Ancient Law Chapter 4

arity； 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 underst

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

　　But though the philosophy founded on the hypothesis of a state of nature has fallen low in general esteem， in so far as it is looked upon under its coarser and more palpable aspect， it does not follow that in its subtler disguises it has lost plausibility， popularity， or power. I believe， as I have said， that it is still the great antagonist of the Historical Method； and whenever （religious objections apart） any mind is seen to resist or contemn that mode of investigation， it will generally be found under the influence of a prejudice or vicious bias traceable to a conscious or unconscious reliance on a non-historic， natural， condition of society or the individual. It is chiefly， however， by allying themselves with political and social tendencies that the doctrines of Nature and her law have preserved their energy. Some of these tendencies they have stimulated， other they have actually created， to a great number they have given expression and form. They visibly enter largely into the ideas which constantly radiate from France over the civilised world， and thus become part of the general body of thought by which its civilisation is modified. The value of the influence which they thus exercise over the fortunes of the race is of course one of the points which our age debates most warmly， and it is beside the purpose of this treatise to discuss it. Looking back， however， to the period at which the theory of the state of nature acquired the maximum of political importance， there are few who will deny that it helped most powerfully to bring about the grosser disappointments of which the first French Revolution was fertile. It gave birth， or intense stimulus， to the vices of mental habit all but universal at the time， disdain of positive law， impatience of experience， and the preference of a priori to all other reasoning. In proportion too as this philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation， its tendency is to become distinctly anarchical. It is surprising to note how many of the Sophismes Anarchiques which Dumont published for Bentham， and which embody Bentham's exposure of errors distinctively French， are derived from the Roman hypothesis in its French transformation， and are unintelligible unless referred to it. On this point too it is a curious exercise to consult the Moniteur during the principal eras of the Revolution. The appeals to the Law and State of Nature become thicker as the times grow darker. They are comparatively rare in the Constituent Assembly； they are much more frequent in the Legislative； in the Convention， amid the din of debate on conspiracy and war， they are perpetual.

　　There is a single example which very strikingly illustrates the effects of the theory of natural law on modern society， and indicates how very far are those effects fr

om 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，

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