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

by Baron John Francis Arundell Arundell of Wardour

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]

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.

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.