which deduced the powers of the Pope from Christ's words to St. Peter, and the powers of the Emperor either directly from God or mediately through the Pope, and which found the source of all other spiritual and temporal power in some sort of delegation from one or other of these potentates, had now vanished, and thinkers were much concerned to find a new and sounder foundation on which to plant the Monarch and the State. Thus Nature came to play a new part: and presently there appeared theories regarding an original State of Nature, a conception not necessarily connected with that of the Law of Nature, yet one which has historically been closely associated therewith. This newly-invented State of Nature was neither the Golden Age of Hesiod, nor the Saturnia regna of Virgil, nor the brutish savagery (mutum et turpe pecus) of Horace. The man of the State of Nature was highly intelligent, and he was also highly self-assertive. In Hobbes he appears as in perpetual war with his fellows 1; and that ingenious and uncompromising philosopher finds in this fact the basis of his theory of the State, holding that men, in order to get rid of their distracting strife, agreed with one another to surrender all their natural rights to get what they can for themselves by force into the hands of a Monarch, who thereby acquired a perpetual title to the obedience of all; the contract, since not made with him, being nowise dissoluble in respect of any misfeasance on his part. Locke, on the other hand, argues for a Natural Law which issues from Reason, is prior to all governments, and being superior to them entitles men to vindicate their natural rights against tyranny. With him, therefore, as with most thinkers of the seventeenth and eighteenth (and indeed also of earlier) centuries, Natural Law, being the offspring of Reason and the foundation of Natural Rights, is the ally of freedom. It is invoked, under the name of Natural Right, by the 1 With Hobbes compare the view of Spinoza, Tractatus Theologico-Politicus, cap. xvi.

framers of the Declaration of Independence in 1776, and therewith enters the field of modern politics as a conqueror. Contemporaneously the doctrine was being spread over the Old World by Rousseau in his theory of the State of Nature and the Social Contract (first published in 1762): and it presently became the basis of the Declaration of the Rights of Man made by the French Convention in 1789.

The old theory had now developed into a destructive political force. Any one can see to-day that this revolutionary quality was always latent in it: the singular thing is that, unlike most revolutionary ideas, it should have kept the explosive element so long dormant. That which had been for nearly two thousand years a harmless maxim, almost a commonplace of morality, became in the end of the eighteenth century a mass of dynamite, which shattered an ancient monarchy and shook the European Continent. Liberty, Equality, Fraternity, are virtually implied in the Law of Nature in its Greek no less than in its French dress. They are even imbedded in the Roman conception, but imbedded so deep, and overlaid by so great a weight of positive legal rules and monarchical institutions as to have given no hint of their tremendous possibilities.

Let us return from this glance at the political history of the conception to note three directions in which it has acted, in modern times, within the sphere of law proper.

The first of these is its action upon the law of England. Our system of Equity, built up by the Chancellors, the earlier among them ecclesiastics, takes not only its name but its guiding and formative principles, and many of its positive rules, from the Roman acquitas, which was in substance identical with the Law of Nature and the ius gentium. For obvious reasons the Chancellors and Masters of the Rolls did not talk much about Nature, and still less would they have talked about ius gentium. They referred rather to the law of God and to Reason. But

the ideas were Roman, drawn either from the Canon Law, or directly from the Digest and the Institutes, and they were applied to English facts in a manner not dissimilar from that of the Roman jurists. The very name, Courts of Conscience, though the conscience may in the immediate sense have been the King's, suggests that moral element on which the Romans insisted so strongly; and the wide, sometimes almost too wide, discretionary power which Equity judges exercised, finds its prototype in the passages in Roman texts which refer to natural equity as the consideration which guides the judge in qualifying, in special cases, the normal strictness of law. A passage in the remarkable little book called Doctor and Student, written by Christopher St. German early in the sixteenth century, observes that the term 'Law of Nature' is not much employed by English common lawyers, who generally prefer (it is remarked) to talk of the Law of Reason, and to say that such and such a rule is grounded in reason, or that reason points to such and such a conclusion. Nevertheless the author recognizes the Law of Nature or Reason as one of the three departments of the Law Eternal or Will of God, which is made known to man partly by Reason, partly by Divine revelation in the Scriptures, partly by the orders of princes or of the Church, having an authority derived from God. Some (it is added) say that all the law of England is part of the law of Reason; but St. German prudently doubts whether this can be proved. However, we have here another evidence of the influence of the old conception, and even, in the reference to a general Law of Nature shared in by unreasonable creatures (for all unreasonable creatures live under a certain rule to them given by Nature, necessary for them to the consideration of their being '), a recurrence of the old notion countenanced by Ulpian, that the Law of Nature extends to the lower animals as well as to mankind. Nor are dicta of English judges referring to the Law of Nature wanting.

Yelverton, under Edward the Fourth, says that in the absence of authority the judges should resort to the Law of Nature which is the ground of all laws.' And the law merchant, i.e. the customs commonly observed by traders of divers countries, is referred to as part of the Law of Nature by Lord Chancellor Stillington in the same reign 1. Here we have the old identification of ius naturae and ius gentium which was beginning in Cicero's days. Still later, the idea reappeared in the doctrine that as the Law of Nature is the foundation of all law, positive enactments plainly repugnant to it or to Cmmon Right and Reason (an equivalent expression) ought to be held invalid. Dicta to this effect were delivered by Lord Coke and by Lord Hobart, and were approved by Lord Holt; though little (if any) effect has ever been given to them. Similar references to the 'eternal principles of justice' as capable of overruling the acts of State legislatures may occasionally be gleaned from the reports of cases decided by American State Courts. Blackstone, repeating Cicero, declares that 'the Law of Nature is binding over all the globe in all countries no human laws are of any validity if contrary to this 2'; and he ascribes to 'natural reason and the just construction of law 3' the extension which his contemporary, Lord Mansfield, gave to the enforcement of implied contracts 3. So we find the Indian Civil Procedure Code of 1882 laying down that a foreign judgement is not operative as a bar if it is, in the opinion of the Court which deals with the question, contrary to natural justice.' But the chief practical applications in recent times of the ancient conception have, very appropriately, arisen where European judicial administration has been brought into contact with foreign semi-civilized peoples on whom the law of their European conquerors could not properly be imposed. Thus in British

1 I owe these references to Sir F. Pollock's Essay in Columbia Law Review, already mentioned.

2 Commentaries, Introd. § 2.

3 Ibid. bk. iii. chap. ix.

India the Courts have been directed to apply 'the principles of justice, equity, and good conscience 1' in cases where no positive law or usage is found to be applicable.

The second line of action is the part which the terms ius naturae and ius gentium played in the creation of International Law. That branch of jurisprudence has a twofold origin. It is due partly to customs which grew up among maritime nations in the course of trade, together with the usages and understandings which formed themselves in the diplomatic intercourse of States, partly to the doctrines thought out and delivered by a succession of legal writers, of whom the most famous are Hugo Grotius, Albericus Gentilis, Leibnitz, and Puffendorf. These thinkers, finding that large parts of the field of international relations were not covered by pre-existing custom, or that the existing customs were often discrepant, were obliged to seek for some general and permanent basis whereon to build up a system of positive rules. This basis could not be looked for in the laws of any State or States, because no such laws could have force beyond the limits of those States, and that which was needed was something which all States were to observe. Neither could it be expressly deduced from the Imperial Roman law, because the RomanoGermanic Empire had become a mere shadow of its former self, and the old Roman law, being the law of a State (though a World-State), did not contain all the necessary materials, not to add that anything imperial was in the earlier part of the seventeenth century regarded with suspicion by Protestants. Accordingly, Grotius and his successors recurred to the Law of Nature as being, according to the theory of the ancient Roman jurists, a law grounded in reason and valid for all mankind. They used it copiously, and some of them called their writings Treatises on the Law of Nature

1 See on this subject Sir C. P. Ilbert's Government of India, chap. vi. The expression equity and good conscience' in this connexion is as old as the Charter to the E. India Company of 1683; ibid. chap. i. p. 21.