Ancient Law Chapter 4

had evidently been lost sight of， or had become unintelligible， and the words which had at most conveyed a theory conceding the origin， composition， and development of human institutions， were beginning to express the sense of a great standing wrong suffered by mankind. As early as the beginning of the fourteenth century， the current language conceding the birthstate of men， though visibly intended to be identical with that of Ulpian and his contemporaries， has assumed an altogether different form and meaning. The preamble to the celebrated ordinance of King Louis Hutin enfranchising the serfs of the royal domains would have sounded strangely to Roman ears. "Whereas， according to natural law， everybody ought to be born free； and by some usages and customs which， from long antiquity， have been introduced and kept until now in our realm， and peradventure by reason of the misdeeds of their predecessors， many persons of our common people have fallen into servitude， therefore， We， etc." This is the enunciation not of a legal rule but of a political dogma； and from this time the equality of men is spoken of by the French lawyers just as if it were a political truth which happened to have been preserved among the archives of their science. Like all other deductions from the hypothesis of a Law Natural， and like the belief itself in a Law of Nature， it was languidly assented to and suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers into that of the literary men of the eighteenth century and of the public which sat at their feet. With them it became the most distinct tenet of their creed， and was even regarded as a summary of all the others. It is probable， however， that the power which it ultimately acquired over the events of 1789 was not entirely owing to its popularity in France， for in the middle of the century it passed over to America. The American lawyers of the time， and particularly those of Virginia， appear to have possessed a stock of knowledge which differed chiefly from that of their English contemporaries in including much which could only have been derived from the legal literature of continental Europe. A very few glances at the writings of Jeffers

on will show how strongly his mind was affected by the semi-juridical， semipopular opinions which were fashionable in France， and we cannot doubt that it was sympathy with the peculiar ideas of the French jurists which led him and the other colonial lawyers who guided the course of events in America to join the specially French assumption that "all men are born equal" with the assumption， more familiar to Englishmen， that "all men are born free，" in the very first lines of their Declaration of Independence. The passage was one of great importance to the history of the doctrine before us. The American lawyers， in thus prominently and emphatically affirming the fundamental equality of human beings， gave an impulse to political movements in their own country， and in a less degree in Great Britain， which is far from having yet spent itself； but besides this they returned the dogma they had adopted to its home in France， endowed with vastly greater energy and enjoying much greater claims on general reception and respect. Even the more cautious politicians of the first Constituent Assembly repeated Ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind； and of all the "principles of 1789" it is the one which has been least strenuously assailed， which has most thoroughly leavened modern opinion， and which promises to modify most deeply the constitution of societies and the politics of states.

　　The grandest function of the Law of Nature was discharged in giving birth to modern International Law and to the modern Law of War， but this part of its effects must here be dismissed with consideration very unequal to its importance.

　　Among the postulates which form the foundation of International Law， or of so much of it as retains the figure which it received from its original architects， there are two or three of pre-eminent importance. The first of all is expressed in the position that there is a determinable Law of Nature. Grotius and his successor took the assumption directly from the Romans， but they differed widely from the Roman jurisconsults and from each other in their ideas as to the mode of determination. The ambition of almost every Publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of Nature and of her law， and it is indisputable that the conception in passing through the long series of writers on Public Law has gathered round it a large accretion， consisting of fragments of ideas derived from nearly every theory of ethic which has in its turn taken possession of the schools. Yet it is a remarkable proof of the essentially historical character of the conception that， after all the efforts which have been made to evolve the code of nature from the necessary characteristic of the natural state， so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the Roman lawyers without questioning or reviewing them. Setting aside the Conventional or Treaty Law of Nations， it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the jurisconsult affirmed by them to be in harmony with the Jus Gentium， the publicists have found a reason for borrowing it， however plainly it may bear the marks of a distinctively Roman origin. We may observe too that the derivative theories are afflicted with the weakness of the primary notion. In the majority of the Publicists， the mode of thought is still "mixed." In studying these writers， the great difficulty is always to discover whether they are discussing law or morality —— whether the state of international relations they describe is actual or ideal —— whether they lay down that which is， or that which， in their opinion， ought to be.

　　The assumption that Natural Law is binding on states inter se is the next in rank of those which underlie International Law. A series of assertion

s 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 o

┨网页设计特效库┠ http://www。z┗co⊙l。com/网页特效/