citations. Let the student refer to the books mentioned below.1

The human mind craves generalizations and unifications, and it will play many dishonest tricks with itself in order that it may enjoy the gratification of these seeming requisites of intellectual satisfaction. See what it has done with our legal history:

"The Law of Nature"! What a fine, mouth-filling, soul-satisfying nonentity. Follow it through Greeks, Stoics, Roman Lawyers, Mediæval Ecclesiastics, Grotius, Hobbes, Rousseau, Bentham, and make an entity-" a true body" of it, if you can. In metaphorical and figurative sense we may speak of the laws of nature, meaning some observed physical sequences. But this "Law of Nature," was it ever anything but an empty abstraction or even hallucination? a sort of a shadow of some "lost code " that never existed? an underlying principle which, could we but find it (fire, air, water, etc., have all been advocated and rejected), would, we may fancy, correlate and explain everything; but which still unfortunately for us underlies and is for the present at least plainly not capable of being got out of that? It is said that it is that

"Ultimate principle of fitness, in regard to the nature of man as a rational and social being, which is, or ought be, the justification of every form of law."

3

but that sort of a principle is, of course, a little difficult to look at quite steadily. In truth we only call it a principle, as we call God a spirit-because we don't know what a spirit is, and must say something. If, too, we are told that it is

"The rules of conduct deducible by reason from the general conditions of human society "

may we not humbly ask that some able reasoner will deduce them, and once for all and forthwith print them?

'Sir Henry Maine's works-principally his Ancient Law; Sir Frederick Pollock's Essays in Jurisprudence and Ethics, Cap. 2 & 12; and his articles in I COLUMBIA LAW REVIEW, 11, and 2 COLUMBIA LAW REVIEW, 131; James Bryce's Studies in Hist. and Jur. Essays XI and XIV; Holmes' The Common Law; Lightwood's The Nature of Positive Law; Jenks' Law and Politics in the Middle Ages. 2See Maine's Ancient Law, 77.

3Sir F. Pollock in 1 COLUMBIA LAW REVIEW, II.

Ib. 14.

We are more inclined to the suggestion that the Law of Nature is

"The ideal to which actual law and custom could only approximate." but we must add that it is an ideal of very vague, fluctuating, and uncertain character, swinging according to times and persons from the heroisms of savagery to the beatitudes of the Sermon on the Mount; and that no clearheaded man will undertake to put it in type. It no doubt has its uses if left as

"A mental vision of a type of perfect law."2

but, on the whole, it will do better if left there than if photographed by some spiritualistic or other occult apparatus. Austin rejects altogether "the appellation Law of Nature, as ambiguous and misleading." He calls it "the Divine Law or the Law of God," which, he says, makes everything clear-in this fashion :

*

*

"There are human actions which all mankind approve; human actions which all men disapprove. * Being common to all mankind and inseparable from the thoughts of those actions, these sentiments are marks or signs of the Divine pleasure. * The rectitude or pravity of human conduct is instantly inferred from these senti

ments without the possibility of mistake."3

* *

All of which indicates that Austin had little acquaintance with evolutionary and comparative ethics.4 Later writers have found no difficulty in declaring that this

1 Ib. 14, and see Maine's Ancient Law, 77.

2 Maine's Ancient Law, 77 ff.

3 Austin's Lectures on Jurisprudence, 105 f.

*I do not remember to have seen anywhere the argument against God-given ethics that if that is their true source we might reasonably have expected that we should also have been supplied with infallible ideas as to the varying degrees of “pravity" involved in the various acts of misconduct. But our judgment as to the degrees are most helplessly human. "A theocracy brands blasphemy and idolatry as crimes deserving of death, while it looks upon a boundary violation as a simple misdemeanor (Mosaic law). The Agricultural State, on the other hand, visits the latter with the severest punishment, while it lets the blasphemer go with the lightest punishment (Old Roman law). The Commercial State punishes most severely the uttering of false coin; the Military State, insurbordination and breach of official duty; the Absolute State, high treason; the Republic, the striving after regal power." Ihering's The Struggles for Law, 45. See also Lecky's Hist. of European Morals, VII; Muirhead's Elements of Ethics, 193,

Divine Law "is merely our old friend the Law of Nature in very transparent disguise." And so it is.

Since Sir Henry Maine and the other writers above noted, no one can be excused for disbelief in "the Historical Method before which the Law of Nature has never maintained its footing for an instant." The early English Common Law lawyers used the phrase the "Law of Reason" in a sense much equivalent to the Law of Nature. They would "say that such and such a rule is grounded in reason"; just as now and then our own judges will say that their view is in accordance with "the elementary principles of justice." Locke speaks of the "Law of Nature, which is the same thing as the Law of Reason,"4 and of "the Law of Nature-that is, the will of God."5 Hobbes refers to the "Law of Nature-that is to say, common equity"-such laws being "contained in this one sentence, Do not that to another which thou thinkest unreasonable to be done by another to thyself."" With the Stoics," Live according to Nature" really meant "Live according to Reason."8

Turning now to the "Law of Nations," let us see whether it presents any more solid substantiality? Do not take the phrase to mean the Law between Nations. But if you do, observe that international law is based upon notions of rules which ought to guide and control international action; and that these notions are but by slow degrees emerging into formulas and definitions, without which you may talk about laws but have none.10

The Law of Nations was known to the Romans as the Jus Gentium. It was presumed to be "the sum of the common ingredient in the custom of the old Italian tribes."" 'Lightwood's The Nature of Positive Law, 19. 2 Ancient Law, 86–7. 3 Bryce's Studies in Hist. and Jur. 600.

4 On Govt. Bk. II, c. 8; and see c. 2.

5 lb. Bk. II, c. II.

Leviathan, 127. 7 Ib. 126, Cf. Justinian's Inst. Lib. 1, Tit. I.

8 Pollock's Essays Jur. and Ethics, 334

9. International law may be defined to be the aggregate of rules regulating the intercourse of states which have been gradually evolved out of the moral and intellectual convictions of the civilized world as the necessity for their existence has been demonstrated by experience." Hannis Taylor on Internat. Pub. Law, 86; and see p. 364.

10 Except in crudest condition and regulative of simplest transactions. 11 Maine's Ancient Law, 49.

But in reality it was nothing more or less than a very transparent device by which the Romans improved their own Jus Civile-brought it down (or up) to date.

"Institutions are the products of the past process, are adapted to past circumstances, and are therefore never in full accord with the requirements of the present."1

More than that, man progresses, but his institutions, his systems of law (and other things) harden and cake around him, and must be got rid of by explosion or subtle infusion. And the development of the law is a history of cake and infusion.

This Jus Gentium was a stroke worthy of the Roman genius. (Very like our English Equity, as we shall see.) There was to the Romans a distinction between the civil law (that is the peculiar law of any particular State), and those laws which were to be found in every State. One evidently was was merely conventional, and the other was derivable from the nature of things. Not that the Roman lawyers had in reality collocated the foreign laws, and having scored out all discrepants, had produced an anthology of synoptics. No, this distinction between local and universal law was not one of ascertained existence; it was nothing but the difference between the Roman law as it was, and the Roman law which more enlightenment declared it ought to be. And the assertion of a law common to all nations was nothing but a particularly happy method by which the law was brought into harmony with current notions of justice. 3

1Veblin's The Theory of the Leisure Class, 191.

2" The Law of Nations is common to all mankind ": Justinian's Inst. Lib. I. Tit. 2, s. 2.

3Mr. James Bryce tells us that the Roman magistrates proceeded "by taking those general principles of justice, fair dealing, and common sense, which they found recognized by other peoples as well as their own," ("If indeed we are to suppose that the Prætors ever really did study the laws of the various neighbors of Rome," p. 619); "and by giving effect to those mercantile and other similar usages which they found prevailing among the strangers resident in Rome. Thus by degrees they built up a body of rules * which, while it resembled their own system in many of its general features, was less technical and more consonant to the practical convenience and general understanding of mankind." Studies in Hist. and Jur. 571-2.

* *

The first excuse for departure from the Jus Civile was found in cases in which a foreigner was a party. Romans (not usually superfluously deferential to foreigners) assumed that in such cases it would not be fair to apply their own law; and so they consulted all other laws (really consulted their own ideas of equity), and gave judgment accordingly. Principles thus adopted very soon affected the whole body of the civil law of Rome, and finished by complete amal. gamation with it, and much improvement of it. (Very like our English Equity history.)

The Law of Nations had precisely the same basis, and solidity or frailty as the Law of Nature-"the rules of conduct deducible by reason from the general conditions of human society"; "the ideal to which actual law and custom could only approximate ";1-the ideal to which, in spite of caking, we have always determined that they shall so far as possible approximate. The history of these laws being closed, we can now see that" the Law of Nature is simply the Law of Nations seen in the light of a peculiar theory, * the expressions were practically convertible"; and that the Jus Gentium was merely Prætorian Law (upon pretence of being law common to all nations), even as so much of our own law is judge law, upon pretence of being law common to all England--with this difference that the Prætors avowed their law-making proclivities, while our judges are supposed to find laws-in the bullrushes or some other improbable place. 4

* *

And what are we to say of the Common Law? Surely there was a Common Law somewhere? Have we not Common Law courts, and Common Law books, and Common Law at the very basis of our American and English and Canadian law? Yes, yes; but what was it? and where did it come from? is it here yet? or has it vanished? and did anybody ever see it? or is it mere space with judge. law filling? Do not let us imagine at any rate that there is some old book somewhere in which the Common Law is written down.

1 Ante, p. 142.

2 Maine's Ancient Law, p. 57. And see Hannis Taylor's article in 175 North Am. Rev. 465; and Bryce's Studies in Hist. and Jur. 581. The identity of the laws was adopted by Grotius.

3 See Justinian's Inst. Lib. I, tit. 2, s. 7; Lib. III, tit. 13, s. I. 4 See Maine's Ancient Law, 32, 33.