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fore are ignorant of the various complicated rights which, in civilized societies, grow out of this relation. Again, with respect to marriage, monogamy is recognised by the law of the most civilized nations, both ancient and modern ; but the law of the Oriental nations, as well as of the ancient Mexicans and Peruvians, has always sanctioned the practice of polygamy.(0) Moreover, the rules as to the permitted degrees of consanguinity and affinity for marriage have differed widely in different countries. (*) No legal institution was more universally diffused throughout the ancient civilized world than slavery; it was pre-eminently juris gentium. The law of modern civilized states rejects slavery; having, however, admitted it, in the qualified form of villenage or serfage, up to a comparatively recent date. The torture of slaves for judicial purposes was a principle of Greek and Roman jurisprudence, though the torture of freemen was an exceptional measure. In Oriental countries, no limit has existed to the use of torture for the extraction of evidence from suspected persons. The use of torture was recognised by the law of all European countries, except England, up to the French revolution :(*) it was, amongst the continental nations, an institution juris gentium. Since that time, its use has been legally abolished
(20) Selden considers polygamy as an institution of natural law. See the chapter, De polygamiâ ex jure naturali, seu universali illo quod tum ante legem Mosaicam, tum post, juxta Ebræos pariter obtinuit,' in his treatise, De Jure Naturali et Gentium sec. disc. Ebræorum, v. 6.
(21) • De conjugiis eorum, qui sanguine aut affinitate junguntur, satis gravis est quæstio, et non raro magnis motibus agitata. Nam causas certas ac naturales, cur talia conjugia, ita ut legibus, aut moribus vetantur, illicita sunt, assignare qui voluerit, experiendo discet, quam id sit difficile, imo præstari non possit.'-Grotius de J. B. et P. ii. 5, § 12. Compare Nepos, præf.: 'Neque enim Cimoni fuit turpe, Atheniensium summo viro, sororem germanam habere in matrimonio; quippe quum ejus cives eodem uterentur instituto. At id quidem nostris moribus nefas habetur.'
(22) As to the law concerning torture in France, see Granier de Cassagnac, Hist. des Causes de la Rév. Française, tom. i. p. 398-400. The parliaments refused to register the decree of Louis XVI., in 1788, abolish. ing the question préalable ; that is to say, torture after sentence of death, for the purpose of extracting a confession of accomplices. At that time, therefore, professional opinion in France was in favour of torture, within the limit indicated. The embarrassed manner with which Montesquieu treats the subject is very perceptible, Esprit des Lois, vi. 17; published in 1748.
in Europe. The legal responsibility of magistrates and public officers to the people for their acts was a practical principle generally recognised in the ancient republics; but no such principle could be admitted in any country under a despotic monarchy.
When, therefore, we speak of universal principles of jurisprudence, meaning certain practical principles recognised in the positive laws of all states, it will be found that few or no such principles exist, though there is a general agreement among civilized nations, and, indeed, among nations at the same degree of civilization, in the recognition of certain common principles of this sort.(*) No principles of law are, in strictness of speech, ubiquitous.
Accordingly, all attempts to found a universality of legal principles upon a supposed · law of nature,' a law which nature is declared to have engraved upon the hearts and implanted in the bosoms of men—to establish a universal standard of legislation, by the name of natural justice,' or 'natural equity,' and to set up certain ' natural rights,' to which the positive law of every state must yield, are necessarily vain and delusive. (24) The
(23) This subject is illustrated incidentally in Story's work, On the Conflict of Laws, in which it may be seen to what extent the laws of modern civilized nations, agreeing in substance, differ in their practical principles. The following passage will serve as an example :- To make a contract valid, it is a universal principle, admitted by the whole world, that it should be made by parties capable to contract; that it should be voluntary; that it should be upon a sufficient consideration; that it should be lawful in its nature; and that it should be in its terms reasonably certain. But upon some of these points there is a diversity in the positive and customary laws of different nations. Persons capable in one country are incapable by the laws of another; considerations good in one country are insufficient or invalid in another ; the public policy of one country permits or favours certain agreements which are prohibited in another; the forms prescribed by the laws of one country to insure validity and obligation of contracts are un. known in another; and the rights acknowledged by one country are not commensurate with those belonging to another.'—Conflict of Laws, § 232. Elsewhere he says ($ 270) : There are general rules of interpretation, recognised by all nations, which form the basis of all reasoning on the subject of contracts. C'est la règle des règles, et générale loi des lois, que chacun observe celle du lieu où il est,' says Montaigne (i. 22); but even this universal rule is subject to numerous exceptions.
(24) Upon the meaning of natural law, see Selden, ib. lib. i. c. 3 ; Grotius, J. B. et P. proleg. 5, 6, lib. i. c. 1, § 10; Puffendorf, 1. ii. c. 3 ;
only propositions of jurisprudence which admit of universality are descriptive propositions: no preceptive propositions, no propositions laying down a legal rule, are universal. All those
Vatel, introd. $ 6-11 ; Montesquieu, Esprit des Lois, i. 2. With respect to the insufficiency of the test, see Bentham, Traités de Législation, tom. i. p. 12; Comte, Traité de Législation, liv. i. c. 9 and 10. On the non-existence of natural laws, and the diversity of national laws, see Montaigne, Essais, ii. 12. Compare Stewart's First Dissert. p. 86, 93.
• I call natural laws those which nature dictates in all ages, to all men, for the maintenance of that justice which she (say what they will of her) hath implanted in our hearts. Theft, violence, homicide, ingratitude to beneficent parents, perjury against innocence, conspiracies against one's country, are crimes that are universally and justly punished, though with more or less severity.
I call political laws those that are made in compliance with present necessity, whether it be to give stability to the government, or to prevent misfortune.'— Voltaire, Commentary on Beccaria, c. 14; Engl. tr.
S'il n'existoit pas une loi écrite, il existoit des coutumes universelle. ment révérées, plus puissantes chaque jour par cela même, qu'elles étoient plus antiques. Ces coutumes étoient de véritables lois ; elles en avoient toute la force : on pourroit citer des peuples dont les institutions furent célèbres, et le sont encore, quoi qu'elles n'aient jamais été confiées à la mémoire des hommes. Parlerons nous de cette loi plus ancienne que tous les décrets, aussi ancienne que le genre humain? Fondée sur ce qui convient le plus à nos facultés, å notre organisation, à nos besoins, elle est comme le centre d'où partent et où doivent aboutir tous nos sentimens, toutes nos affections, tous nos droits, tous nos devoirs. Des rivages glacés d'Archangel aux terres fécondes de la Sicile, la loi naturelle atteint tous les hommes ; elle les atteint sous le dais d'un trône comme sous le toit usé d'une cabane antique ; elle atteint leurs actions comme leurs pensées, dirige leur instinct, corrige leurs penchans, domine leur conscience : elle inspire les seules règles qui puissent partout et toujours déterminer le véritable intérêt de tous, et assurer par la vertu ce bonheur, objet constant des sociétés humaines.'—Pastoret, Traité de la Legislation, tom. i. p.
32. The application of the word law both to external and human nature was familiar to the ancients ; thus, in Ovid, Met. xv. 71 : 'quà sidera lege mearent.' Lucan, i. 641-5 :
• Aut hic errat (ait) nullâ cum lege per ævum
Humano matura lues.' See also ü. 2, 10; x. 228. The same application of the word lex to laws of nature occurs in the following passages : ‘Fruges maturitatem statuto tempore expectant : adeo etiam illa, sensûs omnis expertia, tamen suâ lege mitescunt. ---Curt. vi. 3. Quid ergo miramur cometas, tam rarum mundi spectaculum, nondum teneri legibus certis : nec initia illorum finesque notescere, quorum ex ingentibus intervallis recursus est ??-Seneca, Nat. Quæst. vii. 25.
The phrase "lex naturæ' was also applied to the moral world. It was a saying of Epicurus, that 'divitiæ sunt ad legem naturæ composita paupertas.'--Seneca, Ep. 27, § 8.
methods which attempt to universalize the matter, as well as the form of law, are fallacious. At the best, they serve to confuse, and not unfrequently they lead to practical errors of serious magnitude, by investing with a fictitious dignity a set of principles, which persons possessed for the moment of supreme power, in some country, have thought fit to call natural.
As there are no universal principles of the civil jurisprudence which belongs to each community, so there are no universal principles of international law which are common to all communities. The proof of this proposition has been satisfactorily set forth by Mr. Ward, in his History of the Law of Nations: What is commonly called the law of nations (he says) is not the law of all nations, but only of such sets or classes of them as are united together by similar religions and systems of morality.'(5) Afterwards he adds : 'We see, then, the effect of religion, morals, and government, not only upon the genius and laws of particular people, but upon whole districts of the earth; and where there are such opposing principles acting upon the minds and conduct of different classes of nations, it is in vain that you expect them all to conform to the same law in their public intercourse ; equally, perhaps, in vain, as if you expected the spirit of every government, and of every code of municipal law, to be the same throughout those states which, according to us, obey the same law of nations. When, therefore, we make use of the common expressions, the law of nations,' or 'the whole world, they are seldom to be taken in the extensive sense which is implied by those terms, but always with such modifications as the subject we may happen to be upon will point out to us. Thus, in relating the transactions of Indian or African empires, such expressions would merely mean the law of Indian or African nations, and the Indian or African world; and so, also, in our own daily transactions in Europe, we mean by them nothing more than the law of the European nations, or the European world.?(6) Again, he remarks that when we, natives of Europe,
(25) Ch. 4, vol. i. p. 127.
(26) Ib. p. 157.
or of European colonies, speak of the law of nations, we mean only the nations of our own set—that is, of Europe. (-4)
The theory of a universal natural law, and of universal natural rights, is often connected with the belief in a state of nature ;' as to which we shall say more hereafter.(*) By the state of nature, is meant that state in which each community is assumed to have been before the formation of its government. It is further assumed that we are informed concerning this state of things; and, next, that a certain law and certain rights existed in this assumed state of nature, which law and rights either are, or ought to be, still in force. The whole reasoning consists of a series of arbitrary assumptions, which fall asunder upon the first touch of criticism ; its currency and acceptance have been owing to the habit, illustrated elsewhere,(*) of taking for granted that the origin of every community is known to us as a matter of fact, and that we can argue down from it to the actual state of things, as from a fixed point.(30)
The attempt to found universal principles of legislation and jurisprudence upon a supposed state of nature, may be compared with the attempt to found a universal rule of Christian faith upon
(27) Ib. p. 162. Wheaton (Elements of International Law, part i. ch. 1, § 9) lays it down, that there is no universal and immutable law of nations binding upon the whole human race.
(28) Below, ch. xviii. $ 6; ch. xxii. $ 20. (29) Below, ch. xxvii. § 3.
(30)' Of all the terms that we employ in treating of human affairs, those of natural and unnatural are the least determinate in their ineaning. Opposed to affectation, frowardness, or any other defect of the temper or character, the natural is an epithet of praise ; but, employed to specify a conduct which proceeds from the nature of man, can serve to distinguish nothing, for all the actions of men are equally the result of their nature. At most, this language can only refer to the general and prevailing sense or practice of mankind; and the purpose of every important inquiry on this subject may be served by the use of a language equally familiar, and more precise. What is just or unjust? what is happy or wretched, in the manners of men P what, in their various situations, is favourable or adverse to their amiable qualities ? are questions to which we may expect a satisfactory answer; and whatever may have been the original state of our species, it is of more importance to know the condition to which we our. selves should aspire, than that which our ancestors may be supposed to have left.'-Ferguson's Essay on the History of Civil Society, part i. scct. i.