But though the philosophy founded on the hypothesis of astate of nature has fallen low in general esteem, in so far as itis looked upon under its coarser and more palpable aspect, itdoes not follow that in its subtler disguises it has lostplausibility, popularity, or power. I believe, as I have said,that it is still the great antagonist of the Historical Method;and whenever (religious objections apart) any mind is seen toresist or contemn that mode of investigation, it will generallybe found under the influence of a prejudice or vicious biastraceable to a conscious or unconscious reliance on anon-historic, natural, condition of society or the individual. Itis chiefly, however, by allying themselves with political andsocial tendencies that the doctrines of Nature and her law havepreserved their energy. Some of these tendencies they havestimulated, other they have actually created, to a great numberthey have given expression and form. They visibly enter largelyinto the ideas which constantly radiate from France over thecivilised world, and thus become part of the general body ofthought by which its civilisation is modified. The value of theinfluence which they thus exercise over the fortunes of the raceis of course one of the points which our age debates most warmly,and it is beside the purpose of this treatise to discuss it.
Looking back, however, to the period at which the theory of thestate of nature acquired the maximum of political importance,there are few who will deny that it helped most powerfully tobring about the grosser disappointments of which the first FrenchRevolution was fertile. It gave birth, or intense stimulus, tothe vices of mental habit all but universal at the time, disdainof positive law, impatience of experience, and the preference ofa priori to all other reasoning. In proportion too as thisphilosophy fixes its grasp on minds which have thought less thanothers and fortified themselves with smaller observation, itstendency is to become distinctly anarchical. It is surprising tonote how many of the Sophismes Anarchiques which Dumont publishedfor Bentham, and which embody Bentham's exposure of errorsdistinctively French, are derived from the Roman hypothesis inits French transformation, and are unintelligible unless referredto it. On this point too it is a curious exercise to consult theMoniteur during the principal eras of the Revolution. The appealsto the Law and State of Nature become thicker as the times growdarker. They are comparatively rare in the Constituent Assembly;they are much more frequent in the Legislative; in theConvention, amid the din of debate on conspiracy and war, theyare perpetual.
There is a single example which very strikingly illustratesthe effects of the theory of natural law on modern society, andindicates how very far are those effects from being exhausted.
There cannot, I conceive, be any question that to the assumptionof a Law Natural we owe the doctrine of the fundamental equalityof human beings. That "all men are equal" is one of a largenumber of legal propositions which, in progress of time, havebecome political. The Roman jurisconsults of the Antonine era laydown that "omnes homines natura aequales sunt," but in their eyesthis is a strictly juridical axiom. They intend to affirm that,under the hypothetical Law of Nature, and in so far as positivelaw approximates to it, the arbitrary distinctions which theRoman Civil Law maintained between classes of persons cease tohave a legal existence. The rule was one of considerableimportance to the Roman practitioner, who required to be remindedthat, wherever Roman jurisprudence was assumed to conform itselfexactly to the code of Nature, there was no difference in thecontemplation of the Roman tribunals between citizen andforeigner, between freeman and slave, between Agnate and Cognate.
The jurisconsults who thus expressed themselves most certainlynever intended to censure the social arrangements under whichcivil law fell somewhat short of its speculative type; nor didthey apparently believe that the world would ever see humansociety completely assimilated to the economy of nature. But whenthe doctrine of human equality makes its appearance in a moderndress it has evidently clothed itself with a new shade ofmeaning. Where the Roman jurisconsult had written "aequalessunt," meaning exactly what he said, the modern civilian wrote"all men are equal" in the sense of "all men ought to be equal."The peculiar Roman idea that natural law coexisted with civil lawand gradually absorbed it, had evidently been lost sight of, orhad become unintelligible, and the words which had at mostconveyed a theory conceding the origin, composition, anddevelopment of human institutions, were beginning to express thesense of a great standing wrong suffered by mankind. As early asthe beginning of the fourteenth century, the current languageconceding the birthstate of men, though visibly intended to beidentical with that of Ulpian and his contemporaries, has assumedan altogether different form and meaning. The preamble to thecelebrated ordinance of King Louis Hutin enfranchising the serfsof the royal domains would have sounded strangely to Roman ears.
