CHAPTER II.

_THE LAW OF NATURE._

But underlying the question of the law of nations, and determining it, is the question whether or not there is a law of nature--a rule of right and wrong, independent of, and anterior to, positive legislative or international enactment. To prevent misconception, however, as to the scope of the inquiry, it is as well that I should state that I am only regarding the law of nature as the law of conscience (by which the Gentiles "were a law unto themselves," Rom. ii. 14), in so far as it has manifested itself in laws and maxims; and the question I am here concerned with is, whether in any sense which history can take cognizance of, there was a rule of right and wrong previous to legislative enactment?

At the first glance, the question would seem sufficiently disposed of by saying that men never were in a state of nature; which is true in this sense, that mankind never formed a multitude of isolated individuals, or a promiscuous herd of men and women. A totally different solution supposes a state of nature; but which, whether it depicts it as a golden age or an age of barbarism, still contemplates mankind in this state as a mere congeries of individuals, without law, or else without the necessity of law--in either case an aggregate of isolated individuals, eventually to be brought into the state of civil society by a social compact.

Now my intention is not to combat this view--which at the present moment may be considered to be exploded--but to account for it.

I think that I shall do something towards clearing up this mystery by pointing out that this latter solution, although in great vogue with the publicists of the seventeenth and eighteenth centuries, is traced beyond them to the classical times, and was derived by them through the tradition of the Roman law from Paganism. A theory of the lawyers, and a theory of the philosophers, concreted with a true but distorted fact in tradition in order to produce this belief, viz., that society was founded by a contract among men who were originally equal.[18]

[18] It will be seen, later on, in what this view differs from Sir Henry Maine's.

I shall in a subsequent chapter state to what extent I believe it to be true that society was founded upon a contract, and also the way in which this impression was confirmed, from the actual circumstances of the formation of the early communities of Greece and Italy; and I shall then examine the true tradition, such as I believe it to be, of a state of nature associated with the reminiscence of a golden age, as contrasted with the distinct yet parallel tradition of a state of nature identified with a state of barbarism (_vide_ ch. vii. and ch. xiii.)

This latter tradition I believe to have been a recollection of that period of temporary privation after the Flood, when mankind clung to the caverns and the mountains (_vide_ p. 137), until, incited by the example of Noah, they were brought into the plains, and instructed in the arts of husbandry by the patriarch; and the notion of the primitive equality[19] of condition I believe to have originated in the Bacchanalian traditions of the same patriarch.[20]

[19] In all the Diluvian commemorative festivals, to which I shall draw attention (ch. xi.), there is one day set apart for the commemoration of this primitive equality, accompanied with Bacchanalian festivities and ceremonials.

[20] Sir H. Maine ("Ancient Law," p. 95) says, "Like all other deductions from the hypothesis of a law natural, and like the belief itself in a law of nature, it was languidly assented to, until it passed out of the possession of the lawyers into that of the literary men of the eighteenth century, and the public which sat at their feet. With them it became the most distinct tenet of their creed, and was even regarded as the summary of all the others."

If we start with a belief in the primitive equality of conditions, the only way out of the mesh is apparently by a theory of a compact.

"From the Roman law downwards," says Sir G. C. Lewis, "there has been a strong tendency among jurists to deduce recognised rights and obligations from a supposed, but non-existing contract. When an express contract exists, the legal rights and duties which it creates are in general distinct and well-defined. Hence, in cases where it is wished that similar legal consequences should be drawn, which come within the spirit of the rules applicable to a contract, though they do not themselves involve any contract, the lawyer cuts the knot by saying that a contract is presumed, that there is a contract by intendment of law, that there are certain rights and obligations "_quasi ex contractu_." Thus the Roman law held that a guardian was bound to his ward by a _quasi_ contract."--_Sir G. C. Lewis, "On the Methods of Observation, &c., in Politics_," i. 423; "_On the Social Compact_," pp. 424-431.

It is not difficult to see how such a fiction of the law would tend to give shape and system to the vague tradition as to the fact among the populace.

The way in which the philosopher came to his conclusion was somewhat more complex. It will have been seen that the notion of the state of nature and the social compact was, among the ancients, in the main, a figment of the imagination, and not a tradition. But there was also a tradition of a law of nature which did not at all correspond to a state of license, of equality, and of barbarism, such as the state of nature was conceived to be. It was, on the contrary, a law of decorum and restraint. What, then, the Roman probably meant by the law of nature was a reminiscence of a primitive revelation, or a tradition of the maxims of right and wrong by which men were guided in their relations to one another, when fresh from the hand of God--"_a diis recentes_"--when family life still subsisted, and before men had settled down into states and communities. It was not a law of nature as nature then was, but an aspiration after a lost rule of life, as after a higher standard, and an attempt to trace it back, through the corruption of mankind. Dim and uncertain as these notions were, they were not without their influence.

But their ideas as to the cosmogony were more shadowy still. When, then, in reasoning from a law of nature to a state of nature, mankind discovered that they knew or remembered nothing of their origin, or of the history of the human race, except indirectly through legendary lore, they then had recourse to the philosophers. These latter then did what philosophers incline to do in such cases of difficulty. They regarded the existing state of things, and finding it to be artificial, they, by a process of abstraction, resolved it into its elements, and, having thus reduced society into an assemblage of individuals, substituted their last analysis for the commencement of all things. In this analysis they found men, what historically and in fact they had never been, alike free, equal, and independent.

The theory of the social compact among men individually free and equal was in the main a fiction, started _à posteriori_ to account for relations otherwise obscure, or, as Sir Henry Maine explains, to facilitate modifications which were felt to be desirable; and we cannot be astonished that Paganism should take this view, unless we are prepared to believe that the traditions truly embodying the history of the world were more direct, vivid, and potential than I suppose them to have been. It is at least remarkable, that in proportion as men lose their faith, they fall back, as if by some necessary law, upon some theory which directly or indirectly contemplates mankind as a collection of atoms; and if ever society should lose again the history of its origin, as would happen if ever infidelity were to gain complete ascendancy, it would return by the same processes to the same conclusion. But however sceptical individual minds may become, or however general may be the disposition to reject or ignore the scriptural narrative, the general framework of its statements is now too firmly embedded in the belief of mankind to be easily overthrown.

The notion of a social compact, in more recent times, obtained a certain credence[21] so long as the discussion was confined to Hobbes, Locke, and their disciples. And it must be borne in mind that this is a very taking theory, a ready and convenient starting point, and conformable to much that is true in history and politics. But it is long since exploded; and even the fervid advocacy of Rousseau, in an age peculiarly predisposed for its reception, could not secure for it even temporary recognition among mankind; and why? Because, whenever the discussion cools, men will inevitably ask each other the question, If such a compact took place, where shall we locate it consistently with the evidence recorded in Genesis? Remove the evidence in Genesis, and such a theory becomes at once a tenable and plausible conjecture.

[21] "The earlier advocates of the doctrine of the social compact maintained it on the ground of its _actual existence_. They asserted that this account of the origin of political societies was _historically true_. Thus Locke, &c."--_Sir G. C. Lewis, "Meth. of Reasoning in Pol._" i. p. 429.

As I shall have occasion, later on, to come into collision with Sir Henry Maine upon some points, I have the greater satisfaction here in invoking his testimony. This acute and learned writer ("Ancient Law," p. 90) regrets that the Voltairean prejudices of the last century prevented reference "to the only primitive records worth studying--the early history of the Jews[22].... One of the few characteristics which the school of Rousseau had in common with the school of Voltaire was an utter disdain of all religious antiquities, and more than all of those of the Hebrew race. It is well known that it was a point of honour with the reasoners of that day to assume, not merely that the institutions called after Moses were not divinely dictated, ... but that they and the entire Pentateuch were a gratuitous forgery executed after the return from the Captivity. Debarred, therefore, from one chief security against speculative delusion, the philosophers of France, in their eagerness to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition of the lawyers."

[22] "The only reliable materials which we possess, besides the Pentateuch, for the history of the period which it embraces, consist of some fragments of Berosus and Manetho, an epitome of the early Egyptian history of the latter, a certain number of Egyptian and Babylonian inscriptions, and two or three valuable papyri."--_Rawlinson, Bampton Lectures._ Oxford, 1859, ii. 55.