense practical importance to mankind
which, though not unknown during the early modern history of Europe,
was never clearly or universally acknowledged till the doctrines of
the Grotian school had prevailed. If the society of nations is
governed by Natural Law, the atoms which compose it must be absolutely
equal. Men under the sceptre of Nature are all equal, and accordingly
commonwealths are equal if the international state be one of nature.
The proposition that independent communities, however different in
size and power, are all equal in the view of the law of nations, has
largely contributed to the happiness of mankind, though it is
constantly threatened by the political tendencies of each successive
age. It is a doctrine which probably would never have obtained a
secure footing at all if International Law had not been entirely
derived from the majestic claims of Nature by the Publicists who wrote
after the revival of letters.
On the whole, however, it is astonishing, as I have observed before,
how small a proportion the additions made to International Law since
Grotius's day bear to the ingredients which have been simply taken
from the most ancient stratum of the Roman Jus Gentium. Acquisition of
territory has always been the great spur of national ambition, and the
rules which govern this acquisition, together with the rules which
moderate the wars in which it too frequently results, are merely
transcribed from the part of the Roman law which treats of the modes
of acquiring property _jure gentium_. These modes of acquisition were
obtained by the elder jurisconsults, as I have attempted to explain,
by abstracting a common ingredient from the usages observed to prevail
among the various tribes surrounding Rome; and, having been classed on
account of their origin in the "law common to all nations," they were
thought by the later lawyers to fit in, on the score of their
simplicity, with the more recent conception of a Law Natural. They
thus made their way into the modern Law of Nations, and the result is
that those parts of the international system which refer to
_dominion_, its nature, its limitations, the modes of acquiring and
securing it, are pure Roman Property Law--so much, that is to say, of
the Roman Law of Property as the Antonine jurisconsults imagined to
exhibit a certain congruity with the natural state. In order that
these chapters of International Law may be capable of application, it
is necessary that sovereigns should be related to each other like the
members of a group of Roman proprietors. This is another of the
postulates which lie at the threshold of the International Code, and
it is also one which could not possibly have been subscribed to during
the first centuries of modern European history. It is resolvable into
the double proposition that "sovereignty is territorial," _i.e._ that
it is always associated with the proprietorship of a limited portion
of the earth's surface, and that "sovereigns _inter se_ are to be
deemed not _paramount_, but _absolute_, owners of the state's
territory."
Many contemporary writers on International Law tacitly assume that the
doctrines of their system, founded on principles of equity and common
sense, were capable of being readily reasoned out in every stage of
modern civilisation. But this assumption, while it conceals some real
defects of the international theory, is altogether untenable, so far
as regards a large part of modern history. It is not true that the
authority of the Jus Gentium in the concerns of nations was always
uncontradicted; on the contrary, it had to struggle long against the
claims of several competing systems. It is again not true that the
territorial character of sovereignty was always recognised, for long
after the dissolution of the Roman dominion the minds of men were
under the empire of ideas irreconcileable with such a conception. An
old order of things, and of views founded on it, had to decay--a new
Europe, and an apparatus of new notions congenial to it, had to spring
up--before two of the chiefest postulates of International Law could
be universally conceded.
It is a consideration well worthy to be kept in view, that during a
large part of what we usually term modern history no such conception
was entertained as that of "_territorial sovereignty_." Sovereignty
was not associated with dominion over a portion or subdivision of the
earth. The world had lain for so many centuries under the shadow of
Imperial Rome as to have forgotten that distribution of the vast
spaces comprised in the empire which had once parcelled them out into
a number of independent commonwealths, claiming immunity from
extrinsic interference, and pretending to equality of national rights.
After the subsidence of the barbarian irruptions, the notion of
sovereignty that prevailed seems to have been twofold. On the one hand
it assumed the form of what may be called "_tribe_-sovereignty." The
Franks, the Burgundians, the Vandals, the Lombards, and Visigoths were
masters, of course, of the territories which they occupied, and to
which some of them have given a geographical appellation; but they
based no claim of right upon the fact of territorial possession, and
indeed attached no importance to it whatever. They appear to have
retained the traditions which they brought with them from the forest
and the steppe, and to have still been in their own view a patriarchal
society, a nomad horde, merely encamped for the time upon the soil
which afforded them sustenance. Part of Transalpine Gaul, with part of
Germany, had now become the country _de facto_ occupied by the
Franks--it was France; but the Merovingian line of chieftains, the
descendants of Clovis, were not Kings of France, they were Kings of
the Franks. The alternative to this peculiar notion of sovereignty
appears to have been--and this is the important point--the idea of
universal dominion. The moment a monarch departed from the special
relation of chief to clansmen, and became solicitous, for purposes of
his own, to invest himself with a novel form of sovereignty, the only
precedent which suggested itself for his adoption was the domination
of the Emperors of Rome. To parody a common quotation, he became "_aut
Caesar aut nullus_." Either he pretended to the full prerogative of the
Byzantine Emperor, or he had no political status whatever. In our own
age, when a new dynasty is desirous of obliterating the prescriptive
title of a deposed line of sovereigns, it takes its designation from
the _people_, instead of the _territory_. Thus we have Emperors and
Kings of the French, and a King of the Belgians. At the period of
which we have been speaking, under similar circumstances a different
alternative presented itself. The Chieftain who would no longer call
himself King of the tribe must claim to be Emperor of the world. Thus,
when the hereditary Mayors of the Palace had ceased to compromise
with the monarchs they had long since virtually dethroned, they soon
became unwilling to call themselves Kings of the Franks, a title which
belonged to the displaced Merovings; but they could not style
themselves Kings of France, for such a designation, though apparently
not unknown, was not a title of dignity. Accordingly they came forward
as aspirants to universal empire. Their motive has been greatly
misapprehended. It has been taken for granted by recent French writers
that Charlemagne was far before his age, quite as much in the
character of his designs as in the energy with which he prosecuted
them. Whether it be true or not that anybody is at any time before his
age, it is certainly true that Charlemagne, in aiming at an unlimited
dominion, was emphatically taking the only course which the
characteristic ideas of his age permitted him to follow. Of his
intellectual eminence there cannot be a question, but it is proved by
his acts and not by his theory.
These singularities of view were not altered on the partition of the
inheritance of Charlemagne among his three grandsons. Charles the
Bald, Lewis, and Lothair were still theoretically--if it be proper to
use the word--Emperors of Rome. Just as the Caesars of the Eastern and
Western Empires had each been _de jure_ emperor of the whole world,
with _de facto_ control over half of it, so the three Carlovingians
appear to have considered their power as limited, but their title as
unqualified. The same speculative universality of sovereignty
continued to be associated with the Imperial throne after the second
division on the death of Charles the Fat, and, indeed, was never
thoroughly dissociated from it so long as the empire of Germany
lasted. Territorial sovereignty--the view which connects sovereignty
with the possession of a limited portion of the earth's surface--was
distinctly an offshoot, though a tardy one, of _feudalism_. This might
have been expected _a priori_, for it was feudalism which for the
first time linked personal duties, and by consequence personal rights,
to the ownership of land. Whatever be the proper view of its origin
and legal nature, the best mode of vividly picturing to ourselves the
feudal organisation is to begin with the basis, to consider the
relation of the tenant to the patch of soil which created and limited
his services--and then to mount up, through narrowing circles of
super-feudation, till we approximate to the apex of the system.
Where that summit exactly was during the later portion of the dark
ages it is not easy to decide. Probably, wherever the conception of
tribe sovereignty had really decayed, the topmost point was always
assigned to the supposed successor of the Caesars of the West. But
before long, when the actual sphere of Imperial authority had
immensely contracted, and when the emperors had concentrated the
scanty remains of their power upon Germany and North Italy, the
highest feudal superiors in all the outlying portions of the former
Carlovingian empire found themselves practically without a supreme
head. Gradually they habituated themselves to the new situation, and
the fact of immunity put at last out of sight the theory of
dependence; but there are many symptoms that this change was not quite
easily accomplished; and, indeed, to the impression that in the nature
of things there must necessarily be a culminating domination
somewhere, we may, no doubt, refer the increasing tendency to
attribute secular superiority to the See of Rome. The completion of
the first stage in the revolution of opinion is marked, of course, by
the accession of the Capetian dynasty in France. When the feudal
prince of a limited territory surrounding Paris began, from the
accident of his uniting an unusual number of suzerainties in his own
person, to call himself _King of France_, he became king in quite a
new sense, a sovereign standing in the same relation to the soil of
France as the baron to his estate, the tenant to his freehold. The
precedent, however, was as influential as it was novel, and the form
of the monarchy in France had visible effects in hastening changes
which were elsewhere proceeding in the same direction. The kingship of
our Anglo-Saxon regal houses was midway between the chieftainship of a
tribe and a territorial supremacy; but the superiority of the Norman
monarchs, imitated from that of the King of France, was distinctly a
territorial sovereignty. Every subsequent dominion which was
established or consolidated was formed on the later model. Spain,
Naples, and the principalities founded on the ruins of municipal
freedom in Italy, were all under rulers whose sovereignty was
territorial. Few things, I may add, are more curious than the gradual
lapse of the _Venetians_ from one view to the other. At the
commencement of its foreign conquests, the republic regarded itself
as an antitype of the Roman commonwealth, governing a number of
subject provinces. Move a century onwards, and you find that it wishes
to be looked upon as a corporate sovereign, claiming the rights of a
feudal suzerain over its possessions in Italy and the AEgean.
During the period through which the popular ideas on the subject of
sovereignty were undergoing this remarkable change, the system which
stood in the place of what we now call International Law, was
heterogeneous in form and inconsistent in the principles to which it
appealed. Over so much of Europe as was comprised in the Romano-German
empire, the connection of the confederate states was regulated by the
complex and as yet incomplete mechanism of the Imperial constitution;
and, surprising as it may seem to us, it was a favourite notion of
German lawyers that the relations of commonwealths, whether inside or
outside the empire, ought to be regulated not by the _Jus Gentium_,
but by the pure Roman jurisprudence, of which Caesar was still the
centre. This doctrine was less confidently repudiated in the outlying
countries than we might have supposed antecedently; but,
substantially, through the rest of Europe feudal subordinations
furnished a substitute for a public law; and when those were
undetermined or ambiguous, there lay behind, in theory at least, a
supreme regulating force in the authority of the head of the Church.
It is certain, however, that both feudal and ecclesiastical influences
were rapidly decaying during the fifteenth, and even the fourteenth
century; and if we closely examine the current pretexts of wars, and
the avowed motives of alliances, it will be seen that, step by step
with the displacement of the old principles, the views afterwards
harmonised and consolidated by Ayala and Grotius were making
considerable progress, though it was silent and but slow. Whether the
fusion of all the sources of authority would ultimately have evolved a
system of international relations, and whether that system would have
exhibited material differences from the fabric of Grotius, is not now
possible to decide, for as a matter of fact the Reformation
annihilated all its potential elements except one. Beginning in
Germany, it divided the princes of the empire by a gulf too broad to
be bridged over by the Imperial supremacy, even if the Imperial
superior had stood neutral. He, however, was forced to take colour
with the church against the reformers; the Pope was, as a matter of
course, in the same predicament; and thus the two authorities to whom
belonged the office of mediation between combatants became themselves
the chiefs of one great faction in the schism of the nations.
Feudalism, already enfeebled and discredited as a principle of public
relations, furnished no bond whatever which was stable enough to
countervail the alliances of religion. In a condition, therefore, of
public law which was little less than chaotic, those views of a state
system to which the Roman jurisconsults were supposed to have given
their sanction alone remained standing. The shape, the symmetry, and
the prominence which they assumed in the hands of Grotius are known to
every educated man; but the great marvel of the Treatise "De Jure
Belli et Pacis," was its rapid, complete, and universal success. The
horrors of the Thirty Years' War, the boundless terror and pity which
the unbridled license of the soldiery was exciting, must, no doubt, be
taken to explain that success in some measure, but they do not wholly
account for it. Very little penetration into the ideas of that age is
required to convince one that if the ground plan of the international
edifice which was sketched in the great book of Grotius had not
appeared to be theoretically perfect, it would have been discarded by
jurists and neglected by statesmen and soldiers.
It is obvious that the speculative perfection of the Grotian system is
intimately connected with that conception of territorial sovereignty
which we have been discussing. The theory of International Law assumes
that commonwealths are, relatively to each other, in a state of
nature; but the component atoms of a natural society must, by the
fundamental assumption, be insulated and independent of each other. If
there be a higher power connecting them, however slightly and
occasionally by the claim of common supremacy, the very conception of
a common superior introduces the notion of positive law, and excludes
the idea of a law natural. It follows, therefore, that if the
universal suzerainty of an Imperial head had been admitted even in
bare theory, the labours of Grotius would have been idle. Nor is this
the only point of junction between modern public law and those views
of sovereignty of which I have endeavoured to describe the
development. I have said that there are entire departments of
international jurisprudence which consist of the Roman Law of
Property. What then is the inference? It is, that if there had been no
such change as I have described in the estimate of sovereignty--if
sovereignty had not been associated with the proprietorship of a
limited portion of the earth, had not, in other words, become
territorial--three parts of the Grotian theory would have been
incapable of application.