第27章

"Whereas, according to natural law, everybody ought to be bornfree; and by some usages and customs which, from long antiquity,have been introduced and kept until now in our realm, andperadventure by reason of the misdeeds of their predecessors,many persons of our common people have fallen into servitude,therefore, We, etc." This is the enunciation not of a legal rulebut of a political dogma; and from this time the equality of menis spoken of by the French lawyers just as if it were a politicaltruth which happened to have been preserved among the archives oftheir science. Like all other deductions from the hypothesis of aLaw Natural, and like the belief itself in a Law of Nature, itwas languidly assented to and suffered to have little influenceon opinion and practice until it passed out of the possession ofthe lawyers into that of the literary men of the eighteenthcentury and of the public which sat at their feet. With them itbecame the most distinct tenet of their creed, and was evenregarded as a summary of all the others. It is probable, however,that the power which it ultimately acquired over the events of1789 was not entirely owing to its popularity in France, for inthe middle of the century it passed over to America. The Americanlawyers of the time, and particularly those of Virginia, appearto have possessed a stock of knowledge which differed chieflyfrom that of their English contemporaries in including much whichcould only have been derived from the legal literature ofcontinental Europe. A very few glances at the writings ofJefferson will show how strongly his mind was affected by thesemi-juridical, semipopular opinions which were fashionable inFrance, and we cannot doubt that it was sympathy with thepeculiar ideas of the French jurists which led him and the othercolonial lawyers who guided the course of events in America tojoin the specially French assumption that "all men are bornequal" with the assumption, more familiar to Englishmen, that"all men are born free," in the very first lines of theirDeclaration of Independence. The passage was one of greatimportance to the history of the doctrine before us. The Americanlawyers, in thus prominently and emphatically affirming thefundamental equality of human beings, gave an impulse topolitical movements in their own country, and in a less degree inGreat Britain, which is far from having yet spent itself; butbesides this they returned the dogma they had adopted to its homein France, endowed with vastly greater energy and enjoying muchgreater claims on general reception and respect. Even the morecautious politicians of the first Constituent Assembly repeatedUlpian's proposition as if it at once commended itself to theinstincts and intuitions of mankind; and of all the "principlesof 1789" it is the one which has been least strenuously assailed,which has most thoroughly leavened modern opinion, and whichpromises to modify most deeply the constitution of societies andthe politics of states.

The grandest function of the Law of Nature was discharged ingiving birth to modern International Law and to the modern Law ofWar, but this part of its effects must here be dismissed withconsideration very unequal to its importance.

Among the postulates which form the foundation ofInternational Law, or of so much of it as retains the figurewhich it received from its original architects, there are two orthree of pre-eminent importance. The first of all is expressed inthe position that there is a determinable Law of Nature. Grotiusand his successor took the assumption directly from the Romans,but they differed widely from the Roman jurisconsults and fromeach other in their ideas as to the mode of determination. Theambition of almost every Publicist who has flourished since therevival of letters has been to provide new and more manageabledefinitions of Nature and of her law, and it is indisputable thatthe conception in passing through the long series of writers onPublic Law has gathered round it a large accretion, consisting offragments of ideas derived from nearly every theory of ethicwhich has in its turn taken possession of the schools. Yet it isa remarkable proof of the essentially historical character of theconception that, after all the efforts which have been made toevolve the code of nature from the necessary characteristic ofthe natural state, so much of the result is just what it wouldhave been if men had been satisfied to adopt the dicta of theRoman lawyers without questioning or reviewing them. Settingaside the Conventional or Treaty Law of Nations, it is surprisinghow large a part of the system is made up of pure Roman law.

Wherever there is a doctrine of the jurisconsult affirmed by themto be in harmony with the Jus Gentium, the publicists have founda reason for borrowing it, however plainly it may bear the marksof a distinctively Roman origin. We may observe too that thederivative theories are afflicted with the weakness of theprimary notion. In the majority of the Publicists, the mode ofthought is still "mixed." In studying these writers, the greatdifficulty is always to discover whether they are discussing lawor morality -- whether the state of international relations theydescribe is actual or ideal -- whether they lay down that whichis, or that which, in their opinion, ought to be.