stand alone. Most of the prominent statesmen, orators, and authors occupied themselves with ethical speculation; and this was no less true of the leading spirits of the following century. The great jurists of the Augustan and post-Augustan age, such as Antistius Labeo, Massurius Sabinus, and Cassius, refer to the Law of Nature as a source of law already familiar. Two influences were indeed at work, which gave to philosophy a greater prominence than it had perhaps ever enjoyed before or has ever enjoyed since. Faith in the old religions having practically vanished from the educated classes, some substitute was needed, and the more pure and earnest minds sought this in philosophy. The career of political life having been, in its old free form, closed by the vesting of all real power in the hands of one person, who presently became recognized as legally sovereign, men were more and more led to seek solace, or enjoyment, or at any rate occupation, in the study of metaphysics and ethics. Jurisprudence continued to be pursued by many of the most powerful and cultivated intellects; and philosophy was not only a main part of education which such men received, but claimed much of their time and thought. They were so permeated by it, that both its methods and its principles must needs influence their treatment of legal matters, whether as writers, or as magistrates, or as advisers of the monarch and framers of legislation. The idea of the Law of Nature as the source of morality and the true foundation of all civil laws, the idea of all mankind as forming one natural community of which all are citizens, and in which all are equal in the eyes of Naturethis idea had come to pervade the minds of thinking men, whether or no they were professed adherents of any school of philosophy. It was taken as a generally accepted truth, and was therefore assumed and referred to without adducing arguments on its behalf, far removed from the actual facts of the world as was the ideal to which it pointed.

The growth and acceptance of the doctrine may be compared with the process whereby certain notions, now pretty generally received in nearly all civilized countries, have made their way during the last two centuries. Such are the doctrines known in America as those of the Declaration of Independence, and in France as the principles of 1789. Such is the doctrine of the freedom of the individual conscience, and the consequent wrongfulness of religious persecution. These doctrines began to be asserted (especially in England) during the seventeenth century. They were diffused slowly, and constantly denied by the powers that be, but they have been now virtually accepted in principle by all thinking men. Few think it necessary to argue on their behalf; yet they are very far from having secured their full effect, for in some countries the rulers refuse to apply them, and in almost all countries they are admitted to be subject to exceptions which render their full application difficult. They represent rather an ideal towards which society is held to be moving, than a positive basis on which existing society is built.

Although, however, the Romans of the earlier imperial period saw that their conception of the Law of Nature was a long way from being realizable in such a world as was then present, they also discovered in the changes that had passed upon that world much which recommended the conception as true and sound. The extension of Roman dominion was completing the process which the conquests of Alexander the Great had begun. Eastern religions invaded the West; Greek and Latin became world-languages; commerce brought all the Mediterranean peoples together; nations and nationalities were blent and ultimately fused in a common subjection to Rome. The provincial rose as the old Roman citizen sank, so that equality came nearer and nearer. The old mutually exclusive systems of citizenship and law seemed obsolete; and therewith the traditional reverence for the ancient legal institutions

of the Quirites passed away, even from the conservative minds of lawyers 1. In particular the idea of a community of all mankind, as opposed to the small civic communities of earlier days, began to approach a realization in the great empire which had gathered all civilized men under its wings, had secured for them peace, order, and a just administration of the laws, and had admitted every one, whatever his race, tongue, or birthplace, to a career of honourable ambition in civil and military office, a career whose possibilities included even the imperial dignity itself.

For this all-embracing commonwealth, this societas omnium hominum, of which the Greek philosophers and Cicero had written, and which had taken concrete shape in the Roman Empire, there would seem to be needed some common law, since the ideas of law and state were correlative 2, according to the dictum, Quid est civitas nisi iuris societas 3? Now there was a law which could actually be applied to all Roman subjects, non-citizens and citizens alike, and which was supposed to be the law common to all men as being the law which all nations used, and which had therefore been applied by Roman Courts where persons outside the pale of Roman law proper were concerned. Just as the law of Rome drew its authority from the will of the people, whether signified expressly by enactments or tacitly by usage and consent, so this general law rested on custom, on the understanding and will of collective mankind, evidenced by their practice; and its source was therefore one which met and satisfied the view that the community are the source of law. Now this common law of mankind was

1 There does not, however, seem to be any ground for the notion that the Roman lawyers ever despised ius gentium as only fit for inferior people; that they deemed it an ignoble appendage to their civil law,' as Sir H. Maine says. That this was ever their feeling is mere surmise. No traces of such a view appear in our authorities.

* Not, of course, in the Austinian sense that law is only what the State has expressly enacted, for the ancients always dwell upon custom (mores maiorum, consuetudo inveterata, consensus utentium) as a chief source of law.

Cic. De Rep. i. 32. 49.

the ius gentium. Though in point of fact gathered and moulded by Roman Courts, it was deemed to represent the essence of the law which prevailed among various neighbour peoples, and of the usages which common sense and the needs of commerce had sanctioned among men in general, wherever dwelling. It was conceived of as being common to all mankind (ius commune omnium hominum1) (omni humano generi commune2), or as the law which exists among all peoples (ius quod apud omnes populos peraeque custoditur) (ius quo gentes humanae utuntur). It was applicable to persons who had no rights of citizens in any city (dróides) 5. It was coeval with the human race itself (cum ipso humano genere proditum 6). It was in all these respects contrasted with ius civile, just as the Law of Nature (ius naturale) was similarly contrasted. Finally it was the law which natural reason had created (ius quod naturalis ratio constituit 7). When this point had been reached, it became practically identical with the Law of Nature, and the identity, implicitly suggested in Cicero's remark that the agreement of all nations must be deemed a law of nature was formally enounced by jurists at least as early as the time of Hadrian. In Justinian's Institutes the identification is complete.

A third conception, to which reference has not yet been made, contributed to this fusion, viz. the conception of Equity (aequum et bonum, aequitas). Equity means to the Romans fairness, right feeling, the regard for substantial as opposed to formal and technical justice, the kind of conduct which would approve itself to a man of 1 Gaius, Inst. i. 1; Dig. i. 1, 9.

2 In Inst. Iust. i. 2, 2, taken from Marcian.

3 Gaius, Inst. i. 1.

4 Ulpian in Dig. i. 1, 1, 4.

5 Marcian in Dig. xlviii. 19, 17.

Gaius in Dig. xli, 1, 1, pr.

Gaius, Inst. i. 1. The formal express and specific identification is to be found only in some jurists, and is most explicitly stated by Gaius. There does not, however, seem to be sufficient ground for thinking (as Voigt, op. cit., argues) that there was any real difference of opinion among them. Their language on these points is seldom precise.

8 See p. 577, note 2, supra.

honour and conscience. It completes the idea of the higher kind of law by adding a third element, or rather a third source, that which springs from the breast of man and represents his natural sense of justice, his sympathetic good feeling towards his fellow men. Thus we may say that seen from the point of view of theology or metaphysics, this universal or Natural law is prescribed by God or by Nature. Seen from that of history and political science, it issues from the will of mankind, who, organized as nations, have created it by custom and practice. Seen from the side of ethics and psychology, it represents the tendencies and habits of the typical good man, who desires to treat his neighbour as he would wish to be himself treated. The coincidence of these three streams of origin or lines of thought enlarges the conception, defines it, gives to it, taken as a whole, a harmonious symmetry. Thus it becomes complete on its theoretical as well as on its practical side.

In the Roman jurists of the best age we note three qualities not always united in lawyers-a love for theoretical perfection, an attachment to ancient usage, and a sense of practical convenience. The first delivered them from the tyranny of the second, the second moderated their devotion to the first, the third found a middle term between the other two and guided them in the adjustment of principle to fact. The blending of the notion of Natural Law, as the ethical standard of conduct and the ideal of good legislation, with the notion of the law formed by the usages and approved by the common sense of all nations as embodying what was practically useful and convenient, satisfied both the philosophical and the historical instincts of the jurist. Had there been a similar combination of ideas and habits in the English jurists of the seventeenth and eighteenth centuries, our legal progress would have been more rapid, and, if the phrase be permissible, more ordered and rhythmical.