The Online Library of Liberty

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• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

Chapter III. Page 42.

NOTE E.

THE LAW OF NATURE AND “IUS GENTIUM.”

Maine’s third and fourth chapters need more supplemental criticism than any other part of “Ancient Law.” The medieval doctrine of the Law of Nature, and its continuity with the classical Roman doctrine, had been forgotten or misunderstood in England for quite two centuries at the time when these chapters were written; and even many years later there was no obvious way for an English scholar to get back to the right historical lines. I owe my own guidance mainly to a somewhat belated acquaintance with Dr. Gierke’s exhaustive treatment of the controversies which occupied the publicists of the Middle Ages and “the Renaissance” (“Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien,” Breslau, 1880; “Political Theories of the Middle Age,” transl. with introduction by F. W. Maitland, Cambridge, 1900, from “Die Staats- und Korporationslehre,” etc., Berlin, 1881; Pollock, “The History of the Law of Nature,” Journ. Soc. Comp. Legisl., 1900, p. 418). Mr. Bryce’s recent essay on the Law of Nature (“Studies in History and Jurisprudence,” Oxford, 1901, ii. 112) should be read and considered by all students of legal history.

Maine was not a medievalist or a canonist, and shared the general ignorance of English lawyers and scholars of his time. Accordingly his statement practically neglects the Middle Ages, and suggests, though it does not assert in terms, that the law of nature as understood by the publicists of the seventeenth and eighteenth centuries was derived exclusively from the classical Roman lawyers; that the influence of Greek philosophy was only indirect and through Roman law; and that the conception of a primeval and innocent “state of nature” was an integral part of the doctrine. Not one of these inferences would be correct. The theory of Grotius is continuous with that of the canonists and schoolmen; the medieval doctrine is founded on Aristotle and Cicero, no less than on the Corpus Iuris; and the “state of nature” of eighteenth-century writers is an exaggerated perversion of what, in the traditional system, is a quite subordinate point.

Political justice is divided, according to Aristotle (“Eth. Nic.” V. vii.; this is one of the books not written by Aristotle himself, but the substance is admitted to represent his teaching), into natural (τὸ μὲν ϕυσικόν, naturale) and conventional (τὸ δὲ νομικόν, legale). The Latin equivalents are from the current medieval translation directed by St. Thomas Aquinas. The rules of natural justice are those which all civilised men recognise. Those of conventional justice deal with matters indifferent in themselves or otherwise capable of being settled only by positive authority. Natural justice may tell me not to drive recklessly, but cannot tell me which is the right side of the road, a question which conventional justice answers one way in these kingdoms and the other in America and most, though not all, European Continental countries. Rules involving number and measure, again, cannot be fixed by natural justice alone. It is to be observed that Aristotle’s conception of Nature implies rational design, and this was more fully worked out by the later Greek schools, and especially the Stoics. Maine, though he was an excellent classical scholar, omits all mention of Aristotle; but Aristotle is not prominent in the later literature of the subject which he almost exclusively made use of.

The Greek philosophical doctrine acquired an elegant Latin form in Cicero’s hands at the very time when thoughtful Roman lawyers were in need of a theoretical foundation for the addition of the ius gentium to the old strict and archaic rules. Now ius gentium, in its original meaning, has nothing to do with distinct nations or tribes (which is not the meaning of gentes), but signifies the rules accepted as binding by all people (Nettleship, “Contributions to Latin Lexicography,” s. v.; cp. E. C. Clark, “Practical Jurisprudence,” p. 354). Towards the end of the republican period, it would seem not before Cicero’s time, it became the special name of the rules administered by Roman magistrates in causes where Roman law proper was inapplicable, by reason of the parties not being both Roman citizens or allies, or otherwise. The personal and religious laws of one community are incapable, in archaic society, of being used by members of another; and such is still the universal custom of India, broken only, so far as it is broken, by the introduction of cosmopolitan ideas and habits from Europe. Many Roman legal formulas involved a religious element, and for that reason, we may be pretty sure, were available for Romans only: we know that in one case, that of the words Dari spondes? spondeo, such a restriction was still in force under the Empire. Similarly two strangers living under different laws of their own could not both be judged by either of those laws any more than by Roman law. There is no necessary question of one law being thought better in itself than another, or of “disdain for all foreign law”; still less of the Romans having refused requests for the application of Roman law which are most unlikely to have ever been made (pp. 48, 49). What we find, at any rate, in the conflict of personal laws in the early Middle Ages is that every man wants to be judged by his own law. This being out of the question, the needs of business called for some practical solution in a jurisdiction into which the growing power of Rome brought merchants and traders from all parts of the Mediterranean. It is hard to believe that there was not already some kind of general custom among those merchants for matters of common occurrence, or that the Roman Praetor did not find it easier to adopt any such custom, if satisfied of its existence, than to frame a new rule by deliberate selection from the elements common to the domestic law of Rome and other Italian States. The recognition of the Law Merchant in England by the Common Law seems a nearer modern parallel than the development of the rules of Equity. Maine himself pointed out, in a later work, that the ius gentium was in part originally a market law, and grew out of commercial exigencies (“Village Communities,” pp. 193-4). It is significant in this connexion that in the later Middle Ages and down to the seventeenth century English books regularly treat the Law Merchant of Western Christendom as equivalent to the law of nature, or a branch of it (Pollock, Journ. Soc. Comp. Legisl., 1900, p. 431; “The Expansion of the Common Law,” p. 117).

However this may be, the actual ius gentium agreed well enough with the rules of natural justice or natural law in the sense of the Greek philosophers, so far as these could be observed in practice. Accordingly the Roman lawyers, probably working on Greek materials now lost, identified ius gentium for most practical purposes with ius naturale: they regarded it as the sum of rules which were evident to natural reason, and received by all men because they were reasonable; “quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur” (Gai. i. § 1). But this or any similar statement leaves it an open question whether ius gentium really coincides with ius naturale. There may possibly be rules that deserve to be recognised by all mankind, but in fact are not; and there may be universal or very widely prevailing usages which natural reason will not justify. Slavery was a recognised institution, part of the general customs of the Roman Empire if anything was; but the enlightened age of the Antonines could find no warrant for it in philosophy, and the incongruity pressed on at least one or two of the classical Roman jurists. Modern specialists in Roman law have not been able to agree what was exactly their doctrine as to the relation of the ideal to the actual usage of mankind, or whether there was any one accepted doctrine at all in the law schools of the empire. There is no apparent reason why there should have been any official or settled opinion on such a speculative point. Perhaps we should not be far from the truth if we said, in the language familiar to our own system, that ius gentium was presumed to follow ius naturale if the contrary did not appear.

Maine’s suggestions, beginning at p. 55, as to “the exact point of contact between the old ius gentium and the law of nature,” being given by a conjectured special sense of aequitas are ingenious, but hardly seem required. The general coincidence between ius gentium and the ϕυσιλὸν δίακιον of Greek philosophy was obvious enough to jurists in search of a theory without being emphasised by any one special point of contact. Aequitas appears, in classical Latin usage, to come very near “reasonableness”; and in fact the word reason and its derivatives are the proper terms in the Common Law for conveying the ideas, or some of them, which are at the bottom of the law of nature, as St. German pointed out nearly four centuries ago in “Doctor and Student.” Maine appears to have assumed that the Roman doctrine included the historical acceptance of a golden age: “the belief gradually prevailed among the Roman lawyers that the old jus gentium was in fact the lost code of nature,” p. 54. I am bound to say that I do not know of any evidence that such was the belief of either lawyers or philosophers. Certainly no Greek philosopher would have admitted that the law of nature was lost, nor would Cicero; and as to the supposition that ius gentium was the law of the golden age in the opinion of the philosophic lawyers, “so far were they from such a delusion,” says Mr. Bryce, “that they ascribe to ius gentium war, captivity, slavery, and all the consequences of these facts, while in the golden age, the Saturnia regna of the poets, all men were free and war was unknown.” Ius gentium is the common law or custom of mankind, actual not ideal custom. Just as little is there any traceable connection between the fables of a golden age and the fundamental conception of natural law, namely, that general rules of human conduct are at all times discoverable by human reason as being reasonable. The doctrine of the Roman jurists does not involve any historical assumption at all, neither, in itself, does that of the medieval doctors and commentators, although these, as good Catholics, accepted the Fall of Man and could give theological reasons for the law of nature not being sufficient in practice. Moreover, it is not probable that ius gentium, as a term of art, is much or at all older than ius naturale or naturae.

NOTE F.

EQUITY.

A peculiar historical development has given this word a technical meaning among English-speaking lawyers. “Reasonableness,” as mentioned in the last note, appears to be the primary and general idea. This conception, when embodied for practical use as an appeal to the common sense of right-minded men, is closely akin to that of natural justice, and further resembles it in being traceable to Aristotle. It is of the utmost importance in many branches of our modern law; but we have specialised the name of Equity for one application of it, namely that administration of extraordinary justice by the king with the advice of his Chancellor and Council, and afterwards through the Chancellor alone, which produced the Court of Chancery. Maine, when he wrote “Ancient Law,” seems to have doubted the historical truth of “the king’s general right to superintend the administration of justice” (p. 68); but in “Early Law and Custom” (ch. vi., “The King and Early Civil Justice,” p. 164), it is fully recognised. The king was held to retain a “pre-eminence of jurisdiction . . . as well for amendment as for supply of the Common Law,” though he could not alter a regular jurisdiction once established; this “supplementary or residuary jurisdiction,” as Maine aptly calls it, was exercised to form the Court of Chancery, and in due time it was held, as was inevitable, that this also had become an established Court, that the king’s power to do equity as well as strict legal justice had been completely delegated, and that accordingly he could not create any new equitable jurisdiction. It was no less inevitable that after this Equity should become a technical system (cp. Pollock, “The Expansion of the Common Law,” pp. 67-73).

Maine pointed out (E. L. and C., p. 166) that the early Roman law, “a stiff system of technical and ceremonious law,” “underwent a transformation through this very residuary or supplementary royal authority,” which under the Roman Republic was vested in the Praetor. “What has descended to so large a part of the modern world is not the coarse Roman law, but the Roman law distilled through the jurisdiction of the Praetor, and by him gradually bent into supposed accordance with the law of nature.”

As to the relation of our Court of Chancery to the law of nature, I endeavoured to sum it up two years ago in a course of lectures given in America: “The early Chancellors did not disclose the sources of their inspiration; probably they had as good grounds of expediency for not talking about the law of nature as the common lawyers.” The law of nature was intimately associated with the canon law, and for English lay people in the Middle Ages canon law signified obnoxious meddling of foreign ecclesiastics with English benefices and revenues, besides the vexatious and inquisitorial jurisdiction of bishops’ and archdeacons’ courts. “Certainly [the Chancellors] intended and endeavoured to follow the dictate of natural reason; and if their version of natural justice was somewhat artificial in its details, and bore a decided civilian or canonical stamp, this was only to be expected. Some centuries later, when British judicial officers in India were instructed to decide, in the absence of any native law applicable to both parties, according to “justice, equity, and good conscience,” the results bore, even more manifestly, the stamp of the Common Law” (“The Expansion of the Common Law,” p. 114).