Chapter XIV: Sir H. Maine on the Law of Nations (1)

Dr Newman in his inaugural discourse as Rector of the Dublin
University ("On the Place held by the Faculty of Arts in the
University Course"), which I think never received the attention it
deserved, has with a few masterly touches sketched the history of
Western civilisation, which in its main lines may be considered
to run into, and be found identical with, the tradition I am now
regarding--with this difference, that Dr Newman regards Western
civilisation in its progressive, whereas we are concerned with its
traditive aspects. Dr Newman says: "I take things as I find them
on the surface of history, and am but classing phenomena (I have
nothing to do with ethnology). Looking, then, at the countries
which surround the Mediterranean seas as a whole, I see them from
time immemorial the seat of an association of intellect and mind
such as to deserve to be called the intellect and mind of human
kind. Starting and advancing from certain centres, till their
respective influences intersect and conflict, and then at length
intermingle and combine, a common thought has been generated,
and a common civilisation defined and established. Egypt is one
starting-point, Syria another, Greece a third, Italy a fourth (of
which, as time goes on, the Roman empire is the maturity, and
the most intelligible expression), North Africa a fifth, ... and
this association or social commonwealth, with whatever reverses,
changes, and momentary dissolutions, continues down to this day....
I call it, then, pre-eminently and emphatically Human Society,
and its Intellect the Human Mind, and its decisions the sense of
mankind and its humanised and cultivated states--civilisation
in the abstract; and the territory on which it lies the _orbis
terrarum_, or the world. For unless the illustration be fanciful,
the object which I am contemplating is like the impression of a
seal upon the wax; which rounds off and gives form to the greater
portion of the soft material, and presents something definite to
the eye, and pre-occupies the space against any second figure, so
that we overlook and leave out of our thoughts the jagged outline
or unmeaning lumps outside of it, intent upon the harmonious circle
which fills the imagination within it." ("There are indeed great
outlying portions of mankind, ... still they are outlying portions
and nothing else, fragmentary, &c., protesting and revolting
against the grand central formation of which I am speaking, but
not uniting with each other into a second whole.") The same _orbis
terrarum_, which has been the seat of civilisation, has been
the seat of the Christian polity. "The natural and the divine
associations are not indeed exactly coincident, nor ever have
been." "Christianity has fallen partly outside civilisation and
civilisation partly outside Christianity; but on the whole the two
have occupied one and the same _orbis terrarum_.... The centre of
the tradition is transferred from Greece to Rome.... At length the
temple of Jerusalem is rooted up by the armies of Titus, and the
effete schools of Athens are stifled by the edict of Justinian....
The grace stored in Jerusalem, and the gifts which radiate from
Athens, are made over and concentrated in Rome. This is true as
a matter of history. Rome has inherited both sacred and profane
learning; she has perpetuated and dispensed the traditions of Moses
and David in the supernatural order, and of Homer and Aristotle
in the natural. To separate these distinct teachings, human and
divine, is to retrograde; it is to rebuild the Jewish temple and
to plant anew the groves of Academus; ... and though these were
times when the old traditions seemed to be on the point of failing,
somehow it has happened that they have never failed.... Even in
the lowest state of learning the tradition was kept up;" ... and
this experience of the past we may apply to the present, "for as
there was a movement against the classics in the Middle Ages, so
has there been now.... Civilisation has its common principles, and
views, and teaching, and especially its books, which have more or
less been given from the earliest times, and are in fact in equal
esteem and respect, in equal use, now, as they were when they were
received in the beginning. In a word, the classics and the subjects
of thought and study to which they give rise, or to use the term
most to our present purpose, the arts have ever on the whole been
the instruments which the civilised _orbis terrarum_ has adopted;
just as inspired works, and the lives of saints, and the articles
of faith and the Catechism have been the instrument of education
in the case of Christianity. And this consideration you see,
gentlemen (to drop down at once upon the subject of discussion
which has brought us together), invests the opening of the schools
in arts[282] with a solemnity and moment of a peculiar kind, for
we are but engaged in reiterating an old tradition, and carrying
on those august methods of enlarging the mind, and cultivating
the intellect and ripening the feelings, in which the process of
civilisation has ever consisted."--_Dr Newman on Civilisation._

[282] _I.e._, "The teaching and government of the University
remained in the Faculty of Arts," and not in the faculty
of theology or law or modern philosophy. I have for my
own purposes of condensation been obliged to take certain
unpardonable liberties of transposition in the above abstract,
for which I can only plead my necessity. I should not in any
case have so exceeded in quotation, were this very masterly
address at all accessible, but, as far as I know, it is only
to be found in the _Catholic University Gazette_, November 16,
1854.

In order to show the full significance of these extracts
from Dr Newman, and also their bearing on points still to be
discussed, I will append the following suggestive passage
from Sir H. Maine's "Ancient Law," p. 22:--"It is only with
the progressive societies that we are concerned, and nothing
is more remarkable than their extreme fewness. In spite of
overwhelming evidence, it is most difficult for a citizen of
Western Europe to bring thoroughly home to himself the truth
that the civilisation which surrounds him is a rare exception
in the history of the world. The tone of thought common
among us, all our hopes, fears, and speculations, would be
materially affected, if we had vividly before us the relation
of the progressive races to the totality of human life. It is
indisputable that much the greatest part of mankind has never
shown a particular desire that its civil institutions should
be improved since the moment when external completeness was
first given to them by their embodiment in some permanent
record.... There has been a material civilisation, but instead
of the civilisation expanding the law, the law has limited the
civilisation."

I must also express my belief that if Mr Lowe had read the
lecture of Dr Newman, he would have very much modified
the views he enunciated in his lecture on "Primary and
University Education," at the Philosophical Institution at
Edinburgh.--_Times_, November 4, 1867.

Before examining Sir H. Maine's view on the Law of Nature and the Law of Nations, it will perhaps facilitate the inquiry if I gather up, out of the evidence which has accumulated in the previous chapters, such conclusions as will show how we stand in regard to Sir H. Maine's general theory.

I. Accepting Sir H. Maine's dictum that "the family and not the individual was the unit of ancient society;" and, in a certain sense, the further position, that it is difficult "to know where to stop, to say of what races of men it is _not_ allowable to lay down that the society in which they are united was originally organised on the patriarchal model,"[283] I venture to maintain against Sir H. Maine the continuance of family life in a quasi state of nature, before either the development or creation of the State.

[283] "Ancient Law," p. 123.

II. But in maintaining that there was a period in human history anterior to the formation of governments, I am far from asserting--on the contrary, I distinctly repudiate the notion--that there was ever an ante-social state. Society is complete within the family circle;[284] and society in any wider organisation is only the requirement and consequence of imperfection and corruption within the family, or of collision between families. Undoubtedly, there were instances in which the State grew up imperceptibly out of the extension of the family into the patriarchal system;[285] but these instances will probably have occurred among the families who remained stationary, whether by right of seniority, or by virtue of superior power, at the central point from which the Dispersion commenced. So long, however, as family government sufficed, there would have been nothing but the family; but when mankind increased, and actual relationship died out, disputes must have multiplied and become complicated--not only between individuals but between families; hence the necessity of State government--hence the necessity of an appeal on the part of individuals from the family to some supreme authority. This would be the first mode in which governments would have arisen among those who came under the action of the Dispersion. But even here--assuming the family groups to have descended from the same progenitor--we see first the family, first property, then the State. The second mode would be where several families, differing in language and race, came together and formed States.[286] Although they would have come together on unequal and varying conditions, yet they would necessarily have come together on some conditions, and for the mutual protection of their rights, their property, and their personal security. In all such cases there would have been something of a recognition and adjustment of rights, something of the nature of a compact more or less explicit, but much more formal and explicit in this mode than in the former. In any case, the end and intention of the formation of States and governments would have been the security of rights, as Cicero tells us:--"Hanc enim ob causam maxime _ut sua tuerentur_ respublicæ civitatesque constitutæ sunt. Nam etsi, duce naturæ, congregabantur homines, _tamen spe custodiæ rerum suarum_ urbium præsidia quærebant." But does not Sir H. Maine himself supply similar testimony? Referring to the notions of "primitive antiquity," he says:--

"How little the notion of injury to the community had to do with
the earliest interferences of the State, through its tribunals,
is shown by the curious circumstance, that in the original
administration of justice the proceedings were a close imitation
of the series of acts which were likely to be gone _through in
private life_ by persons who were disputing, but who afterwards
suffered their quarrel to be appeased. The magistrate carefully
simulated the demeanour of a _private arbitrator, casually called
in_."--Chap. x. 374; _vide_ also pp. 375, 376.

[284] It by no means follows that God does not will, and did not
foreordain society in its wider organisation, according to the
conditions and circumstances out of which it arose.

[285] Sir H. Maine says (p. 124):--"The points which lie on the
surface of history are these: the eldest male parent--the
eldest ascendant--is absolutely supreme in his household. His
dominion extends to life and death, and is as unqualified
over their children and their _houses_ as over his slaves.
The flocks and herds of the children are the flocks and herds
of the father." [This is not borne out by what we read of
Abraham and Lot, Esau and Jacob--_e.g._, "But Lot also, who
was with Abraham, _had_ flocks of sheep, and herds and tents.
Neither was the land able to bear them, that they might
dwell together" (Gen. xiii.) "And the possessions of the
parent, which he holds in a representative rather than a
proprietary character, are equally divided at his death among
his descendants in the first degree, the eldest son sometimes
receiving a double share, under the name of birthright, but
more generally endowed with no hereditary advantage beyond an
honorary precedence." The separation then commenced with the
division of the inheritance; and whether it was ever an equal
division, and not proportioned to the respective ages of the
sons, or determined by other motives, or again, a division of
different kinds of property, may be open to question; but at
any rate a division took place, and a separation of families
was consequent upon it. The division was not only the sign
and token, but the efficient cause of the separation; and so
not only the dispersion of families, but separate ownerships
commenced with the descendants in the first degree.

[286] Compare Plato, "Leges;" Grote's "Plato," iii. 337.

III. We come to the conclusion that the collation of the sentiments and maxims, as preserved in tradition by the families who had coalesced into States, would have formed the basis of the morality and of the jurisprudence of the States so constituted; and that in every case of oppression appeal would have been made to their pre-existing and natural rights.

IV. That whilst certain traditions--the tradition of religion, for instance--would have been perhaps more faithfully preserved in the patriarchal governments of the East, and we find evidence of this in the monotheism of the Persians; on the other hand, if there was a tradition of a law common to all nations, it would be more likely to be preserved in States formed by the amalgamation of many distinct families and races.[287]

[287] "In that old heathenism of the Roman world, into which it
was the will of God that the Christian religion should be
introduced by the apostles, there were then diverse and often
conflicting elements. There was a good element, which came
from God; there was a thoroughly bad element, which came from
Satan; and there was a corrupt element, which was the fruit of
the workings of unregenerate human nature upon society, and
upon the objects of sense and intelligence with which man is
placed in relation. The good element we see embodied in great
part of the laws and institutions of the ancient world, as
also in much of the literature, the poetry, the philosophy of
Greece and Rome, which literature consequently--after having
been purified, and as it were baptized--has always been used
by the Christian Church in the education of her children. This
element, I say, was originally the gift of God, the Author of
nature, to man, the offspring of reason and conscience, the
tradition of a society of which God was Himself the founder.
It enshrined whatever fragments of primeval truth as to God,
the world, and man himself, still lingered, in whatever shape,
among the far-wandering children of Adam. St Paul alludes to
this element (Acts xvii. 22); ... and his words altogether
seem to imply that God watched over it, supported it and
fostered it, as far as men were worthy of it, and that it
might even have been expanded into a perfect system of natural
religion and of reasonable virtue, had men been grateful
enough to earn larger measures of grace from God, who left not
Himself without witness in His daily providence, and was not
far from 'any one of His children.'"--"_Four Sermons_," by the
Rev. Henry J. Coleridge, S. J. Burns & Oates. 1869. P. 52.
(48.)

V. That such was the origin and history of the Greeks and Romans--the two nations which formed the nucleus of the _orbis terrarum_ within which, as Dr Newman tells us (_supra_, p. 339), is found the centre of Christianity and the seat of civilisation.

VI. That, whether the Roman law goes back in tradition, or, as Sir H. Maine will say, in fiction only--the fact remains, that it does so trace itself back to remote antiquity, and that the Roman law subsists to this day as the foundation of most of the codes of Europe, and has extended its ramifications to all; and that outside the circle of its influence other nations equally retrace their codes to remote antiquity, and, as a rule, to revelations made to their earliest founder. That nothing is more striking in ancient times than the manner in which their codes, which are the embodiment of laws previously in tradition, were held as a sacred deposit. This was the reason why the laws of the Medes and the Persians might not be altered; and that, according to the laws of the Visigoths, no judge would decide in any suit unless he found in their code a law applicable to the case; and perhaps we may find trace of it in the phrases familiar to us--_nolumus leges Angliæ mutari_, _stare super vias antiquas_, and so, too, in the _ita scriptum est_, which, as Sir H. Maine says (p. 31), silenced all objections in the Middle Ages.

VII. That the fact of a tradition of "a law common to all nations" and of "a lost code of nature," is in accordance with the historical and scriptural evidence which would render such a tradition probable.

* * * * *

Sir H. Maine, with whose argument I now propose to deal, is, as far as I am aware, the most conspicuous opponent of the common belief in the "Law of Nations;" and yet it appears to me that we shall find testimony to the tradition even in the very terms in which he repudiates it. I must at least consider this a recognition on his part of the strength and inveteracy of the opposite view. In the following extracts I shall suppose my readers fresh from the perusal of Sir H. Maine.

Sir H. Maine says ("Ancient Law," pp. 7, 8), that the further "we penetrate into the primitive history of thought, the further we find ourselves from the conception of law of any sort." And again, "It is certain that in the infancy of mankind, no sort of legislation, not even a distinct author of law, is contemplated or conceived of." Now if Sir H. Maine had said nothing more, I should have felt bound to take this assertion upon his authority; but Sir H. Maine adds:--"Law has scarcely reached the footing of custom; it is rather a habit. It is, to use a French phrase, 'in the air,'" [Is not Sir H. Maine here hunting for a phrase which shall not imply that it is in tradition?] "The only authoritative statement of right and wrong is a judicial sentence after the facts, _not one presupposing a law which has been violated_, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication."

This passage may be adduced in evidence of the tradition of Noah and his heavenly-inspired judgments, but apparently it is in contradiction to the view of a law of nature, since it supposes the judge to decide through direct inspiration, or in the way of _stet pro ratione voluntas_, and not with reference to a "law which has been violated." Now, Sir H. Maine comes to his conclusion upon the ground of the "Themistes" of the Homeric poems. "The earliest notions connected with the conception ... of a law or rule of life are those contained in the Homeric words 'Themis' and 'Themistes'" (p. 4). "The literature of the heroic ages discloses to us law in the germ under the 'Themistes,' and a little more developed in the conception of 'Dike'" (p. 9). If this were so, law according to the conception of "Themistes" and law according to the conception of "Dike" were never contemporaneous, but necessarily successive, or rather progressive; but at page 8 we read, "The Homeric word for a custom in the embryo is _sometimes_ 'Themis' in the singular, more often 'Dike,' the meaning of which visibly fluctuates between 'a judgment' and a 'custom' or 'usage.' '[Greek: Nomos],' a law ... does not occur in Homer."[288]

[288] The word '[Greek: nomos]' is found in the Hymn to Apollo, v.
20, attributed to Homer [the term [Greek: themistes] also, v.
391]--and in Hesiod, Op. et Dies, v. 276.--Goguet, ii. 78.
In the Hymn to Apollo it is only applied to song. The Greeks
had the same word, however--viz. [Greek: nomoi], as for laws,
songs, and pastures--that is to say, the term law, [Greek:
nomos], is applied to the instrument of its transmission, and
to what would then have been its most ordinary subject matter.
This seems to me in evidence of its primitive use.

Take, moreover, the following passage in the First Book of the
Iliad, v. 233:--

[Greek: 'All' ek toi ereô, kai epi megan horkon omoumai
nai ma tode skêptron, to men oupote phylla kai ozous
physei, epeidê prôta tomên en oressi leloipen,
oud' anathêlêsei; peri gar rha he chalkos elepse
phylla te kai phloion; nyn aute min hyies Achaiôn
en palamês phoreousi, dikaspoloi, hoite Themistas
pros Dios heiryatai; ho de toi megas essetai horkos.]
--_Heyne's Homer_, i. v. 233-239.

"But this I say, and with an oath confirm,
By this my royal staff, which never more
Shall put forth leaf nor spray since first it left
Upon the mountain side its parent stem,
Nor blossom more; since all around, the axe
Hath lopped both leaf and bark, and now 'tis borne,
_Emblem of justice_, by the sons of Greece,
_Who guard the sacred ministry of law
Before the face of Jove!_ a mighty oath.
The time shall come when all the sons of Greece
Shall mourn Achilles' loss," &c.
--_Lord Derby's Translation_, 275-285.

Here we have the term "dike" not merely in embryo, but in
the compound word "dikaspoloi," administrators of justice,
implying something akin to judges, and a condition of things
in which law was reduced to a state in which there was
something to guard and administer. Not only so, but the staff,
the "emblem of justice," is borne by them when they _guard_
the "Themistes" before the gods.

It will not only be curious to discover, but the discovery
of vestiges in modern times of the old traditional modes and
ceremonial will throw light upon the administration of justice
in ancient times. I dare say many other instances may be
indicated. I will adduce the following:--If my readers will
turn to the _Pall Mall Gazette_ (July 12, 1870), they will
find an account of "The Manx Thing," or "the ancient custom
of the Ruler, his Council, and the Commons meeting together
in the open air to proclaim the law to the people standing
around." "The Lieutenant-Governor is the representative of
the King, and takes an oath to deal truly and uprightly
between our sovereign lady the Queen and her people," "and
as indifferently betwixt party and party _as this staff now
standeth_." "He is assisted by two demesters or supreme
judges, who must deem the law truly, as they will answer to
the Lord of the Isle." Here, as in Homer, there is reference
to an emblem and a ceremonial repugnant to the notion that
(_infra_) "every man under the patriarchal despotism was
practically controlled by a regimen not of law but of caprice."

Mr Adams describes the following scene in one of the islands
in the archipelago off the mainland of Korea--"The chief, who
really has something very noble and majestic about him, as
is generally the case with men in high authority among the
natives of these islands.... The demeanour of those of his
countrymen who surrounded him was as free and independent as
his own was reserved and dignified.... In his hand he held
_his badge of office, a wand of ebony with a green silken cord
entwined about it like the serpent of Æsculapius_."--"Travels
of a Naturalist in Japan and Manchuria," by Arthur Adams,
F.L.S. 1870. Compare also with _infra_, p. 390.

Well, allow that there need not be as yet the metaphysical conception of law, or law as a positive enactment, embracing indifferently a variety of cases. Eliminate the word "law." Instead of the phrase "law of nature" substitute "natural justice," and "the sense of right and wrong;" and it suffices that we detect "usage," "custom," right; for even if it were conceded that right is a post-Homeric rendering of [Greek: dikê], yet "custom" and "usage" in their definition would have been in recognition of pre-existing right. This becomes more clear if we consider the alternative opinion. Sir H. Maine says that "under the patriarchal despotism," "every man was practically controlled in all his actions by a regimen not of law but of caprice" (p. 8). The judgments, then, of the patriarchal times were mere "caprice," and rights were defined without reference to any sense of justice. From "Themistes" of caprice they would proceed to legislation upon "caprice," and, ultimately, to codes which would represent nothing but a digest of the precedents of "caprice." It is difficult, then, to understand in what way and at what point the sense of justice, the conception of "dike," originated, and most of all, if this is true, it is difficult to account for the "Themistes" being regarded as akin to inspiration, as well as for the veneration with which, we have the authority of Sir H. Maine (_vide infra_) for saying, that Archaic law was held, and, moreover, for the persistent tendency to revert to the past.[289]

[289] I feel very much supported in my argument by the following
passage from Mr Gladstone's "Homer" (ii. 420): "Mr Grote says
that 'the primitive import' of the words [Greek: hagathos],
[Greek: esthlos], and [Greek: kakos], relates to power and not
to worth; and that the ethical meaning of these is a later
growth, which 'hardly appears until the discussions raised by
Socrates, and prosecuted by his disciples.' I ask permission
to protest against whatever savours of the idea that any
Socrates whatever was the patentee of that sentiment of right
and wrong which is the most precious part of the patrimony of
mankind. The movement of Greek morality with the lapse of time
was chiefly downward and not upward.... But as to the words
[Greek: hagathos] and [Greek: kakos], the case is far more
clear; and here I ask, Can it be shown that Homer ever applies
the word [Greek: hagathos] to that which is morally bad? or
the word [Greek: kakos] to that which is morally good? If it
can, _cadit quæstio_; if it cannot, then we have advanced a
considerable way in proving the ethical signification.... In
the word [Greek: dikaios], however, we have an instance of the
epithet never employed except in order to signify a moral or
a religious idea. Like the word _righteous_ among ourselves,
it is derived from a source which would make it immediately
designate duty as between man and man, and also as it arises
out of civil relations. But it is applied in Homer to both the
great branches of duty. And surely there cannot be a stronger
proof of the existence of definite moral ideas among a people,
than the very fact that they employ a word founded on the
observance of relative rights to describe also the religious
character. It is when religion and morality are torn asunder,
that the existence of moral ideas is endangered."

If, however, we follow Sir H. Maine in his illustration taken from English law, we shall find ourselves reinstated in our original convictions. Sir H. Maine says (p. 8), "An Englishman should be better able than a foreigner to appreciate the historical fact that the 'Themistes' preceded any conception of law;" but at page 32, he says, "Probably it will be found that _originally_ it was the received doctrine that somewhere _in nubibus_ [Q. "in the air"], or in _gremio magistratuum_ there _existed_ a complete, coherent, symmetrical body of English law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances." If, then, we take the analogy of the English law, we come also to the identical conclusion for which I contend--viz. that the "Themistes," whether they partook of the character of commands or of judgments, _were_ still in recognition of a "law which was violated."

If the "Themistes" had no reference to a law which was violated; if they were mere caprice, I have already asked, whence arose the regard for ancient law among the nations of antiquity? and I may add, how came it about that their ideas of justice were inseparably connected with the notions of morality? Does Sir H. Maine deny either of these facts? On the contrary, he affirms them:--

"Quite enough, too, remains of these collections ['ancient codes']
both in the East and in the West, to show that they mingled
up religious, civil, and merely moral ordinances _without any
regard_ to differences in their essential character; and this is
consistent with all we know of ancient thought from other sources,
the _severance_ of law from morality, and of religion from law,
belonging very distinctly to the later stages of mental progress"
(p. 16).

And at p. 121, "Much of the old law which has descended to us, was
preserved merely _because it was old_. Those who practised and
obeyed it did not pretend to understand it; and in some cases they
even ridiculed and despised it. _They offered no account of it
except that it had come down to them from their ancestors._"

Does Sir H. Maine dispute the persistency of tradition in general? No. At p. 117, _vide supra_, I have quoted a passage in which he explicitly maintains it.

I must observe further, that in the very passages in which he repudiates the notion of a "law of nature," two things irresistibly transpire--(1.) That there was a persistent tradition in ancient society of a law of nature; (2.) That this tradition was invariably associated with the golden age, _e.g._:--

"After nature had become a household word in the mouths of
the Romans, the belief gradually prevailed among the Roman
lawyers,[290] that the old _jus gentium_ was in fact _the lost
code of nature_, and that the prætors, in framing an edictal
jurisprudence on the principles of the _jus gentium_, were
gradually restoring a type from which law had only departed _to
deteriorate_" (p. 56). "But then, while the _jus gentium_ had
little or no antecedent credit at Rome, the theory of a law of
nature came in surrounded with all the prestige of philosophical
authority, and invested with the _charms of association with an
elder and more blissful condition of the race_" (p. 60). "The law
of nature confused the past and the present. Logically it implied
a state of nature which had once been regulated by natural law;
yet the juris-consults do not speak clearly or confidently of
the existence of such a state, which indeed is little noticed by
the ancients _except_ when it finds a poetical _expression in
the fancy of a golden age_" (p. 73). "Yet it was not on account
of their simplicity and harmony that these finer elements were
primarily respected, but on the score of their _descent from the
aboriginal reign of nature_" (p. 74). "Yet it is a remarkable proof
of the essentially _historical_ character of the conception that,
after all the efforts which have been made to evolve the code of
nature from the necessary characteristics of the natural state
[_i.e. à priori_] so much of the result is just what it would have
been if men had been satisfied to adopt the dicta of the Roman
lawyers without questioning or reviewing them. Setting aside the
conventional or treaty law of nations, it is surprising how large a
part of the system is made up of pure Roman law" (p. 97). [Because
the Roman law was in the main stream of the tradition.][291]

[290] Either, then, the Roman lawyers fell back upon the old
traditions, or else the lawyers introduced the superstition of
the law of nature, and then became victims to the superstition
they had invented. In any case, the "belief" in "the lost
code of nature gradually prevailed." I am presently going to
discuss with Sir H. Maine how far in the latter case such a
belief is likely to have prevailed.

[291] _Vide_ also Sir H. Maine, p. 77: "It is important, too, to
observe that this model system, unlike many of those which
have mocked men's hopes in later days, was _not entirely the
product of imagination_. It was never thought of as founded
on quite untested principles. The notion was that it underlay
existing law, and must be looked for through it. Its functions
were, _in short, remedial_, not _revolutionary_ or anarchical.
And this unfortunately is the exact point at which the modern
view of a law of nature has often ceased to resemble the
ancient."

I now come to what I may call the exposition of Sir H. Maine's argument proper, and, although I feel the full difficulty of doing this, in the case of so subtle and able a writer, I shall endeavour to condense into as short a space as possible whatever is material to Sir H. Maine's position. Sir H. Maine says (p. 46):--

"I shall attempt to discover the origin of these famous phrases,
Law of Nations, Law of Nature, Equity, and to determine how the
conceptions which they indicate are related to one another. The
most superficial student of Roman history must be struck by the
extraordinary degree in which the fortunes of the Republic were
affected by the presence of foreigners under different names on
her soil. The causes of this immigration are discernible enough
at a later period, for we can readily understand why men of all
races should flock to the Mistress of the World; but the same
phenomenon of a _large population of foreigners_ and denizens meets
us in the _very earliest_ records of the Roman State--no doubt
the instability of society in ancient Italy.... It is probable,
however, that this explanation is imperfect, and it could only
be completed by taking into account those active commercial
relations, which though they are little reflected in the military
traditions of the Republic, Rome appears certainly to have had
with Carthage and with the interior of Italy in pre-historic
times.... In the _early Roman Republic_ the principle of the
absolute exclusion of foreigners pervaded the civil law no less
than the constitution. The alien or denizen could have no share
in any institution supposed to be coeval with the State. He
could not have the benefit of the Quiritarian Law, &c.... Still
neither the interest nor the security of Rome permitted him to
be quite outlawed.... Moreover, at no period of Roman history
was foreign trade entirely neglected. It was therefore probably
half as a measure of policy and half in furtherance of commerce
that jurisdiction was first assumed in disputes to which the
parties were either foreigners or a native and a foreigner. The
assumption of such a jurisdiction brought with it the immediate
necessity of discovering some principles on which the questions to
be adjudicated upon could be settled.... They refused, as I have
said before, to decide the new cases by pure Roman civil law.
They refused, no doubt, because it seemed to involve some kind of
degradation, to apply the law of the particular State from which
the foreign litigant came. The expedient to which they resorted
was that of selecting the rules of law common to Rome, and to the
different Italian communities in which the immigrants were born.
In other words, they set themselves to form a system answering
to the primitive and literal meaning of _jus gentium, i.e._ law
common to all nations. _Jus gentium_ was, in fact, the sum of
the common ingredients in the customs of the old Italian tribes,
for they were _all the nations_ whom the Romans had the means of
observing, and who sent successive swarms of immigrants to the
Roman soil.... The _jus gentium_ was, accordingly, a collection of
rules and principles determined by observation _to be common_ to
the institutions which prevailed among the various Italian tribes.
The circumstances of the origin of the _jus gentium_ was probably
a sufficient safeguard against the _mistake of supposing_ that the
Roman lawyers had any special respect for it. It was the fruit in
part of their disdain of all foreign law, and in part of their
disinclination to give the foreigner the advantage of their own
indigenous _jus civile_. It is true that we, at the present day,
should probably take a very different view of the _jus gentium_....
We should have a sort of respect for rules and principles so
universal.... But the results to which modern ideas conduct the
observer, are, as nearly as possible, the reverse of those which
were instinctively brought home to the primitive Roman. What we
respect or admire, he disliked or regarded with jealous dread. The
points of jurisprudence which he looked upon with affection were
exactly those which a modern theorist leaves out of consideration
as accidental and transitory--the solemn gestures ... the endless
formalities, &c.... The _jus gentium_ was merely a system forced
on his attention by a political necessity. He loved it as little
as he loved the foreigners from whose institutions it was derived,
and for whose benefit it was intended. A complete revolution in his
ideas was required before it could challenge his respect.... This
crisis arrived when the Greek theory of a law of nature was applied
to the practical Roman administration of the law common to all
nations."--_Sir H. Maine's Ancient Law_, 46-52.

Sir H. Maine's theory may be summarised as an attempt to identify the "Law of Nations" with the history of Roman law, leaving out of sight the tradition of it which may be traced in other nations. Now, although there is nothing, as Napoleon used to say, which one nation hates more than another nation--and this certainly holds true of the Roman people--yet it is scarcely possible to point to any which, from the circumstances of its origin, would have been less predisposed to look in the abstract with disdain upon the laws and customs of surrounding nations, however much they may have hated them as concrete nationalities; and least of all would they have had this feeling for the institutions of the Latins, a people whom, from their peculiar connection with themselves, they would principally have had as residents among them. Sir H. Maine seems unable to shake off the prepossession, which the analysis of Roman law, to the exclusion of other evidence, would tend to lead him, viz. that the Romans were a homogeneous people, and we have just heard him speak of their "own indigenous _jus civile_." This indigenous _jus civile_ was compounded, as was their nationality, of many miscellaneous elements. Whatever truth may be attached to the legends as to the foundation of Rome, and they are various, it cannot well be disputed that there was a strong trace of Sabine[292] and Etruscan,[293] in addition to the original miscellaneous Roman, or, if not miscellaneous, pure Latin element; to which, in any case, in the subsequent reigns a large Latin immigration must be added, when Rome, through the conquest of Alba Longa, became the head of the Latin league, and the infusion of a Greek in addition to an Etruscan element in the dynasty of the Tarquins. The Latin league has its significance over and above its bearing upon the present argument; and to this I shall presently revert. But to go no further, does not the existence of the Latin league[294] sufficiently account for the large influx of strangers into Rome, on account of which Sir H. Maine sees the necessity for an extension of the Roman jurisprudence? But, if this be so, his theory must fall to the ground; for, if the Roman element was distinctive at all, and was a pure Latin population, miscellaneously collected by Romulus, and not a miscellaneous population of various tribes--it was Latin _quâ_ Roman. How then, supposing the Roman element to have become predominant, did it come to contemn the Latin element and the law of the Latins? That it excluded them is another thing, or that they were kept in a subordinate position, and not admitted to the full privileges of naturalisation, is quite conceivable on other grounds; but that there should have existed a feeling of contempt for the laws and customs of the people among whom, if their legends were true (and at any rate we have nothing else to go upon), was found the cradle of their race, is hard to understand, yet this assumption is essential to Sir H. Maine's position.

[292] I shall consider that Dr Dyer has fairly reinstated a large
portion of early Roman history until I see his arguments
refuted. Without endorsing his opinion I may quote what Dr
Dyer says ("Hist. of the City of Rome," p. 27) in evidence
of the admixture of the Sabine element:-- "The importance of
the Sabine element at Rome has not perhaps been sufficiently
considered. The late M. Ampere has discussed the subject
with great learning and ability in his interesting work,
'L'Histoire Romaine à Rome.' He remarks that not only did the
Romans borrow from the Sabines almost all their religious
and much of their political and social organisation, their
customs, ceremonies, arms, &c., but also that the far greater
part of the primitive population of Rome was Sabine, that most
of the men who played a part in Roman history were of Sabine
extraction, and that what is called the Latin tongue contains
a strong infusion of Sabine elements."

[293] Evidences of the Etruscan element are so marked, that Niebühr,
in his first edition, asserted the Etruscan origin of the
city. He subsequently, however, came to the conclusion that
"there was so much in the Roman state that was peculiar to
Rome and Latium, as to be incompatible with the supposition of
Rome being an Etruscan colony."--_Appendix to Travers Twiss'
Epitome of Niebühr._

[294] A federal union existed between the Roman people and the
Latins in the reign of Servius Tullius (Niebühr, i. ch. xxv.)
"The old Latin towns had retained their ancient rights, and
the colonies, that together with them formed the Latin nation,
had all received the _full freedom_ of Rome, and had become
_municipia_ a full century before the Consul Junius Norbanus
introduced the franchise of the Latin freedmen.... The towns
on the north of the Po, inhabited by a mixed population of
Italians and Celts speaking Latin,... were termed the 'Lesser
Latium.'... A law which regarded Latin citizens as foreigners,
and applied to them the principle that the child follows the
condition of the baser parent, _can only have_ related to this
inferior Latium." (Niebühr, ii. ch. vi.)

Again, the Roman family and tribal system, with their principle of agnatic relationship, was in all probability part of their organisation for war: it was the secret of their strength. Grant that they shrank from applying the principles of their domestic law, which in their application would have involved in time an organisation in conformity with it, we can at once see why they withheld the principles of their jurisprudence without withholding it in mere scorn of an alien nationality.

We rather see influences which would have predisposed them to look with reverence on the laws and customs of a people among whom they must have known that they had sprung, even if there had been no tradition of a law common to all nations "of the lost code of nature," a notion which the edicts of the prætors of the later period would hardly have generated if it had had no foundation in tradition.

If you change the _venue_ to Etruria, the same arguments will apply. In proof, I quote the following passage from a competent, if somewhat antiquated (1837) authority--(Pastoret, "Hist. de la Legislation," xi. 355)--more especially as it mentions a circumstance to which I do not remember that Sir H. Maine adverts, and which would make it a matter of some difficulty for the prætors to introduce laws and principles of their own making: "Peu amis de la guerre, Ancus Martius voulut du moins ajouter à l'art de la faire quelques formalités _pour la declarer; elles étoint d'usage avant lui_ chez des _peuples voisins_; ce sont les lois féciales, lois que nous avons déjà fait connoître (c. iii. 286). L'adoption des lois étrusques par les Romains reçoit une force nouvelle d'un fait conservé par Dénys et Halicarnasse (Liv. ii. § 27); c'est que _après_ l'abolition de la monarchie on exposa dans la place publique de Rome _à la vue de tous les citoyens_ toutes _les lois et coutûmes_ de la patrie, avec les lois étrangeres nouvellement _introduites, afin_ que le droit publie ne changeât pas en même temps que les pouvoirs du magistrat."

Sir H. Maine says, at p. 151, "The prætors early laid hold on _cognation_ as the _natural_ form of kinship, and spared no pains in purifying their system from the older conception [_i.e._ older according to Roman law]. Their ideas have descended to us, but still traces of agnation are to be seen in many of the modern rules of succession after death."

The reader will find (from p. 146 to 160)[295] in Sir H. Maine the distinction between cognation and agnation very completely and lucidly stated. I may say roughly, however, that cognation is the form of relationship which we acknowledge and which is familiar to us, descending in graduated degrees, including males and females alike, from common ancestors. Agnatic relationship is rigidly confined to the male lines, excluding the connections and descendants of females, upon the maxim, _Mulier est finis familiæ_, though including unmarried females on the side of the father.

[295] _Vide_ also De Fresquet, "Droit Romain," ii. 25-29.

Now, I venture to think that the argument which may be drawn from the passage which I have quoted ought not lightly to be dismissed as a mere _argumentum ad hominem_.

Sir H. Maine says that the prætors early laid hold on cognation as the _natural_ form of kinship. Either, then, they did this really detecting this principle as inhering in the natural law which was in tradition, or as detecting it as the "law common to all the nations known to the Romans." In the latter case, it shows that, whereas cognation was common among the surrounding nations, agnation obtained among the Romans. The latter was therefore their peculiar institution, which sustains the argument which I have just put. If, on the contrary, they detected cognation underlying the institutions of all nations, and as part of their traditional law of nature, we cannot wish for a better and clearer instance of the natural law cropping up. And it is an instance, too, of the advantage at which those argue who have on their side the authority of Scripture, indicating the landmarks. Knowing that mankind sprang from a single pair, we can see that cognation must have been the law from the commencement: for it stands to reason that commencing with common ancestors the normal and natural mode would be to include all the relations according to degrees of descent, until there was some object in excluding them. With some political necessity or expediency for the limitation to males and the exclusion of females would agnation have commenced. If we require a case in point we have it in the relationship of Laban to Jacob. According to agnatic relationship they were second cousins, but according to cognatic relationship Laban was his maternal uncle, and such accordingly he is called in the sacred text (Gen. xxviii. 2). But in the seventh century before Christ, in the thickness of Paganism, men would scarcely have come to this conclusion, since they had apparently lost, as far as we know, the knowledge of their origin; although, as we have already seen, they retained dimly the tradition of many things of which they had forgotten the specific history. From the information we derive from Sir H. Maine, the memory of cognation, as the earliest and most natural scheme of kinship, must somehow have subsisted in tradition. It was not certainly in their power to verify the truth of the tradition as we can by a reference to revelation, and yet it would seem as if, having come to this conclusion, that it was almost within the grasp of human reason to have inferred from it the origin from a single pair, and thus to have recovered the knowledge they had lost from the tradition they had preserved.[296]

[296] "The above table shows that before the separation of the
Aryan race, every one of the degrees of affinity had received
expression and sanction in language, for, although some spaces
had to be left empty, the coincidences, such as they are, are
sufficient to warrant one general conclusion."--_Vide_ table,
Max Müller's Essays, ii. p. 31.

Of course, I am speaking only of the actual affinity, not of
laws of succession founded upon it. These must be controlled
by other considerations, and by other natural rights, as,
for instance, the right of testation or by reasons of State
requiring hereditary succession and a Salic law, or by reasons
of family compelling the agnatic rule as the only mode of
preserving the ancestral domain to the family--a necessity
which applies as stringently to small freeholds as to broad
manors.

In illustration, I quote the following passage from the
Rev. W. Smith's "Pentateuch" (above referred to, ch. xiii.,
"Indirect internal evidence of Mosaic authorship," vol. i.
307)--"As the journey (Exodus) proceeds so laws originate
from the accidents of the way.... The laws regulating the
succession to property furnish an example of the same kind.
In Numbers xxvi. 32-36 it is ordained in accordance with
patriarchal usage, that the family inheritance descend by the
male line. But a case immediately turns up where there happens
to be no male issue. Zelophahad had left no sons, but only
daughters, and what was to become of the property? How was the
succession to be regulated? To meet the case, Jehovah orders
Moses to proclaim the law of Numbers xxvii. 8-11, in virtue of
which daughters, in failure of sons, are to succeed. Shortly
after, a new difficulty arises. As heiresses, the daughters
of Zelophahad were now to have property of their own. But if
they married out of their tribe, was the property to go with
them? (Num. xxxvi. 1-9.) Such a condition would at once have
upset the fundamental laws of inheritance. Hence, to avoid the
evil, they are enjoined to marry within their own tribe; and a
general law to the same effect is promulgated" (xxxvi. 8, 9).

A few points in Sir H. Maine's argument (_supra,_ p. 352) remain to be noticed. I must take exception, for instance, to his averment "that what we respect and admire," viz. "principles so universal," the Roman "regarded with jealous dread." "The parts of jurisprudence which he looked upon with affection, and the solemn gestures, &c., were the parts which a modern theorist leaves out of consideration," for he seems to have recognised their justice, and allowed them to operate so effectually that his whole system of jurisprudence, which was originally based on agnatic kinship, came round to the principle of cognation.[297] In the process, and through the action so skilfully evolved and unfolded in Sir H. Maine's pages, two principles, equally to our mind, were brought into gradual recollection, viz. the comity of nations and equality before the law. The "solemn gestures," "the nicely-adjusted questions and answers of the verbal contract," "the endless formalities," are at least in evidence of the tradition.

[297] "We should know almost nothing about it (agnation) if we
had only the compilations of Justinian to consult; but the
discovery of the MS. of Gaius discloses it to us at a most
interesting epoch, just when it had fallen into complete
discredit, and was verging on extinction."--_Ancient Law_, p.
153.

And this suggests a reflection upon the basis of Sir H. Maine's argument, viz. that the Romans could only draw their induction from "the customs of the old Italian tribes, as these were all the nations whom the Romans had the means of observing." Now, if we attach the weight which is due to Dr Newman's remarkable view (_vide supra_) as to the course and confines of civilisation, we shall be, I think, struck with the fact that the two nationalities of Greece and Rome, which were destined to form its heart and centre, had as their common substratum a very peculiar people, whose characteristics exactly adapted them to retain traditions, and to carry out the scriptural saying about the people, "And they shall maintain the state of the world"--a people who were the first occupiers of the soil of Greece and Italy, and who, if not directly and historically, can through philology be traced back to the most primitive times;[298] a people tenacious of customs and traditions,[299] who were the guardians of the worship and tradition of the Dodonæan Jupiter,[300] and in possession of his shrine when the worship of Jupiter was only the thinly-disguised corruption of the worship of the true God;[301] a people to whom, according to Mr Gladstone, the Greek religion owed its sacerdotal and ceremonial development,[302] and who also inclines to the opinion, which has a more especial significance, and bearing on the present argument, that the Amphictyonic Council was a Pelasgian institution.

[298] Gladstone's Homer, i. 305-372.

[299] _Id._ i. 106-108.

[300] "The Greek mythology was derived from the Pelasgians, and the
oracle of Dodona belonged to them."--_Niebühr, Hist._ i. 28.