Tradition, Principally with Reference to Mythology and the Law of Nations

by Baron John Francis Arundell Arundell of Wardour

CHAPTER XIV
SIR H. MAINE ON THE LAW OF NATIONS.

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.

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.

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.

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]

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.