V. RELATION OF NATURAL LAW TO GENERAL There are, however, misconceptions against which we must be on our guard in grasping and appraising this identification of Natural Law with the sum of that which is common in the customs of mankind. In the first place it was not a complete identification. There were some points in which Natural Law and the Law of the Nations differed, and one of these was of profound importance. That point was Slavery. It was universal in the ancient world, and so must be deemed a part of ius gentium. But philosophers had pointed out (even before the time of Cicero) that it was contrary to nature 1. Here, therefore, is a large department in which the sanction of Nature could not be claimed for this part of ius gentium any more than it could for much of ius civile. Slavery, says one jurist, is an institution of the Law of the Nations, whereby one man is subjected to the ownership of another against Nature 2. And where we find the rigour of the old law of Slavery modified, this is always said to be in deference to nature and humanity, not to anything in ius gentium. And the Roman jurists indeed go so far as to hold that by Nature all men are equal 3. So on the other side there were some provisions of statute law (for instance, in the rules regarding inheritance) which, though they had been suggested by principles ascribable to the Law of Nature, were, as resting on Roman statutes, referred to the category of ius civile rather than to that of ius gentium. Secondly, the Romans did not, when they referred any particular institution to the ius gentium, necessarily intend to convey that it was universally prevalent. The origin of hypotheca for instance (mortgage of immova 1 Ulpian in Dig. 1. 17, 32. Dig. i. 5, 4, § 1: cf. Inst. i. 5 ; Gaius, Inst. i. 52. The doctrine that slavery is against nature was older than Aristotle, who does not accept it. The orator Alcidamas (a contemporary of Socrates) said ¿devēépous ἀφῆκε πάντας θεός· οὐδένα δοῦλον ἡ φύσις πεποίηκεν. See W. L. Newman's Politics of Aristotle, Introduction, p. 141. bles) and of the syngraphe (written acknowledgement of a debt) was due to Greek usage, and by no means general over the world. These legal institutions, however, since they did not belong to Roman law proper, were held to be part of ius gentium. Thirdly, there is no ground for thinking that when the Roman jurists said that Natural Reason was the source of ius gentium, they had altered their historical view of the origin and character of the latter body of law, or fancied that there ever had been an age, however remote, however simple and primitive, during which its precepts, in any concrete shape they knew or could imagine, had actually prevailed among mankind. The expression 'lost Code of Nature,' which a distinguished writer has used 1, is therefore an unfortunate one, for it seems to imply that the Romans were under the belief that there had once been a so-called State of Nature, in which the ius gentium served as law. So far were they from such a delusion 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 2 and war was unknown— 'Necdum etiam audierant inflari classica, necdum Their identification of the Law of Nature, which they accepted as a doctrine of philosophy, with the Law of Nations, which their courts had been administering and their text-writers expounding for two or three centuries at least, affected neither the essentially ideal character of the former nor the distinctly practical character of 1 Sir H. Maine in Ancient Law. It will be seen that the view which he takes of ius gentium and ius naturae seems to me to be in several points at variance with the facts; but I need hardly say that no one feels more strongly than I do the value of the stimulus to English study and thought on these subjects which his fertile mind and brilliant treatment have given, and for which all subsequent writers must be grateful. 2 Cf. Macrob. Saturn. i. 7; and Justin. Hist. xliii. 1, who says that not only slavery but also private property was unknown under the reign of Saturn, so great was his justice! 3 Virg. Georg. ii. 539. the latter. Had it done either of these things it might have worked for evil. But in point of fact it did not palpably quicken the pace of legal reform, nor did it induce any theoretic vagueness in their views of law, or suggest crochets or subtleties which could impede the manipulation of positive rules. The jurists use the two terms as practically synonymous, though generally employing ius naturae or naturalis ratio when they wish to lay stress on the motive or ground of a rule, ius gentium when they are thinking of it in its practical application. To borrow the language of logic, the connotation of the two terms is different, while their denotation (save as aforesaid, and especially save as regards slavery) is the same. Thus happily united by a synthesis which satisfied at once the practical good sense and the philosophic temper of the Roman jurists, the two conceptions of the Law of Nature and the Common Law of Mankind went on their way rejoicing. But after a while an event befell which deprived the latter expression of its ancient concrete basis, and rendered it, except for historical purposes, and as a description of a body of rules of a particular historical origin, virtually obsolete. This was the extension of Roman citizenship to all the subjects of the Roman Empire by an edict of the Emperor Antoninus Caracalla between 212 and 217 A.D., an act which destroyed the distinction between ius gentium and ius civile so far as the persons governed by each were concerned, for there were thereafter comparatively few peregrini (non-citizen subjects), since ius civile was now enjoyed by all the dwellers in the Roman world 1. This may be 1 There remained as aliens (1) the class called dediticii, the lowest species of freedmen, (2) persons deprived of citizenship as a punishment for crime, (3) foreigners, i.e. subjects of some other State temporarily resident in the Empire, and probably also persons imperfectly manumitted subsequently to the Edict, together (possibly) with the inhabitants of territories added to the Empire subsequently to the Edict. See Muirhead (Historical Introduction to the Private Law of Rome, 2nd edition, by Professor Goudy, p. 319), and, for a fuller discussion of the topic, Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des Römischen Kaiserreichs, chap. vi. one of the reasons why, in the constitutions of the Emperors collected in the Codes of Theodosius the Second (A.D. 438) and of Justinian (A.D. 534), constitutions the earliest of which date from Hadrian, the term ius gentium never occurs. It is frequent in the Institutes of Justinian (A.D. 533), but that book (based on the Institutes of Gaius) is, although a statute, yet primarily a manual for learners who were going to use the extracts from old jurists contained in the Digest, so that the term could not be omitted. When the later Emperors wish to assign a ground for some enactment which they are issuing, they commonly speak of Nature, or Natural Reason, or Humanity, or Equity, using these words almost indiscriminately to describe the same thing. VI. MEANING ATTACHED BY THE ROMAN JURISTS Now let us inquire a little more closely what the Roman jurists and legislators meant to convey when they talk of Nature, or the Law of Nature, and what are the positive rules of law which they ascribe to this source, or established in obedience to this principle. The following senses in which they use the word Nature may be enumerated, though these cannot be sharply distinguished, for some run into others. 1. The character and quality of an object, or of a living creature, or of a legal act or conception (e.g. natura venenorum, natura hominum, natura apium (fera est), natura contractus, natura dotis). 2. The physical system of the Universe (rerum natura), and the character which it bears. Thus it is said that Nature has taken some objects (e.g. the sea and air) out of the possibility of private ownership. 3. The physical ground of certain relations among men, as for instance of blood relationship (cognationem natura constituit). So the rule that children born out of wedlock follow the condition of the mother is ascribed to Nature (liberi naturales); so the rule that persons under puberty should have a guardian. 4. Reason, whether in the sense of logic and philosophical principle on the one hand, or as meaning what we should call 'common sense' on the other, is often denoted by the term Nature. Nature (it is said) prescribes that no one should profit by harm and injury to another, and that whoever bears the disadvantages of a thing should also reap the advantages of it; and Nature allows a buyer to make a profit on a re-sale. The expression Natural Reason (naturalis ratio) is commonly used when the former meaning is to be conveyed, and Paulus indeed says that Natural Reason is a sort of tacit law. To use the term Reason as equivalent to common sense and convenience comes very near the doctrine that Utility is the basis of law, and the word utilitas is frequently employed by the Romans. 5. Good feeling and the general moral sense of mankind. For instance, Nature directs that parents should be supported by their children, and that a freedman should render a certain respect and help to his patron. Nature prohibits theft, and makes certain offences (e.g. adultery) disgraceful, while other offences are not necessarily base (turpia). So—and this is an interesting illustration of Roman sentiment-it is against Nature to contemplate the probability that a freeman may become a slave-although this is an event which may sometimes happen. One may refer either to this or to the preceding category the ascription to Nature of the principle that faith must be kept by a debtor, even where he has not bound himself in a formal way. (Is Natura debet quem iure gentium dare oportet, cuius fidem secuti sumus.) One jurist only, Ulpian, gives a yet further sense to the term Law of Nature, making it cover those instincts and physical relations which other animals have in common with man, and which may be called the raw mate |