The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 IV. Page 70.

NOTE G.

MEDIEVAL AND MODERN TREATMENT OF THE LAW OF NATURE: BRACTON: FRENCH PUBLICISTS.

Much that has been written about the law of nature in modern times is, as Maine says, extremely confused. This may be due to several causes, but one cause which would alone be sufficient is the neglect of the scholastic tradition, amounting to practical oblivion, which followed on the Reformation controversies. Hooker was the latest English writer who possessed the tradition, and accordingly stated a consistent and intelligible doctrine. What the canonists and schoolmen added to the classical Roman theory was the identification of the law of nature with the law of God revealed in human reason: in this way they reconciled the temporal authority of the Corpus Iuris and the moral authority of the philosophers (for Aristotle and Cicero, though heathens, had become almost sacred by orthodox commendations) with the spiritual authority of the Church. The natural revelation through reason and the supernatural revelation committed to the Church are equally divine, and cannot contradict one another; and the law of nature is no less paramount to any positive rule or custom of human origin than express revelation itself. The risk of this doctrine being turned against the Church or the Pope was, no doubt, serious, as later events proved; but it had to be taken. Hence the scholastic theory of the law of nature, though attempts were made to use it for the most opposite purposes, was on the whole rationalist and progressive. Indeed, it had several points of affinity with the utilitarian doctrine of our own times, although the founders of that school, who may be said to have neglected history on principle, were unaware of the fact. Natural justice had been identified by Epicurus with an agreement among men for their common advantage to abstain from harming one another (see Bryce, “Studies,” ii. 127). In the fourteenth century we actually find communis utilitas a current term with William of Ockham and others, and it is used to denote a criterion for ascertaining what the law of nature prescribes; and this was only the development of a tendency already visible in St. Thomas Aquinas. Maine perceived the analogy, and suggested that it might not be too fanciful to call natural law the ancient counterpart of Benthamism (p. 76).

Beyond the fundamental principles of natural justice, we may deduce by natural reason various rules which may or might be convenient in the absence of competent jurisdiction, but, as they are in matter of convenience and not of absolute right, may be modified by the law of the land. Rules of this kind were said to be secondary; and the so-called “state of nature” is, from the point of view of the schoolmen, merely human society conceived as governed by the “secondary law of nature” in default of positive ordinance, or any human society so far as it is actually found in that condition. Thus during a great part of the Middle Ages most of what we know as the law of contract was left to the law of nature, which was supposed to be the ultimate authority for the custom of merchants. Nothing can more strongly illustrate the confusion which resulted from neglecting this distinction than the modern belief that natural law as a whole depends on the “state of nature,” or assumes it to be better than civilisation. The scholastic habit of mind was alien from ours in many ways; but at any rate the schoolmen took some pains to know what they were talking about.

Hooker’s statement of the first principles, as understood down to the sixteenth century, is quite accurate, and perhaps the most profitable for English readers. The law of nature is a law of reason. Its rules “are investigable by Reason, without the help of Revelation supernatural and divine . . . the knowledge of them is general, the world hath always been acquainted with them. . . . It is not agreed upon by one, or two, or few, but by all. Which we may not so understand, as if every particular man in the whole world did know and confess whatsoever the law of reason doth contain; but this law is such that being proposed no man can reject it as unreasonable and unjust. Again, there is nothing in it but any man (having natural perfection of wit and ripeness of judgment) may by labour and travail find out.” But the law of nature does not include all binding laws: “we restrain it to those only duties, which all men by force of natural wit either do or might understand to be such duties as concern all men” (“Eccl. Pol.” I. viii. 10). A strange contrast to Hooker’s clear apprehension and intelligent use of the medieval tradition is presented by the loose talk about the law of nature and the law of reason (apparently supposed to be different things) in Sir Henry Finch’s “Discourse of Law,” published in 1613. Before the middle of the eighteenth century the conception of “the aboriginal reign of nature” had gained a footing, and the confusion was complete. No less a man than Montesquieu thought natural law could be defined merely as the rules that would have been appropriate for men living before the formation of civil society (“Esprit des Lois,” I. ii.). The vitality of the old doctrine had in truth passed into the new science built on its foundations by Grotius and his successors; and such ornamental references to the law of nature as occur in Blackstone and other English writers of his time are echoes of contemporary or recent Continental publicists whose real subject-matter was the law of nations in its modern sense. In later Continental and especially German usage natural law is taken, by a considerable but legitimate extension, to denote all speculative construction in jurisprudence and politics as contrasted with the purely historical or comparative study of institutions; in the terms most familiar to English readers, it covers the whole ground of general jurisprudence and the theory of legislation. Herbert Spencer’s volume on Justice and the essays of the Fabian Society would alike be classed as books of Naturrecht. Writers of the historical school who consider the law of nature obsolete include British utilitarian doctrine in their condemnation as a matter of course, as being a mere branch of it.

There are some incidental statements of Maine’s in this connexion which need comment. What is said about the unquestioning respect paid in the Middle Ages to written texts is undoubtedly true, and is indeed rather understated. Reverence for any plausible show of authority was not confined to theology or law, and it was not necessary that the text quoted should purport to have any obligatory force, or that the sense in which it was quoted should be the natural one. Aristotle was nearly as good authority as the Bible, though not quite; Cicero was only second to Aristotle; and the Corpus Iuris was “written reason” even in jurisdictions where it was not binding. But in default of the Vulgate or the Philosopher, learned writers were glad enough to quote Virgil or Ovid or Lucan, though without any intention of putting them on a level with Scripture. Maine’s particular illustration from “the plagiarisms of Bracton” is unfortunate. I do not know on what book or man having a pretended knowledge of Bracton he relied; certainly there were very few men living forty-five years ago who had studied Bracton to such purpose as to be qualified to inform him, and certainly he had not then made any critical examination of his own; but the solution of the historical enigma which Maine, with great reason, found in Bracton’s alleged wholesale borrowing from Roman law is simply that the fact is not so. Not one-thirtieth of Bracton’s matter, instead of a third as affirmed by Maine’s unknown authority, is taken from the Corpus Iuris (Maitland, “Bracton and Azo,” Selden Soc. 1895, p. xiv, which see on the whole matter). Bracton used Roman law, chiefly through Azo’s famous gloss, partly as a systematic framework and partly as a store of written reason to fill up gaps in English learning. He had no thought of putting it off on his countrymen as “pure English law,” any more than a lawyer at Paris would have sought to put it off as pure Parisian custom; there is no concealment of its origin. When actual English custom was contrary to Roman law, Henry of Bratton (for such, it is now known, was his real name) did not hesitate to deny the Roman propositions.

Maine’s remarks on the enthusiasm of French lawyers for natural law (p. 80 sqq.) seem rather to ignore its general reception by Continental publicists; though the centralisation of the French monarchy no doubt made it easier for them to have something like uniform official doctrine. The enfranchising ordinance of Louis Hutin cited at p. 90, which asserts that all men ought to be free by natural law, repeats an earlier one issued by Philip the Fair in 1311 (“Journ. Soc. Comp. Legisl.,” 1900, pp. 426-7). It is not very clear that the framers of this ordinance were thinking of the Roman maxim, “omnes homines natura aequales sunt” (or rather “quod ad ius naturale attinet omnes homines aequales sunt”: Ulpian in D. de div. reg. 50, 17, 32); for the general tone is decidedly more religious than secular, and the Church had always favoured manumission as a pious work. If they had wanted to vouch the authority of the Digest that slavery was not recognised by the law of nature, they might easily have made the reference more pointed. That Ulpian did not mean to preach an ethical or political creed of equality is, as Maine says, plain enough; his assertion is that slavery (like other inequalities of condition) is justified only by positive law. At the same time no medieval publicist who desired to use the passage for his own purposes would have troubled himself about the author’s original intention.

NOTE H.

THE ORIGINS OF THE MODERN LAW OF NATIONS.

Maine’s statement (p. 92) seems to ignore the continuity of Grotius and his immediate precursors with the scholastic doctrine. It is true that the spread of the New Learning, and still more the Reformation, did largely increase the weight of the classical and diminish that of the medieval elements; but it is also true that Grotius did not rely exclusively on Roman or on legal authorities. That Grotius and his contemporaries misunderstood the classical ius gentium, or supposed the modern rules of conduct between sovereign states to be contained in it, I am unable, with great respect for any suggestion of Maine’s, to believe. The term had become less common than its practical synonym ius naturale in the Middle Ages, but came into fashion again with the Renaissance. Grotius, like Alberico Gentili, takes ius gentium as the rule of natural reason attested by general agreement, and makes it the starting-point of a new development. He may or may not have known that in its classical meaning it could, and sometimes did, include, among other rules of conduct sanctioned by general usage, whatever rules are reasonable and customary as between sovereign states. But as a scholar he must have known that gentes is not the plural of civitas or populus, which are the only apt words in classical Latin for a state or nation in its political capacity. At the same time Suarez had spoken of iura gentium with an approach to the modern “law of nations,” and Hooker had used the English term in a fully international sense (“Eccl. Pol.” I. x. § 12). There was no reason for Grotius to refuse the assistance of a verbal ambiguity, so far as it existed and could further his purposes (cp. L.Q.R. xviii. 425-8). The modern law of nations embodies certain distinctly legal conceptions. These are Roman and purely Roman. Inasmuch as, from the sixteenth century onwards, Roman law was generally received throughout Western Christendom, with the one material exception of England, as a kind of universal law, there is nothing surprising in this fact, and indeed nothing else could have happened. Maine’s following observations (p. 98 sqq.) as to the application of Roman ideas in the modern law of nations, and especially the treatment of every independent State, with regard to its territory, as if it were an owner or claimant of ownership under Roman law, and the relatively modern character of purely territorial dominion, show the author at his best. The theoretical equality of independent States naturally follows from their recognition as analogous to free persons, who must have full and equal rights in the absence of any definite reason for inequality. This indeed is all that the maxim of men’s equality before the law of nature declares or involves according to its classical meaning (p. 96).

It is interesting in connexion with Maine’s thesis to observe how in our time the usual rules of international law cease to be applicable, or fail to give an adequate solution of difficulties, just in proportion as the fact of territorial sovereignty is not complete and definite. This is now of frequent occurrence in cases of “spheres of influence” in unsettled parts of the world, of protectorates, and of what are called semi-sovereign States dependent in various degrees on other and more powerful ones. In the last-named class we may notice a certain reversion to feudal conceptions. It would have been much easier to express the relations of Great Britain to the late South African Republic in medieval than in classical Latin. As to the Anglo-Saxon kingship, it should be remembered that the English kings never owed or rendered any temporal allegiance to the Empire and any other power, or that the assumption of the imperial title “Basileus” involved a pretty strong claim to temporal supremacy within approximately certain territorial limits. In this respect the situation of England was peculiar. Modern national sovereignty may be regarded, in a general way, as a reaction against both the feudal and the imperial conceptions. Rulers of the Middle Ages, as and when they felt strong enough, expressly or tacitly renounced both homage to any overlord and submission to the Emperor. A German electoral prince or grand duke in the decadence of the Holy Roman Empire, say the Elector of Brandenburg, is from the strictly feudal point of view an overgrown tenant of the Emperor who has added one “immunity” to another till he has strained the tie of fealty to the breaking point. From the strictly imperial point of view, if it had been maintained to any practical purpose, he would or might be a rebel. Feudal tenure, however, probably led to the notion of the territory ruled by a sovereign prince being really—not by mere analogy to ownership in private law—his property. For, so long as overlordship was a reality, every principality, short of the Empire and the few monarchies which did not acknowledge the Emperor as superior, was in theory a “tenement”; and in the feudal system a tenement is indistinguishable from property; for absolute property is not recognised save in the supreme overlord, as is the strict theory of English and Scottish law to this day. This ultimate and now shadowy feudal superiority has nothing to do with the modern and purely political conception of Eminent Domain, though more than once they have been confused by able writers.

It must not be supposed, however, that medieval lawyers were incapable of distinguishing between territorial sovereignty and feudal overlordship. The distinction was clearly made in 1284 by the framers of Edward I.’s Statute of Wales. In its preamble the king is made to acknowledge the bounty of Providence whereby the land of Wales, formerly subject to him as a fief, has been wholly reduced into his lordship in possession and annexed to his crown as part of the body of the kingdom.