Ancient Law Chapter 9

that as soon as the decay of the Feudal System had thrown the medieval constitutions out of working order， and when the Reformation had discredited the authority of the Pope， the doctrine of the divine right of Kings rose immediately into an importance which had never before attended it. The vogue which it obtained entailed still more constant resort to the phraseology of Roman law， and a controversy which had originally worn a theological aspect assumed more and more the air of a leg

al disputation. A phenomenon then appeared which has repeatedly shown itself in the history of opinion. Just when the argument for monarchical authority rounded itself into the definite doctrine of Filmer， the phraseology， borrowed from the Law of Contract， which had been used in defence of the rights of subjects， crystallised into the theory of an actual original compact between king and people， a theory which， first in English and afterwards， and more particularly， in French hands， expanded into a comprehensive explanation of all the phenomena of society and law. But the only real connection between political and legal science had consisted in the last giving to the first the benefit of its peculiarly plastic terminology. The Roman jurisprudence of Contract had performed for the relation of sovereign and subject precisely the same service which， in a humbler sphere， it rendered to the relation of person bound together by an obligation of "quasi-contract." It had furnished a body of words and phrases which approximated with sufficient accuracy to the ideas which then were from time to time forming on the subject of political obligation. The doctrine of an Original Compact can never be put higher than it is placed by Dr. Whewell， when he suggests that， though unsound， "it may be a convenient form for the expression of moral truths."

　　The extensive employment of legal language on political subjects previously to the invention of the Original Compact， and the powerful influence which that assumption has exercised subsequently， amply account for the plentifulness in political science of words and conceptions， which were the exclusive creation of Roman jurisprudence. Of their plentifulness in Moral Philosophy a rather different explanation must be given， inasmuch as ethical writings have laid Roman law under contribution much more directly than political speculations， and their authors have been much more conscious of the extent of their obligation. In speaking of moral philosophy as extraordinarily indebted to Roman jurisprudence， I must be understood to intend moral philosophy as understood previously to the break in its history effected by Kant， that is， as the science of the rules governing human conduct， of their proper interpretation and of the limitations to which they are subject. Since the rise of the Critical Philosophy， moral science has almost wholly lost its older meaning， and， except where it is preserved under a debased form in the casuistry still cultivated by Roman Catholic theologians， it seems to be regarded nearly universally as a branch of ontological inquiry. I do not know that there is a single contemporary English writer， with the exception of Dr. Whewell， who understands moral philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more important consideration than the rules themselves. So long， however， as ethical science had to do with the practical regimen of conduct， it was more or less saturated with Roman law. Like all the great subjects of modern thought， it was originally incorporated with theology. The science of Moral Theology， as it was at first called， and as it is still designated by the Roman Catholic divines， was undoubtedly constructed， to the full knowledge of its authors， by takin principles of conduct from the system of the Church， and by using the language and methods of jurisprudence for their expression and expansion. While this process went on， it was inevitable that jurisprudence， though merely intended to be the vehicle of thought， should communicate its colour to the thought itself. The tinge received through contact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world， and it is evident， I think， that the Law of Contract， based as it is on the complete reciprocity and indissoluble connection of rights and duties， has acted as a wholesome corrective to the p

redispositions of writers who， if left to themselves， might have exclusively viewed a moral obligation as the public duty of a citizen in the Civitas Dei. But the amount of Roman Law in moral theology becomes sensibly smaller at the time of its cultivation by the great Spanish moralists. Moral theology， developed by the juridical method of doctor commenting on doctor， provided itself with a phraseology of its own， and Aristotelian peculiarities of reasoning and expression， imbibed doubtless in great part from the Disputations on Morals in the academical schools， take the place of that special turn of thought and speech which can never be mistaken by any person conversant with the Roman law. If the credit of the Spanish school of moral theologians had continued， the juridical ingredient in ethical science would have been insignificant， but the use made of their conclusions by the next generation of Roman Catholic writers on these subjects almost entirely destroyed their influence. Moral Theology， degraded into Casuistry， lost all interest for the leaders of European speculation； and the new science of Moral Philosophy， which was entirely in the hands of the Protestants， swerved greatly aside from the path which the moral theologians had followed. The effect was vastly to increase the influence of Roman law on ethical inquiry.

　　"Shortly（1*） after the Reformation， we find two great schools of thought dividing this class of subjects between them. The most influential of the two was at first the sect of school known to us as the Casuists， all of them in spiritual communion with the Roman Catholic Church， and nearly all of them affiliated to one or other of her religious orders. On the other side were a body of writer connected with each other by a common intellectual descent from the great author of the treatise De Jure Belli et Pacis， Hugo Grotius. Almost all of the latter were adherents of the Reformation， and though it cannot be said that they were formally and avowedly at conflict with the Casuists， the origin and object of their system were nevertheless essentially different from those of Casuistry. It is necessary to call attention to this difference， because it involves the question of the influence of Roman law on that department of thought with which both systems are concerned. The book of Grotius， though it touches questions of pure Ethics in every page， and though it is the parent immediate or remote of innumerable volumes of formal morality， is not， as is well known， a professed treatise on Moral Philosophy； it is an attempt to determine the Law of Nature， or Natural Law. Now， without entering upon the question， whether the conception of a Law Natural be not exclusively a creation of the Roman jurisconsults， we may lay down that， even on the admission of Grotius himself， the dicta of the Roman jurisprudence as to what parts of known positive law must be taken to be parts of the Law of Nature， are， if not infallible， to be received at all events with the profoundest respect. Hence the system of Grotius is implicated with Roman law at its very foundation， and this connection rendered inevitable —— what the legal training of the writer would perhaps have entailed without it —— the free employment in every paragraph of technical phraseology， and of modes of reasoning， defining， and illustrating， which must sometimes conceal the sense， and almost always the force and cogency， of the argument from the reader who is unfamiliar with the sources whence they have been derived. On the other hand， Casuistry borrows little from Roman law， and the views of morality contended for have nothing whatever in common with the undertaking of Grotius. All that philosophy of right and wrong which has become famous， or infamous， under the name of Casuistry， had its origin in the distinction between Mortal and Venial Sin. A natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful， and a desi

re， equally intelligible， to assist the Roman Catholic Church in its conflict with Protestantism by disburthening it of an inconvenient theory， were the motives which impelled the authors of the Casuistical philosophy to the invention of an elaborate system of criteria， intended to remove immoral actions， in as many cases as possible， out of the category of mortal offences， and to stamp them as venial sins. The fate of this experiment is matter of ordinary history. We know that the distinctions of Casuistry， by enabling the priesthood to adjust spiritual control to all the varieties of human character， did really confer on it an influence with princes， statesmen， and generals， unheard of in the ages before the Reformation， and did really contribute largely to that great reaction which checked and narrowed the first successes of Protestantism. But beginning in the attempt， not to establish， but to evade —— not to discover a principle， but to escape a postulate —— not to settle the nature of right and wrong， but to determine what was not wrong of a particular nature， —— Casuistry went on with its dexterous refinements till it ended in so attenuating the moral features of actions， and so belying the moral instincts of Our being， that at length the conscience of mankind rose suddenly in revolt against it， and consigned to one common ruin the system and its doctors. The blow， long pending， was fina

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