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.

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.

Chapter V. Page 109.